Wilkinson v. Searls

• Decision Date: 23 November 1971
• Docket Number: No. 13064,13064
• Citation: 155 W.Va. 475,184 S.E.2d 735
• Court: West Virginia Supreme Court
• Parties: J. E. WILKINSON v. Ada SEARLS.

Page 735

184 S.E.2d 735

155 W.Va. 475

J. E. WILKINSON v.Ada SEARLS.

No. 13064.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 21, 1971.

Decided Nov. 23, 1971.

Syllabus by the Court

1.'Extrinsic evidence of statements and declarations of the parties to an unambiguous written contract occurring contemporaneously with or prior to its execution is inadmissible to contradict, add to, detract from, vary or explain the terms of such contract, in the absence of a showing of illegality, fraud, duress, mistake or insufficiency of consideration.'Point 1 Syllabus, Kanawha Banking and Trust Company v. Gilbert, 131 W.Va. 88(46 S.E.2d 225).

2.'An unambiguous written contract entered into as the result of verbal or written negotiations will, in the absence of fraud or mistake, be conclusively presumed to contain the final agreement of the parties to it, and such contract may not be varied, contradicted or explained by extrinsic evidence of conversations had or statements made contemporaneously with or prior to its execution.'Point 2 Syllabus, Kanawha Banking and Trust Company v. Gilbert, 131 W.Va. 88(46 S.E.2d 225).

3.'When a written contract is clear and unambiguous its meaning and legal effect must be determined solely from its contents and it will be given full force and effect according to its plain terms and provisions.Extrinsic evidence of the parties to such contract, or of other persons, as to its meaning and effect will not be considered.'Point 3 Syllabus, Kanawha Banking and Trust Company v. Gilbert, 131 W.Va. 88(46 S.E.2d 225).

4.'An appellant or plaintiff in error must carry the burden of showing error in the judgment of which he complains.This Court will not reverse the judgment of a trial court unless error affirmatively appears from the record.Error will not be presumed, all presumptions being in favor of the correctness of the judgment.'Point 4 Syllabus, Pozzie v. Prather, 151 W.Va. 880(157 S.E.2d 625).

5.A motion for a summary judgment should be granted if the pleadings, exhibits and discovery depositions upon which the motion is submitted for decision disclose that the case involves no genuine issue as to any material fact and that the party who made the motion is entitled to a judgment as a matter of law.

Martorella & Cohen, Joseph G. Martorella, J. J. N. Quinlan, James E. Nelson, Huntington, for appellant.

William Jack Stevens, Hamlin, for appellee.

CALHOUN, Judge:

This case, on appeal from a final judgment of the Circuit Court of Lincoln County, involves a civil action instituted in that court by J. E. Wilkinson, as the plaintiff, against Ada Searls, as the defendant, for recovery of rent alleged to be owed to the plaintiff by the defendant pursuant to the terms of a written lease agreement by which the plaintiff leased to the defendant certain real estate.

By an order entered on September 15, 1970, the trial court awarded a summary judgment in favor of the plaintiff and against the defendant in the amount of $700, representing rent for four months at the monthly rate of $175 specified in the lease agreement.From that judgment, Ada Searls was granted the appeal to this Court.

While the case was pending on appeal, the Court granted to Ada Searls leave to move to reverse the judgment of the trial court pursuant to the provisions of Code, 1931, 58--5--25 and Rule IX of the Rules of this Court.The case was submitted for decision upon the original record made in the trial court; upon the motion to reverse and upon typewritten briefs and oran argument of counsel.

The basic question presented for decision on this appeal is whether the trial court was justified in holding, pursuant to R.C.P. 56, that the case involved no genuine issue of material fact and that the plaintiff was entitled to judgment against the defendant for $700 as a matter of law.No question has been raised concerning the correctness of the amount of the judgment.

A copy of the lease agreement was filed as an exhibit with and made a part of the complaint.The complaint, which was filed on February 5, 1970, alleged that the lease agreement, dated September 7, 1967, was 'made and entered into' by the parties and that rent for the months of January and February, 1970, at the monthly rate of $175 was then 'past due.'Accordingly the plaintiff, by the complaint, demanded 'judgment of and from the defendant in the sum of $350.00 with interest and costs.

