Robert Kelley and James Kelley v. Norma Kelley, 19-1159

Background

Petitioners (brothers Robert and James Kelley) contend they agreed orally with respondent Norma Kelley (their step‑grandmother) to buy adjoining real property for $25,000, with petitioners to pay closing costs and attorneys’ fees.
Petitioners retained an attorney in the same firm as respondent’s personal attorney; respondent became suspicious, requested changes to the draft deed, failed to appear at two scheduled closings, and ultimately sold the property to a cousin, William Kelley, for $25,000.
Petitioners sued in Harrison County for breach of the alleged oral contract; they later amended to add tortious‑interference claims against William and Michael Kelley. A jury trial was set but the parties discussed a settlement; respondent never finalized it.
Respondent moved for summary judgment (arguing the statute of frauds barred enforcement of any oral land‑sale contract); the circuit court heard the motion and, on November 22, 2019, granted summary judgment to respondent on the breach‑of‑contract claim but denied summary judgment as to the tortious‑interference claim against the Kelley brothers.
The circuit court held there was no writing sufficient under W. Va. Code § 36‑1‑3 (and Timberlake) and that petitioners had not established partial performance to remove the statute‑of‑frauds bar; petitioners appealed the contract ruling, raising also a timeliness objection to respondent’s summary judgment motion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an oral sale contract is enforceable despite the statute of frauds (writing requirement)	Petitioners argued respondent’s deposition admissions and pleadings constituted a sufficient memorandum/writing to satisfy the statute of frauds	Respondent argued no written memorandum or signed note exists; she never agreed to sell before her daughter’s surgery and made no admission creating a written memorandum	Court: Affirmed summary judgment for respondent — no sufficient writing/memorandum under § 36‑1‑3; Timberlake’s pleading rule does not save petitioners here
Whether deposition testimony can serve as the required writing/memorandum	Petitioners relied on deposition statements as a writing sufficient under Timberlake and authorities recognizing parol admissions in some jurisdictions	Respondent denied making admissions amounting to a memorandum; court noted Timberlake allows pleadings to satisfy memorandum but did not find deposition here created the required writing	Court: Deposition did not supply the necessary writing; circuit court properly rejected petitioners’ deposition‑as‑writing argument
Whether partial performance removed the statute‑of‑frauds bar	Petitioners claimed partial performance: possession by virtue of adjacency, tendered purchase money, and scheduling of closings	Respondent noted petitioners never took possession, respondent never received payment (she did not attend closings), and no valuable improvements or other equitable acts were shown	Court: No partial performance shown under Holbrook/Lowry; statute of frauds applies — summary judgment proper
Whether respondent’s summary‑judgment motion was untimely	Petitioners argued the Feb. 11, 2019 filing on the original trial date was untimely	Respondent argued the point was forfeited or not preserved and that the record does not support the claim	Court: Declined to address timeliness on appeal for inadequate record and preservation; issue waived

Key Cases Cited

Timberlake v. Heflin, 180 W. Va. 644, 379 S.E.2d 149 (1989) (pleadings can satisfy the statute‑of‑frauds memorandum requirement; discusses whether depositions/parol admissions may suffice)
Holbrook v. Holbrook, 196 W. Va. 720, 474 S.E.2d 900 (1996) (sets out partial‑performance equitable exception to the statute of frauds for land sales)
Lowry v. Buffington, 6 W. Va. 249 (1873) (early West Virginia authority articulating partial‑performance rule)
Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994) (standard of review for summary judgment: de novo; summary judgment proper where no rational trier of fact could find for nonmoving party)
Durm v. Heck's Inc., 184 W. Va. 562, 401 S.E.2d 908 (1991) (discusses when a partial disposition by summary judgment is appealable as effectively final)
Torbett v. Wheeling Dollar Savings & Trust Co., 173 W. Va. 210, 314 S.E.2d 166 (1983) (elements required to establish tortious interference)
Burdette v. Burdette Realty Improvement, Inc., 214 W. Va. 448, 590 S.E.2d 641 (2003) (settlement‑agreement enforcement is reviewed for abuse of discretion)