*1
Below, Appellee,
KEN LOWE MANAGEMENT
COMPANY, Defendant
Below, Appellant.
No. 26431. Appeals of
Supreme Court of Virginia. 3, 1999.
Submitted Nov.
Decided 1999. Dec. Opinion
Dissenting of Justice
Maynard Dec.
I. FACTS
parcel
Appellant
The
owned a
of real es-
County,
Virginia.
tate in Grant
West
On
29, 1996,
February
Appellant
entered
into a contract with the
for the
remodeling
Security
of the Social
Adminis-
lump
tration
for
sum amount of
$80,195.3
to
Pursuant
the terms of the con-
tract,
perform
was to
all work
“according
specifications
to
outlined in con-
Security
tract documentation for Social
Ad-
13,
Building[
ministration
November
][d]ated
1995[,]4
meet or exceed all
[a]nd
requirements
tions and
in
as
U.S.
Government
lease No.
03B 60062.”5
GS
Snowden, Esquire, Martinsburg,
R.
Susan
performed
the work was to be
in
Virginia, Attorney
Appellant.
for
West
layout
accordance with the
... shown
“[f]loor
27, 1996[,]”
February
on
dated
McDaniel,
Petersburg,
Esquire,
Duke A.
SK-2/96
which was attached to the contract. There
Virginia, Attorney
Appellee.
for
requirements
were no
in
contract
orders had to be
PER CURIAM:
writing.
upon
This ease is before the
Court
Appellee’s
In the
trial
numbered
exhibit
Manage-
appeal
of the
18,
supplemental
agree-
the lease and
lease
ment
from the November
order
Appellant
ment from GSA to the
was not
County,
of the Circuit
of Grant
where-
Court
May
until
Appellant
received
1996.
trial,1
following
a bench
was
Appellee maintained
the lease re-
Appellee,
in favor of the
En-
entered
signed
apparently
to
was not
or com-
ferred
terprises,
in the amount of
project
pleted until after work on the
was
July
Appellant
interest from
1996. The
Thus,
completed.
Appellee had
no
1) by
argues that
the lower court erred:
agree-
knowledge or benefit of the lease
failing
apply
and construe the contract
ment.6
Appellee,
the maker
2)
4,1996,
tract;
April
Appellee began
work-
allowing the
recover
On
project
ing
budding
in accordance with the
for additional work done on the
on
3)
orders;
February
absence of
SK-2/96
layout.7
Francis
making findings of fact that were inaccurate
Also on
McGafferty
Adminis-
adopt
material facts intro-
of the General Services
4)
(“GSA”)
trial;2
Lowe, the
allowing
inter-
tration
wrote to Ken
duced
president
Appellant company. In that
est on the
credit due to the
letter,
judgment.
McGafferty
“[u]pon
prior
granting
the reduction
Mr.
stated
designated
original
4.
dated November
1. While the entire
record was
The contract documentation
13, 1995, was a
or offer between the
purposes
appeal,
solicitation
of this
Appellant and General Services Administration.
transcript
proceedings
of the bench trial
was
part of the record.
yet entered into a lease
5. The
had not
Security
for the
with the Social
Administration
assignments
2.
are
The second and third
error
space
remodeled
at the time the contract
largely
Consequently,
the same.
we address
made.
these issues as one.
superseded
agreement
so-
6.
actual lease
licitation or offer dated November
1995.
obligations
had no contractual
3. The
with the General Services Administration
June
7. The work was finished on or about
("GSA”)
Security
or the Social
Administration.
February
reading
[dated
nature to the
contract were
necessary,
all work was to be done
I noticed that
order executed
all
1996]
space layout
with the attached
signed
accordance
parties who
construction
etc.).
walls, restrooms,
I would
(existing
contract was obtained. Mr. Dove further
proceeding in this manner
you
caution
*3
that
is antici-
testified
when additional work
you
copy
a
of our final
until I furnish
with
pated, work authorizations
modifica-
and/or
letter,
floorplan.” According to the
the floor
in writing.
tions should be
Mr. Dove also
plan
remodeling
that was to be used
the
by
performed
Appel-
that work
the
testified
April
was to
“no later than
be
lee was not in conformance with the con-
According
1996.”
the facsimile information
many
tract.8
Mr.
Dove stated
top
April
letter
found
recovery
Appellee sought
of the items the
for
McGafferty
Appellant,
Mr.
to the
the
from
original
should have been
in the
included
Appellee
letter was not forwarded to the
specifications
lump
contract
for the
sum
28,1996.
August
until
contrast,
In
Appellee
amount.
the
offered
plans
The new floor
with new
evidence that the additional
were re-
items
prepared by
Bentley
parol
tions that had been
Jim
a
the
coverable because
modification to
Security
contract,
of the Social
Administration and
agreed upon by
parties,
the
had
April
dated
were received
the
end,
Appellee
occurred. To that
the
offered
April
after
1996. The new floor
Bachtel,
testimony
regis-
the
of Jeanine S.
a
materially
plans
specification
were
dif-
engineer
tered
for construction and renova-
plans. The
ferent
the old
evidence was
Frostburg
University,
tion at
who
State
testi-
plans
uncontradicted that when the new floor
customary
industry
fied that it was
in the
received,
were
contacted the
the
to receive written
if
orders
the con-
Appellant.
Subsequently,
Appellee’s
provide
tract did not
for the same.
