Teri Sneberger v. Jerry Morrison, d/b/a Jerry Morrison Construction , 235 W. Va. 654 ( 2015 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term
FILED
June 11, 2015
No. 14-0662 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
TERI SNEBERGER,
Plaintiff Below, Petitioner
v.
JERRY MORRISON, d/b/a JERRY MORRISON CONSTRUCTION,
AND JAMES PHILLIPS,
Defendants Below, Respondents
Appeal from the Circuit Court of Randolph County
Honorable Jaymie Godwin Wilfong, Judge
Civil Action No. 11-C-148
AFFIRMED
Submitted: May 12, 2015
Filed: June 11, 2015
Marvin W. Masters, Esq. Trevor K. Taylor, Esq.
Christopher L. Brinkley, Esq. Tiffany A. Cropp, Esq.
Richard A. Monahan, Esq. Taylor Law Office
The Masters Law Firm, lc Morgantown, West Virginia
Charleston, West Virginia Attorneys for James Phillips
Attorneys for Teri Sneberger
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.
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).
i
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
ii
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
iii
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).
iv
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).
v
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.
1
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.
1
At trial, Ms. Sneberger testified that she told Mr. Morrison that she wanted a “rustic
log home” built with “real tree logs,” as opposed to manufactured, pre-shaped logs.
2
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 he was no longer needed to finish his work on Ms. Snebeger’s home.4
After she fired Mr. Morrison, Ms. Sneberger hired other contractors to
remediate the alleged defects and finish the construction of her home. According to Ms.
Sneberger, a new roof structure had to be built because the one constructed by Mr. Morrison
bowed five to seven inches. The plumbing and electrical systems had to be reworked as they
did not comply with acceptable construction standards. The chimney had to be torn down
because wooden beams and joists were discovered inside the chimney block. In addition, the
2
“Chinking” refers to filling the gaps between the logs to seal the interior of the home
to keep out moisture and other adverse environmental conditions. Mr. Morrison testified at
trial that his chinking materials were insulation, wire mesh, and a certain type of cement.
3
While the parties had agreed that the total cost for construction of the home would
be $140,000.00, the evidence at trial indicated that Ms. Sneberger was paying Mr. Morrison
on an hourly basis and purchasing materials as needed.
4
At trial, Ms. Sneberger testified that she did not fire Mr. Phillips but rather simply
did not hire him to finish the chimney construction.
3
chimney foundation was deemed inadequate because it was only four inches thick and sitting
on dirt. Despite the remediation work, Ms. Sneberger claims she cannot live in her home
because she was advised by one of her expert witnesses that there is a significant risk the
structure will collapse.
On September 30, 2011, Ms. Sneberger filed suit against Mr. Morrison and Mr.
Phillips, alleging the following theories of liability: fraud and misrepresentation, breach of
contract, negligence, breach of the implied warranties of habitability and merchantability, and
outrageous conduct. Ms. Sneberger also sought punitive damages. The case proceeded to
trial on August 14, 2013. After Ms. Sneberger presented her case to the jury, both Mr.
Morrison and Mr. Phillips moved for judgment as a matter of law. While Mr. Morrison’s
motion was denied, Mr. Phillips’ motion was granted, and he was dismissed from the case.
At the end of the trial, the jury returned a verdict in favor of Ms. Sneberger only with respect
to her negligence claim against Mr. Morrison, awarding $40,000.00 in damages “for the cost
of fixing the defects, completing the work, and placing [her] home in the condition that it
should have been had the work been done properly.” The jury further found, however, that
Ms. Sneberger had failed to mitigate her damages and/or was comparatively negligent.5 The
5
The interrogatory on this issue that was presented to the jury read as follows: “Do you
find from a preponderance of the evidence that Plaintiff, Teri Sneberger, failed to mitigate
her damages and/or was comparatively negligent?” As indicated above, the jury answered
in the affirmative.
4
jury attributed sixty percent fault to Mr. Morrison and forty percent fault to Ms. Sneberger.
On November 8, 2013, Ms. Sneberger filed a motion for a new trial. Following a hearing,
the motion was denied in the final order entered June 2, 2014. This appeal followed.
II. Standard of Review
Ms. Sneberger asserts several assignments of error that require us to employ
different standards of review. Therefore, the applicable standards of review will be
incorporated within the discussion below.
III. Discussion
As set forth above, Ms. Sneberger presents seven assignments of error. Each
alleged error will be discussed, in turn.
A. Limitation on Length of Time to Present the Case to the Jury
Ms. Sneberger first asserts that the trial court erred by limiting the amount of
time the parties had to present witness tesimony to the jury. The record shows that the trial
court set aside three days on its trial calendar for the trial based upon the representations
made by the parties’ attorneys at the pre-trial conference concerning how much time would
be needed to present the case to the jury. After the trial began, during a brief recess in the
5
middle of the direct examination of the first witness, the trial judge inquired as to how the
parties planned to use the three days allotted for trial because arrangements needed to be
made for the jury to view the subject property. When it became apparent that the parties
might need more than three days to present witness testimony alone, the trial judge advised
the parties that the trial would be completed in three days, as scheduled, and she would split
the time equally between the parties as had been her practice when she was a family court
judge.6 Taking into account the time needed for the jury viewing of the property, closing
arguments, and instructions, the trial court allotted the parties five and one-half hours each
to complete the direct and cross examination of witnesses.
Acknowledging that Rule 16(c)(15) of the West Virginia Rules of Civil
Procedure provides that a trial court has the authority to set “a reasonable limit on the time
allowed for presenting evidence,” Ms. Sneberger argues that the imposed time limitations
were nonetheless prejudicial for two reasons. First, she contends that because the trial court
did not limit the amount of time for examination of witnesses until after the trial began, her
6
Ms. Sneberger asserts that the trial judge’s reference to her prior approach in family
court with respect to time limitations indicates she imposed family court rules upon the trial
of this matter. Conversely, Mr. Phillips maintains that the reference was merely anecdotal
to express the importance of completing court proceedings within the time set aside on the
court’s trial calendar. Having carefully reviewed the record, we find no evidence to support
Ms. Sneberger’s contention that the trial court imposed a time standard based upon the rules
that apply to family courts. Instead, the record indicates, as Mr. Phillips suggests, that the
trial judge’s comments simply conveyed her preference with respect to how time should be
allotted between litigants in order to ensure a timely conclusion to the proceedings.
