Ronnie Frazier, by counsel Timothy P. Rosinsky, appeals the
December 16, 2016, and January 4, 2017, orders of the Circuit
Court of Kanawha County granting summary judgment to
Respondent General Motors, and denying petitioner's
motion for reconsideration. Respondent General Motors, by
counsel Michael J. Gregg, filed a response brief in support
of the court's orders.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
November 24, 2014, petitioner purchased a new 2015 Chevrolet
Equinox at an authorized dealership of Respondent General
Motors, LLC ("GM"). The purchase price of the
vehicle was $28, 975.29. While driving the vehicle,
petitioner discovered that the vehicle would vibrate while
the vehicle was idle and the windshield wipers were on the
highest setting. Between March and August of 2015, petitioner
took the vehicle to three different GM dealerships on four
occasions. At each dealership, a GM mechanic inspected the
vehicle and told petitioner that the vibration was a normal
characteristic of the vehicle, and not the result of a defect
in materials or workmanship covered under the
manufacturer's express warranty.
22, 2015, petitioner sent an undated certified letter to GM.
The letter notified GM of the alleged defective condition,
and offered GM an opportunity to repair the defect. GM
responded that the reported vibration was a normal
characteristic of the vehicle and not subject to the express
warranty. Petitioner subsequently filed suit against GM
alleging a violation of West Virginia Code § 46A-6A-1
through -9, or the "lemon law" statute, to which GM
filed an answer. In his complaint petitioner alleged that the
vehicle failed to conform to the terms of the
manufacturer's express warranty, and that the alleged
nonconformity constituted substantial impairment under the
lemon law statute. The circuit court entered a scheduling
order, and set trial in December of 2016.
a pre-trial conference on September 8, 2016, the circuit
court ordered the parties to submit a memorandum on the issue
of whether petitioner's complaint of a noticeable
vibration in the vehicle constituted a "defect"
under the lemon law statute. On October 19, 2016, petitioner
submitted a motion to amend the complaint. Petitioner sought
to amend his complaint to add a claim for breach of implied
warranty. On November 29, 2016, GM filed its motion for
summary judgment, and noticed the pre-trial hearing on the
motion for December 16, 2016. On December 13, 2016, the
circuit court informed the parties that it was cancelling the
pre-trial hearing, and would address all of the outstanding
motions in an order.
December 16, 2016, the circuit court denied petitioner's
motion to amend the complaint, and ruled that based upon the
record before it, there was no genuine issue of material fact
and GM was entitled to summary judgment as a matter of law.
Petitioner filed a motion for reconsideration on January 3,
2017. In its order denying the motion, the circuit court
recounted that petitioner failed to file a response to
respondent's motion for summary judgment until five days
after the scheduled pre-trial hearing. The circuit court
further noted that the petitioner's counsel provided an
e-mail address that was deleted or invalid during the course
of the proceedings. Finally, the circuit court determined
that even if petitioner's response to the motion were
timely filed, it remained unconvinced that the vibration
caused by the windshields satisfied the requirements of
"nonconformity" or of "substantial impairment
under West Virginia law. Petitioner now appeals the December
16, 2016, order of the Circuit Court of Kanawha County
granting summary judgment to respondent, and the January 4,
2017, order denying his motion for reconsideration.
circuit court's entry of summary judgment is reviewed
de novo." Syl. Pt. 1, Painter v.
Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Further,
"[a] motion for summary judgment should be granted only
when it is clear that there is no genuine issue of fact to be
tried and inquiry concerning the facts is not desirable to
clarify the application of the law." Syl. Pt. 2,
id. (internal citations omitted).
first assignment of error, petitioner asserts that although
West Virginia Code § 46A-6A-2 does not define the term
"defect", Merriam Webster's dictionary defines
"defect" as "a physical problem that causes
something to be less valuable, effective, [and]
healthy." Petitioner argues that there is a genuine
issue regarding whether the complained of vibration
substantially impaired or affected the use and or value of
the vehicle, and that the circuit court erred in finding
otherwise. Petitioner complains that, although he has been
told by three different GM dealers that the vibration is not
a defect, he is now required to disclose this condition upon
selling his vehicle, and that this disclosure will affect the
market value of the vehicle.
[s]ummary judgment is appropriate where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, such as where the nonmoving party has failed
to make a sufficient showing on an essential element of the
case that it has the burden to prove.
Syl. Pt. 4, Painter. Here, the circuit court found
that a threshold issue petitioner must demonstrate under West
Virginia Code § 46A-6A-1 through -9, or the "lemon
law" is that a nonconformity, as determined by the
express warranty, is present in the vehicle. The circuit
court found that GM"s written limited warranty, is an
express warranty under the lemon law statute, and that it
covers only defects in "materials and workmanship."
The circuit court held that the warranty specifically did not
cover slight noise, vibrations, or other normal
characteristics. As a result, the circuit court found that
the condition was not a defect in factory materials or
workmanship, and that petitioner did not provide any
technical or expert evidence to dispute this finding.
circuit court also found that, even assuming the condition
constituted a nonconformity, petitioner was unable to show
that the nonconformity substantially impaired the use or
market value of the motor vehicle. The circuit court cited
petitioner's sworn testimony, wherein he testified that
he purchased the vehicle for ordinary transportation, has
used the vehicle for ordinary transportation since he
received it, and that continues to drive the vehicle. The
circuit court noted that petitioner testified that the
vehicle never stalled while driving; never failed to start;
and never broke down, leaving petitioner stranded. While
petitioner complained of vibration when the windshield wipers
were on their highest setting, the circuit court noted
further that the windshield wipers always worked and
petitioner was always able to drive when the windshield
wipers were on. Based upon our review of the record before
us, we find no error.
further find that the circuit court did not err in denying
petitioner's motion to amend the complaint. Petitioner
sought to amend his complaint to add a new claim ...