STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Rosanna S. Crum, FILED Plaintiff Below, Petitioner 

October 28, 2016 

vs) No. 15-1214 (Mingo County 15-C-68) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Chafin Funeral Home, Inc., 

Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioner Rosanna S. Crum, by counsel Richard A. Robb, appeals the November 9, 2015, 

order of the Circuit Court of Mingo County dismissing her claims against Respondent Chafin 

Funeral Home, Inc.. Respondent Chafin Funeral Home, Inc., by counsel Michelle Roman Fox 

and Geoffry A. Haddad, filed its response, to which petitioner submitted a reply. 

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. For these reasons, a memorandum 

decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

On April 3, 2013, Walter Eugene Crum, Sheriff of Mingo County, was killed in the line 

of duty while in his vehicle. On April 4, 2013, respondents John Hubbard, Greg “Hootie” Smith, 

David Baisden, and Michael Thornsbury allegedly went to petitioner’s home and assured her that 

“they would take care of all funeral and burial costs.” Sheriff Crum’s services were performed by 

Respondent Chafin Funeral Home,1 but no payments were made to the funeral home for those 

costs by Hubbard, Smith, Baisden, or Thornsbury.2 When petitioner asked respondent about a 

1 The Circuit Court of Mingo County’s grant of the motions to dismiss filed by Thomas 

McComas, Michael Thornsbury, John Hubbard, Greg “Hootie” Smith, and David Baisden in the 

same underlying action are the subject of a joint memorandum decision in Case Numbers 15­

1131 and 15-1219 before this Court. 

2 Petitioner alleges that the funeral home and Sheriff McComas, the Cabell County 

Sheriff who was the head of the state sheriff’s association at the time of Sheriff Crum’s death, 

planned an elaborate and costly funeral without petitioner’s permission. The Sheriff’s 

Association arranged for a number of services related to the funeral at no cost to petitioner, 

including providing a rotating honor guard at all times that the remains were open to public view, 

providing a 21-gun salute at the service, providing a helicopter to fly over the service, and 

(continued . . .) 

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headstone for Sheriff Crum, she was informed that she had to pay the outstanding funeral bill 

before she could purchase a headstone. According to petitioner, she approached two of the 

county commissioners regarding payment, one of whom told her that they would not pay the bill 

while the other reportedly avoided her. Petitioner paid the funeral costs.3 

Petitioner filed her complaint on or about April 2, 2015, against Respondents Chafin 

Funeral Home, Inc., Hubbard, Smith, Baisden, Thornsbury, and McComas. Petitioner stated in 

her complaint that Respondents Hubbard, Smith, and Baisden, all members of the Mingo County 

Commission, in addition to former Judge Thornsbury, came to petitioner’s home and assured her 

they would take care of all funeral and burial costs related to Sheriff Crum’s death. According to 

the complaint, Sheriff McComas and “Tib” Cook of Chafin Funeral Home planned the elaborate 

funeral, with costs exceeding $30,000. As a result of the individuals’ alleged refusal to pay for 

the funeral services, petitioner asserted numerous claims against them, including breach of 

contract, negligence, and detrimental reliance. She also alleged that respondent’s conduct 

amounted to negligence, breach of an implied contract, and tortious breach of an implied 

contract. As a result, she requested damages of “at least” $30,000 and asked that “any award be 

joint and several . . . as these [respondents] were acting in concert explicitly or implicitly in these 

matters. She also ask[ed] for an award of damages for the emotional distress [respondents’] 

conduct has caused her.” In addition, petitioner requested punitive damages “as she suspects 

because many of these same [respondents] have since his death made her late husband a 

scapegoat[.]” 

On April 30, 2015, Sheriff McComas filed a notice of special appearance and a motion to 

dismiss. Michael Thornsbury filed his motion to dismiss on August 13, 2015; Respondents 

Hubbard, Smith, Baisden, and Chafin Funeral Home filed their respective motions to dismiss on 

or about October 9, 2015. Thereafter, the circuit court dismissed each defendant below. 

In its October 13, 2015, order dismissing Sheriff McComas, the circuit court stated that 

the claims against Sheriff McComas were not clearly discernable within the four corners of the 

complaint but appeared to include a claim for breach of oral contract to pay for funeral services, 

breach of an implied contract to pay for funeral services, interference in the oral contract 

between petitioner and the four public officials to pay for the funeral services, and negligence. 

