Wheeling Downs Racing Ass'n v. West Virginia Sportservice, Inc.

• Decision Date: 08 October 1973
• Docket Number: No. 13217,13217
• Citation: 199 S.E.2d 308,157 W.Va. 93
• Parties: WHEELING DOWNS RACING ASSOCIATION, a corporation, v. WEST VIRGINIA SPORTSERVICE, INC., a corporation et al.
• Court: West Virginia Supreme Court

Page 308

199 S.E.2d 308

157 W.Va. 93

WHEELING DOWNS RACING ASSOCIATION, a corporation, v. WEST VIRGINIA SPORTSERVICE, INC., a corporation et al.

No. 13217.

Supreme Court of Appeals of West Virginia.

Submitted May 8, 1973.

Decided June 19, 1973.

Rehearing Denied Oct. 8, 1973.

Syllabus by the Court

1. 'A meeting of the minds of the parties is a Sine qua non of all contracts.'

Point 1, syllabus, Martin v. Ewing, 112 W.Va. 332, 164 S.E. 859.

2. A modification of a contract requires the assent of both parties to the contract and a mutual assent is as much a requisite element in effecting a contractual modification as it is in the initial creation of a contract.

3. Where the contract itself contains a provision for modification, such modification must be mutually agreed upon by the parties and if the parties cannot agree the court cannot make a new contract for them.

4. This Court will not consider questions, nonjurisdictional in their nature, which have not been acted upon by the trial court.

Pietranton & George, Frank A. Pietranton, Weirton, McCamic, McCamic & Hazlett, Jeremy C. McCamic, Wheeling, for appellant.

Galbraith, Seibert & Kasserman, Ronald W. Kasserman, Wheeling, for appellees.

BERRY, President:

This is an appeal by Wheeling Downs Racing Association, hereinafter referred to as Wheeling Downs, from a final order of the Circuit Court of Ohio County entered August 20, 1971, wherein the Circuit Court held that certain instruments entered into between Wheeling Downs and West Virginia Sportservice, Inc., hereinafter referred to as Sportservice, on December 13, 1957 were valid and binding leases and agreements and further enjoined Wheeling Downs from interfering in any way with Sportservice's exclusive right to provide the services described in the 1957 instruments. Wheeling Downs contends that the agreements are void because of a lack of mutuality and contends that even if they were valid and binding, the lower court erred in disregarding the mandatory arbitration provision of the instruments. Wheeling Downs also contends the court erred in issuing an injunction against Wheeling Downs without holding an evidentiary hearing. This Court granted the appeal on June 6, 1972 and the case was submitted for decision on may 8, 1973 upon the arguments and briefs on behalf of the respective parties.

It appears from the record in this case that Wheeling Downs and Sportservice executed six instruments on December 13, 1957 which basically gave Sportservice the exclusive right for the operation of the food concession, the parking areas, and the selling of programs at the track. Each of the three operations was governed by two instruments, one of which was called a lease and the other an agreement. This arrangement apparently operated satisfactorily until December, 1962 when a fire destroyed the grandstand and the clubhouse at Wheeling Downs. Prior to the fire Sportservice operated two kitchens in the clubhouse which served two dining areas, six concession stands in the grandstand, and a track kitchen and dining area for the use of the track employees.

After the fire, no racing was held at Wheeling Downs for the next five years. However, by January, 1968 Wheeling Downs had constructed a new structure which was completely enclosed. Wheeling Downs offered a kitchen area and dining area to Sportservice and asked Sportservice to provide food service. Sportservice replied that the area was not large enough to serve a sufficient number of patrons to justify the installation of the equipment which would be necessary to provide the type of service that Wheeling Downs wanted. The vast correspondence in the record between the parties between 1968 and 1970 reveals that Wheeling Downs wanted Sportservice to provide service that was different in some respects because of the structural changes in the new building. However, Sportservice provided only a limited menu during the racing meets in 1968 and 1969 which consisted primarily of Finally, in December 1969, Wheeling Downs informed Sportservice that Wheeling Downs considered the concession instruments terminated and informed Sportservice that Wheeling Downs was going to install the necessary kitchen equipment and would operate the kitchen and dining areas itself. Immediately thereafter, Wheeling Downs instituted an action for declaratory judgment in the Circuit Court of Ohio County contending that the court should rule that the 1957 instruments were not binding upon the parties. Sportservice counterclaimed and asked for injunctive relief and that Wheeling Downs be required to specifically perform the agreements. The Circuit Court held the agreements were valid and binding and enjoined Wheeling Downs from interfering in any way with Sportservice rights under the agreements.

sandwiches and beverages. Sportservice refused to expand the menu to include full meals contending that because of the lack of service area it would not be feasible economically.

The main issue in the case at bar is whether the instruments or agreements involved are binding on the parties at the present time.

The six instruments, all of which were executed on December 13, 1957, were all related to various commercial operations at the Wheeling Downs track in Wheeling, West Virginia and were considered as one instrument and construed together by the trial court, apparently with the consent of the parties. The instruments were considered valid and binding by the parties from December 13, 1957 until December, 1962, when the fire destroyed the grandstand and clubhouse at Wheeling Downs. The parties did not operate under the instruments for a period of five years, during which time there was no racing at Wheeling Downs. The grandstand was rebuilt in 1967 with different structural changes being made. After the grandstand was rebuilt the parties were unable to agree on the type of food service that would be available to patrons. Sportservice refused to serve hot food and dinners in that area because, it contended, the area was too small for profitable service. Wheeling Downs insisted on such service and contended the area was adequate. After considerable negotiations between the parties, Wheeling Downs, under a provision in the concession instrument, notified Sportservice that the leases and agreements were terminated and that it was going to install the necessary equipment to operate the dining area and serve hot food in the area Sportservice would not agree to service.

Wheeling Downs contends that the trial court erred in not holding an evidentiary hearing and in not allowing the matter in controversy to be submitted to arbitration as provided in section 25 of the instrument. However, the record does not indicate that any...