Maynard v. Adkins
Annotate this Case
January 1995 Term
___________
No. 22529
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TROY MAYNARD,
Plaintiff Below, Appellant
v.
KENNETH ADKINS,
Defendant Below, Appellee
___________________________________________________
Appeal from the Circuit Court of Mingo County
Honorable Elliott E. Maynard, Judge
Civil Action No. 87-C-5383
REVERSED AND REMANDED
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Submitted: January 17, 1995
Filed: March 27, 1995
C. Walker Ferguson, IV
Ferguson & Ferguson
Wayne, West Virginia
Attorney for the Appellant
Charles E. Hurt
Charleston, West Virginia
Attorney for the Appellee
JUSTICE McHUGH delivered the Opinion of the Court.
Justice Brotherton did not participate.
Judge Fox sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "Where the trial court improperly sets aside a
verdict of a jury, such verdict will be reinstated by this Court
and judgment rendered thereon." Syl. pt. 4, Bronson v. Riffe, 148
W. Va. 362, 135 S.E.2d 244 (1964).
2. "The question of whether a new trial should be
granted by reason [of] counsel's possible violation of a Rule of
the West Virginia Code of Professional Responsibility rests in the
discretion of the trial court, and in the absence of a clear abuse
of discretion, the trial court's decision on such a question will
not be reversed on appeal." Syl. pt. 5, First National Bank in
Marlinton v. Blackhurst, 176 W. Va. 472, 345 S.E.2d 567 (1986).
3. Where an attorney, as co-counsel, represented a
plaintiff in a personal injury action and, in an unrelated matter,
represented the personal representative of an estate of which the
defendant was a beneficiary, the trial court abused its discretion
in granting a new trial for the defendant upon those circumstances,
where (1) the defendant attended neither the trial nor any pre-
trial proceedings with regard to the personal injury action and (2)
the record revealed no discussions or meetings between the attorney
and the defendant with regard to either the personal injury action
or the estate matter.
McHugh, Justice:
This action is before this Court upon an appeal from the
final order of the Circuit Court of Mingo County, West Virginia,
entered on December 23, 1993, granting a new trial because of an
alleged conflict of interest concerning one of the attorneys. For
the reasons set forth below, this Court is of the opinion that the
granting of a new trial was error, and, accordingly, the final
order is reversed.
I
On May 18, 1985, an accident occurred on U.S. Route 52 in
Mingo County, in which Kenneth Adkins, the appellee, drove a pickup
truck off the highway in attempting to avoid a collision with an
oncoming vehicle. The pickup truck wrecked injuring Adkins'
passenger, Troy Maynard, the appellant.
In 1987, an action was instituted by Troy Maynard against
Kenneth Adkins concerning the accident. On October 19, 1992, a
Mingo County jury returned a verdict against Adkins for $80,000.
Kenneth Adkins did not attend the trial. In March 1993, an amended
motion for a new trial was filed by Adkins in which it was asserted
for the first time that Donald R. Jarrell, who with C. Walker
Ferguson, IV, represented Troy Maynard, had a conflict of interest.
The trial judge conducted a hearing upon the motion and granted a
new trial.
Specifically, Kenneth Adkins was the administrator and
one of the beneficiaries of the estate of his deceased mother, Anna
Faye Maynard Queen. Subsequently, Kenneth Adkins was replaced as administrator by his brother. Thereafter, Donald R. Jarrell became
the attorney for the brother, as administrator. The trial judge
determined that it was improper for Donald R. Jarrell to litigate
this personal injury action against Kenneth Adkins while Donald R.
Jarrell represented the administrator of an estate of which Kenneth
Adkins was a beneficiary.
The record demonstrates, as stated above, that Kenneth
Adkins did not attend the October, 1992 trial. Nor did he appear
at any proceeding or deposition. The record further demonstrates
that, during the period of the alleged conflict of interest, no
communication of any kind between Kenneth Adkins and Donald R.
Jarrell occurred, except for the mailing by Jarrell of a check to
Kenneth Adkins concerning a share of proceeds from the Queen
estate. According to the response to the petition for appeal,
Kenneth Adkins received that check after the trial of this action.
