                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



Rosanna S. Crum,
Plaintiff Below, Petitioner                                                      FILED
                                                                             October 28, 2016
vs) No. 15-1214 (Mingo County 15-C-68)                                         RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Chafin Funeral Home, Inc.,
Defendant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Rosanna S. Crum, by counsel Richard A. Robb, appeals the November 9, 2015,
order of the Circuit Court of Mingo County dismissing her claims against Respondent Chafin
Funeral Home, Inc.. Respondent Chafin Funeral Home, Inc., by counsel Michelle Roman Fox
and Geoffry A. Haddad, filed its response, to which petitioner submitted a reply.

       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. For these reasons, a memorandum
decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       On April 3, 2013, Walter Eugene Crum, Sheriff of Mingo County, was killed in the line
of duty while in his vehicle. On April 4, 2013, respondents John Hubbard, Greg “Hootie” Smith,
David Baisden, and Michael Thornsbury allegedly went to petitioner’s home and assured her that
“they would take care of all funeral and burial costs.” Sheriff Crum’s services were performed by
Respondent Chafin Funeral Home,1 but no payments were made to the funeral home for those
costs by Hubbard, Smith, Baisden, or Thornsbury.2 When petitioner asked respondent about a

       1
        The Circuit Court of Mingo County’s grant of the motions to dismiss filed by Thomas
McComas, Michael Thornsbury, John Hubbard, Greg “Hootie” Smith, and David Baisden in the
same underlying action are the subject of a joint memorandum decision in Case Numbers 15­
1131 and 15-1219 before this Court.
       2
         Petitioner alleges that the funeral home and Sheriff McComas, the Cabell County
Sheriff who was the head of the state sheriff’s association at the time of Sheriff Crum’s death,
planned an elaborate and costly funeral without petitioner’s permission. The Sheriff’s
Association arranged for a number of services related to the funeral at no cost to petitioner,
including providing a rotating honor guard at all times that the remains were open to public view,
providing a 21-gun salute at the service, providing a helicopter to fly over the service, and
(continued . . .)
                                                1

headstone for Sheriff Crum, she was informed that she had to pay the outstanding funeral bill
before she could purchase a headstone. According to petitioner, she approached two of the
county commissioners regarding payment, one of whom told her that they would not pay the bill
while the other reportedly avoided her. Petitioner paid the funeral costs.3

        Petitioner filed her complaint on or about April 2, 2015, against Respondents Chafin
Funeral Home, Inc., Hubbard, Smith, Baisden, Thornsbury, and McComas. Petitioner stated in
her complaint that Respondents Hubbard, Smith, and Baisden, all members of the Mingo County
Commission, in addition to former Judge Thornsbury, came to petitioner’s home and assured her
they would take care of all funeral and burial costs related to Sheriff Crum’s death. According to
the complaint, Sheriff McComas and “Tib” Cook of Chafin Funeral Home planned the elaborate
funeral, with costs exceeding $30,000. As a result of the individuals’ alleged refusal to pay for
the funeral services, petitioner asserted numerous claims against them, including breach of
contract, negligence, and detrimental reliance. She also alleged that respondent’s conduct
amounted to negligence, breach of an implied contract, and tortious breach of an implied
contract. As a result, she requested damages of “at least” $30,000 and asked that “any award be
joint and several . . . as these [respondents] were acting in concert explicitly or implicitly in these
matters. She also ask[ed] for an award of damages for the emotional distress [respondents’]
conduct has caused her.” In addition, petitioner requested punitive damages “as she suspects
because many of these same [respondents] have since his death made her late husband a
scapegoat[.]”

       On April 30, 2015, Sheriff McComas filed a notice of special appearance and a motion to
dismiss. Michael Thornsbury filed his motion to dismiss on August 13, 2015; Respondents
Hubbard, Smith, Baisden, and Chafin Funeral Home filed their respective motions to dismiss on
or about October 9, 2015. Thereafter, the circuit court dismissed each defendant below.

