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Westfall v. Estate of Copenhaver

Supreme Court of West Virginia

April 28, 2017

Barbara Westfall, Plaintiff Below, Petitioner
v.
Estate of Elbert R. Copenhaver; Norma F. Simms, individually, and asexecutrix of the Estate of Elbert R. Copenhaver; Geary W. Copenhaver; Judith L. Shaffer; Millennium Management One, Inc. d/b/a Gold Key Realty; Calvin J. Canterbury, individually and d/b/a Gold Key Realty; Runyan & Associates, Inc. d/b/aCentury 21 Runyan & Associates; and Pamela Loftus, Defendants Below, Respondents

         Kanawha County 13-C-1797

          MEMORANDUM DECISION

         Petitioner Barbara Westfall, by counsel Richard A. Monahan, appeals the Circuit Court of Kanawha County's June 3, 2016, order granting summary judgment to respondents. Respondents the Estate of Elbert R. Copenhaver; Norma Simms, individually and as executrix of the Estate of Elbert R. Copenhaver; Geary W. Copenhaver; and Judith L. Shaffer ("the Estate respondents"), by counsel Timothy J. LaFon and Keisha D. May, filed a response in support of the circuit court's order. Respondents Millennium Management One, Inc. d/b/a Gold Key Realty and its real estate agent Calvin J. Canterbury, individually and d/b/a Gold Key Realty ("the Gold Key respondents"), by counsel W. Bradley Sorrells, filed a response in support of the circuit court's order. Respondents Runyan & Associates, Inc. d/b/a Century 21 Runyan & Associates and its real estate agent Pamela Loftus ("the Century 21 respondents"), by counsel David J. Mincer and Andrew R. Herrick, also filed a response in support of the circuit court's order.[1]Additionally, the Court acknowledges the filing of an amicus curiae brief by the West Virginia Association of Realtors, Inc.

         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.

         The decedent, Elbert R. Copenhaver, owned a home in Elkview, West Virginia. When Mr. Copenhaver passed away in 2007, his daughter, Norma F. Simms, was appointed executrix of his estate. Ms. Simms, who never resided in the home at issue, engaged the Gold Key respondents to list the property pursuant to a standard listing agreement in September of 2010.[2]As part of a written disclosure as part of the real estate sales process, Ms. Simms indicated there were no hazardous conditions such as a landfill or expansive soil. Petitioner and her husband drove by the property and saw a "for sale" sign, so they stopped and walked around the property. Petitioner hired the Century 21 respondents to assist her in purchasing real estate to be used as her residence.[3] She then viewed the property with her brother and Ms. Loftus, including the outside of the property. When petitioner chose to make an offer on the subject property, Ms. Loftus informed her that a home inspection was recommended but not required. However, petitioner chose not to obtain a home inspection due to budgetary concerns. On September 22, 2011, petitioner purchased the property from Ms. Simms, Geary W. Copenhaver, and Judith L. Shaffer, to be used as petitioner's residence.

         On September 20, 2013, petitioner filed a complaint against respondents, asserting claims for intentional, reckless, or negligent fraud; rescission and restitution; breach of contract; and negligence. According to the circuit court, petitioner's claims relate not to the home itself but to the real estate upon which the home sits. Petitioner claims that approximately eight months after she bought the residence and surrounding property, a neighbor showed her a hole under a flowerpot in a portion of the yard that petitioner previously mistakenly believed was owned by that neighbor. Petitioner and her sister then "began investigating the condition of the yard, " including using a metal detector. She alleges that they discovered holes in the ground and "a significant amount of metal [that was] located beneath the surface of the property" which petitioner claims she was unaware of when she purchased the property.

         Petitioner and her sister, Betty J. Hill, discovered leases that demonstrate that from at least the 1930's through the 1950's a company leased the premises from prior property owners. Those leases permitted the company to utilize the property for "any use and purpose [it] may deem necessary or convenient for the handling, storing, pumping and transportation of oil, gas or gasoline" including "the right to lay, repair and remove pipe lines for water, oil, gas or gasoline, in, or over the property." Petitioner's expert, Dean E. Dawson, includes with his report a photograph from the multiple listing service ("MLS") listing that the circuit court clearly shows a hole in the ground that would be obvious to a casual observer and easily discoverable by anyone walking on the property in the vicinity of the hole. Petitioner alleged that the photograph established that the Gold Key respondents had knowledge of at least one large, hazardous hole on the property. Because the picture was available to all realtors, petitioner asserted that, her agents, the Century 21 respondents, also had knowledge of that hole. She also alleged that the open and obvious hole should have led the real estate companies and agents to question the sellers' written disclosures or to conduct a more thorough inspection and investigation of the property. Further, she argues that they should have disclosed the existence of that hazardous condition to any potential buyers and their agents.

