                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Nancy Geary,
Plaintiff Below, Petitioner                                                        FILED
                                                                               January 13, 2020
vs.) No. 18-0885 (Marshall County 16-C-159)                                     EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
WesBanco Bank, Inc., and
U.S. Bank National Association,
Defendants Below, Respondents


                               MEMORANDUM DECISION


        Petitioner Nancy Geary, by counsel David L. Delk, appeals the Circuit Court of Marshall
County’s September 4, 2018, two separate orders granting respondents summary judgment on
petitioner’s breach of contract and negligence claims, which she asserted following a
determination that her property was in a flood zone and resultant requirement that she purchase
flood insurance. Respondent WesBanco Bank, Inc. (“WesBanco”), by counsel James C. Gardill
and Richard N. Beaver, filed a response. Respondent U.S. Bank National Association (“U.S.
Bank”), by counsel Jared M. Tully and Alex J. Zurbuch, also filed a response.

       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.

       On June 20, 2015, petitioner and David E. McLaughlin entered into a “Real Estate Contract
of Sale” (the “Contract”) for petitioner’s purchase of real property owned by Mr. McLaughlin in
Benwood, West Virginia (the “subject property”). The Contract provided that the home on the
subject property was being “sold as is,” that petitioner and Mr. McLaughlin understood the
Contract “to be a legally binding contract requiring performance,” and that it “contains all of the
terms and conditions agreed upon between the parties and there are no outside conditions,
representations, warranties or agreements.” Notably, there was no contingency related to a
determination as to whether the subject property was located in a flood zone.

        According to petitioner, Mr. McLaughlin represented to her that the subject property was
not located within a flood zone. On April 29, 2014, however—more than one year prior to
petitioner’s closing on the subject property—the Federal Emergency Management Agency
(“FEMA”) determined that the subject property was “located in the [Special Flood Hazard Area
(“SFHA”)]” and that “flood insurance is required for” the subject property.

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       Petitioner proceeded to closing on the subject property on August 24, 2015, with
respondent WesBanco. The Deed of Trust petitioner executed contained the following provisions
relevant to the instant appeal:

       TRANSFER OF RIGHTS IN THE PROPERTY
       The beneficiary of this Security Instrument is MERS [Mortgage Electronic
       Registration Systems, Inc.] (solely as nominee for Lender and Lender’s successors
       and assigns) and the successors and assigns of MERS. This Security Instrument
       secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and
       modifications of the Note; and (ii) the performance of Borrower’s covenants and
       agreements under this Security Instrument and the Note. For this purpose, Borrower
       hereby irrevocably grants and conveys to Trustee, in trust, with power of sale, the
       [subject property].

       ....

       Property Insurance. Borrower shall keep the Improvements now existing or
       hereafter erected on the Property insured against loss by fire, hazards included
       within the term “extended coverage,” and any other hazards including, but not
       limited to, earthquakes and floods, for which Lender requires Insurance. . . . What
       Lender requires pursuant to the preceding sentences can change during the term of
       the Loan. . . . Lender may require Borrower to pay, in connection with this Loan,
       either: (a) a one-time charge for flood zone determination, certification and tracking
       services; or (b) a one-time charge for flood zone determination and certification
       services and subsequent charges each time remappings or similar changes occur
       which reasonably might affect such determination or certification. Borrower shall
       also be responsible for the payment of any fees imposed by the Federal Emergency
       Management Agency in connection with the review of any flood zone
       determination resulting from an objection by Borrower.

       ....

       Sale of Note; Change of Loan Servicer; Notice of Grievance. The Note or a partial
       interest in the Note (together with this Security Instrument) can be sold one or more
       times without prior notice to Borrower. A sale might result in a change in the entity
       (known as the “Loan Servicer”) that collects Periodic Payments due under the Note
       and this Security Instrument and performs other mortgage loan servicing
       obligations under the Note, this Security Instrument, and Applicable Law. There
       also might be one or more changes of the Loan Servicer unrelated to a sale of the
       Note. If there is a change of the Loan Servicer, Borrower will be given written
       notice of the change which will state the name and address of the new Loan
       Servicer, the address to which payments should be made and any other information
       RESPA requires in connection with a notice of transfer of servicing. If the Note is
       sold and thereafter the Loan is serviced by a Loan Servicer other than the purchaser
       of the Note, the mortgage loan servicing obligations to Borrower will remain with



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       the Loan Servicer or be transferred to a successor Loan Servicer and are not
       assumed by the Note purchaser unless otherwise provided by the Note purchaser.

