West Virginia Supreme Court Reports
MELBOURNE BROS. CONST. v. PIONEER CO., 181 W. Va. 816
(1989) 384 S.E.2d 857 MELBOURNE BROTHERS CONSTRUCTION CO.
v. The PIONEER CO. and Dean E. Lewis and the Department of
Highways, et al. No. 18442. Supreme Court of Appeals of
West Virginia. July 24, 1989. Page 817
Syllabus by the Court
1. “A valid written instrument which expresses the intent
of the party in plain and unambiguous language is not
subject to judicial construction or interpretation but will
be applied and enforced according to such intent.” Syllabus
point 1, Cotiga Development Co. v. United Fuel Gas Co., 147
W. Va. 484, 128 S.E.2d 626 (1962).
2. “`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).” Syllabus point 1, Jividen v. Legg, 161 W. Va.
769, 245 S.E.2d 835 (1978).
3. “In order to recover for loss of profits as the result
of a tort, they must be such as would be expected to
follow naturally the wrongful act, and are certain both in
their nature and the cause from which they proceed.”
Syllabus point 2, Ohio-West Virginia Co. v. Chesapeake &
Ohio Page 818 Railroad Co., 97 W. Va. 61, 124 S.E. 587
(1924).
Rudolph L. DiTrapano, Joshua I. Barrett, DiTrapano &
Jackson, Charleston, for Pioneer Co., Dean E. Lewis.
Michael T. Chaney, Michael Bonasso, Kay, Casto & Chaney,
Charleston, for Melbourne Bros. Const.
Robert Bible, Anthony Halkias, Legal Div., Dept. of
Highways, Charleston, for Dept. of Highways.
PER CURIAM:
This case arises out of the efforts of the Department of
Highways (the Department), and its contractor, Melbourne
Brothers Construction Co. (Melbourne), to stabilize and
repair one of the piers supporting the I-64 bridge between
South Charleston and Dunbar, West Virginia. The appellants,
The Pioneer Co. (Pioneer), owner of Wilson Island, and Dean
Lewis, President of Pioneer, seek relief from a judgment of
$346,642.22 entered against them for interfering with the
performance of Melbourne’s contract with the Department of
Highways. On appeal, the appellants contend that the trial
court erred in finding that the deed between the Department
and Pioneer allowed the Department to use Wilson Island to
repair one of the piers of the bridge. We have reviewed the
record and disagree; therefore, we affirm.[fn1]
Pioneer is the owner of Wilson Island, which is located in
the Kanawha River between South Charleston and Dunbar. In
late 1969, the Department contacted Pioneer about upcoming
construction of an interstate bridge. The Department wanted
to purchase property on Wilson Island to place four bridge
piers and to acquire an aerial easement over Wilson Island.
In May, 1970, Pioneer granted the necessary rights and
easements, and the Department built the I-64 bridge. The
deed provided for the construction of four piers on land
acquired from Pioneer. A fifth pier, Pier No. 8, was
totally surrounded by water and was located between the
pool stage and the low water mark of the Kanawha River.
After the bridge construction, Pioneer began to place fill
material against Pier No. 8. Apparently, Pioneer was
attempting to build up its island. As a result of the
stress of the fill, Pier No. 8 began to lean toward the
Kanawha River. Because this condition was extremely
hazardous, the Department sought and accepted bids from
contractors to repair Pier No. 8. The project required the
building and excavation of a cofferdam[fn2] and the
placement of a massive concrete stabilizing boot at the base
of the pier. The bidding sheet reported that the
Department’s right-of-way did not include access to the
island via a bridge owned by the appellants. Contractors
were told that access could be gained only by permission
from the property owner to use the bridge or by use of the
river.
In April, 1978, Melbourne was awarded the contract. Soon
thereafter, John Forren, a superintendent for Melbourne,
contacted Dean Lewis to see if he would allow Melbourne
employees to use the Wilson bridge. Lewis advised Forren “.
. . that $50,000 would make this job go real smooth.”
Instead of succumbing to the $50,000.00 demand, Forren
decided to gain access to the pier by the river.
On June 15, 1978, Melbourne approached Wilson Island from
the South Charleston side of the river. At the island,
Melbourne unloaded an end loader and placed it under the
bridge next to Pier No. 8. The following day, when
Melbourne employees returned to the island, the end loader
was gone. Melbourne soon learned that Pioneer employees had
confiscated the end loader at Dean Lewis’ direction, and
that Mr. Lewis would not return it until Melbourne Page
819 signed a release. Melbourne signed a release on June
29, 1978.[fn3]
On June 30, 1978, the Department filed a condemnation
action in the Circuit Court of Kanawha County. At a hearing
on July 13, 1978, the trial court ruled that the Department
had the right to repair Pier No. 8 pursuant to the terms of
the original condemnation deed. A written order to this
effect was filed on July 26, 1978.
On July 31, 1978, Melbourne attempted to resume work on
the pier. As Melbourne employees approached Wilson Island,
they discovered that Pioneer employees had placed equipment
around Pier No. 8, thereby blocking access to the work
site. Melbourne complained to the Department, and the
following day Melbourne was able to begin construction.
