dissenting.
(Filed Dec. 17, 1997)
Gentlemen, start your engines. The majority has dropped the checkered flag in favor of the defendant in a speedy analysis of whether the plaintiff was shoved aside, allowing the defendant to take the lead in operating the plaintiffs business. This case presents a summary result where, had the parties each been allowed to tell his story side-by-side to a jury, the result might have been quite different.
I dissent because the majority’s opinion does nothing but race to affirm a summary judgment and thereby permitting a win without any expression of the reasoning applied by the circuit judge, and worse, the opinion swerves, twists and turns to completely avoid years of jurisprudence on the use of the doctrine of partial performance to avoid the statute of frauds.
In the first turn of this case, the majority ignores the rules of the road set forth in Fayette Co. National Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997) that “an order granting summary judgment cannot merely recite and rest exclusively upon a conclusion that, ‘No genuine issue of material fact is in dispute and therefore summary judgment is granted.’” 199 W.Va. at 353, 484 S.E.2d at 236.
So that we can fairly examine a summary judgment order, this Court has to be able to “determine whether the stated reasons for *396the granting of summary judgment by the lower court are supported by the record.” Id. The only way for this to happen is for the circuit court to identify the factual and legal support for its ultimate conclusions. We said in Fayette County National Bank that:
Although our standard of review for summary judgment remains de novo, a circuit court’s order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed.
Syllabus Point 3, Fayette County National Bank. We concluded that the “summary judgment findings by the circuit court ... [did] not rise to the level of ‘meaningful’ findings required by the holding we have made today.” 199 W.Va. at 354, 484 S.E.2d at 237.
My reading of the circuit court’s order in the instant case leads me to the same conclusion.1 The circuit court’s order granting summary judgment in this case absolutely fails to meet the Fayette County National Bank standard. I would have ruled that the circuit court failed to make the necessary meaningful legal and factual findings and then remanded the case for a proper review.
I must say that I tire of the constant squealing about the mandate of Fayette County National Bank but this case is a slick example of why circuit court judges need to rip the stickers off their pens, scuff some paper and state their reasons for granting summary judgment in writing. This Court has been left guessing what law and facts served as the frame for, let alone the body of, the circuit court’s decision. By failing to state why summary judgment was granted, circuit courts do nothing but fuel additional litigation and appeals, and what is more important, frustration with the legal system by rookie litigants. Instead of remanding the case to the circuit court for a restart in compliance with traditional road rules, the majority has jumped over the wall and made its own fixes to the body of the circuit court’s opinion.
The sharp second turn of this case involves a fundamental rule for fair competition. As I said in my dissent in Nugen v. Simmons, 200 W.Va. 253, 259, 489 S.E.2d 7, 13 (1997) (Starcher, J. dissenting):
There is one reason this case should have been tried, and that reason is easy to understand; indeed most of us learned it as children. It is the application of the Golden Rule: “Do unto others as you would have others do unto you.”
In this case there was clearly a lot of fender rubbing between Mr. Fry and Mr. Chapman over their agreement, and while this may seem to be a fair maneuver to Mr. Chapman, it most likely appeared to Mr. Fry as outright bumping and hitting that should have been black flagged. The record suggests to me that Mr. Chapman did not have written agreements with any of the other vendors at his track, which arguably would allow him to push those vendors off his property too and take over their position once he saw they were making a profit. This Court should black flag any business that operates in this way and let a jury decide whether a contract existed, or decide whether partial performance establishes the terms of the agreement.
My thinking is, if the shoe had been on the other foot, and Mr. Fry had on opening day *397suddenly refused to sell a single set of tires or a splash of gas to drivers at Mr. Chapman’s new racetrack, Mr. Chapman would feel that he had a right to a trial to show he lost business and profits under the contract. Basically, a jury should be allowed to decide whether or not Mr. Chapman’s conduct was the pits.
If the majority had simply “whoa’d down” a little bit, it would also have discovered in the final turns of this event that the result dictated by the Golden Rule is also supported by settled legal principles — also fairly easy to understand — which strongly suggest that this ease should not have been disposed of by a quick drop of the checkered flag called summary judgment.
In West Virginia, this Court has gained mileage in real estate cases by using the doctrine of part performance to nudge aside the statute of frauds. Time and again this Court has slid right on past the statute of frauds and enforced a contract for the sale of land, when one party had partially lived up to their side of the bargain. This Court has even enforced an unwritten contract for a real estate broker so that the broker could be paid his fee.
