Donald R. Rice, Plaintiff Below, Petitioner
Beverly Crossley, Defendant Below, Respondent
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.
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.
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
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.
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.
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. 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.
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.
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
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.
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 ...