Raines v. White

• Decision Date: 17 November 1995
• Docket Number: LINCOLN-MERCUR,INC,No. 22816,22816
• Citation: 195 W.Va. 266,465 S.E.2d 266
• Court: West Virginia Supreme Court
• Parties: Dale E. RAINES, Plaintiff Below, Appellant, v. C.E. WHITE, G.F. White, Karen S. White and Paul E. White, Defendants/Third-Party Plaintiffs Below, Appellees, v. CHARLESTON, Third-Party Defendant Below, Appellee.

Page 266

465 S.E.2d 266

195 W.Va. 266

Dale E. RAINES, Plaintiff Below, Appellant, v. C.E. WHITE, G.F. White, Karen S. White and Paul E. White, Defendants/Third-Party Plaintiffs Below, Appellees, v. CHARLESTON LINCOLN-MERCURY, INC., Third-Party Defendant

Below, Appellee.

No. 22816.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 20, 1995.

Decided Nov. 17, 1995.

Syllabus by the Court

1. " 'A circuit court's entry of summary judgment is reviewed de novo.' Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)." Syllabus Point 1, Jones v. Wesbanco Bank Parkersburg, 194 W.Va. 381, 460 S.E.2d 627 (1995).

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).' Syl. pt. 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)." Syllabus Point 2, Jones v. Wesbanco Bank Parkersburg, 194 W.Va. 381, 460 S.E.2d 627 (1995).

3. "A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent." Syllabus Point 1, Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962).

4. " 'It is not the right or province of a court to alter, pervert or destroy the clear meaning and intent of the parties as expressed in unambiguous language in their written contract or to make a new or different contract for them.' Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962), Syllabus Point 3." Syllabus Point 2, Bennett v. Dove, 166 W.Va. 772, 277 S.E.2d 617 (1981).

Richard D. Owen, Goodwin & Goodwin, Charleston, J. Nicholas Barth, Barth, Thompson & George, Charleston, for Appellant.

Jeffrey M. Wakefield, Richard E. Jones, Flaherty, Sensabaugh & Bonasso, Charleston, for Appellees C.E. White, G.F. White, Karen S. White and Paul E. White.

Thomas E. Scarr, Thomas A. Heywood, Bowles Rice McDavid Graff & Love, Charleston, for Appellee Charleston Lincoln-Mercury, Inc.

PER CURIAM:

Dale E. Raines, the plaintiff below and appellant herein, appeals from an adverse summary judgment order entered by the Circuit Court of Kanawha County on October 6, 1994. The plaintiff claims the circuit court erred in finding C.E. White, G.F. White, Karen S. White, and Paul E. White (the Whites), the defendants/third-party plaintiffs below and appellees herein, had not breached a written agreement regarding supplemental rental payments. This agreement was made in conjunction with the sale of an automobile dealership known as Raines Lincoln-Mercury, which was owned by the plaintiff and controlled through two of his corporations, Raines Lincoln-Mercury, Inc., and Dale E. Raines Agency, Inc. In July of 1995, the Whites purchased the stock of these two corporations.

Neither of these corporations owned the real property on which the business was operated. The automobile dealership business was located on three parcels of land situated in Charleston, West Virginia. The first and most valuable parcel (first parcel) was owned by Raines Motors, Inc. ¹ At the time of the purchase of the stock of the two corporations from the plaintiff, it was recognized by the Whites that the lease rental on the three parcels, which was $4,475 per month, was very advantageous. Consequently, the agreement at issue in this case was designed to provide additional compensation to the plaintiff by stating that he would receive as rent $10,000 per month for the three parcels less what actually was paid as rent on the three parcels by the Whites through the two corporations they purchased from the plaintiff. ²

The parties agree that the written agreement has continuing validity through the following events. In December of 1987, the Whites sold the assets of the automobile dealership to a corporation known as Charleston Lincoln-Mercury, Inc. Charleston Lincoln-Mercury, Inc., was assigned the three leases and assumed the Whites' obligation under the agreement. The major shareholder of Charleston Lincoln-Mercury, Inc., is Robert Thomas. Robert Thomas also owned another corporation called Bob Thomas Ford, Inc., which was incorporated in Indiana. In 1989, Bob Thomas Ford, Inc., purchased the first parcel from Raines Motors, Inc. Bob Thomas Ford, Inc., also obtained from Raines Motors, Inc., an assignment of its lessor's interest in the lease on the first parcel which Charleston Lincoln-Mercury, Inc., leased.

