STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Raymond A. Hinerman Sr., and 

Barbara B. Hinerman, husband and wife, 

FILED 

May 17, 2013 

RORY L. PERRY II, CLERK 

Plaintiffs Below, Petitioners SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs) No. 12-0617 (Monongalia County 10-C-896) 

Richard A. Rodriguez and
 

Rita C. Rodriguez, husband and wife;
 

KLM Properties, Inc., a corporation;
 

and Kathy L. Martin, a West Virginia
 

Licensed Realtor,
 

Defendants Below, Respondents
 

MEMORANDUM DECISION 

Petitioners Raymond A. Hinerman Sr. and Barbara B. Hinerman appeal the grant of 

partial summary judgment in this matter by the Circuit Court of Monongalia County on April 10, 

2012. Mr. Hinerman is a member of The West Virginia State Bar and represented himself and 

Mrs. Hinerman in these proceedings. Respondents Richard A. Rodriguez and Rita C. Rodriguez, 

by counsel, Gary S. Wigal, and respondents KLM Properties, Inc., and Kathy L. Martin, by 

counsel, Adam M. Barnes, filed their responses to which petitioners filed a reply. Petitioners 

seek reversal of the circuit court’s award of partial summary judgment to respondents. 

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 briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate 

Procedure. 

In June of 2010, Mr. and Mrs. Rodriguez entered into a real estate listing agreement with 

KLM Properties, Inc., through broker Kathy Martin (jointly referred to as “KLM”). Petitioners 

purchased real property from Mr. and Mrs. Rodriguez through KLM. At the time petitioners 

viewed the real property, a boat was located on the property. The statement allegedly made by 

Ms. Martin when petitioners were looking at the home was that the boat would accompany the 

sale of the real estate “for the right price.” The written agreement for the sale of the real estate 

did not mention the boat. During a subsequent conversation, when asked about the boat Ms. 

Martin told petitioners she was not sure the boat was part of the transaction and said she would 

have to call Mrs. Rodriguez to inquire. Mr. Hinerman told Ms. Martin that the boat was part of 

the negotiations from the beginning and that there were never any discussions that excluded the 

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boat. The closing went forward on the real estate, and petitioners filed suit on issues related to 

the home and the boat. 

The original complaint in the underlying matter was filed on December 27, 2010 against 

Mr. and Mrs. Rodriguez who filed a motion to dismiss on December 30, 2010. Petitioners filed 

an amended complaint on January 7, 2011. In response, Mr. and Mrs. Rodriguez filed a motion 

for summary judgment on January 21, 2011. The portion of the motion for summary judgment 

related to the house was granted on March 4, 2011, but the portion of the motion for summary 

judgment related to the boat was denied.1 A second amended complaint was served on June 9, 

2011; that complaint added KLM as defendants. Mr. and Mrs. Rodriguez requested leave to file 

belated answers to the complaints on July 29, 2011, and the request was granted. After the 

completion of discovery, respondents filed motions for summary judgment. These motions were 

granted by order dated April 10, 2012. In that order, the circuit court found that Mr. and Mrs. 

Rodriguez were entitled to summary judgment on the boat issue by operation of the statute of 

frauds and/or by operation of the parol evidence rule. The circuit court also found that KLM was 

entitled to summary judgment on the boat issue because there was no contractual relationship 

between petitioners and KLM at any time relevant to this matter. The order further states that 

petitioners failed to meet their burden of production in demonstrating that KLM breached a duty 

of care owed to petitioners under West Virginia law. 

During litigation, petitioners filed a motion for disqualification against the trial court 

judge and a motion for sanctions against counsel for Mr. and Mrs. Rodriguez, Gary S. Wigal. 

Petitioners requested that Mr. Wigal be sanctioned for alleged misrepresentations in the motion 

for summary judgment. However, in its order granting summary judgment, the court determined 

that all pending motions were rendered moot. 

On appeal, petitioners raise fourteen assignments of error but fail to set forth argument 

related to several of these assignments. Rule 10(c)(7) of the West Virginia Rules of Appellate 

Procedure requires that petitioner’s brief contain an argument exhibiting clearly the points of fact 

and law presented. That Rule also requires that such argument “contain appropriate and specific 

citations to the record on appeal, including citations that pinpoint when and how the issues in the 

assignments of error were presented to the lower tribunal. The Court may disregard errors that 

are not adequately supported by specific references to the record on appeal.” As this Court 

previously found, “[a] skeletal ‘argument,’ really nothing more than an assertion, does not 

preserve a claim. . . . Judges are not like pigs, hunting for truffles buried in briefs.” State v. 

Kaufman, 227 W.Va. 537, 555 n.39, 711 S.E.2d 607, 625 n.39 (2011) (quoting United States v. 

Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Moreover, it is an appellant’s burden to show the 

error in judgment of which he complains. See Syl. Pt. 2, WV Dept. of Health & Human 

Resources Employees Federal Credit Union v. Tennant, 215 W.Va. 387, 599 S.E.2d 810 (2004). 