6
counsel had to hastily rework his questioning and eliminate some areas of inquiry. Second,
Ms. Sneberger asserts that because she, as the plaintiff, bore the burden of proof on all issues
except affirmative defenses, she should have been allotted more time to present her case.
The trial court’s limitation on the time allowed for presenting evidence is a
procedural ruling that this Court reviews under an abuse of discretion standard. As we have
explained,
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). With
regard to Rule of Civil Procedure 16, which authorizes the trial court to impose time limits
on the presentation of evidence, we have observed that
Rule 16 of the West Virginia Rules of Civil Procedure “is
the principal source of the powers and tools that . . . courts are
to use to achieve the fundamental purpose articulated by Rule 1
of the . . . Rules of Civil Procedure: securing ‘the just, speedy,
and inexpensive determination of every action and proceeding.”
James Wm. Moore, 3 Moore’s Federal Practice, 3d Edition §
16.03 (2007). Rule 16 promotes a concept of active judicial
management of cases, with the participation of the parties and
their counsel, to “reach a swift, inexpensive and just resolution
of litigation.” Id. The focus of Rule 16 is “to familiarize the
litigants and the court with the issues actually involved in a
lawsuit so that the parties can accurately appraise their cases,”
“remove extraneous disputes from the case” and “expedite the
7
determination of the merits, thereby saving time and expense for
the litigants and easing the burden on the courts by facilitating
the handling of congested dockets.” Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure: Civil 2d § 1522.
Caruso v. Pearce, 223 W.Va. 544, 548, 678 S.E.2d 50, 54 (2009).
Having carefully reviewed the record in this matter, we find no merit to Ms.
Sneberger’s contention that the trial court unfairly limited the time for presenting witness
testimony to the jury. The record shows the following colloquy occurred between the trial
court and the parties at the pretrial conference:
THE COURT: How many days do you anticipate the trial to
take in this case? Exclusive of jury selection; we’ll do that on
a separate day. Do you think you can try it in a day or do you
need more than a day?
MR. BRINKLEY: This will take more than a day. We’ve
got–the Plaintiff will take probably half a day and then
Plaintiff’s experts will go fairly quickly. We’re going to take at
least two or three days to try the case.
MR. NICHOLS: I was guessing three.
MR. BRINKLEY: Now–plus whatever they need.
THE COURT: So you’re saying your part is almost going to
take three days.
MR. BRINKLEY: Well–actually, I think probably in large part,
the witnesses they would call would wind up being called in my
case-in-chief anyway.
MR. NICHOLS: The majority of them.
THE COURT: Can we get [the trial] done in three days and jury
selection on a separate day?
MR. BRINKLEY: Very likely.
THE COURT: What do you think?
MR. TAYLOR: How many days did you say, your Honor? I
didn’t —
8
THE COURT: To get [the trial] done in three days and I’ll do
jury selection on a separate day?
MR. TAYLOR: Yes, I would think so, Your Honor.
THE COURT: Okay.
MR. NICHOLS: I agree with that.
Without question, the parties agreed that this case could be presented to the jury
in three days. As such, the trial court’s imposition of time limits on the questioning of
witnesses in order to complete the trial in three days was not an abuse of discretion. While
Ms. Sneberger claims she was forced to alter the manner in which she presented her case, she
never proffered any evidence that she was unable to submit to the jury due to the time
constraints. Further, there is no indication that Ms. Sneberger ever advised the trial court that
she needed more than an equal share of time to present her case. Moreover, the record
reflects that Ms. Sneberger was given ample time and opportunity to present rebuttal
evidence. Accordingly, we find no error with respect to this issue.
B. Limitations on Expert Testimony
During the trial of this matter, Ms. Sneberger presented testimony from three
expert witnesses. She argues that the trial court erred by placing limitations on the testimony
of each of these witnesses. This Court has recognized that “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.
9
42, 454 S.E.2d 87 (1994). Rule 702 of the West Virginia Rules of Evidence provides that
“[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify thereto in the form of an
opinion or otherwise.” We have advised that
[i]n 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). We have also held
that “[t]he 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). With the standards for expert testimony in mind, we consider the trial court’s rulings
with respect to each witness separately.
1. Rebecca Deem. Ms. Sneberger presented expert testimony from Rebecca
Deem, a certified home inspector. While Ms. Deem was qualified by the trial court as an
expert in home inspection, she was precluded from offering an opinion as to whether the
placement of wooden beams inside the chimney was “defective.” Ms. Sneberger argues that
10
Ms. Deem satisfied the requirements of Rule of Evidence 702, and therefore, her expert
opinion on this issue should have been admitted at trial.
The trial court limited Ms. Deem’s testimony because she testified she was not
qualified to give expert testimony concerning masonry issues. During voir dire examination
by counsel for Mr. Phillips, she testified as follows:
Q. Ms. De[em], you are not a masonry expert, are you?
A. No.
Q. In fact, I asked you about masonry issues [during your
deposition] and you told me over and over again that you’re not
a masonry expert, right?
A. Correct.
Q. You have never built a fireplace, correct?
A. No, I have not.
Q. You’ve never built a firebox, correct?
A. No.
Q. Never built flues to a fireplace, correct?
A. Correct.
Q. You’ve never been–you’ve never built block walls for
masonry purposes, correct?
A. Correct.
* * * *
Q. And I asked you during your deposition, I said specifically,
“You’re not comfortable providing masonry construction expert
opinions?” and you agreed with that, correct?
