UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


J.S.K. REALTY COMPANY, a West            
Virginia corporation,
                  Plaintiff-Appellant,
                  v.
NEW PLAN REALTY TRUST, a                         No. 00-2111
Massachusetts Business Trust; THE
KROGER COMPANY, an Ohio
corporation,
              Defendants-Appellees.
                                         
            Appeal from the United States District Court
      for the Northern District of West Virginia, at Wheeling.
               Frederick P. Stamp, Jr., District Judge.
                           (CA-95-137-5)

                       Argued: January 25, 2001

                        Decided: May 1, 2001

       Before NIEMEYER and KING, Circuit Judges, and
      Gerald Bruce LEE, United States District Judge for the
        Eastern District of Virginia, sitting by designation.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

ARGUED: John Preston Bailey, BAILEY, RILEY, BUCH & HAR-
MAN, L.C., Wheeling, West Virginia, for Appellant. Mark E. Kogan,
2           J.S.K. REALTY CO. v. NEW PLAN REALTY TRUST
SATZBERG, TRICHON, KOGAN & WERTHEIMER, P.C., Phila-
delphia, Pennsylvania, for Appellees. ON BRIEF: Christopher Paull
Riley, BAILEY, RILEY, BUCH & HARMAN, L.C., Wheeling, West
Virginia, for Appellant. Christopher N. Jones, SATZBERG,
TRICHON, KOGAN & WERTHEIMER, P.C., Philadelphia, Penn-
sylvania; Ray A. Byrd, SCHRADER, BYRD & COMPANION,
P.L.L.C., Wheeling, West Virginia, for Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   J.S.K. Realty Company ("JSK") appeals the district court’s holding
that it and New Plan Realty Trust ("New Plan") are bound by a signed
written lease agreement and that JSK does not have the option to pur-
chase the leased property. Two issues are before the Court. First,
whether the district court erred in finding that JSK and New Plan did
not enter an oral option agreement. Second, whether New Plan fraud-
ulently induced JSK into entering the lease agreement with the prom-
ise of an oral option. During a two-day trial, the district court heard
conflicting testimony as to the existence of the option agreement,
found all the parties to be credible, and held that JSK did not meet
its burden of proving that an oral option agreement existed. In addi-
tion, the district court held that JSK did not prove that New Plan made
any material misrepresentation granting an oral option which induced
JSK into entering the lease. Upon review, we hold the district court
did not commit clear error in reaching its conclusions. Therefore, we
affirm.

                                  I.

 Sam Kusic, his wife, and his son were the sole shareholders of
Moundsville Shopping Plaza, Inc., ("MSP") which owned the Mound-
            J.S.K. REALTY CO. v. NEW PLAN REALTY TRUST                3
sville Shopping Center. New Plan was a real estate investment trust
and a developer of strip malls. For six months, Sam Kusic and New
Plan engaged in intense negotiations for New Plan to purchase the
Moundsville Shopping Center. The Moundsville Shopping Center
consisted of two tracts of land: (1) a 18.5 acre developed tract ("Tract
A"), and (2) a nearby 10.5 acre underdeveloped tract ("Tract B"). On
December 27, 1988, the parties gathered to close the deal on the
Moundsvile Shopping Center. The parties agreed to a $4,000,000 tax-
free exchange of the MSP property for stock in New Plan Realty
Trust. Federal tax laws were scheduled to change on January 1, 1999;
therefore, the parties had to complete the transaction before December
31, 1998 in order to realize the tax benefits. Sam Kusic, on behalf of
MSP, negotiated the sale on both tracts to New Plan. Originally, the
parties contemplated only leasing Tract A. Eventually, the parties
agreed that New Plan would purchase Tract B for 33,333 shares of
New Plan Stock and New Plan would lease the property back to
another company owned by the Kusic family, J.S.K. Realty Company.
In sum, under the tax-free exchange MSP sold Parcel A and B to New
Plan in exchange for New Plan giving the Kusic family 233,333
shares of New Plan Realty Trust and assuming the $495,632.20 mort-
gage debt on the property. (J.A. 517-536.)

