Taylor v. Elkins Home Show, Inc
In Taylor v. Elkins Home Show, Inc., W. Va. , S.E.2d (No. 28891, Oct. 30, 2001), the plaintiff had won a jury verdict on August 18, 1999, and the defendant (Elkins Home Show, Inc.) filed a renewed motion for judgment as a matter of law.
On October, 18, 1999, the circuit court denied that motion, but instead granted the defendant a new trial. On May 24, 2000, before the new trial could take place, the defendant made another motion for judgment as a matter of law, which the court granted.
The plaintiffs appealed and complained that the lower court had no jurisdiction to consider the final motion. We affirmed and explained:
"At the time Elkins Home Show made its May 24, 2000 motion, there was no standing judgment order. Accepting that the September 3, 1999 Jury Verdict order was the entry of judgment, the circuit court subsequently granted a new trial. "An order granting a new trial is interlocutory and destroys the finality of the judgment." Coleman v. Sopher, 201 W. Va. 588, 605, 499 S.E.2d 592, 609 (1997), quoting 12 James Wm. Moore et al., Moore's Federal Practice, 59.431 (3d ed. 1997) . Because there was no final judgment at the time Elkins Home Show filed its second renewed motion, the motion could not have been untimely."
While the Court did describe the grant of a new trial as leaving the plaintiffs without a "final judgment" the Court did not address whether or not that order was appealable.