Miller v. WesBanco Bank, No. 20-0041

CourtSupreme Court of West Virginia
Writing for the CourtCHIEF JUSTICE JENKINS delivered the Opinion of the Court.
Decision Date10 June 2021
PartiesTHOMAS B. MILLER AND JAMIE L. MILLER, Plaintiffs Below, Petitioners v. WESBANCO BANK, INC., Defendant Below, Respondent AND WESBANCO BANK, INC., Defendant Below, Petitioner v. THOMAS B. MILLER AND JAMIE L. MILLER, Plaintiffs Below, Respondents
Docket NumberNo. 20-0042,No. 20-0041

THOMAS B. MILLER AND JAMIE L. MILLER, Plaintiffs Below, Petitioners
WESBANCO BANK, INC., Defendant Below, Respondent
WESBANCO BANK, INC., Defendant Below, Petitioner
Plaintiffs Below, Respondents

No. 20-0041
No. 20-0042


FILED: June 11, 2021
January 2021 Term
Submitted: February 17, 2021
June 10, 2021

Appeal from the Circuit Court of Marion County
The Honorable David R. Janes, Judge
Civil Action No.


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Jacques R. Williams
Hamstead, Williams & Shook PLLC
George B. Armistead
Baker & Armistead
Morgantown, West Virginia
Attorneys for the Millers

Joseph V. Schaeffer
Spilman Thomas & Battle, PLLC
Pittsburgh, Pennsylvania
James A. Walls
Spilman Thomas & Battle, PLLC
Morgantown, West Virginia
Attorneys for WesBanco Bank, Inc.

CHIEF JUSTICE JENKINS delivered the Opinion of the Court.

JUSTICE WOOTON dissents in No. 20-0041, concurs in part and dissents in part in No. 20-0042, and reserves the right to file a separate opinion.

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1. West Virginia Code section 56-6-27 (eff. 1923) provides the exclusive means by which to obtain prejudgment interest in any action founded on contract. Failure to submit the question of prejudgment interest to the jury results in waiver of the same.

2. "'"Separate written instruments will be construed together and considered to constitute one transaction where the parties and the subject matter are the same, and where there is clearly a relationship between the documents." Syllabus point 3, McCartney v. Coberly, ___ W. Va. ___, 250 S.E.2d 777 (1978), overruled on other grounds by Syllabus point 2, Overfield v. Collins, 199 W. Va. 27, 483 S.E.2d 27 (1996).' Syl. Pt. 1, McDaniel v. Kleiss, 202 W. Va. 272, 273-74, 503 S.E.2d 840, 841-42 (1998)." Syllabus point 3, TD Auto Finance LLC v. Reynolds, 243 W. Va. 230, 842 S.E.2d 783 (2020).

3. "'A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent.' Syl. pt. 1, Cotiga Development Company v. United Fuel Gas Company, 147 W. Va. 484, 128 S.E.2d 626 ([1962])." Syllabus point 1, Sally-Mike Properties v. Yokum, 175 W. Va. 296, 332 S.E.2d 597 (1985).

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4. "The determination of whether a deed, contract, or other writing is ambiguous and does not clearly express the intention of the parties is a question of law to be determined by the court." Syllabus point 3, Harrell v. Cain, 242 W. Va. 194, 832 S.E.2d 120 (2019).

5. "If a circuit court finds that a deed, contract, or other writing is ambiguous and does not clearly express the intention of the parties, then the proper interpretation of that ambiguous document, when the facts are in dispute, presents a question of fact for the factfinder to resolve after considering all relevant extrinsic evidence." Syllabus point 4, Harrell v. Cain, 242 W. Va. 194, 832 S.E.2d 120 (2019).

6. "'[W]here the meaning [of a writing] is uncertain and ambiguous, parol evidence is admissible to show the situation of the parties, the surrounding circumstances when the writing was made, and the practical construction given to the contract by the parties themselves either contemporaneously or subsequently. . . .' Syl. Point 4, Watson v. Buckhannon River Coal Co., 95 W. Va. 164, 120 S.E. 390 (1923)." Syllabus point 1, in part, Buckhannon Sales Co., Inc. v. Appalantic Corp., 175 W. Va. 742, 338 S.E.2d 222 (1985).

7. "'In considering whether a motion for judgment notwithstanding the verdict under Rule 50(b) of the West Virginia Rules of Civil Procedure should be granted,

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the evidence should be considered in the light most favorable to the plaintiff, but, if it fails to establish a prima facie right to recover, the court should grant the motion.' Syllabus point 6, Huffman v. Appalachian Power Company, 187 W. Va. 1, 415 S.E.2d 145 (1991)." Syllabus, First National Bank of Bluefield v. Clark, 191 W. Va. 623, 447 S.E.2d 558 (1994) (per curiam).

