Dennis Corporation, Plaintiff/Counterclaim Defendant Below, Petitioner
CPB, LLC, Defendant/Counterclaim Plaintiff Below, Respondent
and Plaintiff below Dennis Corporation, by counsel Timothy P.
Rosinsky, appeals the December 4, 2015, and August 31, 2016,
orders of the Circuit Court of Putnam County that,
respectively, granted summary judgment in favor of Respondent
and Defendant below CPB, LLC, and awarded damages.
Respondent, by counsel Richard E. Holtzapfel and Andrew F.
Workman, filed a response in support of the circuit
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
January 16, 2009, the parties entered into a lease agreement
pursuant to which petitioner, an engineering consulting firm,
agreed to rent from respondent 1, 400 square feet of office
space/business property located in the Clyffside Professional
Building in Putnam County, West Virginia. The lease provided
for an initial three year term, beginning on January 20,
2009, and expiring at midnight on January 19, 2012. Under the
lease, petitioner agreed to pay $2, 000 per month, due and
payable in advance on or before the first of each month.
lease also included an option to renew for an additional
three-year term subject to certain requirements, including
that, if petitioner (Tenant) elects to exercise the option to
renew, it shall give written notice to respondent (Landlord)
of such election at least ninety days before the date of the
lease's expiration. Additionally, the lease included a
clause that adjusts the amount of the base rent based upon
the "Consumer Price Index for All Urban Consumers"
("CPI") annual average for the year 2007 should
petitioner elect to exercise the renewal option.
December 28, 2011, respondent's owner, David Tabor, sent
an e-mail to petitioner's Division Manager, Travis
Miller, regarding the renewal option. Mr. Tabor's e-mail
referenced "the parts out of the lease that pertain to
renewal"-that is, the paragraphs indicating (1) that the
lease term is three years, (2) that petitioner has the option
to renew, and (3) that the rent will be adjusted upon renewal
based upon the CPI annual average for the year 2007. Mr.
Tabor's e-mail also noted that, under the terms of the
lease, petitioner should have, but did not, provide written
notice of intent to renew by October 19, 2011, which was
approximately ninety days prior to the expiration of the
lease. Nonetheless, Mr. Tabor advised that "[r]egardless
of the technicalities I am fine with a simple note indicating
Dennis's intent to renew for another three year
term." He proposed that they renew the lease "for 3
years, (nothing to sign or execute) but agree to a 10% rent
increase (closer to the 2008 CPI) for a new rent . . . of
$2200 per month."
January 2, 2012, Mr. Miller forwarded Mr. Tabor's e-mail
to Petitioner Mo Denny, who, by e-mail on January 3, 2012,
responded that "[a] 10 percent increase for the 3 year
period of lease renewal is agreeable. . . . Please contact
David that we do want to continue our lease." By e-mail
of January 9, 2012, Mr. Miller advised Mr. Tabor that it
"[s]ounds good to us. Let me know if you need me to do
the expiration of the initial lease, petitioner remained on
the premises and began paying the new rental rate of $2, 200
per month, as agreed to by the parties. The parties agree
that petitioner got behind a number of times on its rent
payments but, for the most part, was able to catch up on
payments throughout 2012 and 2013. On January 17, 2014, Mr.
Tabor sent a letter to petitioner's owner, Dan Dennis,
and Mr. Miller concerning overdue rent, requesting that
petitioner timely remit monthly rent payments during 2014
20, 2014, due to petitioner's continued delinquency in
payment, respondent's counsel gave written notice to
petitioner that "[i]f all outstanding balances due are
not paid in full by no later than 5 pm on Friday, May 30,
2014, CPB will have to consider exercising its explicit
contractual right to re-enter and take possession of the
Premises and alter locks to prevent access to the Premises,
which can be done without terminating the lease."
13, 2014, with rent payments still delinquent,
respondent's counsel advised petitioner that, pursuant to
the parties' lease, it was "exercising its explicit
contractual right to re-enter and take possession of the
Premises and alter locks to prevent access to the
Premises." Attempts thereafter to negotiate a resolution
were unsuccessful. On July 31, 2014, respondent advised
petitioner that its lease was terminated and that it had
secured a new tenant to mitigate its damages. The following
day, respondent informed petitioner that it removed
petitioner's property from the premises.
thereafter filed a Verified Petition for Preliminary
Injunctive Relief and Complaint for Damages in the Circuit
Court of Putnam County alleging that respondent wrongfully
locked it out and seized its personal property. Respondent
filed a response in opposition to the petition for
preliminary injunction, an answer, affirmative defenses, and
a counterclaim. Petitioner then filed affirmative defenses
and an answer to respondent's counterclaim. Following a
hearing on petitioner's petition for injunctive relief,
the circuit court ordered that respondent deliver possession
of all personal property to petitioner immediately and that
petitioner post a $10, 000 cash or surety bond. At the
conclusion of discovery, respondent filed a motion for
summary judgment on all claims, including its counterclaim
hearing on respondent's motion for summary judgment was
conducted on November 20, 2015. Petitioner filed a response.
By order entered December 4, 2015, the circuit court granted
respondent's motion, holding that evidence of
petitioner's conduct clearly showed its intention to
renew the lease and established that petitioner and
respondent "mutually assented to the term of the lease
as offered and understood by [respondent]." The court
further held that petitioner's "payment of the
increased rent pursuant to the rent escalation clause
constituted an affirmative act of its intent to renew the
lease and an acceptance of its terms." (Footnote
omitted). The circuit court concluded that respondent
properly exercised its contractual right to re-take the
premises following petitioner's default on rent payments.
subsequent order entered August 31, 2016, following a
separate hearing on damages,  the court awarded respondent the
following: (1) unpaid rent in the amount of $7, 722.58; (2)
unpaid late fees in the amount of $1, 320; (3) interest
accrued at the 10% contractual rate; and (4) attorney's
fees and expenses totaling $33, 797.78, plus any
additional fees and expenses incurred with regard to the
January 29, 2016, hearing. Finally, the circuit court ordered
that respondent "shall be entitled to the $10, 000 cash
bond posted by [petitioner]." This appeal followed.
begin with a review of the December 4, 2015, summary judgment
order that concluded that, as a matter of law, the parties
renewed the initial lease in its entirety. We review
petitioner's appeal of this order de novo.
See Syl. Pt. 1, Painter v. Peavy, 192 W.Va.
189, 451 S.E.2d 755 (1994). (holding that "[a] circuit
court's entry of summary judgment is reviewed de
novo."). Under Rule 56(c) of the West Virginia
Rules of Civil Procedure, summary judgment should be granted
"where the moving party shows by 'the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, . . . that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter ...