*1 BUILDERS, INC., RYAN DAN Maryland Corporation,
Plaintiff-Appellant, DEVELOPMENT, RIDGE
CRYSTAL
INC., Virginia Corporation; a West Brothers, Inc., Virginia a West Lang,
Corporation; Robert an indi- S.
vidual, Defendants-Appellees, Engineers,
Hornor Brothers Third
Party Defendant-Appellee,
Bryco Pipe, Inc.; Loudoun Bore Val-
ley Concrete, Inc.; Dingess Transport,
Inc.; Foundation, Inc.; North Star
Pennsylvania Incorpo- Soil and Rock Party
rated, Third Defendants.
No. 13-2234. of Appeals,
United States Court
Fourth Circuit.
Argued: Dec.
Decided: April *2 Levicoff, Levicoff, Avrum
ARGUED: P.C., Deemer, Pittsburgh, Penn- & Silko Durst, Tiffany R. sylvania, Appellant. Pullin, Fowler, Poe, Flanagan, Brown & all 143 Crystal Ridge. lots in The PLLC,' Morgantown, Virginia, West for LPA responsibilities detailed the of both BRIEF: Appellees. parties, ON Julie A. Bren- including inspection, lot fill com- nan, Levicoff, Deemer, P.C., paction, Silko and building schedules. Pittsburgh, Pennsylvania, for Appellant. The also entered into a / number *3 Griffith, Pullin, Fowler, Nathaniel D. of other written contracts in connection Poe, PLLC, Flanagan, Morgan- Brown & development, with the including a Contract town, Virginia, Appellees Crystal West (“fill Independent with Contractor slope Ine., Brothers, Ridge Development, Lang contract”). They agreed in that contract Inc., Lang. and Robert S. Frank E. Sim- would construct a fill merman, Jr., Taylor, Chad L. Simmerman provide grading on certain lots to Office, PLLC, Law Clarksburg, West Vir- accommodate the construction of houses. ginia, Appellee Engi- Hornor Brothers Lang completed grading work and was neers. paid in Ryan. full Dan MOTZ, GREGORY, WYNN, Before and 2006, In Dan Ryan paid Lang for the Judges. Circuit first twelve lots in accord with the LPÁ. Ryan Dan also entered into additional con- Affirmed published opinion. Judge tracts with including second fill MOTZ majority opinion, wrote the slope contract. In Ryan pur- Judge joined. which Judge WYNN lots, chased another five and contin- separate GREGORY wrote a opinion ued to work on the infrastructure of the concurring in part dissenting in part. Crystal Ridge Development. MOTZ, DIANA GRIBBON Circuit In March appeared cracks in the Judge: basement slab and foundation walls of a case, After a bench trial in diversity this partially constructed house on one of the the district court ordered Robert Lang first lots that Dan Ryan had purchased. business, and his construction Lang Broth- An engineering firm engaged by ers, (collectively Inc. “Lang”) to pay concluded that house, stabilization of that (“Dan Ryan Builders, Inc. Ryan”) limited as well as of another house displaying damages for breach of contract. Dan cracks, similar required remediation. Ryan appeals, seeking additional damages. problems These and their associated costs We affirm. exacerbated existing tensions between Dan Lang, ultimately leading to a I. (the term) parties’ “divorce” between the briefly facts, We summarize the relevant two. The memorialized the divorce which are undisputed.1 in the “First Amendment to Lot Purchase (the Amendment). seventy Agreement” owned acres of land in Under the Virginia, West Amendment, on which he sought to Dan Ryan agreed build pur- a housing development, Crystal Ridge from Lang De- chase the remaining thirty- velopment. In pursuant to a Lot Crystal three lots in Ridge, and the par- Agreement (“LPA”), Purchase Lang subdi- ties’ development responsibilities ap- were vided the land and contracted to sell Dan portioned differently.
