IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 2021 Term

_____________

No. 20

- 0041

_____________ 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

_____________

No. 20

- 0042

_____________ 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, R EVERSED IN PART, AND REMANDED

________________________________________________ Submitted: February 17, 202 1 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 instrume nts 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. ___, 25 0 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 acc ording to such intent.’ Syl. pt. 1, Cotiga Development Company v. United Fuel Gas Company , 147 W. Va. 484, 128 S.E.2d 626 ( [ 196 2] ).” Syllabus point 1, Sally

- Mike Properties v. Yokum , 175 W. Va. 296, 332 S.E.2d 597 (1985).ii 4. “The determination of whethe r 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 c ourt 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 factfin der 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 sit uation 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 C o ., 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 a ppears, 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 5 05 (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 n o 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 J enkins, 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, challeng e the circuit court ’ s denial of prejudgment interest , which was based upon the ir 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 err or 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
agreem ent 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

cou rt 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 good2 faith and fair dealing was properly applied. In its third assignment of error, W esBanco 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 agr ee 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 contract ed 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 t he 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 con tract , the Miller s 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. Th e 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.

– Au t horization 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 no t 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 C onstruction L oan A greement and a separate Construction Loan Addendum 4 with We sBanco, 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 , ” s et out the procedure for requesting WesBanco to disburs e loan funds (sometimes ref erred 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 ar e 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 a nd 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 P roperty 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 I nspections are made as re quested 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 per iodic 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 proceed s 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 provis ions that are germane to this appeal : 6. Final A dvance 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 the7 Lender that a permanent certificate of occup ancy 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 improvemen ts meeting the requirements stated in th is Agreement. Borrower shall provide L ender with a final inspection report which must be satisfactory to the L ender, and the L ender 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, incl uding but not limited to, liability, costs, or damages resulting from same. (Emphasis added). C losing for th e Construction L oan A greement was on October 22,
2015

. At closing, the Millers tendered a cash payment of approximately $149,000 to cover a porti on of the construction costs along with other expenses such as those charged by a construction inspector, some of the s ite preparation costs, and fees associated with the closing of the loan. The portion of the Millers ’ deposit r elated to the construction w as to be disbursed by WesBanco along with the loan proceeds

.

The initial $70,000 payment to Residential Creations was made at closing. Thereafter, f our documents were required by WesBanco in connection with each draw request. First, WesBanco required a “ Waiver of Lien Materials or L abor ” 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 that8 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 th at [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 item s mentioned include all labor and material required to complete said work according to plans and specifications [.] Space was then provided for th e b uilder to list the names of sub

- contractors, the kind of work performed, the amount of the contract, the am ount 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 t he draw sch edule set out in the c onstruction 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 , p rior to each disbu rsement 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 satisfied9 and accepts such com pleted 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.

T he first two draw requests initiated by Residential Creations, which were made together and totaled $1 9 0,000.00 , 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 mor ning two draw requests, on e 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 A ND 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 pro ject 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. Mi ller 7 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 struc tured 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 “F oundation

. . . . . . $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 wh at 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 docume nts. (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 appr oved 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. W e 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 i s 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 th e 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 $1 3 0,000 , and a second form was for the amoun t 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 h ome, filed bankruptcy proceedings , and h ad 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 ’ s12 l ien against the Miller s ’ h ouse 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 $ 44 2,00 0 of the loan proceeds to Residential
Creations , 9 which was approximate ly 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 l esser quality materials than they had contracted for with Residential Creations due to the resulting strain on their finances. According to Mrs.
Miller ’ s te stimony, the Millers paid $125,000 of their own funds and borrowed an
additional amount of $16 2 , 0 00 from family member s , for a total of $287,000 10 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). T he loan apparently was frozen by WesBanco after Residential Creations ceased construction an d 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 motion s seeking to dismiss Counts I, II, and III of the Millers ’ c omplaint. Following a hearing on the motions, and by order entered on March 13, 2018, the circuit court granted WesBanco ’ s first motion t o 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
WesBanco 11 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 relie d 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 betw een 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 q uestions 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. G iven 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 su p port the amount of draw requested.” The Court also agrees with the Plaintiffs that the lang uage 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 p a rty ’ s performan ce 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 th at “Expectations” form as a term of the loan agr eement.
5. If the jury resolves the questions of fact identified above in favor of the plaintiffs, then, contrary to15 WesBanco ’ s argument, the rights which the plaintiffs assert would not be inconsistent with the terms of the contract [,] and the good fait h and fair dealing obligation could fairly be imposed upon the defendant.

