THE BRUCE MCDONALD HOLDING COMPANY, DAVID B. MCDONALD LAND COMPANY, OAKLEY, LLC, S.E. MCDONALD, LLC, CB MORRIS, LLC, L.O.U., LLC, GLENN T. YOST, AS ATTORNEY-IN-FACT FOR ERNEST PHIPPS CREDIT SHELTER TRUST, AND CDC REAL ESTATE, LLC, Petitioners
ADDINGTON, INC., THE BRINK'S COMPANY AND PITTSTON COAL COMPANY, Respondents
Submitted: February 12, 2019
from the Circuit Court of Logan County Honorable James H.
Young, Jr., Judge Civil Action No. 16-C-70
A. Glasser, Esq. Sharon F. Iskra, Esq. Bailey & Glasser
LLP Charleston, West Virginia Nicholas S. Johnson, Esq.
Bailey & Glasser LLP Washington, DC Attorneys for
P. George, Esq. Jennie O. Ferretti, Esq. George &
Lorensen Charleston, West Virginia Attorneys for Respondent
Pittston Coal Company
M. Persinger, III, Esq. Persinger & Persinger, LLC
Charleston, West Virginia Counsel for Amicus Curiae WV Land
& Mineral Owners Association
Henry Jernigan, Jr., Esq. Alexander C. Ward, Esq. Dinsmore
& Shol Charleston, West Virginia Wade W. Massie, Esq.
Penn, Stuart & Eskridge Abingdon, Virginia Attorneys for
Respondents Addington, Inc. and The Brink's Company
"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 Dev. Co. v. United Fuel Gas
Co., 147 W.Va. 484, 128 S.E.2d 626 (1962).
"As with other contracts, the language of a lease
agreement must be considered and construed as a whole, giving
effect, if possible, to all parts of the instrument.
Accordingly, specific words or clauses of an agreement are
not to be treated as meaningless, or to be discarded, if any
reasonable meaning can be given them consistent with the
whole contract." Syllabus point 3, Moore v. Johnson
Serv. Co., 158 W.Va. 808, 219 S.E.2d 315 (1975).
"The common-law doctrine of waiver focuses on the
conduct of the party against whom waiver is sought, and
requires that party to have intentionally relinquished a
known right. A waiver may be express or may be inferred from
actions or conduct, but all of the attendant facts, taken
together, must amount to an intentional relinquishment of a
known right. There is no requirement of prejudice or
detrimental i reliance by the party asserting waiver."
Syllabus point 2, Parsons v. Halliburton Energy Servs.,
Inc., 237 W.Va. 138, 785 S.E.2d 844 (2016).
essential elements of the doctrine of waiver are: (1) the
existence of a right, advantage, or benefit at the time of
the waiver; (2) actual or constructive knowledge of the
existence of the right, advantage, or benefit; and (3)
intentional relinquishment of such right, advantage, or
"Collateral estoppel will bar a claim if four conditions
are met: (1) The issue previously decided is identical to the
one presented in the action in question; (2) there is a final
adjudication on the merits of the prior action; (3) the party
against whom the doctrine is invoked was a party or in
privity with a party to a prior action; and (4) the party
against whom the doctrine is raised had a full and fair
opportunity to litigate the issue in the prior action."
Syllabus point 1, State v. Miller, 194 W.Va. 3, 459
S.E.2d 114 (1995).
"The laws which subsist at the time and place where a
contract is made and to be performed enter into and become a
part of it to the same extent and effect as if they were
expressly incorporated in its terms." Syllabus point 1,
Franklin Sugar Ref. Co. v. Martin-Nelly Grocery Co.,
94 W.Va. 504, 119 S.E. 473 (1923).
"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." Syllabus point 3, Cotiga Dev. Co. v. United
Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962).
Petitioners brought this appeal from an August 25, 2017
summary judgment order of the Circuit Court of Logan
County. The Petitioners filed an action against
the Respondents based upon a coal lease agreement between the
parties. The circuit court granted summary judgment
against the Petitioners after concluding (1) the Respondents
had no obligation to diligently mine coal; and (2) the
Respondents did not have to make royalty payments based upon
comparable sales by other mining companies. Additionally, the
circuit court granted summary judgment against the
Respondents' counterclaim. The counterclaim sought
damages for Petitioners' refusal to consent to an
assignment or sublease of the coal lease, and damages for
alleged tortious interference with an asset agreement
Respondents had with another company. In this appeal, both
parties assign error to the dismissal of their respective
claims. Upon careful review of the briefs, the appendix
record, the arguments of the parties, and the applicable
legal authority, we affirm.
AND PROCEDURAL HISTORY
19, 1978, the Petitioners executed a coal lease agreement
with the Respondents. The lease permitted the Respondents to
mine coal on roughly 3, 300 acres of coal lands owned by the
Petitioners in the Huff Creek area of Logan County, West
Virginia. The lease required the Respondents to make
royalty payments to the
Petitioners. Specifically, under the
lease, royalty payments were set to commence in the fifth
year of the lease, with a minimum royalty payment due each
year of the lease, even if the Respondents did not mine coal.
