                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Steve and Marietta Torrico,
Plaintiffs Below, Petitioners                                                       FILED
                                                                               February 3, 2020
vs) No. 18-1022 (Raleigh County 17-C-64-D)                                      EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Chase Cappellari,
Defendant Below, Respondent


                               MEMORANDUM DECISION

        Petitioners Steve and Marietta Torrico, by counsel Anthony M. Salvatore, appeal the
Circuit Court of Raleigh County’s October 16, 2018, order granting summary judgment in favor
of Respondent Chase Cappellari. Respondent, by counsel Darl Poling, filed a response in support
of the circuit court’s order.

       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.

       This dispute concerns a contract to purchase real estate located at 142 Barnstaple Drive, in
Daniels, Raleigh County, West Virginia. On or about October 24, 2016, petitioners entered into a
contract with respondent, whereby respondent would purchase the property from petitioners for
$359,000.1 Respondent’s offer to purchase was contingent upon securing financing from a
designated lender, United Bank. Pursuant to the contract:

       a) This offer is made contingent upon Buyer obtaining a commitment for financing
       from a lending institution or individual, in an amount of not less than Two hundred
       eighty seven thousand Dollars ($287,000.00), and with an interest rate of not more


       1
         Per the contract, time was of the essence, and the contract was to close by December 8,
2016, at 5:00 p.m. As is evident from the record, the contract did not close in accordance with the
timeframe set forth in the contract, but the circumstances surrounding this issue are not clear from
the record. Inasmuch as the circuit court did not rely upon this provision in its order granting
respondent summary judgment, we refuse to address our lineage of cases addressing time of the
essence clauses.


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       than 4% over a period of not less than 30 years, or under the following specific
       terms: Buyer is seeking financing through United.

Respondent initiated the loan process and an appraisal for the property from United Bank was
returned on December 7, 2016, noting an appraised value for the property of $360,000.

        Respondent took occupancy of the property and moved in prior to closing.2 A mold
inspection was conducted, which revealed that there was mold in the house. The mold report was
shared with Allstate Insurance Company (“Allstate”), respondent’s proposed insurer, and later,
with United Bank. Following receipt of the mold report, Allstate issued a written denial of
coverage. Thereafter, United Bank denied respondent’s loan, noting that the property was an
“unacceptable property.” Respondent then immediately notified petitioners of his desire to
terminate the contract. As a result, petitioners demanded that respondent vacate the premises and
remove all belongings from the house within forty-eight hours. Respondent complied with this
request and vacated the property.

        Petitioners filed a complaint in the Circuit Court of Raleigh County alleging breach of
contract.3 Petitioners claim that they entered into a contract to purchase another home after entering
into the real estate contract with respondent. They claim that as a result of respondent’s breach of
contract, they were forced to purchase the other real estate without the use of the proceeds expected
in the real estate transaction with respondent.

         After the parties engaged in discovery, respondent filed a motion for summary judgment.
Following a hearing on the motion, the circuit court entered an order on October 16, 2018, finding
that “[t]he court is controlled by the terms of the contract to which both the plaintiff and defendant
agreed.” Per the circuit court’s order:

               There is no dispute that [the] ability of defendant to acquire financing
       through United Bank was a contingent provision of the October 24, 2016 agreement
       of the parties for the purchase and sale of the residential property. Defendant timely
       advised plaintiffs of the denial by United Bank and the cancelation of the contract
       of October 24, 2016. . . . Plaintiffs, who had agreed to permit defendant to occupy
       the property prior to closing, advised defendant to vacate the premises within 48
       hours and defendant complied with the directive.

       Further the circuit court found that “there is nothing in the contract that would require
defendant to obtain an alternative means of financing.” Accordingly, the circuit court granted
respondent’s motion for summary judgment and dismissed the action. This appeal followed.


       2
         After taking occupancy, petitioners allege that respondent made numerous requests to
repair/remediate issues with the house, to which petitioners acquiesced. Petitioners allege that they
spent approximately $22,000 to remediate conditions of mold and $2,000 to install crown molding.
       3
         The complaint was not included in the appellate record as required by Rule 7(d) of the
Rules of Appellate Procedure, and, therefore, we rely upon the circuit court’s order concerning the
causes of action alleged in the complaint.
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       On appeal, this Court accords a plenary review to the circuit court’s order granting
summary judgment: “[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). In conducting our de novo review,
we apply the same standard for granting summary judgment that is applied by the circuit court.
Under that standard,

                “‘[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. In other words,

               [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.

