IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

September 2014 Term 

_____________ 

No. 13-0926 

_____________ 

JERRY N. BLACK, M.D., 

Defendant Below, Petitioner 

v. 

ST. JOSEPH’S HOSPITAL OF BUCKHANNON, INC., 

Plaintiff Below, Respondent 

____________________________________________________________ 

Appeal from the Circuit Court of Upshur County 

The Honorable John L. Henning, Jr., Judge 

Civil Action No. 12-C-52 

AFFIRMED IN PART; REVERSED IN PART; and REMANDED 

____________________________________________________________ 

Submitted: September 3, 2014 

Filed: September 30, 2014 

J. Burton Hunter, III, Esq. 

J. Burton Hunter, III and Associates, PLLC 

Buckhannon, West Virginia 

Counsel for the Petitioner 

 Marc E. Williams, Esq. 

 Robert M. Sellards, Esq. 

 Kelly Calder Mowen, Esq. 

 Nelson Mullins Riley & Scarborough, LLP

 Huntington, West Virginia 

 Counsel for the Respondent 

JUSTICE KETCHUM delivered the Opinion of the Court. 

FILED 

September 30, 2014 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
SYLLABUS BY THE COURT 

“An option given for the sale of land, supported by a valuable 

consideration, is not a sale of real estate, nor an agreement to sell, but is an executed 

contract, giving the optionee the exclusive privilege of purchasing within the time 

limited, and which cannot be withdrawn during the time stipulated for; and upon 

acceptance within that time it becomes an executory contract for the sale of land, which 

may be specifically enforced in a proper case.” Syllabus Point 2, Pollock v. Brookover, 

60 W.Va. 75, 53 S.E. 795 (1906). 
1 

Justice Ketchum: 

Petitioner/defendant below, Dr. Jerry N. Black (“Dr. Black”), appeals from 

an order of the Circuit Court of Upshur County granting summary judgment in favor of 

respondent/plaintiff below, St. Joseph’s Hospital of Buckhannon, Inc. (“hospital”). The 

hospital filed a complaint for declaratory judgment asking the circuit court to declare that 

an “Option to Repurchase” agreement it entered into with Dr. Black was an option 

contract rather than a “right of first refusal.” The hospital’s complaint did not seek a 

determination of whether the “Option to Repurchase” agreement was a valid option 

contract or a determination of the time frame in which it could exercise the option. 

At the summary judgment hearing, both parties agreed that the “Option to 

Repurchase” agreement was, in fact, an option contract. During the hearing, counsel for 

Dr. Black stated that the actual disagreement between the parties concerned the time 

frame in which the option could be exercised. The circuit court stated, “That’s not part of 

the case . . . . I’m not deciding that one way or the other. Please prepare an Order which 

says that the matter was determined by the Court to be an option contract . . . that is the 

sole question decided by this Court.” Following this hearing, counsel for the hospital 

prepared an order stating that the “Option to Repurchase” agreement is an option 

contract, but added that the “Option Contract is a valid Option Contract under West 

Virginia law.” (Emphasis added). The circuit court entered the order prepared by the 

hospital, over Dr. Black’s objection, on August 8, 2013. 
2 

On appeal, Dr. Black argues that the validity of the option contract was not 

an issue before the circuit court. Dr. Black states that the hospital’s complaint for 

declaratory judgment only sought a determination of whether the “Option to Repurchase” 

agreement was an option contract rather than a “right of first refusal.” Because the 

validity of the option contract was outside the scope of the hospital’s complaint, 

according to Dr. Black, he asks that we reverse the summary judgment order’s ruling that 

“[the] Option Contract is a valid Option Contract under West Virginia law.” 

After review, we find that the hospital’s complaint for declaratory judgment 

did not seek a determination of the validity of the option contract or a determination of 

the time frame in which the option could be exercised. It only sought a determination of 

whether the “Option to Repurchase” agreement was an option contract rather than a 

“right of first refusal.” Further, the circuit court’s announced decision at the summary 

judgment hearing made no ruling on the validity or time frame in which the option 

contract could be exercised. Instead, the circuit court stated that the “sole issue” it 

decided was that the “Option to Repurchase” agreement was an option contract. We 

therefore reverse the ruling contained in the circuit court’s summary judgment order that 

the “Option Contract is a valid Option Contract under West Virginia law.” We affirm the 

order’s ruling that the “Option to Repurchase” agreement is an option contract. 
3 

I.

