Sedlock v. Moyle

• Decision Date: 23 May 2008
• Docket Number: No. 33524.,33524.
• Parties: Elizabeth A. SEDLOCK and Jason Banish, Plaintiffs Below, Appellants v. Thomas MOYLE, Joann Moyle, Marsha Ann Felton, Jean Hollands Worth, Double H. Realty, Inc., a West Virginia Corporation, David A. Romano and Cathy Joey Romano, Defendants Below, Appellees.
• Court: West Virginia Supreme Court

668 S.E.2d 176

Elizabeth A. SEDLOCK and Jason Banish, Plaintiffs Below, Appellants v. Thomas MOYLE, Joann Moyle, Marsha Ann Felton, Jean Hollands Worth, Double H. Realty, Inc., a West Virginia Corporation, David A. Romano and Cathy Joey Romano, Defendants Below, Appellees.

No. 33524.

Supreme Court of Appeals of West Virginia.

Submitted February 12, 2008.

Decided May 23, 2008.

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 it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief (citation omitted)." Syl. Pt. 3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977).

3. "An unambiguous written contract entered into as the result of verbal or written negotiations will, in the absence of fraud or mistake, be conclusively presumed to contain the final agreement of the parties to it, and such contract may not be varied, contradicted or explained by extrinsic evidence of conversations had or statements made contemporaneously with or prior to its execution." Syl. Pt. 2, Kanawha Banking & Trust Co. v. Gilbert, 131 W.Va. 88, 46 S.E.2d 225 (1947).

4. "Extrinsic evidence of statements and declarations of the parties to an unambiguous written contract occurring contemporaneously with or prior to its execution is inadmissible to contradict, add to, detract from, vary or explain the terms of such contract, in the absence of a showing of illegality, fraud, duress, mistake or insufficiency of consideration." Syl. Pt. 1, Kanawha Banking & Trust Co. v. Gilbert, 131 W.Va. 88, 46 S.E.2d 225 (1947).

LaVerne Sweeney, Grafton, for Appellants.

Amy M. Smith, Tiffany A. Swiger, Steptoe & Johnson, PLLC, Clarksburg, for Appellees.

PER CURIAM:

This case is on appeal from the October 24, 2006, final order of the Circuit Court of Harrison County which dismissed, with prejudice, the real estate sales transaction claims of Elizabeth Sedlock and Jason Banish (hereinafter referred to collectively as "Appellants") against Marsha Ann Felton,¹ Jean Hollandsworth² and Double H. Realty, Inc. (hereinafter referred to collectively as "Appellees").³ The dismissal was sought pursuant to West Virginia Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Finding that no duty was imposed upon real estate agents under the circumstances presented, the lower court granted the dismissal, with prejudice. Upon concluding our review of the record in light of the briefs, arguments and relevant law, the action of the lower court is affirmed.

I. Factual and Procedural Background

The real estate transaction on which this suit is based occurred in 2004. On February 18, 2004, Ms. Hollandsworth obtained an exclusive listing agreement to sell Ms. Sedlock's⁴ home in Nutter Fort, West Virginia. Ms. Felton showed the Sedlock-Banish home to Joann and Thomas Moyle. Thereafter on March 29, 2004, Ms. Felton drafted a contract for the sale and purchase of the Sedlock-Banish house to the Moyles. According to the order from which this appeal is taken, the contract included a conditional clause making performance "contingent upon the seller locating acceptable housing."⁵

On June 26, 2004, Appellants entered into a contract to purchase another home owned by David A. Romano and Cathy Joey Romano⁶ located in Clarksburg, West Virginia. The contract for the Clarksburg home was expressly conditioned upon the "buyers closing on the sale of their home at 601 Indiana Ave., Nutter Fort, WV 26301 prior to the closing date on 339 Worley Ave., Clarksburg, WV 26301."

Within the statement of facts of the order of dismissal, the lower court noted that the Moyles' offer to purchase Appellants' Nutter Fort home had expired⁷ at the time the Romano contract was entered. The Moyles executed a new offer to purchase Appellants' Nutter Fort home on July 5, 2004, by way of a second "Contract for Sale and Purchase" drafted by Ms. Felton. The contingency clause regarding Appellants locating acceptable housing was not in the July 5, 2004, contract. The record reveals that Ms. Sedlock signed the July 5, 2004, sales contract.

