STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED 

AMERICAN BITUMINOUS POWER May 13, 2015 PARTNERS, L.P., a Delaware Limited released at 3:00 p.m. 

RORY L. PERRY II, CLERK Partnership, PLEASANT VALLEY ENERGY SUPREME COURT OF APPEALS 

COMPANY, a California Corporation, and
 OF WEST VIRGINIA 

AMERICAN HYDRO POWER PARTNERS, L.P.,
 

a Pennsylvania Limited Partnership,
 

Defendants Below, Petitioners
 

vs) No. 14-0446 (Ohio County 13-C-196) 

HORIZON VENTURES OF WEST VIRGINIA, INC., 

Plaintiff Below, Respondent 

MEMORANDUM DECISION 

This case involves contractual disputes between the petitioners and defendants below, 

American Bituminous Power Partners, L.P., Pleasant Valley Energy Co., and American Hydro 

Power Partners, L.P., (collectively referred to as “AMBIT”), and the respondent and plaintiff 

below, Horizon Ventures of West Virginia, Inc., (“Horizon”). AMBIT owns and operates the 

Grant Town Power Plant (“Power Plant”) located in Marion County, West Virginia. Horizon is 

AMBIT’s landlord. AMBIT appeals the March 26, 2014, order of the Circuit Court of Ohio 

County, West Virginia, which granted the motion for summary judgment of Horizon with regard 

to two claims: (1) Horizon’s claim regarding priority of rent payments; and (2) AMBIT’S 

counterclaim for over-payment of rent. 

Upon review of the parties’ arguments, the appendix record, and the pertinent authorities, 

this Court concludes the contracts are not clear and unambiguous on either of these issues, thus 

precluding summary judgment. We therefore reverse the order of the circuit court and remand 

this action. Given the complexity of the contractual agreements governing this dispute, we direct 

the circuit court to promptly transfer this case, in its entirety, to the Business Court Division. 

This case does not present a new or significant question of law and, therefore, satisfies the 

“limited circumstance” requirement of Rule 21(d) of the West Virginia Rules of Appellate 

Procedure. As such, it is properly resolved in this memorandum decision. 1 

1 We wish to acknowledge the Amicus Curiae brief filed by the Bank Group Lenders in 

support of AMBIT. The Bank Group Lenders are five financial institutions that currently provide 

credit to AMBIT. We note the Bank Group Lenders raised issues that were not raised by the 

parties and discussed documents that were not included in the appendix record. “We decline to 

address the issues raised solely by the Amicus.” State ex rel. Discover Fin. Servs., Inc. v. Nibert, 

231 W.Va. 227, 230 n.5, 744 S.E.2d 625, 628 n.5 (2013). 

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I. AMBIT’S CONTRACTUAL OBLIGATIONS 

The Power Plant, a coal-fired facility that generates electricity, was financed substantially 

by $150 million in tax-exempt Solid Waste Disposal Revenue Bonds issued by the Marion 

County Commission, the repayment of which is governed by a Trust Indenture. The Trust 

Indenture sets forth the prioritization of various payments, including the essential operating costs 

of the plant, rent, and the principal and interest to the bondholders. AMBIT and Horizon’s 

landlord/tenant relationship is governed by a series of leases and by an agreement to settle a 

previous dispute. Pursuant to these contracts, the monthly lease payment is a percentage of gross 

revenue received by AMBIT, with that percentage varying with the type of fuel on site. The 

present dispute involves the failure of AMBIT to pay Horizon the full rent due under the terms of 

the governing Lease Agreement. To understand the underlying litigation, we find it is necessary 

to briefly outline the winding interplay of three contracts, which establish AMBIT’s payment 

obligations. 

