                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Robin W. Hammer,
Plaintiff Below, Petitioner                                                         FILED
                                                                               February 26, 2016
vs) No. 14-0995 (Randolph County 12-C-169/13-C-18)                                 RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Robert B. Hammer, Sharon M. Helms,

and Thomas M. Hammer,

Defendants Below, Respondents



                               MEMORANDUM DECISION
        Petitioner Robin W. Hammer, pro se, appeals the Circuit Court of Randolph County’s
“Order Denying Plaintiff’s Motion for a New Trial,” entered on August 29, 2014. Respondents
Robert B. Hammer, Sharon M. Helms, and Thomas M. Hammer, by counsel Phil Isner, filed a
response. Petitioner filed a reply. On appeal, petitioner challenges the circuit court’s order that
granted judgment as a matter of law in favor of respondents and dismissed all but one of
petitioner’s claims at the close of petitioner’s case-in-chief. Petitioner also challenges the circuit
court’s decision to sustain respondent’s objection to the production of certain documents in
discovery.

        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.

                                       Factual Background

        The parties are the adult children of Guy S. Hammer, Sr., and Ethel Marie Hammer. This
appeal concerns two civil suits that petitioner has filed against three of his siblings related to
their parents’ estates.1 The present matter relates to the estate of Ethel Marie Hammer, who died
on September 10, 2011. The matter originated from petitioner’s complaint filed on October 22,

       1
         This is the third time that the parties’ disputes related to their parents’ estates have reach
this Court. The first case, Hammer v. Hammer, No. 11-0075, 2012 WL 3002534 (W.Va. May 9,
2012) (memorandum decision), involved the validity of a 2008 power of attorney executed by
Ethel Marie Hammer. In the second case, Guy S. Hammer II and Robin W. Hammer v. Thomas
M. Hammer and Sharon Helms, No. 12-1476, 2013 WL 5788568 (W.Va. Oct. 28, 2013)
(memorandum decision), we affirmed the adoption of the Special Fiduciary Commissioner’s
ruling with respect to the probate of petitioner’s father’s estate.
                                                  1

2012, Civil Action No. 12-C-169, which he amended on or about February 12, 2013.
Additionally, petitioner filed a separate complaint on January 16, 2013, Civil Action No. 13-C-8.
The circuit court consolidated the two cases into one proceeding.

        Petitioner’s allegations included, generally, the following: breach of express or implied
contract related to respondents’ failure to convey certain real property, known as the Currence
Property, to him; civil conspiracy related to the sale of the Currence Property, in which petitioner
had an interest, in order to fund the care of the decedent from May 2011 until her death; unjust
enrichment; intentional infliction of emotional distress; fraud relating to the promise that
petitioner would be compensated for caring for the decedent; and wasting of the decedent’s
estate due to respondents’ refusal to rent certain apartments owned by decedent.

        The case proceeded to a seven-day jury trial in April of 2014. At the close of petitioner’s
evidence, respondents moved for judgment as a matter of law on all counts, except for the one
count alleging fraud. The circuit court granted respondents’ motion, and the trial continued on
the fraud count, which was submitted to the jury. The jury returned a verdict in respondents’
favor.2 Petitioner moved for a new trial, which the court denied by order entered on August 29,
2014, and this appeal followed. We will address salient facts in our discussion of petitioner’s
alleged errors.

                                             Discussion

         On appeal, petitioner raises the following assignments of error:

         (1) The circuit court erred in dismissing the breach of contract claim as a matter
         of law by finding that the plaintiff refused to accept the June 12, 2009, offer for
         the transfer of property and that it didn’t matter whether he had a good reason, a
         bad reason, or no reason at all to reject the offer; (2) The circuit court erred in
         dismissing the civil conspiracy claim and wasting of the estate claim by finding
         that $8,100 paid in legal fees from the Ethel Hammer estate checking account was
         either a lawful debt owed by the decedent or a lawsuit that could be defended
         because it would affect the estate; (3) The circuit court erred in sustaining
         objections to the production of documents referred to as billing information
         concerning legal services provided by attorney David Wilmoth; (4) The circuit
         court erred in dismissing claims of civil conspiracy and wasting of the estate by
         the co-executors due to their refusal to rent and maintain the apartments in two
         apartment buildings by finding as fact that the estate had cash flow problems in
         early 2012 and therefore could not upgrade and rent the apartments. This finding
         infers that none of the apartments in both buildings could be rented due to their
         condition, which is a finding that the jury should have made, not the court; and (5)
         The court erred in dismissing the intentional infliction of emotional distress claim
         in its application of the law to the facts in this case.



