Carol Drake Greco and Bette Drake Walling v. George I. Sponaugle, II

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Carol Drake Greco and Bette Drake Walling, Plaintiffs Below, Petitioners FILED February 9, 2018 vs) No. 17-0124 (Pendleton County 15-C-32) EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA George I. Sponaugle, II, Defendant Below, Respondent

MEMORANDUM DECISION Petitioners Carole Drake Greco and Betty Drake Walling, by counsel Scott Curnutte, appeal the January 12, 2017, order that granted summary judgment in favor of respondent. Respondent George Sponaugle, by counsel Jerry D. Moore and Jared T. Moore, filed a response and cross-assignment of error regarding the order’s dismissal of respondent’s counterclaim. Petitioners filed a reply brief.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

George and Ruth Drake were married on December 18, 1948, and the marriage did not produce any children. On May 30, 2000, Respondent Sponaugle, an attorney and Ruth Drake’s nephew, prepared wills for George and Ruth Drake. The wills left the bulk of the estate to the surviving spouse, and if not survived by each other, the estate was to be divided equally amongst the Drake’s six heirs. George Drake’s heirs by consanguinity are Petitioners Carole Drake Greco and Bette Drake Walling. Respondent is Ruth Drake’s heir by consanguinity.1 George Drake executed his will on May 30, 2000, and passed away on April 10, 2002. He was survived by his wife, Ruth.

In 2009, Ruth Drake executed a will drafted by respondent at his law office. The 2009 will was significantly different from the 2000 will executed by George Drake, as it bequest the majority of the million dollar estate to Respondent Sponaugle, and bequeathed only $125,000 to petitioners. Ruth Drake died on December 31, 2014. Respondent Sponaugle, qualified as the executor of the estate, and presented the will executed by Ruth Drake in 2009 for administration.

1 The remaining three heirs are notice parties to this action.

Subsequently, Petitioners Greco and Walling inquired of respondent if he had knowledge of a will prepared and executed in 2000 by Ruth Drake. Respondent advised that he checked his computers, but could not find a prior will. After this communication, petitioners filed the underlying suit against respondent alleging that there was a common understanding between Ruth and George to execute mutual wills, and that Ruth Drake benefitted from that agreement when she received George Drake’s estate upon his death, and that she breached that agreement when she executed her 2009 will.

In April of 2016, respondent moved for summary judgment and argued that petitioners could not produce Ruth Drake’s executed 2000 will, and that the parties could not meet their burden to prove the existence of an earlier will. Petitioners responded that summary judgment prior to discovery was inappropriate. The circuit court agreed to hold respondent’s motion in abeyance.

Thereafter, respondent, in response to discovery requests, executed an affidavit wherein he averred that he was unaware that Ruth Drake executed a will on May 30, 2000, and that he did not have a copy of such a will. Respondent further averred that he had “attempted to locate the [executed] last will and testament of Ruth Drake,” but was unable to do so.

On September 14, 2016, petitioners’ counsel called the entity responsible for computer administration at respondent’s law office, and requested that it search for any will prepared for Ruth Drake. The computer administrator located a file which reportedly contained a draft of a will for Ruth Drake. This draft was prepared at the same time as George Drake’s draft in 2000. Respondent never previously disclosed the existence of the draft will. As a result, petitioners submitted a report to the court, detailing their efforts to retrieve the draft of the will, and respondent’s noncompliance. In response, respondent filed a clarification asserting that the files were newly discovered evidence, and that respondent had provided petitioner with the requested files.

The circuit court reviewed the parties’ motions and by order entered January 12, 2017, granted respondent’s motion for summary judgment, finding that petitioners could not establish that Ruth Drake executed the May 30, 2000, will, or that the Drake’s wills were mutual. The circuit court also dismissed a counterclaim filed by respondent, seeking to invoke the in terrorem2 clause in the will. Petitioners now appeal the order of the circuit court that dismissed

2 Pursuant to the in terrorem clause,

Every heir, legatee, devisee, beneficiary, or the spouses of any heir, legatee, devisee or beneficiary, under this Will, who shall contest in any court any provision of this instrument, or cause any trouble or disturbance in the settlement of my estate, shall not be entitled to any devises, legacies or benefits under this Will or any Codicil hereto, or any trust created hereby, and any and all devises, legacies and portions of the income or corpus of my estate, otherwise provided to be paid to such person shall lapse and shall be paid, distributed, and passed to the remaining beneficiaries under Article III of this my Last Will and Testament. My (continued . . .)

their complaint and respondent appeals the dismissal of his counterclaim.

Requesting that this Court overturn the order of the circuit court granting respondent summary judgment, petitioners assert that the circuit court erred as a genuine issue of material fact existed regarding whether the original wills were mutual wills. Conversely, respondent argues in his cross-appeal that the circuit court erred in dismissing his claim sua sponte, because petitioners had not previously moved for dismissal of respondent’s claim. We note that, “a circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). After careful consideration of the record we find that the circuit court did not err in dismissing the parties’ complaints and respective counterclaim.

Petitioners argue that there is a genuine issue of material fact regarding whether Ruth and George Drake executed mutual wills on May 30, 2000. Petitioners point to the word-processor version of Ruth Drake’s May 30, 2000, will located on respondent’s office computer system, which is a mirror image of George Drake’s will, and asserts that such is evidence of an agreement between the testators to make mutual wills. Petitioners argue further that additional circumstances exist that give a clear implication that the wills were made pursuant to a common understanding. We have long held that, “[t]he circuit court’s function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial.” Syl. Pt. 3, id. Here, the circuit court found that the petitioners failed to meet the threshold test regarding mutual wills, as they could produce no affirmative evidence to establish that the wills were mutual in nature. In the absence of such evidence, the circuit court held there was no genuine issue of material fact regarding the existence of mutual wills. We agree, and find no reversible error.

In his cross-appeal, respondent argues that the circuit court erred in granting summary judgment in favor of petitioners. Respondent argues that because petitioners did not make any motions regarding the counterclaim, that the circuit court did not have the authority to dismiss the claim without giving respondent reasonable notice and an opportunity to address the grounds for which relief was sought. We disagree. It is clear from our review of the record that the circuit court had sufficient information to determine there was no genuine issue for trial. It is well established “that a summary judgment may be rendered against the party moving for judgment and in favor of the opposing party even though the opposing party has made no motion for summary judgment.” Gastar Exploration Inc. v. Rine, 239 W. Va. 792, ___, 806 S.E.2d 448, 454 (2017). Indeed, this Court has held that, “[w]here a court acts with great caution, assuring itself that the parties to be bound by its judgment have had an adequate opportunity to develop all of the probative facts which relate to their respective claims, the court may grant summary judgment under Rule 56, W.Va. R.C.P., sua sponte.” Syl. Pt. 4, S. Erectors, Inc. v. Olga Coal Co., 159 W. Va. 385, 223 S.E.2d 46 (1976). Consequently, we find no error.

The circuit court’s order reflects its thorough analysis of the grounds raised in the

hereinafter named Executor is specifically authorized to defend, at the expense of my estate, any contest or attack of any nature upon this Will or any Codicil hereto, or upon any paragraph or provision hereof.

petitions before this court. Having reviewed the opinion order entered on January 12, 2017, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to all the assignments of error raised in this appeal. The clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed. ISSUED: February 9, 2018 CONCURRED IN BY:

Chief Justice Allen H. Loughry II Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Elizabeth D. Walker