Sneberger v. Morrison

• Citation: 776 S.E.2d 156,235 W.Va. 654
• Decision Date: 11 June 2015
• Docket Number: No. 14–0662.,14–0662.
• Court: Supreme Court of West Virginia
• Parties: Teri SNEBERGER, Plaintiff Below, Petitioner v. Jerry MORRISON, d/b/a Jerry Morrison Construction, and James Phillips, Defendants Below, Respondents.

235 W.Va. 654

776 S.E.2d 156

Teri SNEBERGER, Plaintiff Below, Petitioner

v.Jerry MORRISON, d/b/a Jerry Morrison Construction, and James Phillips, Defendants Below, Respondents.

No. 14–0662.

Supreme Court of Appeals of West Virginia.

Submitted May 12, 2015.

Decided June 11, 2015.

Marvin W. Masters, Esq., Christopher L. Brinkley, Esq., Richard A. Monahan, Esq., The Masters Law Firm, LC, Charleston, WV, for Teri Sneberger.

Pat A. Nichols, Esq., Parsons, WV, for Jerry Morrison.

Trevor K. Taylor, Esq., Tiffany A. Cropp, Esq., Taylor Law Office, Morgantown, WV, for James Phillips.

Opinion

LOUGHRY, Justice:

The petitioner and plaintiff below, Teri Sneberger, appeals a final order of the Circuit Court of Randolph County entered on June 2, 2014, denying her motion for a new trial in her civil action against the respondents and defendants below, Jerry Morrison, d/b/a Jerry Morrison Construction, and James Phillips, arising out of the construction of her log home. Following a three-day trial, the jury returned a verdict in favor of Ms. Sneberger only with respect to her negligence claim against Mr. Morrison. The jury awarded $40,000.00 in damages but also found Ms. Sneberger to be comparatively negligent and assessed her fault at forty percent.

In this appeal, Ms. Sneberger contends that the trial court committed reversible error by (1) limiting the time the parties had to present the case to the jury; (2) placing limitations on the expert testimony; (3) granting judgment as a matter of law in favor of Mr. Phillips; (4) denying her motion for judgment as a matter of law with respect to her negligence and breach of warranty claims against Mr. Morrison; (5) instructing the jury on comparative negligence; (6) including dicta in the outrageous conduct instruction; and (7) denying her motion for a new trial. Having carefully considered the parties' briefs and oral arguments, the submitted record, and the applicable authorities, we find no error. Accordingly, for the reasons set forth below, the final order is affirmed.

I. Factual and Procedural Background

Sometime in the later part of 2009, Ms. Sneberger entered into a verbal contract with Mr. Morrison for the construction of a “primitive” log home¹ on property she owned in Beverly, Randolph County, West Virginia. Mr. Morrison told Ms. Sneberger that he had previously built two log homes, but he also advised her that he was not a licensed general contractor. According to Ms. Sneberger, Mr. Morrison stated that he could build her a log home according to her specifications for $140,000.00, including materials and labor. Mr. Morrison further stated that he had suitable logs for the project from trees he had cut down on his farm. He indicated that the home would be “turn key ready” after four months of construction. Ms. Sneberger orally agreed to these terms. The parties never had a written contract. Mr. Morrison began construction on Ms. Sneberger's log home in March 2010.

Ms. Sneberger entered into a second verbal contract with James Phillips, a mason, to build the basement walls of her log home and a chimney with two fireplaces. According to Ms. Sneberger, Mr. Phillips made the decisions about how to construct the chimney and install the flues. In addition to his mason work, Mr. Phillips operated a fork lift to aid Mr. Morrison in constructing the walls of the home. Mr. Phillips testified at trial that he used his forklift to place the logs according to Mr. Morrison's specifications.

As construction on the log home progressed, Ms. Sneberger began to question Mr. Morrison's work. According to Ms. Sneberger, she observed that the logs in the walls and roof were not uniform in size; there was excessive “chinking” between some of the logs;² the roof rafters were not straight; and the roof sagged. Concerned about the increasing number of apparent defects in the construction, as well as the excessive costs of the labor and materials,³ Ms. Sneberger fired Mr. Morrison in late July or early August 2010. Although Mr. Phillips had not completed construction of the chimney, Mr. Morrison contacted him and told him he was no longer needed to finish his work on Ms. Snebeger's home.⁴

After she fired Mr. Morrison, Ms. Sneberger hired other contractors to remediate the alleged defects and finish the construction of her home. According to Ms. Sneberger, a new roof structure had to be built because the one constructed by Mr. Morrison bowed five to seven inches. The plumbing and electrical systems had to be reworked as they did not comply with acceptable construction standards. The chimney had to be torn down because wooden beams and joists were discovered inside the chimney block. In addition, the chimney foundation was deemed inadequate because it was only four inches thick and sitting on dirt. Despite the remediation work, Ms. Sneberger claims she cannot live in her home because she was advised by one of her expert witnesses that there is a significant risk the structure will collapse.