FACTUAL AND PROCEDURAL BACKGROUND 

On June 3, 1982, Dr. Black and the hospital entered into a “Memorandum 

Agreement” in which the hospital agreed to deed certain real property to Dr. Black upon 

which he would construct a building, at his own expense, to serve as the location for his 

medical practice.1

 The “Memorandum Agreement” contains the following provision: 

“Hospital . . . is hereby granted the first option to purchase the land for the sum of $1.00 

and the Physicians Office Building pursuant to the terms and conditions shown on the 

option agreement attached hereto[.]”2

 The attached agreement is entitled “Option to 

Repurchase.” It states that Dr. Black does “hereby grant to Hospital the first option to 

purchase the premises known as Physicians Office Building . . . This option shall expire 

 1

 This property is located in Upshur County, West Virginia, and contains 13,069 

square feet. The “Memorandum Agreement” includes the following: 

 Physician [Dr. Black] agrees that the Unit within the 

building will be used and occupied only by members of the 

medical, surgical and oral surgical staff at St. Joseph’s 

Hospital hereinafter referred to Physician. In addition, only 

those activities reasonably related to the practice of Physician 

shall be permitted in the Unit provided and further, only if 

such activities are performed in conjunction with or are 

supportive of the practice of the Doctors. 

2

 The terms and conditions state “[t]he purchase price shall be the sum of One 

Dollar ($1.00) and the fair market value for the building . . . as determined by three 

arbitrators.” 
4 

at noon on June 3, 2081 unless otherwise extended by the operation of this agreement or 

consent of the parties hereto[.]” 

The “Option to Repurchase” agreement contains one paragraph addressing 

the notice the hospital must provide to Dr. Black prior to exercising the option and one 

paragraph addressing the time period during which the hospital can exercise the option. 

Paragraph three of the “Option to Repurchase” agreement, entitled “Notice of Exercise,” 

provides, in relevant part, “This option shall be exercised by written notice signed by St. 

Joseph’s and sent by registered mail at least one year prior to the expiration date [June 3, 

2081].” (Emphasis added). Paragraph five of the agreement, entitled “Time During 

Which Option May Be Exercised,” states, in relevant part, “This first option will be 

exercised by giving written notice as set forth in paragraph 3 herein which notice can 

only be given at any time within one year prior to the date of the expiration of this 

Option[.]” (Emphasis added). 

The hospital filed a complaint for declaratory judgment against Dr. Black 

on April 20, 2012.3

 The complaint alleges that “Dr. Black refuses to recognize St. 

Joseph’s Hospital’s Option to Repurchase but instead considers the same to be a right of 

first refusal. Due to Dr. Black’s incorrect legal position, a justiciable controversy now 

exists between the parties herein.” The complaint goes on to allege that 

 3

 The hospital’s complaint for declaratory judgment was filed pursuant to the West 

Virginia Uniform Declaratory Judgment Act, W.Va. Code § 55-13-1 [1941], et seq. 
5 

Dr. Black has taken the position that St. Joseph’s Hospital 

cannot exercise its executed option contract until an offer is 

made to a bona fide purchaser. This is an incorrect statement 

of law as St. Joseph’s Hospital clearly possesses an executed 

option contract that can be exercised at any point within the 

agreed-upon time frame regardless of the existence of a bona 

fide purchaser. 

Based on this allegation, the hospital’s complaint seeks the following relief: 

 A declaration that Plaintiff [hospital] possesses an 

executed option contract that can be exercised by the 

optionee, Plaintiff [hospital], at any point within the agreedupon time frame and without the need for any condition 

precedents to be met. 

 The hospital’s complaint for declaratory judgment does not ask for a 

determination of when the “agreed-upon time frame” occurs under the terms of the 

“Option to Repurchase” agreement. Instead, the complaint for declaratory judgment only 

asks the circuit court to declare that the “Option to Repurchase” is an option contract. 

 On April 25, 2013, the hospital filed a motion for summary judgment 

asserting that the “Option to Repurchase” agreement is an option contract. The circuit 

court4

 held a hearing on this motion on June 21, 2013. At this hearing, counsel for the 

hospital stated that it was only seeking a determination of whether the “Option to 

Repurchase” agreement was an option contract or a “right of first refusal,” nothing more. 

