Kentucky Fried Chicken of Morgantown, Inc. v. Sellaro

• Decision Date: 08 April 1975
• Docket Number: No. 13475,13475
• Citation: 214 S.E.2d 823,158 W.Va. 708
• Court: West Virginia Supreme Court
• Parties: KENTUCKY FRIED CHICKEN OF MORGANTOWN, INC. v. Asunta M. SELLARO et al.

Page 823

214 S.E.2d 823

158 W.Va. 708

KENTUCKY FRIED CHICKEN OF MORGANTOWN, INC. v. Asunta M. SELLARO et al.

No. 13475.

Supreme Court of Appeals of West Virginia.

April 8, 1975.

Dissenting Opinion May 8, 1975.

Syllabus by the Court

1. Where a lease agreement requires a lessor to grade and pave an entire parcel of land for commercial use and requires the lessee of a portion of the lessor's entire parcel to bear its propertionate share of the costs involved in grading and paving the premises leased, the lessee's proportionate share of costs is to be ascertained by comparing the size of the lessee's parcel to the whole of the lessor's property which is required to be graded and paved.

2. Compensatory damages recoverable by an injured party incurred through the breach of a contractual obligation are those as may fairly and reasonably be considered as arising naturally[158 W.Va. 709] --that is, according to the usual course of things--from the breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of its breach.

3. Compensatory damages recoverable by an injured party incurred through the breach of a contractual obligation must be proved with reasonable certainty.

4. 'Where a court, by an order in the first instance, disposes of multiple claims and adjudicates all controversies, but a party by a Rule 59(e) R.C.P. mother asks the court to alter or amend the order as to one of the claims, but not the other, the Rule 59(e) motion extends the time of finality of the order as it relates to the claim contained in the 59(e) motion until the Rule 59(e) motion is determined, but he order in the first instance is final as to the other claims determined therein, and the time for appeal as to that claim runs from the entry of the order in the first instance.' Syllabus point 6., Dixon v. American Industrial Leasing Co., W.Va., 205 S.E.2d 4 (1974).

Steptoe & Johnson, Patrick D. Deem, Jackson L. Anderson, Clarkburg, for appellant.

Frank J. De Pond, Morgantown, Wilson, Frame & Rowe, Clark Frame, Morgantown, for appellees.

HADEN, Chief Justice:

Kentucky Fried Chicken of Morgantown, Inc. appeals a final order of the Circuit Court of Monongalia County overruling its motion for a new trial made pursuant to Rule 5. and its motion for amendment or additional findings of fact made pursuant to Rule 52(b) of the West Virginia Rules of Civil Procedure. The motions ruled upon had sought the court's reconsideration of that part of its previous judgment of June 21, 1973, disposing of multiple claims, which awarded appellees, Asunta M. Sellaro, Antonio M. Sellaro and Catherine J. Sellaro $18,092.50 on their counterclaim against the appellate for damages arising from a breach of a lease contract.

The appellees counter-assign error in their brief filed in this Court on January 8, 1975, likewise relating to the June 21, 1973 judgment, as such reformed a lease agreement between the parties and fixed values on additional rental assigned the Sellaros pursuant to reformation of the lease. The cross-assignments assert that the trial court's judgment was in error in failing to order removal of a property encroachment or, alternatively, in failing to properly assign rental value to the Sellaros' encroached-upon property. Kentucky Fried Chicken contends in its reply brief that the Sellaros' counter-assignments should be dismissed because they were not asserted seasonably.

The controversy resulting in this appeal relates to a building encroachment and to provisions contained in a lease agreement executed by Sam Sellaro, now deceased, and Asunta M. Sellaro, his wife, as lessors with Kentucky Fried Chicken's predecessor corporation, as lessee, dated May 12, 1967, for the demise of a 40 foot by 165 foot parcel of valuable land fronting on Patteson Drive in the City of Morgantown. The leased parcel was a portion of a larger 1.38 acre tract owned by Sellaros. The smaller parcel was leased to the appellant for the construction of a building which was to be operated as a 'carry-out' retail franchise for selling 'Kentucky Fried Chicken' and related foodstuffs. The term of the lease was for a period of ten years, with two additional five-year renewal options. The lease also contained provisions for prospective grading and paving of the total 1.38 acre parcel, including the demised premises. The trial court's interpretation of the grading and paving provisions is the principal source of appellant's assignments of error on this appeal.

