James W. St. Clair George A. Stolze
St. Clair & Levine Huntington, West Virginia
Huntington, West Virginia Attorney for the Appellees,
Attorney for the Appellants Ermano Manzo and
Sally Brooks Manzo
David M. Pancake
Nelson, Hager, Pancake & Heilmann Thomas S. Sweeney
Huntington, West Virginia Meyer, Darragh, Buckler,
Attorney for the Appellees, Bebenek & Eck
Coldwell Banker Residential Affiliates, Charleston, West Virginia
Inc., and Pancake Realty Company Attorney for the Appellee,
Frank E. Sampson
John F. Cyrus
Gardner & Cyrus
Huntington, West Virginia
Attorney for the Appellee,
Mary Alice Fisher
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
"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." Syllabus point 3, Aetna Casualty & Surety
Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d
The appellants in this proceeding, Scott S. Eblin and
Diane Eblin, after discovering serious structural defects in the
basement of a house which they had purchased a short time before,
sued the former owners, the realtors who had been involved in their
purchase of the property, the appraiser, and a house inspector who
had inspected the house before they closed the transaction. The
Circuit Court of Cabell County granted summary judgment to all the
defendants except the house inspector, Frank E. Sampson. A jury
ultimately considered the case against Mr. Sampson and rendered a
verdict in his favor.
In the present appeal, the Eblins claim that the circuit
court erred in granting summary judgment to the former owners, the
realtors, and the appraiser. They also claim that the trial court
should have granted them a new trial against Mr. Sampson.
After reviewing the questions presented, this Court
believes that the trial court did err in granting summary judgment
in favor of the realtors and the former owners. The Court,
therefore, concludes that the judgment of the circuit court,
insofar as it relates to those parties, should be reversed. The
Court does not believe that the trial court erred in granting the
appraiser, Mary Alice Fisher, summary judgment or in refusing to grant the Eblins a new trial against Mr. Sampson. Accordingly, the
judgments in favor of those parties should be affirmed.
In 1988, Scott and Diane Eblin decided to purchase a
house in Huntington, West Virginia, which had been listed for sale
by the owners, Ermano and Sally Brooks Manzo, with Pancake Realty
Company, an affiliate of Coldwell Banker Residential Affiliates,
Inc. They then, on or about May 22, 1988, entered into a written
agreement to purchase the house for $65,000.00. The contract was
made expressly contingent "upon a satisfactory structural
After the contract was entered into, Frank E. Sampson, a
local home inspector, was retained with the consent of the Eblins,
by Ed Pancake of Pancake Realty, to inspect the house. On May 31,
1988, Mr. Sampson inspected the house and submitted a written
report to Ed Pancake. The report indicated that there were a
number of defects in the house, which included vertical cracks at
each corner of the stoop, broken downspouts, out-of-level floors,
foundations which had apparently moved, and unsatisfactory controls
to protect against foundation wetting. The report stated: "No
foundation repair is recommended at this time. As a routine
caution, it is pointed out that repairs could be required in the
After receiving Mr. Sampson's report, but before its
submission to the Eblins, Mr. Pancake made a number of handwritten
notations on it. For example, beside the remark relating to the
cracks by the stoop, he said, "normal condition for these houses,"
and beside the remark that foundation repairs could be required in
the future, he said, "recommended on all reports."
When the Eblins received Mr. Sampson's report with Mr.
Pancake's notations, they requested a supplemental report from Mr.
Sampson on the mechanical systems and certain other parts of the
house, and that supplemental report was submitted on or about
June 16, 1988. While the report mentioned a garage and a crawl
space under a den, it did not focus on the foundation or structure
of the house, and in the section on "Foundation and Structure," Mr.
Sampson simply referred to his earlier report.
