                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Ronnie Frazier,
Plaintiff Below, Petitioner                                                       FILED
                                                                              January 5, 2018
vs) No. 17-0108 (Kanawha County 15-C-1584)                                   EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
General Motors,

Defendant Below, Respondent



                              MEMORANDUM DECISION

        Petitioner 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.

        This 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.

        On 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.

         On July 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.

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        Following 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.1

        On 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.

        “A 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).

        In his 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.

       We have held that,

       [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.

       1
          Petitioner did not file a response to respondent’s motion for summary judgment until
after the circuit court issued its order granting summary judgment to GM.
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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.

        The 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.

       We 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 for breach of implied
warranty. We have held that,

       [a] trial court is vested with a sound discretion in granting or refusing leave to
       amend pleadings in civil actions. Leave to amend should be freely given when
       justice so requires, but the action of a trial court in refusing to grant leave to
       amend a pleading will not be regarded as reversible error in the absence of a
       showing of an abuse of the trial court’s discretion in ruling upon a motion for
       leave to amend.

Syl. Pt. 5, Poling v. Belington Bank, Inc., 207 W. Va. 145, 529 S.E.2d 856 (1999) (citation
omitted). The circuit court found that a warranty of merchantability is “implied in any contract
for the sale of goods where the seller is a merchant with respect to goods of that kind and assures
the buyer that, among other things, the goods are fit for the ordinary purposes for which they are
used,” and that a vehicle is “merchantable” if it is fit for basic transportation. Mountaineer
Contractors, Inc. v. Mountain State Mack, Inc., 165 W. Va. 292, 295-96, 268 S.E.2d 886, 889
(1979). See also West Virginia Code § 46-2-314(2)(c) (“Goods to be merchantable must be at
least such as are fit for the ordinary purposes for which such goods are used[.]”) Consequently,
the circuit court reasoned that vehicle was safe for transportation and merchantable, as petitioner
had accumulated approximately 18,000 miles on the vehicle “without incident.” Accordingly, we
find the circuit court did not abuse its discretion in denying petitioner’s motion to amend the
complaint.

       Petitioner cites a second assignment of error alleging that the circuit court erred in
denying his motion for reconsideration. However, petitioner’s “argument” contains neither

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citations to the record, nor does it cite to any authority regarding his position, as is required by
Rule 10 of the West Virginia Rules of Appellate Procedure. “Although we liberally construe
briefs in determining issues presented for review, issues which are . . . mentioned only in passing
but are not supported with pertinent authority, are not considered on appeal.” State v. LaRock,
196 W. Va. 294, 302, 470 S.E.2d 613, 622 (1996). Further,

       [p]ursuant to Rule 10(j), failure to file a complaint brief “may result in the
       Supreme Court refusing to consider the case, denying argument to the derelict
       party, dismissing the case from the docket, or imposing such other sanctions as
       the Court may deem appropriate.”

Administrative Order, Re: Filings that Do Not Comply with the Rules of Appellate Procedure
(2012). As a result, we decline to consider petitioner’s arguments in this regard as the same were
not properly presented to this Court.

       For the foregoing reasons, we affirm.


                                                                                         Affirmed.

ISSUED: January 5, 2018

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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