          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                   January 2017 Term
                                     ____________                         FILED
                                                                       April 20, 2017
                                                                          released at 3:00 p.m.
                                      No. 15-1073                       RORY L. PERRY, II CLERK
                                                                      SUPREME COURT OF APPEALS
                                     ____________                          OF WEST VIRGINIA


                      CYNTHIA W. VAN HEYDE,

          ADMINISTRATRIX OF THE ESTATE OF PATRICK A. WOLFE,

                        Plaintiff Below, Petitioner


                                           v.

 SUSAN MILLER, JESSICA MILLER LIPSCOMB, AND HOUSES & MORE, INC.,

                     Defendants Below, Respondents



                            ______________________________


                   Appeal from the Circuit Court of Preston County

                       Honorable Andrew N. Frye, Jr., Judge

                             Civil Action No. 14-C-87


                                  AFFIRMED

                       _______________________________

                               Submitted: February 7, 2017
                                  Filed: April 20, 2017

William E. Ford III, Esq.                       Rodney L. Bean, Esq.

Lisa Furbee Ford, Esq.                          Monte L. Williams, Esq.

Ford Law Office                                 Chelsea V. Prince, Esq.

Clarksburg, West Virginia                       Steptoe & Johnson PLLC

Attorneys for Petitioner                        Morgantown, West Virginia

                                                Attorneys for Respondents



JUSTICE WORKMAN delivered the Opinion of the Court.
                               SYLLABUS BY THE COURT




              1. “A motion for summary judgment should be granted only when it is clear

that there is no genuine issue of fact to be tried and inquiry concerning the facts is not

desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins.

Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).



              2. “Summary judgment is appropriate if, from the totality of the evidence

presented, the record could not lead a rational trier of fact to find for the nonmoving party,

such as where the nonmoving party has failed to make a sufficient showing on an essential

element of the case that it has the burden to prove.” Syl. Pt. 2, Williams v. Precision Coil,

Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).



              3. “If the moving party makes a properly supported motion for summary

judgment and can show by affirmative evidence that there is no genuine issue of a material

fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate

the evidence attacked by the moving party, (2) produce additional evidence showing the

existence of a genuine issue for trial, or (3) submit an affidavit explaining why further

discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil




                                               i
Procedure.” Syl. Pt. 3, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329

(1995).



              4. “‘A person is mentally competent to make a conveyance of land if he knows

the nature, character and effect of his deed.’ Carrigan v. Davis, 84 W.Va. 473 [100 S.E. 91

(1919).]” Syl. Pt. 1, Cyrus v. Tharp, 147 W.Va. 110, 126 S.E.2d 31 (1962).



              5. “‘The presumption of law is in favor of the sanity and mental capacity of

a grantor, and the person attacking his conveyance on the ground of his incapacity, or the

exertion of undue influence over him in inducing him to make the deed, bears the burden of

proof. One who charges fraud and undue influence must prove it.’ Carrigan v. Davis, 84

W.Va. 473 [100 S.E. 91 (1919)].” Syl. Pt. 2, Cyrus v. Tharp, 147 W.Va. 110, 126 S.E.2d 31

(1962).



              6. “‘A grantor in a deed may be extremely old, his understanding, memory, and

mind [e]nfeebled and weakened by age, and his action occasionally strange and eccentric,

and he may not be able to transact many affairs of life, yet if age has not rendered him

imbecile, so that he does not know the nature and effect of the deed, this does not invalidate

the deed. If he be capable, at the time, to know the nature, character and effect of the




                                              ii
particular act, that is sufficient to sustain it.’ Point 5 Syllabus, Buckey v. Buckey, 38 W.Va.

168 [18 S.E. 383 (1893)].” Syl. Pt. 3, Cyrus v. Tharp, 147 W.Va. 110, 126 S.E.2d 31 (1962).



              7. “The presumption of law is that the acceptance of a deed, made in

pursuance of an antecedent written agreement for the sale of land, is satisfaction of all

previous covenants, and, although such acceptance may in some circumstances, be but partial

execution of the contract, to rebut the legal presumption, the intention to the contrary must

be clear and convincing.” Syllabus. William James Sons Co. v. Hutchinson, 79 W.Va. 389,

90 S.E. 1047 (1916).



              8.   “A party challenging the validity of a deed because of inadequate

consideration and grantor incompetence has the burden of proving those facts. Absent

convincing proof, a trial court should find the challenged deed valid.” Syl. Pt. 3, McElwain

v. Wells, 174 W. Va. 61, 322 S.E.2d 482 (1984).




