Joseph M. and Susan Closson v. Mountaineer Grading Co., etc.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Joseph M. Closson
and Susan Closson,
FILED
Plaintiffs Below, Petitioners November 10, 2016

RORY L. PERRY II, CLERK
vs) No. 15-0820 (Marion County 07-C-71) SUPREME COURT OF APPEALS
OF WEST VIRGINIA

Mountaineer Grading Company and
Thrasher Engineering, Inc.,
Defendants Below, Respondents

MEMORANDUM DECISION
Petitioners Joseph and Susan Closson (“petitioners”), by counsel Edmund J. Rollo, appeal
the order of the Circuit Court of Marion County, entered on July 27, 2015, denying their motion
for a new trial. Respondent Thrasher Engineering, Inc. (“respondent”) appears by counsel John
B. Cromer. Though named as a respondent, Mountaineer Grading Company (“Mountaineer
Grading”) has not participated in this appeal, and the circuit court noted that it stopped
participating in litigation several years before entry of the that court’s judgment.

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 affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

Petitioners, through their limited liability company, purchased ten acres of undeveloped
valley property in Marion County in 2001 for $50,000. Pursuant to a contract, petitioners
allowed Mountaineer Grading to use this valley property for waste fill disposal related to a
“gateway connector” construction project from Interstate 79, in return for payment of
$226,098.25. The agreement between petitioners and Mountaineer Grading specified the type of
and manner in which waste fill would be deposited on the property, and provided that a testing
agency would certify the property upon completion of the project. Mountaineer Grading
ultimately hired respondent to perform that testing, but respondent was not a party to the contract
between Mountaineer Grading and petitioners, and did not participate in the contract
negotiations. Respondent provided petitioners with a letter of certification in October of 2005.

Petitioners filed a complaint in the Circuit Court of Marion County in 2007, asserting
breach of contract and breach of the covenant of good faith and fair dealing by Mountaineer
Grading. One year later, they filed an amended complaint adding respondent and asserting that
respondent breached its contract with Mountaineer Grading, was negligent, and breached its

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duties and obligations to them, the “third-party beneficiar[ies]” of the contract between
Mountaineer Grading and respondent. In short, petitioners alleged that the upper five feet of the
fill material left on the property did not meet contract specifications. The circuit court dismissed
petitioners’ breach of contract claim against respondent by order entered on October 18, 2010, on
the ground that there was no contractual relationship between petitioners and respondent. Later,
the circuit court granted a motion by respondent to limit potential damages to the diminution of
petitioners’ property value rather than the cost of remediation, inasmuch as the cost of
remediation was expected to substantially exceed the value of the property.

The circuit court tried the case in August of 2014, with Mountaineer Grading making no
appearance. The jury found in favor of petitioners and awarded them $126,000 for their
contractual claim against Mountaineer Grading, and $25,000 for their negligence claim against
respondent, but the jury also found comparative negligence of 49% on the part of petitioners. On
that basis, the circuit court ordered the verdict molded, resulting in judgment of $126,000 against
Mountaineer Grading, and $12,750 against respondent. The judgment order was entered in
March of 2015. Petitioners filed a motion for a new trial and to amend judgment or for relief
from judgment on the asserted bases that they should have been permitted to assert a breach of
contract claim, that they should have been permitted to offer evidence of the cost of remediation
of the property, and that they were not comparatively negligent. The court denied the motion for
a new trial, but amended judgment as described above, and this appeal followed.

On appeal, petitioners assert three assignments of error: that the lower court erred in
requiring petitioners to be the “sole beneficiary” of the contract between respondent and
Mountaineer Grading to recover on contractual claims; that the circuit court erred in limiting
their recovery to the pre-injury value of the property; and that the circuit court erred in
confirming the jury’s finding that they were contributorily negligent. Inasmuch as we are
considering petitioners’ arguments in relation to the circuit court’s denial of their motion for a
new trial, we review the assignments of error under an abuse of discretion standard. See, State v.
Crouch, 191 W.Va. 272, 275, 445 S.E.2d 213, 216 (1994) (“The question of whether a new trial
should be granted is within the sound discretion of the trial court and is reviewable only in the
case of abuse.”); Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 104, 459 S.E.2d
374, 381 (1995) (“We review the rulings of the circuit court concerning a new trial and its
conclusion as to the existence of reversible error under an abuse of discretion standard, and we
review the circuit court's underlying factual findings under a clearly erroneous standard.”);
Syllabus Point 4, in part, Sanders v. Georgia–Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218
(1976)( “[t]he ruling of a trial court in granting or denying a motion for a new trial is entitled to
great respect and weight, [and] the trial court's ruling will be reversed on appeal [only] when it is
clear that the trial court has acted under some misapprehension of the law or the evidence.”).
Williams v. Charleston Area Med. Ctr., 215 W.Va. 15, 18, 592 S.E.2d 794, 797 (2003)(quoting
Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995))].

