                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-1460


COMMONWEALTH GROUP-WINCHESTER PARTNERS, L.P.,

                Plaintiff - Appellant,

           v.

WINCHESTER WAREHOUSING, INCORPORATED; SILVER LAKE, LLC,

                Defendants - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (5:07-cv-00024-gec-bwc)


Argued:   March 26, 2009                  Decided:   June 26, 2009


Before WILKINSON and SHEDD, Circuit Judges, and David A. FABER,
Senior United States District Judge for the Southern District of
West Virginia, sitting by designation.


Affirmed by unpublished opinion.    Senior Judge Faber wrote the
opinion, in which Judge Wilkinson and Judge Shedd joined.


ARGUED: John A. Lucas, MERCHANT & GOULD, PC, Alcoa, Tennessee,
for Appellant. Patrick Christopher Asplin, LENHART & OBENSHAIN,
PC, Charlottesville, Virginia, for Appellees.  ON BRIEF: Chris
Ashby, LECLAIR RYAN, Washington, D.C., for Appellant.   Richard
Armstrong,   William  Shmidheiser,   LENHART &  OBENSHAIN,  PC,
Charlottesville, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
FABER, Senior District Judge:

      Commonwealth Group-Winchester Partners appeals the district

court's     grant      of      summary     judgment          in    favor       of        Winchester

Warehousing and Silver Lake on its breach of contract claim and

the   district        court’s      dismissal         of    its    claim       for    reformation

based on mutual mistake.                  For the reasons set forth below, we

affirm.

                                                I.

                                                A.

      In    2003,      Commonwealth         Group-Winchester               Partners,            L.P.,

(“Commonwealth”) and the appellees Winchester Warehousing, Inc.,

and    Silver         Lake,        LLC,         (collectively            “WWW”)          commenced

negotiations      for       the    sale    of    approximately           40    acres       of    land

owned by the appellees in Winchester, Virginia.                                     Because the

property was to be developed as a shopping center that would

include     a    Wal-Mart         Supercenter,            WWW     submitted          a     rezoning

application to Frederick County seeking to have the property

rezoned from rural to commercial.                         In order to obtain rezoning

approval,       WWW    entered      into    a        Rezoning      Request      Proffer          with

Frederick       County      in     which    they          agreed    to     perform         certain

improvements      in     and      around    the      property      after       the       change   in

zoning.

      By letter agreement dated July 10, 2003, and signed on July

14, 2003, WWW and Commonwealth entered into a “Proposed Sale and

                                                 2
Purchase of Real Estate” in which they agreed to the following

relevant terms:

     1.    The sales price of said 40 acres shall total the
     sum of Nine Million Two Hundred Thousand and 00/100
     Dollars, ($9,200,000.00).     Said sum represents the
     purchase price for the real estate, as well as the
     development costs associated with the Buyer and
     Seller’s intended use for the Property.    The payment
     of said sum to the Seller shall be in a manner that is
     acceptable to both Seller and Buyer.

     2.   This agreement shall be binding on both Buyer and
     Seller, their heirs, successors and assigns, for a
     period of 45 days, starting on the date this document
     is fully executed.      It is clearly expressed and
     understood by all parties that the term of this letter
     is to be used for the preparation of the real estate
     purchase agreement, acceptable to both Buyer and
     Seller, outlining all terms and conditions of this
     proposed real estate purchase.   The Seller agrees not
     to accept any other offer for the Property during the
     45 day term, or any extension thereof.

JA 88 (emphasis in original).

     Several months later, Commonwealth and WWW signed a Real

Estate Purchase Agreement with an effective date of September

17, 2003.   It provided:

     1.   PURCHASE AND SALE AGREEMENT: Seller hereby agrees
     to sell and the Buyer hereby agrees to buy, on the
     terms and conditions of this Agreement, the fee simple
     interest, including both surface rights and mineral
     rights, in and to that certain real property of Seller
     located in the County of Frederick, State of Virginia,
     as outlined in red on the drawing that is attached
     hereto as Exhibit A (the “Property”).      The parties
     agree that the Property shall include a new internal
     road (the “Boundary Road”) [which] shall be located to
     the west of the Property and shall also include all
     property that is required to be dedicated for right-
     of-way as a result of the Proffer Work, as defined
     below.   The Boundary Road shall be located so that

                                3
    after deducting any property that will be in the
    right-of-way of the Boundary Road or that will be
    dedicated as right of work as a result of the Proffer
    Work, the Property will be a minimum of forty (40)
    acres.

