Miller v. Wesbanco Bank, Inc. and Wesbanco Bank, Inc. v. Miller

FILED
June 11, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2021 Term
_____________

No. 20-0041
_____________

THOMAS B. MILLER AND JAMIE L. MILLER,
Plaintiffs Below, Petitioners

V.

WESBANCO BANK, INC.,
Defendant Below, Respondent
________________________________________________

Appeal from the Circuit Court of Marion County
The Honorable David R. Janes, Judge
Civil Action No. CC-24-2017-C-119

AFFIRMED
________________________________________________

AND

_____________

No. 20-0042
_____________

WESBANCO BANK, INC.,
Defendant Below, Petitioner

V.

THOMAS B. MILLER AND JAMIE L. MILLER,
Plaintiffs Below, Respondents
 ________________________________________________

Appeal from the Circuit Court of Marion County
The Honorable David R. Janes, Judge
Civil Action No. CC-24-2017-C-119

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
________________________________________________

Submitted: February 17, 2021
Filed: June 10, 2021

Jacques R. Williams Joseph V. Schaeffer
Hamstead, Williams & Shook PLLC Spilman Thomas & Battle, PLLC
George B. Armistead Pittsburgh, Pennsylvania
Baker & Armistead James A. Walls
Morgantown, West Virginia Spilman Thomas & Battle, PLLC
Attorneys for the Millers 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.
 SYLLABUS BY THE COURT

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).

i
 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,

ii
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).

iii
 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).

iv
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

1
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.

I.

FACTUAL AND PROCEDURAL HISTORY

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
Foundation 130,000.00

1
The construction contract was executed on August 31, 2015.

2
 Pre-fab, Walls & Floor (In Shop) 60,000.00
Superstructure A 135,000.00
Superstructure B 50,000.00
Rough Mechanicals 75,000.00
Insulation/Drywall 65,000.00
Interior/Exterior A 50,000.00
Interior/Exterior B 45,000.00
Retainage: 10,000.00

Total $690,000.00

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:

2
While the signature is largely illegible, we presume it is the signature of
Derrick Pritt on behalf of Residential Creations LLC.
3
During the trial of this case, Michelle Hamilton was asked if the loan would
proceed without a signed Expectations form. She responded, “[n]ot that I’m aware. It was
required to be signed before the construction loan.” She additionally testified that she was
not aware of any loan going forward at closing without an Expectations form first being
signed by the borrowers.

3
 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 total amount due must be clearly identified. The form
must be signed by the general contractor in the presence of a
notary public.

–Lien Waivers: Required. Properly executed and notarized
Lien Waivers must be presented by each sub contractor in
addition to the general contractor.

–Authorization to Draw Funds: Must be signed by the
borrower(s) and must correspond with the Builder’s Affidavit
and Lien Waivers.

–Inspections: An inspection may be required depending on the
total amount disbursed compared to the total amount complete.
No funds will be advanced until the inspection (if required) has
been received.

Funds will not be disbursed for work not completed. The first
draw will not be made until the foundation is complete
(exception would be funds disbursed at closing for lot purchase
if applicable).

Funds will not be disbursed for materials on site not installed.

During the trial in this matter, Ms. Hamilton testified that she also told the Millers that

WesBanco would obtain lien waivers before each draw payment and payment would be

made only for completed work.

4
 Thereafter, the Millers executed a residential Construction Loan Agreement

and a separate Construction Loan Addendum 4 with WesBanco, under which WesBanco

agreed to loan them $555,000 to be used in building their new home. 5 Section 4 of the

Construction Loan Agreement, titled “Advance of Funds,” set out the procedure for

requesting WesBanco to disburse loan funds (sometimes referred to as draws):

4. Advance of Funds. Funds required for the project shall
include Borrower’s funds in addition to the loan proceeds set
forth herein.

....

B.) The procedure for requesting disbusements [sic]
is as follows:

(i) When funds are needed for the project,
Borrower shall notify Lender at least 48 hours prior to the date
that an advance is required. Lender agrees to advance funds in
accordance with the CONSTRUCTION LOAN
DISBURSEMENT SCHEDULE attached hereto as Exhibit
“A” and made a part thereof.[6] Lender shall be under no
obligation to advance funds hereunder until Lender has
obtained a satisfactory inspection report from an inspector of
its own choosing indicating that sufficient construction has
occurred to support the amount of draw requested and has

4
The terms contained in the Construction Loan Addendum are not relevant
to the instant dispute.
5
Although the construction contract between the Millers and Residential
Creations was dated August 28, 2015, and provided that the total price for the work agreed
upon was $690,000, the Construction Loan Agreement refers to a construction contract
dated June 21, 2015, for the amount of $719,100.
6
The record does not appear to contain a document titled “Construction Loan
Disbursement Schedule.” Instead, WesBanco advanced funds in accordance with the
schedule of payments set out in the construction contract between the Millers and
Residential Creations, which is quoted above.

5
 received the executed Waiver of Liens from the general
contractor and from the subcontractors, suppliers and
materialmen, if deemed necessary. Borrower hereby grants to
Lender, or its authorized representative, authority to enter onto
the subject Property at reasonable times to perform the
inspections provided for herein. Borrower further agrees that
any such inspections shall in no way be construed to warrant
the quality of workmanship of any work performed.

(ii) Draw Inspections are made as requested by
Borrower according to the Disbursement Schedule.

C.) After depletion of the Borrower’s portion of the
contract price specified above towards the construction of the
proposed improvements, Lender shall, upon application of the
Borrower make periodic disbursements to the Borrower for
payment for work actually performed, materials delivered, or
materials for the delivery of which the [B]orrower has entered
into an agreement, provided:

(i) That the initial request for disbursement of the
proceeds of the loan shall be accompanied by the executed
waiver of lien forms signed by all contractors, subcontractors,
and materialmen who furnished labor or materials to the site
prior to the initial advance;

(ii) That all subsequent disbursements shall have
been approved by the Construction Loan Department, to the
effect that the improvements are being completed in
accordance with the predetermined schedule for utilization of
the contract price and shall be accompanied by the executed
waiver of lien forms signed by all contractors, subcontractors,
and materialmen who furnished labor or materials to the site
prior to the initial advance[.]

(Emphasis added). In addition, the Construction Loan Agreement included the following

two provisions that are germane to this appeal:

6. Final Advance of the Loan. The obligation of the
Lender to make the final advance under the loan shall be
subject to the Borrower providing evidence satisfactory to the

6
 Lender that a permanent certificate of occupancy and all
governmental approvals, federal, state and local, necessary for
the use and occupancy of the improvements have been
obtained, if required. In addition, the Borrower shall provide
a survey satisfactory to the Lender of the completed
improvements meeting the requirements stated in this
Agreement. Borrower shall provide Lender with a final
inspection report which must be satisfactory to the Lender, and
the Lender has received the fully executed Waiver of liens from
all subcontractors, suppliers and materialmen and the
Builder’s Affidavit.

7. Mechanic’s Lien. Borrower agrees that any
mechanic’s lien filed upon the property shall be Borrower’s
sole responsibility and hereby holds Lender harmless against
all losses, including but not limited to, liability, costs, or
damages resulting from same.

(Emphasis added). Closing for the Construction Loan Agreement was on October 22,

2015. At closing, the Millers tendered a cash payment of approximately $149,000 to cover

a portion of the construction costs along with other expenses such as those charged by a

construction inspector, some of the site preparation costs, and fees associated with the

closing of the loan. The portion of the Millers’ deposit related to the construction was to

be disbursed by WesBanco along with the loan proceeds.

The initial $70,000 payment to Residential Creations was made at closing.

Thereafter, four documents were required by WesBanco in connection with each draw

request. First, WesBanco required a “Waiver of Lien Materials or Labor” form signed by

the builder, Residential Creations, and notarized. This form included the builder’s

certification that there were no outstanding charges: “The undersigned further certifies that

7
there are no outstanding charges that may result in liens against said property.” Second, a

notarized “Builder’s Affidavit” had to be submitted by Residential Creations with each

draw request. This form specified that

[t]he undersigned, being first duly sworn on oath, deposes and
says that he is Residential Creations LLC, the Builder for the
work on the [Millers’ home], that the following are the names
of all parties who have furnished material or labor, or both, to
the undersigned for said work and of all parties having
contracts or subcontracts with the undersigned for specific
portions of said work or for materials entering into the
construction thereof and the amount due or to become due to
each, and that the items mentioned include all labor and
material required to complete said work according to plans and
specifications[.]

Space was then provided for the builder to list the names of sub-contractors, the kind of

work performed, the amount of the contract, the amount paid to date, and the balance due

or to become due. However, instead of providing this information, the forms submitted to

WesBanco by Residential Creations used this area to identify the benchmark that had been

achieved as identified in the draw schedule set out in the construction contract. For

example, the builder’s affidavit for the second benchmark on the draw schedule simply

stated in this space:

FOUNDATION DRAW
AS PER DRAW SCHEDULE
SET FORTH IN CONSTRUCTION CONTRACT

Third, prior to each disbursement of construction loan funds, the Millers were required to

sign a “Draw Funds Disbursement Authorization” form, which included the following

acknowledgement: “The Borrower further states that Borrower has inspected, is satisfied

8
and accepts such completed work and will, in no way, hold Lender responsible for any

consequences which may arise as a result of this release.” Finally, WesBanco obtained a

construction progress inspection report establishing the percentage of construction

progress that had been accomplished.

The first two draw requests initiated by Residential Creations, which were

made together and totaled $190,000.00, occurred in November 2015 and prompted an

email exchange between Mrs. Miller and WesBanco. Mrs. Miller first sent an email on

November 10, 2015, which was addressed to Michelle Hamilton and to WesBanco’s

Residential Construction Lending department, that stated:

Ladies, we have a problem, Derrick Pritt [Residential
Creations] sent to us this morning two draw requests, one for
the foundation $130,000.00 and one for the pre-fab $60,000.00
for our construction loan. No where [sic] near has all of this
work been completed and Michelle, you told us several times
that with the exception of his initial $70,000.00 draw made at
closing, no funds would be dispersed until work was
completed. Derrick Pritt says that his draw schedule- which
Brad and I have never seen to our recollection- states that the
disbursement will be made for work that is completed AND IN
PROGRESS.

