Fry Racing v. Chapman d/b/a Ona Speedway
Annotate this Case IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
___________
No. 23987
___________
FRY RACING ENTERPRISES, INC.,
Plaintiff below, Appellant,
v.
DONALD A. CHAPMAN, individually and d/b/a
ONA SPEEDWAY,
Defendants below, Appellees.
________________________________________________________
Appeal from the Circuit Court of Cabell County
Hon. L. D. Egnor, Judge
Civil Action No. 95-C-710
AFFIRMED
________________________________________________________
Submitted:
September 16, 1997
Filed: October 24, 1997
James W. St. Clair,
Esq. Daniel
A. Earl, Esq.
St. Clair &
Levine Huddleston,
Bolen, Beatty, Porter & Copen
Huntington, West
Virginia Huntington,
West Virginia
Attorney for the
Appellant Attorney
for the Appellees
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER dissents and reserves the right to file a
dissenting opinion.
JUSTICE DAVIS, deeming herself disqualified, did not participate in the decision in this case.
SYLLABUS BY THE COURT
1. "Every
agreement required by the statute of frauds to be in writing must
be certain in itself or capable of being made so by reference to
something else, whereby the terms can be ascertained with
reasonable certainty." Syllabus Point 2, in part, White
v. Core, 20 W.Va. 272 (1882).
2. "It
is well settled, that courts of equity will notwithstanding the
statute of frauds enforce oral contracts for the sale of land
which have been partially performed; and when the failure to
complete the contract would operate as a fraud, such courts
may exercise a similar jurisdiction with regard to chattels; but
courts of law will not enforce such contracts contrary to the
provisions of the statute." Syllabus Point 2, Kimmins v.
Oldham, 27 W.Va. 258 (1885).
3. "But
it is a general rule, that where one has rendered services, paid
a consideration, or sold and delivered goods in execution of an
oral contract, which on account of the statute [of frauds] can
not be enforced against the other party, such one can in a court
of law recover the value of the services or goods upon a quantum
meruit or valebant." Syllabus Point 3, Kimmins
v. Oldham, 27 W.Va. 258 (1885).
4. "This
general rule, however, is limited and confined to cases, in which
the services rendered, the goods delivered or consideration paid
inured to the benefit of the defendant; and in such cases the
recovery is not upon the contract but upon the quantum
meruit or valebant or upon the money counts." Syllabus Point 4, Kimmins v. Oldham, 27 W.Va. 258 (1885).
Per Curiam:See footnote 1
1
In this case we
are asked to review the granting of summary judgment and the
application of the statute of frauds, W.Va. Code, 55-1-1
[1990], in a contract action. The plaintiff-appellant, Fry Racing
Enterprises, Inc. ("Fry"), alleges that it was a party
to an oral, three-year contract with the defendant-appellee
Donald A. Chapman ("Chapman"). The plaintiff claims
that it began to perform according to the terms of the agreement,
but that after only three months the defendant terminated the
agreement without cause. The plaintiff filed this action for
damages under the contract.
In the circuit
court, the defendant moved for summary judgment pursuant to West
Virginia Rules of Civil Procedure ("W.Va.R.C.P.")
Rule 56 [1978], arguing that if such a contract had been formed,
its enforcement was barred by the statute of frauds requirement
that contracts not to be performed within one year must be
memorialized in some writing or memorandum. The circuit court
granted summary judgment to the defendant, and we affirm the
court's order.
I.
Defendant Chapman
began to operate an automobile racetrack known as the Ona
Speedway in Ona, West Virginia in early 1995. Beginning in April
1995, plaintiff Fry was allowed to sell racing tires and fuel to
race participants without a written agreement between the
parties. On July 20, 1995, Chapman informed Fry that it would no
longer be allowed to sell products at the racetrack.
On August 23,
1995, Fry filed this lawsuit against Chapman alleging that, in
March 1995, the parties had entered into an oral three-year
agreement for plaintiff Fry to sell racing tires and fuel at the
racetrack. The plaintiff also alleged that it spent $17,600.00 on
tires and equipment pursuant to the contract, and that the
defendant had canceled the contract without cause. The
plaintiff's complaint sought money damages.
