*1 14, Aсcording November 1997. to Mr. possession John- sers have either taken son, party neither in- the transaction property improvements or made thereon. they orally him agreed formed had to Moreover, there is no support evidence to convey property during an additional of acre $27,000 Messers’ contention that pur- closing, nor was the one acre included price payment chase included for the one- purchase/sale that occurred on November Therefore, acre tract. part the doctrine of Thus, evidence, 1997. based all the performance applicable, is not and conse- agreement we find no written between the quently, alleged oral contract for the sale parties concerning the tract of one-acre land. of the one-acre tract of land is not enforce- able the statute frauds. Having determined that there was agreement regarding no written the one-acre Having found that statute frauds land, trаct of must now we consider whether ease, applies in this we further find that no the statute of frauds in fact does bar- enforce genuine pre- issues material fact exist to alleged ment of the oral contract between the summary judgment. clude Accordingly, the parties. Syllabus Timberlake, Point 3 of final order of the Circuit Court of Lincoln that, supra, explained this Court May is affirmed. frauds, applicable The statute to con- Affirmed. land, tracts for the sale or lease is a procedural prevent bar to enforcement of
oral contracts unless the conditions ex- W.Va.Code,
pressed 36-1-3, are met. operation of the goes statute of frauds
only remedy; to the it does not render the
contract void.
As
suggests,
this statement
there are some
citing Syllabus
Stalnaker,
Supreme
Appeals
Point
Gibson
Virginia.
87 W.Va.
Frauds, (Michie 1994). Statute Sept. Submitted 2001. recognized payment Court has along possession property improvе- Decided Oct. necessary ments thereon the vendee is Dissenting Opinion of Justice part performance the doctrine of ap- to be Albright Nov. plied exception as an to the statute of frauds.
Id. above,
As noted the Messers contend
part performance has occurred in this case they $27,000 paid
because the Runions possession
took of the 4.23 acres of land.
However, the 4.23 acres of land are not at only
issue this case. This ease relates to adjoining land, оne-acre tract of and we
find no evidence in the record that the Mes- *2 Crandall, Hills, III, Pyles, Havi-
Henry M. Turner, Appellee. Logan, for land & PER CURIAM: upon appeal is before this Court ease of Kana- of the Circuit Court of a final order July 2000. Pur- County entered on wha order, upheld circuit court suant to that respondent appellant and a decision below, Virginia Department of Ed- the West (hereinafter “Department of Edu- ucation cation”), peti- suspending appellee Adkins, below, Jimmy a school Dale tioner teacher, aon certification for untruthfulness application.
found the arbitraiy Department of Education to be discretion, capricious and an abuse of thus, suspension be ordered that appeal, the In this reduced to one contends that the Department of Education clearly by reducing the court erred suspension. petition for it the
This Court appeal, and the briefs the entire For the reasons set argument of counsel. below, final of the circuit forth order court is reversed..
I. teaching Jimmy began his Dale Adkins July while career 1973. On elementary employеd school teacher Clay County, Mr. Adkins was convicted of cocaine, felony, in delivery of two counts of County. of Nicholas As the Circuit Court convictions, Mr. Adkins lost his result of his job year prison followed one served years probation. five to return to In Mr. Adkins decided teach- teaching applied for a substitute Department of Edu- ing pеrmit from the indi- his Mr. Adkins cation. On felony had been convicted cated he investigation, the De- this state. Without the certifica- partment of Education issued after, General, McGraw, Jr., tion. Mr. Adkins Attorney Soon Darrell V. Talbott, Braxton Board Attorney Assistant Kelli D. Senior felony convictions. General, Charleston, aware of his Appellant. which was suspended Mr. Adkins filed beginning two of Education for the that date. professional provisional conversion his challenged Mr. Adkins suspension by professional certificate to a filing petition for a writ of certiorari in the years. certificate valid for five On appli- *3 Circuit Court of County. Kanawha After cation, Mr. Adkins “no” answered to the briefing argumеnt, and oral the circuit court following question: you ever “Have been con- an upholding Department order the you currently victed of or are under indict- of finding Education’s that Mr. Adkins was felony?” ment application for a His was intentionally untruthful on his 1989 and 1994 approved. applica- On another certification applicatiоns. However, certification the cir- 1994, tion again filed in Mr. Adkins indicated cuit court found that the that felony. he had not been convicted Department the of Education However, sought Mr. perma- when Adkins a and constituted 1999, teaching correctly nent in certificate he an of abuse Consequently, discretion. the “yes” question regarding answеred to the that Mr. ordered Adkins’ sus- prior felony Upon receipt convictions. of this pension one-year be reduced to a period be- Department of Education be- 21, on ginning ending December 1999 and on gan investigation requested that Mr. 21, appeal December 2000. This followed.2 provide Adkins of documentation his convic- tions. II.
