                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Stiles Family Limited Partnership, III, LLP,                                     FILED
Plaintiff Below, Petitioner
                                                                            November 18, 2016
                                                                                RORY L. PERRY II, CLERK
vs) No. 16-0220 (Jefferson County CK-19-2014-C-389)                           SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

Riggs and Stiles, Inc. and Christopher Stiles,
Defendants Below, Respondents


                              MEMORANDUM DECISION
       Petitioner Stiles Family Limited Partnership, III, LLP, by counsel F. Samuel Byrer and
Peter A. Pentony, appeals the Circuit Court of Jefferson County’s order granting summary
judgment in favor of respondents, entered on January 28, 2016. Respondents Riggs and Stiles,
Inc. and Christopher Stiles (collectively, “respondents”), by counsel Gregory A. Bailey and J.
Daniel Kirkland, filed a summary response. Petitioner filed a reply.

        This 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

                             Factual and Procedural Background

        This case centers on whether respondents, tenants to a farm lease that limits the use of the
subject property to agricultural purposes, breached the lease when they permitted a music concert
promoter to apply to the Jefferson County Board of Zoning Appeals (“Zoning Board”) for
approval to host a music festival on the property, but where the application was subsequently
withdrawn after petitioner (the landlord on the lease) objected, and the festival never took place.
Stated another way, the issue is whether the filing of the application, which was later withdrawn,
constituted a breach of the lease. We agree with the circuit court that it did not.

        The parties in this case are wholly comprised of parents and siblings of the Stiles family.
Respondent Christopher Stiles is the President of Respondent Riggs and Stiles, Inc. Christopher
Stiles’ father, Stanley Stiles, is the majority owner of Riggs and Stiles. Petitioner Stiles Family
Limited Partnership, III, LLP owns a 169-acre parcel of land in Jefferson County, West Virginia.
At some point in the past, Stanley Stiles gifted the property to his daughter, Joyce Rawn,
petitioner’s majority owner.



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        In October of 2006, the parties entered into a “Farm Lease” wherein respondents agreed
to farm the subject property. Respondents have done so continuously since 2006. In 2013, with
respondents’ permission,1 Walther Productions filed an application for a seasonal use permit
with the Zoning Board to explore whether it was feasible under the Zoning Board’s regulations
to hold a five-day music festival on the farm property. In November of 2013, petitioner learned
of the application and submitted a written objection to the Zoning Board. Shortly thereafter,
petitioner attempted to terminate the Farm Lease, citing the following three provisions therein:

       4.      Purpose and Quiet Enjoyment: The Tenant shall be leasing the Premises
       for the purpose of planting, maintaining, and cultivating farm crops and/or other
       vegetation thereon, and the use of the Premises for any other purpose without
       Landlord’s written approval shall be a breach by Tenant of the terms of this lease.

       5(c). Tenant’s Covenants: Tenant will not use or permit said Premises, or any
       part thereof, to be used for disorderly or unlawful purpose.

       6.      Surrender of Premises and Prohibition on Assignment: At the termination
       of the Term, the Tenant agrees to surrender the Premises in as good a condition at
       the time of occupancy by Tenant. No act or thing done by the Landlord, or any of
       its agents, during the Term shall be deemed an acceptance by the Landlord of
       surrender by the Tenant of the Premises, and no agreement to accept surrender
       shall be valid unless in writing, signed by the Landlord. The Tenant shall not
       assign or transfer either the benefits of or burdens under this Lease or encumber
       the same, nor sublet or permit the Premises or any part thereof to be used by
       others, without prior consent of the Landlord, which consent may be denied or
       withheld for any reason.

       In December of 2013, the application before the Zoning Board was withdrawn. It is
undisputed that the music festival never occurred.

         In November of 2014, petitioner filed a complaint in circuit court alleging that
respondents’ unapproved permission for Walther Productions to apply to the Zoning Board for
approval to hold a music festival on the property constituted a prohibited “use” of property under
the terms of the lease. Petitioner sought a declaratory judgment that respondents breached the
Farm Lease and that the lease was terminated by virtue of the above-cited lease provisions.
Petitioner also sought for the court to enjoin respondents from trespassing on petitioner’s
property and to impose a constructive trust on the proceeds of the harvest of the crop planted
after termination of the lease.