        In its October 13, 2015, order dismissing Sheriff McComas, the circuit court stated that
the claims against Sheriff McComas were not clearly discernable within the four corners of the
complaint but appeared to include a claim for breach of oral contract to pay for funeral services,
breach of an implied contract to pay for funeral services, interference in the oral contract
between petitioner and the four public officials to pay for the funeral services, and negligence.
The circuit court concluded there was no equitable principle that justifies imposing any burden
for the funeral costs on Sheriff McComas, there was no writing to support petitioner’s claims of


providing deputies from around the state to patrol Mingo County during the grieving period so
that Mingo County deputies could participate in the services.
       3
          In its October 13, 2015, order granting Sheriff McComas’s motion to dismiss, the
circuit court stated that the Public Safety Officers’ Benefit Act provided for a line of duty death
benefit of $328,612.73 for law enforcement at the time of Sheriff Crum’s death. Further, the
West Virginia Fire, EMS, and Law Enforcement Survivor Benefit Acts provided a benefit of
$50,000. The West Virginia Workers’ Compensation system provided for the payment of funeral
services for any employee killed in the line of duty. However, it noted that “[w]hether those
funds and payments were ever paid to [petitioner was] not a matter of record.”


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an oral or implied contract to pay for the funeral, and the damages sought are the funeral
expenses that petitioner was legally responsible to pay regardless of any alleged negligent act or
omission on the part of Sheriff McComas. On October 16, 2015, the circuit court dismissed
Respondent Thornsbury, finding that petitioner did not ask Thornsbury about the bill she
received from the funeral home and she had paid the bill. It went on to find that if the allegations
in the complaint are taken in the light most favorable to petitioner, she still has not stated a claim
upon which relief can be granted.

        On November 9, 2015, the circuit court entered its order dismissing Chafin Funeral
Home. Therein, the circuit court concluded that Steven Cook of the funeral home signed the
“Statement of Funeral Goods and Services Selected” (“Statement”) as did petitioner. It found
that such Statement was a written contract between petitioner and respondent. It also concluded
that there was consideration paid for a valid written contract between the parties and that all
services and goods for the burial and gravesite were paid by petitioner. Therefore, it found that
petitioner failed to state a claim against Chafin Funeral Home upon which relief could be
granted.

        On December 7, 2015, the circuit court entered its order dismissing the individual county
commissioners – Hubbard, Smith, and Baisden. In its order, the circuit court incorporated by
reference the previously entered orders dismissing the co-defendants below. It found that the
statute of frauds applied, citing the fact that petitioner did not allege that Hubbard, Smith, and
Baisden ever reduced the promise to cover funeral costs to writing. It went on to state that “a
promise to make a gift in the future or to assist in a time of need is not enforceable and does not
constitute a contract.” Further, it found that “the promise to make a gift . . . in this matter is not a
valid contract as it lacked consideration and mutual assent.” The circuit court also found there
was no unjust enrichment for Hubbard, Smith, and Baisden, as it previously found with regard to
Thornsbury. Petitioner appeals from these dismissal orders.

         “Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de
novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461
S.E.2d 516 (1995). “The circuit court, viewing all the facts in a light most favorable to the
nonmoving party, may grant the motion only if ‘it appears beyond doubt that the plaintiff can
prove no set of facts in support of his[, her, or its] claim which would entitle him[, her, or it] to
relief.’ Syl. pt. 3, in part, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207
(1977), citing Conley, 355 U.S. at 45–46, 78 S.Ct. at 102, 2 L.Ed.2d at 84.” State ex rel. McGraw
v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. at 776, 461 S.E.2d at 522.

        First, petitioner contends that no contract existed with the funeral home. In support of this
statement, she asserts that the funeral home was fully aware that third parties agreed to pay the
funeral costs for Sheriff Crum’s services and proceeded to stage an elaborate service far beyond
what petitioner would have arranged or could afford. Petitioner claims that when the third parties
reneged on paying those costs, the funeral home forced her to pay by refusing to provide the
tombstone for Sheriff Crum’s grave until payment was made. In her argument before this Court,
petitioner admits that respondent “may be” entitled to some compensation for its services but
disputes the amount respondent charged because she asserts that she did not agree to it.



