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Milleh, Judge:
The controlling facts in this case are substantially the same as those involved in Tahaney v. Building Association, 59 W. Va. 296, and the principles there enunciated and applied rule this case, contrary to the contentions of appellant. The questions of pleading and practice presented and argued seem to be fully covered and decided adversely to appellant, in Martin v. Smith, 25 W. Va. 579, Darby v. Gilligan, 43 W. Va. 755, Dorr v. Dewing, 36 W. Va. 466, and Toledo Tie & Lumber Co. v. Thomas, 33 W. Va. 566. It is unnecessary, therefore, to reiterate the legal rules and principles so well established. We find no error in any of the decrees and proceedings below prejudicial to the rights and interests of appellant, and the decree appealed from will therefore be affirmed.
Affirmed. | [
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BRANNON, PRESIDENT :
Sam Honaker brought an action against New River & Pocahontas ■ Consolidated Coal Co., for personal injury and recovered one thousand dollars damages. Honaker was a boy twelve years and ten months old at the time he received his injury. The defendant was operating a coal mine and Honaker was employed by it in ‘'“’trapping” and “pig tailing.” His work in trapping was to open doors in the mine to let pass the motor engine hauling in and out of the mine coal cars. His duty in pig tailing was to connect rope, from winder on the motor, with ■coal cars to be hauled out of the mine. A motor was pushing into the mine four empty coal cars. Honaker was seated on the end of the fourth car from the motor with his feet on the bumper. There were some empty cars ahead on the track in the- mine and the cars, being pushed, collided with them. Honaker discovered them some seven feet ahead and tried to get back into the car, and in doing so one of his feet slipped and was caught between the bumpers of the ears and was mashed. The plaintiff gave evidence that on the day of his injury the brakemen was absent, and he was ordered by the mine foreman to act as brakeman.
Complaint is made that the court refused an instruction, saying that if Honaker had been instructed by the mine foreman not to ride on the mine cars, and that he disobeyed the instructions, and did ride in the mine on the front car of a number that were being pushed into the mine, contrary to instructions, and that the injury was occasioned thereby, the jury should find for the defendant. This instruction ignores the fact that TIonaker was under fourteen years of age. It does not put to ¡he jury to say whether that fact entered into the case. The instruction proposes to defeat the plaintiff on the ground of contributory negligence without talcing into consideration the age of Honaker. My own view, as expressed in my opinion in Norman v. Coal Co., 68 W. Va. 414, is that the employment in coal mining of a child under fourteen years of age is of itself contrary to law, and per se negligence, and that contributory negligence is not attributable to him. We do not so decide in this case. Under that decision we do say that the evidence does not show that this boy does not belong to the class of infants under fourteen, by reason of special mental attainment and capacity, so as to take him out of that class and put him in the adult class, and that, therefore, his employment is a violation of the statute against employing minors, found in Supplement Code of 1909, ch. 15T-T, sec. 17. Unless by evidence shown to possess special capacity to avoid danger the statute applies, and we cannot attribute to-him full capacity, regardless of age, as this instruction proposes to do. But, furthermore, we say that instruction 3, 4 and 6, given for the defense, substantially cover the ground of the instructions refused and were sufficiently favorable to the defendant. It is said that Honaker was told not to ride on the car, and especially it is said that he .had no right to sit on the front car with his feet hanging down. Evidence before the jury says that he was ordered to act as brakeman that day, and he did not go out of the line of his duty as trapper to act as brakeman, and there was evidence that it was needful for him to sit where he did to watch switches. There was no evidence that he was instructed how to act as brakeman or of its dangers, and upon that ground it can be said that the verdict is defensible. The ground of liability, as I myself would base it, is that Honaker was a child, exposed to danger by employment in violation of a statute; but all of ns unite in saying that being employed in violation of statute is prima facie negligence, and it not being proven that special intelligence and capacity in Honaker took him out of the class of infants under fourteen years, contributory negligence cannot be charged to him. This is a jury question. Moreover, it is proven that he was put to work, not of his own act, in leaving his usual line of duty, and had no experience or instruction as brakeman.
The plaintiff claims that the defendant was negligent in pushing its cars into the dark mine without a light on the motor to show ahead, and that if there had been a light there, it would have shown the presence of the empty cars ahead at such distance as would have enabled the boy to get into the car and save himself. The only light was a small mine lamp in the cap of the boy, which did not light but a few feet ahead; but probably the company would not be chargeable with this negligence, because it was an omission of duty by the mine boss, under principles stated in Squilache v. Tidewater Coal Co., 64 W. Va. 337, and other like cases. AVe think the Norman Case above, even without the latter consideration, calls for recovery.
Therefore, we affirm the judgment.
Affirmed. | [
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Miller, Judge;
In a suit to reform a deed so as to conform to the alleged prior contract, the bill alleges that the deed as recorded, instead of reserving to plaintiff, according to said contract, “all the oil and gas underlying and contained in the said land, together with all the rights and privileges thereto belonging, and for the removal, mining, boring, excavating and developing the same; except * * * * * one-eighth of the rentals accruing to the plaintiff from and during the life of a certain lease theretofore'given by the plaintiff, then and still in force,” and of which rentals during the life of said lease the bill alleges “defendant was to have one-eighth part, * * * and * * * should oil be obtained during the life of said lease, then * * * to have the one-eighth of plaintiff’s one-eighth royalty from all oil produced, and the one-eighth part of the plaintiff’s rentals from the gas produced,” it “purports to reserve * * * * said oil and gas and the rights and privileges thereto, only fduring the life of the lease on the said lands’ * * * * with the single and only exception that, •during” that time “defendant was to have certain parts of the rentals from said lease and, in the event oil or gas should be produced, during the term” thereof, “defendant was to have a portion of the money, or royalty accruing to this plaintiff, to-wit, the one-eighth part.” A further allegation is that this was the mistake of the scrivener who prepared the deed, as defendant well knew. The charge of the bill is that the deed as recorded is not the deed plaintiff agreed to make, and that defendant refuses to permit him to inspect the original deed, or to reform and correct it, so as to express the true terms and conditions of the contract. The prayer is that said deed he corrected and reformed, and made in accordance with the contract and agreement.
The answer of defendant substantially denies the material allegations of the .bill and puts the plaintiff on proof of the case as alleged. The decree appealed from denied plaintiff any relief and dismissed his bill.
Omitting immaterial parts, the exact language of the reservation in the deed as recorded is as follows: “There is hereby reserved, retained and excepted from the above conveyance during ihe life of the lease now on said lands all the oil and gas underlying the same together with the right to enter in” and upon said lands for the purpose of mining, exploring and boring * * * * *, but second party is to have and enjoy a one sixty fourth, part of all oil that may be produced and saved from said lands to be delivered to his credit to any pipe lines to which any well developed and producing oil may be connected and likewise second party shall be paid by first party his heirs or assigns a one sixty fourth part of all rentals that may be derived from airy gas derived from any well that may be-drilled on said lands the-produet of which is marketed off of sneli lands, and said lands are sold subject to the oil and gas lease now on said lands, but second party is to have a one eighth part of the commutation money to be derived thereunder until developments and then a one sixty fourth part of all the rents, issues, profits and royalties to be derived thereunder as above provided.”
The proof does not sustain the case made by the bill. According to the original contract, as alleged, the rights of the grantee in the royalty oil and rentals were to be limited to the life of the oil and gas lease then on the land.. The proof fails on this theory of the bill. The plaintiff in his testimony in chief swears that defendant was to have one-eiglith “interest in the rental and one sixty-fourth part of the whole of the oil and gas.” True, in response to a subsequent question as to how long the rights of the grantee were to continue, he does say: “That was to be determined by lease already on the land, which ran ten year from the time it was given.” But on cross-exami nation he was asked: “Would you please state what words in the deed as now recorded are different from the one which you delivered to Mr. Riley?” He answered: “These words ‘during the life of the present lease’ ”; referring to the words italicized in the reservation above quoted. By this we understand him to admit that with this exception the deed as recorded contains the contract made, and as was intended when the deed was delivered. If so, defendant’s one sixty-fourth interest in the royalty oils and rentals was not to be limited to the life of the lease then on the land. And this accords with defendant’s admission on the witness stand, that when he and plaintiff originally talked terms of the contract, plaintiff said he would like to reserve sixty-three sixty-fourths of the oil and gas for himself. Defendant’s contention, however, is that before the deed was made he imposed different terms, that by a letter to plaintiff before deed made he agreed to take the land only on the condition that the reservation be limited to the life of said lease, a fact, we think, not supported by the evidence. The only letter shown in evidence to have been received by plaintiff from him imposes no such condition. Furthermore, Martin, the scrivener employed by plaintiff to prepare the deed swears, that to the best of his knowledge the words italicized in the reservation quoted, were not in the deed when' it left his office; that he always used a regular form in drawing such deeds, and that 'he would not have used the words italicized, and thereby rendered the reservation inconsistent with itself, if it had been intended to limit that reservation to the life of the lease then on the land; that if that had been the object a much simpler form would have been appropriate and would have been employed by him. As we view the case the interpolation of these words constitute the strongest fact or circumstance tending to show that the deed must have been tampered with, certainly after it was originally drafted and had left the scrivener’s hands, and after it was executed and delivered to defendant. The original deed, though called for, was not produced in evidence by defendant. This neglect he excuses on the pretense that it had been delivered to his attorney on some occasion and could not be found. The original deed would no doubt have shed light on the controverted point. Its absence, a very suspicious circum stance, we do not think is sufficiently accounted for. The attorney for defendant, and the attorney in whose hands the deed was when it is said to have been lost or mislaid, on his cross-examination of plaintiff implied by some of his questions that he had some knowledge of an interlineation in the deed before it was executed and delivered, and was apparently laying the foundation to contradict the witness. However,'though himself a witness, he made no attempt to prove by himself or any other witnesses, that any such interlineation had been made. The testimony of defendant amounts to a concession that by the original agreement plaintiff was to reserve sixty-three sixty-fourths of all the oil and gas. But for the words in italics this is just what the reservation in the deed would accomplish-Defendant’s pretension that by letter to plaintiff he imposed other terms, limiting those rights to the life of the existing lease, is flatly contradicted by plaintiff; and his failure to produce any such letter or copies thereof, and the production by plaintiff of the only letter he ever received from defendant on the subject, dated March 10, 1908, the day before the deed was made and executed, acknowledging receipt of a letter from plaintiff of March 9th, and in which letter not one word is said about any modification of the terms of the reservation, strongly corroborates plaintiff's testimony that no such terms were ever imposed or agreed to.
But the fact, established, we think, by the proof, that the deed was tampered with after it was executed and delivered to -defendant, by the insertion in the reservation by some one of the words italicized, in fraud of the rights of plaintiff, is not the case made by the pleadings. We are of opinion, however, that the proof in the case shows plaintiff entitled to relief, and that on proper pleadings such Telief as indicated should be granted.
That a court of equity may reform a deed or contract where by fraud, accident or mistake of the scrivener, or by any other means, the same does not conform to the actual agreement between the parties, is well established. Knowlton v. Campbell, 48 W. Va. 294, 296; Null v. Elliott, 52 W. Va. 229, 231. But plaintiff can no more prevail on proof without allegation than on allegation without proof. Pusey v. Gardner, 21 W. Va. 476.
If possible, justice should be done. But in this condition of the pleadings and proofs what disposition should we make of the case ? Following Lamb v. Cecil, 25 W. Va. 288, and subsequent eases, we should reverse the decree and remand the cause, and do what we think the lower court should always do before dismissing a bill in this situation, give leave to plaintiff to amend his bill so as to present the case made by the proof. See Lamb v. Laughlin, 25 W. Va. 300; Doonan v. Glynn, 26 W. Va. 225; Gilchrist v. Oil Co., 21 W. Va. 115; Van Winkle v. Blackford, 33 W. Va. 573; Bigg v. Parsons, 29 W. Va. 522;. Ryan v. Nuce, 67 W. Va. 485, 490, and Hardman v. Brannon, 70 W. Va. 726, 735.
For this error we are of opinion to reverse the decree and remand the cause for further proceedings.
Reversed and Remanded. | [
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Milled, Judge:
The petition of plaintiff, a subsequent attaching creditor of Watson in the circuit court, filed before a justice, pursuant to sections 151 and 152, chapter 50, Code 1906, against Loeb Shoe Company, a prior attaching crédito]', of the same debtor, in an action begun before another justice, was dismissed, and on appeal to the intermediate court it was dismissed there, and the circuit court having denied an appeal from that judgment, the petitioner has brought the case here for review.
The first question is, is the matter in controversy, exclusive of costs, sufficient to give this Cort appellate jurisdiction? According to plaintiff’s original and amended petitions the amount for which defendant attached on August 19, 1901, was sixty dollars and twenty cents, with interests and costs.' Defendant insists that the jurisdiction must be tested by the original amount in controversy in his suit, exclusive of costs, and that it does not affirmatively appear from the record, as he insists it must to give appellate jurisdiction, that the principal and interest exceeds the sum or value of one hundred dollars. This was not' a suit to recover a specific sum of money, and the general rule in such cases is, that it is not necessary that the record should show the amount in controversy. That may be shown by affidavit or other evidence presented here. Hannah v. Bank, 53 W. Va. 82. This was properly done, by a certified copy of the final judgment in favor of the defendant in the intermediate court, with taxation of costs, exhibited with plaintiff’s petition. This shows judgment $60.20; interest to date of the judgment July 11, 1910, $31.75; costs before the justice, $14.70, total $106.65; to which, if we add, the costs incurred in the intermediate court on appeal, $27.40, the total would be $134.05. If as insisted the costs incurred on appeal by the garnishee can not be included, there still remains the original judgment, interest and costs incurred before the justice amounting to $106.65.
AVhat then is the real amount in controversy? If the Loeb Shoe Company succeeds in maintaining its attachment, as against petitioner, the fund in bank attached will he depleted by at least the sum of $106.65, and the petitioner deprived of that amount as a credit on its judgment. So we must say that the actual amount in controversy is that sum which the petitioner will lose if defendant prevails. If this were a writ of error to the judgment in the ease of Loeb Shoe Company against Watson, the contention of counsel 'would have force, but it is not. Though collateral it is to all intent and purposes an independent proceeding, and we think falls within the rule of Taney v. Woodmansee, 23 W. Va. 709, 713. In Castle v. Castle, 69 W. Va. 400, we decided that an appeal would lie to this Court to correct a decree for costs, when such costs had been the subject of a special agreement between the parties.
The next question is, is the petitioner a claimant, with right to' contest the validity of the attachment of the Loeb Shoe Company?' 11 is insisted that no one but the owner or one with title, and right’ of possesson of the property attached, can do this. This argument is based mainly on said section 151, saying, that upon the filing of the petition and giving the bond, the order of the justice-shall direct the officer “having such execution, order of sale, or attachment * ■ * * to deliver up the property to said claimant,”' and that this could not mean another attaching creditor. Opposed to this narrow construction it is insisted for the petitioner, first, that the language of section 151, specifying what the petition shall contain, indicates the intention of the legislature that anyone, who has “such a claim to or interest in the property levied on, or about to be sold, as entitles him to have the same released from such levy, or to prevent the sale thereof (as the case may be) ” may file such petition, and that this language is comprehensive enough to include a subsequent attaching creditor, with superior right. Another argument is based on analogy to section S3, chapter 106, Code 1906, relating to proceeding upon attachment in the circuit court. That section provides tfiat “Any person interested may file his petition at any time before the property attached, as the estate of a defendant, is sold under the decree or judgment, or if the proceeds of the sale have not been paid over to the plaintiff, or his assigns, within one year after such sale, disputing the validity of the plaintiff’s attachment thereon, or stating a claim thereto, or an interest in or lien on the same, under any other attachment or otherwise, and its nature, and upon giving security for costs, the court without any other pleading, shall impanel a jury to inquire into such claim, and if it be found that the petitioner has title to, or lien on, or any interest in such property or its proceeds, the court shall make such order as is necessary to protect his rights; the costs of which inquiry shall be paid by either party, at the discretion of the court.” A third point made is based on McCluny & Co. v. Jackson, 6 Grat. 96, a decision is binding us. That case holds, point 3 of the syllabus, that, “A subsequent attaching creditor may appear to the first attachment, and either in his own name or in the name of the absconding debtor, contest the right of the first attaching creditor to recover.” The decision of that casq turned on the proper construction of section 12, 1 Rev. Code, 478, providing that “in all cases of attachments, the defendant shall be permitted to make defence, and any other person claiming the property attached, may inter-plead, without giving bail: Provided, that the property attached .shall not thereby be replevied.” “This defence,” says the judge •delivering the opinion in that case, “may be made without a personal appearance; and I can perceive no good reason why a third person claiming a right to have his debt satisfied out of the attached property, should not be permitted to make it, either in the name of the debtor or in his own name. He cannot interplead as .a claimant of the property in his own right, because he is seeking to subject it to the payment of his debt as the property of the •debtor. Generally speaking, the subsequent attaching creditor is the only person having an interest to controvert the justness of the claim preferred by the first. The debtor is a fugitive, and unless the subsequent creditor is permitted to make defence, a claim which he could shew to be unjust, might consume the whole estate, and the real creditor would be without remedy. Such a construction might lead to gross injustice, and would violate the •spirit of the act which authorizes the defendant to make defence without giving bail. The reasons and necessity for extending the privilege to third persons seeking fqr payment of their debts out of the attached property, are stronger than for permitting third persons to replevy. The plaintiff in the first attachment, cannot object that this defence is made in the name of a creditor who will be liable for costs, rather than in the name of a fugitive, 'and generally an insolvent debtor.”
The language of said section 151, relating to the delivery of the property to the claimant, constitutes no obstacle to the practical application of section 152 to the case at bar. By proceeding under that section, without bond, the justice is not authorized to turn over the property attached to the claimant; under that section the justice makes no order as to the possession of the property until after the trial of the issue; then he may either “dismiss the claim or order the officer to deliver the property to the claimant, as the right shall appear.” And where, as in this case, the property or money is attached in the hands of a garnishee, under section 197, of chapter 50, Code, unless under section 198 the garnishee voluntarily surrenders the property attached to the officer, it remains with him until after the trial of the issue; and if plaintiff obtains judgment, then by proceeding according to sections 205, 200 and 207, he may have judgment against the garnishee for the property or money attached in his hands sufficient to satisfy his judgment as thereby prescribed. We see nothing in the language of section 151 calling for such a narrow construction as counsel would give it. Section 23, chapter 106, gives clear right to plaintiff in the circuit court to intervene and contest the validity of a prior attachment in the circuit court. No stronger reason can be assigned for limiting claimant of the property, under sections 151 and 153, to owner or title claimant, than for so limiting substantially the same language of the Virginia statute involved in M’Cluny v. Jackson supra, and the answer to the proposition made by the court in that case is applicable here. Indeed the language of our statute, considered in the light of the other sections referred to, presents a stronger case for its application than was presented in that case. We hold, therefore, that under said sections 151 and 152 a subsequent attaching creditor may contest the validity of a prior attachment, as claimant, or as one having right to have the property attached released from the prior attachment.
Being so authorized to intervene, and being properly in this Court, on a writ of error, we reach the next point, namely, is the summons of the justice, issued August 19, 1901, and made returnable August 24, 1901, at 9 o’clock A. M., in the Loeb Shoe Company Case absolutely void by section 26, of said chapter 50, requiring that such summons “be made returnable not less than ñve nor more than thirty days from its date ?” It is insisted that under this statute the earliest day to which this writ could have been made returnable was August 25; that the statute gives the defendant summoned five full days from- the date of the summons to appear, which in this case did not end until midnight of the twenty-fourth, wherefore the summons was absolutely void, and without appearance, gave the justice absolutely no jurisdiction whatsoever. Is this a correct interpretation of the statute? We think not. True the statute says “not less than five * * * days from its dated’ But five days from August 19, would be August 24. We think that the rule for computing time by excluding the first and including the last day, prescribed by section 12, chapter 13, Code 1906, and the general rule that the law recognizes no fractions in computing time, is applicable. This conclusion is fully supported by decisions from other states construing similar statutes, and by the obiter, at least, of Horner v. Huffman, 52 W. Va. 41, 45-6, 43 S. E. 132; Smith v. Force, 31 Minn. 119, 16 N. W. 704; Young v. Krueger, 92 Wis. 361, 66 N. W. 355; Womack v. McAhren, 9 Ind. 6; Martin v. Reed, Id. 180; Blair v. Davis, Id. 236; Blair v. Manson, Id. 357; Warner v. Bucher, 24 Kan. 478; Schultz v. American Clock Co., 39 Id. 334, 18 Pac. 221; Savings & Loan Society v. Thompson, 32 Cal. 347. True the question is not made a point of the syllabus in our case, but the point was involved, though not necessary, as therein stated, to a decision of the cases. The decisions cited for plaintiff, per contra, unless it be Adkins v. Moore, (S. C.) 20 S. E. 985, seem to us inapplicable. If that case is so interpreted we decline to follow it; it is opposed to the weight of authority and to our interpretation of our own particular statute:
The next point made against the validity of the summons is, that the manner of its direction and of its service, render it void on its face. It is directed as follows: “G. T. Grass. To H. C. Smith, or any Constable of said County.” Section 30, of chapter 50, Code 1906, in force at the time, and relied on, provides: “When it shall satisfactorily appear to a justice issuing a summons, attachment or warrant of arrest in a civil action, or a warrant in a criminal proceeding, that a necessity exists therefor, ho may appoint a special constable to execute the same, either by directing such process to such special constable by name as follows: ‘To A.B., who is hereby appointed a special constable to execute this process’, or bjr endorsing such appointment on said process.” No endorsement of the appointment is found on the process. But we see from the name of Grass written in the summons that there was an attempt to comply with the statute. The return on the process is signed “G. T. Grass, Special Constable, Kanawha County.” This return was accepted, and no doubt made the basis for the issuance of the second summons, pursuant to said section 202. Though directed in the manner stated wé can not hold the process void. Section 17, chapter 50, Code, says: “It may be directed to the constable by name or by his official designation without naming him.” It could have been executed by any constable, and the service would have been good; and it might even have been executed by any credible person, and service proven by his affidavit. The question is one relating to the proper execution of the power of appointment of the special officer, rather than to the validity of the writ. The writ is good, clearly. The writ with the return and acceptance of the return, clearly evidences an appointment. The writ and return we think sufficient to confer jurisdiction. Town of Point Pleasant v. Greenlee, 63 W. Va. 207; Alderson on Jud. Writs and Process. §§ 98 and 198. In section 98, at page 170, this writer says: “A writ may be directed to a person as ‘special constable,’ and the written appointment need not show the statutory facts on which the appointment was made; as that the justice was requested to make the appointment, or he was satisfied it was expedient to do so.” See Cowdery v. Johnson, (Vt.) 15 Atl. 188. Our statute, section 30, chapter 50, authorizes such appointment, where it appears to the justice “that a necessity exists therefor.” We hold that the irregularity of appointment does not vitiate the writ or return. The fact of appointment sufficiently appears, and we hold that the irregularity does not vitiate the writ. Our case does not fall within the strict rule of the Illinois cases of Illinois Land & Loan Co. v. McCormick, 61 Ill. 322; Filkins v. O’Sullivan, 79 Ill. 524; Noleman v. Weil, 72 Ill. 502, and Davis v. Hamilton, 53 Ill. App. 94.
The next question is, is the Loeb Shoe Company’s affidavit so defective as to render its attachment absolutely void, or merely Voidable? If void it may be collaterally attacked, and will com stitute no protection, even to the Charleston National Bank, garnishee. The defect pointed out, which it is claimed renders the attachment based thereon void, is that it fails to show the nature of plaintiff’s claim as required by section 193, chapter 50, Code 1906. The affidavit says: “That the claim of the said plaintiff against the defendant is for check not paid, protest fees and To Mdse, that the said claim is just, and this affiant believes that plaintiff ought to recover thereon Sixty 20-100 Dollars, with interest on the same from the.day of.189.” Is this sufficient? It is argued that it shows no right of recovery from anybody, and none from defendant Watson; that it does not show whose check it was, or to whom given, or the date or amount thereof; nor does the affidavit show what the rest of the claim is, nor by what right plaintiff claims to recover on account of either check or other claim, as against defendant Watson ; in other words, that no cause of action whatsoever is stated, against either Watson or any one else, and that this indefiniteness ought to quash the affidavit upon the principle laid down in Sommers v. Allen, 44 W. Va. 120, 28 S. E. 787. The affidavit held Rad in that case, and quashing the attachment for indefinite description of plaintiff’s claim, stated that the suit was to recover three hundred and ninety-six dollars “which sum will be due and payable on said 1st day of February, 1896, which sum the plaintiffs claim will be due on that day on a negotiable note signed by J. II. Allen and Kate M. Allen.” It was there held, point 2 of the syllabus, that, “An affidavit for an attachment not stating the nature of the plaintiff’s demand, so as to show a title or right in the plaintiff to such demand, is bad, and should be quashed on motion.” Certainly the case here falls within that rule. The rule of that case, and cases cited, which originated in the circuit court, was applied in an attachment proceeding originating like this one in a justice’s court, in Kesler v. Lapham, 46 W. Va. 293, 297-8. Other cases in this Court giving some color to defendant’s contention are Todd & Smith v. Gates, 20 W. Va. 464, and Lively v. Loan Ass’n., 46 W. Va. 180. But the cases cited for our conclusion, particularly Sommers v. Allen, are apt and on all fours with this case. The other cases must be differentiated and reconciled with these because of the difference in ttie character of the claims sued on, and the necessity in cases like this and the Sommers Case, for reasons stated in the latter, for more definiteness in the statement of the nature of the claims, than in those cases relied on by defendant- 'We think the nature of the claim ought to be so stated, not necessarily with formality, but with sufficient definiteness to show that the plaintiff has a cause of action against defendant. The nature of an attachment proceeding would seem to require this. We can not ignore all essentials even in a justice’s court. Chapter 50 of the Code, while not requiring formality, clearly calls for the substance. A reading of the sections relating to pleadings clearly evince this, and if in pleadings, certainly in the harsher remedy of attachment substance is demanded in the affidavit. Judge Holt in Crim v. Harmon, 38 W. Va. 596, gives some strong reasons for such a rule.
