                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



Mark C. Busack,                                                                  FILED
Plaintiff Below, Petitioner                                                 September 1, 2017
                                                                                RORY L. PERRY II, CLERK
vs) No. 16-0900 (Ohio County 16-C-57)                                         SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

West Rentals, Inc.,
Defendant Below, Respondent

                              MEMORANDUM DECISION
       Petitioner Mark C. Busack, pro se, appeals the June 24, 2016, order of the Circuit Court of
Ohio County awarding summary judgment to Respondent West Rentals, Inc. in his civil action
stemming from a land installment contract that was later terminated by the parties. Respondent, by
counsel David L. Wyant, filed a response in support of the circuit court’s order. 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.

        For a number of years, petitioner rented a property known as 260 Bethany Pike, Wheeling,
West Virginia, from respondent. Petitioner operated a fraudulent scheme from 260 Bethany Pike,
for which he later pled guilty to five offenses under the United States Code.1 Busack v. United
States, Civil Action No. 5:15CV151, 2016 WL 7441680, at *1 (N.D.W.Va. December 27, 2016)
(unpublished) (denying post-conviction relief). Consequently, petitioner is currently serving a
sentence of thirty-five months of incarceration imposed by the United States District Court for the
Northern District of West Virginia. Id.

        Prior to the initiation of petitioner’s federal criminal case, the parties executed an
installment land contract on July 24, 2013, for petitioner to purchase 260 Bethany Pike along with

       1
      We take judicial notice of the information filed in petitioner’s federal criminal case, No.
5:14CR54.

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another property known as 375 Oglebay Drive, Wheeling, West Virginia. According to petitioner,
respondent wanted to unload 375 Oglebay Drive on him due to an undisclosed defect (a ground
slip). The installment land contract provided that ownership of the properties would not transfer to
petitioner until “all the obligations of [petitioner had] been fulfilled.” While petitioner was
fulfilling his obligations under the contract, the agreement restricted his ability to assign his
contractual rights and to lease the properties as follows:

       No Assignment: Leases. [Petitioner] shall not assign or delegate any of [his] rights
       or responsibilit[ies] under this agreement, in whole or in part, nor shall possession
       of the property be transferred to any other party (other than ordinary commercial
       leases in the ordinary course of business, as provided in the next paragraph),
       without prior written consent of [respondent].

       With respect to commercial leases, so long as [petitioner] is not in default of [his]
       obligations under this agreement or the [n]ote, [petitioner] shall have the right to
       lease the property, in whole or in part[,] to reasonable commercial tenants
       acceptable to [respondent], whose consent shall not be unreasonabl[y] withheld. . .
       .

        In June of 2015, by which time petitioner was awaiting sentencing in his federal criminal
case, the parties executed a termination of installment land contract and agreement (“termination
agreement”). The June 8, 2015, termination agreement “terminated, cancelled, and rescinded” the
July 24, 2013, installment land contract and relieved petitioner from paying any additional real
estate taxes and fire service fees with regard to 260 Bethany Pike and 375 Oglebay Drive. The
parties further agreed that respondent would return the installment payment for June of 2015 to
petitioner and that petitioner was due no other monies with regard to the termination of the
installment land contract.

        On January 29, 2016, petitioner filed a complaint in the Circuit Court of Ohio County
alleging that respondent failed to disclose the ground slip at 375 Oglebay Drive prior to the
execution of the July 24, 2013, installment land contract, which “[made] it difficult[,] if not
impossible[,] to sell [375 Oglebay Drive] because of the pre-existing condition.”2 Nowhere in his
complaint did petitioner acknowledge the existence of the June 8, 2015, termination agreement.
However, respondent filed an answer on March 16, 2016, that asked that petitioner’s complaint be
dismissed for a failure to state a claim on which relief could be granted. Then, on June 22, 2016,
respondent filed a motion for summary judgment with the installment land contract and the
termination agreement attached as exhibits.

