PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2234

DAN RYAN BUILDERS, INC., a Maryland Corporation,

Plaintiff - Appellant,

v.

CRYSTAL RIDGE DEVELOPMENT, INC., a West Virginia 

Corporation; LANG BROTHERS, INC., a West Virginia 

Corporation; ROBERT S. LANG, an individual,

Defendants - Appellees,

v.

HORNOR BROTHERS ENGINEERS,

Third Party Defendant - Appellee,

and

BRYCO BORE & PIPE, INC.; LOUDOUN VALLEY CONCRETE, INC.; 

DINGESS TRANSPORT, INC.; NORTH STAR FOUNDATION, INC.; 

PENNSYLVANIA SOIL AND ROCK INCORPORATED,

Third Party Defendants.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Clarksburg. Irene M. Keeley, 

District Judge. (1:09-cv-00161-IMK-JSK)

Argued: December 10, 2014 Decided: April 20, 2015

Before MOTZ, GREGORY, and WYNN, Circuit Judges.
2

Affirmed by published opinion. Judge Motz wrote the majority 

opinion, in which Judge Wynn joined. Judge Gregory wrote a

separate opinion concurring in part and dissenting in part.

ARGUED: Avrum Levicoff, LEVICOFF, SILKO & DEEMER, P.C., 

Pittsburgh, Pennsylvania, for Appellant. Tiffany R. Durst, 

PULLIN, FOWLER, FLANAGAN, BROWN & POE, PLLC, Morgantown, West 

Virginia, for Appellees. ON BRIEF: Julie A. Brennan, LEVICOFF, 

SILKO & DEEMER, P.C., Pittsburgh, Pennsylvania, for Appellant. 

Nathaniel D. Griffith, PULLIN, FOWLER, FLANAGAN, BROWN & POE, 

PLLC, Morgantown, West Virginia, for Appellees Crystal Ridge 

Development, Inc., Lang Brothers, Inc., and Robert S. Lang. 

Frank E. Simmerman, Jr., Chad L. Taylor, SIMMERMAN LAW OFFICE, 

PLLC, Clarksburg, West Virginia, for Appellee Hornor Brothers 

Engineers.
3

DIANA GRIBBON MOTZ, Circuit Judge:

After a bench trial in this diversity case, the district 

court ordered Robert Lang and his construction business, Lang 

Brothers, Inc. (collectively “Lang”) to pay Dan Ryan Builders, 

Inc. (“Dan Ryan”) limited damages for breach of contract. Dan 

Ryan appeals, seeking additional damages. We affirm.

I.

We briefly summarize the relevant facts, which are 

undisputed.1

Lang owned seventy acres of land in West Virginia, on which 

he sought to build a housing development, Crystal Ridge 

Development. In 2005, pursuant to a Lot Purchase Agreement

(“LPA”), Lang subdivided the land and contracted to sell Dan 

Ryan all 143 lots in Crystal Ridge. The LPA detailed the 

responsibilities of both parties, including lot inspection, fill 

compaction, and building schedules.

The parties also entered into a number of other written 

contracts in connection with the development, including a 

Contract with Independent Contractor (“fill slope contract”). 

They agreed in that contract that Lang would construct a fill 

 1 Dan Ryan concedes that “[t]he district court’s findings of 

fact are beyond reproach.” Appellant’s Br. 52. Similarly, Lang 

does not challenge them in any way.
4

slope that would provide grading on certain lots to accommodate 

the construction of houses. Lang completed the grading work and 

was paid in full by Dan Ryan.

In 2006, Dan Ryan paid Lang for the first twelve lots in 

accord with the LPA. Dan Ryan also entered into additional 

contracts with Lang including a second fill slope contract. In 

2007, Dan Ryan purchased another five lots, and Lang continued 

to work on the infrastructure of the Crystal Ridge Development.

In March 2007, cracks appeared in the basement slab and 

foundation walls of a partially constructed house on one of the 

first lots that Dan Ryan had purchased. An engineering firm 

engaged by Dan Ryan concluded that stabilization of that house,

as well as of another house displaying similar cracks, required 

remediation. These problems and their associated costs 

exacerbated existing tensions between Dan Ryan and Lang, 

ultimately leading to a “divorce” (the parties’ term) between 

the two. The parties memorialized the divorce in the “First 

Amendment to Lot Purchase Agreement” (the Amendment). Under the

Amendment, Dan Ryan agreed to purchase from Lang the remaining

thirty-three lots in Crystal Ridge, and the parties’ development 

responsibilities were apportioned differently.