A. Trust Indenture 

The Trust Indenture was entered into between AMBIT and its lenders on January 1, 

1990; it governs the terms and conditions of the payments to the bondholders and sets forth 

explicit instructions and requirements for the allocation of the Power Plant’s revenues.2 Under 

the Trust Indenture, AMBIT is required to pay to the Trustee all of its revenues upon receipt. The 

Trustee then deposits the revenues into the Revenue Fund. Each month, the Trustee pays certain 

parties out of the Revenue Fund based upon a payment hierarchy that is set out in the Trust 

Indenture. Of particular note is the second payment group,3 which requires payment of the Power 

Plant’s essential operating costs. As discussed in more detail below, AMBIT and the Amicus 

Curiae argue that, without this payment, the Power Plant could not operate and, therefore, could 

not generate enough revenue to pay AMBIT’s other obligations, including the payments to the 

lender groups and rent to Horizon. 

Under the Trust Indenture, payment groups three through six require AMBIT to make 

monthly deposits into various funds, including a “Bank Payment Fund” and a “Debt Service 

Fund.” The Trustee uses these funds to make scheduled payments of principal and interest under 

2 In its brief, the Amicus explains the intricate details of the financing of the bonds, 

including the various security interests, and also explains the various agreements that set forth 

the rights and obligations of all of the players involved, not just AMBIT and Horizon. The 

Amicus argues the circuit court’s summary judgment order failed to address or otherwise 

consider these intertwining relationships. The Amicus asserts that if not overruled, the order will 

trigger events of default in those financial agreements and jeopardize the future of the Power 

Plant. On remand, the Bank Group Lenders should consider filing a motion to intervene in this 

matter pursuant to Rule 24 of the West Virginia Rules of Civil Procedure. 

3 The first payment group, which is not relevant in this case, requires payment of tax on 

the interest on the bonds to the federal government if the interest earnings from AMBIT’s 

various funds are not sufficient. 

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the bonds, and to pay AMBIT’s obligations to reimburse the Bank Group Lenders under the 

Reimbursement Agreement. 

The seventh payment group under the Trust Indenture provides payment for: “the Actual 

Operating and Maintenance Expenses referred to in paragraph Second . . . which are in excess of 

the limit specified in paragraph Second and to pay all Other Lease Rent (including accruals of 

interest thereon) which is then due and permitted to be paid[.]” (Emphasis added). AMBIT and 

the Amicus Curiae contend that, under the priority of payment hierarchy set forth in the Trust 

Indenture, it is under this seventh payment group that AMBIT must make rent payments. 

Horizon is not a party to the Trust Indenture but in its 1996 settlement agreement with AMBIT 

discussed below, the parties agreed that rent is payable as “Other Lease Rent” under the terms of 

the Trust Indenture. As stated in the Trust Indenture’s seventh payment group paragraph above, 

rent payments must be “due and permitted” under the Lease Agreement at Sections 7 and 7A, 

which govern when and how rent is to be paid, and when rent is subordinated to the payment of 

AMBIT’s other obligations. 

The Trust Indenture has no bearing on the second issue on appeal, the alleged 

overpayment of rent. 

B. Lease Agreement 

On November 29, 1989, Horizon and AMBIT entered into an Amended and Restated 

Lease Agreement under which Horizon leased to AMBIT certain parcels of real property for the 

purpose of constructing, operating, and maintaining the Power Plant. The Lease Agreement was 

amended on December 28, 1989, and again on January 11, 1990.4 

1. Priority of Rent 

All rent that Horizon is claiming in this case is believed to be subordinated rent under the 

Lease Agreement and is governed by Section 7A of that contract. The Lease Agreement provides 

that AMBIT’s payment of rent to Horizon is subordinated to the payment of “Senior Debt” 

defined as all indebtedness, obligations and liabilities of AMBIT pursuant to all notes, letters of 

credit, loan agreements, reimbursement agreements and/or guarantees between AMBIT and any 

banks or other financial institutions providing a letter of credit or other form of security or credit 

enhancement for the tax-exempt bonds. 

On this first issue, we note the circuit court failed to address the preliminary question of 

whether Horizon could file this action when the Lease Agreement provides it shall not institute 

proceedings to enforce subordinated rent when AMBIT is in default on Senior Debt. Section 

7A(g) of the Lease Agreement provides that until all Senior Debt is paid when due, Horizon 

“shall not, without the prior written consent of the holders of Senior Debt, have any right to 

demand payment of, or institute any proceedings to enforce, any Subordinated Rent if at such 

time a default in payment of any Senior Debt when due shall have occurred and be continuing.” 