Kenneth Adkins stated that he did not know about Donald R.
Jarrell's participation in this action until after the trial and
that, until that time, his own attorney was unaware of any
connection between Kenneth Adkins and Donald R. Jarrell.
In addition to the granting of a new trial upon the above
circumstances, the Circuit Court of Mingo County also granted the
motion of Donald R. Jarrell to withdraw as counsel in this action,
pending resolution of the conflict of interest issue by this Court.
It should be noted that, in 1992, Kenneth Adkins filed an
ethics complaint, No. 92-429, with the West Virginia State Bar
concerning Donald R. Jarrell's endeavors with regard to the Queen estate. That complaint was found by the Committee on Legal Ethics
of the State Bar to be without merit. In so ruling, the Committee
noted that, inasmuch as Donald R. Jarrell's representation was on
behalf of the administrator of the Queen estate, Kenneth Adkins had
"never been represented" by Jarrell. In 1994, the Committee's
ruling was affirmed by the new West Virginia Lawyer Disciplinary
Board. Relying upon a recent ethics opinion of the American Bar
Association (ABA Standing Comm. on Ethics and Professional
Responsibility, Formal Op. 94-380 (May 9, 1994)), the Board
concluded that, as attorney for the administrator of the Queen
estate, Donald R. Jarrell "did not represent Kenneth Adkins."
II
It must be kept in mind that the action before us is not
an ethics proceeding. Although issues concerning legal ethics are
intertwined herein, this action is an appeal from the granting of
a new trial under W. Va. R. Civ. P. 59. Specifically, Rule 59(a)
provides that a new trial may be granted "in an action in which
there has been a trial by jury, for any of the reasons for which
new trials have heretofore been granted in actions at law[.]"
Here, Kenneth Adkins was awarded a new trial, and as this
Court recognized in syllabus point 4 of Young v. Duffield, 152
W. Va. 283, 162 S.E.2d 285 (1968): "An appellate court is more
disposed to affirm the action of a trial court in setting aside a
verdict and granting a new trial than when such action results in
a final judgment denying a new trial." We recently cited the Young
case with approval in In re: West Virginia Public Building Asbestos Litigation, ___ W. Va. ___, ____ S.E.2d ___ (1994), where
we stated: "A trial judge's decision to award a new trial is not
subject to appellate review unless the trial judge abuses his or
her discretion." In the Asbestos Litigation case, we clarified
this Court's standard of review with regard to the granting of a
new trial, and we observed that the role of an appellate court "in
reviewing a trial judge's determination that a new trial should be
granted is very limited." See also syl. pts. 4 and 5, Kesner v.
Trenton, 158 W. Va. 997, 216 S.E.2d 880 (1975); syl. pt. 1, Star
Piano v. Brockmeyer, 78 W. Va. 780, 90 S.E. 338 (1916).
A factor to be considered in the granting of a new trial
is whether "substantial justice" would be effectuated. W. Va. R.
Civ. P. 61. As Justice Cleckley, in his concurring opinion in the
Asbestos Litigation case, stated: "We merely are upholding the
right of a trial court to grant a new trial when it believes that
substantial justice has not been done on the theory that it is an
exercise of the trial court's inherent power."
Of course, consistent with Asbestos Litigation, on the
other hand, is the general principle that the judgment of a trial
court in awarding a new trial should be reversed if it is "clearly
wrong" or if a consideration of the evidence shows that the case
was a proper one for jury determination. Sargent v. Malcomb, 150
W. Va. 393, 395, 146 S.E.2d 561, 563 (1966). As stated in syllabus
point 4 of Bronson v. Riffe, 148 W. Va. 362, 135 S.E.2d 244 (1964):
"Where the trial court improperly sets aside a verdict of a jury, such verdict will be reinstated by this Court and judgment rendered
thereon."
