STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Douglas L. Stolipher, 

Plaintiff Below, Petitioner FILED 

vs) No. 15-0862 (Jefferson County 14-C-367) September 2, 2016 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS Estate of Charles A. Rocheleau, deceased OF WEST VIRGINIA 

by Charles A. Belisle, Executor 

Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioner Douglas L. Stolipher, by counsel Joseph L. Caltrider, appeals the August 5, 

2015, order of the Circuit Court of Jefferson County that granted Respondent Estate of Charles 

A. Rocheleau, deceased, by Executor Charles A. Belisle’s motion for summary judgment in 

petitioner’s action for permissive waste and breach of deed covenant. Petitioner claims that 

respondent’s decedent failed to maintain a farmhouse on real property petitioner purchased 

subject to decedent’s life estate in the farmhouse. Respondent, by counsel William Richard 

McCune, Jr. and Alex A. Tsiatsos, responded in support of the circuit court’s order. Petitioner 

filed a reply. 

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 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. 

Circa 1960, Charles A. Rocheleau (the “decedent”) purchased a 160-acre parcel of land 

in Jefferson County known as the Straithmore Farm (the “farm”), which included a farmhouse 

built in the 1800s. In August of 2006, Petitioner purchased the farm in “as is” condition from 

decedent for $1,000,000, subject to decedent’s life estate in the farmhouse and five surrounding 

acres. The resulting August 2, 2006, deed (the “2006 deed”) provides as follows: “[Decedent], 

while residing in the [farmhouse], may, for his necessity or convenience, repair, improve, or alter 

the farmhouse’s . . . interior or exterior and will keep [petitioner] informed of said 

improvement.” The deed also provides that [decedent] “shall bear all costs of the [farmhouse] 

and surrounding area, including but not limited to . . . repair and maintenance.” 

Decedent died in January of 2014. Thereafter, in April of 2014, respondent handed over 

the property to petitioner pursuant to the terms of the 2006 deed. In June of 2014, petitioner had 

the farmhouse inspected by David L. Brittingham (the “inspector”), who petitioner claims is a 

specialist in the restoration of historic buildings. In his report, the inspector found “significant 

deterioration in the [farmhouse] which could have been avoided with proper maintenance” and 

that the deterioration went “beyond normal aging and use.” Petitioner claims that the inspector 

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observed peeling paint and plaster, rotten wood, cracked or broken windows, water damage and 

leaks, deteriorating and/or missing masonry, and significant mold buildup. The inspector set the 

cost of repairing the damage at $80,620. 

On October 22, 2014, petitioner filed the instant action against respondent for permissive 

waste and breach of deed covenant. Discovery ensued and the parties agreed to a resolution by 

bench trial scheduled for July 28, 2015. However, on June 15, 2015, respondent filed a motion 

for summary judgment in which respondent argued that petitioner “failed to establish the 

condition of the premises at the beginning of the period of scrutiny [in 2006]” and, therefore, 

“has no[] ability to measure any waste during [decedent’s] life estate.” Attached to respondent’s 

motion were the following: (1) a copy of the 2006 deed; (2) a copy of petitioner’s discovery 

responses which included three photographs of the outside of the farmhouse taken in 2011; (3) 

an affidavit which listed repairs and/or improvements1 decedent made to the farmhouse between 

2006 and 2014; and (4) 200 photographs of the inside and the outside of the farmhouse. 

On July 2, 2015, petitioner filed a response in opposition to respondent’s motion for 

summary judgment, attached to which was the affidavit of petitioner’s inspector. 

On July 20, 2015, the circuit court held a hearing on respondent’s motion for summary 

judgment. At that hearing, respondent argued (1) that petitioner could not establish the condition 

of the farmhouse in 2006, and (2) that respondent’s repair/improvements affidavit and the 200 

photographs proved that decedent committed no permissive waste of the farmhouse between 

August of 2006 and April of 2014. Petitioner objected to the circuit court’s consideration of the 

200 photographs on the ground that they were unsupported by affidavit or deposition testimony. 

