Steven Hunter and DeEtta King Hunter v. Paula Blankenship, as trustee of the Paula Blankenship 2012 revocable Trust Dated February 21, 2012, and Fathom Realty, LLC ( 2023 )

FILED
June 16, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Steven Hunter and DeEtta King Hunter,
Respondents Below, Petitioners
vs.) No. 22-0230 (Greenbrier County No. 21-P-45)
Paula Blankenship, as trustee of the
Paula Blankenship 2012 Revocable Trust
Dated February 21, 2012, and Fathom
Realty, LLC,
Petitioners Below, Respondents
MEMORANDUM DECISION
Petitioners Steven Hunter and DeEtta King Hunter appeal the February 28, 2022, order of
the Circuit Court of Greenbrier County granting respondents’ motion for summary judgment and
confirming the decision, issued on August 12, 2021, by the mediator selected by the parties.
Respondents Paula Blankenship (“Respondent Blankenship”), as trustee of the Paula Blankenship
2012 Revocable Trust dated February 21, 2012 (“Blankenship Trust”), and Fathom Realty, LLC
(“Fathom Realty”) jointly respond in support of the circuit court’s order. 1 Upon our review, we
determine that oral argument is unnecessary and that a memorandum decision affirming the circuit
court’s order is appropriate. See W. Va. R. App. P. 21.
At the outset we note that petitioners’ brief fails to comply with Rule 10(c) of the West
Virginia Rules of Appellate Procedure by including few citations to fact or law and failing to
include an argument section. As this Court noted recently in Metro Tristate, Inc. v. Public Service
Commission of West Virginia, 245 W. Va. 495, 445, 859 S.E.2d 438, 502 (2021), a failure to
comply with Rule 10 generally results in a “disjointed, poorly written, or difficult to understand
brief.” Petitioners “should not anticipate that this Court will find or make their arguments for
them.” Id. However, to accomplish substantial justice in the limited circumstances of this case, the
Court has nevertheless examined the briefs and the appendix record to consider petitioners’ appeal.
See W. Va. R. App. P. 2.
1
Petitioner Steven Hunter, an attorney, is self-represented and also represents petitioner
DeEtta King Hunter. Respondent Paula Blankenship appears by counsel J. Michael Anderson.
Respondent Fathom Realty, LLC appears by counsel Stuart A. McMillan and William M.
Lorensen.
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Petitioners, as purchasers, and Respondent Blankenship, 2 as seller, entered into a real estate
purchase agreement dated February 19, 2021. Pursuant to a Notice of Agency Relationship form,
Rebecca Gaujot of Fathom Realty acted as the listing agent on behalf of the seller, Respondent
Blankenship. Shortly before closing, Petitioner Steven Hunter, who asserts he is also a licensed
broker, claimed that he was entitled to a buyer’s agent commission. Petitioners also disputed that
they owed $5,986.50 for deed preparation, transfer tax, and other costs associated with the
transaction. On March 31, 2021, Respondent Paula Blankenship, petitioners, and David Moore, as
the escrow agent, entered into an escrow agreement to address the issues raised by petitioners.
Respondent Fathom Realty is identified as broker in the escrow agreement but did not sign it. This
escrow agreement states:
WHEREAS, there is a question as to which party is entitled to the Buyers’ agent’s
commission due in the amount of $12,500.00;
WHEREAS, there is further a question as to which party should pay the Deed
Transfer stamps pursuant to the Purchase Agreement dated February 19, 2021 and
executed by the Seller and Buyers;
WHEREAS, the parties hereto have agreed to proceed to closing with these
unresolved issues. The parties hereto agree to escrow the amount of the commission
in question and the seller agrees to pay the deed stamps at closing. The parties
hereto do hereby agree that a mutually agreeable party shall mediate this dispute
and upon said mediator’s decision, the commission being held in escrow shall be
paid by the Escrow Agent to the prevailing party. The parties do also further agree
that should the mediator rule that the Buyers were responsible and liable for the
payment of the Deed Transfer stamps and Deed Preparation, the Buyers shall
promptly pay the Seller the amount of $5,736.50 as reimbursement of said Deed
Transfer stamps and $250 for the deed preparation paid to complete the closing.
The parties hereby agree that said mediation shall be binding upon all parties.