Now, may the validity of that attachment be assailed collaterally, as attempted in this case, or by a proceeding under sections 151 and 152 of chapter 50, Code? We hold that a subsequent attaching creditor may do so; that any creditor with title to or lien upon the property attached may do so. Miller v. White, 46 W. Va. 67; U. S. Baking Co. v. Bachman, 38 W. Va. 84, 3rd syl.; Pendleton v. Smith, 1 W. Va. 16. Independently of the statute where the attachment proceeding is purely ex parte, as in this case, the defendant not being personally served with process and not appearing to the action, the attachment may be collaterally impeached for jurisdictional defects in the affidavit, and unless the affidavit be lawfully sufficient to support the jurisdiction to pronounce judgment thereon it is void. Failure to state the nature of plaintiff’s claim, as required, is not, as we hold, a mere irregularity; it goes to the very life of the writ, rendering it void and quashable. Drake on Attachment (6th ed.), § 87a to § 89b, both inclusive. See on the subject of stating the nature of plaintiff’s claim, and supporting our cases cited, Van Fleet on Collateral Attack, § 263.
But the petitioner, a subsequent attaching creditor, claiming right to attack the prior attachment of defendant, must of course himself show a valid attachment. Without this he can have no standing in court. 4 Cyc. 646. A prima facie case is made, according to the authorities, by showing valid process and war rant of attachment and a sufficient affidavit. 4 Cye. 646, and cases cited in notes. This rule seems to be contemplated by onr statutes, especially section 23, chapter 106, Code 1906. Has petitioner alleged and proven a ease entitling it to attack defendant’s attachment? If not it should be denied any relief. Defendant insists it has not done so; that its affidavit is defective in the same particular in which his affidavit has been held bad, failure to state a good cause of action against Watson. The affidavit states the nature of petitioner’s claim to be: “That the said Watson on or about the 10th day of August, 1901, delivered to the said Bank a certain check order or draft for the sum of Fifteen Hundred pounds sterling of the Current money of the Kingdom of Great Britain; that said check, order or draft was at the request of said Watson forwarded for Collection through said Bank’s correspondent in the City of ISFe-w York, State of Hew York; that said Bank of Union was informed by its said correspondent that the proceeds of said check order or draft amounted to the sum of Seven Thousand Two Hundred and Seventy Eight and 75-100 Dollars which had been placed to the credit of the said Bank of Union; that thereupon said Watson gave sundry checks or orders on said Bank, many of which the said Bank paid on the faith of said information so received from its said correspondent in New York; but the said check order or draft so forwarded for collection as aforesaid was not paid when it was duly presented for payment, and the balance now due the said Bank of Union from said Watson by reason of said transaction amounts at least’ to the sum of Six Thousand Dollars.” The contention of defendant is that as the affidavit admits that petitioner received credit in the New York bank, for the full proceeds of the draft, this was the equivalent of payment to it of the draft, and that as there is no allegation or evidence of protest, it must be. assumed there was none, so as to bind petitioner, or-authorize the New York bank to charge back the draft or render it liable for the proceeds there-: of. It is quite true that to render the indorser of a note or bill liable it must be duly protested for non payment, as the authorities cited by defendant’s counsel hold; but we are of opinion that the omission to allege that the draft was duly protested is substantially covered by the averment that the draft was not paid when duly presented, and that the balance then due petitioner from Watson by reason of said transaction amounts to at least the ■sum sued for. We think the averment sufficient to let in proof in the trial of liability by notice of protest, or protest -waived, as it may have been, or liability incurred, as it may have been, by some other kind of waiver, or liability by special contract by petitioner with its New York correspondent. It is unnecessary to set out ip detail the evidential facts. We think this affidavit a substantial compliance with our statute, and the authorities on the subject. See 4 Cyc. 490, and decisions and precedents cited in notes.
The judgment complained of simply dismissed plaintiff’s petition, on motion of defendant. The case was not allowed to come to trial on its merits. Por the reasons given we think there is error in that judgment and that it must be reversed, and the case remanded to be further proceeded in according to the principles enunciated herein and further according to the rules and principles of law governing the trial of like casos, and we will so order.
Reversed and Remanded. | [
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RobiRtson, JUDGE:
The question in this case arises on a bill of interpleader. We are called on to say whether under the will of Uriah B. Kerney, late of the county of Jefferson, the income of a certain fund can he reached by creditors of James William Kerney, son of the testator.
The provisions of the will, relating to the estate involved, are as follows:
“4. All the remainder of my land, including my home farm, except the lots in town, I do hereby give and devise to my youngest son, James AYilliam Kerney, charged however with the annuity, etc.”
“10. In case of the death of my youngest son, James William Kerney, during his minority and without issue of his body, it is my will that his whole estate, real and personal, shall be equally divided between his brother, John K. Kerney, and his sister, Elizabeth Kerney, but after he arrives at the age of twenty-one years, whether he have'issue or not, he may dispose of his property hereby devised as he may think proper, subject only to the limitations and restrictions of Article 11,-as follows :
“11. If my youngest son, James William Kerney, sell his land, there shall remain in the hands of the purchaser and as a lien upon said land the sum of Twenty-Five Hundred Dollars for the sole use and support and for no other purpose, of the said James William Kerney during the term of his natural life, and my Executor, or his successor, is hereby appointed arid constituted a Trustee for the collection of the interest accruing on the above twenty-five hundred dollars in the hands of the purchaser of the said land, and I do direct that no part of the principal of the twenty-five hundred dollars shall be used for the support of the said James William Kerney, but the interest only during his natural life.”
After reaching his majority James William ICerney sold the land, and the sum of twenty-live hundred dollars was left at interest secured by a lien as provided in the will. The present owner of the land asks the court by his bill of interpleader to direct -him as to proper payment of the interest on the sum, since it is claimed both on behalf' of James William Kerney and on behalf of creditors to whom James William Kerney has given deeds of trust covering this income.
Do these provisions of the will establish a trust estate in the income from the twenty-five hundred dollars, beyond the reach of creditors ? The circuit court has held that they do. We are of the same opinion. A spendthrift trust is created. We can see no other intention manifested by the will. The testator very evidently intended to make a determination on the part of the son to desert a good source of income from the land a test of the taking effect of the spendthrift provision. The trust provision in relation to James William Kerney clearly comes within the following approved definitions: “Spendthrift trust is the term commonly applied to those trusts that are created with a view of providing a fund for the maintenance of another, and at the same time securing it against his own improvidence or incapacity for self-protection.” 26 Am. & Eng. Enc. of Law 138; Wagner v. Wagner, 244 Ill. 101. “A spendthrift trust is the term commonly used to designate a trust created for the maintenance of the cestui que trust, and to secure the fund against the improvidence of the cestui que trust." Kessner v. Phillips, 189 Mo. 515. It is not necessary that the beneficiary be denominated a spendthrift or that the testator or donor shall give his reasons for creating the trust; or 'that the instrument shall contain all restrictions and qualifications incident to such trust. Wagner v. Wagner, supra.
It is argued at great length that no such arrangement as that provided by the will can avail as against creditors; but we hold that the ease is ruled by Guernsey v. Lazear, 51 W. Va. 328. That case recognizes the validity as against creditors of such provisions as the one in question, whatever may be the law of some other jurisdictions. We are not disposed to review the principles so ably discussed by Judge BRA^non in that case. In a way, we gave further recognition to the same principles in Talley v. Ferguson, 64 W. Va. 328. It is true that in those cases there were direct words of prohibition against 'debts. It was directly stated in the instruments creating the estates that creditors should never subject those estates to the payment of debts. But do not the provisions of this will just as clearly do the same? This will says that the trust estate created is for the sole use and support of James William Kerney during his natural life and for no other purpose. Does not this bar out debts? Would not the money go for another purpose than use and support if it was allowed to go for debts? What use and support from the invested sum would James'William Kerney have if his creditors took the interest arising from it? Plainly the will manifests an intention that creditors shall not take this income provided for the support of James William Kerney. “It is not necessary that an instrument creating a spendthrift trust should contain an express declaration that the interest of the cestui que trust in the trust estate shall be beyond the reach of creditors, providing such appears to be the clear intention of the testator or donor as gathered from all parts of the instrument construed together in the light of the circumstances. The court will look to the intention disclosed by the whole instrument, rather than to the language employed in any particular clause of it.” 26 Am. & Eng. EnC. of Law 141-142. By the terms of the will the income of the money remaining in the land does not belong to James William Kerney. It belongs to an active trustee to be applied by that trustee to a sole and particular purpose. Kerney’s creditors can not reach it. Perry on Trusts, (Sixth Edition), sec. 386a, and notes thereto.
The argument that the trust was created by the beneficiary himself, by his selling the land, and that therefore it is not valid as against creditors, is not tenable. The testator created the trust. We can not see it in any different light than if he had directly created such trust in the first instance by directing twenty-five hundred dollars in the hands of a trustee to be put out at interest solely for the use and support of his son during life.
It is said that a part of one of the debts sought to be taken from this income was contracted by James William Kerney for the support of himself and family. Though that issue is raised by the pleadings, there is not a word of proof to substantiate the fact, even if it would alter the case.
It is not our province within the limits of this case to decide as to whom the twenty-five hundred dollars will belong at the death of James William Kerney. The interpleader has not asked for a disposition of that question, nor can he ask it until occasion therefor arises.
The decree is right. It will be affirmed.
Affirmed. | [
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POEEEUBAUGER, JüDGE t
Marion Peterson recovered a judgment for $15,000.00' against the Paint Creek Collieries Company, in the circuit court of Kanawha county, as damages for loss of an arm, alleged to have been caused by the negligence of the defendant. He was a motorman in the employ of the company and the arm was injured by a fall of stone, slate or shale at a place near the mouth of the mine while he was coupling cars. Shortly after the injury, it became necessary to amputate the arm in order to save his life.
The seven counts of the amended declaration, a demurrer to which and each count thereof was overruled, proceeds upon two theories, the assumption of the duties of the mine boss by the company itself through its manager, and failure of the defendant to supply timber and materials for shoring up the roof of the mine at the place at’which the accident occurred, so as to make it a safe place in which to work, after notice of its defective and dangerous condition. The first, third, fifth and sixth counts proceed upon the first theory, and the second, fourth and seventh upon the other. Those of each class vary somewhat in the mode of statement, but their purpose is to fix liability on the same ground. The first says the manager of the company examined the roof, of the main entry at the place at which the plaintiff was injured and found it loose and: liable to fall upon any one passing thereunder “and undertook-himself in the place and stead of the mine-boss of said mine to have said danger remedied”; the third that the mine boss “gave notice to the defendant of the dangerous condition of the roof of said mine in a place thereof at or near the drift-mouth thereof, and at the point or place where plaintiff was subsequently injured, and his reliance on the defendant to repair and put into a safe condition said point or place in said roof, which consisted of dangerous masses of rock, slate, earth, etc., insecurely attached to the roof thereof, and liable to fall at any moment, which duty was assumed by it, then and there and retained !by it up to and including the happening of the event of the injuring of the plaintiff”; the fifth that the manager or agent, finding the place in the roof of the main entry, within a few feet of the drift-mouth, the place at which the injury occurred, in a bad condition and dangerous because liable to fall, “undertook and did assume charge and control thereof in the stead and place of the mine boss of said mine, and completely ousted, him from any work at said place relating to said defect in said roof aforesaid, and all responsibility as to its condition, and as such manager or agent thereof overlooked the necessity of erecting props or supports at such point”; and the sixth that the manager examined the roof at the point in question “and found the same loose and in a condition liable to fall upon any one passing thereunder, and could have by the exercise of reasonable care in inspecting the same and acting on the knowledge-thereby disclosed, have kept said passageway reasonably safe for plaintiff and others.”
The second count charges bad condition of the place and that the mine boss reported to the operator his inability to comply with his duties, imposed by the statute, respecting measures, of safety of the haulway and failure of the operator to-take such action as was necessary, although a space of time intervened between the notice and the injury sufficient to permit the .taking down of all the bad roof or such other measure of safety as was necessary; the fourth, that the mine boss made a requisition or demand upon the manager of the company for timbers and material to be used to support a place in the roof at or near the point at which the injury occurred, which the mine boss had considered dangerous, and that the manager had promised to supply them; and the seventh, that the company negligently permitted the roof of the haulway of the main entry at the place of the injury to become unsafe and dangerous, which the mine boss was unable to remedy because the defendant failed to furnish suitable props, caps and timbers to secure the loose coal, slate and rock, and that the mine boss notified the defendant of the dangerous condition of the haul-way at that point and of his inability to remove the loose coal, slate and rock or safely to secure the same so as to prevent danger, and also that he did not have the necessary props, caps and timbers with which to do so, whereupon it became the duty of the defendant either to remove the loose coal, slate and rock, if practicable, or if not, to make the same secure or provide suitable props, with which the mine boss could have done so. These allegations were accompanied by averments of breaches of the duties alleged.
The third and sixth counts, showing no more than notice of the defective condition of the roof by the mine boss to the defendant, ignorance of this condition by the plaintiff and failure of the defendant to remedy the defect and consequent injury to the plaintiff, fails to show any ground of liability, since the statute makes it the duty of the mine boss to keep the haulways and working places in a safe condition, the mine owner furnishing the materials of course. They charge no neglect of duty on the part of the owner in this respect, nor show any demand or requisition for materials or any knowledge of the lack thereof on the part of the owner. The sixth avers defendant’s knowledge of the defective condition of the roof at a time some weeks prior to the injury and, upon that, charges duty to exercise reasonable care in inspecting the place and keep the passage way reasonably safe. This was the duty of the mine boss, and, for aught that is alleged in this count, the manager was justified in assuming that he would remedy the defect. jSTo requisition or demand for materials or tools, nor any lack of the same is averred. The second is equally defective. The mine boss’s notice of his inability to remedy a defect does not absolve him from further duty. It was still incumbent upon him to do the work or cause it to be done, if the operator furnished the necessary machinery, labor and materials. As to whether the operator furnished them, the count is silent. Its purpose is, upon such notice, to devolve all duty in the premises upon the owner, contrary to the express terms of the statute.
To first and fifth, charging usurpation of the duties of the mine boss by the operator and the exclusion of the former from his duties and functions in the mine stand upon a different footing. Under the statute, the owner or operator of a mine is absolved from certain duties and liabilities by his employment of a mine boss. In the operation of a mine without a mine boss, his status is that of an ordinary employer of labor and he remains subject to that general mass of law defining the rights, duties and liability, incident to the relation of master and servant. If, having employed a mine boss as the law requires, he oust him from the duties devolved upon him by the statute and undertakes to perform them himself, he stands logically and practically in the same situation as if he had not employed him at all. He does that which the statute forbids and fails to obey its command as to those things which he assumes to do in the place of the mine boss. Under such circumstances, the protection of the statute cannot be reasonably invoked, because the relation does not exist. It requires compliance with the statute in substance and effect to confer upon the mine boss the independence and superiority, accorded to him by the-decisions in Bralley v. Tidewater &c. Co., 66 W. Va. 278, Squilache v. Coal & Coke Co., 64 W. Va. 337, and other cases cited in the brief for the plaintiff in error, the doctrine of which is not at all questioned or impaired by this conclusion. As to these counts, we are of the opinion that the demurrer was properly overruled.
The fourth and seventh counts, charging notice of the defect, inability to remedy it on account of lack of materials, and demand for the same and non-compliance therewith, seem to make a clear case of negligence on the part of the operator under the express terms of the statute, making it the duty of the operator or his agent, under such circumstances, “to at once attend to the matter complained of by the mine foreman, so as to enable him to comply with the provisions hereof, if the same can be practically done.” Against this view nothing is urged except the general rule of non-liability, declared in so many cases for failure of duty on the part of the mine boss only. In every case of the application of this rule, the court has carefully distinguished between statutory duties of the operator and those of the mine boss. In no instance, has that rule been permitted to absolve the former from liability for injury resulting from his failure to do anything required of him. So we think these two counts are clearly good.
The evidence to sustain the two theories of liability, set forth in the declaration, goes back in date more than one month before the occurrence of the injury. None of it indicates usurpation of the powers of the mine boss in charge at the date of the injury nor any ouster or exclusion of that official by the operator or its agent. Neither is there any evidence of notice by that mine boss to his employer of his inability to remedy the defect in question or demand by him for machinery or materials necessary to enable him to remove or remedy the same. Evidence was adduced, tending to prove exclusion of a former mine boss or usurpation of his powers by the defendant’s manager and notice to the latter of the former’s inability to remedy the defect and a promise on the part of the manager to do the work himself, or cause it to be done, upon which the mine boss relied as matter of excuse for his failure to do so. This occurred in December, 1907, when one Parsell was the mine boss. On the last day of January or first day of February, 1908, Parsell ceased to be the mine boss and one Edward Morris took his place. Thereafter, on the 3rd day of March, 1908, the plaintiff was injured by the falling of rock or slate from the roof. As to the character of the defect, whether latent or apparent or discoverable by inspection, there is much conflict in the testimony, the . defendant claiming the rock which fell was what is known among miners as a “pot” or “kettle bottom,” supposedly a petrified stump imbedded in the shale or slate so firmly as to give no evidence of its presence when the roof is sounded, but falls by reason of exposure to the air; and the plaintiff claiming the substance which fell was ordinary slate or shale. Not a particle of evidence, tending to prove any interference with Morris’s powers and duties by the manager of the defendant company or any other representative thereof, after he entered upon the discharge of his duties, is disclosed by the record. There is considerable evidence tending to prove a defective and dangerous condition in the roof of the mine, both before and after the employment of Morris, and of the manager’s knowledge thereof, and there is some testimony tending to impeach the testimony of Morris as to what he did to improve its condition by the removal of loose slate and the placing of posts and timbers in the mine. His competency, however, is not attacked either in the declaration or by the evidence.
In this conclusion we'have not overlooked the effort to prove a demand by Morris upon Kern, the mine superintendent, for timbers and materials and Kern’s promise to supply them and his failure to do so, by the testimony of the plaintiff and witness Koontz. On cross-examination, Morris was asked whether he had not stated to Peterson and Koontz that he had notified Kern, the superintendent, that the place was dangerous and required timber to fix it and make it safe, and that Kern had told him he would send the timber and have the place made safe. Morris said he had not, but that he had had a conversation with Kern about timbering the mouth of the mine after the injury of Peterson, because the workmen, after that, had become nervous about it, — “suspicious of it,” to use his terms. He was also asked whether he had not, in the same conversation, said Kern had failed to supply the timber and he had himself gotten three posts and done the best he could before the accident. This Morris also denied positively. Peterson, in his rebuttal testimony, says Morris made the statements and had said he made the demand before the accident. Koontz also says he admitted he had notified Kern that the place was dangerous and Kern had said “Well, we will timber it,” or words to that effect. If adimssible at all, this evidence contradicts 'Morris and goes to Ms credibility, but it wholly fails to prove any demand upon Kern or any other managing agent of the company. Kern also positively denies that Morris ever made such a demand before the accident and no witness testifies of his own knowledge that it was made. Neither Peterson nor Koontz pretend to say they heard Morris tell Kern what they say he admitted to them, and there is not a scintilla of evidence tending to prove the actual demand or notice. It cannot be received to prove notice or demand. Morgan v. Insurance Co., 6 W. Va. 496; Forde v. Commonwealth, 16 Grat. 547; Charlton v. Unis, 4 Grat. 50.
As the case stood at the time, the evidence was inadmissible for the purpose of impeachment. Whether Morris had given such notice or made such a demand was not in issue in the sense of evidence pro and con. Morris had not then denied it and nobody had asserted it as matter of evidence. The question propounded to him was not inconsistent with anything he had said. At that time, it was wholly outside of any issue developed by the evidence, and brought before the jury a collateral matter in an effort to discredit the witness. Under principles declared in State v. Goodwin, 32 W. Va. 177, the plaintiff was bound by Morris’s answer as to his alleged admission and could not adduce evidence to contradict it. Whether the cross-examining party would be entitled to prove the matter inquired of as a part of his case determines its character as to materiality. If the cross-examining party cannot prove the matter as a part of his case it is collateral and not a subject of cross-examination for ground of impeachment, unless the witness has made it a subject of his testimony in chief. State v. Goodwin, cited. Morris had made no reference to his alleged admission in his testimony in chief, and the plaintiff could not have proved it as a part of his-case, for it was made, if at all, long after the accident and was no part of the res gestae. To bind his principal, the declaration of an agent must have been a part of the res gestae. Hawker v. Railroad Co., 15 W. Va. 628; Corder v. Talbott, 14 W. Va. 277; Clark & Skyles on Agency, pp. 1029-31, secs. 468, 469. Hence the trial court should have sustained the objections to the offers of proof of the admission.
Section 11 of chapter 154 of the Code makes it the duty of the mine boss to keep a careful watch over the ventilating apparatus, the air-ways, traveling-ways, pumps and drainagé; to cause all loose coal, slate and rock overhead in the working places and along the haulways to be removed or carefully secured so as to prevent danger to persons employed in the mine; and to cause sufficient props, caps and timbers, as nearly as possible of suitable dimensions, to be furnished for the places where they are to be used. Failure of duty on the part of the mine boss, respecting any of these matters, resulting in injury to any person working in the mine, imposes no liability upon his employer, because, under many decisions of this Court, so well known as to need no citation, he is held to be a fellow servant of the miners.
We are asked to re-examine and overrule this line of decisions, notwithstanding our recent re-examination thereof. Nothing is found in the brief, however, that has not been carefully and thoroughly considered. The variance of the terms of our statute from those of the Pennsylvania statute has been deemed insufficient to justify'a construction different from that adopted by the Pennsylvania court, and the reasoning of the Indiana and Illinois courts, leading to a different construction, has been carefully considered on former occasions, and held insufficient, in our opinion, to warrant the overruling of the decisions, complained of.
At the time of the injury and for a month prior thereto, Morris was in charge of the mine as mine boss, unrestrained by any limitation upon his powers and unexcused from duty, so far as the evidence discloses, by any promise or undertaking on the part of the manager to perform any of such duties for him, if, indeed, such an undertaking or promise would constitute an excuse for his neglect to perform them. He was no party to the conversation between the manager and his predecessor, Parsell, in the preceding December, nor does he appear to have had any knowledge of it. He says he made daily and thorough inspections of the roof and took down a great deal of slate in dangerous places and put up props in others. As to some of this his testimony is contradicted by alleged admissions, but, if it is false, there is proof of no more than neglect of duty, resulting in injury to a fellow servant for" which, under the law, there is no right of recovery against the employer.
A necessary sequence from this conclusion is the insufficiency of the evidence to sustain the verdict or justify the court in giving plaintiffs instruction No. 1, reciting hypothetically the danger, the mine boss’s notice thereof to the employer, his lack of sufficient props, caps and timbers, the duty of the defendant to provide them or cause the place to be made safe, and the injury resulting, and requiring a verdict for the plaintiff, in the event of findings in his favor upon the questions submitted. As these vital contentions were unsustained by any evidence at all, there was no warrant in law for the giving of the instruction. To warrant an instruction there must be some evidence, tending in an appreciable degree to prove the essential elements of right of recovery. For the same reason, plaintiff’s instructions No. 2, relating to the measure of damages, in the event of a finding for the plaintiff, (an impossibility for want of evidence), and No. 3, relating to the credibility of witnesses, (which did not properly arise at all since the evidence disclosed no issue), should have been refused.
Plaintiff, a motor runner, was injured while coupling cars in the absence of the man employed for that purpose. Defendant’s instruction No. 1 would have told the jury he could not recover, because he was injured while away from his post of duty. The evidence shows it was customary for the motor runner to couple cars in the temporary absence of the ear coupler. That alone justified the court in refusing the instruction. Defendant’s instructions Nos. 4, 8 and 9, absolving the defendant from liability from injuries resulting from neglect of duty on the part of the mine boss, were improperly refused. Defendant’s instruction No. 12, intended to advise the jury against right to find for the plaintiff on the theory of incompetency of the mine foreman was improperly refused, since there was no allegation of his incompetency nor any.evidence tending to prove it. Defendant’s instruction No. 14 was substantially the same as Nos. 4, 8 and 9 and should have been given. Defendant’s instruction No. 15 denying right of recovery unless the jury should find the place at which the accident occurred unsafe when the defendant took charge of the mine and began to operate it, was properly refused, it appearing that the defendant had bought out another company sometime prior to the action. The instruc tion would have been misleading and was inapplicable. Defendant’s instruction No. 17, reciting at length the purposes of the statute requiring employment of mine bosses, the reasons which impelled the legislature to enact it and its wholesome effect and operation, was properly refused because it was argumentative. Instruction No. 18, declaring a presumption of competency on the part of the mine bosses, Morris and Par-sell, was properly refused, since their competency was not put in issue. Incompetency was not alleged. Instructions Nos. 20 and 16, the latter a modification of instruction No. 15, were properly refused for the reasons stated in disposing of No. 15, as at first presented.
Pour of the ten special interrogatories asked for by the defendant were refused. The object of one of these was to obtain a finding as to when the roof of the haulway became unsafe, if at all, and what particular act of negligence was the proximate cause of the injury. Another asked for a finding as to whether mine boss Morris was relieved of any duty through the defendant’s general manager. Another was in substance the same as the one just described. Another was intended to ask the jury whether plaintiff was injured by reason of the incompetency of the mine foreman. The last three were properly refused because they relate to matters as to which there was no issue. The first one was properly refused because of its generality and inconclusiveness.