In December 2007, the slope behind the lot that had first 

exhibited cracks began sliding downhill toward a nearby highway.

A geotechnical study concluded that the slope had failed due to 
5

its natural composition, soil type, and poor construction. Dan 

Ryan also encountered difficulties related to Crystal Ridge’s

stormwater management system, development permits, and entrance 

drive.

In December 2009, Dan Ryan filed this lawsuit against Lang

seeking monetary damages. In its complaint, Dan Ryan asserts 

three causes of action. Initially and principally, Dan Ryan 

alleges negligence by Lang in connection with construction of 

the fill slope. Second, Dan Ryan alleges that Lang breached

several of its contractual duties under both the LPA and the 

Amendment. The third cause of action alleges fraudulent 

misrepresentation by Lang; Dan Ryan abandoned this last claim at 

trial.

Following several pre-trial conferences and numerous pretrial submissions, the district court held a five-day bench 

trial. The court admitted many exhibits and considered 

testimony from more than a dozen witnesses. After extensive 

post-trial submissions,2 the court issued a detailed, ninety-page

order setting forth findings of fact and conclusions of law.

 2 The court permitted the parties to submit up to eighty 

pages of proposed findings of fact and conclusions of law. 

After the deadline for these submissions had passed, Dan Ryan 

moved for leave to file a supplemental post-trial memorandum. 

The district court denied that motion.
6

On the contract claim, the district court awarded Dan Ryan

$175,646.25 in damages and $77,575.50 in pre-judgment interest

for breach of the LPA and the Amendment with respect to claims 

for repairs on the road leading to Crystal Ridge. The court 

found that Dan Ryan had failed to carry its burden of proof with 

respect to other asserted breaches of the LPA and the Amendment, 

i.e., those relating to an entrance easement, a stormwater 

management and erosion control system, and other “miscellaneous 

bad work.” J.A. 2353.3 Accordingly, the court denied further 

contract damages. The district court then rejected Dan Ryan’s 

negligence claim. The court reasoned that this claim failed 

under West Virginia’s “gist of the action” doctrine, which bars 

recovery in tort when the duty that forms the basis of the 

asserted tort claim arises solely from a contractual 

relationship. Dan Ryan timely noted this appeal.

We “review a judgment following a bench trial under a mixed 

standard of review -- factual findings may be reversed only if 

clearly erroneous, while conclusions of law, including contract 

construction, are examined de novo.” Roanoke Cement Co. v. Falk 

Corp., 413 F.3d 431, 433 (4th Cir. 2005). On appeal, Dan Ryan 

does not challenge the district court’s resolution of its claim 

for breach of the LPA and the Amendment. Rather, Dan Ryan 

 3 Citations to the “J.A.” refer to the Joint Appendix filed 

by the parties to this appeal.
7

appeals only the court’s determination that the “gist of the 

action” doctrine bars its tort claim, and the court’s failure to 

recognize that its tort claim was really a claim for breach of 

the fill slope contracts.4

II.

Dan Ryan offers two reasons why the district court erred in 

its “gist of the action” holding. We consider each in turn.

A.

First, citing Greenlaw v. United States, 554 U.S. 237, 243 

(2008), Dan Ryan contends that the “principle of party 

presentation” ought to have prevented the district court from 

relying on the “gist of the action” doctrine. The party 

presentation principle generally cautions a federal court to 

consider only the claims and contentions raised by the litigants 

before it. Dan Ryan asserts that the party presentation 

principle applies here because neither it nor Lang raised the 

“gist of the action” doctrine in submissions to the district 

court.

Greenlaw is the Supreme Court’s most robust articulation of 

the party presentation principle. There, in language on which

 4 The district court also dismissed as moot the derivative 

claims Lang had brought against third-party defendant Hornor 

Brothers Engineering for contribution. Dan Ryan does not appeal 

that ruling.
8

Dan Ryan rests its claim, the Court stated that “in the first 

instance and on appeal, . . . we rely on the parties to frame 

the issues for decision.” Greenlaw, 554 U.S. at 243. But 

although Greenlaw paints the concept of party presentation in 

broad brushstrokes, its holding is much narrower, i.e., “an 

appellate court may not alter a judgment to benefit a 

nonappealing party.” Greenlaw, 554 U.S. at 244. In fact, other 

than in Greenlaw, the Court has invoked the party presentation

principle only twice, both times in stressing the limits of the 

principle. See Wood v. Milyard, 132 S.Ct. 1826, 1833-34 (2012)

(courts may sua sponte consider statute-of-limitations defenses 

overlooked by the State in habeas cases); Arizona v. California, 

530 U.S. 392, 412-13 (2000) (courts may sua sponte raise a 

preclusion defense the parties failed to raise in special 

circumstances).

