### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Monica S. Hanson, 

### FILED Plaintiff Below, Petitioner 

### May 11, 2018
vs) No. 17-0478 (Kanawha County 15-C-1570) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA Suzuki Motor of America, Inc. and Charleston Suzuki, LLC, Defendants Below, Respondents



### MEMORANDUM DECISION

Petitioner Monica S. Hanson, by counsel Bria n R. Blickenstaff, appeals the April 24, 2017, order of the Circuit Court of Kanawha County that grante d Respondents Suzuki Motor of America, Inc. and Charleston Suzuki, LLC’s moti on for a directed verdict in petitioner’s action against Suzuki Motor of America, Inc. for its a lleged violation of her car’s express warranty and the “Lemon Law,” West Virginia Code §§ 46A-6 A-l to -9; and her act ion against Charleston Suzuki, LLC, for its alleged violation of her car’s implied warranty. Respondents, by counsel Elizabeth Duncan Brewer, filed a response in suppor t of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in finding she failed to offer sufficient evidence of either an express wa rranty or the diminished value of her car.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon considerat ion of the standard of review, the Court finds no substantial question of law and no prejudicia l error. For these reasons, a memorandum decision affirming

the circuit court’s order is a ppropriate under Rule 21 of the Rules of Appellate Procedure.

On June 9, 2012, petitioner purchased a new 2012 Suzuki SX4 LE sedan (the “car”) from Charleston Suzuki, LLC (“the dealership”). Suzuki Motor of America, Inc. (“the manufacturer”)

manufactured the car. Thereafte r, petitioner took the car to th e dealership for service for mechanical failures on March 6, 2013 (mil eage 13,484); January 16, 2014 (mileage 36,778); and February 6, 2014 (mileage 37,216). Respondents claim they serviced the car each time under its express warranty and without cost to petit ioner. On March 18, 2014 (mileage 39,046), petitioner again brought the car to the dealership for serv ice because it “smoke[d] lightly at times.” The dealership claims it inspected the car, but found no smoke and could not duplicate the problem.

On April 26, 2015 (mileage 61,861), petitioner had the car towed to the dealership when it became inoperable. Respondents claim the dealership examined the car and found (1) no coolant in the car’s engine, (2) the oil was burned and low, and (3) extreme overheating had damaged the radiator and the radiator cap. Res pondents also claim that “according to available

1records,” petitioner drov e the car for more than fifteen months/25,000 miles without changing the oil. The dealership, therefore, refused to honor the warranty or to repair the car.

On August 18, 2015, petitioner br ought this action against respondents seeking, among other things, revocation of accepta nce of the car; the return of the car’s full purchase price; damages for annoyance, inconvenience, and the loss of use of the car; and attorney’s fees and costs. Respondents filed individu al motions for partial summary judgment, which the circuit court granted. Thereafter, the matters remaining for trial were petitioner’s claims against the

manufacturer for breach of e xpress warranty and violation of the Lemon Law, and petitioner’s claim against the dealership fo r breach of implied warranty.

Trial commenced on April 3, 2017. During petit ioner’s case-in-chief, she testified generally about the car’s expre ss warranty; however, she did not introduce a written copy of the warranty into evidence. Instead, petitioner introd uced the “Monroney Sticke r” or window sticker that was affixed to the car when she purchased it. The sticker provided: “America’s #1 Warranty” and “100,000 Miles/7 Yr Powertrain Limited Warranty • No Deductible • Fully

Transferable.” Petitioner testified that she relied on the warranty when she purchased the car. She also testified to the repairs made to the car under the warranty and the dealership’s refusal to repair her car after its last brea kdown. With regard to petitioner’ s claim of diminished value or “substantial impairment,” she testified that the d ealership refused to accep t the car as a trade-in for a replacement vehicle. Petiti oner also testified to the car’s final sale price at auction, the

balance she owed to the car’s lienholder, and the times she did not have use of the car.

Petitioner also called Robert Funstuck, the dealership’s former service manager, who introduced the car’s repair history into evidence. Mr. Funstuck also refere nced the car’s express warranty and the dealership’s de nial of warranty coverage afte r the car’s last breakdown.

