                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

Robert Kelley, Sharon George, Jim Kelley,
Delores Stutler, Wilma Jones, George Kelley,                                        FILED
and Sharon Ann Kelley, Plaintiffs Below,                                       November 23, 2015
Petitioners                                                                    RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs) No. 15-0188 (Taylor County 14-C-30)

Norma Kelley, as an individual, and as
Executrix of the Estate of Paul Kelley,
Defendant Below, Respondent


                              MEMORANDUM DECISION
       Petitioners Robert Kelley, Sharon George, Jim Kelley, Delores Stutler, Wilma Jones,
George Kelley, and Sharon Ann Kelley, by counsel Peter D. Dinardi, appeal the Circuit Court of
Taylor County’s February 4, 2015, order granting respondent’s motion for summary judgment.
Respondent Norma Kelley, by counsel Geraldine S. Roberts and Richard R. Marsh, filed a
response and a supplemental appendix. On appeal, petitioners allege that the circuit court erred in
finding there were no material facts in dispute and in granting the summary judgment motion
without allowing for discovery on newly pled causes of action.

        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.

       Paul Kelley (“Mr. Kelley”), the deceased, was the father of petitioners herein, Robert
Kelley, Sharon George, Jim Kelley, Delores Stutler, Wilma Jones, and George Kelley. Petitioner
Sharon Ann Kelley is the widow of Paul Kelley’s other child, Donald Kelley. Mr. Kelley was
previously married to the children’s mother, Edith Eckard Kelley, who passed away on
December 14, 1998. Sometime in 1999 or 2000, Mr. Kelley began a relationship with Norma
Kelley, then Norma Swiger, respondent herein.

        In December of 2007, Mr. Kelley was hospitalized at the Louis A. Johnson Medical
Center (“VA Hospital”) in Clarksburg, West Virginia, for heart issues. He was released that
same month. In February of 2008, Mr. Kelley was again admitted to the VA Hospital and then
transferred to Ruby Memorial Hospital in Morgantown, West Virginia. He was released that
same month. Prior to and during the hospitalizations, Mr. Kelley and respondent discussed
marriage. Following his release in February of 2008, the two were married. After the marriage,

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Mr. Kelley requested that his neighbor James C. West, who had previously performed various
legal services for Mr. Kelley, come to his business to discuss preparation of a last will and
testament. During the meeting, Mr. Kelley told Mr. West what he wanted to do with his property
and requested that Mr. West prepare a will to that effect. Mr. Kelley met with Mr. West on
March 26, 2008, at Mr. West’s office to review and execute his last will and testament. Pursuant
to this will, respondent was Mr. Kelley’s sole heir.

        In March of 2012, Mr. Kelley entered into a sale-purchase agreement with petitioner
Robert Kelly and two other individuals. That agreement obligated Mr. Kelley to sell his welding
shop and associated real property to them. On March 16, 2012, the parties closed the deal and
Mr. Kelley executed a deed to the buyers. Then, on April 5, 2012, the buyers executed a
correction deed indicating that Mr. Kelley intended to except and reserve the minerals under the
welding shop property and conveyed any such mineral interests back to Mr. Kelley. The record
also sets forth that Mr. Kelley executed forty different legal documents that were placed on
record in the Office of the Clerk of the County Commission of Harrison County since 1998,
including several conveyances to his children and their families involving a number of deeds.

        In May of 2012, Mr. Kelley passed away and, thereafter, respondent qualified as his
executrix and began administering his estate. In July of 2012, petitioners filed a complaint in the
Circuit Court of Harrison County against respondent and requested that the last will and
testament and a pair of deeds executed by Mr. Kelley be declared invalid on the basis of Mr.
Kelley’s alleged lack of competency to execute such documents or that they were procured as a
result of undue influence. The parties completed extensive discovery and were ready to try the
matter when the circuit court determined that it did not have subject matter jurisdiction because
the last will and testament was submitted to probate in Taylor County, West Virginia. By order
dated April 16, 2014, the circuit court dismissed the action.

