CYNTHIA W. VAN HEYDE, ADMINISTRATRIX OF THE ESTATE OF PATRICK A. WOLFE, Plaintiff Below, Petitioner
SUSAN MILLER, JESSICA MILLER LIPSCOMB, AND HOUSES & MORE, INC., Defendants Below, Respondents
Submitted: February 7, 2017
from the Circuit Court of Preston County Honorable Andrew N.
Frye, Jr., Judge Civil Action No. 14-C-87
William E. Ford III, Esq. Lisa Furbee Ford, Esq. Ford Law
Office Clarksburg, West Virginia Attorneys for Petitioner
L. Bean, Esq. Monte L. Williams, Esq. Chelsea V. Prince, Esq.
Steptoe & Johnson PLLC Morgantown, West Virginia
Attorneys for Respondents
Attorneys for Respondents JUSTICE WORKMAN delivered the
Opinion of the Court.
BY THE COURT
"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. Fed. Ins. Co. of N.Y.,
148 W.Va. 160, 133 S.E.2d 770 (1963).
"Summary 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).
"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).
person is mentally competent to make a conveyance of land if
he knows the nature, character and effect of his deed.'
Carrigan v. Davis, 84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473 [100 S.E. 91
(1919).]" Syl. Pt. 1, Cyrus v. Tharp, 147 W.Va.
110, 126 S.E.2d 31 (1962).
"'The presumption of law is in favor of the sanity
and mental capacity of a grantor, and the person attacking
his conveyance on the ground of his incapacity, or the
exertion of undue influence over him in inducing him to make
the deed, bears the burden of proof. One who charges fraud
and undue influence must prove it.' Carrigan v.
Davis, 84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473');">84 W.Va. 473 [100 S.E. 91 (1919)]." Syl. Pt.
2, Cyrus v. Tharp, 147 W.Va. 110, 126 S.E.2d 31
grantor ina deed maybeextremelyold, his understanding,
memory, and mind [e]nfeebled and weakened by age, and his
action occasionally strange and eccentric, and he may not be
able to transact many affairs of life, yet if age has not
rendered him imbecile, so that he does not know the nature
and effect of the deed, this does not invalidate the deed. If
he be capable, at the time, to know the nature, character and
effect of the particular act, that is sufficient to sustain
it.' Point 5 Syllabus, Buckey v. Buckey, 38
W.Va. 168 [18 S.E. 383 (1893)]." Syl. Pt. 3, Cyrus
v. Tharp, 147 W.Va. 110, 126 S.E.2d 31 (1962).
"The presumption of law is that the acceptance of a
deed, made in pursuance of an antecedent written agreement
for the sale of land, is satisfaction of all previous
covenants, and, although such acceptance mayin some
circumstances, be but partial execution of the contract, to
rebut the legal presumption, the intention to the contrary
must be clear and convincing." Syllabus. William
James Sons Co. v. Hutchinson, 79 W.Va. 389, 90 S.E. 1047
"A party challenging the validity of a deed because of
inadequate consideration and grantor incompetence has the
burden of proving those facts. Absent convincing proof, a
trial court should find the challenged deed valid." Syl.
Pt. 3, McElwain v. Wells, 174 W.Va. 61, 322 S.E.2d
an appeal by Cynthia W.Van Heyde (hereinafter
"petitioner"), Administratrix of the Estate of
Patrick A. Wolfe, from an order granting summary judgment to
Susan Miller, Jessica Miller Lipscomb, and Houses & More,
Inc. (hereinafter "respondents" or referenced
individually) entered by the Circuit Court of Preston County,
West Virginia, on September 30, 2015. The petitioner contends
the circuit court erred in granting summary judgment where
genuine issues of material fact exist regarding a real estate
transaction. Upon thorough evaluation of the parties'
briefs, arguments, record on appeal, and applicable
precedent, this Court finds no error in the circuit
court's determinations and consequently affirms the
summary judgment order.
Factual and Procedural History
petitioner's uncle, Mr. Patrick A. Wolfe, owned a
sixty-acre parcel of land in Preston County, West Virginia.
Mr. Wolfe met with Respondent Mrs. Susan Miller, a real
estate agent with the real estate brokerage company of Houses
& More, Inc. (hereinafter "Houses & More"),
in June 2013 to discuss listing his property for sale. He was
eighty-five years old at the time of the initial meeting.
Mrs. Miller and Mr. Wolfe visited the subject property, and,
according to the deposition testimony of Mrs. Miller, Mr.
Wolfe advised her that he wanted to sell the property
quickly. After visiting the property a second time
independently,  Mrs. Miller met with Mr. Wolfe to discuss
the list price. Mrs. Miller contends that Mr. Wolfe wanted to
list the property for $90, 000, including Mr. Wolfe's
portion of the mineral interests. They discussed recent
comparable sales and the unique terrain of the property, its
overgrown meadows, and the existence of high-tension power
lines through the property. Mr. Wolfe and Mrs. Miller
thereafter entered into a listing agreement whereby Mrs.
