                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Donald R. Rice,                                                                    FILED
Plaintiff Below, Petitioner
                                                                                January 8, 2018
                                                                                EDYTHE NASH GAISER, CLERK
vs) No. 17-0089 (Wood County 15-C-345)                                          SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA

Beverly Crossley,
Defendant Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Donald R. Rice, by counsel William B. Summers, appeals the Circuit Court of
Wood County’s December 27, 2016, order granting respondent Beverly Crossley’s motion for
summary judgment. Respondent, by counsel C. Blaine Myers, filed a response. On appeal,
petitioner argues that the circuit court erred in granting respondent’s motion for summary
judgment because a genuine issue of material fact existed and because the circuit court erred in
applying controlling law.

        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.

       In the spring of 2014, petitioner and respondent became engaged to be married. In April
of 2014, petitioner purchased engagement and wedding rings from R.D. Buttermore & Sons, Inc.
(“Buttermore”), and gave them to respondent.1

        In August of 2014, respondent informed petitioner that she no longer wished to follow
through with the marriage. Around this time, respondent removed the rings petitioner gave her
and offered to return them to him. Petitioner refused to accept the return of the rings and instead
told respondent to keep them in the hope that she might reconsider. However, according to the
record, respondent never indicated that she would reconsider her decision to end the engagement.
Several months after petitioner’s refusal to accept the rings, respondent contacted Buttermore for
the purpose of selling them on consignment in an attempt to obtain some value for petitioner.
Eventually, respondent received $5,300 for the rings, a total less than the original purchase price.

       1
         Buttermore was included as a defendant in the proceedings below. However, petitioner
raises no assignment of error concerning this defendant or its dismissal from the proceedings
below in his brief on appeal. Accordingly, the circuit court’s rulings in regard to Buttermore are
not at issue in this appeal.
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        Sometime in the spring of 2015, respondent gave the money from the rings’ sale to
petitioner’s son, Father John Rice. Father Rice held the money until July of 2015, at which point
he returned it to respondent. In Father Rice’s presence, respondent offered to return the entirety
of the money she received to petitioner, which he refused.

        In June of 2015, petitioner filed a complaint against respondent that alleged, among other
causes of action, breach of contract. Respondent initially filed a pro se answer to the complaint.
After retaining counsel, respondent filed a counterclaim against petitioner for willful and
intentional abuse of civil process.2 Thereafter, respondent filed a motion for summary judgment.
Following a hearing on the motion, the circuit court granted the same by order entered on
December 27, 2016. In ruling on the motion, the circuit court specifically found that petitioner
twice refused respondent’s offer to return either the rings or the funds received from their sale.
Accordingly, the circuit court found that petitioner’s refusals clearly evidenced an intention to
frustrate respondent’s attempt to remedy her decision to end the engagement or otherwise
repudiate her attempt to return the rings or the money obtained from their sale. It is from the
resulting order that petitioner appeals.

        “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). Our review is guided by the principle 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.’ Syllabus Point 3, Aetna
       Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160,
       133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187
       W.Va. 706, 421 S.E.2d 247 (1992).

Painter, 192 W.Va. at 190, 451 S.E.2d at 756, Syl. Pt. 2. Furthermore,

               “[s]ummary judgment is appropriate where the record taken as a whole
       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.” Syllabus point 4,
       Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

Syl. Pt. 5, Toth v. Bd. of Parks & Recreation Comm’rs, 215 W.Va. 51, 593 S.E.2d 576 (2003).
Upon our review, we find no error below.

        On appeal, petitioner’s assignments of error are predicated upon his erroneous contention
that a genuine issue of material fact concerning respondent’s attempts to return the rings or the
funds obtained from their sale exists. At the outset, it is important to note that petitioner does not

       2
        In the order on appeal, the circuit court also dismissed respondent’s counterclaim upon
her representation that she would voluntarily withdraw the same upon the circuit court’s granting
of her motion for summary judgment.
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dispute that respondent offered, on two occasions, to return either the rings or the funds received
from the rings’ sale. However, petitioner argues that questions of material fact surround “the
intent of the parties regarding the time the [respondent] called the engagement off and attempted
to return the rings.” According to petitioner, he did not refuse to accept the rings but, instead,
simply told respondent that “she needed to keep the rings and think about or reconsider what she
was doing.” The Court, however, does not find this argument compelling.