4 Although the Lease Agreement was amended a third time on April 1, 1993, that 

amended lease was nullified in 1996 by agreement of the parties. 

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2. Amount of Rent 

Section 6 of the Lease Agreement defines how rent is calculated. Rent owed to Horizon is 

based upon AMBIT’s gross revenue considering the source of its fuel; rent is based on the 

availability and usability of “local fuel” (e.g., waste coal) on the property. The Lease Agreement 

provides that if AMBIT burns usable local fuel, the rent is three percent (3%) of the gross 

revenues. However, when local fuel is not available and AMBIT has to buy “foreign fuel” (e.g., 

coal from outside sources), the rent is reduced to one percent (1%) of the gross revenues. 

Further, to the extent AMBIT does not use the local fuel for anything other than an “operating 

reason,” the amount of rent remains at three percent (3%) of the gross revenues. 

C. Agreement to Resolve Pending Litigation 

In 1994 and 1996, AMBIT and Horizon had disputes regarding rent payment under the 

Lease Agreement. The 1994 dispute arose when AMBIT became delinquent on the rent. AMBIT 

claimed that its rental payments to Horizon were subordinate to payments other than Senior 

Debt. Horizon sued AMBIT and the matter was resolved by agreement on May 23, 1994. 

AMBIT paid Horizon for all of the past due rent, plus interest and attorney fees but the issue 

regarding the priority of the rent payments was not resolved. Subsequently, AMBIT became 

delinquent on rent due under the Lease Agreement and again took the position that its rent 

payments were subordinate to payments other than Senior Debt, specifically, operations and 

maintenance costs. On May 28, 1996, the parties entered into an Agreement to Resolve Pending 

Litigation that purported to resolve the dispute. 

1. Priority of Rent 

The Agreement to Resolve Pending Litigation addressed the issue of the priority of the 

rent owed by AMBIT to Horizon as follows: 

Tenant acknowledges and agrees that the payment of Tenant’s obligations 

to Horizon under the Lease . . . has been subordinated under the Lease to the 

payment of “Senior Debt,” as that term is defined in the Lease, on the terms and 

conditions, and subject to the limitations, contained in the Lease. Horizon has not 

agreed with Tenant (or, Horizon asserts, with any person or entity), to subordinate 

any payment of Lease Obligations to any other claims against Tenant, including, 

without limitation, claims for payment of other operating and maintenance 

expenses of Tenant or the Plant, which are not included in the definition of 

“Senior Debt” under the Lease (such other claims against Tenant, including, 

without limitation, the payment of other operating and maintenance expenses of 

Tenant or the Plant, which are not included in the definition of “Senior Debt” 

under the Lease, being hereinafter referred to as “Non-Senior Project 

Obligations”). Tenant acknowledges that any failure to pay or perform any of the 

Non-Senior Project Obligations (hereinafter a “Non-Senior Project Obligation 

Default”) neither is intended to nor does constitute an excuse for nonpayment or 

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nonperformance of, or a defense to payment, performance or enforcement of the 

Lease Obligations. Tenant agrees that it shall not, and it shall instruct its 

attorneys, accountants, financial advisors, investment bankers and other 

professionals representing it, that none of them shall assert at any time in any 

court or other legal proceeding that any prospective, threatened or actual NonSenior project Obligation Default constitutes or effects an excuse for or a defense 

to payment or performance of any Lease Obligations. 

We note the Agreement to Resolve Pending Litigation was executed after the Trust 

Indenture and this contract explicitly references the Trust Indenture. Section 2b of the Agreement 

to Resolve Pending Litigation states: 

Tenant [i.e., AMBIT] is permitted to and shall pay rent which is due and 

payable under the Lease as “Other Lease Rent” under the Trust Indenture or, if 

Revenues under the Trust Indenture are insufficient to pay Other Lease Rent, then 

as “Operating and Maintenance Expenses” from the “Maintenance Reserve 

Fund” under the Trust Indenture (so long as funds are available in the 

Maintenance Reserve Fund). Tenant further acknowledges that all payments of 

rent due or to become due under the Lease constitute “Operating and 

Maintenance Expenses” under the Trust Indenture. 

