Thomas W. Kupec, Esq.
Michael & Kupec
Clarksburg, West Virginia
Attorney for the Appellant
J. Greg Goodykoontz, Esq.
Steptoe & Johnson
Clarksburg, West Virginia
Attorney for the Appellees
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
JUSTICE McHUGH, deeming himself disqualified, did not participate.
JUSTICE CLECKLEY concurs, and reserves the right
to file a concurring opinion.
1. "'A motion for summary judgment should be granted only
when it is clear that there is no genuine issue of fact to be tried
and inquiry concerning the facts is not desirable to clarify the
application of the law.' Syl. pt. 3, Aetna Casualty and Surety
Company v. Federal Insurance Company, 148 W. Va. 160, 133 S.E.2d
770 (1963)." Syllabus Point 5, Warner v. Haught, Inc., 174 W. Va.
722, 329 S.E.2d 88 (1985).
2. "'A written contract merges all negotiations and representations which occurred before its execution, and in the absence of fraud, mistake, or material misrepresentations extrinsic evidence cannot be used to alter or interpret language in a written contract which is otherwise plain and unambiguous on its face.' Syl. pt. 3, Iafolla v. Douglas Pocahontas Coal Corporation, 162 W. Va. 489, 250 S.E.2d 128 (1978)." Syllabus Point 1, Warner v. Haught, Inc., 174 W. Va. 722, 329 S.E.2d 88 (1985).
David L. Marshall appeals from a partial summary judgment
order of the Circuit Court of Harrison County dismissing his
contract claim against Elmo Greer & Sons, Inc. (hereinafter Greer)
and The Hartford Fire Insurance Co., Greer's surety on the
Greenbrier County construction project. Mr. Marshall maintains
that circuit court erred in finding the contract between Mr.
Marshall and Greer (hereinafter the express, written contract) to
be unambiguous and in dismissing Mr. Marshall's contract claim.
Although we agree that the dismissal of the express, written
contract claim was proper, nonetheless, we find the dismissal to be
premature because Mr. Marshall's complaint may state an implied
contract or quantum meruit claim that was not considered by the
Greer, a general contractor for the West Virginia Dept.
of Highways on project I-ID-64-4(37)143, a part of Interstate 64's
construction in Greenbrier County (hereinafter the project), was
required by the State to employ minority subcontractors. Mr.
Marshall, a minority subcontractor, and Greer entered an express,
written contract dated April 3, 1985, by which Mr. Marshall agreed
to perform "clearing and grubbing" for which Greer agreed to pay $139,055.See footnote 1 Greer also agreed to pay $97,900 to Mr. Marshall for a
certain amount of class B Concrete, but that portion of the
contract is not part of this case.
Section VIII of the express, written contract provided,
in pertinent part:
Payment shall be determined by the unit price for each particular kind of work shown on Exhibit "A". . . .
Exhibit A provided the following work description:
ITEM DESCRIPTION APPRO.QUAN. UNIT AMOUNT
201-1 CLEARING & GRUBBING 1.0 LS $ 139055.00 $ 139055.00
601-2 CLASS B. CONCRETE 356.0 CY 275.00 97900.00
TOTAL $ 236955.00
In addition, Section X of the express, written contract
This Contract includes all changes, addenda, etc., to date; and takes precedence over any and all proposal, correspondence, and oral agreements made prior to the execution of this Contract, this constituting the entire Agreement between Parties.
Mr. Marshall contends that in addition to the four pages
submitted by Greer, the express, written contract also included a cover sheet showing that Mr. Marshall's contract was to clear and
grub ninety-one (91) acres. Mr. Marshall maintains that the
parties agreed he was to be paid about $1,500 per acre for clearing
and grubbing. Mr. Marshall maintains that after he cleared and
grubbed the ninety-one acres under the contract, Greer allowed him
to continue clearing and grubbing an additional 110 acres-- almost
the entire project. Mr. Marshall contents that Greer's refusal to
pay for his additional work caused his financial problems that led
to his dismissal by Greer.
In support of his contention that the express, written
contract was a per acre payment contract for ninety-one acres, Mr.