Subsequent to the execution of the lease agreement, plaintiff began construction of its building. Early during the construction period, it was discovered that the building and its appurtenances, when completed, would encroach approximately five feet upon the adjoining property owned by the lessors. A dispute over the encroachment ensued which could not be resolved amicably. Consequently, a civil action was initiated by the appellant to amend or reform the description of the lease to include the area of the encroachment upon payment of additional compensation by Kentucky Fried Chicken. In its complaint, the plaintiff lessee also asserted the lessors' obligation under the lease to grade and blacktop the 1.38 acre parcel upon which lessee was to enjoy joint and common parking privileges, with right of ingress and egress, praying that the Sellaros be ordered to complete the grading and blacktopping with 'plaintiff to bear its proportionate share of the costs incurred.' The Sellaros answered the complaint and counterclaimed for damages for the encroachment, removal of the encroachment and damages of $17,000.00 for reimbursement to the lessors for Kentucky Fried Chicken's proportionate share of grading and paving costs incurred in the development of the 1.38 acre parcel. In its reply to the counterclaim, Kentucky Fried Chicken admitted the encroachment but alleged it was consented to by the Sellaros. The plaintiff's reply also denied liability for grading and paving the demised premises, pleading previous payment of its propertionate share.

Upon these issues, the case was tried to the court. By the judgment order of June 21, 1973, which was based upon accompanying findings of fact and conclusions of law, the trial court ordered that the Sellaros recover the sum of $18,092.50, with interest, as the lessee's share of the grading and blacktopping expenses. The same order also 'reformed' the subject lease so as to extend the westerly boundary line of the leased parcel five feet. The 'rental' value fixed by the trial court for the additional 5 by 165 foot parcel was $50.00 per month recoverable from the execution date of the lease and equivalent to the front footage rental agreed to in the original lease contract.

Thereafter, appellant filed its motions for a new trial and to have certain findings of facts and conclusions of law set aside on grounds pertaining solely to the portion of the judgment awarding the Sellaros damages on the counterclaim. The order of September 18, 1973 overruled the appellant's motion. A timely appeal from that order was perfected to this Court.

The issues arising upon the appellant's petition involve the extent of its liability, if any, to the Sellaros for reimbusement of a portion of the costs allegedly incurred by the Sellaros in grading and blacktopping the 1.38 acre parcel of real estate. The provisions of the lease which deal specifically with the asserted obligation are in the following language '6. It is agreed between the parties hereto that whereas the Lessors are planning to have the 1.38 acre parcel of real estate owned by them graded for future building purposes which includes the parcel herein leased to the Lessee, the Lessors will cause to be graded in preparation for building, the site leased herein as a part of the overall grading project and the Lessee will pay its proportionate share of the grading costs.

'7. It is agreed by and between the parties hereto that whereas the Lessors are planning to cause the said 1.38 acre parcel to be blacktoppel to facilitate parking, that in so doing the premises leased herein shall be included in such blacktopping project and the Lessee shall likewise be responsible for its proportionate share of the costs incurred in blacktopping the premises herein leased.

'It is understood and agreed that the Lessee shall likewise have joint and common parking privileges and ingress and egress privileges over the entire parking area of the 1.38 acre parcel in which the premises herein leased is located.'

As noted, the trial court awarded defendants the sum of $18,092.50, which was precisely one-half the obligation found to have been incurred by the lessors, or their successors in title, for grading and blacktopping.

Appellant here asserts, as it did during trial, that it had no obligation whatsoever to pay for grading and blacktopping costs on the remainder of the lessors' parcel; that if the lessee was obligated in any amount, it was not liable in the amount ascertained by the trial court. Additionally, appellant asserts that the Sellaros failed to prove the reasonable value of the grading and blacktopping or that the costs, if reasonable, were incurred by the Sellaros, and that the trial court erred in permitting the introduction into evidence of an unverified invoice to prove the alleged cost of the grading and 'blacktopping.'

That Kentucky Fried Chicken contractually assumed an obligation to pay a proportionate share of grading and paving costs in the project, pursuant to Paragraphs 6. and 7. of the lease, is clear and not in doubt. The extent of such obligation, however, is somewhat obscured by the inartful language which was employed to express the obligation. A comprehensive reading of the entire lease and, particularly, the paragraphs quoted, supra, reveals that the parties contemplated a common parking area involving the...