Betty Parmer v. United Bank, Inc. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Betty Parmer,
Defendant Below, Petitioner
FILED
December 7, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 20-0013 (Monongalia County 17-C-210) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
United Bank, Inc.,
Plaintiff Below, Respondent
MEMORANDUM DECISION
Petitioner Betty Parmer, by counsel S. Sean Murphy, appeals the Circuit Court of
Monongalia County’s December 6, 2019, order enforcing the parties’ settlement agreement.
Respondent United Bank, Inc., by counsel Shawn P. George, Jennie Ovrom Ferretti, and J. Michael
Benninger, filed a response and supplemental appendix.
This 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.
Ms. Parmer and United Bank, Inc. (“United”) have been involved in various lawsuits
related to a $2.5 million loan Ms. Parmer obtained from United and on which she later defaulted.
In one lawsuit, assigned Civil Action No. 14-C-374, United was granted summary judgment on
Ms. Parmer’s negligence, breach of fiduciary duty, and civil conspiracy claims, and the circuit
court’s order directed that the “[p]arties shall bear their own costs and fees.” Ms. Parmer appealed,
and this Court affirmed in Brozik v. Parmer, Nos. 16-0292, 16-0400, 16-0238, 2017 WL 65475(W. Va. Jan. 6, 2017)(memorandum decision).
Subsequent to that litigation, Ms. Parmer was required to pay the loan balance. United
applied certain collateral to the loan, and Ms. Parmer wired $606,961.62 to United to satisfy the
remaining principal, interest, and charges. Following receipt of the wire transfer, United informed
Ms. Parmer that it was calculating its attorney’s fees and would submit a demand for payment the
following week, as provided for under the loan documents. United made a demand for payment
on April 11, 2016, but Ms. Parmer did not pay the outstanding fees, and the instant litigation
ensued.
1
In United’s complaint and motion for declaratory judgment, it alleged that Ms. Parmer
pledged shares of United stock, among other assets, as security for the loan; that the commercial
loan agreement signed by Ms. Parmer obligated her to pay United’s reasonable attorney’s fees;
and that United was authorized under that agreement to liquidate collateral and apply the proceeds
to, among other things, attorney’s fees. Accordingly, United sought “a declaratory judgment
authorizing the collection, payment and satisfaction of attorneys’ fees, costs and expenses incurred
by [it] in prior litigation, as well as in this litigation, and the liquidation of a stock certificate held
by United as collateral for a loan to [Ms. Parmer].” United stated that its fees as of January 31,
2017, totaled $294,956.48.
Ms. Parmer filed an answer to United’s complaint and counterclaimed for breach of
contract, conversion, and “violation of statute.” In support of her breach of contract claim, Ms.
Parmer alleged that United failed to provide her with a statement of the claimed attorney’s fees,
that it engaged in collection activities that were in contravention of the loan agreement and/or
applicable law, and that it attempted and continues to attempt to force Ms. Parmer to pay for
costs/expenses United has no right to collect. To support her conversion counterclaim, Ms. Parmer
asserted that United took her valuable assets, exercised dominion and control over them, and
converted them. Finally, Ms. Parmer claimed that United violated the “Uniform Commercial Code
and/or other statutes” in its collection efforts.
In July of 2017, United moved to dismiss Ms. Parmer’s counterclaims. Following a
hearing, the circuit court granted United’s motion by order entered on December 12, 2018. In its
order, the court detailed that Ms. Parmer failed to file a response to the motion in the nearly one
and a half years it had been pending. Further, the court found that the hearing on the motion to
dismiss was properly noticed by United’s service of a notice of hearing by regular mail and e-mail
on November 1, 2018; yet, neither Ms. Parmer nor her counsel appeared for the hearing. 1 The
court also found that Ms. Parmer could not prevail on any of her counterclaims. First, she had not
shown that United failed to comply with any term of the loan documents between the parties.
Second, Ms. Parmer’s conversion claim failed because she voluntarily pledged the stock to United
as collateral for the loan. Third, Ms. Parmer had yet to specifically identify any statute United
violated.
Later in November of 2018, United moved for summary judgment. United noted the prior
litigation involving Ms. Parmer’s default on the loan and in which it was granted summary
judgment, and it outlined the relevant portions of the parties’ commercial loan agreement entitling
United to the attorney’s fees it incurred in protecting, defending, and collecting on its rights with
respect to the loan. United claimed entitlement to declaratory judgment in the amount of
$294,956.48 related to the prior litigation, plus $25,000 in expenses, interest, costs, and attorney’s
fees in the current litigation. United also sought a declaration that it was authorized to liquidate
the stock certificate and apply the proceeds to the amounts claimed.