The draw request forms you all sent to us say nothing about
work in progress, only for work completed. The loan
documents we signed and have copies of state for work
completed. So, where does the notion come that we are ready
to release $190,000.00 plus the $70,000.00 draw at closing for
what little has been done so far? Derrick stated that he verified
with Michelle today that their draw schedule was going to be
followed, the same agreement he says states for work in
progress. If he were to quit the project tomorrow, we have very
little to show for our $260,000.00 investment.

9
 This needs resolved ASAP because we do not want to hold up
his receiving of necessary funds but this is not going to work.
Please advise.

Thereafter, on November 12, 2015, Mrs. Miller 7 sent another email addressed to Ms.

Hamilton and the Residential Construction Lending department, which stated that,

Brad and I have spoken at length with Derrick Pritt Wednesday
afternoon. He better explained to us how the draw schedules
are structured and how, for example, the foundation draw has
the construction of the foundation as a bench mark but actually
includes costing for a lot of other supplies, etc.; Those other
items just don’t show in our document that has a single line
that states “Foundation . . . . . . $130,000.00.”

Brad and I feel a lot more comfortable with the situation now
and are prepared to sign the disbursement release documents
but wanted to be sure everything is good on your end before
we do so as this seems contrary to what was explained to us by
WesBanco. It is my understanding that Derrick spoke with
Michelle earlier this week and confirmed that the draw
schedule was fine with you all but we would appreciate if you
could confirm this before we send off the signed documents.

(Emphasis added). Also, on November 12, 2015, Ms. Hamilton responded with an email

to Mrs. Miller, which related that Ms. Hamilton

replied to Derrick’s email that the draw schedule was approved
by our residential lending department as it was presented to us
in the contract but have not spoken to him directly.

I apologize on all the confusion but I did explain to you that we
do not fund for work that has not been completed. That is why
we require a draw schedule to be presented to us and approved
with the construction loan. When disbursing funds we follow
the approved draw schedule sent to us. Before we release funds

7
The sender’s name on this email is “Jamie L. Brewer”; however, during her
trial testimony, Mrs. Miller stated that she sent this email and that Brewer is her maiden
name.

10
 we have the appraiser go to the property to verify that the
specific work relating to the draw schedule has been
completed. We do not require the builder to supply us specifics
as to what is included within each draw. As an example, we
will release the funds for the foundation when the appraiser
verifies the foundation is complete, as that is what is listed for
the first draw.

Finally, a short while later that same day, Ms. Hamilton sent an email to Mrs. Miller that

stated the following:

I wanted to attach copies of the draw schedule that you actually
sent to me. It was part of the contract between you and the
builder. This is the draw schedule that was approved by us and
all that we have received from the builder. This is also what
Derrick referenced in his email to me that I advised was
approved by our residential construction lending department.

I also wanted to include a copy of the Builder/Borrower
Expectation[s] form signed by you and the builder which
explains our policy on draws and how everything was
explained to you at application time so hopefully this will
eliminate anymore [sic] confusion as to how we expect the
process to flow.

The Millers then executed two “Draw Funds Disbursement Authorization” forms on

November 12, 2015, for Residential Creations’ draw requests totaling $190,000. One form

was for the amount of $130,000, and a second form was for the amount of $60,000.

Thereafter, construction of the home continued, and additional draws were requested by

Residential Creations and paid by WesBanco. Then, around May 2016, Mrs. Miller learned

that Residential Creations had ceased construction on the Miller home, filed bankruptcy

proceedings, and had failed to pay for more than $117,000 in materials used in the Miller

home. The $117,000 in unpaid materials ultimately resulted in the filing of a mechanic’s

11
lien against the Millers’ house and property and a lawsuit against the Millers by the

company that had provided the materials, O.C. Cluss Lumber Company. 8 At this point,

WesBanco had disbursed approximately $442,000 of the loan proceeds to Residential

Creations, 9 which was approximately eighty percent of the Millers’ $555,000 construction

loan, yet a “Construction Progress Inspection Report” dated March 26, 2016, indicates that

the Miller house was only fifty-three percent complete as of the last inspection.

As a consequence, the Millers had to fund the completion of their house on

their own and had to choose lesser quality materials than they had contracted for with

Residential Creations due to the resulting strain on their finances. According to Mrs.

Miller’s testimony, the Millers paid $125,000 of their own funds and borrowed an

additional amount of $162,000 from family members, for a total of $287,000 10 spent to

complete their home.

The O.C. Cluss litigation against the Millers remains pending in the Circuit
8

Court of Marion County.
9
Mrs. Miller acknowledged in her testimony that approximately $112,000 in
loan funds had not been disbursed (WesBanco states that the undisbursed amount is
$113,000). The loan apparently was frozen by WesBanco after Residential Creations
ceased construction and no further disbursements were made.
10
WesBanco refers to the Millers’ expenditures as $287,500, and, in some
parts of their argument, the Millers use the figure of $287,500 as well.

12
 On April 20, 2017, the Millers filed suit against WesBanco alleging the

following four counts: Count I, breach of contract; Count II, negligence; Count III, gross

negligence in the performance of duties in a special relationship; and Count IV, violation

of a trust relationship. WesBanco filed two separate motions seeking to dismiss Counts I,

II, and III of the Millers’ complaint. Following a hearing on the motions, and by order

entered on March 13, 2018, the circuit court granted WesBanco’s first motion to dismiss

as to the Millers’ tort claims asserted in Counts II and III of their complaint. In the same

order, the circuit court found that WesBanco’s second motion to dismiss was converted to

a motion for summary judgment because WesBanco asked the court to consider documents

outside the pleadings. The circuit court found tension between documents relied on by

WesBanco 11 and the Construction Loan Agreement. Having found that this tension

resulted in genuine issues of material fact, the circuit court denied summary judgment.

11
WesBanco relied upon a release that was contained in the “Draw Funds
Disbursement Authorization” signed by the Millers in connection with each draw request.
The circuit court’s order indicated that the release language was contained in the
Expectations form. However, WesBanco’s second motion to dismiss, while referring to
the Expectations form, notes that the release language is in the “Draw Funds Disbursement
Authorization” form:

In paragraph 10 of the Complaint, Plaintiffs reference a
document entitled WesBanco Bank, Inc. Mortgage Loan
Department Expectations: Borrower/Builder. This document
requires that Plaintiffs sign an Authorization to Draw Funds.
The Draw Funds Disbursement Authorization forms that were
signed by Plaintiffs include [release language].

(Footnote omitted).

13
 In February 2019, WesBanco filed a motion for summary judgment. In

denying the motion, the circuit court explained:

In its March 13, 2018 Order on WesBanco’s Motion to
Dismiss, the Court observed that there existed “tension
between the release on which WesBanco relies and its
contractual obligations under the original construction loan
agreement.” The Court agrees with the plaintiffs that that same
sort of tension also exists with the “Expectations” form, and
that there remain questions of fact which preclude the granting
of WesBanco’s Motion for Summary Judgment.

2. WesBanco maintains that the “if deemed
necessary” language in paragraph 4.B.(i) of the loan agreement
renders WesBanco’s obligations thereunder discretionary.
Given the facts of this case, a jury could conclude that
WesBanco abused its discretion in its obligation to assure that
“sufficient construction has occurred to support the amount of
draw requested.” The Court also agrees with the Plaintiffs that
the language in paragraph 4.C.(ii) of the loan agreement is
ambiguous and contradictory.

3. The Court finds that under West Virginia law
there is an implied “covenant of good faith and fair dealing in
every contract for purposes of evaluating a party’s
performance of that contract.” Evans v. United Bank, Inc., 235
W. Va. 619, 628, 775 S.E.2d 500, 509 (2015) . . . .

4. With respect to the “Expectations” form, which
states that “funds will not be disbursed for work not
completed,” the November 2015 exchange of e-mails between
Ms. Miller and Michelle Hamilton reveals that both the Millers
and WesBanco acknowledged the vitality [sic] of the
[“E]xpectations[”] form, even post-contract. Having
acknowledged that its obligations under the “Expectations”
form existed in November of 2015, the finder of fact could
conclude that the parties, by their conduct, adopted that
“Expectations” form as a term of the loan agreement.

5. If the jury resolves the questions of fact
identified above in favor of the plaintiffs, then, contrary to

14
 WesBanco’s argument, the rights which the plaintiffs assert
would not be inconsistent with the terms of the contract[,] and
the good faith and fair dealing obligation could fairly be
imposed upon the defendant.

Thereafter, WesBanco filed two motions in limine: one seeking to preclude

the Millers from offering parol evidence to vary the parties’ allegedly unambiguous

agreement expressed in the Construction Loan Agreement and Loan Addendum, and the

second seeking to prevent the Millers from “offering argument or evidence that the

[C]onstruction [L]oan [A]greement between the Millers and WesBanco consists of

anything other than the October 22, 2015, Construction Loan Agreement and Loan

Addendum.” The circuit court addressed the motions on the record on the first day of trial

and denied them both.

The trial proceeded with the Millers’ themselves offering testimony, along

with testimony from other witnesses, including Ms. Hamilton and Cathi McClelland, a vice

president and manager of WesBanco’s Residential Construction Lending Department. The

circuit court allowed the witnesses to be questioned about the Construction Loan

Agreement, the Expectations form, several forms required in connection with draw

requests, and the various discussions and emails that were exchanged between Mrs. Miller

and WesBanco in relation to the initial draw request by Residential Creations. Rather than

call its own witnesses, WesBanco presented its case through extensive cross examination

of Ms. McClelland. At the close of the evidence, WesBanco moved for judgment as a

15
matter of law pursuant to Rule 50(a) of the West Virginia Rules of Civil Procedure, which

was denied by the circuit court. Following its deliberations, the jury returned a verdict in

favor of the Millers and awarded them $404,500 in damages.

The Millers then submitted a proposed judgment order that granted them

prejudgment interest in the amount of $89,664.04. WesBanco objected to the Millers’

proposed judgment order and argued that, because the Millers had failed to demand a jury

instruction on prejudgment interest, they had waived the right to such an award. The circuit

court agreed and entered a judgment order on September 6, 2019, that did not include any

award of prejudgment interest. The Millers subsequently filed a motion to alter or amend

judgment under West Virginia Rule of Civil Procedure 59(e), and WesBanco filed a

“Renewed Motion for Judgment as a Matter of Law, or in the Alternative, for a New Trial

or Remittitur,” pursuant to West Virginia Rules of Civil Procedure 50(b) and 59(a). By

order entered on December 18, 2019, the circuit court denied the motions. Separate appeals

by the Millers and WesBanco followed, which were consolidated for purposes of our

review. We first will address the Millers’ appeal, including a discussion of the appropriate

standard for our review of the same. We then will resolve WesBanco’s appeal, likewise

setting out the standard of review applicable to the issues raised in connection with our

discussion of that appeal.

