          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA



                                January 2014 Term               FILED
                                                             March 6, 2014
                                                              released at 3:00 p.m.
                                                              RORY L. PERRY II, CLERK
                                                            SUPREME COURT OF APPEALS
                                    No. 13-0117                 OF WEST VIRGINIA




               DAVID W. DICKENS AND DEBORAH A. DICKENS,

                         Plaintiffs Below, Petitioners


                                         v.

    SAHLEY REALTY COMPANY, INC., A WEST VIRGINIA CORPORATION,

    PATRICK L. STERNER, MELINDA R. STERNER, AND WHR GROUP, INC.,

      A FOREIGN CORPORATION DOING BUSINESS IN WEST VIRGINIA,

                      Defendants Below, Respondents




                   Appeal from the Circuit Court of Putnam County

                       Honorable Phillip M. Stowers, Judge

                            Civil Action No. 11-C-221-S


                                    AFFIRMED



                            Submitted: February 11, 2014
                               Filed: March 6, 2014


James M. Cagle, Esq.                                       Jane E. Harkins, Esq.
Charleston, West Virginia                                  Christopher C. Ross
Attorney for Petitioners                                   Beckley, West Virginia
                                                           Attorney for Respondent
                                                           Sahley Realty Company, Inc.
                                                     Riley J. Romeo, Jr., Esq.
                                                     Christopher J. Winton, Esq.
                                                     Attorneys for Respondents
                                                     David W. Sterner and
                                                     Melinda R. Sterner


                                                     R. Vance Golden, III, Esq.
                                                     Attorney for Respondent
                                                     WHR Group, Inc.




The Opinion of the Court was delivered PER CURIAM.
                             SYLLABUS BY THE COURT



              1. “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).



              2. “Summary judgment is appropriate if, from the totality of the evidence

presented, the record 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.” Syl. Pt. 2, Williams v. Precision Coil,

Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).



              3. “Pursuant to the evidentiary rule of res ipsa loquitur, it may be inferred that

harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event

is of a kind which ordinarily does not occur in the absence of negligence; (b) other

responsible causes, including the conduct of the plaintiff and third persons, are sufficiently

eliminated by the evidence; and (c) the indicated negligence is within the scope of the

defendant’s duty to the plaintiff.” Syl. Pt. 4, Foster v. City of Keyser, 202 W.Va. 1, 501

S.E.2d 165 (1997).




                                               i
              4. “In order to avoid summary judgment or judgment as a matter of law, a

plaintiff who seeks to proceed on a theory of res ipsa loquitur must demonstrate each of the

three prongs of the test this Court adopted in syllabus point four of Foster v. City of Keyser,

202 W.Va. 1, 501 S.E.2d 165 (1997), as a predicate to application of the evidentiary rule of

res ipsa loquitur.” Syl. Pt. 6, Kyle v. Dana Transport, Inc., 220 W.Va. 714, 649 S.E.2d 287

(2007).



              5. “‘“The doctrine of res ipsa loquitur cannot be invoked where the existence

of negligence is wholly a matter of conjecture and the circumstances are not proved, but must

themselves be presumed, or when it may be inferred that there was no negligence on the part

of the defendant. The doctrine applies only in cases where defendant’s negligence is the only

inference that can reasonably and legitimately be drawn from the circumstances.” Syl. Pt.

5, Davidson’s, Inc. v. Scott, 149 W.Va. 470, 140 S.E.2d 807 (1965).’ Syl. Pt. 2, Farley v.

