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HN Corporation v. Cyprus Kanawha Corp.
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1995 Term
No. 22702
HN CORPORATION, Plaintiff Below, Appellant
v.
CYPRUS KANAWHA CORPORATION, Defendant Below, Appellee
Appeal from the Circuit Court of Kanawha County Honorable Charles E. King, Jr., Judge Civil Action No. 93-C-5703
REVERSED AND REMANDED
Submitted: September 20, 1995
Filed: November 16, 1995

Richard J. Bolen, Esq.
Huddleston, Bolen, Beatty, Porter, & Copen
Huntington, West Virginia
Attorney for the Appellant

Charles I. Jones, Jr., Esq.
John F. McCuskey, Esq.
John F. Hussell, IV, Esq.
Campbell, Woods, Bagley, Emerson, McNeer & Herndon
Charleston, West Virginia
Attorney for the Appellee

The Opinion of the COURT was delivered PER CURIAM.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUSTICE ALBRIGHT did not participate. SYLLABUS BY THE COURT

1.
"'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)." Syllabus Point 1, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).

2.
"'It is the province of the Court, and not of the jury, to interpret a written contract.' Syl. Pt. 1, Stephens v. Bartlett, 118 W. Va. 421, 191 S.E. 550 (1937)." Syllabus Point 1, Orteza v. Monongalia County General Hospital, 173


W. Va. 461, 318 S.E.2d 40 (1984).
3.
"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." Syllabus Point 1, Cotiga Development Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962).

4.
"'A written contract merges all negotiations and representations which occurred before its execution, and in the absence of fraud, mistake, or material misrepresentations extrinsic evidence cannot be used to alter or interpret language in a written contract which is otherwise plain and unambiguous on its face.' Syl. pt. 3, Iafolla v. Douglas Pocahontas Coal Corporation, 162 W. Va. 489, 250 S.E.2d 128 (1978)." Syllabus Point 1, Warner v. Haught, Inc., 174


W. Va. 722, 329 S.E.2d 88 (1985).         Per Curiam:
        HN Corporation (HN) appeals a decision by the Circuit Court of Kanawha County granting Cyprus Kanawha Corporation (Cyprus) summary judgment by dismissing HN's complaint against Cyprus. The circuit court found HN was not in privity of contract with Cyprus-- the contract under which HN attempted to bring suit. The circuit court's finding was based on a reservation provision in an assignment between Mullins Coal Company (Mullins) and HN, which, according to the circuit court, reserved to Mullins the right to bring suit in these circumstances under the contract. Because the assignment did grant HN the right to bring this suit against Cyprus, we reverse the circuit court and remand the case for further proceedings. I Factual Background
        On March 7, 1989, an agreement between Cyprus and Hawks Nest Mining Company (Hawks Nest) (the acquisition agreement) was signed.See footnote 1 Under the acquisition agreement, Cyprus, the "Purchaser," agreed to buy certain coal assets from Hawks Nest, the "Seller." As part of the consideration Cyprus agreed to pay Hawks Nest various "production payments" including "50

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