On cross-examination of witness Lavender, the court sustained an objection to a question as to the character of fallen slate in the mine. This was matter as to which he had not testified in chief. Hence, he was defendant’s witness and there was no showing as to what his answer would have been. Moreover, the defendant was not entitled to propound such a quest'on on cross-examination. He should have introduced the witness as his own for the elicitation of such evidence. On the cross-examination of Parsell, the court sustained an objection to a question as to why he did not call on the defendant’s agent in charge of timber and make him furnish such timber as he needed. In this, the court did not abuse its discretion. The witness had already repeatedly given his reason for not demanding timbers. The court struck out, over the objection of the defendant, an answer of its witness, Veazy, describing the character of the roof around the place from which the rock or slate had fallen. This was non-prejudieial because the witness, in response to other questions, was permitted to testify to the same thing. Objections were sustained to two other questions propounded to Veazy. As the record fails to show what his answers would have been, we are unable to say the court erred in sustaining the objections. For the same reason, we are unable to say whether it erred in sustaining objections to several questions propounded to the witness Rogers. An answer of this witness as to the condition of the mine at the place at which the injury occurred about a year after the accident was excluded on the motion of the plaintiff. The remoteness in time justified the action of the court in this instance. An objection to a question propounded to the witness Morris as to whether Rogers, the manager, had given him any instructions that hampered him in the discharge of his duties was properly sustained, because the witness had repeatedly testified to his freedom in that respect. Besides, it does not appear what the answer would have been had the objection been overruled. The court permitted a witness for the plaintiff to testify, over the objection of the defendant, to his opinion as to whether the fallen rock was a kettle bottom. He was an experienced miner and necessarily had knowledge on that subject superior to that of the jury. Moreover, like other persons, he was no doubt unable to describe the fallen substance as fully and thoroughly as it appeared to him on inspection. Hence, we think the court properly permitted him to answer the question.
For the errors noted, the judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed and Remanded. | [
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Robinson, Judge:
The writ of error herein lies to a judgment in habeas corpus proceedings, giving to Peter Hurley the custody of his infant son. It will serve no purpose to detail the fad» — sentimental and romantic though they be — out of which the proceedings arose. The story is an old one, of a marriage, a child, a separation, and a determined effort on the part of each parent to deprive the other of the custody of the offspring.
The writ issued against Mary Ellen Hurley, the mother of the child., and E. M. Ashcraft, its step great grandfather, who had been appointed its guardian, though the child had no estate. Both of these parties made due return to the writ. The mother disclaimed that she had the custody of the child and averred that it was in the custody of its duly appointed and qualified guardian. The guardian made return that the child was lawfully in his custody, averring that the father had abandoned the child, and that in any event he was wholly unfitted to have its custody by reason of immorality and other shortcomings on his part.
As to the matters arising on the writ and the returns thereto, the court heard verbal testimony of witnesses for both the petitioner and the guardian, together with one deposition for the latter. A decree of divorce and the record on which the same was based, in a suit by Mary Ellen Hurley against Peter Hurley, was also considered. The decree of divorce had been obtained shortly prior to the trial of the proceedings in habeas corpus. The grounds alleged for the divorce were cruel and inhuman treatment. The decree was obtained in the absence of the defendant and merely on order of publication. Though the custody of the child was sought by the mother in the divorce suit, the decree was silent in that regard.
Respondents submitted themselves to a trial of the matters arising on, the returns, notwithstanding those matters were not traversed by replications. How they insist that the facts alleged in the returns were conclusive because they were mot denied. Though the case was tried as if replications to the returns were in, they would have the court reverse merely for the want of the replications. We concede that the matters set up in the returns, without more, would suffice to deny the judgment. But the court heard more. It heard proof in denial of the matters on which respondents relied. If the case had rested on the returns simply, the judgment would be clearly wrong.. They were complete answers denying that which petitioner sought. Brand v. Swindler, 68 W. Va. 571. However, when the case has been tried as though the returns were denied, we should not be so technical as to reverse and remand merely for an opportunity to put in that which really was considered as in.
It is true that trial by jury without issue joined is error for which the judgment will be reversed. Shires v. Boggess, 68 W. Va. 137. We are not willing, however, to carry that common law principle further and apply it in proceedings like those under consideration. The principle did not originally apply in habeas corpus as it originally did, and still does, in ordinary trial actions. At common law the return in habeas corpus was conclusive ; .there was no call for issue and trial of fact. Church on Habeas Corpus, (2nd Ed.), sec. 149. By statute, habeas corpus has been liberalized. “In this State the court is not precluded by the return from inquiring into the truth of the matters therein alleged.” State v. Reuff, 29 W. Va. 751. The statute provides for trial of fact beyond the return. The court or judge may'hear “the matter both upon the return and any other evidence.” Code 1906, ch. Ill, sec. 6. The statute does not specifically provide for a replication to defensive matter in the return as a prerequisite for a hearing or trial thereon. Perhaps, it would be good practice to employ a replication so as to make an issue on .the return before the hearing. It would, at least, be promotive of regularity to do so. But neither by the common law nor by statute has a replication in such case ever been directly demanded.
The writ of habeas corpus as a remedy in cases pertaining to the custody of infants is of an equitable nature. Green v. Campbell, 35 W. Va. 698. Why should the technical rules of the common law be applied to it so far as to reverse for the mere failure to make a complete joinder of issue ? Habeas corpus proceedings in such cases are analogous to suits in equity. The want of a replication in a suit in equity where the defendant has taken proof as if there had been a replication can not be ground for reversal. Code 1906, ch. 134, sec. 4. Of course we do not mean to say that this statute applies to habeas corpus proceedings. It does, however, indirectly bear on all proceedings that are analogous to suits in equity. It shows the spirit of our jurisprudence in relation to the want of a replication in proceedings of an equitable nature where the parties have proceeded as if a replication was filed.
Some other technical objections to the proceedings are raised. They are plainly untenable and demand no further comment.
The law in relation to the rights of parents to the custody of their infant children is fully enunciated in former decisions of this Court. It needs no repetition at our hands. Mathews v. Wade, 2 W. Va. 464; Rust v. Vanvacter, 9 W. Va. 600; State v. Beuff, supra, Green v. Campbell, supra; Cunningham v. Barnes, 37 W. Va. 746. The case under consideration calls for the application of no new principle. Indeed the general principle applicable for the determination of the case is found in the statute itself, wherein it provides: “The father of the minor, if living, and in the case of his death, the mother, if fit for the trust, shall be entitled to the custody of the person of the minor, and to the care of his education.” Code 1Q06, ch. 88, sec. 7.
“The father is the natural guardian of his infant children, and in the absence of good and sufficient cause shown to the judge or court, such as ill usage, grossly immoral principles or habits, want of ability, etc., is entitled to their custody, care and education.” Rust v. Vanvacter, supra. In connection with this statement of the law, Judge Haymond said: “The custody of the minor will be assigned to the person having the right, unless it appears he is an improper person to take it. And when such person has not the custody, and is seeking to he restored to it, the court will exercise its discretion according to the facts, consulting the wishes of the minor, if of years of discretion; if not, exercising its own judgment as to what will be best calculated to promote the interest of the child, having due regard to the legal rights of the party claiming the custody.”
In the proceedings we have here for review, the father is seeking the custody of his infant son. The statute gives him the right to that custody if he is fitted for the trust. The case involves no considerations that affect the statutory rule, such as we find in Green v. Campbell, supra, and Cunningham v. Barnes, supra. Respondents met the demand of petitioner for the enforcement of his legal right to the custody of his child by alleging that he was unfitted for the trust by reason of neglect, immorality, bad temper, want of ability, and other considerations. The court that had the parties themselves and practically all the witnesses before it has ruled against the contention that the father is so unfitted as to be denied the custody of his son, or that the child’s welfare demands that the custody be left with the-step great grandfather.
A careful review of all the evidence in the case leads us to-the conclusion that respondents did not show that the father was-so unfitted for the trust as to be denied that which was his both by nature and by the terms of the statute. Certain it is that, we do not feel justified in disturbing the finding in that behalf' made by a considerate and just trial judge. It is not proved that the father is a bad man. He is shown to have some derelictions, as all human nature has. The age of the perfect man is-not yet at hand. Upon the whole, the evidence shows Peter Hurley to be a sober and industrious man. It shows that he is affec tionate toward his child. It shows that fortune has recently come to him so that he can well provide for his son. The charge that he abandoned the child to strangers is not sustained. Nor does it appear that the best interests of the child so demand that it be left where it is as to outweigh the legal right of the father to its custody. There are considerations in relation to the situation of respondents that must have weight in the determination of the serious question of the child’s welfare. No doubt these considerations controlled to some extent the finding made by the trial judge.
The legal rights of the father and the circumstances of the case in other respects lead us to an affirmance of the judgment.
Affirmed. | [
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Robinson, Judge:
Bartholow performed labor and furnished material in the building of a house for Iioge, under a contract with Connell, the principal contractor. Pursuant to the statute, Bartholow asserted a lien on the house and lot for an amount which he claimed as due from Connell for the labor performed and material furnished. For the enforcement of the lien this suit was instituted by Bartholow against Iioge, the owner, and Connell, the principal contractor. Defendants answered that Connell had paid to plaintiff all of the contract price for the labor and material but a small sum, as to which remaining sum tender was made. So a definite issue arose as to whether plaintiff has been paid the debt for which he claimed the lien.
Connell, produced two paid checks drawn by him in plaintiffs favor, each with a memorandum thereon that it was given in payment for the work on the Iioge contract. If these checks were so directed to be applied, they practically paid the debt as defendants contend. But’plaintiff maintained that the checks when delivered to him by Connell bore no such memoranda, that he had. no direction as to the account on which they were to be applied by him, and that he applied them toward payment for other work he had done for Connell. Thus the issue narrowed down to whether these checks were indeed directed by memo-randa on them to be applied to the Iioge contract, or whether that memoranda had been placed on them, as plaintiff contended, by Connell after he obtained the paid checks from the bank.
Depositions were taken by plaintiff and defendants, and the cause was submitted for decision. At a later term, the court, having inspected the papers, directed the parties to take further and additional proof. Defendants objected to this order. Additional evidence was thereafter taken and filed by both plaintiff and defendants. "When the cause came on again to be heard, the court found such conflict in the evidence that it directed an issue out of chancery to be tried to ascertain whether Con-nell owed plaintiff the claim, or any part thereof. On the trial of this issue the jury found for plaintiff the debt claimed by him. The court overruled defendants’ motion to set aside the verdict, and certified the verdict to the chancery side. Thereafter the decree from which defendants have appealed was made in the cause. That decree finds that plaintiff has a valid mechanics’ lien against the property of Hoge, for the amount claimed by plaintiff and found by the jury to be due him from Connell. It subjects the house and lot of Iioge to sale for the payment thereof.
It is submitted that the bill is bad and that the demurrer thereto was improperly overruled. The bill quite definitely sets up the lien sought to be enforced, and alleges every fact essential to its enforcement. Defendants say that the allegation that the itemized account was filed with the owner “within thirty-five days after said work was performed” is not sufficient, in that the statuate requires such itemized account to be filed with the owner within thirty-five days after the labor is performed or the material is furnished. But it plainly appears from a reading of the bill that the words “said work” relate to the performance of labor and the furnishing of material alleged in a part of the bill preceding the use of these words. The allegations of a bill setting up a mechanics’ lien need not be in the ■exact language of the statute, but need only to show that, in the assertion of the lien, the statute has been complied with.
Defendants say that it was error for the court, after taking the cause for decision, to direct that further proof be taken. This action would seem to be within the inherent power of a court--of chancery. We know of no good reason why a chancellor, in ■ the furtherance of justice between the parties, may not call for additional evidence in order that extremely doubtful points of fact may be elucidated and more intelligently decided. “The matter rests largely in the discretion of the chancellor, who may reopen a case where some additional fact or inquiry is indispensable to enable him to make a -.satisfactory decree.” Fletcher on Equity Pleading and Practice, 691. Lord Bacon, in formulating his Ordinances in Chancery, provided for the ■examination of witnesses after publication of the evidence, to be taken by special order ad informandum. conscienliam judicis. The practice in proper cases has long been sanctioned. Mr. Justice Story stated the rule thus: “Hew evidence to inform the conscience of the judge should not be taken but upon or after the hearing, when the jiidge himself entertains a doubt, or when ¡some additional fact or inquiry is indispensable to enable him to make a satisfactory decree.” Wood v. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953. Plainly, from the terms of the order in the case before us, it was in recognition of this rule that the order' for the further taking of evidence was made. As we have seen, the matter was largely in the discretion of the court, and its discretion in the premises appears to have been properly exercised.
It does not appear that the court improperly directed the issue to be tried by a jury. Hor is the form of the issue directed to be tried out of chancery at all out of conformity to the one demanded by the case. The assignments of error as to directing the issue and as to the form of the issue submitted to the jury, therefore, must be overruled. The determination of the single fact in issue — whether plaintiff had been paid the sum for which he sought to enforce a lien — rested on evidence that anyone must say by a reading thereof was so conflicting that it would cause the chancellor grave doubt. The briefs of both plaintiff and defendants tell us that two juries failed to agree on the issue directed, and that it was not decided until submitted to the third jury. This conceded fact certainly confirms the view that the evidence was extremely conflicting. In directing an issue out of chancery, the court has a sound, yet wide, discretion, which will not be disturbed unless clear abuse thereof appears. Alexander v. Davis, 42 W. Va. 465. Our statute, Code 1906, ch. 131, sec. 4, plainly states when such issue may be directed, wherein the chancery court is authorized to direct an issue to be tried by a jury whenever “there is such a conflict in the evidence, as in the opinion of such court, to-repder it proper.” That the court properly exercised opinion in this instance is beyond doubt. It asked a jury to determine a doubtful question of fact, and submitted that question in such simple form that the jury could not have misunderstood what' they were to determine.
But we find error in the decree which the court .entered for the enforcement of the lien. Though there was no contractual' relation between, plaintiff and Hoge, the decree is a personal one in favor of the former as against the latter. This is wrong.. Hoge owes plaintiff nothing. True, under the statute Hoge’s-property is liable for the debt. But the debt is that of Connell" to plaintiff. The statute makes the property of Hoge liable for- this debt of another, but it does not make him personally liable therefor, hi or does any relation of contract make Hoge personally liable so that a decree in favor of plaintiff may be made a personal one against him. “It is error to render a personal decree in such suit in favor of plaintiff against the owner, if there is no privity of contract between them.” Augir v. Warder, 68 W. Va. 752.
In so far as the decree adjudges that “P. M. Iíoge do pay to said plaintiff E. B. Bartholow, the sum of $400.00, with interest thereon from the 23rd day of November, 1909, until paid, and the costs of this suit/’ it will be reversed, set aside, and held for naught; but in all other respects the decree will be affirmed. And Iloge, appellant, having substantially prevailed upon his appeal, will be awarded his costs in this relation.
Reversed in part. Affirmed in part. | [
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Brannon, President :
On the 10th day of June, 1912, the council of the City of Martinsburg granted to T. W. Martin a license to sell at retail spirituous liquors at the Berkeley hotel in that city. On the 11th day of July, 1912, said Martin presented to- the county court of Berkeley county a certified copy of the order of the city council granting such license and asked the court to grant him a state license to sell such liquors at said hotel. The county court entered an order stating such application to it for such state license, and the council grant, and stating that Martin had paid the tax and complied with all the require ments of law in relation to the matter, and refusing to grant such state license. Said Martin now asks this .Court to grant him a writ of mandamus against the county court requiring it to grant such state license.
The case involves the construction of section 46, of chapter 6, of the Acts of the Legislature of 1909, the present charter' of Martinsburg. That section says that whenever anything for which a state license is required to be done within that city its authorities may require a license. A power of revocation of license is qlso given the city. This gives the licensing power to the city, indicating intent to give this populous important municipality an autonomy or self governing power as to this matter. This clause is followed by the language, “And no license to sell strong or spirituous liquors, or wine, or beer, ale, porter or drinks of like nature, within said city, or within two miles of the corporate dimits thereof, shall be granted by the county court of Berkeley county, unless the person applying therefor shall produce to said county court the certificate of the council of the city that said council has granted a city license authorizing said person to sell as aforesaid; and upon the production of said certificate before said county court, said court shall grant a state license to sell as aforesaid to said person, upon his compliance with all the requirements of law in relation thereto.”
Here is plainly further manifested a purpose to vest in the city the sole power to grant or refuse such license. We do not deem it necessary to further discuss the case, or go over the numerous points made in argument, as we are of the unanimous opinion that this ease is ruled by the case of Ward & Co. v. County Court, 51 W. Va. 102.
Therefore, we award the mandamus.
Writ Granted. | [
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POFEENBARGER, PRESIDENT:
Except in 'so far as they pertain to the arrest of the petitioners outside of the military district and their conveyance into it, the affidavits filed relate to conditions and circumstances relied upon as justification of the declaration of a state of war in the military district, and the argument for the most part deals with the main questions disposed of in Ex parte Nance and Mays, recently decided by this Court. Here, as in those cases, certain constitutional provisions are relied upon as authority for the position that, in the exercise of the constitutional and statutory power to suppress insurrection and repel invasion, the governor cannot declare a state of war and apply military rule, and that citizens arrested in the exercise of that power must be immediately turned over to the civil authorities for inquiry as to their guilt of the offenses of which they are accused and for trial by the civil courts, when there is probable cause to believe them guilty.
Nance and Mays had been tried by a military commission for offenses committéd within the military zone and sentenced to terms in the penitentiary and they sought liberation by writs of habeas corpus. To the extent of the claim of right in the governor to imprison them, pending the proceedings to suppress the insurrection, the court sustained him. The conclusion is summarized in the following terms: “Our present inquiry goes only to the legality of the custody of the respondents at the present time and under the existing conditions. The territory in which the offenses were committed is still under martial rule. It suffices here to say whether the imprisonment is, under present conditions, authorized by law, and we think it is. We are not called upon to say whether the end of the reign of martial law in the territory in question will terminate the sentences. Upon that question we express no opinion.” As a premise to this conclusion, the power of the governor to declare a state of war, to use the military forces to suppress insurrection or rebellion or repel invasion, and to establish a military commission for the punishment of offenses committed within the military zone and by its judgment impose imprisonment, notwithstanding the constitutional guaranty of subordination of the military to the civil power, the privilege of the writ of habeas corpus and the right of trial by jury in the civil courts for offenses cognizable by them, and the conclusiveness of the executive declaration of a state of war, were asserted. The power and authority of the court to interfere with the executive arm under such circumstances was denied. We also held and asserted this right and power in the executive as to a city, district or county of a state, notwithstanding the courts were open and sitting in other portions of the county.' But there was no attempt in the opinion filed in these cases to define or enumerate the offenses cognizable by the military commission or the extent of the punishments it may inflict. We were careful to say there were limits beyond which the executive could not go without subjecting himself or his officers and men to rights of action for damages on the restoration of peace and tranquility. We marked the distinction between executive power and the possibility of wrong doing in the exercise thereof.
A re-examination of the opinion in those cases in the light of further argument and additional authorities consulted, has developed no reason or cause for departing from the conclusions and principles there announced. On the contrary our impression as to the basic principles of that decision has been strengthened and confirmed. Considering the Constitution as a whole and endeavoring to give effect to all of its parts, we asserted power to set aside and ignore, to some extent, in the suppression of an insurrection, ordinary judicial process and remedies. The provisions of our Constitution relied upon as being inconsistent with this conclusion are perhaps no broader nor more positive in their terms than some of those of the federal Constitution, binding on the state courts as well as the federal. Power in the federal government to establish military rule and martial law over citizens as well as persons belonging to its land and naval forces and the militia engaged in its service, in enemy territory, whether in a foreign country or in sections of the Union in a state of insurrection or rebellion, is established beyond question.
During the occupation of the city of FTew Orleans by the military authorities and forces in the late war, General Dow was sued in a municipal court by one Bradish Johnson for the value of certain property, twenty-five hogsheads of sugar, a silver pitcher, half a dozen silvér knives, and Other table ware, taken by Captain Snell’s company under the command of General Dow. The defendant did not appear nor make any defense and there was a judgment against him by default. After the war, a suit was brought on this judgment in the Circuit Court of the United States for the district of Maine and the question of the validity of that judgment was certified to the Supreme Court of the United States. The court held that the state court had no jurisdiction of the cause of action, and that the judgment was void. Delivering the opinion of the -Court, Mr. Justice Field said: “This doctrine of non-liability to the tribunals of the invaded country for acts of warfare is as applicable to members of the confederate army, when in Pennsylvania, as to members of the national army when in the insurgent states. The officers or soldiers of neither army could be called to account civilly or criminally in these tribunals for such acts, whether those acts resulted in the destruction of property or the destruction of life; nor could they be required by those tribunals to explain or justify their conduct upon any-averment of the injured party that the acts complained of were unauthorized by the necessities of war. * * * * We fully agree with the presiding justices of the Circuit Court in the doctrine that the military should always be kept in subjection to the laws of the country to which it belongs, and that he°is no friend to the republic who advocates the contrary. The established principle of every free people is, that the law shall alone govern; and to it the military must always yield. We do not controvert the doctrine of Mitchell v. Harmony, reported in 13 Howard; on the contrary, we approve it. But it has no application to the case at bar. The trading for which the seizure was there made had been permitted by the Executive Department of our government. The question here is, What is the law which governs an army invading an enemy’s country? It is not the civil law of the invaded country; it is not the civil law of the conquering country: it is military law, — the law of war, — and its supremacy for the protection of the officers and soldiers of the army, when in service in the field in the enemy’s country, is as essential to the efficiency of the army as supremacy of the civil law at home and in time of peace, is essential to the preserva^ tion of liberty.”
In United States v. Diekelman, 92 U. S. 520, Mr. Chief Justice Waite, speaking of Diekelman, commander of a foreign vessel, suing for damages on account of detention by General Butler in the port of Hew Orleans, said: “When he entered the port, therefore, with his vessel, under the special license of the proclamation, he became entitled to all the rights and privileges that would have been accorded to a loyal citizen of the United States under the same circumstances, but no more. Such restrictions as were placed upon citizens, •operated equally upon him. Citizens were governed by m'ar- tial law. It was his duty to submit to the same authority. Martial law is the law of miltary necessity in the actual presence of war. It is administered by the general of the army, and is in fact his will. Of necessity it is arbitrary; but it must be obeyed. Hew Orleans was at this time the theater of the most active and important military operations. The civil authority was overthrown. General Butler, in command, was the military ruler. His will was law, and necessarily so.” Dow v. Johnson, cited, shows that then the municipal courts of New Orleans were open by permission of the commanding general. In Dooley v. United States, 182 U. S. 222, Mr. Justice Brown quoted with approval the following from Halleck in his work on International Law: “The right of one belligerent to occupy and govern the territory of the enemy while in its military possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do not look to the Constitution or political institutions of the conqueror, for authority to establish a government for the territory of the enemy in possession, during its military occupation, nor for the rules by which the powers of such government are regulated and limited. Such authority and such rules are derived directly from the laws of war, as established by the usage of the world, and confirmed by the writings of publicists and decisions of courts — in fine, from the law of the nations. * * * The municipal laws of a conquered territory, or the laws which, regulate private rights, continue in force during military occupation, except so far as they are suspended or changed by the acts of the conqueror. * * * He, nevertheless, has all the powers of a de facto government, and can at his pleasure either change the existing laws or make new ones.” This was said' of an American military commander operating in the Island of Porto Rico during the Spanish-American war. The same court, in New Orleans v. Steamship Co., 20 Wall. 387, declares the same law applicable in domestic territory in a state of rebellion. Of the power of the military government over the city of Hew Orleans, after this conquest, the court said the-military government had “the same power and rights in territory held by conquest as if the territory had belonged to a. foreign country and had been subjugated in a foreign war.. In such cases the conquering power has the right to displace the pre-existing authority, and to assume to such extent as it may deem proper the exercise by itself of all the powers and functions of government. It may appoint all the necessary officers and clothe them with designated powers, larger or smaller, according to its pleasure. It may prescribe revenues to be paid, and apply them to its own use or otherwise. It may do anything necessary to strengthen itself and weaken the enemy. There is no limit to the powers that may be exerted in such cases, save those which are found in the laws- and usages of war. These principles have the sanction of all publicists who have considered the subject.” This enunciation of principles was quoted by Mr. Justice Brown and approved by the United States Supreme Court in Dooley v. United States as late as the year 1900.
“Martial law is the temporary government and control by military authority of territory in which, by reason of war or public disturbance, the civil government is inadequate to. the preservation of order ■ and the enforcement of law.” 40 Cyc-3S7. “The proclamation of martial law establishes the will of the military commander as the rule of authority. His will, however, is not to be arbitrarily exercised, and it usually supersedes the local law only so far as necessary for the preservation of order, and, in case of invasion, the supremacy of the conqueror.” 40 Cyc. 390. The article from which these quotations are made was prepared as late as 1912 by George-Grafton Wilson, Professor of International Law in Harvard University, Lecturer on International Law in -Brown University and in the United States Uaval War College. Of the duration of martial law, he said: “The duration of martial láw is. determined by the necessity which led to its establishment, and it therefore ceases as soon as the civil authorities are able to-resume the unobstructed exercise of their ordinary functions.” 40 Cyc. 319.
In the great contests in England over the interpretation-of the unwritten constitution and to maintain its integrity and guaranties, this principle was admitted by the stoutest and' most radical of the opponents to royal aggression and encroachment. Hear the admission of Mí. St. John, counsel for John- Hampden, in the Ship Money Cases: “My Lords, from this Objection of sudden Danger, I come to the next, which is the third thing being offered unto your lordships, which is an admittance, that the danger may sometimes be such, that the Subject’s goods sometimes without their consent may be taken from them; for Property being both introduced and maintained by human laws, all things by the law of nature being common, there are therefore some times, like the Philistines being upon Sampson, wherein these cords are too weak to hold us. 'Necessitae enim’ (as Cicero saith) ‘magnum humanae imbecil-liatis omnem legem frangit;’ at such times all property ceaseth, and all things are again resolved into the common principles of nature.” State Trials, Yol. III., p. 903. Likewise Sir Edward Littleton for the King, p. 959: “In the next place, they say, if the king be in the field with his banners displayed; this they say was tempus belli. Cannot the courts of justice sit then, but there must be a peace? 39 Ed. 3 Rot. 10 Did not the court of justice sit then? Our ordinary printed books show what causes of law then were. And in Henry 6’s time, in all our civil wars, and in Henry the 7’s time, they sat then. But the true time, to make it tempus belli, is to make a war against the king.” Then the admission of Mr. Holborne, on behalf of Mr. Hampden, p. 975: “Now in times of necessity, there is a law that doth compel; nay, there is a stronger penalty than our laws can imagine; for our laws can make but a penalty of all that you have; but How? To the King. But when there is a danger from an enemy there is not only a danger of losing all that one hath, but of losing lives and lands, and all that we have; and all into the hands of the enemy.” Sir George Crooke, justice of the Kings Bench, delivering his opinion in favor of Hampden and against the King, said, p. 1162: “Royal power, I account, is to be used in cases of necessity, and imminent danger, when ordinary courses will not avail; for it is a rule, ‘Non occurrendum est ad extra-ordinaria, quanda fieri potest per ordinaria/ as in cases of rebellion, sudden invasion, and some other cases, where martial law may be used, and may not stay for legal proceedings. But in a time of peace, and no extreme necessity, legal courses must be used, and not royal power.” Likewise Sir Richard Hutton of the Court of Common Pleas, resolving against the King, p. 1198: “Por I do agree in the time of war, when there is an enemy in the field, the king may take goods from the subject; such a danger, and such a necessity, ought to be in this case, as in case of a fire like to consume all without speedy help, such a danger- as tends to the overthrow of the kingdom.” Sir Humphrey Davenport, also advising in favor of Hampden, said, pp. 1214, 1215: “I hold it real, that when any part of the kingdom is in danger, actually in danger, or in expectancy of danger, and the same expressed by his writ; I agree, the king may charge the subjects without parliament, towards the defence thereof; for ‘necessitas est lex temporis’ in vain to call for help when the enemy is landed. Clearly I hold the king to be the sole judge of the danger: And the danger being certified by his majesty, I hold it not traversable; and in such a case he may charge the subject without parliament, so that the very cause be effectually expressed upon the records, that the kingdom was in danger.”