Junkins,
agents, Wardney
and Dick
Cosner
The circuit court found that “CMC built
separate
met with
on two
occa-
Ken Lowe
(accord-
building according
plans
to GSA
meetings,
During
sions.
the two
Ken Lowe
contract^,]
ing
building
to
[t]hat
verbally
Appellee’s agents
to
instructed
specifications_”
now meets GSA
Fur-
proceed
plans
speci-
under the new floor
ther,
permit
the lower court found that “to
court found that
fications.
trial
“Ward-
Defendant,
Ken Lowe
Com-
GSA,
ney Cosner was told that
Ken Lowe
$40,000
$160,000
pany, to receive
to
worth of
Management,
Security
or Social
would be
$80,195, plus
renovations for
additional cost
responsible
difference in
for the
the new
$3,800
options
aof
rear room of
and a roof
plan
plan].”
from the old
There
[floor
$3,500,
option
unjust
would be
enrich-
twenty-eight phone
a total
also were
mes-
ment.”
sages
from the
to the
facsimiles
GSA and the Social Securi-
and/or
ty Administration.
II.
ISSUES
1,1996,
facsimile,
July
Appellee,
On
via
A.
ten-page
sent to the
a
document
totaling
which included an invoice
for
The first issue is whether the lower
work
additional
not covered
by failing
court erred
the con
construe
contract.
Appellee,
tract
its drafter. The
Appellant argues
testimony
that because the contract
introduced the
Dove,
parties
registered professional engi-
lump
Edward
a
entered into between the
was a
Associates, “in
neer
Dove &
who testi-
sum
error
industry
permission
fied
the standard of the
to obtain
from the owner
changes
project
additional
prior
modifications or
and real estate
to com-
McCafferty, contracting
Appellant, proves
8. Francis
officer with
that the
meet
GSA,
Appel-
specifications
corroborated the
GSA
and that GSAwas due a cred-
performed
lee's work was not
in accordance with
it of
as
were
to be included
there
items
According
price
the contract.
letter
which were not
McCafferty
dated
from Mr.
to the
installed.
mencing
completely
[sic]
additional work was done
its
curred. The contract is
silent as
and,
such,
Manage-
any requirement
as
own risk
that a
Company
obligation
pay
ment
had no
for
terms of the contract need
in writing.
to be
specifically
items which it did not
authorize.”
previously
This Court has
held that
contrast,
Appellee argues
“
may
‘a written contract
be modified or its
contract between the
did not contain
subsequent
terms altered
valid oral
provision
written
orders. Con-
agreement,
may
prop
and this
be
shown
sequently,
correctly
the circuit court
decided
Syllabus
er
point
part,]
case....’
[in
modification to
Kessler,
Jones v.
98 W.Va.
was entitled
circuit court did not award the
by
express
without the
done
judgment,
merely gave the
but
Appellant.9
authority
permission of the
or
gross
verdict.
credit
Thus,
finding
Appellant argues that the
unjust
by the lower court of
enrichment is
generally
involving
review decisions
We
contrary
Appel-
of
case. The
to the facts
prejudgment
under an abuse of dis-
interest
lee, however, argues
findings
that the
of fact
Kirk,
cretion
v.
195
standard. See Gribben
by
should not be re-
(1995).
made
the lower court
466 S.E.2d
159
W.Va.
plainly wrong.
appeal
on
(1997)
versed
unless
Virginia
pro-
§
Code
56-6-31
West
vides,
pertinent part,
“[ejxcept
where
stated,
findings
previously
factual
made
As
law,
judg-
provided by
every
it is otherwise
by
given great
trial are
deference
this
payment money
ment or decree for the
of
they
unless
Court and will not be overturned
by any
entered
court of this State shall bear
clearly
Fraternal Order
are
erroneous. See
”
from the date thereof
....
Id.
interest
Police,
temporary assignment. a contract that resulted the addi- made to appellee’s the cost of the tion of participate. did not SCOTT Justice dispute no that no written work. There is Justice, MAYNARD, dissenting: concerning executed orders were *6 Therefore, the trial 1999) these modifications. (Filed Dec. con- looked at the written court should have I I because do believe dissent Instead, judged accordingly. tract and Enterprises, should be appellee, CMC enti- involving sophisticated commercial ease for additional work done allowed to recover grandma-itinerant treated like a ties was remodeling project absent written appellee blacktop company case wherein the appellant, approved change orders testify verbal permitted to about Company. This is not changes made the contract. sophisticated busi- concerns two This case business, It allows only it is law. bad bad , govern which con- The rules ness entities. make unilateral modifications party one apply here. For transactions do not sumer a contract. the written terms of violation of with an example, grandma contracts conclusion, majority’s decision is have her blacktop company to itinerant Management Company. unfair to Ken dispute driveway paved, and there is Also, message to contrac- a terrible it sends agreement, of the cerning the terms Inc. I would Enterprises, tors like CMC will be con- subsequent agreement oral of a and enforce the below reverse determining proper resolution sidered According- as written. of the contract terms usually con- the matter. Such evidence ly, I dissent. parties, sists party is forced to choose which trier of fact is Although the admission
the most believable. perfect way to not a parol evidence is provisions of a the truth when the
discern issue, recognition of the it is a
contract are at regularly engage who do not
fact that credit, terclaim, plus inter- seeking as well as in dam- Appellant was 10. misrepresentation est and costs. ages in its coun- fraud and