Mark C. Busack, Plaintiff Below, Petitioner
West Rentals, Inc., Defendant Below, Respondent
Mark C. Busack, pro se, appeals the June 24, 2016, order of
the Circuit Court of Ohio County awarding summary judgment to
Respondent West Rentals, Inc. in his civil action stemming
from a land installment contract that was later terminated by
the parties. Respondent, by counsel David L. Wyant, filed a
response in support of the circuit court's order.
Petitioner filed a reply.
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.
number of years, petitioner rented a property known as 260
Bethany Pike, Wheeling, West Virginia, from respondent.
Petitioner operated a fraudulent scheme from 260 Bethany
Pike, for which he later pled guilty to five offenses under
the United States Code. Busack v. United States, Civil
Action No. 5:15CV151, 2016 WL 7441680, at *1 (N.D.W.Va.
December 27, 2016) (unpublished) (denying post-conviction
relief). Consequently, petitioner is currently serving a
sentence of thirty-five months of incarceration imposed by
the United States District Court for the Northern District of
West Virginia. Id.
to the initiation of petitioner's federal criminal case,
the parties executed an installment land contract on July 24,
2013, for petitioner to purchase 260 Bethany Pike along with
another property known as 375 Oglebay Drive, Wheeling, West
Virginia. According to petitioner, respondent wanted to
unload 375 Oglebay Drive on him due to an undisclosed defect
(a ground slip). The installment land contract provided that
ownership of the properties would not transfer to petitioner
until "all the obligations of [petitioner had] been
fulfilled." While petitioner was fulfilling his
obligations under the contract, the agreement restricted his
ability to assign his contractual rights and to lease the
properties as follows:
No Assignment: Leases. [Petitioner] shall not assign
or delegate any of [his] rights or responsibilit[ies] under
this agreement, in whole or in part, nor shall possession of
the property be transferred to any other party (other than
ordinary commercial leases in the ordinary course of
business, as provided in the next paragraph), without prior
written consent of [respondent].
With respect to commercial leases, so long as [petitioner] is
not in default of [his] obligations under this agreement or
the [n]ote, [petitioner] shall have the right to lease the
property, in whole or in part[, ] to reasonable commercial
tenants acceptable to [respondent], whose consent shall not
be unreasonabl[y] withheld. . . .
of 2015, by which time petitioner was awaiting sentencing in
his federal criminal case, the parties executed a termination
of installment land contract and agreement ("termination
agreement"). The June 8, 2015, termination agreement
"terminated, cancelled, and rescinded" the July 24,
2013, installment land contract and relieved petitioner from
paying any additional real estate taxes and fire service fees
with regard to 260 Bethany Pike and 375 Oglebay Drive. The
parties further agreed that respondent would return the
installment payment for June of 2015 to petitioner and that
petitioner was due no other monies with regard to the
termination of the installment land contract.
January 29, 2016, petitioner filed a complaint in the Circuit
Court of Ohio County alleging that respondent failed to
disclose the ground slip at 375 Oglebay Drive prior to the
execution of the July 24, 2013, installment land contract,
which "[made] it difficult[, ] if not impossible[, ] to
sell [375 Oglebay Drive] because of the pre-existing
condition." Nowhere in his complaint did petitioner
acknowledge the existence of the June 8, 2015, termination
agreement. However, respondent filed an answer on March 16,
2016, that asked that petitioner's complaint be dismissed
for a failure to state a claim on which relief could be
granted. Then, on June 22, 2016, respondent filed a motion
for summary judgment with the installment land contract and
the termination agreement attached as exhibits.
order entered on June 24, 2016, the circuit court awarded
respondent summary judgment in the underlying civil action.
The circuit court found that (1) pursuant to the contractual
terms, petitioner never had ownership of 375 Oglebay Drive or
the right to sell that property during the time in which the
installment land contract was in effect; and (2) petitioner
relinquished all rights he had under the contract in the
parties' June 8, 2015, termination agreement, which
"terminated, cancelled, and rescinded" the prior
agreement. In making its ruling, the circuit court found that
petitioner failed to acknowledge the parties' June 8,
2015, termination of the July 24, 2013, installment land
contract in his complaint.
now appeals from the circuit court's June 24, 2016,
order, awarding summary judgment to respondent. "A
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). Rule 56(c)
of the West Virginia Rules of Civil Procedure provides that
summary judgment shall be granted provided that "there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." In syllabus point 4 of Painter, we held
that "[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[.]" 192 W.Va. at 190, 451
S.E.2d at 756.
appeal, petitioner concedes that the parties executed the
June 8, 2015, termination agreement. However, petitioner
attempts to evade the circuit court's findings based on
the installment land contract's termination by alleging
that (1) respondent breached the provisions of the
termination agreement regarding the continuation of
petitioner's tenancy at 260 Bethany Pike thereby leaving
the installment land contract in full force and effect; and
(2) respondent coerced him into executing the termination
agreement by harassing him about the possible consequences of
his federal criminal case. Respondent counters that we should
decline to consider these allegations because petitioner
failed to raise them with the circuit court.
contends that he did not have sufficient time to raise the
issue of the termination agreement's validity because the
circuit court improperly granted summary judgment only two
days after respondent filed its motion. In Williams v.
Precision Coil, Inc., 194 W.Va. 52, 61, 459 S.E.2d 329,
338 (1995), we found that a party opposing a motion for
summary judgment should be allowed an adequate time to
respond. However, under the facts and circumstances of this
case, assuming arguendo that the circuit court's failure
to wait for a response by petitioner constituted error, we
find that any such error was harmless for reasons explained
below. See Rule 61, W.V.R.Civ.P. (providing that
"[t]he court at every stage of the proceeding must
disregard any error or defect in the proceeding which does
not affect the substantial rights of the parties.").
correctly found by the circuit court in its summary judgment
order, petitioner omitted all reference to the 2015
termination agreement from his complaint. That omission from
petitioner's complaint was significant: an
acknowledgement of the 2015 termination agreement's
existence would have alerted the circuit court to the
possibility that the complaint was a baseless pleading
because that agreement "terminated, ...