By order entered August 5, 2015, the circuit court granted respondent’s motion for 

summary judgment on the following grounds: 

[Petitioner] has not provided a base for [respondent’s] alleged waste. 

Nothing in [petitioner’s] evidence or arguments shows the state of the 

property at the time of [petitioner’s August of 2006] purchase despite 

[petitioner’s] claims that he regularly visited the property. 

[Petitioner] has not provided any evidence that [decedent] willfully 

destroyed or failed to maintain the residential structure. [Respondent] has 

provided evidence that maintenance and repairs were made to the property during 

1 The affidavit provided that, between August of 2006 and decedent’s death in January of 

2014, decedent (1) installed a new furnace, air conditioner, water heater, gutters and downspouts, 

and new bathroom fixtures; (2) rebuilt the porch; (3) repainted the woodwork on the front of the 

house; (4) trimmed the trees lining the driveway to the farmhouse; (5) “cleaned up” the outside 

landscape; (6) hired a mason to touch up seams and brick on the farmhouse; (7) repaired a leak in 

the upstairs bathroom and replaced the drywall that had been damaged by the leak; and (8) 

replaced the kitchen sink and cabinet. 

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[decedent’s] life estate therefore exercising ordinary care for the preservation and 

protection of the property. 

Petitioner now appeals the August 5, 2015, order. “A circuit court’s entry of summary 

judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 190, 451 S.E.2d 

755, 756 (1994). Furthermore, 

[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, 56, 459 S.E.2d 329, 333 (1995). 

Petitioner raises four assignments of error on appeal. Petitioner first argues that the circuit 

court erred by granting respondent’s motion for summary judgment where respondent did not 

properly support that motion. Specifically, petitioner claims that the circuit court wrongfully 

relied upon respondent’s 200 unauthenticated photographs of the farmhouse in rendering its 

decision. 

“A party who moves for summary judgment has the burden of showing that there is no 

genuine issue of fact and any doubt as to the existence of such issue is resolved against the 

movant for such judgment.” Syl. Pt. 6, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 

W.Va. 160, 161, 133 S.E.2d 770, 772 (1963). This Court has also said that, 

[t]he movant’s burden is “only [to] point to the absence of evidence 

supporting the nonmoving party’s case.” If the moving party fails to meet this 

initial burden, the motion must be denied, regardless of the nonmovant’s 

response. If the movant, however, does make this showing, the nonmovant must 

go beyond the pleadings and contradict the showing by pointing to specific facts 

demonstrating a “trialworthy” issue. To meet this burden, the nonmovant must 

identify specific facts in the record and articulate the precise manner in which that 

evidence supports its claims. 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. 

Powderidge Unit Owners Ass’n v. Highland Prop., Ltd., 196 W.Va. 692, 699, 474 S.E.2d 872, 

879 (1996). In other words, “the nonmoving party must show there will be enough competent 

evidence available at trial to enable a finding favorable to the nonmoving party.” Precision Coil, 

Inc., 194 W.Va. at 60-61, 459 S.E.2d at 337-38 (citation omitted). Accordingly, “‘[u]nsupported 

speculation is not sufficient to defeat a summary judgment motion.” Id. (Citation omitted.) 

Further, although the “nonmoving party is entitled to the most favorable inferences that may 

reasonably be drawn from the [] evidence,” the nonmoving party cannot create a genuine issue of 

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material fact through “mere speculation or the building of one inference upon another.” Id. at 61 

n.14, 459 S.E.2d at 338 n.14 (citations omitted). 

Here, respondent carried its burden of proof by entering evidence showing that decedent 

had both repaired and improved the farmhouse during decedent’s life tenancy, and by pointing to 

the absence of evidence supporting petitioner’s case. Consequently, the burden of proof switched 

to petitioner to show the existence of a genuine issue of material fact in support of his claim of 

waste. However, as the circuit court correctly found, “nothing in [petitioner’s] evidence or 

arguments shows the state of the property [in 2006].” Instead, the only evidence petitioner 

presented to the court was his inspector’s 2014 report. However, that report did not show the 

condition of the farmhouse between August of 2006 and April of 2014, or prove that the 

deterioration noted by the inspector had not already occurred as of August of 2006. Accordingly, 

the circuit court correctly found that petitioner’s case was simply too speculative to prove that 

decedent permissively committed waste during the relevant time period. Therefore, the circuit 

court properly granted summary judgment in favor of respondent due to petitioner’s failure to 

raise any genuine issue of material fact. 

