STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Iaeger Energy Development, LLC, a
West Virginia limited liability FILED
corporation, Marco Land Co., Inc., a January 13, 2020
West Virginia corporation, and EDYTHE NASH GAISER, CLERK
Vivian L. Watkins, as Administratrix SUPREME COURT OF APPEALS
OF WEST VIRGINIA
of the Estate of Myrtle L. Davis,
Defendants Below, Petitioners
vs) No. 18-0409 (McDowell County 15-C-24-S and 15-C-43-M)
Terry W. Moore and
Cedar Branch Mining, LLC, a
West Virginia limited liability company,
Plaintiffs Below, Respondents
MEMORANDUM DECISION
Petitioners Iaeger Energy Development, LLC, Marco Land Co., Inc., and Vivian L.
Watkins, Administratrix of the Estate of Myrtle L. Davis, by counsel Elizabeth G. Kavitz, J.A.
Curia, III, David J. Mincer, and Adam K. Strider, appeal the Circuit Court of McDowell County’s
April 25, 2018, order that granted Respondents Terry W. Moore and Cedar Branch Mining, LLC’s,
motion to enforce the terms of a settlement agreement. Respondents, by counsel H. Truman
Chafin, Letitia Chafin, and Howard M. Persinger, III, filed a response. Petitioners submitted a
reply.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
The Parties
Petitioners Iaeger Energy Development, LLC (“Iaeger”), and Marco Land Co., Inc.
(“Marco”) were solely owned by C.O. Davis, Jr., and his wife, Myrtle L. Davis, both of whom are
now deceased. Mr. and Mrs. Davis also created and controlled several purported shell entities,
including Red Bird Pocahontas Land Company, LLC (“Red Bird”); New Red Ash Poca Land
Company, LLC (“New Red Ash”); and Davis Whaley, LLC. Petitioner Vivian L. Watkins is Mrs.
Davis’s sister and the administratrix of her estate. (In 2013, Mr. Davis predeceased his wife and,
1
in his will, left her all of his assets. Mrs. Davis died in 2016, during the pendency of this litigation,
and Petitioner Watkins was substituted as a party in her stead). Respondent Terry W. Moore is the
principal and co-manager of Respondent Cedar Branch Mining, LLC.
Factual and Procedural History
On January 23, 2008, C.O. Davis, Jr., on behalf of Petitioners Iaeger and Marco, as lessors,
and Respondent Moore, as lessee, entered into two leases of certain coal property located in the
Johnnycake area of Huff Creek District, Wyoming County, and the adjacent Sandy River District
of McDowell County, West Virginia. The leases were recorded at Deed Book 518, page 472, and
Deed Book 518, page 483, respectively. Under these leases, Iaeger and Marco purported to lease
to Respondent Moore all the coal located in all seams above the Gilbert Seam situated on certain
tracts of the property. The leases gave respondents general warranties of title.
By leases dated September 26, 2012, and November 21, 2012, portions of the same
property previously leased to Respondent Moore were purportedly leased to Emmaus Partners,
LLC (“Emmaus”), a defendant below. The September 26, 2012, lease was by and between Red
Bird and Mr. Davis, as lessors, and Emmaus, as lessee. It was recorded at Deed Book 563, page
37. The November 21, 2012, lease was a so-called “top lease” that was effective subject to several
other leases, including the September 26, 2012, lease. This lease was by and between Mr. Davis,
Mrs. Davis, Red Bird, Marco, New Red Ash, and Davis Whaley, as lessors, and Emmaus, as lessee.
It was recorded at Deed Book 563, page 57.
The September 26, 2012, and November 21, 2012, leases with Emmaus directly conflicted
with the grants made in the 2008 leases with respondents. According to respondents, they became
aware of the 2012 leases as Emmaus, in 2014, began the process of attempting to secure mining
permits for the property.
Respondents filed a complaint in the Circuit Court of McDowell County against
petitioners, Emmaus, and others in February 2015,1 alleging claims, relevant to this appeal, that
Petitioners Iaeger and Marco breached the general warranties of title contained in the 2008 leases.
Respondents also alleged that both Iaeger and Marco “were organized, incorporated, controlled
and dominated by, and were the ‘alter egos’ of’” Mr. and Mrs. Davis, and, as such, the Davises
were personally liable for the actions of Iaeger and Marco.2
On November 30, 2017, a pre-trial and settlement conference (“settlement conference”)
was held before the circuit court. During the course of the settlement conference, the court granted
1
Petitioners amended the complaint in March of 2016, following Mrs. Davis’s death, for
the purpose of substituting Petitioner Watkins as a party.
