Taylor v. Elkins Home Show, Inc., 28891.

• Decision Date: 30 October 2001
• Docket Number: No. 28891.,28891.
• Citation: 558 S.E.2d 611,210 W.Va. 612
• Parties: Delmar TAYLOR and Helen Taylor, Plaintiffs Below, Appellants, v. ELKINS HOME SHOW, INC., a West Virginia Corporation, and United Contracting Incorporated, a West Virginia Corporation, Defendants Below, Appellees.
• Court: West Virginia Supreme Court

558 S.E.2d 611

210 W.Va. 612

Delmar TAYLOR and Helen Taylor, Plaintiffs Below, Appellants, v. ELKINS HOME SHOW, INC., a West Virginia Corporation, and United Contracting Incorporated, a West Virginia Corporation, Defendants Below, Appellees.

No. 28891.

Supreme Court of Appeals of West Virginia.

Submitted September 18, 2001.

Decided October 30, 2001.

Dissenting Opinion of Chief Justice McGraw January 11, 2002.

Frank P. Bush, Jr., Esq., Bush & Bush, Elkins, for the Taylors.

Stephen Godfrey Jory, Esq., Jessica M. Baker, Esq., Jory & Smith, Elkins, for Elkins Home Show. MAYNARD, Justice.

Delmar and Helen Taylor, the appellants and plaintiffs below, appeal the August 1, 2000 order of the Circuit Court of Randolph County which granted post-verdict judgment as a matter of law on behalf of the appellee and defendant below, Elkins Home Show. The Taylors raise several issues on appeal to this Court. After careful consideration of these issues, we affirm the judgment of the circuit court.

I. FACTS

Delmar and Helen Taylor purchased a double-wide mobile home from Elkins Home Show for $55,569.35. This price included installation, the laying of a concrete footer, and construction of a non-weight-bearing perimeter block wall around the bottom of the home. Defendant below, United Contracting, Inc., was hired by Elkins Home Show to install the home.¹

After moving into their new home, the Taylors complained to Elkins Home Show about several alleged defects in both the interior and foundation of the home.² On May 22, 1998, the Taylors sued Elkins Home Show and United Contracting alleging breach of express and implied warranties and violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq.³ Specifically, the complaint alleged that the footer was not installed below the frost line; the perimeter block wall was cracked; the heating system was inadequate; several doors were not properly aligned; and some roof shingles were loose.

At a two-day trial on August 17 and 18, 1999, the Taylors testified of various problems with their home. They also presented the testimony of Leff Moore, Executive Director of the West Virginia Manufactured Housing Association, a private, nonprofit group, who testified of various defects in the home's interior. He testified further, however, that all of these defects, except one, were the responsibility of the manufacturer, not the retailer. The one problem which he deemed the responsibility of Elkins Home Show, concerned an overlapping carpet seam. However, he was prevented by the circuit court from giving an estimate of the cost of repair of the seam because the estimate was not earlier disclosed to Elkins Home Show. The Taylors also presented the testimony of E.J. Merritt, a general contractor, who testified that he gave Mr. Taylor an estimate of $26,907.00 for completely replacing the footers and perimeter block wall.

At the close of the Taylors' case, United Contracting and Elkins Home Show moved for judgment as a matter of law, and the circuit court took the motions under advisement. The defendants then put on evidence that Mr. Taylor caused the footer's inadequate depth by removing dirt off the top of the footer in order to smooth the land and provide greater crawl space under the house. The defendants also presented evidence that Mr. Taylor cracked the perimeter block wall with the bucket of his backhoe while installing a drain.

The defendants renewed their motions for judgment as a matter of law at the close of all of the evidence. The motions again were taken under advisement by the circuit court. Also, at this time, the circuit court granted the defendants' motion to exclude Mr. Merritt's written repair estimate because of its speculative nature. In addition, due to the insufficiency of the evidence on the alleged interior defects, the parties agreed to exclude these items from the verdict form, and to include only alleged damage to the footers, piers, perimeter block work, as well as annoyance and inconvenience damages. The jury returned a verdict in favor of United Contracting, and it is not a party on appeal.⁴ However, the jury found that Elkins Home Show violated express and implied warranties made to the plaintiffs, and also failed to make repairs to defects in the home after repeated demands.⁵ The jury awarded damages of $4,000 for the perimeter block wall and aggravation and inconvenience damages of $14,142.00

