668 S.E.2d 176
4. “Extrinsic evidence of statements and declarations of the parties to an
unambiguous written contract occurring contemporaneously with or prior to its execution
is inadmissible to contradict, add to, detract from, vary or explain the terms of such contract,
in the absence of a showing of illegality, fraud, duress, mistake or insufficiency of
consideration.” Syl. Pt. 1, Kanawha Banking & Trust Co. v. Gilbert, 131 W. Va. 88, 46
S.E.2d 225 (1948).
Per Curiam:
This case is on appeal from the October 24, 2006, final order of the Circuit
Court of Harrison County which dismissed, with prejudice, the real estate sales transaction
claims of Elizabeth Sedlock and Jason Banish (hereinafter referred to collectively as
“Appellants”) against Marsha Ann Felton, (See footnote 1) Jean Hollandsworth (See footnote 2) and Double H. Realty, Inc.
(hereinafter referred to collectively as “Appellees”). (See footnote 3) The dismissal was sought pursuant to
West Virginia Rule of Civil Procedure 12 (b)(6) for failure to state a claim upon which relief
can be granted. Finding that no duty was imposed upon real estate agents under the
circumstances presented, the lower court granted the dismissal, with prejudice. Upon
concluding our review of the record in light of the briefs, arguments and relevant law, the
action of the lower court is affirmed.
The contract for the Clarksburg home was expressly conditioned upon the “buyers closing on the sale of their home at 601 Indiana Ave., Nutter Fort, WV 26301 prior to the closing date on 339 Worley Ave., Clarksburg, WV 26301.”
Within the statement of facts of the order of dismissal, the lower court noted
that the Moyles' offer to purchase Appellants' Nutter Fort home had expired (See footnote 7) at the time the
Romano contract was entered. The Moyles executed a new offer to purchase Appellants'
Nutter Fort home on July 5, 2004, by way of a second “Contract for Sale and Purchase”
drafted by Ms. Felton. The contingency clause regarding Appellants locating acceptable
housing was not in the July 5, 2004, contract. The record reveals that Ms. Sedlock signed
the July 5, 2004, sales contract.
On or about August 19, 2004, the Romanos notified their real estate
salesperson that they would not sell their house to Appellants despite the June 26, 2004,
contract. Appellants chose not to attempt to enforce the Romano contract at that time since
they decided to remain in the Nutter Fort home. However, the Moyles enforced their July 5,
2004, contract to purchase the Nutter Fort property and thereby caused Appellants to move
from the premises.
Appellants filed a complaint against the Moyles, Ms. Felton, Ms.
Hollandsworth, Double H. Realty, Inc., and the Romanos in the Circuit Court of Harrison
County on August 18, 2006. On September 15, 2006, Appellees moved the lower court to
dismiss the complaint pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil
Procedure. The circuit court granted the motion to dismiss following a hearing. This Court
granted the petition for appeal of the dismissal by order entered September 13, 2007.
Section 30-40-26 (f) of the West Virginia Code must be read
with the remainder of Article 30 of the West Virginia Code,
including Section 30-40-5 (a) - (b), which states that activities
normally performed by a lawyer are not included in the capacity
of a real estate salesperson. See W.Va. Code § 30-40-5 (a) - (b)
(2006) [sic].
We further note that the significance of the contingency clause to Appellants
in light of the circumstances may not have been apparent to Ms. Felton at the time she
drafted the sales agreement. Under the facts presented in the complaint, Appellants had
located acceptable housing at the time the July 5, 2004, contract was signed, so the
contingency had been met. If the contingency clause were still desired by Appellants, they
could have amended the contract before signing it. While Appellants contend that Ms.
Felton told Ms. Sedlock at the time of signing the July 5, 2004, contract that the contingency
clause was in the contract, we find no assertion in the complaint that Ms.Sedlock was
operating under any disability when she signed the contract so as to render her incapable of
reading and comprehending its terms before signing.
This Court has clearly stated that “in the absence of extraordinary
circumstances, the failure to read a contract before signing it does not excuse a person from
being bound by its terms.” Reddy v. Community Health Found. of Man, 171 W.Va. 368,
373, 298 S.E.2d 906, 910 (1982). The record in Reddy did not suggest that the doctor was
anything but an intelligent adult who entered the contract freely. Given these facts we said
in Reddy that “[c]ontracts are reduced to writing so that there can be no subsequent
argument concerning the terms of an agreement. A person who fails to read a document to
which he places his signature does so at his peril.” Id. In the earlier-decided case of Southern v. Sine, 95 W.Va. 634, 123 S.E. 436 (1924), language of certain deeds was at
issue. The Court in Sine noted that the documents had been submitted to the complaining
party for his inspection and the approval of his attorney, and that the facts did not
demonstrate any effort to withhold or disguise the information contained in the documents.