16
 II.

NO. 20-0041
MILLER v. WESBANCO BANK, INC.

The Millers assert a single assignment of error in which they argue that the

trial court erred and applied an incorrect statute in failing to award them prejudgment

interest.

A. Standard of Review

The Millers appeal the circuit court’s denial of their motion to alter or amend

judgment.

The standard of review applicable to an appeal from a
motion to alter or amend a judgment, made pursuant to W. Va.
R. Civ. P. 59(e), is the same standard that would apply to the
underlying judgment upon which the motion is based and from
which the appeal to this Court is filed.

Syl. pt. 1, Wickland v. Am. Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657 (1998).

The issue raised by the Millers is a question of law involving the interpretation of statutes.

“Where the issue on an appeal from the circuit court is clearly a question of law or

involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1,

Crystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). See also State Farm

Mut. Auto. Ins. Co. v. Rutherford, 229 W. Va. 73, 76, 726 S.E.2d 41, 44 (2011) (finding

that “the proper way to determine the amount of prejudgment interest on a judgment or

decree . . . is a question of law”). Accordingly, we give plenary consideration to the issue

raised by the Millers.

17
 B. Discussion

In their post-trial motion to alter or amend judgment, the Millers argued that

the circuit court had the authority to award them prejudgment interest pursuant to West

Virginia Code section 56-6-31(b) (eff. 2018). The circuit court denied the motion and

opined that

West Virginia Code § 56-6-27 provides the plaintiffs with the
exclusive means by which, in this contract case, they are
permitted to obtain an award of pre-judgment interest on the
jury’s verdict. By not complying with the requirements of that
statute and submitting the issue to the trial jury for its
consideration, plaintiffs waived their right to pre-judgment
interest on the jury’s verdict.

The Millers contend that the circuit court improperly applied outdated case

law to conclude that West Virginia Code section 56-6-31(b) does not apply to prejudgment

interest in contract actions. WesBanco argues that the circuit court properly applied West

Virginia Code section 56-6-27 (eff. 1923), which is the exclusive source for an award of

prejudgment interest in breach-of-contract cases. As we explain below, we find the circuit

court correctly found that section 56-6-27 provides the exclusive method by which a party

may seek prejudgment interest in an action founded on contract.

Because this issue requires us to consider two conflicting statutes to

determine which properly governs the request for prejudgment interest in this case, we are

mindful that, “[t]he primary object in construing a statute is to ascertain and give effect to

the intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159

18
W. Va. 108, 219 S.E.2d 361 (1975). Thus, where the legislative intent is plainly expressed,

we are bound to apply rather than interpret the statute in question. “A statutory provision

[that] is clear and unambiguous and plainly expresses the legislative intent will not be

interpreted by the courts but will be given full force and effect.” Syl. pt. 2, State v. Epperly,

135 W. Va. 877, 65 S.E.2d 488 (1951). On the other hand, “[a] statute that is ambiguous

must be construed before it can be applied.” Syl. pt. 1, Farley v. Buckalew, 186 W. Va.

693, 414 S.E.2d 454 (1992). Guided by these tenets, we consider which statute governs a

request for prejudgment interest in a breach-of-contract claim: West Virginia Code section

56-6-31(b) or West Virginia Code section 56-6-27.

West Virginia Code section 56-6-31(b) provides in relevant part as follows:

Prejudgment – In any judgment or decree that contains
special damages, as defined below, or for liquidated damages,
the court may award prejudgment interest on all or some of the
amount of the special or liquidated damages, as calculated after
the amount of any settlements. Any such amounts of special
or liquidated damages shall bear simple, not compounding,
interest. Special damages include lost wages and income,
medical expenses, damages to tangible personal property and
similar out-of-pocket expenditures, as determined by the court.
If an obligation is based upon a written agreement, the
obligation bears prejudgment interest at the rate and terms set
forth in the written agreement until the date the judgment or
decree is entered and, after that, the judgment interest is the
same rate as provided for below in subsection (c) of this
section.

(Emphasis added). On its face, this provision would seem to apply to the prejudgment

interest sought by the Millers, and would place the decision of whether to award such

19
interest squarely within the discretion of the presiding court. However, we may not limit

our analysis to considering this single provision in isolation. “Statutes which relate to the

same persons or things, or to the same class of persons or things, or statutes which have a

common purpose will be regarded in pari materia to assure recognition and

implementation of the legislative intent.” Syl. pt. 5, in part, Fruehauf Corp. v. Huntington

Moving & Storage Co., 159 W. Va. 14, 217 S.E.2d 907 (1975). Article 6 of Chapter 56 of

the West Virginia Code contains another provision related to interest that adds clarity to

our search for legislative intent as it relates to the instant dispute. This provision addresses

the question of interest in a jury trial founded on contract, and provides that

[t]he jury, in any action founded on contract, may allow
interest on the principal due, or any part thereof, and in all cases
they shall find the aggregate of principal and interest due at the
time of the trial, after allowing all proper credits, payments and
sets-off; and judgment shall be entered for such aggregate with
interest from the date of the verdict.

W. Va. Code § 56-6-27 (emphasis added). Notably, the plain language of this provision

places the question of whether to allow prejudgment interest in an action founded on

contract with the jury. Furthermore, this Court previously has acknowledged that “West

Virginia Code § 56-6-27 . . . is the general authority for awarding prejudgment interest in

a contract action.” CMC Enter., Inc. v. Ken Lowe Mgmt. Co., 206 W. Va. 414, 418, 525

S.E.2d 295, 299 (1999) (per curiam). See also First Nat’l Bank of Bluefield v. Clark, 191

W. Va. 623, 625, 447 S.E.2d 558, 560 (1994) (per curiam) (“General authority for

awarding prejudgment interest in a contract action in West Virginia is contained in W. Va.

Code § 56-6-27.”).

20
 Thus, we are presented with two conflicting statutory provisions that could

potentially apply to awarding prejudgment interest in an action sounding in contract, one

that clearly places the decision with the court, and one that unmistakably places the

question with the jury. Our task is to determine which one the Legislature intends to apply.

Prior to a 2006 amendment of West Virginia Code section 56-6-31, this Court

addressed this very issue. The earlier version of section 56-6-31 provided as follows:

Except where it is otherwise provided by law, every
judgment or decree for the payment of money entered by any
court of this State shall bear interest from the date thereof,
whether it be so stated in the judgment or decree or not:
Provided, that if the judgment or decree, or any part thereof, is
for special damages, as defined below, or for liquidated
damages, the amount of such special or liquidated damages
shall bear interest from the date the right to bring the same shall
have accrued, as determined by the court. Special damages
includes lost wages and income, medical expenses, damages to
tangible personal property, and similar out-of-pocket
expenditures, as determined by the court. The rate of interest
shall be ten dollars upon one hundred dollars per annum, and
proportionately for a greater or lesser sum, or for a longer or
shorter time, notwithstanding any other provisions of law.

W. Va. Code § 56-6-31 (eff. 1981). Reconciling the forgoing provision with section 56-6-

27, this Court held,

[i]n an action founded on contract, a claimant is entitled
to have the jury instructed that interest may be allowed on the
principal due, W. Va. Code, 56-6-27 [1923], but is not entitled
to the mandatory award of interest contemplated by W. Va.
Code, 56-6-31 [1981], since this statute does not apply where
the rule concerning interest is otherwise provided by law.

21
Syl. pt. 4, Thompson v. Stuckey, 171 W. Va. 483, 300 S.E.2d 295 (1983). The question

before the Stuckey Court also pertained to prejudgment interest, and the Court concluded

that “[s]ince this action was ‘founded on contract,’ we consider Code, 56-6-27 [1923] to

apply to the matter of prejudgment interest, and not Code, 56-6-31 [1981], which by its

own terms only applies where the rule concerning interest is not otherwise provided by

law.” Id. at 488, 300 S.E.2d at 300.

In 2006, section 56-6-31 was amended. The amendment added language

referring to actions in contract and also retained the qualification “[e]xcept where it is

otherwise provided by law.” W. Va. Code § 56-6-31 (eff. 2006). Under the relevant

portion of the 2006 version,

[e]xcept where it is otherwise provided by law, every
judgment or decree for the payment of money, whether in an
action sounding in tort, contract or otherwise, entered by any
court of this State shall bear interest from the date thereof,
whether it be so stated in the judgment or decree or not . . . .

W. Va. Code § 56-6-31(a). Following this amendment, this Court continued to apply

Stuckey, and continued to find section 56-6-27 was the governing statute addressing

prejudgment interest in breach-of-contract cases:

When this Court decided Stuckey, West Virginia Code
§ 56-6-31 did not include the language “whether in an action
sounding in tort, contract or otherwise.” This language was
added when the statute was amended in 2006. Despite the
insertion of this language, the phrase “[e]xcept where it is
otherwise provided by law” was retained. Accordingly, we do
not find that this statutory amendment provides any basis to
revisit our holding in Stuckey.

22
Ringer v. John, 230 W. Va. 687, 691 n.6, 742 S.E.2d 103, 107 n.6 (2013) (per curiam)

(concluding that circuit court erred by awarding prejudgment interest pursuant to West

Virginia Code section 56-6-31 instead of allowing jury to make determination under West

Virginia Code section 56-6-27).

Most recently, in 2017, section 56-6-31 was again amended, with the

amendment taking effect on January 1, 2018. The exclusionary phrase “except where it is

otherwise provided by law” was again retained, though placed in a separate paragraph from

the provision related to prejudgment interest:

(a) Except where it is otherwise provided by law, every
judgment or decree for the payment of money, whether in an
action sounding in tort, contract, or otherwise, entered by any
court of this state shall bear simple, not compounding, interest,
whether it is stated in the judgment decree or not.

(b) Prejudgment – In any judgment or decree that
contains special damages, as defined below, or for liquidated
damages, the court may award prejudgment interest on all or
some of the amount of the special or liquidated damages, as
calculated after the amount of any settlements. Any such
amounts of special or liquidated damages shall bear simple, not
compounding, interest. . . .