8. "'"'Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence. Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W. Va. 85[, 163 S.E. 767 (1932)].'" Point 1, Syllabus, Jenkins v. Chatterton, 143 W. Va. 250[, 100 S.E.2d 808] (1957).' Syl. Pt. 1, Jividen v. Legg, 161 W. Va. 769, 245 S.E.2d 835 (1978)." Syllabus point 4, Jones v. Patterson Contracting, Inc., 206 W. Va. 399, 524 S.E.2d 915 (1999).

9. "In an action to recover damages for breach of contract, when the case has been fairly tried and no error of law appears, the verdict of a jury, based upon conflicting testimony and approved by the trial court, will not be disturbed unless the verdict is against the plain preponderance of the evidence." Syllabus point 3, Franklin v. Pence, 128 W. Va. 353, 36 S.E.2d 505 (1945).

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10. "To entitle plaintiff to recover substantial damages for breach of contract, where the loss is pecuniary and susceptible of proof with approximate accuracy, he[/she] must establish the quantum of damages with reasonable certainty. Where no sufficient data is afforded whereby a jury may definitely ascertain the compensation due for the breach, recovery therefor can be nominal only." Syllabus point 2, Wilson v. Wiggin, 77 W. Va. 1, 87 S.E. 92 (1915).

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Jenkins, Chief Justice:

These consolidated appeals arise from breach-of-contract litigation between borrowers Thomas and Jamie Miller ("the Millers") and lender WesBanco Bank, Inc. ("WesBanco"). Having reviewed the parties' briefs, their oral arguments, the appendix record, and the pertinent authorities, we resolve the issues herein raised as follows. The Millers, who prevailed below, challenge the circuit court's denial of prejudgment interest, which was based upon their failure to request the same from the jury pursuant to West Virginia Code section 56-6-27 (eff. 1923). We find no error and affirm the circuit court's ruling as to prejudgment interest.

In its separate appeal, which was consolidated with the Millers' appeal for purposes of our review, WesBanco raises four assignments of error. First, WesBanco assigns error to the circuit court's admission of parol evidence related to the agreement between the Millers and WesBanco rather than limiting the evidence to only the Construction Loan Agreement itself. We apply the single transaction rule and find that the agreement between the Millers and WesBanco was not limited to only the Construction Loan Agreement. Furthermore, because the agreement was ambiguous, we find no error in the circuit court's admission of parol evidence. WesBanco next claims that the circuit court erroneously allowed the Millers to rely on the duty of good faith and fair dealing to modify WesBanco's contractual obligations. To the contrary, we find the duty of good

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faith and fair dealing was properly applied. In its third assignment of error, WesBanco argues that the circuit court erred in denying its motion for judgment as a matter of law because the Millers failed to establish a prima facia case as to their breach-of-contract claims and resultant damages. Having reviewed the evidence, we find the Millers presented sufficient evidence such that the circuit court did not err in denying judgment as a matter of law to WesBanco. Finally, WesBanco argues that the jury's damages award of $404,500 was against the clear weight of the evidence. We agree that the Millers' evidence fails to support this verdict. Therefore, we reverse the award and remand this case for a new trial on damages only. Accordingly, the Millers' appeal is affirmed. WesBanco's appeal is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.


In August 2015, the Millers contracted with Residential Creations LLC ("Residential Creations") to build a family home for them in Fairmont, West Virginia.1 The agreed-upon price for the home was $690,000, and the construction contract provided the following schedule for payments to be made at the completion of certain project benchmarks:

Initial payment
$ 70,000.00

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Pre-fab, Walls & Floor (In Shop)
Superstructure A
Superstructure B
Rough Mechanicals
Interior/Exterior A
Interior/Exterior B

To finance the construction of their home, the Millers contacted WesBanco and worked with a loan originator named Michelle Hamilton. As part of a pre-qualification process that occurred in advance of their execution of the construction contract, the Millers were provided a document titled "WesBanco Bank, Inc.[,] Mortgage Loan Department[,] Expectations: Borrower/Builder" ("Expectations form"). The document was signed by the Millers on June 26, 2015; it also bears a signature above the line designated "Builder,"2 which is dated September 9, 2015.3 According to this Expectations form, lien waivers would be required from each subcontractor and the general contractor, and no funds would be disbursed for work not completed or materials not installed:

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The following requirements must be addressed with the borrower(s) and their builder as soon as possible. Failure to make the borrower(s) and their builder aware of this information may result in a delayed closing or first draw.

. . . .

All draw requests will be supported by the following documentation:

-Builder's Affidavit: Properly completed with all work detailed including materials and labor for all subcontractors. The

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