                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Michael Coffield and Tylene Coffield,                                             FILED
Plaintiffs/Counterclaim Defendants Below,                                        March 28, 2014
                                                                             RORY L. PERRY II, CLERK
Petitioners                                                                SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

vs) No. 13-0680 (Marshall County 11-C-23)

Florence Behrens, Donna Auber,

Charles Danehart, Linda Cook,

Sue Haberfield, Cathy Downing,

Thomas Harbert, and John Lemons,

Heir of Valentina Lemons,

Third Party Defendants Below,

Respondents


                              MEMORANDUM DECISION
        Petitioners Michael Coffield and Tylene Coffield, plaintiffs and counterclaim defendants
below, by counsel Eric Gordon, appeal the order of the Circuit Court of Marshall County,
entered May 28, 2012, that granted partial summary judgment to respondents (the third-party
defendants below) in an action seeking title to real property. Respondents Florence Behrens,
Donna Auber, Charles Danehart, Linda Cook, and Sue Haberfield, by counsel Joseph L. John,
filed a response to which petitioner replied. Respondents Cathy Downing, Thomas Harbert, and
John Lemons, the heir of Valentina Lemons, do not make an appearance herein.

        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.

        The real property at issue in this appeal is a farm located in Marshall County, West
Virginia. In 1879, Henry Behrens acquired the property through two separate deeds. Mr. Behrens
first acquired a “179.5 acre tract” by deed dated April 7, 1879 (Mr. Behrens’ “first deed”). Five
months later, Mr. Behrens acquired an “18 to 20 acre tract[,]” by deed dated September 22, 1879
(Mr. Behrens’ “second deed”). The property described in Mr. Behrens’ second deed adjoined the
property described in Mr. Behrens’ first deed. Upon Mr. Behrens’ death, all of his real property
was devised to his son. When the son died, the property was left to numerous heirs, some of
whom are respondents in this appeal.

      Petitioners purchased what they believed to be the entire Behrens’ farm from Mr.
Behrens’ heirs on January 24, 2008, for $230,000. The real estate contract between the parties

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stated, “That the Sellers hereby agree to sell and the Buyers hereby agree to purchase certain real
estate described as 179.5 acres, more or less . . .” The physical description of the property and
the metes and bounds matched those in Mr. Behrens’ first deed which was the only deed known
to the parties to the contract at the time of the sale.

        The farm was conveyed to petitioners in three deeds. After these deeds were recorded,
petitioners had the property surveyed. The survey revealed that the farm consisted of only 166.3
acres, or 18.2 acres less than the 179.5 acres they believed they had purchased. The 18.2 acres
was found to be located between the farm and adjacent land belonging to Mr. Stephen
Bartolovich. However, the owner of the 18.2 acres was unknown.

       Petitioners filed a complaint against Mr. Bartolovich seeking ownership of the 18.2 acre
parcel via adverse possession. Mr. Bartolovich answered and filed a counterclaim claiming
ownership of the 18.2 acres also via adverse possession. The trial court appointed a guardian ad
litem (“GAL”) on behalf of the unknown owner of the 18.2 acre tract. Thereafter, the GAL
discovered Mr. Behrens’ second deed for the “18 to 20 acre tract [.]”

        Following the GAL’s disclosure of the second deed, petitioners contacted Mr. Behrens’
heirs and asked them to sign “deeds of correction” which would convey the heirs’ interest in the
18.2 acre tract to petitioners. Sixteen of the twenty-four heirs signed deeds of correction. Those
eight heirs who refused to sign are the respondents in this appeal.

        Thereafter, Mr. Bartolovich filed an amended answer to petitioners’ complaint and a
third-party complaint against Mr. Behrens’ heirs. In response, respondents Florence Behrens,
Donna Auber, Charles Danehart, Linda Cook, and Sue Haberfield (together the “represented
respondents”) filed a counterclaim against petitioners alleging that they had no obligation to sign
deeds of correction and seeking damages for the cloud on their title to the 18.2 acre tract.
Petitioners responded by filing a claim against the represented respondents that alleged the
represented respondents had breached the contract of sale by failing to sign deeds of correction
because the omission of the 18.2 acre tract in the contract of sale was the result of a mutual
mistake between the parties.

        On April 9, 2013, the represented respondents filed a motion for partial summary
judgment claiming that there was no mistake of fact regarding the exclusion of the 18.2 acre tract
from the sales contract. Conversely, they claimed that even if there had been a mutual mistake of
fact, petitioners had no legal redress because any mistake was due to petitioners’ failure to
survey the property before purchasing it.

        On May 28, 2013, following a hearing on the represented respondents’ motion for partial
summary judgment, the circuit court granted the motion. The circuit court found that (1) the
written documents in this case “speak for themselves”; (2) petitioners should have surveyed the
property or required the sellers to survey it before they signed the sales contract and executed the
deeds; (3) petitioners could not introduce extrinsic evidence in regard to the deeds due to their
omission, negligence, or fault in regard to a survey; and (4) the “18 to 20 acre tract” described in
Mr. Behrens’ second deed still belonged to his heirs.