Moreover, neither in Greenlaw nor in any other case has the

Court ever suggested that the party presentation principle 

constrains a court’s fundamental obligation to ascertain

controlling law. A party’s failure to identify the applicable 

legal rule certainly does not diminish a court’s responsibility 

to apply that rule. The judiciary would struggle to maintain 

the rule of law were it limited to the parties’ competing 

assertions about what the law requires. For this reason, it is 

well established that “[w]hen an issue or claim is properly 
9

before the court, the court is not limited to the particular 

legal theories advanced by the parties, but rather retains the 

independent power to identify and apply the proper construction 

of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 

90, 99 (1991). Thus, the Supreme Court has long recognized that 

a “court may consider an issue ‘antecedent to . . . and 

ultimately dispositive of’ the dispute before it, even an issue 

the parties fail to identify and brief.” U.S. Nat’l Bank of Or.

v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993)

(quoting Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990)

(alterations in original)).

Here, West Virginia’s “gist of the action” doctrine is just 

such an “antecedent” and “dispositive” issue, since it goes to 

the duty element of any West Virginia tort claim. The “gist of 

the action” doctrine requires plaintiffs seeking relief in tort 

to identify a non-contractual duty breached by the alleged 

tortfeasor. See Gaddy Eng’g Co. v. Bowles Rice McDavid Graff & 

Love, LLP, 746 S.E.2d 568, 577 (W. Va. 2013). “[T]he 

determination of whether a plaintiff is owed a duty of care by a 

defendant must be rendered by the court as a matter of law.” 

Lockhart v. Airco Heating & Cooling, Inc., 567 S.E.2d 619, 622 

(W. Va. 2002) (internal quotation marks and citation omitted). 

To determine whether Dan Ryan established all of the required 

elements of a tort claim under West Virginia law, the district 
10

court necessarily had to consider the “gist of the action” 

doctrine and identify the source of any asserted duty.

We must therefore reject Dan Ryan’s contention that the 

party presentation principle barred the district court, when 

adjudicating a West Virginia tort claim, from considering

whether the elements of such a claim had been met.5

B.

Dan Ryan also contends that the district court erred in 

holding that the “gist of the action” doctrine dooms its tort 

claim. This contention is meritless. Given that Dan Ryan’s 

tort claim rests on Lang’s asserted negligence in performing two 

contracts –- the LPA and the Amendment –- and not on any duty

independent of those contracts, the “gist of the action” 

doctrine does indeed bar that claim.

“To prevail in a negligence suit, the plaintiff must prove 

by a preponderance of the evidence that the defendant owed a 

 5 We note that third-party defendant Hornor Brothers 

Engineering did develop the “gist of the action” doctrine in its

post-trial submissions to the district court. See J.A. 2186-88 

(“[T]ort liability cannot arise from a breach of contractual 

duty. . . . [T]he principle is that if a defendant would have 

no duty of care to plaintiff but for the fact that the parties 

have a contract, no independent professional negligence claim 

may be maintained.” (citing Lockhart, 567 S.E.2d 619, and other 

relevant West Virginia cases)). In so doing, Hornor alerted the 

court (and other parties) to the principle and its application 

to this case. Accordingly, this is hardly a case in which a 

court has “sall[ied] forth . . . looking for wrongs to right.” 

Greenlaw, 554 U.S. at 244 (internal quotation marks and citation 

omitted).
11

legal duty to the plaintiff.” Strahin v. Cleavenger, 603 S.E.2d 

197, 205 (W. Va. 2004) (emphasis added). Under the “gist of the 

action” doctrine, a party to a contract can prevail on a 

negligence claim only if he can demonstrate “the breach of some 

positive legal duty imposed by law because of the relationship 

of the parties, rather than from a mere omission to perform a 

contract obligation.” Lockhart, 567 S.E.2d at 624 (internal 

quotation marks and citation omitted).6 In other words, the 

negligence “action in tort [must] arise independent of the 

existence of the contract.” Id. (internal quotation marks and 

citation omitted). “If the action is not maintainable without 

pleading and proving the contract, where the gist of the action 

is the breach of the contract, either by malfeasance or nonfeasance, it is, in substance, an action on the contract, 

whatever may be the form of the pleading.” Cochran v. 

