1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Donald Moore
, Defendant Below, Petitioner

vs. ) No. 1 9

- 06 80 ( Monongalia County 1 8

- C

- 132 )

Chip Franklin Buzzo and

Vanda Dawn Buzzo
, Plaintiff s Below, Respondent s



### MEMORANDUM DECISION

Petitioner D o n a ld Moore

, by counsel Stephanie Nethken , appeal s the Circuit Court of Monongalia County’s June 25 , 2019

, final order denying his “motion to reconsider” the court’s grant of summary judgment in respondents’ favor

. Respondent s Chip Franklin Buzzo and Vanda

D a wn Buzzo

, by counsel Edmund J. Rollo , filed a response

.

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 ora l a rgument. Upon consideration of the standard of review, the briefs, and the record presented, the Court fi nds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropr i a t e under Rule 21 of the Rules of Appellate Procedure.

On November 17, 2017, respondents leased from petit ioner certain real property for a term of ninety

- nine years. The lease payment for the entire term was $50,000, which respondents paid in full at th e t ime the lease was executed . Following execution of that lease agreement, petitioner agreed to sell the property to respondents. Respondents claimed that petitioner agreed to sell the property for an additional $1,500 , and they remitted that amount to hi m

. P etitioner negotiated the check, but he did not convey the property to respondents.

Respondents file d suit seeking specific performance and other damages. Petitioner, who

was incarcerated when respondents filed suit , was appointed a guardian ad litem ( “ GAL”). While 

### FILED
September 4, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

the GAL was involved in the case, petitioner’s answer to respondents’ complaint was not ti mely

filed . After petitioner was released from incarceration, he retained his current counsel. 1

In October of 2018, respondents filed discovery requ e s t s, including r equests for admission. Petitioner did not file responses to these requests; accordingly, respondents moved to compel responses to the se requests on December 7, 2018, and the circuit court heard argument

on this motion on March 14, 2019. Th e c ourt granted respondents’ mot ion to compel a nd directed that petitioner file responses by April 3, 2019.

On April 2, 2019, respondents filed a motion for summary judgment. Respondents asserted that petitioner agreed to sell the property for $1,500, an d t hat the agreement was

memoria lized by text m essages between the parties, copies of which were appended to their

motion. 2 Respondents also asserted that they paid $1,500 to petitioner by check, which petitioner

received and ne gotiated

. T hus, r espondents a r g ued that they fully performed their obligations under the parties’ agreement, yet petitioner refused to convey title to the property to respondents.

Therefore , respondents claimed that they were entitled to specific performance of the p arties’

agreement

.

Respondents also a rgued that they were entitled to summary judgment due to petitioner’s

failure to respond to discovery requests, including requests for admission. Petitioner’s failure to respond to those requests, respondents argued, deemed admitted c e r tain crucial facts: 1. That petitioner agreed to sell the property for $1,500; 2. That petitioner rec eived $1,500 from respondents; and 3. That petitioner was obligated to immediately convey his interest in the real property to responde nts.

1 The date that petitioner was released from incarceration is unclear

. R espondents suggest, however, upon their “informati on and belief,” that petitioner was released from

incarceration in O ctober or November o f 2018. T he record is also not clear as to the exact date

that petitioner’s current counsel began representing petitioner

, but it appears that petitioner was represented by current counsel at lea st by mid

- March of 2019.

2 These text messages were bet w e e n Respond e nt Vanda Dawn Buzzo and petitioner. In

one exchange , Ms. Buzzo said, “Let’s get that deed now! Lol

. ” Petitioner responded, “Need 1500

to do that I t old u I go t to pay a lawyer.” Ms. Buzzo replied, “Is that on top of the 50?? I dk what you and [ R e s pondent] [ C] hip [Buzzo] agreed on.” Petitioner continued, “Well [I] ’m not pa ying to get you your deed LOL I’m poor remember.” Ms. Buzz o acquiesced, saying “Ok

. [] I’ll g ive it to you for the deed!!! Make sure I get one!! :)” Petitioner c onfirmed, “You’re d e finitely g etting the deed will just have to pay the attorneys to take care of it and I don’t have the money.”

