STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Connie Tuttle, FILED 

Plaintiff Below, Petitioner April 10, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 14-0427 (Kanawha County 14-C-184) OF WEST VIRGINIA 

State Farm Mutual Automobile Insurance Company, 

Mark Baire, and Samantha Baire, Defendants Below, 

Respondents 

MEMORANDUM DECISION 

Petitioner Connie Tuttle, by counsel Travis A. Griffith, appeals the order of the Circuit 

Court of Kanawha County, entered March 25, 2014, that granted summary judgment in favor of 

Respondents, State Farm Mutual Automobile Insurance Company, Mark Baire, and Samantha 

Baire, on petitioner’s claim to enforce an alleged settlement agreement arising from an 

automobile accident. Respondents, by counsel David A. Mohler and Christopher L. Edwards, 

filed a response in support of the circuit court’s order. 

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. 

At about 8:40 a.m. on March 8, 2012, a car driven by Samantha Baire crossed the center 

line and struck petitioner’s oncoming car. The impact caused petitioner’s car to slide off the 

roadway and overturn. As a result, petitioner sustained injuries that required medical treatment. 

The law enforcement officer who investigated the accident found it was caused by Ms. Baire’s 

negligence. The car driven by Ms. Baire was registered in the name of her father, Mark Baire. 

Mr. Baire’s car was insured by State Farm Mutual Automobile Insurance Company (“State 

Farm”). 

Petitioner retained counsel who, on June 12, 2013, sent State Farm’s claim representative, 

Mr. Terry Cole, a settlement demand of $44,980.92 to settle all alleged liability arising from the 

accident. On June 20, 2013, Mr. Cole countered with a settlement offer of $17,000. On June 28, 

2013, petitioner’s counsel sent a second settlement demand in the amount of $43,000 and 

provided documentation of petitioner’s medical bills resulting from the accident that totaled 

$12,024.99. On July 2, 2013, Mr. Cole countered with an offer of $19,524.97. 

On October 21, 2013, petitioner’s counsel made a “final demand” of $40,500 which 

indicated that, if the demand was not met, counsel would file a lawsuit on petitioner’s behalf. On 

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October 22, 2013, Mr. Cole responded by facsimile with the following: “Please be advised[,] 

based on the current info, I am meet your $40[,]500 counter demand. Please contact me at 304­

368-3830 to discuss.” That same day, petitioner’s counsel, by return mail, confirmed what he 

believed to be petitioner’s acceptance of State Farm’s October 22, 2013, counteroffer. In the 

acceptance letter, petitioner’s counsel noted his law firm’s tax identification number and 

indicated how the settlement draft would be drawn. 

The next day, Mr. Cole informed petitioner’s counsel that his October 21, 2013, facsimile 

failed to include the words “unable to.” Thus, the October 22, 2013, facsimile was intended to 

read: “Please be advised based on the current info, I am unable to meet your $40[,]500 counter 

demand. Please contact me . . . to discuss.” Thereafter, petitioner’s counsel spoke by phone with 

Mr. Cole. During that call, Mr. Cole again confirmed that State Farm had not increased its 

settlement offer to $40,500. 

On January 27, 2014, petitioner filed a “Petition to Enforce Settlement” which claimed 

that State Farm’s October 22, 2013, facsimile contained a valid settlement offer which petitioner 

accepted thereby creating a contract between the parties. In response, respondents filed a motion 

to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. Thereafter, 

respondents filed an affidavit signed by Mr. Cole in support of their motion. The affidavit 

asserted, among other things, that Mr. Cole’s October 22, 2013, facsimile accidentally omitted 

the words “unable to” and that the facsimile was not an acceptance of petitioner’s counsel’s 

October 21, 2013, $40,500 final demand. 

On March 25, 2014, the circuit court held a hearing on the matter. By order entered that 

same day, the circuit court granted summary judgment to respondents. The order stated that, 

The [c]ourt has considered the Petition to Enforce Settlement,[] as if it 

were an action to determine if a contract existed for settlement. After reviewing 

the affidavit of Terry Cole . . . and considering all of the matters in the circuit 

court file, [the court] finds by a preponderance of the evidence that: 

1. a mistake in typing was made [in] the reply to the demand; 

2. there was no meeting of the minds; 

3. no consideration was given; and 

4. the parties agree to disagree. 

