STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Carlotta Evans, FILED 

Plaintiff Below, Petitioner May 3, 2013 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 vs.) No. 12-0479 (Nicholas County 10-P-39) 

One Gateway Associates, a West Virginia Limited 

Liability Company, Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioner Carlotta Evans, an attorney proceeding in her own interest, appeals the March 

14, 2012, order of the Circuit Court of Nicholas County which ruled, inter alia, that there was no 

extension of the commercial lease she had with respondent for the location of her RadioShack 

store. Respondent One Gateway Associates, by William D. Stover, its attorney, filed a summary 

response to which petitioner filed a reply. 

The 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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Respondent owns and operates a commercial shopping center in Summersville, West 

Virginia. Petitioner was a commercial tenant of respondent, who rented a location in the center 

from which she operated a Radio Shack store. The initial three-year lease term expired in June of 

2007 and automatically renewed for an additional three-year period. The lease had no provision for 

a second automatic extension. The lease expired on June 30, 2010. 

From 2007 to 2010, petitioner rented a second property in the shopping center, from which 

she and her son operated an oil change center and a U-Haul business. Petitioner asserts that from 

2007 to July 31, 2010, when the lease on the oil change center ended, the U-Haul business was 

operated from the RadioShack on Sundays when the oil change center was apparently closed. 

However, Charles Stephen McCue, respondent’s managing member, and Joy DeMoss, an 

employee who handles day-to-day management issues, both testified at deposition that U-Haul 

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trucks were not to be parked on the common parking lot for the rest of the shopping center1 and 

that they complained when they noticed U-Haul trucks parked on the common parking lot. 

At the time the RadioShack lease expired, the parties had not reached an agreement 

extending it for an additional period. Pursuant to the terms of the lease agreement, any holding 

over beyond that point constitutes a “tenancy from month-to-month only.” Because the parties 

could reach no agreement as to an extension, respondent issued a notice to vacate the property on 

July 1, 2010, and pursuant to the lease, allowed petitioner one month to vacate. Further 

negotiations ensued. 

Negotiations over extending the RadioShack lease became complicated by the fact that the 

lease for the oil change center was to terminate as of July 31, 2010. In a July 28, 2010 cover letter 

Ms. DeMoss sent, with a proposed Lease Modification and Extension Agreement (“Extension 

Agreement”) for the Radio Shack location, Ms. DeMoss raised the issue of the U-Haul business: 

. . . When I spoke to [Mr. McCue] concerning the U-Haul 

trucks at the [oil changer center], he stated that they could not be 

parked out in the normal parking spaces. When Rodney[ 2 ] 

approached us about adding the U-Haul Truck Rental[,] it was for 

additional income for him at the [oil changer center]. When the [oil 

changer center] is turned back over to us[,] if Rodney return’s [sic] it 

to us in a proper manner[,][Mr. McCue] would review what could 

be done with the trucks. Thank you. 

The Extension Agreement proposed extending the RadioShack lease for a period of two 

years from July 1, 2010 to June 30, 2012, under the same terms and conditions as the original lease 

except for an increased monthly rent of $1,666.67 for the first year and $1,733.33 for the second 

year. The cover letter stated that if the Extension Agreement was acceptable to petitioner, she 

was to “sign both copies and have witnessed, and return them to us for [Mr. McCue]’s signature by 

Friday, July 30, 2010.” Petitioner signed the Extension Agreement, but her signature was not 

witnessed or dated. 

On July 31, 2010, the lease for the oil change center terminated. Also on July 31, 2010, 

petitioner remitted to respondent a check for $66.67 for the remainder of the July rent payment 

under the Extension Agreement for the RadioShack lease. On August 1, 2010, petitioner remitted 

to respondent a check for $1,873.25 for the August rent payment under the Extension Agreement.3 

Petitioner states respondent was in receipt of the copy of the Extension Agreement she signed and 

1 The oil change center had its own parking lot. 

2 Rodney Evans is petitioner’s son. 

3 The July 28, 2010 cover letter advised petitioner to “[p]lease remit $1,873.35 for August and 

$66.67 that was shorted on the July rent for a total amount due of $1,940.02.” In addition to rent, 

respondent charges its tenants certain costs. 

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the two checks by August 2, 2010, at which time petitioner says the Extension Agreement became 

binding on the parties. 

