Mark C. Busack v. West Rentals, Inc.
16-0718
| W. Va. | Nov 17, 2017Background
- Mark C. Busack, a federal inmate and former tenant, leased commercial premises at 260 Bethany Pike from West Rentals, Inc.; lease ran June 1, 2015–May 31, 2016 and included a $125 late fee and an abandonment clause for property left at tenancy end.
- Busack was incarcerated in October 2015, paid October rent, but a November rent check was stopped; West Rentals notified him of default and demanded payment for November/December plus late fee or considered the letter an eviction notice.
- Busack told West Rentals in December 2015 he could not meet rent and asked that his power of attorney be allowed to collect his business property; the person identified declined responsibility when contacted.
- Busack asked his secured creditor (Citizens Bank) in January 2016 to arrange removal/disposal of inventory; the bank did not remove the items.
- West Rentals ultimately disposed of the remaining property in May 2016. Busack sued in Ohio County circuit court seeking return or value of property and lost profits; West Rentals moved for summary judgment relying principally on the written lease.
- The circuit court granted summary judgment for West Rentals; the Supreme Court of Appeals of West Virginia affirmed, holding the lease governed and Busack had no right to retrieve property after default and abandonment.
Issues
| Issue | Busack's Argument | West Rentals' Argument | Held |
|---|---|---|---|
| Whether the written lease governs parties’ rights despite Busack not receiving a counterpart signed by landlord | Busack: He shouldn’t be bound because he never received a copy signed by respondent | West Rentals: Parties acted consistent with the lease (possession, rent payments, late fee) so lease governs | Lease is enforceable; parties’ conduct evidences a contract governed by the lease |
| Whether Busack had a right to retrieve personal property after default | Busack: Was denied a reasonable opportunity to retrieve property and seeks return or value | West Rentals: Lease bars retrieval when tenant is in default and provides abandonment rule; respondent attempted to facilitate retrieval but no authorized person acted | No right to retrieve property after default; abandonment clause applies; summary judgment for respondent |
| Whether respondent failed to facilitate retrieval or had a duty to retain property | Busack: Respondent denied reasonable opportunity; claims damages | West Rentals: Attempted to facilitate retrieval in Dec 2015; had no duty under lease to hold property | Even assuming some procedural issues, respondent lacked a duty and also attempted facilitation; no genuine fact issue |
| Applicability of UCC or other theories (e.g., damages for lost profits) | Busack: Action could proceed under UCC; seeks $29,000 damages | West Rentals: Did not claim a security interest; damages unsupported | Court rejected UCC claim and speculative damages; no basis to recover |
Key Cases Cited
- Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (W.Va. 1994) (summary judgment standard reviewed de novo)
- Bailey v. Sewell Coal Co., 190 W.Va. 138, 437 S.E.2d 448 (W.Va. 1993) (contract formation may be shown by conduct)
- Bennett v. Dove, 166 W.Va. 772, 277 S.E.2d 617 (W.Va. 1981) (unambiguous written instruments are enforced as written)
- Cotiga Dev. Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (W.Va. 1962) (same principle on contract interpretation)
- Dan Ryan Builders, Inc. v. Nelson, 230 W.Va. 281, 737 S.E.2d 550 (W.Va. 2012) (elements of contract: offer, acceptance, consideration)
- Shenandoah Sales & Service, Inc. v. Assessor of Jefferson County, 228 W.Va. 762, 724 S.E.2d 733 (W.Va. 2012) (corporations must be represented by licensed counsel)
- Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (W.Va. 1995) (opposing party should have adequate time to respond to summary judgment motion)
- West Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (W.Va. 1959) (corporations require attorney representation)