                                              iii
Workman, Justice:



              This is an appeal by Cynthia W. Van Heyde (hereinafter “petitioner”),

Administratrix of the Estate of Patrick A. Wolfe, from an order granting summary judgment

to Susan Miller, Jessica Miller Lipscomb, and Houses & More, Inc. (hereinafter

“respondents” or referenced individually) entered by the Circuit Court of Preston County,

West Virginia, on September 30, 2015. The petitioner contends the circuit court erred in

granting summary judgment where genuine issues of material fact exist regarding a real

estate transaction. Upon thorough evaluation of the parties’ briefs, arguments, record on

appeal, and applicable precedent, this Court finds no error in the circuit court’s

determinations and consequently affirms the summary judgment order.



                            I. Factual and Procedural History

              The petitioner’s uncle, Mr. Patrick A. Wolfe, owned a sixty-acre parcel of land

in Preston County, West Virginia. Mr. Wolfe met with Respondent Mrs. Susan Miller, a real

estate agent with the real estate brokerage company of Houses & More, Inc. (hereinafter

“Houses & More”), in June 2013 to discuss listing his property for sale. He was eighty-five

years old at the time of the initial meeting. Mrs. Miller and Mr. Wolfe visited the subject

property, and, according to the deposition testimony of Mrs. Miller, Mr. Wolfe advised her

that he wanted to sell the property quickly. After visiting the property a second time


                                             1

independently,1 Mrs. Miller met with Mr. Wolfe to discuss the list price. Mrs. Miller

contends that Mr. Wolfe wanted to list the property for $90,000, including Mr. Wolfe’s

portion of the mineral interests. They discussed recent comparable sales and the unique

terrain of the property, its overgrown meadows, and the existence of high-tension power lines

through the property. Mr. Wolfe and Mrs. Miller thereafter entered into a listing agreement

whereby Mrs. Miller would list the property at a price of $90,000. In a hand-written notation,

Mr. Wolfe indicated the price included both the surface and his portion of the mineral

interests.



              Respondent Jessica Miller Lipscomb is Mrs. Miller’s daughter and is also a real

estate agent with Houses & More. On June 21, 2013, Mrs. Lipscomb met with Jason

Haskiell and Ashley Kyle (hereinafter “buyers”) at the Houses & More office. The buyers

submitted an offer to purchase the property for $90,000, including Mr. Wolfe’s portion of

the mineral interests. Mr. Wolfe accepted their offer and executed a real estate purchase

agreement the following day. Mrs. Miller and Mrs. Lipscomb represented Mr. Wolfe and

the buyers as dual-agents in the transaction, the dual agency was properly explained to the

seller and buyers, and all parties signed a Notice of Agency Relationship. The purchase

agreement specified that the sale included Mr. Wolfe’s portion of the mineral interests, and


       1
       In deposition testimony, Mrs. Miller indicated that she measured the road frontage,
took photographs, viewed the property for points of egress and ingress, and inspected the
neighborhood generally.

                                              2

it required any changes, modifications, or amendments to the agreement be in writing and

signed by the parties. The closing was to occur on or before August 28, 2013.2



              In August 2013, Mr. Wolfe informed Mrs. Miller that he had changed his mind

and no longer wanted to include the mineral interests in the sale. He did not complete any

documentation regarding this change of intention, but he advised Mrs. Miller that his

nephew, husband of Petitioner Van Heyde, would contact Mrs. Miller about the property

sale. On August 19, 2013, the petitioner and her husband, residents of Florida, met with Mr.

Wolfe and Mrs. Miller. Unbeknownst to the petitioner, her husband, or Mr. Wolfe, Mrs.

Miller recorded the meeting on an audio recorder.3 During the meeting, the petitioner and

her husband questioned the contract price of $90,000 for surface and mineral rights. Mrs.