                                                   3

        “‘“The fundamentals of a legal contract are competent parties, legal subject matter,
valuable consideration and mutual assent. There can be no contract if there is one of these
essential elements upon which the minds of the parties are not in agreement.” Syllabus Point 5,
Virginian Export Coal Co. v. Rowland Land Co., 100 W.Va. 559, 131 S.E. 253 (1926).’ Syllabus
point 3, Dan Ryan Builders, Inc. v. Nelson, 230 W.Va. 281, 737 S.E.2d 550 (2012).” Syl. Pt. 4,
State ex rel. AMFM, LLC v. King, 230 W.Va. 471, 740 S.E.2d 66 (2013). While petitioner argues
that she did not agree to the costs, included in the record before this Court is the Statement
petitioner does not dispute signing. Included in that Statement are itemized costs, including a
nearly $13,000 casket and $3,175 for total services. Other items contained on the Statement are
charges for copies of the death certificate, newspaper publication of the obituary, an outer burial
container, and a register book package. Immediately above petitioner’s signature on the
Statement is the following language: “I (we) have read (or been read) the above, accept and
approve same, and jointly and severally promise to make full payment. Receipt of a copy of this
Statement is acknowledged.” According to respondent, petitioner paid for the services and items
set forth in that Statement and for the headstone she selected. Petitioner does not complain about
the services rendered by respondent or claim that it failed to perform its duties under the
Statement, which serves as a contract between these parties. Further, she does not dispute the
necessity or amount of charges for the preparation of the body, embalming, and use of the
hearse. Considering all of the allegations in the complaint in the light most favorable to petitioner
insomuch as she does not dispute that she signed the Statement or that respondent provided the
services and items set forth in the Statement, we find that the circuit court did not err in finding
that the Statement constituted a valid contract between these parties.

        Petitioner next asserts that respondent was negligent because it voluntarily assumed a
duty with third parties to arrange a funeral exceeding the cost that petitioner would have
arranged and in which she played no part. She contends that respondent is negligent to the extent
the costs went beyond what she or her family members would have arranged. Thus, she asserts
that the circuit court erred in finding that respondent was not negligent. “An action in negligence
is based in tort law and is brought to recover damages from a party whose acts or omissions
constitute the proximate cause of a claimant’s injury. Sewell v. Gregory, 179 W.Va. 585, 587,
371 S.E.2d 82, 84 (1988).” Strahin v. Cleavenger, 216 W.Va. 175, 183, 603 S.E.2d 197, 205
(2004). As this Court has stated, “before one can recover under a tort theory of liability, he or she
must prove each of the four elements of a tort: duty, breach, causation, and damages.” Carter v.
Monsanto Co., 212 W.Va. 732, 737, 575 S.E.2d 342, 347 (2002). Regardless of any alleged
assurances made in the presence of “Tib” Cook of the respondent funeral home, petitioner was
the one who undisputedly signed the Statement agreeing to pay for all costs. Petitioner does not
state in her complaint or before this Court how respondent should have been aware of her ability
to pay for funeral services. She also fails to set forth an affirmative duty on the part of
respondent to ascertain her ability to pay for services when she signed the Statement agreeing to
pay for such services. In addition, she admits that she paid for all of the services contained in the
Statement. Therefore, we find that the circuit court did not err in finding that petitioner failed to
set forth actionable claims for negligence against respondent.

        Petitioner’s final argument is that “[a]ssuming the promises to pay by the th[e] third
parties amounted to a contract between them and the widow, the funeral home’s arrangement of
the funeral services amounted to a tort[i]ous breach of contract, and the lower court erred in

                                                 4

finding it had not.” This Court addressed petitioner’s arguments regarding a contractual
relationship between herself and Sheriff McComas, Michael Thornsbury, John Hubbard, Greg
“Hootie” Smith, and David Baisden in the memorandum decision for Case Numbers 15-1131
and 15-1219.4 In that memorandum decision, this Court found no error in the circuit court’s
finding that no contract existed between petitioner and those individual defendants. As this Court
has previously stated, “[t]o establish prima facie proof of tortious interference, a plaintiff must
show: (1) existence of a contractual or business relationship or expectancy; (2) an intentional act
of interference by a party outside that relationship or expectancy; (3) proof that the interference
caused the harm sustained; and (4) damages.” Syl. Pt. 2, Torbett v. Wheeling Dollar Sav. & Trust
Co., 173 W.Va. 210, 314 S.E.2d 166 (1983). Because petitioner cannot show the existence of
such contract, there can be no tortious interference with a contract under the facts and
circumstances of this case. Therefore, we find that the circuit court did not err in granting
respondent’s motion to dismiss on this ground.

        For these reasons, we find no error in the circuit court’s finding that respondent was
entitled to the dismissal of petitioner’s claims against it.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: October 28, 2016

CONCURRED IN BY:

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


DISSENTING:

Justice Robin Jean Davis




       4
         Crum v. Thornsbury and McComas, Case No. 15-1131, and Crum v. Hubbard, 15-1219,
are addressed in a single memorandum decision published contemporaneously with the instant
memorandum decision.


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