Parkway Fuel Service, Inc. v. Pauley

• Decision Date: 18 March 1980
• Docket Number: No. 13822,13822
• Citation: 263 S.E.2d 893,164 W.Va. 344
• Court: West Virginia Supreme Court
• Parties: PARKWAY FUEL SERVICE, INC. v. Roy PAULEY.

Page 893

263 S.E.2d 893

164 W.Va. 344

PARKWAY FUEL SERVICE, INC. v. Roy PAULEY.

No. 13822.

Supreme Court of Appeals of West Virginia.

March 18, 1980.

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." Syl. pt. 3, Aetna Casualty and Surety Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).

Roy Pauley, pro se.

John G. Anderson, Winfield, for appellee.

PER CURIAM:

In this case Roy Pauley, the appellant, contends that the Circuit Court of Jackson County erred in entering an order on August 20, 1976, awarding the appellee, Parkway Fuel Service, Inc., summary judgment on Parkway's complaint against Pauley for past due rent and possession of real estate. It is Mr. Pauley's contention that at the time of the entry of summary judgment, genuine issues of material fact remained in the case and that, therefore, the entry of summary judgment was improper. We agree.

In the summer of 1971 the appellant leased from Parkway a 7.3 acre parcel of real estate located in Putnam County. In 1974, Parkway, in a complaint alleging that the appellant had failed to pay rent for twenty months, sued for $4,000 and possession of the premises. In response to Parkway's complaint the appellant filed an answer in which he denied generally the allegations of the complaint. Parkway thereupon moved for summary judgment, and by order entered August 22, 1974, the Circuit Court of Putnam County awarded Parkway the relief for which it prayed.

Mr. Pauley appealed the decision of the Circuit Court of Putnam County to our Court, and we, in a decision handed down on December 16, 1975, reversed the judgment of the Circuit Court and remanded the case for a new trial. Parkway Fuel Service, Inc. v. Pauley, W.Va., 220 S.E.2d 439 (1975).

After the remand, the Judge of the Circuit Court of Putnam County disqualified himself, and the case was transferred to the Circuit Court of Jackson County.

Upon reinstitution of the action in the Circuit Court of Jackson County, Parkway again moved for summary judgment. In support of its motion, it filed an affidavit executed by William M. Batchelor, Director of Real Estate for Benton-Spry, Inc., and for its wholly-owned subsidiary Parkway Fuel Service, Inc. In the affidavit, Mr. Batchelor stated that the appellant had agreed to pay $200.00 per month as rent for the premises in question, and that for several months Pauley did pay the rent. However, on or about August 1, 1972 he ceased making payments. Mr. Batchelor stated that Pauley was in arrears for a total of twenty months, and that even though numerous notices had been given to him to pay his rent, he had refused to pay the rent and had refused to vacate the premises.

In opposition to the motion for summary judgment, the appellant filed an affidavit in which he asserted that on December 30, 1971, he had entered into negotiations with Barr Realty, as agent for Parkway, for the purchase of the premises in question. He stated that Barr Realty, acting in behalf of Parkway, had agreed to sell him the property for $55,000 with $500.00 to be paid down and the residue to be paid in monthly installments of $508.00 over a period of thirteen years. He stated that he had made the down-payment of $500.00 as agreed, that Barr had accepted it, but that Parkway had failed to convey the property. He took the position that there was no rent due to Parkway because, as a result of the agreement, he ceased being a month-to-month tenant and his obligation to pay rent had ended.

The appellant attached to his affidavit a copy of a check for $500.00 dated December 30, 1971, payable to Barr Realty. He also attached two letters, one from Hennis Freight Lines, Inc., and the other from Benton-Spry, Inc., the parent companies of Parkway. In the first letter, W. P. Shore, Jr., Manager of the Real Estate Department of Hennis Freight Lines, Inc. wrote:

"We have secured the necessary company approval for the sale of the property as I discussed with you on my recent trip to West Virginia. I do have one problem in securing the approval of the court."

Mr. Shore then stated that Hennis Freight Lines was at the time in bankruptcy and that its activities were under supervision by the court. He, however, concluded: "In the meantime, let me assure you that the sale will go through . . . ."

In the second letter, Mr. Richmond W. Rucker, an attorney writing in...