American Bituminous Power Partners, L.P. v. Horizon Ventures of West Virginia, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
2023 Spring Term FILED
_____________________________
June 12, 2023
released at 3:00 p.m.
No. 22-ICA-34 EDYTHE NASH GAISER, CLERK

_____________________________ INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

AMERICAN BITUMINOUS POWER PARTNERS, L.P.,
Defendant Below, Petitioner,
v.
HORIZON VENTURES OF WEST VIRGINIA, INC.,
Plaintiff Below, Respondent.
________________________________________________________________________
Appeal from the Circuit Court of Marion County
Honorable Patrick N. Wilson, Judge
Civil Action No. CC-24-2018-C-76
AFFIRMED
________________________________________________________________________
Submitted: May 16, 2023
Filed: June 12, 2023
Roberta F. Green, Esq.
John F. McCuskey, Esq. Mark A. Kepple, Esq.
Shuman McCuskey Slicer PLLC. Benjamin P. Visnic, Esq.
Charleston, West Virginia Bailey & Wyant, PLLC
Counsel for Petitioner Wheeling, West Virginia

Joseph G. Nogay, Esq.
Sellitti Nogay & Nogay, PLLC
Weirton, West Virginia
Counsel for Respondent
CHIEF JUDGE GREEAR delivered the Opinion of the Court.
JUDGE LORENSEN, voluntarily recused.
JUDGE Jeffrey D. Cramer, sitting by temporary assignment
JUDGE SCARR, consensually disqualified.
JUDGE Darl W. Poling, Jr. sitting by temporary assignment
GREEAR, Chief Judge:
Petitioner, American Bituminous Power Partners, L.P. (“AMBIT’) appeals the

August 4, 2022, order of the Circuit Court of Marion County denying Ambit’s “Motion to

Alter, Amend Judgment.” AMBIT contends that the circuit court erred in denying its

motion and in determining that the award of summary judgment to Respondent, Horizon

Ventures of West Virginia, Inc’s (“Horizon”), as to its underlying claims against AMBIT

was proper. Upon review, we find that the circuit court did not err in denying AMBIT’s

motion to alter or amend judgment or in awarding summary judgment to Horizon.

Here, the issue for consideration is limited only to the parties’ consulting agreement,

AMBIT’s breach of said agreement, and Horizon’s resulting damages. The record

conclusively establishes that Horizon and AMBIT had a consulting agreement; that

AMBIT unilaterally breached said agreement by failing to remit payment of fees due under

that agreement; and that Horizon incurred related damages. As there is no genuine issue as

to any material fact, summary judgment was appropriate. Accordingly, we find no error in

the circuit court’s ruling.

Background
On June 25, 1987, the parties entered into a “Contract and Agreement” whereby

AMBIT agreed to pay Horizon the sum of $50,000 per year, for consulting services

1
(“consulting agreement”). 1 2 AMBIT was identified in the consulting agreement as being

“engaged in a venture of establishing one or more electric power plants in . . . West

Virginia.” In the agreement, the parties expressly noted that they “negotiated an agreement

wherein [Horizon] will provide expertise and consulting services within its field to

[AMBIT] in its projects in West Virginia.”

Under the terms of the consulting agreement, the parties’ agreed that:

[Horizon] will perform from time to time upon the reasonable
request of [AMBIT], such public and governmental relations
and liaison functions as are necessary or incident to aiding and
assisting [AMBIT] in locating, permitting, licensing,
developing, maintaining[,] and operating power plants in the
State of West Virginia and will further aid in such other
ventures as locating coal “gob” and all like coal resources when
the same may be needed by [AMBIT].