        That same month, petitioners filed the instant lawsuit in the Circuit Court of Taylor
County. Petitioners alleged the same grounds for relief and also alleged tortious interference and
fraud. Respondent filed her motion for summary judgment in September of 2014, and petitioners
filed their response the following month. After respondent filed a reply, the circuit court held a
hearing on the motion in November of 2014, after which it entered an order granting the same. It
is from that order that petitioners appeal.

       We have previously held 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).” Fleet v. Webber
Springs Owners Ass’n, Inc., 235 W.Va. 184, - -, 772 S.E.2d 369, 373 (2015). Further,

       [i]n conducting our de novo review, we are mindful that “[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. Federal Ins. Co. of
       New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

Id. Upon our review, the Court finds no error in the circuit court granting summary judgment to
respondent because petitioners failed to establish a genuine issue of material fact. And while it

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may be true that no discovery was conducted in the instant matter after petitioners alleged two
new causes of action for tortious interference and fraud, the record is clear that sufficient
discovery was conducted in the prior Harrison County proceeding for the circuit court to rule on
the new causes of action.

       On appeal, petitioners allege that several of Mr. Kelley’s medical records showed that he
lacked capacity to execute his will and that these medical records create a genuine issue of
material fact such that summary judgment was improper. The Court, however, does not agree.
With the exception of two specific records, all the medical records petitioners rely on are from
the period beginning with February of 2009 and ending as late as April of 2012. Simply put,
these medical records are irrelevant to Mr. Kelley’s state of mind at the time of the will’s
execution in March of 2008. Further, the circuit court discusses, at great length, the medical
records from that relevant time period in its order granting respondent summary judgment.

        Further, while petitioners argue that no discovery was completed on the issues of tortious
interference and fraud, they also admit that “substantial discovery was done when the case was
before the [Circuit Court of] Harrison County[.]” In regard to their claim of fraud, the circuit
court specifically found that petitioners failed to “set forth any factual allegations that would
support a claim for fraud under the particularity requirements for fraud claims per West Virginia
Rule of Civil Procedure 9(b).” Further, as to their claim of tortious interference, the circuit court
found that “[t]o the extent that [petitioners] have asserted that Paul Kelley disinherited them, as a
matter of law, they were not entitled to any inheritance.” The circuit court then went on to
provide a full analysis of why petitioners’ claim on this issue must fail, even after substantial
discovery into the issues surrounding Mr. Kelley’s will and its execution.

       Additionally, we have previously held that

       [w]here a party is unable to resist a motion for summary judgment because of an
       inadequate opportunity to conduct discovery, that party should file an affidavit
       pursuant to W. Va. R. Civ. P. 56(f) and obtain a ruling thereon by the trial court.
       Such affidavit and ruling thereon, or other evidence that the question of a
       premature summary judgment motion was presented to and decided by the trial
       court, must be included in the appellate record to preserve the error for review by
       this Court.

Crain v. Lightner, 178 W.Va. 765, 364 S.E.2d 778 (1987) (emphasis added). The record on
appeal is devoid of any such affidavit. Further, in their brief, petitioners fail to even allege what
evidence, if any, could support these causes of action.

        Upon our review and consideration of the circuit court’s order, the parties’ arguments,
and the record submitted on appeal, we find no error by the circuit court. Our review of the
record supports the circuit court’s decision to grant respondent’s motion for summary judgment
in spite of petitioners’ alleged errors, which were also argued below. Indeed, the circuit court’s
order includes well-reasoned findings and conclusions as to the assignments of error raised on
appeal. Given our conclusion that the circuit court’s order and the record before us reflect no
clear error, we hereby adopt and incorporate the circuit court’s findings and conclusions as they

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relate to petitioner’s assignments of error raised herein and direct the Clerk to attach a copy of
the circuit court’s February 4, 2015, “Order Granting Summary Judgment In Favor Of
Defendant” to this memorandum decision.

       For the foregoing reasons, the circuit court’s February 4, 2015, order is hereby affirmed.


                                                                                        Affirmed.

ISSUED: November 23, 2015

CONCURRED IN BY:

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




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