Appalachian Power Co., 246 S.E.2d 624, 628 (W. Va. 1978)

(internal quotation marks and citation omitted).

 6 This requirement -- that a tort claim must rest on a noncontractual duty -- is hornbook law in most jurisdictions, even 

if they do not employ the “gist of the action” nomenclature. 

See Black’s Law Dictionary (10th ed. 2014)(defining “tort” as 

“[a] civil wrong, other than breach of contract, for which a 

remedy may be obtained, . . . a breach of a duty that the law 

imposes”); Restatement (Third) of Torts: Liab. for Econ. Harm 

§ 3 (Tentative Draft No. 1, 2012) (explaining the general rule 

that “there is no liability in tort for economic loss caused by 

negligence in the performance or negotiation of a contract 

between the parties”).
12

Only two years ago, in Gaddy, the West Virginia Supreme 

Court of Appeals reiterated this requirement. There, the court

unequivocally held that a plaintiff cannot recover in tort if

the complaint does no more than include “the bare bones averment 

that ‘Defendants negligently . . . breached their agreement 

with’ [the plaintiff].” 746 S.E.2d at 577. Here, a “bare 

bones” recitation is all that the Amended Complaint offered with 

respect to the fill slope claims: Dan Ryan alleged only that 

Lang “negligently performed or failed to perform various

development obligations under the LPA and Amendment causing 

substantial damage to [Dan Ryan]’s property.” J.A. 47 ¶ 39.

Gaddy further explains, in words that resonate here, that 

recovery in tort will be barred if any of the following factors 

is demonstrated: “(1) where liability arises solely from the 

contractual relationship between the parties; (2) when the

alleged duties breached were grounded in the contract itself; 

(3) where any liability stems from the contract; and (4) when 

the tort claim essentially duplicates the breach of contract 

claim or where the success of the tort claim is dependent on the 

success of the breach of contract claim.” Gaddy, 746 S.E.2d at 

577. Here, of course, Dan Ryan specifically alleges that Lang’s

liability for “negligent[] perform[ance]” of two contracts --

the LPA and the Amendment -- caused its damages, and thus that 
13

its tort claim asserting negligence in constructing the fill 

slope arises from these contracts.

In its briefing on appeal, Dan Ryan points to one

additional source of Lang’s supposed duty: “[t]he common law 

duty of care owed by a contractor.” Appellant’s Br. 30. But 

if, as Dan Ryan contends, “the gravamen of the breach was the 

failure to construct the fill slope in a good and workmanlike 

manner,” id. at 31, Lang breached not an independent legal duty 

but an implied warranty arising out of –- in fact, created by --

the LPA and the Amendment. See Thacker v. Tyree, 297 S.E.2d 

885, 887 (W. Va. 1982) (“In the area of construction contracts,

. . . there is general recognition that an implied warranty of 

fitness and workmanlike quality attaches to such contracts.”).

In sum, this is precisely the kind of case in which 

plaintiff’s claims are “simply breach of contract claims 

masquerading as” tort claims. Gaddy, 746 S.E.2d at 577. See 

also Covol Fuels No. 4, LLC v. Pinnacle Mining Co., LLC, No. 14-

1395, Slip Op. at 25 (4th Cir. 2015) (gist of the action 

doctrine applicable where party’s tort claims “simply recast 

[its] claim for breach of contract”). The district court did 

not err in invoking the “gist of the action” doctrine, and in 

concluding that Dan Ryan’s “negligence” claim was actually a 

claim for breach of contract. Thus, Dan Ryan’s negligence claim

fails as a matter of law.
14

III.

Alternatively, Dan Ryan now seeks damages under contract

claims never alleged or even asserted before the district court. 

Specifically, Dan Ryan contends that the district court should 

have awarded it damages for a breach of the fill slope 

contracts.

Nowhere in its pleadings did Dan Ryan assert such a claim. 