In First National Bank in Marlinton v. Blackhurst, 176
W. Va. 472, 345 S.E.2d 567 (1986), an attorney represented three
defendants in a civil action to recover upon a debt. One of the
defendants asserted that the joint representation deprived her of
a fair trial and constituted an ethics violation. This Court
affirmed the trial judge's rejection of that assertion, and as we
recognized in syllabus point 5:
The question of whether a new trial
should be granted by reason [of] counsel's
possible violation of a Rule of the West
Virginia Code of Professional Responsibility
rests in the discretion of the trial court,
and in the absence of a clear abuse of
discretion, the trial court's decision on such
a question will not be reversed on appeal.
Nevertheless, we noted in First National Bank in
Marlinton that "counsel's misconduct must be highly egregious
before another innocent litigant will be put to the expense of a
new trial." 176 W. Va. at 478, 345 S.E.2d at 574.
First National Bank in Marlinton in its "abuse of
discretion" context, comports with Asbestos Litigation and
generally with various earlier decisions of this Court concerning
the awarding of a new trial. As syllabus point 7 of Browder v.
Webster County Court, 145 W. Va. 696, 116 S.E.2d 867 (1960),
states: "The action of the trial court in setting aside a verdict
for the plaintiff and awarding the defendant a new trial will be
reversed by this Court where it appears that the case, as a whole,
was fairly tried and no error prejudicial to the defendant was committed therein." See also syl. pt. 6, Gault v. Monongahela
Power, 159 W. Va. 318, 223 S.E.2d 421 (1976); syl. pt. 6, Western
Auto Supply v. Dillard, 153 W. Va. 678, 172 S.E.2d 388 (1970); syl.
pt. 7, Brace v. Salem Cold Storage, 146 W. Va. 180, 118 S.E.2d 799
(1961); syl. pt. 2, City of McMechen v. Fidelity and Casualty, 145
W. Va. 660, 116 S.E.2d 388 (1960); syl., Ward v. Raleigh County
Park Board, 143 W. Va. 931, 105 S.E.2d 881 (1958); syl. pt. 3, Ware
v. Hays, 119 W. Va. 585, 195 S.E. 265 (1938).
In granting Kenneth Adkins a new trial, the trial judge
relied upon Committee on Legal Ethics v. Frame, 189 W. Va. 641, 433 S.E.2d 579 (1993). The Frame case discussed Rule 1.7(a) of the
West Virginia Rules of Professional Conduct which provides that a
lawyer "shall not represent a client if the representation of that
client will be directly adverse to another client, unless: (1) the
lawyer reasonably believes the representation will not adversely
affect the relationship with the other client; and (2) each client
consents after consultation." In Frame, we affirmed the finding of
the Committee on Legal Ethics that an attorney violated Rule 1.7(a)
in circumstances where the attorney represented a client in her
divorce action while litigating a personal injury action against a
corporation owned by that client. Although this Court, in Frame,
stated that "[t]o establish an ethical violation under Rule 1.7(a),
one does not have to prove prejudicial impact[,]" 189 W. Va. at
644, 433 S.E.2d at 582, we also looked at the following comment to
that Rule:
Relevant factors in determining whether there
is potential for adverse effect include the duration and intimacy of the lawyer's
relationship with the client or clients
involved, the functions being performed by the
lawyer, the likelihood that actual conflict
will arise and the likely prejudice to the
client from the conflict if it does arise.
The question is often one of proximity and
degree.
Unlike Frame, however, this action did not come to us as
an ethics proceeding. Rather, as in First National Bank in
Marlinton, supra, we are asked to consider whether the
circumstances herein warrant a new trial and, in particular,
whether an "innocent litigant will be put to the expense of a new
trial." Thus, the principles enunciated in Asbestos Litigation,
and in other cases concerning the granting of new trials, are more
relevant than the analysis in Frame. Moreover, prejudice, in the
legal ethics context rather than in the evidentiary context, is a
factor to be considered.
Contrary to the facts in Frame concerning the divorce
client, the contact in this action between Kenneth Adkins and
Donald R. Jarrell was de minimis with regard to the Queen estate
and nonexistent with regard to this action. As to this action,
Kenneth Adkins did not appear at the trial, nor at any proceeding
or deposition. Moreover, the petition indicates that Donald R.
