Opinion
No. 18-0507
06-12-2020
David L. HENZLER, Petitioner v. TURNOUTZ, LLC and Larry Markham, Respondents
Paul L. Frampton, Jr., Esq., ATKINSON & POLAK, PLLC, Charleston, West Virginia, Counsel for Petitioner. W. Jesse Forbes, Esq., FORBES LAW OFFICES, PLLC, Charleston, West Virginia, Counsel for Respondents.
Paul L. Frampton, Jr., Esq., ATKINSON & POLAK, PLLC, Charleston, West Virginia, Counsel for Petitioner.
W. Jesse Forbes, Esq., FORBES LAW OFFICES, PLLC, Charleston, West Virginia, Counsel for Respondents.
WALKER, Justice: David Henzler (Mr. Henzler) worked as an area supervisor of One Stop convenience stores for nineteen years. He lost that job after Turnoutz, LLC (Turnoutz) leased approximately forty-one of those stores. Mr. Henzler applied for a job with Turnoutz but was not hired. Claiming that he was rejected in favor of younger, less-qualified candidates, Mr. Henzler filed suit against Turnoutz alleging age discrimination in violation of the West Virginia Human Rights Act. Turnoutz moved for summary judgment after approximately eight months of discovery. Turnoutz argued that Mr. Henzler had released any employment-related claims against Turnoutz when he executed a severance agreement and general release with his former employer and its corporate affiliates. The circuit court granted the motion and dismissed Mr. Henzler's age discrimination claim against Turnoutz. But, Mr. Henzler argued then and now argues on appeal that genuine issues of material fact remain as to whether Turnoutz is entitled to the benefit of the severance agreement and general release. We agree with Mr. Henzler: genuine issues of material fact remain as to the applicability of the release agreement to his claim against Turnoutz. So, we find that the circuit court erred in granting summary judgment to Turnoutz. We reverse the circuit court's order and remand this matter to the Circuit Court of Kanawha County.
Mr. Henzler also sued Turnoutz's principal, Larry Markham. We refer to Turnoutz and Mr. Markham collectively as "Turnoutz" throughout this opinion. Our reasoning and conclusion that the circuit court erroneously granted summary judgment to Turnoutz also applies to Mr. Markham. The shortened reference is for the sake of clarity only.
I. FACTUAL AND PROCEDURAL BACKGROUND
CrossAmerica Partners, LP (CAP) employed Mr. Henzler as an area supervisor at a chain of One Stop convenience stores for approximately nineteen years. Mr. Henzler lost that job due to a business transaction between Turnoutz and CAP's alleged affiliates, Lehigh Gas Wholesale Services, Inc., and Lehigh Gas Wholesale LLC (collectively, Lehigh), memorialized in a document entitled "Master Lease Agreement," dated September 9, 2015 (eff. September 22, 2015), and its amendments (dated September 22, 2015; February 24, 2016; and April 2016). Mr. Henzler applied for an equivalent job with Turnoutz, but he did not get it. Believing that Turnoutz rejected him in favor of younger, less-qualified candidates, Mr. Henzler filed suit against Turnoutz in the Circuit Court of Kanawha County in October 2016 for age discrimination in violation of the West Virginia Human Rights Act. Turnoutz answered and the parties exchanged interrogatories and requests for production.
Mr. Henzler alleges that CrossAmerica Partners, LP (CAP) employed him and, in his brief, that M&J Operations LLC (M&J) is the parent corporation of CAP. The severance agreement and general release at issue in this case identifies both CAP, M&J, and another alleged affiliate, CST Brands, Inc. (CST), as parties to the agreement. For the sake of clarity, we will refer to these three alleged affiliates as "CAP."
Turnoutz offers the Master Lease Agreement and its amendments as evidence of its relationship with CAP. Notably, CAP is not a party to the lease or its amendments. Instead, Turnoutz and Lehigh are the parties to the Master Lease Agreement and its amendments.
Based on our review of the docket contained in the appendix record, neither party conducted a deposition before Turnoutz moved for summary judgment in October 2017. The docket reflects that subpoenas were issued to CAP and Lehigh in late May or early June 2017.