1. Dan
Appellant's
concedes that "[t]he district
Similarly, Lang
Br. 52.
does not
findings
court's
beyond reproach.”
of fact are
challenge
any way.
them in
found that
had failed to
carry
behind
December
proof
began
respect
cracks
its burden
lot that had first exhibited
nearby highway.
toward a
asserted breaches of the LPA and the
sliding downhill
Amendment, i.e.,
study
relating
those
to an en-
geotechnical
A
concluded
easement, a
composi-
manage-
to its
trance
failed due
natural
stormwater
had
tion,
erosion
poor
system,
ment and
control
oth-
type,
soil
construction.
related
“miscellaneous bad work.” J.A.
encountered difficulties
er
2353.3
also
manage- Accordingly, the court
further con-
Ridge’s
stormwater
denied
Crystal
damages.
development permits,
tract
The district court then
system,
ment
rejected
negligence claim.
entrance drive.
The court reasoned that this claim failed
filed this
December
Virginia’s
“gist
under West
the action”
monetary
seeking
lawsuit
*4
doctrine,
in
recovery
which bars
tort when
Ryan as-
complaint,
In its
Dan
damages.
that forms
duty
the
the basis of the assert-
Initially and
serts three causes of action.
solely
ed tort claim arises
from a contrac-
Ryan alleges negligence
Dan
principally,
relationship.
Ryan timely
tual
Dan
noted
by
in
connection with construction
appeal.
.this
Second,
Ryan alleges
slope.
Dan
that
breached several of its contrac-
judgment
following
“review a
We
tual
both
LPA and the
duties under
the
trial under
standard
bench
a mixed
The third
of action
Amendment.
cause
findings
review—factual
be reversed
alleges
by
misrepresentation
fraudulent
clearly erroneous,
only if
while conclusions
Lang;
claim
Ryan
construction,
abandoned this last
law, including
contract
are
at trial.
de novo.” Roanoke Cement
examined
Co.
Corp.,
Falk
Cir.
Following several
conferences
2005).
appeal,
Ryan
On
does not
submissions,
the
pretrial
and numerous
challenge the district court’s resolution of
trial.
five-day
district court held
bench
claim for breach of the LPA and the
many
con-
The court admitted
exhibits and
Rather,
Ryan appeals
Amendment.
testimony from more than a dozen
sidered
that
only the court’s determination
the
After
sub-
witnesses.
extensive
the action”
bars its tort
“gist of
doctrine
detailed,
missions,2
nine-
the court issued a
claim,
recognize
the
court’s failure
setting
findings of fact
ty-page order
forth
really
a claim
that its tort
for
law.
conclusions of
fill slope
breach of the
contracts.4
claim,
court
On the contract
the district
$175,646.25
damages
awarded Dan
II.
$77,575.-50
interest
pre-judgment
why
LPA
offers
reasons
the
for breach of the
the Amendment
two
“gist
erred in
of the
repairs
to claims
on the
district court
ac-
respect
Crystal
holding.
court
We consider each
turn.
leading
Ridge.
road
The
tion”
up
the
permitted the
to the “J.A.” refer to
Joint
court
to submit
2.The
Citations
by
appeal.
parties to this
Appendix filed
the
eighty pages
proposed findings of fact
of law.
the deadline
and conclusions
After
dismissed as
4. The district
also
moot
passed,
submissions had
these
brought
derivative
had
claims
supplemental post-
file a
moved for leave to
third-party
Hornor Broth-
defendant
The
denied
trial memorandum.
district court
Engineering for contribution.
ers
motion.
that
appeal
ruling.
that
does
ple
A.
a court’s
obli
constrains
fundamental
gation
controlling
to ascertain
A
law.
First, citing
v. United
Greenlaw
party’s
identify
applicable
failure to
States,
128 S.Ct.
U.S.
legal
certainly
rule
does not diminish a
(2008),
Moreover,
in
Inc.,
neither Greenlaw nor Airco Heating
Cooling,
211 W.Va.
(2002) (internal
in
other
case has the Court
sug
ever
S.E.2d
omitted).
gested
party
the
presentation princi
quotation marks and citation
To
(2004)
added).