Counsel for the hospital stated: 

 4

Judge Thomas H. Keadle entered an order denying a motion to dismiss filed by 

Dr. Black. Judge Keadle retired on January 31, 2013. Judge John L. Henning, Jr., 

presided over the summary judgment hearing. 
6 

[W]e brought before the Court a complaint for declaratory 

judgment and we simply ask the Court, “Is the document an 

option contract or a right of first refusal?” Nothing more. We 

didn’t ask when it could be exercised, we didn’t ask for the 

interpretation of it, we just asked the Court to tell us whether 

it was or wasn’t [an option contract]. 

(Emphasis added). 

 Counsel for Dr. Black told the court that he did not dispute that the “Option 

to Repurchase” agreement was an option contract. However, counsel for Dr. Black 

stated, “[W]hat I want to tell the Court is that the real issue in this case is whether St. 

Joseph’s can exercise that option now or during the last year of a 99-year term[.]”5

 

Following this statement, the circuit court engaged in the following dialogue with Dr. 

Black’s counsel: 

 Circuit Court: So you are saying that you agree with them that it’s an 

 option contract? 

 Counsel: Always have. 

 Circuit Court: Period. Done deal. Case dismissed. Right? 

 Counsel: Well, if that’s what they’re saying. But it’s our 

 understanding – 

 5

 Dr. Black states that under the plain language of paragraph five of the “Option to 

Repurchase” agreement, the option can only be exercised “at any time within one year 

prior to the date of the expiration of this Option.” By contrast, Dr. Black states that the 

hospital contends that it may exercise the “Option to Repurchase” at any time prior to one 

year before the date of the expiration of the “Option to Repurchase.” Stated another way, 

Dr. Black argues that the hospital can only exercise its option between June 3, 2080, and 

June 3, 2081; whereas the hospital believes it can exercise its option at any time prior to 

June 3, 2080, one year before the option expires. 
7 

 Circuit Court: That’s what they are saying and they are saying you 

 agree with them. 

 Counsel: As far as it goes. 

 Circuit Court: And that’s all they want to know. 

 Counsel: And if they are not seeking a ruling on whether they 

 can exercise that option now, go on record saying that 

 if they try, we’ll resist it. 

 Circuit Court: That’s not part of the case. That’s not part of the case. 

 . . . I’m not deciding that one way or the other. Please 

 prepare an Order which says that the matter was 

 determined by the Court to be an option 

 contract. 

 The circuit court ordered counsel for the hospital to prepare the order 

granting summary judgment in the hospital’s favor. The circuit court stated, “Please 

prepare an order which says that the matter was determined by the Court to be an option 

contract.” The circuit court also stated that its ruling that the “Option to Repurchase” 

agreement was an option contract “is the sole question decided by this Court.” 

 Following the summary judgment hearing, counsel for the hospital prepared 

an order that contained two paragraphs under the heading “Findings of Fact and 

Conclusions of Law.” Those two paragraphs are as follows: 

 1. Defendant [Dr. Black] entered into an Option 

Contract with Plaintiff [hospital] dated June 3, 1982. This 

option contract has been recorded at Book 306 Page 140-143. 

 2. The June 3, 1982 Option Contract is a valid 

Option Contract under West Virginia law. 
8 

 On July 2, 2013, Dr. Black filed an objection to the hospital’s proposed 

order, arguing that the word “valid” preceding “option contract” in paragraph two was 

improperly inserted into the order. Dr. Black maintained that the circuit court 

specifically did not rule on the validity or time period during which the hospital could 

exercise its option. Further, Dr. Black stated that the “wording of the proposed order 

should simply say the document entitled ‘option contract’ of the parties is an option 

contract. This Court did NOT rule on its validity, the meaning of its notice terms, or its 

enforceability.” 

 The circuit court entered the order prepared by counsel for the hospital, 

over Dr. Black’s objection, finding the agreement was a “valid” option contract.6

 Dr. 

Black subsequently filed the present appeal. 

II.