However, on August 1, 2010, petitioner wrote a letter in reference to Ms. DeMoss’s July 

28, 2010, cover letter that was sent with the Extension Agreement. Petitioner wrote, in pertinent 

part, as follows: 

The next issue is our U-Haul business. Your letter sounds as if you 

have not agreed that we will have space to park the U-Hauls. . . . 

Our renewal of the Lease for the RadioShack included the U-Haul 

business. This is the first notice you have given that the U-Haul 

business might be a problem. We relied on continuing to rent 

U-Hauls as part of our calculations for paying increased rent over 

the next 2 years. 

If you have not included the U-Haul business in our Lease Renewal, 

and this letter was your notification of such, then our acceptance of 

the Lease Renewal is withdrawn. We do not accept your new terms 

if they do not include the U-Haul business. 

Please notify me as soon as possible as to whether or not you have 

included the U-Haul business in the Lease Renewal (emphasis 

added). 

Because this letter is addressed to Ms. DeMoss, it will be referred to “the DeMoss letter.” The 

DeMoss letter, while dated August 1, 2010, was not delivered until August 11, 2010.4 

On August 9, 2010, Mr. McCue sent petitioner a letter regarding numerous issues relating 

to the termination of the oil change center lease. Mr. McCue concluded the letter by stating that 

“[w]e have not signed off on the [Extension Agreement] and will not until these issues at the [oil 

change center] are resolved.” 

On August 11, 2010, petitioner also delivered a second letter addressed to Mr. McCue (“the 

McCue letter”). In this letter dated August 10, 2010,5 petitioner stated, in pertinent part, as 

follows: 

4 Petitioner states that she did not deliver the DeMoss letter to respondent until August 11, 2010. 

The circuit court found that the DeMoss letter was delivered sometime between August 1, 2010 

and August 11, 2010. This finding appears to be incorrect because at the March 6, 2012, hearing on 

the parties’ motions for summary judgment, both parties agreed that “the August 1st date is actually 

August 1st but it was delivered August the 11th.” 

5 The McCue letter is dated July 10, 2010, however, the parties agree this is a typographical letter 

and that the correct date is August 10, 2010. 

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First, please consider this is my notice that I do not agree to the new 

conditions on the Lease Renewal for the RadioShack. Your letter 

has added a condition—that renewing the RadioShack lease is 

directly related to the [oil change center] lease—which is not 

acceptable to me. By notifying me on August 9, 2010, that you have 

not signed off on the July 1, 2010 Lease renewal, and that you will 

not sign off on the Lease Renewal until certain conditions related to 

a different lease are met, you have changed the terms of the Lease 

Renewal. There is also the issue of the U-Haul business, which was 

addressed in a separate letter to [Ms. DeMoss]. 

* * * 

I would still prefer to proceed with the Lease Renewal but it must be 

separate from the [“oil change center”] lease and it must include 

the U-Haul business. If that is acceptable to you, please sign the 

renewal and provide me with my copy. If that is not acceptable to 

you, please notify me so that I can start making plans to move the 

RadioShack (emphasis added). 

On August 19, 2010, respondent sent petitioner a termination letter by certified mail that it 

was not extending the lease on the RadioShack.6 The termination letter gave petitioner thirty days 

from its receipt to vacate the property. 

After she received the termination letter, petitioner initiated the instant action. Petitioner 

was granted a preliminary injunction to stay on the RadioShack property.7 The circuit court’s 

September 10, 2010, order granting the injunction ordered petitioner to pay rent at the rate 

specified in the Extension Agreement8 and ordered that the parties continue to be bound by the 

6 Also on August 19, 2010, respondent processed the checks petitioner remitted for $66.67 and 

$1,873.25. The termination letter indicated that money paid since June 30, 2010, would be credited 

for petitioner’s occupation of the property at the monthly rental rate in effect at the time the 

RadioShack lease expired. This arrangement was consistent with the lease’s holding over 

provision. 

7 In ruling in petitioner’s favor, the circuit court explicitly stated that the preliminary injunction 

“does not extend to any U-Haul business operated on the Premises.” 

8 A refund to petitioner was later ordered to the extent she paid rent for that period at the increased 

rate set forth in the Extension Agreement. See Footnote Eleven infra. 

