Jerry N. Black, M.D. v. St. Joseph's Hospital of Buckhannon, Inc.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2014 Term
_____________ FILED
September 30, 2014
released at 3:00 p.m.
No. 13-0926 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_____________ OF WEST VIRGINIA
JERRY N. BLACK, M.D.,
Defendant Below, Petitioner
v.
ST. JOSEPH’S HOSPITAL OF BUCKHANNON, INC.,
Plaintiff Below, Respondent
____________________________________________________________
Appeal from the Circuit Court of Upshur County
The Honorable John L. Henning, Jr., Judge
Civil Action No. 12-C-52
AFFIRMED IN PART; REVERSED IN PART; and REMANDED
____________________________________________________________
Submitted: September 3, 2014
Filed: September 30, 2014
J. Burton Hunter, III, Esq. Marc E. Williams, Esq.
J. Burton Hunter, III and Associates, PLLC Robert M. Sellards, Esq.
Buckhannon, West Virginia Kelly Calder Mowen, Esq.
Counsel for the Petitioner Nelson Mullins Riley & Scarborough, LLP
Huntington, West Virginia
Counsel for the Respondent
JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT
“An option given for the sale of land, supported by a valuable
consideration, is not a sale of real estate, nor an agreement to sell, but is an executed
contract, giving the optionee the exclusive privilege of purchasing within the time
limited, and which cannot be withdrawn during the time stipulated for; and upon
acceptance within that time it becomes an executory contract for the sale of land, which
may be specifically enforced in a proper case.” Syllabus Point 2, Pollock v. Brookover,
60 W.Va. 75, 53 S.E. 795 (1906).
Justice Ketchum:
Petitioner/defendant below, Dr. Jerry N. Black (“Dr. Black”), appeals from
an order of the Circuit Court of Upshur County granting summary judgment in favor of
respondent/plaintiff below, St. Joseph’s Hospital of Buckhannon, Inc. (“hospital”). The
hospital filed a complaint for declaratory judgment asking the circuit court to declare that
an “Option to Repurchase” agreement it entered into with Dr. Black was an option
contract rather than a “right of first refusal.” The hospital’s complaint did not seek a
determination of whether the “Option to Repurchase” agreement was a valid option
contract or a determination of the time frame in which it could exercise the option.
At the summary judgment hearing, both parties agreed that the “Option to
Repurchase” agreement was, in fact, an option contract. During the hearing, counsel for
Dr. Black stated that the actual disagreement between the parties concerned the time
frame in which the option could be exercised. The circuit court stated, “That’s not part of
the case . . . . I’m not deciding that one way or the other. Please prepare an Order which
says that the matter was determined by the Court to be an option contract . . . that is the
sole question decided by this Court.” Following this hearing, counsel for the hospital
prepared an order stating that the “Option to Repurchase” agreement is an option
contract, but added that the “Option Contract is a valid Option Contract under West
Virginia law.” (Emphasis added). The circuit court entered the order prepared by the
hospital, over Dr. Black’s objection, on August 8, 2013.
1
On appeal, Dr. Black argues that the validity of the option contract was not
an issue before the circuit court. Dr. Black states that the hospital’s complaint for
declaratory judgment only sought a determination of whether the “Option to Repurchase”
agreement was an option contract rather than a “right of first refusal.” Because the
validity of the option contract was outside the scope of the hospital’s complaint,
according to Dr. Black, he asks that we reverse the summary judgment order’s ruling that
“[the] Option Contract is a valid Option Contract under West Virginia law.”
After review, we find that the hospital’s complaint for declaratory judgment
did not seek a determination of the validity of the option contract or a determination of
the time frame in which the option could be exercised. It only sought a determination of
whether the “Option to Repurchase” agreement was an option contract rather than a
“right of first refusal.” Further, the circuit court’s announced decision at the summary
judgment hearing made no ruling on the validity or time frame in which the option
contract could be exercised. Instead, the circuit court stated that the “sole issue” it
decided was that the “Option to Repurchase” agreement was an option contract. We
therefore reverse the ruling contained in the circuit court’s summary judgment order that
the “Option Contract is a valid Option Contract under West Virginia law.” We affirm the
order’s ruling that the “Option to Repurchase” agreement is an option contract.
