Sneberger v. Morrison, No. 14-0662

CourtSupreme Court of West Virginia
Writing for the CourtJUSTICE LOUGHRY delivered the Opinion of the Court.
Decision Date11 June 2015
PartiesTERI SNEBERGER, Plaintiff Below, Petitioner v. JERRY MORRISON, d/b/a JERRY MORRISON CONSTRUCTION, AND JAMES PHILLIPS, Defendants Below, Respondents
Docket NumberNo. 14-0662

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

January 2015 Term
Submitted: May 12, 2015
June 11, 2015


Appeal from the Circuit Court of Randolph County
Honorable Jaymie Godwin Wilfong, Judge
Civil Action No. 11-C-148

AFFIRMED

Marvin W. Masters, Esq.
Christopher L. Brinkley, Esq.
Richard A. Monahan, Esq.
The Masters Law Firm, lc
Charleston, West Virginia
Attorneys for Teri Sneberger

Trevor K. Taylor, Esq.
Tiffany A. Cropp, Esq.
Taylor Law Office
Morgantown, West Virginia
Attorneys for James Phillips

Pat A. Nichols, Esq.
Parsons, West Virginia
Attorney for Jerry Morrison

JUSTICE LOUGHRY delivered the Opinion of the Court.
JUSTICES DAVIS and BENJAMIN dissent and reserve the right to file dissenting opinions.

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SYLLABUS BY THE COURT

1. "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).

2. "Rule 702 of the West Virginia Rules of Evidence is the paramount authority for determining whether or not an expert is qualified to give an opinion." Syl. Pt. 6, in part, Mayhorn v. Logan Med. Found., 193 W.Va. 42, 454 S.E.2d 87 (1994).

3. "In determining who is an expert, a circuit court should conduct a two-step inquiry. First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testify." Syl. Pt. 5, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995).

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4. "The admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court's decision will not be reversed unless it is clearly wrong." Syl. Pt. 6, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991).

5. "'"This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance." Syllabus Point 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958).' Syllabus point 2, Duquesne Light Co. v. State Tax Department, 174 W.Va. 506, 327 S.E.2d 683 (1984)." Syl. Pt. 5, State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell, 228 W.Va. 252, 719 S.E.2d 722 (2011).

6. "'"Upon a motion for [pre-verdict judgment as a matter of law], all reasonable doubts and inferences should be resolved in favor of the party against whom the verdict is asked to be directed." Syllabus point 5, Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973).' Syl. pt. 1, Stanley v. Chevathanarat, 222 W.Va. 261, 664 S.E.2d 146 (2008)." Syl. Pt. 4, Norfolk Southern Ry. Co. v. Higginbotham, 228 W.Va. 522, 721 S.E.2d 541 (2011).

7. "'"In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in

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violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken." Syl. Pt. 1, Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703 (1981).' Syl. Pt. 4, Jack v. Fritts, 193 W.Va. 494, 457 S.E.2d 431 (1995)." Syl. Pt. 3, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).

8. "'"The essential elements in an action for fraud are: '(1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied on it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied on it."' Horton v. Tyree, 104 W.Va. 238, 242, 139 S.E. 737 (1927).' Syl. Pt. 1, Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981)." Syl. Pt. 5, Kidd v. Mull, 215 W.Va. 151, 595 S.E.2d 308 (2004).

9. "Instructions must be based upon the evidence and an instruction which is not supported by evidence should not be given." Syl. Pt. 4, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971).

10. "The formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and

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fair to both parties." Syl. Pt. 6, Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995).

11. "'It will be presumed that a trial court acted correctly in giving or in refusing to give instructions to the jury, unless it appears from the record in the case that the instructions were prejudicially erroneous or that the instructions refused were correct and should have been given.' Syllabus Point 1, State v. Turner, 137 W.Va. 122, 70 S.E.2d 249 (1952)." Syl. Pt. 1, Moran v. Atha Trucking, Inc., 208 W.Va. 379, 540 S.E.2d 903 (1997).

12. "This Court reviews the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syl. Pt. 1, Burke-Parsons-Bowlby Corp. v. Rice, 230 W.Va. 105, 736 S.E.2d 338 (2012).

13. "Athough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syl. Pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

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14. "'We will not find a jury verdict to be inadequate unless it is a sum so low that under the facts of the case reasonable men cannot differ about its inadequacy.' Syllabus Point 2, Fullmer v. Swift Energy Co., Inc., 185 W.Va. 45, 404 S.E.2d 534 (1991)." Syl. Pt. 2, Vargo v. Pine, 208 W.Va. 416, 541 S.E.2d 11 (2000).

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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.

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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.

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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...

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