                            STATE OF WEST VIRGINIA 

                          SUPREME COURT OF APPEALS 



Monica S. Hanson,
Plaintiff Below, Petitioner                                                       FILED
                                                                                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 Brian R. Blickenstaff, appeals the April 24,
2017, order of the Circuit Court of Kanawha County that granted Respondents Suzuki Motor of
America, Inc. and Charleston Suzuki, LLC’s motion for a directed verdict in petitioner’s action
against Suzuki Motor of America, Inc. for its alleged violation of her car’s express warranty and
the “Lemon Law,” West Virginia Code §§ 46A-6A-l to -9; and her action against Charleston
Suzuki, LLC, for its alleged violation of her car’s implied warranty. Respondents, by counsel
Elizabeth Duncan Brewer, filed a response in support 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 warranty 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 decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, 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 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. Thereafter, petitioner took the car to the dealership for service for
mechanical failures on March 6, 2013 (mileage 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 petitioner. On March 18, 2014 (mileage 39,046), petitioner
again brought the car to the dealership for service 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. Respondents also claim that “according to available


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records,” petitioner drove 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 brought this action against respondents seeking, among
other things, revocation of acceptance 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 individual 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 express warranty and violation of the Lemon Law, and petitioner’s
claim against the dealership for breach of implied warranty.

        Trial commenced on April 3, 2017. During petitioner’s case-in-chief, she testified
generally about the car’s express warranty; however, she did not introduce a written copy of the
warranty into evidence. Instead, petitioner introduced the “Monroney Sticker” 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 breakdown. With regard to petitioner’s claim of diminished value or
“substantial impairment,” she testified that the dealership refused to accept the car as a trade-in
for a replacement vehicle. Petitioner 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 referenced the car’s express
warranty and the dealership’s denial of warranty coverage after the car’s last breakdown.

        Following petitioner’s case-in chief, respondents moved for a directed verdict under Rule
50 of the West Virginia Rules of Civil Procedure. 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, respondents’ 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, petitioner could not meet her burden of proof that
respondents breached any of the terms found in the express warranty. Respondents also argued
that petitioner presented no evidence proving a defect in the car that directly and proximately
caused her alleged damages. Finally, respondents argued that even if petitioner 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 specifications. Finally, with
regard to petitioner’s implied warranty claim against the dealership, respondents argued that
petitioner presented no evidence showing that the car was not fit for its ordinary purpose.

         Petitioner’s counsel responded that “[petitioner] testified during her direct examination
that there was a warranty that came with the vehicle, and . . . that plenty of the witnesses have
testified that there was a warranty . . . .” Petitioner’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.”

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        The circuit court granted respondents’ motion for 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 introduce into evidence the express
warranty or to show how the manufacturer’s alleged warranty breaches diminished the value of
petitioner’s car. The circuit court likewise granted the dealership’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 Virginia Rules of Civil Procedure
       is de novo. On appeal, this court, after considering the evidence in the light most
       favorable to the nonmovant party, will sustain 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 the importance and sufficiency of the
       evidence, a circuit court’s ruling granting 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 verdict 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 sufficient corroborative evidence at trial to prove
the existence of an express warranty. In support, 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 affirmation of fact or promise made by seller to buyer which relates to
goods and becomes part of basis of bargain creates express warranty 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 sale of goods). Moreover, petitioner highlights that
where a document is lost or destroyed, a party may use secondary evidence to prove its
existence. See Syl. Pt. 4, Edgell v. Conaway, 24 W.Va. 747 (1884). Petitioner 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 testimony and that of her other witnesses who
referenced the warranty. Accordingly, she concludes 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 dispute that petitioner’s car was subject to an express warranty.
Instead, respondents sought a directed verdict because 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.



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       Pursuant to West Virginia Code § 46A-6A-3,

               (a) If a new motor vehicle does not conform to all applicable express
       warranties and the consumer reports the nonconformity 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 warranties, notwithstanding the fact that the
       repairs are made after the expiration 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 which substantially impairs the use or
       market value of the motor vehicle to the consumer after a reasonable number of
       attempts, the manufacturer shall replace the new motor vehicle with a comparable
       new motor vehicle which does conform to the warranties.

(Emphasis added.) Accordingly, to prove her Lemon Law claim, petitioner was required to show
that her car did not conform to the 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 terms 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 petitioner entered the car’s window sticker into evidence, it
likewise did not satisfy the definition of “warranty” in West Virginia Code § 46A-6A-2(3).

        With regard to petitioner’s “secondary evidence” 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 lost 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 evidence” of the warranty provided when she purchased the car.
Consequently, we find the circuit court did not err 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 court erred in directing a verdict for respondents on
the ground that she did not offer sufficient evidence regarding the alleged substantial impairment
or diminished value of her car. Petitioner argues that she did prove substantial impairment/
diminished value when she introduced the car’s Monroney 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.

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        Under the Lemon Law, a consumer may recover damages “[i]f the nonconformity results
in substantial impairment to the use or market value of the new motor vehicle . . . .” W.Va. Code
§ 46A-6A-4(a) (in part). Thus, petitioner was required to present evidence of a substantial
impairment of the use or market 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 Court for the Northern
District of West Virginia held that the consumer must present objective evidence of “a defect or
condition which substantially impairs 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 conform to the terms of its express warranty.
Consequently, she could not prove that any non-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/diminished value of her car. On this
record, we find no error.

       For the foregoing reasons, we affirm the circuit 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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