IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2021 Term

_____________

No. 20-0041

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THOMAS B. MILLER AND JAMIE L. MILLER,

Plaintiffs Below, Petitioners

V.

WESBANCO BANK, INC.,

Defendant Below, Respondent

________________________________________________

Appeal from the Circuit Court of Marion County

The Honorable David R. Janes, Judge

Civil Action No. CC-24-2017-C-119

AFFIRMED

________________________________________________

AND

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No. 20-0042

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WESBANCO BANK, INC.,

Defendant Below, Petitioner

V.

THOMAS B. MILLER AND JAMIE L. MILLER,

Plaintiffs Below, Respondents

FILED

June 11, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
________________________________________________

Appeal from the Circuit Court of Marion County

The Honorable David R. Janes, Judge

Civil Action No. CC-24-2017-C-119

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

________________________________________________

Submitted: February 17, 2021

Filed: June 10, 2021

Jacques R. Williams

Hamstead, Williams & Shook PLLC

George B. Armistead

Baker & Armistead

Morgantown, West Virginia

Attorneys for the Millers

Joseph V. Schaeffer

Spilman Thomas & Battle, PLLC

Pittsburgh, Pennsylvania

James A. Walls

Spilman Thomas & Battle, PLLC

Morgantown, West Virginia

Attorneys for WesBanco Bank, Inc.

CHIEF JUSTICE JENKINS delivered the Opinion of the Court.

JUSTICE WOOTON dissents in No. 20-0041, concurs in part and dissents in part in 

No. 20-0042, and reserves the right to file a separate opinion.
i

SYLLABUS BY THE COURT

1. West Virginia Code section 56-6-27 (eff. 1923) provides the exclusive 

means by which to obtain prejudgment interest in any action founded on contract. Failure 

to submit the question of prejudgment interest to the jury results in waiver of the same.

2. “‘“Separate written instruments will be construed together and 

considered to constitute one transaction where the parties and the subject matter are the 

same, and where there is clearly a relationship between the documents.” Syllabus point 3, 

McCartney v. Coberly, ___ W. Va. ___, 250 S.E.2d 777 (1978), overruled on other 

grounds by Syllabus point 2, Overfield v. Collins, 199 W. Va. 27, 483 S.E.2d 27 (1996).’ 

Syl. Pt. 1, McDaniel v. Kleiss, 202 W. Va. 272, 273-74, 503 S.E.2d 840, 841-42 (1998).” 

Syllabus point 3, TD Auto Finance LLC v. Reynolds, 243 W. Va. 230, 842 S.E.2d 783 

(2020).

3. “‘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.’ Syl. pt. 1, Cotiga Development 

Company v. United Fuel Gas Company, 147 W. Va. 484, 128 S.E.2d 626 ([1962]).” 

Syllabus point 1, Sally-Mike Properties v. Yokum, 175 W. Va. 296, 332 S.E.2d 597 (1985).
ii

4. “The determination of whether a deed, contract, or other writing is 

ambiguous and does not clearly express the intention of the parties is a question of law to 

be determined by the court.” Syllabus point 3, Harrell v. Cain, 242 W. Va. 194, 832 S.E.2d 

120 (2019).

5. “If a circuit court finds that a deed, contract, or other writing is 

ambiguous and does not clearly express the intention of the parties, then the proper 

interpretation of that ambiguous document, when the facts are in dispute, presents a 

question of fact for the factfinder to resolve after considering all relevant extrinsic 

evidence.” Syllabus point 4, Harrell v. Cain, 242 W. Va. 194, 832 S.E.2d 120 (2019).

6. “‘[W]here the meaning [of a writing] is uncertain and ambiguous, 

parol evidence is admissible to show the situation of the parties, the surrounding 

circumstances when the writing was made, and the practical construction given to the 

contract by the parties themselves either contemporaneously or subsequently. . . .’ Syl. 

Point 4, Watson v. Buckhannon River Coal Co., 95 W. Va. 164, 120 S.E. 390 (1923).” 

Syllabus point 1, in part, Buckhannon Sales Co., Inc. v. Appalantic Corp., 175 W. Va. 742, 

338 S.E.2d 222 (1985).

7. “‘In considering whether a motion for judgment notwithstanding the 

verdict under Rule 50(b) of the West Virginia Rules of Civil Procedure should be granted, 
iii

the evidence should be considered in the light most favorable to the plaintiff, but, if it fails 

to establish a prima facie right to recover, the court should grant the motion.’ Syllabus 

point 6, Huffman v. Appalachian Power Company, 187 W. Va. 1, 415 S.E.2d 145 (1991).” 

Syllabus, First National Bank of Bluefield v. Clark, 191 W. Va. 623, 447 S.E.2d 558 (1994)

(per curiam).

8. “‘“‘Upon a motion to direct a verdict for the defendant, every 

reasonable and legitimate inference fairly arising from the testimony, when considered in 

its entirety, must be indulged in favorably to plaintiff; and the court must assume as true 

those facts which the jury may properly find under the evidence. Syllabus, Nichols v. 

Raleigh-Wyoming Coal Co., 112 W. Va. 85[, 163 S.E. 767 (1932)].’” Point 1, Syllabus, 

Jenkins v. Chatterton, 143 W. Va. 250[, 100 S.E.2d 808] (1957).’ Syl. Pt. 1, Jividen v. 

Legg, 161 W. Va. 769, 245 S.E.2d 835 (1978).” Syllabus point 4, Jones v. Patterson 

Contracting, Inc., 206 W. Va. 399, 524 S.E.2d 915 (1999).

9. “In an action to recover damages for breach of contract, when the case 

has been fairly tried and no error of law appears, the verdict of a jury, based upon 

conflicting testimony and approved by the trial court, will not be disturbed unless the 

verdict is against the plain preponderance of the evidence.” Syllabus point 3, Franklin v. 

Pence, 128 W. Va. 353, 36 S.E.2d 505 (1945).
iv

10. “To entitle plaintiff to recover substantial damages for breach of 

contract, where the loss is pecuniary and susceptible of proof with approximate accuracy, 

he[/she] must establish the quantum of damages with reasonable certainty. Where no 

sufficient data is afforded whereby a jury may definitely ascertain the compensation due 

for the breach, recovery therefor can be nominal only.” Syllabus point 2, Wilson v. Wiggin, 

77 W. Va. 1, 87 S.E. 92 (1915).
1

Jenkins, Chief Justice:

These consolidated appeals arise from breach-of-contract litigation between 

borrowers Thomas and Jamie Miller (“the Millers”) and lender WesBanco Bank, Inc. 

(“WesBanco”). Having reviewed the parties’ briefs, their oral arguments, the appendix 

record, and the pertinent authorities, we resolve the issues herein raised as follows. The 

Millers, who prevailed below, challenge the circuit court’s denial of prejudgment interest, 

which was based upon their failure to request the same from the jury pursuant to West 

Virginia Code section 56-6-27 (eff. 1923). We find no error and affirm the circuit court’s 

ruling as to prejudgment interest. 

In its separate appeal, which was consolidated with the Millers’ appeal for 

purposes of our review, WesBanco raises four assignments of error. First, WesBanco 

assigns error to the circuit court’s admission of parol evidence related to the agreement 

between the Millers and WesBanco rather than limiting the evidence to only the 

Construction Loan Agreement itself. We apply the single transaction rule and find that the 

agreement between the Millers and WesBanco was not limited to only the Construction 

Loan Agreement. Furthermore, because the agreement was ambiguous, we find no error 

in the circuit court’s admission of parol evidence. WesBanco next claims that the circuit 

court erroneously allowed the Millers to rely on the duty of good faith and fair dealing to 

modify WesBanco’s contractual obligations. To the contrary, we find the duty of good 
2

faith and fair dealing was properly applied. In its third assignment of error, WesBanco

argues that the circuit court erred in denying its motion for judgment as a matter of law 

because the Millers failed to establish a prima facia case as to their breach-of-contract 

claims and resultant damages. Having reviewed the evidence, we find the Millers 

presented sufficient evidence such that the circuit court did not err in denying judgment as 

a matter of law to WesBanco. Finally, WesBanco argues that the jury’s damages award of 

$404,500 was against the clear weight of the evidence. We agree that the Millers’ evidence 

fails to support this verdict. Therefore, we reverse the award and remand this case for a 

new trial on damages only. Accordingly, the Millers’ appeal is affirmed. WesBanco’s 

appeal is affirmed in part, reversed in part, and remanded for further proceedings consistent 

with this opinion.

I.

FACTUAL AND PROCEDURAL HISTORY

In August 2015, the Millers contracted with Residential Creations LLC 

(“Residential Creations”) to build a family home for them in Fairmont, West Virginia.1

The agreed-upon price for the home was $690,000, and the construction contract provided 

the following schedule for payments to be made at the completion of certain project

benchmarks:

Initial payment $ 70,000.00

Foundation 130,000.00

1 The construction contract was executed on August 31, 2015.
3

Pre-fab, Walls & Floor (In Shop) 60,000.00

Superstructure A 135,000.00

Superstructure B 50,000.00

Rough Mechanicals 75,000.00

Insulation/Drywall 65,000.00

Interior/Exterior A 50,000.00

Interior/Exterior B 45,000.00

Retainage: 10,000.00

Total $690,000.00

To finance the construction of their home, the Millers contacted WesBanco 

and worked with a loan originator named Michelle Hamilton. As part of a pre-qualification 

process that occurred in advance of their execution of the construction contract, the Millers

were provided a document titled “WesBanco Bank, Inc.[,] Mortgage Loan Department[,]

Expectations: Borrower/Builder” (“Expectations form”). The document was signed by the 

Millers on June 26, 2015; it also bears a signature above the line designated “Builder,”2

which is dated September 9, 2015.3

 According to this Expectations form, lien waivers 

would be required from each subcontractor and the general contractor, and no funds would 

be disbursed for work not completed or materials not installed:

2 While the signature is largely illegible, we presume it is the signature of 

Derrick Pritt on behalf of Residential Creations LLC.

3 During the trial of this case, Michelle Hamilton was asked if the loan would 

proceed without a signed Expectations form. She responded, “[n]ot that I’m aware. It was 

required to be signed before the construction loan.” She additionally testified that she was 

not aware of any loan going forward at closing without an Expectations form first being 

signed by the borrowers.
4

The following requirements must be addressed with the 

borrower(s) and their builder as soon as possible. Failure to 

make the borrower(s) and their builder aware of this 

information may result in a delayed closing or first draw.

. . . .

All draw requests will be supported by the following 

documentation:

–Builder’s Affidavit: Properly completed with all work 

detailed including materials and labor for all subcontractors. 

The total amount due must be clearly identified. The form 

must be signed by the general contractor in the presence of a 

notary public.

–Lien Waivers: Required. Properly executed and notarized 

Lien Waivers must be presented by each sub contractor in 

addition to the general contractor.

–Authorization to Draw Funds: Must be signed by the 

borrower(s) and must correspond with the Builder’s Affidavit 

and Lien Waivers.

–Inspections: An inspection may be required depending on the 

total amount disbursed compared to the total amount complete. 

No funds will be advanced until the inspection (if required) has 

been received.

Funds will not be disbursed for work not completed. The first 

draw will not be made until the foundation is complete 

(exception would be funds disbursed at closing for lot purchase 

if applicable).

Funds will not be disbursed for materials on site not installed.

During the trial in this matter, Ms. Hamilton testified that she also told the Millers that 

WesBanco would obtain lien waivers before each draw payment and payment would be 

made only for completed work. 
5

Thereafter, the Millers executed a residential Construction Loan Agreement 

and a separate Construction Loan Addendum4 with WesBanco, under which WesBanco 

agreed to loan them $555,000 to be used in building their new home.5 Section 4 of the 

Construction Loan Agreement, titled “Advance of Funds,” set out the procedure for 

requesting WesBanco to disburse loan funds (sometimes referred to as draws):

4. Advance of Funds. Funds required for the project shall 

include Borrower’s funds in addition to the loan proceeds set 

forth herein.

