First Nat. Bank of Bluefield v. Clark

• Decision Date: 21 April 1989
• Docket Number: No. 18132,18132
• Citation: 383 S.E.2d 298,181 W.Va. 494
• Court: West Virginia Supreme Court
• Parties: The FIRST NATIONAL BANK OF BLUEFIELD v. Andrew L. CLARK and William L. Sheppard.

Page 298

383 S.E.2d 298

181 W.Va. 494

The FIRST NATIONAL BANK OF BLUEFIELD v. Andrew L. CLARK and William L. Sheppard.

No. 18132.

Supreme Court of Appeals of

West Virginia.

April 21, 1989.

Rehearing Denied July 20, 1989.

Syllabus by the Court

1. For a petition for appeal to this Court to be timely presented, for purposes of W.Va.Code, 58-5-4, and Rule 3 of the Rules of Appellate Procedure, it must be filed with the clerk of this Court within eight months of the entry of judgment or within such additional period, up to four months, as may be authorized pursuant to W.Va.Code, 58-5-4.

2. By virtue of Rules 2, 3, and 16 of the Rules of Appellate Procedure, this Court may, for good cause shown, suspend or enlarge the time within which a party may file a petition for appeal under W.Va.Code, 58-5-4.

3. " 'When a written contract upon its face is couched in such terms as to import a legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties and the extent of the undertaking were reduced to writing. Parol evidence will not be admitted to vary its terms.' Syllabus point 1, Jones v. Kessler, 98 W.Va. 1, 126 S.E. 344 (1925)." Syllabus Point 1, W.L. Thaxton Constr. Co. v. O.K. Constr. Co., 170 W.Va. 657, 295 S.E.2d 822 (1982).

4. "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 Cas. & Sur. Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).

Carl L. Fletcher, Jr., S, T, B & K, Charleston, for Andrew L. Clark.

Charles McElwee, Robinson & McElwee, Charleston, for First Nat. Bank of Bluefield.

MILLER, Justice:

Andrew L. Clark and William L. Sheppard, the defendants below, appeal from a summary judgment entered against them on January 7, 1987, by the Circuit Court of Mercer County. We find that there are issues of fact to be tried, and reverse the judgment.

I.

The defendants were the sole partners in Chanticleer, a West Virginia partnership that proposed to construct twenty townhouse units in Princeton. They approached the Mercer County Commission sometime prior to December, 1981, to obtain financial assistance. On December 22, 1981, the Commission authorized the issuance of a $1,000,000 industrial development revenue bond to finance the Chanticleer project.

By letter dated February 3, 1983, the defendants inquired whether the First National Bank of Bluefield (Bank) wished to participate in the purchase of the bond. R.W. Wilkinson and Ronnie S. Kennett, officers of the Bank, met with the defendants to discuss the project and agreed to recommend the purchase to the Bank's discount committee. The defendants, at their request, consented to increase the size of the project by an additional five townhouse units.

On March 4, 1983, Kennett provided the defendants with the Bank's commitment letter. As outlined in the letter, the estimated cost of the project was $1,625,000. Of this sum, $625,000 was to be provided by a new limited partnership to be formed by the defendants. Kennett also expressed concern that Clark not incur personal liability, so as not to jeopardize existing lines of credit at the Bank. He, therefore, requested that the limited partnership be structured appropriately. ¹

The defendants responded promptly to the requests made by Kennett in the commitment letter. In the latter half of March, they incorporated Medical Park Townhouses, Inc. (MPT) to serve as general partner of the limited partnership. The defendants and their spouses were named as officers of the corporation. On April 1, 1983, "Medical Park Townhouses--1983 Limited Partnership" was formed. A maximum of twenty-five limited partnership "shares" were to be sold for a cash contribution of $25,000 each. Two of these shares were purchased directly by MPT.

The defendants experienced some difficulty in the sale of the partnership shares, and they discussed the problem extensively with representatives of the Bank. The defendants ultimately wrote to Wilkinson on August 31, 1983. The full text of the letter, the culmination of these discussions, read as follows:

"August 31, 1983

Mr. R.W. Wilkinson, President

First National Bank

P.O. Box 1559

Bluefield, WV 24701

Re: Medical Park Townhouse

Limited Partnership

Dear Buzzy:

As per your recent discussion with William L. Sheppard; please be advised that the General Partners of the Medical Park Townhouse Project will purchase all Limited Partnership shares not sold.

This project will be completed as outlined to you.