Thereafter, WesBanco filed two motions in limine : o ne 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 L oan 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 fr om other witnesses, including Ms. Hamilton and Cathi McClelland , a vice president and manager of WesBanco ’ s R esidential C onstruction L ending D epartment

. The
circuit court allowed the witnesse s to be questioned about the Construction L oan 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 a16 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 damage s.

The Millers then submitted a proposed judg ment order that granted them
pre judgment interes t in the amount of $89,664.04. WesBanco objected to the Millers ’ proposed judgment order and argu ed 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 j udgment 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, t he circuit court denied the motion s
. 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 r eview 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.
N O . 20

- 004 1 MILLER v. WESBANCO BANK, INC
. The Millers assert a single assignment of error in which they a rgue 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 alt er 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. p t. 1, Wickland v. Am

. Travellers Life Ins. Co ., 204 W. Va. 430, 513 S.E.2d 657 (1998 ).
T he 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 o f 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 prejud gment 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 Vir ginia 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 submitt ing the issue to the trial jury for its consideration, plaintiffs waived their right to pre

- judgment interest on the jury ’ s verdict.

T he Millers contend that the circuit court improperly applied outdated case
law to conclude that West Virginia Code sect ion 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 cons ider 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 , 15919 W. Va. 108, 219 S.E.2d 361 (1975). Thus, w h ere 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 settlem ents. 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 determ ined 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 intere st 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 such20 intere st squarely within the discretion of the presiding court. H owever, we may not limit our analysis to considering this single provision in isolation. “ S tatutes which relate to the same persons or things, or to the same class of persons or things, or statut es which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent.” Syl. p t. 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 questio n 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 p rovision 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 prejud gment 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 inte rest 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. O ur task is to determine which one the L egislature intends to apply.

Prior to a 20 06 amendment of W est Virginia Code section 56

- 6

- 31, this Court addressed this very issue. T he 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 t his S tate shall bear interest from the date thereof, whether it be so stated in the judgment or decree or not: Provided, t hat 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 forgoi ng 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 i ts 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 a dd ed language referring to actions in contract and also retain ed 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, whethe r in an action sounding in tort, contract or otherwise, entered by any court of this S tate 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, thi s Court continued to apply
Stuck e

y , 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 “wh ether 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 determin ation 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) 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 simple, not compounding, interest, whether it is st ated 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 settl ements. 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” limitat ion 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 a lso fails to contain any language expressly24 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 re quires 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

s ect ion 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, 56 6 n.87, 814 S.E.2d 205, 2 29 n.87 (2018) (addressing prejudg ment 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 intend s section 56

- 6

- 27 to govern prejudgment interest in actions founded on contract by the fact that, despite this
Court ’ s prior holding s that section 56

- 6

- 27 provides the method of obtaining prejudgment
interest in contract action s , i.e. by requesting the same from the jury, the Legislature never repeal ed 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) (“ ‘ T he Legislature, when it enacts legislation, is presumed to know its pri or enactments. ’ Syl labus 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 [.]

. . . ’ ” (quo ting Knight

- Ridder Broadcasting, Inc. v. Greenberg , 511 N.E.2d 1116 , 1 119 (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 Mil lers will have another opportunity to comply with West Virginia Code section 56

- 6

- 27

.26 I II.
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 deal ing 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 b reach

- of

contract 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 on e 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. p t. 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 de termine 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 judg ment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party. Syl. p t. 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 prevail ing 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. p t. 5, Orr v. Crowder , 1 73 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

- Pacif ic 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 Ma r sch 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 t o trial, WesBanco submitted two motions in limine asking the court to define the parties ’ contract a s 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 const ruction 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 T he Court [is] of the opinion and has previously opined that language of the loan agreement, particularly paragraph 4

- C

- [ii] is am biguous 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 thei r 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 schedul e 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 pre viously, 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 discussio ns with the Millers regarding lien
waivers

. WesBanco further contends that t he lower court erred by relying on this perceived ambiguity to allow evidence of a n email exchange between Ms. Hamilton and the Millers
that occurred after closing on the Construc tion 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 a mbiguity, M r s. Miller was improperly permitted to testify that there were multiple docum ents included in the Millers ’ loan contract with

An unambiguous writte n 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 b y 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 a ppear 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 t he 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 togethe r. 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 no t limited to only the
Construction Loan Agreement

.