On or about August 19, 2004, the Romanos notified their real estate salesperson that they would not sell their house to Appellants despite the June 26, 2004, contract. Appellants chose not to attempt to enforce the Romano contract at that time since they decided to remain in the Nutter Fort home. However, the Moyles enforced their July 5, 2004, contract to purchase the Nutter Fort property and thereby caused Appellants to move from the premises.

Appellants filed a complaint against the Moyles, Ms. Felton, Ms. Hollandsworth, Double H. Realty, Inc., and the Romanos in the Circuit Court of Harrison County on August 18, 2006. On September 15, 2006, Appellees moved the lower court to dismiss the complaint pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. The circuit court granted the motion to dismiss following a hearing. This Court granted the petition for appeal of the dismissal by order entered September 13, 2007.

II. Standard of Review

All claims brought against Appellees were dismissed in this case because the lower court found that the complaint failed to state any claim upon which relief could be granted. In such circumstances, "[a]ppellate 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). Accordingly, our review employs the same standard trial courts follow in like situations. As set forth in syllabus point three of Chapman v. Kane Transfer Company, Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977), "[t]he 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 (citation omitted)." See also Highmark West Virginia, Inc. v. Jamie, 221 W.Va. 487, 491 n. 4, 655 S.E.2d 509, 513 n. 4 (2007) ("The standard expressed in Chapman . . . remains good law."). Since the preference is to decide cases on their merits, courts presented with a motion to dismiss for failure to state a claim construe the complaint in the light most favorable to the plaintiff, taking all allegations as true. John W. Lodge Distrib. Co. v. Texaco, Inc., 161 W.Va. 603, 604-05, 245 S.E.2d 157, 158-59 (1978). We keep these guidelines in mind while undertaking our review of the issues raised in this appeal.

III. Discussion

Appellants maintain that the lower court erred in dismissing their claims against the real estate Appellees for breach of contract, negligence and fraud. All of the claims centered on the acts or omissions of Ms. Felton as the real estate salesperson. Ms. Hollandsworth and Double H. Realty were made parties to the suit based on respondeat superior and agency law principles.

At the heart of Appellants' claims is the omission from the July 5, 2004, contract of the condition contained in the March 29, 2004, contract essentially stating that the sale of the Nutter Fort house was contingent upon Appellants locating acceptable housing. As explained in the complaint, the negligence claim was based on Ms. Felton breaching a duty under the Real Estate License Act by failing to include the conditional language in the July 5, 2004, contract. Similarly, the cause of action for fraud was explained in the complaint as Ms. Felton materially and falsely representing to Ms. Sedlock that this contingency language was included in the July 5, 2004, contract. The breach of contract claim is founded on Ms. Felton not fulfilling her verbal agreement with Ms. Sedlock to include this conditional language in the contract. We will address each of these interrelated claims in turn.

Appellants maintained below, as they do here, that Appellees were under a general duty⁸ to include the desired conditional language under the express terms of West Virginia Code § 30-40-26(f) (2002) (2007 Repl. Vol.). West Virginia Code § 30-40-26(f) is within the Real Estate License Act and states: "Every licensee shall make certain that all the terms and conditions of a real estate transaction are contained in any contract prepared by the licensee."

In the October 24, 2006, dismissal order, the lower court appropriately noted that this statutory provision could not be read in a vacuum so as to impose a blanket duty on real estate sales people to include any and all possible terms and conditions in a real estate sales contract. The lower court particularly noted that:

Section 30-40-26 (f) of the West Virginia Code must be read with the remainder of Article 30 of the West Virginia Code, including Section 30-40-5(a)-(b), which states that activities normally performed by a lawyer are not included in the capacity of a real estate salesperson. See W.Va. Code § 30-40-5(a)-(b) (2006)[sic].

We further note that the significance of the contingency clause to Appellants in light of the circumstances may not have been apparent to Ms. Felton at the time she drafted the sales agreement. Under the facts presented in the complaint, Appellants had located acceptable housing at the time the July 5, 2004, contract was signed, so the contingency had been met. If the contingency clause were still desired by Appellants, they could have amended the contract before signing it. While Appellants contend that Ms. Felton told Ms. Sedlock at the time of signing the July 5, 2004, contract that the contingency clause was in the contract, we find no assertion in the complaint that...