Rodriguez

MORGANTOWN -- A Monongalia Circuit Court has granted partial summary judgment to former West Virginia University and University of Michigan football coach Rich Rodriguez after a Weirton attorney sued him over problems with the purchase of the coach's Morgantown home.

The court, in a six-page order entered March 4, denied attorney Raymond A. Hinerman Sr.'s motion for partial summary judgment.

Hinerman and his wife, Barbara, filed the lawsuit Dec. 27 against Richard and Rita Rodriguez.

In their complaint, the Hinermans said they signed a purchase agreement for the home located in Greystone Estates for $1.3 million and were ready to close on the property on Dec. 20. The sellers asked for that closing to be moved to Dec. 22, and the buyers agreed.

On Dec. 21, the Realtor for the Rodriguezes advised the Hinermans that a room they previously hadn't been able to inspect -- because it was full of children's toys and, on one occasion, the door wouldn't open -- had suffered a water leak. On the final inspection on Dec. 22, there were ongoing attempts to dry out the "strong musty smell and obvious water leak."

The Hinermans said all sales documents including the deed were at the Realtor's office and ready for the closing when the Rodriguezes' attorney called "stating that there would be no sale until the buyers signed a document accepting full responsibility for the leak and its consequences."

The Hinermans refused to sign the document and "demanded the sale proceed and tendered the full purchase price to the Realtor." Later, in a phone conversation with the Rodriguezes' counsel, Hinerman said he was told the sellers "were unilaterally continuing the closing until sometime before Dec. 31, 2010."

The Hinermans argued that the leak and damages were not their responsibility and that the Rodriguezes should fix it. The Rodriguezes refused, and the closing had not been reset at the time of the filing on Dec. 27.

The Hinermans said the Rodriguezes were creating an anticipatory breach of contract. They also said the Rodriguezes were "aware of another buyer willing to pay more than the contracted sale price."

Also, the Hinermans claimed that a Four Winds boat would be given to them with the purchase of the home. But after signing the purchase agreement, they said the Rodriguezes then said the boat would cost roughly an extra $40,000.

The Hinermans sought to enjoin the Rodriguezes from selling the property to any other persons and to convey it to them for the agreed sale price without any pre-conditions. They also wanted to resolve the issue of who has responsibility for the repair of the leak and its damages. They also wanted a special commissioner appointed to do what sellers are ordered to do should they not immediately do so. And they wanted compensatory and punitive damages as well as other relief including attorney fees, court costs, inconvenience, mental stress and loss of productive time.

On Dec. 30, the Rodriguezes asked the court to dismiss the Hinerman complaint and to deny the motion for injunctive relief. They said the purchase agreement states, "It is understood that this property is being sold 'as is' and seller will make no repairs."

The Rodriguezes said they compromised the sale price to allow a cushion with which the buyers could make repairs if necessary.

The court found that in this case, the Rodriguezes did disclose the defect -- the water leak -- prior to the Hinermans' purchase of the propoerty.

"The disclosure gave the Hinermans the contractual option to investigate the defect to determine if they still wanted to purchase the property with their actual knowledge that Paragraph 25 of the Uniform Purchase Agreement excuses the Rodriguezes from repairing the water leak or any other defect," the court wrote in its order.

The existence of an "as is" clause in a contract of sale for real estate will not relieve the vendor of his obligation to disclose a condition that substantially affects the value or habitability of the property, if the condition is known to the vendor but not to the purchaser, and would not be disclosed by a reasonable and diligent inspection, the court explained.

"The court finds that while the Rodriguez 'as is' contract required a disclosure of the water leak, the disclosure was made," it wrote. "Therefore, Hinerman purchasers had actual knowledge of the water leak at issue in the case, and the court further finds that the water leak would have been discovered by the plaintiffs had they initiated a reasonable and diligent inspection of the property after receiving notice of the condition."

The court said an inspection after the disclosure would have provided the Hinermans the opportunity to withdraw from the purchase of the property had they desired to do so.

"Based on the above findings of fact and conclusions of law and the entire record, the court grants the Rodriguez motion for summary judgment as there are no genuine issues of material fact on the fraud count or the breach of contract count, and the Rodriguezes are entitled to judgment as a matter of law on these two causes of action," according to the court order.

However, the court said there were "genuine issues of material fact" on the Four Winds boat sale. The court denied the Rodriguezes' motion for summary judgment on that issue.

Rodriguez was WVU's football coach from 2001 to 2007. He led the Mountaineers to the cusp of the national championship game in the 2007 season. A loss to unranked rival Pittsburgh knocked WVU from a chance at the title.

Days after he left WVU, the university took Rodriguez to court over his $4 million buyout clause with the school. In July 2008, the parties settled that suit. Michigan paid $2.5 million of the buyout, and Rodriguez paid the other $1.5 million.

Rodriguez, who was fired in January after coaching at Michigan for three years, led the Wolverines to the school's worst record in history in 2008 with a 3-9 record. His overall record at Michigan was 15-22.

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