Meadows, 185 W.Va. 48, 404 S.E.2d 537 (1991).” Syl. Pt. 5, Kyle v. Dana Transport, Inc.,

220 W.Va. 714, 649 S.E.2d 287 (2007).




                                              ii
Per curiam:

              The petitioners, David W. Dickens and his wife, Deborah A. Dickens, appeal

from the January 8, 2013, final order of the Circuit Court of Putnam County granting

summary judgment in favor of the respondents (defendants below), Sahley Realty Company,

Inc., (“Sahley”), Patrick L. Sterner and his wife, Melinda R. Sterner (jointly referred to as

“the Sterners”), and WHR Group, Inc. (“WHR”), and dismissing the action, with prejudice,

as to all counts, counterclaims, crossclaims, and third-party claims. The petitioners assert

that there are disputed material facts and, therefore, the circuit court erred by granting

summary judgment. Upon our consideration of the appendix record in this matter, the briefs

and arguments of the parties, the applicable legal authority, and for the reasons discussed

below, we affirm the circuit court’s final order.



                         I. Factual and Procedural Background

              In 1999, during the development of a subdivision known as Rosehill

Acres–Section Three (the “Subdivision”) located in Putnam County, West Virginia, Sahley,

the Subdivision developer, caused a retention pond to be constructed in the Subdivision for

the purpose of catching water runoff from the Subdivision pursuant to the requirements of

the Putnam Planning Commission. The appendix record contains a Subdivision plat which

reflects that this retention pond covers 0.696 acres. The eastern side of this particular

retention pond shares a common boundary line with Lot 329 in the Subdivision.



                                              1

                In 2005, Sahley sold Lot 329 to Terlin Enterprises, LLC (“Terlin”), which

subsequently constructed a house on the property. Terlin sold the property to the Sterners

by deed dated May 19, 2006. A little over a year later,1 the Sterners relocated out-of-state

for Mr. Sterner’s employment purposes. As an employee benefit, Mr. Sterner’s new

employer contracted with WHR, an employee relocation company, to handle the sale of the

Sterners’ home.



                On May 6, 2008, the petitioners entered into a contract to purchase Lot 329.2

Prior to purchasing the property, in addition to performing their own personal inspection, the

petitioners retained a company that performed an independent inspection of the premises.3

As a result of that professional inspection, the petitioners requested that several repairs be

completed as a condition to their purchase of the property. None of these repairs involved

the adjacent retention pond, although exterior regrading and landscaping work was

performed. Following the completion of the repairs at a cost of more than four thousand

dollars, the petitioners accepted the repair work performed. Thereafter, as a condition of the




       1
           The Sterners resided on the subject property from May 2006 until August 2007.
       2
         The petitioners received disclosure statements completed and signed by the Sterners,
which did not indicate any encroachment on the property. The disclosure statements also
reflect that the Sterners did not have Lot 329 surveyed before they purchased the property.
       3
       In response to discovery requests, the petitioners concede they had no inspection
performed in relation to the adjacent retention pond.

                                              2

property closing, the petitioners signed a Release Agreement (“Release”)4 and, by deed dated

September 27, 2007,5 acquired Lot 329. The petitioners did not discuss the retention pond

with the Sterners or WHR before they purchased the subject property.



               The petitioners state that in July 2010 they discovered through conversations

with neighbors that a problem existed with the eastern wall of the retention pond adjacent to

their property. The petitioners refer to minutes from a November 3, 2005, meeting of the

Subdivision’s Homeowners Association (“HOA”) which state, in part, “[c]oncern about the

pit in back caving in[]” and to minutes from the HOA’s November 20, 2006, meeting during

which concerns regarding “pits” and “steps to take regarding the pit and slippage” were

discussed.6 Although the petitioners did not have Lot 329 surveyed prior to purchasing it,



       4
         While this Release addressed the repair work performed at the petitioners’ request,
it also provided that the petitioners forever discharged the Sterners and WHR from all claims
that might subsequently arise in connection with the purchase of the property.
       5
        The appendix record reflects that the Sterners signed this deed as the grantors on
September 27, 2007, leaving the grantee’s name blank. Thereafter, WHR held the deed until
the property was sold in 2008 to the petitioners, whose names were inserted into the deed as
the grantees. Although the petitioners contend there is an issue as to whether the Sterners
or WHR was the “seller,” we find the issue irrelevant to our decision in this matter.
       6
         The Sterners did not own the subject property in 2005, and, therefore, would not have
been at the meeting in 2005. Although they owned Lot 329 in November 2006, the minutes
reflect that they were not present at the November 20, 2006, meeting. Further, these minutes
indicate that there is more than one “pit,” and do not specify whether it is the subject
retention pond that is being discussed, or, more specifically, whether it is the east wall of that
pond. In April 2010, Sahley deeded all common areas in the Subdivision, including the
retention ponds, to the HOA.

