Carol Greenfield v. BTIC Investments, LLC

FILED
August 27, 2021
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
Carol Greenfield,
Defendant Below, Petitioner
vs.) No. 20-0006 (Berkeley County 18-C-288)
BTIC Investments, LLC,
Plaintiff Below, Respondent
MEMORANDUM DECISION
Petitioner Carol Greenfield, by counsel Floyd M. Sayre, III, appeals the Circuit Court of
Berkeley County’s December 5, 2019, final order granting summary judgment for BTIC
Investments, LLC. Respondent, BTIC Investments, LLC (“BTIC”), by counsel Christopher P.
Stroech, filed a response in support of the circuit court’s order.
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.
In April of 2018, the parties executed a commercial purchase agreement (“the contract”)
whereby BTIC (or “Purchaser”) agreed to purchase real property, identified as Lot 1 and Lot 27
in Tarico Heights, Bunker Hill, West Virginia, from Ms. Greenfield (or “Seller”). The parties
agreed to a purchase price of $62,000, and BTIC paid a $500 deposit. Among other terms, the
contract provided for a feasibility period of thirty days, with an option to cure title and survey
defects, as found in paragraph five, which follows:
Title and Survey Objections Purchaser may, at its sole expense, obtain a title
insurance commitment and a survey for the Property. Prior to the expiration of the
Feasibility Period, Purchaser shall notify the Seller in writing as to any title or
survey objections regarding the Property that the Purchaser is unwilling to accept
(collectively the “Title Objections”). Seller shall advise Purchaser in writing
within ten (10) days after receipt of such notice, which if any of the Title
Objections will not be cured by Seller at or prior to Settlement. If Seller fails to
respond to Purchaser within such ten (10) day period or if Seller’s response
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indicates that it does not intend to cure one or more of the Title Objections, then
Purchaser may, at its option either (i) terminate this Agreement by giving written
notice to Seller; (ii) cure such Title Objections at its own expense and proceed to
Settlement with no reduction in the Purchase Price; or (iii) waive such Title
Objections and proceed to Settlement, with no reduction in the Purchase Price. If
Purchaser elects to terminate this Agreement, the Deposit shall be refunded in full
to Purchaser and the parties shall have no further obligation or liability to one
another, except for any liability pursuant to the indemnity provisions of
Paragraphs 4D., 10 and 11.
During the feasibility period, BTIC discovered that a structure located on an adjacent lot
(“Lot 28,” also owned by Ms. Greenfield, but not subject to purchase by BTIC under the terms of
the contract) encroached approximately one-and-one-half feet onto Lot 27. BTIC notified Ms.
Greenfield of its objection in response to the encroachment revealed by the survey on June 4,
2018, and requested that Ms. Greenfield cure the defect at the joint expense of the parties. Ms.
Greenfield rejected the offer on June 14, 2018. On July 11, 2018, BTIC notified Ms. Greenfield
that it would cure the defect at its own expense with no reduction in the original purchase price,
as set forth in the contract. BTIC intended to have the boundary line between Lots 27 and 28
redrawn “so it shall not interfere with the residence next door[,] leaving a minimum of three (3)
feet between the two properties.” On the same day, Ms. Greenfield orally rejected the offer and
wished to have “no further contact” with BTIC.
BTIC mailed Ms. Greenfield a letter on July 25, 2018, asserting that Ms. Greenfield’s
unilateral attempt to terminate the contract constituted a breach of contract. Per the terms of the
contract, BTIC provided Ms. Greenfield ten days to cure the default. 1 BTIC further notified Ms.
Greenfield that if she did not cure the default, then it would seek specific performance under
paragraph 13(b) of the contract. 2 Ms. Greenfield did not respond to the letter.
In August of 2018, BTIC filed a civil complaint, alleging that Ms. Greenfield breached
the contract and requesting specific performance of the contract. Ms. Greenfield answered the
complaint in October of 2018 and asserted, among other defenses, that the contract was void. In
support, Ms. Greenfield cited an unnumbered paragraph located at the end of the contract, which
provided a copyright disclaimer and set forth that “[t]his form may be used only by members in
good standing with the Virginia Association of Realtors.” Ms. Greenfield asserted that because
none of the parties involved were members of the Virginia Association of Realtors, the
agreement was invalid. Ms. Greenfield otherwise admitted to the facts as alleged, including that
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Paragraph 13(c) of the parties’ contract set forth that “[p]rior to any termination of this
Agreement . . . the non-defaulting party shall provide written notice of any default(s) to the
defaulting party . . . permitting the defaulting party ten (10) days to cure any such default(s).”
