Commonwealth Group-Winchester Partners, L.P. v. Winchester Warehousing, Inc.

UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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

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 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

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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.

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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

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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.

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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)).

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 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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