Miller explained that $90,000 was the price suggested by Mr. Wolfe based upon discussions

regarding factors to be considered in valuing property, and she also emphasized that any

alteration to the purchase agreement would require written documentation, pursuant to the




       2
         A scriverner’s error in the deed conveying the property to Mr. Wolfe was thereafter
identified during the title search performed by the closing attorney, and Mr. Wolfe had his
personal attorney, Woodrow Turner, prepare a corrective quitclaim deed properly conveying
title to Mr. Wolfe. After identification of that error, the parties entered into a waiting period
prior to closing.
       3
        According to the respondents’ brief, Mrs. Miller and Mrs. Lipscomb recorded the
meeting because they had previously received a warning to be cautious of the petitioner’s
husband because he had threatened to sue the brokerage as a result of the property
transaction.

                                               3

terms of the agreement.4 On August 21, 2013, the petitioner and her husband submitted a

letter to Mrs. Miller on Mr. Wolfe’s behalf. The letter expressed Mr. Wolfe’s desire to

continue with the sale of the surface interests at a “mutually agreed upon” price, but it

indicated Mr. Wolfe’s intention to retain his portion of the mineral interests. The petitioner

and her husband thereafter returned to their home in Florida. The petitioner’s husband later

testified that, prior to leaving for Florida, the petitioner had told Mr. Wolfe she would

purchase the subject property, including the mineral rights, for $90,000. Mr. Wolfe had

rejected her offer.



              Based upon Mr. Wolfe’s expressed intention to alter the terms of the purchase

agreement, Mrs. Miller scheduled a meeting with the parties to the agreement. On August

26, 2013, she first met with Mr. Wolfe in the morning and later met with Mr. Wolfe and the

buyers in the evening. The petitioner and her husband were not present for either meeting.

Mrs. Miller also surreptitiously recorded the meetings of August 26, 2013. During the

morning meeting, the petitioner emphasizes Mr. Wolfe’s statement that he did not wish to

sell the property with the mineral rights. Mrs. Miller thereafter informed him that his refusal

to sell the mineral interests would cause him to be sued, and she advised him to go through



       4
        When the petitioner raised concerns about the adequacy of the contract price, Mrs.
Miller asked her if she and her husband were challenging Mr. Wolfe’s mental competency
to handle the property transaction. The petitioner’s husband indicated they were not
challenging Mr. Wolfe’s competency.

                                              4

with the transaction. Mrs. Miller further advised Mr. Wolfe that “since we are representing

both you and them . . ., we can’t take sides[.]”



              During the evening meeting with the buyers on August 26, 2013, Mr. Wolfe

confirmed that he was willing to sell both the surface and mineral rights for the contract price

of $90,000, noting that he only owned three-fifths of the mineral interests. The parties

thereafter memorialized their understanding by executing an addendum to the purchase

agreement confirming the sale of both the surface and mineral rights.



              An attorney, Neil Reed, subsequently met with Mr. Wolfe to prepare the deed

transferring the property to the buyers. Mr. Reed later testified that Mr. Wolfe did not exhibit

any indication of confusion or mental incompetency during their meeting. The parties

proceeded to the closing on August 28, 2013, at the law office of the closing attorney, Trudy

Goff. Mrs. Miller and Mrs. Lispcomb, as well as the buyers, later testified that Mr. Wolfe

evidenced a complete understanding of the significance of that transaction. Ms. Goff also

testified that Mr. Wolfe comprehended the details of the sale; she did not observe any

indication of undue influence over Mr. Wolfe.



              Mr. Wolfe received a check in the amount of $83,925.01 after the execution

of the deed; this constituted the purchase price minus settlement charges. He deposited the


                                               5

check in his personal checking account that same day and placed the documentation

regarding the transaction in the box in which he kept other important documentation. On

August 30, 2013, Mr. Wolfe visited Dr. Roger Lewis for treatment of minor injuries he

sustained in a fall. Dr. Lewis later testified that Mr. Wolfe was coherent during the

examination and had sufficient mental capacity to understand the nature of his medical

treatment and to refuse to be admitted to the hospital for further evaluation of a suspected

underlying cardiac issue. Dr. Lewis specifically stated he was “as certain as I can be” that

Mr. Wolfe was fully competent.