. . . .

B.) The procedure for requesting disbusements [sic] 

is as follows:

(i) When funds are needed for the project, 

Borrower shall notify Lender at least 48 hours prior to the date 

that an advance is required. Lender agrees to advance funds in 

accordance with the CONSTRUCTION LOAN 

DISBURSEMENT SCHEDULE attached hereto as Exhibit 

“A” and made a part thereof.[6]

 Lender shall be under no 

obligation to advance funds hereunder until Lender has 

obtained a satisfactory inspection report from an inspector of 

its own choosing indicating that sufficient construction has 

occurred to support the amount of draw requested and has 

4 The terms contained in the Construction Loan Addendum are not relevant 

to the instant dispute.

5 Although the construction contract between the Millers and Residential 

Creations was dated August 28, 2015, and provided that the total price for the work agreed 

upon was $690,000, the Construction Loan Agreement refers to a construction contract 

dated June 21, 2015, for the amount of $719,100.

6 The record does not appear to contain a document titled “Construction Loan 

Disbursement Schedule.” Instead, WesBanco advanced funds in accordance with the 

schedule of payments set out in the construction contract between the Millers and 

Residential Creations, which is quoted above.
6

received the executed Waiver of Liens from the general 

contractor and from the subcontractors, suppliers and 

materialmen, if deemed necessary. Borrower hereby grants to 

Lender, or its authorized representative, authority to enter onto 

the subject Property at reasonable times to perform the 

inspections provided for herein. Borrower further agrees that 

any such inspections shall in no way be construed to warrant 

the quality of workmanship of any work performed.

(ii) Draw Inspections are made as requested by 

Borrower according to the Disbursement Schedule.

C.) After depletion of the Borrower’s portion of the 

contract price specified above towards the construction of the 

proposed improvements, Lender shall, upon application of the 

Borrower make periodic disbursements to the Borrower for 

payment for work actually performed, materials delivered, or 

materials for the delivery of which the [B]orrower has entered 

into an agreement, provided:

(i) That the initial request for disbursement of the 

proceeds of the loan shall be accompanied by the executed 

waiver of lien forms signed by all contractors, subcontractors, 

and materialmen who furnished labor or materials to the site 

prior to the initial advance;

(ii) That all subsequent disbursements shall have 

been approved by the Construction Loan Department, to the 

effect that the improvements are being completed in 

accordance with the predetermined schedule for utilization of 

the contract price and shall be accompanied by the executed

waiver of lien forms signed by all contractors, subcontractors, 

and materialmen who furnished labor or materials to the site 

prior to the initial advance[.]

(Emphasis added). In addition, the Construction Loan Agreement included the following 

two provisions that are germane to this appeal:

6. Final Advance of the Loan. The obligation of the 

Lender to make the final advance under the loan shall be 

subject to the Borrower providing evidence satisfactory to the 
7

Lender that a permanent certificate of occupancy and all 

governmental approvals, federal, state and local, necessary for 

the use and occupancy of the improvements have been 

obtained, if required. In addition, the Borrower shall provide 

a survey satisfactory to the Lender of the completed 

improvements meeting the requirements stated in this

Agreement. Borrower shall provide Lender with a final 

inspection report which must be satisfactory to the Lender, and 

the Lender has received the fully executed Waiver of liens from 

all subcontractors, suppliers and materialmen and the 

Builder’s Affidavit.

7. Mechanic’s Lien. Borrower agrees that any 

mechanic’s lien filed upon the property shall be Borrower’s 

sole responsibility and hereby holds Lender harmless against 

all losses, including but not limited to, liability, costs, or 

damages resulting from same.

(Emphasis added). Closing for the Construction Loan Agreement was on October 22, 

2015. At closing, the Millers tendered a cash payment of approximately $149,000 to cover 

a portion of the construction costs along with other expenses such as those charged by a 

construction inspector, some of the site preparation costs, and fees associated with the 

closing of the loan. The portion of the Millers’ deposit related to the construction was to 

be disbursed by WesBanco along with the loan proceeds.

The initial $70,000 payment to Residential Creations was made at closing. 

Thereafter, four documents were required by WesBanco in connection with each draw 

request. First, WesBanco required a “Waiver of Lien Materials or Labor” form signed by 

the builder, Residential Creations, and notarized. This form included the builder’s 

certification that there were no outstanding charges: “The undersigned further certifies that 
8

there are no outstanding charges that may result in liens against said property.” Second, a

notarized “Builder’s Affidavit” had to be submitted by Residential Creations with each 

draw request. This form specified that

[t]he undersigned, being first duly sworn on oath, deposes and 

says that he is Residential Creations LLC, the Builder for the 

work on the [Millers’ home], that the following are the names 

of all parties who have furnished material or labor, or both, to 

the undersigned for said work and of all parties having 

contracts or subcontracts with the undersigned for specific 

portions of said work or for materials entering into the 

construction thereof and the amount due or to become due to 

each, and that the items mentioned include all labor and 

material required to complete said work according to plans and 

specifications[.]

Space was then provided for the builder to list the names of sub-contractors, the kind of 

work performed, the amount of the contract, the amount paid to date, and the balance due 

or to become due. However, instead of providing this information, the forms submitted to 

WesBanco by Residential Creations used this area to identify the benchmark that had been 

achieved as identified in the draw schedule set out in the construction contract. For 

example, the builder’s affidavit for the second benchmark on the draw schedule simply 

stated in this space:

FOUNDATION DRAW

AS PER DRAW SCHEDULE

SET FORTH IN CONSTRUCTION CONTRACT

Third, prior to each disbursement of construction loan funds, the Millers were required to 

sign a “Draw Funds Disbursement Authorization” form, which included the following 

acknowledgement: “The Borrower further states that Borrower has inspected, is satisfied 
9

and accepts such completed work and will, in no way, hold Lender responsible for any 

consequences which may arise as a result of this release.” Finally, WesBanco obtained a 

construction progress inspection report establishing the percentage of construction 

progress that had been accomplished.

The first two draw requests initiated by Residential Creations, which were 

made together and totaled $190,000.00, occurred in November 2015 and prompted an 

email exchange between Mrs. Miller and WesBanco. Mrs. Miller first sent an email on 

November 10, 2015, which was addressed to Michelle Hamilton and to WesBanco’s 

Residential Construction Lending department, that stated:

Ladies, we have a problem, Derrick Pritt [Residential 

Creations] sent to us this morning two draw requests, one for 

the foundation $130,000.00 and one for the pre-fab $60,000.00 

for our construction loan. No where [sic] near has all of this 

work been completed and Michelle, you told us several times 

that with the exception of his initial $70,000.00 draw made at 

closing, no funds would be dispersed until work was 

completed. Derrick Pritt says that his draw schedule- which 

Brad and I have never seen to our recollection- states that the 

disbursement will be made for work that is completed AND IN 

PROGRESS.

The draw request forms you all sent to us say nothing about 

work in progress, only for work completed. The loan 

documents we signed and have copies of state for work 

completed. So, where does the notion come that we are ready 

to release $190,000.00 plus the $70,000.00 draw at closing for 

what little has been done so far? Derrick stated that he verified 

with Michelle today that their draw schedule was going to be 

followed, the same agreement he says states for work in 

progress. If he were to quit the project tomorrow, we have very 

little to show for our $260,000.00 investment.
10

This needs resolved ASAP because we do not want to hold up 

his receiving of necessary funds but this is not going to work. 

Please advise.

Thereafter, on November 12, 2015, Mrs. Miller7 sent another email addressed to Ms. 

Hamilton and the Residential Construction Lending department, which stated that,

Brad and I have spoken at length with Derrick Pritt Wednesday 

afternoon. He better explained to us how the draw schedules 

are structured and how, for example, the foundation draw has 

the construction of the foundation as a bench mark but actually 

includes costing for a lot of other supplies, etc.; Those other 

items just don’t show in our document that has a single line 

that states “Foundation . . . . . . $130,000.00.”

Brad and I feel a lot more comfortable with the situation now 

and are prepared to sign the disbursement release documents 

but wanted to be sure everything is good on your end before 

we do so as this seems contrary to what was explained to us by 

WesBanco. It is my understanding that Derrick spoke with 

Michelle earlier this week and confirmed that the draw 

schedule was fine with you all but we would appreciate if you 

could confirm this before we send off the signed documents.

(Emphasis added). Also, on November 12, 2015, Ms. Hamilton responded with an email 

to Mrs. Miller, which related that Ms. Hamilton

replied to Derrick’s email that the draw schedule was approved 

by our residential lending department as it was presented to us 

in the contract but have not spoken to him directly.

I apologize on all the confusion but I did explain to you that we 

do not fund for work that has not been completed. That is why 

we require a draw schedule to be presented to us and approved 

with the construction loan. When disbursing funds we follow 

the approved draw schedule sent to us. Before we release funds 

7 The sender’s name on this email is “Jamie L. Brewer”; however, during her 

trial testimony, Mrs. Miller stated that she sent this email and that Brewer is her maiden 

name.
11

we have the appraiser go to the property to verify that the 

specific work relating to the draw schedule has been 

completed. We do not require the builder to supply us specifics 

as to what is included within each draw. As an example, we 

will release the funds for the foundation when the appraiser 

verifies the foundation is complete, as that is what is listed for 

the first draw.

Finally, a short while later that same day, Ms. Hamilton sent an email to Mrs. Miller that 

stated the following:

I wanted to attach copies of the draw schedule that you actually 

sent to me. It was part of the contract between you and the 

builder. This is the draw schedule that was approved by us and 

all that we have received from the builder. This is also what 

Derrick referenced in his email to me that I advised was 

approved by our residential construction lending department. 

I also wanted to include a copy of the Builder/Borrower 

Expectation[s] form signed by you and the builder which 

explains our policy on draws and how everything was 

explained to you at application time so hopefully this will 

eliminate anymore [sic] confusion as to how we expect the 

process to flow.

The Millers then executed two “Draw Funds Disbursement Authorization” forms on 

November 12, 2015, for Residential Creations’ draw requests totaling $190,000. One form 

was for the amount of $130,000, and a second form was for the amount of $60,000. 

Thereafter, construction of the home continued, and additional draws were requested by 

Residential Creations and paid by WesBanco. Then, around May 2016, Mrs. Miller learned 

that Residential Creations had ceased construction on the Miller home, filed bankruptcy 

proceedings, and had failed to pay for more than $117,000 in materials used in the Miller 

home. The $117,000 in unpaid materials ultimately resulted in the filing of a mechanic’s 
12

lien against the Millers’ house and property and a lawsuit against the Millers by the 

company that had provided the materials, O.C. Cluss Lumber Company.

8

 At this point, 

WesBanco had disbursed approximately $442,000 of the loan proceeds to Residential 

Creations,

9 which was approximately eighty percent of the Millers’ $555,000 construction 

loan, yet a “Construction Progress Inspection Report” dated March 26, 2016, indicates that 

the Miller house was only fifty-three percent complete as of the last inspection.

As a consequence, the Millers had to fund the completion of their house on 

their own and had to choose lesser quality materials than they had contracted for with 

Residential Creations due to the resulting strain on their finances. According to Mrs. 

Miller’s testimony, the Millers paid $125,000 of their own funds and borrowed an 

additional amount of $162,000 from family members, for a total of $287,00010 spent to 

complete their home.

8 The O.C. Cluss litigation against the Millers remains pending in the Circuit 

Court of Marion County.

9 Mrs. Miller acknowledged in her testimony that approximately $112,000 in 

loan funds had not been disbursed (WesBanco states that the undisbursed amount is 

$113,000). The loan apparently was frozen by WesBanco after Residential Creations 

ceased construction and no further disbursements were made.

