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Mehovic v. Mehovic5/4/1999
Appeal by defendants from order entered 13 May 1997 by Judge J. Marlene Hyatt in McDowell County Superior Court. Heard in the Court of Appeals 21 April 1998.
Defendants appeal the trial court's order denying their motions to set aside a 19 March 1997 jury verdict, for new trial, and for judgment notwithstanding the verdict (JNOV) or new trial. We conclude the trial court did not err.
Pertinent facts and procedural history include the following: Plaintiff Nancy Marie Mehovic and defendant Mehmet Mehovic (Mehmet) were married 16 December 1981. In 1986, plaintiff and Mehmet (the couple) purchased a home and 15.75 acres of land (the property) in McDowell County for approximately $52,000.00. The couple advanced $26,000.00 at closing and paid the balance due over a period of years thereafter. Improvements were made to the residence during that time and a mobile home was added to the property. Mehmet's younger brother, defendant Vezic Mehovic (Vezic), came to live with the couple as a junior high school student and was thereafter raised by them. On 19 May 1995, the couple executed a gift deed vesting full title to the property in Vezic, and subsequently separated in the summer of 1995.
On 29 August 1995 in McDowell County Superior Court, plaintiff filed the instant complaint setting forth counts of assault and battery, intentional infliction of emotional distress, fraud, duress, and undue influence against Mehmet. Plaintiff further asserted claims of fraud, unjust enrichment and constructive trust against Vezic. Plaintiff alleged, inter alia, that Mehmet had subjected her to physical and mental abuse on several occasions, and that he had fraudulently "represented to that the property needed to be conveyed to [Vezic] in order to protect it from [the couple's] debts," but that it would still belong to the couple following transfer to Vezic.
On 18 September 1995, defendants filed answer, including motions, counterclaims and a third-party complaint against McDowell County resident Jake Stockton. Plaintiff filed her reply, containing motions, 4 October 1995; the third-party defendant filed answer 20 October 1995. Plaintiff's motions to dismiss the third-party complaint and to dismiss defendants' first counterclaim were allowed 17 March 1997, and defendants voluntarily dismissed their remaining counterclaims that same date.
Jury trial commenced 17 March 1997 in McDowell County Superior Court. At the charge conference following presentation of evidence, the parties agreed, inter alia, that the trial court would instruct the jury on "Rescission of Written Instrument" in reference to plaintiff's allegations of fraud, undue influence and duress. It was further agreed that,
if the jury should answer Issue 4, Issue 5, or Issue 6 in favor of the Plaintiff, finding that there was either undue influence, duress, or fraud, then [plaintiff's] remedy [would be] rescission of the written instrument.
Over defendants' objection, the jury was also subsequently instructed, inter alia, as follows:
Issue 7 reads: what amount of punitive damages, if any, does the jury in its discretion award to the Plaintiff . . . ? You will answer this issue only if you have answered Issue 1 or Issue 2 and Issue 3 in favor of the Plaintiff or if you have answered Issue 4 or Issue 5 or Issue 6 in favor of Plaintiff. If you have answered any one of those issues in favor of the Plaintiff, then you will consider Issue Number 7.
The jury answered the issues submitted in the following manner: Issue One: Did the defendant, Mehmet . . . assault the plaintiff . . . ?
Answer: YES
Issue Two: Did the defendant, Mehmet . .
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