                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Jannetta Cook, Administratrix of the
                                                                                       FILED
Estate of Jackie Epperson, deceased,                                               January 11, 2016
                                                                                  RORY L. PERRY II, CLERK
Plaintiff Below, Petitioner                                                     SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
vs.) No. 15-0187 (Greenbrier County 11-C-133(R))

Charmco Riverside, Inc.;

Sherri Yearego Gilkeson;

and Jime Gilkeson,

Defendants Below, Respondents



                               MEMORANDUM DECISION
         Petitioner Jannetta Cook, as Administratrix of the Estate of Jackie Epperson, by counsel
Douglas H. Arbuckle, appeals the Circuit Court of Greenbrier County’s January 22, 2015, order
granting respondents’ motion for summary judgment. Respondents Charmco Riverside, Inc.,
Sherri Yearego Gilkeson, and Jime Gilkeson, by counsel Richard E. Ford Jr. and R. Grady Ford,
filed a summary response in support of the circuit court’s order. On appeal, petitioner argues that
the circuit court erred in (1) finding that jurisdiction was improper in Greenbrier County, and (2)
granting respondents’ motion for summary judgment.1

        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.

        Following his death, the Estate of Jackie Epperson (“the estate”) was offered for probate
in Nicholas County, West Virginia. In June of 2011, petitioner, on behalf of the estate, filed a
complaint in the Circuit Court of Greenbrier County against Respondents. Petitioner claimed that
the estate owned a one-half interest in a parcel of real property located in Greenbrier County.
Petitioner claimed that respondents owned the remaining one-half interest. Thereafter,
respondents filed a motion to dismiss, an answer, and a statement of affirmative defenses.

     In April of 2014, following a period of discovery, respondents filed a motion for
summary judgment. In that motion, respondents argued that the undisputed facts showed that

       1
         In her brief to this Court, petitioner raises separate assignments of error as to the circuit
court’s ruling on summary judgment and its finding that there was no genuine issue of material
fact to be tried. As these issues are substantially related, we review them together.
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petitioner failed to establish a legal interest in the real property at issue. Respondents claimed
that petitioner had no written contract or lease to support Mr. Epperson’s ownership claim, as
required by West Virginia Code § 36-1-3 (often referred to as the “Statute of Frauds”),2 and that
it was undisputed that Mr. Epperson’s name did not appear on the deed to that real property.

        In June of 2014, petitioner filed a response to respondents’ summary judgment motion. In
that response, petitioner argued that two of the respondents testified under oath in a family court
hearing that Mr. Epperson owned one-half interest in the real property. Petitioner also attached
an affidavit by someone who claimed to have knowledge that Mr. Epperson owned a portion of
the real property at issue. Based on that evidence, petitioner asked the circuit court to deny the
summary judgment motion and let the matter be heard by a jury.

        That same day, the circuit court held a hearing on the summary judgment motion. At the
conclusion of that hearing, the circuit court found that petitioner failed to produce a writing
demonstrating Mr. Epperson’s ownership in the real property at issue. Given the undisputed fact
that petitioner had no such writing, the circuit court concluded that petitioner’s claim failed to
satisfy West Virginia Code § 36-1-3. However, the circuit court permitted petitioner to file a
memorandum of law within ten days after the hearing to prove that the estate’s ownership claim
could satisfy the Statute of Frauds’ writing requirement.

        In late June of 2014, petitioner filed a memorandum claiming that equity demanded that
the estate receive one-half interest in the real property based on the testimony of two of the
respondents. Petitioner further argued that a family court order contained findings of fact that
two witnesses testified that the estate owned one-half interest in the real property. Respondents
filed a responsive memorandum several days later. They again argued that the Statute of Frauds
barred petitioner’s claim and that petitioner failed to overcome summary judgment on that
ground based on the undisputed evidence.

        By order entered on January 21, 2015, the circuit court granted respondents’ summary
judgment motion. In that order, the circuit court found that petitioner failed to satisfy the Statute
of Frauds because “there was no writing or memorandum supporting [petitioner’s] claim that the
Estate of Jackie Epperson held an equitable interest in certain real property[.]” The circuit court
further found that the estate was offered for probate in Nicholas County, West Virginia, “and that
the Circuit Court of Greenbrier County is an improper forum to consider matters pertaining to
the Estate of Jackie Epperson, deceased.” This appeal followed.




       2
           West Virginia Code § 36-1-3 provides as follows:

              No contract for the sale of land, or the lease thereof for more than one
       year, shall be enforceable unless the contract or some note or memorandum
       thereof be in writing and signed by the party to be charged thereby, or by his
       agent. But the consideration need not be set forth or expressed in the writing, and
       it may be proved by other evidence.
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       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.

        On appeal, petitioner first assigns error to the circuit court’s alleged finding that
jurisdiction was improper in Greenbrier County. We have explained that “[j]urisdiction deals
with the power of the court, while venue deals with the place in which an action may be tried.”
Hansbarger v. Cook, 177 W.Va. 152, 157, 351 S.E.2d 65, 70 (1986) (internal citations omitted).
In this case, while petitioner claims that the circuit court made a finding that it lacked
jurisdiction, the record on appeal reveals that the circuit court merely commented on the proper
venue for “matters otherwise pertaining to the estate[.]” Specifically, the circuit court noted that
the estate was probated in Nicholas County. Indeed, contrary to petitioner’s argument, the circuit
court properly exercised its jurisdiction and ruled on the merits of this case. Therefore, given the
record before us, we find no merit to petitioner’s first assignment of error.

        Petitioner’s final assignment of error is that the circuit court erred in granting summary
judgment in favor of respondents because “there was a triable issue of fact” that precluded
summary judgment. In addition to our standards for de novo review cited above, Rule 56 of the
West Virginia Rules of Civil Procedure provides that summary judgment is proper when the
record demonstrates “that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” W.Va. R. Civ. P. 56(c), in part. Further,

               [s]ummary 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).

        In this case, petitioner claims that Mr. Epperson’s half-ownership of the real property was
contested, and, as such, a genuine issue of material fact existed. According to petitioner, while
respondents claimed that Mr. Epperson did not own any portion of the subject real property, two
of the respondents testified in a family court proceeding that he owned one-half interest therein.
That issue notwithstanding, the circuit court determined that petitioner failed to present any
writing to prove Mr. Epperson’s ownership interest in the real property, and, therefore, summary
judgment was appropriate. Pursuant to West Virginia’s Statute of Frauds, a contract or lease for
real property must be “in writing and signed by the party to be charged thereby.” W.Va. Code §

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36-1-3. The only evidence petitioner produced to establish the estate’s ownership interest in the
real property was in the form of oral testimony. As it was undisputed that Mr. Epperson had no
written contract, lease, or other such instrument evidencing his ownership interest in the real
property, we find no error in the circuit court’s order that granted summary judgment in favor of
respondents. Contrary to petitioner’s claim, no genuine issue of material fact existed that
precluded summary judgment.

       For the foregoing reasons, we find no error in the circuit court’s January 22, 2015, order,
and we hereby affirm the same.


                                                                                        Affirmed.

ISSUED: January 11, 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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