After approximately eight months of discovery, Turnoutz moved for dismissal or summary judgment of Mr. Henzler's age discrimination complaint. According to Turnoutz, Mr. Henzler executed a severance agreement and general release on April 13, 2016, with CAP (CAP Release) following his unsuccessful application to Turnoutz for employment. Turnoutz asserted that, in exchange for a severance payment of approximately $13,721.63, Mr. Henzler agreed in the CAP Release to "irrevocably and unconditionally release[ ] and forever discharge[ ]" CAP and certain "Company Released Parties"
See supra , note 2.
from any and all claims, demands, causes of action, and liabilities of any nature, both past and present, known and unknown, resulting from any act or omission of any kind occurring on or before the date of execution of [the CAP Release] which arise under contract or common law, or any federal, state or local law, regulation or ordinance.
The CAP Release defines those "Company Released Parties" as CAP's
Affiliates ..., parents, partners, subsidiaries, divisions, assigns, predecessors, and successors (by merger acquisition or otherwise), and the past, present and future officers, directors, trustees, partners, shareholders, managers, employees, agents, representatives, volunteers, consultants, insurers and attorneys of and for each of the foregoing, and their respective heirs, executors, administrators, legal representatives and assigns .... [ ]
The CAP Release also defines the term "Affiliate" as "a person or entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person or entity specified." The CAP Release defines the term "control" as "the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of another person or entity, whether through the ownership of voting securities, by contract, or otherwise."
Indisputably, the CAP Release does not name Turnoutz as a "Company Released Party." But, Turnoutz argued that the CAP Release still applied to Mr. Henzler's age discrimination claim because it was CAP's successor (by merger, acquisition, or otherwise) or affiliate. Turnoutz reasoned that it was CAP's successor or affiliate because under the terms of the Master Lease Agreement, its amendments, and various proprietary mark, franchise and fuel agreements (tertiary agreements), Turnoutz "continued, without interruption, the same business operations of [CAP] in the same facilities offering the same services and products with the same equipment and inventory under the same names and brands while employing the same work force who had the same responsibilities as they did under [CAP]." Turnoutz also argued that it was an affiliate of CAP because the Master Lease Agreement, its amendments, and the tertiary agreements empowered CAP to control Turnoutz's management and policies.
Specifically, the Master Lease Agreement states that "[Turnoutz] and an affiliate of [Lehigh Gas Wholesale Services, Inc.], Lehigh Gas Wholesale LLC, have entered into a PMPA Franchise Agreement [sic] Fuel Supply Agreement, Proprietary Marks Agreement and Related Agreements with [Lehigh Gas Wholesale Services, Inc.] and/or its Affiliates ... applicable to each of the Leased Premises ...." The record does not contain these tertiary agreements.
Mr. Henzler responded that the CAP Release did not apply to his claim against Turnoutz because the parties to the CAP Release did not name Turnoutz as an entity released in exchange for the $13,721.63 severance payment. He rejected Turnoutz's claim to be CAP's successor or affiliate, reasoning that Turnoutz merely agreed to lease some One Stop stores from Lehigh, and not CAP, under the Master Lease Agreement and its amendments. He asserted that Turnoutz was, at best, the "tenant" of Lehigh under those agreements. According to Mr. Henzler, even if CAP was a party to the Master Lease Agreement, the landlord-tenant relationship it created did not make Turnoutz a successor of CAP by merger, acquisition, or otherwise. Mr. Henzler likewise rejected Turnoutz's theory that it was CAP's successor due to the resemblance of its operations of the leased One Stop stores to those of CAP because any similarity was the result of Turnoutz's own independent business decisions. Finally, Mr. Henzler argued that Turnoutz had not offered any evidence to support its assertion that it was CAP's affiliate.
