Marshall v. Elmo Greer & Sons, Inc.

• Decision Date: 24 March 1995
• Docket Number: No. 22300,22300
• Citation: 456 S.E.2d 554,193 W.Va. 427
• Court: West Virginia Supreme Court
• Parties: David L. MARSHALL, dba David's Enterprises, Plaintiff Below, Appellant v. ELMO GREER & SONS, INC. and the Hartford Fire Insurance Company, Defendants Below, Appellees.

Page 554

456 S.E.2d 554

193 W.Va. 427

David L. MARSHALL, dba David's Enterprises, Plaintiff Below, Appellant v. ELMO GREER & SONS, INC. and the Hartford Fire Insurance Company, Defendants Below, Appellees.

No. 22300.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 24, 1995.

Decided March 24, 1995.

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.' Syl. pt. 3, Aetna Casualty and Surety Company v. Federal Insurance Company, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syllabus Point 5, Warner v. Haught, Inc., 174 W.Va. 722, 329 S.E.2d 88 (1985).

2. " '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).

Thomas W. Kupec, Michael & Kupec, Clarksburg, for appellant.

J. Greg Goodykoontz, Steptoe & Johnson, Clarksburg, for appellees.

PER CURIAM:

David L. Marshall appeals from a partial summary judgment order of the Circuit Court of Harrison County dismissing his contract claim against Elmo Greer & Sons, Inc. (hereinafter Greer) and The Hartford Fire Insurance Co., Greer's surety on the Greenbrier County construction project. Mr. Marshall maintains that circuit court erred in finding the contract between Mr. Marshall and Greer (hereinafter the express, written contract) to be unambiguous and in dismissing Mr. Marshall's contract claim. Although we agree that the dismissal of the express, written contract claim was proper, nonetheless, we find the dismissal to be premature because Mr. Marshall's complaint may state an implied contract or quantum meruit claim that was not considered by the circuit court.

Greer, a general contractor for the West Virginia Dept. of Highways on project I-ID-64-4(37)143, a part of Interstate 64's construction in Greenbrier County (hereinafter the project), was required by the State to employ minority subcontractors. Mr. Marshall, a minority subcontractor, and Greer entered an express, written contract dated April 3, 1985, by which Mr. Marshall agreed to perform "clearing and grubbing" for which Greer agreed to pay $139,055. ¹ Greer also agreed to pay $97,900 to Mr. Marshall for a certain amount of class B Concrete, but that portion of the contract is not part of this case.

Section VIII of the express, written contract provided, in pertinent part:

Payment shall be determined by the unit price for each particular kind of work shown on Exhibit "A"....

                Exhibit A provided the following work description
                 ITEM          DESCRIPTION          APPRO.QUAN.         UNIT          AMOUNT
                 201"1     CLEARING & GRUBBING         1.0 LS        $139055.00     $139055.00
                 601"2      CLASS B. CONCRETE        356.0 CY            275.00       97900.00
                                                                                   ------------
                                                                            TOTAL   $236955.00
                

In addition, Section X of the express, written contract stated:

This Contract includes all changes, addenda, etc., to date; and takes precedence over any and all proposal, correspondence, and oral agreements made prior to the execution of this Contract, this constituting the entire Agreement between Parties.

Mr. Marshall contends that in addition to the four pages submitted by Greer, the express, written contract also included a cover sheet showing that Mr. Marshall's contract was to clear and grub ninety-one (91) acres. Mr. Marshall maintains that the parties agreed he was to be paid about $1,500 per acre for clearing and grubbing. Mr. Marshall maintains that after he cleared and grubbed the ninety-one acres under the contract, Greer allowed him to continue clearing and grubbing an additional 110 acres--almost the entire project. Mr. Marshall contents that Greer's refusal to pay for his additional work caused his financial problems that led to his dismissal by Greer.

In support of his contention that the express, written contract was a per acre payment contract for ninety-one acres, Mr. Marshall notes that Greer reported to the Dept. of Highways that the express, written contract was "partial." Greer argues that the contract was reported as partial because Greer intended and performed clearing and grubbing in project areas other than the right of way. Mr. Marshall notes that clearing and grubbing was a substantial part of Greer's contract with the State. According to a line item, in Greer's "Schedule of Prices" submitted to the State, the project's clearing and grubbing cost was $1,080,000.

