WEST VIRGINIA RECORD

CHARLESTON – Bernard Folio of Clarksburg and his real estate business can pursue a suit to make city taxpayers demolish a building they bought from him and a suit seeking damages from the city for fraud and misrepresentation.

Two judges in Harrison County had thrown out Folio's suits against the city, but on Nov. 9 the West Virginia Supreme Court of Appeals reversed both judges.

Folio claims city officials told him they would demolish the building if he sold it to them, though they did not intend to demolish it at all.

Demolition would open pedestrian right of way and sewer access to other properties in the area owned by Grandeotto Inc., Folio's business.

The building, Rocky's Shoe Store, occupies the southern end of a Grandeotto parcel between Trader's Avenue and West Pike Street in Clarksburg.

The parcel also holds about 70 parking spaces.

City officials inquired about buying the property in 2003, as a site for a new parking garage. The state had approved a grant to help build the garage.

Grandeotto sold the property to the city in 2004 for $220,000.

The city did not demolish the shoe store. Six months after the sale, Folio sued the city to demolish it or compensate him for the loss of use of his rights of way.

The city moved for summary judgment and, in 2006, Circuit Judge James Matish granted it. He found that Gradeotto had no valid rights of way in the property.

Folio sued the city again, alleging fraudulent or negligent misrepresentation.

The city moved to dismiss. Circuit Judge Thomas Bedell converted the motion to a summary judgment motion, which he granted.

Folio appealed both orders. Jerry Blair of Clarksburg represented him and his business. Gregory Morgan of Clarksburg represented the city.

The Supreme Court of Appeals consolidated the cases and remanded both.

In an unsigned opinion, Chief Justice Robin Davis and Justices Joseph Albright, Larry Starcher and Spike Maynard revived Folio's suits.

"The city argues that it never made any misrepresentation to Grandeotto that it knew to be false and there is simply no evidence thereof," they wrote. "Grandeotto says otherwise. Such factual disputes are usually resolved by juries and not judges."

In the second suit, they wrote, Bedell concluded that Grandeotto had not stated a claim for fraud, fraudulent misrepresentation or negligent misrepresentation.

"We disagree," they wrote. "Clearly, there are genuine issues of material fact with regard to the city's conduct at the time of the conveyance."

Justice Brent Benjamin dissented, arguing that if Folio expected the city to demolish the building he should have written that into the sale contract.

"The appellants had every opportunity to make sure that provisions for the demolition of the shoe store building were placed in the documents concerning the sale of the parcel," Benjamin wrote. "They failed to do so, and they cannot now specifically enforce the building's demolition upon the city."