2
I.
FACTUAL AND PROCEDURAL BACKGROUND
On June 3, 1982, Dr. Black and the hospital entered into a “Memorandum
Agreement” in which the hospital agreed to deed certain real property to Dr. Black upon
which he would construct a building, at his own expense, to serve as the location for his
medical practice.1 The “Memorandum Agreement” contains the following provision:
“Hospital . . . is hereby granted the first option to purchase the land for the sum of $1.00
and the Physicians Office Building pursuant to the terms and conditions shown on the
option agreement attached hereto[.]”2 The attached agreement is entitled “Option to
Repurchase.” It states that Dr. Black does “hereby grant to Hospital the first option to
purchase the premises known as Physicians Office Building . . . This option shall expire
1
This property is located in Upshur County, West Virginia, and contains 13,069
square feet. The “Memorandum Agreement” includes the following:
Physician [Dr. Black] agrees that the Unit within the
building will be used and occupied only by members of the
medical, surgical and oral surgical staff at St. Joseph’s
Hospital hereinafter referred to Physician. In addition, only
those activities reasonably related to the practice of Physician
shall be permitted in the Unit provided and further, only if
such activities are performed in conjunction with or are
supportive of the practice of the Doctors.
2
The terms and conditions state “[t]he purchase price shall be the sum of One
Dollar ($1.00) and the fair market value for the building . . . as determined by three
arbitrators.”
3
at noon on June 3, 2081 unless otherwise extended by the operation of this agreement or
consent of the parties hereto[.]”
The “Option to Repurchase” agreement contains one paragraph addressing
the notice the hospital must provide to Dr. Black prior to exercising the option and one
paragraph addressing the time period during which the hospital can exercise the option.
Paragraph three of the “Option to Repurchase” agreement, entitled “Notice of Exercise,”
provides, in relevant part, “This option shall be exercised by written notice signed by St.
Joseph’s and sent by registered mail at least one year prior to the expiration date [June 3,
2081].” (Emphasis added). Paragraph five of the agreement, entitled “Time During
Which Option May Be Exercised,” states, in relevant part, “This first option will be
exercised by giving written notice as set forth in paragraph 3 herein which notice can
only be given at any time within one year prior to the date of the expiration of this
Option[.]” (Emphasis added).
The hospital filed a complaint for declaratory judgment against Dr. Black
on April 20, 2012.3 The complaint alleges that “Dr. Black refuses to recognize St.
Joseph’s Hospital’s Option to Repurchase but instead considers the same to be a right of
first refusal. Due to Dr. Black’s incorrect legal position, a justiciable controversy now
exists between the parties herein.” The complaint goes on to allege that
3
The hospital’s complaint for declaratory judgment was filed pursuant to the West
Virginia Uniform Declaratory Judgment Act, W.Va. Code § 55-13-1 [1941], et seq.
4
Dr. Black has taken the position that St. Joseph’s Hospital
cannot exercise its executed option contract until an offer is
made to a bona fide purchaser. This is an incorrect statement
of law as St. Joseph’s Hospital clearly possesses an executed
option contract that can be exercised at any point within the
agreed-upon time frame regardless of the existence of a bona
fide purchaser.
Based on this allegation, the hospital’s complaint seeks the following relief:
A declaration that Plaintiff [hospital] possesses an
executed option contract that can be exercised by the
optionee, Plaintiff [hospital], at any point within the agreed-
upon time frame and without the need for any condition
precedents to be met.
The hospital’s complaint for declaratory judgment does not ask for a
determination of when the “agreed-upon time frame” occurs under the terms of the
“Option to Repurchase” agreement. Instead, the complaint for declaratory judgment only
asks the circuit court to declare that the “Option to Repurchase” is an option contract.
