MEMORANDUM OPINION & ORDER
IRENE C. BERGER, District Judge.
The Court has reviewed the Defendant Pinnacle Mining Company, LLC's Motion for Summary Judgment (Document 104), filed on October 21, 2013. After careful consideration of the motion, the parties' memoranda, attached exhibits, and the entirety of the record, the Court, for the reasons stated herein, finds that the Defendant Pinnacle Mining Company, LLC's Motion for Summary Judgment should be granted.
I. FACTUAL & PROCEDURAL HISTORY
The dispute herein arises from a strategic business alliance between two coal mining companies, Pinnacle Mining Company, LLC (Pinnacle), and Covol Fuels No. 4, LLC (Covol). Plaintiff Covol is incorporated in Utah with its principal place of business in Utah, and Defendant Pinnacle is incorporated in Delaware with its principal place of business in Ohio. (Compl. ¶¶ 9-10.) From 2008 until 2012, the parties operated under a contract providing for Covol to process the coal waste material from Pinnacle's mining operation in Wyoming County, West Virginia, into saleable coal. (Compl. ¶ 13.) Covol alleges that certain actions and omissions by Pinnacle breached the parties' contract, fraudulently and/or negligently misled Covol, and unjustly enriched Pinnacle. (See Compl.)
Pinnacle owns and operates an underground coal mine in Wyoming County, West Virginia. (Compl. ¶ 10.) Near the end of its mining process, Pinnacle utilizes a wash plant to strip and clean the mined coal of unwanted particulates, and then deposits the resulting waste (refuse material) into an adjacent impoundment pond. (Compl. ¶ 15.) Prior to the parties' written agreement, an affiliate company of Pinnacle, Beard-Pinnacle, LLC, operated a coal waste processing facility near the impoundment to clean and process the refuse material into saleable coal. (Compl. ¶ 16.)
In 2008, Covol purchased Beard-Pinnacle's assets at the Pinnacle mine, including the coal waste processing facility, for $14 million.
(See Document 21-2.) The CPRRA also mandates that Covol is responsible for the waste from its processing facility, identifies West Virginia as the choice of law jurisdiction, and includes terms regarding assignment, written notice, paying taxes, record-keeping, indemnification, insurance, and legal ownership and liability for the land and the refuse material. (Id.) The CPRRA also references a Coal Sales Agreement between Covol and Pinnacle Coal Sales, LLC. (Compl. ¶ 23.)
Covol renovated the coal waste processing facility and, in the summer of 2008, began removing and processing refuse material from the impoundment.
By 2010, however, the slopes of the impoundment had become too steep for Covol to continue removing the available refuse material, so the company began an excavation project to remedy the problem. (Compl. ¶ 25.) The parties dispute whether Pinnacle encouraged Covol to excavate the impoundment, and whether Pinnacle agreed to pay for some of the expenses. (Compl. ¶ 25; Document 30 at 5.) According to Covol, Pinnacle agreed that the project was necessary, "encouraged Covol to perform the excavation work," and "gave Covol its assurance that it would share the cost of the work evenly." (Compl. ¶ 25.) Pinnacle disagrees, arguing that it did not request that Covol complete the excavation project, nor did it agree to pay any of the expenses. (Document 105
Before beginning the excavation, Covol had to obtain approval from the Mine Safety and Health Administration (MSHA) on Pinnacle's existing MSHA plan. (Document 105 at 5.) Per the revised MSHA plan, Covol intended to dredge the impoundment in six twenty-five (25) foot lifts, and anticipated that the water level in the impoundment would be lowered accordingly after each lift.
Around the same time period that Covol completed the excavation project, Pinnacle made two significant changes to its mining operations. Pinnacle (1) upgraded its own wash plant, and (2) changed its water management system, defeating both companies' ability to lower or control the water level in the impoundment. (Compl. ¶¶ 27, 30.) Covol claims that the latter change made it "impossible for Covol to obtain access to the layers of coal waste that it can economically recover and process." (Compl. ¶ 32.) These two changes, discussed in more detail below, form the basis of Covol's claims against Pinnacle.
