                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS


Carol Drake Greco and Bette Drake Walling,
Plaintiffs Below, Petitioners                                                     FILED
                                                                             February 9, 2018
vs) No. 17-0124 (Pendleton County 15-C-32)                                   EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
George I. Sponaugle, II,
Defendant Below, Respondent


                                MEMORANDUM DECISION
        Petitioners Carole Drake Greco and Betty Drake Walling, by counsel Scott Curnutte,
appeal the January 12, 2017, order that granted summary judgment in favor of respondent.
Respondent George Sponaugle, by counsel Jerry D. Moore and Jared T. Moore, filed a response
and cross-assignment of error regarding the order’s dismissal of respondent’s counterclaim.
Petitioners filed a reply brief.

        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.

       George and Ruth Drake were married on December 18, 1948, and the marriage did not
produce any children. On May 30, 2000, Respondent Sponaugle, an attorney and Ruth Drake’s
nephew, prepared wills for George and Ruth Drake. The wills left the bulk of the estate to the
surviving spouse, and if not survived by each other, the estate was to be divided equally amongst
the Drake’s six heirs. George Drake’s heirs by consanguinity are Petitioners Carole Drake Greco
and Bette Drake Walling. Respondent is Ruth Drake’s heir by consanguinity.1 George Drake
executed his will on May 30, 2000, and passed away on April 10, 2002. He was survived by his
wife, Ruth.

        In 2009, Ruth Drake executed a will drafted by respondent at his law office. The 2009
will was significantly different from the 2000 will executed by George Drake, as it bequest the
majority of the million dollar estate to Respondent Sponaugle, and bequeathed only $125,000 to
petitioners. Ruth Drake died on December 31, 2014. Respondent Sponaugle, qualified as the
executor of the estate, and presented the will executed by Ruth Drake in 2009 for administration.


       1
           The remaining three heirs are notice parties to this action.


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        Subsequently, Petitioners Greco and Walling inquired of respondent if he had knowledge
of a will prepared and executed in 2000 by Ruth Drake. Respondent advised that he checked his
computers, but could not find a prior will. After this communication, petitioners filed the
underlying suit against respondent alleging that there was a common understanding between
Ruth and George to execute mutual wills, and that Ruth Drake benefitted from that agreement
when she received George Drake’s estate upon his death, and that she breached that agreement
when she executed her 2009 will.

        In April of 2016, respondent moved for summary judgment and argued that petitioners
could not produce Ruth Drake’s executed 2000 will, and that the parties could not meet their
burden to prove the existence of an earlier will. Petitioners responded that summary judgment
prior to discovery was inappropriate. The circuit court agreed to hold respondent’s motion in
abeyance.

        Thereafter, respondent, in response to discovery requests, executed an affidavit wherein
he averred that he was unaware that Ruth Drake executed a will on May 30, 2000, and that he
did not have a copy of such a will. Respondent further averred that he had “attempted to locate
the [executed] last will and testament of Ruth Drake,” but was unable to do so.

        On September 14, 2016, petitioners’ counsel called the entity responsible for computer
administration at respondent’s law office, and requested that it search for any will prepared for
Ruth Drake. The computer administrator located a file which reportedly contained a draft of a
will for Ruth Drake. This draft was prepared at the same time as George Drake’s draft in 2000.
Respondent never previously disclosed the existence of the draft will. As a result, petitioners
submitted a report to the court, detailing their efforts to retrieve the draft of the will, and
respondent’s noncompliance. In response, respondent filed a clarification asserting that the files
were newly discovered evidence, and that respondent had provided petitioner with the requested
files.