On April 25, 2013, the hospital filed a motion for summary judgment
asserting that the “Option to Repurchase” agreement is an option contract. The circuit
court4 held a hearing on this motion on June 21, 2013. At this hearing, counsel for the
hospital stated that it was only seeking a determination of whether the “Option to
Repurchase” agreement was an option contract or a “right of first refusal,” nothing more.
Counsel for the hospital stated:
4
Judge Thomas H. Keadle entered an order denying a motion to dismiss filed by
Dr. Black. Judge Keadle retired on January 31, 2013. Judge John L. Henning, Jr.,
presided over the summary judgment hearing.
5
[W]e brought before the Court a complaint for declaratory
judgment and we simply ask the Court, “Is the document an
option contract or a right of first refusal?” Nothing more. We
didn’t ask when it could be exercised, we didn’t ask for the
interpretation of it, we just asked the Court to tell us whether
it was or wasn’t [an option contract].
(Emphasis added).
Counsel for Dr. Black told the court that he did not dispute that the “Option
to Repurchase” agreement was an option contract. However, counsel for Dr. Black
stated, “[W]hat I want to tell the Court is that the real issue in this case is whether St.
Joseph’s can exercise that option now or during the last year of a 99-year term[.]”5
Following this statement, the circuit court engaged in the following dialogue with Dr.
Black’s counsel:
Circuit Court: So you are saying that you agree with them that it’s an
option contract?
Counsel: Always have.
Circuit Court: Period. Done deal. Case dismissed. Right?
Counsel: Well, if that’s what they’re saying. But it’s our
understanding –
5
Dr. Black states that under the plain language of paragraph five of the “Option to
Repurchase” agreement, the option can only be exercised “at any time within one year
prior to the date of the expiration of this Option.” By contrast, Dr. Black states that the
hospital contends that it may exercise the “Option to Repurchase” at any time prior to one
year before the date of the expiration of the “Option to Repurchase.” Stated another way,
Dr. Black argues that the hospital can only exercise its option between June 3, 2080, and
June 3, 2081; whereas the hospital believes it can exercise its option at any time prior to
June 3, 2080, one year before the option expires.
6
Circuit Court: That’s what they are saying and they are saying you
agree with them.
Counsel: As far as it goes.
Circuit Court: And that’s all they want to know.
Counsel: And if they are not seeking a ruling on whether they
can exercise that option now, go on record saying that
if they try, we’ll resist it.
Circuit Court: That’s not part of the case. That’s not part of the case.
. . . I’m not deciding that one way or the other. Please
prepare an Order which says that the matter was
determined by the Court to be an option
contract.
The circuit court ordered counsel for the hospital to prepare the order
granting summary judgment in the hospital’s favor. The circuit court stated, “Please
prepare an order which says that the matter was determined by the Court to be an option
contract.” The circuit court also stated that its ruling that the “Option to Repurchase”
agreement was an option contract “is the sole question decided by this Court.”
Following the summary judgment hearing, counsel for the hospital prepared
an order that contained two paragraphs under the heading “Findings of Fact and
Conclusions of Law.” Those two paragraphs are as follows:
1. Defendant [Dr. Black] entered into an Option
Contract with Plaintiff [hospital] dated June 3, 1982. This
option contract has been recorded at Book 306 Page 140-143.
2. The June 3, 1982 Option Contract is a valid
Option Contract under West Virginia law.
7
On July 2, 2013, Dr. Black filed an objection to the hospital’s proposed
order, arguing that the word “valid” preceding “option contract” in paragraph two was
improperly inserted into the order. Dr. Black maintained that the circuit court
specifically did not rule on the validity or time period during which the hospital could
exercise its option. Further, Dr. Black stated that the “wording of the proposed order
should simply say the document entitled ‘option contract’ of the parties is an option
contract. This Court did NOT rule on its validity, the meaning of its notice terms, or its
enforceability.”
The circuit court entered the order prepared by counsel for the hospital,
over Dr. Black’s objection, finding the agreement was a “valid” option contract.6 Dr.
Black subsequently filed the present appeal.
II.