The circuit court concluded there was no equitable principle that justifies imposing any burden 

for the funeral costs on Sheriff McComas, there was no writing to support petitioner’s claims of 

providing deputies from around the state to patrol Mingo County during the grieving period so 

that Mingo County deputies could participate in the services. 

3 In its October 13, 2015, order granting Sheriff McComas’s motion to dismiss, the 

circuit court stated that the Public Safety Officers’ Benefit Act provided for a line of duty death 

benefit of $328,612.73 for law enforcement at the time of Sheriff Crum’s death. Further, the 

West Virginia Fire, EMS, and Law Enforcement Survivor Benefit Acts provided a benefit of 

$50,000. The West Virginia Workers’ Compensation system provided for the payment of funeral 

services for any employee killed in the line of duty. However, it noted that “[w]hether those 

funds and payments were ever paid to [petitioner was] not a matter of record.” 

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an oral or implied contract to pay for the funeral, and the damages sought are the funeral 

expenses that petitioner was legally responsible to pay regardless of any alleged negligent act or 

omission on the part of Sheriff McComas. On October 16, 2015, the circuit court dismissed 

Respondent Thornsbury, finding that petitioner did not ask Thornsbury about the bill she 

received from the funeral home and she had paid the bill. It went on to find that if the allegations 

in the complaint are taken in the light most favorable to petitioner, she still has not stated a claim 

upon which relief can be granted. 

On November 9, 2015, the circuit court entered its order dismissing Chafin Funeral 

Home. Therein, the circuit court concluded that Steven Cook of the funeral home signed the 

“Statement of Funeral Goods and Services Selected” (“Statement”) as did petitioner. It found 

that such Statement was a written contract between petitioner and respondent. It also concluded 

that there was consideration paid for a valid written contract between the parties and that all 

services and goods for the burial and gravesite were paid by petitioner. Therefore, it found that 

petitioner failed to state a claim against Chafin Funeral Home upon which relief could be 

granted. 

On December 7, 2015, the circuit court entered its order dismissing the individual county 

commissioners – Hubbard, Smith, and Baisden. In its order, the circuit court incorporated by 

reference the previously entered orders dismissing the co-defendants below. It found that the 

statute of frauds applied, citing the fact that petitioner did not allege that Hubbard, Smith, and 

Baisden ever reduced the promise to cover funeral costs to writing. It went on to state that “a 

promise to make a gift in the future or to assist in a time of need is not enforceable and does not 

constitute a contract.” Further, it found that “the promise to make a gift . . . in this matter is not a 

valid contract as it lacked consideration and mutual assent.” The circuit court also found there 

was no unjust enrichment for Hubbard, Smith, and Baisden, as it previously found with regard to 

Thornsbury. Petitioner appeals from these dismissal orders. 

“Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de 

novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 

S.E.2d 516 (1995). “The circuit court, viewing all the facts in a light most favorable to the 

nonmoving party, may grant the motion only if ‘it appears beyond doubt that the plaintiff can 

prove no set of facts in support of his[, her, or its] claim which would entitle him[, her, or it] to 

relief.’ Syl. pt. 3, in part, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 

(1977), citing Conley, 355 U.S. at 45–46, 78 S.Ct. at 102, 2 L.Ed.2d at 84.” State ex rel. McGraw 

v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. at 776, 461 S.E.2d at 522. 

First, petitioner contends that no contract existed with the funeral home. In support of this 

statement, she asserts that the funeral home was fully aware that third parties agreed to pay the 

funeral costs for Sheriff Crum’s services and proceeded to stage an elaborate service far beyond 

what petitioner would have arranged or could afford. Petitioner claims that when the third parties 

reneged on paying those costs, the funeral home forced her to pay by refusing to provide the 

tombstone for Sheriff Crum’s grave until payment was made. In her argument before this Court, 

petitioner admits that respondent “may be” entitled to some compensation for its services but 

disputes the amount respondent charged because she asserts that she did not agree to it. 