                                                3

they contend they had it surveyed in July 2010, and that this survey showed the retention

pond had encroached upon their property. The petitioners never produced a survey in

response to the respondents’ discovery requests seeking the same but, in September 2012,

their counsel invited the respondents’ respective counsel to visit the property to observe the

survey stakes.7



              On August 10, 2011, the petitioners instituted the instant action against Sahley,

WHR, and the Sterners through which they asserted claims for fraud, constructive fraud,

negligence, and breach of implied contract.8 The petitioners essentially alleged that a “slip”




       7
        During the October 2012 summary judgment hearing, the petitioners’ counsel
confirmed that there was no report of the July 2010 survey and that the dimensions of the
alleged encroachment were unknown.
       8
         Sahley filed a third-party complaint against the HOA seeking contribution and
indemnification and alleging that under the Subdivision’s declaration of covenants recorded
in the Office of the Clerk of the County Commission in 1999, the HOA was created to
“provide for the maintenance and preservation” of, inter alia, the retention pond (referred to
in the declaration as a “detention” pond). The HOA participated in the litigation below, but
did not participate in this appeal. Sahley and the Sterners each filed third-party complaints
against Terlin seeking contribution and indemnification and alleging that during Terlin’s
construction of the house on Lot 329, it buried drainage pipes across the common property
boundary and into the east wall of the retention pond, which altered or modified the structural
integrity of the east wall. The Sterners also alleged they were never informed nor aware of
any modifications or alterations to the retention pond by Terlin. The petitioners did not assert
any claims against either the HOA or Terlin. A default judgment was entered against Terlin
for its failure to answer or otherwise defend against the third-party action. Counterclaims
and cross-claims seeking contribution and indemnification were asserted by and between
each of the named defendants, as well as the appearing third-party defendant, the HOA.

                                               4

occurred on the east side of the retention pond prior to their purchase of Lot 329, which

allowed the pond to cross the common boundary line onto their property.



              On April 27, 2012, a hearing was held before the circuit court on WHR’s

motion to dismiss and the Sterners’ motion for summary judgment. In advance of this

hearing, the petitioners’ counsel filed an affidavit pursuant to Rule 56(f) of the West Virginia

Rules of Civil Procedure, averring that summary judgment should not be granted because

discovery was incomplete and that the petitioners would direct discovery to those neighbors

with purported knowledge that a slip occurred in the boundary of the retention pond during

the Sterners’ ownership of the property. By order dated June 12, 2012, the circuit court

denied the dispositive motions citing the procedural state of the case and the need for

discovery.9 Thereafter, the petitioners did not seek to discover any information from the

respondents, nor did they disclose experts in compliance with the circuit court’s scheduling

order.10 The petitioners did answer the respondents’ discovery requests directed to them.


       9
        The circuit court also directed the petitioners to file an amended complaint to more
fully conform their fraud allegations to the requirements of Rule 9 of the West Virginia Rules
of Civil Procedure. Pursuant to the circuit court’s instruction, the petitioners filed an
amended complaint reasserting their fraud allegations against WHR and the Sterners; they
also reasserted their negligence allegations against Sahley regarding the construction of the
pond and against WHR and the Sterners for failure to use reasonable care to discover and
communicate “truthful information” regarding the subject property.
       10
         Contrary to the circuit court’s scheduling order, the petitioners’ untimely expert
witness disclosures did not include the requisite written reports or summaries of the experts’
anticipated testimony, including the experts’ opinions, the bases and reasons therefor, and
                                                                                (continued...)