                                     * * *

    3.   PURCHASE PRICE:     The purchase price for             the
    Property shall be the sum of Two Hundred Thousand           and
    00/100 Dollars ($200,000.00) per acre.         It            is
    contemplated that there will be forty (40) acres.           . .
    . Seller will use its best efforts to insure that           the
    acreage equals forty (40) acres. . . .

    4.   OFF-SITE WORK:      In addition to paying the
    Purchase Price, the Buyer shall perform the off-site
    work that is described in the summary of proffers that
    is attached as Exhibit B (the “Proffer Work”).      In
    addition, to the extent that the Proffer Work costs
    less than $1,200,000.00, the Buyer shall spend the
    difference between the cost of the Proffer Work and
    $1,200,000.00 in constructing the Boundary Road,
    provided, however, in no event shall the Buyer be
    required to construct the Boundary Road beyond the
    Northwest corner of the Property.

                                     * * *

    16. ENTIRE    AGREEMENT:     This  Contract   and  the
    documents referred to in this Contract constitute the
    entire agreement between the parties, and there are no
    other conditions, covenants or agreements which shall
    be binding between the parties.

    17. GOVERNING LAW:    This Contract shall be governed
    by and shall be interpreted in accordance with the
    laws of the Commonwealth of Virginia.

JA 19-28.

    Exhibit B to the Real Estate Purchase Agreement lists the

Proffer Work required for the property, in accordance with the

rezoning    agreement   with   the   county.   JA   28.   The   total   is


                                       4
divided between WWW and Winchester Medical Center (“WMC”). 1                             The

total cost of the Proffer Work was estimated to be $1,619,544,

with WWW responsible for $868,024, WMC responsible for $516,200,

and        the    Virginia          Department     of      Transportation         (“VDOT”)

responsible for the remainder.                   These estimates were provided by

Charles Maddox, the project engineer retained by the appellees

in    connection       with       the   rezoning    of     the    property      and    later

retained by Commonwealth to assist with its performance of the

Proffer      Work.        JA    43-48,      1000-02.       By    the   summer    of    2004,

however, the estimates for the share of the Proffer Work not

allocable         to   WMC     or    VDOT    had   risen    to     approximately       $1.6

million.         JA 46, 1011.

       Prior to closing, on July 22, 2004, WWW and WMC entered

into a Memorandum of Understanding regarding the Proffer Work.

It provided that “WMC shall be liable for 31.9% of the external

road improvement estimated costs to include change orders and

WWW shall be liable for 68.1% of the external road improvement

estimated         costs      to      include     change     orders.”         JA       41-46.

       Commonwealth and WWW closed on the sale of the property on

August 26, 2004.               Days after closing, on August 31, 2004, WWW


       1
       WMC owned the adjoining property and had made proffers as
part of the rezoning process for its land.    The two properties
were being developed in cooperation to reduce development costs.
JA 150.



                                               5
and Commonwealth entered into a side agreement (hereinafter the

“August 2004 Agreement”) which dealt with the manner in which

Commonwealth was to receive payment from WMC for its share of

the    Proffer   Work.     In    essence,   the    August   2004   Agreement

provided that WWW would receive payment from WMC and forward the

monies to Commonwealth.          More importantly for purposes of this

appeal, the Agreement also contained the following recital:

       WHEREAS, under the terms of the [Real Estate Purchase]
       Agreement, Commonwealth Group has agreed to perform
       the work necessary to satisfy the Proffers, with the
       responsibility for the payment for such work being
       allocated   to   Commonwealth  Group   and  Winchester
       Warehousing - Silver Lake in the Agreement;

JA 38-40 (emphasis added).