W. Va. Code § 56-6-31 (eff. 2018). Under this latest iteration, it is apparent that the

“[e]xcept where it is otherwise provided by law” limitation applies specifically to the

provision clarifying that judgments will, in general, bear simple interest. W. Va. Code

§ 56-6-31(a). Paragraph (b), which relates to prejudgment interest, does not contain the

restrictive language. Notably, however, it also fails to contain any language expressly

23
stating that it applies to actions founded in contract. Thus, we remain faced with conflicting

statutes that ostensibly apply to the same subject. One is a general prejudgment interest

statute, section 56-6-31(b), that applies to “any judgment or decree.” The other is a more

particular statute, section 56-6-27, that applies “in any action founded on contract.” In

these circumstances, the specific statute governs. “The general rule of statutory

construction requires that a specific statute be given precedence over a general statute

relating to the same subject matter where the two cannot be reconciled.” Syl. pt. 1, UMWA

by Trumka v. Kingdon, 174 W. Va. 330, 325 S.E.2d 120 (1984). Here, West Virginia Code

section 56-6-27 is the more specific statute in that it expressly applies to “any action

founded on contract.” W. Va. Code § 56-6-27. See, e.g., Tri-State Petroleum Corp. v.

Coyne, 240 W. Va. 542, 566 n.87, 814 S.E.2d 205, 229 n.87 (2018) (addressing

prejudgment interest in tort action, but nevertheless acknowledging that “West Virginia

Code § 56-6-27 . . . controls awards of prejudgment interest in cases founded in contract”).

We are further persuaded that the Legislature intends section 56-6-27 to

govern prejudgment interest in actions founded on contract by the fact that, despite this

Court’s prior holdings that section 56-6-27 provides the method of obtaining prejudgment

interest in contract actions, i.e. by requesting the same from the jury, the Legislature never

repealed section 56-6-27 when it amended section 56-6-31. Cf. Syl. pt. 5, Pullano v. City

of Bluefield, 176 W. Va. 198, 342 S.E.2d 164 (1986) (“‘The Legislature, when it enacts

legislation, is presumed to know its prior enactments.’ Syllabus Point 12, Vest v. Cobb,

24
138 W. Va. 660, 76 S.E.2d 885 (1953).”); In re Grandparent Visitation of Cathy L.(R.)M.

v. Mark Brent R., 217 W. Va. 319, 325, 617 S.E.2d 866, 872 (2005) (per curiam) (“‘[I]t is

a recognized principle that where a statute has been interpreted by the courts, the continued

use of the same language by the Legislature subsequent to the judicial interpretation is

indicative that the legislative intent has been correctly ascertained[.] . . .’” (quoting

Knight-Ridder Broadcasting, Inc. v. Greenberg, 511 N.E.2d 1116, 1119 (1987))

(additional citations omitted)).

Based upon the foregoing analysis, we now hold that 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. Because the Millers failed to submit the

question of prejudgment interest to the jury, the circuit court did not err in denying their

Rule 59(e) motion to alter or amend.12

12
Although we conclude that the circuit court did not err in denying the
Millers’ Rule 59(e) motion due to their failure to submit the question of prejudgment
interest to the jury during the trial underlying this appeal, insofar as we are remanding this
matter for a new trial on damages, the Millers will have another opportunity to comply
with West Virginia Code section 56-6-27.

25
 III.

NO. 20-0042
WESBANCO BANK, INC. v. MILLER

WesBanco raises four assignments of error. WesBanco first assigns error to

the circuit court’s admission of parol evidence in relation to the Construction Loan

Agreement rather than relying on the plain language used therein. WesBanco next claims

that the circuit court improperly allowed the Millers to rely on the duty of good faith and

fair dealing to modify WesBanco’s contractual obligations. 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. Finally, WesBanco argues that the jury’s damages

award of $404,500 was against the clear weight of the evidence. After setting out the

proper standard for our review of these issues, we will address each one in turn.

A. Standard of Review

WesBanco appeals from the circuit court’s order denying its “Renewed

Motion for Judgment as a Matter of Law, or in the Alternative, for a New Trial or

Remittitur,” which it sought pursuant to West Virginia Rules of Civil Procedure 50(b) and

59(a). “The appellate standard of review for an order granting or denying a renewed motion

for a judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia

Rules of Civil Procedure [1998] is de novo.” Syl. pt. 1, Fredeking v. Tyler, 224 W. Va. 1,

680 S.E.2d 16 (2009). Moreover,

26
 [w]hen this Court reviews a trial court’s order granting
or denying a renewed motion for judgment as a matter of law
after trial under Rule 50(b) of the West Virginia Rules of Civil
Procedure [1998], it is not the task of this Court to review the
facts to determine how it would have ruled on the evidence
presented. Instead, its task is to determine whether the
evidence was such that a reasonable trier of fact might have
reached the decision below. Thus, when considering a ruling
on a renewed motion for judgment as a matter of law after trial,
the evidence must be viewed in the light most favorable to the
nonmoving party.

Syl. pt. 2, Fredeking, id. We have further explained that

[i]n determining whether there is sufficient evidence to
support a jury verdict the court should: (1) consider the
evidence most favorable to the prevailing party; (2) assume
that all conflicts in the evidence were resolved by the jury in
favor of the prevailing party; (3) assume as proved all facts
which the prevailing party’s evidence tends to prove; and (4)
give to the prevailing party the benefit of all favorable
inferences which reasonably may be drawn from the facts
proved.

Syl. pt. 5, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983).

We review the circuit court’s denial of WesBanco’s motion for a new trial

under an abuse of discretion standard.

[I]t is well-established that “‘[a]lthough the ruling of a trial
court in granting or denying a motion for a new trial is entitled
to great respect and weight, the trial court’s ruling will be
reversed on appeal when it is clear that the trial court has acted
under some misapprehension of the law or the evidence.’
Syllabus point 4, Sanders v. Georgia-Pacific Corp., 159
W. Va. 621, 225 S.E.2d 218 (1976).” Syllabus Point 3,
Carpenter v. Luke, 225 W. Va. 35, 689 S.E.2d 247 (2009). In
other words, our standard of review for a trial court’s decision
regarding a motion for a new trial is abuse of discretion.

27
 Marsch v. American Elec. Power Co., 207 W. Va. 174, 180,
530 S.E.2d 173, 179 (1999).

MacDonald v. City Hosp., Inc., 227 W. Va. 707, 715, 715 S.E.2d 405, 413 (2011). See

also Lunsford v. Shy, 243 W. Va. 175, ___, 842 S.E.2d 728, 734 (2020) (“[A]s a general

proposition, we review a circuit court’s rulings on a motion for a new trial under an abuse

of discretion standard.” (quoting Tennant v. Marion Health Care Found., Inc., 194 W. Va.

97, 104, 459 S.E.2d 374, 381 (1995)). We will apply these standards in considering the

issues raised by WesBanco, our discussion of which follows.

B. Discussion

1. Parol Evidence. Prior to trial, WesBanco submitted two motions in

limine asking the court to define the parties’ contract as the Construction Loan Agreement

and to exclude evidence that would supplement, amend, or contradict that agreement. The

circuit court denied these motions based, in part, upon an ambiguity in paragraph 4C of the

contract, which pertained to lien waivers, 13 and also based upon conflict among various

documents that were part of the transaction between the Millers and WesBanco:

13
The referred to provisions of paragraph 4(C) provide as follows:

C.) After depletion of the Borrower’s portion of the
contract price specified above towards the construction of the
proposed improvements, Lender shall, upon application of the
Borrower make periodic disbursements to the Borrower for
payment for work actually performed, materials delivered, or
materials for the delivery of which the [B]orrower has entered
into an agreement, provided:

28
 The Court [is] of the opinion and has previously opined that
language of the loan agreement, particularly paragraph 4-C-[ii]
is ambiguous and contradictory. There exists an implied
covenant of good faith and fair dealing. That a tension exists
between the release,[14] the expectations form, and the
construction loan agreement, and that the jury can conclude
that the parties by their conduct adopted the expectations form
as a term of the contract.

In its first assignment of error, WesBanco argues that the circuit court erred

by allowing the jury to hear parol evidence that varied and contradicted the parties’

Construction Loan Agreement. 15 WesBanco complains that the circuit court relied on an

(i) That the initial request for disbursement of the
proceeds of the loan shall be accompanied by the executed
waiver of lien forms signed by all contractors, subcontractors,
and materialmen who furnished labor or materials to the site
prior to the initial advance;

(ii) That all subsequent disbursements shall have
been approved by the Construction Loan Department, to the
effect that the improvements are being completed in
accordance with the predetermined schedule for utilization of
the contract price and shall be accompanied by the executed
waiver of lien forms signed by all contractors, subcontractors,
and materialmen who furnished labor or materials to the site
prior to the initial advance[.]
14
As we noted previously, this “release” is contained in the “Draw Funds
Disbursement Authorization” signed by the Millers in connection with each draw request.
See supra note 11.
15
WesBanco contends that an unambiguous written contract is fully
integrated. To support this argument, WesBanco quotes Syllabus point 2 of Kanawha
Banking & Trust Co. v. Gilbert, 131 W. Va. 88, 46 S.E.2d 225 (1947), which provides:

29
erroneous finding of ambiguity in paragraph 4(C)(ii) of the Construction Loan Agreement

to improperly allow Michelle Hamilton, the former WesBanco loan originator who guided

the Millers through the process of submitting their construction loan application to

WesBanco, to testify about her pre-loan discussions with the Millers regarding lien

waivers. WesBanco further contends that the lower court erred by relying on this perceived

ambiguity to allow evidence of an email exchange between Ms. Hamilton and the Millers

that occurred after closing on the Construction Loan Agreement and that included an

attached copy of the Expectations form. 16 WesBanco then complains that, based upon the

circuit court’s erroneous findings of ambiguity, Mrs. Miller was improperly permitted to

testify that there were multiple documents included in the Millers’ loan contract with

An unambiguous written contract entered into as the
result of verbal or written negotiations will, in the absence of
fraud or mistake, be conclusively presumed to contain the final
agreement of the parties to it, and such contract may not be
varied, contradicted or explained by extrinsic evidence of
conversations had or statements made contemporaneously with
or prior to its execution.