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Paragraph 13(b) of the parties’ contract provided that “[i]f Seller defaults under this
Agreement, Purchaser shall have the option to (i) seek specific performance of this Agreement,
or (ii) terminate this Agreement.”
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she rejected BTIC’s offer to cure the survey defect.
In August of 2019, BTIC filed a motion for summary judgment, arguing that no genuine
issue of material fact existed in the dispute. Ms. Greenfield responded and again asserted that the
contract was void because none of the parties were members of the Virginia Association of
Realtors. Ms. Greenfield further argued that BTIC’s offer to cure the survey defect materially
altered the terms of the agreement, and, therefore, Ms. Greenfield had the right to reject the
amendment. BTIC filed a reply, arguing that the copyright disclaimer had no impact on the
agreement between the parties. It also argued that it had exercised its rights under the contract by
offering to cure the survey defect at its expense.
Ultimately, the circuit court granted BTIC’s motion for summary judgment. The court
found that BTIC duly exercised its right to offer to cure the survey defect at its expense under
paragraph five and that Ms. Greenfield had breached the contract by refusing to close. The court
further found that the copyright disclaimer had no impact on the contract. The circuit court
concluded that BTIC was entitled to specific performance of the contract and ordered as such.
The circuit court’s decision was memorialized by its December 5, 2019, order, which Ms.
Greenfield now appeals.
On appeal, Ms. Greenfield argues that the circuit court erred in granting summary
judgment to BTIC. This Court accords a plenary review to the circuit court’s order granting
summary judgment: “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt.
1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). We have held 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.’ Syllabus Point 3, Aetna Casualty &
Surety Company v. Federal Insurance Co. of New York, 148 W.Va. 160, 133
S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187
W.Va. 706, 421 S.E.2d 247 (1992).
Painter, 192 W. Va. at 190, 451 S.E.2d at 756, Syl. Pt. 2.
Summary 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.
Id. at 190, 451 S.E.2d at 756, Syl. Pt. 4. We note that “[t]he circuit court’s function at the
summary judgment stage is not to weigh the evidence and determine the truth of the matter, but it
is to determine whether there is a genuine issue for trial.” Id. at 190, 451 S.E.2d at 756, Syl. Pt.
3. Finally, we recognize that “the party opposing summary judgment must satisfy the burden of
proof by offering more than a mere ‘scintilla of evidence’ and must produce evidence sufficient
for a reasonable jury to find in a nonmoving party’s favor.” Williams v. Precision Coil, Inc., 194
W. Va. 52, 60, 459 S.E.2d 329, 337 (1995) (internal citation omitted).
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On appeal, Ms. Greenfield argues that the contract was invalid because the parties lacked
mutual assent. “The fundamentals of a legal contract are competent parties, legal subject matter,
valuable consideration and mutual assent. There can be no contract if there is one of these
essential elements upon which the minds of the parties are not in agreement.” Certegy Check
Servs, Inc. v. Fuller, 241 W. Va. 701, 704, 828 S.E.2d 89, 93 (2019) (citing Syl. Pt. 5, Virginian
Exp. Coal Co. v. Rowland Land Co., 100 W. Va. 559, 131 S.E.2d 253 (1926)). In Ms.
Greenfield’s view, the parties failed to agree upon the location of the land at issue. Ms.
Greenfield asserts that both parties believed that the property line of Lot 27 existed “along the
utility poles.” According to Ms. Greenfield, the survey revealed that the property line “was not in
the agreed-upon location,” and, consequently, that the parties were mistaken as to the location of
the property. Ms. Greenfield argues that this mutual mistake rendered the agreement invalid. We
find Ms. Greenfield is entitled to no relief on this issue.
Ms. Greenfield has failed to establish by citation to the record that her objection to this
asserted error was preserved below, and it appears that she has raised the argument of mutual
mistake for the first time on appeal. “Our general rule . . . is that, when nonjurisdictional
questions have not been decided at the trial court level and are then first raised before this Court,
they will not be considered on appeal.” Whitlow v. Bd. of Educ. of Kanawha Cnty., 190 W. Va.