              On September 2, 2013, Mr. Wolfe was found dead in his home. The medical

examiner noted the cause of death as bacterial bronchopneumonia, with probable

Alzheimer’s dementia as a contributing factor. The petitioner states she was not aware that

the closing had taken place until she returned to West Virginia upon Mr. Wolfe’s death.5



              On May 1, 2014, the petitioner filed a civil action in which she raised the

following claims against the respondents: (1) breach of contract; (2) breach of fiduciary duty;

and (3) constructive fraud. The gravamen of the petitioner’s claims is the allegation that the

respondents breached their contractual duties to Mr. Wolfe because they knew or should have



       5
      Subsequent testimony revealed that the petitioner and her husband had not spoken
with Mr. Wolfe since August 21, 2013.

                                              6

known he was mentally incapable of legally transferring the property. The petitioner also

initially named the buyers as defendants and sought rescission of the deed conveying the

property. Pursuant to the court’s scheduling order, discovery ended on July 1, 2015. By

agreed order, the petitioner thereafter dismissed the buyers as defendants and withdrew her

claim regarding rescission of the deed. The case proceeded on the three claims against the

respondents.



               On August 31, 2015, the respondents filed a motion for summary judgment,

arguing the petitioner’s dismissal of the rescission of deed claim against the buyers

essentially extinguished or waived her claims against the respondents.6 Alternatively, the

respondents argued the petitioner, as a matter of law, was unable to establish that Mr. Wolfe

lacked the requisite mental capacity to enter into a binding agreement on August 28, 2013.

The respondents emphasized Mrs. Miller’s uncontroverted testimony that Mr. Wolfe did not

exhibit signs of mental incompetency during her dealings with him; the testimony of Mr.

Reed and Ms. Goff that nothing about Mr. Wolfe’s demeanor led them to discern any mental

infirmity; the petitioner’s inability to identify specific conduct of Mr. Wolfe during the

transaction that should have alerted the respondents to any problem with his mental

functioning; and the testimony of Dr. Roger Lewis concerning the medical treatment of Mr.


       6
        The lower court did not premise its ultimate findings upon this waiver argument.
Instead, the court proceeded to a thorough analysis of the petitioner’s claims against the
respondents.

                                             7

Wolfe two days after the closing and Mr. Wolfe’s sufficient mental capacity to comprehend

and consent to medical treatment.



              In opposition to the respondents’ summary judgment motion, the petitioner

submitted affidavits from three acquaintances of Mr. Wolfe who attested to a decline in Mr.

Wolfe’s mental health. Tom DeBerry stated Mr. Wolfe had become disoriented and forgetful

during the five to six months before his death. Michelle Hebb similarly described Mr. Wolfe

as increasingly forgetful, lost, and unable to identify the current day or month. Bradley

Lipscomb, who lived in rental property owned by Mr. Wolfe, recounted incidents in which

Mr. Wolfe had asked the same questions repeatedly, misplaced items, and displayed a lack

of hygiene. He also noted that Mr. Wolfe discussed his meetings with a real estate broker

and his intention to retain his portion of the mineral interests.



              Upon evaluation of the petitioner’s claims, the circuit court found no genuine

issue of material fact. By order entered September 30, 2015, the circuit court granted the

respondents’ motion for summary judgment, and this appeal followed.



                                   II. Standard of Review

              The standards of review applicable to issues of this nature have been clearly

stated by this Court. “A motion for summary judgment should be granted only when it is


                                               8

clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not

desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins.

Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963). In syllabus points two and three of

Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995), this Court further

held as follows:

                     Summary judgment is appropriate if, from the totality of
              the evidence presented, the record could not lead a rational trier
              of fact to find for the nonmoving party, such as where the
              nonmoving party has failed to make a sufficient showing on an
              essential element of the case that it has the burden to prove.

                     If the moving party makes a properly supported motion
              for summary judgment and can show by affirmative evidence
              that there is no genuine issue of a material fact, the burden of
              production shifts to the nonmoving party who must either (1)
              rehabilitate the evidence attacked by the moving party, (2)
              produce additional evidence showing the existence of a genuine
              issue for trial, or (3) submit an affidavit explaining why further
              discovery is necessary as provided in Rule 56(f) of the West
              Virginia Rules of Civil Procedure.


This Court reviews the circuit court’s entry of summary judgment de novo. See Syl. Pt. 1,

Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). With these standards as guidance,

we proceed to an evaluation of this matter.



