                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

JAMES P. CAMPBELL,
Defendant Below, Petitioner                                              FILED
                                                                      June 7, 2013
vs.) 12-0130 (Jefferson County No. 08-C-223)                          released at 3:00 p.m.
                                                                      RORY L. PERRY II, CLERK
                                                                    SUPREME COURT OF APPEALS
GLEN POE,                                                               OF WEST VIRGINIA
Plaintiff below, Respondent

and

STEVEN D. FOSTER,
Defendant Below, Petitioner

vs.) 12-0165 (Jefferson County No. 08-C-223)

GLEN POE,
Plaintiff Below, Respondent

                              MEMORANDUM DECISION

        In this consolidated appeal, the petitioners, James P. Campbell, Esq., and Steven D.
Foster (collectively referred to as “the petitioners”), appeal from an order entered in the
Circuit Court of Jefferson County, West Virginia, on January 5, 2012, denying their
respective motions to alter or amend an order granting summary judgment in favor of the
plaintiff below and respondent herein, Glen Poe.1 The primary issue is whether the circuit
court committed error in granting summary judgment against the petitioners and finding that
they personally guaranteed payment of a $100,000.00 promissory note to the respondent.

       Upon our review of the parties’ arguments, the appendix record, and the pertinent
authorities, we affirm the circuit court’s order. Moreover, because this case does not present
a new or significant issue of law, we find this matter to be proper for disposition pursuant to
Rule 21 of the West Virginia Rules of Appellate Procedure.

       The relevant facts giving rise to the instant proceeding are as follows: In February,


       1
       The petitioners separately filed appeals from the circuit court’s January 5, 2012, order
and each appeared before this Court pro se.

                                              1
2007, Petitioner Campbell, who was then the respondent’s attorney, approached the
respondent about investing in a restaurant venture in Charles Town, West Virginia. The
respondent loaned the project the sum of $100,000.00 for the purpose of completing
renovations to the restaurant property and under certain conditions. A promissory note was
executed by the petitioners as personal guarantors on the loan.

        Not long after the restaurant opened for business, it closed, and the respondent
instituted a civil action in which he alleged a breach of contract claim involving the
promissory note2 based upon the failure to make timely installment payments thereon.3
Attached to the respondent’s Amended Complaint was a copy of a promissory note dated
August 29, 2007, which provided, in relevant part, that, for value received, “210 Liberty
Street Holdings, LLC[,]4 with the personal guarantees of James P. Campbell, Michael E.
Briel and Steven D. Foster . . . promises to pay to GLEN POE . . . the principal sum” of
$100,000.00, plus interest from August 29, 2007,5 at the rate of twelve percent per annum.6

       2
        The respondent also alleged claims of fraud; negligent legal counsel and breach of
fiduciary duties; and violations of the West Virginia Wage Payment and Collection Act. The
respondent’s Amended Complaint was filed against the petitioners and various other
defendants; however, the instant appeal involves only Petitioners Campbell and Foster and
the promissory note claim. The underlying allegations giving rise to the respondent’s other
claims, as set forth in the Amended Complaint, are not relevant to this appeal and will not
be recited herein.
       3
       Although it appears undisputed that four payments on the promissory note were made
in the amount of $833.00, as well as a $150.00 late payment fine, timely installment
payments on the note were not otherwise made.
       4
         We observe that the promissory note identifies “210 Liberty Street Holdings, LLC”
as the maker of the note. However, our review of the appendix record does not otherwise
identify an entity by that name. Rather, “210 West Liberty Holdings, LLC” is referred to as
the maker of the promissory note both in pleadings filed below and in proceedings in which
that entity filed for bankruptcy in the United States Bankruptcy Court for the Northern
District of West Virginia. The petitioners do not acknowledge this apparent misidentification
of the maker of the promissory note nor do they raise it as a ground upon which the note
should be held unenforceable.
       5
        The terms of the promissory note at issue consisted of three numbered pages in
length. At the bottom of the third page appeared the signature line for “210 Liberty Street
Holdings, LLC,” [sic] [see supra n. 4] signed by “Michael E. Briel” as “Its: Member.”
Numbered pages four, five and six each consisted of only one signature line with the
                                                                             (continued...)

                                             2
(Footnotes added).

