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 Brinks Company and Pittston Coal Company, Respondents
February 12, 2019
Dissenting Opinion of Justice Jenkins April 22, 2019
Syllabus by the Court
"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 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).
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
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 Brinks, Company
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.
FACTUAL 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 owed.
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 ($
b. June 19, 1985, Six Hundred Thousand Dollars ($
c. June 19, 1986, Seven Hundred Thousand Dollars ($
d. June 19, 1987, Eight Hundred Thousand Dollars ($
Respondents appealed the circuit courts order, but this
Court denied the petition for appeal. ...