(Emphasis added). The above provision expressly brings the Trust Indenture’s priority of 

payment into AMBIT’s rent obligations to Horizon. However, this provision was not addressed 

by the circuit court in its summary judgment order. 

2. Amount of Rent 

In order to resolve the dispute over the use of local fuel versus foreign fuel, the parties 

agreed that Horizon would receive rent in the amount of two and one-half percent (2.5%) of 

AMBIT’s gross revenues so long as any local fuel, whether usable or not, remained on the leased 

premises.5 

5 Specifically, the contract provides: 

Tenant acknowledges, as a fact, that since the commencement of 

operations by the Plant, all Foreign Fuel used in the operation of the Plant has 

been used for Non-Operating Reasons, and further acknowledges, as a fact, that 

so long as any Local Fuel is located at the Demised Premises, any Foreign Fuel 

being used in the operation of the Plant is being used for Non-Operating Reasons. 

As contemplated by the Lease, Local Fuel includes “waste coal material” (as 

defined in the Lease) on the Demised Premises, whether or not permitted by 

permits whose issuance or continuance is subject to actions which are within 

Tenant’s control and whether or not reclaimed, and is not dependent on the 

quality of the waste coal material. Tenant expects and intends that Horizon will 

detrimentally rely on this factual admission, that such reliance is foreseeable by 

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II. PROCEDURAL HISTORY 

The present dispute again involves the failure of AMBIT to pay Horizon the full rent due 

under the terms of the Lease Agreement. Horizon and AMBIT agree that rent payments are due 

and owing. The parties also agree that AMBIT has been in default on its Senior Debt payments 

since February of 2013, and that AMBIT cannot pay rent under the Lease Agreement while it is 

in default on Senior Debt.6 Horizon and AMBIT further agree that the only payments being made 

by AMBIT from revenues are those to the employees of AMBIT, the banks who financed the 

project, and the necessary service providers, suppliers, and vendors required to keep the plant 

operational. The parties disagree about the priority of rent payment with regards to operations 

and maintenance expenses. AMBIT asserts that it is mandated to pay operations and maintenance 

even if in default on Senior Debt, in order to keep the plant operational. On the other hand, 

Horizon argues that rent must be paid before operations and maintenance because rent is 

subordinated only to Senior Debt. 

In February of 2013, AMBIT informed Horizon that due to financial difficulties, it would 

not be making rent payments until at least September of 2013. Thereafter, Horizon filed a 

complaint in June of 2013. In Count I, Horizon alleged that, contrary to the terms of the Lease 

Agreement, AMBIT utilizes a priority list for monthly distributions and payments that 

subordinates the payment of rent to Horizon to payments other than Senior Debt. Count I of the 

complaint sought a declaratory judgment as to Horizon’s rights in the priority of the payment of 

rent and interpretation of the applicable terms of the Lease Agreement. Horizon further alleged 

three counts of breach of contract (Counts II, V, and IX); sought injunctive relief (Count III) and 

specific performance (Count IV); alleged two counts of fraud and misrepresentation (Counts VI 

and VII); unjust enrichment (Count VIII); trespass and conversion (Count X); and sought 

equitable relief (Count XI). 

AMBIT filed an answer largely denying the allegations of the complaint. AMBIT 

counterclaimed that it overpaid rent to Horizon over the past several years by virtue of the fact 

that the usable local fuel on the property has been exhausted; the Lease Agreement provides for a 

rental payment of only one percent (1%) of gross revenues (as opposed to the 2.5% of gross 

revenues AMBIT overpaid) (Count II). AMBIT also alleged that Horizon failed to comply with 

its reclamation obligations under the Lease Agreement (Count I). 

Horizon filed a motion for summary judgment seeking judgment on Count I of its 

complaint (regarding the priority of rent payments), and on Count II of AMBIT’s counterclaim 

(regarding overpayment of rent). AMBIT filed a response to which Horizon filed a reply. At the 

October 4, 2013, hearing on the motion, the circuit court determined the issues were questions of 

Tenant and reasonable on the part of Horizon, and that such reliance is evidenced 

by Horizon’s execution and delivery of this Agreement. 