The Eblins continued to pursue the purchase of the
property, and on June 8, 1988, Mary Alice Fisher, an appraiser,
inspected the property for the lender, Coldwell Banker Residential
Mortgages, and submitted an appraisal report which was written on
a standard form, FNMA Form 1004. The report noted certain
maintenance and mechanical problems, but it said nothing about the
structural condition of the foundation or the basement. The report
also contained the statement: "The FNMA Form 1004 (10-86) as
completed by the appraiser is not an express or implied warranty of
heating and cooling systems, plumbing, sewage disposal and waste treatment systems or materials used in construction nor physical
condition. It is always advisable to have an improvement inspected
by the proper mechanical, electrical, plumbing and structural
The Eblins, pending the closing of the transaction,
visited the house and observed that it was freshly painted and that
all walls appeared to be in excellent condition. During the visit,
according to the Elbins, Mrs. Eblin was advised by Mrs. Manzo, one
of the owners, that there were no problems with the basement.
At length, the Elbins closed the transaction and paid
$65,000.00 for the house. They financed the purchase through
Coldwell Banker Mortgage Services, Inc., upon the recommendation of
Pancake Realty Company.
In early 1990, Mr. Eblin noted that cracks had appeared
in the basement wall and that the stairway was twisting and pulling
away from the wall. He was subsequently advised by experts that
the walls had to be replaced, that the foundation was faulty, and
that the entire basement structure had to be torn out because of
extreme damage due to excessive underground water.
After learning of the defects in the basement and
expending some $35,000.00 to correct them, the Eblins filed suit
against Coldwell Banker Residential Affiliates, Inc., Pancake Realty Company, Mary Alice Fisher, Ermano and Sally Brooks Manzo,
and Frank E. Sampson. They essentially claimed that Mr. Pancake,
who was acting in behalf of the realty companies, had fraudulently
misled them as to the significance of the deficiencies notes on Mr.
Sampson's report. They alleged that Mary Alice Fisher, the
appraiser, had negligently conducted her appraisal. They alleged
that Ermano and Sally Brooks Manzo had concealed long term water
damage to the basement walls and had intentionally misled them as
to the condition of the property. Finally, they alleged that Frank
Sampson, the house inspector, failed to inspect the house properly
and failed to warn them of the problems connected with the
As previously indicated, the realtors, the former
homeowners, and the appraiser all moved for summary judgment, and
the trial court ultimately granted their motions.See footnote 1
The case against Frank E. Sampson, the house inspector,
was allowed to proceed to trial. During trial, Mr. Sampson
testified that he had been misled in his inspection because the
cracks in the basement has been skillfully and artfully camouflaged
and covered up with masonry paint. He also testified that he could
not see cracks in the walls. At the close of the trial, the jury
returned a verdict for him.
At the conclusion of the trial, the Eblins moved for a
new trial against all the defendants, and the trial court denied
that ruling. It is from that ruling that the Eblins now appeal.
The Eblins' first contention is that the trial court
erred in granting the summary judgment motions made by Coldwell
Banker Residential Affiliates, Inc., by Pancake Realty Company, by
Ermano Manzo and Sally Brooks Manzo, the former owners, and by Mary
Alice Fisher, the appraiser.
The determination of whether the trial court properly
granted the summary judgment motions hinges upon this Court's
holdings as to the circumstances under which summary judgment may
appropriately be granted. Those circumstances are summarized in
syllabus point 3 of Aetna Casualty & Surety Company v. Federal
Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770
(1963), as follows:
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.
See Lowery v. Raptis, 174 W.Va. 736, 329 S.E.2d 102 (1985); Karnell
v. Nutting, 166 W.Va. 269, 273 S.E.2d 93 (1980); Consolidated Gas
Supply Corp. v. Riley, 161 W.Va. 782, 247 S.E.2d 712 (1978); and
Anderson v. Turner, 155 W.Va. 283, 184 S.E.2d 304 (1971).
In instituting the action in the present case, the Eblins
claimed that Ed Pancake of Pancake Realty Company was an agent,
servant, or employee of Coldwell Banker Residential Affiliates,
Inc., and/or Pancake Realty Company, and that in his capacity as
such, he intentionally and fraudulently misled them concerning the
inspection report of Frank E. Sampson by indicating that the
deficiencies mentioned in the report were of no consequence. They
also infer that the misleading remarks were made for the purpose of
inducing them to complete the purchase of the Manzo house.
In Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981),
this Court discussed at some length fraud as it relates to
contracts. In syllabus point 1 of Lengyel, the Court stated:
The essential elements in an action for fraud are: "(1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied upon it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied upon it." Horton v. Tyree, 104 W.Va. 238, 242, 139 S.E. 737 (1927).
In the body of the Lengyel case, the Court stated:
It is not essential that the defendant know for a fact that the statement or act alleged to be fraudulent is false. An action for fraud may lie where the defendant either knows the statement to be false, makes the statement without knowledge as to its truth or falsity, or makes it under circumstances such that he should have known of its falsity . . . .
The complaining party must, generally, have relied upon the representations claimed to be false, but: "It is not necessary that the fraudulent representations complained of should be the sole consideration or inducement moving the plaintiff. If the representations contributed to the formation of the conclusion in the plaintiff's mind, that is enough . . . ."
Id. at 277, 280 S.E.2d at 69.
The trial court, in considering the realtors motion for
summary judgment, concluded that the employment of home inspector
Sampson by the Eblins, and their consultation with him and
obtaining of a supplemental report from him after Ed Pancake made
his notations on the first report, relieved the realtors of any responsibility for any misrepresentations which might have been
made. In reaching this conclusion, the trial court relied upon the
decision of this Court in the case of Rockley Manor v. Strimbeck,
181 W.Va. 313, 382 S.E.2d 507 (1989).
In the Rockley Manor case, this Court quoted with
approval syllabus point 5 of Jones v. McComas, 92 W.Va. 596, 115
S.E. 456 (1922), where the Court discussed the so-called
"independent investigation doctrine." In that syllabus point, the
Though a purchaser may rely upon particular and positive representations of a seller, yet if he undertakes to inform himself from other sources as to matters easily ascertainable, by personal investigation, and the defendant has done nothing to prevent full inquiry, he will be deemed to have relied upon his own investigation and not upon the representations of the seller.
Although, at first blush, the Rockley Manor case would
appear to support the trial court's conclusion that the undisputed
fact that the Eblins obtained a second opinion from Mr. Sampson
after Mr. Pancake annotated his first report relieved the realtors
of any liability arising out of the misleading annotations, In
Rockley Manor, however, the Court also indicated that where the
independent inspection was of a general nature, or where exercise
of reasonable care would not have uncovered the defects, the
independent investigation doctrine was not controlling. See
Rockley Manor v. Strimbeck, supra at 315, 382 S.E.2d at 509.
In the present case, it rather clearly appears that Mr.
Sampson's inspection was of a general nature and did not focus on
the Manzos' basement. Further, his supplemental report, the report
upon which the trial court relied to justify the granting of
summary judgment to the realtors under the Rockley Manor rule, did
not pertain to the foundation or basement walls of the Manzo house.
Rather, it involved the mechanical systems of the house, and it
referred the readers to item "e" of the first report, which was
annotated by Ed Pancake, for information on the basement and the
In view of the nature of the supplemental report, we
believe that the trial court erred in concluding that the
independent inspection doctrine contained in Rockley Manor relieved
the realtors of any responsibility for the potential misleading
effect of Mr. Pancake's annotations.