In late 2010, Pinnacle upgraded its wash plant. (Document 105 at 8.) Pinnacle does not dispute that improving its wash plant's efficiency resulted in less coal content being deposited in the impoundment. (Id.) Pinnacle claims that the wash plant was outdated and inefficient. (Id.) Pinnacle further argues that the CPRRA did not prohibit Pinnacle from upgrading the wash plant, nor did it require Pinnacle to inform Covol that it intended to do so. (Id.) Regardless, Pinnacle claims that it told Covol of the planned upgrade in June 2010, and that Covol was aware that the upgrade would result in lower quality refuse material filling the impoundment. (Document 105 at 9.) Covol argues, however, that Pinnacle began planning to upgrade its wash plant in 1997, and failed to inform Covol of the same before the parties entered into the CPRRA. (Document 109 at 13.) According to Covol, this upgrade significantly decreased Covol's ability to efficiently process the refuse material into saleable coal. (Compl. ¶¶ 28-29.)
The second change Pinnacle made — implementing the new water management system — was in response to a West Virginia Department of Environmental Protection (WVDEP) enforcement action against the company regarding selenium pollution.
Covol stresses that Pinnacle had an additional viable option for managing the selenium pollution issue — a water treatment program. This method for managing selenium is allegedly used by Pinnacle's parent company at other mines, and was initially, albeit temporarily, submitted to the WVDEP as the company's plan for selenium management at the Wyoming County, West Virginia, mine.
In essence, Covol argues that by choosing water management instead of water treatment, Pinnacle chose to eliminate both companies' ability to lower the water level in the impoundment and "mak[e] it impossible for Covol to conduct operations." (Compl. ¶ 4; Document 109 at 19.) Covol argues this decision effectively killed its waste processing operation. Because
In addition, Covol argues that Pinnacle did not keep Covol reasonably informed, respect Covol's contractual or common law rights, or consider Covol's recommendations regarding the selenium management issue. (Document 109 at 12.) Covol argues that Pinnacle only provided Covol with Barr's draft report instead of its final report, and that Covol relied on the representations in the draft report to proceed with the excavation project. (Id. at 27.) Covol also claims that Pinnacle ignored Covol's concerns and complaints about losing the ability to lower the water level, and that Pinnacle understood that lowering the water level was necessary for Covol to continue operations. (Compl. ¶¶ 6, 30, 33; Document 109 at 20.)
The parties vigorously dispute whether Pinnacle expressly or impliedly agreed to continue lowering the water level in the impoundment. Covol asserts that Pinnacle "repeatedly represented it could and would lower the water." (Document 109 at 6.) In addition, Covol argues that the CPRRA requires Pinnacle to lower the water level because (1) Pinnacle expressly granted Covol "any right-of-way reasonably needed by Covol to transport the Refuse Material" from the impoundment pond to its processing plant; (2) Pinnacle "approved and submitted plans to governmental agencies that expressly provided" for lowering the water level; and (3) Covol's right to access the refuse material was a predicate act and necessary to achieve the general purpose of the agreement-to recover refuse material to process into saleable coal.
As a result of Pinnacle's actions (upgrading the wash plant and implementing the water management system) and alleged omissions (failing to inform Covol of the same), Covol argues that it was forced to shut down its operations. (Compl. ¶ 34.) Covol subsequently filed a Complaint (Document 1) against Pinnacle on August 7, 2012 asserting four claims: (I) breach of contract; (II) fraudulent concealment; (III) negligent misrepresentation; and (IV) unjust enrichment. (Compl. ¶¶ 38, 42, 49, and 57.) Covol demands a jury trial and seeks judgment in its favor, compensatory and consequential damages, interest on any judgment, costs and attorneys' fees, and all other just and proper relief. (Compl. at 12.) In its Answer (Document
After extensive discovery by both parties,
II. STANDARD OF REVIEW
The well-established standard for consideration of a motion for summary judgment is that summary judgment should be granted if the record, including the pleadings and other filings, discovery material, depositions, and affidavits, "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a)-(c); see also Hunt v. Cromartie, 526 U.S. 541, 549, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Hoschar v. Appalachian Power Co., 739 F.3d 163, 169 (4th Cir.2014). A "material fact" is a fact that could affect the outcome of the case. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir.2010). A "genuine issue" concerning a material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir.2013).