10 WesBanco refers to the Millers’ expenditures as $287,500, and, in some 

parts of their argument, the Millers use the figure of $287,500 as well.
13

On April 20, 2017, the Millers filed suit against WesBanco alleging the 

following four counts: Count I, breach of contract; Count II, negligence; Count III, gross 

negligence in the performance of duties in a special relationship; and Count IV, violation 

of a trust relationship. WesBanco filed two separate motions seeking to dismiss Counts I, 

II, and III of the Millers’ complaint. Following a hearing on the motions, and by order 

entered on March 13, 2018, the circuit court granted WesBanco’s first motion to dismiss 

as to the Millers’ tort claims asserted in Counts II and III of their complaint. In the same 

order, the circuit court found that WesBanco’s second motion to dismiss was converted to 

a motion for summary judgment because WesBanco asked the court to consider documents 

outside the pleadings. The circuit court found tension between documents relied on by 

WesBanco11 and the Construction Loan Agreement. Having found that this tension 

resulted in genuine issues of material fact, the circuit court denied summary judgment.

11 WesBanco relied upon a release that was contained in the “Draw Funds 

Disbursement Authorization” signed by the Millers in connection with each draw request.

The circuit court’s order indicated that the release language was contained in the 

Expectations form. However, WesBanco’s second motion to dismiss, while referring to 

the Expectations form, notes that the release language is in the “Draw Funds Disbursement 

Authorization” form:

In paragraph 10 of the Complaint, Plaintiffs reference a 

document entitled WesBanco Bank, Inc. Mortgage Loan 

Department Expectations: Borrower/Builder. This document 

requires that Plaintiffs sign an Authorization to Draw Funds. 

The Draw Funds Disbursement Authorization forms that were 

signed by Plaintiffs include [release language].

(Footnote omitted).
14

In February 2019, WesBanco filed a motion for summary judgment. In 

denying the motion, the circuit court explained:

In its March 13, 2018 Order on WesBanco’s Motion to 

Dismiss, the Court observed that there existed “tension 

between the release on which WesBanco relies and its 

contractual obligations under the original construction loan 

agreement.” The Court agrees with the plaintiffs that that same 

sort of tension also exists with the “Expectations” form, and 

that there remain questions of fact which preclude the granting 

of WesBanco’s Motion for Summary Judgment. 

2. WesBanco maintains that the “if deemed 

necessary” language in paragraph 4.B.(i) of the loan agreement 

renders WesBanco’s obligations thereunder discretionary. 

Given the facts of this case, a jury could conclude that 

WesBanco abused its discretion in its obligation to assure that 

“sufficient construction has occurred to support the amount of 

draw requested.” The Court also agrees with the Plaintiffs that 

the language in paragraph 4.C.(ii) of the loan agreement is 

ambiguous and contradictory.

3. The Court finds that under West Virginia law 

there is an implied “covenant of good faith and fair dealing in 

every contract for purposes of evaluating a party’s 

performance of that contract.” Evans v. United Bank, Inc., 235 

W. Va. 619, 628, 775 S.E.2d 500, 509 (2015) . . . .

4. With respect to the “Expectations” form, which 

states that “funds will not be disbursed for work not 

completed,” the November 2015 exchange of e-mails between 

Ms. Miller and Michelle Hamilton reveals that both the Millers 

and WesBanco acknowledged the vitality [sic] of the 

[“E]xpectations[”] form, even post-contract. Having 

acknowledged that its obligations under the “Expectations” 

form existed in November of 2015, the finder of fact could 

conclude that the parties, by their conduct, adopted that

“Expectations” form as a term of the loan agreement.

5. If the jury resolves the questions of fact 

identified above in favor of the plaintiffs, then, contrary to 
15

WesBanco’s argument, the rights which the plaintiffs assert 

would not be inconsistent with the terms of the contract[,] and 

the good faith and fair dealing obligation could fairly be 

imposed upon the defendant.

Thereafter, WesBanco filed two motions in limine: one seeking to preclude 

the Millers from offering parol evidence to vary the parties’ allegedly unambiguous 

agreement expressed in the Construction Loan Agreement and Loan Addendum, and the 

second seeking to prevent the Millers from “offering argument or evidence that the 

[C]onstruction [L]oan [A]greement between the Millers and WesBanco consists of 

anything other than the October 22, 2015, Construction Loan Agreement and Loan 

Addendum.” The circuit court addressed the motions on the record on the first day of trial 

and denied them both.

The trial proceeded with the Millers’ themselves offering testimony, along 

with testimony from other witnesses, including Ms. Hamilton and Cathi McClelland, a vice 

president and manager of WesBanco’s Residential Construction Lending Department. The 

circuit court allowed the witnesses to be questioned about the Construction Loan 

Agreement, the Expectations form, several forms required in connection with draw 

requests, and the various discussions and emails that were exchanged between Mrs. Miller 

and WesBanco in relation to the initial draw request by Residential Creations. Rather than 

call its own witnesses, WesBanco presented its case through extensive cross examination 

of Ms. McClelland. At the close of the evidence, WesBanco moved for judgment as a 
16

matter of law pursuant to Rule 50(a) of the West Virginia Rules of Civil Procedure, which 

was denied by the circuit court. Following its deliberations, the jury returned a verdict in 

favor of the Millers and awarded them $404,500 in damages. 

The Millers then submitted a proposed judgment order that granted them 

prejudgment interest in the amount of $89,664.04. WesBanco objected to the Millers’

proposed judgment order and argued that, because the Millers had failed to demand a jury 

instruction on prejudgment interest, they had waived the right to such an award. The circuit 

court agreed and entered a judgment order on September 6, 2019, that did not include any 

award of prejudgment interest. The Millers subsequently filed a motion to alter or amend 

judgment under West Virginia Rule of Civil Procedure 59(e), and WesBanco filed a 

“Renewed Motion for Judgment as a Matter of Law, or in the Alternative, for a New Trial 

or Remittitur,” pursuant to West Virginia Rules of Civil Procedure 50(b) and 59(a). By 

order entered on December 18, 2019, the circuit court denied the motions. Separate appeals 

by the Millers and WesBanco followed, which were consolidated for purposes of our 

review. We first will address the Millers’ appeal, including a discussion of the appropriate 

standard for our review of the same. We then will resolve WesBanco’s appeal, likewise 

setting out the standard of review applicable to the issues raised in connection with our 

discussion of that appeal.
17

II.

NO. 20-0041

MILLER v. WESBANCO BANK, INC.

The Millers assert a single assignment of error in which they argue that the 

trial court erred and applied an incorrect statute in failing to award them prejudgment 

interest. 

A. Standard of Review

The Millers appeal the circuit court’s denial of their motion to alter or amend 

judgment. 

The standard of review applicable to an appeal from a 

motion to alter or amend a judgment, made pursuant to W. Va.

R. Civ. P. 59(e), is the same standard that would apply to the 

underlying judgment upon which the motion is based and from 

which the appeal to this Court is filed.

Syl. pt. 1, Wickland v. Am. Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657 (1998). 

The issue raised by the Millers is a question of law involving the interpretation of statutes. 

“Where the issue on an appeal from the circuit court is clearly a question of law or 

involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1, 

Crystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). See also State Farm 

Mut. Auto. Ins. Co. v. Rutherford, 229 W. Va. 73, 76, 726 S.E.2d 41, 44 (2011) (finding 

that “the proper way to determine the amount of prejudgment interest on a judgment or 

decree . . . is a question of law”). Accordingly, we give plenary consideration to the issue 

raised by the Millers. 
18

B. Discussion

In their post-trial motion to alter or amend judgment, the Millers argued that 

the circuit court had the authority to award them prejudgment interest pursuant to West 

Virginia Code section 56-6-31(b) (eff. 2018). The circuit court denied the motion and 

opined that 

West Virginia Code § 56-6-27 provides the plaintiffs with the 

exclusive means by which, in this contract case, they are 

permitted to obtain an award of pre-judgment interest on the 

jury’s verdict. By not complying with the requirements of that 

statute and submitting the issue to the trial jury for its 

consideration, plaintiffs waived their right to pre-judgment 

interest on the jury’s verdict. 

The Millers contend that the circuit court improperly applied outdated case 

law to conclude that West Virginia Code section 56-6-31(b) does not apply to prejudgment 

interest in contract actions. WesBanco argues that the circuit court properly applied West 

Virginia Code section 56-6-27 (eff. 1923), which is the exclusive source for an award of 

prejudgment interest in breach-of-contract cases. As we explain below, we find the circuit 

court correctly found that section 56-6-27 provides the exclusive method by which a party 

may seek prejudgment interest in an action founded on contract.

Because this issue requires us to consider two conflicting statutes to 

determine which properly governs the request for prejudgment interest in this case, we are 

mindful that, “[t]he primary object in construing a statute is to ascertain and give effect to 

the intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 
19

W. Va. 108, 219 S.E.2d 361 (1975). Thus, where the legislative intent is plainly expressed, 

we are bound to apply rather than interpret the statute in question. “A statutory provision 

[that] is clear and unambiguous and plainly expresses the legislative intent will not be 

interpreted by the courts but will be given full force and effect.” Syl. pt. 2, State v. Epperly, 

135 W. Va. 877, 65 S.E.2d 488 (1951). On the other hand, “[a] statute that is ambiguous 

must be construed before it can be applied.” Syl. pt. 1, Farley v. Buckalew, 186 W. Va.

693, 414 S.E.2d 454 (1992). Guided by these tenets, we consider which statute governs a 

request for prejudgment interest in a breach-of-contract claim: West Virginia Code section

56-6-31(b) or West Virginia Code section 56-6-27.

West Virginia Code section 56-6-31(b) provides in relevant part as follows:

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 

the amount of any settlements. Any such amounts of special 

or liquidated damages shall bear simple, not compounding, 

interest. Special damages include lost wages and income, 

medical expenses, damages to tangible personal property and 

similar out-of-pocket expenditures, as determined by the court.

If an obligation is based upon a written agreement, the 

obligation bears prejudgment interest at the rate and terms set 

forth in the written agreement until the date the judgment or 

decree is entered and, after that, the judgment interest is the 

same rate as provided for below in subsection (c) of this 

section.

(Emphasis added). On its face, this provision would seem to apply to the prejudgment 

interest sought by the Millers, and would place the decision of whether to award such 
20

interest squarely within the discretion of the presiding court. However, we may not limit 

our analysis to considering this single provision in isolation. “Statutes which relate to the 

same persons or things, or to the same class of persons or things, or statutes which have a 

common purpose will be regarded in pari materia to assure recognition and 

implementation of the legislative intent.” Syl. pt. 5, in part, Fruehauf Corp. v. Huntington 

Moving & Storage Co., 159 W. Va. 14, 217 S.E.2d 907 (1975). Article 6 of Chapter 56 of 

the West Virginia Code contains another provision related to interest that adds clarity to 

our search for legislative intent as it relates to the instant dispute. This provision addresses 

the question of interest in a jury trial founded on contract, and provides that

[t]he jury, in any action founded on contract, may allow 

interest on the principal due, or any part thereof, and in all cases 

they shall find the aggregate of principal and interest due at the 

time of the trial, after allowing all proper credits, payments and 

sets-off; and judgment shall be entered for such aggregate with 

interest from the date of the verdict.

W. Va. Code § 56-6-27 (emphasis added). Notably, the plain language of this provision 

places the question of whether to allow prejudgment interest in an action founded on 

contract with the jury. Furthermore, this Court previously has acknowledged that “West 

Virginia Code § 56-6-27 . . . is the general authority for awarding prejudgment interest in 

a contract action.” CMC Enter., Inc. v. Ken Lowe Mgmt. Co., 206 W. Va. 414, 418, 525 

S.E.2d 295, 299 (1999) (per curiam). See also First Nat’l Bank of Bluefield v. Clark, 191 

W. Va. 623, 625, 447 S.E.2d 558, 560 (1994) (per curiam) (“General authority for 

awarding prejudgment interest in a contract action in West Virginia is contained in W. Va.