(Emphasis added). The presumption that a written contract contains a final agreement that
may not be explained by extrinsic evidence does not appear to apply in this instance.
WesBanco points to nothing in the record to show that the Construction Loan Agreement
between the Millers and WesBanco was the product of verbal or written negotiations.
16
This email exchange was initiated by the Millers’ inquiry about draw
payments.

30
WesBanco, and that the document titled “Construction Loan Agreement” was just one of

them. 17

The Millers contend that separate written instruments in a given transaction

will typically be construed together. Thus, the parties’ contract here consisted of more than

only the Construction Loan Agreement. They contend that the various documents that

were part of their transaction with WesBanco are properly considered part of the contract.

We agree with the Millers that their contract with WesBanco was not limited to only the

Construction Loan Agreement.

This Court has adopted the single transaction rule, holding that

“‘[s]eparate 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).

17
WesBanco additionally appears to argue that the circuit court erred in
allowing evidence related to mechanic’s liens; however, that evidence is mentioned only
in passing and without analysis. Therefore, we focus our discussion on the lien waiver
provisions of the parties’ agreement and deem WesBanco’s other complaints inadequately
briefed. See Tiernan v. Charleston Area Med. Ctr., Inc., 203 W. Va. 135, 140 n.10, 506
S.E.2d 578, 583 n.10 (1998) (“Issues not raised on appeal or merely mentioned in passing
are deemed waived.” (citation omitted)).

31
Syl. pt. 3, TD Auto Fin. LLC v. Reynolds, 243 W. Va. 230, 842 S.E.2d 783 (2020).

WesBanco contends that this holding is not applicable to the circumstances herein

presented because the documents do not share the same parties and subject matter, and they

were not executed contemporaneously. We disagree. When this Court recently applied

the foregoing holding in TD Auto, we concluded that the separate instruments at issue in

that case were not part of a single transaction and, therefore, could not be construed

together. However, the instant matter is easily distinguishable from the circumstances

presented in TD Auto.

TD Auto pertained to the purchase of a vehicle. The issue before the Court

was whether an arbitration provision agreed to in a credit application executed by the

buyers survived a merger clause 18 contained in a subsequently executed Retail Installment

Sales Contract (“RISC”). The merger clause stated that the RISC constituted the “‘entire

18
With respect to merger clauses,

[t]his Court has explained that “[a] ‘merger clause’ is ‘[a]
provision in a contract to the effect that the written terms may
not be varied by prior or oral agreements because all such
agreements have been merged into the written document.’”
Frederick Bus. Properties Co. v. Peoples Drug Stores, Inc.,
191 W. Va. 235, 240 n.2, 445 S.E.2d 176, 181 n.2 (1994)
(quoting Black’s Law Dictionary 989 (6th ed. 1990)).

TD Auto Fin. LLC v. Reynolds, 243 W. Va. 230, 234-35, 842 S.E.2d 783, 787-88 (2020).

32
agreement’” between the buyers and the dealer, Crossroads Chevrolet (“Dealer” or

“Crossroads”). TD Auto, 243 W. Va. at 234, 842 S.E.2d at 787.

The TD Auto Court concluded that the arbitration provision did not survive

the merger clause. The Court’s decision was based on two factors: first, the credit

application, which contained the arbitration clause, was signed before, rather than

contemporaneously with, the RISC; 19 second, the subject matter of the credit application

was distinct from the purchasing documents. Id. at 237, 842 S.E.2d at 790. Focusing

primarily on the different purposes of the credit application and the RISC, the Court

explained that

[t]he credit application is merely an authorization to investigate
respondents’ credit score and employment information and
present that information to various finance companies to
determine which company may wish to extend financing to
them. The credit application is not part of the purchase
transaction documentation and governs an entirely different
subject matter—the credit investigation and approval process.
There is nothing about a simple credit application which
ostensibly purports to govern any of the terms of the ultimate
vehicle purchase or financing.

Id. The Court explained further that,

while the credit application may have been a common
precursor to a vehicle purchase governed by a RISC, the
completely different subject matter of the two documents and
lack of contemporaneous execution—which also demonstrates
their distinct purposes—are insufficient to view them as part of
a single transaction. Therefore, the RISC and its merger

19
The RISC also contained an assignment of the contract from Crossroads to
TD Auto.

33
 clause—stating that it represents the “entire agreement”
between the parties as pertains to the purchase of the vehicle—
must govern.

Id. at 238, 842 S.E.2d at 791. The instant matter differs significantly from the

circumstances presented in TD Auto.

First, there is no merger clause at issue in this case to indicate that WesBanco

and the Millers intended the Construction Loan Agreement to represent a merger of all

prior agreements executed in their construction loan transaction. In fact, the Construction

Loan Agreement, itself, references various other documents, providing a clear indication

that it was not intended to represent the entirety of the agreement between the Millers and

WesBanco. 20 Moreover, unlike the credit application in TD Auto, which addressed a

20
The Construction Loan Agreement states that,

[s]imultaneously with the execution and delivery of this
Agreement, the Borrower has executed and delivered to the
Lender, among other documents, 1.) a Note of even date in the
principal amount of $555,000.00 (including a Construction
Loan Addendum to the Note), 2.) and a Mortgage, Deed of
Trust or Security Deed (the “Security Instrument”) of even date
securing the Note and other indebtedness, 3.) an executed copy
of the building/construction contract, 4.) a complete set of the
plans and specifications for the proposed improvement, each
dated and initialed, respectively, by the Borrower and
Contractor, 5.) the breakdown of the contract price showing the
amount allocated to various sub-bids for masonry work and
material, carpentry work and material, plumbing work and
material, electrical work and material, and any other sub-bids,
and [sic] 6.) a draw schedule unless specifically set forth in the
building/construction contract, and 7.) any documents as set
forth in Section 1 below.

34
completely different subject matter from the purchase of the automobile, the Expectations

form at issue in this case is directly related to the Construction Loan Agreement in that it

expressly addresses how requests to draw funds under the Construction Loan Agreement

were to be made and how those funds would be disbursed by WesBanco. Importantly, the

first line of the Expectations form specifies that “[f]ailure to make the [B]orrower(s) and

their builder aware of this information may result in a delayed closing or first draw.” Thus,

this document had a direct impact on the Millers’ transaction with WesBanco, including

the potential to cause a delay in closing the loan or affecting the first draw of funds if it

was not properly executed. Indeed, former WesBanco employee Ms. Hamilton testified

that WesBanco would not have conducted the loan closing without the Millers and their

contractor first executing the Expectations form:

Q. Would the loan be allowed or able to proceed in
the absence of that document that you’re holding [the
Expectations form] being signed?

A. Not that I’m aware. It was required to be signed
before the construction loan.

Q. And you’ve never heard of a closing proceeding
without that document first being signed by the borrowers; is
that right?

A. That’s correct.

And, while WesBanco is not a signatory to the Expectations form, its title clearly displays

that it is WesBanco’s form:

35
 WesBanco Bank, Inc.
Mortgage Loan Department
Expectations Borrower/Builder

Likewise, Ms. Hamilton testified that it “was a WesBanco generated form required for all

construction loans.” Furthermore, WesBanco followed the requirements of the form in

connection with draw requests. WesBanco has asserted that it did not release any funds

without first receiving four documents: (1) a Builder’s lien waiver; (2) a Builder’s

Affidavit; (3) an Inspection Report; and (4) the Millers’ signed authorization. Notably, it

is the Expectations form, not the Construction Loan Agreement, that lists these four

documents and expressly states that “[a]ll draw requests will be supported by” them.

Therefore, unlike the credit application in TD Auto, the Expectations form was an integral

part of the transaction between WesBanco and the Millers.

The less significant factor considered in TD Auto was the fact that the

documents at issue in that case were not contemporaneously executed. However, even

though this Court has discussed the contemporaneous execution of documents when

analyzing the single transaction rule, there actually is no such requirement included in our

holding adopting that rule. See Syl. pt. 3, TD Auto, 243 W. Va. 230, 842 S.E.2d 783

(“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.” (additional quotations and citations omitted)).

Moreover, various courts have concluded that, in certain circumstances, the single

36
transaction rule applies even where documents were executed at different times and/or by

different parties. See, e.g., SBKC Serv. Corp. v. 1111 Prospect Partners, L.P., 153 F.3d

728, 1998 WL 436579, at *3 (10th Cir. 1998) (table decision) (“Where we have several

documents executed at different times, but in the course of the same transaction concerning

the same subject matter, we construe them together to determine the intent of the parties.”);

Barr v. Flagstar Bank, FSB, 303 F. Supp. 3d 400, 413 (D. Md. 2018) (“Under Maryland

law, if several documents are ‘part of a single transaction’ they ‘will all be read and

construed together as evidencing the intention of the parties in regard to the single

transaction.’ Ford [v. Antwerpen Motorcars Ltd., 117 A.3d 21, 27 (2015)] (quoting Rocks

v. Brosius, 241 Md. 612, 217 A.2d 531, 545 (1966)). ‘This is true even though the

instruments were executed at different times and do not in terms refer to each other.’ Id.

at 27 (quoting Rocks, 217 A.2d at 545).”); Nat’l Jockey Club v. Ganassi, No. 04 3743, 2009

WL 2177217, at *12 (N.D. Ill. July 21, 2009) (“The [parol evidence] rule . . . ‘does not bar

contemporaneous written documents’ or documents ‘executed at different times as parts of

the same transaction[.]’” (quoting IFC Credit Corp. v. Burton Indus., Inc., 536 F.3d 610,

614 (7th Cir. 2008))); In re Fairfield Sentry Ltd., No. 10-13164 (SMB), 2018 WL 3756343,

at *11 (Bankr. S.D.N.Y. Aug. 6, 2018) (“Documents executed at different times may still

be construed as a single contract if ‘the parties assented to all the promises as a whole, so

that there would have been no bargain whatever if any promise or set of promises had been

stricken.’” (quoting Commander Oil Corp. v. Advance Food Serv. Equip., 991 F.2d 49, 53

(2d Cir. 1993)) (additional citations omitted)); J.M. Montgomery Roofing Co. v. Fred

37
Howland, Inc., 98 So. 2d 484, 486 (Fla. 1957) (“While the situation does not fall strictly

within the rule that where an agreement is evidenced by two or more writings, the writings

must be construed together, it has been said that [t]his rule is not necessarily confined to

instruments executed at the same time by the same parties for the same purpose;

instruments entered into on different days, but concerning the same subject matter, may

under some circumstances be regarded as one contract and interpreted together.”