                                               5

              On October 26, 2012, the circuit court held a hearing on all outstanding

dispositive motions.11 On the eve of this hearing, the petitioners filed a supplemental

response to Sahley’s motion for summary judgment relying for the first time upon the

doctrine of res ipsa loquitur. They argued that under this doctrine, the retention pond was

negligently constructed and/or repaired by Sahley and that its condition could not exist

without Sahley’s negligence.12 Neither prior to nor during this hearing did the petitioners

present any depositions, expert witness reports, or any affidavits, other than their own, to

resist the summary judgment motions,13 and, during the summary judgment hearing, upon


       10
        (...continued)
the experts’ qualifications.
       11
         Both the Sterners and WHR moved for summary judgment on the basis of the
Release. Although the circuit court noted the Release in the findings of fact in its summary
judgment order, it did not rely upon the Release in its conclusions of law in granting
summary judgment in favor of the Sterners and WHR. Consequently, we need not resolve
the issues raised by the petitioners concerning the Release.
       12
        The record and the petitioners’ brief reflect an alternative theory: that the retention
pond might have encroached upon Lot 329 from the time of its original construction in 1999.
If this were the case, we question how the Sterners would have been aware of the
encroachment since they, like the petitioners, did not have the property surveyed prior to
purchasing it, nor did they have it surveyed during their brief ownership of the property.
       13
         In support of their assertions, the petitioners offered: the unauthenticated HOA
meeting minutes, discussed previously; their discovery responses, which included the names
of certain neighbors who might have information regarding the retention pond and from
whom they did not secure affidavits nor take any depositions, and the Sterners’ disclosure
statements; petitioner Deborah Dickens’s affidavit in which she states that a July 2010 survey
(which was never produced) confirmed the petitioners’ concerns regarding the retention
pond; and the petitioners’ joint affidavit addressing the Release and their purported reliance
upon the home inspection report prepared by RAL Inspection Services on behalf of WHR.
                                                                                 (continued...)

                                              6

direct questioning by the circuit judge, the petitioners’ counsel affirmed that they would be

relying on res ipsa loquitur to sustain their claims.



               On January 8, 2013, the circuit court entered a Final Order of Dismissal Based

on Summary Judgment. The circuit court found, inter alia, that the petitioners had set forth

no evidence of their damages14 and “no evidence of current instability in the pond[] . . .

[which] remains today as it was at the time of the conveyance to [the petitioners].” The

circuit court noted that the petitioners’ pretrial memorandum listed the doctrine of res ipsa

loquitur as the only contested negligence issue,15 but concluded that res ipsa loquitur was

inapplicable because the petitioners failed to provide evidence that the retention pond had,

in fact, moved or circumstantial evidence of the respondents’ negligence.16 The circuit court


       13
         (...continued)
A copy of this report is in the appendix record and states that it is “solely intended for use by”
WHR and that the “information contained within this report is NOT intended to be used or
relied upon by any other interested party. All interested parties should obtain their own
independent home inspections.”
       14
         “‘In this jurisdiction the burden of proving damages by a preponderance of the
evidence rests upon the claimant[.]’ Syllabus Point 4, in part, Sammons Bros. Const. Co. v.
Elk Creek Coal Co., 135 W.Va. 656, 65 S.E.2d 94 (1951).” Taylor v. Elkins Home Show,
Inc., 210 W.Va. 612, 619, 558 S.E.2d 611, 618 (2001).
       15
       The petitioners’ counsel made this same representation during the summary
judgment hearing.
       16
        See syl. pt. 4, Kyle v. Dana Transport, Inc., 220 W.Va. 714, 649 S.E.2d 287 (2007)
(“A plaintiff seeking to apply the doctrine of res ipsa loquitur is required to demonstrate that
the evidence he or she intends to present is circumstantial evidence that will lead to
                                                                                  (continued...)