Code § 56-6-27.”).
21

Thus, we are presented with two conflicting statutory provisions that could 

potentially apply to awarding prejudgment interest in an action sounding in contract, one 

that clearly places the decision with the court, and one that unmistakably places the 

question with the jury. Our task is to determine which one the Legislature intends to apply.

Prior to a 2006 amendment of West Virginia Code section 56-6-31, this Court 

addressed this very issue. The earlier version of section 56-6-31 provided as follows:

Except 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 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 such special or liquidated damages 

shall bear interest from the date the right to bring the same shall 

have accrued, as determined by the court. Special damages 

includes lost wages and income, medical expenses, damages to 

tangible personal property, and similar out-of-pocket 

expenditures, as determined by the court. The rate of interest 

shall be ten dollars upon one hundred dollars per annum, and 

proportionately for a greater or lesser sum, or for a longer or 

shorter time, notwithstanding any other provisions of law. 

W. Va. Code § 56-6-31 (eff. 1981). Reconciling the forgoing provision with section 56-6-

27, this Court held,

[i]n an action founded on contract, a claimant is entitled 

to have the jury instructed that interest may be allowed on the 

principal due, W. Va. Code, 56-6-27 [1923], but is not entitled 

to the mandatory award of interest contemplated by W. Va.

Code, 56-6-31 [1981], since this statute does not apply where 

the rule concerning interest is otherwise provided by law.
22

Syl. pt. 4, Thompson v. Stuckey, 171 W. Va. 483, 300 S.E.2d 295 (1983). The question 

before the Stuckey Court also pertained to prejudgment interest, and the Court concluded 

that “[s]ince this action was ‘founded on contract,’ we consider Code, 56-6-27 [1923] to 

apply to the matter of prejudgment interest, and not Code, 56-6-31 [1981], which by its 

own terms only applies where the rule concerning interest is not otherwise provided by 

law.” Id. at 488, 300 S.E.2d at 300.

In 2006, section 56-6-31 was amended. The amendment added language 

referring to actions in contract and also retained the qualification “[e]xcept where it is 

otherwise provided by law.” W. Va. Code § 56-6-31 (eff. 2006). Under the relevant 

portion of the 2006 version,

[e]xcept 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 . . . .

W. Va. Code § 56-6-31(a). Following this amendment, this Court continued to apply 

Stuckey, and continued to find section 56-6-27 was the governing statute addressing 

prejudgment interest in breach-of-contract cases:

When this Court decided Stuckey, West Virginia Code 

§ 56-6-31 did not include the language “whether in an action 

sounding in tort, contract or otherwise.” This language was 

added when the statute was amended in 2006. Despite the 

insertion of this language, 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 Stuckey.
23

Ringer v. John, 230 W. Va. 687, 691 n.6, 742 S.E.2d 103, 107 n.6 (2013) (per curiam)

(concluding that circuit court erred by awarding prejudgment interest pursuant to West 

Virginia Code section 56-6-31 instead of allowing jury to make determination under West 

Virginia Code section 56-6-27). 

Most recently, in 2017, section 56-6-31 was again amended, with the 

amendment taking effect on January 1, 2018. The exclusionary phrase “except where it is 

otherwise provided by law” was again retained, though placed in a separate paragraph from 

the provision related to prejudgment interest:

(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 the amount of any settlements. Any such 

amounts of special or liquidated damages shall bear simple, not 

compounding, interest. . . .

W. Va. Code § 56-6-31 (eff. 2018). Under this latest iteration, it is apparent that the 

“[e]xcept where it is otherwise provided by law” limitation applies specifically to the 

provision clarifying that judgments will, in general, bear simple interest. W. Va. Code 

§ 56-6-31(a). Paragraph (b), which relates to prejudgment interest, does not contain the 

restrictive language. Notably, however, it also fails to contain any language expressly 
24

stating that it applies to actions founded in contract. Thus, we remain faced with conflicting 

statutes that ostensibly apply to the same subject. One is a general prejudgment interest 

statute, section 56-6-31(b), that applies to “any judgment or decree.” The other is a more 

particular statute, section 56-6-27, that applies “in any action founded on contract.” In 

these circumstances, the specific statute governs. “The general rule of statutory 

construction requires that a specific statute be given precedence over a general statute 

relating to the same subject matter where the two cannot be reconciled.” Syl. pt. 1, UMWA 

by Trumka v. Kingdon, 174 W. Va. 330, 325 S.E.2d 120 (1984). Here, West Virginia Code 

section 56-6-27 is the more specific statute in that it expressly applies to “any action 

founded on contract.” W. Va. Code § 56-6-27. See, e.g., Tri-State Petroleum Corp. v. 

Coyne, 240 W. Va. 542, 566 n.87, 814 S.E.2d 205, 229 n.87 (2018) (addressing 

prejudgment interest in tort action, but nevertheless acknowledging that “West Virginia 

Code § 56-6-27 . . . controls awards of prejudgment interest in cases founded in contract”).

We are further persuaded that the Legislature intends section 56-6-27 to 

govern prejudgment interest in actions founded on contract by the fact that, despite this 

Court’s prior holdings that section 56-6-27 provides the method of obtaining prejudgment 

interest in contract actions, i.e. by requesting the same from the jury, the Legislature never 

repealed section 56-6-27 when it amended section 56-6-31. Cf. Syl. pt. 5, Pullano v. City 

of Bluefield, 176 W. Va. 198, 342 S.E.2d 164 (1986) (“‘The Legislature, when it enacts 

legislation, is presumed to know its prior enactments.’ Syllabus Point 12, Vest v. Cobb, 
25

138 W. Va. 660, 76 S.E.2d 885 (1953).”); In re Grandparent Visitation of Cathy L.(R.)M. 

v. Mark Brent R., 217 W. Va. 319, 325, 617 S.E.2d 866, 872 (2005) (per curiam) (“‘[I]t is 

a recognized principle that where a statute has been interpreted by the courts, the continued 

use of the same language by the Legislature subsequent to the judicial interpretation is 

indicative that the legislative intent has been correctly ascertained[.] . . .’” (quoting

Knight-Ridder Broadcasting, Inc. v. Greenberg, 511 N.E.2d 1116, 1119 (1987)) 

(additional citations omitted)). 

Based upon the foregoing analysis, we now hold that West Virginia Code 

section 56-6-27 (eff. 1923) provides the exclusive means by which to obtain prejudgment 

interest in any action founded on contract. Failure to submit the question of prejudgment 

interest to the jury results in waiver of the same. Because the Millers failed to submit the 

question of prejudgment interest to the jury, the circuit court did not err in denying their 

Rule 59(e) motion to alter or amend.12

12 Although we conclude that the circuit court did not err in denying the 

Millers’ Rule 59(e) motion due to their failure to submit the question of prejudgment 

interest to the jury during the trial underlying this appeal, insofar as we are remanding this 

matter for a new trial on damages, the Millers will have another opportunity to comply 

with West Virginia Code section 56-6-27.
26

III.

NO. 20-0042

WESBANCO BANK, INC. v. MILLER

WesBanco raises four assignments of error. WesBanco first assigns error to 

the circuit court’s admission of parol evidence in relation to the Construction Loan 

Agreement rather than relying on the plain language used therein. WesBanco next claims 

that the circuit court improperly allowed the Millers to rely on the duty of good faith and 

fair dealing to modify WesBanco’s contractual obligations. In its third assignment of error, 

WesBanco argues that the circuit court erred in denying its motion for judgment as a matter 

of law because the Millers failed to establish a prima facia case as to their breach-ofcontract claims and resultant damages. Finally, WesBanco argues that the jury’s damages 

award of $404,500 was against the clear weight of the evidence. After setting out the 

proper standard for our review of these issues, we will address each one in turn.

A. Standard of Review

WesBanco appeals from the circuit court’s order denying its “Renewed 

Motion for Judgment as a Matter of Law, or in the Alternative, for a New Trial or 

Remittitur,” which it sought pursuant to West Virginia Rules of Civil Procedure 50(b) and 

59(a). “The appellate standard of review for an order granting or denying a renewed motion 

for a judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia 

Rules of Civil Procedure [1998] is de novo.” Syl. pt. 1, Fredeking v. Tyler, 224 W. Va. 1, 

680 S.E.2d 16 (2009). Moreover, 
27

[w]hen this Court reviews a trial court’s order granting 

or denying a renewed motion for judgment as a matter of law 

after trial under Rule 50(b) of the West Virginia Rules of Civil 

Procedure [1998], it is not the task of this Court to review the 

facts to determine how it would have ruled on the evidence 

presented. Instead, its task is to determine whether the 

evidence was such that a reasonable trier of fact might have 

reached the decision below. Thus, when considering a ruling 

on a renewed motion for judgment as a matter of law after trial, 

the evidence must be viewed in the light most favorable to the 

nonmoving party.

Syl. pt. 2, Fredeking, id. We have further explained that

[i]n 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).

We review the circuit court’s denial of WesBanco’s motion for a new trial

under an abuse of discretion standard. 

[I]t is well-established that “‘[a]lthough the ruling of a trial 

court in granting or denying a motion for a new trial is entitled 

to great respect and weight, the trial court’s ruling will be 

reversed on appeal when it is clear that the trial court has acted 

under some misapprehension of the law or the evidence.’ 

Syllabus point 4, Sanders v. Georgia-Pacific Corp., 159 

W. Va. 621, 225 S.E.2d 218 (1976).” Syllabus Point 3, 

Carpenter v. Luke, 225 W. Va. 35, 689 S.E.2d 247 (2009). In 

other words, our standard of review for a trial court’s decision 

regarding a motion for a new trial is abuse of discretion. 
28

Marsch v. American Elec. Power Co., 207 W. Va. 174, 180, 

530 S.E.2d 173, 179 (1999).

MacDonald v. City Hosp., Inc., 227 W. Va. 707, 715, 715 S.E.2d 405, 413 (2011). See 

also Lunsford v. Shy, 243 W. Va. 175, ___, 842 S.E.2d 728, 734 (2020) (“[A]s a general 

proposition, we review a circuit court’s rulings on a motion for a new trial under an abuse 

of discretion standard.” (quoting Tennant v. Marion Health Care Found., Inc., 194 W. Va. 

97, 104, 459 S.E.2d 374, 381 (1995)). We will apply these standards in considering the 

issues raised by WesBanco, our discussion of which follows.

B. Discussion

1. Parol Evidence. Prior to trial, WesBanco submitted two motions in 

limine asking the court to define the parties’ contract as the Construction Loan Agreement 

and to exclude evidence that would supplement, amend, or contradict that agreement. The 

circuit court denied these motions based, in part, upon an ambiguity in paragraph 4C of the 

contract, which pertained to lien waivers,

13 and also based upon conflict among various 

documents that were part of the transaction between the Millers and WesBanco:

13 The referred to provisions of paragraph 4(C) provide as follows:

C.) After depletion of the Borrower’s portion of the 

contract price specified above towards the construction of the 

proposed improvements, Lender shall, upon application of the 

Borrower make periodic disbursements to the Borrower for 

payment for work actually performed, materials delivered, or 

materials for the delivery of which the [B]orrower has entered

into an agreement, provided:
29

The Court [is] of the opinion and has previously opined that 

language of the loan agreement, particularly paragraph 4-C-[ii] 

is ambiguous and contradictory. There exists an implied 

covenant of good faith and fair dealing. That a tension exists 

between the release,[14] the expectations form, and the 

construction loan agreement, and that the jury can conclude 

that the parties by their conduct adopted the expectations form 

as a term of the contract.

In its first assignment of error, WesBanco argues that the circuit court erred 

by allowing the jury to hear parol evidence that varied and contradicted the parties’

Construction Loan Agreement.