Miller would list the property at a price of $90, 000. In a
hand-written notation, Mr. Wolfe indicated the price included
both the surface and his portion of the mineral interests.
Jessica Miller Lipscomb is Mrs. Miller's daughter and is
also a real estate agent with Houses & More. On June 21,
2013, Mrs. Lipscomb met with Jason Haskiell and Ashley Kyle
(hereinafter "buyers") at the Houses & More
office. The buyers submitted an offer to purchase the
property for $90, 000, including Mr. Wolfe's portion of
the mineral interests. Mr. Wolfe accepted their offer and
executed a real estate purchase agreement the following day.
Mrs. Miller and Mrs. Lipscomb represented Mr. Wolfe and the
buyers as dual-agents in the transaction, the dual agency was
properly explained to the seller and buyers, and all parties
signed a Notice of Agency Relationship. The purchase
agreement specified that the sale included Mr. Wolfe's
portion of the mineral interests, and it required any
changes, modifications, or amendments to the agreement be in
writing and signed by the parties. The closing was to occur
on or before August 28, 2013.
August 2013, Mr. Wolfe informed Mrs. Miller that he had
changed his mind and no longer wanted to include the mineral
interests in the sale. He did not complete any documentation
regarding this change of intention, but he advised Mrs.
Miller that his nephew, husband of Petitioner Van Heyde,
would contact Mrs. Miller about the property sale. On August
19, 2013, the petitioner and her husband, residents of
Florida, met with Mr. Wolfe and Mrs. Miller. Unbeknownst to
the petitioner, her husband, or Mr. Wolfe, Mrs. Miller
recorded the meeting on an audio recorder. During the
meeting, the petitioner and her husband questioned the
contract price of $90, 000 for surface and mineral rights.
Mrs. Miller explained that $90, 000 was the price suggested
by Mr. Wolfe based upon discussions regarding factors to be
considered in valuing property, and she also emphasized that
any alteration to the purchase agreement would require
written documentation, pursuant to the terms of the
agreement. On August 21, 2013, the petitioner and her
husband submitted a letter to Mrs. Miller on Mr. Wolfe's
behalf. The letter expressed Mr. Wolfe's desire to
continue with the sale of the surface interests at a
"mutually agreed upon" price, but it indicated Mr.
Wolfe's intention to retain his portion of the mineral
interests. The petitioner and her husband thereafter returned
to their home in Florida. The petitioner's husband later
testified that, prior to leaving for Florida, the petitioner
had told Mr. Wolfe she would purchase the subject property,
including the mineral rights, for $90, 000. Mr. Wolfe had
rejected her offer.
upon Mr. Wolfe's expressed intention to alter the terms
of the purchase agreement, Mrs. Miller scheduled a meeting
with the parties to the agreement. On August 26, 2013, she
first met with Mr. Wolfe in the morning and later met with
Mr. Wolfe and the buyers in the evening. The petitioner and
her husband were not present for either meeting. Mrs. Miller
also surreptitiously recorded the meetings of August 26,
2013. During the morning meeting, the petitioner emphasizes
Mr. Wolfe's statement that he did not wish to sell the
property with the mineral rights. Mrs. Miller thereafter
informed him that his refusal to sell the mineral interests
would cause him to be sued, and she advised him to go through
with the transaction. Mrs. Miller further advised Mr. Wolfe
that "since we are representing both you and them . . .,
we can't take sides[.]"
the evening meeting with the buyers on August 26, 2013, Mr.
Wolfe confirmed that he was willing to sell both the
surface and mineral rights for the contract price of $90,
000, noting that he only owned three-fifths of the mineral
interests. The parties thereafter memorialized their
understanding by executing an addendum to the purchase
agreement confirming the sale of both the surface and mineral
attorney, Neil Reed, subsequently met with Mr. Wolfe to
prepare the deed transferring the property to the buyers. Mr.
Reed later testified that Mr. Wolfe did not exhibit any
indication of confusion or mental incompetency during their
meeting. The parties proceeded to the closing on August 28,
2013, at the law office of the closing attorney, Trudy Goff.
Mrs. Miller and Mrs. Lispcomb, as well as the buyers, later
testified that Mr. Wolfe evidenced a complete understanding
of the significance of that transaction. Ms. Goff also
testified that Mr. Wolfe comprehended the details of the
sale; she did not observe any indication of undue influence
over Mr. Wolfe.
Wolfe received a check in the amount of $83, 925.01
after the execution of the deed; this constituted the
purchase price minus settlement charges. He deposited the
check in his personal checking account that same day and
placed the documentation regarding the transaction in the box
in which he kept other important documentation. On August 30,
2013, Mr. Wolfe visited Dr. Roger Lewis for treatment of
minor injuries he sustained in a fall. Dr. Lewis later
testified that Mr. Wolfe was coherent during the examination
and had sufficient mental capacity to understand the nature
of his medical treatment and to refuse to be admitted to the