Jarrell did not become involved in this litigation until 1989, two
years after the filing of the complaint.
This Court is aware of the following additional comment
to Rule 1.7 of the West Virginia Rules of Professional Conduct:
"In estate administration the identity of the client may be unclear
under the law of a particular jurisdiction. Under one view, the client is the fiduciary; under another view the client is the
estate or trust, including its beneficiaries. The lawyer should
make clear the relationship to the parties involved." In this
action, both the Committee on Legal Ethics and the Lawyer
Disciplinary Board determined that, with regard to the Queen
estate, Donald R. Jarrell represented the administrator and not
Kenneth Adkins. The decision of the Board was based upon ABA
Standing Comm. on Ethics and Professional Responsibility, Formal
Op. 94-380 (May 9, 1994), which states: "The majority of
jurisdictions consider that a lawyer who represents a fiduciary
does not also represent the beneficiaries[.]" See also Trask v.
Butler, 123 Wash. 2d 835, 872 P.2d 1080 (1994); Succession of
Wallace, 574 So. 2d 348, 357 (La. 1991).
Findings and conclusions of the Committee on Legal Ethics
and the Lawyer Disciplinary Board are, of course, not binding upon
this Court. Syl. pt. 3, Committee on Legal Ethics v. Blair, 174
W. Va. 494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028
(1985). Nevertheless, a review of the record in this action
suggests no factual basis upon which to conclude that Donald R.
Jarrell represented anyone other than the administrator with regard
to the Queen estate, and there was no connection between the Queen
estate and this action. In so concluding, however, we recognize
the limited circumstances of this action, and we, therefore,
decline to address the complex issues concerning the scope of legal
representation in estate matters. We leave a more extended
discussion of the law in that area for another day.
It was error, therefore, for the Circuit Court of Mingo
County to grant Kenneth Adkins a new trial upon the conflict of
interest issue. Specifically, we hold that where an attorney, as
co-counsel, represented a plaintiff in a personal injury action
and, in an unrelated matter, represented the personal
representative of an estate of which the defendant was a
beneficiary, the trial court abused its discretion in granting a
new trial for the defendant upon those circumstances, where (1) the
defendant attended neither the trial nor any pre-trial proceedings
with regard to the personal injury action and (2) the record
revealed no discussions or meetings between the attorney and the
defendant with regard to either the personal injury action or the
estate matter.
In his amended motion for a new trial, Kenneth Adkins
raised additional issues which he also asserts in this appeal, i.e.
(1) that the past medical expenses of Troy Maynard were not proven;
(2) that certain instructions given on behalf of Troy Maynard were
improper and (3) that the trial judge committed error in not
directing a verdict in favor of Kenneth Adkins upon the question of
negligence.
The medical expenses, however, were related to the jury
through the testimony of Troy Maynard, and following the verdict
the trial judge was of the opinion that the past medical expenses,
in the amount of $4,500, had been sufficiently shown. As to the
instructions, Kenneth Adkins asserts, inter alia, that Troy Maynard
failed to produce any evidence of future pain and suffering, and it was, therefore, error for the jury to be instructed upon that
element of damages. Dr. Padmanaban, an orthopedic surgeon,
however, testified that Troy Maynard would experience future pain
from his injury, and the trial judge indicated that future pain and
suffering were fair conclusions for the jury to draw in this
action. Accordingly, we find no error concerning those issues.
Finally, Kenneth Adkins asserts that there was no
evidence of negligence at trial and that the trial judge committed
error in not directing a verdict on his behalf. Nevertheless,
although the record indicates that this was a close case as to the
question of negligence, there was evidence at trial to the effect
that Kenneth Adkins may not have had his vehicle under control or
may have been inattentive immediately prior to the accident. In
any event, the question of negligence was properly one for the jury
to consider.
For the reasons set forth above, the final order of the
Circuit Court of Mingo County, entered on December 23, 1993, is
reversed, and this action is remanded to that Court for
reinstatement of the verdict of the jury and for further
proceedings consistent with this opinion.
Reversed and remanded.
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