Kapourales v. Summitt Corporation
Annotate this Case_____________
No. 20852
_____________
SAM G. KAPOURALES,
d/b/a KAPOURALES ENTERPRISES,
Plaintiff Below, Appellee
v.
SUMMIT CORPORATION,
Defendant Below, Appellant
___________________________________________________________
Appeal from the Circuit Court of Mingo County
Honorable Elliott E. Maynard, Judge
Case No. 88-C-6065
REVERSED
___________________________________________________________
Submitted: September 15, 1992
Filed: November 12, 1992
S. Douglas Adkins, Esq.
Mundy and Adkins
Huntington, West Virginia
Attorney for the Appellee
Johnnie E. Brown, Esq.
Christopher J. Heavens, Esq.
McQueen and Brown
Charleston, West Virginia
Attorneys for the Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "'The judgment of a trial court in setting aside a
verdict and awarding a new trial is entitled to peculiar weight and
its action in this respect will not be disturbed on appeal unless
plainly unwarranted.' Syllabus point 3, Young v. Duffield, 152
W. Va. 283, 162 S.E.2d 285 (1968). Syllabus Point 4, Kesner v.
Trenton, 158 W. Va. 997, 216 S.E.2d 880 (1975)." Syllabus Point 1,
Morris Associates, Inc. v. Priddy, 181 W.Va. 588, 383 S.E.2d 770
(1989).
2. "'"Questions of negligence, due care, proximate
cause and concurrent negligence present issues of fact for jury
determination when the evidence pertaining to such issues is
conflicting or where the facts, even though undisputed, are such
that reasonable men may draw different conclusions from them."
Syl. pt. 1, Ratlief v. Yokum [167 W. Va. 779], 280 S.E.2d 584
(W. Va. 1981), quoting, syl. pt. 5, Hatten v. Mason Realty Co., 148
W. Va. 380, 135 S.E.2d 236 (1964).' Syllabus Point 6, McAllister
v. Weirton Hosp. Co., 173 W. Va. 75, 312 S.E.2d 738 (1983). Syl.
Pt. 17, Anderson v. Moulder, 183 W. Va. 77, 394 S.E.2d 61 (1990)."
Syllabus Point 1, Waugh v. Traxler, 186 W. Va. 355, 412 S.E.2d 756
(1991).
3. "'A verdict will not be disturbed for want of a proper instruction, unless it was requested and refused . . . .'
Syl. pt. 5, Henry C. Werner Company v. Calhoun, 55 W. Va. 246, 46 S.E. 1024 (1904)." Syllabus Point 1, McAllister v. Weirton Hosp. Co., 173 W. Va. 75, 312 S.E.2d 738 (1983).
Per Curiam:
Summit Corporation appeals the order of the Circuit Court
of Mingo County, which, after a jury verdict in favor of Summit,
granted Sam Kapourales, d/b/a Kapourales Enterprises, a new trial.
On appeal, Summit argues that the circuit court erred in granting
a new trial because the jury verdict was not against the weight of
the evidence and the jury's failure to consider strict liability
was not an error because the jury instruction on strict liability
was withdrawn. Because the circuit court should not have granted
a new trial, we reverse and reinstate the jury verdict in favor of
Summit.
In September 1986, Summit, as part of the City of
Williamson's project to improve its water and sewer system, began
to install a lift station near the intersection of Third Avenue and
Dickerson Street. The lift station, a device used to collect and
pump the sewage to a treatment plant, was constructed approximately
thirty (30) feet from a building owned by Mr. Kapourales. The
building, which was purchased by Mr. Kapourales in July 1986, was
about 80 years old and was used mainly as a warehouse.
Mr. Kapourales alleges that shortly after the start of
the lift station's construction, cracks developed or worsened in
the building's walls closest to the lift station. Mr. Kapourales
filed suit alleging that the negligent construction of the lift
station disturbed the water table, causing the building's
foundation to shift, which in turn caused the walls to crack.
During the trial Mr. Kapourales and an employee testified
that in July 1986 they inspected the building before Mr. Kapourales
purchased it and except for a hairline crack at the top of the
building, there were no cracks in the outside walls. Both also
testified that shortly after the lift station's construction began,
cracks developed in certain places and worsened in others. Mr.
Kapourales also said that the ground was severely shaken by pile
driving that was part of the lift station's construction. John
Messerian, a civil engineer, testified for Mr. Kapourales that the
cracks were caused when the construction of the lift station
disturbed the water table under the building's foundation. Mr.
Messerian said that before starting construction Summit should have
tested the soil by core drilling to determine how the lift station
would affect the water table and the soil.
Summit maintained that the building's cracks pre-existed
the lift station's construction. Summit produced photographs
showing that paint from 1983, the last time the building was
painted, had dripped into the cracks and the paint extended inside
the cracks. One photograph showed a mortar bridge that had been
painted crossing the crack. An employee of Summit testified that
he had examined the building before the construction began and saw
the cracks. The employee also took before and after construction
photographs showing that the cracks remained unchanged. Larry
Nottingham, Ph. D., a civil engineer specializing in geo-technical
engineering, testified that the area's soil was not susceptible to
erosion caused by a shifting water table. Noting the paint inside
the building's cracks, Dr. Nottingham said that the cracks occurred
sometime before the building was painted in 1983. Based on his
soil testing and the paint in the cracks, Dr. Nottingham concluded
that the construction of the lift station did not cause the
building's cracks.