Pursuant to the agreement, $12,500 was deposited in the escrow account and, ultimately,
the parties agreed on a mediator. On August 11, 2021, the parties participated in an unsuccessful
mediation. Thereafter, the mediator issued his “Binding Mediation Decision” (“decision”) on
August 12, 2021. In that decision, the mediator noted that he reviewed all evidence, even parol
evidence, presented by the parties. However, he concluded that the unambiguous language of the
purchase agreement precluded the use of parol evidence to vary the terms of that agreement. The
mediator found petitioners to be responsible for payment of the deed transfer stamps and deed
2
The purchase agreement lists Respondent Blankenship as seller of the property with no
explicit reference to the Blankenship Trust; however, the escrow agreement describes the property
conveyance from Respondent Blankenship to the Blankenship Trust and identifies Respondent
Blankenship as trustee of the Blankenship Trust as seller. The decision issued by the mediator
likewise refers to the Blankenship Trust as the owner and seller of the subject real estate. Only the
escrow agreement is before this Court.
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preparation. Further, based on Fathom Realty’s Notice of Agency Relationship3 form
accompanying the purchase agreement, the mediator concluded that petitioners were not entitled
to receive the funds held in escrow as a potential buyer’s agent commission.
Petitioners disputed the decision, and respondents filed in the circuit court a “Motion to
Confirm Binding Mediation Decision and Enter Judgment Thereon,” citing West Virginia Code §
55-10-24, which permits a party to file a motion in court to confirm an arbitration award. 4 In the
motion, respondents note that the escrow agreement reflected the agreement between the parties
that if no resolution could be reached through mediation, the mediator would decide the
outstanding issues and that this made the process a mediation/arbitration. Petitioners filed an
“Answer and Motion to Set Aside,” seeking a declaration from the circuit court that the decision
was null and void because, among other arguments, the mediator acted as an arbitrator, no notice
was given, no guidelines were in place, and the specific requirements of the Uniform Revised
Arbitration Act, West Virginia Code §§ 55-10-1 to 33 (the “Act”), were not met. Petitioners
attached various exhibits to their response.
Respondents filed a motion for summary judgment arguing that the plain and unambiguous
language of the escrow agreement empowered the mediator to issue a binding decision on any
disputed issues between the parties not resolved by the mediation. Respondents noted that
petitioners did not dispute entering into the escrow agreement, which is a contract, and asserted
that no statutory basis exists to modify the award. An affidavit setting forth the communications
between the parties regarding the time and place of the mediation, along with the selection of the
mediator, was attached to the respondents’ motion in response to petitioners’ contention that lack
of notice was an issue in this case. Finally, respondents asserted that petitioners had no defense on
the underlying merits of the issues presented to the mediator. Petitioners’ response argued that the
civil court action was filed as a petition under the Act to enforce the decision reached by the
mediator and that the Act does not apply to mediation. Petitioners largely reiterated their initial
“Answer and Motion to Set Aside” and, relying heavily on the definition of mediation specifically
applicable to domestic relations matters in West Virginia Code § 48-1-233.1, stated that the term
“mediation” in the escrow agreement was misleading and deceptive.
The circuit court entered an order on February 28, 2022, granting respondents’ motion for
summary judgment. The court found that it was undisputed that the escrow agreement was a valid,
enforceable contract signed by the parties and concluded that the only dispute was whether the
decision issued by the mediator was enforceable in accordance with that agreement. The circuit
3
West Virginia Code § 30-40-26(d) (2002) requires brokers, associate brokers and
salespersons licensed under the West Virginia Real Estate License Act, West Virginia Code §§
30-40-1 to 27, to provide a written notice of agency relationship in a real estate transaction “on the
notice of agency relationship form promulgated by the commission.”
4
The required docket sheet was not included in the joint appendix record, but the circuit
court order at issue specifies that the motion by respondents is the operative petition in this case.
See W. Va. R. App. P. 7(d)(7) (specifying the complete docket sheet from the lower tribunal is
required in an appendix record).
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court also found that the terms of the escrow agreement were clear and unambiguous and so must
be applied, not construed. While the circuit court found that it was clear that the parties intended
to mediate the two unresolved issues set out in the agreement, it also concluded that it was clear
the parties intended to allow the mediator to act as an arbitrator as to any issues unresolved by
mediation based on the language of the agreement. In reaching this conclusion, the circuit court
focused on the terms “mediator’s decision,” “should the mediator rule,” and “mediation shall be
binding upon all parties.” For these reasons, the circuit court granted summary judgment for the
respondents and confirmed the decision. Finally, the circuit court held that each party was to bear
their own fees and costs. Petitioners appeal this order.