Thereafter, Department of Education discovered that Mr. Adkins untruthful in The sole issue this case is whether the applications in the certification he filed circuit reducing court erred Mr. Adkins’ 1989 and 1994. It was also discovered that two-year suspension imposed by Depart investigation no had occurred when Mr. Ad- ment of Education one to As noted applied kins a teaching permit for substitute above, the record reflects that Mr. Adkins 1983, at even that time he was sought Department review of of Edu prior Sep- truthful about his convictions. On by filing petition a cation’s for a writ 8,1999, Department tember of Education §§ of certiorari 53- W.Va.Code perma- denied Mr. Adkins’ for a (1923). 3-1 -6 recognized tеaching nent certification and further noti- personnel may that “school also seek review him fied that his certificate would of school board writ actions of certiorari period not for a of be renewed at least two Virginia circuit court under West Code appli- after date of his most recent (1981 Vol.), § Replacement 53-3-2 which cation. provides, pertinent part, that certiorari case, every proceeding lies ‘in matter or be September
On
Mr. Adkins re-
...
fore
inferior tribunal
... after a
a[n]
quested
hearing
a
regarding the non-renewal
judgment or final order therein....’” Board
Accordingly,
hearing
of his
certification.
MacQueen,
Educ.
Lincoln
v.
was hеld before the Professional Practice
of
338, 340,
(hereinafter
174
“Panel”)
W.Va.
357
Panel
Depart-
(1984).
Beverlin
Board
Educ.
ment of Education.1 On December
County, 158
Lewis
W.Va.
216 S.E.2d
the Panel
its
issued
recommendation that
suspended
Court “established that on a
Mi1.Adkins’
certification be
for
writ
court
years, beginning
minimum
of certiorari the
of two
the date
review
еntry
suspension
if
order.
action of the lower tribunal to determine
it
On Decem-
21, 1999,
manner,
ber
acted in
did,
adopted
Panel’s
if
will
recommendation and or-
its action
be reversed.”
Virginia
Regents,
dered
Mr. Adkins’
certification
Bd.
North v.
stayed
1. Pursuant to 126 C.S.R 4-4.4
the State
2. On December
this Court
Superintendent of the
Board
Education
pending disposition of
cirсuit court’s order
appoint
authorized
Professional Practice
appeal.
Panel to hear and make
him
recommendations to
regarding
against
action
a teacher's license.
superintendent may, after ten
418-19
The state
evidence,
days’
upon proper
(1977).3
notice and
re-
any
certificates of
tеacher for
voke the
court
In this
determined
drunkenness, untruthfulness,
immorality,
was not
tribunal below
that “the
any physical,
or moral
for
mental
defect
capi'icious
regard
finding
to its
prop-
him unfit for the
which would render
Jimmy D.
and 1994
Adkins’ 1989
certification
teacher,
of his
as a
performance
er
duties
by him
application forms were submitted
any neglect
duty
refusal to
improper
and that such in-
information
same,
fraudulent,
perform
using
or for
intentionally placed
formation
credit, or
unapproved, or insufficient
circuit court went
forms.”
justified
any
cause which would have
other
two-year
in its
to state
final order
“the
withholding of a
certificate when the
*4
imposed
suspension
by
Department
the State
was issued.