An observation in Dicey’s Law of The Constitution, a recent work by an English author, at page 289, seems to deny such power to the British Sovereign in England only, not elsewhere in the kingdom, and cites as authority Wolfe Tone’s Case, 27 St. Tr. 614. Tone was sentenced to death in Ireland by a military commission, and committed .'suicide before arrival of the time of execution. On the day set for execution, and before Tone died, Mr. Curran, his attorney, appeared in the Kings Bench, and applied for a writ of habeas corpus, which, being granted, was ignored by the military officers. In applying for the writ, Mr. Curran said, p. 625': “In times when war was raging, when man was opposed to man in the field, courts martial might be endured; but every law authority is with me, while I stand upon this sacred and immutable principle of the constitution — that martial law and civil law are incompatible; and that the former must cease with the existence of the latter.” Tone’s Case was like that of Milligan, 4 "Wall. 2. There was then no actual war, nor proclamation thereof, in Ireland. Tone had been captured at sea in a French vessel, bound for Ireland on an expedition of invasion. By some authorities, Wall’s Case, 28 St. Tr. 51, is relied upon as being against the proposition laid down by the federal Supreme Court. As commander of a garrison on the Island of Goree on the African coast, Wall had caused a soldier of his garrison to be beaten to death. That man’s rights were governed by the general civil law and the British statutes, relating to discipline of the army. His rights were invaded in neither a time nor a place of war. Wall was convicted of murder on an issue as to whether he had acted in good faith under belief of the existence of a mutiny, headed by his victim, or on a mere pretext and with malice.
But Mr. Dicey does not in fact deny the proposition. On the contrary, he admits it, and cautions the student against the danger of being misled by non-observance of the different senses in which the term “martial law” is used. See page 284. He says martial law in the proper sense is unknown to the law in England. Page 283. Then he says: “Martial law is sometimes employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law. This right, or power, is essential to the very existence of orderly government, and is most assuredly recognized in the most ample manner by the law of England.” Page 284. Thus we find Mr. Dicey is merely denying the right of martial or military rule over • citizens outside of the theatre of actual war and admitting its existence in the war zone, just as do Judge Advocate General Leiber, Prof. Ballan-tine and other writers on the subject, as will be hereinafter shown. He is distinguishing the war power of government from the peace power.
Ho doubt Patrick Henry and Thomas Jefferson were familiar with the British Constitution and had carefully studied Magna Charta and the Petition of Right. They were, too, aj)ostles of liberty as well as constitutional lawyers. The former ceased to be Governor of Virginia June 1, 1779, and the latter on that day, became governor, and held the office until June 12, 1781. While he was Governor and no doubt potential as to the course of legislation as in other respects, the General Assembly, in May, 1780, passed an act containing the following provision: "Be it enacted, That the governor be authorized, with advice of council, and he is hereby authorized and empowered, with such advice, -,to commit to close confinement, aii3r person or persons whatsoever, whom there may be just cause to suspect of disaffection to the independence of the United States, and of attachment, to their enemies; or to cause any such person to be removed to such places of security as may best guard against the effects of their influence and arts to injure this community, and benefit the common enemy. And be it further enacted, That in case of any insurrection within this commonwealth, or the same shall be invaded by the enemy, either by land or water, that all and every person or persons within the same, who shall act as guides to, or spies for them, or who shall furnish the enemy with provisions or other’ necessaries; or who shall' encourage desertion from the army, or who shall dissuade or .discourage the militia from opposing the enemy, or who shall give intelligence, aid, or comfort to the enemy, shall, and they are hereby declared to be subject to the law martial as declared by congress on the twentieth day of September one thousand seven hundred and seventy-six, in the fourth article of the sixth section, and the eighteenth and nineteenth articles of the thirteenth section cf the continental articles of war. And that for the trial of such offenders, a court-martial, to consist of not fewer than thirteen commissioned officers, one of whom shall be a field officer, shall be called by the county lieutenant or commanding officer of the militia in the county where such offence shall be committed, or in any other county of this • commonwealth, where such offender may be found.” 10 Hen.' Stat. at L. 310.
In May, 1781, while Jefferson was governor, an act was passed, containing this provision:. “The governor, with advice of the council, is also hereby empowered-to apprehend or cause to be apprehended and committed to close confinement, any person 'or persons whatsoever, whom they may have just cause to suspect of disaffection to the independence of the United States or of attachment to their enemies, and such person or persons shall not be set at liberty by bail, mainprize or habeas corpus10 ITen. Stat. at L. 414.
To say there cannot be a trial' by a military commission 'under martial rule is a contradiction of authority everywhere. “Military commissions are courts organized under the international law of war for the trial of offenses committed during war by persons not in the land or naval forces. In the United States their jnrisdiction is confined to enemy territory occupied by an invading army, or at least to those sections of the country which are properly subject to martial law, and their authority ceases with the end of the Avar.” 40 Cyc. 391. “By a practice dating from 1847 and renewed and firmly established during the Civil War, military commissions have become adopted as authorized tribunals in this country in time of war. They are simply criminal war courts, resorted to for the reason that the jurisdiction of courts-martial, creatures as they are of statute, is restricted by law, and can not be extended to include certain classes of offenses which in war would go unpunished in the absence of a’provisional forum for the trial of the offenders. Their authority is derived from the law of war, though in some cases their powers have been added to by statute. Their competency has been recognized not only in acts 'of Congress, but in executive proclamations, in rulings of the courts, and in the opinions'of Attorney Generals. During the Civil War they were employed in several thousand cases; more recently they were resorted to under the 'Reconstruction5 act of 1867; and still later one of these courts has been convened for the trial of Indians as offenders against the laws of war.” Digest of Opinions of the Judge-Advocate General of the Army by Howland, p. 1066. “The jurisdiction of a military commission is derived primarily and mainly from the law of war; but special authority has in some cases been devolved upon it by express legislation, as has already been noticed. Military commissions are authorized by the laws of war to exercise jurisdiction over two classes of offenses, committed, whether by civilians or miltary persons, either (1) in the enemy’s country during its occupation by our army and while it remains under military government, or (2) in the locality not within the enemy’s country or necessarily within the theater of war, in which martial laAV has been established by competent authority. The classes of offenses are (1) violation of the laws of war. (2) Civil crimes which, because the civil authority is superseded by the military, and the civil courts are closed or their functions suspended, cannot be taken cognizance of by the ordinary tribunal. In other words, the military commission, besides exercising under the laws of war its jurisdiction of offenses peculiar to war, may act also as a substitute for the time for the regular criminal adjudication of the state or district.” Dig. Opin. Judge-Adv. Gen. sec. 1680, McClure. “Of the ordinary crimes taken cognizance of under similar circumstances by these tribunals, the most frequent were homicides, and after these, robbery, aggravated assault and battery, larceny, receiving stolen property, rape, arson, burglary, riot, breach of the peace, attempt to bribe public officers, embezzlement and misappropriation of public money or property, defrauding or attempting to defraud the United States. -1= * * Not unfrequently the crime, as charged and found, was a combination of the two species of offenses above indicated. As in the case of the alleged killing, by shooting or unwarrantably harsh treatment, of officers or soldiers, after they had surrendered, or while they were held in confinement as prisoners of war; of which offenses persons were in several cases during the Civil War convicted by military commissions under the charge of ‘murder, in violation of the laws of war/ ” Dig. Opin. J.-Adv. Gen., Howland, p. 1701. See also McClure’s Dig. J.-Adv. Gen. Opin. secs. 1680, 1681, 1682, 1683, 1684. A military commission may sit and act in a community in which the civil courts are also acting. “Prom the jurisdiction, however, of military commissions under the circumstances above indicated, are properly excepted such offenses as are within the legal cognizance of the ordinary criminal courts, when, upon the establishing of military government or of the status of martial law, such courts have been, by express designation or in fact, left in full operation and possession of their usual powers. Thus, during the considerable periods of the war, pending which the District of Columbia was practically placed under a mild form of martial law, ordinary criminal offenses committed therein by civilians or miltary persons, of which there was not expressly vested by statute a jurisdiction in military courts concurrent with that of the civil tribunals, were in general allowed to be taken cognizance of by the latter, the same being at no time seriously interrupted in the exercise of their judicial functions.” McClure’s Dig. J.-Adv. Gen. Opin. sec. 1685. Though a military commission is a military court, its jurisdiction is not confined to military persons. It extends to citizens as well as soldiers. That citizens may be brought within the exercise of their power is revealed by the reason for their constitution. Courts-martial do not extend to citizens. As, in the exercise of military government, it often becomes necessary to rule, govern and punish citizens and the powers of courts-martial established by law, not by the will of the commander, do not reach such cases, a military commission to deal with citizens in the war area, is necessary. The general orders issued during the Civil War contained nearly 150 case of women who were tried by military commissions. Dig. J.-Adv. Gen. Iiowland, p. 1067, note 6. Of course they were not soldiers or in any way included in the land and naval forces of the United States or the militia.
“Although there is no express provision of the Constitution or Acts of Congress authorizing military commissions, yet such commissions are tribunals now as well known and recognized in the laws of the United States as the court-martial. ■They have been repeatedly recognized by the executive, legislative, and judicial departments of the government as tribunals for the trial of military offenses. But while military commissions are thus recognized, such a commission is not a court within the meaning of the fourteenth section of the Judiciary Act of 1789, nor is the authority exercised by it judicial in the sense in which judicial power is granted to the United States. A military commission, unlike a court-martial, is exclusively a war court; that is, it may legally be convened and assume jurisdiction only in time of war or of martial law or military government when the civil authority is suspended. Its Jurisdiction is ordinarily limited to the theatre of war or of military occupation. Its jurisdiction extends to persons connected with the army of the enemy, acting as spies or violating the rules of war; to the inhabitants of the enemy’s country held by an army of occupation; to the inhabitants of places under martial law; and to members of the army of the United ■States, or civilians serving it in the field,- who have committed offenses not within the jurisdiction of a court-martial. The offenses cognizable by such a tribunal comprise violations of the laws and usages of war, breaches of military orders or regulations not within the judi'sdiction of courts-martial, and ■criminal offenses cognizable by the ordinary criminal courts :and which would be tried by such courts if unobstructed in the exercise of their jurisdiction:” 20 A. & E. Ene. L. 660-■661. Military commissions are- courts organized under the -international law of war for the trial of offenses committed •during war by persons not in the land or naval forces. In the United States their jurisdiction.-is confined to enemy territory ■occupied by an invading army, ór at least to those sections of the country which are properly subject to martial law.” 40 Cyc. 391. h-
Against such judicial construction and . declarations of power, the speculations of lawyers and publicists, when in conflict with them, avail nothing; but, as we endeavored to show, in the opinion in the former cases, there is no such conflict; or, at least, very little. We repeat that General Leiber and Professor Ballantine, relied-.upon as such authority, in their-two articles referred to in the decision in the Nance and Mays eases, clearly mark the distinction between executive power in the area of military operation and in pacific territory. Of the case of Luther v. Borden, cited as authority in the Moyer case, as late as the year 19.08, for- power in the executive of a state to declare a state of war and thereby set aside judicial power, General Leiber said: “When the legislature of Rhode Island made use of it in 1842 it was probably intended to have no more definite meaning than that the militia of the State was to use its military power to suppress the enemies of the State. It was an authorization to do what was done when the military officer broke into the house of one of the enemies of the State in order to arrest him. He was a public enemy against whom the military power had been called out. It is evident that this is not the kind of martial law which we have been discussing.” The purpose of his article was to define the powers of the executive,in the use of the military forces outside of the war zone and in territory considered loyal as contradistinguished from the territory of the public enemy. Professor Ballantine, after having discussed the subject of 'such power, “In Time of Peace”, and endeavored to define its limits, passes to the second division of his article, executive power “In Time Of War,” and then proceeds as follows: “The question remains whether we may have federal martial law by virtue of the “War Power” during invasion or insurrection in domestic territory. In war the enemy, be he a foreign one or a rebel to whom the status of belligerent has been given, has no legal rights which the invader must respect except those which international law recognizes. When a civil contest becomes a public war, all persons living within hostile limits become ipso facto' enemies by their residence in enemy territory. An army in the enemy’s country is thus governed by the law of war, and officers and soldiers are responsible only to their own government.” Having said this he immediately returned to the status of citizens in domestic territory outside of the rebellious area, saying “But in domestic territory the status of the army is entirely different. The civil rights of citizens are not suspended but remain the same as in peace, both in districts near to and remote from the theatre of actual warfare.” Observe that he does not say “remain the same in the theatre of actual warfare.” His next observation is that “The occurrence of hostilities does not vary the position of the citizen or deprive him of the protection of the Constitution, unless the army is in the position of a foreign invader and the country is ruled from without, acquiring the status of enemy territory.” Then he cites Dow v. Johnson, 100 U. S. 158. He is still talking of the rights of citizens outside of the war zone, but Dow v. Johnson expressly decides that the rebellious territory is enemy territory and subject to military rule. Obviously he cites this only as marking the difference between executive power in the theatre of war in an instance of rebellion and executive power in the same country outside of the theatre of war. His criticism of the admission in Ex parte Milligan that, in time of war, there may be occasions when martial law can be properly applied, and of the decision of the English Privy Council, in a recent case, Ex parte D. F. Marias, is not authority against the position here taken. In this, he states what he thinlcs ought to he the law, hut admits that it is not the law. Thus he says Ex Parte Milligan declares that military authority of necessity supersedes the civil authority in foreign invasion or civil war on the theatre of active military operations; and also that, in the late Britisbi-Boer war, the English Privy Council rendered a decision, holding the fact that some tribunals had been permitted to pursue their ordinary course was not conclusive that war was not raging.
Por his position, in so far as it seems to conflict with the admitted authority against it, he cites Mitchell v. Harmony, 13 How. 115. That was an action for a wrong done by a military officer in the exercise of military power and authority in foreign territory, Mexico, in time of actual war. The action was brought long after the war had closed and in the courts of the United States, and the decision asserts no more than that military officers are liable for wrongs done in the exercise of military power, and that they are governed and limited in respect to the acts they may do by the usages of war as understood in international law. The .case is no authority for the position that the courts may supersede or arrest'the executive arm of the government while engaged in the conduct of a war of invasion or the suppression of an insurrection or rebellion, and here again, it would be unjust to him to read his criticism of the Milligan Case as the assertion of such a claim. He means no more than that, on-the theatre of war, power cannot be exercized beyond that allowed by the usages of civilized warfare, and that, after the return of the army from its foreign war, or the restoration of peace, an officer acting in violation thereof may be civilly or criminally liable. He neither says nor intimates, nor does his language imply, that the civil courts may give redress in any form, or exercise any power, in the enemy country, and Dow v. Johnson, cited by him, expressly denies any such power in any court of any country.
Stating in his conclusion what ihe_ law is, not what he thinks it ought to be, he says: “Where the army is not invading enemy territory of a recognized belligerent, but is in its own territory, the military authorities remain liable to be called to account either in habeas corpus or any other judicial proceeding for excess of authority toward citizens, no matter whether it occurred in propinquity to the field of actual hostilities or while the courts were closed, or after a proclamation of Martial Law.” Propinquity means not in the field of actual hostilities, but nearness to it or in the neighborhood of it, and his stated premise to the conclusion is “Where the army is not invading ■enemy territory of a recognized, belligerent.” In seeking his meaning, we cannot cut this out. To do so would be unjust to him. It would make him say what he neither says nor means.
In support of the denial of the existence of executive power, •admitted and asserted by the foregoing authorities, numerous inapplicable decisions are cited, some of which were analyzed •and explained in the opinion in the Nance and Mays Cases. The Milligan Case, 4 Wall. 2, involved the rights of a man residing and arrested in 'a state and county in which there was no war and had not been, and in which the courts were not only sitting, but absolutely unobstructed in the exercise of their powers. In his argument in that ease, Mr. Garfield marked the distinction between the sections, the war area and in the pacific domain. After having shown what provision Congress had made for arrest, detention and trial of disloyal people found in pacific territory, he said: “But Congress did far more than to provide for a case like this. Throughout the eleven rebellious States, it clothed the military department with supreme power and authority. • State constitutions and laws, the decrees and edicts of courts, were all superseded by the laws of war.” If the Constitution of the United States forbade supremacy of the military over the civil power, in •every part of the national dominion, no matter what its condition, and thus effectually precluded supremacy of military power as is contended, the Congress of the United States could not have done what Mr. Garfield said it did in the eleven rebellious states. Congress can no more override the Constitution than the president can. He admits that such executive power was exercised in those states and then, showing the state of Indiana to have been pacific territory, lying wholly outside of the theatre of war, he denied the existence of any act of Congress authorizing a trial, by military commission, of a •citizen, residing and arrested outside of the war area. Moreover, the entire Supreme Court, its dissenting justices as well as tlie others, declared that Congress had not authorized the application of martial law to ¿.state like that of Indiana, nor-attempted to do so. Chief Justice Chase, for the minority of the court, said: “We have Confined ourselves to the question of power. It was for Congress' to determine the question of expediency. And Congress did determine it. That' body did not see fit to authorize trials by military commission in Indiana, but by the strongest implication prohibited them.” Mr. Justice Davis, delivering the majority opinion, said: “It is not pretended that the commission was'a court ordained by Congress. • * * But it is said the jurisdiction is complete under the laws and usages of war. * * They can never he applied .to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.” As Indiana was n.ot in a state of actual war, nor under a military government by proclamation, authorized by Congress, it is clear that the Milligan Case is no authority against the exercise of executive power in territory legally declared to be in a state of war. In re Kemp, 16 Wis. 382, is governed by exactly the, same principles. So is Ex parte Merryman, 17 Fed. Cas. No. 9487. In re Henderson, 11 Fed. Cas. No. 6349, involves the question whether a mere contractor to furnish supplies to the government for the use of the military service shall be tried by court-martial. It is not contended that any of the elements justifying substitution of the military for civil government were present. Hence the case has no possible application to the question here under consideration. The nature of the Egan Case, 5 Blatch. 319, appears from the statement found in the syllabus: “Where a. person was tried by a Military Commission, in South Carolina, in Hovember, 1865, for a murder committed in September, 1865, and was convicted and sentenced to imprisonment for life in the Penitentiary at Albany, Hew York, hostilities having terminated and the rebel army having surrendered to the-authorities of the United States some seven months before the trial: Held, on a habeas corpus that the prisoner was-entitled to be discharged on the ground that the conviction was illegal, for want of jurisdiction in the tribunal.” . In the opinion of the court, there was not, at the time of the trial and conviction, a state of war in the community in which it occurred. Johnson v. Jones, 44 Ill. 142, as regards the situation of the prisoner, was like that of the Milligan Case. He had been arrested and resided in pacific territory. In Johnson v. Duncan, 6 Am. Dec. 776, the validity of a proclamation of martial law was denied on the ground of lack of authority in the commanding officer to proclaim it, Congress not having conferred it. The principles of that case is the same as that of the Merrymm Case. Ela v. Smith, 5 Gray 121, did not arise in a state of war nor under a proclamation thereof. The mayor of a city merely called upon the volunteer militia to assist him in executing the civil law. Whether, in case of a rebellion or insurrection, the governor of a state may use the military power for its suppression, and, in doing so, temporarily substitutes military law or rule for the civil law, is neither discussed nor adverted to in the opinion.
It is true that, in Tucker on Constitutions, the exposition of this doctrine by the Supreme Court of the United States is criticized, but the author admits the interpretation is at variance with his views. Speaking of certain cases in which the court announced its conclusions, at page 639, he says: “It is therefore pertinent to observe in respect to them, that they overthrew existing republican forms of government in every State of the Confederacy, and that government in Virginia which Congress and the President had recognized in the act dividing the State of Virginia which resulted in the admission of West Virginia to the Union; and the government of Virginia thus recognized was put in possession of power at the city of Richmond after the war as the lawful government of Virginia. The reconstruction laws overthrew that government which Congress itself had set up, and substituted a military government with the judicial power subject to its control. Military commissions were inaugurated for the trial of citizens in other States, and conventions were called under regulations prescribed for suffrage by Congress, and new Constitutions were adopted and new forms of government established. It is hardly a question that these laws, which overthrew the form of government established by the State, and refused to restore it as the legitimate form of government, and set up a military despotism in its place, were not a guarantee of a republican form of government to the States, but guaranteed the overthrow of all republican forms of government and the adoption of a Constitution against the will of its people and under the dictation of military power.” This criticism necessarily admits all that is claimed in this opinion as to the construction of the federal Constitution by the Supreme Court of the United States, namely, that, in belligerent territory, Congress had the power, in effecting a restoration of the constitutional guarantees, to set up provisionally such a government as in their opinion would ultimately bring about that result. It is testimony to the existence of the law by one who challenges its soundness.
Willoughby on the Constitution, at sections 726 and 727, in speaking of the use of the military under the control and direction of civil officers in the enforcement of a civil law, citing Ela v. Smith, 5 Gray 121, denies that* such use of the military forces constitutes martial rule dr military government, and in this may be correct. At sections 728, 729, 730, 731 and 732, he discusses martial law and miltary government. Here he criticizes the opinion of Chief Justice Taney in Luther v. Borden, and adopts the views of Justice Woodbury in a dissenting opinion. His criticism of the majority opinion necessarily admits conflict between his personal view and that of the Court, in which case, of course, the opinion .of the court prevails and must be regarded as law. He also finds fault with the opinion of Mr. Justice Holmés in the case of Moyer v. Peabody, but here again the views of the court must prevail. Speaking of martial law in time of war, at section 732, he says: “It has already been learned that in war the enemy, be he a foreign one, or a rebel to whom the status of belligerent has been given, has no legal rights which those opposed to him must respect. When a civil contest becomes a public war, all persons living within limits declared to be hostile become ipso facto enemies, and subject to treatment as such. * * * Upon the actual scene of war, there is no question but that, for the time being, the military authorities are supreme, and that these may do whatever may be necessary in order that the military operations which are being pursued may succeed. Here martial law becomes indistinguishable from military government. * * * The necessities being great and extraordinary, the executive and administrative, that is to say, the military, action that will he justified is correspondingly extensive.” In section 733, he deals with the rights and powers of the executive and of citizens in time of war, hut outside of the war area. Here he classes the Milligan Case as we do. Under this head, he says: “Under the stress of military exigency, upon the actual theatre of war such civil guarantees as the writ of habeas corpus, immunity from search and seizure, etc., may, of course, be suspended. As to this there is no question. There is, however, a serious question whether, when war exists, these rights may, by legislative act or executive proclamation, he suspended in regions more or less remote from active hostilities. This question was raised and carefully considered in the famous Milligan Case in which the Supreme Court was called upon to pass upon the authority of a military commission, during the Civil War, to try and sentence, upon the charge of conspiracy against the United States government, one Milligan, who was not a resident of one of the rebellious states, nor a prisoner of war, nor ever in the military or naval service of the United States, but was at the time of his arrest a citizen of the State of Indiana in which state no hostile military operations were then being conducted.”
As the government of the United States is one of enumerated powers, the Tenth Amendment to the Constitution, declaring that “The powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states respc-tively, or to the people,” it was perhaps more difficult to find authority in the President of the United States and in the Congress thereof to suppress a rebellion and, in the exercise thereof the power to establish military government and administer martial law, than it is to find the same power in the executive of a state, to which there is reserved all power not delegated to the national government nor prohibited to the States. The federal Constitution makes the president commander-in-chief of the army and navy and of the militia of the states, when called into service, but he is not authorized by express terms to use the army and navy or militia, at his own volition, to suppress an insurrection or repel an invasion. That power is conferred upon Congress, bnt\ in the most general terms. By clause 15 of section 8 of Article 1, Congress is authorized “To provid'e for; calling forth the Militia to execute the Laws of the Union, suppress Insurrections or repel Invasions”. By clause 11 of the same section, it is authorized “To declare War, grant letters of Marque and Reprisal and make Rules for captures on Land and Water.” In conferring these powers upon Congress, the imposition of restraint and limitation upon the exercise thereof was carefully avoided, to. the end that the power might be exercised efficiently. It is apparent that, in defending its life against a foreign or domestic, foe, the government must be left much in the situation of an individual in the exercise of the'right of self-defense. On this1, subject Alexander Hamilton said: “The circumstances that, endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. * * * This is one, of those truths which to a correct and unprejudiced mindi carries its own evidence along with it, and may be obscured,, but cannot be made plainer by argument or reasoning. The means ought to be proportioned to the end, the persons from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained.” Federalist Ho. 23, Mr. Madison expressed the same idea in the following terms: “It is vain to impose constitutional barriers to the impulse of self-preservation. It is worse than in vaih, because it plants in the constitution itself necessary usurpations of power.” Id. Ho. 41. Likewise, John Adams, speaking long after the formation of the Constitution, said: “All the powers incident to war are, by necessary implication, conferred upon the-government of the United States. There are then, in the-authority of Congress and of the Executive, two classes of powers, altogether different in their nature and often incompatible with each other, the war power and the peace power. The peace power'is limited by regulations and restricted by provisions prescribed within the Constitution itself The war■ power is limited only by the laws and usages of nations. This' power is tremendous; it is strictly Constitutional, but it breaks' down every barrier so anxiously erected for the protection off liberty, of property and of life.” Thus, in the spirit of the framers of the Constitution, the Supreme Court of the United States, spoke, long years after those who had formed it had passed away. They died before the anticipated exigency arose, but, when it came, the administrators of government, including the judicial branch thereof, had no difficulty in finding, in the Constitution, the war power in all its might and strength, notwithstanding the express guarantees of life, liberty and property, trial by jury and others, insisted upon now as precluding the existence of such implied power. It included suspension and overthrow of the civil power in the war zone, courts or no courts, ignored the constitutional guaranties, subordinated private right to the exigencies of the occasion, justified the arrest and imprisonment of. citizens and substituted military commissions for constitutional civil courts, with power to try, convict and punish citizens for offenses of all kinds.