In another exchange, Respondent Vanda Buzzo ask ed petitio ner, “[H]as the attorney started on the deed yet?” Petitioner claime d that he had “pa i d the lawye r but I have not heard anything back from him.”3

The partie s a ppeared for a pretri al hearing on April 8, 2019, at which the circuit court also heard argument on re spondents’ motion for summary judgment. 3 Respondents argued the points raised in their written motion for summary judgment, and petitio ner responded tha t t he $1,500 amount ide ntified by respondents did not represent the purchase price for the property;

rat her, respondents were to pay $150,000 to purchase the property. Accordingly, petitioner “object[ed] to ” the motion for summary judgment and requested “a d d i t ional time in order to
work this out.” The circuit court granted respondents’ motion for summary judg ment on the

record

. After issuing its ruling, petitioner stated for the first time that he “did not even have time to respond [to resp ondents’ motion f o r summary judgment] as I was given this on the afternoon of April 2 nd .” 4 The court was unpersuaded, and it entered its order granting summary judgment in

favor of respondents on May 6, 2019

. 5

On May 23, 2019

— seventeen days after the court entered its sum m a r y judgment order

— petitioner fi led a “Motion to Reconsider Summary Judgment.” Petitioner argued that respondents ’ motion for summary judgment was untimely filed and that he had had insufficient time to respond to it. Petitioner also asserted that “[i]t a p p e a red that [petitioner’s counse l] was not given the full file by the [GAL] and was missing significant informati on,” including the date of the pretrial hearing, and that petitioner “feels he had ineffective assistance of counsel and [respondents] took ad v a n t age of the fact that he was i ncarcerated.”

The parties appeared for a hearing on this motion on June 24, 201 9. Petitioner ’ s counsel argued that after receiving the case from petitioner’s GAL, she did not receive a scheduling order

or notice of the pr e t r i al conference hearing. “So basically we ’re just asking for the [c]ourt to reconsider and let us present our case since h e was unable to do that under previous counsel, and now that I have taken over,

. . . we’re able to do that.” Petitioner ’ s counsel f u r t h er represented that the property was “tied up in . . . bankruptcy because [petitioner] did file bankruptcy on that property.” After that statement, the court asked for confirmation, “Is he in bankruptcy now?”

3 Respondents represent ed that approximately three days prior to the hearing, they received petition er’s discovery responses. In those responses, petitioner claimed that the $1,5 00 identified by r e s pondents a s the purchase price for the property “was to be used for an attorney t o file for bankruptcy so that the deed would be clear of debts.” Petitioner f urther stated that the agreed

- upon purchase price was $150,000.

4 The court acknowledged that r e spondents ’ motion for summary judgment was not filed by March 25, 2019, which was the deadline for filing such motions. But the court also recalled that, at a hearing on respondent s’ motion to compel discovery responses, it g ranted leav e to the responde n t s to file t heir motion beyond that deadline due to the fact that petitioner ’ s discovery responses remained outstanding.

5 In its order, the court determined that petition er was in breach of th e parties’ agreement requiring him to sell th e property for $ 1

, 500, and t hat respondents were entitled to specific performance. The court made additional conclusions, such as that the statute of frauds was satisfied and/or inapplicabl e for various reasons

, but those conclusions are not recounted he re as they are no t g ermane to petitioner ’ s assignments o f error

.4

Petitioner stated in the affirmative, and t h e c ourt asked, “Well, then how can I proceed?” The

c ourt also asked when petitioner filed bankruptcy. When neither petitioner nor peti tioner’s counsel could answer that question, the court directed the parties to telephone the bankruptcy

court clerk and o b t a i n information on the filing. The bankruptcy court clerk stated that petitioner had not, in fact, filed for bankruptcy . The circuit court then denied petitioner’s motion. The court found that petitioner had not satisfied one of the grounds enumerated in R u l e 60(b) of the West Virginia Rules of Civil Proce dure, and it stated, “Indeed, by coming in today and your client alleging he filed bankruptcy is misleading to this [c]ourt.” It entered its order denying petitioner’s motion on June 25, 2019, and this a p p e a l followed.