After conducting
limited discovery, the defendant moved for summary judgment
contending that no contract existed between the parties, and
asserting that if there was a contract, then the plaintiff's
claims were barred by the statute of frauds' requirement that
agreements "not to be performed within a year" must be
in writing. W.Va. Code, 55-1-1 [1990].See footnote 2 2
In
opposition to the motion for summary judgment, the plaintiff
argued that a document signed in March 1995 by both parties and a
distributor for the Goodyear Tire and Rubber Company (the
"Goodyear document")See footnote 3 3 was a sufficient
memorandum of an agreement between the parties. The plaintiff
also argued that his partial performance of the alleged agreement
took the agreement outside the requirements of the statute of
frauds.
On March 1, 1996,
the circuit court granted the defendant's motion for summary
judgment and dismissed the plaintiff's cause of action with
prejudice. The plaintiff now appeals the circuit court's order.
II.
We are asked in
this case to consider the appropriateness of summary judgment
under W.Va.R.C.P. Rule 56 [1978]. As we stated in Syllabus
Point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755
(1994), we review a circuit court's entry of summary judgment de
novo. The standard for granting summary judgment was
established in Syllabus
Point 3 of Aetna Casualty & Surety Co. v. Federal Ins.
Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963) where we
held:
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.
In accord, Syllabus Point 1, Fayette Co. National
Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997); Syllabus
Point 1, Williams v. Precision Coil, Inc., 194 W.Va. 52,
459 S.E.2d 329 (1995); Syllabus Point 2, Painter, supra.
The plaintiff
appeals the circuit court's summary judgment order on three
grounds. First, the plaintiff asserts that an oral contract
exists between the parties regarding the sale of racing tires and
fuel, and that questions of material fact remain regarding the
terms of the contract. Second, the plaintiff argues that the
Goodyear document, signed by the plaintiff and the defendant,
constitutes a memorandum of the contract which meets the statute
of frauds' requirement that such agreements be in writing, signed
by the party to be charged. Third, and alternatively, the
plaintiff argues that it had partially performed the contract so
that even if the Goodyear document is an insufficient memorandum,
the statute of frauds' writing requirement is no longer
applicable.
The defendant
denies that a contract existed, but argues that even if a
contract was formed between the parties, then that contract was
for a period in excess of one year.See footnote 4 4
Accordingly, the statute of frauds requires that the
"contract, agreement, representation, assurance . . . or
some memorandum or note thereof, be in writing and signed by the
party to be charged thereby[.]" See, W.Va. Code,
55-1-1(f) [1990], supra, note 2.
We have
previously stated that a writing, to be sufficient under a
statute of frauds, must in some way refer to the terms of the
agreement that is sought to be enforced.
Every agreement
required by the statute of frauds to be in writing must be
certain in itself or capable of being made so by reference to
something else, whereby the terms can be ascertained with
reasonable certainty.
Syllabus Point 2, in part, White v. Core, 20 W.Va. 272
(1882). Accord, Syllabus Point 5, Timberlake v. Heflin,
180 W.Va. 644, 379 S.E.2d 149 (1989); Syllabus, Harper v.
Pauley, 139 W.Va. 17, 81 S.E.2d 728 (1953). By "certain
in itself," we mean that within its four corners the writing
must contain or refer to the basic terms of the agreement:
It is essential
for the memorandum relied on to take the contract out of the
operation of the statute [of frauds] that it contain every
essential element of the agreement, except under our statute it
need not state the consideration. In all other respects it must
be a valid common law contract, having the element of certainty.
Of course, that is certain which may be made certain. . . .
Milton Bradley Co. v. Moore, 91 W.Va. 77, 80, 112 S.E. 236, 237 (1922).
We have
carefully reviewed the Goodyear document, and we conclude that
the document does not contain the terms essential to the
agreement alleged to exist between the plaintiff and defendant.
There is nothing in the Goodyear document or any other writing to
suggest that the plaintiff will be the exclusive seller of those
tires at the Ona Speedway; that the plaintiff will be allowed to
operate a concession at the track for three years; that the
plaintiff will be the exclusive seller of racing fuel at the
track for three years; nor is there any indication that the
alleged agreement can be terminated only for cause. Therefore,
the Goodyear document does not serve to take the agreement out of
the requirements of the statute of frauds. Accordingly, find that
the circuit court could not have reasonably concluded that the
Goodyear document was a proper writing under the statute of
frauds.
