Karnell v. Nutting, 14168

• Decision Date: 19 December 1980
• Docket Number: No. 14168,14168
• Citation: 273 S.E.2d 93,166 W.Va. 269
• Parties: Grace KARNELL, Administratrix, etc. et al. v. Betty S. NUTTING, as Co-Trustee et al.
• Court: West Virginia Supreme Court

Page 93

273 S.E.2d 93

166 W.Va. 269

Grace KARNELL, Administratrix, etc. et al. v. Betty S. NUTTING, as Co-Trustee et al.

No. 14168.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1980.

Syllabus by the Court

1. "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." Point 3, Syllabus, Aetna Casualty and Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

2. "A party who moves for summary judgment has the burden of showing that there is no genuine issue of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment." Point 6, Syllabus, Aetna Casualty and Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

McCamic & McCamic, Jeremy C. McCamic, Wheeling, for appellants.

Bachmann, Hess, Bachmann & Garden, John L. Allen, Paul T. Tucker, Wheeling, for appellees.

CAPLAN, Justice:

Grace Karnell, administratrix of the estate of her father, John Hadjis, instituted action against the defendants, owners of the McClain Building, situated in Wheeling, West Virginia. During his lifetime, John Hadjis, under a lease from said owners, operated Gregg's Restaurant which was located on the first floor of the McClain Building. After his death, Grace Karnell, his daughter, qualified as administratrix of his estate, and undertook to continue the operation of the restaurant business until such time as it could be sold.

By an agreement dated September 15, 1972, entered into between her and Mr. and Mrs. William H. Renforth, she agreed to sell the restaurant to the Renforths for the sum of $25,000.00. It is alleged that this agreement was conditioned upon the understanding that the owners would grant the Renforths a ten year lease. Although more than $5,000.00 has been paid by the Renforths to Grace Karnell, no lease was ever entered into. Consequently, the Renforths have refused to make any further payments under the agreement.

Anticipating the loss of the amount remaining unpaid under the agreement with the Renforths, Grace Karnell instituted an action against the defendants, complaining that the latter had breached their contract by failing to execute a ten year lease to the Renforths. She and the estate were therefore entitled to damages, she alleged.

In addition to the breach of contract alleged above, the plaintiffs assert that their complaint further charged tortious interference with a contract, negligent breach of contract and fraud. The trial court granted the defendant's motion for summary judgment. In so ruling, it expressed its opinion that the complaint charged only "tortious interference" with a contract and, there being no showing of any such interference, no genuine issue of a material fact existed. We reverse and remand this case for further development, consistent with the views expressed in this opinion.

In Aetna Casualty and Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), Judge Haymond discussed in great detail the law pertaining to summary judgments. Therein it was said that 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. Only if there is no genuine issue as to any material fact should summary judgment be granted. Conversely, if there is such issue summary judgment should be denied. See Rule 56, R.C.P. and Masinter v. Webco Co., W.Va., 262 S.E.2d 433 (1980). The question to be decided on a motion for summary judgment is whether there is a genuine issue of fact, not how that issue should be decided.

In the instant case the complaint alleges that before the contract between Karnell and the Renforths was entered into, the defendants had agreed to grant the Renforths a five year lease with an option to renew for an additional five years. The lease was to be prepared and executed within two weeks after September 15, 1972. The plaintiffs further allege that a loan was obtained, payments were made and the restaurant was turned over to the Renforths, all as a result of the agreement regarding the lease. The plaintiffs allege that the defendants repeatedly promised to supply the aforesaid lease to the Renforths, but that such lease was never delivered; that defendants' promises were...