STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Jerry Berardi and Betty Berardi,
husband and wife, Defendants Below, FILED
May 24, 2013
Petitioners RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs) No. 12-0827 (Marion County 10-C-327)
Jack L. Oliver, CPA, d/b/a Oliver & Associates,
Accountants and Consultants, Plaintiff Below,
Respondent
MEMORANDUM DECISION
Petitioners’ appeal, by counsel David A. Glance, arises from the Circuit Court of Marion
County, wherein the circuit court awarded judgment in respondent’s favor in an action for breach
of contract by order entered May 30, 2012. Respondent, by counsel Patrick F. Roche, has filed his
response, to which petitioners have filed a reply.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
In September of 2010, Respondent Jack Oliver initiated a civil action against Petitioners
Jerry and Betty Berardi alleging that petitioners owed him $2,135 for professional services that
respondent rendered in his capacity as a certified public accountant (“CPA”), pursuant to a written
contract dated March 2, 2007. Pursuant to the contract, respondent was to provide professional
services as a CPA to Mr. Berardi in support of his professional malpractice lawsuit against his
former attorney. Additionally, respondent alleged that he was entitled to compensation from both
petitioners for the numerous tax returns he prepared for them personally and for various business
entities they owned. Respondent sought judgment against petitioners in the amount of $18,000 in
principal and $6,165 in interest for the preparation of the tax returns, which petitioner did file
with the IRS.
During the subsequent bench trial, the circuit court found that the parties had formed no
binding legal contract, based on testimony establishing that neither party thereto mutually
assented to how respondent was to be compensated. However, the circuit court did find that
respondent was entitled to compensation under the theory of quantum meruit because he had
provided a substantial benefit to both petitioners by preparing their delinquent tax returns and by
1
preparing for Mr. Berandi’s pending lawsuit. As such, the circuit court awarded respondent
judgment in the amount of $26,300, plus costs.
On appeal, petitioners allege one assignment of error, arguing that the circuit court erred
in granting respondent judgment in quantum meruit because the exact services rendered were not
provided with reasonable certainty. Petitioners argue that the circuit court failed to comply with
Rule 52(a) of the West Virginia Rules of Civil Procedure because it failed to include the requisite
findings of fact in support of its order. According to petitioners, respondent provided no time
records related to his work, and the circuit court therefore lacked the information necessary to
form a basis for its judgment.
We have previously held as follows:
“In reviewing challenges to the findings and conclusions of the circuit court made
after a bench trial, a two-pronged deferential standard of review is applied. The
final order and the ultimate disposition are reviewed under an abuse of discretion
standard, and the circuit court’s underlying factual findings are reviewed under a
clearly erroneous standard. Questions of law are subject to a de novo review.” Syl.
pt. 1, Public Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va. 329, 480
S.E.2d 538 (1996).
Syl. Pt. 1, Beverly v. Thompson, 229 W.Va. 684, 735 S.E.2d 559 (2012). Upon our review, the
Court finds no error in regard to the circuit court’s final order. The circuit court properly complied
with Rule 52 of the West Virginia Rules of Civil Procedure in regard to the requirement that it
“find the facts specially and state separately its conclusions of law thereon . . . .” Petitioner’s
argument hinges on the fact that the circuit court’s order does not have a specific finding as to
how many hours respondent spent preparing for litigation and preparing the subject tax returns,
but such a finding is not necessary for purposes of this rule.
The record shows that extensive evidence was admitted concerning the amount of work
necessary for respondent to complete petitioners’ tax returns and lawsuit evaluation, including
retrieving old computers out of storage in order to install older software necessary to complete
returns that were almost ten years overdue. Additionally, respondent’s expert witness provided
testimony that preparing delinquent returns is more difficult than preparing current returns, due to
application of the laws that existed at the time the returns were due. In fact, this expert testified
that respondent’s hourly rate was actually unfair and unreasonable to respondent himself, given
his opinion that respondent could have charged a higher rate for his work. Based upon this
evidence, the circuit court found that the invoices respondent submitted to petitioners were “both
fair and reasonable.” Because the circuit court’s findings in this regard were supported by
substantial evidence, we find no error.
For the foregoing reasons, the circuit court’s order is hereby affirmed.
2
Affirmed.
ISSUED: May 24, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
3