Joseph M. and Susan Closson v. Mountaineer Grading Co., etc.

Citation: Not availableDocket: 15-0820

Court: West Virginia Supreme Court; November 9, 2016; West Virginia; State Supreme Court

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Joseph and Susan Closson appealed a Circuit Court order from July 27, 2015, which denied their motion for a new trial following a jury verdict in their favor against Mountaineer Grading Company and Thrasher Engineering, Inc. The Clossons had purchased ten acres of undeveloped property in Marion County in 2001 and subsequently entered into a contract with Mountaineer Grading for waste fill disposal related to a construction project, for which they received $226,098.25. The contract specified the type of fill material and required certification by a testing agency, which Mountaineer Grading hired Thrasher Engineering to perform. Thrasher was not a party to the contract between the Clossons and Mountaineer Grading and did not participate in its negotiation.

In 2007, the Clossons filed a complaint against Mountaineer Grading for breach of contract and later amended it to include Thrasher, claiming it breached its obligations as a third-party beneficiary. They alleged that the fill did not meet contract specifications. The Circuit Court dismissed the breach of contract claim against Thrasher in 2010, citing the lack of a contractual relationship. The court also limited potential damages to the diminution of property value. During the trial in August 2014, Mountaineer Grading did not appear. The jury awarded the Clossons $126,000 from Mountaineer Grading and $25,000 from Thrasher but found the Clossons to be 49% comparatively negligent, leading to a reduced judgment of $12,750 against Thrasher. The decision to affirm the Circuit Court's order was made without oral argument, as no substantial legal questions or prejudicial errors were identified.

Petitioners filed a motion for a new trial, seeking to amend the judgment based on three claims: the right to present a breach of contract claim, the right to introduce evidence of remediation costs, and the assertion of no comparative negligence. The court denied the new trial motion but amended the judgment, prompting an appeal. On appeal, petitioners raised three errors: the trial court wrongly required them to be the “sole beneficiary” of the contract with Mountaineer Grading to recover, incorrectly limited their recovery to the property's pre-injury value, and improperly upheld the jury's finding of contributory negligence. The appellate court reviews these claims under an abuse of discretion standard, emphasizing the trial court's discretion in granting or denying new trials and the weight given to its rulings unless there is a clear legal or evidential misunderstanding.

The first assignment argues that petitioners do not need to be the “sole beneficiary” of the contract to recover, as they were not parties to it. The court referenced precedents establishing that a third party can only pursue an independent cause of action if the contract was made solely for their benefit, as outlined in West Virginia Code 55-8-12. Petitioners suggested a broader interpretation of the term "jointly with others," implying multiple parties could confer third-party beneficiary status. However, the court found no merit in this argument, ruling that the agreement was not made for their sole benefit nor jointly with others, thus denying third-party beneficiary status.

Petitioners contest the circuit court's limitation of damages to the difference in property value before and after the injury, asserting entitlement to the full cost of property restoration regardless of whether it exceeds the property's diminished market value. Citing the precedent in Jarrett v. E. L. Harper, Son, Inc., the court reaffirms that an owner may recover repair costs and related expenses, including loss of use, but only if repair is feasible. The circuit court's decision to limit damages was deemed appropriate. Additionally, in addressing petitioners' claim of error regarding the jury's finding of contributory negligence, the court notes that petitioners failed to substantiate their argument with adequate citations to the record, as required by West Virginia appellate procedure. Consequently, the court finds the necessary evidentiary support lacking and affirms the lower court's rulings. The decision was issued on November 10, 2016, with a dissenting opinion noted.