Kyla Asbury Jun. 4, 2014, 7:08pm

CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court of Appeals has issued a ruling affirming the Pocahontas Circuit Court's issuing of summary judgment in favor of Snowshoe Mountain in a class action alleging the ski resort breached its contract.

Charles L. Anania sued Snowshoe Mountain after he claimed it wrongfully calculated its annual assessments and breached its contract with him and other property owners, according to the May 30 opinion.

Justices Robin Jean Davis, Allen Loughry and Margaret Workman made up the majority. Justices Brent Benjamin and Menis Ketchum dissented, with Ketchum filing a brief dissenting opinion.

Anania put forth four assignments of error on appeal.

First, Anania argued the circuit court "changed" contractual language by omitting Paragraph D of Snowshoe's assessment document from its reading of the applicable declaration.

"In that vein, he argues in his fourth assignment of error that the circuit court erred when it made the unsupported factual determination that the inclusion of Paragraph D in respondent's predecessor's draft of the declaration was the result of mistake," the majority opinion states. "It is worth noting that petitioner purchased property in the resort area in 2003, and respondent purchased Snowshoe Mountain in 1995."

Neither participated in the drafting of the declaration in 1974, and the parties conceded that there is no evidence of the drafter's intent, the opinion says.

"However, Paragraph C unequivocally grants respondent 'absolute and sole discretion' to annually calculate assessments up to 1.5% of the assessed taxable value of the lot," the majority opinion states. "We find no plain language restriction in that paragraph suggesting that a 'base' is established in the year after construction is completed. Furthermore, petitioner's proposed construction is unreasonable."

Anania, who filed his lawsuit in 2006 in Pocahontas Circuit Court, is a property owner in a class action challenging the method in which Snowshoe calculates annual assessments for safety provisions and the upkeep of common areas in its domain.

Anania asserted, among other grievances, that Snowshoe breached the parties' contract by using an improper formula to calculate annual assessments.

After a lengthy period of discovery, the parties each filed a motion for summary judgment, and the circuit court granted Snowshoe's motion by order entered March 25, 2013.

In doing so, the circuit court explained that Paragraphs C and D of Snowshoe's assessment document are "inherently inconsistent" and that Paragraph D is a boilerplate escalator clause mistakenly included by the drafter.

"Based on this determination, the circuit court concluded that Paragraph C alone guided the calculation of the assessments for all years following the year in which construction commenced, and respondent had appropriately computed the obligations," the opinion says.

Anania appealed the Pocahontas Circuit Court's ruling.

"As the circuit court explained, petitioner's interpretation potentially commits respondent indefinitely to an assessment base before property value is realized, and leaves that base susceptible to manipulation by a property owner who may choose to delay improvements," according to the majority opinion.

The state Supreme Court stated that, in considering another of Anania's assignment of error, he argued that the circuit court failed to apply rules of construction favoring him.

"As the circuit court aptly explained, the instrument must be construed against the grantor only if the language is ambiguous after consideration of the context and circumstances surrounding the contract formation," the majority opinion states. "Upon the circuit court's acknowledgement that Paragraph D was clearly included by mistake, the terms of the declarations had but one meaning."

The majority concluded that "although the contract at issue in the present case is poorly drafted, its meaning can still be discerned."

In Ketchum's dissenting opinion, he wrote that he believes the circuit court attempted to clarify an ambiguous contract as if the contract were affected by a "simple scrivener's error."

"In reality, we are faced with a substantive dispute that requires greater attention than such treatment allows," the dissenting opinion states. "While I acknowledge the difficulty... facing a fact-finder in this case, I believe the result reached by the circuit court unfairly affords a presumption to the drafting party."

Ketchum's dissenting opinion states that he does not find it unreasonable that early purchasers may have wished to establish some degree of control over their assessments and that calling the characterization of the attempt as a mistake is perplexing.

"The terms are substantively confusing and capable of multiple interpretations, and therefore would be more appropriately untangled by a jury," his opinion states.

Anania was represented by Joshua I. Barrett and Robert M. Bastress III of DiTrapano Barrett DiPiero McGinley & Simmons.

Snowshoe was represented by John Philip Melick, Ellen S. Cappellanti and Ryan J. Aaron of Jackson Kelly.

West Virginia Supreme Court of Appeals case number: 13-0406

From Legal Newsline: Kyla Asbury can be reached at

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