Greer, arguing that the express, written contract is unambiguous and parol evidence is not admissible to contradict the terms of the express, written contract, sought the dismissal of Mr. Marshall's contract claim. The circuit court agreed and granted Greer partial summary judgment. Mr. Marshall appealed to this Court.

I

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.

Syl. pt. 3, Aetna Casualty and Surety Company v. Federal Insurance Company, 148 W.Va. 160, 133 S.E.2d 770 (1963); Syl. pt. 5, Warner v. Haught, Inc., 174 W.Va. 722, 329 S.E.2d 88 (1985).

The record clearly establishes that Mr. Marshall cannot prevail on his express, written contract claim. Mr. Marshall contends that the express, written contract was really a $1,500 per acre charge for clearing and grubbing. To support his argument, Mr. Marshall cites the express, written contract's cover sheet, which is missing, and various oral negotiations and representations that occurred before the express, written contract was signed.

According to Mr. Marshall, the missing cover sheet showed that he agreed to clear and grub ninety-one acres at $1,500 per acre. However, Mr. Marshall's allegation that the express, written contract contained an additional page is not creditable. The express, written contract, in the form submitted by Greer, begins with the caption "CONSTRUCTION AGREEMENT" and a short paragraph identifying the date and parties. The instrument continues with consecutively numbered sections I through Section X; "EXHIBIT A" is at the beginning of the fourth page and the parties' signatures follow thereafter. No missing page is apparent from the structure of the instrument. No additional page was submitted by Mr. Marshall.

Generally, a high degree of proof from one seeking to establish a lost instrument is required. In Syl. pt. 1, Lucas v. Hensley, 81 W.Va. 239, 94 S.E. 138 (1917) we said, "[t]o establish title to land under an alleged lost deed, on parol testimony, proof that it existed, and of its contents, must be clear and conclusive." See Syl., Drake v. Parker, 122 W.Va. 145, 7 S.E.2d 651 (1940) ("[f]or parol testimony to establish title to land through an alleged lost instrument, proof of its execution, contents and loss must be conclusive"); Gill v. Colton, 12 F.2d 531, 534 (4th Cir.1926) ("[i]t is incumbent upon one seeking to establish a lost instrument to prove it by evidence of the clearest and most satisfactory character" );"); Smith v. Lurty, 108 Va. 799, 800-01, 62 S.E. 789, 790 (1908) (because of the motive of the party alleging a lost instrument, a high degree of proof is required). In this case, because no evidence shows that the express, written contract includes more than four pages, we reject Mr. Marshall's allegation.

Mr. Marshall next asserts that various oral negotiations and representations occurred before the express, written contract was signed to show that the express, written contract was a per acre charge. However, we have long held that "[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." Syllabus Point 1, Warner v. Haught, Inc., 174 W.Va. 722, 329 S.E.2d 88 (1985). In accord Jolynne Corp. v. Michels, 191 W.Va. 406, 412, 446 S.E.2d 494, 500 (1994); Syl. pt. 1, Buckhannon Sales Co., Inc. v. Appalantic Corp., 175 W.Va. 742, 338 S.E.2d 222 (1985); Syl. pt. 3, Iafolla v. Douglas Pocahontas Coal Corp., 162 W.Va. 489, 250 S.E.2d 128 (1978).

However, the plain language of the express, written contract in Exhibit A states that clearing and grubbing was a lump sum payment rather than a per acre charge. Under the contract Mr. Marshall was to be paid $139,055 to perform certain clearing and grubbing on the project. The documents filed in this case show, beyond a doubt, that Mr. Marshall was paid the contract amount and Mr. Marshall is not entitled under the plain language of the express, written contract to additional payments. A determination of the amount of work performed under the express, written contract is not necessary to affirm the circuit court's rejection of Mr. Marshall's express, written contract claim.

II

Although Mr. Marshall's express, written contract claim was properly dismissed, Mr. Marshall's complaint may raise an implied contract theory of recovery, which was not directly addressed by the circuit court's summary judgment order.

An implied contract "presupposes an obligation 'arising from mutual agreement and intent to promise but where the agreement and promise have not been expressed in words.' " Case v. Shepherd, 140 W.Va. 305, 310, 84 S.E.2d 140, 143 (1...