Pursuant to the lease, the minimum royalty payments increased
the sixth, seventh, eighth, ninth and tenth years of the
lease. In the eleventh year of the lease and
thereafter, the annual minimum royalty returned to the amount
required under the fifth year of the lease.
of 1984, the Respondents gave notice to the Petitioners that
they intended to terminate the lease and file an arbitration
proceeding to determine whether the coal was merchantable and
mineable. Subsequent to the notice of termination,
the Petitioners filed three civil actions against the
Respondents in circuit court. The Petitioners sought to
preclude arbitration and to recover unpaid rent and royalty
payments. The three civil actions were consolidated
in the Logan County circuit court. In an order entered on
May 31, 1988, the circuit court found that the Respondents
owed the Petitioners rent and royalty for the years 1984,
1985, 1986 and 1987. The order indicated that a hearing would
be held later to determine the amount of rent and royalty
subsequent order dated November 1, 1988, the circuit court
determined the amount of rent and royalty owed. The second
order found that the Respondents owed annual rent of $60,
000.00 for each of the years 1984, 1985, 1986 and 1987. The
order further found that the determination of the minimum
annual royalty payment under the lease was ambiguous because
the Respondents did not mine and sell any coal under the
lease. The order found that a strict application of the terms
of the lease would result in the Respondents not having to
pay any royalty to the Petitioners, because no coal was
mined. The order addressed the dilemma and the solution as
Article XIII of the subject Lease provides that minimum
annual tonnage royalties shall be paid, whether the coal is
mined or not. It further provides that minimum royalties for
unmined coal are to be based upon the actual sales prices of
like quality coal sold "from the same preparation plant
from which Lessors' said coal, hereby leased, was
sold." Inasmuch as there was no "preparation plant
from which Lessors' said coal, hereby leased, was
sold" (there having been no production whatever of
Lessors' coal by Lessee), a strict interpretation of the
language of said Article XIII of the Lease, standing alone,
would result in a finding for Defendants that no minimum
tonnage royalty is payable. However, the purpose and intent
of the language used, gathered from the subject Article and
Lease as a whole, is to define damages and not eliminate
damages, as urged by the Defendants. . . .
1. Therefore, the Court finds that Defendants should not be
relieved of the obligation to pay minimum annual tonnage
royalty but that such royalty shall be fixed at the minimum
amount provided by Article VIII of the Lease, which is Two
Dollars ($2.00) per ton.
2. Defendants owe to Plaintiffs Two Dollars ($2.00) per ton
of 2, 000 pounds of coal for minimum royalties for the lease
years ending, and payable on June 19th of 1984, 1985, 1986,
and 1987, as follows:
a. June 19, 1984, Five Hundred Thousand Dollars ($500,
000.00); b. June 19, 1985, Six Hundred Thousand Dollars
($600, 000.00); c. June 19, 1986, Seven Hundred Thousand
Dollars ($700, 000.00);
d. June 19, 1987, Eight Hundred Thousand Dollars ($800,
Respondents appealed the circuit court's order, but this
Court denied the petition for appeal. The Petitioners did not
the circuit court's order of November 1, 1988, the
Respondents continued to fail to mine any coal under the
lease. Instead, the Respondents paid the annual minimum
royalty of $500, 000.00 to Petitioners. This amount was based
upon the lease's annual minimum coal production of 250,
000 tons,  multiplied by the $2.00 per ton
requirement set by the circuit court for periods when there
were no sales of comparable coal by the Respondents. The
Petitioners accepted the minimum royalty payments made each
year by the Respondents until 2016.
Petitioners rejected the Respondents' 2016, royalty
payment and filed the instant action on March 21,
2016. The Petitioners' complaint sought
(1) a declaratory judgment that the Respondents had a duty to
diligently mine coal; (2) damages for breach of the duty to
diligently mine coal; (3) declaratory judgment that
Respondents had to pay annual minimum royalties based on
comparable sales by other coal companies; and (4) damages for
breach of the duty to pay royalty based on comparable sales.
The Petitioners also filed an amended complaint in December
of 2016, seeking damages for alleged tortious interference
with the performance under the coal lease. The Respondents
filed a counterclaim alleging the Petitioners wrongfully
refused consent to an assignment of the coal lease, and
tortuously interfered with an asset agreement they had with
another company. After a period of discovery, the circuit
court granted summary judgment against the Petitioners'
claims and summary judgment against the Respondents'
proceeding, we are called upon to review a summary judgment
order of the circuit court. "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). We have long recognized that "[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
& Surety Co. v. Federal Insurance Co. of New York,
148 W.Va. 160, 133 S.E.2d 770 (1963).
it is well recognized that "[t]he interpretation of [a]
contract, including the question of whether the contract is
ambiguous, is a legal determination that, like a lower
court's grant of summary judgment, shall be reviewed
de novo on appeal." Syl. pt. 2, Riffe v.
Home Finders Assocs. Inc., 205 W.Va. 216, 517 S.E.2d 313
(1999). Mindful of the de ...