1
The record also shows that neither Ms. Parmer nor her counsel appeared on March 15,
2018, for the hearing at which the motion to dismiss was initially to be heard. That hearing was
continued to the following week, but Ms. Parmer and her counsel again failed to appear.
2
Ms. Parmer filed a response and supplemental response to United’s motion for summary
judgment. In her supplemental response, Ms. Parmer argued that United’s claim for attorney’s fees
was barred by res judicata in light of the order in No. 14-C-374 directing each party to bear their
own costs and fees. Ms. Parmer also argued that United was collaterally estopped from seeking its
attorney’s fees and had waived any claim for its fees.
Additionally, Ms. Parmer moved for relief from the court’s order dismissing her
counterclaims under Rule 60(b) of the West Virginia Rules of Civil Procedure. 2 Ms. Parmer argued
that her counsel’s failure to appear for the hearing was due to “mistake, inadvertence, surprise and
excusable neglect” stemming from a “severe medical condition” necessitating “immediate surgical
intervention” in May of 2018. Counsel represented that, following surgery, he was on medical
leave through the end of July of 2018. Ms. Parmer’s counsel also cited the relocation of his office
as a basis for relief from judgment.
The parties appeared for a hearing on United’s motion for summary judgment and Ms.
Parmer’s motion for relief from the order dismissing her counterclaims on March 4, 2019. 3 The
court directed the parties to mediate and stated that it would hold United’s motion for summary
judgment in abeyance pending mediation. The court denied Ms. Parmer’s Rule 60(b) motion,
noting that the ruling on United’s motion to dismiss her counterclaims would have been the same
had counsel appeared for the hearing.
The parties engaged in mediation on April 4, 2019, and they reached a resolution. In
relevant part, the four-page, handwritten settlement agreement signed by the parties, their counsel,
and the mediator set forth that Ms. Parmer agreed to pay United $212,500 within ten days “in
immediately available funds.” Upon receipt of those funds, United agreed to provide to Ms.
Parmer’s counsel the United stock certificate at issue. The parties further agreed to execute mutual
general and full releases, which were to include, but not be limited to,
any and all claims, complaints, causes of actions, counterclaims, crossclaims, third
party complaints which were or could have been asserted at anytime [sic], whether
in this or any other action, proceeding or forum arising or related to, directly or
indirectly, any loan, pledge, agreement or transaction involving, including[,] by,
between or among the parties[,] their agents, employees, representatives and
attorneys, in any capacity.
Also, the settlement agreement and mutual release was to be prepared by United’s counsel within
five days of the mediation.
2
“On motion and upon such terms as are just, the court may relieve a party or a party’s
legal representative from a final judgment, order, or proceeding for the following reasons: (1)
Mistake, inadvertence, surprise, excusable neglect, or unavoidable cause . . . .” W. Va. R. Civ. P.
60(b).
3
Additionally, the court had issued a rule to show cause directing Ms. Parmer’s counsel to
explain his failure to appear at the hearing on United’s motion to dismiss the counterclaims. Ms.
Parmer’s counsel represented that he had been ill, that he “dropped the ball,” and that he should
have notified opposing counsel and the court of his change in address.
3
In accordance with the parties’ settlement agreement, counsel for United e-mailed to Ms.
Parmer’s counsel a draft settlement agreement and release on April 9, 2019, five days after the
settlement was reached. Counsel for United also requested that Ms. Parmer’s counsel confirm that
the draft settlement document was acceptable. In addition to the terms set forth above, United
added the following language, the “Hypothecation Agreement provision,” to the end of the
paragraph addressing the parties’ mutual and full releases:
United and Parmer acknowledge and confirm this Settlement Agreement does not
and shall not be interpreted to release, affect, waive, compromise, or limit in any
way the liens, financing statements, or rights United possesses under and by virtue
of the Hypothecation Agreement and associated documents in and to the assets of
Secure US, which Parmer purchased and subsequently transferred and/or sold. In
every respect these liens, financing statements and United’s rights under the
Hypothecation Agreement and associated documents are intact and unaffected by
this Settlement Agreement and no rights therein have been altered, waived,
compromised, or released.
Two days after receiving the draft settlement agreement and release, on April 11, 2019,
Ms. Parmer’s counsel e-mailed United’s counsel requesting wire transfer instructions. The
instructions Ms. Parmer’s counsel received in response on that same day directed that the
settlement funds be wired as follows:
Chase Bank
5906 Wesley st,
Greenville Tx 75401
ABA/Routing #: 111000614
Account #: 327882368
Beneficiary
CB VENTURES
9750 royal lane
Dallas Texas 75231 4
Also on that same day, United’s counsel informed the circuit court by e-mail that a settlement had
been reached and an agreed dismissal order would be submitted soon. Ms. Parmer’s counsel was
copied on this e-mail. On April 15, 2019, Ms. Parmer’s counsel directed Ms. Parmer’s bank to
wire settlement funds to United, in accordance with the wiring instructions purportedly e-mailed
to Ms. Parmer’s counsel from United’s counsel.
On May 2, 2019—more than three weeks after receiving the draft settlement document,
exactly three weeks after Ms. Parmer’s counsel requested wire transfer instructions from United’s
4
These instructions differed from those provided by United to Ms. Parmer following
resolution of the earlier matter that required her to wire $606,961.62 to United.
4
counsel, and approximately two and a half weeks after attempting to wire the settlement funds to
United—in response to United’s counsel inquiring as to the status of the settlement funds, Ms.
Parmer’s counsel raised issue with the Hypothecation Agreement provision. Ms. Parmer’s counsel
stated that the language “was not part of the agreement at the mediation,” and he requested that
the language be removed. Ms. Parmer’s counsel also informed United’s counsel that the funds
were wired on April 15, 2019, as instructed by United’s counsel. Ms. Parmer’s counsel provided
United’s counsel with the e-mailed wire transfer instructions United’s counsel had purportedly
sent. United’s counsel reviewed those instructions and informed Ms. Parmer’s counsel that he did
not send them. At this point, the parties discovered that an unknown individual or individuals
intervened in the parties’ counsels’ e-mail communications using United counsel’s identical e-mail
address and an e-mail address nearly identical to Ms. Parmer’s counsel’s address to provide
fraudulent wire transfer instructions to Ms. Parmer’s counsel, who acted upon those instructions
and directed Ms. Parmer’s bank to wire funds to CB Ventures, an entity that is not United or
affiliated with United.
United moved to enforce the settlement agreement on June 5, 2019. United detailed that
Ms. Parmer’s attorney claimed that the settlement monies had been wired, but United had not
received the funds. Rather, the funds had been wired to an unknown third-party, with whom United
had no connection. Thus, United stated that the settlement reached at mediation had not been
consummated or concluded, and it sought an order enforcing it.
Ms. Parmer countered with a motion to enforce the settlement agreement. Ms. Parmer
claimed that she fully performed under the settlement agreement, that responsibility for the
improperly wired funds fell on United, and that United had yet to deliver the stock certificate, as
required by the settlement agreement. Ms. Parmer also argued that the Hypothecation Agreement
provision contradicted the terms agreed upon at mediation.
The circuit court held a hearing on the counter motions to enforce the settlement agreement
on August 8, 2019. The court granted United’s motion and denied Ms. Parmer’s. In its resulting
August 14, 2019, order, the court directed Ms. Parmer to transfer $212,500 to United, to submit
proof of remittance to the court within thirty days of the order’s entry, and to sign the settlement
agreement and release previously submitted to her counsel within five days of the order’s entry.
On December 4, 2019, the parties appeared for a hearing regarding the settlement document
because the court did not previously resolve the issue concerning the Hypothecation Agreement
provision. Ms. Parmer argued that she is a pledgor under the Hypothecation Agreement and the
additional language leaves her liable for the loan that is the subject of that agreement, while United
argued that the
mediation agreement says the parties are going to execute full and complete mutual
releases, which the settlement agreement does. . . . That language was put in there
because of other pending litigation that United has that includes some of these
documents. It has nothing to do with Mrs. Parmer, claims against Mrs. Parmer. The
mediation fully and completely and mutually resolved all claims.
5
United maintained that the Hypothecation Agreement provision was not inconsistent with the
mediation settlement agreement and that “United Bank has never taken the position that Mrs.
Parmer isn’t released under the [H]ypothecation [A]greement or the collateral agreement. This
mutual release does that. It simply doesn’t release anybody else.”