A. Correct.
* * * *
Q. And you agree you are not even familiar with the building
codes as it relates to masonry projects, correct?
A. Correct.
11
As set forth above, a witness is qualified as an expert by “knowledge, skill,
experience, training, or education.” W.Va.R.Evid. 702. In determining whether a witness
is qualified to give expert testimony, this Court has advised circuit courts to err on the side
of admissibility because of the “‘liberal thrust’ of the rules pertaining to experts.” Gentry,
195 W.Va. at 522, 466 S.E.2d at 181. Noting that there is no “best expert” rule, we have
explained that “[d]isputes as to the strength of an expert’s credentials, mere differences in
the methodology, or lack of textual authority for the opinion go to weight and not to the
admissibility of their testimony.” Id. at 527, 466 S.E.2d at 186. At the same time, this
Court has made clear that such testimony should be excluded when the expert acknowledges
that he or she is not qualified to render an opinion on a particular matter.
In Kiser v. Caudill, 210 W.Va. 191, 557 S.E.2d 245 (2004) (“Kiser I”), this
Court affirmed a trial court’s decision prohibiting the plaintiff’s medical expert from
testifying about the standard of care required by a neurosurgeon. Finding that the circuit
court had not erred by limiting the testimony of Dr. Charles Brill, a neurologist, to the field
of neurology and precluding him from rendering an opinion as to the applicable standard of
care required of a neurosurgeon, we explained:
After examining the record in this case, we do not find
that the circuit court abused its discretion by limiting the
testimony of Dr. Brill at trial to the field of neurology. During
his deposition in February 1997, Dr. Brill stated that he did not
plan to testify about the standard of care required of a
neurosurgeon in this case. He also stated that he was merely an
12
expert in referring patients to neurosurgeons, but he did not hold
himself out to be an expert in the field of neurosurgery. Dr.
Brill further indicated that he did not know whether the standard
of care for the treatment of a tethered spinal cord had changed
from 1973 to the present. In addition, at trial, during
cross-examination by the appellee regarding his qualifications,
Dr. Brill acknowledged that he was not qualified or trained in
the field of neurosurgery and was not familiar with the manner
in which neurosurgical procedures are performed. Given Dr.
Brill’s own admissions about his limited knowledge of
neurosurgery, we do not find that the circuit court erred by
limiting his testimony at trial to the field of neurology.
Id. at 196, 557 S.E.2d at 250.
Likewise, in Kiser v. Caudill, 215 W.Va. 403, 599 S.E.2d 826 (2004) (“Kiser
II”), we upheld the circuit court’s finding that Dr. James Barnes was not qualified to testify
as an expert witness because of his admission that he had no more than a casual familiarity
with the applicable standard of care. We explained:
Dr. Barnes was not qualified to testify because his
deposition showed that he had no more than a casual familiarity
with the standard of care. The circuit court further noted that
Dr. Barnes testified that he was not an expert on tethered spinal
cords and that he never wrote on the subject, nor performed any
scientific studies. Finally the court observed that Dr. Barnes
could not cite any medical textbooks or literature to support his
opinions regarding tethered spinal cord diagnosis and treatment.
Id. at 411, 599 S.E.2d at 834.
Given Ms. Deem’s admission that she is not an expert with regard to masonry
issues, the circuit court did not abuse its discretion in finding she lacked the requisite
13
education or experiential qualifications to render an opinion regarding whether the chimney
construction was defective. Notably, despite this limitation placed on Ms. Deem’s testimony,
she was permitted, over Mr. Phillips’ objection, to give her opinion as an expert home
inspector as to whether the problems she identified with the masonry work were a hazard
and/or whether such problems would have a negative impact on a home inspection or make
the home fail such an inspection. Indeed, Ms. Deem testified that “[l]ooking down from the
fireplace from the roofline, you could see the main ridge beam was directly or in extreme
proximity to the flue liners, which is a safety hazard. It could cause a fire.” She further
testified that her observation that wood was in contact with the chimney would cause the
house to fail a home inspection.7
2. Broderick McGothlin. Ms. Sneberger next tendered Broderick
McGothlin, a licensed general contractor, as an expert in the construction of both “regular”
and log homes, including masonry issues. Following voir dire concerning his education and
background experience, the trial court qualified Mr. McGothlin as an expert in general
construction, but not in the field of masonry because he stated he was not comfortable
offering opinions concerning masonry issues. In that regard, Mr. McGothlin testified as
follows:
7
When Ms. Deem inspected Ms. Sneberger’s home, the construction was not yet
complete. Ms. Sneberger testified that Ms. Deem’s observations with regard to the chimney
caused her to have the chimney torn down and rebuilt.
14
Q. You don’t specialize in masonry in any way in your general
business, correct?
A. No.
Q. You sub[contract] all of that out, right?
A. Yes.
Q. You don’t do it?
A. Nope.
Q. Have no special training in masonry?
A. No.
Q. You don’t consider yourself to be an expert in masonry,
correct?
A. No. Right.
Q. That’s correct, right?
A. Yes.
Q. You don’t feel comfortable testifying as a masonry expert,
would that be correct?
A. Right.
Q. Correct?
A. Yes.
Q. Okay. You are not even aware of the actual code provisions
as it would relate to chimneys or masonry projects, are you?
A. I’m a little familiar with some.
Q. But you’re not–remember I asked you during your
deposition whether you’re familiar with the code provisions and
you said you are not?
A. Right.
Q. Okay. Whenever you went out there to inspect this home,
your focus was on the framing issues, correct?
A. Yes.
Q. Not masonry, was it?
A. Right. Yes.
Q. You are not comfortable being asked to provide masonry
opinions, are you?
A. No.
Q. And as far as being aware of masonry standards, regulations
or code in Randolph County, you have no idea what applies
here, correct?
