Gunn v. Hope Gas, Inc., 19416
| Citation | 184 W.Va. 600,402 S.E.2d 505 |
| Decision Date | 08 February 1991 |
| Docket Number | No. 19416,19416 |
| Court | West Virginia Supreme Court |
| Parties | Irene GUNN v. HOPE GAS, INC., a West Virginia Corporation; and CNG Transmission Corporation, a Delaware Corporation Registered to do Business in West Virginia. |
Syllabus by the Court
"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 Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).
Orton Jones, Thomas N. Whittier, Hedges, Jones, Whittier & Hedges, Spencer, for Irene Gunn.
W. Henry Lawrence, IV, Steptoe & Johnson, Clarksburg, for Hope Gas.
On June 15, 1988, the plaintiff, Irene Gunn, filed a complaint in the Circuit Court of Calhoun County seeking injunctive and declaratory relief to enforce a contract with the defendant, Hope Gas, Inc., a West Virginia corporation, to provide her a gas connection and gas service. The plaintiff also sought compensatory damages for the loss of her interest in gas service from a pipeline which was subsequently abandoned pursuant to a Public Service Commission order on July 18, 1988.
Activity relevant to this case began in March, 1978, when the plaintiff conveyed a pipeline right-of-way easement across her property to Consolidated Gas Supply Corporation ("Consolidated"), the defendant Hope Gas, Inc.'s corporate predecessor. The agreement between the parties, dated March 17, 1978, stated, in relevant part,
However, the plaintiff alleges that, as part of the consideration for the easement, Consolidated agreed to provide her with a gas connection and service from an existing pipeline. The plaintiff maintains that a typed, notarized contract was duly executed and filed in the County Commission office in Calhoun County, but was subsequently lost, stolen, or destroyed. Over ten years later, on May 2, 1988, she recorded an undated, handwritten note, allegedly signed by S.W. Rittenhouse, the agent from Consolidated who negotiated the right-of-way. This note states, in its entirety:
Mrs. Irene Gunn is to have a gas connection on Consolidated Gas Supply Corporation pipe line on ridge in front of her house on south east side. Also to be given 2 Joints of 8"' or 12"' Junk pipe.
Gas tap to be made before October 1, 1978
S W Rittenhouse
Leaseman
P.O. Box 488
Cabin Creek W Va
The plaintiff states that, pursuant to this agreement, she filed an application dated February 17, 1978, with Hope Gas for residential natural gas service by meter. After being connected, the plaintiff received service from the fall of 1978 until September 21, 1984, when she discontinued service from the pipeline because free gas was available to her from a well behind her home. Now, however, because she says the free gas supply is no longer reliable, the plaintiff wants to resume gas service from Hope Gas pursuant to what she characterizes as an agreement "to maintain a gas connection and the availability of gas service." Hope Gas maintains that the plaintiff received gas service from 1978 to 1984 simply as another paying customer and not pursuant to any special agreement.
On February 17, 1987, Hope Gas filed an application with the Public Service Commission (PSC) pursuant to W.Va.Code § 24-3-7 (1986), 1 seeking to discontinue gas service to the seven remaining residential customers served on Line No. H-162, the line which served the plaintiff until she voluntarily discontinued service in 1984. The plaintiff appeared at the PSC's May 19, 1987, abandonment hearing and objected to both the removal of H-162 and the fact that she was not compensated for the removal of the line. The PSC found that because the plaintiff was no longer a Hope Gas customer, she lacked standing to challenge the abandonment. For this reason, the PSC denied the plaintiff's objections and refused to approve a severance payment to her. The abandonment of H-162 was approved by the PSC on July 18, 1988, and no appeal was taken from this order.
Prior to the entry of the PSC order, however, the plaintiff filed her verified complaint in this case on June 15, 1988, requesting both temporary and permanent relief to prohibit Hope Gas from removing H-162 and thereby terminating gas service to her, as well as a declaratory judgment stating that she was entitled to receive continuous gas service. Hope Gas responded to the plaintiff's motion for injunctive relief on August 2, 1988, arguing that the plaintiff was not entitled to injunctive relief once the PSC approved the abandonment of the line serving her area. A hearing on the motion for a temporary injunction was held on September 8, 1988, when the lower court ruled that it lacked jurisdiction to overrule the PSC abandonment approval. The order denying injunctive relief was not appealed.
On December 2, 1988, Hope Gas filed a motion for judgment on the pleadings, asserting that the plaintiff's own allegations established that Hope Gas had fulfilled any contractual agreement that may have existed relating to gas service and that, for this reason, the plaintiff was entitled to no further relief. A hearing was held on this motion on December 12, 1988, at which time the plaintiff moved for leave to file an amended complaint and join an additional party defendant. The amended complaint sought to add CNG Transmission Corporation 2 as a defendant and included a prayer for $15,000 in compensatory damages. The court ordered that the motion for judgment on the pleadings could be treated as a joint motion by Hope Gas and CNG Transmission, and the plaintiff was permitted to file an amended complaint.
On January 19, 1989, the lower court granted the defendants' motion for judgment on the pleadings, concluding that the plaintiff had neither a statutory nor a contractual right to gas service or to compensation upon the termination of service in the area. The plaintiff now appeals from this order, arguing that the lower court erred in granting judgment on the pleadings and not affording her the opportunity to prove the terms of the agreement which existed between the parties.
The plaintiff maintains that her complaint set forth a duty to provide gas, as well as a breach of that duty, with sufficient specificity that she should be entitled to present her case. To support...
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