Therefore, after reviewing [all documents in the case] and hearing oral 

arguments by both sides, the Court finds no contract existed as a matter of law; 

thus, there is no settlement to enforce. Accordingly, this matter is hereby 

DISMISSED and STRICKEN from the docket of the Circuit Court. 

Petitioner now appeals the circuit court’s March 25, 2014, order. 

Pursuant to Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment 

should be awarded “if the pleadings, depositions, answers to interrogatories, and admissions on 

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact 

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and that the moving party is entitled to a judgment as a matter of law.” Thus, “[a] motion for 

summary judgment should be granted only when it is clear that there is no genuine issue of fact 

to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” 

Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 

(1963). We accord a plenary review to the circuit court’s order granting summary judgment: “[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). We note, as well, that “the 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). 

Petitioner raises five assignments on appeal. Petitioner first argues that the circuit court 

erred in converting respondents’ motion to dismiss into a motion for summary judgment without 

first providing notice to petitioner. We have said, 

When a motion to dismiss for failure to state a claim upon which relief can be 

granted under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure is 

converted into a motion for summary judgment, the requirements of Rule 56 of 

the West Virginia Rules of Civil Procedure become operable. Under these 

circumstances, a circuit court is required to give the parties notice of the changed 

status of the motion and a reasonable opportunity to present all material made 

pertinent to such a motion by Rule 56. In this way, no litigant will be taken by 

surprise by the conversion. The absence of formal notice will be excused only 

when it is harmless or the parties were otherwise apprised of the conversion. Once 

the proceeding becomes one for summary judgment, the moving party’s burden 

changes and the moving party is obliged to demonstrate that there exists no 

genuine issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law. 

Syl. Pt. 5, Riffle v. C.J. Hughes Constr. Co., 226 W.Va. 581, 703 S.E.2d 552 (2010). 

As we said in Riffle, the absence of a formal notice of the conversion of a motion to 

dismiss into a motion for summary judgment will be excused when it is harmless or the parties 

were otherwise apprised of the conversion. In this case, the absence of formal notice to petitioner 

of the circuit court’s conversion of respondents’ motion to dismiss into a motion for summary 

judgment was harmless because petitioner was apprised of the conversion by respondents’ 

submission of Mr. Cole’s affidavit to the circuit court. In fact, in petitioner’s response to 

respondents’ motion to dismiss, petitioner alleged that respondents’ motion was actually a 

motion for summary judgment. Additionally, during the March 25, 2014, hearing on this matter, 

the circuit court gave the parties a reasonable opportunity to present all material pertinent to a 

motion for summary judgment and the opportunity to argue their cases. Accordingly, we find 

that the circuit court complied with Riffle in all respects. Thus, petitioner was not taken by 

surprise or prejudiced by the circuit court’s conversion of respondent’s motion to dismiss into a 

motion for summary judgment. 

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Petitioner next argues that the circuit court erred in granting summary judgment without 

providing sufficient time for discovery. “As a general rule, summary judgment is appropriate 

only after the parties have had adequate time to conduct discovery.” Elliott v. Schoolcraft, 213 

W.Va. 69, 73, 576 S.E.2d 796, 800 (2002). That said, pursuant to Syllabus Point 1, in part, of 

Powderidge Unit Owners Association v. Highland Properties, Ltd., 196 W.Va. 692, 474 S.E.2d 

872 (1996), a party opposing summary judgment on the ground of insufficient time for discovery 

must, at a minimum, satisfy the following four requirements: 

(1) articulate some plausible basis for the party’s belief that specified 

“discoverable” material facts likely exist which have not yet become accessible to 

the party; (2) demonstrate some realistic prospect that the material facts can be 

obtained within a reasonable additional time period; (3) demonstrate that the 

material facts will, if obtained, suffice to engender an issue both genuine and 

material; and (4) demonstrate good cause for failure to have conducted the 

discovery earlier. 