The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a); Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. When determining whether summary judgment is appropriate, a court must view all of the factual evidence, and any reasonable inferences to be drawn therefrom, in the light most favorable to the nonmoving party. Hoschar, 739 F.3d at 169. However, the nonmoving party must satisfy its burden of showing a genuine factual dispute by offering more than "[m]ere speculation" or a "scintilla of evidence" in support of its position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505; JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). If disputes over a material fact exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," summary judgment is inappropriate.
A. Breach of Contract
In the first cause of action, Covol claims that Pinnacle breached the CPRRA. The Court notes that neither party challenges that the CPRRA was a valid and enforceable contract, or that both parties were mutually bound by its terms. The parties disagree, however, concerning the nature and extent of their respective rights and obligations pursuant to its terms.
Pinnacle asserts that it did not breach any express term of the CPRRA and argues that no implied or express term created a duty to lower the water level or provide Covol access to the refuse material in the impoundment. Covol argues that it cannot access the refuse material unless Pinnacle lowers the water level, and claims that the contract expressly and impliedly grants it the right to access and remove the refuse material. Pinnacle replies that the contract defines the full extent of Covol's right of access as a limited right-of-way that "clearly does not obligate Pinnacle to lower the water level at Covol's demand." (Document 113 at 3).
1. Express Terms of the CPRRA
Claims alleging breach of an unambiguous contract are "particularly suited for summary judgment disposal" because a court can "ascertain the meaning of the agreement as manifested by its language" and "enforce it as written." Bank of Montreal v. Signet Bank, 193 F.3d 818, 835 (4th Cir.1999); Fraternal Order of Police, Lodge No. 69 v. Fairmont, 196 W.Va. 97, 468 S.E.2d 712, 716 (1996). The first step in a court's analysis is to decide as a matter of law whether the contract is ambiguous or not. Goodman v. Resolution Trust Corp., 7 F.3d 1123, 1126 (4th Cir. 1993) ("The question as to whether a contract is ambiguous is a question of law to be determined by the court."); see also Franklin v. Lilly Lumber Co., 66 W.Va. 164, 66 S.E. 225 (1909). A writing is ambiguous if it is "reasonably susceptible of two different meanings." Estate of Tawney v. Columbia Natural Res., LLC, 219 W.Va. 266, 633 S.E.2d 22, 28 (2006). In addition, "[t]he mere fact that parties do not agree to the construction of a contract does not render it ambiguous." Berkeley County Public Service Dist. v. Vitro Corp. of America, 152 W.Va. 252, 162 S.E.2d 189, 200 (1968).
If the language is unambiguous, it "must be construed according to [its] plain and natural meaning." Fraternal Order of Police, 468 S.E.2d at 716. A court may not use interpretation, construction, or extrinsic evidence to conceive any intention or obligation that contradicts the plain meaning of an unambiguous agreement. See Fifth Third Bank v. McClure Properties, Inc., 724 F.Supp.2d 598, 605 (S.D.W.Va.2010) (Chambers, J.); see also Haynes v. Daimler-Chrysler Corp., 228 W.Va. 441, 720 S.E.2d 564 (2011) ("It is not the right or province of a court to alter, pervert or destroy the clear meaning and intent of the parties as expressed" in an unambiguous contract.). The court "may then properly interpret that contract as a matter of law and grant summary judgment because no interpretive facts are in genuine issue." Goodman, 7 F.3d at 1126.
If the court determines that the contract is ambiguous, it should consider
The Court finds that the language of the CPRRA is clear and unambiguous. The terms are straightforward, understandable, and definitive. They are not susceptible to more than one reasonable interpretation. Further, the contract is the product of negotiations between sophisticated corporate parties, both represented by counsel. Therefore, the Court will identify and enforce the plain and natural meaning of the language of the CPRRA.
Covol's assertion that Section(s) 1, 4, 8, and 18 of the CPRRA provide it with an express right of access to the refuse material in the impoundment is unavailing. Section 1 of the CPRRA defines Covol's intentions in entering into the agreement.
