Powderidge Unit Owners Ass'n v. Highland Properties, Ltd.

Decision Date14 June 1996
Docket NumberNo. 23105,23105
Citation474 S.E.2d 872,196 W.Va. 692
CourtWest Virginia Supreme Court
PartiesPOWDERIDGE UNIT OWNERS ASSOCIATION, Plaintiff Below, Appellant, v. HIGHLAND PROPERTIES, LTD.; Virginia Homes Manufacturing Corporation; Rust, Orling & Neale Architects; and The Home Insurance Company, Defendants Below, Appellees.

1. An opponent of a summary judgment motion requesting a continuance for further discovery need not follow the exact letter of Rule 56(f) of the West Virginia Rules of Civil Procedure in order to obtain it. When a departure from the rule occurs, it should be made in written form and in a timely manner. The statement must be made, if not by affidavit, in some authoritative manner by the party under penalty of perjury or by written representations of counsel. At a minimum, the party making an informal Rule 56(f) motion must satisfy four requirements. It should (1) articulate some plausible basis for the party's belief that specified "discoverable" material facts likely exist which have not yet become accessible to the party; (2) demonstrate some realistic prospect that the material facts can be obtained within a reasonable additional time period; (3) demonstrate that the material facts will, if obtained, suffice to engender an issue both genuine and material; and (4) demonstrate good cause for failure to have conducted the discovery earlier.

2. When a party filing a motion for reconsideration does not indicate under which West Virginia Rule of Civil Procedure it is filing the motion, the motion will be considered to be either a Rule 59(e) motion to alter or amend a judgment or a Rule 60(b) motion for relief from a judgment order. If the motion is filed within ten days of the circuit court's entry of judgment, the motion P. Rodney Jackson, Lonnie C. Simmons, DiTrapano & Jackson, James M. Barber, Hunt & Barber, Charleston, for Appellant.

[196 W.Va. 696] is treated as a motion to alter or amend under Rule 59(e). If the motion is filed outside the ten-day limit, it can only be addressed under Rule 60(b).

John M. Slack III, Jackson & Kelly, Charleston, for Appellee The Home Insurance Company.

Stephen L. Thompson, Barth, Thompson & George, Charleston, for Appellee Highland Properties, Ltd.

Edgar A. Poe, Jr., Shuman, Annand & Poe, for Appellee Rust, Orling & Neale Architects.

G.W. Lavender III, Renatha S. Garner, Mayer, Darragh, Buckler, Bebenek & Eck, James R. Watson, Steptoe & Johnson, Charleston, for Appellee Virginia Homes Manufacturing Corporation.

CLECKLEY, Justice:

This appeal was prosecuted by Powderidge Unit Owners Association, the plaintiff below and appellant herein, from a final order of the Circuit Court of Kanawha County granting summary judgment to the defendants below and appellees herein, Highland Properties, Ltd., Virginia Homes Manufacturing Corporation and its insurer, The Home Insurance Company. 1 The plaintiff filed this action on October 11, 1991, alleging the defendants 2 negligently constructed condominium units it owns and such negligence was the proximate cause of severe water damage to the units. In granting summary judgment to the defendants, the circuit court found the plaintiff's action was not timely filed and, therefore, was barred by the statute of limitations. The plaintiff contends on appeal: (1) there was insufficient opportunity to conduct discovery on the statute of limitations issue; and (2) the circuit court improperly denied its motion for reconsideration. 3