         2
             On appeal, petitioner does not challenge the jury’s verdict with respect to the fraud
count.
                                                  2

With the exception of his third assignment of error, which we will address last, petitioner
challenges the circuit court’s pre-verdict granting of judgment as a matter of law in favor of
respondents on all but one of petitioner’s claims. With respect to these alleged errors, we apply
the following standard of review:

               The appellate standard of review for the granting of a motion for a
       directed verdict pursuant to Rule 50 of the West Virginia Rules of Civil Procedure
       is de novo. On appeal, this court, after considering the evidence in the light most
       favorable to the nonmovant party, will sustain the granting of a directed verdict
       when only one reasonable conclusion as to the verdict can be reached. But if
       reasonable minds could differ as to the importance and sufficiency of the
       evidence, a circuit court’s ruling granting a directed verdict will be reversed.

Syl. Pt. 3, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996). “When the plaintiff’s
evidence, considered in the light most favorable to him, fails to establish a prima facie right to
recovery, the trial court should direct a verdict in favor of the defendant.” Syl. Pt. 1, id. (citing
Syl. Pt. 3, Roberts ex rel. Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964)).3

        With this standard in mind, we turn to petitioner’s first argument, in which he contends
that the circuit court erred by dismissing his breach of contract claim. Petitioner claims that on or
around June 12, 2009, respondents offered to convey the Currence Property to him. Petitioner
further claims that he accepted this offer by performing a certain condition precedent, namely,
vacating his belongings from his mother’s residence. Petitioner claims that respondents breached
this contract because Respondent Robert Hammer -- who had previously served as the
decedent’s power of attorney -- resigned that responsibility around October 16, 2009, and
refused to convey the property to petitioner. Essentially, petitioner argues that he acted in
reliance on respondents’ offer, and thus, their failure to convey the Currence Property to him
constitutes a breach of contract.

        However, as the evidence revealed at trial, and respondents argue now, there never was
an enforceable contract for the sale of the Currence Property to petitioner. The record in the
present case demonstrates the terms of the prospective transaction were never finalized.
Apparently, the parties were considering allowing petitioner to apply the value of his services in
caring for the decedent toward the purchase of the property. However, it does not appear that the
parties reached an agreement as to the specific amount that would be applied. Additionally,
questions arose as to Respondent Robert Hammer serving as the decedent’s power of attorney,
which apparently resulted in his resignation of that responsibility. Petitioner makes clear to this
Court that he refused to accept a deed signed by the decedent because he believed her to be
incompetent. Upon our review, we believe that the circuit court correctly found that, while there
may have been an offer to convey the property, that offer was never accepted, and thus, there
was never an enforceable contract concerning the Currence Property.




       3
        We note that subsequent to 1998, the term “directed verdict” has been replaced by
“judgment as a matter of law.”
                                                 3

        Petitioner’s second and fourth assignments of error -- that the circuit court erred in
dismissing his civil conspiracy and wasting of the estate claims -- can be addressed together.
Petitioner made two wasting claims. The first claim related to respondents’ payment of legal fees
to attorney David Wilmoth in the amount of $8,100.00, and the second claim related to
respondents’ refusal to rent certain apartments owned by the decedent. Petitioner alleged that
Respondents Sharon Helms and Thomas Hammer conspired to waste their mother’s estate.

       Petitioner states that Mr. Wilmoth represented Respondent Sharon Helms and
Respondent Thomas Hammer in 2009 and filed an objection to Respondent Robert Hammer
being named power of attorney in 2008. Petitioner further states that, in 2010, Mr. Wilmoth
represented Respondent Helms and Respondent Thomas Hammer in their capacities as
administrators of their father’s estate, to which their mother Ethel Hammer was the sole
beneficiary. Petitioner states that Mr. Wilmoth took money from the estate in that litigation even
though he did not represent Ethel Hammer. Petitioner contended at trial that the only services
provided by Mr. Wilmoth for Respondent Helms and Respondent Thomas Hammer concerning
their mother’s estate (the present case) was to attend a Randolph County Commission meeting in
2011 concerning their appointment as co-executors and drafting a motion in 2012. Petitioner
argued that neither service warranted $8,100.00 in fees.

        Regarding respondents’ refusal to rent the decedent’s apartments during her lifetime,
petitioner contended that it was an attempt by Respondent Helms and Respondent Thomas
Hammer to defraud Medicaid. Specifically, petitioner alleged that the refusal to rent the
apartments was to ensure that decedent had no income. However, petitioner argued that, once the
decedent died, Medicaid eligibility was of no concern and the failure to rent her apartments
constitutes wasting of the estate.

        Upon our review of the record in this matter, we agree that respondents were entitled to
judgment as a matter of law with respect to petitioner’s civil conspiracy and wasting of the estate
claims. West Virginia Code § 44-1-15 provides that “[i]t shall be the duty of every personal
representative to administer well and truly the whole personal estate of his decedent. The
appointment of a debtor as executor shall not extinguish the debt.” The law permits a suit against
personal representatives for damage to the estate for which they are responsible. See W.Va. Code
§§ 44-1-23 and 24. This Court has held that

               [t]he personal representative of the estate of a deceased acts in a fiduciary
       capacity. His duty is to manage the estate under his control to the advantage of
       those interested in it and to act on their behalf. In the discharge of this duty, the
       executor or administrator of a deceased’s estate is held to the highest degree of
       good faith and is required to exercise the ordinary care and reasonable diligence
       which prudent persons ordinarily exercise, under like circumstances, in their own
       personal affairs.