(Document 21-2 at 10.) Covol asserts that the right-of-way in Section 18(ii) "necessarily extend[s] beyond the water's edge through the depth of the water." (Document 109 at 17.) However, allowing Covol access to the bottom of the impoundment pond does not require Pinnacle to affirmatively lower the water level. The Court will not impose an additional duty or right that is not expressed by the plain language of an unambiguous contract. See Fifth Third, 724 F.Supp.2d at 605-06. Therefore, the Court finds that Pinnacle is not in breach of Section 18 of the CPRRA as a matter of law.
Covol also argues that Section 8 of the CPRRA requires Pinnacle to lower the water level in the impoundment pond in accordance with certain mining plans submitted to MSHA and the WVDEP.
Pursuant to West Virginia law, "a general reference in one writing to another document is not sufficient to incorporate that other document into a final agreement." State ex rel. U-Haul Co. of West Virginia v. Zakaib, 232 W.Va. 432, 752 S.E.2d 586, 598 (2013). The language in the CPRRA regarding Pinnacle's mining plans and permits is nothing more than an "oblique reference to a separate, non-contemporaneous document" and, as such, is insufficient to incorporate into the parties' agreement. Id. at 595. The CPRRA itself does not make a detailed reference to any plan or permit identification number, and there is no addendum attached which would otherwise indicate which permit or plan the CPRRA is incorporating by reference. Therefore, Covol's argument that Pinnacle owes a contractual duty to Covol to lower the water level in the impoundment pond based on reference to, and representations in, its plans and permits is unavailing.
In sum, the Court "will not use the vehicle of interpretation to relieve one party of a bad bargain." Pechenik v. Baltimore & O.R. Co., 157 W.Va. 895, 205 S.E.2d 813, 815 (1974). Covol does not cite to any portion of the CPRRA that imposes
2. Common Law or Implied Right to Access
Pinnacle next argues that Covol's rights are "solely governed" by the express language of the CPRRA, which does not require Pinnacle to "control the water level for Covol's benefit or grant Covol any right to demand that Pinnacle raise or lower the water level." (Document 105 at 13-14.) Covol counters that the terms of the CPRRA "collectively evidence" a right to access the refuse material because doing so was a "necessary predicate" to achieving the "fundamental purpose" of the CPRRA. (Document 109 at 16-17.) Covol supports this argument with deposition testimony from Mr. William Boor, "Pinnacle's Rule 30(b)(6) witness on the terms of the CPRRA."
As noted supra, the Court will not create or impose an additional duty or right that is not expressed by the plain language of the parties' unambiguous and fully integrated contract.
Even assuming arguendo that the CPRRA as a whole establishes an implied duty that Pinnacle provide Covol with a right to access the refuse material, the Court is not persuaded that Pinnacle materially breached such an obligation. When Pinnacle upgraded the wash plant and changed the water management system, these actions undoubtedly made it more difficult for Covol to access the refuse material and thereby profit from operating the processing plant. However, Covol was never denied access to the refuse material. Covol simply had to deal with more water in the impoundment where the refuse material was located. Tellingly, Section 20 of the CPRRA explicitly disclaims any warranty regarding the quantity or quality of the refuse material and the suitability of its property for the operation of Covol's processing plant.
3. Implied Covenant of Good Faith and Fair Dealing
Pinnacle argues that the implied covenant of good faith and fair dealing "does not give Covol any rights inconsistent with those rights expressly provided for" in the CPRRA. (Document 105 at 19.) Because Pinnacle did not violate any of Covol's rights under the CPRRA, Pinnacle argues it is not in breach of the implied covenant as a matter of law. (Id. at 20.) Covol responds that an implied covenant of good faith and fair dealing is automatically incorporated in the CPRRA, and asserts that changing the water management system so that the water could not be lowered and Covol could not receive the benefit of the contract constitutes a breach. "If Covol wanted to impose an unfettered duty on Pinnacle to raise and lower the water level in the Impoundment at Covol's whim and for Covol's sole benefit," Pinnacle argues, "Covol should have ensured that the CPRRA contained a provision imposing that duty." (Document 113 at 10.)