Thereafter, Bob Thomas Ford, Inc., as the owner and lessor of the first parcel, negotiated a higher rental with the lessee, Charleston Lincoln-Mercury, Inc. The rent on the first parcel was increased from $3,000 per month to $6,300 per month which continues to escalate until it reaches $9,300 per month by December 1, 2002. The effect of this increased rent was to diminish and then negate the compensating rent payment in the agreement with the plaintiff. This resulted in the lawsuit filed by the plaintiff. The circuit court found the agreement was clear and unambiguous and there was no illegal conduct by Charleston Lincoln-Mercury, Inc., and granted summary judgment in its favor. For the following reasons, we affirm the judgment of the circuit court.

Our standard of review of a circuit court's grant of summary judgment is summarized in Syllabus Points 1 and 2 of Jones v. Wesbanco Bank Parkersburg, 194 W.Va. 381, 460 S.E.2d 627 (1995):

"1. 'A circuit court's entry of summary judgment is reviewed de novo.' Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

"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).' Syl. pt. 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)."

The parties rely on our traditional rules for construing contracts. In effect, each party indicates that the involved contract language is plain and unambiguous in support of their positions. In fact, after rather extensive discovery, each party moved the circuit court for summary judgment. The parties cite Syllabus Point 1 of Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962):

"A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent."

See also Fraley v. Family Dollar Stores of Marlinton, W.Va., Inc., 188 W.Va. 35, 422 S.E.2d 512 (1992); Kanawha Valley Power Co. v. Justice, 181 W.Va. 509, 383 S.E.2d 313 (1989); Cabot Oil & Gas Corp. of W. Va. v. Pocahontas Land Corp., 180 W.Va. 200, 376 S.E.2d 94 (1988).

To support his position, the plaintiff points to several provisions in the agreement with respect to the supplemental rental payments. Specifically, the second "WHEREAS" clause identifies each of the three leases ³ and the third "WHEREAS" clause contains an acknowledgment by the parties that the rents under the leases are modest and below fair market value. ⁴ The plaintiff then points to paragraph 1 of the agreement where the Geary and Ray leases are identified as Lease Nos. 2 and 3 (second and third parcels) and are acknowledged to expire before December 31, 2003, the date of the expiration of the supplemental rental agreement. ⁵

The plaintiff makes two arguments from these portions of the agreement. One argument is that the first parcel was not contemplated to be subject to rent increase and, therefore, not subject to the compensation formula. The second and somewhat interrelated argument is that the substitution language is meant to apply only to the leases on the second and third parcels.

We find these arguments are not supported by the language of paragraph 1 of the agreement. First, the initial portion of paragraph 1 contains clear language that it applies to all three leases as it refers to the rent required to be paid to "its said three (3) Lessors under the terms of the three (3) aforesaid leases[.]" ⁶ It is true that paragraph 1 does contain a direct reference to the fact that "Lease[ ] No[s]. 2 and 3 expire prior to December 31, 2003"; however, this same sentence goes on to state "or if any of said leases are terminated prior to December 31, 2003," which obviously is a reference to all three leases. ⁷ It is manifest that while the renewal language applies only to leases on the second and third parcels, the termination of lease language and the subsequent substitution language applies to all three leases.

The plaintiff also contends that the language in paragraph 3 of the agreement obligates the Whites to make the supplemental rental payments even if they "acquir[e] the fee interest in said leasehold estates[.]" ⁸ However, the acquisition of the fee interest was not done by the Whites or their successor, Charleston Lincoln-Mercury, Inc. The plaintiff does not discuss the question of the assumption of the fee interest of first parcel by Bob Thomas Ford, Inc., as an independent act except to state it was a sham transaction.

The plaintiff also relies on paragraph 4 of the agreement which provides that the agreement is only for the benefit of the parties and that no other party can take advantage of the agreement. ⁹ We find the paragraph in internally inconsistent in that it begins by recognizing that the agreement...