SER Cavender v. McCarty
Annotate this Case
September 1996 Term
___________
No. 23652
___________
STATE OF WEST VIRGINIA EX REL.
OTIS L. CAVENDER AND MARGUERITE CAVENDER,
Petitioners,
v.
HONORABLE CHARLES E. McCARTY,
JUDGE OF THE CIRCUIT COURT OF ROANE COUNTY,
BILLY FOUTY AND PATRICIA FOUTY,
Respondents
___________________________________________________
Petition for Writ of Prohibition
WRIT GRANTED
___________________________________________________
Submitted: October 1, 1996
Filed: November 18, 1996
George M. Scott
Spencer, West Virginia
Attorney for the Petitioners
The Honorable Charles E. McCarty, Judge
Ripley, West Virginia
Pro Se
David A. Sims
Debra Tedeschi Hall
Sims and Hall
Elkins, West Virginia
Attorneys for the Respondents
Billy and Patricia Fouty
This Opinion was delivered PER CURIAM.
JUDGE RECHT sitting by temporary assignment.
JUSTICE CLECKLEY concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. "In determining whether to grant a rule to show cause in prohibition when
a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other
available remedies such as appeal and to the over-all economy of effort and money among
the litigants, lawyers and courts; however, this Court will use prohibition in this discretionary
way to correct only substantial, clear cut, legal errors plainly in contravention of a clear
statutory, constitutional, or common law mandate which may be resolved independently of
any disputed facts and only in cases where there is a high probability that the trial will be
completely reversed if the error is not corrected in advance." Syl. pt. 1, Hinkle v. Black, 164
W. Va. 112, 262 S.E.2d 744 (1979).
2. "Parties moving for separate trials of issues pursuant to West Virginia Rule
of Civil Procedure 42(c), or the court if acting sua sponte, must provide sufficient
justification to establish for review that informed discretion could have determined that the
bifurcation would promote the recognized goals of judicial economy, convenience of the
parties, and the avoidance of prejudice, the overriding concern being the provision of a fair
and impartial trial to all litigants." Syl. pt. 6, Bennett v. Warner, 179 W. Va. 742, 372 S.E.2d 920 (1988).
Per Curiam:
In this original proceedingSee footnote 1 in prohibition, the petitioners, Otis L. Cavender and
Marguerite Cavender, challenge a July 12, 1996, ruling of the Circuit Court of Roane
County, West Virginia, Pursuant to that ruling, the respondent, the Honorable Charles E.
McCarty, granted the motion of Billy Fouty and Patricia Fouty, also named as respondents,
to conduct separate trials upon the issues of liability and damages in the underlying personal
injury action. That action is styled Cavender v. Fouty, Civil Action No. 93-C-123, Roane
County. The petitioners contend that the bifurcation of the liability and damage issues, under
the circumstances herein set forth, was in contravention of law and, thus, constituted an
abuse of discretion.
This Court has before it the petition for a writ of prohibition, the response of
the trial judge, the response of the Foutys and all matters of record. For the reasons stated
below, this Court grants the relief sought by the Cavenders and orders that the trial judge be
prohibited from bifurcating the liability and damage issues.
I
As the parties indicate, Otis L. Cavender, in August, 1991, offered to buy from
Billy Fouty, a used, electrical meter box, and connecting paraphernalia, attached to a pole
upon the Foutys' property. Mr. Fouty, an automotive mechanic, had no use for the meter
box and sold it to Mr. Cavender for $50. Soon after, Mr. Cavender, using a ladder,
attempted to detach the meter box and the paraphernalia from the pole. The pole gave way,
and Mr. Cavender fell, sustaining serious injuries. According to the exhibits filed in this
proceeding, Mr. Cavender incurred special damages in the range of $60,000 to $70,000.
In June 1993, the Cavenders instituted the underlying action. Thereafter, the
Foutys moved for summary judgment, asserting that Mr. Cavender was a mere licensee upon
their property when he was injured and that, therefore, they had no duty to protect him from
dangers arising on the property from existing conditions. Agreeing with the Foutys, the trial
judge granted summary judgment. The summary judgment was appealed, however, and in
Cavender v. Fouty, 195 W. Va. 94, 464 S.E.2d 736 (1995), this Court reversed and remanded
the action for trial.