Since the federal Constitution has not inhibited military government on the theatre of warfare in which the military power of the federal government is engaged, such government being, by necessary implication, contemplated and authorized by the Constitution itself, under such circumstances, no reason is perceived, nor has any been advanced in the argument of this case or any other, why military government in a state, justifiable upon the same ground of necessity and by implication authorized by the state Constitution, should be regarded as a violation of the federal Constitution. On the contrary, the federal Supreme Court has itself, on more than one occasion, declared such state action not to be a violation of the national Constitution, nor of the guaranties of due process of law, trial by jury and the equal protection of the laws. Such is the effect of the decision in Moyer v. Peabody, 212 U. S. 78, saying: “Public danger warrants the substitution of executive process for judicial process.” The substitution, referred to and held good in that case, was by the executive of a state under a state constitution. In that case, Luther v. Borden, 7 How. 1, in which Chief Justice Taney asserted the power of a state to declare war, in the suppression of an insurrection and for the establishment and maintenance of its authority, was cited with approval. Holding the prisoner not entitled to his discharge on a writ of habeas corpus, the Supreme Court of Colorado said.: “In reaching this conclusion we are not unmindful of the argument that a great power is recognized as being .lodged with the chief executive, which might be unlawfully exercised. - That such power may be abused is no good, reason why it should be denied. The question simply is, does it exist? If so, then the governor cannor be deprived of its exercise. The prime idea of government is that power must be lodged somewhere for the protection of the commonwealth. For this purpose laws are enacted and the authority to execute them must exist, for they are of no effect unless they are enforced. Neither is power of any avail unless it is exercised. Appeals to a possible abuse of power are often made in public debate. They are addressed to popular fears and prejudices, and often given weight in the public mind to which they are not entitled. Every government necessarily includes a grant of power lodged somewhere. It would be imbecile without it.” In re Moyer, 35 Col. 159, 169. This declaration of power by a state court was sustained by the Supreme Court of the United States. . In Luther v. Borden, 7 How. 1, Chief Justice Taney said: “And, unquestionably, a state may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The power is essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other government. The state' itself must determine what degree of force the crisis demands.” He then said, in substance, that, if the government of Rhode Island had made a declaration of martial law, there was “no ground upon which” the “court could question its authority.” Proceeding, he further observed: “It was a state of war, and the established government resorted to the rights and usages of war to maintain itself and to overcome the unlawful opposition.” This proposition, the Court approved and applied in Moyer v. Peabody, cited. Argument against so plain a declaration is necessarily futile.
In the main, state Constitutions are framed on the plan of that of the federal government, and all of them contain in some form the same power, right of self preservation, as that preserved by the federal Constitution. By it, the power is vested in Congress for execution by the President. In most of the state constitutions, it is vested in the governor, for some reason, possibly because the exercise thereof in a state is considered a matter of less consequence than by the federal government, for the reason that no despotic or arbitrary government can be permanently established in any state, since the federal Constitution guarantees to every state a republican form of government, and any attempt by any governor to establish himself as a dictator in a state would be promptly thwarted by the exercise of the powers of' the federal government. Hence there is less danger in entrusting such power to a state governor than there would be in entrusting it to a president. Other reasons may be found in a desire to avoid the expense incident to the convening of the legislature to confer upon the governor the power to suppress an insurrection or repel an invasion. Whatever the reason for it, this difference exists, and the power vested in the governor of this state by the terms of the Constitution is the same, regarding the maintenance of a state government, as that vested in Congress by the federal Constitution, regarding the maintenance of the national government. Indeed, it is vested by the use of the same general terms. In the Nance and Mays Gases, we said an express grant of power to use the military forces to suppress insurrection or repel invasion was a grant of power to suppress insurrection in the manner in which that has usually been done in other states, countries and times. So says the federal Supreme Court of such terms used in the Constitution of Colorado. In Moyer v. Peabody, Mr. Justice Holmes said: “That means that he shall make the ordinary use of the soldiers to that end.’’
Though harsh and obviously at variance with the spirit of our institutions, under normal conditions, this principle finds its counterpart in a general principle of the law, applicable to lesser matters than the preservation of the government or the maintenance of the laws of a state. It is, indeed, unfortunate that men’s lives should be sacrificed and inconveniences and harships imposed, in the exercise of such power, upon noncombatants, but this is not the only instance in which the common law recognizes the same principle. If a citizen is assailed by another with felonious intent, he may defend himself, to the extent of taking the life of the assailant and the act is justifiable. Any citizen is authorized by the common law to take upon himself, if the occasion justifies it, the vindication of the law and take the life of another to prevent him from committing a felony. Here a private citizen is authorized to exercise power the same in character and kind, to save another individual or his property, as that vested in the governor of the state. As the law admittedly authorizes any citizen, no matter what his character or station in life or the degree of his intelligence, to take life to prevent the commission of a felony, is it inconsistent to say the governor of a state, as the chief conservator of the peace, selected as such for his superior wisdom, character and intelligence, may exercise the same kind of power for the accomplishment of a higher purpose ? Officers of the law, such as constables and sheriffs, in the execution of process for arrest and imprisonment, may oppose resistance, using such force as is necessary, even to the taking of life. Whar. Crim L. (11th ed.), sec. 528, p. 718; Murphy on Sheriffs, secs. 1160 and 1129; McClain on Crim. L., sec. 298. So* in pursuing a felon or preventing an escape, an officer may kill if necessary. Whar. Crim. L., secs. 532, 533. If officers of the law, when engaged in the preservation of the peace, find it necessary to take,life, such homicide is justifiable. Id. sec. 534. In all these instances, citizens are deprived of life without a trial by jury, notwithstanding the constitutional inhibition of deprivation of life without a trial by jury. Likewise there are many instances in .which a man may be deprived of his property without a jury trial, notwithstanding a similar constitutional inhibition. Property of a citizen may be taken out of his possession by the drastic remedy of attachment. Though he may have a trial by jury as to the existence of the debt for which the attachment is issued, and as to the existence of the grounds thereof, the property is first taken out of his possession. He is deprived of the use of it and this amounts to a deprivation of property, without a trial by jury. So there are numerous instances in which jurisdiction of causes involving title to property is vested in the courts of equity, not bound to give a trial by jury at all. Throughout all this broad country men are arrested and committed to prison by justices, police magistrates and other authorities, daily and by thousands, on accusations of all sorts of offenses, and thus in a sense deprived of their liberties, without the intervention of juries, notwithstanding the constitutional inhibition of deprivation of liberty without a trial by jury. There is no exception pf these cases from the letter of the guaranty in terms or by name, yet everybody recognizes it. These illustrations show conclusively that the constitutional guaranties are to be read and applied in the light of their purpose, which falls far short of the letter. They prove beyond question that there are exceptions from the strict letter of those guaranties. As these undoubtedly exist, may not others also? Their existence absolutely and emphatically condemns the theory of strict adherence to the letter of these constitutional provisions. As a citizen may take into his own hands the whole power of the law, as its champion and defender, and take life, to prevent the consummation of a single threatened felony, as well as to save his own life, or merely to prevent great bodily harm, as a matter of self defense, and-a petty officer, in effecting an arrest or pursuing a felon, may take life, all single instances and matters of comparatively small moment, notwithstanding the literal guaranties of the Constitution from which they are not expressly excep'féd, does not the assertion of power in the executive of a state, its chief conservator of the peace, to use military power as a substitute for the civil power, when the whole fabric of government of the state is endangered, the laws trampled under foot, all the constitutional guaranties violated and set aside, the lives and property of thousands in jeopardy, and the civil authorities wholly unable to cope with or resist the assault, stand upon the same principle of necessity? The Constitution does not set it all out in detail, but it uses terms broad enough to include it, unless restrained by the clauses relied upon as imposing such restraint. Neither does the Constitution preserve in terms the right of self-defense or the right to kill in prevention of felonies or arrest of a felon or prevention of his escape, but it uses terms broad enough to include these rights. In both eases, the application of the settled rules of construc tion make the general terms so used include the means necessary to the accomplishment of the organic purpose in restraint of the letter of other clauses haying different purposes. This construction vests tremendous power in the governor, and its exer-case may produce frightful consequences, but, as in the other cases mentioned, it is the necessary means of prevention of still worse results. Thus government is not perfect. It cannot be in the nature of things.
The clause inhibiting suspension of the writ of habeas corpus is relied upon as an element differentiating our Constitution from that of the federal government and those of some other states. With this phase of the case we dealt at some length in the opinion in the Nance and Mays Gases. In addition to what was said there, we observe that the guaranty of the privilege of the writ of habeas corpus 'adds nothing to the guaranties of due process of law, trial by jury, cognizance of causes by civil courts and supremacy of the civil over the military power. This writ does not confer rights. It only vindicates such rights as are given by law. It is a remedy, not a law creating or declaring rights The courts are always open to applications for the writ and always grant it upon proper application, but it does not follow that every one who applies for it, or makes the necessary affidavit, is entitled to be discharged. It may be the duty of the governor and every military officer of the state to recognize the writ and make return thereto, but that is not conclusive of the question whether the applicant shall be discharged or accorded such -other relief as he claims. If on the return it appears that under some power vested by the Constitution or a statute, the- governor or such other officer as has the applicant under arrest or imprisoned, has power and authority to detain or imprison the applicant, he cannot be discharged. In seeking the vindication of constitutional rights on a writ of habeas corpus, the applicant is bound by such power and authority as are vested in the person by whom he is detained. He cannot be discharged unless illegally restrained of his liberty, and he is not so restrained, if the law authorizes or justifies his detention, whether the officer be a constable, a police officer, the military forces or the governor of the state. In other words, the writ adds nothing whatever to the guaranties or rights vested by law, nor does the guarantee of the privilege thereof in any way cut down or limit the rights ■and powers vested in officers by law, constitutional or statutory, ■either in express terms or by implication.
But it is said there can he no war in a state. It suffices to say, in response to this, that Luther v. Borden and Moyer v. Peabody expressly decide that the Constitution of the United States does not inhibit the declaration by a state of a state of war within its own borders by proper authority. State courts other than this have asserted the same proposition. In re Moyer, 35 Colo. 159; Commonwealth v. Shortall, 206 Pa. 165. In the latter case, the court said: “The effect of martial law is to put into operation the powers and methods vested in the commanding officer by military law. So far as his powers for the preservation of order and security of life and property are concerned there is no limit but the necessities and exigency of the situation. And in this respect there is no difference between a public war and domestic insurrection. What has been called the paramount law of self-defense, common to all countries, has established the rule that whatever force is necessary is also valid.” Ex parte Moore, 64 N. C. 802, also declares a governor of a state may proclaim a state of war and recognize the status of belligerency. The opinion in that ease is inconsistent with those of the Supreme Court of the United States •except in one respect. The court fell into the fallacy above noted, respecting the clause forbidding suspension of the privilege of the writ of habeas corpus, and said it denied power in the governor to detain prisoners, and required him to turn them over immediately to the civil authorities for trial. Plainly there is nothing in the law securing the privilege of the writ of habeas corpus that confers any such-right. It must he found, if at all, in some provision or principle.
As to what constitutes an insurrection or state of war or rebellion, the authorities are fairly clear. In Pennsylvania and Colorado, the occasions of the declaration, adverted to in Commonwealth v. Shortall and Moyer v. Peabody, were very similar to the one calling for the proclamation here involved. A similar situation, growing out of a different cause, was the basis of the proclamation in Forth Carolina. These authorities .show that it need not take the form of an attempt to set up a new government by name. “The rule of the common law is that, when the regular course of justice is interrupted by revolt, rebellion or insurrection, so that the courts of justice cannot be kept open, civil war exists, and the hostilities may be prosecuted on the same footing as if those opposing the government were foreign enemies invading the land. The converse is also regularly true; so that, when the courts of a government are open, it is ordinarily a time of peace. But though the courts be open, if they are so obstructed and overawed that the laws cannot be peaceably enforced, there might, perhaps, be cases in which this converse application of the rule would not be admitted.” 18 Reel. Cas. No. 10, 755a. “A state of actual war may exist without any formal declaration of it by either party; and this is true of both a civil aryl foreign war. A civil war exists and may be prosecuted on the same footing as if those opposing the government were foreign invaders, whenever the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts cannot be kept open.” . These definitions are given in prize cases and the political status ascertained and determined as the basis of settlement of property and commercial rights. They are not conclusive as to the state of affairs, when viewed from other standpoints. The question we have here is an entirely different one, insurrection or rebellion in the sense of justification of a declaration of a state of war by competent authority. War is not necessarily a rising of the people in an armed effort to establish a rival government. As to what constitutes a levying of war, under a statute against treason, a very similar one to the question we have here, Sir Matthew Hale says, Pleas of the Crown, Yol. I., p. 149: “What shall be said a levying of war is partly a question of fact, for it is not every unlawful or riotous assembly of many persons to do an unlawful act, tho da facto they commit the act they intend, that makes a levying of war, for then every riot would be treason, and all the acts against riotous and unlawful assemblies, as 13 H. 4 cap. 7; 2 H. cap. 8; 8 H. cap. 14, and many more had been vain and needless; but it must be such an assembly as carries with it spexiem belli, as if they ride or march vexillus explicatis, or if they be formed into companies, or furnished with military officers, or if they are armed with military weapons, as swords, guns, bills, halberds, pikes, and are so circumstanced, that it may be reasonably concluded they are in a posture of war, which circumstances are so various, that it is hard to define them all particularly.” On page 152, he says the levying of war against the king is of two kinds, express and interpretative. Of the latter he said: “Constructive or interpretative levying of war is not so much against the king’s person, as against his government: if men assemble together more guerrino to kill one of his majesty’s privy council, this hath been ruled to be levying of war against the king. P. 16 Car. 1. Cro. 583. Ben-sted’s case before cited, and accordingly was the resolution of the house of lords 17 E. 2. Talbot’s case above-mentioned. So in the case mentioned by my lord Coke in the time of H. 8 Co. P. C. p, 10. levying war against the statute of Labourers and to inhance servants wages was a levying of war against the king; and altho levying of war to demolish some particular inelosures is not a levying of war against the king, Co. P. C. p. 9, yet if it be to alter religion established by law, or to go from town to town generally to cast down enclosures, or to deliver generally out of prison persons lawfully imprisoned, this hath been held to be levying of war for those purposes treason within that clause of the act of 13 Eliz. cap. 1. as was resolved in Barton’s ease and Grant’s case above mentioned; and the like resolution was in the case of the apprentices that assembled more guerrino to pull down bawdy-houses.” That the condition of the courts is not the sole criterion seems to be very well settled, when the question is justification of a declaration of war. In Elphinstone v. Bedreechund, 1 Knapp 316, the statement of the case shows some of the civil courts were open when the transaction out of which the case grew occurred. The syllabus says: “The circumstances, that at the time of the seizure the city where it was made had been for some months previously in the undisturbed possession of the provisional government; and that Courts of Justice under the authority of that government were sitting in it for the administration of justice, do not alter the character of the transaction.” In Marais v. General Officer, decided in 1902, the English Privy Council, presided over by the Lord Chancellor of England, re-asserted this doctrine, saying: “The fact that for some purposes some tribunals have been permitted to pursue their ordinary course in a district in which martial law has been proclaimed is not conclusive that war is not raging.” Though’ civil courts are open, as was shown in that case, their jurisdiction is denied, when it essays to interfere with executive action. On this point, the Lord Chancellor said: “The truth is that no doubt has ever existed that where war actually prevail^ the ordinary Courts have no jurisdiction over the action of the military authorities.” Speaking of this decision in an article r.e-produced in 18 Law Quarterly Eeview, 1902, Sir Frederick Pollock, an eminent English authority, said: “The judgment involves the further position that neither an application for summary release from extraordinary arrest nor an action for anything done as an extraordinary act of necessity will be entertained by the ordinary courts during the continuance of a state of war in the jurisdiction, when the court is satisfied that a responsible officer acting in good faith is prepared to justify the act complained of. I do not know that this is seriously objected to.” In the following terms, he goes beyond the doctrine of the Milligan and Marais Cases and the position taken here: “There may be a state of war at any place where aid and comfort can be effectually given to the enemy, having regard to the modern conditions of warfare and means of communication.” The declaration in Moyer v. Peabody, cited, averred that the. courts of Colorado were open and could have tried the petitioner at the time of his detention by the governor, and the ITnited States Supreme Court held the circumstances insufficient to make a good declaration against the governor for false imprisonment. In Dow v. Johnson, 100 U. S. 158, there was involved the judgment of a civil court, open and running in New Orleans, by virtue of the permission of the military commander. Nevertheless, its judgment was declared void by the United States Supreme Court for want of jurisdiction. Of the civil courts. Mr. Justice Fields said in that case: “They are considered as continuing, unless suspended or superseded by the occupying belligerents.” This necessarily implies power to suspend them or supersede them. Hence it follows that, although for some purposes they are open and in some respects their service efficient, they are clearly not inconsistent with martial rule or a declaration of war. In Moyer v. Peabody, cited, the court said: “Public danger warrants the substitution of executive process for judicial process. * * * As no one would deny that there was immunity for ordering a company to fire upon a mob in insurrection, and that a state law authorizing the Governor to deprive citizens of life under such circumstances was consistent with the Fourteenth Amendment, we are of opinion that the same is true of a law authorizing by implication what was done in this case.” “Martial law is the temporary government and control by military authority of territory, iu which, by reason of war or public danger, the civil government is inadequate to the preservation of order and the enforcement of law.” 40 Cyc. 387. What is inadequacy of the civil power, exercised by courts ? Does it suffice for the purposes of government that the courts may fairly try civil cases or some classes of criminal cases, while the guns of civil conflict roar almost within their hearing, and blood flows and lives are in process of extinguishment and those engaged in it cannot be, or, at least, are not, restrained by the 'ordinary criminal processes? Is this adequate government by the civil power? Under such circumstances, are not some of the guaranties of the Constitution, which all officers are sworn to enforce, set aside in point of fact as effectually as if the courts were not sitting at all and could not sit? Must the executive arm remain at rest, because all guaranties are not set aside, as to all people or in all places? Reason and authority answer in the negative.
If insurgents or rebels must be turned over to the civil authorities as fast as seized, when the courts cannot or will not try them, though sitting and performing other functions, the courts become, by reason of their existence, agencies or instru-mentalities of resistence of the exercise of necessary executive power. Under the rights of continuance and bail, given by the civil law, or indulged by courts affected with sympathy, timidity or fear, those arrested can be released to re-engage in the conflict, and the courts themselves become passive or active, though incidental, factors in the maintenance of forcible resist- anee of law and order. Thus tbe construction insisted upon runs to a palpable absurdity as well as contravention of principles of sound public policy. 'A process of analysis, leading to sucb results, is condemned by rules of interpretation and construction, recognized everywhere. Hasson v. Chester, 67 W. Va. 278; In re Moyer, 35 Col. 159.
On this question, authority is meager for the obvious reason that it is a political one, not ‘subject to judicial review, the courts everywhere holding a declaration of a state of war by competent authority to be conclusive of the fact. Hence the reported cases show no instance of court interference with executive action as to that question.
Whether there was justification for the declaration of a state- of war in this instance is not an open question. By all authority, the declaration of a state of insurgency or war by competent authority is conclusive upon the Court. Luther v. Borden, cited; Moyer v. Peabody, cited; In re Moyer, 35 Col. 159. If, however, it were an open question, we would be unable to say, in view of the circumstances detailed in the returns, there was not sufficient ground for the declaration. In the territory covered by the proclamation, armed forces, have been contending with one another for nearly a year. Many persons have lost their lives and property has been destroyed, railroad trains have been interfered with, execution of the law by the civil officers has been resisted and prevented by force of arms, and much worse results have been threatened. Though the courts of Kanawha county have been sitting outside of the district, nobody has been brought to trial, arrested ' or indicted for any of these offenses. If the courts could have-acted, they have not done so. What efforts have been made to enforce the law and punish offenders are not fully disclosed, but the fact is, nothing has been done. Why this state of affairs has been permitted to exist by those who ought to have suppressed it, if it was within their power to do so, is rather a collateral question. The interest of the state and of the general public imperiously demand termination of it, no matter what the cause.
The declaration of a state of war Avas in law and fact a. recognition or establishment of belligerency and made the inhabitants oí the military district technically enemies of the state, even though another executive might not have regarded the facts sufficient to warrant the action. Errors in decision do not destroy or establish lack of jurisdiction. This is a principle universally recognized.
Though Moyer v. Peabody, cited, Luther v. Borden, cited, and Commonwealth v. Shortall, cited, do not assert power or authority in the executive óf a state, under an executive declaration of military government in a portion thereof, to try citizens by a military commission, the general principles asserted by all of these decisions fairly include it. In no way do they distinguish the exercise of this power in a state from that of similar power in the federal government executed by the president under authority conferred by congress. In the Shortall Case, the court said: “What has been called the paramount law of self-defense, common to all countries, has established the rule that whatever force is necessary is also lawful. While the military are in active service in the suppression of disorder and violence, their rights and obligations as soldiers must be judged by the standard of actual war.” In Luther v. Borden the Court said: “And, unquestionably, a state may use its military powers to put down an armed insurrection too strong to be controlled by the civil authorities. The power is essential to the preservation of order and free institutions, and is as necessary to the states of this Union as to any other government.” That case denies the right of a state to set up a permanent military government, but it admits the right of a state to exercise military power for self preservation on exactly the same principle as that on which the same power has been shown to exist in the national government. Only one of the cases, Moyer v. Peabody, involves right of detention of a citizen under arrest and denial of his claim of right to immediate surrender for trial by the civil courts, and the Supreme Court of the United States justified his detention upon the same principles upon which military government and administration of martial law, as applied to citizens, is justified in the national government. All of these cases assert the principle and none of them qualify or limit it. Hence none of them is authority against power in the executive of a state, in the suppression of an insurrection or rebellion, to cause persons to be tried by a military commission for offenses committed within the territory declared to be in a state of war, and we have found no authority of that kind except the Moore Case in 64 N. C. 802, in which the court, after having decided that the governor was bound to make immediate surrender of prisoners to the civil -tribunals, admitted’ its inability to enforce the declaration and denied that its writs had any virtue or effect inside the military district. '*
As a result of these principles, views and conclusions we have two areas or sections in the state, by virtue óf a declaration of a state of war in the district, in which the powers of government and the rights.of citizens differ most radically. The tremendous power of the governor in the military district does not extend beyond the limits thereof. Nevertheless, ■ he is the governor of the peacable territory of the state and has such powers as are normally vested in him by the Constitution and the laws, and any additional authority the legislature may have conferred upon him in pacific territory in the event of such exigencies, not violative of constitutional provisions. In the language of John Adams, the state has a peace power and a war power, both of which are now active. We construe the returns of the respondents as asserting, for the purposes of this case, the power of detention of the petitioners, not a right to try them by a military commission. Having shown the existence of a state of war in the area covered by the governor’s proclamation, and the steps taken to suppress the insurrection and lawlessness in that territory, the returns say the petitioners have been largely instrumental in causing and encouraging the lawlessness, riot and insurrection, and that their detention, is, in the judgment of the executive, necessary in order to effectually suppress the same. This sufficiently charges them with having wilfully given aid, support and information to the insurgents, the enemy, in a time of war, insurrection, and public danger, and section 6 of chapter 14 of the Code confers upon the governor power to apprehend and imprison all such persons. Such acts may be done either inside or outside of the military district. Nothing in the terms of the statute limits the exercise of this executive power of apprehension and imprisonment to persons within the military district, and it is; obvious that persons outside of such district may do as much or more than persons inside of it to defeat executive action,, looking to the suppression of the insurrection or -rebellion. Hence there is no reason for such a limitation. On the contrary, there is good reason against it, wherefore we must say the legislature intended no such a limitation, and the statute contemplates such arrests and imprisonment of persons, committing these acts outside of the military district.
We have just seen that this power of detention, as exercised by the governor of the state of Colorado was sustained by the Supreme Court of the United States in Moyer v. Peabody. Moreover, we see no reason for saying it violates, in any respect, any of the constitutional guaranties. It is statutory authority in the governor, and if not in violation of the Constitution, it amounts to due process of law, within the meaning of tire Fourteenth Amendment to the Constitution of the 'United States. It contemplates imprisonment without trial by jury, but not by judgment of conviction of a crime. The exercise of this power involves no change or status from citizens to convicts. It is, therefore, not a deprivation of liberty without a trial by jury, within the meaning of the constitutional guarantees. Such apprehension and imprisonment are the-same in principle as those of persons accused of crime. On all sorts of charges, from assault and battery to first degree murder, citizens are daily arrested and imprisoned to await examination,, indictment and trial. There may be imprisonment without a jury trial, for contempt of court. State v. Gibson, 33 W. Va. 97; Cooley Cons. Lim. 453. Persons offending against city by7laws may be imprisoned, without a trial by jury, if the offense is not made a crime. McGear v. Woodruff, 33 N. J. L. 213. It was not the purpose of the framers of the Constitution to interfere with the course of the common law, by the incorporation of this guarantee, and, by that law, persons guilty of' petty offenses and contempt of court and accused of crime could always be imprisoned without a jury trial. McGear v. Woodruff, cited; In re Rolfs, 30 Kan. 758.
