Holbrook v. Holbrook

• Decision Date: 17 July 1996
• Docket Number: No. 23107,23107
• Citation: 196 W.Va. 720,474 S.E.2d 900
• Court: West Virginia Supreme Court
• Parties: Edwina T. HOLBROOK, Plaintiff Below, Appellant, v. Arthur M. HOLBROOK, Jr., and Gladys J. Holbrook, Defendants Below, Appellees.

Page 900

474 S.E.2d 900

196 W.Va. 720

Edwina T. HOLBROOK, Plaintiff Below, Appellant, v. Arthur M. HOLBROOK, Jr., and Gladys J. Holbrook, Defendants Below, Appellees.

No. 23107.

Supreme Court of Appeals of West Virginia.

Submitted May 2, 1996.

Decided July 17, 1996.

[196 W.Va. 721] Syllabus by the Court

1. "Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W.Va. 770, 461 S.E.2d 516 (1995).

2. "The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless

[196 W.Va. 722] it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957)." Syl. pt. 3, Chapman v. Kane Transfer Company, 160 W.Va. 530, 236 S.E.2d 207 (1977)

3. "The statute of frauds, as applicable to contracts for the sale or lease of land, is a procedural bar to prevent enforcement of oral contracts unless the conditions expressed in W.Va.Code, 36-1-3, are met. The operation of the statute of frauds goes only to the remedy; it does not render the contract void." Syl. pt. 3, Timberlake v. Heflin, 180 W.Va. 644, 379 S.E.2d 149 (1989).

4. "When there has been a part performance of a contract for the sale of land by the purchaser being put into possession of the property, and payment of the purchase money, or a part thereof, and an offer to pay the residue according to contract, and valuable improvements have been [made] on the land by the purchaser on faith of the contract, the Statute of frauds cannot be successfully pleaded in bar to the performance in a Court of Equity." Syl. pt. 1, Lowry v. Buffington, 6 W.Va. 249 (1873).

Charles A. Kiser, Robert E. Barrat, Martinsburg, for Appellant.

Michael D. Lorensen, Bowles Rice McDavid Graff & Love, Martinsburg, for Appellees.

PER CURIAM:

This action is before this Court upon an appeal from the final order of the Circuit Court of Berkeley County, West Virginia, entered on August 23, 1994. Pursuant to that order, the circuit court dismissed the complaint of the appellant, Edwina T. Holbrook, against the appellees, Arthur M. Holbrook, Jr., and Gladys J. Holbrook, in an action in which the appellant sought specific performance to compel the appellees to convey to her a certain interest in real property. The dismissal of the complaint was upon a motion filed by the appellees pursuant to W.Va.R.Civ.P. 12(b)(6).

This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons stated below, this Court holds that the dismissal of the complaint was error, and this action is remanded to the circuit court for further proceedings.

FACTS

In June 1985, the appellees purchased a parcel of real property in Arden District, Berkeley County, consisting of 3.978 acres. By deed dated June 13, 1985, the appellees conveyed one acre of that parcel to their son, Arthur M. Holbrook III. A home was constructed upon the one acre which later became the marital domicile of the appellees' son and the appellant.

As alleged in the complaint, prior to the marriage of the appellees' son and the appellant, the appellees orally agreed to convey the remaining 2.978 acres to the son and the appellant for $10,000, plus interest. Specifically, the appellees were to convey the acres upon the completion by the son and the appellant of 120 payments of $132.16 each.

The appellees' son and the appellant were married on February 16, 1986. They separated, however, in March 1992 and subsequently obtained a divorce upon the ground of irreconcilable differences. W.Va.Code, 48-2-4 [1981]. As part of the divorce settlement, the appellees' son purchased the appellant's interest in the one-acre parcel, upon which the home was located, for $20,000. Nevertheless, neither the divorce decree entered on June 28, 1994, nor the property settlement agreement incorporated therein, mentioned the 2.978 parcel of real property.

On July 1, 1994, the appellant instituted the underlying action in which she claims entitlement to an undivided one-half interest in the 2.978 acres. Importantly, the complaint alleges that, prior to their separation and divorce, the appellees' son and the appellant That [appellant] and Arthur M. Holbrook III jointly made payments for the purchase of said property, principal and interest, from July 1985 through March 1992 ... [and that] said payments made by the [appellant] and Arthur M. Holbrook III were received and accepted until the parties separated and the said Arthur M. Holbrook III left the marital domicile; that from April 1992 through September 1992 the [appellant] continued to make the said payments to the Defendants, but the Defendants refused to cash or negotiate the check funded them by the [appellant].

