WILLIAM G. ERPS, Defendant Below, Petitioner
LESLIE MEADOWS, Plaintiff Below, Respondent
Submitted: January 18, 2017
from the Circuit Court of Mercer County The Honorable William
J. Sadler, Judge Civil Action No. 13-C-442-WS
Anthony R. Veneri, Esq. Veneri Law Offices Princeton, West
Virginia Counsel for the Petitioner.
William S. Winfrey, II Attorney at Law Princeton, West
Virginia Counsel for the Respondent.
"'In reviewing challenges to the findings and
conclusions of the circuit court made after a bench trial, a
two-pronged deferential standard of review is applied. The
final order and the ultimate disposition are reviewed under
an abuse of discretion standard, and the circuit court's
underlying factual findings are reviewed under a clearly
erroneous standard. Questions of law are subject to a de
novo review.' Syl. Pt. 1, Public Citizen, Inc.
v. First Natl. Bank in Fairmont, 198 W.Va. 329, 480
S.E.2d 538 (1996)." Syllabus Point 1, McConaha v.
Rust, 219 W.Va. 112, 632 S.E.2d 52 (2006).
"When the finding of a trial court in a case tried by it
in lieu of a jury is against the preponderance of the
evidence, is not supported by the evidence, or is plainly
wrong, such finding will be reversed and set aside by this
Court upon appellate review.' Point 4, Syllabus,
Smith v. Godby, 154 W.Va. 190, 174 S.E.2d 165
(1970)." Syllabus Point 5, In re Boso, 160
W.Va. 38, 231 S.E.2d 715 (1977).
William Erps appeals a December 29, 2015 Amended Judgment
Order of the Circuit Court of Mercer County awarding judgment
to Respondent Leslie Meadows in the amount of $85, 675
following a bench trial. Below, Meadows claimed that Erps
owed her money from several separate real estate projects
that she shared with him. Erps alleges on appeal that certain
findings of fact made by the circuit court were clearly
erroneous based upon the evidence presented at trial, and
that the circuit court abused its discretion in awarding
judgment against him. Meadows raises cross-assignments of
error alleging that the amount of the circuit court's
judgment was inadequate based upon the evidence presented.
Upon consideration of the parties' briefs and arguments,
the submitted record and pertinent authorities, we affirm in
part, and reverse in part, the circuit court's order and
remand the case with directions as further indicated below.
FACTUAL AND PROCEDURAL BACKGROUND
filed this case against Erps in November of 2013. Prior to
filing, Meadows and Erps had known each other for several
years. Erps provided construction services to Meadows and her
husband through Erps's company, Improvements Unlimited,
LLC. After Meadows' husband passed away in 2006, Erps
continued to do construction work for Meadows. Beginning in
2008, Meadows and Erps were involved in four transactions
together in the Princeton area that give rise to the present
action. For purposes of this appeal, Meadows's claims
involve two of those transactions with Erps: (1) claims
related to the purchase of, improvements to, and sale of the
Sutphin property located on Old Oakvale Road; and (2) claims
related to the financing for the Twiford apartments on Lovell
Avenue and Guard Drive.
complaint, Meadows alleged that she had to take a loss on the
Sutphin property that the parties jointly purchased because
"Erps failed to repay her for the financing she provided
to him in the amount of $35, 000." She alleged that
Erps's actions in acquiring financing from her were
willful, deliberate, and fraudulent and that pursuant to a
contract to loan Erps money, he owed her repayment. She also
alleged that because of his actions, she lost the opportunity
to invest her money, incurred the expense of collection, and
suffered annoyance, aggravation and inconvenience.
respect to the Twiford apartments, Meadows alleged in her
complaint that after her husband died in 2006, Erps
approached her about providing him financing for the
apartments. She alleged that beginning in 2008 and ending in
2009, she provided Erps with $203, 000 for those buildings,
but he gave her nothing in the way of a lien or ownership
interest in the property. She contended that she paid Erps
five separate checks in the amounts of $67, 000, $90, 000,
$6, 000, $10, 000, and $30, 000 for financing
the completion of discovery, the circuit court conducted a
bench trial on October 27, 2015. Meadows and Erps were the
only witnesses who testified at trial. The circuit court
entered an Amended Judgment Order on December 29,
2015. In its order, the circuit court made the
following relevant findings of fact and conclusions of law.
the Sutphin property, the circuit court found that Erps
approached Meadows about jointly buying the house from Mr.