We begin with petitioners’ first assignment of error, in which they argue that they need
not be the “sole beneficiary” of the contract between respondent and Mountaineer Grading to
enjoy recovery. Petitioners advance this argument because they were not parties to the contract,
and the circuit court acknowledged that “‘[t]his Court has held that in order for a contract
concerning a third party to give rise to an independent cause of action in the third party, it must

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have been made for the third party’s sole benefit.’” Eastern Steel Constructors v. City of Salem,
209 W.Va. 392, 404, 549 S.E.2d 266, 278 (2001), quoting Robinson v. Cabell Huntington Hosp.,
Inc., 201 W.Va. 455, 460, 498 S.E.2d 27, 32 (1997). Our holding in that regard is derivative of
West Virginia Code § 55-8-12, which provides:

If a covenant or promise be made for the sole benefit of a person with
whom it is not made, or with whom it is made jointly with others, such person
may maintain, in his own name, any action thereon which he might maintain in
case it had been made with him only, and the consideration had moved from him
to the party making such covenant or promise.

Petitioner urges a thorny application of the Code text, suggesting that we have heretofore ignored
the “significant” phrase, “or with whom it is made jointly with others.” This phrase, they argue,
conveys the Legislature’s contemplation that “a person is a ‘third-party beneficiary’ when the
covenant or promise benefits multiple parties and not just one party.” Even entertaining
petitioners’ elucidation, however, we find that no third-party beneficiary status has been
conferred. The agreement at issue was neither made for petitioners’ sole benefit, nor was “made”
by petitioners “jointly with others.” We find no merit in petitioners’ argument in this regard.

Next, we consider petitioners’ second assignment of error, in which they argue that the
circuit court improperly limited the measure of damages to the difference in the value of the
property before and after the injury based on our prior holding that

[w]hen realty is injured the owner may recover the cost of repairing it, plus his
expenses stemming from the injury, including loss of use during the repair period.
If the injury cannot be repaired or the cost of repair would exceed the property’s
market value, then the owner may recover its lost value, plus his expenses
stemming from the injury including loss of use during the time he has been
deprived of his property.

Syl. Pt. 2, Jarrett v. E. L. Harper & Son, Inc., 160 W. Va. 399, 399, 235 S.E.2d 362, 363 (1977)
holding modified by Syl. Pt. 4, Brooks v. City of Huntington, 234 W. Va. 607, 768 S.E.2d 97
(2014).1 Petitioners argue, however, that they should be entitled to recover the full cost of

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We note that after the trial of petitioners’ claims, but prior to the filing of petitioners’
brief, we issued the Brooks opinion. In syllabus point 4 of Brooks, we modified syllabus point 2
of Jarrett, explaining in part that “[w]hen residential real property is damaged, the owner may
recover the reasonable cost of repairing it even if the costs exceed its fair market value before the
damage. . . .” In discussing the modification, we noted that the Restatement position suggested
that recovery for repairs, though excessive of prior market value, may be appropriate “if a
building such as a homestead is used for a purpose personal to the owner. . . .” Brooks, 234
W.Va. at 613, 768 S.E.2d at 103. Petitioners do not refer to Brooks and, consequently, do not
argue that the concepts springing from that case should extend to commercial property or be
applied retroactively. They suggest, without citation to the appendix record on appeal, that the
“property was . . . in essence, their retirement,” but otherwise offer no evidence of a “personal”
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restoring the damaged property, regardless whether that cost exceeds diminution in the prior
market value of the property. Despite petitioners’ arguments to the contrary, the meaning of
Jarrett is clear. The circuit court appropriately limited the measure of damages under the
circumstances presented to us.

Finally, we turn to petitioners’ third assignment of error, in which they argue that the
circuit court failed to set aside the jury finding that they were contributorily negligent in the
events leading to this action. The scant two paragraphs that petitioners offer in support of this
argument—consisting primarily of the conclusory statement that “the evidence is clear that
[petitioners] owed no duty to [respondent]”—include no citations to the appendix record on
appeal, and offer little in the way of illumination. A party’s brief must contain an argument
exhibiting clearly the points of fact and law presented, the standard of review applicable, and
citing the authorities relied on, under headings that correspond with the assignments of error.
The argument must contain appropriate and specific citations to the record on appeal, including
citations that pinpoint when and how the issues in the assignments of error were presented to the
lower tribunal. The Court may disregard errors that are not adequately supported by specific
references to the record on appeal. See Rule 10(c)(7) West Virginia Rules of Appellate
Procedure. We find the requisite citations for specific evidence lacking such that we are unable
to consider petitioners’ claims related to this third assignment of error.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: November 10, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:

Justice Robin Jean Davis

purpose behind the use of their commercial property. We thus leave any question about the
application of Brooks to commercial property for another day.
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