[196 W.Va. 723] made substantial payments to the appellees for the property. As the complaint states:

In the complaint, the appellant asked the circuit court to permit her to pay any unpaid sums with regard to the appellees' agreement to sell the 2.978 acres. The appellant concluded the complaint by asking the circuit court to compel the appellees to convey to her an undivided one-half interest in the 2.978 acres.

In response, the appellees filed a motion to dismiss the complaint pursuant to W.Va.R.Civ.P. 12(b)(6), alleging that, inasmuch as the action involved an oral agreement for the sale of land, the agreement was unenforceable pursuant to this State's statute of frauds, W.Va.Code, 36-1-3 [1931]. As reflected in the final order of August 23, 1994, the circuit court agreed with the appellees and dismissed the complaint. This appeal followed.

STANDARD OF REVIEW

Rule 12(b)(6) of the West Virginia Rules of Civil Procedure authorizes the dismissal of a complaint for "failure to state a claim upon which relief can be granted." Such a dismissal is, of course, subject to review by this Court. In particular, as we stated in syllabus point 2 of State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W.Va. 770, 461 S.E.2d 516 (1995): "Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." See also West Virginia Human Rights Commission v. Garretson, 196 W.Va. 118, 123, 468 S.E.2d 733, 738 (1996); syl. pt. 2, Randolph County Board of Education v. Adams, 196 W.Va. 9, 467 S.E.2d 150 (1995).

Moreover, this Court, in syllabus point 3 of Chapman v. Kane Transfer Company, 160 W.Va. 530, 236 S.E.2d 207 (1977), held: "The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957)." See syl. pt. 1, Sesco v. Norfolk and Western Railway, 189 W.Va. 24, 427 S.E.2d 458 (1993); syl. pt. 2, Dunlap v. Hinkle, 173 W.Va. 423, 317 S.E.2d 508 (1984); syl., Flowers v. City of Morgantown, 166 W.Va. 92, 272 S.E.2d 663 (1980). See also, syl. pt. 4, United States Fidelity and Guaranty v. Eades, 150 W.Va. 238, 144 S.E.2d 703 (1965), indicating that only matters contained in the pleading may be considered on a motion to dismiss under W.Va.R.Civ.P. 12(b); 6A M.J. Dismissal, Discontinuance and Nonsuit § 12 (Michie 1991); Lugar & Silverstein, West Virginia Rules of Civil Procedure, p. 101-103 (Michie 1960); 5A Wright & Miller, Federal Practice and Procedure § 1357 (West Publishing Co. 1990).

STATUTE OF FRAUDS

This State's statute of frauds, embodied in W.Va.Code, 36-1-3 [1931], provides:

No contract for the sale of land, or the lease thereof for more than one year, shall be enforceable unless the contract or some note or memorandum thereof be in writing and signed by the party to be charged thereby, or by his agent. But the consideration need not be set forth or expressed in the writing, and it may be proved by other evidence.

In Timberlake v. Heflin, 180 W.Va. 644, 648, 379 S.E.2d 149, 153 (1989), this Court noted that the underlying purpose of the statute of frauds "is to prevent the fraudulent enforcement of unmade contracts," rather than the legitimate enforcement of contracts which were, in fact, made. As syllabus point 3 of Timberlake observes:

The statute of frauds, as applicable to contracts for the sale or lease of land, is a procedural bar to prevent enforcement of oral contracts unless the conditions expressed in W.Va.Code, 36-1-3, are met. The operation of the statute of frauds goes only to the remedy; it does not render the contract void.

That distinction between the enforceability and the validity of such contracts, recognized in Timberlake, is consistent with the principle that, in some circumstances, considerations of equity may result in the statute not being imposed. As this Court held in syllabus point 1 of Ross v. Midelburg, 129 W.Va. 851, 42 S.E.2d 185 (1947): "A party to an oral contract for the sale of land, to which the statute of frauds is applicable, may, by conduct on his part, be estopped in equity to assert the statute of frauds as a defense to such contract." See also syl. pt. 2, Meade v. Slonaker, 183 W.Va. 66, 394 S.E.2d 50 (1990); 8B M.J. Frauds, Statute of § 1, et seq. (Michie 1994). One such exception, grounded in equity, is the doctrine of part performance. Bennett v. Charles Corporation, 159 W.Va. 705, 712, 226 S.E.2d 559, 564 (1976); Cottrell v. Nurnberger, 131 W.Va. 391, 410, 47 S.E.2d 454, 463 (1948).

In Ballengee v. Whitlock, 138 W.Va. 58, 63, 74 S.E.2d 780, 784 (1953), this Court stated, generally, that "[i]f there has been part performance of a contract for the sale of real estate, such contract may be enforced." In particular, this Court has recognized that, although the mere payment of the purchase price may not be...