Petitioner’s appeal to this Court is from the circuit court’s order denying his “motion to

reconsider.” As the circuit court recognized in evaluating petitioner’s motion under Rule 60(b) of the West Virginia Rules of Civil Procedure, w e ha v e “ caution[ed] trial counsel that a ‘motion for

reco nsideration’ is not explicitly sanctioned by the West Virginia Rules of Civ il Procedure.” Powderidge Unit Owners Ass’n v. Highland Props., Ltd. , 196 W. Va. 692, 705 n.22, 474 S.E.2d 872, 885 n.22 (1996); s e e also Pritt v. Republican Nat’l Comm ., 210 W. Va. 446, 451, 557

S.E.2d 853 , 858 (2001) (“Generally speaking, ‘a “motion to reconsider” is not a properly titled pleading in West Virginia.’”) (citation omitted). Thus,

[w] hen a party filing a motion for r e consider ati o n does not indicate under which West Virginia Rul e of Civil Procedure it is filing the motion, the motion

will be considered to be either a Rule 59(e) motion to alter or amend a judgment or a Rule 60(b) motion for relief from a judgment order

. If the m oti o n is filed within ten days of the circuit court’s entry of judgment, the motion is treated as a

motion to alter or amend und er Rule 59(e). If the motion is filed outside the ten

day limit, it can only be addressed under Rule 60(b).

Powderidg e , 196 W. Va. at 69 5

- 96 , 474 S.E.2d at 87 5

- 76, syl. pt. 2. Beca use petitioner’s “motion for reconsideration” was filed more than ten days after the court entered its order granting respondents summary judgment, it wa s properly addressed under Rule 60(b) of t he West

Vir g inia Rules of Civil Procedure.

Rule 60(b) provi des, in relevant part, that

[o]n motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the

fol l o wing rea son s : (1) Mistake, inadvertence, surprise, excusable neglect, or unavoidable cause; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofor e denomina ted intrin sic or extrinsic), misrepresentation,

or ot her misconduct of an adverse party; (4) the judgment is void; (5) the judgement has been satisfied, released, or discharged, or a prior judgment upon

which it is based has been reversed or othe r w ise vaca ted

, or it is no longer equitable that the judgment s hould have prospective application; or (6) any other reason justifying relief from the operation of the judgment.5

And, finally, we review the denial of motions brought under Rule 60(b) for an a b use of

d isc r etion. Powderidge , 196 W. Va. at 705, 474 S.E.2d at 885.

On appeal, petitioner does not argue that the court erred in denying his “motion for reconsideration,” nor does he contend that he satisfied any of the grounds enumerated in Rule 60(b )

. Indeed, pe t itioner makes no mention of Rule 60 in his brief. Rather, p etitioner argues that the court erred in granting summary judgment because respondents’ motion for summary judgment was not filed in time for petitioner to respond to it. Had responde n t s timely fi l ed their motion, petitioner contends, he would ha ve “point[ ed] out there was a genuine issue of a material fact” and that “[t]he parties disagree that the [$1,500] was for the purchase of the property.” But “[a]n appeal of the denial of a Rul e 60(b) mo tio n brings to consideration for review only the

orde r of denia l itself and not the substance supporting the underlying judgment nor the final judgment order.” Syl. Pt. 3, Toler v. Shelton , 157 W . Va. 778, 204 S.E.2d 85 (1974). Consequently, this C ourt’s func t ion in reviewing a denial of a Rule 60(b) motion “is limite d to deciding whether the trial court abused its discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not shown in a timely matter.” Id. at 77 8

, 204 S. E.2d at 86, syl. pt. 4, in part. Because petitioner do es not arg ue that he presented sufficient grounds to warrant disturbing the finality of the judgment, he has not demonstrated the existence of sufficient grounds to this Court

. Accordingly, we f i nd no a buse of discretion in the court’s denial of petitioner ’s Rule 60(b) m otion. 6

F or the foregoing reasons, we affirm.

Affirmed.

ISSUED: September 4, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice E van H. Jenk i ns Justice John A. Hutchison

6 Nevertheless, we also observe no abuse of the circuit court’s discretion where one asserted basis for setting aside summary judgment

— the filing of a bankruptcy pet ition

— was inaccurate and where petitioner f a i led to de m onstrate a trial

- worthy issue by comp etent evidence

.