223, 226, 438 S.E.2d 15, 18 (1993).
The rationale behind this rule is that when an issue has not been raised below, the
facts underlying that issue will not have been developed in such a way so that a
disposition can be made on appeal. Moreover, we consider the element of
fairness. When a case has proceeded to its ultimate resolution below, it is
manifestly unfair for a party to raise new issues on appeal. Finally, there is also a
need to have the issue refined, developed, and adjudicated by the trial court, so
that we have the benefit of its wisdom.
Id. Because Ms. Greenfield did not raise this argument below, we decline to address it now.
Next, Ms. Greenfield argues that the circuit court erred by declining to find that the
contract was void due to the copyright disclaimer and the language that permitted only members
of the Virginia Association of Realtors to use the contract form. Ms. Greenfield raised this issue
below, and the circuit court found that she was entitled to no relief after explaining that Ms.
Greenfield’s real estate agent was the selling and listing agent for the property and the real estate
agent utilized the form. Though it was not clear whether the real estate agent was a current
member of the Virginia Association of Realtors, the circuit court surmised that the disclaimer
had “no impact on the agreement between the parties herein” and Ms. Greenfield had failed to
offer any authority to the contrary. We agree with the circuit court’s recitation of facts and
conclusion. On appeal, Ms. Greenfield has offered no authority to show that the copyright
disclaimer voids the terms of the contract, and we find no error in this respect.
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Finally, Ms. Greenfield argues that the circuit court erred in applying West Virginia law
though paragraph 14(b) of the contract specified that disputes would be governed by Virginia
law. 3 Notably, Ms. Greenfield fails to assert that she suffered prejudice from the circuit court’s
failure to apply the choice of law provision, and she fails to explain how the application of
Virginia law would have affected the outcome. Despite this omission, we begin with
consideration of the question of whether this choice of law provision is enforceable under our
prior holdings.
“A choice of law provision in a contract will not be given effect when
the contract bears no substantial relationship with the jurisdiction whose laws
the parties have chosen to govern the agreement, or when the application of that
law would offend the public policy of this state.” Syllabus point 1, General
Electric Co. v. Keyser, 166 W.Va. 456, 275 S.E.2d 289 (1981).
Syl. Pt. 2, W. Va. CVS Pharmacy, LLC v. McDowell Pharmacy, Inc., 238 W. Va. 465, 796
S.E.2d 574 (2017). The requirement that the jurisdiction chosen by the parties have some
substantial relationship to the transaction is the general rule of most jurisdictions and is a rule of
long standing. Gen. Elec. Co., 166 W. Va. at 463, 275 S.E.2d at 293. Here, the contract bears no
substantial connection to Virginia. The subject property is located in Berkeley County, West
Virginia. The parties both provided addresses in West Virginia for notice purposes. The real
estate agent and company handling the transaction provided a West Virginia address as well.
Simply put, the terms of the contract have no relation to Virginia, other than the choice of law
provision. Accordingly, the circuit court was correct to give the choice of law provision no
effect, and Ms. Greenfield’s argument in this regard is meritless.
Having found no merit to Ms. Greenfield’s arguments on appeal, we further find that the
circuit court did not err in ordering specific performance of the contract. BTIC acted in
accordance with paragraph five of the contract in obtaining a survey of the subject property and
notifying Ms. Greenfield of the defect. Upon discovering the defect, BTIC offered to cure the
defect at its expense, which was one of the three options available in the contract. Notably,
paragraph five of the contract does not provide an option for the seller to terminate the contract
upon the discovery of a title objection. Ms. Greenfield’s failure to respond to BTIC’s offer and
her refusal to close the transaction constituted a breach of the terms of this contract. Furthermore,
the parties specifically agreed in paragraph 13(b) of the contract that upon default by Ms.
Greenfield, BTIC would have the option to seek specific performance of the contract.
Accordingly, we find that BTIC was entitled to summary judgment and specific performance,
and we find no error in the proceedings below.
For the foregoing reasons, we affirm the circuit court’s December 5, 2019, order.
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Paragraph 14(b) of the contract provides that “[t]his Agreement shall be construed,
performed and enforced in accordance with the Commonwealth of Virginia and shall not be
amended or modified and no waiver of any provision hereof shall be effective unless set forth in
a written instrument executed with the same formality as this Agreement.”
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Affirmed.
ISSUED: August 27, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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