        Petitioner also signed a “Notice of Special Flood Hazards and Availability of Federal
Disaster Relief Assistance” (“Notice”), which stated that the subject property was “NOT IN
Special Flood Hazard Area (SFHA)” and, therefore, flood insurance was not required. This
determination was made on June 25, 2015, by a WesBanco vendor, ServiceLink, which is licensed
and federally-approved to make such determinations. The Notice further provided, however, that
“[i]f, during the term of this loan, the subject property is identified as being in an SFHA, as
designated by FEMA, you may be required to purchase and maintain flood insurance at your
expense.”

        On September 11, 2015, respondent U.S. Bank informed petitioner that it would begin
servicing her loan on October 1, 2015. On October 29, 2015, U.S. Bank notified petitioner that, as
the new loan servicer, it had performed a flood determination review of the subject property and
determined it to be in a SFHA. Based on this determination, U.S. Bank instructed that the subject
property “is now subject to the mandatory purchase of flood insurance as a condition of your loan.”
Petitioner purchased the required flood insurance and filed suit against respondents and Mr.
McLaughlin.1

       Petitioner alleged that “WesBanco conducted a flood hazard determination and negligently
determined that the [subject property] was not in a flood zone,” and that she purchased the property
and entered into the Note based upon this erroneous determination. Petitioner claimed that
WesBanco “had a duty to competently complete the paperwork necessary to close the loan and
disclose to [her] accurately all costs and expenses associated with the loan,” that it breached this
duty, and that, as a proximate cause of the alleged breach, she incurred additional fees and
expenses.

        With respect to U.S. Bank, petitioner asserted that it “breached its agreements” with her
“by requiring her to purchase flood insurance” on the subject property. She claimed to have “been
damaged by this breach of contract by incurring additional fees and expenses associated with the
acquisition and maintenance of” the subject property. Respondents each moved for summary
judgment, and the circuit court granted their respective motions.2 The instant appeal followed.

      This Court employs a de novo standard of review to a circuit court’s grant of summary
judgment. See Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Summary


       1
          Shortly after filing her complaint, petitioner dismissed her claims against Mr.
McLaughlin. Her claims against him centered on his alleged misrepresentation that the property
was not in a flood zone.
       2
        Although the cause of action petitioner asserted in her complaint against WesBanco
sounded only in negligence, she claimed in response to WesBanco’s motion for summary
judgment that it breached its contract with her. The circuit court granted summary judgment in
WesBanco’s favor on the breach of contract claim, to the extent asserted.


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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.” Id., syl. pt.
2, in part (citations omitted). Additionally,

                 [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., syl. pt. 4.

       In petitioner’s first assignment of error, she argues that the circuit court improperly granted
WesBanco summary judgment on her negligence claim. Petitioner maintains that WesBanco
breached its duty to provide her with accurate documents at closing; namely, it “adopted” the
Notice, which erroneously stated that the subject property was not located in a SFHA. Petitioner
claims that if WesBanco had accurately prepared this document, she would have “walk[ed] away
from the closing.”

         We find no error in the circuit court’s conclusion that WesBanco breached no duty owed
to petitioner with respect to the flood zone determination.3 WesBanco did not conduct the flood
zone determination. ServiceLink did, and petitioner offered no evidence to establish that
WesBanco was negligent in relying on this properly-licensed and federally-approved entity’s flood
zone determination. Moreover, ServiceLink stated in its determination that

         [t]his flood determination is provided solely for the use and benefit of the entity
         named in Section 1, Box 1 [WesBanco] in order to comply with the 1994 Reform
         Act and may not be used or relied upon by any other entity or individual for any
         purpose, including, but not limited to, deciding whether to purchase a property or
         determining the value of a property.

Thus, petitioner’s reliance on this determination was misplaced. The determination was not made
for her benefit; rather, ServiceLink expressly stated that only WesBanco could rely on it.

