FMS Enter. v. Rose Senior Care, LLC

CourtSupreme Court of West Virginia
PartiesFMS Enterprise, Inc., Defendant Below, Petitioner v. Rose Senior Care, LLC, Plaintiff Below, Respondent
Docket Number21-0645
Decision Date30 August 2022

Randolph County 18-C-36 and 18-C-45


Petitioner FMS Enterprise, Inc. ("FMS Enterprise"), by counsel Harry A. Smith III, appeals the July 15, 2021, order of the Circuit Court of Randolph County denying its motion for a new trial. Respondent Rose Senior Care, LLC ("Rose Senior Care"), by counsel Jason E. Wingfield, filed a response in support of the lower court's order. FMS Enterprise filed a reply.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the trial court is appropriate under Rule 21 of the Rules of Appellate Procedure.

In April of 2018, Rose Senior Care, along with three other plaintiffs-Lavender Fields Assisted Living, LLC ("Lavender Fields"), Judi Rose, and Brett McClain-filed a complaint against FMS, Inc. and Frank Santmyer. The complaint, commencing civil action number 18-C-36, alleged that Rose Senior Care is a holding company for Lavender Fields, which operates an assisted living facility in Beverly, West Virginia. According to the complaint, Judi Rose and Brett McClain were members of Lavender Fields, and Frank Santmyer was an incorporator and agent of FMS, Inc. The complaint alleged that, in September of 2016, Lavender Fields accepted a bid from FMS, Inc. to construct an addition on the assisted living facility. The complaint asserted that numerous delays and cost overruns frustrated the project and that, as a result, the plaintiffs had suffered damages. In the complaint, the plaintiffs asserted claims of breach of contract, unjust enrichment, and negligence.

In May of 2018, FMS Enterprise filed its own complaint, commencing civil action number 18-C-45. FMS Enterprise named multiple defendants in the complaint, including Rose Senior Care and Lavender Fields. The complaint claimed that Rose Senior Care and Lavender Fields owed FMS Enterprise $40,861.15, plus interest, in connection with the construction project at the assisted living facility. FMS Enterprise's complaint asserted that it had filed a timely mechanic's lien to secure payment of the alleged debt.

The two civil actions were consolidated. Thereafter, Rose Senior Care, along with Lavender Fields, Judi Rose, and Brett McClain, filed an amended complaint naming FMS Enterprise as a defendant. The amended complaint asserted the same claims against FMS Enterprise as were asserted against the defendants in the original complaint. FMS, Inc.-the corporate defendant named in the original complaint-was subsequently dismissed from the consolidated action.

The consolidated action proceeded to a two-day jury trial beginning on August 27, 2020, on the claims of Rose Senior Care against FMS Enterprise and the claim of FMS Enterprise against Rose Senior Care.[1] Rose Senior Care presented the testimony of five witnesses, including Judi Rose, Brett McClain, and Daniel McClain.[2]

Through their testimony, Judi Rose and Brett McClain asserted that they had several meetings with Frank Santmyer before agreeing that FMS Enterprise would construct a turnkey addition to the assisted living facility for $198,300. The agreement was not reduced to writing; however, Judi Rose acknowledged receiving an $84,000 written estimate for labor costs from FMS Enterprise. Judi Rose and Brett McClain both indicated that while Frank Santmyer estimated that the project would take four to five months to complete, work on the project began in November of 2016 and continued for over a year. Judi Rose and Brett McClain testified as to their concerns with FMS Enterprise's execution of the project. They stated that FMS Enterprise's workers regularly did not show up to the job; that when the workers did show up, they wasted time on the job; that the workers made numerous mistakes that needed to be corrected; that FMS Enterprise overcharged Rose Senior Care for materials and labor; and that FMS Enterprise did not finish the project.

