CHARLESTON – The West Virginia Supreme Court of Appeals said that West Rentals was rightfully awarded summary judgment in a lawsuit by a former renter.

“The court has considered the parties’ briefs and the record on appeal,” the memorandum decisions states. “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.”

For a number of years, Mark C. Busack rented a property known as 260 Bethany Pike in Wheeling from West Rentals.

Busack operated a fraudulent scheme from 260 Bethany Pike, for which he later pled guilty to five offenses under the United States Code. He is currently serving a sentence of 35 months of incarceration imposed by the United States District Court for the Northern District of West Virginia.

Prior to the initiation of Busack’s federal criminal case, the parties executed an installment land contract on July 24, 2013, for Busack to purchase 260 Bethany Pike along with another property known as 375 Oglebay Drive in Wheeling.

According to Busack, West wanted to unload 375 Oglebay Drive on him due to an undisclosed defect—a ground slip.

In June 2015, by which time Busack was awaiting sentencing in his federal criminal case, the parties executed a termination of installment land contract and agreement.

The June 8, 2015, termination agreement “terminated, cancelled, and rescinded” the July 24, 2013, installment land contract and relieved petitioner from paying any additional real estate taxes and fire service fees with regard to 260 Bethany Pike and 375 Oglebay Drive.

The parties further agreed that West would return the installment payment for June 2015 to Busack and that he was due no other monies with regard to the termination of the installment land contract.

On January 29, 2016, Busack filed a complaint in Ohio Circuit Court alleging that West failed to disclose the ground slip at 375 Oglebay Drive prior to the execution of the July 24, 2013, installment land contract, which “[made] it difficult[,] if not impossible[,] to sell [375 Oglebay Drive] because of the pre-existing condition.”

Nowhere in his complaint did Busack acknowledge the existence of the June 8, 2015, termination agreement. However, West filed an answer on March 16, 2016, that asked that petitioner’s complaint be dismissed for a failure to state a claim on which relief could be granted. Then, on June 22, 2016, West filed a motion for summary judgment with the installment land contract and the termination agreement attached as exhibits.

By order entered on June 24, 2016, the circuit court awarded West summary judgment in the underlying civil action.

In making its ruling, the circuit court found that Busack failed to acknowledge the parties’ June 8, 2015, termination of the July 24, 2013, installment land contract in his complaint.

Busack then appealed the order from Ohio Circuit Court. He contends that he did not have sufficient time to raise the issue of the termination agreement’s validity because the circuit court improperly granted summary judgment only two days after respondent filed its motion.

“Upon our review of the record, we find that petitioner was attempting to gain a perceived tactical advantage by purposely omitting the termination agreement in his complaint,” the decision states. “After respondent attached the termination agreement to its motion for summary judgment, petitioner could no longer ignore that agreement’s existence and had to allege that it was not valid. We do not credit such allegations because petitioner never contends that he did not know of the reasons for the termination agreement’s purported invalidity at the time of the filing of his complaint.”

The Supreme Court conclude that the circuit court properly awarded West summary judgment because the 2015 termination agreement “terminated, cancelled, and rescinded” the 2013 installment land contract on which Busack’s civil action was based.

W.Va. Supreme Court of Appeals case number: 16-0900

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