Kidd v. Mull

Decision Date15 March 2004
Docket NumberNo. 31375.,31375.
Citation595 S.E.2d 308,215 W.Va. 151
CourtWest Virginia Supreme Court
PartiesBetty Jo KIDD and James E. Kidd, Plaintiffs Below, Appellants v. W. Quay MULL, II, Mull Realty, WQM Industries, Inc., Teresa Markwas, Individually and as an Agent of Mull Realty, WQM Industries, Inc., and W. Quay Mull, II, Mike Piazza, Individually and as an Agent of Mull Realty, and W. Quay Mull, II, Defendants Below, Appellees.

Ronald Wm. Kasserman, Siebert & Kasserman, L.C., Wheeling, for the Appellants.

Charles J. Kaiser, Jr., Richard N. Beaver, Denise Knouse-Snyder, Phillips, Gardill, Kaiser & Altmeyer, Wheeling, for the Appellees. ALBRIGHT, Justice.

This is an appeal by Betty Jo Kidd and James E. Kidd (hereinafter "Appellants") from a July 22, 2002, final order of the Circuit Court of Marshall County granting summary judgment to W. Quay Mull, II, Mull Realty, WQM Industries, Inc., Teresa Markwas, and Mike Piazza (hereinafter "Appellees"). On appeal, the Appellants contend that the lower court erred by granting summary judgment to the Appellees and that genuine issues of material fact exist with regard to the Appellants' claims of fraud, negligent misrepresentation, and unjust enrichment. Upon thorough review of the briefs, record, arguments of counsel, and applicable precedent, this Court finds that the lower court committed reversible error by granting summary judgment on the fraud and negligent misrepresentation claims. With regard to the grant of summary judgment on the Appellants' unjust enrichment claim, however, we affirm.

I. Factual and Procedural History

This litigation is premised upon circumstances surrounding a lease/purchase agreement signed by the Appellants on property owned by W. Quay Mull, II, at 103 10th Street in Moundsville, West Virginia. Prior to signing the lease/purchase agreement, Teresa Markwas, an employee of WQM Industries, Inc.,1 showed Appellants the property and provided them with a map indicating that the property included riverfront property. Mrs. Kidd testified that Teresa Markwas showed her a property line stake at the edge of the river bank, and Mrs. Kidd further testified that she informed Ms. Mark was that the property would be rented only if it had riverfront access. Ms. Markwas denied that she was told that the lease of the property was dependent upon the riverfront access. Riverfront access was critical to Appellants based upon their intention to build a dock and sell refreshments to pleasure crafts on the Ohio River, by the business name "Captain Jim's" as registered on their business permit. The Appellants testified that they inquired about any surveys of the property and were advised that a survey had recently been done.

The Appellants testified that they were further informed that Mr. Mike Piazza, who had allegedly walked the lines with the surveyor, would meet them to walk the lines of the property. While Mr. Piazza denies showing the property,2 Appellants contend that they met Mr. Piazza, that he walked the lines of the property with them, and that he informed them that the property did include the riverfront area.

The initial lease/purchase agreement dated May 29, 1997, was rescinded3 and replaced with another lease/purchase agreement dated July 29, 1997. Both versions provided that the term of the agreement was June 1, 1997, through May 31, 1998.4 The operative agreement contained a purchase option provision, stating: "This option may be exercised by giving written notice of the exercise to Lessor prior to May 31, 1998." Sometime in May 1998, Appellants orally informed Ms. Markwas that they intended to exercise their purchase option. Ms. Markwas testified that she informed Mr. Mull that Appellants wished to purchase the property. During Appellants' subsequent attempt to obtain financing for the purchase of the property, Appellants were advised that the property did not actually include the riverfront area. Ms. Markwas testified that she had mistakenly believed that the property included the riverfront. When Ms. Markwas contacted Mr. Mull concerning the riverfront portion of the property, Mr. Mull informed her that he thought access to the riverfront was provided by a right of way rather than by ownership in fee simple. When Ms. Markwas thereafter spoke with Mr. Mull's attorney, Mr. C.J. Kaiser, to clarify the issue, Ms. Markwas was informed that the land offered for lease/sale did not contain riverfront access either by right of way or ownership in fee simple. However, the Appellees' title attorney expert witness, Mr. Frederick E. Gardner, later opined that the property included a right of way to the river over property owned by Grave Creek Enterprises.5 Specifically, Mr. Gardner testified: "Well, he may have that right [to build docks], but it's not specifically set forth, and I would, as an attorney, recommend that he either get the permission of Grave Creek Enterprises to build that or to seek a declaratory judgment action in the Circuit Court of Marshall County." There is no indication in the record that Grave Creek Enterprises was contacted regarding the possibility of obtaining permission to build boat docks on its land.