2
At the same time, several of the defendants named in respondents’ complaint filed a
separate action against respondents in the Circuit Court of McDowell County (No. 15-C-43-M)
alleging ownership of the property purportedly leased to respondents by Petitioner Iaeger and
asserting actions to quiet title, ejection, and for slander of title. The circuit court later consolidated
that action with the present one. The claims involving the other defendants in both actions have
been settled and dismissed and are not relevant to the present appeal.
2
respondents’ motion for summary judgment on their “veil piercing” claims against the Estate of
Mrs. Davis. The court determined that, based upon the deposition testimony of the Davises’
longtime bookkeeper, Don Morgan, Petitioners Iaeger and Marco were alter-egos of C.O. and
Myrtle Davis, thereby subjecting Mrs. Davis’s estate to liability in this action.
Also during the November 30, 2017, settlement conference, settlements between
respondents and petitioners and respondents and Emmaus were reached. Thereafter, in a three-
page comprehensive e-mail to counsel for Petitioner Watkins and Emmaus, counsel for
respondents set out the terms of the settlement. The December 7, 2017, e-mail stated that, as
between Emmaus and respondents, (1) Emmaus would forego all of its lease rights to seams
located above the Gilbert Seam; (2) respondents would forego all of their lease rights to the Gilbert
Seam and below; and (3) in order to effectuate the foregoing, Emmaus would partially assign to
respondents its rights as lessee under the September 26, 2012, and November 21, 2012, leases, by
executing an assignment to be drafted by respondents’ counsel. Emmaus also agreed, with regard
to a certain tract (Tract 18), to pay an overriding royalty to respondents in the amount of $1.00 per
ton, up to $350,000, with a $15,000 annual minimum.
As between petitioners and respondents, the December 7th e-mail set forth the following
terms: (1) petitioners will make a $60,000 one-time cash payment to respondents; (2) petitioners
will provide royalty credits in the amount of $80,000 to respondents on royalties for coal mined
by respondents under the partially assigned 2008 leases as well as under a lease that was negotiated
with the other defendants; (3) petitioners will convey certain leased property directly to
respondents by quitclaim deed; (4) petitioners will execute a written consent for the partial
assignment of the leases by Emmaus to respondents; and (5) petitioners will execute an amendment
of the leases assigned by Emmaus to respondents reflecting (a) a tonnage royalty of 5%; (b) no
minimum annual royalty payable by respondents to petitioners; and (c) a twenty-five year lease
term.
On December 18, 2017, having received no objection to the terms outlined in the December
7th e-mail, respondents’ counsel forwarded settlement documents to counsel for petitioners and
Emmaus that included (1) a draft settlement agreement and general release, (2) a draft partial
assignment, assumption and restatement of leases, lease amendment, consent to assign, release and
overriding royalty agreement, and (3) a draft quitclaim deed, fully effecting the terms outlined in
the December 7th e-mail.
On December 22, 2017, petitioners’ counsel, via e-mail, advised respondents’ counsel that
she was still reviewing the draft settlement documents and had only seen a minor issue regarding
the timing of payment. Respondents’ counsel responded on January 2, 2018, with a suggested
resolution. On January 5, 9, and 18, 2018, petitioners’ counsel again communicated with
respondents’ counsel, indicating that she was continuing to review the draft documents with her
client but did not suggest that she disagreed with any of the core terms. 3
3
The portion of the settlement involving Emmaus was executed by a separate release and
partial assignment of the 2012 leases. Emmaus did not challenge any of the terms set forth therein.
3
Ultimately, on January 22, 2018, petitioners’ counsel advised respondents’ counsel that,
while she affirmed certain terms set forth in the draft settlement documents, she specifically
rejected an amendment to the partially assigned portions of the 2012 leases, on behalf of the lessors
(petitioners), which would (1) lower the applicable tonnage royalty due petitioners from
respondents from 7% to 5%, (2) do away with a $10,000 minimum annual royalty, and (3) extend
the lease terms from five years to twenty years.4
Respondents thereafter filed a motion to enforce the settlement as set forth in the December
7, 2017, e-mail and the corresponding settlement documents. Petitioners filed a response, and a
hearing on the motion was conducted on February 28, 2018.
By order entered on April 25, 2018, the circuit court granted respondents’ motion to
enforce the settlement and ordered judgment against petitioners, jointly and severally, in the
amount of $82,773.03, plus accrued interest and attorney’s fees. The court further ordered
Petitioner Watkins, on behalf of the remaining defendants, to execute settlement documents
effectuating the terms of the settlement in a form substantially similar to that which was submitted
by respondents in connection with their motion to enforce. The circuit court ordered that if
Petitioner Watkins failed to execute the documents within ten days, then a Special Commissioner
would be appointed pursuant to West Virginia Code § 55-12-75 to execute the same on her behalf
and on behalf of the remaining defendants. It is from this order that petitioners now appeal.