In instituting their action against the former
homeowners, the Manzos, the Eblins, similar to their complaint
against the realtor, claimed that prior to the purchase of the
house they had visited it and had been advised by the Manzos that
the basement was in good repair. They also alleged that, after
purchasing the house, they discovered that serious cracks in the
basement had been painted, plastered, and concealed from their
inspection by the Manzos. The clear thrust of their allegations
was that the Manzos had intentionally misled them regarding the condition of the house for the purpose of inducing them to purchase
In granting the Manzos summary judgment, the trial court,
as in the case of the realtors, found that the independent
inspection doctrine set forth in Rockley Manor v. Strimbeck, supra,
For the same reasons that the independent doctrine in
Rockley Manor does not relieve the realtors of liability, or
support summary judgment in favor of the realtors, the Court
believes that it does not relieve the Manzos of liability and was
improperly considered as a basis for summary judgment in their
Overall, the Court believes that at the time the circuit
court granted the realtors and the Manzos summary judgment, there
were material questions of fact as to whether the Eblins relied
upon misrepresentations by Ed Pancake and by the Manzos, or either
of them, in deciding to purchase the Manzo house. Under such
circumstances, syllabus point 3 of Aetna Casualty and Surety
Company v. Federal Insurance Company of New York, supra, would
indicate that the circuit court erred in granting summary judgment
to the realty companies and the Manzos.
In addition to claiming that the trial court erred in
entering summary judgment for landowners and for the real estate
companies in this case, the Eblins claim that the circuit court
erred in entering summary judgment for Mary Alice Fisher, the
The Court disagrees with this contention. All the
documents filed in the case suggest that Mary Alice Fisher was
employed by the mortgage lender, Coldwell Banker Mortgage Services,
Inc., and presented her report to that lender. Further, the report
clearly indicates that Mary Alice Fisher did not examine the house
for structural integrity, and it contains language indicating that
nothing in it should be construed as a comment upon the structural
integrity of the house.
In this Court's view, it is not credible or plausible
that the Eblins relied upon the appraisal report in deciding to
purchase the Manzo house, and given the contents of the appraisal
report, the Court cannot conclude that the trial court erred in
granting summary judgment for Mary Alice Fisher.
Lastly, the Court notes that the Eblins claim that they
should be granted a new trial against Frank E. Sampson, the
professional who inspected the structural integrity of the house in
A review of the record indicates that the trial court
allowed trial to proceed against Mr. Sampson and before a jury.
During the trial, he introduced evidence suggesting that the
defects in the house in question were skillfully camouflaged and
suggesting that the actions of the Manzos, the homeowners, or
people working for them, had deceived him and had prevented him
from discovering the structural defects in spite of his best
This evidence raised a legitimate jury question as to
whether Frank E. Sampson was negligent in conducting his
inspection, and the Court believes that the jury reasonably could
have concluded that he was either negligent or not negligent. The
jury concluded that he was not, and, accordingly, the circuit court
entered judgment in Mr. Sampson's behalf.
On appeal, the Eblins essentially claim that the outcome
of the case might have been different if the parties who were
dismissed by way of summary judgment had been tried by the jury
along with Mr. Sampson and if evidence relating to their
involvement had been introduced to the jury.
In examining the record, the Court cannot find that the
Eblins, acting through their attorney, at any point prior to trial
attempted to raise the issue of the absence of the parties who had
been dismissed on summary judgment. Further, although the Eblins had the opportunity of calling the parties who had been granted
summary judgment as witnesses, and had an opportunity to develop
the facts relating to their involvement, the Eblins made no such
effort during trial.
In this Court's view, the Eblins, by their actions prior
to trial and during trial, effectively waived any error relating to
the absence of the parties who were granted summary judgment.
Therefore, they cannot now complain about the alleged prejudicial
effect caused by the absence of the dismissed parties.
A subsidiary issue in this case is whether the Eblins
timely filed their appeal from the summary judgment rulings.
The summary judgment order granting the Manzos summary
judgment was entered on April 16, 1992. The order granting Pancake
Realty Company and Coldwell Banker Residential Affiliates, Inc.,
summary judgment was entered on June 22, 1992. The Eblins did not
file the present appeal until March 18, 1994, more than eighteen
months after the date of the summary judgment orders. Since the
time for filing appeals in this Court is generally four months,See footnote 2
the present case raises the issue of whether the appeal time on the
summary judgment orders commenced running when they were entered, or whether it commenced running when the trial court denied the
Eblins' motion for a new trial.