6 As of September of 2014, AMBIT was in default in the amount of $5.2 million on its 

payments on the Solid Waste Disposal Revenue Bonds. 

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law to be decided by the court upon the written contracts between the parties, but that it was 

prudent to allow limited discovery. Accordingly, the circuit court granted the parties ninety days 

from the date of the hearing to engage in discovery. 

Following this brief discovery timeframe, Horizon filed a renewed motion for summary 

judgment on Count I of its complaint and on Count II of the counterclaim. AMBIT filed a 

response, to which Horizon filed a reply. Following a hearing, the circuit court granted Horizon’s 

summary judgment motion on both Count I of the complaint and Count II of AMBIT’s 

counterclaim by order entered March 26, 2014. As for the scope of its ruling, the circuit court 

concluded the order did not reach the following: Count I of AMBIT’s counterclaim (asserting an 

environmental liability claim against Horizon) and Counts X and XI of Horizon’s complaint 

(seeking damages for AMBIT locating fly ash on the leased property and equitable relief in the 

form of the removal of the same).7 

III. STANDARD OF REVIEW 

Our review in this case is unquestionably plenary as we are examining the grounds upon 

which the circuit court relied in granting summary judgment to Horizon. See Syl. Pt. 1, Painter v. 

Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of summary judgment is 

reviewed de novo.”). As we articulated in syllabus point three of Painter, “[t]he circuit court’s 

function at the summary judgment stage is not to weigh the evidence and determine the truth of 

the matter, but is to determine whether there is a genuine issue for trial.” Id. at 190, 451 S.E.2d at 

756. Summary judgment is not favored, and on appeal to this Court, we view the facts in the 

light most favorable to AMBIT. See Masinter v. WEBCO Co., 164 W.Va. 241, 242, 262 S.E.2d 

433, 435 (1980) (“we have viewed summary judgment with suspicion and have evolved the rule 

that, on appeal, the facts must be construed in a light most favorable to the losing party”). With 

these principles in mind, we consider the arguments of the parties. 

IV. DISCUSSION 

On appeal, AMBIT raises two substantive assignments of error. AMBIT argues: (1) the 

circuit court failed to recognize the meaningful contractual ambiguities between Horizon, 

AMBIT, and the financial institutions who hold Senior Debt and this failure has resulted in a 

summary disposition that misstates the financial obligations of AMBIT to Horizon with regard to 

the priority of rent; and (2) the circuit court failed to allow sufficient time for discovery on the 

local fuel versus foreign fuel issue, refused to consider the extrinsic evidence that was developed 

in discovery on the subject, and failed to address or resolve the ambiguities in the contracts. 

7 The circuit court also stated Horizon advised that Count III (requesting injunctive relief) 

and Count IV (seeking specific performance) were rendered moot. The circuit court, sua sponte, 

dismissed, without prejudice, Counts V through VIII of Horizon’s complaint because the issues 

appear to be resolved by the terms of the March 26, 2014, order. 

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Horizon disagrees and counters that: (1) the Lease Agreement and the Agreement to 

Resolve Pending Litigation subordinate rent solely to Senior Debt and not maintenance and 

operational costs; and (2) AMBIT’s obligation to pay rent was unambiguously modified by the 

Agreement to Resolve Pending Litigation. 

With regard to the first issue, the decades-long relationship between AMBIT and Horizon 

is governed by a Lease Agreement that has been revised and amended several times, by financial 

documents setting forth AMBIT’s obligations to pay Senior Debt including the Trust Indenture, 

and by the Agreement to Resolve Pending Litigation. These documents are voluminous and 

multifaceted. We summarily reject Horizon’s argument that the Trust Indenture is “indisputably 

extrinsic to the contracts between the parties” because Section 2b of the Agreement to Resolve 

Pending Litigation expressly brings the Trust Indenture’s priority of payment into AMBIT’s rent 

obligations. However, this contractual provision was not acknowledged in the circuit court’s 

summary judgment order. Therefore, we find there are meaningful contractual ambiguities with 

regard to the priority of rent. Under the terms of the Lease Agreement, AMBIT’s obligation to 

pay rent to Horizon is subordinate only to Senior Debt. However, when we consider the 

Agreement to Resolve Pending Litigation, rent is due and payable as “Other Lease Rent.” This 

would arguably place rent under the seventh payment group in the Trust Indenture – still 

subordinate to groups three through six constituting Senior Debt, but below maintenance and 

operational costs.8 The wording of these contracts supports more than one plausible alternative 

interpretation; they are ambiguous. 