Id. at 190, 451 S.E.2d at 756, syl. pt. 4. Additionally, we note that “[t]he circuit court’s function at
the summary judgment stage is not to weigh the evidence and determine the truth of the matter,
but is to determine whether there is a genuine issue for trial.” Id. at 190, 451 S.E.2d at 756, syl. pt.
3. Finally, we note that “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 [v. Liberty Lobby, Inc.], 477 U.S.
[242] at 252, 106 S.Ct. [2505] at 2512, 91 L.E.2d [202] at 214 [1986].” Williams v. Precision Coil,
Inc., 194 W. Va. 52, 60, 459 S.E.2d 329, 337 (1995).

       On appeal, petitioners assert that the circuit court erred in granting summary judgment in
favor of respondent and, in doing so, usurped the role of the jury.4 We disagree. This Court has
       4
         The argument section of petitioners’ brief lacks citation to law or the record in support of
their position. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires that

       [t]he 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). Additionally, in an Administrative Order entered December 10, 2012, Re:
Filings That Do Not Comply With the Rules of Appellate Procedure, the Court noted that “[b]riefs
that lack citation of authority [or] fail to structure an argument applying applicable law” are not in
compliance with this Court's rules. Further, “[b]riefs with arguments that do not contain a citation
to legal authority to support the argument presented and do not ‘contain appropriate and specific


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long held that “[w]here the parties to a contract have specified therein the conditions upon which
an action upon the contract may be maintained, such conditions precedent generally must be
complied with before an action for breach of contract may properly be brought.” Syl. Pt. 1,
Vaughan Constr. Co. v. Va. Ry. Co., 82 W. Va. 658, 97 S.E. 278 (1918). Moreover,

       [t]here is no more firmly rooted principle of law than that these parties had a right
       to make whatever contract they pleased with reference to this property. Under the
       broad liberty of contract allowed by the law, parties may make performance of any
       comparatively, or apparently, trivial and unimportant covenant, agreement, or duty
       under the contract a condition precedent, and, in such case, the contract will be
       enforced or dealt with as made.

Watzman v. Harry L. Unatin, 101 W. Va. 41, 51, 131 S.E. 874, 878 (1926).

        Respondent’s offer to purchase petitioners’ property was premised upon the contingency
that he be able to obtain financing from United Bank, a condition agreed to by petitioners. As noted
above, the circuit court found that the condition as to financing was an integral part of respondent’s
offer to purchase. This Court has held that conditions precedent to the sale of real estate, wherein
the condition was one of obtaining financing, are enforceable. See Manning v. Bleifus, 166 W. Va.
131, 133, 272 S.E.2d 821, 823 (1980). In Manning, this Court held that a condition precedent for
financing must be supported by the buyer’s “good faith effort[s] to obtain financing.” Id.
Moreover, “[w]hether a buyer made good faith, reasonable efforts is a fact question that we will
not reverse unless clearly wrong and against the preponderance of evidence.” Id. at 134, 272 S.E.2d
at 823 (citing Frasher v. Frasher, 162 W. Va. 338, 249 S.E.2d 513 (1978); Blamble v. Harsh, 163
W. Va. 733, 260 S.E.2d 273 (1979)).

        As evidence of his “good faith” in the instant matter, respondent submitted his own
affidavit and testimony from the loan officer from United Bank who was familiar with the
transaction. The circuit court relied on the loan officer’s testimony that he could not think of
anything more that respondent could have done so that United Bank would have funded the loan.
Accordingly, the circuit court found that respondent made a good faith effort to obtain financing
as required by the contract. Given petitioners’ failure to rebut this evidence, we agree with the
circuit court. Thus, we find that the circuit court properly granted summary judgment in favor of
respondent.

       For the foregoing reasons, we affirm.

                                                                                             Affirmed.

ISSUED: February 3, 2020



citations to the . . . record on appeal . . .’ as required by rule 10(c)(7)” are not in compliance with
this Court's rules. Here, petitioners’ brief is inadequate as it fails to comply with the administrative
order and the West Virginia Rules of Appellate Procedure.


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CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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