Evelyn Cabell v. CMH Homes, Inc. ( 2023 )

USCA4 Appeal: 22-1018 Doc: 33 Filed: 08/17/2023 Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-2360
EVELYN CABELL; BILLY CABELL, her son,
Plaintiffs – Appellants,
v.
CMH HOMES, INC., a Tennessee corporation; CMH MANUFACTURING, INC.,
a Tennessee Corporation; SOUTHERN OHIO CONSTRUCTION, LLC, an Ohio
limited liability company; JOHN DOE, an unknown person or entity,
Defendants - Appellees.
No. 22-1018
EVELYN CABELL; BILLY CABELL, her son,
Plaintiffs – Appellees,
v.
CMH HOMES, INC., a Tennessee corporation; CMH MANUFACTURING, INC.,
Defendants – Appellants,
and
SOUTHERN OHIO CONSTRUCTION, LLC, an Ohio limited liability company;
JOHN DOE, an unknown person or entity,
Defendants.
USCA4 Appeal: 22-1018 Doc: 33 Filed: 08/17/2023 Pg: 2 of 5
Appeals from the United States District Court for the Southern District of West Virginia,
at Charleston. Joseph R. Goodwin, District Judge. (2:20-cv-00507)
Submitted: January 13, 2023 Decided: August 17, 2023
Before KING, RICHARDSON, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Michael J. Del Giudice, CICCARELLO, DEL GIUDICE & LAFON,
Charleston, West Virginia, for Appellants/Cross-Appellees. Jason J. Stemple, OXLEY
RICH SAMMONS, Huntington, West Virginia; W. Scott Simpson, Spenser Templeton,
SIMPSON, MCMAHAN, GLICK & BURFORD, PLLC, Hoover, Alabama, for
Appellees/Cross-Appellants CMH Homes & CMH Manufacturing. Sarah A. Walling,
Robert H. Sweeney, Jr., Alexis A. Wright, JENKINS FENSTERMAKER, PLLC,
Huntington, West Virginia, for Appellee Southern Ohio Construction, LLC.
Unpublished opinions are not binding precedent in this circuit.
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USCA4 Appeal: 22-1018 Doc: 33 Filed: 08/17/2023 Pg: 3 of 5
PER CURIAM:
This case centers on a home sale that went bad. Evelyn and Billy Cabell bought a
modular home from CMH Homes, Inc. 1 That home was then manufactured by CMH
Manufacturing, Inc. and built on the Cabells’ property by Southern Ohio Construction,
LLC. The Cabells now allege that their home was constructed badly and they sued CMH
Homes, CMH Manufacturing, and Southern Ohio alleging various state contract and tort
claims. The district court awarded summary judgment to the defendants on all counts. We
agree and so affirm. 2
The Cabells first contend that CMH Homes breached their sales contract “by failing
to construct the Modular Home on the Property in a reasonably prudent manner.” J.A. 123.
The problem with this argument is that, as the district court correctly found, CMH Homes
never agreed to construct the Cabells’ home. 3 While the contract itself is ambiguous as to
who bears the responsibility for constructing the house, emails between Billy Cabell and
CMH Homes definitively show that the Cabells agreed to take it on, as does the form they
filed with the state laying out the parties’ home-installation responsibilities. See Stewart
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Billy purchased the home with Evelyn’s money. She authorized him to complete
the transaction. Billy planned to live in the home.
Since we affirm the district court, we do not address any of the issues raised by the
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defendants’ contingent cross-appeal.
3
On appeal, the Cabells argue that their breach-of-contract claim alleged a failure
to properly construct the home, a failure to properly manufacture the home, and a breach
of the implied warranty of merchantability. But the Complaint alleges only one of these
things: a failure to properly construct the home on the Cabells’ property. So, like the
district court, we address only the merits of that claim.
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v. Blackwood Elec. Steel Corp., 130 S.E. 447, 449 (W. Va. 1925) (“[W]here the written
contract is ambiguous and uncertain, parol evidence is admissible to show . . . the practical
construction given by the parties.”). So the Cabells’ breach-of-contract claim against CMH
Homes fails. John D. Stemp & Assoc. v. Cunningham Mem’l Park, 419 S.E.2d 699, 707
(W. Va. 1992) (explaining that courts “must construe the writing” if the contract is
ambiguous but parol evidence resolves the ambiguity); Goodman v. Resolution Tr. Corp.,
7 F.3d 1123, 1126 (4th Cir. 1993).
The Cabells next allege that CMH Homes, CMH Manufacturing, and Southern Ohio
negligently constructed their house. But succeeding on a negligence claim requires
showing that the defendants breached a duty they owed the plaintiffs. Lockhart v. Airco
Heating & Cooling, Inc., 567 S.E.2d 619, 623 (W. Va. 2002). And, under West Virginia
law, that duty cannot depend solely on a contract. Id. at 624. Since the Cabells do not
point to any duty that the defendants owed them other than alleged contractual duties, the
district court properly awarded summary judgment to the defendants on this claim.
The Cabells also assert that CMH Homes and CMH Manufacturing negligently
hired Southern Ohio to construct their house, or in the alternative, negligently
recommended that they hire Southern Ohio to construct their house. But nothing in the
record suggests that either CMH entity hired Southern Ohio. And West Virginia does
not—and likely would not—recognize a negligent referral claim in this context. See Pied
Piper, Inc. v. Datanational Corp., 901 F. Supp. 212, 214–15 (S.D. W. Va. 1995). So the
district court rightly rejected this claim.
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Lastly, the Cabells argue that they were the third-party beneficiaries of a contract
between CMH Homes or CMH Manufacturing and Southern Ohio, and that Southern Ohio
breached that contract by constructing their home badly. But, to sue for breach of contract
as a third-party beneficiary, the Cabells needed to show that Southern Ohio contracted with
a CMH entity “for [the Cabells’] sole benefit.” See W. Va. Code § 55-8-12. As the record
contains no evidence that this happened, the Cabells’ third-party-beneficiary claim also
fails.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process. The district court’s order is
AFFIRMED.
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