         Even if it is assumed as true that petitioner did request that respondent retain the rings
while she reconsidered her decision to end the engagement, the fact remains that respondent
never made any indication that she would reconsider her decision. The only overt acts
respondent made in regard to the rings clearly evidenced her desire to return them or their value
to petitioner. Simply put, petitioner is not, in effect, disputing that he refused to accept the rings’
return, only that he refused the return out of a desire for respondent to reconsider the decision.
Petitioner admitted as much when he testified that he did not accept the rings when respondent
offered to return them because he was “hoping that [respondent] would reconsider the break-off
of the engagement.” Regardless of petitioner’s basis for his refusal to accept the rings, the fact
remains that the evidence clearly shows petitioner refused their return. Despite petitioner’s desire
for respondent to reconsider her decision, there is nothing in the record that indicates respondent
agreed to undertake such reconsideration. On the contrary, respondent not only declined to
reconsider, but further attempted to return the money she obtained from the rings’ sale after
petitioner left them in her possession for over five months.

       In addressing motions for summary judgment, we have held as follows:

               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.

Syl. Pt. 3, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). Elaborating on
this holding, we have stated that

       [t]o be specific, the party opposing summary judgment must satisfy the burden of
       proof by offering more than a mere “scintilla of evidence” and must produce
       evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.
       Anderson, 477 U.S. at 252, 106 S.Ct. at 2512, 91 L.Ed.2d at 214. The evidence
       illustrating the factual controversy cannot be conjectural or problematic. It must
       have substance in the sense that it limns differing versions of the truth which a
       factfinder must resolve. The evidence must contradict the showing of the moving
       party by pointing to specific facts demonstrating that, indeed, there is a
       “trialworthy” issue. A “trialworthy” issue requires not only a “genuine” issue but
       also an issue that involves a “material” fact. See Anderson, 477 U.S. at 248, 106
       S.Ct. at 2510, 91 L.Ed.2d at 211.

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Williams, 194 W.Va. at 60, 459 S.E.2d at 337. Here, the circuit court specifically found that there
was no genuine issue of material fact because respondent “offered to return the rings to
[petitioner] and thereafter offered to return to [petitioner] the funds she had received” from the
sale of the rings. Despite these offers, petitioner “refused to accept the rings or the money.”
Simply, petitioner failed to rebut the evidence that he refused respondent’s attempt to return,
first, the rings, then, following their sale, the value obtained. Petitioner’s motivation for refusing
respondent’s attempts fails to establish a genuine issue of material fact, and we find no error in
the circuit court’s grant of summary judgment. Accordingly, we find no error in this regard.

        Moreover, petitioner argues that the circuit court erred in its application of our prior
holding in Bryan v. Lincoln, 168 W.Va. 556, 285 S.E.2d 152 (1981). His reliance on that case,
however, is misplaced. The facts in Bryan concerned a sum of money given to a party in
contemplation of a marriage that never occurred. Id. Importantly, however, the party in Bryan
who received the money and later ended the engagement refused to return the funds. Id. at 557,
285 S.E.2d at 153. As set forth above, respondent in this case attempted to return both the rings
in question and the funds obtained from their sale after petitioner refused to accept their return.
Accordingly, we find that Bryan is distinguishable from the current matter, and that petitioner is
entitled to no relief in this regard.

       For the foregoing reasons, the circuit court’s December 27, 2016, order granting
respondent’s motion for summary judgment is hereby affirmed.


                                                                                           Affirmed.

ISSUED: January 8, 2018

CONCURRED IN BY:

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




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