Following petitioner’s case-in chief, respondent s moved for a directed verdict under Rule 50 of the West Virginia Rules of Civil Procedur e. With regard to petitioner’s Lemon Law and breach of warranty claims against the manufacturer , respondents argued that all of petitioner’s claims sounded in, or were related to, respondent s’ duties under the car’s express warranty, but that petitioner failed to move a copy of the express warranty into evidence during her case-in

chief. Respondents argued that, as a result, petit ioner could not meet he r burden of proof that respondents breached any of the terms found in the express warranty. Respondents also argued that petitioner presented no eviden ce proving a defect in the car that directly and proximately caused her alleged damages. Finally, respondents argued that even if pe titioner had entered the express warranty into evidence, it would not have covered the damages caused by petitioner’s failure to maintain her car as recommended by the manufacturer’s specifi cations. Finally, with regard to petitioner’s implied warranty claim against the deal ership, respondents argued that petitioner presented no evidence sh owing that the car was not f it for its ordinary purpose.

Petitioner’s counsel responded that “[petitione r] testified during he r direct examination that there was a warranty that came with the vehicl e, and . . . that plenty of the witnesses have testified that there was a warranty . . . .” Petitio ner’s counsel also said, “[petitioner] has testified

as to the diminished value of the vehicle that the car was sold at auction for under $1,500 as far

as that’s concerned.”

2The circuit court granted respondents’ motion fo r a directed verdict on all claims. With regard to petitioner’s Lemon Law and breach of express warranty claims against the manufacturer, the circuit court found petitioner failed to introduc e into evidence the express warranty or to show how the ma nufacturer’s alleged warranty breaches diminished the value of petitioner’s car. The circuit court likewise granted the d ealership’s motion for a directed verdict on petitioner’s breach of implied warranty claim because petitioner did not prove the dealership’s actions diminished the value of her car. Petitioner now appeals the circuit court’s

order.

The appellate standard of review for the granting of a motion for a directed verdict pursuant to Rule 50 of the West Virgin ia Rules of Civil Procedure is de novo. On appeal, this court, after co nsidering the evidence in the light most favorable to the nonmovant party, will sust ain the granting of a directed verdict when only one reasonable conclusion as to the verdict can be reached. But if

reasonable minds could differ as to th e importance and sufficiency of the evidence, a circuit court’s ruling granti ng a directed verdict will be reversed.

Syl. Pt. 3, Brannon v. Riffle , 197 W.Va. 97, 475 S.E.2d 97 (1996). “When the plaintiff’s evidence, considered in the light most favorable to him, fails to establish a prima facie right to recovery, the trial court should direct a verd ict in favor of the defendant.” Syl. Pt. 1, id. (citing Syl. Pt. 3, Roberts ex rel. Roberts v. Gale , 149 W.Va. 166, 139 S.E.2d 272 (1964)).

Petitioner first argues that she presented suffi cient corroborative evidence at trial to prove the existence of an express warranty. In s upport, petitioner cites to law regarding the creation of an express warranty, including West Virginia Code § 46-2-313( a) (stating seller’s express warranty created by any affirmati on of fact or promise made by se ller to buyer which relates to goods and becomes part of basis of bargain creates express warra nty that goods shall conform to affirmation or promise); and Reed v. Sears, Roebuck & Co. , 188 W.Va. 747, 754, 426 S.E.2d 539, 546 (1992) (stating plaintiff has no basis for breach of warranty claim unless plaintiff can demonstrate valid warranty created at time of sa le of goods). Moreover, pe titioner highlights that where a document is lost or destroyed, a pa rty may use secondary ev idence to prove its

existence. See Syl. Pt. 4 , Edgell v. Conaway , 24 W.Va. 747 (1884). Petiti oner further argues she proved the existence and relevant terms of the express warranty at trial through the introduction of the car’s window sticker, and through her te stimony and that of he r other witnesses who referenced the warranty. Accordingly, she concl udes that the circuit court erred in granting respondents’ motion for a directed verdict because she presented sufficient evidence to withstand

that motion.