Marshall notes that Greer reported to the Dept. of Highways that
the express, written contract as "partial." Greer argues that the
contract was reported as partial because Greer intended and
performed clearing and grubbing in project areas other than the
right of way. Mr. Marshall notes that clearing and grubbing was a
substantial part of Greer's contract with the State. According to
a line item, in Greer's "Schedule of Prices" submitted to the
State, the project's clearing and grubbing cost was $1,080,000.
Greer, arguing that the express, written contract is
unambiguous and parol evidence is not admissible to contradict the
terms of the express, written contract, sought the dismissal of Mr.
Marshall's contract claim. The circuit court agreed and granted Greer partial summary judgment. Mr. Marshall appealed to this
A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.
Syl. pt. 3, Aetna Casualty and Surety Company v. Federal Insurance
Company, 148 W. Va. 160, 133 S.E.2d 770 (1963); Syl. pt. 5, Warner
v. Haught, Inc., 174 W. Va. 722, 329 S.E.2d 88 (1985).
The record clearly establishes that Mr. Marshall cannot prevail on his express, written contract claim. Mr. Marshall contends that the express, written contract was really a $1,500 per acre charge for clearing and grubbing. To support his argument, Mr. Marshall cites the express, written contract's cover sheet, which is missing, and various oral negotiations and representations that occurred before the express, written contract was signed.
According to Mr. Marshall, the missing cover sheet showed
that he agreed to clear and grub ninety-one acres at $1,500 per
acre. However, Mr. Marshall's allegation that the express, written
contract contained an additional page is not creditable. The
express, written contract, in the form submitted by Greer, begins with the caption "CONSTRUCTION AGREEMENT" and a short paragraph
identifying the date and parties. The instrument continues with
consecutively numbered sections I through Section X; "EXHIBIT A" is
at the beginning of the fourth page and the parties' signatures
follow thereafter. No missing page is apparent from the structure
of the instrument. No additional page was submitted by Mr.
Generally, a high degree of proof from one seeking to
establish a lost instrument is required. In Syl. pt. 1, Lucas v.
Hensley, we said, "[t]o establish title to land under an alleged
lost deed, on parol testimony, proof that it existed, and of its
contents, must be clear and conclusive." See Syl., Drake v.
Parker, 122 W. Va. 145, 7 S.E.2d 651 (1940) ("[f]or parol testimony
to establish title to land through an alleged lost instrument,
proof of its execution, contents and loss must be conclusive");
Gill v. Colton, 12 F.2d 531, 834 (4th Cir. 1926) ("[i]t is
incumbent upon one seeking to establish a lost instrument to prove
it by evidence of the clearest and most satisfactory character");
Smith v. Lurty, 108 Va. 799, ___, 62 S.E. 789, 790 (1908) (because
of the motive of the party alleging a lost instrument, a high
degree of proof is required). In this case, because no evidence
shows that the express, written contract includes more that four
pages, we reject Mr. Marshall's allegation.
Mr. Marshall next asserts that various oral negotiations
and representations occurred before the express, written contract
was signed to show that the express, written contract was a per
acre charge. However, we have long held that "[a] written contract
merges all negotiations and representations which occurred before
its execution, and in the absence of fraud, mistake, or material
misrepresentations extrinsic evidence cannot be used to alter or
interpret language in a written contract which is otherwise plain
and unambiguous on its face." Syllabus Point 1, Warner v. Haught,
Inc., 174 W. Va. 722, 329 S.E.2d 88 (1985). In accord Jolynne
Corp. v. Michels, ___ W. Va. ___, ___, 446 S.E.2d 494, 500 (1994);
Syl. pt. 1, Buckhannon Sales Co., Inc. v. Appalantic Corp., 175 W.
Va. 742, 338 S.E.2d 22 (1985); Syl. pt. 3, Iafolla v. Douglas
Pocahontas Coal Corp., 162 W. Va. 489, 250 S.E.2d 128 (1978).
However, the plain language of the express, written
contract in Exhibit A states that clearing and grubbing was a lump
sum payment rather than a per acre charge. Under the contract Mr.
Marshall was to be paid $139,000 to perform certain clearing and
grubbing on the project. The documents filed in this case show,
beyond a doubt, that Mr. Marshall was paid the contract amount and
Mr. Marshall is not entitled under the plain language of the
express, written contract to additional payments. A determination
of the amount of work performed under the express, written contract is not necessary to affirm the circuit court's rejection of Mr.