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The grant of summary judgment related to the house was appealed to this Court on April 

4, 2011. After hearing oral argument pursuant to Rule 19 of the West Virginia Rules of Appellate 

Procedure, this Court issued its decision in Appeal No. 11-0595 in which it was determined that 

the entry of partial summary judgment and the denial of the motion to alter or amend constituted 

error. The matter was remanded for discovery. The Court also found that an amendment 

requested by petitioners to the deed delivered to them by the sellers was warranted. 

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Further, the judgment of the trial court will not be reversed unless error affirmatively appears 

from the record. Id. In addition, this Court has previously held that issues not addressed in an 

appellant’s brief are deemed waived. Damron v. Haines, 223 W.Va. 135, 139 n.5, 672 S.E.2d 

271, 275 n.5 (2008); See In re Edward B., 210 W.Va. 621, 625 n.2, 558 S.E.2d 620, 624 n.2 

(2001). Thus, this Court will only consider the assignments of error for which argument is set 

forth in the petition. 

Petitioners set forth arguments related to four assignments of error.2 Petitioners first 

argue that the circuit court erred by granting summary judgment to respondents. Petitioners 

assert that Mr. and Mrs. Rodriguez breached the contract, Ms. Martin made misrepresentations 

regarding the inclusion of the boat in the purchase agreement, Ms. Martin violated various realtor 

statutes, and respondents are subject to promissory estoppel. Petitioners are critical of the circuit 

court’s reliance on the statute of frauds in granting summary judgment to petitioners, as 

petitioners argue that the parties to the purchase agreement had a written contract which included 

the boat. Petitioners also criticize the circuit court’s emphasis on the fact that Mr. Hinerman is an 

attorney, as the circuit court found that Mr. Hinerman should understand the legal ramifications 

of the decision not to insist that the boat be literally included in the offer. Within this assignment 

of error, petitioners also argue that the circuit court improperly deemed all other pending motions 

as moot without holding a hearing on the motions, specifically petitioner’s motion for sanctions. 

In response, respondents assert that when petitioners signed the purchase agreement, they 

were fully aware, as they admit, that the purchase agreement did not include the boat and that the 

boat was an issue of contention. Respondents also point to an October 21, 2010, letter from Mr. 

Hinerman stating it was his understanding that if there was to be a purchase of a boat that it 

would be by a separate bill of sale. Mr. Hinerman also admits that within approximately one 

week after the execution of the purchase agreement, petitioners communicated to KLM an offer 

of $15,000.00 to purchase the boat. KLM argues that the circuit court correctly found that 

petitioners had no contractual relationship with KLM. Mr. and Mrs. Rodriguez assert that the 

grant of summary judgment was proper because the four corners of the written contract contain 

the actual agreement between the parties, and the purchase agreement is the only reference 

necessary to decide the breach of contract issue concerning the alleged oral promise to convey 

the boat. Mr. and Mrs. Rodriguez also argue that the pivotal fact is that Ms. Martin testified that 

she made the unilateral decision not to include the boat in the first purchase offer of $1,000,000 

because she did not believe the petitioners expected to get the boat for $1,000,000 and assumed 

the offer did not include the boat. She also testified that she made the decision not to include the 

boat in the $1,300,000 counter offer because she did not believe the final offer was high enough 

to warrant conveyance of the boat. The boat was never discussed with Mr. and Mrs. Rodriguez 

until after the purchase agreement had been signed by petitioners and Mr. and Mrs. Rodriguez. 

They also argue that they had no direct contact with petitioners, so no oral contract could exist. 

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In KLM’s Response, it sets forth argument that even if this Court were to find that the 

circuit court erred in granting KLM’s motion for summary judgment, KLM is entitled to partial 

summary judgment on petitioners’ claims for attorney’s fees, reimbursement for Mr. Hinerman’s 

loss of income, and punitive damages. Due to the fact that this Court finds no error in the circuit 

court’s grant of summary judgment to KLM, KLM’s argument is moot. 

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“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). “[T]he 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. Anderson [v. 

Liberty Lobby, Inc.], 477 U.S. [242] at 252, 106 S.Ct. [2505] at 2512, 91 L.E.2d [202] at 214 

[1986].” Williams v. Precision Coil, Inc., 194 W.Va. 52, 60, 459 S.E.2d 329, 337 (1995). In this 

instance, the circuit court did not err in finding petitioners failed to satisfy their burden of proof. 

Thus, the circuit court did not err in granting partial summary judgment to respondents related to 

the alleged sale of the boat. The written agreement concerning the real estate made no reference 

whatsoever to a boat. 

