Dixon v. American Indus. Leasing Co., 13872

• Decision Date: 27 March 1979
• Docket Number: No. 13872,13872
• Parties: William E. DIXON, et al., d/b/a Beechurst Avenue Joint Venture v. AMERICAN INDUSTRIAL LEASING COMPANY, etc.
• Court: West Virginia Supreme Court

Page 150

253 S.E.2d 150

162 W.Va. 832

William E. DIXON, et al., d/b/a Beechurst Avenue Joint Venture v. AMERICAN INDUSTRIAL LEASING COMPANY, etc.

No. 13872.

Supreme Court of Appeals of West Virginia.

March 27, 1979.

Syllabus by the Court

1. In order for civil conspiracy to be actionable it must be proved that the defendants have committed some wrongful act or have committed a lawful act in an unlawful manner to the injury of the plaintiff; consequently, the termination of a lease by the defendant lessor by reason of the plaintiff's failure to meet rental payments as provided in the lease agreement, absent a showing that such termination was done in an unlawful manner, is an exercise of an absolute right and cannot serve as the basis for an action of civil conspiracy.

2. While it is advisable to give notice of the termination of a lease in the manner prescribed in the lease agreement, if the one to whom the notice is directed has actual notice of the action to be taken, that is, the termination of the lease, the purpose of the notice is served and the failure to follow precisely the means set out in the lease, as to the service of notice, will not invalidate the termination of the lease.

3. "Where the evidence given on behalf of defendant is so clearly insufficient to support a verdict for him that such verdict, if returned by the jury, must be set aside, and the evidence in support of plaintiff's claim is clear and convincing, it is the duty of the trial court, when so requested, to direct a verdict for the plaintiff." Point 4, Syllabus, Vaccaro Brothers & Company v. Farris, 92 W.Va. 655, 115 S.E. 830 (1923).

Spilman, Thomas, Battle & Klostermeyer, John H. Tinney and Frederick L. Thomas, Jr., Charleston, for appellant.

Michael Tomasky, Morgantown, Charles C. W. Atwater, Baltimore, Md., for appellees.

CAPLAN, Chief Justice:

This is an appeal from a final order of the Circuit Court of Monongalia County wherein the court overruled a motion of the appellant, American Industrial Leasing Company (hereinafter, American Leasing), to set aside the verdict and grant it a new trial. We reverse and enter judgment here in favor of American Leasing.

The action involved a student dormitory, known as Campanile, situate on the campus of West Virginia University, which was under lease by American Leasing to Beechurst Avenue Joint Venture (hereinafter, Beechurst) at a stated annual rental.

In their complaint, William E. Dixon, Harry Meeks, John Junkins and Robert H. Law, partners, trading and doing business as Beechurst Avenue Joint Venture, sought damages from American Leasing and the West Virginia University Board of Governors (hereinafter, Board of Governors) for an alleged conspiracy which they asserted resulted from a breach of contract between Beechurst and the Board of Governors. It was contended by Beechurst that the Board of Governors and American Leasing were guilty of collusion amounting to a conspiracy to wrongfully cause the termination of the aforesaid lease, thereby allowing the sale of the student dormitory to the University free of the Beechurst lease.

American Leasing answered and filed a counterclaim to the complaint. In its counterclaim, American Leasing sought to recover the amount allegedly due for delinquent rent and for taxes. In a separate trial on the counterclaim, the jury, upon instruction by the court, returned a verdict for American Leasing in the sum of $80,956.45. Judgment was entered on that verdict and it became final.

As heretofore noted, the instant case involves the conspiracy issue and the damages allegedly resulting therefrom. The jury found for Beechurst in the amount of $100,000.00, after which the refusal of the aforesaid motion by American Leasing prompted this appeal. The appellant assigns seven errors for reversal of the judgment. We believe that one assignment is dispositive of this case. Our decision to reverse and to enter judgment here is based upon our conclusion that no conspiracy was proved and that the trial court should have directed a verdict for American Leasing at the conclusion of the evidence.

As succinctly stated in 15A C.J.S. Conspiracy § 1(1), a civil conspiracy is a combination of two or more persons by concerted action to accomplish an unlawful purpose or to accomplish some purpose, not in itself unlawful, by unlawful means. The cause of action is not created by the conspiracy but by the wrongful acts done by the defendants to the injury of the plaintiff. 16 Am.Jur.2d, Conspiracy, Sec. 44.

Upon examination of the record, we perceive no competent evidence of conspiracy which would fit the foregoing definition. Even though the Board of Governors and American Leasing had discussed the sale of the subject dormitory and had even carried on some negotiations relative thereto, as hereinafter noted, their actions were not designed to accomplish an unlawful purpose, nor were the means employed by them unlawful. Consequently, there were no wrongful acts done by the defendants to the injury of the plaintiffs.

The loss claimed by the plaintiffs remained unproved. While their venture proved to be a failure and resulted in a loss of expected profit, the evidence revealed that such loss occurred from the beginning and was not caused by any action of American Leasing; the remainder of the lease, upon which the plaintiffs were attempting to collect damages, was of no value. Plainly stated, Beechurst was engaged in a losing venture, there being no evidence that it could recover from the adverse financial plight into which it had fallen.

As stated earlier in this opinion, actionable civil conspiracy contemplates a concerted action by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by some unlawful means. Where is the unlawful purpose or the unlawful means in this case? We see none.

It was judicially determined that Beechurst was delinquent in its rental payments to American Leasing. That was settled in the prosecution of American Leasing's counterclaim, wherein it was determined that Beechurst was delinquent in the amount of $80,956.45. The dismissal of the untimely appeal by Beechurst is further evidence of such determination. Dixon v. American Industrial Leasing, W.Va., 205 S.E.2d 4 (1974). Under the lease the lessor, American Leasing, had an express right to cancel and sell the property. There was no wrongful act to support the alleged conspiracy if the act complained of, termination of the lease, was the result of an exercise of an absolute right.

Beechurst...