Richard A. Hayhurst, Esquire Louie S. Davitian, Esquire
Andrew C. Woofter, III, Esquire Theodore Davitian, Esquire
Parkersburg, West Virginia Davitian & Davitian
Attorneys for the Appellees Parkersburg, West Virginia
Attorneys for the Appellant
The Opinion of the Court was delivered PER CURIAM.
JUSTICE SCOTT did not participate in the decision in this case.
JUDGE STONE, sitting by temporary assignment.
JUSTICE McGRAW and JUDGE STONE dissent, and reserve
the right to file dissenting opinions.
Unless an absolute right to injunctive relief is conferred by statute, the power
to grant or refuse or to modify, continue, or dissolve a temporary or a permanent injunction,
whether preventive or mandatory in character, ordinarily rests in the sound discretion of the
trial court, according to the facts and the circumstances of the particular case; and its action
in the exercise of its discretion will not be disturbed on appeal in the absence of a clear
showing of an abuse of such discretion. Syllabus Point 11, Stuart v. Lake Washington
Realty Corporation, 141 W. Va. 627, 92 S.E.2d 891 (1956).
This is an appeal by Ocea Lou Goff from a preliminary injunction issued by
the Circuit Court of Wood County directing her to convey a parcel of real estate to the
appellees, Jimmy Ray Sams and Velda Jo Sams. On appeal, the appellant claims that the
preliminary injunction was improperly issued in that the facts of the case failed to show that
the Samses were substantively entitled to the relief which they received and in that the
granting of relief by way of preliminary injunction was inappropriate.
On May 25, 1990, the parties to this proceeding, the appellant, Ocea Lou Goff,
and the appellees, Jimmy Ray Sams and Velda Jo Sams, executed a Land Sale Contract
in which the appellant agreed to sell the Samses a parcel of real estate located in Vienna,
West Virginia, for a total purchase price of $40,000. The agreement provided that the
Samses would make a down payment of $2,400 in the form of monthly payments of $200
for 12 months, beginning on June 1, 1990, and that after $2400 had been paid, the Samses
would pay the appellant $37,600 with interest at the rate of nine percent in 228 equal
monthly payments of $344.75. The first payment of $344.75 was to be made on the first of
June, 1991, and the subsequent payments to be made on the first day of each subsequent
month thereafter, until the principal amount and interest thereon is paid in full. The
agreement also stated that: Any payments made in advance shall be in anticipation of the
ultimate maturity of this obligation and shall not obviate the necessity of making of the
monthly payments thereafter becoming due.
The Samses faithfully made all payments due under the land sale contract until,
according to their petition, they wished to improve the buildings on the real estate and sought
a commitment from a lending institution for the necessary financing. Upon seeking the
commitment, they learned that they could not obtain a loan as long as the land sale contract
remained in force since the lending institution required a first-priority lien before granting
The Samses allege that to obtain the loan, they proposed to pay off the full
amount due the appellant under the land contract. The appellant, however, refused to accept
the payoff on the ground that the contract did not allow prepayment of the amount due.
Following the appellant's refusal to accept the payoff of the land sale contract,
the Samses instituted the present action in the Circuit Court of Wood County. In their
complaint, they alleged that the land sale contract anticipated that payments could be made
in advance and that it contained no prohibition against prepayment. They also alleged that
they had tendered to the appellant the amount due her and that they would suffer irreparable
damage unless the court issued an injunction requiring her to accept prepayment. They
prayed that the court enjoin and restrain the appellant from refusing to accept the payoff of
the balance due and further enjoin her to execute and deliver an appropriate deed conveying
them title to the premises.
Before the appellant filed a formal response to the Samses complaint, but after
she had made certain representations to the court, the circuit court issued the injunction
which is in issue in this appeal. In the order issuing the injunction, the circuit court stated
that the appellant was claiming that she had specifically directed her attorney to omit
language allowing prepayment of the balance, but that her attorney had inadvertently left in
the language suggesting that payments could be made in advance in anticipation of the
ultimate maturity of the obligation. The court also went on to state that there was no
evidence that the Samses intended not to be able to anticipate or prepay their monetary
obligation. The court concluded since the law provided that ambiguities in a written
agreement were to be charged against the party who composed the agreement, and since the
appellant's agent prepared the agreement, the appellant had to bear the consequences of the
agreement. The court also went on to say that the Samses had demonstrated that they had
made substantial payments against the land, and that they had also demonstrated, to a
reasonable probability, their success on the merits of the case. The court, therefore, issued
the injunction which the Samses sought and directed the appellant to convey the land to them
upon payment of the amount due under the contract.
In the present proceeding, the appellant claims that the circuit court erred in
finding that the land sale contract authorized prepayment of the Samses obligation. She also
claims that the court erred in granting a preliminary injunction which decided the ultimate
issue in the case without allowing evidence to be presented by either party. Finally, the
appellant asserts that the court erred in finding that the Samses would suffer immediate and
irreparable injury if the preliminary injunction were not granted.