In this appeal, petitioners assert that the circuit court erred by using the Act to enforce a
mediation procedure and erred in granting summary judgment to respondents. In their abbreviated
submission to this Court, petitioners focused on the general definitions of mediation and
arbitration, a claimed lack of notice of mediation, a lack of procedural guidelines, a failure to
conduct a negotiated mediation, and the lack of an evidentiary hearing by the chosen mediator.
Respondents filed a response in support of the circuit court’s order, including a request for costs
and fees, asserting, among other arguments, that the escrow agreement is clear and unambiguous
as to the process agreed upon to resolve the two disputed issues identified in that agreement. In
their brief, respondents state that the petitioners agreed to a binding mediation and that the process
used did not need to meet the requirements of any formal arbitration statute because of the parties’
agreement to utilize a binding mediation procedure. Our review of the circuit court’s entry of
summary judgment is de novo. Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755(1994).
We agree with the circuit court that the escrow agreement in this case is, undisputedly, a
valid, enforceable contract. The terms of the contract are clear and unambiguous and must be
applied as written given the circumstances of this case. See Syl. Pt. 2, Orteza v. Monongalia Cnty.
Gen. Hosp., 173 W. Va. 461, 318 S.E.2d 40 (1984) (“‘Where the terms of a contract are clear and
unambiguous, they must be applied and not construed.’ Syl. Pt. 2, Bethlehem Mines Corp. v.
Haden, 153 W. Va. 721, 172 S.E.2d 126 (1969).”). Parol evidence is inadmissible to alter the terms
of the clear and unambiguous escrow agreement. See Syl. Pt. 1, Shaffer v. Calvert Fire Ins. Co.,
135 W. Va. 153, 62 S.E.2d 699 (1950) (“Parol evidence to contradict, add to, alter, enlarge, or
explain a complete written agreement, which is clear and unambiguous, or to vary its legal effect,
is inadmissible.”). Although largely ignored by the petitioners, the plain language of the escrow
agreement indicating that the mediator would make a ruling or decision, and that it would be
binding on the parties, cannot be avoided or made ambiguous by reference to more general
definitions of mediation and arbitration. 5 The plain language of the escrow agreement
demonstrates that the parties contemplated and agreed that the mediation would result in the
5
Petitioners’ citation to the general definition of mediation set out in West Virginia Code
§ 48-1-233.1 is inapposite to this case both because it is not a domestic relation matter under that
article and because a different meaning is clearly apparent based on the language of the escrow
agreement. See W. Va. Code § 48-1-201 (“For the purposes of this chapter the words or terms
defined in this article, and any variation of those words or terms required by the context, have the
meanings ascribed to them in this article. These definitions are applicable unless a different
meaning clearly appears from the context.”).
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mediator making a binding decision should they be unable to reach a mutually agreed resolution,
unambiguously modifying any general definition of the term mediation. In reaching this decision
it is significant that Petitioner Steven Hunter, as a licensed attorney, is a sophisticated party. We
further conclude, as did the circuit court, that the process utilized by the parties to resolve the two
specified issues identified in the escrow agreement comported with the process described in that
contract. As such, the parties are contractually bound by the decision reached through the
resolution process that they selected and described in the escrow agreement. Finally, respondents’
request for costs and fees in this proceeding is denied.
For the foregoing reasons, we find that the circuit court did not err in granting summary
judgment to the respondents in this case, and we affirm the circuit court’s February 28, 2022, order.
Affirmed.
ISSUED: June 16, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
DISSENTING:
Justice C. Haley Bunn
BUNN, Justice, dissenting:
I respectfully dissent to the majority’s resolution of this matter because the Petitioners’
brief is wholly inadequate to permit this Court’s meaningful consideration. Rule 10 of the West
Virginia Rules of Appellate Procedure provides explicit instructions for the contents of appellate
briefs filed with this Court. The brief Petitioners filed in this case fails to comply with these
guidelines. Among other shortcomings, the Petitioners’ brief is approximately two and one-half
pages long, and it does not contain a table of contents; a table of authorities; a statement of facts;
cites to the appendix record; cites to the governing law; or a separate argument section that plainly
sets forth the errors assigned and an explanation as to why Petitioners are entitled to relief in this
case with citations to the relevant facts and law. Failure to file a brief in accordance with these
Rules is sanctionable by dismissing the noncompliant brief. See W. Va. R. App. P. 10(j).
Accordingly, I would have dismissed this appeal for failing to comply with the West Virginia
Rules of Appellate Procedure governing the contents of appellate briefs, and I respectfully dissent
from the majority’s decision to consider this case on its merits upon such a deficient brief.
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