Miller v. Wesbanco Bank, Inc. and Wesbanco Bank, Inc. v. Miller ( 2021 )

FILED
June 11, 2021
released at 3:00 p.m.
No. 20-0041 — Miller et al v. WesBanco Bank, Inc. EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 20-0042 —WesBanco Bank, Inc. v. Miller et al OF WEST VIRGINIA
WOOTON, J., concurring, in part, and dissenting, in part:
As to the majority’s resolution of these consolidated appeals, I concur in its
rejection of Wesbanco’s multiple challenges to the jury’s liability verdict. I respectfully
dissent, however, to the majority’s reversal and remand for a new trial on damages, as well
as its affirmance of the circuit court’s refusal to permit prejudgment interest. As does the
majority opinion, I will address each in turn beginning with the Millers’ appeal on the issue
of prejudgment interest.
As indicated, I dissent to the majority’s conclusion that the Millers were
foreclosed from an award of prejudgment interest because they failed to request the award
from the jury. The issue presented is straightforward: whether West Virginia Code § 56-
6-31 (2018)—which provides that prejudgment interest is to be mandatorily awarded by
the court—is applicable to a contract action, or whether West Virginia Code § 56-5-27
(1923)—which provides that prejudgment interest may be sought from the jury—applies.
The issue was first addressed in Thompson v. Stuckey, 171 W. Va. 483, 300 S.E.2d 295(1983), analyzing the language of the 1981 version of West Virginia Code § 56-6-31.
The 1981 version of West Virginia Code § 56-6-31 stated, in pertinent part,
that “[e]xcept 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
1
thereof, whether it be so stated in the judgment or decree or not[.]” The Thompson Court
found that the “[e]xcept where it is otherwise provided by law” language served to carve
out contract cases, interest on which was referenced elsewhere in West Virginia Code §
56-6-27: “[T]he jury, in any action founded on contract, may allow interest on the principal
due . . . .” Thompson held, in a cursory, two-paragraph analysis, that prejudgment interest
in contract cases was therefore “otherwise provided by law” and governed by section 27,
requiring a request for prejudgment interest to be made to the jury, rather than awarded by
the court post-verdict. Id. at 488, 300 S.E.2d at 300. The Court held firm to this conclusion
in City National Bank of Charleston v. Wells, 181 W. Va. 763, 778, 384 S.E.2d 374, 389
(1989), stating that “W. Va. Code, 56-6-31, does not specifically apply to contract actions.”
However, this conclusion is belied by the Legislature’s next amendment of the statute.
In 2006, the Legislature added a phrase to the opening language of West
Virginia Code § 56-6-31, designed to clarify its applicability to all actions for monetary
damages as follows: “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 in any court of this state shall bear interest from the date thereof[.]”
(emphasis added). This language was clearly in response to Thompson’s attempt to carve
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out such cases from the ambit of the statute and clarify that the statute governed interest
awards on all cases, unless otherwise indicated. 1
To date, the significance of this added language has never been fully
analyzed by this Court. Refusing to revisit the holding in Thompson despite two additional
amendments to the statute, the Court instead constructed a house of cards based upon the
presumption that the amendments were of no significance to the holding in Thompson,
without analysis of any sort. See Ringer v Johns, 230 W. Va. 687, 742 S.E.2d 103 (2013).
In Ringer—a per curiam decision—the Court declared in a footnote, without any
meaningful discussion, that the retention of the language “[e]xcept where it is otherwise
provided by law” in the 2006 amendment left Thompson’s holding intact: “Despite the
[amendment to the statute] . . . 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 [Thompson].” Id. at 691 n.6, 742 S.E.2d at 107 n.6.
The statute was then reconfigured in 2018, separating the opening language
from the succeeding subsections addressing prejudgment and post-judgment interest
individually, and clarifying that interest was to be calculated as “simple, not
1
Notably, this language did not appear in the bill’s original form. Senate Bill 576,
introduced on February 15, 2006, did not include this language; it was specifically added
in a Committee Substitute adopted by the Senate Judiciary Committee on February 23,
2006.
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compounding[.]” W. Va. Code § 56-6-31(a). 2 The 2018 version was then addressed in
Tri-State Petroleum Corp. v. Coyne, 240 W. Va. 542, 814 S.E.2d 205 (2018), but only
insofar as the statute applied to tort actions. 3 Once again, however, in pure dicta, the Court
dismissed the 2018 revisions to the statute as “stylistic” in a footnote, without any analysis.