STANDARD OF REVIEW
Dr. Black appeals the circuit court’s order granting summary judgment in
favor of the hospital. Our standard of review of a circuit court’s entry of summary
6
It appears that the circuit court did not conduct a hearing on Dr. Black’s motion
objecting to the hospital’s proposed order. Similarly, the appendix-record does not
contain a circuit court order denying Dr. Black’s motion objecting to the hospital’s
proposed order. The hospital’s brief states “the Circuit Court, after consideration of Dr.
Black’s objections to the proposed order granting summary judgment . . . adopted [the
hospital’s] proposed order[.]”
8
judgment is de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755
(1994). We have held that “[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.” Syllabus Point 3, Aetna
Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
Further,
[s]ummary judgment is appropriate where the record taken as
a whole 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.
Syllabus Point 4, Painter, 192 W.Va. 189, 451 S.E.2d 755.
Additionally, in Syllabus Point 3 of Cox v. Amick, 195 W.Va. 608, 466
S.E.2d 459 (1995), this Court noted, “A circuit court’s entry of a declaratory judgment is
reviewed de novo.” More specifically, this Court stated in Cox that “because the purpose
of a declaratory judgment action is to resolve legal questions, a circuit court’s ultimate
resolution in a declaratory judgment action is reviewed de novo; however, any
determinations of fact made by the circuit court in reaching its ultimate resolution are
reviewed pursuant to a clearly erroneous standard.” Id. at 612, 466 S.E.2d at 463.
With the foregoing in mind, we consider the parties’ arguments.
9
III.
ANALYSIS
A declaratory judgment action is a proper procedural means for
adjudicating the legal rights of parties to a disputed contract. West Virginia Code § 55-
13-1 [1941] provides:
Courts of record within their respective jurisdictions shall
have power to declare rights, status and other legal relations
whether or not further relief is or could be claimed. No action
or proceeding shall be open to objection on the ground that a
declaratory judgment or decree is prayed for. The declaration
may be either affirmative or negative in form and effect; and
such declarations shall have the force and effect of a final
judgment or decree.
Additionally, “[a]ny person interested under a . . . written contract, or other
writings constituting a contract . . . may have determined any question of construction or
validity arising under the . . . contract . . . and obtain a declaration of rights, status or
other legal relations thereunder.” W.Va. Code § 55-13-2 [1941].
As Justice Cleckley explained in his concurring opinion in Cox v. Amick,
195 W.Va. at 618, 466 S.E.2d at 469, the West Virginia Uniform Declaratory Judgment
Act, W.Va. Code § 55-13-1, et seq., “is designed to enable litigants to clarify legal rights
and obligations before acting upon them.” Thus, “the principal purpose of a declaratory
judgment action is to resolve legal questions.” Joslin v. Mitchell, 213 W.Va. 771, 775,
584 S.E.2d 913, 917 (2003).
Turning to the present controversy, the hospital’s complaint for declaratory
judgment asked the circuit court to declare that the “Option to Repurchase” agreement it
10
entered into with Dr. Black was an option contract rather than a “right of first refusal.”7
As this Court explained in Pollock v. Brookover, 60 W.Va. 75, 53 S.E. 795 (1906), an
option contract
is not a contract to sell, nor an agreement to sell, real estate,
because there is no mutuality of obligation and remedy; but it
is a contract by which the owner agrees with another person
that he shall have the right to buy, within a certain time, at a
stipulated price. It is a continuing offer to sell, which may or
may not, with the time specified, at the election of the
optionee, be accepted. The owner parts with his right to sell to
another for such time, and gives to the optionee this exclusive
privilege. It is the right of election to purchase, which has
been bought and paid for, and which forms the basis of the
contract between the parties. Upon the payment of the
consideration, and the signing of the option, it becomes an
executed contract - not, however, an executed contract selling
the land, but the sale of the option, which is irrevocable by
the optionor, and which is capable of being converted into a
valid executory contract for the sale of land[.]
