Drake v. West Virginia Self-Storage, Inc.

509 S.E.2d 21, 203 W. Va. 497, 1998 W. Va. LEXIS 150
CourtWest Virginia Supreme Court
DecidedOctober 16, 1998
DocketNo. 25064
StatusPublished
Cited by1 cases

This text of 509 S.E.2d 21 (Drake v. West Virginia Self-Storage, Inc.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drake v. West Virginia Self-Storage, Inc., 509 S.E.2d 21, 203 W. Va. 497, 1998 W. Va. LEXIS 150 (W. Va. 1998).

Opinions

PER CURIAM:

Donna Llyn Drake, plaintiff/appellant (hereinafter “Ms. Drake”), appeals an adverse summary judgment order granted by the Circuit Court of Roane County. The circuit court granted summary judgment to West Virginia Self-Storage, Inc., defendant/appellee (hereinafter “Self-Storage, Inc.”), after finding that a storage lease entered into between the parties was not unconscionable. Ms. Drake challenges the circuit court’s finding that the storage lease was valid and not unconscionable. Following a review of the parties’ arguments, the record below and the pertinent authorities, we affirm the decision of the Circuit Court of Roane County.

I.

FACTUAL BACKGROUND

On September 26,1996, Ms. Drake entered into a storage lease agreement with Self-Storage, Inc. The agreement required Ms. Drake to pay Self-Storage, Inc., $40 per month for storing her household items and other personal property. The relevant [499]*499clause in the storage agreement pertaining to the failure to comply with the terms of the lease provided:

17. OWNER’S REMEDIES UPON DEFAULT. In case of any default by Tenant, Owner may, at its option, elect any or all of the following remedies:
(c) Terminate this agreement, and upon such termination, Owner may reenter Tenant’s space and seize and take possession of all property in the space to satisfy all accrued rentals, late payment fees, lockout charges, damages and all other costs and expenses owed Owner by Tenant as a result of any breach by Tenant of any covenants, conditions, rules and regulations, or other terms of this lease. Upon such termination and seizure of Tenant’s property, Owner may retain property as its sole property, free of the claims of Tenant or others, to satisfy all sums owed Owner. Alternatively, Owner may sell Tenant’s property. If such property or any part thereof shall be sold by Owner, said sale may be made without notice to Tenant and may be either public or private sale; Owner may receive and retain the proceeds of such sale and may apply the proceeds of such sale at its option against the expenses of reentry and sale, the costs of moving and storing Tenant’s or others’ property, any arrearages of rent or other charges, any cleaning or trash removal charges, and any other damages to which Owner may be entitled hereunder or pursuant to law. Any excess remaining after the payment of all such charges may be retained by Owner unless Tenant shall claim such excess within ten (10) days of sale. Owner shall in no event be obligated to advise Tenant of such sale, the date or method of sale, or any excess monies resulting from such sale.

Ms. Drake failed to pay the monthly rental fee for December 1996 and January 1997. Self-Storage, Inc., mailed to Ms. Drake a notice, certified with return receipt requested, indicating that if the arrearages were not paid by February 7, 1997, Self-Storage, Inc., would exercise its right under the storage agreement to sell Ms. Drake’s property to satisfy the past due payments. Ms. Drake received the notice. However, Self-Storage, Inc., failed to receive any communication or payment from Ms. Drake.

On May 2, 1997, Ms. Drake forwarded to Self-Storage, Inc., a check in the amount of $180.00 for accrued past due rental payments. Self-Storage, Inc., returned the check with a letter advising Ms. Drake that her property had been sold pursuant to ¶ 17, § (c) of the storage agreement.1 Thereafter, Ms. Drake filed this action seeking recovery of her property or its monetary value. After a period of discovery, the trial court granted Self-Storage, Inc.’s, summary judgment motion finding that Self-Storage, Inc., complied with the terms of the storage agreement.

II.

STANDARD OF REVIEW

We have held 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). This Court stated in syllabus point 5 of Wilkinson v. Searls, 155 W.Va. 475, 184 S.E.2d 735 (1971), that

[a] motion for a summary judgment should be granted if the pleadings, exhibits and discovery depositions upon which the motion is submitted for decision disclose that the casé involves no genuine issue as to any material fact and that the party who made the motion is entitled to a judgment as a matter of law.

III.

DISCUSSION

The dispositive issue in this case is whether the trial court correctly ruled that the default clause in the storage agreement was not unconscionable. Two questions have [500]*500been presented by Ms. Drake regarding the trial court’s ruling. First, whether ¶ 17, § (c) of the storage agreement is facially unconscionable. Second, whether a mandatory notice of sale provision should have been incorporated in the storage agreement.

A. The Doctrine of Unconscionability

As an initial step in our analysis, we must examine the principles developed by this Court concerning the doctrine of unconscionability. This Court has held that “[u]nconscionability means overall and gross imbalance, one-sidedness or lop-sidedness that justifies a court’s refusal to enforce a contract as written.” McGinnis v. Cayton, 173 W.Va. 102, 113, 312 S.E.2d 765, 776 (1984). Unconscionability may be divided into two categories: procedural and substantive. Procedural unconscionability is concerned with the inequities and unfairness in the bargaining process. Substantive unconseionability is involved with determining unfairness in the contract itself. Id., 173 W.Va. at 114, 312 S.E.2d at 777.

We have held that “[u]nconscionability is an equitable principle, and the determination of whether a contract or a provision therein is unconscionable should be made by the court.” Syl. pt. 1, Troy Min. Corp. v. Itmann Coal Co., 176 W.Va. 599, 346 S.E.2d 749 (1986). In Ashland Oil, Inc. v. Donahue, 159 W.Va. 463, 474, 223 S.E.2d 433, 440 (1976), this Court held that “[i]n most commercial transactions it may be assumed that there is some inequality of bargaining power, and this Court cannot undertake to write a special rule of such general application as to remove bargaining advantages or disadvantages in the commercial area, nor do we think it necessary that we undertake to do so.” See also Barn-Chestnut, Inc. v. CFM Development Corp., 193 W.Va. 565, 570, 457 S.E.2d 502, 507 (1995). Undertaking “[a]n analysis of whether a contract term is unconscionable necessarily involves an inquiry into the circumstances surrounding the execution of the contract and the fairness of the contract as a whole.” Syl. pt. 3, Troy. We said in syllabus point 4 of Art’s Flower Shop, Inc. v. Chesapeake and Potomac Telephone Co. of West Virginia, Inc., 186 W.Va. 613, 413 S.E.2d 670

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Bluebook (online)
509 S.E.2d 21, 203 W. Va. 497, 1998 W. Va. LEXIS 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drake-v-west-virginia-self-storage-inc-wva-1998.