The circuit court granted Turnoutz's motion for summary judgment at a December 2017 hearing. Approximately five months later, on May 7, 2018, the circuit court entered an order granting Turnoutz's motion for summary judgment, which Turnoutz had prepared for the court's endorsement. The circuit court found that Mr. Henzler had discharged Turnoutz from liability for his age discrimination claim when he executed the CAP Release, even though Turnoutz was not a party to that agreement. Specifically, the circuit court found that Turnoutz and
The circuit court explained its oral ruling as follows: "the release executed by Mr. Henzler does apply to this case [and] that he has waived his right to make an age discrimination claim against the defendants."
Larry Markham are successors in interest to and/or assigns, affiliates, and/or "Company Released Parties" and/or heirs of [CAP] by virtue of the aforesaid contractual franchise agreements and/or contractual lease agreements and the amendments thereto, entered between [Turnoutz, Lehigh, and CAP], and such contractual agreements as are of record in this Court.
The court also found that the CAP Release "clearly contemplated that the claims made by [Mr. Henzler] in the case at bar were forever released and discharged against [Turnoutz] as successors, affiliates, and/or otherwise as ‘Company Released Parties’ as defined therein." The court concluded that "no genuine issue of material fact exists related to the application of the [CAP Release] to [Mr. Henzler's] claims against [Turnoutz], and the terms and conditions of the release agreement constitute undisputed facts upon which [Turnoutz is] entitled to summary judgment as a matter of law." Mr. Henzler appeals from that order.
II. STANDARD OF REVIEW
West Virginia Rule of Civil Procedure 56(c) states that a court shall render "judgment ... forthwith 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 a judgment as a matter of law." We explained the relative burdens of the moving and non-moving parties at summary judgment in Syllabus Point 3 of Williams v. Precision Coil, Inc. , when we said that:
If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure.[ ]
194 W. Va. 52, 459 S.E.2d 329 (1995).
At summary judgment, a court may not peremptorily "weigh the evidence and determine the truth of the matter ...." Instead, it must "grant the nonmoving party the benefit of inferences, as credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." A court should grant "[a] motion for summary judgment ... 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." Alternatively stated, "[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 ...."
Pritt v. Republican Nat.'l Comm. , 210 W. Va. 446, 453, 557 S.E.2d 853, 860 (2001) (internal quotation omitted).
Id. (internal quotation omitted).
Syl. Pt. 2, Painter v. Peavy , 192 W. Va. 189, 451 S.E.2d 755 (1994) (internal quotations and citations omitted).
Id. at Syl. Pt. 4 (in part).
Turnoutz relies on the CAP Release for its affirmative defense, meaning that it will bear the burden of proving that defense at trial. Therefore, it is "entitled to summary judgment on this affirmative defense only if the evidence is so strong that it would be entitled to a directed verdict at trial." "This burden is very heavy and summary judgment rarely is granted in favor of the party having the burden of proof." "A circuit court's entry of summary judgment is reviewed de novo. "
Grim v. E. Elec., LLC , 234 W. Va. 557, 567, 767 S.E.2d 267, 277 (2014). See also Williams , 194 W. Va. at 62 n.17, 459 S.E.2d at 339 n.17 (1995) (when reviewing an order on summary judgment, the Court "normally operate[s] under the assumption that a plaintiff will have the burden of proof at the trial on the merits. Obviously, in these cases a plaintiff only is entitled to summary judgment where his evidence is so strong that he would be entitled to a directed verdict at trial. This burden is very heavy and summary judgment rarely is granted in favor of the party having the burden of proof. The situation for a defendant usually is different. Except as to affirmative defenses, a defendant does not bear the burden of proof. ") (emphasis added).
Williams , 194 W. Va. at 62 n.17, 459 S.E.2d at 339 n.17.
Syl. Pt.1, Painter , 192 W. Va. at 189, 451 S.E.2d at 755.