                                                7

further found that the Sterners and WHR had not breached an implied contract because the

petitioners received the benefit of their bargain for the property purchased.17 The circuit

court also found that the petitioners had offered no facts in discovery, by affidavit, or

otherwise18 that would support a finding in their favor on their claims of fraud, constructive

fraud, and negligence against WHR and the Sterners under Thacker v. Tyree, 171 W.Va. 110,

297 S.E.2d 885 (1982); Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981); or Teter v.

Old Colony Co., 190 W.Va. 711, 441 S.E.2d 728 (1994).19 The circuit court concluded that,

having viewed the facts in a light most favorable to the petitioners, there were no genuine

issues of material fact with regard to any of their claims. Accordingly, the circuit court

granted summary judgment in favor of all the respondents. This appeal followed.



       16
        (...continued)
reasonable inferences by the jury, and is not simply evidence which would force the jury to
speculate in order to reach its conclusion.”).
       17
        The circuit court also ruled that there was no merit to the petitioners’ claims
grounded in the violation of the covenant of good faith and fair dealing. See Gaddy
Engineering Co. v. Bowles Rice McDavid Graff & Love, LLP, 231 W.Va. 577, ___, 746
S.E.2d 568, 578 (2013) (finding that implied covenant of good faith and fair dealing does not
provide cause of action apart from breach of contract claim).
       18
         The petitioners never secured affidavits or deposition testimony from the neighbors
who allegedly told them that there had been a “slip” of which the Sterners were aware.
Further, the petitioners did not depose the Sterners to inquire as to their knowledge of the
alleged slip.
       19
         Teter addressed the liability of a real estate broker for material misrepresentations
regarding the fitness, habitability, or defects in residential property that substantially affect
its value or habitability. Although the petitioners relied upon Teter below, they do not do so
on appeal.

                                               8

                                   II. Standard of Review

               We stated in syllabus point one of Painter v. Peavy, 192 W.Va. 189, 451

S.E.2d 755 (1994), that “[a] circuit court’s entry of summary judgment is reviewed de novo.”

We further explained that “[s]ummary judgment is appropriate if, from the totality of the

evidence presented, the record 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.” Syl. Pt. 2, Williams v. Precision

Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). Against these standards, the parties’

arguments will be considered.



                                        III. Discussion

                         A. Summary judgment in favor of Sahley

               The petitioners assert that questions of fact concerning their claims against

Sahley preclude summary judgment. They argue that a jury could find that a reasonable and

prudent developer would not have allowed the retention pond to encroach upon the subject

property, either during its original construction or through the alleged slippage, and that it

is for a jury to determine what constitutes negligence.20 Conversely, Sahley argues that the

petitioners failed to present more than a mere scintilla of evidence to resist its summary



       20
         The petitioners also assert that the circuit court did not address their claim of trespass
against Sahley. A review of the petitioners’ Amended Complaint does not reveal a claim for
trespass against Sahley.

                                                9

judgment motion, instead offering mere conjecture in the form of neighborhood rumors and

unauthenticated HOA meeting minutes. Sahley further argues that the petitioners served no

discovery on it; failed to show any genuine issue of material fact on the essential elements

of negligence; and failed to demonstrate that Sahley owed any duty to the petitioners as mere

subsequent purchasers of the subject property. Further, Sahley argues that the petitioners

failed to offer any expert opinions that the alleged slip in the retention pond’s eastern wall

had occurred, or that there had been a resultant encroachment, or that Sahley’s acts or

omissions solely and proximately caused the alleged failure or erosion of the engineered wall

of the retention pond to a reasonable degree of certainty and to the exclusion of all other

potential natural or man-made causes. In short, Sahley asserts that the circuit court was left

with “nothing to work with but the bald assertions” of the petitioners. We agree.