Further, the consulting agreement explicitly noted, at paragraph three, that the

agreement “sets forth the entire understanding and agreement between the parties” and that

1
In addition to the consulting agreement, in the 1980s, the parties entered into a
separate landlord-tenant lease agreement to govern the AMBIT-operated Grant Town
Power Plant, which is located on a parcel of land owned by Horizon. The parties’ lease
agreement has been the subject of two previous decisions issued by the Supreme Court of
Appeals of West Virginia. See Am. Bituminous Power Partners, L.P. v. Horizon Ventures
of W. Va., Inc., No. 14-0446, 2015 WL 2261649, at *1-2 (W. Va. May 13, 2015)
(memorandum decision); and Horizon Ventures of W. Va., Inc. v. Am. Bituminous Power
Partners, L.P., 246 W. Va. 374, 873 S.E.2d 905 (2022). The parties’ lease agreement is not
relevant to the matter presently before this Court.
2
The parties amended their consulting agreement to require AMBIT’s yearly
consulting services payments to Horizon to commence during the construction of the Grant
Town Power Plant. The “Agreed-To Appendix” record before this Court includes an
unexecuted amendment to the consulting agreement. However, for the purposes of this
appeal, the amendment is not relevant.
2
the agreement could “not be amended, terminated[,] or otherwise changed except by a

writing signed by both parties.”

From 1987 to 2017, nearly thirty years, the parties operated under the consulting

agreement and yearly payments were made by AMBIT to Horizon. However, in December

of 2017, when Horizon submitted its annual invoice to AMBIT for consulting services,

AMBIT responded with a letter. In this letter, dated January 27, 2018, AMBIT wrote that

as the parties’ consulting agreement had “no value to [AMBIT,]” that it was “time to

disband the [a]greement and simplify” the relationship between the parties “to just

landlord-tenant.” AMBIT cited its desire to exit the agreement due to: (1) litigation

between the parties related to a landlord-tenant dispute; (2) the parties taking adverse

positions regarding the use of a particular parcel as a viable fuel option for AMBIT and the

appropriate remediation of such property; and (3) AMBIT’s “battle” before the West

Virginia Public Service Commission “for its very existence.” 3

As a result of AMBIT’s non-payment of consulting fees, Horizon filed the

underlying action. In response, AMBIT filed a motion to dismiss, which was denied by the

court. Discovery commenced between the parties and shortly thereafter AMBIT filed a

motion for summary judgment. AMBIT’s motion for summary judgment was granted by

3
In pleadings below, and before this Court, AMBIT avers that during its protracted
litigation with Horizon on the landlord-tenant issue, that Horizon criticized and disparaged
AMBIT, causing trust between the parties to be broken.

3
the circuit court, based upon the court’s finding that the parties’ consulting agreement was

substantively unconscionable and unenforceable as it violated public policy. 4

Horizon appealed the circuit court’s award of summary judgment to AMBIT to the

Supreme Court of Appeals of West Virginia (“Supreme Court”). The Supreme Court

reversed the circuit court’s award of summary judgment after determining that the parties’

consulting agreement was not procedurally unconscionable. The Supreme Court did not

speak as to the substantive unconscionability of the consulting agreement, as a finding of

both procedural and substantive unconscionability is necessary to find a contract term

unenforceable. 5 See Horizon Ventures of W. Va., Inc v. Am. Bituminous Power Partners,

L.P., 245 W. Va. 1, 857 S.E.2d 33 (2021) (“2021 Horizon”). The award of summary

judgment to AMBIT was reversed and the matter was remanded to circuit court.

Upon remand, the parties’ filed competing motions for summary judgment and

identified that the questions of law before the court were: (1) whether the purpose of the

consulting agreement was frustrated due to changed circumstances between the parties and

(2) whether the agreement was impracticable. AMBIT further asserted that the agreement

was substantively unconscionable; that Horizon breached its responsibilities under the

agreement because, over time, it no longer had the necessary expertise to fulfill its

4
Despite finding in AMBIT’s favor, the court concluded that AMBIT had waived
its objections to the consulting agreement until June of 2018 and was, therefore, required
to pay Horizon $50,000 for the year 2018.
5
The Supreme Court also found that the circuit court erred in concluding that the
parties’ consulting agreement was unenforceable because it violated public policy, as
neither AMBIT nor the circuit court provided any support for such a ruling.
4
contractual duties; and that Horizon breached the duty of good faith and fair dealing

implicit in every contractual agreement by filing lawsuits against AMBIT.