                                       III. Discussion

              Throughout the eleven assignments of error raised by the petitioner, she

addresses several purported issues of material fact and contends they should have precluded

                                               9

summary judgment in the respondents’ favor. We address the petitioner’s claims in the

context of her assertions of breach of contract, breach of fiduciary duty, and constructive

fraud.



                                A. Alleged Breach of Contract

               The petitioner contends the respondents breached the contractual duties owed

to Mr. Wolfe by ignoring Mr. Wolfe’s verbal and written instructions regarding the inclusion

of the mineral interests in the sale; secretly recording three meetings with Mr. Wolfe; and

assisting Mr. Wolfe in the sale despite their alleged knowledge that he lacked the requisite

mental capacity necessary to execute the sales contract.



               Analyzing the facts adduced in discovery below regarding the inclusion of the

mineral rights, this Court finds the record devoid of any evidence to contradict Mrs. Miller’s

testimony that Mr. Wolfe ultimately sought to sell both the surface and mineral rights for

$90,000. Mr. Wolfe first indicated his intention to sell the mineral interests by initialing the

notation on the original contract, indicating he was “[s]elling all rights including oil and gas.”

Further, despite Mr. Wolfe’s brief change of mind regarding his desire to sell the mineral

interests, the petitioner presented nothing to contradict evidence of Mr. Wolfe’s subsequent

decision reaffirming his intention to include the mineral interests, evidenced by the August

26, 2013, addendum to the sales contract. The undisputed evidence demonstrates that Mr.


                                               10

Wolfe contracted to sell the property, including his portion of the mineral interests, to the

buyers for $90,000, and he executed a deed conveying such property at the August 28, 2013,

closing. Consequently, we discern no error in the circuit court’s findings with respect to the

petitioner’s claims on this issue.



              The petitioner also contends Mrs. Miller breached her contract with Mr. Wolfe

by surreptitiously recording their meetings. Neither the Listing Contract nor the Notice of

Agency Relationship restricts, limits, or addresses the manner in which the real estate agents

are permitted to record information concerning transactions. Furthermore, recording the

meetings did not violate any law in West Virginia, and the petitioner presented no evidence

contradicting the testimony of the respondents’ expert, indicating that their conduct

comported with their professional obligations. Therefore, this Court finds no error in the

circuit court’s conclusion that the acts of recording meetings do not substantiate the

petitioner’s breach of contract claim.



              The petitioner also argues the respondents breached the contract with Mr.

Wolfe by assisting him in executing a binding sales contract while allegedly knowing he

lacked adequate mental capacity. The concept of mental competence to convey land has

been repeatedly addressed by this Court. In syllabus point one of Cyrus v. Tharp, 147 W.Va.

110, 126 S.E.2d 31 (1962), for example, this Court explained “‘[a] person is mentally


                                             11

competent to make a conveyance of land if he knows the nature, character and effect of his

deed.’ Carrigan v. Davis, 84 W.Va. 473 [100 S.E. 91 (1919).]” In syllabus point two, this

Court further elucidated:

                     “The presumption of law is in favor of the sanity and
              mental capacity of a grantor, and the person attacking his
              conveyance on the ground of his incapacity, or the exertion of
              undue influence over him in inducing him to make the deed,
              bears the burden of proof. One who charges fraud and undue
              influence must prove it.” Carrigan v. Davis, 84 W.Va. 473 [100
              S.E. 91 (1919)].

In syllabus point three of Cyrus, this Court addressed concerns very similar to those raised

in the current matter and held:

                     “A grantor in a deed may be extremely old, his
              understanding, memory, and mind [e]nfeebled and weakened by
              age, and his action occasionally strange and eccentric, and he
              may not be able to transact many affairs of life, yet if age has not
              rendered him imbecile, so that he does not know the nature and
              effect of the deed, this does not invalidate the deed. If he be
              capable, at the time, to know the nature, character and effect of
              the particular act, that is sufficient to sustain it.” Point 5
              Syllabus, Buckey v. Buckey, 38 W.Va. 168 [18 S.E. 383 (1893)].