       As of January 26, 2007, the total cost of the Proffer Work

was $5,960,513.58, far above the initial estimate.             Commonwealth

sent a demand letter to WWW in which it stated that WWW was

contractually obligated to pay half the costs of the Proffer

Work    in   excess   of   the    amount    owed   by   WMC,   a   total   of

$2,029,554.87.     WWW made no payments to Commonwealth in response

to this demand or at any other time.         JA 47-48.

                                     B.

       Invoking the court’s diversity jurisdiction under 28 U.S.C.

§ 1332, on March 2, 2007, Commonwealth filed suit in the United

States District Court for the Western District of Virginia.                In

an amended complaint, filed on May 4, 2007, Commonwealth lodged


                                      6
three      claims:       Breach      of   Express        Contract      (Count    I),     Mutual

Mistake and Reformation (Count II), and Quantum Meruit (Count

III).       Commonwealth          contended           that    the   Proffer     Work    totaled

$5,960,513.58.            Of    that      total,       WMC    was   responsible        for    31.9

percent,          i.e.,        $1,901,403.83,                leaving    a       balance         of

$4,059,109.75, of which WWW should pay its “fair share.”                                        JA

124.       In the reformation count, Commonwealth contended that the

parties intended that its share of the cost of the Proffer Work

would not exceed $1.2 million and requests that, if the court

finds      that    the    terms      of    the    agreements        between     the     parties

failed      to    provide      for     such      an    allocation,      the    court     should

reform the contract to include it on the basis of the parties’

“mutual mistaken belief that the cost of the Proffer Work would

not exceed $1.2 million.”                 JA 125.

       By Memorandum Opinion and Order dated August 31, 2007, the

district court granted defendant’s motion to dismiss Count II of

the complaint, finding that there was no mutual mistake of fact

that would warrant reformation of the Agreement. 2                            JA 626.        As to

Commonwealth's claim for breach of express contract, however,

the court found that the agreements in question, when considered

together, raised an ambiguity with regard to the responsibility

       2
        In   that   same   order,  the   court  also  dismissed
Commonwealth’s claim under quantum meruit, see JA 628, a ruling
Commonwealth did not appeal.



                                                  7
for the payment of the cost of the Proffer Work.                          Specifically,

the district court found that the language in the Real Estate

Purchase       Agreement,   which       does    not   mention           any    allocation

between the parties, and the August 2004 Agreement, which states

that     the    Real   Estate    Purchase       Agreement         did     include       some

allocation, appear to be inconsistent.                  As a result, the court

permitted the parties to submit extrinsic evidence to shed light

on the parties' intent in entering into both agreements.

       After     considering     such    evidence,      the       court       found     that

Commonwealth had failed to raise a genuine dispute of material

fact with regard to the key issue of whether the agreements

signed    by     the   parties   provide       that   WWW     is    responsible          for

payment of any portion of the cost of the Proffer Work in excess

of $1.2 million.         JA 1334.        The district court found that the

evidence       “overwhelmingly”     supported     appellees'        claim        that    the

parties did not intend that WWW should bear the risk of any

overage in the cost of the Proffer Work.                    Id.     Accordingly, the

district       court   granted   WWW’s    motion      for    summary          judgment    on

Commonwealth’s claim for breach of express contract.                              See id.

This appeal followed.

                                          C.

       This court reviews a grant of summary judgment de novo,

construing the facts in the light most favorable to the non-

moving party.          Volvo Trademark Holding Aktiebolaget v. Clark

                                          8
Machinery Co., 510 F.3d 474, 481 (4th Cir. 2007).                “An award of

summary     judgment   may   be    appropriately     made    only   `if   the

pleadings,      depositions,      answers     to    interrogatories,      and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to summary judgment as a matter of

law.’”     Id. (quoting Fed. R. Civ. P. 56(c)).