In Cavender, we indicated that the Foutys were correct in asserting that they
had no duty to protect a licensee from dangers arising on the property from existing
conditions. We also indicated, however, that, under the circumstances, Mr. Cavender could
have been an invitee, and, if so, the Foutys had a duty to exercise ordinary care to keep and
maintain their property in a reasonably safe condition. In any event, this Court held, in Cavender, that Mr. Cavender's status as a licensee or as an invitee was for a jury to
determine. 195 W. Va. at 97 n. 2 and 3, 464 S.E.2d at 739 n. 2 and 3.See footnote 2
During the subsequent proceedings below, the Foutys filed a motion pursuant
to Rule 42(c) of the West Virginia Rules of Civil Procedure to bifurcate the issues of liability and damages. The Foutys asserted that bifurcation should be granted because, if the
Cavenders failed to establish liability, a substantial amount of time would be saved and the
parties could avoid the expense of obtaining expert medical testimony. In addition, the
Foutys asserted that, in view of the serious injuries sustained by Mr. Cavender, bifurcation
would eliminate any possible prejudice adverse to the Foutys which might otherwise occur
during the liability phase of the litigation. On July 12, 1996, the trial judge granted the
motion to bifurcate and stated as follows in a letter memorandum of opinion:
The liability issue in this case should take no more than
a day of the Court's time and bifurcation could significantly cut
the costs of expert witness fees, attorney fees, etc. Once the
liability issue is resolved and the need of a trial for damages is
determined, the Court can instruct another jury as to the findings
of liability and how such damages were sustained by the
plaintiff. . . .
The defendants question the sympathy factor. Would a
jury, hearing evidence regarding both liability and damages, be
compelled to award damages against the defendants not based
upon liability, but sympathy? This concern would be null if the
liability issues were presented without the additional evidence
of Mr. Cavender's medical problems and pain.
Following that ruling, the petitioners filed the petition for relief in prohibition
with this Court. On August 8, 1996, this Court issued a rule directed to the respondents to
show cause why relief should not be awarded.
II
This is an original proceeding in prohibition. See W. Va. Const. art. VIII, §
3; W. Va. R. App. P. 14; W. Va. Code, 53-1-1 [1931], et seq. Rather than asserting that the trial judge was without jurisdiction to grant the motion to bifurcate the issues of liability and
damages, the petitioners assert that the trial judge's ruling was in contravention of law and,
thus, constituted an abuse of discretion. Accordingly, our analysis in this proceeding begins
with syllabus point 1 of Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (19779), which
observes:
In determining whether to grant a rule to show cause in
prohibition when a court is not acting in excess of its
jurisdiction, this Court will look to the adequacy of other
available remedies such as appeal and to the over-all economy
of effort and money among the litigants, lawyers and courts;
however, this Court will use prohibition in this discretionary
way to correct only substantial, clear cut, legal errors plainly in
contravention of a clear statutory, constitutional, or common
law mandate which may be resolved independently of any
disputed facts and only in cases where there is a high probability
that the trial will be completely reversed if the error is not
corrected in advance.
See also State ex rel. Amy M. v. Kaufman, 196 W. Va. 251, 470 S.E.2d 205 (1996); syl. pt.
1, State ex rel. U.S.F.&G. v. Canady, 194 W. Va. 431, 460 S.E.2d 677 (1995); syl. pt. 8,
State ex rel. Collins v. Bedell, 194 W. Va. 390, 460 S.E.2d 636 (1995); syl. pt. 1, State ex
rel. Doe v. Troisi, 194 W. Va. 28, 459 S.E.2d 139 (1995); syl. pt. 1, State ex rel. Smith v.
Maynard, 193 W. Va. 1, 454 S.E.2d 46 (1994).
As stated above, the Foutys moved for bifurcation pursuant to Rule 42(c) of
the West Virginia Rules of Civil Procedure. That rule provides:
Separate trials.--The court, in furtherance of convenience
or to avoid prejudice, or when separate trials will be conducive
to expedition and economy, may order a separate trial of any
claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims,
counterclaims, third-party claims, or issues, always preserving
inviolate the right of trial by jury as declared by Article III,
Section 13 of the West Virginia Constitution or as given by a
statute of this State.
The petitioners assert that "there is nothing unique about this case" and that no
circumstances exist concerning this litigation which do not exist in every routine personal
injury action. Therefore, according to the petitioners, a single trial would promote judicial
economy and convenience, and any possible prejudice to the Foutys could be avoided by
cautionary instructions to the jury. On the other hand, the trial judge and the Foutys rely
upon the grounds, discussed above, in support of the motion to bifurcate and further state that
the trial judge's ruling was not an abuse of discretion.