         A jury trial was commenced on May 10, 2011. During the course of the trial, the
petitioners admitted that they personally guaranteed a $100,000.00 promissory note payable
to the respondent. Furthermore, Michael Briel, who, along with the petitioners, personally
guaranteed the promissory note (but who was not named as a defendant in this case), testified
that the note attached to the Amended Complaint and presented at trial was not the
promissory note that he signed. Specifically, Mr. Briel testified that the promissory note that
he signed identified an individual by the name of Lou Athey as an additional guarantor.7
However, the August 29, 2007, promissory note upon which the respondent sought payment
at trial did not include Mr. Athey as a guarantor. After the jury returned a verdict on the
promissory note and fraud claims in favor of the respondent, a mistrial was granted during




        5
         (...continued)
accompanying signatures of “James P. Campbell,” Michael E. Briel,” and “Steven D.
Foster,” respectively, as personal guarantors. It is undisputed that the signature of the
respondent, as the noteholder, was not required on the promissory note. The respondent
testified that he was not present when any of the guarantors signed the promissory note.
        6
         The promissory note further provides, in relevant part, as follows:

                      Noteholder may exercise this option to accelerate during
               any default by Maker, regardless of forebearance. . . . The
               remedies of Noteholder shall be cumulative and concurrent and
               may be pursued singly, successively, or together, against Maker,
               at Noteholder’s discretion and may be exercised as often as the
               occasion therefor shall arise.
                                              ...

                      Maker and all endorsers, guarantors, and other parties
               primarily and secondarily liable on this Note, if any, . . . and
               each . . . agrees [sic] that the same may be made without the
               joinder of any of the parties executing this Note and without the
               joinder of the endorsers or guarantors of, or other parties
               primarily or secondarily liable upon this Note.
        7
         The promissory note that Mr. Briel claimed he signed has never been produced in this
case.

                                              3
the punitive damages phase of the trial.8

         A re-trial was scheduled for November 15, 2011. During the course of a pre-trial
conference conducted on October 31, 2011, the respondent moved for summary judgment
on the promissory note claim.9 In support thereof, he relied on the petitioners’ admissions
at trial that they personally guaranteed the $100,000.00 note. Additionally, the respondent
presented an email from a paralegal in Petitioner Campbell’s law firm addressed to Mr. Briel
and Foster-Herz, a corporation of which Petitioner Foster was President,10 attaching a copy
of the promissory note at issue. The email stated as follows: “Jim and Steve’s signatures on
the promissory note.”11 The respondent argued that there was no dispute that the petitioners’
signatures were on the promissory note attached to the email and that they guaranteed the
note under the terms set forth therein. However, the petitioners argued that the promissory
note presented by the respondent at trial was not the promissory note Mr. Briel signed; that
the promissory note attached to the above-described email did not contain a signature on
behalf of 210 West Liberty Holdings, LLC; and that, under the statute of frauds, the

       8
      It appears that the jury was confused about the scope of compensatory damages it
awarded during the first phase of the trial.
       9
        Pursuant to Rule 56(c) of the West Virginia Rules of Civil Procedure, a motion for
summary judgment “shall be served at least 10 days before the time fixed for the hearing.”
We note that the respondent orally moved for summary judgment and, thus, did not serve the
petitioners with a written motion at least ten days prior to the October 31, 2011, hearing.
However, notwithstanding the petitioners’ representations at oral argument before this Court
that they contemporaneously objected to the respondent’s oral motion on the ground that they
were not provided notice of same, our review of the October 31, 2011, hearing transcript
reveals that no such objection was made. To the contrary, the petitioners vigorously argued
against the motion on the merits and in no way argued or otherwise suggested that they were
ill-prepared to do so. This Court has repeatedly stated that it “will not consider, for the first
time on appeal, a matter that has not been determined by the lower court from which the
appeal has been taken.” In re Michael Ray T., 206 W.Va. 434, 444, 525 SE.2d 315, 325
(1999).
       10
        Foster-Herz, Inc. was a named defendant in the respondent’s Amended Complaint,
and was identified therein as, inter alia, a Virginia corporation doing business in Jefferson
County, West Virginia, and which “provided bookkeeping, accounting and tax services to
210 West Liberty Holdings, LLC[,] and provided construction and renovation services to
C.W. Tiffins [the aforementioned restaurant] by and through its President Steven Foster.”
       11
         It is undisputed that “Jim” refers to Petitioner Campbell and “Steve” refers to
Petitioner Foster.

                                               4
petitioners were not bound to repay the loan.