The record in this case indicates the origin of this action is linked to matters dating back to 1982. It was in 1982 that the plaintiff engaged Highland Properties, Ltd. ("Highland") as general contractor to build "eighty-four residential condominiums, known as Powderidge Condominiums, at Snowshoe, Pocahontas County, West Virginia." Highland thereafter entered into a contract with Virginia Homes Manufacturing Corporation ("Virginia Homes") to have eighty-four prefabricated condominium units created. The prefabricated units were supplied by Virginia Homes and installed by Highland, pursuant to Highland's contract with the plaintiff. At some point in 1984, the plaintiff became aware of water leakage in the rear of several of the condominium units. The plaintiff informed Highland of the problem, and Highland took measures to correct the matter. As a result of having to pay the cost of making the repairs to the damaged condominium units, Highland, on December 18, 1984, filed a civil action against Virginia Homes, in the Circuit Court of Pocahontas On October 11, 1991, the plaintiff filed the matter sub judice. 5 The complaint alleged negligence 6 in the construction of Powderidge Condominiums by the defendants in that "all of the units have suffered significant water and moisture damage caused by leakage, condensation, seepage and other means." The plaintiff alleged the cost of repair for the damage was in excess of $600,000. It was further averred by the plaintiff that it did not discover the defective construction until 1990. The defendants filed their respective answers to the complaint and subsequently filed motions for summary judgment based upon two dispositive theories: (1) the action was barred by the statute of limitations and (2) the doctrine of res judicata. 7 Upon motion of the plaintiff, the circuit court issued an order on August 23, 1993, giving the parties an additional ninety days to conduct discovery on the two dispositive theories. 8 As matters eventually turned out, the summary judgment motions were not brought on for hearing until November 28, 1994. 9 On December 9, 1994, the circuit court issued its order granting summary judgment to the defendants upon finding the plaintiff did not file its action within the applicable two-year statute of limitations period. The plaintiff subsequently filed a motion for reconsideration with the circuit court. The circuit court by order of February 7, 1995, denied the plaintiff's motion for reconsideration. The plaintiff presents two arguments here: (1) there was insufficient opportunity to conduct discovery on the statute of limitations issue, and (2) the circuit court improperly denied its motion for reconsideration.

                [196 W.Va. 697] County. 4  A subsequent amended complaint was filed on January 28, 1985.  The amended complaint filed by Highland contended that Virginia Homes "improperly constructed the various condominium units thereby allowing water infiltration throughout the units."   The ad damnum clause indicated Highland incurred a loss of $43,275.42 due to the defects in the condominium units.  In spite of the ad damnum clause, Highland and Virginia Homes reached an amicable settlement in the amount of $7,500, and the action was dismissed by agreed order on August 15, 1985

We begin our discussion on the merits by noting that, contrary to the plaintiff's position, there is no insurmountable obstacle blocking the use of Rule 56 of the West Virginia Rules of Civil Procedure in the circumstances of this case. The function of summary judgment is "to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Hanlon v. Chambers, 195 W.Va. 99, 106, 464 S.E.2d 741, 748 (1995). Here, the record fairly read contains no sign that the circuit court overlooked, misconceived, or mischaracterized the evidence. To the contrary, as the circuit court concluded, the record discloses no genuine issue as to We give credit where credit is due. The circuit court's opinion is both meticulous and accurate. It treats all claims and items of evidence and closes virtually every avenue the plaintiff tries to travel on appeal. Because that is so, we resist the temptation to transpose into our own words what has already been well expressed, preferring instead to affirm the judgment essentially on the basis of the opinion below. We pause only to add punctuation in a few spots.

[196 W.Va. 698] any material fact; and the undisputed facts, taken most favorably to the plaintiff, confirm the defendants were entitled to judgment as a matter of law.

A. Generally

We review a circuit court's grant of summary judgment de novo, Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), "and, therefore, we apply the same standard as a circuit court," reviewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Williams v. Precision Coil, Inc., 194 W.Va. 52, 58, 459 S.E.2d 329, 335-36 (1995), citing Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538, 553 (1986). A grant of summary judgment "shall be rendered forthwith if the pleadings, 10 deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." W.Va.R.Civ.P. 56(c). Summary judgment is not a remedy to be exercised at the circuit court's option; it must be granted when there is no genuine disputed issue of a material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211 (1986); Williams, 194 W.Va. at 59 n. 7, 459 S.E.2d at 335-36 n. 7 ("[i]f the nonmoving party does not controvert the proof offered in support of the motion, and the moving party's affidavit shows that it supports a judgment as a matter of law, Rule 56(c) mandates summary judgment be granted"). Genuineness and materiality are not infinitely elastic euphemisms that may be stretched to fit whatever preferrations catch a litigant's fancy. 11 A "dispute about a material fact is 'genuine'... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, 91...

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