It is true that West Virginia law incorporates an implied covenant of good faith and fair dealing into every contract. Fifth Third, 724 F.Supp.2d at 609. Further, "good faith" is defined as "honesty in fact and the observance of reasonable commercial standards of fair dealing." W. Va.Code § 46-1-201(b)(20). Notably, the
Here, the implied covenant of good faith requires Pinnacle to act within "reasonable commercial standards of fair dealing" when performing its duties under the CPRRA. See Fifth Third, 724 F.Supp.2d at 609. The Court finds no genuine dispute of material fact concerning whether Pinnacle met the standard of reasonable fair dealing when managing the selenium pollution issue. Having previously found that Pinnacle did not breach any duty — express or implied — of the CPRRA, there is no avenue through the applicable case law that affords Covol an independent cause of action for a breach of the covenant of good faith and fair dealing. Simply put, here the implied covenant of good faith and fair dealing "cannot give contracting parties rights which are inconsistent with those set out in the contract." Barn-Chestnut, Inc. v. CFM Dev. Corp., 193 W.Va. 565, 457 S.E.2d 502, 509 (1995). Thus, the Court finds that Pinnacle is entitled to summary judgment on the claim for breach of the implied covenant of good faith and fair dealing.
B. Fraudulent Concealment and Negligent Misrepresentation
Pinnacle advances three reasons why Covol's fraudulent concealment and negligent misrepresentation claims must fail as a matter of law. First, Pinnacle argues that Covol cannot recover under a West Virginia common law tort claim because its claims arise from the same subject matter covered by the CPRRA. (Document 105 at 21-22.) Second, Pinnacle contends that there was never a relationship between the parties that would prompt an affirmative duty to disclose. (Id. at 22-23.) Third, Pinnacle asserts that Covol's alleged reliance on Pinnacle's silence was unreasonable and unjustifiable based on the timing of Pinnacle's changes and Covol's investments. (Id. at 21-26.) Pinnacle argues that Covol purchased and upgraded the waste processing facility before Pinnacle decided to upgrade the wash plant and change the water management system.
In reply, Pinnacle again stresses that Covol's claims arise from the CPRRA and therefore are not recoverable under tort law; that Covol and Pinnacle were not in a special relationship that would prompt a duty to disclose; that Pinnacle did not have plans to upgrade the wash plant or change the water management system before Covol purchased the waste processing facility and that Covol was informed of the wash plant upgrades and selenium pollution issue before approving the excavation project. (Document 113 at 11-16.)
The elements of fraudulent misrepresentation mirror the well-established elements of fraud: (1) the fraudulent act was committed or induced by the defendant himself; (2) the act was "material and false," the plaintiff relied on it, and the plaintiff's reliance was "justified under the circumstances;" and (3) the plaintiff suffered damage from his reliance. Trafalgar House Const., Inc. v. ZMM, Inc., 211 W.Va. 578, 567 S.E.2d 294, 300 (2002); see also Ochala v. Dyncorp Int'l LLC, 2009 WL 4152966, *5 (S.D.W.Va.2009) (Chambers, J.). If the fraudulent misrepresentations "contributed to the formation of the conclusion in the plaintiff's mind," then the actual reliance element is met. Trafalgar, 567 S.E.2d at 301.
Fraudulent concealment, on the other hand, requires: (1) the concealment of facts by the one with knowledge of those facts; (2) a duty to disclose; and (3) "an intention to mislead or defraud." Trafalgar, 567 S.E.2d at 300; see also Kessel v. Leavitt, 204 W.Va. 95, 511 S.E.2d 720, 753 (1998) ("[A]ctive concealment of information from a party with the intent to thwart that party's efforts to conduct an investigation, relating to such information, constitutes actionable fraudulent concealment.")
Under the West Virginia gist-of-the-action doctrine, "whether a tort claim can coexist with a contract claim is determined by examining whether the parties' obligations are defined by the terms of the contract."
