No. 28891 Delmar Taylor and Helen Taylor v.
Elkins Home Show, Inc., a West Virginia Corporation; United Contracting Corporation,
a West Virginia Corporation
McGraw, Chief Justice, dissenting:
I
disagree with the majority opinion on two main points. I see no reason why
the Court should not extend the reasoning of Fayette County National Bank
v. Lilly, 199 W. Va. 349, 484 S.E.2d 232 (1997), to final orders granting
judgment as a matter of law under Rule 50. Lilly requires
that orders granting summary
judgment “set
out factual findings sufficient to permit meaningful appellate review.”
A well reasoned order by the lower
court is just as helpful in the context of appellate review of a ruling on a
motion for judgment as a matter of law, and should therefore be required. Second, I have even greater reservations about the
Court's rationalization for the lower court's award of such judgment in this
case. Specifically, in this case there was evidence of defects in the trailer's
foundation, as well as evidence concerning the cost of replacing the foundation.
The majority opinion suggests that the plaintiffs had a burden to show that
replacement, rather than a less costly repair, was necessary to correct the
defects. The jury could have easily inferred the necessity of replacing the
foundation from the evidence presented.
This Court should have held
that the lower court abused its discretion in failing to award a new trial,
rather than affirming the lower court's decision. In an analogous case concerning breach of warranty,
the Eleventh Circuit Court of Appeals held that the trial court should have
remedied an insufficiency of proof by granting a new trial rather than ordering
judgment for the seller, where the defect in proof was possibly remediable
upon retrial. See Network Publications, Inc. v. Ellis Graphics Corp.,
959 F.2d 212 (11th Cir. 1992); see also 9A Wright & Miller, Federal
Practice and Procedure §2538, at 357 (2d ed. 1995). This case
would have benefitted, in my opinion, from a similar approach.