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Taft v. Kolodney

Supreme Court of Appeals of West Virginia

September 9, 2019

Robert B. Taft and Louise Price Taft, Plaintiffs Below, Petitioners
v.
Michael Kolodney, M.D., Defendant Below, Respondent

          (Monongalia 17-C-61)

          MEMORANDUM DECISION

         Petitioners Robert B. Taft and his mother, Louise Price Taft, by counsel Jacques R. Williams, appeal the March 23, 2018, order of the Circuit Court of Monongalia County that granted Respondent Dr. Michael Kolodney's motion for summary judgment, and denied the petitioners' motion for partial summary judgment in this case regarding respondent's revocation of his offer to purchase real estate from petitioners. Respondent, by counsel Stephen G. Higgins, Matthew D. Elshiaty, and Lindsay Gainer, filed a response in support of the circuit court's order. Petitioners 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.

         In 2016, Petitioner Robert B. Taft, Jr. ("Mr. Taft") and his mother, Petitioner Louise Price Taft ("Mrs. Taft"), co-owned a house in Monongalia County. In the fall of 2016, the Tafts entered into a contract to sell their house to Dr. Martin and Dr. Layne (the "doctors") for $1.345 million. At the time, Respondent Michael Kolodney, M.D., was leasing the Tafts's house. Dr. Kolodney told the Tafts he would like to buy the house or extend his lease at a higher monthly rent. Mr. Taft claims he told Dr. Kolodney that he and his mother were under contract to sell the house to the doctors, but were concerned the doctors would not close on the purchase by the agreed date. The Tafts also claim Dr. Kolodney agreed to be a backup purchaser for $1.395 million, of which $50, 000 would be payable as an earnest money deposit. Dr. Kolodney's attorney, Robert D. Berryman, prepared a contract specifying a three-day acceptance period, the purchase price, and a $50, 000 earnest money deposit. The contract also expressly provided that Dr. Kolodney was a secondary or backup buyer in light of the doctors' primary contract.

         On Thursday, December 22, 2016, the doctors asked the Tafts for permission to conduct an additional inspection of the house. Fearing a delay of sale, the Tafts declined the request. The next day, December 23, 2016, at approximately 3:00 p.m., Dr. Kolodney delivered to the Tafts's attorney, Jacques Williams, a contract to purchase the house and a personal check for the $50, 000 earnest money deposit. Dr. Kolodney notified Mr. Taft that he had delivered the contract and earnest money deposit to the Tafts's attorney. Mr. Taft claims that, based on Dr. Kolodney's actions, he decided to have no further negotiations with the doctors. Dr. Kolodney counters that Mr. Taft told him as early as December 19, 2016, that he did not intend to contract with the doctors.

         At about 5:00 p.m. that same day, Friday, December 23, 2016, Dr. Kolodney told his attorney that he had reconsidered and no longer wanted to purchase the Tafts's house. Six minutes later, at 5:06 p.m., Dr. Kolodney's attorney sent an e-mail to the Tafts's attorney revoking Dr. Kolodney's offer. However, due to the Christmas holiday, the Tafts's counsel did not see the email revoking Dr. Kolodney's offer until Monday, December 26, 2016.

         On Saturday, December 24, 2016, the doctors also terminated their contract to purchase the Tafts's house. That same day, Mr. Taft signed Dr. Kolodney's purchase contract. Mrs. Taft signed the contract the next day, December 25, 2016. It is uncontested that the Tafts signed the purchase contract within the three-day acceptance period provided in the contract.

         The Tafts claim Mr. Taft had multiple text-based conversations with Dr. Kolodney on December 23, 24, and 25, 2016, but that Dr. Kolodney never told Mr. Taft that he (Dr. Kolodney) had revoked the contract. On Sunday, December 25, 2016, Dr. Kolodney texted a new purchase offer to Mr. Taft that was contingent upon numerous new terms and was open only until the end of the day. However, the day ended without any agreement between the parties. On Monday, December 26, 2016, Dr. Kolodney stopped payment on his $50, 000 check for the earnest money deposit.

         The Tafts filed this action against Dr. Kolodney on February 8, 2017. Following discovery, the Tafts filed a motion for partial summary judgment in which they argued that Dr. Kolodney forfeited his $50, 000 earnest money deposit when he breached the contract to buy the Tafts's house. Dr. Kolodney responded with his own motion for summary judgment claiming that he lawfully revoked his offer to purchase the Tafts's house before the Tafts accepted the offer, and that the Tafts failed to prove that the offer was not revocable.

         On March 23, 2018, the circuit court granted Dr. Kolodney's motion for summary judgment. The circuit court found (1) the terms of Dr. Kolodney's offer to purchase the Tafts's house made the offer revocable until the Tafts accepted it; (2) before the Tafts accepted Dr. Kolodney's offer, Dr. Kolodney withdrew it; and (3) the Tafts failed to demonstrate that the offer was not revocable. The circuit court also denied the Tafts's motion for partial summary judgment regarding their claim that Dr. Kolodney forfeited his earnest money deposit when he revoked his offer. The circuit court concluded that in the absence of an offer, there could be no contract; and in the absence of a contract, there could be no default. By order entered May 10, 2018, the circuit court directed that its March 23, 2018, order would be a final judgment within the meaning and scope of Rule 54(b) of the West Virginia Rules of Civil Procedure.

         The Tafts now appeal. "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).

         The Tafts raise four assignments of error on appeal. The Tafts first argue that, based on the language in the contract's first and twelfth paragraphs, the circuit court erred in ruling Dr. Kolodney's purchase offer was unconditionally revocable within the three-day offer period. The first paragraph of the parties' contract provides:

(1) OFFER AND ACCEPTANCE: Upon the signing hereof by Purchaser, this instrument shall constitute an offer to purchase and shall terminate or may be withdrawn unless accepted by the Seller within the time period herein stipulated ...

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