              As we have previously explained,

                     [t]he movant’s burden is “only [to] point to the absence
              of evidence supporting the nonmoving party’s case.” Latimer v.
              Smithkline & French Laboratories, 919 F.2d 301, 303 (5th
              Cir.1990). . . . If the movant . . . make[s] this showing, the
              nonmovant must go beyond the pleadings and contradict the
              showing by pointing to specific facts demonstrating a
              “trialworthy” issue. . . . As to material facts on which the
              nonmovant will bear the burden at trial, the nonmovant must
              come forward with evidence which will be sufficient to enable
              it to survive a motion for directed verdict at trial. If the
              nonmoving party fails to meet this burden, the motion for
              summary judgment must be granted. See Nebraska v. Wyoming,
              507 U.S. 584, 590, 113 S.Ct. 1689, 1694, 123 L.Ed.2d 317, 328



                                             10

              (1993); Lujan v. National Wildlife Federation, 497 U.S. 871,
              884, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695, 713 (1990).

Merrill v. West Virginia Dept. of Health and Human Resources, 219 W.Va. 151, 161, 632

S.E.2d 307, 317 (2006) (emphasis added) (quoting Powderidge Unit Owners Ass’n v.

Highland Props., Ltd., 196 W.Va. 692, 699, 474 S.E.2d 872, 879 (1996)). Here, the

respondents clearly demonstrated the absence of evidence supporting the petitioners’ case,

notwithstanding the circuit court’s decision to allow the petitioners time to gather supportive

evidence. See Gibson v. Little General Stores, Inc., 221 W.Va. 360, 361, 655 S.E.2d 106,

107 (2007) (finding that despite being given additional time by circuit court plaintiff unable

to produce evidence to resist motion for summary judgment from which trier of fact could

consider her claim on basis other pure speculation and conjecture).



              To survive a motion for summary judgment, 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. . . . The evidence illustrating the factual controversy cannot be conjectural or

problematic.” Precision Coil, 194 W.Va. at 60, 459 S.E.2d at 337. In Dellinger v. Pediatrix

Medical Group, P.C., 232 W.Va. 115, 750 S.E.2d 668 (2013), we further explained that

“[w]hile it is true that ‘the nonmoving party is entitled to the most favorable inferences that

may reasonably be drawn from the evidence, [such evidence] “cannot create a genuine issue




                                              11

of material fact through mere speculation or the building of one inference upon another.”’”

Id. at   , 750 S.E.2d at 675 (internal citations omitted.).



              In the case sub judice, the petitioners only offered conjecture and speculation,

which left the circuit court with their phantom survey, unauthenticated and imprecise HOA

meeting minutes, and unsworn rumors and speculations of certain neighbors. Although the

petitioners offered their joint affidavit, it addressed the Release, which was not a basis for

the circuit court’s ruling, and petitioner Deborah Dickens’s separate affidavit merely

referenced, but did not attach, the alleged survey. Furthermore, “[s]elf-serving assertions

without factual support in the record will not defeat a motion for summary judgment.”

Precision Coil, 194 W.Va. at 61 n.14, 459 S.E.2d at 338 n.14 (citation omitted).



              Not unlike the plaintiff in Dellinger, the petitioners appear to have

misapprehended their burden at the summary judgment stage. The foundation for all of the

petitioners’ claims was evidence that the eastern wall of the retention pond had actually

slipped and encroached upon their property. Absent that foundation, all of the petitioners’

claims fail. With particular regard to Sahley, without evidence of an actual slip and a

resultant encroachment, there can be no claim for negligent construction or maintenance of

the retention pond.




                                             12

              Under West Virginia law, “‘[t]he burden is on the plaintiff to prove by a

preponderance of the evidence that the defendant was negligent and that such negligence was

the proximate cause of the injury.’ Syllabus Point 2, Walton v. Given, 158 W.Va. 897, 215

S.E.2d 647 (1975).” Syl. Pt. 2, Spencer v. McClure, 217 W.Va. 442, 618 S.E.2d 451 (2005).

Apparently recognizing the lack of evidence to support their negligence claim against Sahley,

the petitioners advised the circuit court during the October 2012 summary judgment hearing

that they did not intend to have any expert opinions21 and were relying upon the doctrine of

res ipsa loquitur. However, “a party cannot avoid summary judgment merely because the

doctrine of res ipsa loquitur is invoked[,]”22 and, as the circuit court concluded, the doctrine

of res ipsa loquitur could not save the petitioners’ case. We concur.