The district court pointed out that Dan Ryan did not reference 

the fill slope contracts in its original complaint. Indeed, 

neither Dan Ryan’s Amended Complaint, nor its pre-trial listing 

of contested issues of fact and law, nor its seventy-eight-page

post-trial proposed findings of fact and conclusions of law even 

mentions the fill slope contracts -- let alone alleges that Lang 

breached them. Dan Ryan concedes, as it must, that this is so. 

Nevertheless, Dan Ryan maintains that “the absence of explicit 

reference to the [fill slope contracts] in the pleadings is of 

no consequence,” because a claim as to breach of those contracts

was tried by consent, as permitted by Federal Rule of Civil 

Procedure 15(b)(2). Appellant’s Br. 48.

That Rule provides that “an issue not raised by the 

pleadings” will be treated as if it were raised, provided it is

“tried by the parties’ express or implied consent.” Fed. R. 

Civ. P. 15(b)(2). Of course, Rule 15(b)(2) does not offer a 

failsafe for any and every faulty pleading. Rather, the Rule
15

sets forth “an exception to the general rules of pleading . . . 

when the facts proven at trial differ from those alleged in the 

complaint, and thus support a cause of action that the claimant 

did not plead.” Gilbane Bldg. Co. v. Fed. Reserve Bank of 

Richmond, 80 F.3d 895, 901 (4th Cir. 1996). But “[b]ecause 

notice to the defendant of the allegations to be proven is 

essential to sustaining a cause of action, Rule 15(b) applies 

only when the defendant has consented to trial of the non-pled 

factual issues and will not be prejudiced by amendment of the 

pleadings to include them.” Id. (emphasis added). Thus, Rule 

15(b)(2) requires that a party expressly or impliedly consent to 

trial on an unpled claim and not be prejudiced by doing so. Dan

Ryan cannot satisfy the Rule’s requirements.

First, the record offers no support for Dan Ryan’s 

assertion on appeal that Lang expressly consented to trial of 

any claim of breach of the fill slope contracts. Dan Ryan

maintains Lang did so by including, among its pre-trial 

contested issues of fact, the question of whether “the Lang 

Defendants [are] liable to [Dan Ryan] for breach of contract in 

relation to” the fill slope contracts. J.A. 305. But Lang’s 

single reference to a breach of the fill slope contract in its 
16

pre-trial memorandum does not constitute consent.7 This pretrial submission demonstrates only that Lang regarded breach of 

the fill slope contracts as a potential issue, which might be 

raised by Dan Ryan at trial. Dan Ryan mistakes Lang’s caution 

in this regard for consent.

In fact, as early as the final pretrial conference, Lang

pointed out the absence of any reference to the fill slope 

contracts in the Amended Complaint. Lang’s counsel specifically 

noted that “there were additional agreements” that “were not 

attached as exhibits to the complaint” and distinguished the 

obligations in those unpled contracts from the obligations in 

the LPA and the Amendment, on which Dan Ryan did rest its 

contract claims. J.A. 380-81. Similarly, in its post-trial 

submission, Lang noted that although the fill slope contracts 

were introduced as evidence at trial, they were not “even 

mentioned anywhere within the Complaint or Amended Complaint” 

and so could not provide Dan Ryan with a basis for recovery. 

Far from consenting to trial of unpled issues, then, Lang

consistently and expressly disclaimed any consent to trial on 

the unpled claim of breach of the fill slope contracts.

 7 We have said as much before. See Interstate Petroleum 

Corp. v. Morgan, 249 F.3d 215, 221 (4th Cir. 2001) (en banc) 

(noting that even where an issue was “discussed on occasion 

during the course of [the] case,” that alone did not establish 

trial by consent).
17

Moreover, in Dan Ryan’s own submissions to the district 

court it confirmed that it did not advance such a claim. 

Rather, when Dan Ryan raised contract claims at trial, it 

expressly identified the pertinent contracts that formed the 

source of the asserted breach -- the LPA and the Amendment --

not the fill slope contracts. Furthermore, after trial, in its 

proposed findings of fact and conclusions of law, Dan Ryan set 

forth in numbered paragraphs each of the damage awards sought 

for breach of the LPA and the Amendment. Dan Ryan did not

devote a numbered paragraph to any damage claim under the fill 

slope contracts. Dan Ryan did not propose that the district 

court find that Lang breached the fill slope contracts. And Dan 

Ryan did not ask the district court to hold that Lang had any 

specific obligations arising out of the fill slope contracts.