              To overcome the presumption that the August 28, 2013, deed transfer was

valid, the petitioner must present clear and convincing evidence to the contrary. See Syl.,

William James Sons Co. v. Hutchinson, 79 W.Va. 389, 90 S.E. 1047 (1916) (“The

presumption of law is that the acceptance of a deed, made in pursuance of an antecedent

written agreement for the sale of land, is satisfaction of all previous covenants, and, although


                                              12

such acceptance may in some circumstances, be but partial execution of the contract, to rebut

the legal presumption, the intention to the contrary must be clear and convincing.”). In

syllabus point three of McElwain v. Wells, 174 W. Va. 61, 322 S.E.2d 482 (1984), this Court

explained: “A party challenging the validity of a deed because of inadequate consideration

and grantor incompetence has the burden of proving those facts. Absent convincing proof,

a trial court should find the challenged deed valid.” Id. at 62, 322 S.E.2d at 483.



              The petitioner did not present testimony from any witness to the closing

transaction on August 28, 2013, suggesting that Mr. Wolfe failed to understand his decision

to convey both surface and mineral interests. Ms. Goff, the closing attorney, unequivocally

denied that Mr. Wolfe was confused or lacked the ability to understand the discussions

during the closing. Likewise, Mr. Reed, the attorney who prepared the deed, testified that

Mr. Wolfe fully appreciated the nature of the property transfer. As this Court stated in Cyrus,

“[t]he evidence of witnesses present at the execution of the deed is entitled to peculiar

weight.” 147 W.Va. at 122, 126 S.E.2d at 39 (citations omitted).7 Thus, the circuit court

properly relied upon the testimony of witnesses to the transaction in finding insufficient




       7
        “The testimony of a notary public or other official who took the acknowledgment is
entitled to peculiar weight in determining the mental capacity of the grantor.” Cyrus, 147
W.Va. at 122, 126 S.E.2d at 39 (citing Syl. Pt. 1, Burkle v. Abraham, 112 W.Va. 257, 164
S.E. 150 [1932]).

                                              13

evidence that the grantor was mentally incompetent at the time of the closing or that Mrs.

Miller had any reason to believe that Mr. Wolfe was incompetent.



                 The circuit court was also correct in placing emphasis upon the testimony of

Dr. Lewis, who had treated Mr. Wolfe for superficial wounds on August 30, 2013, two days

after the closing. This Court has observed “[t]he evidence of physicians, especially those

who attended the grantor and were with him considerably during the time it was charged he

was of unsound mind, is entitled to great weight.” Id. 122, 126 S.E.2d at 39 (citations

omitted). Even the petitioner’s retained expert, Dr. Bobby Miller, stated the Mr. Wolfe

“believed he was signing away his real estate including surface and mineral rights” on the

date of the closing.



                 The three affidavits submitted by the petitioner regarding Mr. Wolfe’s

competence fail to overcome the presumption of validity of the transaction. As this Court

has explained, “[t]he point of time to be considered in determining the grantor’s mental

capacity is the time of the execution and delivery of the deed.” Id. at 122, 126 S.E.2d at 39.

The affidavits merely contain generalized observations of Mr. Wolfe’s behavior, such as

forgetfulness, balance and hygiene issues, or repetition of stories.8 These observations do

       8
           As the circuit court observed, the affidavits

       do not provide any details regarding observations by these witnesses of Mr.
                                                                                 (continued...)

                                                14

not have a direct bearing on his mental capacity on the crucial date in question, and the

affiants were not present at the closing. Moreover, the petitioner conceded in her testimony

that she had no contact with Mr. Wolfe after leaving for Florida on August 21, 2013, and that

Mr. Wolfe could indeed have changed his mind on the issue of inclusion of both surface and

mineral interests between her conversations with him and the date of the closing. Even in

a light most favorable to the petitioner, the evidence does not establish a genuine issue of

material fact necessitating jury determination on the petitioner’s breach of contract claim.

Summary judgment on that issue was appropriate.