A. No.
15
Ms. Snebeger contends the trial court erred by precluding Mr. McGothlin from
testifying as a general contractor about masonry issues such as the propriety of placing
concrete around wooden beams inside of a chimney, the flammability thereof, and the actual
appropriate construction techniques that should have been employed with respect to the
chimney. In support of her argument, she notes that Mr. McGothlin testified he has more
than twenty years of experience in the construction of hundreds of homes of different types;
has supervisory responsibility over masons and chimney work on his projects; and has a
working knowledge of the properties of concrete. Given Mr. McGothlin’s considerable
experience, Ms. Snebeger reasons she should have been permitted to elicit his opinion about
masonry issues in the context of general construction.
Again, we find no merit to Ms. Sneberger’s argument because of Mr.
McGothlin’s admission that he is not an expert with regard to masonry issues and his
statement that he would be uncomfortable rendering an opinion on that subject.
Consequently, the trial court properly limited Mr. McGothlin’s expert opinion to the field of
general construction. We note, however, that despite this limitation, the trial court permitted
Mr. McGothlin to render an opinion regarding the propriety of running wood beams through
a chimney as a matter of general construction. Mr. McGothlin testified that it was not
acceptable to run wood through the chimney block. He explained, “Wood burns. National
Code is 2–inches away from the exterior of the chimney. That’s what I’ve always heard.”
16
3. Richard Rockwell. Ms. Sneberger’s final expert witness, Richard
Rockwell, was qualified by the trial court as an expert in civil engineering, contracting, and
the construction of custom and log homes. Ms. Sneberger did not tender Mr. Rockwell as
expert on masonry issues, and she never sought to elicit any opinion from Mr. Rockwell
regarding the masonry construction in her home. Nonetheless, she argues that the trial court
erred by precluding Mr. Rockwell from rendering such an opinion. Ms. Sneberger states that
she did not pose any questions to Mr. Rockwell about the masonry work because of the trial
court’s earlier ruling precluding Mr. McGothlin from providing such an opinion. She argues
that her objection to the trial court’s ruling prohibiting Mr. McGothlin from rendering an
opinion with regard to the masonry construction preserved the issue for appeal with respect
to both experts. In support of her argument, she relies upon this Court’s holding in syllabus
point seven of State v. Taylor, 130 W.Va. 74, 42 S.E.2d 549 (1947), overruled on other
grounds by State v. Aboy, 160 W.Va. 497, 236 S.E.2d 431 (1977), which provides: “When
an objection to evidence is distinctly made and overruled and an exception taken, the
objection need not be repeated to the subsequent introduction of the same or similar
evidence, unless it appears that such objection has been otherwise waived.”
Upon review, we find Ms. Sneberger’s reliance upon Taylor is misplaced. In
Taylor, the defendant argued that the trial court had erred by allowing the State to elicit
testimony from her on cross examination regarding her previous conviction of assault and
17
battery for which she was sentenced to one year in jail. The State maintained that the
defendant had waived her objection to the admission of the evidence because she did not
object when the same information was elicited during the cross examination of another
witness who testified on her behalf. Rejecting the State’s waiver argument, this Court
explained that “[t]he failure of the defendant to object to the subsequent admission of the
evidence did not waive her earlier objection or render admissible the evidence to which she
had previously entered her exception.” 130 W.Va. at 86, 42 S.E.2d at 557.
Here, rather than objecting to the admission of evidence, Ms. Sneberger is
asserting that the trial court’s ruling that one expert was not qualified to render an opinion
on a certain subject matter correspondingly prevented her from eliciting testimony from
another expert on the same issue. While the trial court may have ruled in the same fashion
had she attempted to qualify Mr. Rockwell as a masonry expert, we cannot speculate in that
regard because a witness is qualified to render an expert opinion based upon his or her
particular “knowledge, skill, experience, training, or education. ” W.Va.R.Evid. 702. While
Mr. McGothlin and Mr. Rockwell are both general contractors, they obviously have different
credentials and experience. Because Ms. Sneberger never sought to qualify Mr. Rockwell
as an expert with regard to masonry construction, the trial court never had an opportunity to
18
consider the issue.8 Consequently, Ms. Sneberger failed to preserve the issue for appeal.
It is well-established that “‘“[t]his 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).
C. Pre-Verdict Judgment as a Matter of Law
Ms. Sneberger argues that the trial court erred by granting Mr. Phillips’s
motion for judgment as a matter of law following her case-in-chief. She also contends the
trial court erred by denying her motion for judgment as a matter of law with respect to her
negligence and breach of warranty claims against Mr. Morrison. Pursuant to Rule 50(a)(1)
of the West Virginia Rules of Civil Procedure:
If during a trial by jury a party has been fully heard on an
issue and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue, the court may
determine the issue against that party and may grant a motion for
judgment as a matter of law against that party with respect to a
claim or defense that cannot under the controlling law be
maintained or defeated without a favorable finding on that issue.
8
We note that during cross examination, Mr. Rockwell testified, “I do not want to be
an expert in masonry. I don’t like masonry, I don’t want to do masonry.” Given this
testimony, it appears that Mr. Rockwell would not have been qualified as a masonry expert
even if Ms. Sneberger sought to qualify him as such.
19
Id. This Court has held that “‘“[u]pon 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). We have further advised that
[w]e apply a de novo standard of review to the grant or denial of
a pre-verdict or 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 pre-verdict or 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).
1. Grant of Judgment as A Matter of Law. The trial court found that Ms.
Sneberger failed to present sufficient evidence to support her claims against Mr. Phillips.
Ms. Sneberger predicated her theories of liability against Mr. Phillips upon the following
assertions: (1) Mr. Phillips unreasonably relied upon Mr. Morrison’s representations
regarding the thickness and the underlying base of the chimney foundation; (2) Mr. Phillips
unreasonably relied upon Mr. Morrison to remove the wooden floor joists and construct a
cement pad for the chimney on the first floor and to remove the roof ridge beam; and (3) Mr.
20
Phillips became a joint tortfeasor with Mr. Morrison when he used his forklift to place the
logs during the construction of the home.