As this statute is a law, conferring power upon the governor, action under which constitutes due process of law, provided the- statute itself is constitutional, a question about which we have no doubt, and, as the returns show the existence of a state of war, an insurrection and certainly a time of public danger, any of which seems to have been made a condition precedent to the exercise of the power, the detention of these prisoners, although arrested outside of the military district, is, in our opinion, entirely valid and legal.
Hence discharges were refused and they were remanded to the custody of the military authorities acting, under the control and'direction of the governor.
Petitioners Remanded. | [
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Justice MAYNARD delivered the Opinion of the Court.
Justice STARCHER concurs and reserves the right to file a concurring opinion.
Justice BENJAMIN concurs and reserves the right to file a concurring opinion.
MAYNARD, Justice.
This case concerns the following certified question from the Circuit Court of Ohio County:
Does the Due Process Clause of the Fourteenth Amendment to the Federal Constitution, as interpreted by State Farm v. Campbell, preclude a bifurcated trial plan in a consolidated action consisting of personal injury claims of approximately 1,000 individual smokers, wherein Phase I of the trial would decide certain elements of liability and a punitive damages multiplier and Phase II of the trial would decide for each plaintiff compensatory damages and punitive damages based upon the punitive damages multiplier determined in Phase I?
For the reasons that follow, we answer the certified question in the negative.
I.
FACTS
On September 28, 1999, then Chief Justice Larry Stareher entered an administrative order, pursuant to Rule 26 of the West Virginia Trial Court Rules for Trial Courts of Record, consolidating and transferring all similar tobacco litigation pending at that time to the Circuit Court of Ohio County with Judge Arthur M. Recht, a member of the Mass Litigation Panel, presiding. According to the parties, the litigation now includes approximately 1,100 individual plaintiffs’ claims.
On January 11, 2000, the circuit court entered a “Case Management Order/Trial Plan” that ordered the consolidation of all pending personal injury tobacco cases in a single consolidated trial, 'with the trial issues to be bifurcated as follows:
(a) Phase I — General liability issues common to all defendants including, if appropriate, defective product theory; negligence theory; warranty theory; and any other theories supported by pretrial development.
Also to be tried in Phase I will be entitlement to punitive damages[.]
(b) Phase II — Individual claims of the plaintiffs whose cases have been consolidated. Either separate individual juries, judge or judges will independently address issues unique to each plaintiffs compensatory damages and any other individual issues in reasonably sized trial groups or on an individual basis.
The defendant tobacco companies ultimately moved to revise this trial plan by removing the issue of the entitlement to and, if appropriate, the amount of punitive damages from the jury’s consideration in Phase I of the trial based on the U.S. Supreme Court ease of State Farm v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). By order of June 16, 2004, the circuit court vacated and set aside the January 11, 2000, trial plan order. The circuit court found that Campbell stands for the principle that the conduct of a party against whom punitive damages are sought must have a direct nexus to a specific person who claims to have been damaged by that conduct. The circuit court further found that “[t]he emphasis upon a subjective analysis of the defendant’s conduct vis-a-vis a specific plaintiff requires that the defendant’s conduct be tailored to each plaintiff,]” and concluded that this could not be accomplished under the existing trial plan order. The circuit court certified the question set forth above to this Court in a September 24, 2004, order and answered the question in the affirmative.
II.
STANDARD OF REVIEW
“The appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).
III.
DISCUSSION
The issue before is whether the United States Supreme Court’s decision in State Farm v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) precludes bifurcation as originally ordered by the cirpuit court wherein the punitive damages multiplier would be determined prior to the assessment of compensatory damages for each plaintiff.
The plaintiffs below support the circuit court’s vacated trial plan. They assert that the plan did not violate Campbell, which, they allege, is not a fundamental change of long-standing punitive damages law but rather is perfectly consistent with such law. The defendant tobacco companies, on the other hand, challenge the circuit court’s trial plan essentially on the basis that it violates Campbell by permitting the plaintiffs to show the reprehensibility of the defendants’ conduct, for the purpose of proving the appropriateness of punitive damages, by admitting evidence of conduct that was dissimilar to the conduct that injured particular plaintiffs. The defendants assert that evidence of prior bad conduct must be related to the defendant’s actions toward individual plaintiffs in order to be relevant to the punitive damages analysis.
In Campbell, the insureds brought an action against their insurer, State Farm, to recover for bad-faith failure to settle within the policy limits and damages for fraud and intentional infliction of emotional distress. A jury awarded the insureds $2.6 million in compensatory damages and $145 million in punitive damages, which the trial court reduced to $1 million and $25 million respectively. On appeal, the Utah Supreme Court reinstated the $145 million punitive damages award. The United States Supreme Court subsequently reversed the punitive damages award because it found it to be “neither reasonable nor proportionate to the wrong committed,” and “an irrational and arbitrary deprivation of the property of the defendant” in violation of the Fourteenth Amendment. Campbell, 538 U.S. at 429, 123 S.Ct. at 1526. The Court explained that the insureds’ attempt to show the reprehensible conduct of State Farm by introducing evidence of State Farm’s business practices for over 20 years in numerous states was constitutionally improper. According to the Court:
The [insureds] have identified scant evidence of repeated misconduct of the sort that injured them. Nor does our review of the Utah courts’ decisions convince us that State Farm was only punished for its actions toward the [insureds]. Although evidence of other acts need not be identical to have relevance in the calculation of punitive damages, the Utah court erred here because evidence pertaining to claims that had nothing to do with a third-party lawsuit was introduced at length. Other evidence concerning reprehensibility was even more tangential. For example, the Utah Supreme Court criticized State Farm’s investigation into the personal life of one of its employees and, in a broader approach, the manner in which State Farm’s policies corrupted its employees. The [insureds’] attempt to justify the courts’ reliance upon this unrelated testimony on the theory that each dollar of profit made by underpaying a third-party claimant is the same as a dollar made by underpaying a first-party one. For the reasons already stated, this argument is unconvincing. The reprehensibility guidepost does not permit courts to expand the scope of the case so that a defendant may be punished for any malfeasance, which in this case extended for a 20-year period. In this ease, because the [insureds] have shown no conduct by State Farm similar to that which harmed them, the conduct that harmed them is the only conduct relevant to the reprehensibility analysis.
538 U.S. at 423-24, 123 S.Ct. at 1523-24 (citations omitted).
After carefully considering the parties’ arguments and the Supreme Court’s decision in Campbell, this Court finds that Campbell, which did not involve mass tort litigation, does not per se preclude the circuit court’s original trial plan. We emphasize that the question before this Court is a narrow one. Accordingly, our answer is strictly limited to this narrow question. Our response is limited to the issue of whether State Farm v. Campbell precludes a bifurcated trial plan like the one below. Further, we do not address whether there may be other legal reasons to question the circuit court’s bifurcated trial plan. Nor do we, or indeed can we, address in the abstract the specific evidence that may be presented on the issue of reprehensibility. Our conclusion in this case simply is, first, we find nothing in Campbell that mandates a reexamination of our existing system of mass tort litigation. Second, we find nothing in Campbell that per se precludes a bifurcated trial plan in which a punitive damages multiplier is established prior to the determination of individual compensatory damages. Beyond this, we leave more specific issues for another day. As this Court stated in State ex rel. Mobil Corp. v. Gaughan, 211 W.Va. 106, 563 S.E.2d 419 (2002),
we cannot substantively address Mobil’s concerns regarding the potential use of a matrix, or a punitive damage multiplier, because the trial comb has not yet definitively ruled upon the use of either of these mechanisms. Accordingly, any consideration of these issues at this time would be clearly premature. The trial court’s announcement to postpone for the time being, any decision regarding the potential use of a matrix underscores the precipitous nature of ruling on this issue at this juncture. Matters such as a matrix and the use of a punitive damage multiplier, given the unresolved nature of the use of such mechanisms, can be better addressed by this Court upon appeals taken from final orders.
Gaughan, 211 W.Va. at 116, 563 S.E.2d at 426. Similarly, in the instant ease, any issue beyond that set forth in the certified question is one that this Court will only consider on appeal with the benefit of a fully developed record and a final order. To reiterate, it is clear to this Court that Campbell does not eliminate mass tort litigation as provided for in our Trial Court Rule 26. Further, it is significant to us that bifurcated trial plans structured like the one at issue are common in West Virginia as well as other jurisdictions. In sum, absent a clear indication to the contrary, we believe that Campbell does not preclude the bifurcated trial plan at issue.
The circuit court found in its order setting aside its original trial plan, and the defendants agree, that “the conduct of a party against whom punitive damages are sought must have a direct nexus to a specific person who claims to have been damaged by that conduct.” Further, “[t]he emphasis upon a subjective analysis of the defendant’s conduct vis-a-vis a specific plaintiff requires that the defendant’s conduct be tailored to each plaintiff. That cannot be accomplished under the existing Case Management Order.” We reject the circuit court’s application of Campbell.
Campbell stands for the principle, among others, that “[a] defendant’s dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.” 538 U.S. at 422-23, 123 S.Ct. at 1523. Notably, the facts in Campbell were quite extreme. As noted above, the plaintiffs in Campbell brought what the Supreme Court characterized as a third-party bad faith claim against them insurer. In order to show the reprehensibility of the insurer’s conduct, the plaintiffs were permitted to introduce evidence of insurer misconduct that had nothing to do with the type of misconduct that injured them. “For example, the Utah Supreme Court [in upholding the verdict in Campbell] criticized State Farm’s investigation into the personal life of one of its employees and, in a broader approach, the manner in which State Farm’s policies corrupted its employees.” Campbell, 538 U.S. at 424, 123 S.Ct. at 1523.
In application of this principle to the instant case, it is the role of the circuit court to ensure that the plaintiffs’ evidence is relevant, reasonably related to the acts upon which liability is premised, and supports their claim for punitive damages. Therefore, we find nothing in the circuit court’s original trial plan that prevents the admission of evidence that is proper under Campbell.
Another concern raised by the defendants is that the circuit court’s original trial plan would not ensure that punitive damages are proportionate to the injury caused to individual plaintiffs. Again, we disagree. As noted above, the circuit court’s original trial plan anticipates that the defendants’ general liability and a punitive damages multiplier would be determined in the first trial phase. In the second phase, compensatory damages would be determined for each individual plaintiff after individual evidence is presented. Finally, the punitive damages multiplier determined in the first phase would be applied to each plaintiffs compensatory damages award in order to reach the proper amount of punitive damages for each plaintiff.
Concerning the proper ratio of punitive damages to compensatory damages, the Court in Campbell opined,
we have been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award. We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. In [Pacific Mut. Life Ins. Co. v.] Haslip, [499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) ] in upholding a punitive damages award, we concluded that an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety. We cited that 4-to-1 ratio again in [BMW of North America, Inc. v] Gore, [517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) ]. The Court further referenced a long legislative history, dating back over 700 years and going forward to today, providing that sanctions of double, treble, or quadruple damages to deter and punish. While these ratios are not binding, they are instructive. They demonstrate what should be obvious: Single-digit multipliers are more likely to comport with due process, while still achieving the State’s goal of deterrence and retribution, than awards with ratios in range of 500 to 1, or, in this case, 145 to 1.
Campbell, 538 U.S. at 424-425, 123 S.Ct. at 1524 (citations omitted). The defendants below contend that by determining the punitive damages multiplier prior to determining individual compensatory damages, there is no way to ensure the proper ratio between the two. We disagree.
This Court has recognized the duty of trial courts to review punitive damage awards. See Bowyer v. Hi-Lad, Inc. 216 W.Va. 634, 649, 609 S.E.2d 895, 910 (2004) (stating that “[i]f a jury awards punitive damages to a litigant, a circuit court must carefully review the jury’s verdict”); Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991) (setting forth the factors for trial courts to consider when reviewing awards of punitive damages). In cases like the instant one, we are confident that once individual compensatory and punitive damages awards are determined, the trial court can review each of the awards to ensure that it comports with the principles articulated in Campbell and other applicable cases.
Therefore, we now hold that the United States Supreme Court’s decision in State Farm v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), does not preclude the bifurcation of a trial into two phases wherein certain elements of liability and a punitive damages multiplier are determined in the first phase and compensatory damages and punitive damages, based on the punitive damages multiplier, are determined for each individual plaintiff in the second phase.
Again, in answering the question certified to us, we have determined merely that the trial court’s original trial plan is not violative of Campbell. Beyond this, we make no judgment on whether the trial court’s original plan is the best method for trying the instant tobacco litigation. Further, we decline to tell the circuit court how to proceed. This Court has recognized that,
management of [mass tort] cases cannot be accomplished without granting the trial courts assigned to these matters significant flexibility and leeway with regard to their handling of these cases. A critical component of that required flexibility is the opportunity for the trial court to continually reassess and evaluate what is required to advance the needs and rights of the parries within the constraints of the judicial system. Out of this need to deal with “mass litigation” cases in non-traditional and often innovative ways, TCR 26.01 was drafted and adopted.
State ex rel. Mobil Corp. v. Gaughan, 211 W.Va. 106, 111, 563 S.E.2d 419, 424 (2002). Thus, absolutely nothing in this opinion should be read to limit a trial court's significant leeway in fashioning a trial plan appropriate to the specific circumstances of the mass tort case at issue.
IV.
CONCLUSION
For the reasons set forth above, we answer the certified question as follows:
Does the Due Process Clause of the Fourteenth Amendment to the Federal Constitution, as interpreted by State Farm v. Campbell, preclude a bifurcated trial plan in a consolidated action consisting of personal injury claims of approximately 1,000 individual smokers, wherein Phase I of the trial would decide certain elements of liability and a punitive damages multiplier and Phase II of the trial would decide for each plaintiff compensatory damages and punitive damages based upon the punitive damages multiplier determined in Phase I?
Answer: No.
Certified question answered.
. This Court has recognized that trial courts have significant leeway in implementing a mass trial format. State ex rel. Mobil Corp. v. Gaughan, 211 W.Va. 106, 563 S.E.2d 419 (2002), cert denied, Mobil Corp. v. Adkins, 537 U.S. 944, 123 S.Ct. 346, 154 L.Ed.2d 252 (2002). In Syllabus Point 3 of State ex rel. Appalachian Power Co. v. MacQueen, 198 W.Va. 1, 479 S.E.2d 300 (1996), we held:
A creative, innovative trial management plan developed by a trial court which is designed to achieve an orderly, reasonably swift and efficient disposition of mass liability cases will be approved so long as the plan does not trespass upon the procedural due process rights of the parties.
. In Games v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991), this Court held that the jury may consider the reprehensibility of the defendant’s conduct including whether and how often the defendant engaged in similar conduct in the past. We believe that Campbell does not materially alter this holding. Rather, Campbell generally addresses the requirement that evidence of prior bad conduct must be "similar.”
. Punitive damages awards should also be assessed by the trial court in light of this Court's holdings in TXO Production Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992), affirmed, 509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993), and Games, supra, and the holding of the United States Supreme Court in BMW of North America, Inc. v. Gore, supra. | [
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ALBRIGHT, Chief Justice:
Presented through this consolidated appeal is the meaning of the term “public water” for zoning related decisions arising under both state and local laws in effect in Jefferson County, West Virginia. After careful consideration of this issue, we determine that Appellant Jefferson Utilities, Inc. (“Jefferson Utilities”), as a public utility within the meaning of West Virginia law, is providing “public water” within the meaning of the local laws at issue. With regard to the orders entered on July 9, 2004, and July 12, 2004, by the Circuit Court of Jefferson County through which the lower court ruled that zoning administrators are ministerial employees who are prohibited from exercising discretion and further held that the Jefferson County Board of Zoning Appeals (“Board”) must apply a de novo standard of review to decisions made by zoning administrators and are barred from deferring to any findings made by the zoning administrator, we wholly reject the reasoning employed by the circuit court. ■ Under the local ordinance at issue, a zoning administrator is required to exercise some discretion on a limited basis when applying factors set forth in the local ordinance as part of the mandated review process. While an appeal to the Board from a determination by a zoning administrator is permitted by statute, there is no basis for the circuit court’s conclusion that the Board is required on an appeal to reconsider each and every aspect of the decisions reached by the zoning administrator and is expressly prohibited from deferring to any determination made by the zoning administrator. Because both of the decisions reached by the lower court, as set forth in the July 9 and 12, 2004, orders, are predicated on the lower court’s determination that the zoning administrator is prohibited from applying any discretion in the exercise of his/her duties and that the Board is concomitantly barred from deferring to findings made by a zoning administrator, each of those decisions is hereby reversed.
I. Factual and Procedural Background A. Jefferson Utilities Case
Jefferson Utilities, a privately owned corporation, was formed in 1985 for the purpose of owning and operating a public water system in Jefferson County, West Virginia. Through merger, Jefferson Utilities acquired the public water systems of Walnut Grove Utilities, Inc., and Shenandoah Junction Public Water, Inc. Currently, Jefferson Utilities owns, maintains, and operates a public water system that serves approximately 1,400 customers. Jefferson Utilities is regulated by the West Virginia Public Service Commission and the Bureau for Public Health of the West Virginia Department of Health and Human Resources.
The framework for land development in Jefferson County is governed by a comprehensive planning and zoning regulatory scheme which includes the Jefferson County Zoning and Development Review Ordinance (the “Ordinance”). In performing the requisite land evaluation and site assessment (“LESA”) that is required by the provisions of the Ordinance, Paul Raco, the zoning administrator, determined that Jefferson Utility was not providing water to the public in the same manner as a “public utility.” The significance of qualifying as a “public utility,” or as a provider of public water, is that the zoning administrator awards zero points for the LESA scoring element of public water availability where water is supplied by a public utility. Being awarded a low score on this element, as well as the other LESA factors, is crucial to obtaining a favorable LESA score, which is necessary to obtain approval for land development under the Development Review System (“DRS”) set in place by the Ordinance. Rather than getting the optimal score of zero for the water availability aspect of the LESA score, Jefferson Utilities was routinely being awarded the score of three by the zoning administrator as part of the LESA evaluations. The zoning administrator assessed Jefferson Utilities this score based on his position that Jefferson Utilities is not a “public utility” or provider of public water because of its private ownership. Mr. Raco took the position that absent governmental ownership, he could not award a score of zero to an entity supplying water to the public.
Contending that inconsistent LESA scores were being awarded to various water suppliers, Jefferson Utilities sent a letter dated September 16, 2002, to the zoning administrator, requesting a written determination of section 6.4(f) of the Ordinance, the section which addresses the “public water availability” component of the LESA score. After receiving a response from Mr. Raco, in which he reasserted his position that a privately-owned water supplier could not come within the meaning of the term “public water” under the Ordinance, Jefferson Utilities appealed that decision to the Board. Because the Board could not reach a decision by majority vote following a public hearing on this issue, no action was taken in connection with the appeal.
Jefferson Utilities filed a petition for writ of certiorari with the circuit court, as permitted by West Virginia Code § 8-24-59 (1969) (Repl.Vol.2003), for review of the Board’s decision. Upon its review of this matter, the circuit court issued a ruling on July 9, 2004, through which it undertook to analyze the statutory authority and role of the zoning administrator. After sua sponte concluding that the zoning administrator was a ministerial employee with no discretionary powers for resolving zoning related issues or authority to interpret terms contained in the Ordinance, the circuit court determined that the letter opinion issued by Mr. Raco was not an official act subject to its review because the zoning administrator lacked authority to interpret an Ordinance provision and dismissed the action. Jefferson Utilities appeals from the lower court’s dismissal of its writ of certiorari and continues to seek a ruling on the issue of whether it qualifies as a “public utility,” or more specifically, as a provider of “public water” within the meaning of the law.
B. Kletter Cases
Through its order of July 12, 2004, the circuit court issued rulings in a consolidated matter comprised of four separate appeals from the Board. The four separate rulings involved three proposed residential developments in the rural district of Jefferson County where each developer was seeking a conditional use permit through the DRS process to gain approval for high density development in an area zoned for rural use.
On September 9, 2003, the circuit court issued an eighty-eight page ruling concerning these matters through which it ruled that the Board erred in finding that certain support data submitted by the developers in support of their conditional use permit applications was sufficient and consequently remanded the cases for further proceedings. In addition, the trial court concluded that the Board erred in ruling that section 5.7(d) of the Ordinance permitted development of a non-residue rural parcel. Based on the pending nature of this Court’s decision in Corliss v. Jefferson County Board of Zoning Appeals, 214 W.Va. 535, 591 S.E.2d 93 (2003), the circuit court reserved discretion to reconsider its ruling upon motion of either party following the issuance of the Corliss opinion. Both Buckeye Development and the Board filed motions seeking reconsideration of the trial court’s September 9, 2003, ruling following the issuance of the Corliss decision.
By order entered on July 12, 2004, the circuit court responded to the motions for reconsideration by upholding its decision to reverse and remand. Rather than turning its decision on the insufficiency of the support data as it had initially held in its September 9, 2003, order, the trial court adopted a new tack by concluding that the zoning administrator was a ministerial employee with no authority to exercise any discretion. Reasoning that the Board had applied an improper standard of review in deferring to any decisions reached by the zoning administrator with regard to the sufficiency of the support data, the circuit court concluded that reversible error had been committed. Remand was ordered for further proceedings and to require the Board to adopt its own rules of procedure that would be patterned after standard trial procedures. Through this appeal, both Buckeye Development and the Board seek a reversal of the July 12, 2004, ruling and affirmance of the Board’s rulings authorizing the issuance of the conditional use permits sought by Buckeye Development to proceed with its proposed development of the Daniel’s Forest and Forest View subdivisions.
II. Standard of Review
As we explained in Webb v. West Virginia Board of Medicine, 212 W.Va. 149, 569 S.E.2d 225 (2002), “[o]n appeal, this Court reviews the decisions of the circuit court under the same standard of judicial review that the lower court was required to apply to the decision of the administrative agency.” Id. at 155, 569 S.E.2d at 231; accord Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995). The standard that applied to the circuit court’s review of the consolidated appeals from the Zoning Board was announced in syllabus point five of Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975): “While on appeal there is a presumption that a board of zoning appeals acted correctly, a reviewing court should reverse the administrative decision where the board has applied an erroneous principle of law, was plainly wrong in its factual findings, or has acted beyond its jurisdiction.”
We have further recognized that “[i]n cases where the circuit court has amended the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of discretion standard and reviews questions of law de novo." Syl. Pt. 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). With these standards in mind, we proceed to consider the arguments presented through this consolidated appeal.
III. Discussion
A. Public Utility
The amenities section of the development review system requires the calculation of a score for the component of “public water availability.” Section 6.4(f) provides that “[t]his criterion assesses the availability of existing public water service with available capacity that is approved by the County Health Department and/or Public Service District to the site at the time of the development proposal application.” The Ordinance provides for a score of “0” where public water is available; “3” where central water is proposed; and “11” where private wells must be utilized.
As support for the zoning administrator’s position that Jefferson Utilities was not entitled to the lowest score possible in assessing the availability of public water, Mr. Raco opined that the word “public” means “ ‘owned by the people’ ” or “ ‘government owned.’ ” Given the private ownership of Jefferson Utilities, the zoning administrator awarded Jefferson Utilities with a score of 3 based on the ownership approach he adopted. Appellants Jefferson Utilities and Buckeye Development challenge this reasoning, asserting that the law does not support a construction that views only government owned water suppliers as entities who qualify under the Ordinance as providing public water under the meaning of the Ordinance provisions.
Appellants urge this Court to recognize that government ownership is not required to invoke the use of the term “public” for purposes of assessing the availability of water. As support for this position, they assert that the terms “public water system” and “public utility” are defined by state law in a manner that supports viewing Jefferson Utilities as a provider of public water, rather than as a central water system provider under the reasoning employed by the zoning administrator. Pursuant to statutes enacted to govern the public health system, a “public water system” is defined as
any water supply or system that regularly supplies or offers to supply water for human consumption through pipes or other constructed conveyances, if serving at least an average of twenty-five individuals per day for at least sixty days per year, or which has at least fifteen service connections, and shall include: (1) Any collection, treatment, storage and distribution facilities under the control of the owner or operator of such system and used primarily in connection with such system; and (2) any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system ....
W.Va.Code § 16-1-9a(a) (2001 & Supp.2005).
For purposes of applying laws adopted pertaining to the public service commission, the term “public utility” is defined by statute to mean “any person or persons, or association of persons, however associated, whether incorporated or not, including municipalities, engaged in any business, whether herein enumerated or not, which is, or shall hereafter be held to be, a public service.” W.Va. Code § 24-1-2 (1979) (Repl.Vol.2004). This Court has previously held that the key to determining whether a “public utility” is involved is not the issue of the ownership of the entity providing the service, but instead whether that specific entity has dedicated or held out its services, such as gas; oil; electricity; or water, to the public in a manner that suggests that it is in the business of supplying the public, rather than a limited class of individuals, with a particular service. See Wilhite v. Public Serv. Comm’n, 150 W.Va. 747, 149 S.E.2d 273 (1966). In ruling that all public utilities, whether publicly or privately owned, are subject to the same treatment and supervision of the Public Service Commission in State ex rel. City of Wheeling v. Renick, 145 W.Va. 640, 651, 116 S.E.2d 763, 769 (1960), this Court interpreted West Virginia § 24^1-2 to apply to privately owned suppliers of public services, such as Jefferson Utilities. Accord Syl. Pt. 7, Affiliated Constr. Trades Found. v. Public Serv. Comm’n, 211 W.Va. 315, 565 S.E.2d 778 (2002) (holding that “[e]lectric generation and transmission facilities intended solely for the sale of electricity on the wholesale market are within the statutory definition of public utility set forth in West Virginia Code § 24-2-1 (1991) (Repl.Vol.2001) whenever it appears that the electricity produced will, in the course of distribution, ultimately be sold to the public”).