Not all summary judgment orders commence the running of
the appeal time. Where multiple parties are involved in an action
and summary judgment is granted as to some of them but not to all
of them, Rule 54(b) of the West Virginia Rules of Civil Procedure
generally governs the question of whether the order is final and
whether the appeal time begins to run. That rule states:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
In the syllabus of Wilcher v. Riverton Coal Company, 156
W.Va. 501, 194 S.E.2d 660 (1973), the Court stated that:
Where multiple claims are involved the trial court should not attempt to enter a final judgment until all the claims have been fully adjudicated, and a summary judgment for a defendant under Rule 56(d), R.C.P. on less than all of the plaintiff's claims is not a final judgment and not appealable under Rule 54(b), R.C.P. unless there is an "express determination that there is no just reason for delay and upon an express direction for the entry of judgment."
In Durm v. Heck's, Inc., 184 W.Va. 562, 401 S.E.2d 908
(1991), this Court held that in spite of the language of Rule
54(b), and in spite of the case law in this State holding that a
summary judgment order was not final unless there was an express
determination of no just reason for delay and an express direction
for entry of judgment, a party could appeal from a summary judgment
order disposing of less than an entire case if the trial court's
ruling approximated a final order in its nature and effect. In
syllabus point 2 of Durm, the Court stated:
Where an order granting summary judgment to a party completely disposes of any issues of liability as to that party, the absence of language prescribed by Rule 54(b) of the West Virginia Rules of Civil Procedure indicating that "no just reason for delay" exists and "directi[ng] . . . entry of judgment" will not render the order interlocutory and bar appeal provided that this Court can determine from the order that the trial court's ruling approximates a final order in its nature and effect.
In the present case, there is a question of whether,
given the rule in Durm, the appeal time on the summary judgment
orders in favor of the realtors and the homeowners began running at
the time of the entry of the summary judgments orders.
A close reading of Durm indicates that entry of a Durm-
type order opens up the possibility of an appeal by an aggrieved
party. However, there is nothing in that case which indicates that
an appeal must be taken by an aggrieved party within the appeal
time after entry of a Durm-type order. Accordingly, entry of a
Durm-type order, while allowing an aggrieved party to take an
immediate appeal, does not require that such an appeal be taken at
that time, and an aggrieved party may take an appeal at any time
until the final appeal time in the case expires.
Thus, this Court believes that the Eblins' appeal in the
present case was timely filed.
For the reasons stated, the judgment of the Circuit Court
of Cabell County is, therefore, affirmed insofar as it relates to
Mary Alice Fisher and Frank E. Sampson, it is reversed insofar as
it relates to the defendants, Pancake Realty Company, and Coldwell
Banker Residential Affiliates, Inc., and Ermano Manzo and Sally
Brooks Manzo, and this case is remanded for trial against the
Manzos and against the real estate companies.
Footnote: 1 Apparently, the circuit court subsequently entertained second thoughts about these rulings, as indicated by the following remarks made to the jury at the conclusion of the Sampson trial:
They [the Eblins] had sued some other people
beside him [Sampson]. They had sued the owner
of the home, the appraiser and the real estate
agent and that was it, I think. And I had
dismissed all of them from the suit already.
And when you all went out to deliberate I
thought maybe you all were thinking maybe
somebody else was responsible other than him
[Sampson]. You probably discussed that. So,
and I may have made an error legally in
throwing out one or more of the parties. So,
they will have a -- they can appeal both this
decision and my decision in throwing out the
other people. Of course, we don't want them
to have to appeal if they don't have to. But anyway, you may have wondered why there weren't any other people in this suit and that's why because I ruled as a matter of law that they shouldn't have been a party to the action based upon what they allege in the Complaint and what the depositions said and so forth and so on.
So, I really felt sorry for them [the Eblins] but I didn't know if he [Sampson] was responsible for it or not. Apparently you all have said "no".
Footnote: 2 See, W.Va. Code § 58-5-4 and Rule 3 of the West Virginia Rules of Appellate Procedure.