   On December 31, 1998, Sam Kusic, on behalf of JSK, entered into
a signed formal agreement to lease Tract B from New Plan. (J.A. at
491-510.) In conjunction with the lease, JSK contends that New Plan
granted JSK an oral unrestricted 10-year option to purchase Tract B
for $500,000. However, the lease agreement from New Plan to JSK
does not contain or reference an option agreement. Moreover, Article
20 of the lease agreement provides as follows:

                     NO ORAL AGREEMENTS

    This Lease contains all the promises, agreements, condi-
    tions, inducements and understandings between Landlord
    and Tenant relative to the Premises and there are no prom-
    ises, agreements, conditions, understandings, inducements,
    warranties or representations, oral or written, expressed or
    implied, between them other than as herein set forth.

(J.A. at 509.)
4           J.S.K. REALTY CO. v. NEW PLAN REALTY TRUST
   Three years after the closing, New Plan entered into a lease agree-
ment with the Kroger Company ("Kroger") where New Plan leased
Tract A to Kroger for a 20 year term. (J.A. at 616-657.) The Kroger
lease purported to impose certain restrictions on Tract B. (J.A. at 617-
19, 650.) JSK claims that Tract B was not subject to the restrictions
set forth under the Kroger lease.

   JSK filed suit against New Plan and Kroger seeking (a) declaratory
judgment as to the parties’ rights under the lease, (b) general and spe-
cial damages against New Plan for alleged breach of the lease, and (c)
declaratory judgment with respect to the enforceability of the option
to purchase Tract B. The district court resolved the first two claims
on summary judgment. Under its remaining claim, JSK sought declar-
atory judgment with respect to enforceability of the option to pur-
chase Tract B. In the alternative, JSK sought rescission of the lease
on the basis that New Plan misrepresented that it would grant JSK an
option to repurchase Tract B which, in turn, induced JSK into enter-
ing the lease.

   Judge Frederick P. Stamp of the Western District of West Virginia
conducted a two-day bench trial. At trial, the parties presented several
witnesses attesting to what occurred at the closing. According to the
testimony of JSK’s witnesses, New Plan’s President, Arnold Laubick,
agreed to grant JSK an option to lease Tract B. JSK stated that Laub-
ick instructed the parties present at the closing to write down the dic-
tated terms of the option on their respective file folders. JSK stated
that Laubick orally represented to JSK its intention to honor the oral
option. Laubick and another New Plan witness stated that New Plan
was willing to enter into some form of an option agreement. How-
ever, New Plan’s witness said that New Plan would have required a
signed, written option agreement containing additional provisions
including a reciprocal easement agreement. New Plan never signed
any written option agreement.

   At the conclusion of trial, the district court held that JSK failed to
prove that there was a meeting of the minds with respect to the option
agreement as written on the file folder. In addition, the court held that
JSK failed to sustain its burden of proof to show that the land lease
should be rescinded on the grounds of unconscionability or fraud in
the inducement. Therefore, the court ruled that JSK was bound under
            J.S.K. REALTY CO. v. NEW PLAN REALTY TRUST                  5
the lease agreement and the agreement did not include an option to
purchase Tract B. JSK appeals.1

                                   II.

   The district court’s conclusion that New Plan neither granted JSK
an option to purchase Tract B nor induced JSK to enter the lease with
the promise of an option is not clearly erroneous and is properly sup-
ported by the facts. Rule 52(a) provides that if an action is tried with-
out a jury then "the court shall find the facts specially and state
separately its conclusions of law thereon . . . ." See FED. R. CIV. P.
52(a). To satisfy the demands of Rule 52(a), a district court must sup-
port its rulings by spelling out the subordinate facts on which it relies.
See Belcon Inc. v. Sherman Constr. Co., 

, 1324 (4th
Cir. 1986).