In a number of decisions, this Court has indicated that the granting or refusal
of a temporary injunction rests in the sound discretion of the trial court, and the trial court's
exercise of its discretion will not be disturbed on appeal in the absence of a clear showing
of an abuse of discretion. West v. National Mines Corporation, 168 W. Va. 578, 285 S.E.2d
670 (1981); Mahoney v. Walter, 157 W. Va. 882, 205 S.E.2d 692 (1974); and Stuart v. Lake
Washington Realty Corporation, 141 W. Va. 627, 92 S.E.2d 891 (1956). In Syllabus Point
11 of Stuart v. Lake Washington Realty Corporation, id., the rule is stated as follows:
Unless an absolute right to injunctive relief is conferred by statute, the power to grant or refuse or to modify, continue, or dissolve a temporary or a permanent injunction, whether preventive or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and the circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion.
As has been previously stated, the principal substantive issue in the present case is whether the Samses were entitled to prepay their obligation to the appellant. The general rule is that, in the absence of statutory authority or contractual language to the contrary, a debtor has no right to prepay a promissory note secured by a deed of trust prior to maturity. This rule, however, is circumscribed by the principle that if there is statutory authority or contractual language in the instrument giving rise to the debt authorizing prepayment, then under the law, the obligation may be prepaid. Young v. Sodaro, 193 W. Va. 304, 456 S.E.2d 31 (1995).
In the present case, this Court believes that the contract between the appellant
and the Samses specifically contains language recognizing prepayment. As has been
previously indicated, the land sale contract specifically makes reference to payments made
in advance, and indicates that such payments made in advance are in anticipation of the
ultimate maturity of the obligation.
The appellant claims that this language was left in the contract by mistake and
that the scrivener omitted other language expressly authorizing prepayment. In light of the
mistake, the appellant claims that the trial court should have reformed the contract to bar
prepayment. On the other hand, it does not appear that the Samses were aware of the
scrivener's error or that it was intended that the contract preclude prepayment.
Once a written contract is entered into, our law recognizes that it may be
reformed to correct a mistake made by the scrivener in the preparation of the written
document. Reed v. Toothman, 176 W. Va. 241, 342 S.E.2d 207 (1986). However, before
such reformation is warranted, it must be shown that the scrivener's product reflects
something other than what was understood by both parties. Reed v. Toothman, id.
In the present case, there is no indication that the Samses were aware that the
appellant intended to bar prepayment in the land sales contract. While the written document
may not conform to the appellant's intention, there is nothing to show that it departs from the
understanding of the Samses. Under such circumstances, Reed v. Toothman, id., indicates
that reformation is inappropriate.
Our law indicates that where a written contract is clear and free from
ambiguity, the only function of a trial court is to give such contract force and effect. It is not
proper in such circumstances for a court to resort to rules of construction or interpretation to
ascertain the intent of the parties. International Nickel Company v. Commonwealth Gas
Corporation, 152 W. Va. 296, 163 S.E.2d 677 (1968), and Magnus v. Halltown Paper Board
Company, 143 W. Va. 122, 100 S.E.2d 201 (1957).
In the present case, the written document contemplated that payments could
be made in advance and that such payments should be considered in anticipation of the
ultimate maturity of the obligation. There is no ambiguity in the language, and it rather
clearly authorized prepayment of the debt created by the instrument. In granting the
preliminary injunction in this case, the trial court, in effect, concluded that the Samses were
substantively entitled to the relief they sought. In reaching this conclusion, the trial court did
Procedurally, this Court has long recognized that the issuance of a mandatory
injunction is appropriate where the right of an applicant seeking relief is clear and the
necessity for such relief is urgent. State Road Commission v. Oakes, 150 W. Va. 709, 149
S.E.2d 293 (1966); McCausland v. Jarrell, 136 W. Va. 569, 68 S.E.2d 729 (1952); and
Kennedy v. Klammer, 104 W. Va. 198, 139 S.E. 713 (1927).
Also, the Court has recognized that the mere existence of a legal remedy is not
of itself a sufficient ground for refusing an injunction. For the existence of a legal remedy
to bar the denial of injunctive relief, it must appear that the legal remedy is as practical and
efficient to secure the ends of justice and its prompt administration as injunctive relief.
Consumers Gas Utility Company v. Wright, 130 W. Va. 508, 44 S.E.2d 584 (1947), and
Buskirk v. Sanders, 70 W. Va. 363, 73 S.E. 937 (1912).
In the present case, the trial judge specifically found that the Samses had
secured a commitment from a local lending institution for a loan to improve the real estate
in issue in this case. Furthermore, it is implicit in the trial court's order that the Samses
would lose that commitment and the opportunity to improve the property if they did not
promptly obtain unencumbered title to the property. It appears that the trial court recognized
that the commitment was ephemeral and that any protracted legal remedy might have been
pursued only at the cost of losing the commitment.
The Court believes that the trial court properly found that the Samses right to
the relief they sought was clear, and we also believe that the documents filed demonstrate
that any legal remedy available to the Samses would have been less practical and less
efficient than an injunction. In view of the circumstances, the trial judge did not abuse his
discretion in issuing the injunction in this case. The judgment of the Circuit Court of Wood
County is, therefore, affirmed.