same
in
is
and
of Education
this matter
(1999)
Likewise,
pro-
§
126
4-4.10.1
C.S.R.
discretion,
and
in that
an abuse of
Superintendent
vides that
shall have
“[t]he
two-year
not
mis-
suspension does
fit the
the
revoke, suspend,
authority to
or restrict
the
by
Department
the
conduct demonstrated
addition, the
teaching certificate.” In
State
forth on the
and the evidence set
record
Superintendent may make corrections with
Accordingly,
Mr. Adkins.”
the circuit court
regard
process.
in the
to errors
certification
year.
suspension
the
to one
reduced
provides
§ 18A-3-6 further
that
W.Va.Code
granted through
“[i]f a certificate
been
that a cir
has advised
misinformation,
error, ovеrsight,
an
the
of an
cuit court
not reverse
decision
superintendent
state
of schools shall have
simply
agency
because
administrative
authority to recall the
make
certificate
differently.
the case
would have decided
such
as will conform to the
corrections
re-
Medicine,
Virginia
v. West
Bd.
193
Berlow
quirements
lawof
and the state board of
(1995).
W.Va.
475
education.”
explained
Syllabus
in
Point 3 of In re
As we
in this
The record
case shows
the
Queen,
196W.Va.
panel superin- and the decision of state why two-year pen- no record as to made impose two-year, tendent to а rather than a alty chosen, ap- additional concern one-year suspension Appellee, was not pears. The claimed routine recommendation accompanied by of fact findings and conclu- professional panel practice of the and the appropriate sions of law on of an the issue imposition penalty routine of a fixed of two punishment. by superintendent the state sounds like, clearly
The record is sufficient looks and like a or issue like works rule Appellee’s honestly fully to and regulation properly pub- failure which has not been complete lished, application for a li- put promulgatеd into effect a fact concealing cense that he regulation practice had professional rule or of the previously been of a serious convicted crime. panel superintendent or the state schools underlying Neither that nor the concealment provisions under the of the administrative criminal conduct condoned. W.Va.Code, procedures act of state. this Chapter goes, if saying 29A. As it looks essentially the record is silent on duck, quacks like a a walks like duck like why the issue of a duck, it a probably a most duck. Reliance light fact state office unpublished, un-promulgated such an county that the which school board regulаtion may rule not be the basis of a employs fully still Appellee aware of body imposing decision of an administrative the facts and circumstances of the matters penalty person regulated by civil Appellee from his license omitted body, administrative and reliance on such an county and that Appel- board considers un-promulgated regulation is therefore facial- exemplary service as a to be lee’s teacher ly capricious, keeping with despite important the omission of information finding reviewing the lower court. from the to the state for a teach- ing license. Where the actions of administrative body capricious,
As I found argument understood from the oral are to be Court, Appellant authority this defends circuit its im- courts are vested reverse, modify to vacate or upon appeal body. cir- the administrative
action of court, with the bare record
cuit faced Appellee’s and the offense of the
nature modify chose the action of light of body in
the administrative action. In
body’s view, clearly entitled
my the lower court was adminis- modifying matter end the order, light especially in
trative unpub- upon an apparent reliance
body’s
lished, un-promulgated and ineffective rule light paltry record regulation. penalty, an appropriate I the issue clearly say that the court was
cannot reliable, probative
wrong in view of More- evidence on the record.
substantial
over, light of the circumstances say that I cannot the court below was
arbitrary or or abused its discre- devising appropriately
tion means indirectly
punishing Appellee without sanc- un-promul- unpublished, of an
tioning the use
gated regulation. and ineffective rule or
I am authorized state that Justice joins dissenting opin- me in
STARCHER
ion. CORDER, Jr.,
Joseph Executor of the W. Deceased, Mills, Estate of W. Jane Below, Appellant
Plaintiff W. SMITH
WILLIAM EXCAVATING
CO., Below, Defendant
Appellant, Guaranty Fidelity States &
United Below,
Company, Defendant
Appellee.
No. 29006.
Supreme Appeals Virginia. Sept.
Submitted
Decided Nov.