Judi Rose and Brett McClain testified that Brett McClain and other workers he personally hired completed the project. Brett McClain averred that, after Rose Senior Care paid FMS Enterprise approximately $124,000 in labor costs, Rose Senior Care stopped paying FMS Enterprise. Thereafter, according to Brett McClain, the completion of the project cost Rose Senior Care a total of $52,202.06, $30,000 of which was paid to Elkins Builders Supply for materials and $22,202.06 of which was paid to other individuals in labor costs. Both Judi Rose and Brett McClain stated that, in total, Rose Senior Care paid over $400,000 for the addition, acknowledging that change orders were made during the construction process. Specifically, the original project plan was revised to add a basement, a firewall, a patio, and ramps. Brett McClain testified that a reasonable cost for the project would have been $198,300 plus a reasonable rate for the change orders. He estimated that, with the change orders, the total cost of the project should have been $250,000. He expressed his opinion that FMS Enterprise should be required to reimburse Rose Senior Care $150,000. Brett McClain denied owing money to FMS Enterprise.

Judi Rose testified that the construction delays caused Rose Senior Care to suffer financial distress, annoyance, and inconvenience. She told the jury that Rose Senior Care's financial distress prevented her from expanding the business, buying a new home, buying a new car, giving employees raises or bonuses, and retaining employees. Brett McClain also expressed his belief that Rose Senior Care should be compensated for annoyance and inconvenience.

The trial court qualified Daniel McClain as an expert "in the field of construction contractor." Daniel McClain testified that the quality of FMS Enterprise's work was "slightly below average" and that, in completing the work, FMS Enterprise had deviated from industry standards. He further testified that FMS Enterprise's paperwork was insufficient, noting the lack of a written contract for the construction of the addition. According to Daniel McClain, Rose Senior Care overpaid FMS Enterprise in labor costs. Daniel McClain stated that rather than being entitled to $162,000 for labor costs (an amount representing, approximately, the total paid to FMS Enterprise for labor costs plus the amount FMS Enterprise claimed was still owed in labor costs), FMS Enterprise should only be entitled to between $60,000 and $65,000 in labor costs. Daniel McClain further testified that the project could have been completed in under four months, that FMS Enterprise should have to bear the cost of fixing mistakes, and that $5,000 to $10,000 would have been a reasonable cost for remedying aesthetic issues. He estimated that the construction of the addition could have been completed at a total cost of $187,000, excluding the cost of change orders. Including the cost of the change orders, which he estimated should have cost $39,345.00, Daniel McClain calculated that the total cost of the addition should have been $224,000.

FMS Enterprise presented the testimony of three witnesses, including Frank Santmyer. Regarding construction of the addition, Frank Santmyer testified that he agreed that FMS Enterprise would provide labor for the project at an hourly rate. He testified that FMS Enterprise had been paid a total of $124,010 by Rose Senior Care and that additional unpaid invoices totaled $38,400. He further testified that weather and deer season caused delays in construction.

The case was submitted to the jury on the second day of the trial, August 28, 2020. The jury completed the verdict form as follows:

As to the claim of Rose Senior Care, LLC, against FMS Enterprises, Inc. [sic],
We, the jury, find as follows:
X A. For Rose Senior Care, LLC, and assess damages in the amount of $200,000.00,
__ B. For FMS Enterprises, Inc. [sic] As to the claim of FMS Enterprises, Inc. [sic] against Rose Senior Care, LLC:
We, the jury, find as follows:
__ A. For FMS Enterprises, Inc. [sic], and assess damages in the amount of,
__ B. For Rose Senior Care, LLC.

Due to the jury's failure to indicate their verdict regarding the claim of FMS Enterprise against Rose Senior Care, the trial court questioned the jury regarding the omission. The jury indicated that, as to the claim of FMS Enterprise against Rose Senior Care, it had found for Rose Senior Care. The trial court entered an order on October 20, 2020, ordering that judgment be entered in favor of Rose Senior Care and against FMS Enterprise and that the mechanic's lien be set aside and annulled.

FMS Enterprise filed a motion for a new trial pursuant to Rule 59(a) of the West Virginia Rules of Civil Procedure[3] on October 30, 2020. In the motion, FMS Enterprise argued that the verdict in favor of Rose Senior Care was "against the clear weight of the evidence and results in a miscarriage of justice." During the hearing on the motion, the trial court said:

[T]he jury heard two days of testimony. They considered that evidence. They . . . weighed the credibility of the witnesses, the exhibits that were presented, and they deliberated, reached -- reached a verdict they thought was appropriate based on the instructions provided to them in the verdict form that they were given.
Um the -- the [c]ourt does have the authority to set aside a jury verdict.

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