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.Additionally, the
Court acknowledges the filing of an amicus curiae brief by
the West Virginia Association of Realtors, Inc.
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.
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.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. 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
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
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.
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
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.
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
Williams v. Precision Coil, Inc., 194 W.Va. 52, 58,
459 S.E.2d 329, 335 (1995).
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.
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 ...