Id. at 695, 474 S.E.2d at 875. In the instant case, petitioner fails to identify any disputed material 

fact or articulate how further discovery would have created a dispute of material fact. Thus, 

petitioner cannot satisfy the first or third prongs of Powderidge. 

Petitioner also argues that she should have been given the opportunity to “question” 

Mr. Cole at the hearing on this matter. However, she does not set forth any basis for believing 

that such questioning would have revealed new information or caused Mr. Cole to change his 

position regarding the typographical error in his October 21, 2013, facsimile. Accordingly, 

petitioner cannot advance any legitimate reason as to how additional discovery would have 

created a dispute of material fact. As such, we find the circuit court did not err in failing to allow 

additional time for discovery. 

Petitioner’s third assignment of error is that the circuit court’s order does not set out 

sufficient findings of fact or conclusions of law to permit meaningful review by this Court. We 

have said that a circuit court granting summary judgment must set forth specific findings of fact 

and conclusions of law so that this Court may “determine whether the stated reasons for the 

granting of summary judgment by the lower court are supported by the record.” Fayette Cnty. 

Nat’l Bank v. Lilly, 199 W. Va. 349, 353, 484 S.E.2d 232, 236 (1997). In the instant case, we 

find that the order on appeal, although abbreviated, sufficiently explains the circuit court’s 

reasons for granting summary judgment to respondents. Specifically, the circuit court provided 

the factual basis for its ruling, i.e., there was a “mistake in typing.” Moreover, the circuit court 

explained that the “mistake in typing” meant there was no meeting of the minds between the 

parties and, thus, no settlement contract was formed between them. Hence, we find no error. 

Petitioner next argues that the circuit court erred in finding that there was no meeting of 

the minds between the parties given that the alleged mistake was a unilateral mistake, for which 

the drafter of the document—Mr. Cole on behalf of State Farm—bears the burden. A unilateral 

mistake is defined as “[a] mistake by only one party to a contract.” Black’s Law Dictionary 1154 

(10th ed. 2014). This Court has said that a unilateral mistake of a party to a contract will not 

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remove the effects of an agreement. See, e.g., Ohio Farmers Ins. v. Video Bank, Inc., 200 W.Va. 

39; 488 S.E.2d 39 (1997); Eye v. Nichols, 137 W.Va. 75, 70 S.E.2d 264 (1952). However, we 

have also said that the acceptance of a contract must be clear and unequivocal in order to be 

effective. See Stark Elec., Inc. v. Huntington Hous. Auth., 180 W.Va. 140, 142, 375 S.E.2d 772, 

774 (1988) (“It is rather universally accepted that where an offer is made and the person 

accepting the offer does not do so unequivocally, but conditions his acceptance, then no binding 

contract arises.”). We have also said that, ‘[s]ince a compromise and settlement is contractual in 

nature, a definite meeting of the minds of the parties is essential to a valid compromise, since a 

settlement cannot be predicated on equivocal actions of the parties.’” O’Connor v. GCC 

Beverages, Inc., 182 W.Va. 689, 691, 391 S.E.2d 379, 381 (1990) (quoting 15A C.J.S. 

Compromise & Settlement, § 7(1) (1967)). Here, Mr. Cole did not render a clear and unequivocal 

acceptance of petitioner’s final settlement offer, nor does Mr. Cole’s typographical “mistake” 

automatically turn his response into an acceptance of that offer. Accordingly, we find that the 

circuit court did not err in finding that there was no meeting of the minds between the parties in 

regard to petitioner’s final settlement demand. 

Petitioner’s fifth and final assignment of error is that the circuit court erred in basing its 

grant of summary judgment on respondents’ “sham” affidavit from Mr. Cole. Petitioner claims 

that Mr. Cole’s affidavit is a “sham” because it contradicted Mr. Cole’s alleged acceptance of 

petitioner’s final settlement offer. We reject this argument based on our finding that the circuit 

court did not err when it determined that there was no meeting of the minds in regard to a 

settlement offer in this case. Thus, Mr. Cole never accepted petitioner’s offer. Accordingly, we 

find no error. 

For the foregoing reasons, we affirm the circuit court’s March 25, 2014, order. 

Affirmed. 

ISSUED: April 10, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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