In sum, Dan Ryan’s own statements about the theory of its 

case, as well as its repeated omission of the now-asserted 

breach of the fill slope contracts from any argument at trial or 

post-trial confirm what Lang’s submissions make clear: Lang did 

not consent to trial of claims for breach of the fill slope 

contracts. See Pinkley, Inc. v. City of Frederick, 191 F.3d 

394, 401 (4th Cir. 1999) (when a party “sets out in [a list of]

numbered paragraphs . . . its legal theories for recovery,” its 

omission of a particular legal theory from those numbered 

paragraphs militates against a finding of trial by consent); see 
18

also Elmore v. Corcoran, 913 F.2d 170, 173 (4th Cir. 1990). 

Accordingly, Dan Ryan did not put Lang on notice of any 

potential liability under those contracts.

Moreover, Dan Ryan cannot establish Lang’s implied consent 

by demonstrating that evidence at trial clearly supported only

this unpled claim. We have previously explained that admission 

without objection of evidence related to the unpled claim may be 

“an indicium of implied consent” to trial of that claim. McLeod 

v. Stevens, 617 F.2d 1038, 1040 (4th Cir. 1980). But if that 

evidence is also “germane” to claims expressly in the pleadings, 

its admission “cannot be treated as implied consent” to trial of 

the unpled claim. Id. at 1040-41. Accord, Trinity Carton Co. 

v. Falstaff Brewing Corp., 767 F.2d 184, 193 (5th Cir. 1985);

see also 6A Charles Alan Wright & Arthur R. Miller, Federal 

Practice & Procedure § 1493 (3d ed. 2014).

Dan Ryan contends that consent to trial of a breach claim 

under the fill slope contracts may be implied from its evidence 

related generally to the slope failure and from the admission of 

the two fill slope contracts themselves. But evidence of the 

slope failure was admitted in support of the claim that Lang

negligently constructed the slopes, not that it breached the 
19

fill slope contracts.8 Accordingly, the evidence was “germane” 

to an asserted tort claim actually present in Dan Ryan’s 

pleadings and cannot establish trial by consent of a phantom 

contract claim. Admission of the fill slope contracts, without 

more, cannot establish consent to trial of a claim that those

contracts were breached.

Moreover, Lang would undoubtedly be prejudiced if we were 

to accept Dan Ryan’s contention on appeal that the opposite is 

true. See Withrow v. Williams, 507 U.S. 680, 696 (1993) 

(holding that where the record “reveals neither thought, word, 

nor deed . . . that could be taken as any sort of consent” to 

trial of an unpled claim, the party “was manifestly 

prejudiced”).

Dan Ryan had opportunities before, during, and after trial 

to clarify its contract claims against Lang.9 Yet at none of 

 8 Nor does the district court’s observation that Lang

“failed to live up to its contractual obligations” under the 

fill slope contracts establish that breach of those contracts 

was tried by consent. J.A. 2375. For the court had earlier 

identified the LPA and the Amendment as the sole bases for all 

breach of contract claims alleged by Dan Ryan. See J.A. 2324-

56. Further, the court explained that any “[m]ention of the 

Fill Slope Contract[s] was conspicuously absent from” Dan Ryan’s 

complaint. J.A. 2373. Thus the court was clear that the claims 

Dan Ryan might have alleged are distinct from the claims it 

actually did allege.

9 Dan Ryan repeatedly failed to clarify the precise claims 

under which it sought relief and the specific evidence 

supporting each claim. Examination of the trial transcript 

(Continued)
20

these junctures did Dan Ryan contend that Lang breached the fill 

slope contracts. The omission of the claim at one of these 

stages in the litigation –- in the amended complaint, or in the 

pre-trial submissions, or in the presentation of the theory of 

the case, or in the post-trial submissions –- might evince

inadvertence and so allow the district court to consider the 

claim. But the repeated omission of the claim permits only one 

conclusion: Dan Ryan’s now-asserted claim that Lang breached 

the fill slope contracts was not tried by consent, it was simply 

omitted.10

IV.

This is a messy case, spanning four years and thousands of 

pages of trial submissions. During the course of such 

 

reveals the district court’s frustration with Dan Ryan’s 

haphazard submissions throughout the trial. For example, in an 

order issued after trial, the court instructed that “Dan Ryan 

shall clarify, within its proposed findings of fact and 

conclusions of law/post-trial legal memorandum, or in an 

attachment thereto, which of its claimed damages flow from its 

breach of contract theory and which flow from its negligence 

theory.” Summ. Order 4, Aug. 30, 2012, ECF No. 249. But Dan

Ryan utterly failed to do this.