   A court of review should not set aside a finding of fact unless it is
clearly erroneous. See Anderson v. Bessemer City, 

, 573
(1985). A finding is clearly erroneous when, although there is evi-
dence to support it, the reviewing court is left with a definite and firm
conviction that a mistake has been committed. See 

appeals may not reverse a district court if the district court’s account
of the evidence is plausible in light of the record when viewed in its
entirety. See 

a district court chooses one of two per-
missible views of the evidence, the court’s choice is not clearly erro-
neous. See 

even when the district court’s findings are
based on physical or documentary evidence instead of credibility
determinations. See 

of law and fact
that require the consideration of legal concepts and involve the exer-
cise of judgment about the values underlying legal principles are
reviewed de novo." See Estate of Waters v. Commissioner, 

, 842 (4th Cir. 1995).
  1
    This Opinion focuses on the interactions between JSK and New Plan.
Kroger’s interest in this matter exists to the extent that the outcome of
this dispute may affect its rights under its lease. Kroger aligns with New
Plan in its belief that the written lease agreement governs the arrange-
ment between JSK and New Plan and that the alleged option does not
affect its interest in Tract B.
6           J.S.K. REALTY CO. v. NEW PLAN REALTY TRUST
                                    A.

    The district court properly specified the factual basis, and arrived
at a permissible conclusion, that New Plan did not grant JSK an
option to purchase Tract B. An option to purchase is a contract under
which the owner agrees with another that he will have the right to buy
at a certain price for a specified period of time. See Tate v. Wood, 

, 434 (W. Va. 1982). Therefore, a document representing
an option must evidence a contract by the parties. A determination of
whether circumstances fit within a legal definition of a contract is a
finding of fact that must be reviewed for clear error. See Brewer v.
Hosp. Management Assoc., Inc., 

, 20 (W. Va. 1998)
(stating that "[w]hile the determination of what constitutes a contract
. . . is a question of law, the determination of whether particular cir-
cumstances fit within the legal definition of a contract . . . is a ques-
tion of fact"); see also Kestler v. Bd. of Trustees, 

, 803
(4th Cir. 1994) (stating that the issue of whether a contract right exists
is governed by state law). Therefore, as long as the district court’s
facts support its finding that no option contract existed, and the find-
ing is plausible in light of the record when viewed in its entirety, then
the reviewing court must uphold the decision.

                                    1.

    The district court specified a proper factual basis to support its con-
clusion that New Plan did not grant JSK an option on Tract B. An
essential element of any binding contract is a meeting of the minds.
See Martin v. Ewing, 

, 861 (W. Va. 1932). The district
court found that JSK failed to prove this element. JSK’s witnesses tes-
tified that the parties entered an oral option contract for Tract B. See
J.S.K. Realty Co. v. New Plan Realty Trust, No. 95-137-5, at 9 (N.D.
W. Va. July 24, 2000); (J.A. at 322-27, 362-63.). New Plan’s wit-
nesses testified that New Plan refused to enter an option agreement
because JSK would not enter into a signed written option agreement.
See J.S.K. Realty Co., No. 95-137-5, at 11; (J.A. at 305-7.). In addi-
tion, there was a suggestion at trial that a written option agreement
may offend the viability of the tax-free exchange under existing tax
laws. (J.A. at 455.) The district court found that it "has no reason to
doubt the credibility of any of the witnesses, but rather believes that
each witness recalls or understands the transactions to have taken
            J.S.K. REALTY CO. v. NEW PLAN REALTY TRUST                  7
place in a particular manner." See J.S.K. Realty Co., No. 95-137-5, at
16. Then, the district court concluded that JSK failed to prove that the
parties had a meeting of the minds with respect to the option agree-
ment. See 

was plausible for the district court to find that
opposing witnesses are credible even though they have conflicting
testimony: the witnesses could have believed that the closing tran-
spired as they testified. The district court’s finding that no meeting of
the minds took place is permissible in light of its conclusion that the
parties believed different accounts of what transpired at the closing.
Therefore, the district courts’ finding that no meeting of the minds
took place is sufficient under Rule 52(a) to support its conclusion that
the parties did not enter an option contract on Tract B.

                                    2.