With regard to the chimney foundation, Mr. Phillips testified at trial he was told
by Mr. Morrison, who admittedly was solely responsible9 for pouring the cement for the
basement floor, that it was five to six inches thick and sitting on solid rock. Mr. Phillips
further testified he consulted with his former employer to make sure that a concrete
foundation of that thickness would be sufficient before he began building the chimney.
While Ms. Sneberger maintained Mr. Phillips’s actions were unreasonable, she failed to
present any evidence to support her assertion. To the contrary, her own experts, Mr.
McGothlin and Mr. Rockwell, testified it is reasonable for a masonry subcontractor to rely
upon information supplied by the general contractor. They further stated it would not have
been reasonable for Mr. Phillips to conduct an independent investigation to confirm the
information provided by Mr. Morrison concerning the thickness of the foundation for the
chimney.
With regard to the wooden beams and floor joists that were discovered inside
the chimney block, Mr. Phillips testified at trial he built the chimney from the basement up
9
Mr. Morrison testified that Ms. Sneberger hired two individuals to help him pour the
concrete for the basement floor but they left the job site after a couple of hours and never
returned.
21
to the subflooring for the first floor. Mr. Morrison told him he would remove a portion of
the wooden beams and floor joists and build another base for the second firebox on the first
floor. In order to allow Mr. Morrison to do this work, Mr. Phillips left the job site and
returned a couple of weeks later. Upon his return, Mr. Phillips found a concrete pad on the
first floor ready for him to continue building the chimney. Mr. Phillips testified he could
only see concrete where the wooden floor joists had been and he did not know that any
portion thereof was inside the concrete. Mr. Phillips continued to construct the chimney until
he reached the roof ridge beam. Mr. Phillips left the job site again with the understanding
that Mr. Morrison was going to cut out the ridge beam and replace it with steel. Mr. Phillips
was then going to return to finish chimney. However, Ms. Sneberger fired Mr. Morrison
before the ridge beam was removed. Consequently, the chimney was never completed.
The record further shows that Ms. Sneberger never presented any evidence at
trial to establish that Mr. Phillips knew, or should have known, that portions of the wooden
floor joists were inside the chimney pad on the first floor. Further, she never presented
evidence that Mr. Phillips unreasonably relied upon Mr. Morrison to remove the floor joists
and the the roof ridge beam. Moreover, Mr. McGothlin, Ms. Sneberger’s expert, testified
that removing the ridge beam and replacing it with steel “would comply with Code” and
would not be a fire hazard.
22
With regard to Mr. Phillips’s participation in the placement of the logs for the
walls of the home, the evidence at trial indicated that Mr. Phillips, who admittedly had no
expertise in the construction of a log home, simply used his forklift to place the logs as
directed by Mr. Morrison. Both Mr. Morrison and Mr. Phillips testified that Mr. Phillips
never performed any other tasks pertaining to the wall construction, such as selecting,
cutting, or notching the logs. Ms. Sneberger never presented any evidence that Mr. Phillips
exercised any control over the placement of the logs. In addition, her experts testified that
it would not be reasonable to hold an individual responsible for faulty construction of log
walls when the individual’s only job was to use a forklift to place the logs according to
someone else’s specifications. Further, there was no evidence that Mr. Phillips operated the
forklift in a negligent manner.
Given all the above, we find no error in the trial court’s grant of judgment as
a matter of law in favor of Mr. Phillips.
“‘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 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). We have explained that
It is axiomatic in the context of negligence lawsuits that
a party has a duty to exercise “due care.” In other words, people
23
are required to exercise the same degree of care which would be
exercised by a reasonably prudent person in like circumstances.
“Negligence” is either the failure to do what a reasonable
and prudent person would ordinarily have done under the
circumstances, or doing what such a person under the existing
circumstances would not have done.
Honaker v. Mahon, 210 W.Va. 53, 58, 552 S.E.2d 788, 793 (2001). In this case, Ms.
Sneberger did not present any evidence that Mr. Phillips failed to act as a reasonably prudent
mason would in like circumstances. To the contrary, her experts testified that it was
reasonable for Mr. Phillips, as the masonry subcontractor, to rely upon the information
provided by Mr. Morrison, who was acting as the general contractor, with respect to the
sufficiency of the foundation for the chimney. Further, there was no evidence that Mr.
Phillips’s reliance upon Mr. Morrison to remove the floor joists and ridge beam from the path
of the chimney was unreasonable. In addition, there was no evidence that Mr. Phillips was
aware of the existence of wooden beams inside the chimney block and, therefore, he had no
duty to disclose this fact to Ms. Sneberger or take any steps to remediate it. Finally, there is
no evidence that Mr. Phillips breached any duty of care owed to Ms. Sneberger while
operating the forklift to assist Mr. Morrison in setting the logs for the walls of the home. The
evidence indicated that Mr. Phillips simply moved the logs as directed by Mr. Morrison. In
sum, Ms. Sneberger was unable to demonstrate that Mr. Philips breached any duty of care.
Therefore, she failed to establish a prima facie case of negligence against him.
24
Likewise, Ms. Sneberger failed to present evidence to support her claim against
Mr. Phillips for breach of contract. A claim for breach of contract requires proof of the
formation of a contract, a breach of the terms of that contract, and resulting damages. Syl.
Pt. 1, State ex rel. Thornhill Group, Inc. v. King, 233 W.Va. 564, 759 S.E.2d 795 (2014); see
also Wetzel County Savings & Loan Co. v. Stern Bros., Inc., 156 W.Va. 693, 698, 195 S.E.2d
732, 736 (1973). As set forth above, Ms. Sneberger failed to present evidence that any of
Mr. Phillips’s actions failed to comply with the terms of their contract. Her experts testified
that Mr. Phillips acted reasonably in relying upon the representations made by Mr. Morrison
with respect to the sufficiency of the foundation for the chimney. The evidence established
that the deficiencies in the chimney foundation were the result of Mr. Morrison’s work and
not that of Mr. Phillips. Likewise, the existence of wooden beams inside the chimney was
also attributable to Mr. Morrison. There was no evidence that Mr. Phillips was aware of the
inadequacy of the chimney foundation or the presence of wooden beams inside the chimney.