However, on August 2, 1978, Pioneer once again blocked
access to the work area.
Utterly frustrated, Melbourne filed this action in the
Circuit Court of Kanawha County. Melbourne sought a
preliminary injunction and compensatory damages for
tortious interference with a contract. On August 7, 1978,
the trial court granted the preliminary injunction.
On August 8, 1978, Melbourne returned to work on the
bridge project and continued without any further
intereference by Pioneer. By December 8, 1978, Melbourne
had completed constructing and excavating the cofferdam. At
this point, pursuant to the contract, the Department had to
inspect the work before anything else could be done.
Unfortunately, the Kanawha River flooded the work area;
consequently, the Department was unable to inspect the
cofferdam until December 26, 1978. During the next several
months high water prevented completion of the work
approximately a dozen times. Because of these natural
events, Melbourne could not pour the concrete footer until
April 16, 1979.
At trial, Melbourne sought damages for two separate time
periods: (1) the thirty-eight working days lost between June
15, 1978, and August 8, 1978; and (2) the eighty working
days lost when the job was forced into winter and the
project was further delayed. The project was originally
scheduled to be completed on December 15, 1978. Because of
the delays during the summer, the project was forced into
the winter months. During the winter the Kanawha River
frequently flooded and Melbourne could not work; on each
occasion Melbourne was forced to excavate the cofferdam.
Moreover, during this period Melbourne was required to leave
both a skeleton crew and equipment on the work site.
Finally, because the project was not completed on time,
Melbourne was assessed a $18,450.00 penalty by the
Department. The jury returned a verdict for Melbourne for
$210,241.09, the total compensation requested. The trial
court also awarded Melbourne $136,401.13 as prejudgment
interest. The total judgment assessed against Pioneer was
$346,642.22.
Pioneer’s primary contention on appeal is that the 1970
deed did not give the Department the right to go onto
Wilson Island to repair Pier No. 8; thus, Melbourne was
trespassing. The trial court ruled that the Page 820 deed
did give the Department and its contractor such a right.
In syllabus point 1 of Cotiga Development Co. v. United
Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962), we
explained:
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.
See Sally-Mike Properties v. Yokum, 175 W. Va. 296, 332
S.E.2d 597 (1985). See also, McDonough Co. v. E.I. DuPont
DeNemours & Co., Inc., 167 W. Va. 611, 280 S.E.2d 246
(1981); Davis v. Hardman, 148 W. Va. 82, 133 S.E.2d 77
(1963); Tate v. United Fuel Gas Co., 137 W. Va. 272, 71
S.E.2d 65 (1952). The deed in question has the following
provision:
It is understood that the real estate herein described
shall be used for or in connection with the construction,
maintenance, and use of a controlled-access facility
(freeway) with no rights of access to said facility by
abutting owners. For the above recited consideration,
Grantor . . . releases unto Grantee all easements of
way, over, upon, through, across or under said land herein
described, specifically including but not limited to all
rights of vehicular and pedestrian access; and all rights
of ingress to and egress from said property and the land
herein described. (Emphasis added.)
We find no patent ambiguity in this language. The
Department had a right-of-way to repair and maintain the
bridge structure, and rights of ingress and egress to
Wilson Island for those purposes.[fn4]
The appellants further assert that they are entitled to a
directed verdict because Melbourne signed an agreement
releasing Pioneer from any claims arising from the bridge
project.[fn5] Specifically, Pioneer asserts that the
language in the release — “arising from or connected
with the events referred to” — clearly releases
Pioneer from any claims for the project.
In syllabus point 1 of Jividen v. Legg, 161 W. Va. 769,
245 S.E.2d 835 (1978), we held:
“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.”
Point 1, Syllabus, Jenkins v. Chatterton, 143 W. Va.
250, 100 S.E.2d 808 (1957).
The appellee presented evidence that the release was
signed by Melbourne under duress, i.e. while its end loader
was unlawfully detained by Pioneer. The trial court was
bound to favorably consider this evidence when ruling on
appellant’s motion for a directed verdict; thus its denial
of that motion was not improper.[fn6] Page 821
Pioneer further contends that the trial court erred in
allowing Melbourne to recover lost profits and overhead
because these were speculative, and did not reflect the
plaintiff’s actual losses. “Loss of profits may be
recoverable in tort actions.” Hardman Trucking, Inc. v.
Poling Trucking Co., Inc., 176 W. Va. 575, 579, 346 S.E.2d
551, 555 (1986). However, this Court has established
stringent prerequisites to such recovery. In syllabus point
2 of Ohio-West Virginia Co. v. Chesapeake & Ohio Railroad
Co., 97 W. Va. 61, 124 S.E. 587 (1924), we held:
In order to recover for loss of profits as the result of
a tort, they must be such as would be expected to follow
naturally the wrongful act, and are certain both in
their nature and the cause from which they proceed.
Moreover, the loss of profits must be established with
reasonable certainty and not be speculative or conjectural
in character or amount. Franklin v. Pence, 128 W. Va. 353,
36 S.E.2d 505 (1945). `Thus no recovery can be had for loss
of profits where it is uncertain whether any profit at all
would have been made by the plaintiff.” 22 Am. Jur.2d
Damages § 625 (1988).