T his Court has adopted the single transaction rule, holding t hat

“ ‘ [s] eparate written instruments will be construed together and consid ered 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 g rounds 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 discus sion 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 app lied 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, t he instant matter is easily distinguishable from the c ircumstances 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 clause 18 contained in a subsequently executed Retail Installment
Sales Contract (“R I SC”). The merger clause stated t hat 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 A uto 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 sur vive 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 appli cation

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 i s 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 la ck 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 a n 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 agreem ents executed in their construction loan transaction. In fact, the Construction
L oan 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 addre ssed 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 c omplete s e t 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 i n Section 1 below.35 completely different subject matter from the purchase of the automobile, the Expectations
f

orm at issue in this case is directly related to the Construction Loan Agreement in that it expressly addresse s 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 f orm s pecifie s 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 exe cuted

. Indeed , former WesBanco employee Ms. Hamilton testif i ed that WesBanco would not have conducted the loan closing without the Millers and their

contractor first executing the Expectations f orm: Q. Would the loan be allowed or able to proceed in the absence of that document that you ’ re holding [the Expectations f orm] being signed?
A. Not that I ’ m awar e . 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 si gned 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 lis ts these fo u r documents and expressly states that “[a]ll draw requests will be support ed 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

transac tion 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 court s have concluded that , in certain circumstances, the singl e37 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 hav e 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, 2 7 (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 Indu s. , 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 be en stricken. ’ ” (quoting Commander Oil Corp. v. Advance Food Serv. Equip ., 991 F.2d 49, 53 (2d Cir. 1993) ) (additional citations omitted) ); J.M. Montgomer y Roofing Co. v. Fred38 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 writing s 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 ar e 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 Const r . 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
di fferent 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, L LC 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 diffe rent 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 wer e 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 Expectatio ns 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 M r s. Miller to testify that “[t]here are multiple parts to the agreement.” Fu rthermore, 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, Cotig a Development Comp any v. United Fuel Gas Company , 147 W. Va. 484, 128 S.E.2d 626 ( [ 196 2] ).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 do es 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, i d. 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)
appear s to contain an error . Paragraph 4(C)(ii) r equires that each draw req uest 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, t he lien waivers desc ribed 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 du plicated 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
disbursem ent under paragraph 4(C)(i) , and (2) at the final advance of the loan pursuant to41 paragraph 6. 21 These contractual provisions conflict with the Expectations form , under which “[a]ll draw requests will b e 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,

“ w here the meaning [of a writing] is uncer tain 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 subse quently

. . . . ” 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 t he trial court erred by allow ing questions suggesting to the jury that it could apply the duty of g ood 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 exec uted 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) o f 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 inactio n, 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 co ntends that counsel for the Millers posed questions to
WesBanco ’ s corporate representative, Cathi McClelland, that sug gest ed the jury could apply the duty of g ood faith and fair dealing to vary and contradict the Construction Loan43 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 durin g tri a l 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. Pl ease. 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 specifica lly 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 b ack 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 waiver s, and Ms. Hamilton assured them that this extended
to materialmen lien waiver s , yet a mechanic’s lien was asserted against the Millers after
Residential Crea tions 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 ’ s45 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 obligation s pursuant to the parties’ agreement . Rather, counsel effectively asked whether WesBanco ’ s reliance on par agraph 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 pr operly 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 impli ed 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 consi stency 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 q uestion to correctly state the doctrine of good faith and fair dealing , and it was the properly phrased q uestion 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 result ing 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 o f Law
. WesBanco next argues that t he

