                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Marco Concrete Lifting, Inc.,
Defendant Below, Petitioner                                                          FILED
                                                                                  April 10, 2017
vs) No. 16-0486 (Cabell County 15-CAP-15)                                         RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
John P. Smith,

Plaintiff Below, Respondent



                              MEMORANDUM DECISION
        Petitioner Marco Concrete Lifting, Inc., by counsel Robert H. Sweeney Jr., appeals the
Circuit Court of Cabell County’s April 7, 2016, order upholding the magistrate court’s decision
in respondent’s favor. Pro se respondent John P. Smith filed a response. Petitioner filed a reply.
On appeal, petitioner argues that the circuit court erred in upholding the magistrate court’s ruling
because it did not breach the subject contract by failing to provide repairs under the warranty.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        The parties entered into a contract in October of 2009 whereby petitioner was hired to
stabilize part of respondent’s home, including an exterior garage wall. According to the contract,
petitioner was to achieve stabilization of this wall through the installation of five anchors for a
price of $8,000. It is undisputed that the contract used the term “stabilize” or “stabilization” in
three separate instances, including the express statement that “[t]he primary objective of Marco
Concrete Lifting is to stabilize the foundation.” Furthermore, at no point in the contract did the
parties indicate that the stabilization agreed upon would protect against vertical movement, as
opposed to lateral movement. The contract additionally contained a ten-year warranty.
Respondent paid $7,800 of the $8,000 contract price, but withheld the remaining $200 due to
increased water and electric bills received during the construction period. According to
respondent’s testimony, he spoke with one of petitioner’s employees about withholding this
money and the employee approved the same. Almost two years later, respondent still
experienced problems with cracks in the wall and floor of his garage, among other problems.
According to testimony below, the issues with petitioner’s garage stemmed from lateral
movement of the foundation, as opposed to the vertical movement observed when the parties
signed the contract in 2009. However, the 2009 contract, drafted by petitioner, contained no
distinction between vertical and lateral movement. Respondent contacted petitioner and


                                                     1


requested additional work to correct these issues. Petitioner declined to perform any additional
work, and respondent contracted with another entity to perform the necessary repairs.

        Thereafter, respondent filed a complaint in magistrate court to recover the damages
incurred by hiring another party to fix continued issues with movement in his garage. The
magistrate court awarded respondent $5,000 on October 6, 2015. Thereafter, petitioner appealed
to the circuit court, which held a bench trial on March 2, 2016. Ultimately, by order entered on
April 7, 2016, the circuit court upheld the magistrate court’s decision. It is from this order that
petitioner appeals.

        We have previously held that

              “[i]n reviewing challenges to the findings and conclusions of the circuit
       court made after a bench trial, a two-pronged deferential standard of review is
       applied. The final order and the ultimate disposition are reviewed under an abuse
       of discretion standard, and the circuit court’s underlying factual findings are
       reviewed under a clearly erroneous standard. Questions of law are subject to a de
       novo review.” Syl. pt. 1, Public Citizen, Inc. v. First National Bank in Fairmont,
       198 W.Va. 329, 480 S.E.2d 538 (1996).

Syl. Pt. 1, Beverly v. Thompson, 229 W.Va. 684, 735 S.E.2d 559 (2012). Upon our review, we
find no error below.

        On appeal to this Court, petitioner argues that the circuit court erred in ruling in
respondent’s favor because the contract was clear and unambiguous as to the conditions being
corrected and the warranty did not apply due to respondent’s failure to pay the full contract price.
We do not agree. The record in this matter is clear that, in 2009, the parties contracted to correct
issues with petitioner’s garage by stabilizing the foundation and wall against movement.
Specifically, the contract indicated that petitioner would “[i]install (5) Magnum steel helicals
driven to bedrock or supporting strata to stabilize.” (emphasis added). As the circuit court
correctly found, the contract makes no mention of vertical or lateral movement in the garage.
Moreover, as the circuit court correctly found, petitioner’s work did not correct the problems
with respondent’s garage, as evidenced by continued issues with the foundation and wall in the
garage that required respondent to hire a third party to correct the problems.