Jefferson Utilities is regulated by the Public Service Commission in connection with its provision of-water to citizens of Jefferson County, West Virginia, and clearly qualifies as a “public utility” under the laws of this State. See W.Va.Code § 24-1-2. The reasoning employed by the zoning administrator in requiring governmental ownership as a prerequisite to awarding the lowest score available for the amenities assessment element of “public water availability” fails to withstand scrutiny. It is the fact of the water availability itself 'and not the ownership of the entity providing such water that controls the issue. Rather than focusing singularly on the word “public,” as the zoning administrator appears to have conducted his analysis, the critical component of this portion of the amenities assessment is the fact of the avwliability of water that can be distributed to potential land owners — i.e. the “public.” Regardless of whether the water supplier’s ownership is private or public, the key component at issue is the availability of water. When the Legislature recently adopted a comprehensive land use planning schema, the term “utility” was expressly defined .to include distribution of services by private entities. See W.Va.Code § 8A-l-2(ff) (2004 & Supp.2005) (“Utility” means a public or private distribution service to the public that is regulated by the “Public Service Commission.”). Accordingly, we hold that a privately owned entity engaged in providing water services to the public that qualifies as a “public utility” or “utility” under state law is entitled to be viewed as providing “public water” for purposes of calculating the requisite land evaluation and site assessment phase of the development review system required by the Ordinance. Application of this ruling requires that under the facts of this case, Jefferson Utilities would be entitled to the lowest LESA score possible for the provision of public water, that is a “0,” rather than the “3” that was awarded by Mr. Raco.
B. Zoning Administrator’s Authority
First, in the Jefferson Utilities matter and then second, in the consolidated Kletter cases, the trial court undertook to identify the role and authority of the zoning administrator. Looking to statutory language which refers to the actions that the Board can take with reference to “administrative rulings,” the circuit court concluded that such language required that the Board review all matters appealed to it from a zoning administrator pursuant to a de novo standard. W.Va.Code § 8-24-55 (1969) (Repl.Vol.2003). In both of the opinions at issue in this consolidated matter, the circuit court concluded sua sponte that the Board was without authority to accord any deference to determinations reached by a zoning administrator based on the applicable standard of review. See id.
In deciding that the authority of the zoning administrator was severely limited, the trial court looked to the language of West Virginia Code § 8-24-55 setting forth the actions that a board of zoning appeals may take upon its review of administrative rulings:
In exercising its powers and authority, the board of zoning appeals may reverse or affirm, in whole or in part, or may modify the order, requirement, decision or determination appealed from, as in its opinion ought to be done in the premises, and to this end shall have all the powers and authority of the official or board from whom or which the appeal is taken.
W.Va.Code § 8-24-55 (emphasis supplied). From this language alone, the trial court concluded that the Board’s power of review with regard to determinations made by the zoning administrator is de novo. Because the Board gave deference to certain factual determinations made by Mr. Raeo, the circuit court concluded that the Board had applied an erroneous principle of law which required reversal. See Wolfe, 159 W.Va. at 35, 217 S.E.2d at 900, syl. pt. 5.
In attempting to define the authority of the zoning administrator, the trial court limited its analysis to one statutory provision that authorizes a municipal or county planning commissions to “[djelegate to employees authority to perform ministerial acts in all cases except where final action of the commission is necessary.” See W.Va.Code § 8-24-14(5) (1969) (Repl.Vol.2003). Because the enabling legislation that creates such planning commissions permits the hiring of employees for the accomplishment of ministerial acts combined with the fact that the Ordinance provides that the zoning administrator will be “under the direct supervision of the Planning and Zoning Commission,” the trial court concluded that a zoning administrator is necessarily someone hired by the commission solely to “perform ministerial acts.” W.Va.Code § 8-24-14(5).
This narrow reasoning, which focuses solely on a planning commission’s authority to hire individuals for routine administrative matters that are ministerial in nature, fails to appreciate that the enabling legislation grants additional authority to planning commissions. The same statutory provision that authorizes the hiring of ministerial employees also grants to a planning commission general authority to “[pjrescribe the qualifications of, appoint, remove and fix the compensation of, the employees of’ the commission. W.Va.Code § 8-24-14(4); see also W.Va.Code § 8-24-12 (1969) (Repl.Vol.2003) (granting authority for hiring of employees “necessary for the discharge of the duties and responsibilities of the commission”). Under the Jefferson County ordinance, the zoning administrator is supposed to be hired by the planning commission. Consequently, the job duties and responsibilities assigned to the zoning administrator are to be determined by the planning commission or the ordinance language setting forth the duties of the zoning administrator. Contrary to the circuit court’s approach to this issue, the “ministerial acts” statutory language is not the sole basis for identifying the zoning administrator’s authority or job description. W.Va.Code § 8-24-14(5).
As additional authority for the creation of the zoning administrator position, we have previously recognized that county commissions and municipalities derive their general authority to adopt zoning ordinances from West Virginia Code § 8-24-39 (1988) (Repl.Vol.2003). See Dewey v. Board of Zoning Appeals, 185 W.Va. 578, 581, 408 S.E.2d 330, 333 (1991); Wolfe, 159 W.Va. at 39, 217 S.E.2d at 903. That statutory provision expressly grants authority to municipalities and county commissions for the implementation of zoning laws. We have further observed that the enactment of a zoning ordinance is an exercise of the broad police power of the state, as delegated to the local governing body. See Par Mar v. City of Parkersburg, 183 W.Va. 706, 709, 398 S.E.2d 532, 535 (1990).
An integral part of extending the state’s police powers to local governing bodies is the related enforcement powers that are implicitly granted to such bodies for the purpose of carrying out local laws. See State ex rel. State Line Sparkler v. Teach, 187 W.Va. 271, 275, 418 S.E.2d 585, 589 (1992) (recognizing that “[t]he general rule is that a grant of the police power to a local government or political subdivision necessarily includes the right to carry it into effect and empowers the governing body to use proper means to enforce its ordinances”). These principles are illustrated in the case at bar by the fact that the County Commission has reposed in the Planning Commission the responsibility for effectuating various laws, such as zoning matters, that pertain to land use. In turn, fulfillment of that responsibility for land use governance requires the employment of both employees and administrators. Central to the administration of the Ordinance under discussion is the position of zoning administrator.
The following Ordinance provisions address the responsibilities assigned to the zoning administrator:
Section 3.2 Zoning Administrator
(a) It shall be unlawful to develop, construct, alter, or reconstruct any structure or to change the use of any structure or property without first obtaining a zoning certificate from the Zoning Administrator. ...
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(b) Use of any property, developmental arrangement, or construction on any property other than that authorized in the zoning certificate is a violation of this Ordinance....
Section 3.3 Enforcement
(a) The Zoning Administrator shall promptly investigate any written complaint alleging a violation of this Ordinance and determine if a violation has occurred.
In addition to the above provisions, the Ordinance grants the zoning administrator the responsibility for making determinations of prohibited uses of land in section 4.4 and further charges the zoning administrator in section 7.4 with the duty for determining whether the sketch plan and support data required as part of the DRS “are adequate.” The Board maintains that these duties impliedly require the exercise of some discretion. As additional support for its position, the Board posits that the appeal, which is statutorily provided by West Virginia Code § 8-24-55, would not be necessary if the zoning administrator was charged only with the execution of ministerial duties — ones that involved no element of discretion. We agree.
Review of the Ordinance provisions demonstrates that the purely ministerial box into which the circuit court attempts to make the position squarely fit does not accurately reflect what is required of the zoning administrator to effectuate the duties he or she is charged with performing. For example, in charging the zoning administrator with the duty to determine in the first instance whether the sketch plan and support data submitted in support of a conditional use permit “are adequate,” the drafters of the Ordinance reposed the individual responsible for fulfilling the duties that accompany this position with a certain amount of discretion. Other courts have had little difficulty in concluding that a zoning administrator is charged with varying amounts of discretion for the performance of his or her respective duties, and that the degree of discretion reposed in such individual is determined by the terms of the ordinance. In Biser v. Deibel, 128 Md.App. 670, 739 A.2d 948 (1999), the appellate court affirmed the trial court’s determination that the zoning administrator “acted in a discretionary capacity.” Id. at 953. In discussing the issue of the zoning administrator’s discretion, the appellate court found evidence for such exercise in the provision of the zoning ordinance that provided: “It shall be the duty of the Zoning Administrator to issue a Zoning Certificate provided he [or she] is satisfied that the building or premises and the proposed use thereof conform with all the requirements of this Ordinance.” Id. The court reasoned that the zoning administrator was “required to exercise her judgment” when maldng determinations relevant to the issuance of a permit, and that these decisions were not “ministerial” in nature. Id.; accord West Coast Advert. Co. v. City and County of San Francisco, 256 Cal.App.2d 357, 64 Cal.Rptr. 94, 96 (Cal.App.1967) (holding that zoning administrator acted within his discretion in denying application for permit to construct billboard); Community Housing Trust v. Dep’t of Consumer and Reg. Affairs, 257 F.Supp.2d 208, 214 n. 7 (D.D.C.2003) (noting that zoning administrator had discretion regarding classification of house within one of seven categories); Ancient Art Tattoo Studio v. City of Virginia Beach, 263 Va. 593, 561 S.E.2d 690, 692-93 (2002) (finding that zoning administrator’s decision regarding classification of tatoo parlor was “discretionary and was not the performance of a purely ministerial duty”); Door County Envtl. Council v. Door County, 616 N.W.2d 923 (Wis.2000) (recognizing that zoning ordinance “specifically gives discretion to the zoning administrator to determine when an application for a particular use provides sufficient information”) (unpublished decision). Consequently, we are compelled to conclude that the position of zoning administrator necessarily entails the use of limited amounts of discretion in complying with the provisions of the Ordinance.
As support for its contention that the position of zoning administrator is solely ministerial in nature, the circuit court looked to a decision issued by the North Carolina Supreme Court in County of Lancaster v. Mecklenburg County, 334 N.C. 496, 434 S.E.2d 604 (1993), in which the appellate court examined the distinctions between administrative and quasi-judicial zoning decisions. At issue was the constitutionality of a county zoning ordinance that authorized a zoning administrator to make a determination as to the fulfillment of six conditions as a prerequisite to approving a zoning peimit application for the siting of a landfill. Id. at 607. In upholding the delegation of power by the county commission to the zoning administrator to issue landfill permits on a due process challenge, the North Carolina Supreme Court examined whether the zoning administrator’s decision was a quasi-judicial zoning decision or a routine administrative matter. The appellate court reasoned as follows:
Zoning decisions are typically characterized as being in one of four different categories' — legislative, advisory, quasi-judicial, and administrative. In this case, the question is whether the issuance of a permit for a landfill as a permitted use with prescribed conditions is properly characterized as a quasi-judicial decision or as an administrative zoning decision.
In making quasi-judicial decisions, the decisionmakers must “investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.” In the zoning context, these quasi-judicial decisions involve the application of zoning policies to individual sit- nations, stick as variances, special and conditional use permits, and appeals of administrative determinations. These decisions involve two key elements: the finding of facts regarding the specific proposal and the exercise of some discretion in applying the standards of the ordinance.
Administrative decisions are routine, nondiscretionary zoning ordinance implementation matters carried out by the staff, including issuance of permits for permitted uses. In general, the zoning administrator is a purely administrative or ministerial agent following the literal provisions of the ordinance. The zoning administrator may well engage in some fact finding, as in making an initial 'determination as to whether a nonconforming use was in existence at the time a zoning ordinance was adopted. But, in such instances, this involves determining objective facts that do not involve an element of discretion.
434 S.E.2d at 612 (citations omitted and emphasis supplied).
The appellate court in Mecklenburg County concluded that the zoning decision was an administrative decision rather than a quasi-judicial determination, which would have required an evidentiary hearing and the use of fair trial standards. While the circuit court in the case at bar placed great emphasis on language opining that the zoning administrator was not using “discretion” when he applied fact-finding to ordinance provisions, it was not the use of a nominal degree of discretion in Mecklenburg County that was key to declaring whether fair trial procedures were required, but instead the nature of the decision-making process at hand. If the decision required the use of fair trial procedures by the nature of the matters being addressed, then a quasi-judicial decision process was involved. Conversely, such procedures were not required if the decision was the type of administrative matter routinely capable of being resolved by the zoning administrator along with advice from his staff.
Just as the Jefferson County Zoning Administrator is called upon to use discretion in limited situations when applying the provisions of the Ordinance, the zoning administrator involved in the Mecklenburg County ease was similarly required to engage in the application of specific facts to the provisions of the county, ordinance at issue in that case. The North Carolina Supreme Court upheld the County Board of Commissioners’ characterization of instances where the zoning administrator had to apply specific facts to make a determination regarding a specific factor or condition under the ordinance as an “objective finding.” Examples of such objective findings included when the zoning administrator was required to determine whether the anticipated future use of the property was consistent with the county’s land use plan and whether the cost estimates for reclamation were “ ‘reasonable.’ ” 434 S.E.2d at 614. Despite the fact that the court in Mecklenburg County preferred to shroud the occasional employment of discretion by a zoning administrator in terms of an “objective finding,” this does not mean that discretion was not employed in making those decisions. Id. More importantly, while the North Carolina appellate court may have arguably sidestepped the exercise of discretion by a zoning administrator, it correctly formulated the process for determining, whether an administrative decision requires the enhanced protections attendant to quasi-judicial proceedings.
In explaining how the zoning permit decision at issue in Mecklenburg County was not a “special use” zoning decision, one that would clearly involve the due process protections attendant to a quasi-judicial proceeding, the North Carolina court explained: “It is not the terms used by the ordinance to describe these permits that has legal significance; it is whether the nature of the decision to be made is, in fact, quasi-judicial or administrative.” 434 S.E.2d at 613 (emphasis supplied). In the same vein then, the critical factor in determining whether the use of some limited discretion by a zoning administrator requires the additional protections that typically attach in evidentiary proceedings is whether the determination being made is one that qualifies as administrative or quasi-judicial in nature.
As the court was quick to acknowledge in Mecklenburg County “quasi-judicial special use permit decisions may not be assigned to the zoning administrator.” 434 S.E.2d at 613. Those proceedings, which entail the presentation of evidence and the making of findings, are clearly quasi-judicial in nature. Like the ordinance under review in Mecklen-burg County, the Ordinance at issue in the case sub judice does not permit the zoning administrator to issue a conditional use permit. Such a decision would clearly be outside the realm of the administrative functions he or she is charged with performing under the Ordinance. But the fact that the zoning administrator makes LESA determinations as an initial fact gatherer that are then looked to by the Board and ultimately the Planning Commission in deciding whether to issue a conditional use permit does not elevate the factual determinations reached by the zoning administrator to quasi-judicial in nature. The determinations made by the zoning administrator cleai'ly do not involve the type of issues that require due process protections such as evidence production; cross-examination; document inspection; and sworn testimony. See Mecklenburg County, 434 S.E.2d at 612. Consequently, the fact that some minimal degree of discretion is involved by the zoning administrator in making his/her determinations regarding the LESA score does not remove the decisions reached by the zoning administrator from the administrative realm. See id.
The nature of the decisions required to be made by the zoning administrator are, as a rule, administrative in nature. Where a local ordinance requires the application of a finding of fact to a provision of an ordinance to make a specific determination, that determination may indeed involve the exercise of some discretion. This fact alone — the exercise of discretion or judgment in applying facts to a provision of the Ordinance — is insufficient to transform a finding made by a zoning administrator into a quasi-judicial determination. Only those decisions that clearly demand that due process standards be utilized in reaching the decision at hand can transform an otherwise administrative decision into a quasi-judicial determination. From the record before us, we do not see any indication that the determinations complained of that the zoning administrator reached (i.e. sufficiency of submitted support data) were of the ñatee that required the application of such standards.
In its haste to defrock the zoning administrator of authority to exercise even a limited amount of discretion in applying the duties he or she is charged with administering under the Ordinance, the lower court disregarded established principles of administrative and property law, as well as the fact that the law seeks to avoid absurd results. See Charter Commun. VI, v. Comm. Antenna Serv., Inc., 211 W.Va. 71, 77, 561 S.E.2d 793, 799 (2002) (recognizing that “[i]t is the ‘duty of this Court to avoid whenever possible a construction of a statute which leads to absurd, inconsistent, unjust or unreasonable results’ ”) (quoting State v. Kerns, 183 W.Va. 130, 135, 394 S.E.2d 532, 537 (1990)). The circuit court overlooked the necessity for allowing the individual who holds this position to exercise limited amounts of discretion. The day-to-day decisions that are demanded of the zoning administrator cannot be postponed until the Board, a group of unpaid lay people who lack a comparable degree of expertise that the zoning administrator along with his/her staff have by virtue of their customary application of zoning procedures, holds its monthly or bi-monthly meetings. If the decisions typically made by the zoning administrator are transferred to the Board or the Planning Commission, the Board maintains that those bodies would be overwhelmed by the sheer volume of decisions that are routinely presented and which require prompt attention. Zoning matters would virtually grind to a halt if this Court were to adopt the position articulated by the circuit court.
The lynchpin on which the trial court based its rulings regarding the erroneous application of a legal principle was its conclusion that the zoning administrator’s decisions were not entitled to any deference by a reviewing body such as the Board. We reject the trial court’s reasoning and hold that the provisions of West Virginia Code § 8-24-55, which set forth the authority and power of a board of zoning appeals, do not expressly or implicitly prevent that administrative body from utilizing principles of deference typically employed in administrative proceedings in reviewing determinations reached by a zoning administrator. See, e.g., Corliss, 214 W.Va. at 542, 591 S.E.2d at 100 (discussing weight to be accorded to administrative bodies charged with handling zoning matters). Moreover, the fact that the Board has the power to reverse, affirm, or modify does not mean that the Board cannot defer to specific factual findings reached by the zoning administrator. See W.Va.Code § 8-24-55. It is this Court’s opinion that the statutory powers of review extended to the Board by West Virginia Code § 8-24-55 place the decision of when, or if, to defer to a specific decision reached by a zoning administrator within the prerogative of the Board. Consequently, the fact that the Board adopts a finding reached by the zoning administrator, such as the adequacy of the support data submitted in connection with a conditional use application, is not fatal with regard to a Board’s review of a zoning matter. To conclude otherwise would require a duplication of efforts that simply is not required or warranted. While we certainly recognize that the review mechanism established by West Virginia Code § 8-24-55 plays a vital role with regard to challenged zoning, matters, there is no basis for concluding that this review process mandates that the Board is required to start from scratch in conducting its review of a matter before it. Cf. W.Va. Code § 8-24-64 (1969) (Repl.Vol.2003) (expressly providing that circuit court’s review of appealed zoning matters shall not “be by trial de novo”). Moreover, we decline to label the powers of review set forth in West Virginia Code § 8-24-55 for zoning boards of appeal as entailing de novo review. As a quasi-judicial body created by statute, the powers of review afforded to a zoning board of appeals are delineated solely by statute and should not be analyzed under standards that apply to judicial determinations. See Dewey, 185 W.Va. at 582, 408 S.E.2d at 334 (recognizing that scope of zoning board’s authority is determined by W.Va.Code § 8-24-55).
C. Non-Residue Parcel Development
In its September 9, 2003, order, the trial court found the Board in error with regard to its decision that a non-residue rural parcel can be subdivided under the Ordinance even if the parcel at issue was not on record as of October 5, 1988. While the circuit court essentially wiped the slate clean of all the substantive issues it ruled upon in its September 9, 2003, order by finding the Board to have committed error in deferring to any decisions of the zoning administrator and remanding the entire matter for further proceedings, the Board and Buckeye Development have both requested that this legal issue be resolved so that this same issue will not have to be re-litigated following remand.
At the center of this particular dispute is language in the Ordinance that provides in section 5.7(d) that: “All parcels of land that were on record as of October 5, 1988 are entitled to subdivide for single family detached residences based on Subsections 5.7(d)l, 5.7(d)2 or 5.7(d)3 below. A property owner may use a combination of these subsections, provided that the number of lots are prorated by density.” The circuit court, in interpreting this language, concluded that unless a parcel was of record as of October 5, 1988, or is the residue of a prior subdivision of such parcel, there could be no additional subdivision of that property. This ruling was counter to the decision reached by the Board on this issue.
In resolving this same issue, the Board looked to the entirety of section 5.7 of the Ordinance to the language in the introducto ry paragraph to that section that closes with these two sentences: “All lots subdivided in the Rural District are subject to Section 5.7d Maximum Number of Lots Allowed. The Development Review System does allow for higher density [if] a Conditional Use Permit is issued.” The Board concluded that rather than being a total ban on further subdivision, the language in section 5.7(d) which references the time periods applicable for subdivision for lots in existence on October 5, 1988, merely requires that property owners desiring development of parcels not in existence in October 1988 are required to go through the procedural mechanisms set forth in the Ordinance to obtain a conditional use permit. The Board reasoned as follows in one of the Kletter cases involving the Daniels Forest proposed development:
The Board concludes that the Conditional Use Permit process allows a prospective subdivider to subdivide the property into greater number of lots with a greater density than may be allowed in the rural district pursuant to section 5.7, Zoning Ordinance. The Board concludes that section 5.7(d)(3 and 4) does not apply in the stage of the proceedings. The developer seeks to subdivide his property into a greater number of lots than may be allowed by section 5.7. The developer may only do this if he complies with the Conditional Use Permit process and obtains the permit. Therefore the board concludes that the limitation set forth in section 5.7 pertaining to the subdivision of a residue or parent parcel are not applicable at this stage of the process.
In disregarding the Boards’s interpretation of a law that it is charged with enforcing, the circuit court violated the tenet of administrative law that interpretations by administrative bodies charged with enforcement responsibilities are “given great weight unless clearly erroneous.” See Syl. Pt 4, in part, Security Nat’l Bank & Trust Co. v. First W.Va. Bancorp, 166 W.Va. 775, 776, 277 S.E.2d 613, 614. Just as in Corliss, the trial court substituted its judgment in its September 9, 2003, order for that of the administrative body charged with enforcing the Ordinance, declaring that “the goals of the Comprehensive Plan and the purposes of the Ordinance are not implemented by the process urged by the Respondent and the Intervenors [use of the conditional use permit application process].” As in Corliss, we are hard pressed not to conclude that the trial court wrongly refused to grant the appropriate amount of deference to one of the administrative bodies charged with responsibility for enforcing the Ordinance. While the trial court declared the Board’s interpretation of section 5.7 to be in error, we find no fiim basis for reaching that conclusion. Accordingly, we conclude that the Board’s interpretation of section 5.7 as allowing the conditional use permit application process as the specified procedural mechanism for seeking approval for development of property that was not a parcel in existence on October 5, 1988, is a valid interpretation of the Ordinance, given that the language authorizing the use of the conditional use permit application process immediately follows the language which pertains to the Ordinance provisions referencing the maximum number of lots that can be developed.
Based on the foregoing, the decisions of the Circuit Court of Jefferson County entered on July 9 and 12, 2004, are hereby reversed and the matters are remanded for further proceedings consistent with the holdings contained in this opinion. With respect to those appeals in the Kletter case in which the board of zoning appeals previously issued the requested conditional use permits, the lower court relied upon improper grounds to reverse those administrative decisions; consequently, the trial court is hereby directed to enter an order approving the reissuance of the subject permits and adjust, where necessary, any time deadlines established in the Ordinance that may have passed during the pendency of this appeal so that the parties are not penalized for pursuing their statutory rights of appeal.
Reversed and remanded.
. The LESA is a numerical rating system that is assessed based on criteria detailed in sections 6.3 (soils assessment) and 6.4 (amenities assessment) of the Ordinance, which is applied in the first instance by the zoning administrator. See generally Corliss v. Jefferson County Board of Zoning Appeals, 214 W.Va. 535, 591 S.E.2d 93 (2003) (discussing LESA factors).
. Only if a score of 60 or less is obtained as a result of the LESA evaluation does the process known as the Development Review System continue pursuant to the provisions of the Ordinance. Since the zoning applications at issue were lodged, the Ordinance has been amended to reduce the optimal LESA score from 60 or less to 55 or less.
. The range of scores for the LESA scoring category of public water availability is 0 to 11, with 0 being the score awarded where public utilities are providing the necessary water supply and 11 being the score awarded where private wells are to be used for the water supply in connection with a proposed development.
. Jefferson Utilities noted in its letter that differing results had obtained among the following public utilities: Jefferson County Public Service District, Charles Town Water Department, Har-pers Ferry Water Works, Shepherdstown Waterworks, and Jefferson Utilities.
. The vote was two in favor of reversing the zoning administrator's ruling to two opposed.
. Pursuant to West Virginia Code § 8-24-52 (1969) (Repl.Vol.2003), any action taken by a board of zoning appeals is not official “unless authorized by a majority of all of the members of the board.” Id.
. One appeal challenged the zoning administrator’s decisions regarding the proposed Daniel's Forest subdivision; two appeals involved decisions regarding the proposed Forest View subdivision; and one appeal involved the proposed Aspen Greens subdivision.
. Like the Kletter cases, the issue addressed in Corliss was the sufficiency of data submitted by the developer in support of a conditional use permit application.
. This Court issued its decision in Corliss on October 10, 2003.
. The trial court’s altered rationale was due to this Court’s ruling in Corliss in which we reversed the trial court's decision that the support data submitted by the developer in that case was insufficient. This Court admonished the trial court in Corliss with regard to its refusal to give the proper amount of deference to the administrative decisions reached on the issue of the sufficiency of the submitted support data. See Corliss, 214 W.Va. at 542-43, 591 S.E.2d at 100-01. See infra note 13.
. The developer of the Aspen Greens subdivision is not involved in this appeal. See supra note 7.
. In the July 12, 2004, ruling issued in the consolidated Kletter cases, the trial court restated in their entirety the rulings and reasoning from the July 9, 2004, ruling in the Jefferson Utilities case on the issue of the role of the zoning administrator and the Jack of deference to be accorded by the Board to decisions issued by the zoning administrator.
. Through its ruling, the circuit court appears to have been attempting to circumvent additional instances wherein it would be obligated, based on this Court's ruling in Corliss, to defer to the Board's and/or Commission’s decision(s) to adopt findings by the zoning administrator on issues such as the sufficiency of support data offered in connection with a conditional use permit application. See 214 W.Va. at 542-43, 591 S.E.2d at 100-01 (observing that "the record in this case suggests that the lower court overlooked its duty to give the appropriate amount of deference to the administrative decision and Zoning Board's' affirmance of that decision regarding the adequacy of the support data”).
. The only finding identified by the circuit court • with regard to the issue of the Board's improper deference to the zoning administrator is the determination that the support data submitted in connection with each of the developments at issue is sufficient.
. Of note, however, is the fact that the trial court openly recognized that despite the language quoted from the Ordinance, "at no time had the Planning Commission had any authority over the Zoning Administrator." Consequently, the trial court knew that part of what it hinged its reasoning on — the employment of the zoning administrator by the planning commission — was not a reality. Rather than alter its approach to the issue, however, the trial court merely acknowledged that "the County Commission has made organizational changes relative to the administration of the Ordinance that are ... at odds with its express terms.”