III. DISCUSSION
The parties’ arguments on appeal mirror those presented to the circuit court. Turnoutz argues that Mr. Henzler released his age discrimination claim against it when he executed the CAP Release even though that agreement does not name Turnoutz as a released party. Turnoutz argues that the circuit court correctly found that the CAP Release applies to CAP's successors and affiliates and that it is, in fact, a successor to or affiliate of that entity. On the other hand, Mr. Henzler contends that the CAP Release applies to Turnoutz only if (1) the parties to the release had named Turnoutz as an entity released from liability to Mr. Henzler, or (2) Turnoutz is an affiliate of or successor to CAP, and, therefore a Company Released Party as the CAP Release defines that term. Turnoutz is not named in the CAP Release, and, Mr. Henzler argues, it did not offer any evidence to the circuit court to support its claim that it is CAP's successor or affiliate. So, Mr. Henzler concludes, the circuit court erred when it found that no genuine issues of material fact remain as to the applicability of the CAP Release to Mr. Henzler's claims against Turnoutz.
Turnoutz asserts a new argument in response to Mr. Henzler's appeal of the circuit court's order granting summary judgment to Turnoutz: that Mr. Henzler has not made a prima facie case of age discrimination. "Our general rule is that nonjurisdictional questions not raised at the circuit court level, but raised for the first time on appeal, will not be considered." Barney v. Auvil , 195 W. Va. 733, 741, 466 S.E.2d 801, 809 (1995). For that reason, we do not consider Turnoutz's argument that Mr. Henzler has not established a prima facie case of age discrimination.
Turnoutz's substantive arguments below focused on its status as a successor to or affiliate of CAP, although it also made blanket assertions that it is otherwise a Company Released Party, as the CAP Release defines that term. See supra. On appeal, Turnoutz's focus remains on its successor or affiliate status. For the same reasons discussed in the body of this opinion, we conclude that genuine issues of material fact also remain as to whether Turnoutz is a Company Released Party, as the CAP Release defines that term, by means other than its status as CAP's successor or affiliate.
We agree with Mr. Henzler: on the record presented to the circuit court and now to this Court, genuine issues of material fact remain as to the applicability of the CAP Release to Mr. Henzler's claim against Turnoutz. Indisputably, the parties to the CAP Release — CAP and Mr. Henzler — did not identify Turnoutz as a party released by Mr. Henzler in exchange for the $13,721.63 severance payment. Without additional, affirmative evidence to support Turnoutz's claim that the CAP Release applies to Mr. Henzler's claims against it, the omission of Turnoutz's name from that agreement raises genuine issues of material fact that have yet to be resolved, at least at the relatively early stage of the proceeding at which Turnoutz moved for summary judgment.
We reach the same conclusion, and for the same reasons, as to Turnoutz's more narrow argument that it is CAP's successor (by merger, acquisition, or otherwise). As Mr. Henzler observes, Turnoutz has not highlighted any record evidence related to a CAP merger or acquisition. And, genuine issues of material fact remain as to whether Turnoutz is otherwise CAP's successor. Turnoutz cites to the Master Lease Agreement and its amendments, the tertiary agreements, and its own discovery responses to substantiate its argument that it is a successor to CAP due to its continuance of CAP's operations of the One Stop stores. While Turnoutz posits that the Master Lease Agreements render it CAP's successor, it has not directed our attention to any particular provision of that agreement to support that supposition. Plus, the record does not contain the tertiary agreements. More fundamentally, Turnoutz has not pointed to anything in the current record that evidences the exact nature of the relationship between CAP and Lehigh or affirmatively shows that Lehigh shares with CAP its obligations to Turnoutz under the Master Lease Agreement.
Similarly, Turnoutz makes a blanket reference to its responses and objections to Mr. Henzler's first set of interrogatories and requests for production of documents. It does not, however, cite to a particular response in that document or explain how information in the document supports its contention that it is CAP's successor or affiliate.
Turnoutz states that the parties do not dispute that Lehigh and CAP are affiliates and that they are part of the same corporate family. But, Mr. Henzler emphasized the designation of Lehigh, and not CAP, as Turnoutz's landlord in the Master Lease Agreement in his response to Turnoutz's motion for summary judgment. Mr. Henzler emphasized the same discrepancy in his appeal, stating that "the parties to the Master Lease Agreement and subsequent amendments are [Turnoutz] and a completely different entity, [Lehigh].... There is nothing in the Master Lease Agreement between [Turnoutz] and [Lehigh] that can be construed to make [Turnoutz] a successor, assign, affiliate, or heir of [CAP]." Further, that CAP may have been known formerly as Lehigh Gas Partners, LP, is not affirmative evidence that CAP is a signatory to the Master Lease Agreement and its amendments because Turnoutz made those agreements with different Lehigh entities (Lehigh Gas Wholesale Services, Inc. and Lehigh Gas Wholesale, LLC).