15 WesBanco complains that the circuit court relied on an

(i) That the initial request for disbursement of the 

proceeds of the loan shall be accompanied by the executed 

waiver of lien forms signed by all contractors, subcontractors, 

and materialmen who furnished labor or materials to the site 

prior to the initial advance;

(ii) That all subsequent disbursements shall have 

been approved by the Construction Loan Department, to the 

effect that the improvements are being completed in 

accordance with the predetermined schedule for utilization of 

the contract price and shall be accompanied by the executed 

waiver of lien forms signed by all contractors, subcontractors, 

and materialmen who furnished labor or materials to the site 

prior to the initial advance[.]

14 As we noted previously, this “release” is contained in the “Draw Funds 

Disbursement Authorization” signed by the Millers in connection with each draw request. 

See supra note 11.

15 WesBanco contends that an unambiguous written contract is fully 

integrated. To support this argument, WesBanco quotes Syllabus point 2 of Kanawha 

Banking & Trust Co. v. Gilbert, 131 W. Va. 88, 46 S.E.2d 225 (1947), which provides:
30

erroneous finding of ambiguity in paragraph 4(C)(ii) of the Construction Loan Agreement 

to improperly allow Michelle Hamilton, the former WesBanco loan originator who guided 

the Millers through the process of submitting their construction loan application to 

WesBanco, to testify about her pre-loan discussions with the Millers regarding lien 

waivers. WesBanco further contends that the lower court erred by relying on this perceived 

ambiguity to allow evidence of an email exchange between Ms. Hamilton and the Millers 

that occurred after closing on the Construction Loan Agreement and that included an 

attached copy of the Expectations form.

16 WesBanco then complains that, based upon the 

circuit court’s erroneous findings of ambiguity, Mrs. Miller was improperly permitted to 

testify that there were multiple documents included in the Millers’ loan contract with 

An unambiguous written contract entered into as the 

result of verbal or written negotiations will, in the absence of 

fraud or mistake, be conclusively presumed to contain the final 

agreement of the parties to it, and such contract may not be 

varied, contradicted or explained by extrinsic evidence of 

conversations had or statements made contemporaneously with 

or prior to its execution.

(Emphasis added). The presumption that a written contract contains a final agreement that 

may not be explained by extrinsic evidence does not appear to apply in this instance. 

WesBanco points to nothing in the record to show that the Construction Loan Agreement 

between the Millers and WesBanco was the product of verbal or written negotiations.

16 This email exchange was initiated by the Millers’ inquiry about draw 

payments.
31

WesBanco, and that the document titled “Construction Loan Agreement” was just one of 

them.17

The Millers contend that separate written instruments in a given transaction 

will typically be construed together. Thus, the parties’ contract here consisted of more than 

only the Construction Loan Agreement. They contend that the various documents that 

were part of their transaction with WesBanco are properly considered part of the contract. 

We agree with the Millers that their contract with WesBanco was not limited to only the 

Construction Loan Agreement.

This Court has adopted the single transaction rule, holding that 

“‘[s]eparate written instruments will be construed 

together and considered to constitute one transaction where the 

parties and the subject matter are the same, and where there is 

clearly a relationship between the documents.’ Syllabus point 

3, McCartney v. Coberly, ___ W. Va. ___, 250 S.E.2d 777 

(1978), overruled on other grounds by Syllabus point 2, 

Overfield v. Collins, 199 W. Va. 27, 483 S.E.2d 27 (1996).” 

Syl. Pt. 1, McDaniel v. Kleiss, 202 W. Va. 272, 273-74, 503 

S.E.2d 840, 841-42 (1998).

17 WesBanco additionally appears to argue that the circuit court erred in 

allowing evidence related to mechanic’s liens; however, that evidence is mentioned only 

in passing and without analysis. Therefore, we focus our discussion on the lien waiver 

provisions of the parties’ agreement and deem WesBanco’s other complaints inadequately 

briefed. See Tiernan v. Charleston Area Med. Ctr., Inc., 203 W. Va. 135, 140 n.10, 506 

S.E.2d 578, 583 n.10 (1998) (“Issues not raised on appeal or merely mentioned in passing 

are deemed waived.” (citation omitted)).
32

Syl. pt. 3, TD Auto Fin. LLC v. Reynolds, 243 W. Va. 230, 842 S.E.2d 783 (2020). 

WesBanco contends that this holding is not applicable to the circumstances herein 

presented because the documents do not share the same parties and subject matter, and they 

were not executed contemporaneously. We disagree. When this Court recently applied 

the foregoing holding in TD Auto, we concluded that the separate instruments at issue in 

that case were not part of a single transaction and, therefore, could not be construed 

together. However, the instant matter is easily distinguishable from the circumstances 

presented in TD Auto. 

TD Auto pertained to the purchase of a vehicle. The issue before the Court 

was whether an arbitration provision agreed to in a credit application executed by the 

buyers survived a merger clause18 contained in a subsequently executed Retail Installment 

Sales Contract (“RISC”). The merger clause stated that the RISC constituted the “‘entire 

18 With respect to merger clauses,

[t]his Court has explained that “[a] ‘merger clause’ is ‘[a] 

provision in a contract to the effect that the written terms may 

not be varied by prior or oral agreements because all such 

agreements have been merged into the written document.’” 

Frederick Bus. Properties Co. v. Peoples Drug Stores, Inc., 

191 W. Va. 235, 240 n.2, 445 S.E.2d 176, 181 n.2 (1994) 

(quoting Black’s Law Dictionary 989 (6th ed. 1990)).

TD Auto Fin. LLC v. Reynolds, 243 W. Va. 230, 234-35, 842 S.E.2d 783, 787-88 (2020).
33

agreement’” between the buyers and the dealer, Crossroads Chevrolet (“Dealer” or 

“Crossroads”). TD Auto, 243 W. Va. at 234, 842 S.E.2d at 787. 

The TD Auto Court concluded that the arbitration provision did not survive 

the merger clause. The Court’s decision was based on two factors: first, the credit 

application, which contained the arbitration clause, was signed before, rather than 

contemporaneously with, the RISC;

19 second, the subject matter of the credit application 

was distinct from the purchasing documents. Id. at 237, 842 S.E.2d at 790. Focusing 

primarily on the different purposes of the credit application and the RISC, the Court 

explained that 

[t]he credit application is merely an authorization to investigate 

respondents’ credit score and employment information and 

present that information to various finance companies to 

determine which company may wish to extend financing to 

them. The credit application is not part of the purchase 

transaction documentation and governs an entirely different 

subject matter—the credit investigation and approval process. 

There is nothing about a simple credit application which 

ostensibly purports to govern any of the terms of the ultimate 

vehicle purchase or financing.

Id. The Court explained further that, 

while the credit application may have been a common 

precursor to a vehicle purchase governed by a RISC, the 

completely different subject matter of the two documents and 

lack of contemporaneous execution—which also demonstrates 

their distinct purposes—are insufficient to view them as part of 

a single transaction. Therefore, the RISC and its merger 

19 The RISC also contained an assignment of the contract from Crossroads to 

TD Auto.
34

clause—stating that it represents the “entire agreement” 

between the parties as pertains to the purchase of the vehicle—

must govern.

Id. at 238, 842 S.E.2d at 791. The instant matter differs significantly from the 

circumstances presented in TD Auto.

First, there is no merger clause at issue in this case to indicate that WesBanco 

and the Millers intended the Construction Loan Agreement to represent a merger of all 

prior agreements executed in their construction loan transaction. In fact, the Construction 

Loan Agreement, itself, references various other documents, providing a clear indication 

that it was not intended to represent the entirety of the agreement between the Millers and 

WesBanco.

20 Moreover, unlike the credit application in TD Auto, which addressed a 

20 The Construction Loan Agreement states that,

[s]imultaneously with the execution and delivery of this 

Agreement, the Borrower has executed and delivered to the 

Lender, among other documents, 1.) a Note of even date in the 

principal amount of $555,000.00 (including a Construction 

Loan Addendum to the Note), 2.) and a Mortgage, Deed of 

Trust or Security Deed (the “Security Instrument”) of even date 

securing the Note and other indebtedness, 3.) an executed copy 

of the building/construction contract, 4.) a complete set of the 

plans and specifications for the proposed improvement, each 

dated and initialed, respectively, by the Borrower and 

Contractor, 5.) the breakdown of the contract price showing the 

amount allocated to various sub-bids for masonry work and 

material, carpentry work and material, plumbing work and 

material, electrical work and material, and any other sub-bids, 

and [sic] 6.) a draw schedule unless specifically set forth in the 

building/construction contract, and 7.) any documents as set 

forth in Section 1 below.
35

completely different subject matter from the purchase of the automobile, the Expectations 

form at issue in this case is directly related to the Construction Loan Agreement in that it 

expressly addresses how requests to draw funds under the Construction Loan Agreement 

were to be made and how those funds would be disbursed by WesBanco. Importantly, the 

first line of the Expectations form specifies that “[f]ailure to make the [B]orrower(s) and 

their builder aware of this information may result in a delayed closing or first draw.” Thus, 

this document had a direct impact on the Millers’ transaction with WesBanco, including 

the potential to cause a delay in closing the loan or affecting the first draw of funds if it 

was not properly executed. Indeed, former WesBanco employee Ms. Hamilton testified 

that WesBanco would not have conducted the loan closing without the Millers and their 

contractor first executing the Expectations form:

Q. Would the loan be allowed or able to proceed in 

the absence of that document that you’re holding [the 

Expectations form] being signed?

A. Not that I’m aware. It was required to be signed 

before the construction loan.

Q. And you’ve never heard of a closing proceeding 

without that document first being signed by the borrowers; is 

that right?

A. That’s correct.

And, while WesBanco is not a signatory to the Expectations form, its title clearly displays 

that it is WesBanco’s form:
36

WesBanco Bank, Inc.

Mortgage Loan Department

Expectations Borrower/Builder

Likewise, Ms. Hamilton testified that it “was a WesBanco generated form required for all 

construction loans.” Furthermore, WesBanco followed the requirements of the form in 

connection with draw requests. WesBanco has asserted that it did not release any funds 

without first receiving four documents: (1) a Builder’s lien waiver; (2) a Builder’s 

Affidavit; (3) an Inspection Report; and (4) the Millers’ signed authorization. Notably, it 

is the Expectations form, not the Construction Loan Agreement, that lists these four 

documents and expressly states that “[a]ll draw requests will be supported by” them. 

Therefore, unlike the credit application in TD Auto, the Expectations form was an integral 

part of the transaction between WesBanco and the Millers.

The less significant factor considered in TD Auto was the fact that the 

documents at issue in that case were not contemporaneously executed. However, even 

though this Court has discussed the contemporaneous execution of documents when 

analyzing the single transaction rule, there actually is no such requirement included in our 

holding adopting that rule. See Syl. pt. 3, TD Auto, 243 W. Va. 230, 842 S.E.2d 783 

(“Separate written instruments will be construed together and considered to constitute one 

transaction where the parties and the subject matter are the same, and where there is clearly 

a relationship between the documents.” (additional quotations and citations omitted)). 