Horizon argued that AMBIT had never actually asked Horizon to perform a duty

under the agreement, and that, accordingly, Horizon could not breach an agreement under

which it was never asked to perform. During the June 24, 2022, hearing on the motion for

summary judgment, AMBIT failed to offer any evidence that it made a request of Horizon

to perform under the consulting agreement and that Horizon was unable or unwilling to

perform. 6

In its July 19, 2022, order awarding summary judgment to Horizon, the circuit court

specifically noted that, at least four times, it asked AMBIT if it had made a request of

Horizon to exercise its expertise under the consulting agreement. AMBIT never directly

answered the question but, instead, offered essentially nonresponsive statements,

highlighting the acrimonious history of the parties in the lawsuit related to landlord-tenant

issues. Critically, the court found “that AMBIT never provided a substantive answer to the

Court’s inquiry upon which the court could render a decision in AMBIT’s favor.”

In contrast, Horizon offered the statement of its president Stanley Sears, that

Horizon stood “ready[,] able[,] and willing to perform [the consulting agreement] in good

faith.” Mr. Sears further explained that the “goals of the parties to the [consulting

6
AMBIT alleged, during the June 24, 2022, hearing, for the first time, that it asked
Horizon to “remain patient” in regard to the debt payments in 2013, that Horizon then filed
suit, and that request to “remain patient” was actually a “real live formal request” for
expertise. The court disagreed and explained in its July 19, 2022, order, that a request to
remain patient and wait for payment is not a request for expertise that triggered the parties’
consulting agreement.
5
agreement] are similar and that . . . it is in the best interest of both parties to keep the Grant

Town Power Plant operated by [AMBIT] open, viable, and profitable.” This statement was

specifically referenced in the Supreme Court’s opinion in 2021 Horizon, 245 W. Va. at 5,

857 S.E.2d at 37.

The circuit court agreed with Horizon and concluded that AMBIT did not provide

the court with evidence that Horizon was not ready, able, and willing to perform under the

consulting agreement. With that fact in mind and given that AMBIT did not offer any direct

evidence that Horizon was requested to provide consulting services and refused to do so,

the court concluded that AMBIT was in breach of the agreement and Horizon was entitled

to summary judgment as a matter of law.

In discussing its decision, the circuit court specifically and thoroughly addressed

AMBIT’s affirmative defenses of impossibility, frustration, and commercial

impracticability, and Horizon’s alleged breach of the duty of good faith and fair dealing, at

length, finding each of these defenses as inapplicable. The court entered a judgment in

favor of Horizon in the amount of $250,000 and directed that “[f]ees and costs, if any, shall

be paid by AMBIT.”

On July 29, 2022, AMBIT filed a motion to alter, amend judgment. In its motion,

AMBIT argued that the July 19, 2022, order awarding Horizon summary judgment was

deficient in that it was prepared by counsel for Horizon and, “failed to accurately reflect

the facts and law of the case.” Further, AMBIT argued that the July 19, 2022, order

“misstates the facts and law of this case and introduces even more complexities than in the

6
case itself[,]” AMBIT argued that, accordingly, “it would be an obvious injustice to

proceed to judgment in reliance” upon this order.

Conversely, Horizon acknowledged that the court’s award of summary judgment

was proper. Horizon noted that “[i]t is perhaps theoretically possible that Horizon did not

represent all of AMBIT’s arguments” in the proposed summary judgment order. Horizon

explained that this was because not all of AMBIT’s arguments were “comprehensible to

any ordered attempt to apply a basic understanding of cause and effect.” However, Horizon

asserted that it did not misrepresent any of AMBIT’s arguments. The circuit court agreed

with Horizon and denied AMBIT’S motion to alter, amend judgment.

Further, the court noted that through motions practice and oral arguments before the

court, that both parties declared the claims at issue were “ripe for summary judgment

consideration.” The court found that the “factual recitations contained in the order granting

summary judgment were accurate as to the dispositive issues in this case.” Accordingly, as

the award of summary judgment was appropriate as written, the court, by order entered

August 4, 2022, denied AMBIT’s motion to alter, amend judgment. It is from the court’s

August 4, 2022, order that AMBIT now appeals.