(quotations and citation omitted)); Lily, Inc. v. Silco, LLC, 997 N.E.2d 1055, 1068 (Ind. Ct.

App. 2013) (“Even if documents are executed at different times, they may still be construed

together as long as they relate to the same transaction.”); Hollenbeck v. Household Bank,

829 P.2d 903, 906 (Kan. 1992) (“Documents which are executed at different times, but in

the course of the same transaction concerning the same subject matter, will be construed

together to determine the intent of the parties to the contract.”); Hous. Mortg. Corp. v.

Allied Constr. Inc., 97 A.2d 802, 805 (Pa. 1953) (acknowledging the terms of an agreement

may be expressed in two or more separate documents and stating that “[t]his is true whether

the documents are all executed by a single party or by two or more parties, and whether

some of the documents are executed by parties who have no part in executing the others”

(emphasis omitted)); Baker v. Wilburn, 456 N.W.2d 304, 306 (S.D. 1990) (“Where several

writings are connected by internal references to each other, even if they were executed on

different dates and were not among all of the same parties, they will constitute a single

contract as long as they involve the same subject matter and prove to be parts of an entire

transaction.” (quotations and citation omitted)); Left Gate Prop. Holding, LLC v. Nelson,

38
No. 14-19-00247-CV, 2021 WL 1183863, at *4 (Tex. App. Mar. 30, 2021) (observing that

“‘instruments pertaining to the same transaction may be read together to ascertain the

parties’ intent, even if the parties executed the instruments at different times and the

instruments do not expressly refer to each other, and . . . a court may determine, as a

matter of law, that multiple documents comprise a written contract. In appropriate

instances, courts may construe all the documents as if they were part of a single, unified

instrument.’” (quoting Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831,

840 (Tex. 2000))).

Based upon the foregoing discussion, we conclude that, under the

circumstances presented in this case, the Expectations form was part and parcel of the

construction loan transaction between the Millers and WesBanco. Having so found, we

discern no error in the circuit court’s decision allowing Mrs. Miller to testify that “[t]here

are multiple parts to the agreement.” Furthermore, the circuit court did not err in allowing

parol evidence so that the jury could interpret the agreement as to lien waivers.

This Court has recognized the general rule that

“[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]).

39
Syl. pt. 1, Sally-Mike Props. v. Yokum, 175 W. Va. 296, 332 S.E.2d 597 (1985). However,

“[t]he 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.” Syl. pt. 3, Harrell v. Cain, 242 W. Va. 194, 832 S.E.2d 120 (2019).

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.

Syl. pt. 4, id. Here we find no error in the circuit court’s conclusion that the Construction

Loan Agreement was ambiguous. First, as the circuit court observed, paragraph 4(C)(ii)

appears to contain an error. Paragraph 4(C)(ii) requires that each draw request subsequent

to the initial draw request be accompanied by the submission of lien waivers only from

“contractors, subcontractors, and materialmen who furnished labor or materials to the site

prior to the initial advance.” However, the lien waivers described in paragraph 4(C)(ii) are

identical to the lien waivers described in paragraph 4(C)(i), which would already have been

submitted to WesBanco in connection with the initial request for disbursement. No

reasonable explanation for WesBanco’s need for duplicated lien waivers has been

provided. Furthermore, WesBanco claims that the Construction Loan Agreement requires

lien waivers on only two occasions: (1) in connection with the initial request for

disbursement under paragraph 4(C)(i), and (2) at the final advance of the loan pursuant to

40
paragraph 6. 21 These contractual provisions conflict with the Expectations form, under

which “[a]ll draw requests will be supported by the following documentation: . . . Properly

executed and notarized Lien Wavers must be presented by each sub contractor in addition

to the general contractor.” This Court previously has held that,

“where 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).

Syl. pt. 1, in part, Buckhannon Sales Co., Inc. v. Appalantic Corp., 175 W. Va. 742, 338

S.E.2d 222 (1985). Given the ambiguities in the construction agreement between the

Millers and WesBanco, the circuit court properly allowed parol evidence to clarify the

intent of the parties with respect to the lien waivers.

2. Good Faith and Fair Dealing. WesBanco next argues that the trial court

erred by allowing questions suggesting to the jury that it could apply the duty of good faith

and fair dealing to vary and contradict the Construction Loan Agreement. The Millers

contend that there was substantial evidence presented to the jury throughout trial that

21
Paragraph 6 of the Construction Loan Agreement pertains to the final
advance of the Loan, and sets out multiple conditions that must be met before such final
advance would be made, including that “the Lender has received the fully executed Waiver
of Liens from all subcontractors, suppliers and materialmen and the Builder’s Affidavit.”
As WesBanco points out, the Millers’ loan never reached the final advance due to
Residential Creations’ failure to complete the project.

41
WesBanco did not administer the Millers’ loan in conformity with their justified

expectations. We find no error.

This Court has recognized that

“[e]very contract imposes upon each party a duty of good faith
and fair dealing in its performance and its enforcement.”
Restatement (Second) of Contracts § 205 (1981). “Good faith”
means “honesty in fact and the observance of reasonable
commercial standards of fair dealing.” W. Va. Code § 46-1-
201(20). As the Restatement (Second) of Contracts § 205, cmt.
d, puts it:

Subterfuges and evasions violate the obligation
of good faith in performance even though the
actor believes his conduct to be justified. But the
obligation goes further: bad faith may be overt or
may consist of inaction, and fair dealing may
require more than honesty. A complete
catalogue of types of bad faith is impossible, but
the following types are among those which have
been recognized in judicial decisions: evasion of
the spirit of the bargain, lack of diligence and
slacking off, willful rendering of imperfect
performance, abuse of a power to specify terms,
and interference with or failure to cooperate in
the other party’s performance.

Mountaineer Fire & Rescue Equip., LLC v. City Nat’l Bank of W. Va., ___ W. Va. ___,

___ n.9, 854 S.E.2d 870, 891 n.9 (2020).

WesBanco contends that counsel for the Millers posed questions to

WesBanco’s corporate representative, Cathi McClelland, that suggested the jury could

apply the duty of good faith and fair dealing to vary and contradict the Construction Loan

42
Agreement’s provision related to mechanic’s liens. Under paragraph 7 of the Construction

Loan Agreement, “Borrower agrees that any mechanic’s lien filed upon the property shall

be Borrower’s sole responsibility and hereby holds Lender harmless against all losses,

including but not limited to, liability, costs, or damages resulting from same.” The

complained-of exchange occurred during trial as follows:

Q. Do you believe that that clause [paragraph 7] is
subject to being interpreted under principles of good faith and
fair dealing?

MR. SCHAEFFER: Objection, Your Honor.

THE COURT: Overruled.

Q. May I give you an example?

A. Please.

Q. Let’s say that a mechanic’s lien was identified, a
supplier’s lien, in fact, was identified by the bank, and the bank
either didn’t pay it or didn’t pay it in the proper sum and the
property owner had a lien filed against it. Do you think that it
would be within the parameters of good faith and fair dealing
to interpret this contract language to say this is your
responsibility, owner?

[Bench conference addressing objection by WesBanco]

Q. Ms. McClelland, does WesBanco, and then you
specifically when you’re working on residential construction
loans, try to act in good faith?

A. Yes.

Q. Okay. And do you try to deal fairly with your
customers?

A. Yes.

43
 ....

Q. And so what I’m asking you, is that clause
number 7 . . . do you believe that you would be acting in good
faith and fair dealing if WesBanco did not perform a condition
and have the duty to perform under the contract in regards to a
mechanic’s lien and then could fall back on the language that
we told you, it’s on you? Would that be fair?

A. I believe it would be.

Although not referred to by WesBanco, the exchanged continued as follows:

Q. All right. And do you think that that would be
acting in good faith? And again, if WesBanco failed to do
something that they should have done in regards to a
mechanic’s lien to say, oops, here, look at clause number 7, I’m
sorry we didn’t do what we were supposed to do, but it’s on
you?

A. I believe we were doing what we were required
to do per the terms of the construction loan agreement.

The Millers contend that substantial evidence was presented to the jury

throughout trial that WesBanco did not administer the Millers’ loan in conformity with

their justified expectations. For example, the Expectations form assured the Millers that

WesBanco would attend to lien waivers, and Ms. Hamilton assured them that this extended

to materialmen lien waivers, yet a mechanic’s lien was asserted against the Millers after

Residential Creations ceased work on their home. The Millers also point out that

WesBanco accepted Builder’s Affidavits tendered by Residential Creations when the area

for providing information about amounts paid to sub-contractors or materialmen and the

amounts that remained due was not completed. The Millers contend that WesBanco’s

44
cavalier observance of its own documents supplied the jury with ample evidence to

determine that WesBanco had breached the covenant of good faith and fair dealing in its

contract with the Millers.

We find no reversible error. Although counsel’s first attempts at posing his

question about the duty of good faith and fair dealing were phrased in a way that indicated

paragraph 7 could be interpreted under principles of good faith and fair dealing, those

questions were not answered. In the end, counsel properly phrased the question in a manner

that did not modify WesBanco’s obligations pursuant to the parties’ agreement. Rather,

counsel effectively asked whether WesBanco’s reliance on paragraph 7 would show bad

faith “if WesBanco failed to do something that they should have done in regards to a

mechanic’s lien,” and then relied on paragraph 7 to nevertheless hold the Millers

responsible for WesBanco’s failure. Furthermore, the jury was properly instructed as

follows:

The Court instructs the jury that West Virginia law
implies a covenant of good faith and fair dealing in every
contract for purposes of evaluating a party’s performance of
that contract. However, by the same token, the implied
covenant of good faith and fair dealing cannot give contracting
parties rights which are inconsistent with those set out in the
contract.

Good faith performance or enforcement of a contract
emphasizes faithfulness to an agreed common purpose and
consistency with the justified expectations of the other party; it
excludes a variety of types of conduct characterized as
involving bad faith because they violate standards of decency,
fairness, or reasonableness.

