State ex rel. Frazier & Oxley v. Cummings
In State ex rel. Frazier & Oxley v. Cummings, 212 W. Va. 275, 569 S.E.2d 796 (2002), Frazier & Oxley sought a prohibition which we granted, holding that the rights of a subtenant depend on whether the primary lease was "terminated," which would also terminate the sublease, or was "surrendered," which would not affect the sublease. Frazier & Oxley I, 212 W. Va. at 280, 569 S.E.2d at 802.
After establishing these new points law, the Court observed this would be the end of our inquiry were it not for the settlement agreement which was executed between City National and Frazier & Oxley.
Absent that agreement, the Court would simply reverse the circuit court's award of summary judgment in favor of City National and St. James and remand for a factual determination of whether a surrender of the prime lease occurred. Id., 569 S.E.2d at 802.
The Court then recognized that if a subtenant consents to the surrender, the surrender ends any rights a subtenant has under the prime lease.
The Court consequently examined the settlement agreement between Frazier & Oxley and City National to determine if it could be construed as Frazier and Oxley's consent to a surrender. Id. at 282-83, 569 S.E.2d at 803-4.
The Court concluded that the settlement could not be construed as a consent. Id. at 283, 569 S.E.2d at 804.
Given that the Court found the settlement agreement between City National and Frazier & Oxley did not have any relevance to the issue of whether the prime lease was terminated or surrendered, the operative part of the opinion in Frazier & Oxley I for determining the nature of our remand relates back to our observation that, but for the settlement agreement, we would have remanded the case back to the circuit court to conduct proceedings "for a factual determination of whether a surrender of the prime lease occurred." Id. at 281, 569 S.E.2d at 802.