Dickens v. Sahley Realty Co.
| Decision Date | 06 March 2014 |
| Docket Number | No. 13–0117.,13–0117. |
| Citation | 233 W.Va. 150,756 S.E.2d 484 |
| Parties | David W. DICKENS and Deborah A. Dickens, Plaintiffs Below, Petitioners v. SAHLEY REALTY COMPANY, INC., A West Virginia Corporation, Patrick L. Sterner, Melinda R. Sterner, and WHR Group, Inc., A Foreign Corporation Doing Business in West Virginia, Defendants Below, Respondents. |
| Court | West Virginia Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. “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).
2. “Summary judgment is appropriate if, from the totality of the evidence presented, the record 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.” Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).
3. “Pursuant to the evidentiary rule of res ipsa loquitur, it may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.” Syl. Pt. 4, Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997).
4. “In order to avoid summary judgment or judgment as a matter of law, a plaintiff who seeks to proceed on a theory of res ipsa loquitur must demonstrate each of the three prongs of the test this Court adopted in syllabus point four of Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997), as a predicate to application of the evidentiary rule of res ipsa loquitur.” Syl. Pt. 6, Kyle v. Dana Transport, Inc., 220 W.Va. 714, 649 S.E.2d 287 (2007).
5. “ ‘ .’ .” Syl. Pt. 5, Kyle v. Dana Transport, Inc., 220 W.Va. 714, 649 S.E.2d 287 (2007).
James M. Cagle, Esq., Charleston, WV, for Petitioners.
Jane E. Harkins, Esq., Christopher C. Ross, Beckley, WV, for Respondent Sahley Realty Company, Inc.
Riley J. Romeo, Jr., Esq., Christopher J. Winton, Esq., for Respondents David W. Sterner and Melinda R. Sterner.
R. Vance Golden, III, Esq., for Respondent WHR Group, Inc.
The petitioners, David W. Dickens and his wife, Deborah A. Dickens, appeal from the January 8, 2013, final order of the Circuit Court of Putnam County granting summary judgment in favor of the respondents (defendants below), Sahley Realty Company, Inc., (“Sahley”), Patrick L. Sterner and his wife, Melinda R. Sterner (jointly referred to as “the Sterners”), and WHR Group, Inc. (“WHR”), and dismissing the action, with prejudice, as to all counts, counterclaims, crossclaims, and third-party claims. The petitioners assert that there are disputed material facts and, therefore, the circuit court erred by granting summary judgment. Upon our consideration of the appendix record in this matter, the briefs and arguments of the parties, the applicable legal authority, and for the reasons discussed below, we affirm the circuit court's final order.
In 1999, during the development of a subdivision known as Rosehill Acres–Section Three (the “Subdivision”) located in Putnam County, West Virginia, Sahley, the Subdivision developer, caused a retention pond to be constructed in the Subdivision for the purpose of catching water runoff from the Subdivision pursuant to the requirements of the Putnam County Planning Commission. The appendix record contains a Subdivision plat which reflects that this retention pond covers 0.696 acres. The eastern side of this particular retention pond shares a common boundary line with Lot 329 in the Subdivision.
In 2005, Sahley sold Lot 329 to Terlin Enterprises, LLC (“Terlin”), which subsequently constructed a house on the property. Terlin sold the property to the Sterners by deed dated May 19, 2006. A little over a year later,1 the Sterners relocated out-of-state for Mr. Sterner's employment purposes. As an employee benefit, Mr. Sterner's new employer contracted with WHR, an employee relocation company, to handle the sale of the Sterners' home.
On May 6, 2008, the petitioners entered into a contract to purchase Lot 329. 2 Prior to purchasing the property, in addition to performing their own personal inspection, the petitioners retained a company that performed an independent inspection of the premises.3 As a result of that professional inspection, the petitioners requested that several repairs be completed as a condition to their purchase of the property. None of these repairs involved the adjacent retention pond, although exterior regrading and landscaping work was performed. Following the completion of the repairs at a cost of more than four thousand dollars, the petitioners accepted the repair work performed. Thereafter, as a condition of the property closing, the petitioners signed a Release Agreement (“Release”) 4 and, by deed dated September 27, 2007,5 acquired Lot 329. The petitioners did not discuss the retention pond with the Sterners or WHR before they purchased the subject property.
The petitioners state that in July 2010 they discovered through conversations with neighbors that a problem existed with the eastern wall of the retention pond adjacent to their property. The petitioners refer to minutes from a November 3, 2005, meeting of the Subdivision's Homeowners Association (“HOA”) which state, in part, “[c]oncern about the pit in back caving in[ ]” and to minutes from the HOA's November 20, 2006, meeting during which concerns regarding “pits” and “steps to take regarding the pit and slippage” were discussed.6 Although the petitioners did not have Lot 329 surveyed prior to purchasing it, they contend they had it surveyed in July 2010, and that this survey showed the retention pond had encroached upon their property. The petitioners never produced a survey in response to the respondents' discovery requests seeking the same but, in September 2012, their counsel invited the respondents' respective counsel to visit the property to observe the survey stakes.7
On August 10, 2011, the petitioners instituted the instant action against Sahley, WHR, and the Sterners through which they asserted claims for fraud, constructive fraud, negligence, and breach of implied contract. 8 The petitioners essentially alleged that a “slip” occurred on the east side of the retention pond prior to their purchase of Lot 329, which allowed the pond to cross the common boundary line onto their property.
On April 27, 2012, a hearing was held before the circuit court on WHR's motion to dismiss and the Sterners' motion for summary judgment. In advance of this hearing, the petitioners' counsel filed an affidavit pursuant to Rule 56(f) of the West Virginia Rules of Civil Procedure, averring that summary judgment should not be granted because discovery was incomplete and that the petitioners would direct discovery to those neighbors with purported knowledge that a slip occurred in the boundary of the retention pond during the Sterners' ownership of the property. By order dated June 12, 2012, the circuit court denied the dispositive motions citing the procedural state of the case and the need for discovery.9 Thereafter, the petitioners did not seek to discover any information from the respondents, nor did they disclose experts in compliance with the circuit court's scheduling order.10 The petitioners did answer the respondents' discovery requests directed to them.
On October 26, 2012, the circuit court held a hearing on all outstanding dispositive motions.11 On the eve of this hearing, the petitioners filed a supplemental response to Sahley's motion for summary judgment relying for the first time upon the doctrine of res ipsa loquitur. They argued that under this doctrine, the retention pond was negligently constructed and/or repaired by Sahley and that its condition could not exist without Sahley's negligence.12 Neither prior to nor during this hearing did the petitioners present any depositions, expert witness reports, or any affidavits, other than their own, to resist the summary judgment motions,13 and, during the summary judgment hearing, upon direct questioning by the circuit judge, the petitioners' counsel affirmed that they would be relying on res ipsa loquitur to sustain their claims.
On January 8, 2013, the circuit court entered a Final Order of Dismissal Based on Summary Judgment. The circuit court found, inter alia, that the petitioners had set forth no evidence of their damages 14 and “no evidence of current instability in the pond[ ] ... [which] remains today as it was at the time of the conveyance to [the petitioners].” The circuit court noted that the petitioners' pretrial memorandum listed the doctrine of res ipsa loquitur as the only contested negligence issue,15 but concluded that res ipsa loquitur
was inapplicable because the petitioners failed to provide evidence that the retention pond had, in fact, moved or circumstantial evidence of the respondents' negligence.16 The circuit court further found that the Sterners and WHR had not breached an implied contract because the petitioners received the benefit of their bargain for...
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