      The Court of Appeals reviews de novo a district court's

dismissal under Fed. R. Civ. P. 12(b)(6).                Manning v. Fairfax

County School Board, 176 F.3d 235, 237 (4th Cir. 1999) (citing

Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.

1993), cert. denied, 510 U.S. 1197 (1994)).              "A complaint should

not be dismissed for failure to state a claim upon which relief

may   be    granted    unless     `after     accepting     all   well-pleaded

allegations in the plaintiff's complaint as true and drawing all

reasonable     factual    inferences        from   those    facts    in   the

plaintiff's favor, it appears certain that the plaintiff cannot

prove any set of facts in support of his claim entitling him to

relief.’”     Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)

(quoting Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th

Cir. 1999)).




                                      9
                                          II.

                                          A.

       Under Virginia law, to prevail on a claim for breach of

contract, a plaintiff must establish: (1) a legal obligation of

a defendant to a plaintiff, (2) a violation or breach of that

obligation,      and   (3)   a   consequential      injury    or     damage   to   the

plaintiff.       Hamlet v. Hayes, 641 S.E.2d 115, 117 (Va. 2007)

(citing    Caudill     v.    Wise   Rambler,      168   S.E.2d     257,   259      (Va.

1969)).     Furthermore, Virginia law regarding the interpretation

of contracts is well settled.                  Bridgestone/Firestone, Inc. v.

Prince William Square Assoc., 463 S.E.2d 661, 664 (Va. 1995).

       When contract terms are clear and unambiguous, a court
       must construe them according to their plain meaning.
       Foods First, Inc. v. Gables Associates, 244 Va. 180,
       182, 418 S.E. 2d 888, 889 (1992); Winn v. Aleda Const.
       Co., 227 Va. 304, 307, 315 S.E.2d 193, 194-95 (1984).
       The law will not insert by construction for the
       benefit of a party, an exception or condition which
       the parties omitted from their contract by design or
       neglect. Westbury Coal Mining v. J.S. & K. Coal, 233
       Va. 226, 229, 355 S.E. 2d 571, 573 (1987). Moreover,
       a court must construe the words as written and not
       make a new contract for the parties.         Berry v.
       Klinger, 225 Va. 201, 208, 300 S.E. 2d 792, 796
       (1983).

Id.; see also Berry v. Klinger, 300 S.E.2d 792, 796 (Va. 1983)

(“However inartfully it may have been drawn, the court cannot

make   a   new   contract     for   the    parties,     but   must    construe     its

language as written.”)(internal citation omitted).                     When all the

parts of a contract “can be read together without conflict,” a


                                          10
court must give meaning to every clause.                    Berry, 300 S.E.2d at

796.

       Whether particular documents are ambiguous is a question

of law.     Musselman v. Glass Works, L.L.C., 533 S.E.2d 919, 921

(Va. 2000).     If contract language is capable of being understood

in more than one way, it is ambiguous.                Video Zone, Inc. v. KF &

F   Properties,   L.C.,      594    S.E.2d     921,   924    (Va.     2004).     When

contract    language    is     ambiguous       a   court    may     admit   parol   or

extrinsic evidence, “not to contradict or vary contract terms,

but    to   establish   the        real   contract        between    the    parties.”

Tuomala v. Regent Univ., 477 S.E.2d 501, 505 (1996); see also,

Video Zone, Inc., 594 S.E.2d at 924 (“When the terms of an

agreement are ambiguous, a court will consider parol evidence to

ascertain the intent of the parties.”).

       Considered in isolation, the Real Estate Purchase Agreement

of September 17, 2003, is not ambiguous regarding who assumed

the    responsibility     of    paying       for    the    Proffer     Work.        The

responsible party is Commonwealth who, in the absence of any

other provision regarding payment for the Proffer Work, agreed

to pay the Purchase Price and perform the Proffer Work.                        Indeed,

under the express terms of the contract, Commonwealth is the

only party required to spend any money on the Proffer Work.                         JA

19-28 (“the Buyer shall spend the difference between the cost of

the Proffer Work and $1,200,000.00 in constructing the Boundary

                                          11
Road . . . .”).                  Under these circumstances, the word “perform”

in the Real Estate Purchase Agreement must mean complete the

work and pay for it.                  It is the only reasonable interpretation.