With regard to petitioner’s argument that she proved the creation of an express warranty, we note that respondents do not di spute that petitioner’ s car was subject to an express warranty. Instead, respondents sought a directed verdict b ecause petitioner failed to prove respondents

breached any of the terms of the express warranty because petitioner failed to enter the express warranty into evidence at trial. The circuit court agreed, as do we. Without the admission of the written express warranty, it was legally impossible for petitioner to prove the elements of her

Lemon Law or breach of warranty claim.

3Pursuant to West Virg inia Code § 46A-6A-3,

(a) If a new motor vehi cle does not conform to all applicable express

warranties and the consumer reports the nonco nformity to the manufacturer, its agent or its authorized dealer during the term of the express warranties . . . , the manufacturer, its agent or its authorized dealer shall make the repairs necessary to conform the vehicle to the express warrant ies, notwithstanding the fact that the repairs are made after the e xpiration of the warranty term.

(b) If the manufacturer, its agents or its authorized dealer are unable to

conform the new motor vehicle to any applicable express warranty by repairing or correcting any defect or condition wh ich substantially impairs the use or

market value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall replace th e new motor vehicle with a comparable

new motor vehicle which does c onform to the warranties.

(Emphasis added.) Accordingly, to prove her Lemon Law claim, petitioner was required to show

that her car did not conform to th e terms of its express warranty.

Importantly, West Virginia Code § 46A-6A- 2(3) defines a “[m]anufacturer’s express warranty” and “warranty” as “the written warranty of the manufacturer of a new motor vehicle of its condition and fitness for use, including any te rms or conditions precedent to the enforcement of obligations under that warranty . . . .” (Emphasis added.) Thus, for petitioner to prevail in her lawsuit, she was required to prove her car did not conform to the “written” terms of the express warranty. However, petitioner failed to introduce the written express warranty at trial or to explain why she failed to do so. Petitioner also failed to testify to the warranty period; what the warranty covered during that period; or to the warranty’s conditions, exclusions, exceptions, or limitations. Finally, although peti tioner entered the car’s window sticker into evidence, it likewise did not satisfy the defini tion of “warranty” in West Virginia Code § 46A-6A-2(3).

With regard to petitioner’s “secondary eviden ce” claim regarding a “lost or destroyed” document, petitioner fails to point the Court to anywhere in the record on appeal where she argued the express warranty was lo st or destroyed. Nor does she explain why she did not enter into evidence at trial one of the three copies of the warranty provided to her by respondents prior to trial as “secondary eviden ce” of the warranty provided wh en she purchased the car. Consequently, we find the circuit court did not e rr in granting respondents’ motion for a directed verdict because petitioner failed to introduce the express warranty into evidence at trial and, therefore, failed to establish a prima facie right to recovery.

Petitioner next argues that the circuit cour t erred in directing a verdict for respondents on the ground that she did not offer sufficient eviden ce regarding the alleged substantial impairment or diminished value of her car. Petitioner argu es that she did prove substantial impairment/

diminished value when she introduced the car’s M onroney Sticker that showed the sticker price, and evidence showing car’s final sale price at auction; and when she testified to the multiple times she went without a car and that the dealership refused to accept the car as a trade-in due to

its mechanical condition.

4Under the Lemon Law, a consumer may rec over damages “[i]f the nonconformity results in substantial impairment to the use or market va lue of the new motor vehicle . . . .” W.Va. Code § 46A-6A-4(a) (in part). Thus, petitioner was required to presen t evidence of a substantial impairment of the use or ma rket value of the car. In McLaughlin v. Chrysler Corporation , 262 F. Supp. 2d 671 (N.D. W.Va. 2002), another “Lemon Law” case, the District C ourt for the Northern District of West Virginia held that the consumer must present obj ective evidence of “a defect or condition which substantially impa irs the use or market value of the motor vehicle to the

consumer. . . .” Id. at 679.

As we noted above, because petitioner did not enter the express warranty into evidence, she could not prove that her car did not conf orm to the terms of its express warranty. Consequently, she could not prove that any n on-conformities caused the damage to her car. Accordingly, we concur with the circuit court’ s finding that petitioner did not offer sufficient evidence regarding the alleged substantial impairment/diminishe d value of her car. On this record, we find no error.

For the foregoing reasons, we affirm the ci rcuit court’s April 24, 2017, order granting the respondents’ motion for a directed verdict.

Affirmed.

ISSUED: May 11, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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