Id. at 566 n.84, 814 S.E.2d at 229 n.84. 4
Despite the new opportunity presented in this case to finally evaluate the
statute’s evolution and ascribe the proper and obvious significance to the Legislature’s
2006 addition of the phrase “whether in an action sounding in tort, contract or otherwise,”
the majority once again evades that analysis. Instead, it dances around the Court’s previous
reliance upon the “otherwise provided by law” language, uses the most recent clean-up of
the statute from a grammatical and organizational standpoint as a smoke screen, and then
simply concludes that the more specific statute applies.
2
Although the Millers maintain that it is this most recent 2018 amendment to West
Virginia Code § 56-6-31 which creates separation between their case and Thompson, it was
actually the first amendment in 2006 that made the most significant revision to the statute’s
scope making Thompson’s holding inapplicable thereafter.
3
“[T]he circuit court characterized this matter as one sounding primarily in tort. . .
. [W]e accept that premise and so turn our attention to West Virginia Code § 56-6-31, which
controls awards of prejudgment interest in tort actions.” 240 W. Va. at 566, 814 S.E.2d at
229.
4
In fairness to the Tri-State Petroleum Court, however, the revision to the statute
did not in fact impact its decision since West Virginia Code § 56-6-31 had always been
read as applicable to tort actions.
4
The 2018 amendment broke subsection (a) of the statute into smaller, more
readable subsections and inserted the caveat that the interest described therein is to be
“simple, not compounding.” The pertinent portions of the statute are otherwise, in
substance, entirely the same as the 2006 version: 5
2006
(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 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 special or liquidated damages shall
bear interest at the rate in effect for the calendar year in which
the right to bring the same shall have accrued, as determined
by the court and that established rate shall remain constant
from that date until the date of the judgment or decree,
notwithstanding changes in the federal reserve district discount
rate in effect in subsequent years prior to the date of the
judgment or decree. Special damages includes [sic] . . . .
(emphasis added).
2018
(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
5
The amendment’s most significant alterations were to the calculation of interest
rates, none of which are germane here.
5
the amount of any settlements. Any such amounts of special or
liquidated damages shall bear simple, not compounding,
interest. Special damages include . . . .
(emphasis added). Despite being almost entirely identical in language—other than
revisions necessary for grammatical purposes—the majority confers great significance
onto the Legislature’s simple division of an unwieldy paragraph for organizational and
readability purposes. In analyzing these simple changes, the majority shows its hand.
The majority notes that in the most recent reorganization of the statute, the
“otherwise provided by law” language is now separated from the language regarding the
award of prejudgment interest in different subparagraphs. It then reasons that, as a result,
the “otherwise provided by law” language now pertains only to the provision for simple
rather than compounding interest. Importantly, had the majority stopped there, this reading
would require the majority to conclude that the award of prejudgment interest is no longer
subject to the “otherwise provided by law” exemption created in Thompson for contract
cases and would therefore apply to this case. Undoubtedly sensing the tension this creates
with its result, the majority pivots and suddenly ascribes great significance to the
“sounding in tort, contract, or otherwise” language and notes that such language is also
now appended only to the subparagraph regarding “simple, not compounding” interest,
implying that it therefore has no effect on the award of prejudgment interest as described
in subsection (b).
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Finding itself now squarely at odds with the path taken in Thompson and the
significance it ascribed to the “otherwise provided by law” language, the majority makes
its greatest leap and decides that because West Virginia Code § 56-6-27 is more specific,
canons of statutory construction mandate that “the specific statute governs.” However, the
rule of statutory construction requiring “a specific statute be given precedence over a
general statute relating to the same subject matter where the two cannot be reconciled” is
inapplicable here because both statutes speak to the same subject matter. Syl. Pt. 1, UMWA
by Trumka v. Kingdon, 174 W. Va. 330, 325 S.E.2d 120 (1984). While West Virginia
Code § 56-6-27 is clearly applicable to “any action founded on contract,” likewise, with
the inclusion of the language “whether in an action sounding in tort, contract or otherwise,”
West Virginia Code § 56-6-31 is also specifically applicable to contract actions. 6
In its final salvo, the majority contends that the failure to repeal West
Virginia Code § 56-6-27 is further evidence of its continued applicability to contract
actions. However, to read section 31 as somehow not applying to contract cases makes the
language within that very statute—“whether in an action sounding in . . . contract”—
meaningless. “It is always presumed that the legislature will not enact a meaningless or
useless statute.” Syl. Pt. 4, State ex rel. Hardesty v. Aracoma - Chief Logan No. 4523,
6
While the majority is under no obligation to justify the rationale utilized by prior
courts, principles of stare decisis would suggest that the majority, at a minimum, should
articulate why the “specific versus general” canon of statutory construction could not have
just as easily resolved this issue when it first arose in Thompson nearly forty years ago, at
a time when the statute at issue did not even contain the “whether . . . sounding in . . .