Petitioners’ second assignment of error is that petitioners were entitled to default 

judgment against Mr. and Mrs. Rodriguez. Petitioners argue that Mr. and Mrs. Rodriguez failed 

to answer for approximately 150 days, so petitioners were entitled to default judgment against 

them. Mr. and Mrs. Rodriguez contend that the lower court’s ruling denying the motion for 

default judgment is supported by West Virginia policy that cases should be decided on their 

merits and that default judgments are not favored. They also argue that they filed motions in 

response to the complaint which suspended the requirement to answer until the resolution of the 

motions. After the entry of the order granting the motion for summary judgment on the house 

issue, an answer on the boat cause of action was then due. According to Mr. and Mrs. Rodriguez, 

the answer was not timely filed because petitioners filed a motion to set aside the grant of 

summary judgment which counsel erroneously thought continued the suspension of answering 

the complaints. Mr. and Mrs. Rodriguez filed a motion for leave to file an answer prior to 

petitioners filing their motion for default judgment. Mr. and Mrs. Rodriguez assert that the 

circuit court granted leave to file the answer because petitioners did not allege or show they were 

prejudiced by the late filing. They also assert that petitioners were on notice of Mr. and Mrs. 

Rodriguez’s defenses through the motion to dismiss and motion for summary judgment. 

“In determining whether a default judgment should be entered in the face of a 

Rule 6(b) motion or vacated upon a Rule 60(b) motion, the trial court should 

consider: (1) The degree of prejudice suffered by the plaintiff from the delay in 

answering; (2) the presence of material issues of fact and meritorious defenses; 

(3) the significance of the interests at stake; and (4) the degree of intransigence on 

the part of the defaulting party.” Syl. Pt. 3, Parsons v. Consolidated Gas Supply 

Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979). 

Syl. Pt. 5, Tudor’s Biscuit World of America v. Critchley, 229 W.Va. 396, 729 S.E.2d 231 

(2012). “In reviewing challenges to the findings and conclusions of the circuit court, we apply a 

two-prong deferential standard of review. We review the final order and the ultimate disposition 

under an abuse of discretion standard, and we review the circuit court’s underlying factual 

findings under a clearly erroneous standard. Questions of law are subject to a de novo review.” 

State v. Robertson, No. 11-1618, 2013 WL 657885 (W.Va. February 21, 2013), quoting Syl. Pt. 

2, Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997). Thus, 

this Court will apply an abuse of discretion standard. Based upon the lack of prejudice to 

petitioners; the presence of the material issues of fact and meritorious defenses, as evidenced by 

the grant of partial summary judgment to Mr. and Mrs. Rodriguez and the record in this case; 

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and the significance of the interests at stake, this Court finds that the circuit court did not abuse 

its discretion in denying petitioners’ motion for default judgment. 

Petitioners’ third assignment of error for which argument is set forth is that petitioners 

were entitled to summary judgment. Petitioners admit that they did not file a motion for 

summary judgment. Rule 56(a) of the West Virginia Rules of Civil Procedure states, “A party 

seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment 

may . . . move with or without supporting affidavits for a summary judgment in the party’s favor 

upon all or any part thereof.” “‘Ordinarily, in the absence of a written motion for summary 

judgment by one of the parties, the court is not authorized sua sponte to grant a summary 

judgment.’ Syllabus Point 2, Gavitt v. Swiger, 162 W.Va. 238, 248 S.E.2d 849 (1978).” Syl. Pt. 

2, Hanlon v. Boone County Community Organization, Inc., 182 W.Va. 190, 386 S.E.2d 847 

(1989). Due to the fact that petitioner never filed a motion for summary judgment, under the 

facts and circumstances of this case, there was no error on the part of the circuit court in failing 

to award summary judgment to petitioners. 

Petitioners’ final assignment which was argued in the petition was their alleged 

entitlement to sanctions against Mr. and Mrs. Rodriguez. Petitioners assert that this Court should 

order a hearing on petitioners’ entitlement to sanctions against Mr. and Mrs. Rodriguez for 

alleged misstatements in their motion for summary judgment. Rather than setting forth argument 

on this issue, petitioners contend that the same issue is before this Court on their prior appeal 

related to petitioners’ purchase of real estate from Mr. and Mrs. Rodriguez. Petitioners are 

critical of the circuit court’s order which did not address the motion for sanctions. Counsel for 

Mr. and Mrs. Rodriguez admit that petitioners are correct that there were citation errors in the 

motions caused by technological issues related to electronic transcripts. Counsel states that the 

problem was not discovered until petitioners made their allegations that the transcripts were 

intentionally altered. When counsel was notified of the problem, counsel submitted a 

supplemental motion for summary judgment with corrected citations. 

“It is clear that ‘before issuing a sanction, a court must ensure it has an adequate 

foundation either pursuant to the rules or by virtue of its inherent powers to exercise its 

authority.’ Syl. Pt. 1, in part, Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996).” State ex 

rel. Richmond American Homes of West Virginia, Inc. v. Sanders, 226 W.Va. 103, 110, 697 

S.E.2d 139, 146 (2010). In addition, “a court must ensure any sanction imposed is fashioned to 

address the identified harm caused by the party’s misconduct.” Id. at 111, 147, quoting Syl. Pt. 1, 

Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996). Based upon the alleged conduct of 

counsel for Mr. and Mrs. Rodriguez, the circuit court did not err in failing to specifically address 

the motion for sanctions when awarding partial summary judgment to respondents. 

For the foregoing reasons, we affirm. 

Affirmed. 

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ISSUED: May 17, 2013 

CONCURRED IN BY: 

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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