Frederick Mgmt. Co. v. City Nat'l Bank of West Virginia, 35438.

• Decision Date: 23 November 2010
• Docket Number: No. 35438.,35438.
• Citation: 228 W.Va. 550,723 S.E.2d 277
• Court: West Virginia Supreme Court
• Parties: FREDERICK MANAGEMENT COMPANY, L.L.C., Plaintiff Below, Appellant v. CITY NATIONAL BANK OF WEST VIRGINIA, a National Banking Association, Defendant Below, Appellee.

228 W.Va. 550

723 S.E.2d 277

FREDERICK MANAGEMENT COMPANY, L.L.C., Plaintiff Below, Appellant

v.CITY NATIONAL BANK OF WEST VIRGINIA, a National Banking Association, Defendant Below, Appellee.

No. 35438.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 2010.Decided Nov. 23, 2010.

Syllabus by the Court

1. “ ‘A circuit court's entry of summary judgment is reviewed de novo.’ Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).” Syl. Pt. 1, Toth v. Board of Parks and Recreation Com'rs, 215 W.Va. 51, 593 S.E.2d 576 (2003).

2. “ ‘ “ ‘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 Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).' Syllabus point 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).” Syl. Pt. 2, Toth v. Board of Parks and Recreation Com'rs, 215 W.Va. 51, 593 S.E.2d 576 (2003).

3. “ ‘The circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial.’ Syllabus point 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).” Syl. Pt. 3, Toth v. Board of Parks and Recreation Com'rs, 215 W.Va. 51, 593 S.E.2d 576 (2003).

4. “ ‘Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.’ Syllabus Point 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).” Syl. Pt. 3, Holloman v. Nationwide Mut. Ins. Co., 217 W.Va. 269, 617 S.E.2d 816 (2005).

5. “Under the doctrine of impracticability, a party to a contract who claims that a supervening event has prevented, and thus excused, a promised performance must demonstrate each of the following: (1) the event made the performance impracticable; (2) the nonoccurrence of the event was a basic assumption on which the contract was made; (3) the impracticability resulted without the fault of the party seeking to be excused; and (4) the party has not agreed, either expressly or impliedly, to perform in spite of impracticability that would otherwise justify his nonperformance.” Syl. Pt. 2, Waddy v. Riggleman, 216 W.Va. 250, 606 S.E.2d 222 (2004).

6. “Where a contract is ambiguous, then issues of fact arise and a summary judgment is ordinarily not proper.” Syl. Pt. 2, Lee Enterprises, Inc. v. Twentieth Century–Fox Film Corp., 172 W.Va. 63, 303 S.E.2d 702 (1983).

7. “ ‘While the general rule is that the construction of a writing is for the court; yet where the meaning is uncertain and ambiguous, parol evidence is admissible to show the situation of the parties, the surrounding circumstances when the writing was made, and the practical construction given to the contract by the parties themselves either contemporaneously or subsequently. If the parol evidence be not in conflict, the court must construe the writing; but, if it be conflicting on a material point necessary to interpretation of the writing, then the question of its meaning should be left to the jury under proper hypothetical instructions.’ Syllabus Point 4, Watson v. Buckhannon River Coal Co., 95 W.Va. 164, 120 S.E. 390 (1923).” Syl. Pt. 1, Lee Enterprises, Inc. v. Twentieth Century–Fox Film Corp., 172 W.Va. 63, 303 S.E.2d 702 (1983).

Thomas L. Craig, Todd A. Biddle, Bailes, Craig & Yon, Huntington, WV, for Appellant.

Ancil G. Ramey, Hannah B. Curry, Peter J. Raupp, Steptoe & Johnson, Charleston, WV, for Appellee.

PER CURIAM:

This is an appeal from an order entered March 23, 2009, in the Circuit Court of Cabell County, West Virginia, granting summary judgment in favor of Appellee City National Bank of West Virginia (“City” or “lessee”) and against Appellant Frederick Management Company, LLC (“FMC” or “lessor”). Lessor FMC argues that genuine issues of material fact exist as to whether City, its lessee, breached the parties' Lease Termination Agreement (also referred to as “LTA”) by failing to deliver 4,000 square feet of office space that City leased from FMC and subleased to the law firm of Frazier & Oxley, L.C. It is FMC's contention that its breach of contract claim against City should have been considered by a jury.

Upon careful consideration of the petition for appeal, the briefs and arguments of counsel, all matters of record and the applicable legal authority, and for the reasons discussed below, we reverse the order of the circuit court and remand this case for further proceedings.

