                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Robert Sloan,
Plaintiff Below, Petitioner                                                       FILED
                                                                                December 4, 2013
                                                                             RORY L. PERRY II, CLERK
vs) No. 13-0477 (Fayette County 12-C-AP-3)                                 SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

New River Auction & Sales and Steven Davis,
Respondents Below, Respondents

                              MEMORANDUM DECISION

       Petitioner Robert Sloan, appearing pro se, appeals the order of the Circuit Court of Fayette
County, entered April 9, 2013, that ruled in respondents’ favor because of petitioner’s refusal to
acknowledge that he had the burden to prove his damages. Respondents New River Auction &
Sales and Steven Davis (collectively “respondent”), by counsel Christopher S. Moorehead, filed a
response. Petitioner filed a reply.

        The 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 contracted with respondent, a licensed auctioneer, to sell at auction vehicles,
farm equipment, and other items of personal property owned by petitioner. Following the auction,
petitioner disputed how respondent conducted the auction and whether respondent provided him
with a complete statement of the items that were sold, who purchased the items, and the price at
which each item sold at the auction.1 Respondent agreed to give petitioner this information in the
parties’ written contract.

      On September 10, 2012, petitioner filed an action in the Magistrate Court of Fayette
County for the “full amount” he paid respondent for his services and “other expenses” up to the
monetary limit of the magistrate court’s jurisdiction, $5,000.2 On October 1, 2012, respondent

       1
          Several accountings and a list of items sold at the auction are in the record. While
petitioner disputes the veracity and completeness of these statements, the record also contains a
copy of a check, marked “paid,” where respondent remitted to petitioner the alleged net proceeds
of the auction. The check is not entirely legible, but appears to be for $12,500, approximately.
       2
        Earlier in the parties’ dispute, petitioner filed a complaint against respondent with the
West Virginia Department of Agriculture which licenses auctioneers in this State. Petitioner’s
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filed an answer denying petitioner’s factual allegations. Following a bench trial, the magistrate
court ruled in respondent’s favor because (1) petitioner failed to prove his case; and (2) petitioner
stated that he had no obligation to prove his damages. Petitioner appealed to the Circuit Court of
Fayette County which similarly ruled in favor of respondent due to “[petitioner’s] refusal to
acknowledge and support his burden of proof” as to damages.3 Petitioner now appeals the circuit
court’s April 9, 2013 order.

         “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).4 Rule 56(c) of the West Virginia Rules of Civil
Procedure provides, in pertinent part, that summary judgment shall be granted where “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.” (Emphasis added). Furthermore, it is well-settled that a plaintiff has the duty of proving
his damages. See Syl. Pt. 4, in part, Sammons Bros. Const. Co. v. Elk Creek Coal Co., 135 W.Va.
656, 65 S.E.2d 94 (1951) (“In this jurisdiction[,] the burden of proving damages by a
preponderance of the evidence rests upon the claimant.”).

        On appeal, petitioner asserts that it is impossible to place a value on each item of his
property respondent sold at auction and impossible to recreate a complete list of items sold given
that the items are no longer in his or respondent’s possession. Respondent counters that minimal


appendix contains a letter of warning issued to respondent by the Department on August 6, 2012.
       3
         The language of the circuit court’s order indicates that the circuit court was reviewing the
magistrate court’s judgment. Rule 18(d) of the West Virginia Rules of Civil Procedure for
Magistrate Courts provides that appeals of magistrate court orders following bench trials are heard
de novo by the circuit court. However, petitioner does not argue that the circuit court erred in not
conducting a de novo review. Therefore, this Court considers the issue waived. See State v.
LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996) (“Although we liberally construe briefs
in determining issues presented for review, issues which are not raised, and those mentioned only
in passing but are not supported with pertinent authority, are not considered on appeal.”).
Furthermore, given petitioner’s refusal to prove his damages, any error made by the circuit court
would have been harmless.
       4
           We construe the circuit court’s order as granting respondent summary judgment pursuant
to Rule 56(c) of the West Virginia Rules of Civil Procedure. We find that while the magistrate
court’s order and the circuit court’s order both refer to the dismissal of petitioner’s action, the
orders are more in the nature of judgments as a matter of law due to petitioner’s refusal to support
his case. In Beane v. Dailey, 226 W.Va. 445, 447, 701 S.E.2d 848, 850 (2010), we noted that “[w]e
are not bound by the label[s] employed below, and will treat [matters] made pursuant to the most
appropriate rule.” (Internal quotations and citations omitted.). The magistrate court’s judgment is
no longer relevant. See Syl. Pt. 2, Elkins v. Michael, 65 W.Va. 503, 64 S.E. 619 (1909) (“An appeal
from a [magistrate court’s] judgment vacates and annuls the judgment”). In the case at bar, because
the circuit court ruled in respondent’s favor in lieu of scheduling a trial de novo, we conclude that
Rule 56(c) is the most appropriate rule under which to evaluate the circuit court’s order.

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discovery may have revealed the prices at which various items were sold and whether respondent
or his staff purchased any of the items. Respondent states that petitioner never undertook any
discovery in the four months between the filing of respondent’s answer and the bench trial before
the magistrate court. In his reply, petitioner agrees that obtaining records of what was sold and to
whom would have revealed the total amount the auction yielded. Petitioner states that
documentation provided by respondent demonstrates that respondent still “has not answered”
questions regarding his conduct of the auction.

        After careful review of the parties’ arguments and the record, this Court finds that the
circuit court correctly determined that petitioner refused to acknowledge that he had the duty of
proving his damages. Because petitioner declined to accept that he had that burden, summary
judgment was proper. See Syl. Pt. 4, Painter, 192 W.Va. at 756, 451 S.E.2d at 190 (summary
judgment may be granted where the non-moving party fails to make a sufficient showing on a
required element he had the burden to prove). Therefore, this Court concludes that the circuit court
did not err in granting judgment in respondent’s favor.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: December 4, 2013

CONCURRED IN BY:

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




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