                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Tracy Banh,
Plaintiff Below, Petitioner                                                          FILED
                                                                                 October 23, 2017
vs) No. 16-1049 (Harrison County 2015-C-196-2)                                     RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
David Doan,

Defendant Below, Respondent



                               MEMORANDUM DECISION
         Petitioner Tracy Banh, by counsel Peter D. Dinardi, appeals the Circuit Court of Harrison
County’s November 2, 2016, order granting summary judgment in favor of respondent David
Doan. Respondent, by counsel Debra Tedeschi Varner, James N. Riely, and Stanley A. Heflin
III, filed a response. Petitioner filed a reply. On appeal, petitioner argues that the circuit court
erred in granting respondent’s renewed motion for summary judgment because genuine issues of
material fact existed. Petitioner also argues that the circuit court erred in denying her a sufficient
amount of time to respond to the renewed motion for summary judgment and granting
respondent leave to file the renewed motion.

        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.

        Petitioner and respondent have been in a close personal relationship since approximately
1990 and began living together in Bridgeport, West Virginia, in 2000. Some time prior to
October of 2013, the parties jointly owned a business called Exotic Nails & Spa, LLC (“Exotic
Nails”), located in the Meadowbrook Mall in Bridgeport. In October of 2013, the parties ceased
their personal relationship when petitioner moved out of their shared residence.

        On October 22, 2013, the parties signed a notarized sales agreement that transferred
petitioner’s ownership in Exotic Nails to respondent for $50,000. During the proceedings below,
respondent continued to own and operate the business. During the proceedings, petitioner
admitted that she signed the notarized sales agreement. Respondent also had complete ownership
of certain real property located in Orange County, California, that was deeded to him in a signed
and notarized inter-spousal grant deed that petitioner also admitted to signing. Additionally, the
parties previously owned another business called Elevation Hair and Nails (“Elevation”) that
they sold to Theresa Vest and others for $120,000. The parties shared in the proceeds of that sale.


                                                      1

       In May of 2015, petitioner filed a complaint against respondent and alleged the following
causes of action: (1) breach of an implied contract and/or contract in fact with respect to
ownership of Exotic Nails; (2) fraud in obtaining ownership of Exotic Nails; (3) conversion of
the proceeds of the sale of Elevation; and (4) fraud in obtaining ownership of the Orange County
property. Thereafter, respondent filed a motion for summary judgment, which the circuit court
denied by order entered on June 24, 2016.

        Following additional discovery, including petitioner’s depositions of several of
respondent’s fact witnesses, respondent filed a motion for leave to file his renewed motion for
summary judgment on August 26, 2016. On August 30, 2016, the circuit court granted
respondent leave to file the renewed motion, directed that he do so immediately, and further
directed petitioner to respond by noon on Friday, September 2, 2016. Respondent filed his
renewed motion on August 30, 2016, and submitted his supplemental deposition testimony in
support thereof the following day, as directed. Petitioner submitted her response on September 2,
2016. Thereafter, the circuit court granted respondent’s renewed motion for summary judgment
by order entered on November 2, 2016. It is from this order that petitioner appeals.

        “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). Our review is guided by the principle 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 Co. 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. Furthermore,

               “[s]ummary 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.” Syllabus point 4,
       Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

Syl. Pt. 5, Toth v. Bd. of Parks & Recreation Comm’rs, 215 W.Va. 51, 593 S.E.2d 576 (2003).
Upon our review, we find no error below.

        On appeal, petitioner argues that summary judgment was improper because the following
issues of material fact existed: (1) whether respondent paid petitioner for her interest in Exotic
Nails; (2) if petitioner was paid, in what manner was she compensated; (3) if petitioner was not
paid, did such act void the conveyance of her interest in the business; (4) whether respondent
committed fraud or misrepresentation against petitioner based on her alleged lack of
compensation; (5) whether an implied partnership existed between the parties and, if so, what
were the duties and obligations of each upon dissolution; (6) whether the circuit court ignored
the relationship between the parties; (7) whether respondent was guilty of wrongful conversion

                                                     2

of the money due to petitioner under the contract for Elevation’s sale; (8) whether respondent
made fraudulent misrepresentations to petitioner in order to obtain her signature on the document
conveying her interest in Exotic Nails; and, (9) whether petitioner relied upon these
misrepresentations to her detriment. However, petitioner fails to recognize that, as the circuit
court correctly found, there is no evidence to support any of these claims.

       On appeal to this Court, petitioner fails to demonstrate that there is any evidence to
support her claim that genuine issues of material fact existed below. In addressing motions for
summary judgment, we have held as follows:

               If the moving party makes a properly supported motion for summary
       judgment and can show by affirmative evidence that there is no genuine issue of a
       material fact, the burden of production shifts to the nonmoving party who must
       either (1) rehabilitate the evidence attacked by the moving party, (2) produce
       additional evidence showing the existence of a genuine issue for trial, or (3)
       submit an affidavit explaining why further discovery is necessary as provided in
       Rule 56(f) of the West Virginia Rules of Civil Procedure.

