DAN RYAN BUILDERS, INC., a Maryland Corporation, Plaintiff - Appellant,
CRYSTAL RIDGE DEVELOPMENT, INC., a West Virginia Corporation; LANG BROTHERS, INC., a West Virginia Corporation; ROBERT S. LANG, an individual, Defendants - Appellees,
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
Argued: December 10, 2014.
Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. (1:09-cv-00161-IMK-JSK). Irene M. Keeley, District Judge.
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.
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.
Before MOTZ, GREGORY, and WYNN, Circuit Judges. Judge Motz wrote the majority opinion, in which Judge Wynn joined. Judge Gregory wrote a separate opinion concurring in part and dissenting in part.
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.
We briefly summarize the relevant facts, which are undisputed.
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 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 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 pre-trial 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, the court issued a ...