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STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

Sport Mart, Inc. and R. Brawley Tracy, Defendants Below, Petitioners vs) No. 11-0048 (Putnam County 09-C-13) Debra Knell and Withrow-Wills, L.L.C., Plaintiffs Below, Respondents

FILED
November 28, 2011
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA


MEMORANDUM DECISION
Petitioners (defendants below), Sport Mart, Inc. ("Sport Mart") and R. Brawley Tracy ("Tracy"), appeal from the circuit court's order dismissing this action and finding in favor of respondents (plaintiffs below), Debra Knell ("Knell") and Withrow-Wills, L.L.C. ("Withrow-Wills"), on the basis that the foreclosure actions taken by petitioners are barred by the statute of limitations. Petitioners seek a reversal of the circuit court's order. Respondents have each filed a response brief.1 This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented in the parties' written briefs and the record on appeal, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules. Respondent Knell and Gary Cullifer ("Cullifer") were previously married and jointly owned certain real estate in Putnam County, namely the Richard Drive property and several lots located in the Town of Bancroft ("the subject property"). In 1987, Knell and Cullifer became indebted on a Promissory Note to Charleston National Bank that was secured by a Deed of Trust on the subject property. After making two payments on the Note in 1987, Knell and Cullifer made no further payments. On May 19, 1988, Cullifer and Knell filed for bankruptcy. On June 13, 1988, Charleston National Bank assigned its Note and Deed of Trust to Tracy and/or Sport Mart.
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Although defendant Gary Curtis Cullifer is listed as a respondent in the Petition for Appeal, he has not filed any brief in this Court and, thus, has not participated in this appeal.

On June 15, 1988, Tracy filed a proof of claim in the bankruptcy proceeding. On April 10, 1989, the bankruptcy trustee filed a Notice of Abandonment reflecting the election to abandon any interest of the bankruptcy estate in the subject property. The Notice of Abandonment was later withdrawn as to the Richard Drive property. On June 26, 1989, the Bankruptcy Court entered its discharge order discharging Knell and Cullifer from any legal obligation under the Note. Neither Charleston National Bank, nor Tracy, nor Sport Mart filed any objection to the discharge. Cullifer and Knell divorced sometime after their bankruptcy filing. Pursuant to their divorce, the subject property securing the Note was divided between them with Cullifer taking the Bancroft lots and Knell the Richard Drive property, each assuming the respective debt obligation thereon. Cullifer subsequently executed a general warranty deed on January 20, 1997, conveying the Bancroft property to James Withrow and Nathan Wills. At the time of this conveyance, Withrow and Wills had a title search performed and were informed that Cullifer possessed clear, marketable title, and the transaction was closed. Withrow and Wills later formed respondent Withrow-Wills, a West Virginia limited liability company, and transferred the Bancroft property to it. In 2008, Withrow-Wills entered into a contract to sell the Bancroft property. The purchaser's title examination revealed the Deed of Trust held by Tracy, who advised the title attorney that the lien had been assigned to Sport Mart as of June 13, 1988. This assignment was not placed of record until September 15, 2008. On November 17, 2008, Tracy and Sport Mart initiated foreclosure proceedings under the Deed of Trust indicating that they would sell the Richard Drive property owned by Knell. Upon receipt of the Notice of Trustee's Sale, Knell asked that the sale be postponed so that she could determine what action to take. On January 6, 2009, she instituted the case-at-bar seeking a temporary restraining order and a declaration that the Deed of Trust was barred by, among other things, the applicable statute of limitations. Withrow-Wills filed its own Verified Complaint on February 27, 2009, seeking a declaration that the debt set forth in the Note and secured by the Deed of Trust was unenforceable, invalid, and time-barred. Cullifer was added as a defendant to Knell's action, and the two actions were consolidated for purposes of disposition. On December 8, 2010, the circuit court entered an "Order Finding for the Plaintiffs and Dismissing the Action." While this order does not cite Rule 56 of the West Virginia Rules of Civil Procedure, nor does it state that "summary judgment" is being entered, the order reflects that there were no disputed facts and that the circuit court was resolving a question of law. Accordingly, we have utilized our standard of review for summary

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judgment.2 Having considered the parties' arguments and record on appeal, the Court finds no error and incorporates, adopts, and attaches hereto the circuit court's well-reasoned order. For the foregoing reasons, we affirm. Affirmed. ISSUED: November 28, 2011 CONCURRED IN BY: Chief Justice Margaret L. Workman Justice Robin Jean Davis Justice Brent D. Benjamin Justice Menis E. Ketchum Justice Thomas E. McHugh

"A circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
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Appendix to Memorandum Decision Supreme Court of Appeals Case No. 11-0048

Appendix to Memorandum Decision Supreme Court of Appeals Case No. 11-0048

Appendix to Memorandum Decision Supreme Court of Appeals Case No. 11-0048

Appendix to Memorandum Decision Supreme Court of Appeals Case No. 11-0048

Appendix to Memorandum Decision Supreme Court of Appeals Case No. 11-0048

Appendix to Memorandum Decision Supreme Court of Appeals Case No. 11-0048

Appendix to Memorandum Decision Supreme Court of Appeals Case No. 11-0048



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