Turnoutz repeatedly cites paragraph 7 of Mr. Henzler's complaint as affirmative evidence that it is CAP's successor. Mr. Henzler alleged in that paragraph that, "[i]n 2016, [CAP] entered into an agreement whereby [Turnoutz] would lease the forty-one convenience store locations previously operated by [CAP] and [Turnoutz] would operate convenience stores out of those locations." Relying on that allegation, Turnoutz concludes that Mr. Henzler has admitted that it "is a successor, affiliate, and/or assign of CAP ...." But that conclusion rests on two suppositions: that (1) the relationship between CAP and Lehigh put CAP in the shoes of Lehigh for purposes of the Master Lease Agreement and (2) the terms of the Master Lease Agreement make Turnoutz CAP's successor by means other than merger or acquisition. Again, Turnoutz has not pointed us to any portion of the record that evidences the relationship between CAP and Lehigh. And, Turnoutz has not directed our attention to any particular provision of the Master Lease Agreement or its amendments that dispels all genuine issues of material fact as to its status as CAP's successor for purposes of the CAP Release.
And, while the Master Lease Agreement and two of its amendments refer (without any description) to the tertiary agreements and identify Turnoutz as the "franchisee" of Lehigh, the record does not contain any of those tertiary agreements. Without those tertiary agreements or citations to particular portions of the record evidencing how they empowered CAP to control the management and operations of Turnoutz, genuine issues of material fact remain as to Turnoutz's status as CAP's affiliate for purposes of the CAP Release.
We have observed that "[s]ummary judgment should be denied ‘even where there is no dispute as to the evidentiary facts in the case but only as to the conclusions to be drawn therefrom.’ " There is no genuine issue of material fact as to the existence of the CAP Release and the Master Lease Agreement and its amendments. But, as the record has been developed so far, disputes remain as to the conclusions to be drawn from those documents. So, we conclude that the circuit court erred when it found that no genuine issues of material fact existed as to the application of the CAP Release to Mr. Henzler's claims against Turnoutz, and that Turnoutz was entitled to summary judgment as a matter of law.
Pritt , 210 W. Va. at 453, 557 S.E.2d at 860 (quoting Pierce v. Ford Motor Co. , 190 F.2d 910, 915 (4th Cir.), cert. denied , 342 U.S. 887, 72 S.Ct. 178, 96 L.Ed. 666 (1951) ).
IV. CONCLUSION
For the reasons stated above, we reverse the circuit court's order granting summary judgment to Turnoutz and remand this case to the Circuit Court of Kanawha County for further proceedings.
Reversed and remanded.
JUSTICE WORKMAN dissents and reserves the right to file a separate opinion.
JUSTICE HUTCHISON concurs in part and dissents in part and reserves the right to file a separate opinion.
WORKMAN, J., dissenting:
As the circuit court correctly found, the settlement agreement at issue clearly applies to Respondent Turnoutz, LLC (hereinafter "Turnoutz") and encompasses the claims brought by Petitioner David L. Henzler in this civil action. The majority's decision reversing that order and allowing this litigation to proceed, despite the fact that ample discovery was conducted, is incorrect. Today's decision is contrary to the plain language of the settlement agreement as well as the bedrock principle that "[t]he law favors and encourages the resolution of controversies by contracts of compromise and settlement rather than by litigation; and it is the policy of the law to uphold and enforce such contracts if they are fairly made and are not in contravention of some law or public policy." Syl. Pt. 1, Sanders v. Roselawn Mem'l Gardens, Inc. , 152 W. Va. 91, 159 S.E.2d 784 (1968). The majority has not cited one case that allows a party to retain the fruits of a settlement agreement while breaching the terms of the deal. I therefore dissent.
