Mama Rosa's and Beyond v. Schooner's Stadium Front Grille

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Mama Rosa’s and Beyond, LLC, and Spiro Matias,
Defendants in Cross-Claim Below, Petitioners FILED
vs) No. 16-1027 (Cabell County 12-C-836) January 19, 2018
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
Schooner’s Stadium Front Grille, OF WEST VIRGINIA
Plaintiff in Cross-Claim Below, Respondent
MEMORANDUM DECISION
Petitioners Mama Rosa’s and Beyond, LLC, and Spiro Matias, by counsel Samuel F.
Hanna, appeal the verdict of a Cabell County jury that found petitioners breached a sublease
contract with respondent and damaged respondent’s property. Respondent Schooner’s Stadium
Front Grille, by counsel Matthew L. Ward, filed a response, to which petitioner filed a reply.
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.
On August 1, 2012, Petitioners Mama Rosa’s and Beyond, LLC, and Spiro Mitias, and
Respondent Schooners Stadium Front Grille entered into a sublease agreement for the lease of
commercial property (“the premises”), and certain items of respondent’s personal property
located on Third Avenue in Huntington, West Virginia. The sublease agreement contained an
acknowledgment that petitioners received a copy of the primary lease agreement, and agreed to
abide by the terms and conditions of the primary lease of the premises, including, the payment of
lease obligations under the primary lease.1
After executing the sublease agreement, petitioners operated a restaurant on the premises.
However, after the head manager at the restaurant became ill in September of 2012, business
began to decline, and petitioners did not pay rent for the month of October 2012. During that
month, an employee placed a sign in the window of the premises stating that the restaurant was
closed. Beth Kilgore, an employee of respondent, learned of the closure, visited the premises,
and discovered that the business was closed. As a result she attempted to contact Petitioner
Mitias in order to recover the delinquent rent and to ascertain the status of the restaurant. The
1
Respondent entered into a primary lease agreement in February of 2011 with 119 South
Properties LLC. The primary lease term was from February 4, 2011, to January 31, 2014, and
respondent was required to pay 119 South Properties, LLC $3,400 per month in rent.
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parties spoke on November 1, 2012, at which time, Ms. Kilgore later testified, Petitioner Mitias
told her that Mama Rosa’s was experiencing employee theft and would not be re-opening the
restaurant or paying rent. Thomas Crabtree testified that, on November 1, 2012, while visiting
the premises, he observed individuals illegally removing equipment which he believed belonged
to respondent. As a result, respondent entered the premises, and changed the locks on the
premises, barring petitioners from re-entering.
In December of 2012, petitioners filed suit against respondent alleging breach of
contract.2 Respondent answered and filed a counterclaim in March of 2013 alleging breach of
contract, breach of covenant of good faith and fair dealing, and conversion. According to the
circuit court, petitioners later voluntarily withdrew their complaint. Following discovery, the
circuit court held a jury trial in January of 2016 on respondent’s claims. During trial, respondent
withdrew its claim for breach of covenant of good faith and fair dealing, and petitioners objected
to the entry into evidence of a copy of the primary lease agreement. Petitioners complained that
the copy of the primary lease agreement furnished by respondent was not complete, and
therefore was not admissible under the West Virginia Rules of Evidence. The circuit court
ordered respondent to find an original, complete copy of the lease during a lunch break.
Following the break, respondent’s counsel represented that the original copy of the primary lease
was likely destroyed, when respondent’s business office sank in the Ohio River.3 The parties
presented and argued jury instructions.
Following deliberations, the jury returned a verdict finding (1) that Petitioners Mama
Rosa’s and Spiro Mitias breached their contract with Respondent Schooner’s Stadium Front
Grille, Inc.; (2) that petitioners owe respondent $25,500 in rent and $1,200 for property damage;
and (3) that petitioners did not convert personal items from respondent. Accordingly, the circuit
court entered judgment in favor of respondent on its breach of contract claim in the amount of
$26,700; entered judgment in favor of petitioners on respondent’s conversion claim, finding that
respondent was not entitled to recovery on that claim, and (4) ordered that respondent was
entitled to attorney’s fees pursuant to the sublease agreement, which the court found
unambiguously requires the reimbursement of respondent’s costs. Petitioner filed a motion for a
new trial, which the circuit court denied by order entered July 25, 2016.
On appeal to this Court, petitioners contend that the circuit court erred in admitting a
partial copy of the original lease agreement and in finding that said agreement was only missing
one page, and that the circuit court gave an erroneous jury instruction.
In reviewing challenges to findings and rulings made by a circuit court, we
apply a two-pronged deferential standard of review. We review the rulings of the
circuit court concerning a new trial and its conclusion as to the existence of
reversible error under an abuse of discretion standard, and we review the circuit
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Petitioners’ complaint was dismissed with prejudice prior to the jury trial.
3
Apparently, respondent’s previous business office was located on a barge along the
Ohio River.
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court’s underlying factual findings under a clearly erroneous standard. Questions
of law are subject to a de novo review.
Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).
Petitioners argue that pursuant to Rule 1002 of the West Virginia Rules of Evidence (“the
Best Evidence Rule”) an original writing is required in order to prove its content. Petitioners
complain that they were not a party to the original lease and were not provided a full copy of the
lease in discovery, and as a result, did not know the full contents of the lease. Petitioners claim
this is prejudicial error. We disagree. According to Rule 1004 of the Rules of Evidence, in
relevant part, “[a]n original is not required and other evidence of the contents of a writing, . . . is
admissible if: (a) All the originals are lost or destroyed, and not by the proponent acting in bad
faith[.]” Here, the circuit court found that the original copy of the lease agreement was destroyed
through no fault of respondent, and that petitioners did not deny or dispute the contents of the
exhibit. Petitioners do not suggest or argue that the original writing was purposely destroyed, and
provide mere speculation regarding the contents of the missing portion. Under these
circumstances there is no evidence to suggest that the circuit court’s findings were clearly
erroneous, and as a result, we find no error in the admission of the document.
Petitioners also assert, as assignments of error, that the circuit court erred in finding that
petitioner complained that only one page of the original lease was missing; and in presenting a
jury instruction regarding respondent’s entry onto the premises. However, petitioners fail to
make a single citation to pertinent authority in support of their arguments. Consequently, we find
that these arguments are not proper for appellate review. We have long held that “[a] skeletal
‘argument,’ really nothing more than an assertion, does not preserve a claim . . . . Judges are not
like pigs, hunting for truffles buried in briefs.” State ex rel. Hatcher v. McBride, 221 W.Va. 760,
766, 656 S.E.2d 789, 795 (2007). The failure to provide this Court with any supporting authority
for petitioner’s assigned errors is in direct contradiction of this Court’s Rules of Appellate
Procedure.
Specifically, Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires
that
[t]the brief must contain an argument exhibiting clearly the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on . .
. [and] must contain appropriate and specific citations to the record on appeal[.] . .
. The Court may disregard errors that are not adequately supported by specific
references to the record on appeal.
(Emphasis added). “In the absence of supporting authority we decline further to review this
alleged error because it has not been adequately briefed.” State v. Allen, 208 W. Va. 144, 162,
539 S.E.2d 87, 105 (1999).
For the foregoing reasons, we affirm.
Affirmed.
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ISSUED: January 19, 2018
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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