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       Petitioners now appeal the circuit court’s order that granted the represented respondents’
motion for partial summary judgment.

         Pursuant to Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment
should be awarded “if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Thus, “[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.”
Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770
(1963). We accord 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).

        Petitioners raise three assignments of error on appeal. Petitioners first argue that the
circuit court erred in refusing to consider extrinsic evidence of the parties’ mutual mistake of fact
in construing the sales contract. Petitioners claim that the record contains the following evidence
proving that both parties mistakenly believed that petitioners were purchasing the entirety of the
Behrens’ farm: First, none of the parties to the contract knew that the farm was, in fact, two
parcels of land when the contract was executed. Second, petitioners believed they were buying
the entire farm because the tax map prepared by the county assessor showed the disputed 18.2
acres to be part of the farm. Further, the assessor’s map showed that the farm adjoined Mr.
Bartolovich’s property. Third, sixteen of the heirs executed deeds of correction conveying their
interest in the disputed acreage to petitioners without additional consideration. Fourth, none of
the non-signing heirs sought any ownership in the property until the second deed was discovered.
Finally, neither the sales contract nor the resulting deeds excepted or reserved any portion of the
farm to the sellers.

      The lower court correctly found that petitioners could not add to or alter the sales contract
or deeds by extrinsic evidence because the sales contract and petitioners’ deeds were
unambiguous.

               “Extrinsic evidence of statements and declarations of the parties to an
       unambiguous written contract occurring contemporaneously with or prior to its
       execution is inadmissible to contradict, add to, detract from, vary or explain the
       terms of such contract, in the absence of a showing of illegality, fraud, duress,
       mistake or insufficiency of consideration.” Syl. Pt. 1, Kanawha Banking & Trust
       Co. v. Gilbert, 131 W.Va. 88, 46 S.E.2d 225 (1947).

Syl. Pt. 4, Sedlock v. Moyle, 222 W.Va. 547, 668 S.E.2d 176 (2008). As a matter of law, the 18.2
acre tract was not included within petitioners’ deeds. Petitioners reviewed, accepted, and
recorded these deeds which contained a detailed description of the property with specific metes
and bounds that matched the description of the property conveyed in Mr. Behrens’ first deed.
Importantly, neither the sales contract nor the deeds included a description of the property found
in Mr. Behrens’ second deed, or the terms “Behrens’ Farm” or “all of Henry Behrens’ property.”
Thus, petitioners’ claim—that respondents intended to convey the 18.2 acre tract via the sales

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contract and the resulting deeds—fails as a matter of law.

        Petitioners next argue that the circuit court erred in finding that they were negligent or at
fault for failing to survey the subject real property prior to purchasing it because a person of
ordinary prudence would not be required to do so. Petitioners contend that the trial court’s ruling
imposes a duty on all real estate purchasers to survey property prior to its purchase.

        Prior to the sale of the subject property, petitioners sent a letter to Respondent Donna
Auber demanding that, if they (petitioners) were the high bidders, the sellers “shall obtain a
boundary survey” which “at a minimum will set forth an accurate legal description and number
of acres” in “order for [petitioners] to know the exact parcel of land which is being purchased.”
Petitioners claim that upon learning that they were the high bidders, they asked respondents for
such a survey, but their request was refused. Given this history, it is clear that petitioners knew
that a survey was necessary to determine the exact boundaries and acreage of the property.
Nevertheless they purchased the property absent a survey. Thus, in this case and on these facts,
they bear the risk of their fault or negligence. “A party cannot avoid the legal consequences of
his actions on the ground of mistake, even a mistake of fact, where such mistake is the result of
negligence on the part of a complaining party.” Syl. Pt. 4, Webb v. Webb, 171 W.Va. 614, 301
S.E.2d 570 (1983).

       Petitioner last argues that the circuit court’s award of summary judgment in favor of the
represented respondents was improper given the existence of genuine issues of material fact
regarding the land being conveyed in the parties’ contract of sale.

       The circuit court’s grant of partial summary judgment in favor of the represented
respondents was appropriate because there was no fraud or mistake and petitioners’ purchase
was consummated when they accepted and recorded the deeds as full performance of the
contract.

              “Until consummated by deed, an executory contract of sale is subject to
       modification by agreement of the parties; and where an act is done which without
       fraud or mistake is tendered by one of them, and accepted as full performance by
       the other with knowledge of his legal rights and equities, the acceptor and those
       claiming under him are not competent to assert that some part of the original
       agreement remains to be performed.” Syl. Pt. 8, James Sons Co. v. Hutchinson, 79
       W.Va. 389, 90 S.E. 1047 (1916).

Syl. Pt. 4, Spitznogle v. Durbin, 230 W.Va. 398, 738 S.E.2d 562 (2013). Thus, petitioners cannot
now argue that some part of the sales contract remains to be performed or that the contract and
deeds need to be reformed to include the 18.2 acre tract.


       For the foregoing reasons, we find that the circuit court did not err in granting partial
summary judgment to the represented respondents and, therefore, affirm the circuit court’s May
28, 2012, order.



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                                      Affirmed.

ISSUED: March 28, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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