        Respondents filed an answer and counterclaim in which they sought attorney’s fees from
petitioner. Following discovery, respondents filed a motion for summary judgment. Petitioners
filed a cross-motion for partial summary judgment. The parties appeared before the circuit court
on January 21, 2016, for a bench trial. The circuit court considered the pending summary

       1
         Petitioner states that it was unaware that the application had been filed. Respondent
Christopher Stiles signed the application as the “owner” of the property.
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judgment motions. By order entered on January 28, 2016, the circuit court granted summary
judgment in favor of respondents, concluding in relevant part as follows:

       The [c]ourt finds that under the plain language of the Farm Lease, it is clear that
       the “use” of the property for some act other than agricultural use is required to
       constitute a breach. That simply did not occur. An application for a variance is
       just that, an application. None of the conditions precedent for such an event,
       including a contract between [respondents] and the third party seeking to hold the
       event, ever came to fruition. As a result, the event never made it past the early
       stages of consideration. As these conditions did not occur, and the application was
       subsequently withdrawn, the terms of the Lease were not breached. See Syl. Pt. 3,
       Kanawha Banking and Trust Co. v. Gilbert, 131 W.Va. 88, 46 S.E.2d 225 (1947)
       (“When a written contract is clear and unambiguous its meaning and legal effect
       must be determined solely from its contents and it will be given full force and
       effect according to its plain terms and provisions. Extrinsic evidence of the parties
       to such contract, or of other persons, as to its meaning and effect will not be
       considered.”).

The circuit court further concluded that “upon receiving notice of [petitioner’s] objection and the
attempted November 15, 2013, and November 18, 2013, termination of the Farm Lease, the
application was withdrawn within a matter of weeks. Thus, the property was never used to [sic]
for any other purpose other than agricultural use.”

        The circuit court granted respondents’ motion for summary judgment and dismissed
petitioner’s complaint with prejudice. However, the circuit court stated in its order that “[t]he
only remaining issue in this matter is [respondents’] counterclaim for attorneys’ fees.” Petitioner
now appeals to this Court.

                                           Discussion

        “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.” Syl. Pt.1, Miller v. City Hosp., Inc., 197 W.Va. 403, 475 S.E.2d 495
(1996) (citations omitted). “Summary judgment is appropriate if, from the totality of the
evidence presented, the record 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.” Syl. Pt. 2, Williams v. Precision Coil, Inc.,
194 W.Va. 52, 459 S.E.2d 329 (1995). “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).

        On appeal, petitioner raises three assignments of error. First, petitioner argues that the
circuit court erred by granting summary judgment in favor of respondents on the question of
whether respondents breached the Farm Lease because (1) the lease limits respondents’ use of
the property to “planting, maintaining, and cultivating farm crops” and prohibits any other use
without petitioner’s permission, and (2) respondents used petitioner’s property to apply for and
obtain zoning board variances for a 15,000-person commercial music festival without

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petitioner’s knowledge or consent. Petitioner contends that the circuit court erroneously focused
on the fact that the music festival never occurred, and consequently it ignored the doctrine of
“anticipatory breach.” An “anticipatory breach” is defined as “one committed before the time has
come when there is a present duty of performance and is the outcome of words or acts evincing
an intention to refuse performance in the future.” 17A Am. Jur. 2d Contracts, § 448. We have
held that

               [t]he general rule in cases of anticipatory breach of contract is that where
       one party repudiates the contract and refuses longer to be bound by it, the injured
       party has an election to pursue any of three remedies: he may treat the contract as
       rescinded and recover on quantum meruit so far as he has performed; or he may
       keep the contract alive for the benefit of both parties, being at all times ready and
       able to perform, and at the end of the time specified in the contract for
       performance, sue and recover under the contract; or he may treat the repudiation
       as putting an end to the contract for all purposes of performance, and sue for the
       profits he would have realized, if he had not been prevented from performing.

Syl. Pt. 1, Annon v. Lucas, 155 W.Va. 368, 185 S.E.2d 343 (1971).

        Petitioner argues that respondents repudiated the lease by knowingly allowing the concert
promoter to apply for the approvals needed to hold the festival. Petitioner argues that, even
though the festival did not occur, respondents’ actions were so clear and unequivocal that they
did not intend to abide by the lease restrictions on the use of the property that the circuit court
should have ruled that respondents breached the lease, rather than force petitioner to wait until
several thousand concert-goers show up on the property.

        Upon our review of the applicable law and under the facts presented in this case, we do
not find that there was a breach, anticipatory or otherwise, of the Farm Lease by respondents.
This Court has held that “[a]nticipatory repudiation and breach of contract, sufficient to give a
cause of action, or to use as a defense to suit by the repudiating party, must be unequivocal,
absolute and positive.” Syl. Pt. 1, Mollohan v. Black Rock Contracting, Inc., 160 W.Va. 446, 235
S.E.2d 813 (1977) (emphasis added). Moreover, in addition to being unequivocal, we have held
that the repudiation of the contract in question must “deal with the entire performance to which
the contract binds the party which it is claimed has renounced the same.” Id., 160 W.Va. at 451,
235 S.E.2d at 815-16 (citing Fayette-Kanawha Coal Co. [v. Lake and Export Coal Corp.], 91
W.Va. [132,] at 141-42, 112 S.E. [222,] at 226 [(1922)]).