(emphasis
established S.E.2d
whether
determine
doctrine,
a
“gist
the
the action”
of a tort claim Under
required
the
elements
all of
on
law,
prevail
negli
contract can
party
the district court
Virginia
under West
if
gence
only
he can demonstrate
necessarily
“gist
the
the
had to consider
legal duty
of some positive
“the breach
the
identify
doctrine and
source
action”
relationship
imposed by law because of
duty.
any asserted
from
parties,
rather than
a mere
reject
We must therefore
perform
obligation.”
omission
contract
party presentation
contention
(internal
Lockhart,
quo
at 624
567 S.E.2d
court,
the district
when
principle barred
.omitted).6
tation
marks
citation
claim,
tort
adjudicating
Virginia
a West
words, the
“action in tort
negligence
whether the elements of
considering
from
independent
arise
existence
[must]
a claim had been met.5
such
(internal quotation
of the contract.” Id.
omitted). “If
marks
citation
the ac
B.
pleading
is
without
tion
not maintainable
also
contends
contract,
gist
where the
proving
holding
court erred
district
contract,
is the breach of
action
doctrine dooms
tort
“gist of
action”
non-feasance,
either
malfeasance
Given
claim. This contention meritless.
contract,
is,
substance,
an action on the
Lang’s
on
that Dan
tort claim rests
of the plead
whatever
be the form
two
performing
con
negligence
asserted
Co.,
ing.”
Appalachian
Power
Cochran
LPA and
Amendment—
tracts —the
(1978)
246 S.E.2d
W.Va.
duty
of those
independent
and not
(internal
marks
citation
quotation
contracts,
“gist of
action” doctrine
omitted).
that claim.
does indeed bar
Only
years ago, Gaddy,
the West
two
suit, Virginia Supreme
Appeals
Court of
reiter-
negligence
prevail
“To
*6
There,
requirement.
ated
the court
prove by
preponder
must
a
this
plaintiff
the
unequivocally
plaintiff
held that a
cannot
the defendant
ance of the evidence that
if
no
complaint
in tort
does
legal duty
a
to
Stra
recover
the
plaintiff.”
owed
175,
aver-
more than include “the bare bones
Cleavenger,
216
603
tum
W.Va.
requirement
a tort claim must
third-party
6. This
5. We note that
defendant Hornor
—that
develop
"gist
Engineering
duty
did
Brothers
hornbook
rest on a non-contractual
—is
submis-
the action” doctrine
jurisdictions,
they
if
law
even
do
in most
to
See J.A. 2186-88
sions
the district court.
“gist
employ
of the action” nomenclature.
("[T]ort
a
liability cannot arise from breach of
ed.2014)(de-
Dictionary
See
Law
Black’s
duty....
principle is that if
[T]he
contractual
wrong,
fining
other than
"[a]
"tort” as
civil
duty
a
would have no
of care to
defendant
contract,
may
remedy
a
for which
breach of
plaintiff
parties have a
the fact that the
but for
obtained,
duty
... a breach of a
that
be
contract,
independent professional negli-
no
(Third)
imposes”);
law
Restatement
of Torts:
(citing
gence
be
claim
maintained.”
(Tentative
§
Draft No.
Liab.
Econ. Harm 3
for
Lockhart,
619,
other relevant
567 S.E.2d
1, 2012)
general
(explaining
rule that
cases)).
Virginia
doing,
In so
Hornor
West
liability
loss
“there
no
in tort for economic
is
(and
parties)
alerted the court
negligence
performance or
in the
caused
principle
application
this case. Ac-
and its
negotiation
par-
of a contract between the
cordingly,
hardly
is
a case
which
this
ties”).
looking
...
for
"sall[ied]
court has
forth
Greenlaw,
wrongs
right.”