With regard to the second issue, Horizon relies upon the Agreement to Resolve Pending 

Litigation to remove “usable” local fuel from the rent calculation altogether. However, this 

contract resolved a dispute between AMBIT and Horizon at the time it was executed and 

AMBIT maintains it has no prospective application, with limited exceptions not applicable here. 

Nevertheless, this contract is ambiguous on its face because by its express terms, it “does not 

supersede the Lease.” And the terms of the Lease provide that rent is calculated based on 

whether usable local fuel is on the premises. Significantly, AMBIT’s Plant Manager executed an 

affidavit stating all usable local fuel was exhausted in 2003. Accordingly, we find factual issues 

remain including whether the parties intended for the terms of the Agreement to Resolve Pending 

Litigation to operate prospectively and, if not, whether usable local fuel remains on the premises. 

Viewing the evidence in the summary judgment appendix record in the light most 

favorable to AMBIT, this Court finds the contracts are ambiguous on both disputes on appeal. 

Determining the issues of priority of rent and whether AMBIT overpaid rent requires factfinding. “Where a contract is ambiguous then issues of fact arise and a summary judgment is 

ordinarily not proper.” Syl. Pt. 2, Lee Enters., Inc. v. Twentieth Century-Fox Film Corp., 172 

W.Va. 63, 303 S.E.2d 702 (1983). See generally Wolter v. Equitable Res. Energy Co., W. 

Region, 979 P.2d 948, 951 (Wyo. 1999) (“In cases requiring the interpretation of a contract, a 

8 In its brief before this Court, Horizon states that AMBIT essentially agreed that rent 

payments “were on par with operating and maintenance expenses.” If that were the case, rent 

would fall under the Trust Indenture’s second payment group, before the payment groups three 

through six constituting Senior Debt. Arguably, this regrouping would violate the terms of the 

Lease Agreement. 

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summary judgment is appropriate only if the contract is clear and unambiguous.”); Loyola Acad. 

v. S & S Roof Maint., Inc., 586 N.E.2d 1211, 1215 (Ill. 1992) (“In cases involving contracts, 

there is a disputed fact precluding summary judgment when the material writing contains an 

ambiguity which requires admission of extrinsic evidence.”). 

Accordingly, we hold that summary judgment was not an appropriate method to dispose 

of the two claims at issue because significant factual issues exist. We therefore do not attempt to 

resolve their merits. As we cautioned in Masinter, “[i]n complex cases, the tendency on a 

summary judgment motion is to rely on the facts developed through discovery as constituting all 

of the relevant facts in the case. This may lead to inaccurate factual assessment.” 164 W.Va. at 

243, 262 S.E.2d at 436. Although it filed no formal motion below,9 AMBIT contends this case 

would be appropriate for referral to the Business Court Division for further proceedings. For the 

reasons set forth above, we agree. 

V. CONCLUSION 

The order of the circuit court is reversed, and this action is remanded for further 

proceedings. Given the complexity of the contractual agreements governing this dispute, we 

direct the circuit court to promptly transfer this case, in its entirety, to the Business Court 

Division for further proceedings consistent with this decision. 

The Clerk is hereby directed to issue the mandate forthwith. 

Reversed and remanded. 

ISSUED: May 13, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

9 West Virginia Trial Court Rule 29.06 provides, in part, that “[a]ny party or judge may 

seek a referral of Business Litigation to the Division by filing a Motion to Refer to the Business 

Court Division with the Clerk of the Supreme Court of Appeals of West Virginia.” 

9