The Court finds that Pinnacle is entitled to summary judgment on Covol's claim for fraudulent concealment and negligent misrepresentation. In essence, Covol is claiming that Pinnacle is liable for failing to disclose its plans to upgrade its wash plant. This argument is based on a claim for fraudulent inducement, which requires that (1) Pinnacle induced Covol to enter into the CPRRA (2) by false representations (3) Pinnacle knew, or had a duty to know, were untrue. Folio v. Clarksburg, 221 W.Va. 397, 655 S.E.2d 143, 150 (2007). The Court is not persuaded that failing to disclose general plans to upgrade the wash plant constitutes a false representation. Importantly, Covol has not produced any evidence that it inquired about the wash plant or any plans to upgrade it, or that Pinnacle had actively concealed plans from Covol during due diligence or the execution of the CPRRA. Equally important, Covol's tort claims are barred by the gist-of-the-action doctrine articulated in Gaddy, as they would not arise independent of the existence of the CPRRA. Again, the Court must look to the unambiguous language of the contract to define the relationship between the parties. As mentioned supra, in Section 20, Pinnacle expressly disclaimed any representation or warranty regarding the suitability of the premises for processing the refuse material, and Covol expressly agreed to accept the risks associated with the suitability of Pinnacle's premises for processing the refuse material. Additionally, pursuant to Section 12, Covol had the unilateral right to, "in its reasonable discretion, terminate this Agreement if Covol reasonably determines that it is not economically feasible to continue to purchase and process the Refuse Material." (Document 21-2 at 7.) Therefore, the Court finds that Pinnacle is entitled to summary judgment on the
C. Unjust Enrichment
Finally, Pinnacle argues that Covol's unjust enrichment claim must fail as a matter of law because Covol cannot establish genuine evidence that Pinnacle benefitted from the excavation project. (Document 105 at 26.) Pinnacle also claims to have expressly rejected any proposed agreement to share the expenses, which it argues defeats any suggestion that Covol is equitably entitled to receive payment for the excavation.
In West Virginia, the claim of unjust enrichment has three elements: (1) a benefit bestowed upon the defendant; (2) knowledge of such benefit by the defendant; and (3) "the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value." CUMIS Ins. Soc'y, Inc. v. Raines, 2013 WL 500305, *2 (S.D.W.Va.2013) (Chambers, J.); see also Realmark Developments, Inc. v. Ranson, 208 W.Va. 717, 542 S.E.2d 880, 884-85 (2000). Regarding improvements to real property, the West Virginia Supreme Court has held that "if one person improves the land of another ... through the direction of services to the land ... that person is entitled to restitution for the improvements if certain other circumstances are present." Realmark, 542 S.E.2d at 884. "Such" or "certain other" circumstances include, among others: (1) a fraudulent misrepresentation by the defendant; (2) an innocent misrepresentation by the defendant upon which the plaintiff justifiably relied; or (3) when the plaintiff mistakenly believes that payment was secured by a valid contract. Id.; see also Veolia Es Special Services, Inc. v. Techsol Chemical Co., 2007 WL 4255280, *9 (S.D.W.Va.2007) (Chambers, J.).
Covol undertook the excavation project so that it could "access more minable [refuse] material" in performance of its rights and duties under the contract. (Document 109 at 13.) As such, the excavation project — as well as any alleged benefit conferred to Pinnacle — falls within the scope and subject matter of the parties' written contract.
Instead, Covol agreed to "accept the risks associated with the ... suitability of Pinnacle's premises" for removing and processing refuse material. (Document 21-2 at 12.) Thus, the subject matter of this claim involves the performance of an express contract, and as such, cannot be the basis of an unjust enrichment claim. Accordingly, the Court finds that Pinnacle is entitled to summary judgment on the unjust enrichment claim.
Wherefore, after thorough review and careful consideration, the Court hereby
(Document 109-1 at 292.) In Barr's final report, however, this language was changed to:
(Document 104-22 at 63.) Further, the Court found the following language in the draft report, but not the final:
(Document 109-1 at 288.)
(Document 21-2 at 1) (emphasis added).
(Document 21-2 at 3) (emphasis added).
(Document 109-1 at 6-7; Exhibit A, 69:18-70:5.)
(Document 21-2 at 11-12) (first emphasis in original) (second emphasis added).
Gaddy, 746 S.E.2d at 577.
(Document 104-23 at 39-40; Exhibit R part 1, 319:16-320:11.)
Bright, 20 F.3d at 1308.