The court found that Ms. Parmer, by wiring (or attempting to wire) the settlement funds
after receipt of the draft settlement agreement and release and failing to raise her objection for
three weeks after receipt of that document, accepted the terms of the settlement agreement and
release. The court ordered that counsel for United again submit a signed settlement agreement and
release to counsel for Ms. Parmer. Ms. Parmer was directed to sign the settlement document within
ten days of receipt; should Ms. Parmer fail to do so, the court ordered that the settlement agreement
and release be adopted “given [Ms. Parmer’s] previous actions and this [c]ourt’s previous rulings.”
The court’s dismissal order, entered on January 13, 2020, reflects that, to the court’s knowledge,
Ms. Parmer had not executed the settlement agreement and release; thus, the court deemed the
document adopted. Ms. Parmer now appeals.
Ms. Parmer raises four assignments of error on appeal. First, she claims that the circuit
court erred in enforcing the settlement agreement. Second, she asserts that the court erred in
directing her to pay $212,500 to United. Third, Ms. Parmer argues that the court erred in enforcing
United’s underlying claims as they were barred by res judicata, collateral estoppel, and waiver.
Fourth, she claims that the court erred in holding an improperly noticed hearing on United’s motion
to dismiss her counterclaims. 5
Ms. Parmer’s first and second assignments of error relate to the circuit court’s enforcement
of the parties’ settlement agreement. By filing her own motion to enforce the settlement agreement
below, Ms. Parmer acknowledged that the parties reached an agreement; however, she takes issue
with the circuit court’s enforcement of that agreement in United’s favor. Specifically, she argues
in her first assignment of error that the court erred in enforcing the settlement agreement and
release prepared by United because it included the Hypothecation Agreement provision and,
therefore, there was no meeting of the minds. She also argues that the court failed to make findings
of fact and conclusions of law sufficient to enable appellate review. Ms. Parmer supports her
arguments by reference to Riner v. Newbraugh, 211 W. Va. 137, 563 S.E.2d 802 (2002), claiming
that “[s]eldom does one find an opinion that so perfectly parallels” a case on appeal.
5
Ms. Parmer also asserts that, at the hearing on United’s motion to dismiss, the circuit
court “engag[ed] in communications with counsel for [United] wherein she coached them on what
to do in this matter.” Not only does a review of the transcript of that hearing fail to support Ms.
Parmer’s assertion, but she also fails to provide any argument or legal analysis in support of this
claimed error. As we have repeatedly warned, this Court does not review inadequately briefed
assignments of error. See, e.g., State ex rel. Robert Michael B. v. Robert Morris N., 195 W. Va.
759, 765, 466 S.E.2d 827, 833 (1995) (citation omitted) (“[A] skeletal ‘argument,’ really nothing
more than an assertion, does not preserve a claim.”); State v. Allen, 208 W. Va. 144, 162, 539
S.E.2d 87, 105 (1999) (citation omitted) (“In the absence of supporting authority, we decline
further to review this alleged error because it has not been adequately briefed.”). We decline to
reverse course here, particularly where neither the error itself nor its significance is clear.
6
In her second assignment of error, Ms. Parmer argues that the court further erred in granting
United’s motion to enforce the settlement insofar as she was required to “again” pay $212,500,
particularly where no evidentiary hearing was conducted. Ms. Parmer highlights that her counsel
relied on wire transfer instructions from United’s counsel’s actual, known e-mail address and that
her counsel “neither received e-mails from nor corresponded with unknown or fraudulent e-mail
addresses,” unlike United’s counsel. Because United’s counsel interacted with the imposter, Ms.
Parmer claims that United’s counsel was in the best, and only, position to prevent the fraud.
Our review of the circuit court’s order enforcing the settlement agreement in United’s favor
is for an abuse of discretion. See id. at 138, 563 S.E.2d at 803, syl. pt. 1 (“This Court employs an
abuse of discretion standard when reviewing a circuit court order enforcing a settlement agreement
reached as a result of court-ordered mediation.”).
In Riner, a dispute arose between the Riners, who owned land, and a builder/developers,
who sought to develop that land. 211 W. Va. at 139, 563 S.E.2d at 804. The parties did not reach
a resolution during court-ordered mediation, but negotiations continued, and a settlement was
reached over the phone two weeks after mediation. Id. The mediator, who was involved in the
telephonic settlement, prepared one settlement agreement, and the builder/developers prepared
another, which contained terms to which the parties did not agree. Id. at 139-40, 563 S.E.2d at
804-05. The Riners refused to sign the agreement prepared by the builder/developers, but the
circuit court ordered them to execute it. Id. at 140, 563 S.E.2d at 805. On appeal, we found that
the circuit court erred in directing the Riners to sign the settlement agreement prepared by the
builder/developers due to its inclusion of terms to which the parties did not agree. Id. at 144, 563
S.E.2d at 809.