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“‘“The fundamentals of a legal contract are competent parties, legal subject matter, 

valuable consideration and mutual assent. There can be no contract if there is one of these 

essential elements upon which the minds of the parties are not in agreement.” Syllabus Point 5, 

Virginian Export Coal Co. v. Rowland Land Co., 100 W.Va. 559, 131 S.E. 253 (1926).’ Syllabus 

point 3, Dan Ryan Builders, Inc. v. Nelson, 230 W.Va. 281, 737 S.E.2d 550 (2012).” Syl. Pt. 4, 

State ex rel. AMFM, LLC v. King, 230 W.Va. 471, 740 S.E.2d 66 (2013). While petitioner argues 

that she did not agree to the costs, included in the record before this Court is the Statement 

petitioner does not dispute signing. Included in that Statement are itemized costs, including a 

nearly $13,000 casket and $3,175 for total services. Other items contained on the Statement are 

charges for copies of the death certificate, newspaper publication of the obituary, an outer burial 

container, and a register book package. Immediately above petitioner’s signature on the 

Statement is the following language: “I (we) have read (or been read) the above, accept and 

approve same, and jointly and severally promise to make full payment. Receipt of a copy of this 

Statement is acknowledged.” According to respondent, petitioner paid for the services and items 

set forth in that Statement and for the headstone she selected. Petitioner does not complain about 

the services rendered by respondent or claim that it failed to perform its duties under the 

Statement, which serves as a contract between these parties. Further, she does not dispute the 

necessity or amount of charges for the preparation of the body, embalming, and use of the 

hearse. Considering all of the allegations in the complaint in the light most favorable to petitioner 

insomuch as she does not dispute that she signed the Statement or that respondent provided the 

services and items set forth in the Statement, we find that the circuit court did not err in finding 

that the Statement constituted a valid contract between these parties. 

Petitioner next asserts that respondent was negligent because it voluntarily assumed a 

duty with third parties to arrange a funeral exceeding the cost that petitioner would have 

arranged and in which she played no part. She contends that respondent is negligent to the extent 

the costs went beyond what she or her family members would have arranged. Thus, she asserts 

that the circuit court erred in finding that respondent was not negligent. “An action in negligence 

is based in tort law and is brought to recover damages from a party whose acts or omissions 

constitute the proximate cause of a claimant’s injury. Sewell v. Gregory, 179 W.Va. 585, 587, 

371 S.E.2d 82, 84 (1988).” Strahin v. Cleavenger, 216 W.Va. 175, 183, 603 S.E.2d 197, 205 

(2004). As this Court has stated, “before one can recover under a tort theory of liability, he or she 

must prove each of the four elements of a tort: duty, breach, causation, and damages.” Carter v. 

Monsanto Co., 212 W.Va. 732, 737, 575 S.E.2d 342, 347 (2002). Regardless of any alleged 

assurances made in the presence of “Tib” Cook of the respondent funeral home, petitioner was 

the one who undisputedly signed the Statement agreeing to pay for all costs. Petitioner does not 

state in her complaint or before this Court how respondent should have been aware of her ability 

to pay for funeral services. She also fails to set forth an affirmative duty on the part of 

respondent to ascertain her ability to pay for services when she signed the Statement agreeing to 

pay for such services. In addition, she admits that she paid for all of the services contained in the 

Statement. Therefore, we find that the circuit court did not err in finding that petitioner failed to 

set forth actionable claims for negligence against respondent. 

Petitioner’s final argument is that “[a]ssuming the promises to pay by the th[e] third 

parties amounted to a contract between them and the widow, the funeral home’s arrangement of 

the funeral services amounted to a tort[i]ous breach of contract, and the lower court erred in 

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finding it had not.” This Court addressed petitioner’s arguments regarding a contractual 

relationship between herself and Sheriff McComas, Michael Thornsbury, John Hubbard, Greg 

“Hootie” Smith, and David Baisden in the memorandum decision for Case Numbers 15-1131 

and 15-1219.4 In that memorandum decision, this Court found no error in the circuit court’s 

finding that no contract existed between petitioner and those individual defendants. As this Court 

has previously stated, “[t]o establish prima facie proof of tortious interference, a plaintiff must 

show: (1) existence of a contractual or business relationship or expectancy; (2) an intentional act 

of interference by a party outside that relationship or expectancy; (3) proof that the interference 

caused the harm sustained; and (4) damages.” Syl. Pt. 2, Torbett v. Wheeling Dollar Sav. & Trust 

Co., 173 W.Va. 210, 314 S.E.2d 166 (1983). Because petitioner cannot show the existence of 

such contract, there can be no tortious interference with a contract under the facts and 

circumstances of this case. Therefore, we find that the circuit court did not err in granting 

respondent’s motion to dismiss on this ground. 

For these reasons, we find no error in the circuit court’s finding that respondent was 

entitled to the dismissal of petitioner’s claims against it. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: October 28, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Robin Jean Davis 

4 Crum v. Thornsbury and McComas, Case No. 15-1131, and Crum v. Hubbard, 15-1219, 

are addressed in a single memorandum decision published contemporaneously with the instant 

memorandum decision. 

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