### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Jeffery C. Wiles, William Talbot, 

### FILED and Cowen Auto Parts, Inc., d/b/a WBC Enterprises, 

### May 14, 2018 Plaintiffs Below, Petitioners EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA vs.) No. 17-0557 (Webster County 16-C-13)

Work4WV-Region 1, Inc., a West Virginia Corporation, Defendant Below, Respondent



### MEMORANDUM DECISION

Petitioners Jeffery Wiles, William Talbot, and Cowen Auto Parts, Inc., d/b/a WBC Enterprises (“petitioners”), by counsel Howard J. Blyer, appeal the Ci rcuit Court of Webster County’s May 23, 2017, order that granted respo ndent’s (Work4WV-Region 1, Inc.) petition for declaratory judgement. Respondent , by counsel Thomas W. White and Haley S. Hillen, filed a response in support of the circuit co urt’s order. On appeal, petitione rs argue that the circuit court erred in its finding that respondent properly cancelled a lease between the parties pursuant to its

terms.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affirming the orde r of the circuit cour t is appropriate under Rule 21 of the Rules of Appellate Procedure.

The parties entered into a written lease agreement dated May 21, 2013, where petitioners agreed to lease a certain portion of real prope rty to respondent. The lease included twenty provisions. The first of those provisions provides as follows:

(1) TERM AND NOTICES

The term of this lease, subject to th e provisions hereof, shall begin on June 1, 2013; tenant shall occupy the subject space no later than June 1, 2013, provided the landlord has made the necessary accommodations for tenant’s use of subject spaces. If th e landlord has failed to make the necessary accommodations by June 1, 2013, this lease shall be considered

canceled and null. This lease shall be considered renewed for each ensuing fiscal year during the term of th e lease unless it is canceled by

1WORK4WV-REGION 1, INC. 30 days befo re the end of the fiscal year (June 30). The signing of [the] Lease supersedes and cancels all previous agreements between the parties hereto.

Notices may be given by personal serv ice upon the party(s) entitled to such notice, or by certified mail, dul y stamped and direct ed to the lastknown address of the party to be noti fied, and deposited in the post office. The proper mailing of such notice a nd not the receipt thereof shall constitute the giving of such notice by either party to the other. Notice shall be directed . . . [ to the par ties’ address which were provided].

The fourteenth term of the partie s’ contract provides as follows:

(14) CANCELLATION OF LEASE

It is further agreed by and betw een the parties hereto that the WORK4WV-REGION 1, INC. as Lessee, shall have the right to cancel this lease, without further obligation on the part of the Lessee, upon giving thirty (30) days written notice to th e Lessor, such notice being given at least thirty (30) days prior to the last day of the succeeding month.

On April 30, 2014, respondent sent an e-mail to one of petiti oners’ personal e-mail accounts notifying him that the lease would be cancelled effective June 30, 2014. Petitioners responded on June 11, 2014, and notified respondent that e-mail was not proper service of notice

in accordance with the terms of the lease. On June 13, 2014, res pondent sent a ce rtified letter canceling the lease if the earlier April of 2014 e-mail did not cons titute proper notice. In this letter, respondent asserted that the cancellati on of the lease would be effective July 13, 2014, in accordance with provision fourteen of the lease. Petitioners argue d that respondent’s notice of cancellation was less than thirty days before the end of the 2014 fiscal year and, therefore, provision one renewed the lease agreement for another full year.

On April 26, 2016, petitioners filed a complaint for declaratory judgment alleging that respondent’s initial notice of cancelation by e- mail was improper and the notice given on June 13, 2014, was untimely and, therefore, ineffective in providing notice before the lease renewed for the 2015 fiscal year. Res pondent answered that the Apri l 30, 2014, e-mail was proper notice of cancellation or, in the alternative, the June 13, 2014, notice of cancelation was proper notice of cancellation in accordance with provision f ourteen. The parties submitted memorandums of law in support of their respective positions.

Ultimately, the circuit court found that respond ent’s e-mail was not proper notice, but the certified letter sent on June 13, 2014, provided proper notice of cancellation. Additionally, the circuit court found that provisio n fourteen provided a “contract ual right for th e lessee to terminate their leasehold on the premises, at a ny time, for any reason, and without penalty or further obligation.” Therefore, respondent properly terminated the lease effective July 31, 2014, regardless of the renewal for the 2015 fiscal y ear. Accordingly, “because the lease afforded [respondent] the right to terminate the agr eement without imposing further penalty or

2obligations, that [petitioners] [are ] only entitled to rent monies up through the termination date of July 31, 2014.” Petitioners now appeal this May 23, 2017, decl aratory judgement order.

We have explained that “[a] circuit court’s entry of a d eclaratory judgment is reviewed de

novo .” Syl. Pt. 1, Marlin v. Wetzek Cty Bd. of Educ. , 212 W.Va. 215, 569 S.E.2d 462 (2002) (quoting Syl. Pt. 3, Cox v. Amick , 195 W.Va. 608, 466 S.E.2d 459 (1995)).