The plaintiff
further asserts that under the doctrine of partial performance,
notwithstanding the statute of frauds, courts will enforce an
oral contract which has been partially performed. Forester Fry
(the owner of the plaintiff corporation) contended in an
affidavit that after he entered into the oral agreement with the
defendant, he formed the plaintiff corporation, obtained all
necessary licenses, purchased equipment, bought tires and racing
fuel, and operated the business at the defendant's racetrack for
approximately three months. These acts, he contends, satisfy the
partial performance doctrine.
The plaintiff
relies upon Kimmins v. Oldham, 27 W.Va. 258 (1885) for the
proposition that courts will avoid the application of the statute
of frauds and will enforce an
oral services or sale of goods contract which has been
partially performed. We stated in Syllabus Point 2 of Kimmins
that:
It is well
settled, that courts of equity will notwithstanding the statute
of frauds enforce oral contracts for the sale of land which have
been partially performed; and when the failure to complete the
contract would operate as a fraud, such courts may
exercise a similar jurisdiction with regard to chattels; but
courts of law will not enforce such contracts contrary to the
provisions of the statute.
The plaintiff points to Syllabus Point 3 of Kimmins,
where we went on to state:
But it is a
general rule, that where one has rendered services, paid a
consideration, or sold and delivered goods in execution of an
oral contract, which on account of the statute [of frauds] can
not be enforced against the other party, such one can in a court
of law recover the value of the services or goods upon a quantum
meruit or valebant.
Here we laid out the general rule for the part performance
doctrine. However, we believe that the plaintiff's sole reliance
upon Syllabus Point 3 of Kimmins is misplaced because in
Syllabus Point 4 of Kimmins we qualified that general
rule, providing that its application
. . . is
limited and confined to cases, in which the services rendered,
the goods delivered or consideration paid inured to the benefit
of the defendant; and in such cases the recovery is not upon the
contract but upon the quantum meruit or valebant or
upon the money counts.
In the instant case, we believe that the plaintiff cannot recover on a contract theory relying on Kimmins, but rather is entitled to recovery only on quantum meruit or quantum valebant. There is no evidence in the record to suggest that the plaintiff was denied
the benefit of its sales of tires and fuel, or
that it was not paid for any services rendered. Instead, it
appears uncontroverted that the plaintiff received full
compensation for the services it performed and the goods it sold.
We therefore
conclude that, under our expression in Kimmins of the
doctrine of part performance, the circuit court could not have
reasonably concluded that the plaintiff was entitled to relief
from the requirements of the statute of frauds.
Based upon the
foregoing, the order of the circuit court granting summary
judgment to the defendant is affirmed.
Affirmed.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n.4, 423 S.E.2d 600, 604 n.4. (1992) ("Per curiam opinions . . . are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta . . . . Other courts, such as many of the United States Circuit Courts of Appeals, have gone to non-published (not-to-be-cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.")
Footnote:
2 2
The pertinent part of our statute of frauds, W.Va. Code,
55-1-1 [1990], states:
No action shall
be brought in any of the following cases: . . .
(f) Upon any
agreement that is not to be performed within a year; . . .
Unless the
offer, promise, contract, agreement, representation, assurance,
or ratification, or some memorandum or note thereof,
be in writing and signed by the party to be charged thereby or his agent. But the consideration need not be set forth or expressed in the writing; and it may be proved (where a consideration is necessary) by other evidence.
Footnote: 3 3 The Goodyear document indicates that Goodyear agreed with the defendant to sell racing tires to the Ona Speedway (defendant Chapman) for a period of three years at certain prices. These tires would, however, be ordered by and delivered to plaintiff Fry at the racetrack. The Goodyear tire distributor, the plaintiff and the defendant signed the Goodyear document in acknowledgment of this arrangement.
Footnote: 4 4 The plaintiff and defendant dispute the existence of any contract. While this may
constitute a question of fact sufficient to avoid summary judgment, we do not reach this question because we conclude that the enforcement of any such contract would be barred by the statute of frauds.
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