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