10 In the alternative, we hold that Dan Ryan has waived any 

breach of contract claim based on the fill slope contracts. See

Helton v. AT&T Inc., 709 F.3d 343, 360 (4th Cir. 2013) (holding 

that appellant’s argument not raised during a bench trial or in 

proposed findings of fact and conclusions of law is waived on 

appeal).
21

protracted litigation, parties must be vigilant not to lose 

sight of the necessity of pleading and proving all of the 

elements of each cause of action.

The district court properly dismissed Dan Ryan’s tort 

claim, alleging negligence in construction of the fill slope,

because Dan Ryan rested that claim solely on asserted breach of 

two contracts -- the LPA and the Amendment. We now hold that

Dan Ryan never alleged, and the parties never consented to trial 

on, a claim of breach of the fill slope contracts. Contrary to 

Dan Ryan’s contention, this result does not unfairly penalize it 

for a purely formal error. Rather, it simply holds Dan Ryan to 

the requirements of the law. A claim grounded on breach of 

contract (here, the LAP and the Amendment) does not give rise to 

tort liability, and a claim never pled (here, breach of the fill 

slope contracts) will not be regarded as pled unless actually 

tried by consent. These are the only fair standards, for 

without them litigants and courts alike would be unable to ever 

adequately prepare for trial. Parties would be forced to defend 

against shadow claims, and trial courts would be forced to 

search, as for a needle in a haystack, for unpled causes of 

action purportedly hiding in the parties’ submissions.

It is not the responsibility of a trial court to wade 

through ambiguously or incorrectly labeled allegations in 

pursuit of any potential basis for awarding relief. In the case 
22

at hand, the district court did a commendable job of sorting

through a museum of non-sequiturs to identify the plaintiff’s 

meritorious claims. Notwithstanding Dan Ryan’s dissatisfaction

with the resulting judgment, it is clear that the district court

committed no error.

The judgment of the district court is 

AFFIRMED.
23

GREGORY, Circuit Judge, concurring in part and dissenting in 

part:

Dan Ryan Builders, Inc. (“Dan Ryan”) contracted with Robert 

Lang and his construction business, Lang Brothers, Inc. 

(collectively “Lang”) to fix the steep gradation of a portion of 

land that would not have otherwise supported the construction of 

homes. Lang botched the job, and Dan Ryan had to pay 

$1,722,104.91 to fix it.*

 The district court found all the 

elements of a breach of contract: that the contract was 

enforceable, J.A. 2369 n.43, that Dan Ryan paid Lang in full for 

the work, J.A. 2307, and that Lang “[u]nquestionably . . . 

failed to live up to its contractual obligations, and [Dan Ryan] 

suffered damages as a result,” J.A. 2375. Yet, because Dan Ryan 

did not formally amend its complaint to name one of the several 

contracts at issue, the district court allowed Lang to escape 

liability. I cannot agree with this inequitable result, which 

is exactly what Rule 15(b) of the Federal Rules of Civil 

Procedure was designed to prevent. I therefore must dissent 

from Part III of my good colleagues’ opinion.

Rule 15(b) allows liberal amendment of the pleadings to 

conform to the evidence presented at trial. See Equal Emp’t 

 * This figure is based on Dan Ryan’s post-trial submission 

asserting that expenses related to the slope remediation totaled 

$1,772,104.91 before prejudgment interest. Pl.’s Proposed 

Findings of Fact and Conclusions of Law at 70, ECF No. 256.
24

Opportunity Comm’n v. Gen. Elec. Co., 532 F.2d 359, 367 n.17 

(4th Cir. 1976). Formal amendment, however, is not always 

required. See Fed. R. Civ. P. 15(b)(2). “When an issue not 

raised by the pleadings is tried by the parties’ express or 

implied consent, it must be treated in all respects as if raised 

in the pleadings,” and “failure to amend does not affect the 

result of the trial of that issue.” Id. This liberalism was 

meant to obviate the necessity of a new trial every time an 

opposing party points to a technical deficiency in pleading. 

See 6A Fed. Prac. & Proc. Civ. § 1491 (3d ed. 2014) [hereinafter 

Fed. Prac. & Proc.]; see also Deere & Co. v. Johnson, 271 F.3d 

613, 621 (5th Cir. 2001) (“As has been often said, the principal 

purpose of Rule 15(b) is judicial economy.”). In fact, the rule 

has always been construed to promote resolution of cases on the 

merits, rather than on the pleading skills of counsel. See Fed. 