Moreover, various courts have concluded that, in certain circumstances, the single 
37

transaction rule applies even where documents were executed at different times and/or by 

different parties. See, e.g., SBKC Serv. Corp. v. 1111 Prospect Partners, L.P., 153 F.3d 

728, 1998 WL 436579, at *3 (10th Cir. 1998) (table decision) (“Where we have several 

documents executed at different times, but in the course of the same transaction concerning 

the same subject matter, we construe them together to determine the intent of the parties.”);

Barr v. Flagstar Bank, FSB, 303 F. Supp. 3d 400, 413 (D. Md. 2018) (“Under Maryland 

law, if several documents are ‘part of a single transaction’ they ‘will all be read and 

construed together as evidencing the intention of the parties in regard to the single 

transaction.’ Ford [v. Antwerpen Motorcars Ltd., 117 A.3d 21, 27 (2015)] (quoting Rocks 

v. Brosius, 241 Md. 612, 217 A.2d 531, 545 (1966)). ‘This is true even though the 

instruments were executed at different times and do not in terms refer to each other.’ Id.

at 27 (quoting Rocks, 217 A.2d at 545).”); Nat’l Jockey Club v. Ganassi, No. 04 3743, 2009 

WL 2177217, at *12 (N.D. Ill. July 21, 2009) (“The [parol evidence] rule . . . ‘does not bar 

contemporaneous written documents’ or documents ‘executed at different times as parts of 

the same transaction[.]’” (quoting IFC Credit Corp. v. Burton Indus., Inc., 536 F.3d 610, 

614 (7th Cir. 2008))); In re Fairfield Sentry Ltd., No. 10-13164 (SMB), 2018 WL 3756343, 

at *11 (Bankr. S.D.N.Y. Aug. 6, 2018) (“Documents executed at different times may still 

be construed as a single contract if ‘the parties assented to all the promises as a whole, so 

that there would have been no bargain whatever if any promise or set of promises had been 

stricken.’” (quoting Commander Oil Corp. v. Advance Food Serv. Equip., 991 F.2d 49, 53 

(2d Cir. 1993)) (additional citations omitted)); J.M. Montgomery Roofing Co. v. Fred 
38

Howland, Inc., 98 So. 2d 484, 486 (Fla. 1957) (“While the situation does not fall strictly 

within the rule that where an agreement is evidenced by two or more writings, the writings

must be construed together, it has been said that [t]his rule is not necessarily confined to 

instruments executed at the same time by the same parties for the same purpose; 

instruments entered into on different days, but concerning the same subject matter, may 

under some circumstances be regarded as one contract and interpreted together.” 

(quotations and citation omitted)); Lily, Inc. v. Silco, LLC, 997 N.E.2d 1055, 1068 (Ind. Ct. 

App. 2013) (“Even if documents are executed at different times, they may still be construed 

together as long as they relate to the same transaction.”); Hollenbeck v. Household Bank, 

829 P.2d 903, 906 (Kan. 1992) (“Documents which are executed at different times, but in 

the course of the same transaction concerning the same subject matter, will be construed 

together to determine the intent of the parties to the contract.”); Hous. Mortg. Corp. v. 

Allied Constr. Inc., 97 A.2d 802, 805 (Pa. 1953) (acknowledging the terms of an agreement 

may be expressed in two or more separate documents and stating that “[t]his is true whether 

the documents are all executed by a single party or by two or more parties, and whether 

some of the documents are executed by parties who have no part in executing the others”

(emphasis omitted)); Baker v. Wilburn, 456 N.W.2d 304, 306 (S.D. 1990) (“Where several 

writings are connected by internal references to each other, even if they were executed on 

different dates and were not among all of the same parties, they will constitute a single 

contract as long as they involve the same subject matter and prove to be parts of an entire 

transaction.” (quotations and citation omitted)); Left Gate Prop. Holding, LLC v. Nelson, 
39

No. 14-19-00247-CV, 2021 WL 1183863, at *4 (Tex. App. Mar. 30, 2021) (observing that 

“‘instruments pertaining to the same transaction may be read together to ascertain the 

parties’ intent, even if the parties executed the instruments at different times and the 

instruments do not expressly refer to each other, and . . . a court may determine, as a 

matter of law, that multiple documents comprise a written contract. In appropriate 

instances, courts may construe all the documents as if they were part of a single, unified 

instrument.’” (quoting Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 

840 (Tex. 2000))).

Based upon the foregoing discussion, we conclude that, under the 

circumstances presented in this case, the Expectations form was part and parcel of the 

construction loan transaction between the Millers and WesBanco. Having so found, we 

discern no error in the circuit court’s decision allowing Mrs. Miller to testify that “[t]here 

are multiple parts to the agreement.” Furthermore, the circuit court did not err in allowing 

parol evidence so that the jury could interpret the agreement as to lien waivers.

This Court has recognized the general rule 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.” Syl. pt. 1, Cotiga 

Development Company v. United Fuel Gas Company, 147 

W. Va. 484, 128 S.E.2d 626 ([1962]).
40

Syl. pt. 1, Sally-Mike Props. v. Yokum, 175 W. Va. 296, 332 S.E.2d 597 (1985). However, 

“[t]he determination of whether a deed, contract, or other writing is ambiguous and does 

not clearly express the intention of the parties is a question of law to be determined by the 

court.” Syl. pt. 3, Harrell v. Cain, 242 W. Va. 194, 832 S.E.2d 120 (2019).

If a circuit court finds that a deed, contract, or other 

writing is ambiguous and does not clearly express the intention 

of the parties, then the proper interpretation of that ambiguous 

document, when the facts are in dispute, presents a question of 

fact for the factfinder to resolve after considering all relevant 

extrinsic evidence.

Syl. pt. 4, id. Here we find no error in the circuit court’s conclusion that the Construction 

Loan Agreement was ambiguous. First, as the circuit court observed, paragraph 4(C)(ii)

appears to contain an error. Paragraph 4(C)(ii) requires that each draw request subsequent 

to the initial draw request be accompanied by the submission of lien waivers only from 

“contractors, subcontractors, and materialmen who furnished labor or materials to the site 

prior to the initial advance.” However, the lien waivers described in paragraph 4(C)(ii) are 

identical to the lien waivers described in paragraph 4(C)(i), which would already have been 

submitted to WesBanco in connection with the initial request for disbursement. No 

reasonable explanation for WesBanco’s need for duplicated lien waivers has been 

provided. Furthermore, WesBanco claims that the Construction Loan Agreement requires 

lien waivers on only two occasions: (1) in connection with the initial request for 

disbursement under paragraph 4(C)(i), and (2) at the final advance of the loan pursuant to 
41

paragraph 6.21 These contractual provisions conflict with the Expectations form, under 

which “[a]ll draw requests will be supported by the following documentation: . . . Properly 

executed and notarized Lien Wavers must be presented by each sub contractor in addition 

to the general contractor.” This Court previously has held that, 

“where the meaning [of a writing] is uncertain and ambiguous, 

parol evidence is admissible to show the situation of the 

parties, the surrounding circumstances when the writing was 

made, and the practical construction given to the contract by 

the parties themselves either contemporaneously or 

subsequently . . . .” Syl. Point 4, Watson v. Buckhannon River 

Coal Co., 95 W. Va. 164, 120 S.E. 390 (1923).

Syl. pt. 1, in part, Buckhannon Sales Co., Inc. v. Appalantic Corp., 175 W. Va. 742, 338 

S.E.2d 222 (1985). Given the ambiguities in the construction agreement between the 

Millers and WesBanco, the circuit court properly allowed parol evidence to clarify the 

intent of the parties with respect to the lien waivers.

2. Good Faith and Fair Dealing. WesBanco next argues that the trial court 

erred by allowing questions suggesting to the jury that it could apply the duty of good faith 

and fair dealing to vary and contradict the Construction Loan Agreement. The Millers 

contend that there was substantial evidence presented to the jury throughout trial that 

21 Paragraph 6 of the Construction Loan Agreement pertains to the final 

advance of the Loan, and sets out multiple conditions that must be met before such final 

advance would be made, including that “the Lender has received the fully executed Waiver 

of Liens from all subcontractors, suppliers and materialmen and the Builder’s Affidavit.” 

As WesBanco points out, the Millers’ loan never reached the final advance due to 

Residential Creations’ failure to complete the project.
42

WesBanco did not administer the Millers’ loan in conformity with their justified 

expectations. We find no error. 

This Court has recognized that

“[e]very contract imposes upon each party a duty of good faith 

and fair dealing in its performance and its enforcement.” 

Restatement (Second) of Contracts § 205 (1981). “Good faith” 

means “honesty in fact and the observance of reasonable 

commercial standards of fair dealing.” W. Va. Code § 46-1-

201(20). As the Restatement (Second) of Contracts § 205, cmt. 

d, puts it:

Subterfuges and evasions violate the obligation 

of good faith in performance even though the 

actor believes his conduct to be justified. But the 

obligation goes further: bad faith may be overt or 

may consist of inaction, and fair dealing may 

require more than honesty. A complete 

catalogue of types of bad faith is impossible, but 

the following types are among those which have 

been recognized in judicial decisions: evasion of 

the spirit of the bargain, lack of diligence and 

slacking off, willful rendering of imperfect 

performance, abuse of a power to specify terms, 

and interference with or failure to cooperate in 

the other party’s performance.

Mountaineer Fire & Rescue Equip., LLC v. City Nat’l Bank of W. Va., ___ W. Va. ___, 

___ n.9, 854 S.E.2d 870, 891 n.9 (2020).

WesBanco contends that counsel for the Millers posed questions to 

WesBanco’s corporate representative, Cathi McClelland, that suggested the jury could 

apply the duty of good faith and fair dealing to vary and contradict the Construction Loan
43

Agreement’s provision related to mechanic’s liens. Under paragraph 7 of the Construction 

Loan Agreement, “Borrower agrees that any mechanic’s lien filed upon the property shall 

be Borrower’s sole responsibility and hereby holds Lender harmless against all losses, 

including but not limited to, liability, costs, or damages resulting from same.” The 

complained-of exchange occurred during trial as follows: 

Q. Do you believe that that clause [paragraph 7] is 

subject to being interpreted under principles of good faith and 

fair dealing?

MR. SCHAEFFER: Objection, Your Honor.

THE COURT: Overruled.

Q. May I give you an example?

A. Please.

Q. Let’s say that a mechanic’s lien was identified, a 

supplier’s lien, in fact, was identified by the bank, and the bank 

either didn’t pay it or didn’t pay it in the proper sum and the 

property owner had a lien filed against it. Do you think that it 

would be within the parameters of good faith and fair dealing 

to interpret this contract language to say this is your 

responsibility, owner?

[Bench conference addressing objection by WesBanco]

Q. Ms. McClelland, does WesBanco, and then you 

specifically when you’re working on residential construction 

loans, try to act in good faith?

A. Yes.

Q. Okay. And do you try to deal fairly with your 

customers?

A. Yes.
44

. . . .

Q. And so what I’m asking you, is that clause 

number 7 . . . do you believe that you would be acting in good 

faith and fair dealing if WesBanco did not perform a condition 

and have the duty to perform under the contract in regards to a 

mechanic’s lien and then could fall back on the language that 

we told you, it’s on you? Would that be fair?

A. I believe it would be. 

Although not referred to by WesBanco, the exchanged continued as follows:

Q. All right. And do you think that that would be 

acting in good faith? And again, if WesBanco failed to do 

something that they should have done in regards to a 

mechanic’s lien to say, oops, here, look at clause number 7, I’m 

sorry we didn’t do what we were supposed to do, but it’s on 

you?

A. I believe we were doing what we were required 

to do per the terms of the construction loan agreement.

The Millers contend that substantial evidence was presented to the jury 

throughout trial that WesBanco did not administer the Millers’ loan in conformity with 

their justified expectations. For example, the Expectations form assured the Millers that 

WesBanco would attend to lien waivers, and Ms. Hamilton assured them that this extended 

to materialmen lien waivers, yet a mechanic’s lien was asserted against the Millers after 

Residential Creations ceased work on their home. The Millers also point out that 

WesBanco accepted Builder’s Affidavits tendered by Residential Creations when the area

for providing information about amounts paid to sub-contractors or materialmen and the 

amounts that remained due was not completed. The Millers contend that WesBanco’s 
45

cavalier observance of its own documents supplied the jury with ample evidence to 

determine that WesBanco had breached the covenant of good faith and fair dealing in its 

contract with the Millers. 