Standard of Review
The Supreme Court has consistently held that the standard for a motion to alter or

amend a judgment “is the same standard that would apply to the underlying judgment upon

which the appeal to this Court is filed.” Syl. Pt. 1, Wickland v. Am. Travellers Life In. Co.,

204 W. Va. 430. 513 S.E.2d 516 (1995).

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 As to summary judgment, the Supreme Court has proclaimed that “[a] circuit court’s

entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va.

189, 451 S.E.2d 755 (1994). In Gray v. Boyd, 233 W. Va. 243, 757 S.E.2d 773 (2014), the

Court further discussed summary judgment and found that:

2. “‘“A motion for summary judgment should be
granted only when it is clear that there is no genuine issue of
fact to be tried and inquiry concerning the facts is not desirable
to clarify the application of the law.” Syllabus Point 3, Aetna
Casualty & Surety Co. v. Federal Insurance Co. of New York,
148 W. Va. 160, 133 S.E.2d 770 (1963).’ Syllabus Point 1,
Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d
247 (1992).” Syl. Pt. 2, Painter v. Peavy, 192 W. Va. 189, 451
S.E.2d 755 (1994).

3. “The circuit court’s function at the summary
judgment stage is not to weigh the evidence and determine the
truth of the matter, but is to determine whether there is a
genuine issue for trial.” Syl. Pt. 3, Painter v. Peavy, 192 W.
Va. 189, 451 S.E.2d 755 (1994).

* * *

6. “Summary judgment is appropriate where the
record taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, such as where the nonmoving
party has failed to make a sufficient showing of an essential
element of the case that it has the burden to prove.” Syl. Pt. 4,
Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

Syllabus Pts. 2, 3, and 6. Gray, 233 W. Va. at 245, 757 S.E.2d at 776.

With these standards in mind, we now consider the issues raised on appeal.

Discussion
On appeal, AMBIT advances two assignments of error, which we will address in

turn. In its first assignment of error, AMBIT argues that the circuit court erred in granting

8
Horizon’s motion for summary judgment, as unresolved issues of fact remain. We disagree.

Our examination of the record reveals that there are no genuine unresolved issues of

material fact that remain, making the matter ripe for summary judgment.

In this case, following remand, both parties filed competing motions for summary

judgment and represented to the court that the matter was ready for consideration of

dispositive motions. There is no dispute of the relevant and material facts necessary to

resolve the matter – the parties had a longstanding agreement that both parties abided by

for nearly thirty years, until 2017, when AMBIT unilaterally terminated the contract by

non-payment of the yearly consulting fee.

In its motion to alter, or amend judgment below, and before this Court (both in

written and oral arguments), AMBIT cited a portion of the Supreme Court’s decision in

Horizon Ventures of W. Va., Inc. v. Am. Bituminous Power Partners, L.P., 246 W. Va. 374,

873 S.E.2d 905 (2022) (“2022 Horizon”), wherein the court stated:

[w]e find that as it relates to the relationship of these parties
[AMBIT and Horizon] the inherent ambiguity in these
documents that ultimately revert to a question of the intent of
the parties in how they were to be bound in the future preclude
summary judgment as a tool to dispose of these claims.

Id. W. Va. at 388, 873 S.E.2d at 919. AMBIT argues that given this pronouncement by the

Supreme Court, summary judgment was not proper in the underlying action. We find this

argument is nothing but an attempt by AMBIT’s skilled and experienced counsel, to

“muddy the waters” as to the actual issue presently before this Court.

In the 2022 Horizon case, the Supreme Court addressed the complex and technical

lease-agreement between the parties – a contract separate and apart from the simple and

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straightforward contract at issue in the instant case. See id. In the 2022 Horizon case, there

was much alleged ambiguity and factual dispute of the terms of the lease agreement, a 1996

Settlement Agreement, and AMBIT’s admission in the settlement agreement. See id. In

contrast, here, there is no ambiguity in the consulting agreement, nor is there any question

of the intent of the parties in how they were to be bound in the future. Such facts are well

addressed in Justice Hutchison’s concurring opinion in the Supreme Court’s decision in

2021 Horizon, wherein he stated that the:

[parties’]1987 [consulting agreement] was one of many deals
negotiated and signed [by the parties] in the late 1980s as part
of the construction of a $100 million power plant . . . Lawyers,
bankers, bond specialists, business folks, all sorts of
sophisticated actors swirled through the project when the
[consulting agreement] was signed. AMBIT dutifully
complied with [consulting agreement] and, by my calculation
paid Horizon $1.5 million over thirty years before someone at
AMBIT decided to claim the contract terms were unfair.”

