West Virginia Supreme Court

Powderidge Unit Owners Association, Plaintiff Below, Appellant v. Highland Properties, Ltd.; Virginia Homes…

June 14, 1996474 S.E.2d 872

Summary

The Supreme Court of Appeals of West Virginia affirmed summary judgment for the developer, manufacturer, and insurer in a condominium construction-defect negligence action, holding the 1991 suit was barred by the two-year statute of limitations because the association knew or by reasonable diligence should have known of the water-infiltration injury and its source by 1984 and offered no admissible evidence supporting the discovery exception. The court held summary judgment was not precipitously granted: the plaintiff received roughly sixteen months of discovery and never invoked Rule 56(f), for which the court announced a four-part substantial-compliance test for informal requests. The court also held the circuit court did not abuse its discretion in denying the plaintiff's motion for reconsideration, which, filed more than ten days after judgment, had to be treated as a Rule 60(b) motion and failed both Rule 60(b) and Rule 56(e) because the supporting Bell affidavit was never tendered to the circuit court.

Holding

  • Whether the plaintiff's negligence action filed October 11, 1991 was barred by the two-year statute of limitations despite its allegation that it did not discover the defective construction until 1990.. Summary judgment on limitations grounds was proper: the defendants made a sufficient preliminary showing that the two-year period had expired, and the plaintiff, which bore the burden of bringing itself within the discovery exception, offered no evidence of any consequence on that issue and filed no fact-specific affidavit designating specific facts showing a genuine issue for trial.
  • Whether summary judgment was precipitously granted before the plaintiff had adequate opportunity to conduct discovery on the statute of limitations issue.. Summary judgment was not precipitously granted: the plaintiff requested and received a continuance for discovery that ultimately spanned roughly sixteen months, and it never invoked Rule 56(f) or made any informal request satisfying the four requirements the court announces; the circuit court therefore did not err or abuse its discretion in ruling without further discovery.
  • Whether the circuit court abused its discretion in denying the plaintiff's motion for reconsideration that relied on the Bell affidavit.. The denial was proper: filed twenty-six days after the summary judgment order, the motion could only be treated under Rule 60(b); it failed because it sought to relitigate legal issues and introduce evidence available but not offered at the original summary judgment proceeding, and it could not cure the Rule 56(e) defect because the Bell affidavit was never tendered to the circuit court, leaving the motion and memorandum an attorney's argument lacking evidentiary support.

Docket 23105

Cited authorities

  • Rule 56 of the West Virginia Rules of Civil Procedure
  • W.Va. R.Civ.P. 56(c)
  • Rule 56(c)
  • Rule 56(f) of the West Virginia Rules of Civil Procedure
  • Rule 56(f)
  • Rule 56(f)
  • Rule 56(f)
  • Rule 56(f)

Cited by

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