On August 23, 1999, Elkins Home Show filed a renewed motion for judgment as a matter of law. The jury verdict order was entered on September 3, 1999. On October 20, 1999, the circuit court denied Elkins Home Show's motion for judgment as a matter of law but granted a new trial on the sole issue of the block wall. On November 3, 1999, Elkins Home Show filed a W.Va.R.C.P. Rule 60(b)(6) motion for reconsideration in which it argued, inter alia, that the circuit court failed to specify grounds for a new trial, improperly awarded a new trial where none of the parties had moved for a new trial, and failed to address the sufficiency of the Taylors' case-in-chief. At a November 29, 1999 hearing, Elkins Home Show's motion for reconsideration was taken under advisement. On May 24, 2000, Elkins Home Show filed its second renewed motion for judgment as a matter of law. On August 1, 2000, the circuit court granted Elkins Home Show's second renewed motion for judgment as a matter of law. The Taylors now appeal this order.

II. STANDARD OF REVIEW

When this Court reviews a circuit court's grant of post-verdict judgment as a matter of law, we are mindful that,

In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.

Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983). Concerning our standard of reviewing a circuit court's grant of post-verdict judgment as a matter of law, we recently stated:

We apply a de novo standard of review to the grant ... of a ... post-verdict motion for judgment as a matter of law. After considering the evidence in the light most favorable to the nonmovant party, we will sustain the granting or denial of a ... post-verdict motion for judgment as a matter of law when only one reasonable conclusion as to the verdict can be reached.

Gillingham v. Stephenson, 209 W.Va. 741, 745, 551 S.E.2d 663, 667 (2001) (citation omitted). We now proceed to consider the Taylors' arguments with the above standard as our guide.

III. DISCUSSION

A. Propriety of Second Renewed Motion for Judgment as a Matter of Law

First, the Taylors assert that the circuit court was without jurisdiction to grant Elkins Home Show's second renewed motion for judgment as a matter of law which was filed more than eight months after the verdict order was entered. The Taylors argue that Rule 50(b) of the West Virginia Rules of Civil Procedure does not provide for a second renewed motion for judgment as a matter of law more than ten days after entry of judgment.⁶ Also, the Taylors assert that there is no provision under the rules of civil procedure for a motion for reconsideration. Finally, they contend that the second renewed motion cannot be considered a Rule 60(b) motion because Rule 60(b) is designed to address mistakes attributable to special circumstances, not erroneous applications of the law. According to the Taylors, the circuit court's August 1, 2000 order, granting judgment as a matter of law, was merely a grant of the same post-trial motion that had already been denied.⁷ While the Taylors are correct in asserting that the second renewed motion cannot be considered a Rule 60(b) motion, and that Rule 50(b) does not specifically provide for a second renewed motion for judgment as a matter of law more than ten days after entry of judgment, we do not find these arguments dispositive. This is because at the time Elkins Home Show made its May 24, 2000 motion, there was no standing judgment order. Accepting that the September 3, 1999 Jury Verdict order was the entry of judgment, the circuit court subsequently granted a new trial. "An order granting a new trial is interlocutory and destroys the finality of the judgment." Coleman v. Sopher, 201 W.Va. 588, 605, 499 S.E.2d 592, 609 (1997),quoting 12 James Wm. Moore et al., Moore's Federal Practice, § 59.43[1] (3d ed.1997) (citations omitted). Because there was no final judgment at the time Elkins Home Show filed its second renewed motion, the motion could not have been untimely.

Further, we reject the Taylors argument that the rules of civil procedure do not provide for a motion for reconsideration under these circumstances. This Court has stated,

"In an ongoing action, a trial judge has the authority to reconsider his or her previous rulings, including an order granting a new trial.... Since [a trial] court has plenary power to reconsider, revise, alter, or amend an interlocutory order, the court has the power to take any action with respect to an order granting a new trial."

Id. Therefore, we believe that the circuit court had plenary authority to reconsider its October 20, 1999 order granting a new trial. In light of this authority, Elkins Home Show's May 24, 2000 motion may best be "viewed as a routine request for reconsideration of an interlocutory ... decision.... Such requests do not necessarily fall within any specific ... Rule. They rely on the inherent power of the rendering ... court to afford such relief from interlocutory judgments... as justice requires." State ex rel. Crafton v. Burnside, 207 W.Va. 74, 77, 528 S.E.2d 768, 771 (2000), quoting Greene v. Union Mutual Life Ins....