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Busack v. West Rentals, Inc.

Supreme Court of West Virginia

November 17, 2017

Mark C. Busack, Plaintiff Below, Petitioner
v.
West Rentals, Inc., Defendant Below, Respondent

         Ohio County 16-C-46

          MEMORANDUM DECISION

         Petitioner 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 that sought the return of personal property left at the real property that he was formerly renting or its monetary value. Respondent, by counsel David L. Wyant, filed a response in support of the circuit court's order. Petitioner filed a reply.

         The 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 is a federal inmate and a former business owner. For a 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.[1] 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 December 27, 2016) (unpublished) (denying post-conviction relief).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.

         In June of 2015, by which time petitioner was awaiting sentencing in his federal criminal case, the parties agreed that petitioner would continue to rent the first floor of 260 Bethany Pike ("the premises") from June 1, 2015, to May 31, 2016, for a delicatessen business for $1, 080 per month. The lease that petitioner signed and returned to respondent's offices provided for a $125 late fee if he failed to make the monthly rent payment on time. The lease further provided that the failure to pay rent would cause petitioner to be in default of his obligations thereunder. As for the termination of petitioner's tenancy, the lease language was as follows:

Provided [petitioner] is not in default at the termination of this lease, [petitioner] shall have the right to remove all of [his] property and fixtures on the demised [p]remises provided that such remov[al] is accomplished prior to the end of the term of any renewal or extension thereof and further provided that any damage to the demised [p]remises occasioned by said removal is fully repaired. All of [petitioner]'s personal property not removed from the demised [p]remises when [petitioner] leaves the [p]remises shall be conclusively presumed to have been abandoned by [petitioner] and shall forthwith become [respondent]'s property.

         Petitioner became incarcerated as a result of his federal convictions on October 15, 2015, but paid his rent for October of 2015. However, by letter dated November 30, 2015, respondent informed petitioner that the rent for November of 2015 had not been paid because his check was returned to respondent pursuant to a stop payment order. Consequently, respondent found petitioner in default of his obligation to pay rent. Respondent stated that petitioner must pay rent owed for both November and December of 2015, plus the $125 late fee for the November rent, by December 15, 2015, or he should consider the letter as a notice of eviction.

         Petitioner replied to respondent by letter dated December 12, 2015. Petitioner stated that he would be "unable to meet [his] rent obligations to [respondent] by December 15, 2012." Petitioner requested an opportunity to have his personal property (including business equipment) retrieved from the premises. According to petitioner, his power of attorney was available to retrieve his personal property if respondent was willing to provide that person with the keys to the premises.

         However, by letter dated February 3, 2016, respondent informed petitioner that, when it contacted the person identified as his power of attorney, "she informed [respondent] that she would not sign, nor be responsible for the removal of [his] items." The lack of a person authorized by petitioner to retrieve his personal property is evidenced by a request that he made to Citizens Bank ("the bank") in January of 2016. In a January 17, 2016, letter to the bank, which had a security interest in certain business equipment, petitioner requested that the bank "contact [respondent] and make arrangements to remove the inventory and dispose of it properly." In making this request, petitioner noted that the Wheeling-Ohio County Health Department was "concerned with the proper disposal of [the] remaining foodstuffs." The record reflects that the bank made no attempt to remove any of petitioner's personal property from the premises. Eventually, respondent disposed of the property that petitioner left at the premises in May of 2016.

         On February 11, 2016, petitioner filed a civil action in the Circuit Court of Ohio County alleging that respondent denied him a reasonable opportunity to retrieve his personal property.[2] As relief, petitioner sought the return of his personal property or its monetary value (which, in his view, included estimated lost profits from his business interests).[3] To his complaint, petitioner attached respondent's November 30, 2015, letter finding him in default and his December 12, 2015, letter to respondent wherein he acknowledged the inability to meet his rent obligations.

         Respondent filed his answer to the complaint on March 9, 2016. On June 24, 2016, respondent filed a motion for summary judgment attaching several documents to its motion, which included the following: (1) the lease signed by petitioner; (2) petitioner's January 17, 2016, letter to the bank requesting that it remove certain items of his personal property from the premises and properly dispose of it; and (3) respondent's February 3, 2016, letter informing petitioner that the person identified by him as his power of attorney refused to retrieve his personal property. By order entered on June 24, 2016, the circuit court awarded summary judgment to respondent, finding that petitioner had no claim against it under the plain and unambiguous language of the lease.[4]

         Petitioner now appeals from the circuit court's June 24, 2016, order, awarding respondent summary judgment. "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 where "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.

         On appeal, petitioner contends that the circuit court erred in relying on the lease to award respondent summary judgment. "A lease is a contract for the possession and profits of lands and tenements on the one side, and the recompense or rents on the other." Headley v. Hoopengarner, 60 W.Va. 626, 635, 55 S.E. 744, 748 (1906) (internal quotations and citations omitted). In Dan Ryan Builders, Inc. v. Nelson, 230 W.Va. 281, 287, 737 S.E.2d 550, 556 (2012), we reiterated that "[t]he elements of a contract are an offer and an acceptance supported by consideration."

         Petitioner admits that he was renting the premises from respondent. Petitioner contends only that he should not be held to the terms of the written lease because he never received a copy back, signed by respondent, after he signed the lease and returned it to respondent's offices. Respondent counters that the absence of a copy of the lease signed by it is ...


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