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terms and conditions set forth in the original lease.9 Petitioner occupied the RadioShack property 

under the injunction from September 10, 2010 to August 31, 2011.10 

On October 7, 2010, petitioner filed an amended complaint asserting causes of action 

relating to the RadioShack lease and the oil change center lease. Respondent filed an answer and a 

counterclaim relating to the oil change center release on April 14, 2011. 

Petitioner filed a motion for partial summary judgment on her claim that the Extension 

Agreement constituted a valid, binding contract between the parties. Respondent filed a motion for 

summary judgment on various issues including the validity of the Extension Agreement. The 

circuit court conducted a hearing on the parties’ motions on March 6, 2012. 

Subsequently, on March 14, 2012, the circuit court entered an order denying petitioner’s 

motion for partial summary judgment, and granting in part and denying in part respondent’s 

motion for summary judgment. The circuit court rejected petitioner’s claim that the Extension 

Agreement was binding because her acceptance added an additional term—the inclusion of the 

U-Haul business—and, therefore, “[the] ‘acceptance’ of [respondent]’s offer for an extension of 

the RadioShack lease was not ‘unequivocal and unconditional.’” See Syl. Pt. 2, in part, The Bowers 

Company v. Kanawha Valley Products Company, 100 W.Va. 278, 130 S.E. 284 (1925) (“A 

proposition to accept on terms varying from those offered is a rejection of the offer[.]”).11 

“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). “Summary judgment is appropriate where the 

9 Respondent challenged the preliminary injunction through a petition for a writ of prohibition 

filed in this Court which refused the petition. 

10 The circuit court dissolved the preliminary injunction by an order entered August 2, 2011. 

11 The case proceeded to trial on the issues on which the circuit court did not grant respondent 

summary judgment. Respondent filed a motion to dismiss petitioner’s appeal arguing that the 

circuit court’s March 14, 2012, order did not constitute a final order. In her response to the motion, 

petitioner argues that the order was a final order because it disposed of at least one substantive 

claim, citing Hubbard v. State Farm Indemnity Co., 213 W.Va. 542, 584 S.E.2d 176 (2003). 

Petitioner’s view is supported by the circuit court’s order in that the court stated the reason it was 

allowing petitioner to proceed on a breach of contract claim concerning certain costs assessed 

under the lease was because the original lease governed the period when petitioner occupied the 

property under the injunction from September 10, 2010, to August 31, 2011. The circuit court 

ordered a refund to petitioner to the extent she paid rent for that period at the increased rate set 

forth in the Extension Agreement. Therefore, this Court finds that the circuit court’s order 

“approximates a final order in its nature and effect” regarding petitioner’s claim regarding the 

validity of the Extension Agreement. See Syl. Pt. 1, in part, State ex rel. McGraw v. Scott Runyan 

Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). Accordingly, respondent’s motion to 

dismiss is hereby denied. 

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record taken as a whole could not lead a rational trier of fact to find for the nonmoving party[.]” 

Syl. Pt. 4, in part, Painter. 

On appeal, petitioner argues that the circuit court erred in granting respondent summary 

judgment on her claim for breach of contract based on the Extension Agreement which petitioner 

says was valid. Petitioner states that the circuit court erroneously found that the DeMoss letter, 

dated August 1, 2010, was delivered on that date rather than on August 11, 2010. Respondent 

asserts that the exact dates of the DeMoss letter and the McCue letter are not important. 

Respondent asserts what matters, is that petitioner wrote the letters and that it received them after 

petitioner allegedly acted upon its offer of July 28, 2010. The DeMoss letter is particularly relevant 

because petitioner says that August 2, 2010, was when there was both an offer and an acceptance 

and, therefore, the Extension Agreement became binding on the parties. The DeMoss letter, which 

petitioner wrote the day before, reflects that the inclusion of the U-Haul business in the extension 

of the RadioShack lease was not agreed to by respondent. The circuit court was correct that 

“[petitioner] and [respondent] had not reached a ‘meeting of the minds’ as to the terms of the 

Extension Agreement.” After careful consideration, this Court concludes that the circuit court did 

not err in granting respondent summary judgment on the claim. 

For the foregoing reasons, we find no error in the decision of the Circuit Court of Nicholas 

County and affirm its March 14, 2012 order which ruled, inter alia, that there was no extension of 

the commercial lease petitioner had with respondent for the location of her RadioShack store. 

Affirmed. 

ISSUED: May 3, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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