245 W. Va. at 14, 857 S.E.2d at 45.

Justice Hutchison further noted that while “the equitable doctrine of

unconscionability ‘permits courts to protect parties from grossly unfair, unconscionable

bargains; it does not permit courts to protect commercial litigants from stupid or ineffective

bargains willingly and deliberately entered into.’ State ex rel. Johnson Controls, Inc. v.

Tucker, 229 W. Va. 486, 497, 729 S.E.2d 808, 819 (2012).” Id. at 13, 857 S.E.2d at 45.

Justice Hutchison determined that the existing record before the Supreme Court in 2021,

much like the “Agreed-To Appendix” in the instant case, “points to the [consulting

agreement] fitting the definition of a ‘stupid or inefficient bargain willingly entered into.’”

Id.

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 It is possible, under law, for parties to willingly enter into “allegedly stupid or

inefficient bargains,” such as the underlying consulting agreement. Specifically, the

Supreme Court has established “that the freedom to contract is a substantial public policy

that should not lightly be dismissed.” Wellington Power Corp. v. CNA Sur. Corp., 217 W.

Va. 33, 38, 614 S.E.2d 680, 685 (2005). Further, in State v. Memorial Gardens

Development Corp., 143 W. Va. 182, 101 S.E.2d 425 (1957) the Supreme Court

recognized, in part, that:

. . . men of full age and competent understanding shall have the
utmost liberty of contracting, and that their contract, when
entered into freely and voluntarily, shall be held sacred, and
shall be enforced by courts of justice. Therefore, you have this
paramount public policy to consider, - that you are not lightly
to interfere with this freedom of contract.

Id. W. Va. at 38, 614 S.E.2d at 685.

In the underlying case, Horizon contends that AMBIT breached the parties’

consulting agreement, entitling Horizon to damages for breach of contract. In West

Virginia, “[a] claim for breach of contract requires proof of the formation of a contract, a

breach of the terms of that contract, and resulting damages.” Sneberger v. Morrison, 235

W. Va. 654, 669, 776 S.E.2d 156, 171 (2015) (citing Syl. Pt. 1, State ex rel. Thornhill

Group, Inc. v. King, 233 W. Va. 564, 759 S.E.2d 795 (2014)). AMBIT and Horizon both

recognize the formation of a consulting agreement between the parties herein; but do not

agree as to how the contract was breached.

As to the breach, the circuit court determined that AMBIT breached the agreement

by failing to pay Horizon the yearly consulting fee. While AMBIT offers a litany of reasons

11
for its alleged breach and even counters by saying that Horizon breached the agreement,

we, like the circuit court, find AMBIT’s “reasons” to be without merit. AMBIT did not

submit any evidence that it specifically requested Horizon to perform under the consulting

agreement and/or that Horizon was unable to perform. Without such evidence, AMBIT’s

arguments that Horizon was not qualified to provide consulting services are speculative, as

Horizon was not provided the opportunity to perform. Further, we give no credence to

AMBIT’s inferences that its business position is wholly adverse to Horizon’s position.

Horizon’s president has stated that the goals of Horizon and AMBIT are “similar” and that

it “is in the best interest of both parties to keep the” AMBIT-owned Grant Town Power

Plant “open, viable, and profitable.”

We additionally note that the consulting agreement expressly provides that any

amendments to the agreement, such as a termination of the agreement, must be made in

writing and signed by both parties. There is no dispute that the parties herein have made

no such written termination agreement and, without such agreement, the consulting

agreement remains in effect.