        By order entered on June 24, 2016, the circuit court awarded respondent summary
judgment in the underlying civil action. The circuit court found that (1) pursuant to the contractual
terms, petitioner never had ownership of 375 Oglebay Drive or the right to sell that property during
       2
         Petitioner asked for $131,300 in damages. The complaint does not reflect how petitioner
arrived at that figure.

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the time in which the installment land contract was in effect; and (2) petitioner relinquished all
rights he had under the contract in the parties’ June 8, 2015, termination agreement, which
“terminated, cancelled, and rescinded” the prior agreement. In making its ruling, the circuit court
found that petitioner failed to acknowledge the parties’ June 8, 2015, termination of the July 24,
2013, installment land contract in his complaint.

        Petitioner now appeals from the circuit court’s June 24, 2016, order, awarding summary
judgment to respondent. “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). Rule 56(c) of the West Virginia
Rules of Civil Procedure provides that summary judgment shall be granted provided 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.” In syllabus point 4 of Painter, we held that “[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[.]” 192 W.Va. at 190, 451 S.E.2d at 756.

        On appeal, petitioner concedes that the parties executed the June 8, 2015, termination
agreement. However, petitioner attempts to evade the circuit court’s findings based on the
installment land contract’s termination by alleging that (1) respondent breached the provisions of
the termination agreement regarding the continuation of petitioner’s tenancy at 260 Bethany Pike
thereby leaving the installment land contract in full force and effect; and (2) respondent coerced
him into executing the termination agreement by harassing him about the possible consequences of
his federal criminal case. Respondent counters that we should decline to consider these allegations
because petitioner failed to raise them with the circuit court.

        Petitioner contends that he did not have sufficient time to raise the issue of the termination
agreement’s validity because the circuit court improperly granted summary judgment only two
days after respondent filed its motion. In Williams v. Precision Coil, Inc., 194 W.Va. 52, 61, 459
S.E.2d 329, 338 (1995), we found that a party opposing a motion for summary judgment should be
allowed an adequate time to respond. However, under the facts and circumstances of this case,
assuming arguendo that the circuit court’s failure to wait for a response by petitioner constituted
error, we find that any such error was harmless for reasons explained below. See Rule 61,
W.V.R.Civ.P. (providing that “[t]he court at every stage of the proceeding must disregard any
error or defect in the proceeding which does not affect the substantial rights of the parties.”).

        As correctly found by the circuit court in its summary judgment order, petitioner omitted
all reference to the 2015 termination agreement from his complaint. That omission from
petitioner’s complaint was significant: an acknowledgement of the 2015 termination agreement’s
existence would have alerted the circuit court to the possibility that the complaint was a baseless
pleading because that agreement “terminated, cancelled, and rescinded” the 2013 installment land
contract on which petitioner’s civil action was based.3
       3
        We have previously explained that “liberalization in the rules of pleading in civil cases
does not justify a . . . baseless pleading.” Par Mar v. City of Parkersburg, 183 W.Va. 706, 711, 398
S.E.2d 532, 537 (1990) (internal quotations and citations omitted).

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        Upon our review of the record, we find that petitioner was attempting to gain a perceived
tactical advantage by purposely omitting the termination agreement in his complaint. After
respondent attached the termination agreement to its motion for summary judgment, petitioner
could no longer ignore that agreement’s existence and had to allege that it was not valid. We do not
credit such allegations because petitioner never contends that he did not know of the reasons for
the termination agreement’s purported invalidity at the time of the filing of his complaint. See
Williams, 194 W.Va. at 60-61 and n.14, 459 S.E.2d at 337-38 and n.14 (finding that self-serving
assertions without a factual basis will not defeat a well-supported motion for summary judgment).
Therefore, we conclude that the circuit court properly awarded respondent summary judgment
because the 2015 termination agreement “terminated, cancelled, and rescinded” the 2013
installment land contract on which petitioner’s civil action was based.

     For the foregoing reasons, we affirm the circuit court’s June 24, 2016, order, awarding
summary judgment to respondent.

                                                                                         Affirmed.

ISSUED: September 1, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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