      Commonwealth                points        to      three      other       documents       that,

according      to       it,       show    WWW      is     responsible        for   paying    for    a

portion      of        the       Proffer      Work        and,    accordingly,        render     the

contract ambiguous.                   The first of these is the Proposed Sale and

Purchase      of       Real       Estate      dated       July    14,    2003,        (“letter     of

intent”) which provided for a sales price of $9.2 million, a

figure that was intended to include both the purchase price for

the   real     estate            as   well    as     the       costs    of   the   Proffer     Work.

Significantly,               a        provision         capping         Commonwealth’s         total

investment at $9.2 million - like the one included in the letter

of    intent       -    was       not     a   part        of     the    Real    Estate     Purchase

Agreement.             Rather than creating a ceiling for Commonwealth’s

total cash outlay with respect to the property, the Real Estate

Purchase Agreement actually created a floor of $9.2 million in

which Commonwealth agreed to spend at least that amount on the

purchase of the property, completion of the Proffer Work, and

possibly the construction of the Boundary Road.                                    The fact that

the   terms       changed         supports         WWW’s       contention      that   it   did   not

agree to the cap included in the letter of intent and indicates




                                                     12
that       Commonwealth        was   also    aware     that    its    exposure    would   no

longer be explicitly capped. 3

       According          to     Commonwealth,          the     July        Memorandum    of

Understanding between WWW and WMC, providing that WMC was liable

for 31.9% of the estimated costs for external road improvements

and WWW was liable for 68.1%, see JA 41-46, establishes WWW’s

liability to pay a portion of the costs of the Proffer Work.

However,       Commonwealth          was   not    a   party    to    this    Memorandum   of

Understanding.             Accordingly,          the    document       does    nothing    to

establish WWW’s responsibility for payment of the Proffer Work

vis-a-vis Commonwealth.

       The     last      document     in     support    of    Commonwealth’s      position

that WWW is responsible to pay for some portion of the Proffer

Work is the August 2004 Agreement.                     Significantly, this document

was     signed     almost       a     year    after     the    Real     Estate    Purchase

Agreement and five days after the transaction closed.                                  After

considering extrinsic evidence on the issue, the district court

found       that   the    August      2004    Agreement       was    drafted    and   signed

solely to guarantee payment to Commonwealth of the amounts due

for the Proffer Work from WMC.                        The evidence showed that the

parties had originally investigated the possibility of having

       3
       A memorandum prepared by Commonwealth’s attorney also
confirmed   that   WWW   rejected    a   contract  that   capped
Commonwealth’s total investment at $9.2 million. JA 734-36.



                                                 13
the Memorandum of Understanding between WWW and WMC assigned to

Commonwealth, but they did not want to wait until WMC's next

board meeting for approval of such an assignment.                     As a result,

Commonwealth     and    WWW      entered    into     the   side   agreement       which

stated,    in   pertinent     part,    “WHEREAS,       under   the   terms    of    the

Agreement, Commonwealth Group has agreed to perform the work

necessary to satisfy the Proffers, with the responsibility for

the payment for such work being allocated to Commonwealth Group

and Winchester Warehousing-Silver Lake in the Agreement.”

      The evidence is undisputed that the August 2004 Agreement

was not intended to alter or explain the provisions for payment

of   the   Proffer     Work   contained         in   the   Real   Estate     Purchase

Agreement.      Rather, the evidence confirmed that the purpose of

the August 2004 Agreement was to ensure that Commonwealth would

receive the benefit of WWW’s agreement with WMC. 4                    Furthermore,

without more, the fact that the Agreement purportedly allocates

responsibility       for   the    payment       of   the   Proffer   Work    to    both

Commonwealth and WWW does not impose an obligation on WWW to pay

for the costs of the Proffer Work.                     This is especially true

given the lack of a specific allocation amount.                      It could very

well be the case that the responsibility for the payment of the


      4
       This evidence included a series of e-mails between the
real estate agent, Commonwealth, and Commonwealth’s attorney on
August 12 and 13, 2004. JA 723-727, 1046-47.