In claiming that Riner closely parallels the facts of this case and militates in favor of
enforcing the settlement agreement according to Ms. Parmer’s terms, Ms. Parmer overlooks two
critical differences between her case and Riner. First, the Riners objected immediately to signing
the settlement documents prepared by the builder/developers. Ms. Parmer, by contrast, waited
three weeks before raising her objection. Second, no money changed hands in Riner. Here, Ms.
Parmer paid the settlement monies, albeit to the wrong party.
These critical differences, coupled with the chronology of these distinguishing events,
demonstrate that the court did not abuse its discretion in enforcing the settlement in United’s favor.
The parties agreed that United would prepare a formal settlement agreement and release within
five days of the parties’ mediated settlement. United complied with that term, submitted the draft
settlement document to Ms. Parmer’s counsel, and alerted the circuit court to the parties’
settlement and to the fact that a dismissal order would be forthcoming. Ms. Parmer did not dispute
United’s representations to the court or claim that the formal settlement agreement and release
contained a term that varied in any material respect from the agreement reached at mediation,
despite having ample opportunity to do so. Instead, she demonstrated her acceptance of the
7
settlement terms documented by United by complying with the next agreed-upon deadline: the
wire transfer deadline. 6
With respect to that attempted wire transfer, we likewise find no abuse of discretion in the
court’s enforcement of the settlement agreement as it relates to the payment of $212,500. Under
the rule applied by the circuit court, the “imposter rule,” “the party who was in the best position to
prevent the forgery by exercising reasonable care suffers the loss.” Arrow Truck Sales, Inc. v. Top
Quality Truck & Equip., Inc., No. 8:14-cv-2052-T-30TGW, 2015 WL 4936272, *5 (M.D. Fla.
Aug. 18, 2015). 7 Ms. Parmer suggests that United was actually in the best position to prevent this
fraud, but she does not explain how. In reality, had Ms. Parmer or her counsel exercised reasonable
care and verified the wire transfer instructions her counsel received, the loss could have been
averted. The wire transfer instructions were plainly suspect in that they directed payment to a
Chase Bank in Texas for the benefit of CB Ventures, an entity uninvolved in the parties’ dealings
and unknown to United. The parties’ dealings date back to 2014 and involve one prior wire transfer
directly to United in West Virginia, not an uninvolved, outside entity. As a result, we find no error
in the circuit court’s conclusion that Ms. Parmer must bear this loss or its direction that she remit
the settlement funds to United. 8
Finding no error in the circuit court’s enforcement of the parties’ settlement agreement in
United’s favor, and reiterating that Ms. Parmer does not dispute that the parties reached a
settlement, we need not address the substance of her third and fourth assignments of error. In her
third, Ms. Parmer argues that the court erred in enforcing United’s claims, but she waived her
ability to contest those claims by settling with United. Likewise, by settling, Ms. Parmer waived
her claim of a purported procedural error in noticing the hearing on United’s motion to dismiss,
addressed in her fourth assignment of error.
For the foregoing reasons, we affirm.
Affirmed.
6
While Ms. Parmer claims that the circuit court’s order contained insufficient findings of
fact and conclusions of law to permit appellate review, she has not demonstrated that any error in
this regard is reversible error. Furthermore, the circuit court’s bases for its rulings relative to the
settlement agreement are sufficiently developed for this Court’s review. Indeed, Ms. Parmer
identifies no specific deficiencies.
7
Although this Court has not adopted the “imposter rule,” we find no error in the circuit
court’s utilization of it because the parties agreed to and argued for its application below. Given
this position, we need not decide now whether to adopt that rule or articulate its parameters here.
8
Like Ms. Parmer’s claim that the circuit court’s order was inadequate, her claim that the
court should have conducted an evidentiary proceeding is not well taken. The circuit court held a
hearing on the issue, and, in any event, Ms. Parmer does not identify any evidence she would have
presented at a proceeding formally designated as “evidentiary” that she did not present or was
unable to present at the court’s hearing on the parties’ respective motions to enforce the settlement.
8
ISSUED: December 7, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
9