Sincerely,

Medical Park Townhouses

Andrew L. Clark, General

Partner

William L. Sheppard,

General Partner

ALC/WLS/mai" (Emphasis in original).

The financing for the project was finalized on September 16, 1983. A deed of trust and a promissory note in the principal sum of $1,000,000 were executed by the defendants for the limited partnership. These were assigned to the Bank in an instrument of even date.

Only thirteen of the townhouse units were completed by the defendants as planned. Payments on the promissory note became delinquent and, on April 7, 1986, the property was sold at auction as provided in the deed of trust. The Bank purchased the project for the sum of $525,000.

On July 19, 1985, the Bank filed this suit against the defendants individually. In its complaint, the Bank asserted that the August 31, 1983 letter from the defendants "memorialize[d] defendants [sic ] commitment to plaintiff to assure an equity commitment of $625,000 to the Project by their agreement to purchase all limited partnership shares not sold in Townhouses at a price of $25,000 per share." The Bank requested either $625,000 in damages or specific performance of the contract.

On October 23, 1986, the Bank moved for summary judgment and attached to its motion affidavits by Kennett, Wilkinson, and an attorney involved in the financing. The defendants responded to the motion with their own affidavits. Also provided by the parties were deposition transcripts and other discovery items.

On January 7, 1987, the circuit court entered summary judgment for the Bank. In its memorandum opinion, the court concluded as a matter of law that the "letter of August 31, 1983, from defendants to Wilkinson [was] a personal commitment by the defendants to purchase all partnership shares not sold." The court found that nineteen of the partnership shares remained unsold, and entered judgment for $475,000 plus interest.

II.

Preliminary to a discussion of the merits, we consider whether this appeal must be dismissed as untimely. In its brief, the Bank renews its motion to dismiss ² on the ground that the petition for appeal was not filed with our clerk within eight months from the entry of judgment. We find from the record that the judgment was entered on January 7, 1987, and that the petition was stamped "filed" by our clerk on September 11, 1987.

The defendants resist the motion on two alternative grounds. They contend first that the petition was filed in the office of the circuit clerk on September 8, 1987, and was, therefore, timely. ³ Even if the petition was untimely filed, they contend that this Court possesses the inherent authority to enlarge the time for appeal.

A.

We turn first to the text of W.Va.Code, 58-5-4, the statute that fixes the time for filing an appeal. It reads, in relevant part: "No petition shall be presented for an appeal from, or writ of error or supersedeas to, any judgment, decree or order, whether the State be a party thereto or not, which shall have been rendered or made more than eight months before such petition is presented[.]" Rule 3(a) of the Rules of Appellate Procedure is drawn directly from this statute, and provides: "No petition shall be presented for an appeal from, or a writ of supersedeas to, any judgment, decree or order, which shall have been rendered more than eight months before such petition is presented, whether the State be a party thereto or not[.]"

This case focuses on the unique phraseology of W.Va.Code, 58-5-4, which makes reference to the time when a petition for appeal is "presented." This word is not defined elsewhere in the statute and the parties, therefore, offer their own definitions. The defendants argue that a petition is presented when it is filed with the clerk of the circuit court, as required by our statutes and rules. ⁴ On the other hand, the Bank cites two cases which hold that a petition is not presented until it is filed with our clerk. Snuffer v. Spangler, 79 W.Va. 628, 92 S.E. 106 (1917); Spangler v. Vermillion, 80 W.Va. 75, 92 S.E. 449 (1917). These cases, decided under the nearly identical 1913 statute, W.Va.Code ch. 135, § 3, ⁵ merit some discussion.

In Snuffer, a motion to dismiss was founded on the failure to timely transmit the appeal record. W.Va.Code ch. 135, § 17, provided that the appeal record was to be transmitted to our clerk within one year and two months of the judgment. ⁶ We read § 17 in pari materia with § 3, the time for appeal statute, and concluded: "[I]n a case where original papers are transmitted to the clerk of this court, these papers must be transmitted and be in the hands of the clerk of this court, together with the petition for the writ of error or appeal, within [the time allowed for appeal]." 79 W.Va. at 631, 92 S.E. at 107.

The dictum contained in Snuffer was reaffirmed that same year in Vermillion. In the Vermillion case, the petition for appeal was filed with our clerk two days after the appeal time lapsed. It was argued that since the petition was filed with the circuit clerk within the appeal time, it was timely presented for purposes of W.Va.Code, ch. 135, § 3. We specifically rejected this argument, and stated in Syllabus Point 2:

"The filing in the clerk's office of the circuit court of a petition for an appeal...