Joseph M. and Susan Closson v. Mountaineer Grading Co., etc.
15-0820
| W. Va. | Nov 10, 2016Background
- Joseph and Susan Closson (via their LLC) owned 10 acres used under contract by Mountaineer Grading for waste fill in a highway project; Mountaineer contracted Thrasher Engineering to test/certify the fill.
- Petitioners alleged the upper five feet of fill did not meet contract specs; Thrasher provided a certification letter in 2005.
- Petitioners sued Mountaineer for breach of contract (2007) and later amended to add Thrasher for negligence and as a third‑party beneficiary of Mountaineer’s contract (2008).
- The circuit court dismissed contract claims against Thrasher (no privity) and limited damage recovery to diminution in property value where remediation costs would exceed property value.
- At trial Mountaineer did not appear; the jury awarded $126,000 against Mountaineer and $25,000 against Thrasher, but found petitioners 49% comparatively negligent; judgment was molded and reduced Thrasher’s liability to $12,750.
- Petitioners’ motion for a new trial (arguing entitlement to third‑party contract recovery, remediation damages, and lack of comparative negligence) was denied; petitioners appealed and the Supreme Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioners qualify as third‑party beneficiaries of the contract between Mountaineer and Thrasher | Closson: West Virginia Code § 55‑8‑12 and the statute’s language allow recovery where a promise benefits multiple third parties; they need not be the sole beneficiary | Thrasher/Court: The contract was not made for Clossons’ sole benefit nor "made jointly with others" by Clossons; no contractual privity to create an independent contract claim | Held: No third‑party beneficiary status; circuit court correctly dismissed contract claim against Thrasher |
| Proper measure of damages for injury to realty when repair costs exceed property value | Closson: Should recover full remediation costs even if they exceed diminution in market value (especially asserting personal/retirement use) | Thrasher/Court: Jarrett governs; where repair cost exceeds market value, measure is diminution in value unless Jarrett/Brooks conditions for residential personal use apply | Held: Court properly limited damages to diminution in property value under Jarrett; petitioners did not show applicability of Brooks exception |
| Whether the jury’s finding of petitioners’ comparative negligence should be set aside | Closson: Argued they owed no duty to Thrasher and thus were not negligent (conclusory) | Thrasher/Court: Jury verdict stands; petitioners failed to cite record or argue specifics to overcome verdict | Held: Court declined to consider the underdeveloped assignment of error and affirmed jury’s comparative negligence finding |
| Whether trial court abused discretion in denying a new trial on the asserted grounds | Closson: Trial rulings (no contract claim, damage limitation, negligence finding) warranted a new trial | Thrasher/Court: No reversible error; petitioners’ appellate brief failed to adequately support some claims with record citations | Held: No abuse of discretion; denial of new trial affirmed |
Key Cases Cited
- Eastern Steel Constructors v. City of Salem, 209 W. Va. 392, 549 S.E.2d 266 (2001) (discusses third‑party beneficiary requirements under West Virginia law)
- Robinson v. Cabell Huntington Hosp., 201 W. Va. 455, 498 S.E.2d 27 (1997) (third‑party beneficiary principles)
- Jarrett v. E. L. Harper & Son, Inc., 160 W. Va. 399, 235 S.E.2d 362 (1977) (measure of damages for injured realty; repair costs vs. diminution in value)
- Brooks v. City of Huntington, 234 W. Va. 607, 768 S.E.2d 97 (2014) (modified Jarrett for residential property used personally; repair costs may be recoverable even if exceeding market value)
- Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995) (standards for reviewing denial of new trial)
- Sanders v. Georgia–Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976) (deference to trial court on new trial rulings)