Syl. Pt. 1, Latimer v. Mechling, 171 W.Va. 729, 301 S.E.2d 819 (1983). A civil conspiracy is
described as follows:




                                                4

       A civil conspiracy is a combination of two or more persons by concerted action to
       accomplish an unlawful purpose or to accomplish some purpose, not in itself
       unlawful, by unlawful means. The cause of action is not created by the conspiracy
       but by the wrongful acts done by the defendants to the injury of the plaintiff.

       A civil conspiracy is not a per se, stand-alone cause of action; it is instead a legal
       doctrine under which liability for a tort may be imposed on people who did not
       actually commit a tort themselves but who shared a common plan for its
       commission with the actual perpetrator(s).

Syl. Pts. 8 and 9, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009). Accordingly, if the
wasting of the estate claim fails, the civil conspiracy claim cannot survive. See Id.

        Regarding the payment of legal fees to Mr. Wilmoth, petitioner failed at trial, and fails
now on appeal, to establish that any of the $8,100.00 went beyond the scope of the litigation that
affected the estate. Petitioner’s brief is replete with assumptions with no support. The fact that
Mr. Wilmoth received payment after the decedent died is probative of nothing. Petitioner failed
to draw a nexus between the payment to Wilmoth and any improper purpose.

        Regarding the apartments, the evidence was that there had been a decision to evict
tenants from the apartments sometime around June of 2011, several months prior to the
decedent’s death. In fact, petitioner’s allegations regarding the apartments primarily concerned
conduct prior to his mother’s death. Petitioner failed to present evidence that respondents wasted
the estate subsequent to the decedent’s death. The decedent’s will does not direct that the
apartments be rented; the only arguably relevant provision in her will provided that, if they were
rented, the person who oversaw the property would receive a portion of the rental proceeds. As
the circuit court found, there was no evidence that respondents violated any duty by failing to
rent the apartments after the decedent’s death. Therefore, we reject petitioner’s second and fourth
assignments of error.

        Next, petitioner argues in his fifth assignment of error that the circuit court erred in
dismissing his intentional infliction of emotional distress claim. It appears that petitioner’s claim
of “extreme and outrageous conduct” by respondents is based on the allegation that “Petitioner is
a hoarder which is a mental disorder and the Respondents in this case knew it.”

         The cause of action for intentional infliction of emotional distress is defined as follows:
“One who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if bodily harm
to the other results from it, for such bodily harm.” Syl. Pt. 6, Harless v. First Nat. Bank in
Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982). Other than pointing to his own alleged
infirmity, petitioner identified no facts at trial that were sufficient to submit his intentional
infliction of emotional distress claim to the jury. Even viewing the evidence in the light most
favorable to petitioner, the circuit court was correct to grant judgment as a matter of law for
respondents on this claim.




                                                 5

        Finally, we turn to petitioner’s argument that the circuit court erred in sustaining
respondents’ objection to producing privileged documents. In discovery, petitioner sought
documents related to Mr. Wilmoth’s representation of respondents. Respondents refused
petitioner’s request on the basis of the attorney-client privilege. We review petitioner’s
assignment of error under the following standard:

               A trial court is permitted broad discretion in the control and management
       of discovery, and it is only for an abuse of discretion amounting to an injustice
       that we will interfere with the exercise of that discretion. A trial court abuses its
       discretion when its rulings on discovery motions are clearly against the logic of
       the circumstances then before the court and so arbitrary and unreasonable as to
       shock our sense of justice and to indicate a lack of careful consideration.

Syl. Pt. 1, B.F. Specialty Co. v. Charles M. Sledd Co., 197 W.Va. 463, 475 S.E.2d 555 (1996).
Furthermore, with respect to discovery rulings dealing with privileged information, we have held
that “[u]nless obviously correct or unreviewably discretionary, rulings requiring attorneys to turn
over documents that are presumably prepared for their clients’ information and future action are
presumptively erroneous.” Syl. Pt. 6, State ex rel. U.S. Fid. & Guar. Co. v. Canady, 194 W.Va.
431, 460 S.E.2d 677 (1995).

        In the present case, petitioner does not genuinely dispute that the information he sought
was privileged; rather, he complains that the circuit court granted respondents’ objection to
disclosure when the objection was not made until three months after petitioner made the request,
and thus, the circuit court should have deemed the objection waived. However, as respondents
point out, the circuit court made a factual finding that respondents’ discovery responses and
objections were timely under the court’s order. Under these circumstances, we cannot find that
the circuit court abused its discretion in sustaining respondents’ objection to disclosure of Mr.
Wilmoth’s records.

        For the foregoing reasons, we affirm the circuit court’s August 29, 2014, order denying
petitioner’s motion for a new trial.

                                                                                         Affirmed.

ISSUED: February 26, 2016

CONCURRED IN BY:

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




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