As this Court has previously indicated, the granting of separate trials pursuant
to Rule 42(c) generally rests within the discretion of the trial court. State ex rel. State Farm
Fire & Casualty v. Madden, 192 W. Va. 155, 160, 451 S.E.2d 721, 726 (1994); syl. pt. 3,
Berry v. Nationwide Mutual Fire Insurance Co., 181 W. Va. 168, 381 S.E.2d 367 (1989);
Bennett v. Warner, 179 W. Va. 742, 748, 372 S.E.2d 920, 926 (1988); Anderson v.
McDonald, 170 W. Va. 56, 61, 289 S.E.2d 729, 735 (1982). See also 19 M.J. Trial § 5
(Michie 1991); 75 Am. Jur. 2d Trial § 140 (1991); Lugar and Silverstein, West Virginia
Rules of Civil Procedure 349 (Michie 1960); 9 Wright & Miller, Federal Practice and
Procedure: Civil 2d, § 2388 (1995); Eunice A. Eichelberger, Annotation, Propriety of
Ordering Separate Trials as to Liability and Damages, Under Rule 42(b) of Federal Rules of
Civil Procedure, in Actions Involving Personal Injury, Death or Property Damage, 78 A.L.R. Fed. 890, 899 (1986); C. R. McCorkle, Annotation, Separate Trial of Issues of Liability and
Damages in Tort, 85 A.L.R.2d 9, 14 (1962).
The Bennett case, supra, involved a claim by the Haneys that a title insurance
company's delay in securing a right-of-way to property purchased by the Haneys constituted
the intentional infliction of emotional harm. On the day of trial, the Circuit Court of
Pendleton County, West Virginia, sua sponte, and without notice, bifurcated the issues of
liability and damages under Rule 42(c). Following a jury verdict for the title insurance
company upon liability, the Haneys appealed. Noting that a trial court's authority under
Rule 42(c) "is not unlimited" and that bifurcation should be granted only when "clearly
necessary," this Court, in Bennett, reversed, holding that the bifurcation was error. In
particular, we indicated, in Bennett, that the trial court had not "adequately considered" the
question of bifurcating the Haneys action. 179 W. Va. at 748, 372 S.E.2d at 926.
Importantly, syllabus point 6 of Bennett states:
Parties moving for separate trials of issues pursuant to
West Virginia Rule of Civil Procedure 42(c), or the court if
acting sua sponte, must provide sufficient justification to
establish for review that informed discretion could have
determined that the bifurcation would promote the recognized
goals of judicial economy, convenience of the parties, and the
avoidance of prejudice, the overriding concern being the
provision of a fair and impartial trial to all litigants.
See also State ex rel. Appalachian Power Co. v. Ranson, 190 W. Va. 429, 431 n. 4, 438 S.E.2d 609, 611 n. 4 (1993); syl. pt. 2, State ex rel. Tinsman v. Hott, 188 W. Va. 349, 424 S.E.2d 584 (1992).
In Tinsman, supra, the plaintiffs in a sexual harassment action brought a
proceeding in this Court to prohibit the enforcement of a pretrial order which granted the
defendants a separate trial under Rule 42(c) upon the issue of punitive damages. Indicating
that a separate trial upon punitive damages is justified only in "extraordinary cases," 188 W.
Va. at 354, 424 S.E.2d at 589, this Court, in Tinsman, awarded relief in prohibition and
stated that the impact of evidence concerning punitive damages could be restricted through
proper instructions to the jury. See Rule 105 of the West Virginia Rules of Evidence.
Moreover, in Bowman v. Barnes, 168 W. Va. 111, 282 S.E.2d 613 (1981),
involving the deaths of an automobile driver and a passenger at a railroad crossing, the
administrator of the deceased passenger brought an action against the railroad company and
the administratrix of the deceased driver. The circuit court, on its own motion under Rule
42(c), ordered separate trials concerning the defendants. Nevertheless, upon appeal by the
administrator of the deceased passenger from an adverse jury verdict, this Court, in Bowman,
held that the ordering of separate trials was error. Noting, as in Bennett, that separate trials
should not be ordered unless "clearly necessary," we stated, in Bowman, that it is "generally
acknowledged that a single trial lessens the delay, expense and inconvenience involved in
separate trials[.]" 168 W. Va. at 117, 282 S.E.2d at 617. In particular, this Court observed:
"Therefore, we conclude that Rule 42(c), R.C.P., which permits separate trials of multiple
defendants, must be considered in light of the general policy of our joinder rules, which are designed to promote consolidation of issues and parties in a single trial to save expense and
encourage judicial economy." 168 W. Va. at 120, 282 S.E.2d at 619.See footnote 3
In this proceeding, a close examination of the nature of the underlying action
reveals that the petitioners are correct in their assertion that no circumstances exist
concerning the action which do not exist in most routine or uncomplicated personal injury
actions. There are no compelling factors in the litigation to indicate that separate trials are
"clearly necessary" within the context of Bennett and Bowman, supra. Rather, the action
consists of an uncomplicated claim for damages for personal injuries, where the sole issue
as to liability is whether Mr. Cavender was a licensee or an invitee. As suggested in
Tinsman, supra, and by Rule 105 of the West Virginia Rules of Evidence, any impact of the
evidence concerning the Cavenders' damages which may be prejudicial to the Foutys, can,
no doubt, be restricted through cautionary instructions to the jury.
