CMC Enterprise, Inc. v. Ken Lowe Management Co.

525 S.E.2d 295, 206 W. Va. 414
CourtWest Virginia Supreme Court
DecidedDecember 16, 1999
Docket26431
StatusPublished
Cited by10 cases

This text of 525 S.E.2d 295 (CMC Enterprise, Inc. v. Ken Lowe Management Co.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CMC Enterprise, Inc. v. Ken Lowe Management Co., 525 S.E.2d 295, 206 W. Va. 414 (W. Va. 1999).

Opinions

PER CURIAM:

This ease is before the Court upon the appeal of the Appellant, Ken Lowe Management Co., from the November 9, 1998, order of the Circuit Court of Grant County, wherein following a bench trial,1 judgment was entered in favor of the Appellee, CMC Enterprises, Inc., in the amount of $42,973 with interest from July 1, 1996. The Appellant argues that the lower court erred: 1) by failing to apply and construe the contract against the Appellee, the maker of the contract; 2) in allowing the Appellee to recover for additional work done on the project in the absence of any written change orders; 3) in making findings of fact that were inaccurate and in failing to adopt material facts introduced at trial;2 and 4) by not allowing interest on the $9,027 credit due to the Appellant prior to granting the reduction in judgment.

I. FACTS

The Appellant owned a parcel of real estate in Grant County, West Virginia. On February 29, 1996, the Appellant entered into a contract with the Appellee for the remodeling of the Social Security Administration building for a lump sum amount of $80,195.3 Pursuant to the terms of the contract, the Appellee was to perform all work “according to specifications outlined in contract documentation for Social Security Administration Building[ ][d]ated November 13, 1995[,]4 [a]nd meet or exceed all specifications and requirements as provided in U.S. Government lease No. GS 03B 60062.”5 Further, the work was to be performed in accordance with the “[f]loor layout ... shown on SK-2/96 dated February 27, 1996[,]” which was attached to the contract. There were no provisions or requirements in the contract that change orders had to be in writing.

In the Appellee’s trial exhibit numbered 18, the lease and supplemental lease agreement from GSA to the Appellant was not received by the Appellant until May 2, 1996. The Appellee maintained that the lease referred to apparently was not signed or completed until after work on the project was completed. Thus, the Appellee had no knowledge or benefit of the lease agreement.6

On April 4,1996, the Appellee began working on the budding in accordance with the February 29, 1996, contract and the SK-2/96 floor layout.7 Also on April 4, 1996, Francis McGafferty of the General Services Administration (“GSA”) wrote to Ken Lowe, the president of the Appellant company. In that letter, Mr. McGafferty stated that “[u]pon [416]*416reading the contract [dated February 29, 1996] I noticed that all work was to be done in accordance with the attached space layout (existing walls, restrooms, etc.). I would caution you from proceeding in this manner until I furnish you with a copy of our final floorplan.” According to the letter, the floor plan that was to be used in the remodeling was to be provided “no later than April 17, 1996.” According the facsimile information found on the top of the April 4, 1996, letter from Mr. McGafferty to the Appellant, the letter was not forwarded to the Appellee until August 28,1996.

The new floor plans with new specifications that had been prepared by Jim Bentley of the Social Security Administration and dated April 10, 1996, were received by the Appellee after April 13, 1996. The new floor plans and specification were materially different from the old plans. The evidence was uncontradicted that when the new floor plans were received, the Appellee contacted the Appellant. Subsequently, the Appellee’s agents, Wardney Cosner and Dick Junkins, met with Ken Lowe on two separate occasions. During the two meetings, Ken Lowe verbally instructed the Appellee’s agents to proceed under the new floor plans and specifications. The trial court found that “Ward-ney Cosner was told that GSA, Ken Lowe Management, or Social Security would be responsible for the difference in the new floor plan from the old [floor plan].” There also were a total of twenty-eight phone messages or facsimiles from the Appellee to the Appellant and/or GSA and the Social Security Administration.

On July 1,1996, the Appellee, via facsimile, sent to the Appellant a ten-page document which included an invoice totaling $73,762 for additional work not covered by the original contract.

The Appellant introduced the testimony of Edward Dove, a registered professional engineer with Dove & Associates, Inc., who testified that the standard of the industry was when any additional modifications or changes of any nature to the original contract were necessary, a change order executed by all parties who signed the original construction contract was obtained. Mr. Dove further testified that when additional work is anticipated, work authorizations and/or modifications should be in writing. Mr. Dove also testified that work performed by the Appel-lee was not in conformance with the contract.8 Further, Mr. Dove stated that many of the items the Appellee sought recovery for should have been included in the original contract specifications for the lump sum amount. In contrast, the Appellee offered evidence that the additional items were recoverable because a parol modification to the contract, agreed upon by the parties, had occurred. To that end, the Appellee offered the testimony of Jeanine S. Bachtel, a registered engineer for construction and renovation at Frostburg State University, who testified that it was customary in the industry not to receive written change orders if the contract did not provide for the same.

The circuit court found that “CMC built the building according to GSA plans (according to the contract^,] and [t]hat the building now meets GSA specifications_” Further, the lower court found that “to permit the Defendant, Ken Lowe Management Company, to receive $40,000 to $160,000 worth of renovations for $80,195, plus additional cost options of a rear room of $3,800 and a roof option of $3,500, would be unjust enrichment.”

II. ISSUES

A.

The first issue is whether the lower court erred by failing to construe the contract against the Appellee, its drafter. The Appellant argues that because the contract entered into between the parties was a lump sum contract any error by the Appellee “in failing to obtain permission from the owner of the project and real estate prior to com[417]*417mencing additional work was done in [sic] its own risk and, as such, Ken Lowe Management Company had no obligation to pay for items which it did not specifically authorize.” In contrast, the Appellee argues that the contract between the parties did not contain a provision for written change orders. Consequently, the circuit court correctly decided that a parol modification to the written contract occurred.

We use the following standard of review in resolving the assigned error:

when a trial court’s answers rest not on plain meaning [of the contract] but on differential findings by a trier of fact, derived from extrinsic evidence as to the parties’ intent with regard to an uncertain contractual provision, appellate review proceeds under the ‘clearly erroneous’ standard. The same standard pertains whenever a trial court decides factual matters that are essential to ascertaining the parties’ rights in a particular situation (though not dependent on the meaning of the contractual terms per se).

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CMC Enterprise, Inc. v. Ken Lowe Management Co.
525 S.E.2d 295 (West Virginia Supreme Court, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
525 S.E.2d 295, 206 W. Va. 414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cmc-enterprise-inc-v-ken-lowe-management-co-wva-1999.