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Banh v. Doan

Supreme Court of West Virginia

October 23, 2017

Tracy Banh, Plaintiff Below, Petitioner
v.
David Doan, Defendant Below, Respondent

         Harrison County 2015-C-196-2

          MEMORANDUM DECISION

         Petitioner 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.

         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.

         Petitioner 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.

         On 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.

         In May 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.

         Following 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.

         "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). 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.

         On 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.

         On 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 ...


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