Avis Construction Company, Incorporated, Plaintiff-appellee,palma, Incorporated, Defendant-appellant, 37 F.3d 1492 (4th Cir. 1994)

This case arises out of a construction contract for a new high school in Craig County, Virginia. Avis Construction Company was the general contractor and engaged Palma, Inc. as its subcontractor. Palma was to install a trowel-applied floor¹  for the new high school. The floor proved unsatisfactory, and after attempts to have Palma correct the problem, Avis hired another subcontractor to patch and recover the floor. Avis then filed suit against Palma in the Circuit Court of Craig County, seeking to recover the costs it incurred in hiring the second subcontractor. Palma removed this case to the United States District Court for the Western District of Virginia. By consent of the parties, the case was tried by a magistrate judge pursuant to 28 U.S.C. § 636(c) (1), who entered judgment in favor of Avis. Palma appealed that decision to this court. 28 U.S.C.Sec. 636(c) (3). We affirm.

Palma raises three issues: (1) whether the court erred in concluding that Palma warranted or guaranteed to Avis satisfaction with the floor; (2) whether the court erred in concluding that the proper measure of damages was the cost associated with the second subcontractor's repair of the floor; and (3) whether Avis waived its claim by failing to demand that Palma certify that the floors were in proper condition to apply the epoxy finish as required by the contract.

* The magistrate judge found as a fact that Palma had guaranteed satisfaction, under normal conditions, with the floor when it applied for the subcontract. On appeal, Palma argues that the magistrate judge could have made this finding only if he relied on an October 10, 1986 letter from Palma to Avis which contained a three-year guarantee²  and which predated the contract, which was signed on March 18, 1987. Palma asserts that it was error to consider this letter because it merely was evidence of negotiations leading up to the contract, and no guarantee is contained in the final contract.³  Relying on Durham v. National Pool Equipment Co., 138 S.E.2d 55, 59 (Va.1964), Palma contends that under the parol evidence rule the magistrate judge should have considered only the final written contract and not the letters which predated it which had merged into the subcontract.

Avis correctly argues that Palma never raised this objection to the October 10, 1986 letter before the magistrate judge, even though there was ample opportunity to do so. A review of the record reveals that the letter was very much a part of the hearing. Counsel for Avis referred to it and relied on it in his opening statement. Counsel for Palma did not argue that Palma had not guaranteed the floor. Rather, he argued that the issue in the case was determining who or what was at fault for the failure of the floor. He proffered concrete slab movement and excess moisture as two reasons, each of which would have exonerated Palma.⁴  The letter was contained in a notebook of exhibits to which the parties apparently had stipulated, and the notebook was received without objection. Indeed, the offending part of the letter was read into evidence without objection. Even if we assume that the letter resulted in the magistrate judge's factual finding that Palma guaranteed Avis's satisfaction with the floor, it is now too late for Palma to argue that the letter should not have been considered by the magistrate judge because of the parol evidence rule. This argument was not raised below, and we do not consider it. McGowan v. Gillenwater, 429 F.2d 586 (4th Cir. 1970) (per curiam).

II

Palma contends that too much of the epoxy floor was replaced and that it should not be required to pay for excess work.

The magistrate judge found no evidence of such economic waste and concluded that the proper measure of damages was the cost to Avis of repairing the floor. He also found that the amount submitted by Avis was uncontested and that the costs were reasonable under the circumstances. Palma argues that because the problems with the floor occurred on only a part of its surface area, the correct measure of damages was the difference in value between the floor for which Avis contracted and the one which it received.

There having been no excessive repairs, we believe the magistrate judge's selection of the cost to Avis of having the second subcontractor repair the floor as the appropriate measure of damages is in accord with Virginia law, and we affirm. Mann v. Clowser, 59 S.E.2d 78 (Va.1950); Lambert v. Jenkins, 71 S.E. 718, 720 (Va.1911).

III

Palma also argues that to the extent Avis has proffered Palma's failure to adequately clean and prepare the floor for the application of the epoxy as the reason for the floor's failure, Avis has waived its right to assert this ground because it did not demand a certificate from Palma pursuant to Section 9700 of the architect's specifications, that the floors were in the proper condition for the application of Palma's product. We conclude that this argument is without merit. There is no duty to save one from himself.

Accordingly, the judgment of the district court is

AFFIRMED.