On appeal, petitioners argue that the circui t court erred in finding that respondent’s June 13, 2014, notice was a valid cancelation of the l ease pursuant to the te rms of the lease. Petitioners contend that provisi on one provides the only method of termination and, therefore, provision fourteen is in direct contradiction to it. Accordingly, petitioners argue that the inclusion of both provisions creat es two potential interpretations of the lease making the lease ambiguous. Petitioners argue that the Court has previously held that ambiguity should be resolved against the party th at drafted the agreement. See G.E. Charlton v. Chevrolet Motor Co.

, 115 W.Va. 25, 174 S.E.2d 570 (1934). Therefore, petiti oners argue that the circuit court should have resolved the ambiguity in their favor and ruled that re spondent owes petitioners rent through June of 2015. We disagree.

This Court has previously held

[a]s with other contracts, the langu age 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 reas onable meaning can be given

them consistent with the whole contract.

Syl. Pt. 3, Moore v. Johnson Serv. Co. , 158 W.Va. 808, 219 S.E.2d 315 (1975). Further, “where the provisions are free from ambiguity the plain meaning thereof is to be accepted without resort to interpretation.” Syl. Pt. 1, Thomas v. Goodwin, 164 W.Va. 770, 266 S.E.2d 792 (1980). “Contract language is considered ambiguous wher e an agreement’s terms are inconsistent on their face or where the phraseology can suppor t reasonable differences of opinion as to the meaning of words employed and oblig ations undertaken.” Syl. Pt. 6, State ex rel. Frazier & Oxley, L.C. v. Cummings , 212 W.Va. 275, 569 S.E.2d 796 (2002).

We do not find that provision one and provision fourteen dir ectly contradict one another. Contrary to petitioners’ claim, provision one does not indicate that it is the only method by which the lease may be cancelled. Rather, provisi on one provides how to adequately notify the parties of the intent to cancel the lease and how the lease may be renewed. Conversely, provision fourteen provides to respondent a clear contractual right to cancel the lease on the final day of a month after at least thirty days ’ notice is provided. In order to give all provisions in the lease meaning, provision fourteen must have a purpose. Accordingly, we find th at provision fourteen, which provides the option to can cel the lease upon thirty days’ notice, provides a clear method and right of termination for the lessee.

On appeal, petitioners attempt to give a diffe rent interpretation to provision fourteen and assert that it may be used only upon the violation of provisions two through thirteen and that this

3interpretation benefits both pa rties. However, some of these provisions have their own method for termination, if violated. For example, provision ten, entitled “DEFAULT BY LESSEE” provides that the lessor may notify the lessee of any defaults of the covenants in the lease and “if

such default is not corrected wi thin sixty days after receipt of notification, the lessor may notify

the lessee that the lease is terminated . . . .” As stated above, the langua ge of a lease agreement must be construed as a whole and give effect to all parts of the lease if possible. Provision fourteen would be rendered redundant and meaningless under this in terpretation proposed by petitioners. Therefore, we find that the clear la nguage of provision fourteen provides its purpose without unnecessary interpretation.

Further, petitioners argue that the circuit court should have considered the mutual intent of the parties when interpreting the lease. Peti tioners assert no reasonable landlord would enter into a lease by which a tenant could demand high -dollar changes to the property and then cancel the lease in thirty days. However, this Court ha s previous held that “i n the absence of fraud, mistake, or material misrepresentations extrinsi c evidence cannot be used to alter or interpret language in a written contract which is otherwis e plain and unambiguous on its face.” Syl. Pt. 3, in part, Iafolla v. Pocahontas Coal Corp. , 162 W.Va. 489, 250 S.E.2d 128 (1978). Further “(w)here the intent of the parties is clear, this Court will not use the vehicle of interpretation to relieve one party of a bad bargain.” Id . at 493, 250 S.E.2d at 131 (quoting Pechenik v. Baltimore

& Ohio R.R. Co. , 157 W.Va. 895, 898, 205 S.E.2d 813, 815 (1974 )). Therefore, having found that the lease is unambiguous, we decline petiti oners’ request to furthe r interpret the language

therein.

Finally, we concur with the circuit court’ s conclusion that respondent provided adequate and proper written notice to petitione rs of their intention to termin ate the lease effective July 31, 2014. Specifically, respondent provided notice of termination by certified mail to the proper address on June 13, 2014. In accordance with provision fourteen of the lease, respondents must provide written notice thirty days before termina tion and thirty days befo re the last day of the succeeding month. The notice sent on June 13, 2014, wa s more than thirty days before July 31, 2014. Therefore, respondent suc cessfully terminated the le ase effective July 31, 2014. Accordingly, petitioners are entit led to rent through July 31, 2014.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: May 14, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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