c ircuit c ourt e rred in d enying it s m otion 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 : o ne 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 claim47 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 WesBanc o 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 t hat 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 st art. 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 instruct ed 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 e vidence: one, that WesBanco was required by the contract to get a lien waiver fr o m O.C. Cluss; two, that WesBanco did not get a lien waiver from O.C. Cluss; and three, that they incurred damages because Wes Banco 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 f rom 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) i f 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 ma terialmen b efore 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 co ntract 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 e vidence 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 1 45 (1991). Syl., First Na t’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 favo rable 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.
P t. 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 (7 th ed. 1999) (“Sufficient to establish a fact or raise a presumption unless disproved or rebutted.”). Moreover, elaborating on what is meant by v iew ing 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 arisin g 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 prove d.51 Louis J. Palmer, Jr., Robin Jean Davis, Litigation Handbook on West Virginia Rules of
Civil Procedure 1191 (5 th ed. 2017).

Rather than considering the evidence in the light most favorabl e 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 tha t, under the single transaction rule, the agreement between WesBanco and the Millers was not limited to only the Construction Loan Agreement

.

T he 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 B orrower make periodic disburs e ments to the B orrower for payment for work actually performed , materials delivered, or mat erials for the delivery of which the [B] orrower has entered into an agreement

. . . .” (Emphasis added). Addit ionally, Ms.
Hamilton testified that she had told the Miller s that no funds would be disbursed until work was completed. Nevertheless, in disbu rsing funds, WesBanco relied on the draw schedule in the construction contract, which used benchmarks rather than completed work to52 establish when draws should be made. The evidence at trial showed that, by following this
draw schedule founded on benchmar ks, 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 l ight most favorable to the Miller s , at least two of
these document s 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, t he 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 . T he last I n spection R eport 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. Fu rthermore, 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 moti on for judgment as a matter of law. The Expectations form contained at least two provisions relevant to this issue. First, the for m required a properly completed B uilder ’ s A ffidavit: “Builder ’ s Affidavit: Properly completed with all work
detailed inclu ding 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 “Lie n 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 B uilder ’ s A ffidavits 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 bot h, 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 construct i on 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 Affidavit s submitted by Residential C reations and released the requested loan funds. The evidence54 further showed that blank B uilder ’ s A ffidavit 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 affidavit s to WesBanco along with each of its draw request s . T he Millers did not see the completed
forms and had no way of know ing that Residential Creations had failed to provide crucial
informati on.

Furthermore, paragraph 4.B.(i) of the Construction Loan Agreement also
addressed lien waivers and granted WesBanco discretion to determine whether they were need ed : “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, particul arly where, as here, the percentage of funds advanced substantially exceeded the percentage of work completed on the home. 24 Thus, t he 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 t he 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.” At55 jury to con clude that WesBanco breached its agreement with the Millers by failing to
pro perly 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 t he 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 t he 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

tr ial, 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 paragr aph 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 provi sions 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, 5 00, 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, 0 00, which is roughly the amount of the O.C. Cluss mechanic’s lien ( i.e. the lien

waiver 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 dama ges 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, 5 00

. 26 This amount does not account for $113,000 that was n ever 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 testifie d 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 ’ li en - 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 n o corresponding duty to obtain a lien waiver in relation
thereto. Nevertheless, the entire amount of the $117,000 mechanic ’ s lien appear s to have been included in the damages award.

The Millers respond to the two preceding arguments by asserting that pr oof 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 compl eting their home as represented by their spreadsheet, and $117,000 for the O.C. Cluss mechanic ’ s lien. Furthermore, t he Millers submit that their damage claim is founded on three pillars: (1)58 the amount of the mechanic ’ s lien; (2) their spreadsheet itemi zing 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 M illers

assert that forty

- seven percent of the $690,000 that Residential Creations was to have been paid for their completed home e quals $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, w ill 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 m ust 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 in59 the same position as if the contract had been performed. Bryant v. Peckinpaugh , 241 Va. 172, 400 S.E.2d 201 (1991); Associated Stati ons, 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 aga inst 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 adva nce by
WesBanco. It also is not clear that all of the items on the Millers ’ chart were actually60 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 ma terials. 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, w e 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 t hat 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 t he court allowed the Millers to present the duty of good faith and fair dealing, or th e denial of WesBanco’s

28 For example, one expenditure of $5,500 is simply identified as “work Residential Crea tions 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
.61 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.