Before examining the language of the Severance Agreement and General Release (hereinafter "Agreement"), it is important to summarize the facts leading up to its execution. Mr. Henzler was employed by CrossAmerica Partners, LP (hereinafter "CrossAmerica") as an area supervisor at a convenience store. Mr. Henzler worked for CrossAmerica and its predecessor, One Stop, Inc., for approximately nineteen years. The parties describe Mr. Henzler as having worked for CrossAmerica and M&J Operations, LLC (hereinafter "M&J") interchangeably. In 2016, CrossAmerica ceased operations at approximately forty-one convenience stores and Mr. Henzler's position ceased to exist.
Meanwhile, Turnoutz began leasing certain One Stop sites and operating convenience stores out of those locations. Mr. Henzler applied for a position of territory manager with Turnoutz, and in March 2016, he was notified that he had not been selected for the position. A month later, Mr. Henzler entered into the Agreement. In exchange for payment of $13,721 Mr. Henzler agreed to release "any and all claims" against
The Agreement released these entities "from any and all claims, demands, causes of actions, and liabilities of any nature, but past and present, known and unknown, resulting from any act or omission of any kind occurring on or before the date of execution of this Agreement[.]" Specifically included in the claims released under the Agreement were claims arising under "the Age Discrimination in Employment Act, as amended; the Older Worker Benefit Protection Act of 1990; [and] the West Virginia Human Rights Act."
M&J, CST Brands, Inc. ("CST"), CrossAmerica Partners LP (f/k/a Lehigh Gas Partners LP) ("CAP"), each of their respective Affiliates (as hereinafter defined), parents, partners, subsidiaries, divisions, assigns, predecessors, and successors (by merger, acquisition or otherwise), and the past, present and future officers, directors, trustees, partners, shareholders, managers, employees, agents, representatives, volunteers, consultants, insurers and attorneys of and for each of the foregoing, and their heirs, executors, administrators, legal representatives and assigns (hereinafter referred to as the "Company Released Parties") ....
An attachment to the Agreement, Exhibit A, lists the job titles and ages of persons who were selected for termination of employment as of March 2016 and eligible to receive a severance offer. Exhibit A also lists the job titles and ages of persons who were not selected for termination of employment as part of the "reorganization program," because they were hired by Turnoutz. The majority does not mention this document which categorically supports Turnoutz's position that it was an entity covered by the Agreement.
Not holding true to his end of the bargain, Mr. Henzler then filed the instant complaint against Turnoutz in October 2016 alleging failure to hire/age discrimination. He claimed Turnoutz "hired a substantially younger, less qualified individual(s) for the position" in violation of the West Virginia Human Rights Act. Following discovery, Turnoutz filed a motion to dismiss and/or for summary judgment a year into this litigation. Turnoutz argued that Mr. Henzler had released it from the claims he was alleging.
Mr. Henzler also sued Turnoutz's principal, Respondent Larry Markham. Consistent with the majority opinion, and for the sake of clarity, Turnoutz and Mr. Markham are collectively referred to here as "Turnoutz."
Following a hearing, the circuit court granted Turnoutz's motion for summary judgment and held that
Turnoutz, LLC and Larry Markham are Company Released Parties, affiliates, successors, franchisees, and contractually related parties of [Mr. Henzler's] prior employer(s) according to the terms, definitions and conditions in the Release Agreement signed by [Mr. Henzler] which released all claims against such entities. Therefore, [the] Complaint, and each purported cause of action alleged therein, is barred by the actions of [Mr. Henzler] which amount to and constitute waiver and release of any right or rights that [he] may have had in relation to any matters alleged in the Complaint; and no genuine issues of material fact exist for trial.
[Mr. Henzler] waived any and all rights to assert any employment related claims against [Respondents] herein, as the [Respondents] are successors, affiliates, assigns, heirs and/or "Company Released Parties" of [Mr. Henzler's] prior employer under the terms and conditions of the "Severance Agreement and General Release" a legally binding contractual agreement that [Mr. Henzler] voluntarily signed.