After the jury returned a verdict in favor of Summit, Mr.
Kapourales made a motion for a new trial. In considering the
motion for a new trial, the circuit court voiced his concerns that
"this is a strict liability case" and that an instruction on strict
liability was withdrawn because of "off-the-record arm twisting on
my [the circuit court's] part." Concluding that the verdict was
against the evidence and that an instruction on strict liability
should have been given, the circuit court ordered a new trial.
Summit then appealed to this Court.
I
An order of the circuit court awarding a new trial will
not be reversed unless it is clearly unwarranted. In Syllabus
Point 1, Morris Associates, Inc. v. Priddy, 181 W. Va. 588, 383 S.E.2d 770 (1989), we stated:
"'The judgment of a trial court in setting
aside a verdict and awarding a new trial is
entitled to peculiar weight and its action in
this respect will not be disturbed on appeal
unless plainly unwarranted.' Syllabus point
3, Young v. Duffield, 152 W. Va. 283, 162 S.E.2d 285 (1968)." Syllabus Point 4, Kesner
v. Trenton, 158 W. Va. 997, 216 S.E.2d 880
(1975).
Summit maintains that the order of the circuit court
granting a new trial was clearly unwarranted because there was
conflicting evidence concerning when the cracks developed and the
cause of the cracks. Summit argues that given the conflicting
evidence, the jury's resolution of the factual question should not
have been disturbed. Mr. Kapourales maintains that the order
granting him a new trial was justified because of the overwhelming
evidence showing that the building's cracks occurred as a result of
the lift station's construction.
Based on our review of the record, we find that there was
conflicting evidence concerning when the cracks developed and what
caused the cracks. We have repeatedly held that questions of
negligence, due care, proximate cause and concurrent negligence are
for jury determination when the evidence is conflicting or when the
facts, though undisputed, are such that reasonable men may draw
different conclusions from them. Syllabus Point 1, Waugh v.
Traxler, 186 W. Va. 355, 412 S.E.2d 756 (1991); Syllabus Point 3,
Dawson v. Woodson, 180 W. Va. 307, 376 S.E.2d 321 (1988); Syllabus
Point 1, Ratlief v. Yokum, 167 W. Va. 779, 280 S.E.2d 584 (1981);
Syllabus Point 5, Hatten v. Mason Realty Co., 148 W. Va. 380, 135 S.E.2d 236 (1964). See also Syllabus Point 6, McAllister v.
Weirton Hosp. Co., 173 W. Va. 75, 312 S.E.2d 738 (1983); Syllabus
Point 5, Robertson v. LeMaster, 171 W. Va. 607, 301 S.E.2d 563
(1983); Syllabus Point 3, Davis v. Sargent, 138 W. Va. 861, 78 S.E.2d 217 (1953).
After hearing the conflicting evidence, the jury returned
a verdict in favor of Summit and based on our review of the record,
we cannot say that the jury was clearly wrong. Although the
judgment of a circuit court setting aside a jury verdict is
entitled to peculiar weight, in the present case, the circuit
court's awarding of a new trial was clearly unwarranted because the
conflicting evidence presented a factual question that was
appropriate for resolution by the jury. We find that the jury's
resolution of a factual question was not against the weight of the
evidence and, therefore, the circuit court was not justified in
awarding a new trial on that basis.
II
Mr. Kapourales also argues that the circuit court's grant
of a new trial was justified because his requested instruction on
strict liability was refused. Mr. Kapourales alleges that the
record contains no information about his strict liability
instruction, because the circuit court, in a off-the-record
conversation, coerced him into withdrawing the instruction. After
the jury verdict, the circuit court indicated that he felt that
this was a strict liability case and that the circuit court had
contributed to the error by "off-the-record arm twisting" that
resulted in Mr. Kapourales' withdrawal of the instruction. In its
brief Summit maintains that it was not privy to these off-the-record conferences.
We have long held that "[a] verdict will not be disturbed
for want of a proper instruction, unless it was requested and
refused . . . ." Syllabus Point 5, in part, Henry C. Werner
Company v. Calhoun, 55 W. Va. 246, 46 S.E. 1024 (1904). In Accord
Syllabus Point 1, McAllister v. Weirton Hosp. Co., supra. In
McAllister, we refused to find an error in the circuit court's
failure to give an instruction on the theory of aggravation of an
existing injury because the plaintiff failed to request such an
instruction. We said, "It is not incumbent upon trial judges to
exercise clairvoyance in determining what instructions are desired,
particularly when tangential issues or theories of recovery are
involved." McAllister, id. at 78, 312 S.E.2d at 742. In Berkeley
Homes, Inc. v. Radosh, 172 W. Va. 683, 686, 310 S.E.2d 201, 203
(1983), we said:
It is well settled that if a party fails to
offer an instruction regarding a particular
point of law upon which he relies, he cannot
later complain of the absence of such an
instruction, there being no duty upon the
court to so instruct the jury except when the
error is so plain and the result so outrageous
that the trial court must intervene to do
substantial justice. (Citations omitted).
For the above stated reasons, we reverse the order of the
Circuit Court of Mingo County granting a new trial and reinstate
the jury verdict in favor of Summit Corporation.
Reversed.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.