U.S. at
(internal quotation marks and
First, support offers record no Rather, it did not advance such claim. appeal assertion on contract claims at when Dan raised expressly to trial claim of consented trial, pertinent expressly identified breach of the fill contracts. the source contracts formed by including, did maintains so LPA asserted breach—the fact, contested issues among fill slope contracts. Amendment —not question Defen- whether “the Furthermore, trial, proposed after in its Ryan] liable for breach dants [are] [Dan law, fact findings of and conclusions to” fill slope of contract relation paragraphs forth in numbered set But Lang’s single J.A. contracts. *8 sought for damage each awards of slope of fill reference to breach con- Amendment. of the LPA and the breach pre-trial tract in its memorandum does not Dan did not devote a numbered Ryan consent.7 This submis- constitute damage claim under the regard- any only Lang paragraph that sion demonstrates . on occasion an issue was “discussed 7. said much before See Inter where We have as case,” that alone Morgan, during [the] of Corp. 249 F.3d the course state Petroleum v. consent). banc) Cir.2001) (en by (4th (noting that did not establish trial 221 even 984 n Ryan
fill contracts. Dan did not as consent” trial slope implied unpled Accord, court find propose that the district that Trinity claim. Id. at 1040-41. slope the fill contracts. Brewing Corp., Carton Co. v. 767 Falstaff did ask (5th And Dan not the district Cir.1985); 6A see also any specific had to hold that Miller, Alan R. Wright Charles & Arthur arising slope out the fill obligations con- (3d § Federal Practice & Procedure tracts. ed.2014). sum, Ryan’s own Dan statements Dan contends that to trial consent case, about of its as as theory well of a slope breach claim under the fill con- repeated omission of the now-asserted may implied tracts from be its evidence from any breach of the contracts slope generally slope related to the failure and argument at or post-trial trial confirm from the slope admission of the two fill Lang’s what make submissions clear: But contracts themselves. evidence of the to trial of did consent claims for slope support failure was admitted breach contracts. See the claim that negligently construct- Frederick, Pinkley, City Inc. v. 191 F.3d slopes, ed it breached the fill (4th Cir.1999) (when 394, 401 party “sets Accordingly, contracts.8 the evi- out in paragraphs list numbered ... [a of] dence was to an “germane” asserted tort legal recovery,” theories its omis- present claim actually Ryan’s Dan particular sion legal theory of a from those by and cannot establish trial paragraphs against numbered militates of phantom consent contract claim. Ad- consent); by
finding of trial see also El- contracts, fill slope mission without Corcoran, more v. 913 F.2d more, cannot establish consent to trial aof Cir.1990). Accordingly, did not claim that those contracts were breached. put Lang any potential on notice of liabili- Moreover, Lang undoubtedly be ty under those contracts. prejudiced accept if we were to Moreover, cannot es on appeal oppo- contention that the Lang’s implied tablish consent demon Williams, site is true. See Withrow strating clearly that evidence at trial sup 680, 696, U.S. 113 S.Ct. 123 L.Ed.2d ported only unpled this claim. We have (1993) (holding that where the record previously explained that admission with word, thought, “reveals neither nor deed objection out of evidence related ... that could be taken as sort unpled be “an indicium of im claim, unpled consent” to trial of an plied consent” to trial of that claim. party “was manifestly prejudiced”). Stevens, McLeod 617 F.2d (4th Cir.1980). before, But if opportunities had evidence is also dur- “germane” ing, to claims expressly clarify and after trial to its contract pleadings, its admission “cannot be treated 'Lang.9 claims Yet at none these Nor does the district Slope court’s observation "[m]ention of the Fill Contract[s] conspicuously up "failed to live absent from” its contractual complaint. J.A. 2373. Thus the court was obligations” under the fill contracts es- Ryan might clear that the claims Dan have tablish that breach of those contracts was alleged actually are distinct from claims tried consent. J.A. 2375. For the court allege. did had earlier identified the LPA and the Amend- ment sole bases for all breach of con- repeatedly clarify failed to tract alleged by Ryan. claims See J.A. precise sought claims under which it relief Further,