In the instant case, Melbourne used a formula approved by
the Department for calculating profit and overhead.
Although this evidence established the amount of profits
Melbourne could have made had it been working on another
project for the Department, there was no evidence that
Melbourne had such an opportunity.
Upon reviewing the trial record, we believe that the
evidence was insufficient to present the issue of lost
profits and overhead to the jury; thus, it was error for
the trial court to award Melbourne $17,246.21 reflecting
these speculative losses. Accordingly, the judgment order
of the Circuit Court of Kanawha County is affirmed in part,
reversed in part, and remanded with directions that the
trial court enter a judgment order of $192,994.88 plus
prejudgment interest.[fn7]
Justice McHugh and Justice Workman, deeming themselves
disqualified, did not participate in the consideration or
decision of this case.
Affirmed in part; reversed in part; and remanded with
directions.
[fn1] The Department of Highways argues that this proceeding
is barred by res judicata because of our decision in West
Virginia Dept. of Highways v. The Pioneer Co., 170 W. Va.
370, 294 S.E.2d 173 (1982). We disagree. See Conley v.
Spillers, 171 W. Va. 584, 301 S.E.2d 216 (1983).
[fn2] A cofferdam is a “watertight enclosure from which
water is pumped to expose the bottom of a body of water and
permit construction (as of a pier).” Webster’s New
Collegiate Dictionary, p. 217 3d 1975).
[fn3] The release provided as follows:
AGREEMENT
This Agreement made and entered into this 29 day of June,
1978, by and between MELBOURNE BROS. CONSTRUCTION CO., a
corporation, and THE PIONEER COMPANY, a corporation,
hereinafter respectively referred to as Melbourne and
Pioneer:
WHEREAS, on the 15th day of June, 1978, Melbourne did
willfully and wantonly trespass and cause damage on
certain property of Pioneer known as “Wilson Island”,
Union District, Kanawha County, West Virginia; and
WHEREAS, Pioneer seized a certain Caterpillar End Loader
used by Melbourne in said trespass and left on Pioneer’s
property.
NOW THEREFORE, this agreement witnesseth that for and in
consideration of the premises, the parties do hereby
covenant and agree as follows:
1. Melbourne agrees to refrain from any further trespass
or violation of the boundaries of the property of Pioneer.
2. Upon execution of this agreement, Pioneer agrees to
release to Melbourne the Caterpillar End Loader seized as
aforesaid.
3. Melbourne and Pioneer each release the other of and
from any and all claims, demands, actions and causes of
action arising from and connected with the events
referred to hereinabove.
[fn4] In the alternative, Pioneer argues that even if it
was incorrect regarding the property rights, it acted in
good faith and therefore should not be held liable for
damages. The jury was instructed on good faith, and
apparently found against Pioneer on this factual issue.
[fn5] See footnote 3 for the entire text of the agreement
signed between Melbourne and Pioneer.
[fn6] “Whether duress exists in a particular transaction
presents a question of fact for the jury.” Carroll v.
Fetty, 121 W. Va. 215, 220, 2 S.E.2d 521, 524, cert.
denied, 308 U.S. 571, 60 S.Ct. 85, 84 L.Ed. 479 (1939).
Appellant also complains of the lack of a jury instruction
that would require evidence of duress to be proved by clear
and convincing evidence. Carroll v. Fetty, 121 W. Va. at
220, 2 S.E.2d at 524. While we agree that such an
instruction was in order, we decline to disturb the jury’s
verdict. Appellant has offered no legal justification for
Pioneer’s seizure of the end loader. Indeed, even if
Pioneer were correct as to its property rights, and the end
loader was a trespassing chattel, Pioneer was only
privileged to exercise as much dominion and control over
the machine as was necessary to remove it from Pioneer’s
land. Restatement of Torts 2d § 260(1) (1965). For a
recent application of this well settled rule, see Sears v.
Summit, 616 P.2d 765 (Wyo. 1980), overruled on other
grounds, Adel v. Parkhurst, 681 P.2d 886 (Wyo. 1984).
In light of the strong evidence that Pioneer exacted the
release through a wholly unlawful demand, any error in
failing to instruct the jury as to the heightened burden of
proof necessary to prove duress was harmless. See W.
Va.Civ.P. Rule 61.
[fn7] Pioneer also assigns as error the following:
The Court Erred in Refusing to Allow the Jury to Consider
the Sworn Statements Made By Melbourne’s President in the
Court of Claims Alleging That the State Was Responsible
for the Delay.
Although the trial court refused to allow the appellants
to admit into evidence a verified complaint filed in the
Court of Claims against the Department by Melbourne, the
trial court did allow admission of a letter from the
president of Melbourne, dated March 5, 1979, to the
Department. In the March 5, 1979, correspondence,
Melbourne’s president blamed the Department for the delays
in completing the project. If it was error for the trial
court to refuse to admit the verified complaint into
evidence, it was harmless error and does not serve as a
basis for setting aside the jury verdict. See W. Va.R.C.P.
Rule 61.
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