We find no reversible error. Although counsel’s first attempts at posing his 

question about the duty of good faith and fair dealing were phrased in a way that indicated 

paragraph 7 could be interpreted under principles of good faith and fair dealing, those 

questions were not answered. In the end, counsel properly phrased the question in a manner 

that did not modify WesBanco’s obligations pursuant to the parties’ agreement. Rather, 

counsel effectively asked whether WesBanco’s reliance on paragraph 7 would show bad 

faith “if WesBanco failed to do something that they should have done in regards to a 

mechanic’s lien,” and then relied on paragraph 7 to nevertheless hold the Millers

responsible for WesBanco’s failure. Furthermore, the jury was properly instructed as 

follows:

The Court instructs the jury that West Virginia law 

implies a covenant of good faith and fair dealing in every 

contract for purposes of evaluating a party’s performance of 

that contract. However, by the same token, the implied 

covenant of good faith and fair dealing cannot give contracting 

parties rights which are inconsistent with those set out in the 

contract.

Good faith performance or enforcement of a contract 

emphasizes faithfulness to an agreed common purpose and 

consistency with the justified expectations of the other party; it 

excludes a variety of types of conduct characterized as 

involving bad faith because they violate standards of decency, 

fairness, or reasonableness.
46

In this case, counsel ultimately phrased the question to correctly state the doctrine of good 

faith and fair dealing, and it was the properly phrased question that was answered by the 

witness. Furthermore, the jury was properly instructed as to the law of good faith and fair 

dealing. Accordingly, we find that WesBanco did not suffer any prejudice resulting from 

the initial, improperly phrased queries that were not answered by the witness. Therefore, 

any error that may have occurred was harmless. See Tennant v. Marion Health Care 

Found., Inc., 194 W. Va. 97, 111, 459 S.E.2d 374, 388 (1995) (“Under West Virginia law, 

when substantial rights are not affected, reversal is not appropriate. A party is entitled to 

a new trial only if there is a reasonable probability that the jury’s verdict was affected or 

influenced by trial error.”); Danser v. Dorr, 72 W. Va. 430, 432, 78 S.E. 367, 367 (1913) 

(“This court will not reverse for harmless error.”).

3. Judgment as a Matter of Law. WesBanco next argues that the 

circuit court erred in denying its motion for judgment as a matter of law, made pursuant to 

Rule 50(b) of the West Virginia Rules of Civil Procedure. WesBanco explains that the 

Millers’ alleged two breach-of-contract claims: one based on WesBanco’s disbursement of 

loan funds for unfinished work (“unfinished-work claim”), and the other based on 

WesBanco’s failure to obtain lien waivers from O.C. Cluss (“lien-waiver claim”), which 

would have alerted them to Residential Creation’s failure to pay for materials. WesBanco 

argues that the Millers not only failed to establish liability as to their unfinished-work claim 
47

and their lien-waiver claim, but they also failed to establish that they suffered any damage

as a result. 

With respect to the unfinished-work claim, WesBanco notes that the jury was 

instructed that,

[i]n order to prevail on their first breach of contract 

claim, the Millers must prove each of the following by a 

preponderance of the evidence: one, that WesBanco was 

prohibited by the contract to pay Residential Creations for 

work that was not done; two, that WesBanco paid Residential 

Creations for work that was not done; and three, that they 

incurred damages because WesBanco paid Residential 

Creations for work that was not done.

WesBanco argues that the Millers failed to show that WesBanco paid Residential Creations 

for work that was not done. To support this argument, WesBanco notes that it disbursed 

funds according to benchmarks set out in the draw schedule that was part of the 

construction contract between the Millers and Residential Creations, and the Millers 

admitted that the draw schedule placed them underwater from the start. WesBanco argues 

further that the evidence established that it never released a draw payment without first 

obtaining four documents assuring that the corresponding benchmark had been finished: 

(1) a Builder’s lien waiver; (2) a Builder’s Affidavit; (3) an Inspection Report; and (4) the 

Millers’ signed authorization. 

With respect to the Millers’ lien-waiver claim, WesBanco notes that the jury 

was instructed that,
48

[i]n order to prevail on their second breach of contract 

claim, the Millers must prove each of the following by a 

preponderance of the evidence: one, that WesBanco was 

required by the contract to get a lien waiver from O.C. Cluss; 

two, that WesBanco did not get a lien waiver from O.C. Cluss; 

and three, that they incurred damages because WesBanco did 

not get a lien waiver from O.C. Cluss.

WesBanco argues that the Millers had to show that WesBanco was required by the contract 

to obtain a lien waiver from O.C. Cluss, a materialman. WesBanco argues that it was 

required to obtain lien waivers from materialmen in only three specific instances: (1) if 

materials had been supplied to the site before the initial advance, then WesBanco was 

required to obtain lien-waivers from any supplier of such materials before disbursement of 

the initial advance; (2) if materials had been supplied to the site before the initial advance, 

then WesBanco was required to obtain lien-waivers from any supplier of such materials 

before each subsequent disbursement; and (3) WesBanco was required to obtain lien 

wavers from materialmen before the final disbursement, which never occurred.22 

According to WesBanco, there was no dispute that O.C. Cluss did not supply materials 

before the initial advance, and the final disbursement never occurred; therefore, WesBanco 

claims that it had no contractual obligation to obtain any lien waivers from O.C. Cluss. 

WesBanco then reiterates its argument that the contract language was clear as to lien 

waivers and therefore should have been applied rather than construed. WesBanco next 

argues that, in paragraph 7 of the contract, the Millers agreed to hold WesBanco harmless 

22 The final disbursement was never made due to Residential Creations’ 

failure to complete the project.
49

from any liability resulting from mechanic’s liens. The Millers do not respond to the 

foregoing arguments.

This Court has held that,

“[i]n considering whether a motion for judgment 

notwithstanding the verdict under Rule 50(b) of the West 

Virginia Rules of Civil Procedure should be granted, the 

evidence should be considered in the light most favorable to 

the plaintiff, but, if it fails to establish a prima facie right to 

recover, the court should grant the motion.” Syllabus point 6, 

Huffman v. Appalachian Power Company, 187 W. Va. 1, 415 

S.E.2d 145 (1991).

Syl., First Nat’l Bank of Bluefield v. Clark, 191 W. Va. 623, 447 S.E.2d 558. See also Syl. 

pt. 1, Jones v. Patterson Contracting, Inc., 206 W. Va. 399, 524 S.E.2d 915 (1999) 

(“‘“When the plaintiff’s evidence, considered in the light most favorable to him, fails to 

establish a prima facie right to recovery, the trial court should direct a verdict in favor of 

the defendant.” Syl. Pt. 3, Roberts v. Gale, 149 W. Va. 166, 139 S.E.2d 272 (1964).’ Syl. 

Pt. 1, Brannon v. Riffle, 197 W. Va. 97, 475 S.E.2d 97 (1996).”). The term “prima facie” 

refers to evidence that, without contradiction, tends to prove a fact:

“The words ‘prima facie,’ as used in connection with the force 

and effect of the evidence, mean no more than that the latter, 

on its face or at first view and without contradiction or 

explanation, tends to prove the fact in issue–not that it does 

necessarily establish it. Perhaps a more exact legal definition 

is that it is such as is, in judgment of law, sufficient to establish 

the ultimate fact, and, if not explained or rebutted, remains 

sufficient for that purpose. . . .”
50

State v. Tincher, 81 W. Va. 441, 445, 94 S.E. 503, 505 (1917) (quoting State v. Russell, 80 

S.E. 66, 68 (N.C. 1913)). See also prima facie, Black’s Law Dictionary (7th ed. 1999) 

(“Sufficient to establish a fact or raise a presumption unless disproved or rebutted.”). 

Moreover, elaborating on what is meant by viewing the evidence favorably to the 

nonmoving party for purposes of a motion for judgment as a matter of law, this Court has 

explained that,

“‘“[u]pon a motion to direct a verdict for the defendant, 

every reasonable and legitimate inference fairly arising from 

the testimony, when considered in its entirety, must be 

indulged in favorably to plaintiff; and the court must assume 

as true those facts which the jury may properly find under the 

evidence. Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 

112 W. Va. 85[, 163 S.E. 767 (1932)].”’ Point 1, Syllabus, 

Jenkins v. Chatterton, 143 W. Va. 250[, 100 S.E.2d 808] 

(1957).” Syl. Pt. 1, Jividen v. Legg, 161 W. Va. 769, 245 

S.E.2d 835 (1978).

Syl. pt. 4, Jones, 206 W. Va. 399, 524 S.E.2d 915. See also Syl. pt. 3, id. (“‘Upon a motion 

for a directed verdict, all reasonable doubts and inferences should be resolved in favor of 

the party against whom the verdict is asked to be directed.’ Syl. Pt. 5, Wager v. Sine, 157 

W. Va. 391, 201 S.E.2d 260 (1973).”). Stated another way,

[i]n determining whether there is sufficient evidence to 

support a jury verdict, the trial 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.
51

Louis J. Palmer, Jr., Robin Jean Davis, Litigation Handbook on West Virginia Rules of 

Civil Procedure 1191 (5th ed. 2017).

Rather than considering the evidence in the light most favorable to the 

Millers, WesBanco’s arguments are founded on its interpretation of the Construction Loan 

Agreement and its position that the Construction Loan Agreement was the sole document 

encompassing the parties’ contract. Contrary to WesBanco’s position, however, we have 

concluded that, under the single transaction rule, the agreement between WesBanco and 

the Millers was not limited to only the Construction Loan Agreement. 

The Millers presented evidence that WesBanco had assured them that no 

funds would be disbursed for work not completed. Indeed, the Expectations form expressly 

states that “[f]unds will not be disbursed for work not completed,” and “[f]unds will not be 

disbursed for materials on site not installed.” Furthermore, the Construction Loan 

Agreement states, in relevant part at paragraph 4.C., that “Lender shall, upon application 

of the Borrower make periodic disbursements to the Borrower for payment for work 

actually performed, materials delivered, or materials for the delivery of which the 

[B]orrower has entered into an agreement . . . .” (Emphasis added). Additionally, Ms. 

Hamilton testified that she had told the Millers that no funds would be disbursed until work 

was completed. Nevertheless, in disbursing funds, WesBanco relied on the draw schedule 

in the construction contract, which used benchmarks rather than completed work to 
52

establish when draws should be made. The evidence at trial showed that, by following this 

draw schedule founded on benchmarks, WesBanco paid for work that was not completed. 

To the extent that WesBanco argues that it never released a draw payment 

without first obtaining four documents assuring that the corresponding benchmark had 

been finished, we find that, taken in the light most favorable to the Millers, at least two of 

these documents fail to support WesBanco’s position. First, the evidence demonstrated 

that WesBanco accepted Builder’s Affidavits from Residential Creations that were not 

properly completed in that they failed to provide information about subcontractors and 

materialmen. Furthermore, the Inspection Reports established that the level of completed 

work on the home did not correspond with the percentage of funds WesBanco paid out 

with each draw. The last Inspection Report stated that the house was only fifty-three 

percent complete, while WesBanco had released $442,000 in loan funds, or approximately 

eighty percent of the Millers’ loan. This evidence establishes the Millers’ prima facie right 

to recover. Furthermore, we find the fact that WesBanco paid out eighty percent of loan 

funds for a house that was only fifty-three percent complete satisfied the Millers’ burden 

to show they suffered damages.23 Accordingly, the circuit court did not err in denying 

WesBanco’s motion for judgment as a matter of law as to the Millers’ unfinished-work 

claim.

23 We here conclude that there was sufficient evidence that the Millers 

suffered damages from WesBanco’s breach of contract by paying for unfinished work. 