For instance, in Everett v. Brown, 174 W.Va. 35, 321 S.E.2d 685 (1984), we let a real estate agent collect his fee for selling a house when there was no written listing agreement with the owner. In that case we adopted Restatement of Contracts, Second, § 139,2 thereby allowing the real estate agent to slingshot past the applicable statute of frauds.3 We stated at Syllabus Point 3 that:
A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise. The remedy granted for breach is to be limited as justice requires.
In determining whether injustice can be avoided only by enforcement of the promise, the following circumstances are significant: (a) the availability and adequacy of other remedies, particularly cancellation and restitution; (b) the definite and substantial character of the action or forbearance in relation to the remedy sought; (c) the extent to which the action or forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence; (d) the reasonableness of the action or forbearance; (e) the extent to which the action or forbearance was foreseeable by the promisor.
I see nothing which limits the application of Everett v. Brown to real estate cases alone. For reasons that escape my tight, pushy thinking, the majority has slipped by the law and refused to address the doctrine of partial performance in terms of other types of ser*398vices contracts and the speedy events of our 20th century. The principle espoused in Everett v. Brown should be available to a wide-open field, including the participants in this case.
In other venues, the doctrines of part performance, promissory estoppel, and equitable estoppel have all drafted bumper-to-bumper with one another to defeat a defendant’s assertion of the statute of fraud. The basic requirements to put each doctrine on the track against the statute of frauds are quite similar. Essentially, for a plaintiff to successfully avoid a statute of frauds, there must be proof that a representation was made by the defendant in connection with the contract; that the defendant has a reason to believe the representation would induce action by the plaintiff; that the representation did induce action by the plaintiff, to the plaintiffs detriment; and that the application of the statute of frauds will result in an unconscionable injury to the plaintiff, or in the unjust enrichment of the defendant.
The purpose and intent of the statute of frauds is, obviously, to prevent fraud; these various theories exist because the statute should not be allowed to operate as a defense where its application has the effect of perpetrating a fraud.
A review of this case offered many opportunities for the majority to throw out a caution flag. So, as I cross the finish line, I want to make clear that the majority’s limited opinion was based on a very limited record from the circuit court. In the future, any plaintiff attempting to avoid the statute of frauds through part performance should present argument in detail to the circuit court first. A statute of frauds should not be allowed to be used by a defendant when there is evidence that a fraud is being perpetrated. We should not, as here, allow a defendant to drink milk from the winner’s cup or pop corks off champagne bottles, when that defendant has gotten a plaintiff to rely upon a promise that the defendant intended to keep only at his convenience.
. The circuit court's March 1, 1996 order states, in toto:
On the 22nd day of February, 1996, came the Defendants, Donald A. Chapman d/b/a Ona Speedway and Donald A. Chapman (the "Defendants”) by counsel, Daniel A. Earl, and the Plaintiff, Fry Racing Enterprises, Inc., by counsel, James W. St Clair, for a hearing on Defendants’ Motion for Summary Judgment. The Court, upon reviewing the Defendants’ Motion for Summary Judgment and the Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary Judgment and hearing the arguments and representations of counsel for the Plaintiff and the Defendants, was of the opinion that Defendants’ Motion for Summary Judgment should be granted, their being no genuine issue of material fact, and that Defendants are entitled to judgment as a matter of law.
WHEREFORE IT IS ORDERED, Defendants’ Motion for Summary Judgment shall be granted and Plaintiff’s cause of action shall be dismissed with prejudice.
To all of which the Plaintiff excepts and objects.
. The Restatement of Contracts, Second, § 139 states:
§ 139. Enforcement by Virtue of Action in Reliance
(1) a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise. The remedy granted for breach is to be limited as justice requires.
(2) In determining whether injustice can be avoided only by enforcement of the promise, the following circumstances are significant:
(a) the availability and adequacy of other remedies, particularly cancellation and restitution;
(b) the definite and substantial character of the action or forbearance in relation to the remedy sought;
ie) the extent to which the action or forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence;
(d) the reasonableness of the action or forbearance;
(e) the extent to which the action or forbearance was foreseeable by the promisor.
Restatement of Contracts, Second, § 139 is complimentary to the doctrine of promissory estop-pel, Restatement of Contracts, Second, § 90, which dispenses with the requirement of consideration.
. In Everett, the applicable statute of frauds was W.Va.Code, 47-12-17(c) [1959], which required real estate broker contracts to be in writing and contain certain elements.