736 S.E.2d 351
W. Va.2012Background
- Buyers purchased a Morgantown residence for $1.3 million; water leakage appeared in a basement storage room before closing.
- Leak disclosed October 2010; sellers informed buyers and delayed closing; buyers inspected and noted odor and leak December 2010.
- Purchase Agreement contained as-is/no repairs language and walk-through rights prior to closing; risk of loss provision in Agreement.
- Buyers sued December 2010 seeking damages and fraud; defendants moved for summary judgment; buyers sought discovery under Rule 56(f).
- Circuit court granted partial summary judgment for sellers in March 2011; buyers moved to alter or amend, which was denied in July 2011; appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether discovery was improperly curtailed before summary judgment. | Buyers: Rule 56(f) warranted discovery before ruling. | Rodriguezs: no genuine issues; judgment proper without further discovery. | Discovery should have been allowed; error remanding for discovery. |
| Whether the Purchase Agreement’s as-is/no repair provisions precluded liability. | As-is clause related to conditions at signing; pre-closing walk-through preserved rights. | As-is/no repair clause limited buyers; no fraud or breach shown. | As-is language does not bar all claims; material facts remain; remand proper. |
| Whether the deed language should include 'free and clear of all liens and encumbrances'. | Deed language required by Agreement; furnish enhanced covenants. | Deed already delivered with general warranty; issue moot. | Deed must include language as provided by Agreement; error to omit. |
| Whether the court properly construed risk of loss and remedies under Bryant v. Willison Real Estate Co. | Bryant supports purchaser remedies beyond insurance proceeds where loss occurs before closing. | Bryant limited remedies to termination or insurance proceeds in pre-closing loss. | Bryant guides interpretation; not dispositive; facts require discovery. |
Key Cases Cited
- Bryant v. Willison Real Estate Co., 177 W.Va. 120 (1986) (risk of loss rules; early authority on pre-closing damage remedies)
- Powderidge Unit Owners Association v. Highland Properties, 196 W.Va. 692 (1996) (Rule 56(f) discovery standards and four-part test for continuance)
- Logue v. Flanagan, 213 W.Va. 552 (2003) (as-is clause and vendor disclosure context)
- Thacker v. Tyree, 171 W.Va. 110 (1982) (disclosure and as-is contract implications)
- Toth v. Board of Parks and Recreation Commissioners, 215 W.Va. 51 (2003) (requirement for factual findings in partial summary judgments)