   The evidence as a whole supports the district court’s conclusion
that the parties did not enter an option contract. The statute of frauds
calls for an agreement for the sale or lease of land to be in writing.
See Holbrook v. Holbrook, 

, 904 (W. Va. 1996). The
agreement must be certain, in and of itself, or capable of being made
certain by reference to extrinsic factors where a court can ascertain
the agreement’s terms with reasonable certainty. See Milton Bradley
v. Moore et al., 

, 237 (W. Va. 1922). Under the parol evi-
dence rule, extrinsic evidence of parties’ statements about an unam-
biguous "instrument which occur contemporaneously with, or prior to
its execution, is inadmissible to contradict, add to, detract from, vary
or explain the terms of such instrument, in the absence of a showing
of illegality, fraud, duress, mistake, or insufficiency of consideration."
See Edmiston v. Wilson, 

, 499 (W. Va. 1961). Article
20 of the lease agreement for Tract B contains a merger clause which
states that all the promises and agreements with respect to the transac-
tion were set forth in the contract. (A.P. at 509.) The lease is clear and
unambiguous. There is no reference to New Plan granting an option
to JSK to purchase Tract B. JSK claims that the district court failed
to consider parol evidence such as the file folder and course of deal-
ing between the parties to determine whether the parties agreed to an
option on Tract B. Such evidence is not sufficient to alter the terms
of the lease agreement.

   Neither the file folder, nor the course of dealing between the par-
ties, is sufficient to contradict or add to the unambiguous terms of the
8           J.S.K. REALTY CO. v. NEW PLAN REALTY TRUST
lease agreement. JSK presents its attorney’s file folder with illegible
writings as documented evidence to support the existence of an option
agreement. See J.S.K. Realty Co., No. 95-137-5, at 10. The terms of
the option cannot be determined from the face of the document. The
terms, as interpreted by JSK, are as follows:

     (A) That during the first five years after the transfer of the
     property (December 31, 1988 to December 31, 1993), the
     plaintiff had the option of purchasing the leased property for
     the sum of $500,000, plus the federal and state capital gains
     taxes to be paid by New Plan on the purchase price and (B)
     that during the next five years (December 21, 1993 to
     December 31, 1998), the plaintiff had the option of purchas-
     ing the leased property for the sum of $200,000, adjusted
     upwards based upon the yearly increases in the CPI since
     December 31, 1988, plus the federal and state capital gains
     taxes to be paid by New Plan on the purchase price, or for
     the sum of $500,000, plus the federal and state capital gains
     taxes to be paid by New Plan on the purchase price, which-
     ever is greater.

J.S.K. Realty Co., No. 95-137-5, at 10. These terms do not identify
the holder of the option nor do they express how the parties would
exercise the option. Critically fatal to the claim, the file folder option
was never signed by New Plan indicating that it assented to the terms.
In short, the file folder writings are ambiguous and imprecise. These
writings are contrary to the course of dealing between the parties.
This transaction involved a tax-free exchange on property between
sophisticated real estate investors. Prior to closing, the parties
exchanged detailed drafts of the proposed lease. JSK hired a highly
competent West Virginia attorney to help negotiate the land lease
agreement. JSK also consulted the Arthur Anderson Company for tax
advice about the transaction. In light of the sophistication of the par-
ties and their approach to this transaction, it would appear that the
normal course of dealing between the parties would have been to
secure a signed written option agreement. On a whole, the file folder
writings and the parties’ course of dealing are not sufficient to supple-
ment or contradict the clearly unambiguous lease agreement.
            J.S.K. REALTY CO. v. NEW PLAN REALTY TRUST                   9
                                    B.

   The district court properly specified its factual basis, and arrived at
a permissible conclusion, that New Plan did not induce JSK to enter
the lease agreement. In order for JSK to show that New Plan fraudu-
lently induced JSK into entering the lease agreement, JSK must show:
(1) that New Plan committed the allegedly fraudulent act; (2) the act
was material and false; (3) JSK justifiably relied upon the act; and (4)
JSK was damaged because he relied upon it. See White v. Nat’l Steel
Corp., 

, 490 (4th Cir. 1991) (citing Lengyel v. Lint, 

, 69 (1981)). The district court found that JSK did not sus-
tain its burden of proving fraudulent inducement because JSK failed
to prove (1) the commission of a fraudulent act, and (2) justifiable
reliance.