Prac. & Proc. § 1493. In other words, Rule 15(b) helps 

litigants and the courts “avoid the tyranny of formalism.” 

Kirkland v. District of Columbia, 70 F.3d 629, 634 (D.C. Cir. 

1995); Dunn v. Ewell (In re Santa Fe Downs, Inc.), 611 F.2d 815, 

817 (10th Cir. 1980).

The majority insists on formalism, finding no implied 

consent to try the issue of whether Lang breached the Fill Slope 

Contract. However, this was the entire gravamen of the five-day 

trial. We may find implied consent where the defendant: 1) 
25

fails to object to evidence relating to the unpleaded issue; 2) 

actually produces evidence bearing on the issue; or 3) offers 

direct arguments contesting the issue. See Fed. Prac. & Proc. 

§ 1493; see also McLeod v. Stevens, 617 F.2d 1038, 1040 (4th 

Cir. 1980) (finding admission of evidence without objection an 

indicium of implied consent). All three criteria are present 

here. Even though Dan Ryan’s post-trial submission omitted 

mention of the Fill Slope Contract, Lang did not object to 

introduction of the contract into evidence, and the issue also 

had been teed up since at least the parties’ pre-trial 

statement. Dan Ryan specified in its brief statement of its 

claims that “the Lang Defendants owed legal duties to [Dan Ryan] 

from four separate and distinct contractual undertakings.” J.A. 

293-94. Dan Ryan’s theory was unambiguously that Lang breached 

these duties by “[i]mproper placement and compaction of fill 

material.” J.A. 294. Lang confronted these arguments head on 

in its own section of the pre-trial statement: “The Lang 

Defendants did not breach any contract with [Dan Ryan].” J.A. 

296. Lang’s theory was that even if it had followed proper 

construction practices, “the slope would have still failed due 

to a layer of colluvium in the soil.” J.A. 301. It thus sought 

to place the blame on Horner Brothers Engineering, which Lang 

alleged drew up lot grading plans that did not take into account 

certain soil properties.
26

In this way, Lang was fully prepared to litigate, and 

indeed litigated in substance, whether it was “liable to [Dan 

Ryan] for breach of contract in relation to [the Fill Slope 

Contract].” J.A. 305 (contested issue from pre-trial statement 

proposed by Lang). During the trial, “[t]he experts all 

agree[d] that [Lang Brothers Inc.] did not employ the standard 

construction practices that, if applied in the first instance, 

would have ensured the slope’s stability.” J.A. 2374 n.44. It 

turns out that Lang built the fill slope based on rudimentary 

drawings that were never meant to serve as a full set of 

engineering plans and specifications. Lang did not ensure the 

slope foundation was built according to the proper ratio, and 

did not install the appropriate draining system, among other 

failings. Basically, Lang picked up dirt from one part of the 

development and set it on top of another. The district court 

had no trouble ascertaining that, according to the “credible 

evidence,” Lang’s “poor construction practices were the sole 

proximate cause of the slope failure.” J.A. 2374 n.44.

This is not a case where the evidence “incidentally tends” 

to establish that Lang’s shoddy construction breached a 

contractual duty to build a viable fill slope. Pinkley, Inc. v. 

City of Frederick, 191 F.3d 394, 401 (4th Cir. 1999). In 

determining whether an issue has been tried by consent, we 

rightly should be concerned with the defendant’s potential lack 
27

of opportunity to defend against a new allegation. But here, in 

addition to Lang having had adequate notice of just what was at 

issue, treating the Fill Slope Contract as if it had been 

included in the pleadings in no way prejudices Lang. Prejudice 

occurs, like in the Withrow case cited by the majority, where 

there is “failure to afford [a litigant] an opportunity to 

present evidence bearing on that [new] claim’s resolution.” 

Withrow v. Williams, 507 U.S. 680, 696 (1993). Lang does not 

even claim any potential prejudice, perhaps because it must 

admit that inclusion of the Fill Slope Contract in Dan Ryan’s 

complaint would not have compelled presentation of any different 

evidence, or reliance on any alternative theory of defense.

Given the ample notice, implied consent, and utter lack of 

prejudice to Lang, I would reverse the district court and find a 

breach of the Fill Slope Contract.