Therefore, based on the evidence presented, the only conclusion that could be reached was
that Mr. Phillips completed his work according to the terms of his contract with Ms.
Sneberger until he was advised by Mr. Morrison not to return to complete the project.
With respect to her claim against Mr. Phillips for breach of the warranties of
habitability and merchantability, Ms. Sneberger had to establish that her home was
constructed in a unworkmanlike manner and was not reasonably fit for its intended use of
25
human habitation. Syl. Pt. 1, Gamble v. Main, 171 W.Va. 469, 300 S.E.2d 110 (1983). As
already stated, there was no evidence that Mr. Phillips failed to construct the chimney in a
workmanlike manner. Certainly, the evidence established that the chimney was “defective”
and unusable as its construction necessitated demolition and rebuilding. However, the
evidence also clearly showed that the defects were attributable to Mr. Morrison’s failure to
prepare an adequate foundation for the chimney and Mr. Morrison’s failure to remove the
wooden beams from the chimney block. As such, there was no evidentiary basis for the jury
to find in favor of Mr. Sneberger with respect to her breach of warranty claims against Mr.
Phillips.10
Likewise, there was no evidentiary basis for Ms. Sneberger’s remaining claims
against Mr. Phillips for fraud, misrepresentation, and outrageous conduct. It is well-
established that
“‘[t]he 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
10
We recognize that a “builder cannot avoid liability under an implied warranty of
habitability or fitness or under an implied warranty to construct in a workmanlike manner by
claiming lack of knowledge of the defective construction work, because under these
doctrines he is presumed to know his own construction work.” Gamble, 171 W.Va. at 475
n.9, 300 S.E.2d at 116 n.9. In this instance, however, the defective construction work was
attributable to Mr. Morrison, not Mr. Philllips.
26
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). A claim for outrageous
conduct requires intentional or reckless action that causes severe emotional distress to
another. Syl. Pt. 6, Harless v. First National Bank, 169 W.Va. 673, 289 S.E.2d 692 (1982).
None of the evidence that was presented by Ms. Sneberger, which has been outlined above,
supported these claims. Absent knowledge of the “defects” in the chimney that were not the
result of his work, Mr. Phillips could not have concealed or misrepresented the same from
Ms. Sneberger. Furthermore, there was no evidence presented from which a reasonable jury
could have concluded that Mr. Phillips’s actions rose to the level required to sustain a claim
for outrageous conduct.11
2. Denial of Judgment as a Matter of Law. Ms. Sneberger argues there was
overwhelming evidence from her experts and the contractors who performed the remediation
work establishing that as a result of Mr. Morrison’s defective construction, her home is
11
Mr. Morrison asserts in his brief that “the trial court erred in granting a directed
verdict for James Phillips and not granting a directed verdict for Jerry Morrison.” In her
reply brief, Ms. Sneberger addresses this assertion as if it were a cross-assignment of error
by Mr. Morrison concerning the trial court’s denial of Mr. Morrison’s pre-verdict motion for
judgment as a matter of law. To the extent that Mr. Morrison was attempting to assert a
cross-assignment of error, he has failed to comply with Rule 10(f) of the Rules of Appellate
Procedure. Accordingly, we will not address this issue.
27
structurally unsafe, in danger of collapsing, and needs to be rebuilt. She further asserts the
evidence proved that her home was not built in a workmanlike manner nor as a reasonably
prudent builder would have built it. Ms. Sneberger maintains Mr. Morrison’s only response
to this evidence was his testimony that he “did the best job he could.” She contends he failed
to offer evidence to squarely address the elements of her negligence and breach of warranty
claims against him; therefore, she reasons that the trial court should have granted her pre-
verdict motion for judgment as a matter of law on these claims.
Upon review, we find that Mr. Morrison presented sufficient evidence to rebut
the evidence put forth by Ms. Sneberger with respect to her claims against him for negligence
and breach of the warranties of habitability and merchantabilty. In fact, Mr. Morrison
demonstrated that Ms. Sneberger played an active role in the construction of her home,
making the final decisions concerning the home’s size and design, and the materials used.
The jury heard testimony that Ms. Sneberger employed several people to do various jobs
during the different stages of construction because Mr. Morrison did not have a crew to help
him. For instance, all of the grading and earth removal work was completed by Ms.
Sneberger’s neighbor. In addition. Ms. Sneberger testified that both she and her mother did
some of the chinking work on the home.
28
Moreover, based on Ms. Sneberger’s own testimony, the jury could have
reasonably concluded that some of the remediation work actually caused or contributed to
the alleged defects. One of Ms. Sneberger primary contentions was that the roof sagged.
Yet, she testified that Jack Butcher, a contractor she hired to do some of the remediation
work on her home, removed the support walls from the loft area in order to rebuild the
subflooring, which was “four and five inches out of square.” She testified about this matter
in response to questions from Mr. Morrison’s attorney:
Q. Do you know whether or not when he took the wall out that
it affected the roof, or do you know if they were support walls?
A. He was worried about that, because he told me to make
sure–because he [had] another job to go to–to make sure that I
put something back up there because the way that Jerry had done
the slant of the roof, that it could collapse in without any support
walls.
Q. So who did you get to put up something when he took the
walls down?
A. Okay. Jack Peters is currently still working on that for me.
Q. Do what?
A. Jack Peters is currently still working on that for me.
Q. So for quite some period of time after Mr. Butcher took
down the support walls, there was nothing put back up there to
hold it?
A. That’s correct.
Q. For [a] good while, is that right?
A. That’s correct.
Q. Even though Mr. Butcher told you, “You better get
something up there to hold that roof up because those are
support walls,” right?
A. That’s correct but I didn’t have any money to pay anybody
or buy the materials to do that sir.