   First, the district court found that New Plan did not commit a
fraudulent act. Specifically, the district court found that JSK did not
misrepresent any present existing facts to JSK. See J.S.K. Realty Co.,
No. 95-137-5, at 20. The district court made this finding after listen-
ing to, and acknowledging, testimony from witnesses on behalf of
JSK and New Plan who described what occurred during the closing.

   Second, the district court found that JSK did not justifiably rely
upon any alleged act. See J.S.K. Realty Co., No. 95-137-5, at 20. The
district court reached this finding after noting that (1) the parties’ rep-
resentations did not show the court that the parties entered an option
agreement; (2) Article 20 of the lease agreement contained a merger
clause which specifically prohibited any outside agreements not con-
tained within the lease; (3) JSK produced no written signed option of
any type with respect to Tract B; and (4) representatives of both par-
ties were educated, sophisticated attorneys and businessmen who had
substantial experience in real estate transactions. These findings of
fact are sufficient to support the district court’s conclusion that New
Plan did not promise JSK an option which fraudulently induced it into
signing the lease agreement.

  The district court did not err in holding that JSK failed to meet its
burden of proving that New Plan induced JSK to enter the lease
agreement. The district court’s findings, and the evidence submitted,
supports the district court’s conclusion. JSK had sophisticated attor-
10           J.S.K. REALTY CO. v. NEW PLAN REALTY TRUST
neys and business men negotiating the deal on its behalf. The parties
agreed to various terms for the leasing of Tract B as evidenced by the
detailed 20 page lease. Prior to the closing, the parties reviewed, dis-
cussed, and exchanged drafts of this lease. The lease agreement con-
tains no reference to an option agreement. Moreover, the lease
specifically prohibits any outside written agreements. The district
court found that the parties should have known that an oral option,
signified by illegible writings on a file folder, would not be enforce-
able. The district court did not commit clear error in its conclusion
that JSK, as a sophisticated party, did not justifiably rely on the option
to purchase real estate which was not reduced to writing and was in
consideration of signing an integrated lease which prohibits outside
agreements. JSK should have known that the statute of frauds and the
parol evidence rule would prevent such extrinsic, ambiguous, and
undocumented evidence from altering an otherwise fully integrated
lease. Therefore, the district court did not make a mistake in holding
that New Plan did not induce JSK into entering the lease.2

                                    III.

   The crux of this appeal involves what occurred during the Decem-
ber closing on the sale and lease of the former Moundsville Shopping
Center. The district court properly specified the findings of fact on
which it relied to reach its conclusion that no option agreement
existed and that New Plan did not fraudulently induce JSK into enter-
ing the lease. The testimony of the parties, writings on the file folder,
  2
     JSK raises additional issues which are immaterial in light of the dis-
trict court’s conclusion that JSK did not prove that the parties had a
meeting of the minds. First, the district court did not err in allocating the
burden of proof to New Plan for the affirmative defenses of laches and
waiver because the district court found that JSK did not prove its prima
facie case that an option agreement existed. Second, the district court did
not err in failing to stop the parties from asserting statute of frauds
because an instrument relied upon to take a contract out of operation of
the statute of frauds must contain every element essential to an agree-
ment. See Milton Bradley Co. v. Moore et al., 

, 237 (W. Va.
1992). Third, the court did not err by finding that the oral option agree-
ment is not enforceable under West Virginia law because the district
court’s conclusion was an alternative to the court’s original finding that
the parties did not enter into an option agreement.
            J.S.K. REALTY CO. v. NEW PLAN REALTY TRUST                11
and course of dealing between the parties also support the district
court’s conclusions. Therefore, the district court did not commit clear
error in its declaration that the parties are bound by the signed written
lease on Tract B and JSK has no option to purchase this tract. Accord-
ingly, we affirm.

                                                            AFFIRMED