         In an order entered November 9, 2011, the circuit court granted the respondent’s
motion for summary judgment, relying on the following: Petitioner Campbell’s admissions
at trial that “he signed a promissory note guarantee for $100,000 payable to the [respondent]
plus twelve percent interest upon which he has not paid his personal guarantee upon the
default of the borrower[;]” the above-described “email with attached Promissory Note signed
by [Petitioners] Campbell and Foster[,]” with the email expressly stating, “‘Here are Jim and
Steve’s signatures on the promissory note[;]’”12 and Petitioner Campbell’s closing argument
during the punitive damages phase of the May 2011 trial, during which he “argued before the
Jury . . . that he ‘never shied away’ from his guarantee of the Note” and that the respondent
“has a note for $100,000 with 12 percent interest.” The circuit court concluded “that there
is no genuine issue of material fact remaining upon the personal guarantees of [Petitioners]
Campbell and Foster upon the Note. [Petitioners] Campbell and Foster are personally
obligated upon the Note and indebted under the terms of said Note . . . previously admitted
as Exhibit 1013 . . . .”14 (Footnote added).

        Thereafter, the petitioners filed motions to alter or amend the November 9, 2011,
summary judgment order. The circuit court denied the petitioners’ respective motions by
order entered January 5, 2012. In that order, the circuit court found, inter alia, that, at
various times throughout the litigation of this matter (including during the May 2011 trial),
the petitioners admitted that “they personally guaranteed performance under a Note[,]” and
that, during the bankruptcy proceedings in which the petitioners were seeking to reorganize

       12
          As the circuit court explained in its summary judgment order, during the May 2011
trial, it was Petitioner Campbell who originally sought to introduce the email with the
attached promissory note in order to “rebut the testimony of witness Michael Briel, Esq. that
tended to support the [respondent’s] fraud claim . . . .” However, the respondent objected
to the admission of this evidence at trial because “it had not been produced as required by
subpoena . . . .” The objection was sustained and the email with attached promissory note
“was marked for identification but not admitted as an exhibit.”
       13
          Exhibit 10 refers to the promissory note presented at trial and at issue herein.
Notwithstanding the petitioners’ argument on appeal that the circuit court failed to indicate
upon which note the petitioners are liable, the summary judgment order clearly indicated that
the petitioners are personally obligated upon the August 29, 2007, promissory note presented
at the May 2011 trial.
       14
        The circuit court further granted the respondent’s “election to non-suit his remaining
claims against [the petitioners] without prejudice pending any appeal of this Judgment . . .
.”

                                              5
210 West Liberty Holdings, they “assured a Bankruptcy Judge that they were guarantors on
the Note[.]” The circuit court further found that, during the May 2011 trial, Petitioner
Campbell admitted that he “signed a promissory note guarantee” for $100,000.00 payable
to the respondent at a twelve percent interest rate and that he has not paid the personal
guarantee;15 that “there was a meeting of the minds as to [the petitioners’] own personal
guarantees which is all that is relevant for their liability[;]” and that the promissory note
provides for the petitioners’ “continuing legal obligations to pay on the Note regardless and
independent of whether [Louis] Athey or anyone else executed or failed to execute on the
Note . . . .” This appeal followed.
       This Court’s standard of review of the circuit court’s January 5, 2012, order denying
the petitioners’ motions to alter or amend the summary judgment order, “‘made pursuant to
W.Va.R.Civ.P. 59(e), is the same standard that would apply to the underlying judgment upon


       15
        The circuit court also relied on Petitioner Campbell’s closing argument during the
punitive damages phase of the May 2011 trial, in which he stated to the jury as follows:

              This is about money. Glen Poe has a note for $100,000 with 12
              percent interest. . . . [A]s I understand Mr. Poe’s claim, he
              unequivocally loaned $100,000. Mr. Hammer [the respondent’s
              attorney] read to you my answer where I admitted signing the
              guarantee.

              Why did I admit in papers to this Court [that] I signed the
              guarantee because I did. I never lied about that. I never shied
              away from that. I never said I didn’t.

              Because Steve Foster from day one, the first day that we were
              asked to respond to the complaint, said that we signed the note.

              I hope you didn’t hold it against me that the process allowed
              other issues to come to the forefront because I didn’t act with
              fraud or malice or oppression I don’t think in responding to the
              note because I admitted that I guaranteed it.

              But the point is your verdict already will compensate Mr. Poe
              for the full amount of the note plus attorney fees, because you
              can look at the note, it has the award for attorney fees, and the
              Court has an obligation to award those attorney fees . . . .