contract” language.
7
Veterans of Foreign Wars of U.S., Inc., 147 W. Va. 645, 129 S.E.2d 921 (1963). Further,
it is well-established that “courts are not to eliminate through judicial interpretation words
[in a statute] that were purposely included[.]” Syl. Pt. 11, in part, Brooke B. v. Ray, 230
W.Va. 355, 738 S.E.2d 21 (2013); In re R. S., ___ W. Va. ___, ___, 855 S.E.2d 355, 364
(W. Va. 2021) (“Our rules of statutory construction do not permit us to disregard a statute
without legislative direction to do so.”).
Perhaps more to the point, the majority selectively chooses which canons of
statutory construction apply, ignoring others which would command a different result. In
particular, West Virginia Code § 56-6-27 was first enacted in 1868 and most recently
amended nearly one hundred years ago in 1923. This Court has long held that “[w]hen
faced with two conflicting enactments, this Court and courts generally follow the black-
letter principle that ‘effect should always be given to the latest . . . expression of the
legislative will[.]’” Wiley v. Toppings, 210 W. Va. 173, 175, 556 S.E.2d 818, 820 (2001)
(quoting Joseph Speidel Grocery Co. v. Warder, 56 W.Va. 602, 608, 49 S.E. 534, 536
(1904)) (footnote omitted). The Legislature’s most recent expression of its will
unambiguously states that prejudgment interest is to be awarded by the court, “whether in
an action sounding in tort, contract, or otherwise,” making both the circuit court and
majority’s conclusion that only the jury may make such award in contract cases erroneous.
Accordingly, I respectfully dissent and would reverse and remand to the circuit court for a
calculation and award of prejudgment interest on the Millers’ special damages.
8
Turning now to WesBanco’s appeal, I concur in the majority’s analysis of
WesBanco’s challenges to the liability verdict against it and would similarly affirm on
those grounds. However, I disagree with the majority’s conclusion that the damages
verdict is against the “clear weight” of the evidence warranting a retrial and therefore
dissent as to that aspect of WesBanco’s appeal.
Under the guiding standard of review, this Court is obliged to view the
evidence, conflicts in the evidence, and the inferences to be drawn from the evidence all in
the Millers’ favor:
In 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). In direct contradiction
to these requirements, the majority credits WesBanco’s characterization of the evidence,
deeming the jury’s damages award too nebulous to stand and on that ground alone, remands
for a new trial on damages.
Complaining that the jury’s verdict was based in part on a spreadsheet of
expenses incurred in the Millers’ completion of their home that was “very general,” “not
clear,” and “appears” to include some unrelated damages, the majority concludes that “to
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the extent” the verdict reflects these damages it is against the weight of the evidence. These
characterizations of the evidence and verdict alone demonstrate that the majority has failed
to afford the Millers all of the presumptions to which they are entitled on appeal. Moreover,
the majority fails to mention that WesBanco made no objection to the admission of the
spreadsheet into evidence. Further, WesBanco’s counsel spent nearly sixty pages of
testimony cross-examining the Millers on the allegedly unrelated damages yet made barely
a mention of the spreadsheet and damages in closing. Even before this Court, WesBanco
fails to articulate with any specificity the line items in the spreadsheet which it contends it
established as unrecoverable. 7 The Court is therefore obliged to conclude that the jury
7
Further, Wesbanco apparently neither filed a motion in limine to limit introduction
of any of these specific line items of expenses, as would be expected, nor did it attempt
during trial to prohibit the jury from considering any of these specific items. While it
moved for directed verdict on the basis that Millers had failed in their burden of proof on
the whole as to their damages, WesBanco made no effort to preclude the jury from
considering any particular expenses. During closing, counsel merely referred the jury to
the spreadsheet and stated “when you get back into the jury room you look at her
compilation of damages . . . and it’s filled with things that Residential Creations was not
required to do.” Leaving the jury to sort through the testimony and spreadsheet and decide
for themselves which items were unrelated, counsel continued:
[T]he Millers can’t tell you with any specificity . . . whether
and to what extent we paid for work that wasn’t done. It’s not
in there. Nowhere in the entire case. You’ll take back with
you all of the exhibits. You’ll remember all of the testimony.