On September 30, 2011, Ms. Sneberger filed suit against Mr. Morrison and Mr. Phillips, alleging the following theories of liability: fraud and misrepresentation, breach of contract, negligence, breach of the implied warranties of habitability and merchantability, and outrageous conduct. Ms. Sneberger also sought punitive damages. The case proceeded to trial on August 14, 2013. After Ms. Sneberger presented her case to the jury, both Mr. Morrison and Mr. Phillips moved for judgment as a matter of law. While Mr. Morrison's motion was denied, Mr. Phillips' motion was granted, and he was dismissed from the case. At the end of the trial, the jury returned a verdict in favor of Ms. Sneberger only with respect to her negligence claim against Mr. Morrison, awarding $40,000.00 in damages “for the cost of fixing the defects, completing the work, and placing [her] home in the condition that it should have been had the work been done properly.” The jury further found, however, that Ms. Sneberger had failed to mitigate her damages and/or was comparatively negligent.⁵ The jury attributed sixty percent fault to Mr. Morrison and forty percent fault to Ms. Sneberger. On November 8, 2013, Ms. Sneberger filed a motion for a new trial. Following a hearing, the motion was denied in the final order entered June 2, 2014. This appeal followed.

II. Standard of Review

Ms. Sneberger asserts several assignments of error that require us to employ different standards of review. Therefore, the applicable standards of review will be incorporated within the discussion below.

III. Discussion

As set forth above, Ms. Sneberger presents seven assignments of error. Each alleged error will be discussed, in turn.

A. Limitation on Length of Time to Present the Case to the Jury

Ms. Sneberger first asserts that the trial court erred by limiting the amount of time the parties had to present witness testimony to the jury. The record shows that the trial court set aside three days on its trial calendar for the trial based upon the representations made by the parties' attorneys at the pre-trial conference concerning how much time would be needed to present the case to the jury. After the trial began, during a brief recess in the middle of the direct examination of the first witness, the trial judge inquired as to how the parties planned to use the three days allotted for trial because arrangements needed to be made for the jury to view the subject property. When it became apparent that the parties might need more than three days to present witness testimony alone, the trial judge advised the parties that the trial would be completed in three days, as scheduled, and she would split the time equally between the parties as had been her practice when she was a family court judge.⁶ Taking into account the time needed for the jury viewing of the property, closing arguments, and instructions, the trial court allotted the parties five and one-half hours each to complete the direct and cross examination of witnesses.

Acknowledging that Rule 16(c)(15) of the West Virginia Rules of Civil Procedure provides that a trial court has the authority to set “a reasonable limit on the time allowed for presenting evidence,” Ms. Sneberger argues that the imposed time limitations were nonetheless prejudicial for two reasons. First, she contends that because the trial court did not limit the amount of time for examination of witnesses until after the trial began, her counsel had to hastily rework his questioning and eliminate some areas of inquiry. Second, Ms. Sneberger asserts that because she, as the plaintiff, bore the burden of proof on all issues except affirmative defenses, she should have been allotted more time to present her case.

The trial court's limitation on the time allowed for presenting evidence is a procedural ruling that this Court reviews under an abuse of discretion standard. As we have explained,

The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings.... Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.

Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995). With regard to Rule of Civil Procedure 16, which authorizes the trial court to impose time limits on the presentation of evidence, we have observed that

Rule 16 of the West Virginia Rules of Civil Procedure “is the principal source of the powers and tools that ... courts are to use to achieve the fundamental purpose articulated by Rule 1 of the ... Rules of Civil Procedure: securing ‘the just, speedy, and inexpensive determination of every action and proceeding.’ ” James Wm. Moore, 3 Moore's Federal Practice, 3d Edition § 16.03 (2007). Rule 16 promotes a concept of active judicial management of cases, with the participation of the parties and their counsel, to “reach a swift, inexpensive

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