              In syllabus point four of Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165

(1997), we held, as follows:

                      Pursuant to the evidentiary rule of res ipsa loquitur, it
              may be inferred that harm suffered by the plaintiff is caused by
              negligence of the defendant when (a) the event is of a kind
              which ordinarily does not occur in the absence of negligence;
              (b) other responsible causes, including the conduct of the
              plaintiff and third persons, are sufficiently eliminated by the



       21
         The petitioners’ counsel commented during the summary judgment hearing that “the
use of experts is overblown.”
       22
        Crum v. Equity Inns, Inc., 224 W.Va. 246, 256, 685 S.E.2d 219, 299 (2009)
(quoting, in part, syl. pt. 6, Bronz v. St. Jude's Hosp. Clinic, 184 W.Va. 594, 402 S.E.2d 263
(1991).

                                              13

              evidence; and (c) the indicated negligence is within the scope of
              the defendant’s duty to the plaintiff.

We subsequently held that “ [i]n order to avoid summary judgment or judgment as a matter

of law, a plaintiff who seeks to proceed on a theory of res ipsa loquitur must demonstrate

each of the three prongs of the test this Court adopted in syllabus point four of Foster v. City

of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997), as a predicate to application of the

evidentiary rule of res ipsa loquitur.” Syl. Pt. 6, Kyle v. Dana Transport, Inc., 220 W.Va.

714, 649 S.E.2d 287 (2007). Indeed,

                     “‘[t]he doctrine of res ipsa loquitur cannot be invoked
              where the existence of negligence is wholly a matter of
              conjecture and the circumstances are not proved, but must
              themselves be presumed, or when it may be inferred that there
              was no negligence on the part of the defendant. The doctrine
              applies only in cases where defendant’s negligence is the only
              inference that can reasonably and legitimately be drawn from
              the circumstances.’ Syl. Pt. 5, Davidson’s, Inc. v. Scott, 149
              W.Va. 470, 140 S.E.2d 807 (1965).” Syl. Pt. 2, Farley v.
              Meadows, 185 W.Va. 48, 404 S.E.2d 537 (1991).

Syl. Pt. 5, Kyle, 220 W.Va. at 716, 649 S.E.2d at 289 (emphasis added.).



              In the case at bar, and as the circuit court correctly found, the petitioners cannot

satisfy the first Foster factor—that “the event is of a kind which ordinarily does not occur

in the absence of negligence”—because the petitioners had not provided evidence that the

retention pond had, in fact, moved or that the respondents were negligent. Foster, 202 W.Va.

at168, 501 S.E.2d at 4, syl. pt. 4, in part. Although the circuit court did not need to reach the



                                               14

second Foster factor—that “other responsible causes, including the conduct of the plaintiff

and third persons, are sufficiently eliminated by the evidence”—it is clear from our review

of the appendix record that had the petitioners met the first Foster factor, they could not meet

the second factor. Id. As Sahley argued, there could have been natural erosion in the eastern

wall of the retention pond during the intervening years since its construction in 1999; Terlin

may have disturbed the eastern wall of the pond, as discussed previously;23 and, there may

have been a failure in the maintenance or preservation of the retention pond by the HOA.24

In short, the doctrine of res ipsa loquitur could not overcome the petitioners’ lack of

evidence to support their case. Consequently, we find no error in the circuit court’s decision

to grant summary judgment in favor of Sahley on the petitioners’ negligence claim.



               B. Summary judgment in favor of the Sterners and WHR

              The petitioners assert that genuine issues of fact exist as to their claims of

breach of implied contract, negligence, fraud, and constructive fraud against the Sterners and



       23
         The circuit court found in its summary judgment order that Terlin had buried pipes
from the house and through the east wall of the retention pond. This was an allegation in
Sahley’s third-party complaint against Terlin against whom a default judgment was entered.
See 10 Moore’s Federal Practice § 55.32[l][a]&[b] (3rd ed.2008) (recognizing that a
defaulting party admits factual basis of claims asserted against it).
       24
        The November 2006 HOA meeting minutes cited by the petitioners state that “treet”
might be placed around the “pit.” These minutes provide support for Sahley’s averment that
the HOA had some responsibility for the common areas, including the retention ponds, prior
to the April 2010 deed by which Sahley conveyed the common areas to the HOA. See also,
supra note 8.

