CHARLESTON – The West Virginia Supreme Court of Appeals ruled that no error was found in a lawsuit against Jerry Morrison Construction where the plaintiff was also found to be comparatively negligent.
Justice Allen Loughry authored the majority opinion. Justices Robin Jean Davis and Brent Benjamin dissented and Davis, joined by Benjamin, authored a dissenting opinion.
"Having carefully considered the parties' briefs and oral arguments, the submitted record, and the applicable authorities, we find no error," the June 11 opinion states. "Accordingly, for the reasons set forth below, the final order is affirmed."
Teri Sneberger appealed a final order of Randolph Circuit Court entered June 2, 2014, denying her motion for a new trial in her civil action against Jerry Morrison 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 opinion states. "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 her appeal, Sneberger claimed that the trial court committed reversible error by limiting the time the parties had to present the case to the jury; by placing limitations on the expert testimony; by granting judgment as a matter of law in favor of Phillips; by denying her motion for judgment as a matter of law with respect to her negligence and breach of warranty claims against Morrison; by instructing the jury on comparative negligence; by including dicta in the outrageous conduct instruction; and by denying her motion for a new trial.
In 2009, Sneberger entered into a verbal contract with Morrison for the construction of a "primitive" log home on property she owned in Randolph County.
Morrison told Sneberger that he had previously built two log homes, but he also advised her that he was not a licensed general contractor , but that he could build her log home for $140,000, including materials and labor.
Sneberger claimed Morrison told her the home would be "turn-key ready" after four months of construction and she orally agreed to his terms and he began construction in March 2010.
Sneberger entered into a second verbal contract with Phillips, a mason, to build the basement walls of the log home and a chimney with two fireplaces. Phillips made the decisions about how to construct the chimney and install the flues.
In addition to his mason work, Phillips also operated a fork lift to aid Morrison in constructing the walls of the home.
As construction continue, Sneberger noticed multiple defects on the home and, concerned about the increasing number of apparent defects in the construction, as well as the excessive costs of the labor and materials, Sneberger fired Morrison in July or August 2010. Although Phillips had not completed construction of the chimney, Morrison contacted him and told him he was no longer needed to finish his work on the home.
Sneberger then hired other contractors to remediate the alleged defects and finish the construction. Despite remediation work, Sneberger claims she cannot live in her home because she was advised by one of her expert witnesses that there was a significant risk the structure would collapse.
On Sept. 30, 2011, Sneberger filed her suit against Morrison and Phillips and the case went to trial on Aug. 14, 2013. The jury entered a verdict in favor of Sneberger only with respect to her negligence claim against Morrison, awarding $40,000 in damages and further found that Sneberger had failed to mitigate her damages and/or was comparatively negligent and attributed 60 percent fault to Morrison and 40 percent to Sneberger.
On Nov. 8, 2013, Sneberger filed a motion for a new trial, which was denied in a final order on June 2, 2014.
"Given that liability was highly contested combined with the 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," the opinion states. "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."
In her dissenting opinion, Davis stated that the majority lacked any clear understanding of how to actually trial a lawsuit in circuit court.
"It is obvious from the scant analysis set forth in the majority opinion regarding the time limitation assignment of error that the majority lacks any clear understanding of how to actually try a lawsuit in circuit court," she stated.
The majority's opinion represents an attack on the basic fairness and due process rights that must be inherent in, and is essential to, every trial, according to Davis' dissenting opinion.
Sneberger is represented by Marvin W. Masters, Christopher L. Brinkley and Richard A. Monahan of the Masters Law Firm.
Morrison is represented by Pat A. Nichols.
Phillips is represented by Trevor K. Taylor and Tiffany A. Cropp of Taylor Law Office.
W.Va. Supreme Court of Appeals case number: 14-0662