And nobody ever said how much we paid Residential Creations
for work that wasn’t done. The reason is they can’t, [is]
because we only paid for work that was done.
Similarly, during the hearing on its motion for a new trial, WesBanco conceded it made no
effort to separate items it believed it successfully challenged as being unrelated, stating
(continued . . .)
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considered both the damages submitted and WesBanco’s attempts to undermine the
relatedness of those damages and resolved those disputes in the Millers’ favor.
Further, the majority bemoans the fact that the jury’s verdict was
“unallocated” between the two types of damages incurred—for work improperly paid by
WesBanco but not completed and the mechanic’s lien for which it failed to obtain a waiver.
Yet the majority fails to note that the verdict form utilized was proposed by WesBanco and
includes only a single line asking the jury to state “[w]hat amount of damages [] the Millers
incur[red] as a direct and proximate result of WesBanco’s breach of the loan agreement[.]”
WesBanco further made no objection to the verdict when it was returned: “Absent
extenuating circumstances, the failure to timely object to a defect or irregularity in the
verdict form when the jury returns the verdict and prior to the jury’s discharge, constitutes
a waiver of the defect or irregularity in the verdict form.” Syl. Pt. 2, Combs v. Hahn, 205
W. Va. 102, 516 S.E.2d 506 (1999). Perhaps most importantly, neither party appears to
dispute that the jury’s $404,500 verdict is quite plainly comprised of the $287,500 in
damages for unfinished work set forth on the Millers’ spreadsheet and the $117,000
“There are lots of examples of what would have been paid for in these last two draws that
were never paid. Again, it’s not our duty to ferret out these things from that schedule.”
WesBanco—both below and before this Court—treats the damages as entirely
unrecoverable and therefore gambles that “someone else” will sort through the convoluted
and non-specific testimony about the relatedness of the individual expenses claimed by the
Millers. The majority—as did the jury—declines to do so, but rather than making
WesBanco suffer the consequences of its gamble, gives it a second opportunity to focus its
defense on damages.
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representing the unpaid mechanic’s lien. Therefore, it is unclear why the majority is so
concerned with allocating this amount.
To reverse the jury’s damages award—an award sustained by the trial judge
upon consideration of post-trial motions—requires this Court to ignore established caselaw
and the deference to which the jury verdict is entitled. In addition, such a reversal imposes
an evidentiary burden that is greater than our law requires. To make a claim for breach of
contract damages, the law requires only that “[t]he evidence . . . afford data, facts and
circumstances, reasonably certain, from which the jury may find the actual loss.”
Carpenter v. Hyman, 67 W. Va. 4, 8, 66 S.E. 1078, 1080 (1910). Further, “‘the law does
not require that the plaintiff must prove his damages or items of damage to the exactitude
of a mathematical calculation; it is only necessary that the damages be proven to a
reasonable certainty[.]’” Mollohan v. Black Rock Contracting, Inc., 160 W. Va. 446, 452–
53, 235 S.E.2d 813, 816 (1977) (quoting Belcher v. King, 160 W. Va. 562, 572, 123 S.E.2d
398, 402 (1924)); Ripley v. C. I. Whitten Transfer Co., 135 W. Va. 419, 422, 63 S.E.2d
626, 628 (1951) (“[I]f there is a sufficient basis furnished by the evidence, mathematical
precision and absolute certainty are not required. But the jury may be authorized from
consideration of all the facts and circumstances of a case tending to establish damages in
the amount thereof to make a reasonable estimate of damages from direct evidence and
upon inferences founded upon evidence.”).
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Therefore, while I concur in the majority’s rejection of WesBanco’s appeal
of the jury’s liability verdict, I respectfully dissent to its reversal and remand for a new trial
on damages. However, upon retrial of damages, clearly the Millers should be permitted to
request prejudgment interest from the jury, consistent with the majority’s new syllabus
point as articulated herein.
13