        In the present case, there are three undeniable facts that foreclose petitioner’s anticipatory
breach argument: (1) respondents continually farmed the property consistent with the lease since
2006; (2) respondents did not cease farming the property with the filing of the application to the
Zoning Board; and (3) the application was ultimately withdrawn. As noted above, for
respondents’ conduct to constitute an anticipatory breach of the Farm Lease, they must have
unequivocally, absolutely, and positively repudiated their entire performance required under the
lease. Continuing to farm the property under the lease is entirely inconsistent with the type of
conduct required to establish a breach of the lease; respondents continued to do the very thing
that the lease required them to do. Therefore, there was no repudiation or compromise of the
“entire performance” required under the Farm Lease. Second, and possibly more damaging to
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petitioner’s argument, is the fact that the application was withdrawn after petitioner and
respondents could not reach a compromise regarding the music festival. Withdrawal of the
application demonstrated precisely the type of equivocation that showed that respondents lacked
an absolute and positive intent to breach the lease. Therefore, we reject petitioner’s argument that
respondents’ conduct constituted an anticipatory breach of the Farm Lease.

       Petitioner’s second assignment of error is that the circuit court erred in granting summary
judgment in favor of respondents based upon a finding that respondents did not “use” petitioner’s
property in a manner contrary to the lease. As support of its argument, petitioner argues that the
property was “used” for a prohibited purpose under the lease because it was the basis for the
Zoning Board application. As a consequence of this prohibited use, petitioner argues it should be
permitted to terminate the lease.

        Upon our review, we disagree with petitioner that the filing of the application, which was
later withdrawn, constituted a prohibited use of the property under the lease. “Where the terms of
a contract are clear and unambiguous, they must be applied and not construed.” Syl. Pt. 2,
Bethlehem Mines Corp. v. Haden, 153 W.Va. 721, 172 S.E.2d 126 (1969). We have also held
that “[t]he mere fact that parties do not agree to the construction of a contract does not render it
ambiguous. The question as to whether a contract is ambiguous is a question of law to be
determined by the court.” Syl. Pt. 1, Berkeley Cty. Pub. Serv. Dist. v. Vitro Corp. of Am., 152
W.Va. 252, 162 S.E.2d 189 (1968). The lease in the present case states as follows:

       4.      Purpose and Quiet Enjoyment: The Tenant shall be leasing the Premises
       for the purpose of planting, maintaining, and cultivating farm crops and/or other
       vegetation thereon, and the use of the Premises for any other purpose without
       Landlord’s written approval shall be a breach by Tenant of the terms of this lease.

       From our review of the clear and unambiguous lease terms, we cannot find that
respondent failed to comply with the restrictions on the use of the property. It is undisputed that
the property had been continually used for agricultural purposes since the lease’s inception. We
do not agree with petitioner’s interpretation of the lease that the application, alone, equated to a
prohibited use of the property. As we have already discussed, the application was withdrawn
shortly after it was filed; the concert event never made it beyond the early stages of
consideration. Accordingly, there was no prohibited use of the property within the lease’s plain
and unambiguous terms. Therefore, we reject petitioner’s second assignment of error.

       Petitioner’s final assignment of error challenges the circuit court’s reservation of
respondents’ claim for attorney’s fees in its summary judgment order. We note that respondents
included a claim for attorney’s fees in their counterclaim, but neither party addressed the issue
when the circuit court heard argument on the parties’ respective summary judgment motions on
January 21, 2016. We have held that “[a]s a general rule each litigant bears his or her own
attorney's fees absent a contrary rule of court or express statutory or contractual authority for
reimbursement.” Syl. Pt. 2, Sally-Mike Properties v. Yokum, 179 W. Va. 48, 365 S.E.2d 246
(1986). From our review of the record on appeal, we observe nothing that would indicate that
respondents are entitled to an award of attorney’s fees in this case. However, the circuit court has



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not yet ruled on respondents’ attorney’s fees claim; the matter is still pending before the circuit
court. Therefore, we decline to address the issue herein.

       For the foregoing reasons, we affirm the Circuit Court of Jefferson County’s January 28,
2016, order granting respondents’ motion for summary judgment.

                                                                                        Affirmed.

ISSUED: November 18, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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