2324-56. explained the court specific supporting and the evidence each *9 claim on breach of contract grounded Dan contend junctures did Amendment) (here, LAP and the does contracts. The fill liability, give and a claim of not rise tort at one these of the claim omission (here, fill slope never breach of the pled the amended' litigation stages in —in contracts) submissions, regarded pled will not be in the complaint, or theory actually of the unless tried consent. These of presentation inor standards, for case, only submissions— are the fair without in the or litigants allow the them and courts alike be inadvertence and so might evince adequately prepare But tri- the claim. unable to ever court consider district permits of the claim al. Parties would be forced defend repeated omission claims, trial Ryan’s Dan now-as- shadow courts conclusion: only one search, Lang breached fill would be forced to as for needle serted claim consent, haystack, unpled tried it in a causes action was not slope contracts parties’ in the purportedly hiding submis- omitted.10 simply
sions. IV. responsibility It of a trial is the. case, four messy spanning This is or in- through ambiguously court to wade trial sub- pages thousands of years and pursuit in correctly allegations labeled pro- During the course of such missions. relief. any potential awarding basis for vigilant must be litigation, parties tracted hand, the case at the district court did plead- necessity of sight not to lose of the sorting job through mu- commendable of each all of the elements ing proving identify plain- non-sequiturs seum of cause action. Notwithstanding claims. tiffs meritorious Dan with the result- properly Ryan’s dismissed dissatisfaction The district court it claim, negligence ing is clear that the district alleging judgment, tort Ryan’s court no error. slope, in because committed construction on solely claim as- rested that the district court is judgment of The LPA contracts —the serted breach two AFFIRMED. We now hold that and the Amendment. alleged, never GREGORY, Judge, concurring Circuit on, a claim of to trial never consented dissenting part: part Con- contracts. breach of (“Dan Builders, Ryan”) Inc. contention, this result trary and his con- with Robert purely contracted unfairly it for penalize does not Brothers, business, Inc. Rather, struction simply holds Dan formal error. grada- steep to fix the (collectively “Lang”) law. requirements of the A Ryan to the But Dan Aug. der ECF No. 249. transcript Examination of trial claim. Ryan utterly do this. failed to reveals the district court's frustration haphazard through- submissions alternative, example, For order issued we out the trial. an hold that trial, instructed that "Dan has breach of contract after waived See Helton proposed contracts. clarify, within find- based on the fill shall Inc., law/post-trial Cir. ings & T fact AT conclusions memorandum, argument 2013) (holding appellant’s legal attachment thereto, proposed damages during a bench trial or claimed flow raised which of its of law theory findings of fact and conclusions and which from breach of contract appeal). negligence theory.” Summ. Or- waived flow from *10 986 always promote of land that would not been portion
tion
construed to
resolu
merits,
supported
have
the construction
tion of cases on the
rather than on
otherwise
Lang
job,
pleading
botched the
and Dan the
skills of
of homes.
See Fed.
.counsel.
$1,722,104.91
words,
fix
pay
§
to
it.* Prac. & Proc.
had to
15(b)
all
helps litigants
The district court found
the elements of Rule
and the courts
tyranny
of contract: that the contract was
“avoid the
Kirk
breach
formalism.”
n.43,
Columbia,
enforceable,
629,
2369
that Dan
land v. District
J.A.
70 F.3d
(In
work,
(D.C.Cir.1995);
full
J.A.
paid Lang in
for the
634
Dunn
Ewell
re
Downs,
Lang
Inc.),
“[u]nquestionably
... failed Santa Fe
611 F.2d
(10th Cir.1980).
up
live
its
obligations,
to
to
contractual
result,”
Ryan]
damages
[Dan
suffered
formalism,
majority
The
insists on
find-
Yet,
Dan Ryan
J.A. 2375.
because
did not
ing
implied
try
no
consent to
the issue of
formally
complaint
name
amend
to
one
-
Lang
Slope
whether
breached the Fill
issue,-the
of the several contracts
dis
at
However,
Contract.
this was the entire
Lang
trict court
to escape liability.
allowed
gravamen of
five-day
trial. We
result,
I
agree
inequitable
cannot
with this
implied
find
consent where
defendant:
15(b)
exactly
which is
what Rule
1)
object
fails
evidence
relating
Federal Rules
Civil Procedure was de
2)
issue;
unpleaded
actually produces evi-
signed
prevent.
I therefore must dis
issue;
3)
bearing
dence
on the
or
offers
my good
sent from
III of
colleagues’
Part
arguments contesting
direct
the issue.
opinion.