                              B. Alleged Breach of Fiduciary Duty

                  The petitioner also contends the respondents breached their fiduciary duty to

Mr. Wolfe by attempting to further their own interests in receiving a sales commission rather

than protecting Mr. Wolfe’s financial interests. The petitioner argues genuine issues of

material fact exist regarding this alleged breach of fiduciary duty, based upon (1) the decision


       8
           (...continued)
       Wolfe on August 28, 2013, the date of closing. . . . Instead, the generalized
       observations regarding Mr. Wolfe’s awareness of the location of his vehicle,
       his repetition of questions and stories, and descriptions of forgetfulness have
       no bearing on the critical question of whether Mr. Wolfe appreciated the
       interests he owned and conveyed in this deed transaction. Conversely, Mr.
       Wolfe’s conduct immediately following the real estate closing - depositing the
       substantial check received in his bank account on the same day of the
       transaction and securing the documents related to the transaction with his other
       important documents - demonstrates his own awareness of the important
       nature of the transaction.

                                                15

to list the property for $90,000; (2) the role of the respondents as dual-agents for Mr. Wolfe

and the buyers; and (3) the act of recording the three meetings without disclosing this fact

to Mr. Wolfe.



                In furtherance of her claims, the petitioner submitted an appraisal indicating

the value of the surface interests alone was over $100,000. However, the undisputed

evidence indicated the respondents sold Mr. Wolfe’s property in a manner consistent with

his clearly articulated desire to achieve a prompt sale. The respondents’ expert testified,

without contradiction, that listing the property in a manner consistent with Mr. Wolfe’s desire

did not violate any professional standard governing the respondents.9 Similarly, the

petitioner presented no evidence that dual-agency in a real estate transaction violates a

fiduciary duty to either the buyer or the seller. The respondents’ expert testified that the

dual-agency was consistent with the respondents’ professional obligations. Additionally, as

explained above, Mrs. Miller’s decision to record the meetings did not violate any legal or

professional standard in the real estate industry. Accordingly, the circuit court’s decision to

grant summary judgment to the respondents on the breach of fiduciary duty claim was

correct.




       9
         As the circuit court noted in granting summary judgment, had the respondents truly
desired to act in furtherance of their own financial interests, they would have attempted to
sell the property for a higher price, resulting in a higher commission.

                                              16

                               C. Alleged Constructive Fraud

              The petitioner also asserted a claim of constructive fraud, alleging the

respondents intentionally, knowingly, and recklessly engaged in a course of fraudulent

conduct, through both omission and misrepresentation of facts, to secure Mr. Wolfe’s

signature on the deed conveying the property to the buyers. In Kadogan v. Booker, 135

W.Va. 438, 66 S.E.2d 297 (1951), this Court addressed the concept of undue influence and

explained as follows:

              To set aside a deed on the ground of undue influence it must be
              shown that such influence destroyed the free agency of the
              grantor and substituted the will of another person for that of the
              grantor, and unless these facts appear, motive and opportunity
              to exert undue influence and failing mental powers of the
              grantor are insufficient to set aside or cancel the deed.

Id. at 458, 66 S.E.2d at 308 (citations omitted). It is also instructive to consult this Court’s

definition of constructive fraud, as follows:

              “Constructive fraud” is a breach of legal or equitable duty,
              which, irrespective of moral guilt of fraud feasor, the law
              declares fraudulent, because of its tendency to deceive others, to
              violate public or private confidence, or to injure public interests.
              Neither actual dishonesty of purpose nor intent to deceive is an
              essential element of constructive fraud. An intent to deceive is
              an essential element of actual fraud. The presence or absence of
              such intent distinguishes actual fraud from constructive fraud

Miller v. Huntington & Ohio Bridge Co., 123 W.Va. 320, 334, 15 S.E.2d 687, 695 (1941).




                                                17

              In the present case, it is undisputed that the petitioner was not present for the

August 28, 2013, closing. Further, she acknowledged she had not witnessed an omission or

misrepresentation by the respondents. She failed to present evidence of constructive fraud

or undue influence on the part of any person present at the closing; rather, she argued that

Mrs. Miller’s conduct in recording the meetings constituted evidence of constructive fraud.

Yet, the petitioner was unable to identify any connection between Mrs. Miller’s recordings

and Mr. Wolfe’s exercise of free will. In other words, no evidence exists indicating that the

act of recording the meetings influenced Mr. Wolfe to sell the property against his will.

Thus, the circuit court correctly concluded the petitioner failed to establish that Mr. Wolfe

was the victim of constructive fraud, and summary judgment on this issue was appropriate.