STANDARD OF REVIEW 

 Dr. Black appeals the circuit court’s order granting summary judgment in 

favor of the hospital. Our standard of review of a circuit court’s entry of summary 

 6

 It appears that the circuit court did not conduct a hearing on Dr. Black’s motion 

objecting to the hospital’s proposed order. Similarly, the appendix-record does not 

contain a circuit court order denying Dr. Black’s motion objecting to the hospital’s 

proposed order. The hospital’s brief states “the Circuit Court, after consideration of Dr. 

Black’s objections to the proposed order granting summary judgment . . . adopted [the 

hospital’s] proposed order[.]” 
9 

judgment is de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 

(1994). We have held 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.” Syllabus Point 3, Aetna 

Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). 

Further, 

[s]ummary judgment is appropriate where the record taken as 

a whole could not lead a rational trier of fact to find for the 

nonmoving party, such as where the nonmoving party has 

failed to make a sufficient showing on an essential element of 

the case that it has the burden to prove. 

Syllabus Point 4, Painter, 192 W.Va. 189, 451 S.E.2d 755. 

 Additionally, in Syllabus Point 3 of Cox v. Amick, 195 W.Va. 608, 466 

S.E.2d 459 (1995), this Court noted, “A circuit court’s entry of a declaratory judgment is 

reviewed de novo.” More specifically, this Court stated in Cox that “because the purpose 

of a declaratory judgment action is to resolve legal questions, a circuit court’s ultimate 

resolution in a declaratory judgment action is reviewed de novo; however, any 

determinations of fact made by the circuit court in reaching its ultimate resolution are 

reviewed pursuant to a clearly erroneous standard.” Id. at 612, 466 S.E.2d at 463. 

 With the foregoing in mind, we consider the parties’ arguments. 
10 

III.

ANALYSIS 

A declaratory judgment action is a proper procedural means for 

adjudicating the legal rights of parties to a disputed contract. West Virginia Code § 55-

13-1 [1941] provides: 

Courts of record within their respective jurisdictions shall 

have power to declare rights, status and other legal relations 

whether or not further relief is or could be claimed. No action 

or proceeding shall be open to objection on the ground that a 

declaratory judgment or decree is prayed for. The declaration 

may be either affirmative or negative in form and effect; and 

such declarations shall have the force and effect of a final 

judgment or decree. 

Additionally, “[a]ny person interested under a . . . written contract, or other 

writings constituting a contract . . . may have determined any question of construction or 

validity arising under the . . . contract . . . and obtain a declaration of rights, status or 

other legal relations thereunder.” W.Va. Code § 55-13-2 [1941]. 

As Justice Cleckley explained in his concurring opinion in Cox v. Amick, 

195 W.Va. at 618, 466 S.E.2d at 469, the West Virginia Uniform Declaratory Judgment 

Act, W.Va. Code § 55-13-1, et seq., “is designed to enable litigants to clarify legal rights 

and obligations before acting upon them.” Thus, “the principal purpose of a declaratory 

judgment action is to resolve legal questions.” Joslin v. Mitchell, 213 W.Va. 771, 775, 

584 S.E.2d 913, 917 (2003). 

Turning to the present controversy, the hospital’s complaint for declaratory 

judgment asked the circuit court to declare that the “Option to Repurchase” agreement it 
11 

entered into with Dr. Black was an option contract rather than a “right of first refusal.”7

 

As this Court explained in Pollock v. Brookover, 60 W.Va. 75, 53 S.E. 795 (1906), an 

option contract 

is not a contract to sell, nor an agreement to sell, real estate, 

because there is no mutuality of obligation and remedy; but it 

is a contract by which the owner agrees with another person 

that he shall have the right to buy, within a certain time, at a 

stipulated price. It is a continuing offer to sell, which may or 

may not, with the time specified, at the election of the 

optionee, be accepted. The owner parts with his right to sell to 

another for such time, and gives to the optionee this exclusive 

privilege. It is the right of election to purchase, which has 

been bought and paid for, and which forms the basis of the 

contract between the parties. Upon the payment of the 

consideration, and the signing of the option, it becomes an 

executed contract - not, however, an executed contract selling 

the land, but the sale of the option, which is irrevocable by 

the optionor, and which is capable of being converted into a 

valid executory contract for the sale of land[.] 