Whether the Millers sufficiently proved the amount of their damages is addressed below.
53

Similarly, the Millers presented sufficient evidence of their lien-waiver claim 

to overcome WesBanco’s motion for judgment as a matter of law. The Expectations form 

contained at least two provisions relevant to this issue. First, the form required a properly 

completed Builder’s Affidavit: “Builder’s Affidavit: Properly completed with all work 

detailed including materials and labor for all sub contractors. The total amount due must 

be clearly identified. The form must be signed by the general contractor in the presence of 

a notary public.” (Emphasis added). In addition, the Expectations form provided “Lien 

Waivers: Required. Properly executed and notarized Lien Waivers must be presented by 

each sub contractor in addition to the general contractor.” The Millers presented evidence 

that WesBanco accepted Builder’s Affidavits from Residential Creations that were not 

properly completed, that failed to detail the work completed, and failed to provide 

information pertaining to sub contractors. Moreover, the Builder’s Affidavit was to include 

the names of all parties who have furnished material or labor, 

or both, to the undersigned [Builder] for said work and of all 

parties having contracts or subcontracts with the undersigned 

[Builder] for specific portions of said work or for materials

entering into the construction thereof and the amount due or to 

become due to each, and that the items mentioned include all

labor and material required to complete said work according 

to plans and specifications[.]

(Emphasis added). Residential Creations failed to provide any of the required information. 

Instead, Residential Creations merely described the benchmark that had been reached. 

Despite this improperly completed form that omitted critical financial information 

regarding the construction, WesBanco accepted the incomplete Builder’s Affidavits 

submitted by Residential Creations and released the requested loan funds. The evidence 
54

further showed that blank Builder’s Affidavit forms had been provided to the Millers by 

WesBanco. The Millers, in turn, gave the blank forms to their builder, Residential 

Creations. Thereafter, Residential Creations presented the completed affidavits to 

WesBanco along with each of its draw requests. The Millers did not see the completed 

forms and had no way of knowing that Residential Creations had failed to provide crucial 

information. 

Furthermore, paragraph 4.B.(i) of the Construction Loan Agreement also 

addressed lien waivers and granted WesBanco discretion to determine whether they were 

needed: “Lender shall be under no obligation to advance funds hereinunder until Lender 

has obtained . . . the executed Waiver of Liens from the general contractor and from the 

subcontractors, suppliers and materialmen if deemed necessary.” (Emphasis added). The 

Millers contend, however, that, even applying the language of the Construction Loan

Agreement, the jury could reasonably have determined that WesBanco abused its 

discretion and violated its duty of good faith and fair dealing by failing to obtain lien 

waivers from subcontractors and materialmen before advancing funds. We agree,

particularly where, as here, the percentage of funds advanced substantially exceeded the 

percentage of work completed on the home.24 Thus, the evidence was sufficient for the 

24 We likewise reject WesBanco’s contention that it was entitled to judgment 

as a matter of law based upon paragraph 7 of the Construction Loan Agreement, under 

which the Millers agreed that “any mechanic’s lien filed upon the property shall be 

Borrower’s sole responsibility” and they would hold WesBanco “harmless against all 

losses, including but not limited to, liability, costs, or damages resulting from same.” At 
55

jury to conclude that WesBanco breached its agreement with the Millers by failing to 

properly obtain lien waivers, and evidence of the resulting mechanic’s lien by O.C. Cluss 

established that the Millers suffered damages.

25 Therefore, the circuit court did not err in 

denying WesBanco’s motion for judgment as a matter of law with respect to the Millers’

lien-waiver claim.

4. Damages Verdicts. In its final assignment of error, WesBanco 

argues that the circuit court erred in denying its Rule 59(a) motion for a new trial on 

damages because the damages awarded by the jury are against the clear weight of the 

evidence and would result in a miscarriage of justice. We agree.

The jury awarded damages to the Millers in the amount of $404,500 for 

breach of contract in general. Although the jury was instructed that the Millers had two 

breach-of-contract claims, the unfinished-work claim and the lien-waiver claim, the 

trial, the Millers contended that, because WesBanco’s failure to fulfill its contractual 

obligation to obtain lien waivers resulted in the O.C. Cluss mechanic’s lien, WesBanco 

would violate its duty of good faith and fair dealing by seeking to enforce paragraph 7. See

Mountaineer Fire & Rescue Equip., LLC v. City Nat’l Bank of W. Va., ___ W. Va. ___, 

___ n.9, 854 S.E.2d 870, 891 n.9 (2020) (“Every contract imposes upon each party a duty 

of good faith and fair dealing in its performance and its enforcement.”). Accordingly, 

paragraph 7 of the Construction Loan Agreement did not entitle WesBanco to judgment as 

a matter of law.

25 We here conclude that there was sufficient evidence that the Millers 

suffered damages from WesBanco’s breach of the lien-waiver provisions of the contract. 

Whether the Millers sufficiently proved the amount of their damages is addressed below.
56

damages award was not allocated between them. The $404,500 award appears to be the 

sum of $287,500, which represented the total amount expended by the Millers to complete 

their home after Residential Creations ceased construction (i.e. the unfinished-work claim), 

and $117,000, which is roughly the amount of the O.C. Cluss mechanic’s lien (i.e. the lienwaiver claim). Nevertheless, whether and how the damages are split between the Millers’ 

two breach-of-contract claims is merely presumed.

WesBanco argues that the Millers’ unfinished-work damages were based on 

the difference between what they had expected to pay for their home and what they actually 

paid. The Millers’ evidence included an eleven-page spreadsheet listing the amounts they 

spent to complete their home after Residential Creations quit work, which purportedly 

totaled $287,500.

26 This amount does not account for $113,000 that was never disbursed 

by WesBanco from the Millers’ loan funds.

27 WesBanco provides the following chart to 

demonstrate the difference between what the Millers expected to pay for their home and 

what they actually paid:

26 Mrs. Miller apparently had receipts to support the spreadsheet, but the 

receipts are not part of the appendix record.

27 Mrs. Miller testified that the amount that was never disbursed by 

WesBanco was not made part of her construction loan, and her loan payments did not 

reflect any indebtedness based thereon.
57

Expected Cost: Actual Cost:

WesBanco Loan $555,000.00 WesBanco Loan $442,000.00

Down Payment $149,000.00 Down Payment $149,000.00

Out-of-Pocket Expenses $0.00 Out-of-Pocket Expenses $287,500.00

$704,000.00 $878,500.00

Based on this chart, WesBanco argues that the Millers’ damages for their unfinished-work 

claim should not have exceeded $174,500, the difference between their expected cost and 

the actual cost of completing their home. Yet the jury appears to have granted the Millers’ 

$287,500 in unfinished-work damages.

With respect to the Millers’ lien-waiver claim, WesBanco notes that the O.C. 

Cluss mechanic’s lien includes $14,000 in charges for materials that were delivered after 

WesBanco authorized the last draw. Because WesBanco was never asked to authorize a 

payment for these expenses, it had no corresponding duty to obtain a lien waiver in relation 

thereto. Nevertheless, the entire amount of the $117,000 mechanic’s lien appears to have 

been included in the damages award.

The Millers respond to the two preceding arguments by asserting that proof 

of damages to a reasonable degree of certainty does not demand absolute certainty to the 

exactitude of a mathematical calculation. The Millers contend that the jury award of 

$404,500 was made up of two elements, $287,500 representing the cost of completing their 

home as represented by their spreadsheet, and $117,000 for the O.C. Cluss mechanic’s lien. 

Furthermore, the Millers submit that their damage claim is founded on three pillars: (1) 
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the amount of the mechanic’s lien; (2) their spreadsheet itemizing out-of-pocket expenses 

they incurred to complete their home; and (3) the final report of WesBanco’s appraiser 

demonstrating that their home was only fifty-three percent complete when Residential 

Creations quit working, which left the home forty-seven percent incomplete. The Millers 

assert that forty-seven percent of the $690,000 that Residential Creations was to have been 

paid for their completed home equals $324,300, but they completed their home to a lesser 

quality than originally planned and spent only $287,500.

This Court has held that

[i]n an action to recover damages for breach of contract, 

when the case has been fairly tried and no error of law appears, 

the verdict of a jury, based upon conflicting testimony and 

approved by the trial court, will not be disturbed unless the 

verdict is against the plain preponderance of the evidence.

Syl. pt. 3, Franklin v. Pence, 128 W. Va. 353, 36 S.E.2d 505 (1945). Nevertheless, in order 

to recover substantial damages for a breach-of-contract claim, there must be sufficient 

proof.

To entitle plaintiff to recover substantial damages for 

breach of contract, where the loss is pecuniary and susceptible 

of proof with approximate accuracy, he[/she] must establish 

the quantum of damages with reasonable certainty. Where no 

sufficient data is afforded whereby a jury may definitely 

ascertain the compensation due for the breach, recovery 

therefor can be nominal only.

Syl. pt. 2, Wilson v. Wiggin, 77 W. Va. 1, 87 S.E. 92 (1915). Moreover, 

[i]t is a fundamental principle of the law of contracts that a 

plaintiff is only entitled to such damages as would put him in 
59

the same position as if the contract had been performed. Bryant 

v. Peckinpaugh, 241 Va. 172, 400 S.E.2d 201 (1991); 

Associated Stations, Inc. v. Cedars Realty and Development 

Corp., 454 F.2d 184 (4th Cir. 1972). In other words, a plaintiff 

is not entitled to damages beyond his actual loss attributable to 

defendant’s breach. Horn v. Bowen, 136 W. Va. 465, 67 

S.E.2d 737 (1951).

Milner Hotels, Inc. v. Norfolk & W. Ry. Co., 822 F. Supp. 341, 344 (S.D.W. Va. 1993), 

aff’d, 19 F.3d 1429 (4th Cir. 1994) (table decision).

Based on our examination of the record in this case, we agree with WesBanco 

that the damages awarded by the jury are against the weight of the evidence. First, as 

explained above, whether the jury intended to award damages for both of the two methods 

by which WesBanco breached the Construction Loan Agreement, and, if so, how those 

damages were apportioned, is subject only to speculation. Moreover, the Millers’ damages 

for WesBanco’s breach by paying for unfinished work was presented in the form of an 

eleven-page spreadsheet listing their expenses for completing the home. However, given 

that all of the loan funds were not disbursed by WesBanco, this list necessarily includes 

items for which WesBanco never released payments. Such items are not properly included 

in the Millers’ damages award, particularly where no offset was given for the funds that 

WesBanco never disbursed. Additionally, many of the items are listed in very general 

terms, and the Millers direct us to no place in the record where they demonstrated that these 

items were included in their construction contract and were paid for in advance by 

WesBanco. It also is not clear that all of the items on the Millers’ chart were actually 
60

included in the Millers’ construction contract with Residential Creations.28 Similarly, the 

jury award appears to include portions of the O.C. Cluss mechanic’s lien that related to 

materials delivered after the last disbursement of funds by WesBanco. Because the 

delivery of these materials post-dated the last draw request made to WesBanco, WesBanco 

had no contractual duty to obtain any lien waiver for these materials. Thus, to the extent 

these damages may have been included, the award is against the evidence. For these 

reasons, we find the circuit court abused its discretion in denying WesBanco’s motion for 

a new trial with respect to damages. Accordingly, we reverse the damages award and 

remand this case for a new trial on damages.

IV.

CONCLUSION

For the reasons explained in the body of this opinion, we find no error in the 

circuit court’s order denying prejudgment interest to the Millers and we affirm that ruling. 

We likewise find no error in the circuit court’s admission of parol evidence related to the 

agreement between the Millers and WesBanco, the manner in which the court allowed the 

Millers to present the duty of good faith and fair dealing, or the denial of WesBanco’s 

28 For example, one expenditure of $5,500 is simply identified as “work 

Residential Creations was supposed to do,” with no description of what the work actually 

involved. Furthermore, while the construction contract indicates the Millers’ garage was 

to have an unfinished interior, another expenditure appears to include drywall for the 

garage.
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motion for judgment as a matter of law. These rulings also are affirmed. However, we 

find the jury’s damages award of $404,500 was against the clear weight of the evidence; 

therefore, we reverse this award and remand this case for a new trial on damages only.

No. 20-0041: Affirmed.

No. 20-0042: Affirmed in part, Reversed in part, and Remanded.