Moreover, although this Court does not suggest that a trial court's discretion
to order separate trials or bifurcate issues under Rule 42(c) should be unduly restricted, we
emphasize that, as our prior decisions indicate, unitary trials are generally preferable over separate trials. In addition, in ordering separate trials or bifurcating issues under Rule 42(c),
the trial court "must provide sufficient justification to establish for review that informed
discretion could have determined that the bifurcation would promote the recognized goals
of judicial economy, convenience of the parties, and the avoidance of prejudice[.]" Syl. pt.
6, Bennett, supra. Here, the trial judge essentially determined that, if the Foutys prevail upon
the issue of liability, no witnesses concerning damages would be needed. Such a
determination lacks the particularity contemplated in Bennett for relief under Rule 42(c).
Upon all of the above, therefore, this Court is of the opinion that the July 12,
1992, ruling of the Circuit Court of Roane County was in contravention of law and, thus,
constituted an abuse of discretion. Accordingly, the relief sought by the petitioners is
awarded, and the trial judge is prohibited in the underlying action from ordering separate
trials upon the issues of liability and damages.
Writ granted.
Footnote: 1
The Honorable Arthur M. Recht resigned as Justice of the West Virginia
Supreme Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton,
Governor of the State of West Virginia, appointed him Judge of the First Judicial Circuit on
that same date. Pursuant to an administrative order entered by this Court on October 15,
1996, Judge Recht was assigned to sit as a member of the West Virginia Supreme Court of
Appeals commencing October 15, 1996 and continuing until further order of this Court.Footnote: 2
It should be noted that in addition to the question of whether bifurcation of
the underlying action was proper, the petitioners raise an issue concerning the following
language in the Cavender opinion:
In this case, the question is whether a buyer on a seller's
property as part of an isolated commercial transaction, initiated
by the buyer, is considered an invitee or a licensee. Except for
a question concerning who proposed the buyer remove the
setup, there appears to be no material question of fact.
However, the circuit court erred in reaching the conclusion that
the buyer was not an invitee because reaching any conclusion
requires 'the drawing of legitimate inferences from the facts,'
which is a jury function.
195 W. Va. at 98, 464 S.E.2d at 740. (emphasis provided and emphasis added).
According to the petitioners, the trial judge incorrectly imposed an additional
element of proof concerning liability, based upon the above language, by requiring that the
petitioners prove not only that Mr. Cavender was an invitee but that Mr. Fouty proposed that
Mr. Cavender would be the one to detach the meter box and the paraphernalia from the pole.
In his response, however, the trial judge, rather than confirming that he added such a
requirement concerning who was to detach the property from the pole, asserts that such an
issue is not appropriately before this Court in a prohibition proceeding.
Nevertheless, as a matter of clarification, the above language of Cavender does
not suggest that the petitioners, in addition to proving that Mr. Cavender was an invitee, must
prove as a matter of law that Mr. Fouty proposed that Mr. Cavender would be the one to
detach the meter box and the paraphernalia from the pole. Rather, as the language indicates,
this Court was simply observing that the question of who was to detach the property from
the pole is a question of fact and that the relevancy of that fact to the outcome of the
litigation is for a jury to determine.Footnote: 3
The following language found in 88 C.J.S. Trial § 9 (1955), is worth noting:
It is the policy of the law to limit the number of trials as far as possible, and separate trials are granted only in exceptional cases. Even under a statute permitting trials of separate issues, neither party has an absolute right to have a separate trial of an issue involved. The trial of all issues together is especially appropriate in an action at law wherein the issues are not complicated, such as in a replevin action, or the usual negligence case, or where the issues are basically the same.
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