1493;
§
See
Prac.
Fed.
& Proc.
see also
15(b)
Stevens,
Rule
allows
liberal amendment of
McLeod
617 F.2d
(4th Cir.1980)
to conform to
pleadings
the evidence
(finding admission
evi-
presented
Equal
at trial.
Emp’t Op
objection
See
dence without
an indicium of im-
Co.,
consent).
portunity
Gen.
plied
Comm’n v.
Elec.
pres-
All three criteria are
(4th
Cir.1976).
F.2d
n. 17
Formal
ent
though
Ryan’s
here. Even
post-
amendment, however, is
always
re
trial submission omitted mention of the
15(b)(2).
quired.
Contract,
Slope
See Fed.R.Civ.P.
Fill
“When
object
did
issue not raised
evidence,
introduction of the contract into
parties’ express
tried
implied
and the issue also had been teed up since
consent, it must
respects
be treated in all
parties’ pre-trial
least
statement.
as if raised in the pleadings,” and
Dan Ryan specified
“failure
brief
statement
to amend does not affect the result of the
its claims that “the
Defendants
trial
issue.” Id.
legal
This liberalism owed
Ryan]
duties to
four
[Dan
from
necessity
meant to
separate
was
obviate
of a
and distinct contractual undertak-
every
trial
new
time an opposing party
ings.” J.A.
293-94. Dan
theory
points to
deficiency
a technical
in pleading.
unambiguously
(3d
6A
§
See
Fed. Prac. & Proc. Civ. 1491
by “[i]mproper placement
these duties
ed.2014)
Proc.];
Fed.
[hereinafter
Prac. &
compaction of fill material.”
J.A. 294.
Johnson,
see also
Deere Co. v.
arguments
confronted these
head
(“As
Cir.2001)
613, 621
has been often
own section
state-
said,
15(b)
principal
purpose of Rule
is ment:
“The
Defendants did not
judicial economy.”).
fact,
the rule has
breach
Ryan].”
[Dan
contract with
*
figure
This
is based on Dan
prejudgment
Proposed
before
interest. PL’s
asserting
expenses
submission
Findings
related to
of Fact and Conclusions of Law at
$1,772,104.91
remediation totaled
No.
ECF
*11
issue,
just
if it
notice of
what was
theory
quate
was that even
Lang’s
J.A. 296.
if had
treating
Slope
the Fill
Contract as
it
practices,
proper construction
had followed
way
no
included in the
failed due to
been
slope would have still
“the
occurs,
Prejudice
Lang.
like
prejudices
layer of
the soil.” J.A.
colluvium
cited,
majority,
case
on Hor-
the Withrow
sought
place
to
blame
It thus
litigant]
“failure to afford
[a
al- where there is
Engineering, which
nor Brothers
present
bearing
evidence
opportunity
that did an
up
grading plans
lot
leged drew
claim’s
proper-
soil
on that
resolution.” With
[new]
into
certain
not take
account
Williams,
680, 696, 113
row v.
507 U.S.
ties.
(1993).
that were never serve specifications. engineering plans and
set of foundation
Lang did ensure ratio, according proper built to the drain- appropriate did not install the among failings. Basical- system,
ing part of ly, picked up dirt from one JONES, Rashaad Tiwania top and set of anoth- development Petitioner-Appellee, no as- court had trouble er. The district that, according to the “credible certaining evidence,” prac- “poor construction Lang’s CLARKE, Virginia Director, Harold W. cause proximate
tices were sole Corrections, Department of failure.” J.A. 2374 n.44. Respondent-Appellant. where the evidence This is not a case No. 14-6590. “incidentally to establish that tends” Appeals, States Court United Lang’s shoddy construction Fourth Circuit. slope. duty to build a viable contractual Frederick, City 191 F.3d Pinkley, Inc. v. 29, 2015. Argued: Jan. Cir.1999). determining April Decided: by con- has been tried whether issue sent, rightly should be concerned we opportuni- lack of potential
the defendant’s allegation. new But
ty to defend
here, had ade- having in addition