Tracy Banh, by counsel Peter D. Dinardi, appeals the Circuit
Court of Harrison County's November 2, 2016, order
granting summary judgment in favor of respondent David Doan.
Respondent, by counsel Debra Tedeschi Varner, James N. Riely,
and Stanley A. Heflin III, filed a response. Petitioner filed
a reply. On appeal, petitioner argues that the circuit court
erred in granting respondent's renewed motion for summary
judgment because genuine issues of material fact existed.
Petitioner also argues that the circuit court erred in
denying her a sufficient amount of time to respond to the
renewed motion for summary judgment and granting respondent
leave to file the renewed motion.
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.
and respondent have been in a close personal relationship
since approximately 1990 and began living together in
Bridgeport, West Virginia, in 2000. Some time prior to
October of 2013, the parties jointly owned a business called
Exotic Nails & Spa, LLC ("Exotic Nails"),
located in the Meadowbrook Mall in Bridgeport. In October of
2013, the parties ceased their personal relationship when
petitioner moved out of their shared residence.
October 22, 2013, the parties signed a notarized sales
agreement that transferred petitioner's ownership in
Exotic Nails to respondent for $50, 000. During the
proceedings below, respondent continued to own and operate
the business. During the proceedings, petitioner admitted
that she signed the notarized sales agreement. Respondent
also had complete ownership of certain real property located
in Orange County, California, that was deeded to him in a
signed and notarized inter-spousal grant deed that petitioner
also admitted to signing. Additionally, the parties
previously owned another business called Elevation Hair and
Nails ("Elevation") that they sold to Theresa Vest
and others for $120, 000. The parties shared in the proceeds
of that sale.
of 2015, petitioner filed a complaint against respondent and
alleged the following causes of action: (1) breach of an
implied contract and/or contract in fact with respect to
ownership of Exotic Nails; (2) fraud in obtaining ownership
of Exotic Nails; (3) conversion of the proceeds of the sale
of Elevation; and (4) fraud in obtaining ownership of the
Orange County property. Thereafter, respondent filed a motion
for summary judgment, which the circuit court denied by order
entered on June 24, 2016.
additional discovery, including petitioner's depositions
of several of respondent's fact witnesses, respondent
filed a motion for leave to file his renewed motion for
summary judgment on August 26, 2016. On August 30, 2016, the
circuit court granted respondent leave to file the renewed
motion, directed that he do so immediately, and further
directed petitioner to respond by noon on Friday, September
2, 2016. Respondent filed his renewed motion on August 30,
2016, and submitted his supplemental deposition testimony in
support thereof the following day, as directed. Petitioner
submitted her response on September 2, 2016. Thereafter, the
circuit court granted respondent's renewed motion for
summary judgment by order entered on November 2, 2016. It is
from this order that petitioner appeals.
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). Our review
is guided by the principle that
"'[a] motion for summary judgment should be granted
only when it is clear that there is no genuine issue of fact
to be tried and inquiry concerning the facts is not desirable
to clarify the application of the law.' Syllabus Point
3, Aetna Casualty & Surety Co. v. Federal Insurance
Co. of New York, 148 W.Va. 160, 133 S.E.2d 770
(1963)." Syllabus Point 1, Andrick v. Town of
Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).
Painter, 192 W.Va. at 190, 451 S.E.2d at 756, Syl.
Pt. 2. Furthermore,
"[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, such as where the nonmoving
party has failed to make a sufficient showing on an essential
element of the case that it has the burden to prove."
Syllabus point 4, Painter v. Peavy, 192 W.Va. 189,
451 S.E.2d 755 (1994).
Syl. Pt. 5, Toth v. Bd. of Parks & Recreation
Comm'rs, 215 W.Va. 51, 593 S.E.2d 576 (2003). Upon
our review, we find no error below.
appeal, petitioner argues that summary judgment was improper
because the following issues of material fact existed: (1)
whether respondent paid petitioner for her interest in Exotic
Nails; (2) if petitioner was paid, in what manner was she
compensated; (3) if petitioner was not paid, did such act
void the conveyance of her interest in the business; (4)
whether respondent committed fraud or misrepresentation
against petitioner based on her alleged lack of compensation;
(5) whether an implied partnership existed between the
parties and, if so, what were the duties and obligations of
each upon dissolution; (6) whether the circuit court ignored
the relationship between the parties; (7) whether respondent
was guilty of wrongful conversion of the money due to
petitioner under the contract for Elevation's sale; (8)
whether respondent made fraudulent misrepresentations to
petitioner in order to obtain her signature on the document
conveying her interest in Exotic Nails; and, (9) whether
petitioner relied upon these misrepresentations to her
detriment. However, petitioner fails to recognize that, as
the circuit court correctly found, there is no evidence to
support any of these claims.
appeal to this Court, petitioner fails to demonstrate that
there is any evidence to support her claim that genuine
issues of material fact existed below. In addressing ...