Based on this discussion, the Court in Pollock held: 

An option given for the sale of land, supported by a 

valuable consideration, is not a sale of real estate, nor an 

 7

 This Court addressed the distinction between an option contract and a “right of 

first refusal” in Smith v. VanVoorhis, 170 W.Va. 729, 731, 296 S.E.2d 851, 853 (1982), 

stating: 

In a typical option the optionee has the absolute right 

to purchase something for a definite consideration. A preemptive right [right of first refusal] involves the creation of 

the privilege to purchase only on the formulation of a desire 

on the part of the owner to sell; and . . . the holder of the right 

must purchase for the price at which the owner is willing to 

sell to a third person. 
12 

agreement to sell, but is an executed contract, giving the 

optionee the exclusive privilege of purchasing within the time 

limited, and which cannot be withdrawn during the time 

stipulated for; and upon acceptance within that time it 

becomes an executory contract for the sale of land, which 

may be specifically enforced in a proper case. 

Syllabus Point 2, Id. Accord Syllabus Point 3, Am. Canadian Expeditions, Ltd. v. Gauley 

River Corp., 221 W.Va. 442, 655 S.E.2d 188 (2007). 

Both the hospital and Dr. Black agree that the “Option to Repurchase” 

agreement is an option contract. While conceding that the “Option to Repurchase” 

agreement is an option contract, Dr. Black argues that the option contract’s validity was 

not an issue in this case and should not have been included in the circuit court’s summary 

judgment order. In support of this argument, Dr. Black cites the circuit court’s statement 

at the summary judgment hearing that “the sole question decided by this Court” is that 

the “Option to Repurchase” agreement is an option contract. When counsel for Dr. Black 

stated that actual dispute between the parties was the time frame in which the option 

could be exercised, the circuit court stated: “That’s not part of the case. That’s not part of 

the case . . . I’m not deciding that one way or the other.” Further, Dr. Black notes that 

the circuit court instructed counsel for the hospital to prepare an order stating, “[T]he 

matter was determined by the Court to be an option contract.” The circuit court did not 

instruct counsel for the hospital to prepare an order stating that the matter was determined 

to be a valid option contract. Because the circuit court’s ruling was restricted to the sole 

question of whether the agreement was an option contract, Dr. Black argues that the 
13 

circuit court erred by entering an order containing the legal conclusion that the “Option to 

Repurchase” agreement is a valid option contract under West Virginia law. 

 By contrast, the hospital argues that the circuit court correctly determined 

that the “Option to Repurchase” agreement is an option contract. The hospital argues that 

the narrow question of law before the circuit court was only whether the “Option to 

Repurchase” agreement was an option contract or a “right of first refusal.” The hospital 

states that “Dr. Black argued about the terms, enforceability and timing of the option 

contract – all issues that were not properly before the circuit court, and are not properly 

before this Court on appeal.” While conceding that these issues regarding the substance 

of the option contract were not properly before the circuit court, the hospital fails to 

address why the order it prepared following the summary judgment hearing included a 

substantive legal conclusion—that the “Option to Repurchase” agreement is a “valid” 

option contract under West Virginia law. 

 After review, we find that the validity and time frame in which the option 

could be exercised were issues not properly before the circuit court because the hospital’s 

complaint for declaratory judgment only sought a determination of whether the “Option 

to Repurchase” agreement was an option contract rather than a “right of first refusal.” 

The hospital’s complaint did not seek a declaration on the validity of the option contract 

or the time frame in which the option could be exercised. Before a court can determine 

the validity of a contract, it must consider the contract terms and, in the present case, the 
14 

time frame in which the option could be exercised.8

 Because these issues were not before 

the circuit court or considered by the circuit court, it was error for the circuit court’s 

summary judgment order to include a legal conclusion regarding the option contract’s 

validity. 

 The narrow scope of the hospital’s declaratory judgment complaint was 

evident during the summary judgment hearing. At this hearing, counsel for the hospital 

told the circuit court, “We didn’t ask when it [the option] could be exercised, we didn’t 

ask for the interpretation of it[.]” This statement is in direct opposition to the legal 

conclusion the hospital placed in the order following the hearing. In the first instance, the 

hospital told the court that it was not seeking an interpretation of the option contract. In 

the order it submitted to the circuit court, however, the hospital included its interpretation 

that the option contract was valid. 