Syl. Pt. 3, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). Elaborating on
this holding, we have stated that

       [t]o be specific, 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.
       Anderson, 477 U.S. at 252, 106 S.Ct. at 2512, 91 L.Ed.2d at 214. The evidence
       illustrating the factual controversy cannot be conjectural or problematic. It must
       have substance in the sense that it limns differing versions of the truth which a
       factfinder must resolve. The evidence must contradict the showing of the moving
       party by pointing to specific facts demonstrating that, indeed, there is a
       “trialworthy” issue. A “trialworthy” issue requires not only a “genuine” issue but
       also an issue that involves a “material” fact. See Anderson, 477 U.S. at 248, 106
       S.Ct. at 2510, 91 L.Ed.2d at 211.

Williams, 194 W.Va. at 60, 459 S.E.2d at 337.

        In its order granting summary judgment for respondent, the circuit court found that
petitioner “essentially relied on argument and allegations to overcome [respondent’s] Renewed
Motion for Summary Judgment.” The circuit court further found that “[petitioner] was provided
multiple opportunities to set forth affirmative evidence in support” of her claims, yet “[d]espite
these opportunities, [petitioner’s] responsive pleadings were completely devoid of evidence that
could establish” the elements necessary to satisfy these causes of action. Moreover, the record is
clear that the circuit court correctly found that “[petitioner] did not present sufficient evidence to
demonstrate that any material facts are in legitimate dispute . . .” and that she failed to
rehabilitate the evidence presented or produce additional evidence on any of the allegations.
Despite petitioner’s claims to have witnesses who could corroborate and prove her allegations,
the circuit court found that “she failed to provide such evidence for Rule 56 purposes. By not

                                                      3

doing so, such failure . . . prove[d] fatal to her alleged causes of action . . . .” For these reasons,
the circuit court found that there was insufficient evidence for a reasonable jury to find in her
favor on any of the counts set forth in her complaint. We agree.

        Petitioner raises as error on appeal the issue of whether respondent paid her the $50,000
due on the bill of sale wherein she transferred her fifty percent interest in Exotic Nails to
respondent. However, this issue is not properly before the Court. The record shows that
petitioner did not seek judgment against respondent because of the alleged non-payment of the
$50,000. In the proceedings below, neither petitioner’s complaint, the summary judgment
motions and briefs, nor any other pleadings alleged that petitioner sought recovery for the
alleged non-payment of the $50,000. Instead, the issue raised by petitioner was whether she
transferred ownership of Exotic Nails to respondent. On this issue, the circuit court found that
the sale agreement between the parties was valid and that petitioner transferred her ownership
interest in Exotic Nails to respondent. The question of whether petitioner was paid the $50,000
was simply not an issue that the circuit court was asked to rule upon. As such, the circuit court
did not make any ruling regarding whether petitioner was paid the $50,000 per the terms of the
sales agreement. Accordingly, we decline to address this issue on appeal. See Noble v. W.Va.
Dep’t of Motor Vehicles, 223 W.Va. 818, 821, 679 S.E.2d 650, 653 (2009) (“Our general rule is
that nonjurisdictional questions . . . raised for the first time on appeal, will not be considered.”).
Whether the $50,000 sale price was paid to petitioner under the terms of the sales agreement is
an issue that will have to be resolved in a new proceeding.

        On appeal, petitioner simply alleges that genuine issues of material fact exist without
demonstrating any evidence which supports these claims. Such bald assertions are insufficient to
overcome summary judgment as “evidence illustrating the factual controversy cannot be
conjectural . . . .” Williams, 194 W.Va. at 60, 459 S.E.2d at 337. Accordingly, petitioner is
entitled to no relief on appeal, and we find no error in the circuit court granting summary
judgment in respondent’s favor.

         Finally, petitioner argues that she had insufficient time to respond to respondent’s
renewed motion for summary judgment and that the circuit court erred in granting leave for him
to file the same. In support of her assignment of error regarding the allegedly insufficient time to
respond to respondent’s motion, petitioner makes much of the fact that she had roughly two-and­
a-half days to respond to the motion, thereby denying her sufficient time to adequately respond.
However, in support of petitioner’s assignment of error alleging that the circuit court erred in
granting respondent leave to file the renewed motion, she argues that this was error because
respondent did not rely on any new evidence. In fact, petitioner explicitly states that “[a] review
of respondent’s original Motion for Summary Judgment . . . shows very little difference in the
arguments made by respondent.” Accordingly, since petitioner has alleged that petitioner’s
original motion for summary judgment, to which she had already responded, was almost
identical to his renewed motion for summary judgment, we find no error in regard to the circuit
court’s order directing petitioner’s prompt response thereto. Further, petitioner has cited to no
authority that prevents a circuit court from revisiting a prior motion for summary judgment. In
fact, in her reply, petitioner concedes that this Court has held that “we find nothing in our
jurisprudence which would prevent a lower court from exercising its discretion to revisit a
previous denial of summary judgment in an effort to ensure the proper administration of justice.”

                                                      4

Dellinger v. Pediatrix Medical Group, P.C., 232 W.Va. 115, 119 n. 8, 750 S.E.2d 668, 672 n. 8
(2013). As such, we further find that the circuit court did not err in granting respondent leave to
file his renewed motion for summary judgment.

      For the foregoing reasons, the circuit court’s November 2, 2016, order granting summary
judgment in respondent’s favor is hereby affirmed.


                                                                                        Affirmed.

ISSUED: October 23, 2017

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




                                                    5