First, the circuit court correctly applied the express and unambiguous language of the Agreement including its broad and comprehensive general release of all claims Mr. Henzler may have had against Turnoutz after it chose not to hire him. Mr. Henzler expressly waived any right to bring the claims alleged in the instant lawsuit when he voluntarily entered into the Agreement in exchange for payment of $13,721. General releases, such as the Agreement at issue, are an important tool for settling disputes precisely because they are designed to provide "complete peace." In re Philadelphia Stock Exch., Inc., 945 A.2d 1123, 1137 (Del. 2008).
Here, we are left with no room for interpretation because the language of the Agreement is unambiguously sweeping and broad. The Agreement explicitly extinguished all claims, known or unknown, arising out of or in any way related to Turnoutz's decision to not hire Mr. Henzler. In this Agreement, the parties took pains to express affirmatively (albeit redundantly) their intention to extinguish "any and all claims, demands, causes of actions, and liabilities of any nature, but past and present, known and unknown, resulting from any act or omission of any kind occurring on or before the date of execution of this Agreement."
The second question presented in this case is straightforward: whether Turnoutz is a "Company Released Party" under the Agreement. " ‘A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent.’ Syl. pt. 1, Cotiga Development Company v. United Fuel Gas Company, 147 W. Va. 484, 128 S.E.2d 626 (1963)." Syl. Pt. 1, Sally-Mike Props. v. Yokum, 175 W. Va. 296, 332 S.E.2d 597 (1985).
The circuit court also correctly found that Turnoutz fell under the broad umbrella of entities covered by the Agreement as it is a successor of Mr. Henzler's former employers considering the seamless transition of the business operation. "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). Under the agreement, Mr. Henzler agreed to release any claims against "M&J, CST Brands, Inc. ("CST"), CrossAmerica Partners LP (f/k/a Lehigh Gas Partners LP) ("CAP"), each of their respective Affiliates ..., parents, partners, subsidiaries, divisions, assigns, predecessors, and successors (by merger, acquisition or otherwise )[.]" (Emphasis added).
Addressing the term "successors," the majority states that: "Turnoutz cites to the Master Lease Agreement and its amendments, the tertiary agreements, and its own discovery responses to substantiate its argument that it is a successor to CAP due to its continuance of CAP's operations of the One Stop stores." The majority wholly disregards the import of this undisputed relevant evidence: Turnoutz was "otherwise" a successor when it assumed the interests of the various companies operating the One Stop stores. Genuine issues of dispute material fact do not remain when evidence demonstrates that Turnoutz was a successor under the plain and ordinary meaning of that term because it was vested with the rights and duties of the earlier corporations by "other assumption of interests," which is precisely why summary judgment in favor of Turnoutz was the appropriate ruling.
A "successor" is defined as: "[a] corporation that, through amalgamation, consolidation, or other assumption of interests, is vested with the rights and duties of an earlier corporation." Black's Law Dictionary (11th ed. 2019).
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The majority opinion muddles through the various corporate relationships and agreements. And all to what end? None at all, it turns out. By remanding this case for further proceedings, the majority drops us back where we began, leaving the circuit court and the parties with zero guidance moving forward. Respectfully, I would enforce the plain terms of the Agreement and affirm.
Hutchison, J., concurring, in part, and dissenting, in part:
I concur with the conclusion of the majority opinion, that the circuit court erred in granting summary judgment to Turnoutz. Turnoutz had the burden of proving its affirmative defense that it was a "Company Released Party" entitled to protection under the release signed by the plaintiff, David Henzler. Turnoutz failed to prove there was no genuine issue of material fact remaining for a jury's resolution, and the majority opinion correctly remands this case back to the circuit court for additional work.
I respectfully dissent, however, because I believe the majority opinion could have gone further. The majority opinion should have pointed out that Turnoutz's affirmative defense is fundamentally and legally wrong. Turnoutz claims it is an "affiliate" or a "successor" to Mr. Henzler's former employer, Cross America Partners, LP ("CAP") and, therefore, protected by the release Mr. Henzler signed with CAP (the "CAP Release"). The problem with Turnoutz's argument is that Turnoutz does not have any evidence to meet the legal definition of either an "affiliate" or a "successor."