Petitioner also argues that, in rendering its decision, the circuit court improperly relied 

upon the 200 unauthenticated photographs submitted with respondent’s motion for summary 

judgment. The transcript of the hearing in this matter reveals that the circuit court did review the 

200 photographs and referred to some of them during the hearing. However, the photographs are 

specifically mentioned only once in the order on appeal, as follows: “In April 2014, [respondent] 

turned possession of the residential structure over to [petitioner] in a ‘broom clean’ manner as 

evidence[d] by the photographs submitted by [respondent].” This finding is not relevant to the 

basis of the circuit court’s award of summary judgment to respondent: that petitioner’s case was 

unsupported by the evidence and, therefore, raised no genuine issue of material fact. Likewise, 

any of the circuit court’s other findings that could potentially be attributed to the court’s review 

of the photographs also are not relevant to the court’s decision in this matter. Thus, we cannot 

say that the circuit court committed error in this regard. 

Petitioner next argues that the circuit court erred where the order on appeal includes 

“very few” findings of fact and where some of those findings are not supported by the evidence. 

Having carefully and fully reviewed the circuit court’s order and the record on appeal, we reject 

petitioner’s assertion that the circuit court made insufficient findings to support its ultimate 

conclusion that petitioner’s case was too speculative to survive a motion for summary judgment. 

Furthermore, we find that the circuit court made sufficient findings and conclusions to permit 

meaningful appellate review in this case. See Syl. Pt. 3, Fayette Cnty. Nat. Bank v. Lilly, 199 

W.Va. 349, 350, 484 S.E.2d 232, 233 (1997), overruled on other grounds by Sostaric v. 

Marshall, 234 W.Va. 449, 766 S.E.2d 396 (2014) (stating that an order granting summary 

judgment must set out factual findings sufficient to permit meaningful appellate review). As for 

petitioner’s claim that some of the circuit court’s findings were not supported by the evidence, 

we find that the circuit court’s reason for granting summary judgment—that petitioner’s case 

was too speculative to raise a genuine issue of material fact—was clearly supported by the 

evidence in this case. Hence, we find no error regarding the number or accuracy of the circuit 

court’s findings. 

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Petitioner’s third assignment of error is that genuine issues of material fact existed which 

the court should have considered after hearing all the evidence at trial. We have said, 

“[a] party who moves for summary judgment has the burden of showing that there is no genuine 

issue of fact and any doubt as to the existence of such issue is resolved against the movant for 

such judgment.” Syl. Pt. 6, Aetna Cas. & Sur. Co. 148 W.Va. at 161, 133 S.E.2d at 772. 

However, in this case, no genuine issues of material fact remained for trial because there was no 

dispute as to the speculative nature of petitioner’s case. Accordingly, we find no error. 

Petitioner’s fourth and final assignment of error is that the circuit court erred in failing to 

recognize the covenant in the 2006 deed which provided that decedent “shall bear all of the costs 

of the homestead and the surrounding area, including but not limited to . . . repair and 

maintenance.” Petitioner claims that this covenant created a higher standard of care and 

maintenance for the farmhouse during decedent’s life estate. Petitioner further asserts that, by 

refusing to recognize the covenant, the circuit court rendered it a nullity and denied petitioner the 

benefit of his bargain. This assignment of error fails for the same reason that petitioner’s other 

assignments of error fail, that is, even if decedent was subject to a higher standard of care, 

petitioner could not prove decedent did not meet that higher standard because petitioner did not 

establish a baseline regarding the condition of the house when he purchased it in 2006. As such, 

we find no error. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: September 2, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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