                           D. Additional Assignments of Error

              Having concluded there are no genuine issues of material fact with regard to

the petitioner’s three claims against the respondents and that summary judgment in the

respondents’ favor was appropriate, we briefly address the petitioner’s other assignments of

error. The petitioner contends that Circuit Court Judge Andrew N. Frye, Jr., sitting by

assignment, erred by failing to recuse himself from this case. The petitioner argues Judge

Frye indicated bias toward the respondents’ case by making statements in a telephonic

hearing on a discovery-related motion on June 4, 2015. Judge Frye remarked: “I just said

that I think I’m going to have the competency issue decided if – as I read what you sent to


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me so far - - if this man’s competent, the rest of it’s over. . . .” The petitioner argues that

such comment “is an unsolicited and curiously mistimed statement which indicates an

opinion on one of the primary fact issues of the case, which clearly favors the [respondents].”

The petitioner further maintains that the rapidity with which Judge Frye granted the

respondents’ motion for summary judgment and the “geographic proximity between Judge

Frye’s home court” and the Circuit Court of Preston County, created “an appearance of

impropriety and partiality” toward Mrs. Miller, the wife of the sitting Circuit Court Judge in

Preston County.



              When the petitioner sought disqualification of Judge Frye below, Judge Frye

advised this Court of the petitioner’s motion and informed the Court that he did not believe

his disqualification was warranted. Then Chief Justice Margaret Workman reviewed the

matter, and an Administrative Order was entered on July 8, 2015, indicating this Court had

“determined that the evidence set out in support of the disqualification motion is insufficient

to warrant such disqualification.” The petitioner’s arguments on appeal do not cause this

Court to reconsider its previous order; thus, that assignment of error is without merit.



              Similarly, this Court finds the petitioner’s remaining assignments of error

unavailing. Many of the petitioner’s arguments are speculative, unsupported by the record,

or simply immaterial to the issue of summary judgment. She contends, for instance, that the


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circuit court erroneously refused to grant her untimely motion to amend her complaint a

second time to plead constructive fraud with additional particularity. Yet, the circuit court

did not base its summary judgment on the sufficiency of the petitioner’s pleadings; rather,

the summary judgement was premised upon the merits of the petitioner’s case and the

absence of any evidence of wrongdoing by the respondents. Moreover, “[a] motion for leave

to amend a complaint is addressed to the sound discretion of the trial court.” Mauck v. City

of Martinsburg, 178 W.Va. 93, 96, 357 S.E.2d 775, 778 (1987) (citations omitted).



              Likewise, this Court finds no merit in the petitioner’s claim that the circuit

court limited her “available remedies” by placing significance on the petitioner’s voluntarily

dismissal of her claim that the deed transferring the property was invalid. The circuit court’s

reference to the dismissal of that other claim did not serve to “limit” the petitioner’s claims

in any manner; it simply referenced the fact that the petitioner had no evidence to establish

her claims against the respondents. As the circuit court found, the petitioner’s “choice of

remedies does not relieve her of the obligation to prove each necessary element of her claims

or to demonstrate a disputed issue of material fact. . . .” Further, the circuit court specified

that the petitioner “may elect to seek any remedy to which she believes she is entitled by law.

However, she has a concomitant obligation to establish the essential elements of the claims




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which correspond to the remedy sought.” This Court agrees with the circuit court’s

assessment of that issue.10



                                      IV. Conclusion

              Based upon the foregoing, this Court affirms the September 30, 2015, order of

the Circuit Court of Preston County granting summary judgment to the Respondents.



                                                                                  Affirmed.




       10
         The petitioner also argues that the circuit court’s discovery rulings concerning the
timing of the production of audio recordings were erroneous. Those issues were resolved
significantly prior to the circuit court’s consideration of the summary judgment issue; they
are not relevant to that issue or this Court’s opinion today. The petitioner does not contend
the discovery rulings impacted her production of evidence in support of her claims. We find
no merit to the assignment of error regarding the timing of production of those audio
recordings.

       Likewise, we find no merit in the petitioner’s contention that the circuit court
erroneously granted the respondents’ motion in limine to exclude from trial certain evidence
regarding Mrs. Miller’s role as caretaker for her aging mother. Summary judgment having
properly been granted to the respondents, there will not be a trial from which any evidence
will be excluded. This issue is not a matter to be considered on appeal.

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