       We have held 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.” Syllabus
       Point 1, Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128
       S.E.2d 626 (1962).

Syl. Pt. 3, Estate of Tawney v. Columbia Nat. Res., L.L.C., 219 W.Va. 266, 633 S.E.2d 22
(2006). Upon our review, it is clear that the contract in question was unambiguous that petitioner
would take measures to stabilize respondent’s garage. Because the contract in question did not

                                                     2


specify that petitioner would stabilize the garage against vertical movement only, we find no
error in the circuit court’s ruling that the contract covered the additional lateral movement as
well. The issues that respondent continued to experience in the garage, including cracking and
movement, were clearly within the scope of the contract at issue. For these reasons, we find no
error in the circuit court finding that petitioner was required to correct these issues under the
specific terms of the contract.

        Finally, we find no error in the circuit court’s finding that the warranty at issue required
petitioner to correct these issues. On appeal, petitioner argues that respondent’s failure to pay the
outstanding $200 due under the contract voided the warranty. We do not agree. Petitioner is
correct that the contract contained the following language: “[i]f payment to [petitioner] is not
received as and when required by this contract, all guarantees and warranties will be void.”
However, the circuit court specifically found that respondent provided testimony regarding an
agreement to forego the additional $200 payment due to respondent’s significantly increased
water and electric bills during the period petitioner performed the work under the contract.
According to respondent, he spoke with one of petitioner’s employees, Andy Garrett, who
approved respondent withholding the additional $200. Respondent offered testimony from its
president, Ross Kirk, who stated that Mr. Garrett did not have the authority to accept this non­
payment. However, evidence established that Mr. Garrett previously accepted petitioner’s checks
for payment on two occasions. Accordingly, the circuit court found that Mr. Garrett “at the least
had apparent authority to make this representation and [respondent] had the right to rely on it.”
We agree.

       In addressing modifications to contracts, we have held as follows:

               “The burden of proving an oral modification of a written contract is on the
       party seeking to establish such modification, and such party must demonstrate by
       clear and positive evidence that the minds of the parties definitely met on the
       alteration.” Syl. pt. 4, Bischoff v. Francesa, 133 W.Va. 474, 56 S.E.2d 865
       (1949).

Syl. Pt. 5, Troy Min. Corp. v. Itmann Coal Co., 176 W.Va. 599, 346 S.E.2d 749 (1986).
Moreover, we have previously held that

               “[o]ne who by his acts or conduct has permitted another to act apparently
       or ostensibly as his agent, to the injury of a third person who has dealt with the
       apparent or ostensible agent in good faith and in the exercise of reasonable
       prudence, is estopped to deny the agency relationship.” Syl. Pt. 1, General
       Electric Credit Corporation v. Fields, 148 W.Va. 176, 133 S.E.2d 780 (1963).

Syl. Pt. 3, Messer v. Huntington Anesthesia Group, Inc., 222 W.Va. 410, 664 S.E.2d 751 (2008).
Here, there was clearly a meeting of the minds as to the modification regarding the final $200
payment, as petitioner’s employee permitted respondent to withhold the same and indicated that
petitioner considered payment in full received. This same employee handled payment matters on
behalf of petitioner on two prior occasions during interactions with respondent, thereby
establishing his apparent authority to act as petitioner’s agent. Thereafter, petitioner never took

                                                     3


any steps to collect the remaining $200 from respondent. As such, it would be disingenuous for
petitioner to now void the warranty by relying on the nonpayment when its agent permitted
respondent to pay less than the contract price. For these reasons, we find no error in the circuit
court’s decision.

       For the foregoing reasons, the circuit court’s April 7, 2016, order granting respondents’
motion to dismiss is hereby affirmed.


                                                                                        Affirmed.

ISSUED: April 10, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




                                                    4