                                           14
Proffer Work was “allocated” to both Commonwealth and WWW as a

group    but   that,     based   upon   the    agreements       between    the   two,

Commonwealth alone was obligated to pay for all the costs of the

Proffer Work. 5

     Even assuming that the Real Estate Purchase Agreement was

ambiguous, there is no extrinsic evidence to indicate that WWW

agreed to be responsible for payment of the costs of the Proffer

Work.      Commonwealth,         however,     contends     that     it    presented

evidence to the district court which showed the intent of the

parties    was    that    Commonwealth       would   pay   no    more     than   $1.2

million    to     complete       the    Proffer      Work.         According       to

Commonwealth, at a minimum, the following evidence created a

disputed issue of material fact:

     1.   An e-mail dated March 1, 2005, from Ronald
     Mislowsky, an engineer working on the project, to Becky
     Wright, Commonwealth's in-house engineer, in which
     Mislowsky said “As your interest in the improvements is
     capped at 1.2 mil, do you want to be briefed on the
     efforts to get the costs down?” JA 1172.

     2.   A draft pro forma financial statement on the
     project, prepared by Commonwealth to submit to Regions
     Bank, showing an expected reimbursement from WWW in
     addition to the expected reimbursement from WMC.    JA
     1174.


     5
       If the allocation language in the August 2004 contract is
interpreted in this manner, there is no inconsistency between
the Real Estate Purchase Agreement and the August 2004 Agreement
and, therefore, no ambiguity in the Real Estate Purchase
Agreement.



                                        15
     3.   A November 2005 email from Kelley Mikels at
     Commonwealth in which she states that “we are only
     obligated by Agreement to pay $1.2m of the now
     estimated $4m, and they are not willing to pay the
     overages from their estimates.” JA 1176.

     4.    The deposition testimony of Milton Turner and
     Timothy Scoggin, both from Commonwealth, indicating
     that both believed Commonwealth’s total outlay for the
     Proffer Work was capped at $1.2 million. JA 1095,
     1164.

     As the district court found, all this evidence speaks only

to Commonwealth's intent and does not demonstrate the parties'

mutual intent was for WWW to pay for any portion of the Proffer

Work.   While    the    evidence     is       undisputed    that   neither       party

anticipated    the    costs   of   the    Proffer    Work     would   exceed      $1.2

million when they signed the Real Estate Purchase Agreement, it

does not lead to a conclusion that WWW agreed to be responsible

for some portion of the overage.               Indeed, common sense suggests

otherwise.     First, under Commonwealth’s theory, WWW would be

responsible for the costs of the Proffer Work in excess of $1.2

million even though it had no control over the performance of

the Proffer Work, including its timing, selection of vendors,

costs, etc.    Second, Commonwealth never billed WWW for any costs

of the Proffer Work or made a formal demand until January 2007,

even though it had been sending invoices to WMC since November

2005.    Finally,       throughout        the     course      of   this    dispute,

Commonwealth    has    changed     the   amount    of   its    demand     more    than



                                         16
once,       underscoring     the   lack        of    any     specific     contractual

obligation for WWW to pay a portion of the Proffer Work.

       “[C]ourts will not write contracts for the parties to them

nor construe them other than in accordance with the plain and

literal meaning of the language used.”                  Henrietta Mills, Inc. v.

Commissioner of Internal Revenue, 52 F.2d 931, 934 (4th Cir.

1931).       However, this is exactly what Commonwealth urges the

court to do.        In asking the court to find WWW responsible for

payment of the Proffer Work in the absence of any language in

the contract imposing such a responsibility, the court would, in

effect, be writing the contract for the parties.                         Based on the

foregoing, the district court did not err in granting summary

judgment in WWW’s favor.

                                          B.