I. Factual and Procedural Background

Many of the underlying facts of the present appeal are familiar to this Court as we twice considered issues related thereto in the previous cases of State ex rel. Frazier & Oxley, L.C. v. Cummings, 212 W.Va. 275, 569 S.E.2d 796 (2002) (“ Frazier & Oxley I ”) and State ex rel. Frazier & Oxley, L.C. v. Cummings, 214 W.Va. 802, 591 S.E.2d 728 (2003) (“ Frazier & Oxley II ”). Thus, in this opinion, we shall recount some of the relevant facts discussed in Frazier & Oxley I and II, while also including those facts which are germane to resolution of the issues raised in the case sub judice.

The St. James Building is a twelve-story building located in Huntington, West Virginia, which was purchased by FMC in April 1999. Almost twenty years earlier, in May 1980, the building's then owner, the First Huntington Building Corporation,¹ entered into a lease arrangement ² with the Old National Bank of Huntington, predecessor in interest to Appellee City. Under the terms of that lease (“the prime lease”), the bank leased the lobby, mezzanine, vault and safe deposit area, drive-thru, and parking spaces in the St. James Building. The term of the prime lease was for twenty successive one-year terms beginning November 1, 1979, and ending at midnight, October 31, 1999. The prime lease further provided that it could be automatically renewed for twenty successive one-year terms at the option of the lessee bank.

Under the terms of the prime lease, the lessee bank could terminate the lease by giving the lessor written notice of its intention to vacate the premises sixty days prior to the expiration of the original term or any renewal thereof. The lessee bank could also terminate the lease by providing ninety days notice and paying one year's rent as a penalty. The lessor reserved no right to terminate the prime lease.

On or about June 15, 1987, the lessee bank entered into a written sublease with the law firm of Frazier & Oxley, L.C. (also referred to as “the law firm”) for the mezzanine level of the leased office space.³ Under the terms of the sublease, Frazier & Oxley paid to the bank $250.00 per month for 4,000 square feet of office space.⁴ The sublease further provided for a term for one year beginning on December 1, 1987, and could be renewed automatically for thirty-one successive one-year terms unless written notice was given to the sublessor (the bank) of the intent of the sublessee (Frazier & Oxley) to vacate the premises sixty days prior to the expiration of any renewal term. The sublessor reserved no right to terminate the sublease.

One day after the sublease was entered into, on June 16, 1987, the law firm assigned all if its rights and obligations thereunder to William Frazier, one of its partners. On June 17, 1987 (the following day), Mr. Frazier subleased back to the law firm the right to occupy the mezzanine level for $4,000.00 per month for the first six years and thereafter for $2,000 per month. Frazier & Oxley I, 212 W.Va. at 278, 569 S.E.2d at 799.

In 1996, lessee and sublessor Old National Bank became a part of City and Old National Bank's location in the St. James Building became a branch office of City. As a result, Appellee City became the lessee under the prime lease and the sublessor under the sublease. In April 1999, ownership of the St. James Building was transferred to the appellant herein, FMC, with such transfer occurring subject to the prime lease and sublease discussed above. It is FMC's contention that it was unaware of the sublease between City and Frazier & Oxley when it acquired ownership of the building and for sometime thereafter. See discussion, infra.

Subsequently, City and Frazier & Oxley became involved in a dispute related, in part, to the sublease. On or about November 9, 1999, a settlement agreement was entered into between the parties, which provided, in relevant part, that the term of the sublease shall be concurrent with the term of the prime lease, “ ‘or any extensions or renewals thereof, and shall expire ... upon the expiration or termination of the master/primary lease’ ” [i.e., prime lease]. Frazier & Oxley I, 212 W.Va. at 278, 569 S.E.2d at 799. FMC contends that, having been unaware of the sublease, it was also unaware of the settlement agreement between City and Frazier & Oxley. See discussion, infra.

Sometime prior to April 2000, City determined that its banking operation located in the St. James Building had become unprofitable. On April 25, 2000, Matthew Call, Chief Operating Officer and Executive Vice President of City Holding Company (City's parent company), Larry Dawson, Senior Vice President of City Holding, and Robert Hardwick, Regional President of City's Huntington branch, all of whom had authority to act on behalf of City, attended a dinner meeting with John Hankins and Fred Davis, who were then co-owners of FMC. According to the deposition testimony...