Wilkinson v. Bowser, 23295

Decision Date19 December 1996
Docket NumberNo. 23295,23295
Citation483 S.E.2d 92,199 W.Va. 92
CourtWest Virginia Supreme Court
PartiesWilliam A. WILKINSON and Tereca S. Wilkinson, Plaintiffs Below, Appellees, v. Dick BOWSER and Barbara Bowser, d/b/a Bowser Construction, Defendants Below, Appellants.

Syllabus by the Court

1. "When a case involving conflicting testimony and circumstances has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence or without sufficient evidence to support it." Syl. Pt. 4, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894 (1958).

2. "Rule 703 of the West Virginia Rules of Evidence allows an expert to base his opinion on (1) personal observations; (2) facts or data, admissible in evidence, and presented to the expert at or before trial; and (3) information otherwise inadmissible in evidence, if this type of information is reasonably relied upon by experts in the witness' field." Syl. Pt. 2, Mayhorn v. Logan Medical Found., 193 W.Va. 42, 454 S.E.2d 87 (1994).

3. "Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal." Syl. Pt. 1, State Rd. Comm'n v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964).

4. "Rule 609(a)(2) of the West Virginia Rules of Evidence divides the criminal convictions which can be used to impeach a witness other than a criminal defendant into two categories: (A) crimes 'punishable by imprisonment in excess of one year,' and (B) crimes 'involving dishonesty or false statements regardless of the punishment.' " Syl. Pt. 2, CGM Contractors v. Contractors Envtl. Servs., Inc., 181 W.Va. 679, 383 S.E.2d 861 (1989).

5. Evidence that a witness other than the accused in a criminal case has been convicted of a crime is admissible for the purpose of impeachment under West Virginia Rule of Evidence 609(a)(2)(B) when the underlying facts show that the crime involved dishonesty or false statement.

George J. Cosenza, Cosenza & Underwood, Parkersburg, for Appellees.

George M. Torres, Parkersburg, for Appellants.

WORKMAN, Justice:

Dick and Barbara Bowser, doing business as Bowser Construction (hereinafter "the Appellants"), appeal a judgment of the Circuit Court of Wood County for the Appellees, William A. and Tereca S. Wilkinson, in a suit for breach of a contract to perform home improvements. The Appellants assert that the $23,525 verdict was excessive and not supported by the evidence, and that the circuit court wrongfully allowed the jury to hear evidence regarding Dick Bowser's conviction for an unrelated misdemeanor. For the reasons set out below, we affirm the judgment entered by the circuit court pursuant to the jury verdict. 1

In June 1992, the Appellees contracted with the Appellants to perform extensive improvements to a residential property owned by the Appellees. The contract price for the work was $24,918. The Appellees borrowed $25,000 from the City of Parkersburg, pursuant to a housing program, to finance the project. According to the Appellees, the Appellants failed to make the improvements in a good and workmanlike manner, and the Appellees sued for $50,000 in damages.

The case was tried in the Circuit Court of Wood County. At trial, the Appellees presented the testimony of a contractor, Joel Stout, who had examined the house after the Appellants had worked on it. He noted bowed siding, leaking gutters, poorly installed windows, lack of insulation, and other problems, and estimated that it would cost $8,275 to repair the faulty workmanship and finish the improvements the Appellants had contracted to perform. The Appellees next presented a real estate appraiser, Larry McDaniel, who testified about the value of the house. He estimated that the value of the house, with the improvements the Appellants agreed to perform, would be $61,000. To determine the value "as is," the appraiser subtracted the $8,275 necessary to complete the improvements, and also 25% of its finished value, or $15,250, which he termed a "reduction by purchaser." This calculation resulted in a current value of $37,475. By subtracting the "as is" value ($37,475) from the finished value ($61,000), Mr. McDaniel concluded that the damage resulting from the Appellants' failure to complete the project in a workmanlike manner was $23,525. 2

The appraiser explained the "reduction by purchaser" as an allowance for a typical purchaser's reaction to the general condition of the home. The appraisal report states that in the appraiser's opinion a purchaser would discount the value of this house substantially due to the cost and inconvenience of buying a home in a state of disrepair, and the uncertainty of the date on which work would be completed. The report indicates further that the amount of the discount was determined with reference to other market sales in which the price of homes was affected by disrepair, lack of care, or fire damage.

The Appellants presented their own appraiser, Jackie Mullenix, who testified that in her opinion the "as is" value of the house was $46,000. Mullenix did not estimate what the value would be with improvements, and did not give any opinion as to any change in value resulting from work performed by the Appellants. The briefs indicate that Appellant Dick Bowser and certain subcontractors who worked on the house also testified, but their testimony is not part of the record on appeal.

