Judge orders Ambit to pay Horizon $250K for outstanding payments

·3 min read

Jul. 21—FAIRMONT — Two convoluted cases involving the Grant Town Power Plant which were appealed to the West Virginia Supreme Court were sent back to Marion County's Circuit Court in April. The first of the two has been resolved.

American Bituminous Power — known locally as Ambit — is the company who owns the Grant Town Power Plant. The latest development in a long history of litigation between Ambit and the power plant's landlord, Horizon Ventures, culminated in two cases landing in the state's highest court.

Both cases were reversed and sent back to Marion County.

The first case came before Judge Patrick Wilson at the end of June and both Ambit and Horizon moved for summary judgment, each in their own favor. A summary judgment would forego a trial by jury and boil the case down to a matter of law decided by the judge.

Wilson released his decision July 19 and ruled for summary judgment in favor of Horizon.

This first case, the simpler of the two reversed by the W.Va. Supreme Court, comes down to a matter of contract law. Horizon said Ambit is behind five years on consultation payments — payments which Ambit has made to Horizon successfully for the last 30 years. However, Ambit said that Horizon never provided the expertise promised in the agreement.

"The issue is that [Horizon] got lazy on their services and just kept expecting the check would come," Ambit Attorney Roberta Green said during oral arguments in June. "They just stopped paying attention and stopped caring."

During the motion hearing held June 24, Wilson asked Green several times when the last time Ambit requested Horizon fulfill its consultation obligations, Green never answered the question, and danced around the subject. Wilson points this out in his opinion issued July 19.

The court found that Ambit hasn't asked Horizon to provide consultation since 2006.

"This Court asked AMBIT, at least four times, to provide a specific time it made a request to AMBIT to exercise its expertise under this contract," states the ruling. "AMBIT never successfully did so, instead offering evasive and unclear answers...

"AMBIT ultimately never provided a substantive answer to this Court's inquiry upon which it could make a decision in AMBIT's favor."

The major three decisions the court found against Ambit was that it never proved Horizon could not fulfil its end of the contract, Ambit admitted to not paying Horizon the last five years and Ambit showed no facts that Horizon breached its end of the contract.

The court ordered Ambit to pay Horizon $250,000 for the outstanding payments.

A matter of rent

The second and more convoluted of the disputes between Ambit and Horizon is a matter of unpaid rent because of a disagreement about how much rent ought to be charged because of a stipulation which changes the rent based on the type of coal that is shipped in to burn in the power plant.

This matter was at first resolved in the business division of Marion County Circuit Court in 2020 in favor of Ambit. Horizon appealed the ruling to the W.Va. Supreme Court, who then reversed the ruling and sent it back to Marion County.

That case is set to kick off in August, and will be a much more heated matter, due to its inherent confusion and complexity. The Supreme Court's opinion is an apt summary.

"It is impossible to find clear meaning in the circular and imprecise language employed in these agreements so as to warrant an interpretation as a matter of law," read the April supreme court opinion on the matter, which was delivered by Justice Beth Walker.

In the midst of this situation, Horizon's attorney Mark Kepple is glad to have a ruling in his client's favor in the ramp up for the more complicated matter coming in August.

"We're really pleased with the outcome of the judge's ruling," Kepple said. "We're looking forward to the continued relationship of Ambit and Horizon into the future."

Reach David Kirk at 304-367-2522 or by email at dkirk@timeswv.com.