 The parties’ conflicting interpretations of the “Option to Repurchase” 

agreement demonstrate that there is substantial disagreement regarding the option 

contract’s validity. According to a report prepared by Dr. Black’s expert, Dean John W. 

Fisher, II, the option contract’s validity is dependent on the time frame in which the 

option can be exercised. Dean Fisher agreed with Dr. Black’s suggested interpretation of 

 8

 “A well-established principle of contract law is that it is essential to the validity 

of any contract, including an option agreement, that a definite time for performance either 

be stated in the contract or be ascertainable from the contract’s expressed or implied 

provisions.” Validity of Option to Purchase Realty as Affected by Indefiniteness of Term 

Provided for Exercise, 31 A.L.R.3d 522 (1970). 
15 

the “Option to Repurchase” agreement—that the hospital could only exercise its option 

during the final year of the agreement. Additionally, Dean Fisher asserted that the 

hospital’s interpretation of the option contract—that it could be exercised at any time 

prior to June 3, 2080—“violates the common law rule against perpetuities.”9

 The circuit 

 9

 Dean Fisher stated: 

For purpose of discussion, if one were to assume 

Plaintiff’s [hospital] interpretation is correct, it leaves the 

Plaintiff with what I believe is an insurmountable Rule 

Against Perpetuities problem. If one accepts the Plaintiff’s 

reading of the documents, I believe the agreement becomes 

patently inequitable. . . . 

In conclusion, I note that I am in agreement with the 

interpretation of the documents involved in this case as 

articulated in your [Dr. Black’s] motion to dismiss and the 

substance of your response to the Plaintiff’s motion for 

summary judgment. . . . My opinion is reflective of my 

teaching of Property Law for over forty years and my 

research and writing on the subject area. 

In addition to this expert witness report, Dr. Black argued that the hospital’s 

suggested interpretation of the option contract defies “common sense.” Dr. Black stated: 

Who, in his right mind, would sign an agreement 

which, if the interpretation of [the hospital] in this case were 

accepted, where he constructed a building, at his own 

expense, only to be vulnerable, during the rest of his career 

and during the entire period of the option, to the hospital’s 

repurchasing the property for “$1.00 plus fair market value”? 

To do so would place the physician at the greatest peril 

in being forced to sell in the event of a dramatic event in 

market forces resulting in an unprecedented reduction in fair 

market value. It would permit the hospital, at any time it 

(continued . . .) 
16 

court did not rely on or discuss Dean Fisher’s opinion at the summary judgment hearing, 

however, because the sole issue before it was whether the “Option to Repurchase” 

agreement was an option contract rather than a “right of first refusal.” Had the validity of 

the option contract been an issue in this case, Dean Fisher’s opinion would have been 

relevant to that determination. 

 Because the hospital’s complaint and motion for summary judgment did not 

seek a determination of whether the option contract was valid, and because the circuit 

court refused to consider the validity of the option contract during the summary judgment 

hearing, it was error for the circuit court to rule that the “Option to Repurchase” 

agreement is a valid option contract.10 

 

should choose, and any time advantageous to it, to obtain a 

huge windfall[.] 

10 The circuit court’s summary judgment order did not offer sufficient factual or 

legal support for its ruling that the “Option to Repurchase” agreement is a “valid” option 

contract. Had the option contract’s validity been an issue in this case, the summary 

judgment order’s failure to offer sufficient factual or legal support explaining why the 

“Option to Repurchase” agreement is a “valid” option contract would have required this 

Court to remand this case pursuant to Syllabus Point 3 of Fayette County National Bank 

v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997): 

 Although our standard of review for summary 

judgment remains de novo, a circuit court’s order granting 

summary judgment must set out factual findings sufficient to 

permit meaningful appellate review. Findings of fact, by 

necessity, include those facts which the circuit court finds 

relevant, determinative of the issues and undisputed. 
17 

IV.

CONCLUSION

We reverse the following ruling contained in the circuit court’s August 8, 

2013, summary judgment order: “The June 3, 1982 Option Contract is a valid Option 

Contract under West Virginia law.” We remand this matter to the circuit court for entry 

of an order granting summary judgment to the hospital on the sole issue raised in its 

complaint for declaratory judgment—that the “Option to Repurchase” agreement is an 

option contract rather than a “right of first refusal.” 

 Affirmed in part; Reversed in part; and Remanded.