As to the circuit court’s determination that there is no genuine issue of material fact

at dispute between the parties relevant to the court’s determination of the limited question

before it—did AMBIT breach the consulting agreement—we agree. At syllabus point five

of Jividen v. Law, 194 W. Va. 705, 461 S.E.2d 451 (1995), the Supreme Court held, in part,

that “[a] material fact is one that has the capacity to sway the outcome of the litigation

under applicable law.” Here there is no material fact cited by AMBIT that would “sway

the outcome” of this matter. Simply put, there is no evidence that AMBIT requested

12
Horizon to provide consulting services under the consulting agreement or that Horizon

refused to provide any such services. Accordingly, we find no error in the circuit court’s

award of summary judgment to Horizon as to its claims under the parties’ consulting

agreement.

In its second assignment of error, AMBIT contends that the circuit court’s July 19,

2022, order fails to reflect the arguments and proceedings below and, thus, creates obvious

injustice. Upon our review of the extensive record, we find no error in the circuit court’s

order and believe that AMBIT’s argument in this vein is nothing but a veiled attempt to

relitigate the validity of the consulting agreement and breach of the same. 7

AMBIT raised this very issue in its motion to alter, amend judgment before the

circuit court. The circuit court found, and we concur, that the factual recitations contained

in the order granting summary judgment are accurate as to the dispositive issues in this

case. The record supports the circuit court’s appropriate consideration of all of AMBIT’s

positions prior to and in awarding summary judgment to Horizon, including AMBIT’s

argument of impracticability, frustration of purpose, and violation of the duty of good faith

7
As part of its argument herein, AMBIT alleges that the parties’ consulting
agreement is substantively unconscionable. However, we remind AMBIT of the Supreme
Court’s ruling in 2021 Horizon wherein it found that the consulting agreement was not
procedurally unconscionable. Thus, it is not necessary for this Court to examine any of
AMBIT’s claims of substantive unconscionability, recognizing that, the Supreme Court
has held that “[a] contract term is unenforceable if it is both procedurally AND
substantively unconscionable. . . Syllabus Point 20, Brown v. Genesis Healthcare Corp.,
228 W. Va. 646, 724 S.E.2d 250 (2011).” Syllabus point 9, Brown v. Genesis Healthcare
Corp., 229 W. Va. 382, 729 S.E.2d 217 (2012) (emphasis added).

13
and fair dealing. 8 As noted above, throughout this litigation, AMBIT has attempted to

confuse the actual matter in controversary in this case and attempts to raise a number of

facts that have absolutely no relevance to the very limited issue of whether AMBIT

breached the parties’ consulting agreement. AMBIT readily admits that it has not paid

Horizon under the consulting agreement since 2018 and did not provide any evidence that

it asked for Horizon’s performance under the agreement and that Horizon was either

unwilling or unable to perform. The circuit court’s July 19, 2022, order sufficiently

addresses each of the parties’ relevant arguments and is representative of the record as a

whole. Accordingly, we find no error.

Conclusion
Wherefore, for the foregoing reasons, the August 4, 2022, order of the Circuit Court

of Marion County is hereby affirmed.

Affirmed

8
In the July 19, 2022, “Final Order Granting Horizon’s Motion for Summary
Judgment,” the circuit court thoroughly addressed AMBIT’s claims including
impracticability (AMBIT alleged that it was not possible for Horizon to perform under the
consulting agreement because it lacked the necessary expertise. The court found that
AMBIT did not provide facts that would allow a jury or the circuit court to find that the
consulting agreement was “impracticable”); frustration of purpose (AMBIT argued that
Horizon lacked the expertise to help AMBIT on the types of questions that would arise
under the consulting agreement. The court found that AMBIT did not provide any evidence
to show that the principal purpose of the contract was frustrated as AMBIT had not asked
Horizon to satisfy its duties under the consulting agreement since 2006); and breach of the
duty of good faith and fair dealing (AMBIT argues that by Horizon filing a lawsuit against
AMBIT, Horizon has breached the duty of good faith and fair dealing. The court
determined that AMBIT did not adduce any facts that would explain why it continued to
pay Horizon for four years after Horizon filed a lawsuit against AMBIT for landlord-tenant
issues and that AMBIT provided no legal support for its position).
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