                                             6
which the motion is based and from which the appeal to this Court is filed.’ Syl. Pt. 1,
Wickland v. American Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).” Syl.
Pt. 1, in part, Graham v. Beverage, 211 W.Va. 466, 566 S.E.2d 603 (2002). Therefore, in
the case sub judice, we look to the standard of review applicable to summary judgments. “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). “Summary 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 syl. pt. 4.

        On appeal, the petitioners argue that summary judgment was improperly granted in
favor of the respondent because, at the very least, there is a genuine issue of material fact as
to whether there was a valid written and signed guarantee reflecting a meeting of the minds
as required under the statute of frauds. Alternatively, the petitioners contend that summary
judgment should have been granted in their favor. However, the respondent argues that the
circuit court did not err in concluding that there is no genuine issue of material fact that the
petitioners are personally obligated upon the promissory note presented at trial. We agree.

        Upon de novo review of the evidence of record, this Court is of the opinion that the
record taken as a whole could not lead a rational trier of fact to find for the petitioners and
that the circuit court properly granted summary judgment in favor of the respondent. Id., at
190, 451 S.E.2d at 756, syl. pts. 1 and 4. The petitioners admitted during oral argument
before this Court that they personally guaranteed a $100,000.00 promissory note payable to
the respondent at twelve percent interest. Similarly, as discussed more fully above, during
his own testimony and closing argument in the May 2011 trial, Petitioner Campbell–who was
in the unique position of pro se litigant, witness, and attorney–admitted “signing the
guarantee” and that he “never lied about that . . . [or] shied away from that.” Furthermore,
the email sent from Petitioner Campbell’s paralegal to the other two guarantors, Petitioner
Foster and Mr. Briel, attached and specifically referred to the petitioners’ signatures on the
August 29, 2007, promissory note at issue.16 It is undisputed that the petitioners’ signatures


       16
         The petitioners argue that because Mr. Briel testified that he signed a promissory
note which included one Lou Athey as an additional guarantor, an issue of material fact
exists as to whether the August 29, 2007, promissory note at issue is enforceable. As
indicated above, the evidence in this case establishes that the circuit court did not err in
granting summary judgment in favor of the respondent on this issue. Additionally, we
observe that, according to the record on appeal, Mr. Briel’s aforementioned testimony is
directly contrary to a finding set forth in a Memorandum Opinion entered in federal
bankruptcy court on May 29, 2009. Although not relied upon in the circuit court’s January
                                                                              (continued...)

                                               7
appear on the note. Based upon this evidence, therefore, summary judgment was properly
granted.17

       For the foregoing reasons, we affirm the January 5, 2012, order of the Circuit Court
of Jefferson County denying the petitioners’ motions to alter or amend the order granting
summary judgment in favor of the respondent.

                                                                                   Affirmed.

ISSUED: June 7, 2013

CONCURRED BY:


       16
         (...continued)
5, 2012, order denying the petitioners’ motion to alter or amend, we note that the
Memorandum Opinion–in which the bankruptcy court determined that the bankruptcy case
involving 210 West Liberty Holdings, LLC would be converted from Chapter 11 to Chapter
7– stated as follows: that “Mr. Athey refused to sign the personal guarantee on Mr. Poe’s
$100,000 note” and further, that “[a]lthough Mr. Poe loaned the Debtor [i.e., 201 West
Liberty Holdings, LLC] $100,000, the conditions he placed on the loan were not being met.
For example, Mr. Athey refused to guarantee the note . . . .” On appeal, the petitioners
suggest that evidence relating to the bankruptcy proceedings was not presented by the
respondent at the summary judgment stage and was therefore improperly considered by the
circuit court in its order denying the petitioners’ motions to alter or amend. However, our
review of the record reveals that the petitioners failed to make such an argument below.
Accordingly, this Court will not consider this argument for the first time on appeal. See
Michael Ray T., 206 W.Va. at 444, 525 SE.2d at 325.
       17
         The petitioners also argue that the Honorable David H. Sanders should have been
disqualified from this case because he demonstrated bias against the petitioners and in favor
of the respondent. The record and the arguments of the petitioners reveal that they
previously moved for the disqualification of Judge Sanders based, inter alia, on what they
perceived to be his bias against them. By Administrative Order of this Court entered
November 18, 2011, it was concluded that the evidence set forth in the motion for
disqualification was insufficient to warrant disqualification. Furthermore, Judge Sanders was
directed to continue to preside over this case.

        Finally, we have reviewed the remaining assignments of error raised by the petitioners
and, finding them to be without merit or otherwise resolved by virtue of our decision herein,
we decline to address them.

                                              8
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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