        Furthermore, even if ServiceLink’s determination revealed that the subject property was
located within a SFHA, petitioner was nonetheless contractually obligated to purchase the subject
property. The Contract, which petitioner signed prior to ServiceLink’s flood zone determination,
plainly provided that the subject property was “sold as is,” that it required specific performance,
and that it included all of the terms and conditions of the petitioner’s agreement with Mr.
McLaughlin. Petitioner did not make her purchase contingent upon the result of a flood zone
determination. Thus, the later-obtained determination, assuming it had reflected that the subject
property was within a SFHA, would not have relieved petitioner of her obligation to purchase the


         3
          “In order to establish a prima facie case of negligence in West Virginia, it must be shown
that the defendant has been guilty of some act or omission in violation of a duty owed to the
plaintiff. No action for negligence will like without a duty broken.” Syl. Pt. 1, Parsley v. Gen.
Motors Acceptance Corp., 167 W. Va. 866, 280 S.E.2d 703 (1981).
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subject property. Accordingly, we find no error in the circuit court’s grant of summary judgment
to WesBanco on petitioner’s negligence claim.

        Petitioner also argues that the circuit court erred in granting summary judgment in
WesBanco’s favor on her breach of contract claim, which was predicated on WesBanco’s “forcing
[her] to place flood insurance on” the subject property. We begin by noting that petitioner pled no
such cause of action. Nonetheless, WesBanco did not require petitioner to purchase flood
insurance. U.S. Bank, following its own flood zone determination, required the purchase of flood
insurance on the subject property. Accordingly, to the extent any such claim was raised, the court
did not err in granting summary judgment in WesBanco’s favor on it.4

        In her final assignment of error, petitioner argues that the circuit court erred in granting
summary judgment in U.S. Bank’s favor on the breach of contract claim she asserted against it.
She argues that when U.S. Bank began servicing her loan, it became “Loan Servicer,” not
“Lender,” under the Deed of Trust. According to petitioner, under that document, only the
“Lender” could require flood insurance. As a result, U.S. Bank breached the Deed of Trust by
requiring her to purchase flood insurance.

         The Deed of Trust contemplates the assignment of the rights and duties arising under that
instrument in its provisions recited above relating to the transfer of rights in the property and the
sale of the note and change of loan servicer.5 As part of U.S. Bank’s duties as servicer, it conducted
a flood zone determination that revealed the subject property to be located within a SFHA. The
Deed of Trust further set forth that the insurance requirements “can change during the term of the
Loan,” and the Notice similarly informed petitioner that “[i]f, during the term of this loan, the
subject property is identified as being in an SFHA, as designated by FEMA, you may be required

       4
          The circuit court also concluded that, had petitioner pled breach of contract, her
negligence claim would have been barred by the gist of the action doctrine, which bars recovery
in tort when any of the following factors is demonstrated:

       (1) where liability arises solely from the contractual relationship between the
       parties; (2) when the alleged duties breached were grounded in the contract itself;
       (3) where any liability stems from the contract; and (4) when the tort claim
       essentially duplicates the breach of contract claim or where the success of the tort
       claim is dependent on the success of the breach of contract claim.

Gaddy Eng’g Co. v. Bowles Rice McDavid Graff & Love, LLP, 231 W. Va. 577, 586, 746 S.E.2d
568, 577 (2013) (citations omitted). Petitioner does not assign error to the court’s application of
this doctrine. Therefore, if she pled breach of contract, her negligence claim fails for this additional
reason.
       5
          “In West Virginia, the elements of breach of contract are (1) a contract exists between the
parties; (2) a defendant failed to comply with a term in the contract; and (3) damage arose from
the breach.” Nance v. Huntington W. Va. Hous. Auth., No. 16-0855, 2017 WL 2210152, *5 (W.
Va. May 19, 2017)(memorandum decision) (citing Wittenberg v. Wells Fargo Bank, N.A., 852
F.Supp.2d 731, 749 (N.D. W. Va. 2012)).

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to purchase and maintain flood insurance at your expense.” Thus, U.S. Bank’s actions were not in
contravention of any provision within the Deed of Trust, and we find no error in the court’s
conclusion that, as servicer and assignee of the rights in the Deed of Trust, U.S. Bank did not
breach, but rather enforced, the parties’ contract.6

       For the foregoing reasons, we affirm.

                                                                                       Affirmed.

ISSUED: January 13, 2020

CONCURRED IN BY:

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




       6
         Critically, petitioner does not challenge the circuit court’s finding that U.S. Bank was
required under federal law to notify her of her obligation to purchase flood insurance upon
determining that the subject property was located within a flood zone and not covered by flood
insurance. See 42 U.S.C. § 4012a(e)(1). For this additional reason, she is entitled to no relief.
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