Based on this discussion, the Court in Pollock held:
An option given for the sale of land, supported by a
valuable consideration, is not a sale of real estate, nor an
7
This Court addressed the distinction between an option contract and a “right of
first refusal” in Smith v. VanVoorhis, 170 W.Va. 729, 731, 296 S.E.2d 851, 853 (1982),
stating:
In a typical option the optionee has the absolute right
to purchase something for a definite consideration. A pre-
emptive right [right of first refusal] involves the creation of
the privilege to purchase only on the formulation of a desire
on the part of the owner to sell; and . . . the holder of the right
must purchase for the price at which the owner is willing to
sell to a third person.
11
agreement to sell, but is an executed contract, giving the
optionee the exclusive privilege of purchasing within the time
limited, and which cannot be withdrawn during the time
stipulated for; and upon acceptance within that time it
becomes an executory contract for the sale of land, which
may be specifically enforced in a proper case.
Syllabus Point 2, Id. Accord Syllabus Point 3, Am. Canadian Expeditions, Ltd. v. Gauley
River Corp., 221 W.Va. 442, 655 S.E.2d 188 (2007).
Both the hospital and Dr. Black agree that the “Option to Repurchase”
agreement is an option contract. While conceding that the “Option to Repurchase”
agreement is an option contract, Dr. Black argues that the option contract’s validity was
not an issue in this case and should not have been included in the circuit court’s summary
judgment order. In support of this argument, Dr. Black cites the circuit court’s statement
at the summary judgment hearing that “the sole question decided by this Court” is that
the “Option to Repurchase” agreement is an option contract. When counsel for Dr. Black
stated that actual dispute between the parties was the time frame in which the option
could be exercised, the circuit court stated: “That’s not part of the case. That’s not part of
the case . . . I’m not deciding that one way or the other.” Further, Dr. Black notes that
the circuit court instructed counsel for the hospital to prepare an order stating, “[T]he
matter was determined by the Court to be an option contract.” The circuit court did not
instruct counsel for the hospital to prepare an order stating that the matter was determined
to be a valid option contract. Because the circuit court’s ruling was restricted to the sole
question of whether the agreement was an option contract, Dr. Black argues that the
12
circuit court erred by entering an order containing the legal conclusion that the “Option to
Repurchase” agreement is a valid option contract under West Virginia law.
By contrast, the hospital argues that the circuit court correctly determined
that the “Option to Repurchase” agreement is an option contract. The hospital argues that
the narrow question of law before the circuit court was only whether the “Option to
Repurchase” agreement was an option contract or a “right of first refusal.” The hospital
states that “Dr. Black argued about the terms, enforceability and timing of the option
contract – all issues that were not properly before the circuit court, and are not properly
before this Court on appeal.” While conceding that these issues regarding the substance
of the option contract were not properly before the circuit court, the hospital fails to
address why the order it prepared following the summary judgment hearing included a
substantive legal conclusion—that the “Option to Repurchase” agreement is a “valid”
option contract under West Virginia law.
After review, we find that the validity and time frame in which the option
could be exercised were issues not properly before the circuit court because the hospital’s
complaint for declaratory judgment only sought a determination of whether the “Option
to Repurchase” agreement was an option contract rather than a “right of first refusal.”
The hospital’s complaint did not seek a declaration on the validity of the option contract
or the time frame in which the option could be exercised. Before a court can determine
the validity of a contract, it must consider the contract terms and, in the present case, the
13
time frame in which the option could be exercised.8 Because these issues were not before
the circuit court or considered by the circuit court, it was error for the circuit court’s
summary judgment order to include a legal conclusion regarding the option contract’s
validity.
The narrow scope of the hospital’s declaratory judgment complaint was
evident during the summary judgment hearing. At this hearing, counsel for the hospital
told the circuit court, “We didn’t ask when it [the option] could be exercised, we didn’t
ask for the interpretation of it[.]” This statement is in direct opposition to the legal
conclusion the hospital placed in the order following the hearing. In the first instance, the
hospital told the court that it was not seeking an interpretation of the option contract. In
the order it submitted to the circuit court, however, the hospital included its interpretation
that the option contract was valid.