45
In this case, counsel ultimately phrased the question to correctly state the doctrine of good

faith and fair dealing, and it was the properly phrased question that was answered by the

witness. Furthermore, the jury was properly instructed as to the law of good faith and fair

dealing. Accordingly, we find that WesBanco did not suffer any prejudice resulting from

the initial, improperly phrased queries that were not answered by the witness. Therefore,

any error that may have occurred was harmless. See Tennant v. Marion Health Care

Found., Inc., 194 W. Va. 97, 111, 459 S.E.2d 374, 388 (1995) (“Under West Virginia law,

when substantial rights are not affected, reversal is not appropriate. A party is entitled to

a new trial only if there is a reasonable probability that the jury’s verdict was affected or

influenced by trial error.”); Danser v. Dorr, 72 W. Va. 430, 432, 78 S.E. 367, 367 (1913)

(“This court will not reverse for harmless error.”).

3. Judgment as a Matter of Law. WesBanco next argues that the

circuit court erred in denying its motion for judgment as a matter of law, made pursuant to

Rule 50(b) of the West Virginia Rules of Civil Procedure. WesBanco explains that the

Millers’ alleged two breach-of-contract claims: one based on WesBanco’s disbursement of

loan funds for unfinished work (“unfinished-work claim”), and the other based on

WesBanco’s failure to obtain lien waivers from O.C. Cluss (“lien-waiver claim”), which

would have alerted them to Residential Creation’s failure to pay for materials. WesBanco

argues that the Millers not only failed to establish liability as to their unfinished-work claim

46
and their lien-waiver claim, but they also failed to establish that they suffered any damage

as a result.

With respect to the unfinished-work claim, WesBanco notes that the jury was

instructed that,

[i]n order to prevail on their first breach of contract
claim, the Millers must prove each of the following by a
preponderance of the evidence: one, that WesBanco was
prohibited by the contract to pay Residential Creations for
work that was not done; two, that WesBanco paid Residential
Creations for work that was not done; and three, that they
incurred damages because WesBanco paid Residential
Creations for work that was not done.

WesBanco argues that the Millers failed to show that WesBanco paid Residential Creations

for work that was not done. To support this argument, WesBanco notes that it disbursed

funds according to benchmarks set out in the draw schedule that was part of the

construction contract between the Millers and Residential Creations, and the Millers

admitted that the draw schedule placed them underwater from the start. WesBanco argues

further that the evidence established that it never released a draw payment without first

obtaining four documents assuring that the corresponding benchmark had been finished:

(1) a Builder’s lien waiver; (2) a Builder’s Affidavit; (3) an Inspection Report; and (4) the

Millers’ signed authorization.

With respect to the Millers’ lien-waiver claim, WesBanco notes that the jury

was instructed that,

47
 [i]n order to prevail on their second breach of contract
claim, the Millers must prove each of the following by a
preponderance of the evidence: one, that WesBanco was
required by the contract to get a lien waiver from O.C. Cluss;
two, that WesBanco did not get a lien waiver from O.C. Cluss;
and three, that they incurred damages because WesBanco did
not get a lien waiver from O.C. Cluss.

WesBanco argues that the Millers had to show that WesBanco was required by the contract

to obtain a lien waiver from O.C. Cluss, a materialman. WesBanco argues that it was

required to obtain lien waivers from materialmen in only three specific instances: (1) if

materials had been supplied to the site before the initial advance, then WesBanco was

required to obtain lien-waivers from any supplier of such materials before disbursement of

the initial advance; (2) if materials had been supplied to the site before the initial advance,

then WesBanco was required to obtain lien-waivers from any supplier of such materials

before each subsequent disbursement; and (3) WesBanco was required to obtain lien

wavers from materialmen before the final disbursement, which never occurred. 22

According to WesBanco, there was no dispute that O.C. Cluss did not supply materials

before the initial advance, and the final disbursement never occurred; therefore, WesBanco

claims that it had no contractual obligation to obtain any lien waivers from O.C. Cluss.

WesBanco then reiterates its argument that the contract language was clear as to lien

waivers and therefore should have been applied rather than construed. WesBanco next

argues that, in paragraph 7 of the contract, the Millers agreed to hold WesBanco harmless

22
The final disbursement was never made due to Residential Creations’
failure to complete the project.

48
from any liability resulting from mechanic’s liens. The Millers do not respond to the

foregoing arguments.

This Court has held that,

“[i]n considering whether a motion for judgment
notwithstanding the verdict under Rule 50(b) of the West
Virginia Rules of Civil Procedure should be granted, 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).

Syl., First Nat’l Bank of Bluefield v. Clark, 191 W. Va. 623, 447 S.E.2d 558. See also Syl.

pt. 1, Jones v. Patterson Contracting, Inc., 206 W. Va. 399, 524 S.E.2d 915 (1999)

(“‘“When the plaintiff’s evidence, considered in the light most favorable to him, fails to

establish a prima facie right to recovery, the trial court should direct a verdict in favor of

the defendant.” Syl. Pt. 3, Roberts v. Gale, 149 W. Va. 166, 139 S.E.2d 272 (1964).’ Syl.

Pt. 1, Brannon v. Riffle, 197 W. Va. 97, 475 S.E.2d 97 (1996).”). The term “prima facie”

refers to evidence that, without contradiction, tends to prove a fact:

“The words ‘prima facie,’ as used in connection with the force
and effect of the evidence, mean no more than that the latter,
on its face or at first view and without contradiction or
explanation, tends to prove the fact in issue–not that it does
necessarily establish it. Perhaps a more exact legal definition
is that it is such as is, in judgment of law, sufficient to establish
the ultimate fact, and, if not explained or rebutted, remains
sufficient for that purpose. . . .”

49
State v. Tincher, 81 W. Va. 441, 445, 94 S.E. 503, 505 (1917) (quoting State v. Russell, 80

S.E. 66, 68 (N.C. 1913)). See also prima facie, Black’s Law Dictionary (7th ed. 1999)

(“Sufficient to establish a fact or raise a presumption unless disproved or rebutted.”).

Moreover, elaborating on what is meant by viewing the evidence favorably to the

nonmoving party for purposes of a motion for judgment as a matter of law, this Court has

explained that,

“‘“[u]pon 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).

Syl. pt. 4, Jones, 206 W. Va. 399, 524 S.E.2d 915. See also Syl. pt. 3, id. (“‘Upon a motion

for a directed verdict, all reasonable doubts and inferences should be resolved in favor of

the party against whom the verdict is asked to be directed.’ Syl. Pt. 5, Wager v. Sine, 157

W. Va. 391, 201 S.E.2d 260 (1973).”). Stated another way,

[i]n determining whether there is sufficient evidence to
support a jury verdict, the trial court should: (1) consider the
evidence most favorable to the prevailing party; (2) assume
that all conflicts in the evidence were resolved by the jury in
favor of the prevailing party; (3) assume as proved all facts
which the prevailing party’s evidence tends to prove; and (4)
give to the prevailing party the benefit of all favorable
inferences which reasonably may be drawn from the facts
proved.

50
Louis J. Palmer, Jr., Robin Jean Davis, Litigation Handbook on West Virginia Rules of

Civil Procedure 1191 (5th ed. 2017).

Rather than considering the evidence in the light most favorable to the

Millers, WesBanco’s arguments are founded on its interpretation of the Construction Loan

Agreement and its position that the Construction Loan Agreement was the sole document

encompassing the parties’ contract. Contrary to WesBanco’s position, however, we have

concluded that, under the single transaction rule, the agreement between WesBanco and

the Millers was not limited to only the Construction Loan Agreement.

The Millers presented evidence that WesBanco had assured them that no

funds would be disbursed for work not completed. Indeed, the Expectations form expressly

states that “[f]unds will not be disbursed for work not completed,” and “[f]unds will not be

disbursed for materials on site not installed.” Furthermore, the Construction Loan

Agreement states, in relevant part at paragraph 4.C., that “Lender shall, upon application

of the Borrower make periodic disbursements to the Borrower for payment for work

actually performed, materials delivered, or materials for the delivery of which the

[B]orrower has entered into an agreement . . . .” (Emphasis added). Additionally, Ms.

Hamilton testified that she had told the Millers that no funds would be disbursed until work

was completed. Nevertheless, in disbursing funds, WesBanco relied on the draw schedule

in the construction contract, which used benchmarks rather than completed work to

51
establish when draws should be made. The evidence at trial showed that, by following this

draw schedule founded on benchmarks, WesBanco paid for work that was not completed.

To the extent that WesBanco argues that it never released a draw payment

without first obtaining four documents assuring that the corresponding benchmark had

been finished, we find that, taken in the light most favorable to the Millers, at least two of

these documents fail to support WesBanco’s position. First, the evidence demonstrated

that WesBanco accepted Builder’s Affidavits from Residential Creations that were not

properly completed in that they failed to provide information about subcontractors and

materialmen. Furthermore, the Inspection Reports established that the level of completed

work on the home did not correspond with the percentage of funds WesBanco paid out

with each draw. The last Inspection Report stated that the house was only fifty-three

percent complete, while WesBanco had released $442,000 in loan funds, or approximately

eighty percent of the Millers’ loan. This evidence establishes the Millers’ prima facie right

to recover. Furthermore, we find the fact that WesBanco paid out eighty percent of loan

funds for a house that was only fifty-three percent complete satisfied the Millers’ burden

to show they suffered damages. 23 Accordingly, the circuit court did not err in denying

WesBanco’s motion for judgment as a matter of law as to the Millers’ unfinished-work

claim.

We here conclude that there was sufficient evidence that the Millers
23

suffered damages from WesBanco’s breach of contract by paying for unfinished work.
Whether the Millers sufficiently proved the amount of their damages is addressed below.

52
 Similarly, the Millers presented sufficient evidence of their lien-waiver claim

to overcome WesBanco’s motion for judgment as a matter of law. The Expectations form

contained at least two provisions relevant to this issue. First, the form required a properly

completed Builder’s Affidavit: “Builder’s Affidavit: Properly completed with all work

detailed including materials and labor for all sub contractors. The total amount due must

be clearly identified. The form must be signed by the general contractor in the presence of

a notary public.” (Emphasis added). In addition, the Expectations form provided “Lien

Waivers: Required. Properly executed and notarized Lien Waivers must be presented by

each sub contractor in addition to the general contractor.” The Millers presented evidence

that WesBanco accepted Builder’s Affidavits from Residential Creations that were not

properly completed, that failed to detail the work completed, and failed to provide

information pertaining to sub contractors. Moreover, the Builder’s Affidavit was to include

the names of all parties who have furnished material or labor,
or both, to the undersigned [Builder] for said work and of all
parties having contracts or subcontracts with the undersigned
[Builder] for specific portions of said work or for materials
entering into the construction thereof and the amount due or to
become due to each, and that the items mentioned include all
labor and material required to complete said work according
to plans and specifications[.]