The written lease agreement bears the signature of J. E. Wilkinson, designated as the party of the first part, and the signature of Ada Searls, designated as the party of the second part.By the terms of the lease agreement, J. E. Wilkinson leased to Ada Searls, for a period of four years, 'parcels of real estate situate in the Town of Hamlin' in Lincoln County, described in the lease agreement as follows: 'That certain two story frame building, and the small two story frame building, adjacent to the large frame building now * * * occupied by the second party as a rest home, known as HILL TOP REST HOME OR TOURIST HOME, including the furnishings therein, * * *.'The written lease agreement further provided for monthly rental of $125 for the larger building and $50 for the smaller building; and that the 'Second party shall pay for all utilities used by her on said leased premises.'The lease contained an additional provision as follows: 'Said premises are to be used as a rest home or for renting of rooms, and shall not be sublet or sub-rented without the written consent of the first party.'(Italics supplied.)

Neither the original answer nor the amended and supplemental answer to the complaint expressly affirmed or denied the making and execution of the written lease agreement previously referred to in this opinion.Neither of these two pleadings filed in behalf of the defendant made any reference whatsoever to the written lease agreement upon which the plaintiff's complaint was based.The amended and supplemental answer alleged, as the first ground of defense, that the complaint failed to state a cause of action upon which relief could be granted.

As a second ground of defense, the defendant alleged in her amended and supplemental answer that leases were 'entered into between the parties hereto,' on August 14, 1964, on April 1, 1965, and on December 14, 1966, each for a period of one year.In that connection, the defendant made the following allegation: '* * * it was distinctly understood and was so used by the defendant, with the knowledge and consent of the plaintiff, as a rest and nursing home, and that because of the failure of the plaintiff to comply with the laws of the State of West Virginia in regard to making the premises suitable for said rest or nursing home it became necessary for her to vacate the said premises, which she did after notifying the plaintiff of her intention to do so.'The allegation quoted immediately above leaves something to be desired from the standpoint of clarity and specificity.

As a third ground of defense, the defendant made the following allegation in her amended and supplemental answer:

'That the premises were unfit legally for the purpose for which they were rented and that the plaintiff promised to correct the premises to comply with the laws of the State of West Virginia in regard to a nursing home or rest home.All of the said leases were entered into by plaintiff's inducements and because of such representations by the plaintiff.'(Italics supplied.)

As a fourth ground of defense, the amended and supplemental answer contains the following language:

'This defendant, for further answer, says the plaintiff is an experienced lawyer, practicing in the Town of Hamlin, and other cities and towns in the State of West Virginia, and this defendant is without much formal education, and The so-called leases and agreements were drawn by the plaintiff in his office, and this defendant had no advice of counsel at any time during the tenure of Said leases, or any of them, and that the plaintiff was attorney for defendant during this period of time.'(Italics supplied.)

By agreement of counsel for the parties, the plaintiff, J. E. Wilkinson, took the discovery deposition of Ada Searls, the defendant, at the courthouse in Hamlin, in Lincoln County, during the afternoon of March 12, 1970.Later, during that afternoon and at the same place, the defendant, Ada Searls, took the discovery deposition of J. E. Wilkinson, the plaintiff.Counsel for the parties were present and participated in the taking of these depositions.

The plaintiff's motion for summary judgment was made in the following language: 'To grant the plaintiff summary judgment in his favor for the reason that under the provisions of that certain Lease Agreement between the parties, which Lease Agreement is attached hereto as Exhibit A, there exists no genuine issue of fact as to any material matter as the said Lease Agreement was duly signed by the party to be charged, and is legally sufficient under the laws of the State of West Virginia.'The language of the motion tends to indicate that it was based on the proposition that the terms of the lease agreement are clear and unambiguous and that the clearly expressed terms thereof are binding upon the parties.

Notice was served by counsel for the plaintiff upon counsel for the defendant that the motion for summary judgment would be brought on for hearing before the trial court at three o'clock of the afternoon of March 12, 1970.During the afternoon of that day, the parties appeared in person and by counsel in connection with the taking of the discovery depositions of the parties.

The judgment order, entered by the trial court on September 15, 1970, recites that, on that day, the plaintiff appeared in person and by counsel and Moved the court for the entry of an order granting a summary judgment in favor of the plaintiff.The order further recites that a hearing on the motion for a summary judgment had...