The only portion of Appellant Dick Bowser's testimony before the Court relates to the admission of his plea of guilty to a misdemeanor charge of obstruction of justice, West Virginia Code § 61-5-17 (Supp.1996), entered in an unrelated matter the week before trial. During cross-examination of Mr. Bowser, the Appellees sought to admit a certified copy of the conviction. The Appellants objected. In a bench conference, the Appellees offered the conviction for the purpose of impeachment, asserting that it was admissible under West Virginia Rule of Evidence 609(a)(2)(B). The Appellants opposed the admission of the prior conviction, asserting that the offense of obstructing justice does not necessarily involve dishonesty or false statement. The trial court admitted both the conviction and the underlying complaint, which indicated that the charge was based on the giving of false information to the Wage and Hour Board by Appellant Dick Bowser. The trial court reasoned that this clearly related to the witness' credibility. The cross-examination of Mr. Bowser is not part of the record on appeal, but it appears from the redirect and re-cross examinations, which are included in the record, that the court allowed counsel for both parties to examine Mr. Bowser with respect to the circumstances of the guilty plea. 3

After hearing all the evidence, the jury returned a verdict for the Appellees in the amount of $23,525, which was the same as the Appellees' real estate appraiser's estimate of the damage. The Appellants filed motions for post-judgment relief, which were denied, and thereafter filed this appeal. On appeal, the Bowsers assign two errors: First, that the verdict was excessive, not the product of a preponderance of the evidence, and based upon conflicting, unfounded, speculative, and conjectural expert opinion; and, second, that the circuit court erred by admitting evidence of the prior misdemeanor conviction of Dick Bowser for the purpose of impeaching his testimony. 4

We first address the issue of the jury verdict, and note at the outset that, "[w]hen a case involving conflicting testimony and circumstances has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence or without sufficient evidence to support it." Syl. Pt. 4, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894 (1958). The Appellants initially complain of the reliance by the jury and/or the Appellees' expert appraiser on the testimony of the contractor, Joel Stout, that it would cost $8,275 to correct the faulty workmanship. The Appellants assert that Stout's determination of the cost to repair was "incomplete, unprofessional and faulty," based on assertions that his examination of the subject property was incomplete and that he failed to take into account the fact that the Appellees themselves had performed some work on the house. It appears from the record that all facts relevant to this assertion were presented to the jury. The weight ascribable to Mr. Stout's testimony is an issue for the jury, and we will not second-guess that body's conclusions in this regard on appeal. See Syl. Pt. 2, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).

Furthermore, with regard to the appraiser's reliance on the contractor's estimate, an expert witness has wide latitude in this matter:

Rule 703 of the West Virginia Rules of Evidence allows an expert to base his opinion on: (1) personal observations; (2) facts or data, admissible in evidence, and presented to the expert at or before trial; and (3) information otherwise inadmissible in evidence, if this type of information is reasonably relied upon by experts in the witness' field.

Syl. Pt. 2, Mayhorn v. Logan Medical Found., 193 W.Va. 42, 454 S.E.2d 87 (1994). Mr. Stout's testimony falls within the second category, as admissible facts or data presented to the expert at or before trial. We therefore find no error in the appraiser's use of this information.

The Appellants also complain that the "reduction by purchaser" factor employed by the Appellees' appraiser was speculative and subjective, and ask this Court to grant a new trial on that basis. The Appellants did not, however, object to either Mr. McDaniel's qualification as an expert or to his testimony regarding the "reduction by purchaser" when it was introduced. It has long been the law in this State...

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9 cases
  • Pearson v. Pearson
    • United States
    • West Virginia Supreme Court
    • July 21, 1997
    ...characterization, representations in an appellate brief do not constitute a part of the record on appeal. See Wilkinson v. Bowser, 199 W.Va. 92, 483 S.E.2d 92 (1996). One can only imagine the devastating effects on the appellate process if this Court were to accord evidentiary weight to uns......
  • State v. Rahman
    • United States
    • West Virginia Supreme Court
    • December 20, 1996
    ...Evidence 609(a)(2)(B) when the underlying facts show that the crime involved dishonesty or false statement." Syl. Pt. 5, Wilkinson v. Bowser, 199 W.Va. 92, 483 S.E.2d 92 (1996). 9. "It is a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution for a m......
  • Smith v. Clark
    • United States
    • West Virginia Supreme Court
    • June 10, 2019
    ...and qualifications." Graham v. Wallace , 208 W. Va. 139, 141, 538 S.E.2d 730, 732 (2000) (citing Wilkinson v. Bowser , 199 W. Va. 92, 96 n. 5, 483 S.E.2d 92, 96 n. 5 (1996) ). "A party challenging a circuit court’s evidentiary rulings has an onerous burden because a reviewing court gives sp......
  • Amedisys W. Va., LLC v. Pers. Touch Home Care of W.Va., Inc.
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    ...on appeal." Pearson v. Pearson , 200 W. Va. 139, 152, 488 S.E.2d 414, 427 (1997) (Workman, J., dissenting) (citing Wilkinson v. Bowser, 199 W.Va. 92, 483 S.E.2d 92 (1996) ). And in any event, the Legislature has delegated matters involving public health to the Authority, see id. § 16-2D-1 t......
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