Marshall's express, written contract claim.
Although Mr. Marshall's express, written contract claim
was properly dismissed, Mr. Marshall's complaint may raise an
implied contract theory of recovery, which was not directly
addressed by the circuit court's summary judgment order.
An implied contract "presupposes an obligation 'arising
from mutual agreement and intent to promise but where the agreement
and promise have not been expressed in words.'" Case v. Shepherd,
140 W. Va. 305, 310, 84 S.E.2d 140, 143 (1954) (quoting Williston
on Contracts, Revised Ed., § 3). However, "[a]n implied promise
must be as distinctly alleged in a declaration as an express one."
Syl. pt. 2, Bannister v. Victoria Coal & Coke Co., 63 W. Va. 502,
61 S.E. 338 (1908).See footnote 2
"An implied contract arises from the principle of equity
that one person may not enrich himself unjustly at the expense of
another. Development Co. v. Howell, 101 W. Va. 748, 133 S.E. 699." Lockard v. City of Salem, 130 W. Va. 287, 292, 43 S.E.2d 239, 242
(1947). However, "[a]n implied contract and an express one
covering the identical subject-matter cannot exist at the same
time. If the latter exists, the former is precluded. [Citations
omitted.]" Rosenbaum v. Price Const. Co., 117 W. Va. 160, 165, 184
S.E. 261, 263 (1936). See, Case, supra, 140 W. Va. at 311, 84
S.E.2d at 144 ("[a]n express contract and an implied contract,
relating to the same subject matter, can not co-exist"); Bright v.
QSP, Inc., 20 F.3d 1300, 1306 (4th Cir. 1994); White v. National
Steel Corp., 742 F.Supp. 312, 329 n.22 (1989). See also Johnson v.
National Exchange Bank of Wheeling, 124 W. Va. 157, 160, 19 S.E.2d
441, 442 (1942)(outlining the essential elements for an implied
contract); Case, supra, 140 W. Va. at 310-11, 84 S.E.2d at 143-44;
Raymond, Colesar, Claspy & Huss v. Allied Capital Corp., 961 F.2d
489 (4th Cir. 1992).
In this case, the express, written contract does not
preclude an implied contract because the written contract did not
clearly identify the how much clearing and grubbing Mr. Marshall
was to do. The contract in "Exhibit A" describes the amount of
work as "1.0 LS," which according to Lee Anderson, Greer's Chief
Engineer is "a lump sum contract." Although the parties agree that
the express contract was a partial clearing and grubbing contract,
they disagree on how much work was required under the contract.
Greer contends that Mr. Marshall was to clear and grub the entire "right-of-way" and Greer was do the off-site work. Mr. Marshall
contends that the express contract refers only to a portion of the
right-of-way work, or about ninety-one acres.
Given the contract's failure to specify the area to be
cleared and grubbed, the circuit court erred in concluding as a
matter of law that the express, written contract "requires David
Marshall to clear and grub the right of way as specified in the
construction agreement. [Emphasis added.]" The extent of the work
subject to the contract presents a genuine issue of fact to be
tried, provided that Mr. Marshall has stated a quantum meruit
claim. We address this error concerning the extent of express,
written contract work so that it does not preclude a consideration
of any implied contract claim.
Because Mr. Marshall may have an implied contract claim,
which is not facially precluded by the express, written contract,
we reverse the circuit court and remand the case for a
determination of a possible quantum meruit claim.
For the above stated reasons, we affirm that portion of
the Circuit Court of Harrison Court summary judgment dismissing Mr.
Marshall's express, written contract claim, but reverse that
portion which precludes the consideration of an implied contract
claim and remand this case for additional proceedings.
Affirmed, in part,
reversed, in part,
Footnote: 1 According to Mr. Marshall's brief, clearing and grubbing prepares an area for construction. Clearing is the removal of "trees and stumps of certain size" and grubbing is mulching the vegetation into the soil.
Footnote: 2 Rule 8, WVRCP  obviously overrules the technical pleading requirement of Bannister, but the principle that there must actually be an implied promise that can be proven remains intact.