                                              15

WHR. Relying upon Thacker25 and Lengyel,26 the petitioners argue that a jury should decide

whether the Sterners and WHR acted reasonably in discharging their duty of accurate

disclosure about the condition of the subject property. The petitioners also argue that they

relied upon the Sterners’ disclosure forms on which a box was checked “no” in response to

the question of whether there were any encroachments. The Sterners argue that summary

judgment was proper because the petitioners failed to produce any evidence of the alleged

slip or their alleged damages.



                 As with Sahley, the foundation for all of the petitioners’ claims against the

Sterners and WHR was contingent upon the introduction of evidence demonstrating that

there has been an actual slip in the retention pond that resulted in an encroachment upon their

property. For the reasons discussed above, the petitioners failed to offer such evidence and,

without such evidence, there can be no fraud, constructive fraud, or negligence in failing to


       25
            In the syllabus of Thacker, we held, in part, that

                        [w]here a vendor is aware of defects or conditions which
                 substantially affect the value or habitability of the property and
                 the existence of which are unknown to the purchaser and would
                 not be disclosed by a reasonably diligent inspection, then the
                 vendor has a duty to disclose the same to the purchaser.

Thacker, 171 W.Va. at 110, 297 S.E.2d at 885.
       26
          In Lengyel, we stated that “[a]n action for fraud may lie where the defendant either
knows the statement to be false, makes the statement without knowledge as to its truth or
falsity, or makes it under circumstances such that he should have known of its falsity.”
Lengyel, 167 W.Va. at 277, 280 S.E.2d at 69.

                                                 16

disclose an allegedly known defect, nor breach of an implied contract.27 As the circuit court

found, the petitioners “received the benefit of their bargain[;]” they visited the property prior

to purchasing it; were aware of the adjacent retention pond; and claimed that the alleged

“slip” occurred prior to their purchase of the property.28



                 Viewing the record in the light most favorable to the petitioners, we find that

the petitioners failed to offer evidence by affidavit, or otherwise, which would support a

finding on their claims against the Sterners and WHR under either Thacker or Lengyel.29

Accordingly, we find no error in the circuit court’s decision to grant summary judgment in

favor of these respondents on the petitioners’ claims against them.




       27
         Although the circuit court does not specifically rely upon this failure in the
petitioners’ evidence in addressing their claims against the Sterners and WHR in its summary
judgment order, “a grant of summary judgment may be sustained on any basis supported by
the record. Thus, it is permissible for us to affirm the granting of summary judgment on
bases different or grounds other than those relied upon by the circuit court.” Harper v. Smith,
__ W.Va. , 753 S.E.2d 612, 617 (2012) (citing Gentry v. Mangum, Inc., 195 W.Va. 512,
519, 466 S.E.2d 171, 178 (1995)).
       28
         Even if we were to assume, arguendo, that the petitioners had evidence of a slip in
the retention pond and a resultant encroachment, they still offered no affirmative evidence
to support their fraud claims so as to contradict the Sterners’ and WHR’s denial of any
knowledge of an alleged encroachment. Neighborhood rumors and unauthenticated and
nonspecific HOA meeting minutes are conjectural and wholly insufficient to withstand
summary judgment. See Precision Coil, 194 W.Va. 52, 459 S.E.2d 329.
       29
            See supra notes 25 and 26.

                                                17

                                     IV. Conclusion

              For all of the foregoing reasons, this Court is of the opinion that, under the

circumstances of this action, the circuit court acted properly in granting the respondents’

motions for summary judgment. The Circuit Court of Putnam County’s final order entered

on January 8, 2013, is affirmed.

                                                                                 Affirmed.




                                            18