Thereafter, it was stated: “It was his duty to know [what was contained in the deeds]. The
law says that he shall know. If he did not read the deeds at any time before acceptance it
was clearly his fault and negligence.” Id. at 643, 123 S.E. at 439.
Much like the situations presented in Reddy and Sine, Appellants' assertions
in the case sub judice do not support the presence of extraordinary circumstances which
would obviate their obligation to read the contract before signing it. Nothing in the
complaint indicated that Ms. Sedlock and Mr. Banish were not of mature age and adequate
intellect to understand the contents of the contract, or that the contract was written in such
small print or in such a manner as to deceive anyone of its inclusions or omissions. The
contract at issue is a short document that includes on the front page a paragraph numbered
twelve, entitled “ADDITIONAL TERMS AND CONDITIONS.” In that section, two
contingencies are hand printed on the face of the contract and are clearly discernable. In
smaller print at the bottom of the first page, Ms. Sedlock initialed the blank line following
the statement: “Seller has read this page.” Ms. Sedlock also initialed page two of this
contract in the section designated “ACCEPTANCE,” which contains two paragraphs
reading:
21.
Are you, as Seller, relying upon any oral statements or
representations made by the Purchaser, a real estate
broker or agent that are not in this contract. [Ms. Sedlock
answered in the negative by initialing the line following
“No.”]
22.
Seller acknowledges that he/she has read and
understands the provisions of this agreement and agrees
to sell herein described property at the price, terms, and
conditions set forth. Seller acknowledges receipt of
copy of contract.
There is no suggestion of forgery of Ms. Sedlock's signature or that someone initialed or
signed the contract for Ms. Sedlock.
In addition to our examination of the contract, we further note that no
allegation is made by Appellants that they attempted to insert the contingency clause about
locating acceptable housing before Ms. Sedlock signed the contract. Nor is there any
indication that Ms. Sedlock was coerced, pressured or otherwise forced into signing the
contract as it was presented to her. Given these particular circumstances, Ms. Sedlock's
failure to read the contract before accepting regrettably appears to be due to her own “fault
and negligence.” Sine, 95 W.Va. at 643, 123 S.E. at 439.
With regard to the fraud claim, Appellants maintain that Ms. Felton
misrepresented that the contingency clause about locating acceptable housing was in the
sales contract she prepared. No assertion, however, is made that Ms. Felton tried to hide the
omission of the clause or otherwise thwarted efforts of Appellants to discover the omissions
in the contract which would overcome their obligation to read the document before signing
it.
Without a showing of fraud or mistake, the breach of contract claim asserted
in the complaint also is not actionable. The breach of contract claim is based on Ms.
Felton's oral promise, made prior to or contemporaneously with the execution of the
contract, that she would include the contingency clause about locating acceptable housing
in the sales contract. As stated in syllabus point two of Kanawha Banking & Trust Company
v. Gilbert, 131 W. Va. 88, 46 S.E.2d 225 (1948):
An unambiguous written contract entered into as the
result of verbal or written negotiations will, in the absence of
fraud or mistake, be conclusively presumed to contain the final
agreement of the parties to it, and such contract may not be
varied, contradicted or explained by extrinsic evidence of
conversations had or statements made contemporaneously with
or prior to its execution.
Equally relevant to the present case is syllabus point one of Gilbert, which states:
Extrinsic evidence of statements and declarations of the
parties to an unambiguous written contract occurring
contemporaneously with or prior to its execution is inadmissible
to contradict, add to, detract from, vary or explain the terms of
such contract, in the absence of a showing of illegality, fraud,
duress, mistake or insufficiency of consideration.
Even if all of the allegations in the complaint are taken as true, Appellants
claims can not proceed because Appellants can prove no set of facts in support of their
claims which would entitle them to relief See Syl. Pt. 3, Chapman v. Kane Transfer Co.,
Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977). There is no blanket duty for real estate sales
people to draft sales agreements with anything other than the terms believed necessary to
complete the sale. Since Appellants had located suitable housing at the time the sales
contract was drafted, the contingency clause hardly could be considered a term necessary to
complete the sale. The complaint related no impediment or other extraordinary circumstance
standing in the way of Appellants reading and otherwise reviewing the contract to be sure
that all terms they deemed necessary were included before Ms. Sedlock signed the
document. Given this set of facts, there is no legal reason why Appellants should be relieved
of their responsibility to carefully read the contract before signing it. Since no assertion is
made that Ms. Felton tried to hide the omission of the clause or otherwise thwarted efforts
of Appellants to discover the omissions in the contract, there is no basis on which a claim
of fraud may be proven. Finally, absent fraud or mistake, the oral representations Ms. Felton
may have made to Appellants do not form the basis of a breach of contract claim.
Consequently, dismissal of the claims against Appellees was proper and the order of the
court below is affirmed.