As to "affiliate," the CAP Release clearly defines an affiliate as an "entity that directly, or indirectly .., controls, or is controlled by, or is under common control with, the person or entity specified." Turnoutz offered absolutely no evidence to show it is directly or indirectly controlled by, or is under common control with, CAP or any of the other companies affiliated with CAP (like M&J Operations, CST Brands, Lehigh Gas, etc). It likewise offered no evidence showing it controls CAP. The circuit court should have granted summary judgment against Turnoutz on this legal question, and this Court should have done the same in the course of its de novo, plenary review of the record.
As to whether Turnoutz is a "successor" to CAP, we need only look as far as the dictionary definition to see Turnoutz is not a legal successor. BLACK'S LAW DICTIONARY defines a "successor" as "[a] corporation that, through amalgamation , consolidation , or other assumption of interests , is vested with the rights and duties of an earlier corporation." (Emphasis added.) This definition reflects the language of the CAP Release, which says a successor to CAP may come to be "by merger, acquisition, or otherwise." Let us further parse out the language used in these definitions.
When the dictionary says a merger comes about by "amalgamation," that has its own meaning: " ‘Amalgamation’ is an English term designating what in this country is called a consolidation or merger. " 15 FLETCHER CYC. CORP. § 7042 (emphasis added). So, what is a consolidation or merger? "A consolidation is the unification of two or more corporations or other organizations by dissolving the existing ones and creating a single new corporation or organization." 15 FLETCHER CYC. CORP. § 7041. "A ‘merger’ exists where one corporation is continued and the others are merged in it without the formation of a new company." Id.
Turnoutz presented no evidence to show it merged with CAP. Turnoutz also did not present evidence it consolidated with CAP. There was no evidence of an amalgamation of any kind, or of Turnoutz acquiring or being acquired by CAP. Moreover, there was no evidence that CAP "otherwise" assumed any rights or liabilities or other interests of Turnoutz, or vice versa, that Turnoutz assumed any rights or liabilities or other interests of CAP. There's nothing in the record to suggest, in any way, that Turnoutz is paying any of CAP's former bills. CAP still exists and pays its own debts, and Turnoutz exists as a separate company, paying its own bills. The only evidence of "successor" status was that CAP stopped operating convenience stores in properties owned by Lehigh Gas, and Turnoutz moved in and started operating convenience stores in the same space. To me, that is a change of tenants using real estate, not a legal, corporate successorship.
Stated simply, the circuit court never should have granted summary judgment in favor of Turnoutz, but rather should have flat-out rejected Turnout's "affiliate or successor" defense. I am disappointed that the majority opinion did not discuss the legal implausibility of Turnoutz's argument and left the question for the circuit court to resolve.
As the majority opinion makes clear, the circuit court granted summary judgment to Turnoutz on slim evidence early in the proceedings, long before discovery was completed. I encourage the parties to try and develop the evidence as to whether there is any true factual merit behind Turnoutz's affirmative defense that it is protected from liability by the CAP Release. I agree with the basic sentiment of the majority opinion, that full discovery and jury trials are to be encouraged. I firmly believe that summary judgment should be used sparingly, and that parties should be permitted to place all of their evidence before a jury of their peers. If there is any debate about the admissibility of evidence, then place it in front of the jury and trust them to sort it out.
There is, of course, a caveat to that sentiment, which is that if a question has no true legal basis, then the question should not be placed before a jury. That includes Turnoutz's claim that it is a "successor" to CAP, despite the fact that there is no documentary or testimonial evidence to fit the legal definition of "successor." I encourage the circuit court to revisit Turnoutz's affirmative "successor" defense on remand, and to measure that defense against the legal meaning of the word successor. As the record was presented to this Court, there was simply nothing to show a genuine issue of fact by which a jury could rule in favor of Turnoutz. Unless there is a dramatic change in the evidentiary record when it is developed on remand, I would encourage the circuit court to cull this unsupportable legal claim from the case before it proceeds to trial.