When the bank through which the Appellants had sought a loan discovered that the land might not include riverfront property, it declined the loan based upon concerns with the likely cash flow of the planned business. The Appellants filed a civil action against the Appellees, alleging fraud, negligent misrepresentation, and unjust enrichment from the improvements the Appellants made to the property during the term of the lease. The lower court granted summary judgment in favor of the Appellees on all claims, and the Appellants appeal to this Court.

II. Standard of Review

In syllabus point one of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), this Court stated that "[a] circuit court's entry of summary judgment is reviewed de novo." We have also consistently maintained 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." Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Further, in syllabus point four of Painter, we explained 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, 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." 192 W.Va. at 190, 451 S.E.2d at 756. In syllabus point three of Painter, we stated: "The circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial." Id., 451 S.E.2d at 756.

III. Discussion
A. Claim of Fraud

With regard to the claim of fraud, the Appellants allege that the lower court's grant of summary judgment was improper based upon the following: (1) there is no dispute that misrepresentations were made that the property extended to the riverfront; (2) genuine issues of material fact exist regarding whether the alleged right of way to the river would permit the construction of boat docks at river's edge; (3) genuine issues of material fact exist regarding whether the lease/purchase agreement would have been entered into if the Appellants had known that the property did not included riverfront; (4) genuine issues of material fact exist regarding whether the Appellants were on notice concerning the status of the property; (5) it is uncontested that the Appellants did not have a title search conducted prior to signing the lease/purchase agreements; and (6) Appellants made improvements to the property during the lease period after they decided to exercise their option to purchase. It is also apparent from the record that the evidence is conflicting regarding Appellants' requirements when searching for property and how Appellees responded to Appellants' requirements and inquiries.

In syllabus point one of Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981), this Court explained:

The essential elements in an action for fraud are: "(1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied upon it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied upon it." Horton v. Tyree, 104 W.Va. 238, 242, 139 S.E. 737 (1927).

See also Cordial v. Ernst & Young, 199 W.Va. 119, 483 S.E.2d 248 (1996); Muzelak v. King Chevrolet, Inc., 179 W.Va. 340, 368 S.E.2d 710 (1988). In Lengyel, as in the present case, the appeal involved "questions relating to an action for fraud arising from a real estate transaction and the appropriateness of summary judgment in such a case." 167 W.Va. at 273, 280 S.E.2d at 67. In dealing with issues surrounding the distinction between a "mobile home with additions" and a "modular home," this Court in Lengyel observed:

This alone created a genuine issue of fact. Which was it, a mobile home or a modular home, or are they the same thing? The question cannot be resolved on this record unless you accept the testimony of one party and ignore the testimony of another party. This is not the type of determination to be made on a motion for summary judgment.

Id. at 281, 280 S.E.2d at 71.

In the case sub judice, the existence of the essential elements of an action for fraud, as outlined in Lengyel, can only be determined by resolution of several key factual issues, all ardently disputed by the parties. The parties produced conflicting evidence regarding issues as fundamental as the character of the ownership of the property in question. While the Appellants were informed that the...

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