Sutphin for investment and resale. Meadows testified that she
cashed a certificate of deposit in the amount of $21, 375 in
April of 2009, signed a contract to jointly purchase the
property from Mr. Sutphin for $50, 000, and gave Erps $25,
000 for one-half of the down payment that same day. Meadows
also alleged that she continued to pay for repairs to the
house by paying Erps a total of $32, 300, as itemized in
Erps's March 15, 2011, statement to her. Pursuant to
terms of the sales contract, a deed reflecting the conveyance
of the property from Mr. Sutphin to Erps and Meadows for $50,
000 was recorded on April 27, 2010. Erps testified that at
the closing he presented a check dated April 21, 2010 in the
amount of $25, 000, which he testified came from his company.
However, the circuit court found that Erps failed to produce
the $25, 000 check at trial, and instead found Meadows's
testimony credible that the $25, 000 down payment came from
her cashing the $21, 375 certificate of deposit.
circuit court further found that on August 10, 2010, a deed
was prepared conveying Meadows' undivided interest in the
Sutphin property to Erps and his wife for $35, 000. Erps paid
Meadows $35, 000 for her interest in the property from the
proceeds of a loan he secured from First Community Bank in
the amount of $90, 000, using the property as collateral.
Erps subsequently entered into a sales contract with Mr.
Shorter, agreeing to sell him the property for $90, 000. The
circuit court found that Meadows had invested a total of $53,
675 in the Sutphin property ($21, 375 from cashing the
certificate of deposit, plus $32, 300 in payment for
improvements as evidenced by Erps's March 15, 2011
statement to her), but she only recovered $35, 000. The court
concluded that Meadows should have recovered at least the
amount of her investment. Accordingly, the court's
judgment order awarded Meadows $18, 675 with respect to the
regard to the Twiford apartments, the circuit court found
that there was no written contract between the parties
whereby Meadows would contribute funds for the apartments and
jointly own them with Erps. The court further found that,
even if there had been evidence of an oral contract for the
joint purchase of the apartments, such a contract would be in
violation of the statute of frauds, and therefore, would be
to Meadows's allegation that she provided financing to
Erps in the form of five checks totaling $203, 000 (in the
amounts of $67, 000, $90, 000, $6, 000, $10, 000 and $30,
000), the circuit court found that Meadows only produced two
checks at trial that arguably could be attributed to the
apartments - one for $67, 000 and one for $90, 000. The court
found that the $67, 000 check, which was tendered in July
2009, was attributable to the apartments based on
Meadows's testimony and the notation "APT."
written on the check's memorandum line. As for the $90,
000 check, which was dated
15, 2009, the court found that the copy of the check that was
admitted into evidence had nothing written on it to indicate
that it was related to the apartments, but the copy of the
same check that was produced to Erps in discovery contained
the words, "Apt. property" on the memorandum line.
Meadows conceded in her testimony that she wrote the words
"Apt. property" on the check after it was tendered
to Erps, processed through the bank, and returned to her.
Accordingly, the circuit court found that the preponderance
of the evidence was that Meadows lent Erps only $67, 000 for
his use toward the apartments; thus, she was a lender of $67,
000, at no interest, and not a joint venturer with Erps for
circuit court granted judgment in favor of Meadows for a
total sum of $85, 675 ($18, 675 for the Sutphin property and
$67, 000 for the Twiford apartments) with post-judgment
interest. The court further granted Meadows pre-judgment
interest from the year 2010 through the entry date of the
order. Both parties assign error to the circuit court's
STANDARD OF REVIEW
our standard of review following a bench trial, we have held:
"In reviewing challenges to the findings and conclusions
of the circuit court made after a bench trial, a two-pronged
deferential standard of review is applied. The final order
and the ultimate disposition are reviewed under an abuse of
discretion standard, and the circuit court's underlying
factual findings are reviewed under a clearly erroneous
standard. Questions of law are subject to a de novo
review." Syl. Pt. 1, Public Citizen, Inc. v. First
Natl. Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538
Syl. Pt. 1, McConaha v. Rust, 219 W.Va. 112, 632
S.E.2d 52 (2006).
first assignment of error, Erps contends that the circuit
court made a clearly erroneous finding of fact that he did
not produce a check at trial in the amount of $25, 000,
representing his company's payment of the balance owed
for the Sutphin property at closing. According to Erps, that
check was introduced as evidence as ...