Discussion
This Court has stated that when it “undertakes the appellate review of a circuit court’s order
enforcing a settlement agreement, an abuse of discretion standard of review is employed.” Riner
v. Newbraugh, 211 W. Va. 137, 140, 563 S.E.2d 802, 805 (2002) (quoting DeVane v. Kennedy, 205
W. Va. 519, 527, 519 S.E.2d 622, 630 (1999)). See also Burdette v. Burdette Realty Improvement,
Inc., 214 W. Va. 448, 452, 590 S.E.2d 641, 645 (2003). “The reason for this deferential standard is
that ‘[b]oth law and equity favor repose of litigious matters. Compromise by parties of their
differences is favored by all courts. When a matter has thus been put at rest, it should not be
disturbed except for grave cause.’” Riner, 211 W. Va. at 140, 563 S.E.2d at 805 (internal citations
omitted).
On appeal, petitioners argue that the circuit court abused its discretion in granting
respondents’ motion to enforce the settlement. They contend that there is no evidence that the
parties agreed to the disputed terms as the terms of the settlement were not spread upon the record
at the time of the November 30, 2017, settlement conference and approved by the parties.
Petitioners further contend that respondents failed to prove that there was a meeting of the minds
as to the contested terms and that, to the contrary, there are factual disputes as to what the parties
contemplated and agreed to at the settlement conference. As a result, petitioners argue, the circuit
4
There was a discrepancy between the lease term as set forth in the December 7, 2018, e-
mail (twenty-five years) and the draft settlement documents (twenty years).
5
The circuit court order contained a scrivener’s error in that it cited to West Virginia Code
§ 55-7-12 rather than West Virginia Code § 55-12-7.
4
court erred in enforcing the purported settlement.
This Court has declared that “‘[t]he law favors and encourages the resolution of
controversies by contracts of compromise and settlement rather than by litigation[.]’” DeVane, 205
W. Va. at 522, 519 S.E.2d at 625, syl. pt. 6, in part (quoting syl. pt. 1, in part, Sanders v. Roselawn
Mem’l Gardens, 152 W. Va. 91, 159 S.E.2d 784 (1968)). Nonetheless, we construe settlement
agreements “as any other contract.” Burdette, 214 W. Va. at 452, 590 S.E.2d at 645 (internal
citation omitted). “A meeting of the minds of the parties is a sine qua non of all contracts.” Riner,
211 W. Va. at 139, 563 S.E.2d at 804, syl. pt. 4 (citations omitted).
Petitioners argue that there was clearly no meeting of the minds as to the purported
settlement because the settlement drafted by respondents effectively created new lease terms that
were not agreed upon and that unilaterally benefitted respondents – that is, a lower royalty
payment, elimination of the minimum royalty, and a twenty-year extension of the lease containing
unfavorable provisions. According to petitioners, this Court previously reversed a lower court’s
order enforcing a written settlement agreement that included provisions that were neither
addressed during the mediation conference nor set forth on the record during proceedings before
the circuit court. See Triad Energy Corp. of W. Va. v. Renner, 215 W. Va. 573, 577, 600 S.E.2d
285, 289 (2004). At issue in Triad were provisions in a written settlement agreement that were
intended to resolve a dispute concerning Triad’s claim that it had a right to cross a landowner’s
property to access its oil and gas well on adjoining land. See id. at 574, 600 S.E.2d at 286. The
contested provisions were, according to Triad, “previously outlined on the record” and “were
reflected in the agreement by way of standard form oil and gas provisions which a reasonable
person would understand would be included in a settlement document of that nature.” Id. This
Court disagreed and held that there was no meeting of the minds concerning the written agreement,
concluding that the “additional provisions [to] the written settlement agreement . . . all of which
were favorable to Triad, were material, unilateral variations of the terms previously set forth before
the [c]ircuit [c]ourt.” Id. at 577, 600 S.E.2d at 289. This Court further determined that the
settlement terms spread upon the record before the court below “lacked sufficient detail to
constitute a binding agreement.” Id. at 578, 600 S.E.2d at 290.
In this case, petitioners argue that no settlement agreement was ever placed upon the record
following the November 30, 2017, settlement conference, and that there was no evidence, other
than the proffer of respondents’ counsel, of the settlement terms. Petitioners argue that there was
no proof of a meeting of the minds and that enforcement of the settlement was an abuse of the
circuit court’s discretion.6
6
Petitioners also argue that the statute of frauds precludes the enforcement of an oral
settlement agreement that includes a transfer of real property interests. Petitioners failed to raise
this alleged error before the circuit court. “‘“In the exercise of its appellate jurisdiction, this Court
will not decide nonjurisdictional questions which were not considered and decided by the court
from which the appeal has been taken.” Syllabus Point 1, Mowery v. Hitt, 155 W. Va. 103 [, 181
S.E.2d 334] (1971).’ Syl. pt. 1, Shackleford v. Catlett, 161 W. Va. 568, 244 S.E.2d 327 (1978).”