Q. But you’re blaming Jerry [Morrison] because that roof is
now sagging, even though you may have caused the problem?
29
A. The roof was sagging because it was spongy when Jack was
re-doing the roof.
Q. You don’t know that though, do you?
A. Jack told me that and I believe him.
Q. Jack told you that?
A. Yes, he did.
Considering this evidence in the light most favorable to Mr. Morrison, the nonmoving party,
we cannot say the trial court erred by denying Ms. Sneberger’s motion for judgment as a
matter of law with respect to her negligence and breach of warranty claims again Mr.
Morrison.
D. The Jury Instructions
Ms. Sneberger contends the trial court erred by instructing the jury on
comparative negligence and including dicta in the outrageous conduct instruction. It is
axiomatic that “[i]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). “[O]ur review of the legal propriety of the trial court’s instructions
is de novo.” Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51, 63, 479 S.E.2d 561, 573
(1996) (citation omitted). However,
[t]he 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 fair to both parties.
30
Syl. Pt. 6, Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 459, S.E.2d 374
(1995). In other words, “[d]eference is given to a trial court’s discretion concerning the
specific wording of the instruction, and the precise extent and character of any specific
instruction will be reviewed only for an abuse of discretion.” Syl. Pt. 4, in part, State v.
Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Furthermore,
“[i]t 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).
1. The Comparative Negligence Instruction. Ms. Sneberger argues the trial
court erred in giving a comparative negligence instruction because she asserts there was no
evidence that she bore any degree of fault for the condition of her home. She maintains that
Mr. Morrison’s speculation that the remediation efforts may have contributed to the defective
condition of her home did not warrant the instruction.
As discussed above, Mr. Morrison presented considerable evidence that Ms.
Sneberger took an active role in the construction of her home, not only in terms of decision­
31
making with regard to the home’s appearance and the materials to be used,12 but also in
providing the actual labor. Mr. Morrison testified that Ms. Sneberger changed the size and
design of her home from what was originally contemplated, adding a basement and an
attached garage. She also increased the height of the walls after construction began, contrary
to Mr. Morrison’s recommendation. As a result of this decision, Mr. Morrison did not have
enough logs and, ultimately, cut down two trees in Ms. Sneberger’s yard in order to complete
the construction of the walls.13 The evidence also showed that after Mr. Morrison was fired,
Ms. Snebeger hired various persons who removed the interior walls in the loft area that
supported the roof, which may have contributed to the roof sagging. Based on this evidence,
Mr. Morrison maintained that Ms. Sneberger was responsible for the defective condition of
her home.
12
Mr. Morrison testified Ms. Sneberger insisted that a particular type of lumber be
used as sheeting material for the porch roofs. He advised her that the wood she chose would
shrink because it was not kiln-dried lumber and that it would not last more than five years.
She responded, “That’s okay. I’ll replace it in five years if I have to, but that’s what I want.”
13
Mr. Morrison testified that he explained to Ms. Sneberger that he would not have
enough logs to complete the project if she increased the size and height of the home. He said
her response was “[w]ell let’s just go get some more logs.” He then explained to her that
“it’s not that simple. These logs have been cut and dried for a year . . . . You just can’t go
and cut a tree out of the woods and put it in the house brand-new the first day. It doesn’t
work. You need time to have time to dry.” Eventually, with Ms. Sneberger’s permission,
Mr. Morrison did in fact cut down two pine trees in her yard and used them to finish the
structure.
32
“We have adhered to the principle that [even] slight evidence will support an
instruction of the defendant’s theory of the case[.]” King v. Bittinger, 160 W.Va. 129, 134,
231 S.E.2d 239, 242 (1976). Here, there was more than enough evidence presented at trial
to allow the jury to consider whether Ms. Sneberger was negligent. Accordingly, the trial
court did not err by instructing the jury to determine the percentage of fault, if any, to be
attributed to Ms. Sneberger.
2. The Outrageous Conduct Instruction. Ms. Sneberger contends that the
circuit court erred by including dicta in its jury instruction pertaining to her outrageous
conduct claim. The trial court included the following language in the instruction:
Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all reasonable bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to
an average member of the community would arouse his
resentment against the actor, and lead him to exclaim,
“Outrageous.”
In support of her argument, Ms. Snebeger relies upon Tennant, wherein we stated that “a
circuit court should refrain wherever possible from gratuitously adding language to its charge
that is not an element of the claim or defense and that can better be presented to the jury by
way of closing argument.” 194 W.Va. at 117, 459 S.E.2d at 394. She contends the trial
court should have given a succinct instruction limited to the elements of the tort of outrage
as set forth in syllabus point six of Harless: “One who by extreme and outrageous conduct
33
intentionally or recklessly causes severe emotional distress to another is subject to liability
for such emotional distress, and if bodily harm to the other results from it, for such bodily
harm.” 169 W.Va. at 674, 289 S.E.2d at 694.
The trial court’s instruction was derived from language contained in the
commentary to the Restatement (Second) of Torts § 46(1) (1965) that has been referenced
and quoted with approval in many of our prior cases, including Harless. 169 W.Va. at 695,
289 S.E.2d at 704-05; see also Tanner v. Rite Aid of West Virginia, Inc., 194 W.Va. 643, 650,
461 S.E.2d 149, 156 (1995) (discussing fact that jurisprudence and comments attached to
Restatement (Second) of Torts § 46(1) (1965) have “substantially influenced” our
development of this tort); Courtney v. Courtney, 190 W.Va. 126, 130, 437 S.E.2d 436, 440
(1993) (“Courtney II”) (quoting comment (j) of Restatement (Second) of Torts § 46(1)
(1965) concerning nature of severe emotional distress); Courtney v. Courtney, 186 W.Va.