         Respondents filed motions for summary judgment, which petitioner opposed. In its June 3, 2016, order granting summary judgment to respondents, the circuit court stated that while petitioner pointed to the written disclosure regarding hazardous conditions for her detrimental reliance claim, she readily admitted in her deposition that she did not rely on the same in purchasing the property. The circuit court also pointed to petitioner's admission that she had free access to the property, including the ability to walk on the property without restriction. Further, she stated that she did not have any communication with the Gold Key respondents prior to closing. She also testified that she did not check any public records to determine whether there were any leases, liens, or other encumbrances on the property prior to purchase. Petitioner hired Robert H. Skeen Jr. to perform a title search, and that report informed petitioner there were no problems or impediments to the title, including the language that the title is free and clear. That opinion does not mention gas or oil leases, but it did note certain reservations of things that were not looked into or addressed.

         The circuit court concluded that there was no genuine issue of material fact with respect to petitioner's fraud claim against the Estate respondents. It also found that there was no claim that the real estate respondents engaged in any affirmative conduct that would constitute fraud. After analyzing the facts and evidence before it, the circuit court concluded that there was no genuine issue of material fact and petitioner's fraud claim against the real estate respondents must fail as a matter of law. The circuit court further determined that petitioner's claims for rescission and restitution as a remedy for the alleged misrepresentations or omissions fail as a matter of law.

         In addressing petitioner's breach of contract claim, the circuit court found that the real estate respondents were not parties to the purchase agreement. It also held that there was no genuine issue of material fact with regard to petitioner's breach of contract claim as to respondents. Finally, it found that there was no genuine issue of material fact with regard to petitioner's negligence claim. Specifically, the circuit court concluded that the real estate brokers and agents "were under no duty to independently inspect the property" and "assuming that the complained of conditions substantially affect the value or habitability of the Property, [respondents] still did not have a duty to disclose such conditions as [petitioner] could have discovered the same had she engaged in a reasonably diligent inspection." With regard to the alleged negligence of the Estate respondents, the circuit court found that they were under a duty to disclose defects or conditions which substantially affect the value or habitability of the property if such defects or conditions were known to them, unknown to the purchaser, and if such defects and conditions would not be disclosed by a reasonably diligent inspection. It further found that if the Estate respondents "were aware of the complained of conditions, they did not have a duty to disclose the same as the conditions could have been, and were, discovered by [petitioner] upon a reasonably diligent inspection." Petitioner appeals from that order.

A circuit court's entry of summary judgment is reviewed de novo, see Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994); Drewitt v. Pratt, 999 F.2d 774, 778 (4th Cir.1993); and, therefore, we apply the same standard as a circuit court. Helm v. Western Maryland Ry. Co., 838 F.2d 729, 734 (4th Cir.1988).

Williams v. Precision Coil, Inc., 194 W.Va. 52, 58, 459 S.E.2d 329, 335 (1995).

         On appeal, petitioner sets forth five assignments of error. Because the first three assignments of error relate to the alleged concealment of holes on the property and petitioner's reliance on the seller's disclosures regarding the same, we will address these alleged errors jointly. These three assignments of error as set forth by petitioner are as follows: 1) The circuit court committed reversible error in failing to recognize that the Estate respondents concealed at least two holes in the home's yard, thereby preventing their disclosure by a reasonably diligent inspection; 2) The circuit court committed reversible error in failing to consider petitioner's affidavit which establishes that someone had concealed (but not repaired/cured) the hole in the yard that was shown in the photograph attached to the MLS listing so that it was not immediately visible even when she did thoroughly inspect the real estate subsequent to its purchase; and 3) The circuit court committed reversible error in failing to consider that despite the plaintiff's confusion during her deposition about when she received the "Seller's Property Condition Disclosure Form, " her signature on the document supports that she actually received and relied upon the disclosure prior to the closing on the real estate. In this regard, petitioner asserts that the circuit court further committed reversible error by failing to recognize that when a seller makes a representation to the buyer that no hazardous condition exists on the property, the buyer is entitled to rely upon such representation and need not make the same degree of diligent inspection of the property that might otherwise be required.

         Petitioner asserts that genuine issues of material fact exist which prevent the entry of summary judgment under either theory of fraud - misrepresentation or fraudulent concealment. Petitioner admits that while one hole was evident in the listing photograph, she did not discover a second hole until months after she purchased the property due to its concealment by a flower pot. In support of her contention, she points to her affidavit submitted to the circuit court, though she contends that the circuit court failed to consider that affidavit. In addition, she looks to the "Seller's Property Condition Disclosure Form" wherein the Estate respondents indicated that they were not aware of any hazardous ...


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