       As    an   alternative      to     its       breach    of    contract    claim,

Commonwealth sought reformation of the contract based upon the

parties’ mutually mistaken belief that the costs of the Proffer

Work     would    not   exceed     $1.2    million.           The    district    court

dismissed Commonwealth’s reformation claim, finding that there

was no mutual mistake of fact.

         A court may reform or rescind a contract in equity “on

the ground of mutual mistake.                  The mistake must be common to

both    parties.        A   unilateral     mistake         will    not   invalidate   a



                                          17
contract.”    Langman v. Alumni Ass’n of Univ. of Virginia, 442

S.E.2d 669, 677 (Va. 1994) (internal citations omitted).

     The   Restatement   defines   “mistake”   as    “a    belief     not   in

accord with the facts.”    Restatement (Second) of Contracts § 151

(1981).    “Furthermore, the erroneous belief must relate to the

facts as they exist at the time of the making of the contract.

A party’s prediction or judgment as to events to occur in the

future, even if erroneous, is not a `mistake’ as that word is

defined    here.”    Id.   at   Comment   a;   see        also    Matter    of

Westinghouse Elec. Corp. Uranium Contracts Litig., 517 F. Supp.

440, 457 (E.D. Va. 1981)(holding that an erroneous prediction

about the future is not a mutual mistake of fact).               According to

this court,

     In determining whether there has been a mutual mistake
     of fact, we must examine the facts as they existed at
     the time of the agreement. . . . A mutual mistake in
     prophecy or opinion may not be taken as a ground for
     rescission where such mistake becomes evident through
     the passage of time. What is today only a conjecture,
     an opinion, or a guess, might by tomorrow, through the
     exercise of hindsight, be regarded then as an absolute
     fact.

United States v. Garland, 122 F.2d 118, 122 (4th Cir.) (internal

citation omitted), cert. denied, 314 U.S. 685 (1941).

     As an illustration, the Restatement provides the following

helpful example:

    A contracts to sell and B to buy stock amounting to a
    controlling interest in C Corporation. At the time of
    making the contract, both A and B believe that C

                                   18
      Corporation will have earnings of $1,000,000 during
      the following fiscal year. Because of a subsequent
      economic recession, C Corporation earns less than
      $500,000 during that year. Although B may have shown
      poor judgment in making the contract, there was no
      mistake of either A or B, and the rules stated in this
      Chapter do not apply.

Restatement (Second) of Contracts § 151 Comment a, illus. 2

(1981).

      In dismissing Commonwealth’s reformation count and finding

that there was no mutual mistake of fact, the district court

stated

      There was an agreement between the parties regarding
      the sale of the property and the performance of the
      Proffer Work.   Either [Commonwealth is] correct that
      the parties intended to allocate the cost of the
      Proffer Work between themselves or [WWW is] correct
      that the parties intended Commonwealth to bear the
      entire burden of the costs of the Proffer Work.     Any
      estimates or predictions regarding the ultimate total
      of the cost of the Proffer Work were just that -
      predictions - and as such were not mutual mistakes of
      fact which would warrant reformation of the Agreement.

JA 626.

      The district court’s conclusion on this point is in line

with other courts that have considered the issue.                      See, e.g.,

United States v. Southwestern Elec. Coop., Inc., 869 F.2d 310,

314 (7th Cir. 1989) (holding that electric cooperative could not

avoid     contractual    obligations        to   power    company      under     the

doctrine of mutual mistake where mistake involved an erroneous

prediction as to future costs of construction of power plant);

see   also   Ryan   v.   Ryan,   640   S.E.2d    64,     68-69   (W.   Va.     2006)

                                       19
(parties’ erroneous belief that asset provisions of agreements

would generate sufficient income was not a mistake which would

warrant reformation or voiding of agreements and listing cases).

     Because the doctrine of mutual mistake does not apply to

predictions of future costs -- which are just what the estimated

costs of the Proffer Work were -- the district court did not err

in dismissing Commonwealth’s claim seeking reformation of the

contract.



                              III.

     For the reasons stated above, the judgment of the district

court is

                                                        AFFIRMED.




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