        The circuit court reviewed the parties’ motions and by order entered January 12, 2017,
granted respondent’s motion for summary judgment, finding that petitioners could not establish
that Ruth Drake executed the May 30, 2000, will, or that the Drake’s wills were mutual. The
circuit court also dismissed a counterclaim filed by respondent, seeking to invoke the in
terrorem2 clause in the will. Petitioners now appeal the order of the circuit court that dismissed


       2
           Pursuant to the in terrorem clause,

       Every heir, legatee, devisee, beneficiary, or the spouses of any heir, legatee,
       devisee or beneficiary, under this Will, who shall contest in any court any
       provision of this instrument, or cause any trouble or disturbance in the settlement
       of my estate, shall not be entitled to any devises, legacies or benefits under this
       Will or any Codicil hereto, or any trust created hereby, and any and all devises,
       legacies and portions of the income or corpus of my estate, otherwise provided to
       be paid to such person shall lapse and shall be paid, distributed, and passed to the
       remaining beneficiaries under Article III of this my Last Will and Testament. My
(continued . . .)
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their complaint and respondent appeals the dismissal of his counterclaim.

        Requesting that this Court overturn the order of the circuit court granting respondent
summary judgment, petitioners assert that the circuit court erred as a genuine issue of material
fact existed regarding whether the original wills were mutual wills. Conversely, respondent
argues in his cross-appeal that the circuit court erred in dismissing his claim sua sponte, because
petitioners had not previously moved for dismissal of respondent’s claim. We note 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). After careful consideration of the record we find that the circuit
court did not err in dismissing the parties’ complaints and respective counterclaim.

        Petitioners argue that there is a genuine issue of material fact regarding whether Ruth and
George Drake executed mutual wills on May 30, 2000. Petitioners point to the word-processor
version of Ruth Drake’s May 30, 2000, will located on respondent’s office computer system,
which is a mirror image of George Drake’s will, and asserts that such is evidence of an
agreement between the testators to make mutual wills. Petitioners argue further that additional
circumstances exist that give a clear implication that the wills were made pursuant to a common
understanding. We have long held that, “[t]he circuit court’s function at the summary judgment
stage is not to weigh the evidence and determine the truth of the matter, but is to determine
whether there is a genuine issue for trial.” Syl. Pt. 3, id. Here, the circuit court found that the
petitioners failed to meet the threshold test regarding mutual wills, as they could produce no
affirmative evidence to establish that the wills were mutual in nature. In the absence of such
evidence, the circuit court held there was no genuine issue of material fact regarding the
existence of mutual wills. We agree, and find no reversible error.

        In his cross-appeal, respondent argues that the circuit court erred in granting summary
judgment in favor of petitioners. Respondent argues that because petitioners did not make any
motions regarding the counterclaim, that the circuit court did not have the authority to dismiss
the claim without giving respondent reasonable notice and an opportunity to address the grounds
for which relief was sought. We disagree. It is clear from our review of the record that the circuit
court had sufficient information to determine there was no genuine issue for trial. It is well
established “that a summary judgment may be rendered against the party moving for judgment
and in favor of the opposing party even though the opposing party has made no motion for
summary judgment.” Gastar Exploration Inc. v. Rine, 239 W. Va. 792, ___, 806 S.E.2d 448, 454
(2017). Indeed, this Court has held that, “[w]here a court acts with great caution, assuring itself
that the parties to be bound by its judgment have had an adequate opportunity to develop all of
the probative facts which relate to their respective claims, the court may grant summary
judgment under Rule 56, W.Va. R.C.P., sua sponte.” Syl. Pt. 4, S. Erectors, Inc. v. Olga Coal
Co., 159 W. Va. 385, 223 S.E.2d 46 (1976). Consequently, we find no error.

       The circuit court’s order reflects its thorough analysis of the grounds raised in the


       hereinafter named Executor is specifically authorized to defend, at the expense of
       my estate, any contest or attack of any nature upon this Will or any Codicil
       hereto, or upon any paragraph or provision hereof.


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petitions before this court. Having reviewed the opinion order entered on January 12, 2017, we
hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to all
the assignments of error raised in this appeal. The clerk is directed to attach a copy of the circuit
court’s order to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: February 9, 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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