The parties’ conflicting interpretations of the “Option to Repurchase”
agreement demonstrate that there is substantial disagreement regarding the option
contract’s validity. According to a report prepared by Dr. Black’s expert, Dean John W.
Fisher, II, the option contract’s validity is dependent on the time frame in which the
option can be exercised. Dean Fisher agreed with Dr. Black’s suggested interpretation of
8
“A well-established principle of contract law is that it is essential to the validity
of any contract, including an option agreement, that a definite time for performance either
be stated in the contract or be ascertainable from the contract’s expressed or implied
provisions.” Validity of Option to Purchase Realty as Affected by Indefiniteness of Term
Provided for Exercise, 31 A.L.R. 3d 522 (1970).
14
the “Option to Repurchase” agreement—that the hospital could only exercise its option
during the final year of the agreement. Additionally, Dean Fisher asserted that the
hospital’s interpretation of the option contract—that it could be exercised at any time
prior to June 3, 2080—“violates the common law rule against perpetuities.”9 The circuit
9
Dean Fisher stated:
For purpose of discussion, if one were to assume
Plaintiff’s [hospital] interpretation is correct, it leaves the
Plaintiff with what I believe is an insurmountable Rule
Against Perpetuities problem. If one accepts the Plaintiff’s
reading of the documents, I believe the agreement becomes
patently inequitable. . . .
In conclusion, I note that I am in agreement with the
interpretation of the documents involved in this case as
articulated in your [Dr. Black’s] motion to dismiss and the
substance of your response to the Plaintiff’s motion for
summary judgment. . . . My opinion is reflective of my
teaching of Property Law for over forty years and my
research and writing on the subject area.
In addition to this expert witness report, Dr. Black argued that the hospital’s
suggested interpretation of the option contract defies “common sense.” Dr. Black stated:
Who, in his right mind, would sign an agreement
which, if the interpretation of [the hospital] in this case were
accepted, where he constructed a building, at his own
expense, only to be vulnerable, during the rest of his career
and during the entire period of the option, to the hospital’s
repurchasing the property for “$1.00 plus fair market value”?
To do so would place the physician at the greatest peril
in being forced to sell in the event of a dramatic event in
market forces resulting in an unprecedented reduction in fair
market value. It would permit the hospital, at any time it
(continued . . .)
15
court did not rely on or discuss Dean Fisher’s opinion at the summary judgment hearing,
however, because the sole issue before it was whether the “Option to Repurchase”
agreement was an option contract rather than a “right of first refusal.” Had the validity of
the option contract been an issue in this case, Dean Fisher’s opinion would have been
relevant to that determination.
Because the hospital’s complaint and motion for summary judgment did not
seek a determination of whether the option contract was valid, and because the circuit
court refused to consider the validity of the option contract during the summary judgment
hearing, it was error for the circuit court to rule that the “Option to Repurchase”
agreement is a valid option contract.10
should choose, and any time advantageous to it, to obtain a
huge windfall[.]
10
The circuit court’s summary judgment order did not offer sufficient factual or
legal support for its ruling that the “Option to Repurchase” agreement is a “valid” option
contract. Had the option contract’s validity been an issue in this case, the summary
judgment order’s failure to offer sufficient factual or legal support explaining why the
“Option to Repurchase” agreement is a “valid” option contract would have required this
Court to remand this case pursuant to Syllabus Point 3 of Fayette County National Bank
v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997):
Although our standard of review for summary
judgment remains de novo, a circuit court’s order granting
summary judgment must set out factual findings sufficient to
permit meaningful appellate review. Findings of fact, by
necessity, include those facts which the circuit court finds
relevant, determinative of the issues and undisputed.
16
IV.
CONCLUSION
We reverse the following ruling contained in the circuit court’s August 8,
2013, summary judgment order: “The June 3, 1982 Option Contract is a valid Option
Contract under West Virginia law.” We remand this matter to the circuit court for entry
of an order granting summary judgment to the hospital on the sole issue raised in its
complaint for declaratory judgment—that the “Option to Repurchase” agreement is an
option contract rather than a “right of first refusal.”
Affirmed in part; Reversed in part; and Remanded.
17