597, 601-02, 413 S.E.2d 418, 423 (1991) (“Courtney I”) (quoting comment (d) of
Restatement (Second) of Torts § 46(1) (1965) to explain type of conduct creating cognizable
claim); Kanawha Valley Power Co. v. Justice, 181 W.Va. 509, 513, 383 S.E.2d 313, 317
(1989) (noting “[w]e patterned our rule on that of the Restatement (Second) of Torts § 46”).
Thus, while the instruction was not limited to a mere recitation of the elements of the tort of
outrage, it was not an incorrect statement of the law. Given the nature of this case, we find
that such an instruction was warranted in light of our recognition that “where no physical
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injury accompanies the wrong, the tort of outrage is a slippery beast, which can easily get out
of hand without firm judicial oversight.”14 Keyes v. Keyes, 182 W.Va. 802, 805, 392 S.E.2d
693, 696 (1990). Accordingly, we find no error with respect to this issue.
E. Denial of Motion to A New Trial
Ms. Sneberger’s final assignment of error concerns the trial court’s denial of
her motion for a new trial. Maintaining the jury’s decision was against the clear weight of
the evidence, Ms. Sneberger contends that the trial court should have set the verdict aside and
found Mr. Morrison one hundred percent liable and ordered a new trial on damages only or,
alternatively, granted a new trial on all of the issues.
In syllabus point one of Burke-Parsons-Bowlby Corp. v. Rice, 230 W.Va. 105,
736 S.E.2d 338 (2012), we noted that
[t]his 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.
We have also stated that “[a]lthough 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
14
Ms. Sneberger did not present any medical evidence to support her outrageous
conduct claim.
35
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). Yet, this Court also has recognized that a new trial should rarely be
granted and then granted only where it is ‘“reasonably clear that prejudicial error has crept
into the record or that substantial justice has not been done.’” In re State Public Building
Asbestos Litigation, 193 W.Va. 119, 124, 454 S.E.2d 413, 418 (quoting 11 Charles Alan
Wright and Arthur R. Miller, Federal Practice and Procedure § 2803 at 32-33 (1973)). As
we have explained “‘in determining whether a valid claim has been established, the
assessment of evidence and testimony is, of course, within the province of the trier of fact,
and that we, as an appellate court, owe great deference to the verdict.’” JWCF, LP v.
Farruggia, 232 W.Va. 417, 426, 752 S.E.2d 571, 580-81 (2013) (quoting Hutchison v. City
of Huntington, 198 W.Va. 139, 157, 479 S.E.2d 649, 667 (1996)). Therefore, we have
determined that “evidence is sufficient if a rational trier of fact could have found the essential
elements of the claim by a preponderance of the evidence based on the evidence presented
at trial.” Farruggia 232 W.Va. at 427, 752 S.E.2d at 581 (additional citation ommitted).
Although the jury returned a verdict in favor of Ms. Sneberger, finding Mr.
Morrison negligent in the manner in which he constructed her home and awarding her
$40,0000.00 in damages, she argues she is entitled to a new trial because the jury also
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attributed forty percent of the fault to her, contrary to the evidence presented at trial.15 In
addition, Ms. Sneberger contends the jury’s assessment as to the amount of damages she
sustained was inadequate and not supported by the evidence. We disagree.
As we discussed above, the record reflects the jury heard evidence that Ms.
Sneberger took an active role in the construction of her home, making the decisions about
the materials to be used, changing the size and design of the home during the construction
process, and doing some of the construction work herself. There was evidence presented that
Ms. Sneberger insisted that certain lumber be used even when advised that the material was
inappropriate for the intended use. Furthermore, Ms. Sneberger acknowledged that support
walls were removed from the home by a contractor she hired to remediate Mr. Morrison’s
work. While she maintained the roof of the home was sagging as a result of Mr. Morrison’s
work, the jury could have found that the removal of the support walls caused or, at least
contributed, to this alleged defect. Based on this evidence, we cannot say the jury’s
comparative fault finding was against the clear weight of the evidence.
As for the amount of damages awarded, the record shows the jury heard a wide
range of testimony with respect to the expenses and damages incurred by Ms. Sneberger.
15
The jury’s verdict was reduced by Ms. Sneberger’s percentage of fault resulting in
a final judgment order against Mr. Morrison in the amount of $24,000.00.
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Specifically, Mr. Morrison testified that Ms. Sneberger paid him $6,000.00 for the logs and
slightly less than $10,000.00 for his labor before she fired him. He estimated that at the time
he was fired, Ms. Sneberger had spent a total of $41,000.00 for labor and materials. Ms.
Sneberger’s expert, Mr. McGothlin, testified that the cost of materials to rebuild the house
in the manner it should have been constructed would be $40,000.00. Adding labor and the
cost to tear down the existing stucture and remove the debris, Mr. McGothlin opined the total
cost would be $350,000.00. Further, Ms. Sneberger testified that she paid Mr. Morrison
$46,136.00; Mr. Phillips $11,760.89; and the contractors who did the remediation work
$48,031.61. In addition to this evidence, the jury traveled to the home and viewed its current
state.
As previously noted, the verdict form indicates that the $40,000.00 awarded
by the jury was “for the cost of fixing the defects, completing the work, and placing the home
in the condition that it should have been had the work been done properly.” The jury verdict
form reflects that the jury chose to award zero dollars “for all of Ms. Sneberger’s additional
damages which flowed from [Mr. Morrison’s] wrongful acts, including, but not limited to,
damages arising from Ms. Sneberger’s efforts to mitigate her damages;” zero dollars “for Ms.
Sneberger’s annoyance and inconvenience associated with the construction process;” zero
dollars “for Ms. Sneberger’s loss of the use of the property;” and zero dollars “for Ms.
Sneberger’s emotional distress.” Given that liability was highly contested combined with the
38
significant percentage of fault attributed to Ms. Sneberger, we cannot say the amount of
damages awarded by the jury was against the clear weight of the evidence. “‘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).
IV. Conclusion
For the reasons set forth above, the final order of the Circuit Court of Randolph
County entered on June 2, 2014, is affirmed.
Affirmed.
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