(Emphasis added). Residential Creations failed to provide any of the required information.

Instead, Residential Creations merely described the benchmark that had been reached.

Despite this improperly completed form that omitted critical financial information

regarding the construction, WesBanco accepted the incomplete Builder’s Affidavits

submitted by Residential Creations and released the requested loan funds. The evidence

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further showed that blank Builder’s Affidavit forms had been provided to the Millers by

WesBanco. The Millers, in turn, gave the blank forms to their builder, Residential

Creations. Thereafter, Residential Creations presented the completed affidavits to

WesBanco along with each of its draw requests. The Millers did not see the completed

forms and had no way of knowing that Residential Creations had failed to provide crucial

information.

Furthermore, paragraph 4.B.(i) of the Construction Loan Agreement also

addressed lien waivers and granted WesBanco discretion to determine whether they were

needed: “Lender shall be under no obligation to advance funds hereinunder until Lender

has obtained . . . the executed Waiver of Liens from the general contractor and from the

subcontractors, suppliers and materialmen if deemed necessary.” (Emphasis added). The

Millers contend, however, that, even applying the language of the Construction Loan

Agreement, the jury could reasonably have determined that WesBanco abused its

discretion and violated its duty of good faith and fair dealing by failing to obtain lien

waivers from subcontractors and materialmen before advancing funds. We agree,

particularly where, as here, the percentage of funds advanced substantially exceeded the

percentage of work completed on the home. 24 Thus, the evidence was sufficient for the

We likewise reject WesBanco’s contention that it was entitled to judgment
24

as a matter of law based upon paragraph 7 of the Construction Loan Agreement, under
which the Millers agreed that “any mechanic’s lien filed upon the property shall be
Borrower’s sole responsibility” and they would hold WesBanco “harmless against all
losses, including but not limited to, liability, costs, or damages resulting from same.” At

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jury to conclude that WesBanco breached its agreement with the Millers by failing to

properly obtain lien waivers, and evidence of the resulting mechanic’s lien by O.C. Cluss

established that the Millers suffered damages. 25 Therefore, the circuit court did not err in

denying WesBanco’s motion for judgment as a matter of law with respect to the Millers’

lien-waiver claim.

4. Damages Verdicts. In its final assignment of error, WesBanco

argues that the circuit court erred in denying its Rule 59(a) motion for a new trial on

damages because the damages awarded by the jury are against the clear weight of the

evidence and would result in a miscarriage of justice. We agree.

The jury awarded damages to the Millers in the amount of $404,500 for

breach of contract in general. Although the jury was instructed that the Millers had two

breach-of-contract claims, the unfinished-work claim and the lien-waiver claim, the

trial, the Millers contended that, because WesBanco’s failure to fulfill its contractual
obligation to obtain lien waivers resulted in the O.C. Cluss mechanic’s lien, WesBanco
would violate its duty of good faith and fair dealing by seeking to enforce paragraph 7. See
Mountaineer Fire & Rescue Equip., LLC v. City Nat’l Bank of W. Va., ___ W. Va. ___,
___ n.9, 854 S.E.2d 870, 891 n.9 (2020) (“Every contract imposes upon each party a duty
of good faith and fair dealing in its performance and its enforcement.”). Accordingly,
paragraph 7 of the Construction Loan Agreement did not entitle WesBanco to judgment as
a matter of law.

We here conclude that there was sufficient evidence that the Millers
25

suffered damages from WesBanco’s breach of the lien-waiver provisions of the contract.
Whether the Millers sufficiently proved the amount of their damages is addressed below.

55
damages award was not allocated between them. The $404,500 award appears to be the

sum of $287,500, which represented the total amount expended by the Millers to complete

their home after Residential Creations ceased construction (i.e. the unfinished-work claim),

and $117,000, which is roughly the amount of the O.C. Cluss mechanic’s lien (i.e. the lien-

waiver claim). Nevertheless, whether and how the damages are split between the Millers’

two breach-of-contract claims is merely presumed.

WesBanco argues that the Millers’ unfinished-work damages were based on

the difference between what they had expected to pay for their home and what they actually

paid. The Millers’ evidence included an eleven-page spreadsheet listing the amounts they

spent to complete their home after Residential Creations quit work, which purportedly

totaled $287,500. 26 This amount does not account for $113,000 that was never disbursed

by WesBanco from the Millers’ loan funds. 27 WesBanco provides the following chart to

demonstrate the difference between what the Millers expected to pay for their home and

what they actually paid:

26
Mrs. Miller apparently had receipts to support the spreadsheet, but the
receipts are not part of the appendix record.
27
Mrs. Miller testified that the amount that was never disbursed by
WesBanco was not made part of her construction loan, and her loan payments did not
reflect any indebtedness based thereon.

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Expected Cost: Actual Cost:
WesBanco Loan $555,000.00 WesBanco Loan $442,000.00
Down Payment $149,000.00 Down Payment $149,000.00
Out-of-Pocket Expenses $0.00 Out-of-Pocket Expenses $287,500.00

$704,000.00 $878,500.00

Based on this chart, WesBanco argues that the Millers’ damages for their unfinished-work

claim should not have exceeded $174,500, the difference between their expected cost and

the actual cost of completing their home. Yet the jury appears to have granted the Millers’

$287,500 in unfinished-work damages.

With respect to the Millers’ lien-waiver claim, WesBanco notes that the O.C.

Cluss mechanic’s lien includes $14,000 in charges for materials that were delivered after

WesBanco authorized the last draw. Because WesBanco was never asked to authorize a

payment for these expenses, it had no corresponding duty to obtain a lien waiver in relation

thereto. Nevertheless, the entire amount of the $117,000 mechanic’s lien appears to have

been included in the damages award.

The Millers respond to the two preceding arguments by asserting that proof

of damages to a reasonable degree of certainty does not demand absolute certainty to the

exactitude of a mathematical calculation. The Millers contend that the jury award of

$404,500 was made up of two elements, $287,500 representing the cost of completing their

home as represented by their spreadsheet, and $117,000 for the O.C. Cluss mechanic’s lien.

Furthermore, the Millers submit that their damage claim is founded on three pillars: (1)

57
the amount of the mechanic’s lien; (2) their spreadsheet itemizing out-of-pocket expenses

they incurred to complete their home; and (3) the final report of WesBanco’s appraiser

demonstrating that their home was only fifty-three percent complete when Residential

Creations quit working, which left the home forty-seven percent incomplete. The Millers

assert that forty-seven percent of the $690,000 that Residential Creations was to have been

paid for their completed home equals $324,300, but they completed their home to a lesser

quality than originally planned and spent only $287,500.

This Court has held that

[i]n 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.

Syl. pt. 3, Franklin v. Pence, 128 W. Va. 353, 36 S.E.2d 505 (1945). Nevertheless, in order

to recover substantial damages for a breach-of-contract claim, there must be sufficient

proof.

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.

Syl. pt. 2, Wilson v. Wiggin, 77 W. Va. 1, 87 S.E. 92 (1915). Moreover,

[i]t is a fundamental principle of the law of contracts that a
plaintiff is only entitled to such damages as would put him in

58
 the same position as if the contract had been performed. Bryant
v. Peckinpaugh, 241 Va. 172, 400 S.E.2d 201 (1991);
Associated Stations, Inc. v. Cedars Realty and Development
Corp., 454 F.2d 184 (4th Cir. 1972). In other words, a plaintiff
is not entitled to damages beyond his actual loss attributable to
defendant’s breach. Horn v. Bowen, 136 W. Va. 465, 67
S.E.2d 737 (1951).

Milner Hotels, Inc. v. Norfolk & W. Ry. Co., 822 F. Supp. 341, 344 (S.D.W. Va. 1993),

aff’d, 19 F.3d 1429 (4th Cir. 1994) (table decision).

Based on our examination of the record in this case, we agree with WesBanco

that the damages awarded by the jury are against the weight of the evidence. First, as

explained above, whether the jury intended to award damages for both of the two methods

by which WesBanco breached the Construction Loan Agreement, and, if so, how those

damages were apportioned, is subject only to speculation. Moreover, the Millers’ damages

for WesBanco’s breach by paying for unfinished work was presented in the form of an

eleven-page spreadsheet listing their expenses for completing the home. However, given

that all of the loan funds were not disbursed by WesBanco, this list necessarily includes

items for which WesBanco never released payments. Such items are not properly included

in the Millers’ damages award, particularly where no offset was given for the funds that

WesBanco never disbursed. Additionally, many of the items are listed in very general

terms, and the Millers direct us to no place in the record where they demonstrated that these

items were included in their construction contract and were paid for in advance by

WesBanco. It also is not clear that all of the items on the Millers’ chart were actually

59
included in the Millers’ construction contract with Residential Creations. 28 Similarly, the

jury award appears to include portions of the O.C. Cluss mechanic’s lien that related to

materials delivered after the last disbursement of funds by WesBanco. Because the

delivery of these materials post-dated the last draw request made to WesBanco, WesBanco

had no contractual duty to obtain any lien waiver for these materials. Thus, to the extent

these damages may have been included, the award is against the evidence. For these

reasons, we find the circuit court abused its discretion in denying WesBanco’s motion for

a new trial with respect to damages. Accordingly, we reverse the damages award and

remand this case for a new trial on damages.

IV.

CONCLUSION

For the reasons explained in the body of this opinion, we find no error in the

circuit court’s order denying prejudgment interest to the Millers and we affirm that ruling.

We likewise find no error in the circuit court’s admission of parol evidence related to the

agreement between the Millers and WesBanco, the manner in which the court allowed the

Millers to present the duty of good faith and fair dealing, or the denial of WesBanco’s

28
For example, one expenditure of $5,500 is simply identified as “work
Residential Creations was supposed to do,” with no description of what the work actually
involved. Furthermore, while the construction contract indicates the Millers’ garage was
to have an unfinished interior, another expenditure appears to include drywall for the
garage.

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motion for judgment as a matter of law. These rulings also are affirmed. However, we

find the jury’s damages award of $404,500 was against the clear weight of the evidence;

therefore, we reverse this award and remand this case for a new trial on damages only.

No. 20-0041: Affirmed.

No. 20-0042: Affirmed in part, Reversed in part, and Remanded.

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