785 S.E.2d 836
W. Va.2016Background
- Bossio Enterprises was formed in 1979 with shares split among Luigi Bossio and his sons Sam (petitioner) and Bernard (respondent); business later shifted to real estate.
- A 1982 unsigned draft stock purchase agreement (requiring company-funded redemption of deceased members’ shares via life insurance) was introduced at trial; insurance policies were purchased but lapsed in 1996.
- Respondent testified a revised 1990 agreement eliminated the mandatory life‑insurance funding and required corporate redemption of a decedent’s shares; no signed 1990 document was produced.
- After Luigi died in 2007, his ten shares passed to his estate; respondent sued to enforce the alleged 1990 agreement forcing the estate to sell the shares back to the corporation.
- The circuit court found, by clear and convincing evidence, that a 1982 agreement existed and was revised in 1990 as alleged; the Supreme Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Estate / Sam) | Defendant's Argument (Bernard) | Held |
|---|---|---|---|
| Whether a missing written stock purchase agreement can be proved by secondary evidence | Respondents’ proof is uncorroborated, self-serving; heightened proof required for lost instruments | Secondary evidence (drafts, attorney notes, stock certificate endorsement, comparable agreement, witness testimony) suffices if persuasive | Court: Proponent of a lost instrument must prove contents by clear and convincing evidence; respondent met that standard |
| Whether a 1990 agreement (not produced) was executed and replaced 1982 terms | The 1982 agreement terminated when insurance lapsed; no proof of 1990 content beyond Bernard’s testimony | Evidence: attorney’s note indicating a 1990 contract, typewritten endorsement on stock certificates referencing 10-1-90, exemplar agreement, and testimony | Court: Sufficient corroboration to conclude a 1990 revision eliminating mandatory insurance was executed |
| Standard of proof applicable to lost/missing agreement | Clear and conclusive proof required; plaintiffs argue respondent’s evidence fails that standard | Respondent accepts heightened standard but argues he supplied corroborative evidence meeting it | Court: Adopts clear and convincing (clear and conclusive) standard and finds it satisfied |
| Weight/credibility of secondary evidence vs. lack of originals | Estate argues credibility of respondent and absence of signed 1990 doc is dispositive | Bernard argues trier of fact may credit secondary evidence and determine weight | Court: As factfinder, circuit court reasonably credited respondent’s corroborative secondary evidence; appellate court will not reverse absent clear error |
Key Cases Cited
- Marshall v. Elmo Greer & Sons, Inc., 193 W.Va. 427, 456 S.E.2d 554 (W. Va. 1995) (high degree of proof required to establish a lost instrument)
- Pub. Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (W. Va. 1996) (standard of review for bench-trial findings)
- Lucas v. Hensley, 81 W.Va. 239, 94 S.E. 138 (W. Va. 1917) (lost deeds require clear and conclusive proof of existence and contents)
- Drake v. Parker, 122 W.Va. 145, 7 S.E.2d 651 (W. Va. 1940) (parol testimony for lost instrument must be conclusive to establish title)
- Telluric Co. v. Bramer, 76 W.Va. 185, 85 S.E. 177 (W. Va. 1915) (evidence of lost muniment of title must be clear, strong, and conclusive)
- Dart Indus., Inc. v. Commercial Union Ins. Co., 28 Cal.4th 1059, 52 P.3d 79 (Cal. 2002) (contents of lost instrument may be proved in substance by secondary evidence)
- In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (W. Va. 1996) (appellate standard: finding is clearly erroneous only if the record leaves a definite and firm conviction a mistake was made)