Syl. Pt. 3, Voelker v. Frederick Bus. Properties Co., 195 W. Va. 246, 465 S.E.2d 246 (1995).
5
We find no error. Following the November 30, 2017, settlement conference, counsel for
respondents memorialized the terms of the settlement in an e-mail, which he then forwarded to
counsel for petitioners and Emmaus on December 7, 2017; although this e-mail included the terms
that petitioners now dispute, petitioners failed to object to them.7 Thereafter, on December 18,
2017, respondents’ counsel forwarded to petitioners’ counsel draft settlement documents that,
again, included the now-disputed terms. In responsive e-mail correspondence, petitioners’ counsel
noted a minor issue regarding the timing of payment that had nothing to do with the terms she now
claims her clients never agreed to. Moreover, notably absent from subsequent correspondence
between counsel was any reference to the disputed terms by petitioners’ counsel. It was not until
January 22, 2018, forty-six days after the initial December 7th e-mail, that petitioners finally
claimed that the settlement documents did not accurately reflect the parties’ agreement.8
Additionally, the circuit court’s April 25, 2018, order enforcing the settlement clearly stated that
it “had worked with and helped facilitate the settlement that was reached” on November 30, 2017,
that “the terms of [the settlement] were recited in the presence of the [c]ourt,”9 and that “there were
no objections or confusion mentioned to the [c]ourt at that time.” Given all of these facts, we
conclude that the evidence supports a finding that the parties had a meeting of the minds regarding
the terms of the settlement and that the circuit court did not abuse its discretion in enforcing it.10
We next address petitioners’ argument that the circuit court erred in appointing a special
commissioner to execute an unenforceable settlement. As we have established, the settlement is,
as a matter of law, enforceable. West Virginia Code § 55-12-7 states:
A court of law or equity, in a suit in which it is proper to decree or order the
execution of any deed or writing, may appoint a commissioner to execute the same;
and the execution thereof shall be as valid to pass, release, or extinguish the right,
title and interest of the party on whose behalf it is executed, as if such party had
been at the time capable in law of executing the same and had executed it.
7
Though petitioners’ counsel claimed that she never received the December 7th e-mail from
respondents’ counsel, she did not dispute that the correspondence was sent to her correct e-mail
address and that she had received multiple other e-mails from respondents’ counsel at that address.
The circuit court clearly believed that petitioners’ counsel’s claim was not credible.
8
At no time during the course of these proceedings have petitioners submitted to the circuit
court a sworn affidavit contesting their agreement to all the terms set forth in the initial December
7th e-mail and subsequent settlement documents.
9
In a January 26, 2018, e-mail to petitioners’ counsel, respondents’ counsel reminded her
that “the terms of the settlement were recited before [the circuit court] at the conclusion of the
mediation[.]”
10
Because we have determined that the settlement agreement, to which Petitioner Watkins
is a party, is enforceable, we need not address petitioners’ assignment of error that the circuit court
erred in piercing the corporate veil between the Estate of Myrtle Davis and the petitioner entities,
Marco and Iaeger.
6
Petitioners argue simply that respondents failed to make a motion asserting facts that would
support the appointment of a special commissioner and further failed to present any evidence
showing that such an appointment is necessary under the circumstances. We find that petitioners
have failed to adequately develop this assignment of error with any supporting legal authority or
argument. This Court has made clear that “‘[a] skeletal “argument,” really nothing more than an
assertion, does not preserve a claim. . . . Judges are not like pigs, hunting for truffles buried in
briefs.’” State, Dep’t of Health v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833
(1995)(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)). Indeed, “[a]lthough
we liberally construe briefs in determining issues presented for review, . . . [issues] mentioned only
in passing but are not supported with pertinent authority, are not considered on appeal.” State v.
LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996).
Similarly, in a brief footnote, petitioners argue, again in passing, that respondents’ request
for attorney’s fees and costs incurred in connection with their motion to enforce the settlement
should have been denied because there was no evidence that petitioners acted “in bad faith,
vexatiously, wantonly or for oppressive reasons in the settlement dialogue[.]” Petitioners did not
brief this issue as an assignment of error on appeal nor did they develop it in a manner that is
adequate for meaningful appellate review. Petitioners’ casual mention of this issue thus failed to
preserve it for appeal and will not be considered. See id.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: January 13, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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