. In its July 12, 2004, order the circuit court opined that the zoning administrator's "grant of power is expressly limited by statute to ‘ministerial’ functions." According to the trial court,’ the "limits of the role” of zoning administrator are totally encompassed within the provisions of West Virginia Code § 8-24-14(5).
. See, e.g., Syl. Pt. 8, Kaufman v. Planning & Zoning Comm’n, 171 W.Va. 174, 298 S.E.2d 148 (1982) (holding that “[wjhen-an applicant meets all requirements, plat approval is a ministerial act and a planning commission has no discretion in approving the submitted application”).
. Based on amendments to the Ordinance that went into effect on April 8, 2005, the Zoning Administrator’s position is now defined in greater detail:
Section 3.2 Zoning Administrator
(a) The Zoning Administrator shall administer and enforce the Zoning Ordinance. This includes but is not limited to the following:
(1) Make determinations that all applications required by the Ordinance are complete and that all fees are paid.
(2) Interpret the provisions of the Ordinance as required by law.
(3) Issue Zoning Certificates as permitted by the Ordinance.
(4) Calculate the LESA point scores and determine the adequacy of the Support Data for all applications for a Conditional Use Permit.
(5) Issue all Permits and Certificates as permitted by the Ordinance.
(6) Prepare and submit reports as required by the Ordinance or the Board of Zoning Appeals or Planning Commission.
(7) Conduct meetings and conferences pursuant to the Zoning Ordinance.
. Under the Ordinance, it is the Planning Commission that is charged with the responsibility . for issuing a conditional use permit,
. In other instances, the Legislature has expressly declared the reviewing administrative body's powers as being de novo in nature. See, e.g., W.Va.Code § 22B-1-7(e) (2003) (Repl.Vol.2005) (requiring that Surface Mine Board conduct de novo review of decisions issued by Department of Environmental Protection).
. See Wolfe, 159 W.Va. at 45, 217 S.E.2d at 906.
. In its July 12, 2004, order, the trial court ruled that "[i]t necessarily follows ... that the substantive conclusions of this Court in the original Opinion Order [September 9, 2003] are not binding upon the Board in its review on remand.”
. All three of the developments at issue are proposed to be built on a tract of land that was subdivided in 1992.
. In its July 12, 2004, order, the trial court exceeded the scope of the Rule 60(b) motion that was before it by addressing the scope of the zoning administrator’s position and authority and by finding that the Board failed to apply a de novo standard of review. While we were required to address both of those issues to resolve the appeals before us, we specifically decline to address the additional matters that the trial court ruled upon that were clearly not presented by the Rule 60(b) motion. Those additional rulings involved the trial court's opinion that the County Commission usurped the Board’s authority to adopt rules and the concomitant directive that the Board adopt separate rules from those set forth in the Ordinance. In addition, the trial court determined that certain findings of fact reached by the Board were essentially unreviewable at this stage of the appeal and yet these same findings had been reviewed previously by the circuit court with no comparable finding in its September 9, 2003, order. | [
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Justice BENJAMIN delivered the opinion of the Court.
Justice MAYNARD dissents and reserves "the right to file a dissenting opinion.
BENJAMIN, Justice.
This case is before the Court upon the appeal of the Appellant, Theresa D. Messer (“Messer”), from the August 18, 2003, order of the Circuit Court of Cabell County, West Virginia, in Civil Action No. 02-C-0635, wherein the court granted the motion of the defendants, Huntington Anesthesia Group, Inc., Dr. Farouk Abadir, Dr. Hosny S. Gabriel, Dr. Mark Newfeld, Dr. Ricardo Ramos, Dr. Alfredo Rivas, Dr. D. Grant Shy, Dr. Stanislav Striz, Dr. Michael Vega, and David Easter (hereinafter collectively referred to as “Appellees”), to dismiss. Appellant’s complaint pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure for failure to state a claim upon which relief could be granted. In her complaint, Messer sought recovery under The West Virginia Human Rights Act (“the WVHRA”) for both an aggravated or worsened physical injury and non-physical injuries stemming from the alleged refusal of Appellee Huntington Anesthesia Group, Inc., her employer, to accommodate her disability, a herniated disc at L4-L5. The circuit court made two findings in its August 18, 2003, order:
1. The West Virginia Human Right Act does not create a cause of action for workplace injuries;
2. Any injuries as alleged and sustained are the exclusive jurisdiction of the Workers’ Compensation Act.
Appellant, Messer, asks this Court to reverse the circuit court’s August 18, 2003, order because its findings are contrary to West Virginia law, to the holdings of the overwhelming majority of state courts which have considered the issue, and to formal guidance from the U.S. Equal Employment Opportunity Commission (“EEOC”) on analogous federal civil rights protections. Mes-ser’s position is supported by the West Virginia Human Rights Commission (“HRC”) in a brief as amicus curiae. Appellees, on the other hand, contend that Messer improperly seeks to expand the scope of the WVHRA, W. Va.Code § 5-11-1 et seq., to create a cause of action for workplace injuries in contravention of the exclusivity provisions of the West Virginia Workers’ Compensation Act (“Workers’ Compensation Act”), W. Va.Code §§ 23-2-6 (2003) and 6a (1949).
This Court has before it Appellant’s petition for appeal, all matters of record, the briefs of the parties, the brief of the HRC as amicus curiae, and has heard oral argument of counsel. For the reasons stated below, the circuit court’s order of August 18, 2003, is reversed, and this case is remanded to the circuit court to allow it to proceed, consistent with this opinion, without being barred by the exclusivity provisions of the West Virginia Workers’ Compensation Act.
X,
FACTS AND PROCEDURAL BACKGROUND
Since Appellant’s complaint was dismissed at the pleading stage, the facts are largely as alleged therein, which, for purposes of a Rule 12(b)(6) motion, are to be taken as true. Sticklen v. Kittle, 168 W.Va. 147, 163, 287 S.E.2d 148, 157 (1981)(citing John W. Lodge Distributing Co. v. Texaco, 161 W.Va. 603, 605, 245 S.E.2d 157, 158 (1978)). Messer’s complaint was filed on August 1, 2002. According to Appellees’ brief, David Easter, the last named defendant, is deceased, and on January 28, 2003, the circuit court entered an order dismissing him from the action with prejudice and amending the case style accordingly.
The complaint alleges that Messer was employed as a Certified Registered Nurse Anesthetist by Appellees from September 13, 1988, until an unspecified date in September, 2000; and that at all relevant times, she suffered from a herniated disc at L4-L5, which limited her ability to lift, stand, and work. After January, 1998, Messer alleges that her primary treating physician informed Appellees on multiple occasions that Messer was limited to eight-hour work days, lifting restrictions, and that she should refrain from overtime “due to her injury.” Messer asserts that Appellees ignored these restrictions and that Appellees failed to accommodate her physical handicap. As a result, Messer claims that her physical condition progressed and worsened to the point in September, 2000, that she was no longer able to perform her duties as a Certified Registered Nurse Anesthetist for Appellees.
The record is not fully developed as to the underlying injury which caused Messer’s back problems or Messer’s later aggravations. It is apparent to the Court from the thrust of Messer’s arguments that her physical claims herein were largely, if not entirely, within the scope of coverage of the Workers’ Compensation Act. Appellees claim that Mes-ser sustained a compensable work-related back injury on August 8, 1997. A few years later, Appellees assert that Messer experienced an exacerbation of her compensable injury which required reopening of her workers’ compensation claim in October of 2000. Appellees argue that Messer “... has received workers’ compensation benefits for the injuries she alleges in the instant action.” Messer’s pleadings are silent as to the nature of her back injury or whether she, in fact, received workers’ compensation benefits in whole or in part for the physical injuries alleged herein. Messer merely alleges that she “has at all times relevant hereto suffered from a herniated disc at L4-L5.” In reply to Appellees’ factual statements, Messer does not expressly deny such representations with respect to Messer filing a workers’ compensation claim, reopening the claim, or receiving workers’ compensation benefits for the injuries she alleges in the instant action. Although she states that “[tjhere is no support in the record for several assertions made in the introduction to Appellees’ brief because there has been no factual development in this matter,” she does not identify what those assertions are. Nor does she deny the representations which Appellees made in their Statement of Facts and Argument.
As noted above, the circuit court in an order issued on August 18, 2008, granted Appellees’ motion pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure to dismiss Messer’s complaint for failing to state a claim upon which relief could be granted. In so ordering, the court made two findings, namely, that the WVHRA does not create a cause of action for workplace injuries, and that such injuries are the exclusive jurisdiction of the Workers’ Compensation Act.
II.
STANDARDS OF REVIEW
“Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo.” Syllabus point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). “The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition.” Syllabus point 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996).
III.
DISCUSSION
A.
The Issue on Appeal and the Nature of Appellant’s Claims
This appeal presents the issue of whether the exclusivity provisions of the West Virginia Workers’ Compensation Act shield an employer from the injuries directly caused by its unlawful discriminatory conduct against an employee in the workplace. Stated differently, we consider on this appeal whether an employee may seek to recover under the WVHRA for actual injuries caused not by an injury received in the course of and arising out of his or her employment for which workers’ compensation benefits would ordinarily be payable, but rather for actual injuries of a kind for which workers’ compensation benefits are not ordinarily payable, which flow directly and uniquely from the employer’s unlawful discrimination against the employee. Key to our consideration of the issues presented are the important policies codified within the Workers’ Compensation Act and the WVHRA, both systems of legislative creation. This consideration leads us necessarily to distinguish not only the nature of the acts alleged to have caused the claimed injuries, but also the type of injuries for which recovery is claimed and whether or not such injuries depend for their viability upon an injury which was compensable under the Workers’ Compensation Act.
The essence of Messer’s claims is that she sustained- an aggravation or worsening of an underlying physical injury because of Appel-lees’ refusal to abide by her work restrictions and that Appellees violated their obligation of accommodation and interaction under the WVHRA. In addition, she seeks recovery for non-physical injuries, which she describes as “emotional distress, mental distress and anguish,” stemming from the same refusal and violation, and for the nonphysical injuries she is seeking, according to her complaint, “damages for mental and emotional distress, lost wages, value of lost benefits, cost and attorney fees, reinstatement, injunctive relief against future violations of the law, and such other and further relief as may upon the premises be appropriate.” Messer contends some claimed injuries are not recoverable in a workers’ compensation claim, but admits that others are. In its brief as amicus curiae, the HRC focuses its attention on Appel-lees’ failure to accommodate, arguing “[a]n action alleging breach of the duty to reasonably accommodate is not an action for workplace injury compensation.”
B.
The Workers’ Compensation Act
(Its Exclusivity)
The essence of the exclusivity of the Workers’ Compensation Act for work-related inju ries is found at W. Va.Code § 23-2-6 (2003), which provides that an employer “is not liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring.” In State ex rel. Abraham Line Corporation v. Bedell, 216 W.Va. 99, 602 S.E.2d 542, 546-547 (2004) (per curiam), we had an opportunity to comment on the important principles underlying the Workers’ Compensation system and the scope of this exclusivity provision of W. Va. Code § 23-2-6 (1991):
“The Workmen’s Compensation Act was designed to remove negligently caused industrial accidents from the common law tort system.” Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 700, 246 S.E.2d 907, 911(1978), superseded by statute as stated in Handley v. Union Carbide Corp., 804 F.2d 265, 269 (4th Cir.1986). “The benefits of this system accrue both to the employer, who is relieved from common-law tort liability for negligently inflicted injuries, and to the employee, who is assured prompt payment of benefits.” Meadows v. Lewis, 172 W.Va. 457, 469, 307 S.E.2d 625, 638 (1983); see also Persinger v. Peabody Coal Co., 196 W.Va. 707, 713, 474 S.E.2d 887, 893 (1996). State ex rel. Abraham Line Corp., 216 W.Va. 99, 602 S.E.2d at 546. [In footnote seven, the Court stated: “That philosophy has commonly been described as a quid pro quo on both sides: in return for the purchase of insurance against job-related injuries, the employer receives tort immunity; in return for giving up the right to sue the employer, the employee receives swift and sure benefits.” Dominion Caisson Corp. v. Clark, 614 A.2d 529, 532-33 (D.C.1992) quoting Meiggs v. Associated Builders, Inc. 545 A.2d 631, 634 (D.C.1988), cert. denied, 490 U.S. 1116, 109 S.Ct. 3178, 104 L.Ed.2d 1040 (1989).]
As this Court succinctly stated in State ex rel. Frazier v. Hrko, 203 W.Va. 652, 510 S.E.2d 486 (1998), “ ‘[w]hen an employer subscribes to and pays premiums into the Fund, and complies with all other requirement of the Act, the employer is entitled to immunity for any injury occurring to an employee and shall not be liable to respond in damages at common law or by statute.’ W. Va.Code, 23 -2-6 [1991].” 203 W.Va. at 659, 510 S.E.2d at 493. Footnote eleven of Frazier explained: “This statute is also known as the ‘exclusivity’ provision, as it makes workers’ compensation benefits the exclusive remedy for personal injuries sustained by an employee injured in the course of an resulting from his or her covered employment.” Id. at 659 n. 11, 510 S.E.2d at 493 n. 11. State ex rel. Abraham Line Corp., 216 W.Va. 99, 602 S.E.2d at 547.
The immunity provided by § 23-2-6 is not easily forfeited. As the District Court for the Southern District of West Virginia explained in Smith v. Monsanto Co., 822 F.Supp. 327 (S.D.W.Va.1992), “[ujnder the Act, an employer who is otherwise entitled to immunity under § 23-2-6 may lose immunity in only one of two ways: (1) by defaulting in payments required by the Act or otherwise failing to comply with the provisions of the Act, or (2) by deliberately intending to produce injury or death to the employee.” 822 F.Supp. at 330 (citation omitted).
State ex rel. Abraham Line Corp., 216 W.Va. 99, 602 S.E.2d at 547. The effect of this exclusivity is, by statute, far-reaching. In W. Va.Code § 23-4-2(d)(l) and (2) (2003), the Legislature declared:
... that enactment of this chapter and the establishment of the workers’ compensation system in this chapter was and is intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or ' death to an employee except as expressly provided in this chapter ...; that the immunity established in sections six [§ 23-2-6] and six-a [§ 23-2-6a], article two of this chapter is [deemed]'an essential aspect of this workers’ compensation system; that the intent of the Legislature in providing immunity from common lawsuit was and is to protect those immunized from litigation outside the workers’ compensation system except as expressly provided in this chapter; thát, in enacting the immunity provisions of this chapter, the Legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of willful, wanton and reckless misconduct; and that it was and is the legislative intent to promote prompt judicial resolution of the question of whether a suit prosecuted under the asserted authority of this section is or is not prohibited by the immunity granted under this chapter. (2) The immunity from suit provided under this section and under section six-a, article two of this chapter may be lost only if the employer or person against whom liability is asserted acted with “deliberate intention”, [sic]
Id. (Emphasis added).
When considered together, the words “injury” and “however occurring,” in W. Va. Code § 23-2-6 (2003) and the expression of legislative intent in W. Va.Code § 28-4-2(d)(1) (2003) provide employers with an expansive immunity from liability outside the workers’ compensation system for workplace injuries of employees. This immunity, however, is not absolute. Exceptions to this immunity are set forth specifically and implicitly in the Workers’ Compensation Act.
WTiile exceptions to the exclusivity provision of W. Va.Code § 23-2-6 (2003) exist, the Legislature has been extremely restrictive in creating such exceptions. For example, an employer is not immune from lawsuit for workplace injuries if the employer “acted with deliberate intention.” W. Va.Code § 23 — 4—2(d)(2) (2003). Messer does not claim that she comes within this exception.
The Legislature has also specifically set forth private civil remedies outside of the exclusivity provision for certain discriminatory practices by an employer related to employees who have compensable injuries. W. Va.Code § 23-5A-1, et seq. Though Messer apparently does not invoke these anti-discrimination provisions of the Workers’ Compensation Act, we do find such provisions revealing with respect to the types of acts and resulting injuries which the Legislature has envisioned to fall within and without of the exclusivity provision of W. Va.Code § 23-2-6 (2003).
These exceptions reveal that the most significant word in the exclusivity provision of W. Va.Code § 23-2-6 (2003) for purposes of the issues before us in the instant matter is the term “injury”. In considering any potential exception to the exclusivity provision, ie., that an employer “is not liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring,” we must look to the other provisions of the Workers’ Compensation Act to determine the Legislature’s intent in defining what is and what is not a compensable “injury” for purposes of the exclusivity provision. Id. W. Va.Code § 23-4-1, et seq., establishes that injuries and defined occupational diseases incurred “in the course of and resulting from [an employee’s] covered employment” are compensable injuries. W. Va.Code, § 23-4-1, et seq. Implicit in this statutory definition of “injury” is the limitation that only occupational diseases “as hereinafter defined” are compensable. W. Va.Code § 23-4-1(b) (2003). We must draw from this express limitation that the Legislature intended certain work-related events, here, occupational diseases not “hereinafter defined” to not come within the meaning of “injury” for purposes of the Workers’ Compensation Act generally and the exclusivity provision specifically.
The Legislature also expressly exempted other work-related injuries from the definition of what may be a compensable injury for purposes of the Workers’ Compensation Act. For instance, W. Va.Code § 23-4-lf (1993) states that “[f]or the purposes of this chapter, no alleged injury or disease shall be recognized as a compensable injury or disease which was solely caused by nonphysical means and which did not result in any physical injury or disease to the person claiming benefits. It is the purpose of this section to clarify that so-called mental-mental claims are not compensable under this chapter.”
To this list of work-related injuries exempted from the provisions of the Workers’ Compensation Act (and, consequently, from the exclusivity provision of W. Va.Code § 23-2-6 (2003)), are the other express statutory exceptions within the Workers’ Compensa tion Act discussed above; namely, injuries caused by an employer’s “deliberate intention,” as defined by W. Va.Code § 23-4-2 (2003), and injuries caused by certain discriminatory actions by an employer, as set forth in W. Va.Code § 23-5A-1, et seq. We find these latter two exceptions especially noteworthy for purposes of the matter before us since, in both instances, the Legislature has focused on the acts which underlie the resulting work-related injury as being determinative of whether the exclusivity provision is applicable.
C.
The West Virginia Human Rights Act
The purpose of the WVHRA is, among other things, to assure equal employment opportunities to individuals with certain disabilities by making certain discriminatory practices unlawful. W. Va.Code § 5-11-9 (1998). “The term ‘discriminate’ or ‘discrimination’ means to exclude from, or fail or refuse to extend to, a person equal opportunities because of ... disability_” W. Va. Code § 5-ll-3(h) (1998). Disability means a mental or physical impairment which substantially limits one or more of a person’s major life activities. W. Va.Code § 5-11-3(m) (1998).
Effective May 19, 1994, the HRC adopted legislative “Rules Regarding Discrimination Against Individuals With Disabilities,” which appear in W. Va.C.S.R. § 77-1-1 et seq. W. Va.C.S.R. § 77-1-4.5 obligates an employer to “make reasonable accommodation to the known physical or mental impairments of qualified individuals with disabilities where necessary to enable a qualified individual with a disability to perform the essential functions of the job.”
In Skaggs v. Elk Run Coal Company, Inc., 198 W.Va. 51, 64, 479 S.E.2d 561, 574 (1996), this Court acknowledged that although the WVHRA does not have an explicit provision obligating employers to provide reasonable accommodation for disabled individuals, “the West Virginia [HRC] and this Court have inferred that our [HRA] imposes this duty of reasonable accommodation.” In support of this observation, the Skaggs Court referenced 77 W. Va.C.S.R. 1, § 4.4 (1994) and Morris Mem. Convalescent Nursing Home, Inc. v. W. Va. Human Rights Comm’n., 189 W.Va. 314, 431 S.E.2d 353 (1993), and Coffman v. W. Va. Bd. of Regents, 182 W.Va. 73, 386 S.E.2d 1 (1988).
This Court’s decision in Coffman is remarkable in three respects: It was this Court’s first disability discrimination case under the WVHRA, it was later overruled, and it foreshadowed the issue on appeal in this case. Coffman, while employed as a Custodian I at the West Virginia University Hospital, injured her back in emptying garbage cans. She missed a month’s work because of her injuries during which time she received temporary total disability benefits from workers’ compensation. Upon returning to her position as Custodian I, her back continued to be painful and an orthopedist who examined her recommended that Coffman no longer work in either the housekeeping or dietary departments and that she not be placed in a position that required prolonged sitting. Some two months later, her employment was terminated by her employer. She thereupon filed a complaint in the Circuit Court of Monongalia County charging that she had been wrongfully discharged because of her disability. A jury returned a verdict in her favor in the amount of $55,600. The Board of Regents appealed and this Court reversed the judgment of the circuit court, set the verdict aside, and remanded the ease with instructions to enter judgment in favor of the employer. The basis of this Court’s decision was that
“reasonable accommodation” requires only that an employer make reasonable modifications or adjustments designed as attempts to enable a handicapped employer to remain in the position for which he was hired. Where a handicapped employee can no longer perform the essential functions of that position, reasonable accommodation does not require the employer to reassign him to another position in order to provide him with work which he can perform.
Id. at 78, 386 S.E.2d at 6.
Skaggs overruled Coffman and in doing so stated that “Coffman was flat out wrong, both on its facts and in its dicta ruling out transfers as a reasonable accommodation.” 198 W.Va. at 69, 479 S.E.2d at 579. However, Coffman is of interest to our consideration of the issues in the present matter. In its footnote 16, the Coffman Court stated:
No party has challenged the fact and we, therefore, acknowledge that Coffman was handicapped by West Virginia law. We, however, note that she became handicapped as a result of an injury sustained on the job during the course of her employment. In this regard, we are concerned as to why Coffman did not pursue a claim for workers’ compensation benefits beyond the 30-day period of temporary total disability. The appellants do not raise the issue of workers’ compensation and we, therefore, do not address it. We note that the intent of the legislature inherent in the enacting of the handicapped provisions of the West Virginia Human Rights Act was to assure equal opportunities for the handicapped in housing and employment. W. Va.Code § 5-11-2. Thus, we cannot conclude that the legislature intended the handicapped provisions of the West Virginia Human Rights Act as an alternative source of compensation for injtiries sustained on the job.
Coffman, 182 W.Va. at 79, 386 S.E.2d at 7. (Emphasis added.)
In a dissenting opinion to the Coffman decision, Justice Miller stated that he was “at a loss to understand footnote 16 of the majority’s opinion [for][i]t seems to suggest that the legislature did not intend to accord handicapped workers any right if they were injured on the job.” Id. at 85, 386 S.E.2d at 13. Justice Miller went on to observe “that workers’ compensation benefits [both awards for temporary and permanent disability] relate to the employee’s injuries and have nothing to do with his status under the handicap law. This latter provision is designed to prevent discrimination against a person who has a handicap.” Id. at 85-86, 386 S.E.2d at 13-14. “Nor,” he said, “is it possible to ascribe any legislative intent that employees handicapped as a result of occupational injuries were to be excluded from the coverage of the handicap discrimination law.” Id. at 86, 386 S.E.2d at 14. Justice Miller concluded his dissent with these statements:
This type of issue has been raised in several cases, and the courts have had no difficulty in rejecting it on the basis that each statute is designed to accomplish distinctly different purposes. The Workers’ Compensation Act affords compensation for a worker’s injuries and permanent disabilities. The handicap provisions of the Human Rights Act enables him to continue in employment if his injuries do not prevent him from performing the essential functions of his job with the help of reasonable accommodation. E.g. Boscaglia v. Michigan Bell Telephone Co., 420 Mich. 308, 362 N.W.2d 642 (1984); Reese v. Sears, Roebuck & Co., 107 Wash.2d 563, 731 P.2d 497 (1987) (En Banc); cf. Jones v. Los Angeles Community College Dist., 198 Cal.App.3d 794, 244 Cal.Rptr. 37 (1988).
Id. at 86, 386 S.E.2d at 14.
In the sixteen years since Justice Miller’s dissent in Coffman, there have been a number of decisions in other jurisdictions where alleged employer disability discrimination against an employee has resulted from a workplace physical injury. In 'those decisions, the courts have had to reconcile the exclusivity provisions of their states’ workers’ compensation statutes and their human rights, civil rights and fair employment acts.
D.
Employment-Related Injuries: Workers’ Compensation and Civil Rights Coverage
Cases From Other Jurisdictions
A review of the status of law regarding the interaction of workers’ compensation laws and civil rights laws from other jurisdictions in the United States provides a valuable insight into how other states have considered the issue before us herein. While each state necessarily has its own unique set of workers’ compensation and civil rights laws, the underlying public policies for such laws have many similarities to our workers’ compensation and civil rights laws. Though not prece-dential, a look to other states provides us some persuasive direction into our consideration of this appeal.
1. Arkansas
In Davis v. Dillmeier Enterprises, Inc., 330 Ark. 545, 956 S.W.2d 155 (1997), Davis sustained bilateral carpal syndrome resulting from her employment for which she was compensated under Arkansas’ workers’ compensation laws. 956 S.W.2d at 156. She was assigned a rating of five percent permanent physical impairment in each upper extremity. Having obtained a release from further treatment, Davis reported to work and was immediately terminated from employment by her employer. She thereupon brought an action against her former employer for discrimination based upon a physical disability, in violation of the Arkansas Civil Rights Act for which she claimed damages in the form of lost wages, mental anguish, and loss of dignity. She also asked for punitive damages. The trial court dismissed the complaint “reasoning that it was the General Assembly’s intent that the remedies provided under the Workers’ Compensation Act were to be exclusive.” Id. at 157.
Distinguishing the injury sustained by Davis by her termination from that caused by her compensable physical injury, the Supreme Court of Arkansas reversed the trial court’s dismissal of Davis’ complaint and remanded the case to allow Davis to proceed with her termination claim under the Arkansas Civil Rights Act. The Court reasoned as follows:
[Tjhere is no remedy under the Workers’ Compensation Act for an employee who is terminated from his or her job on the basis of a disability. Thus, the exclusive-remedy provision of the Act does not preclude Appellant from bringing an action under the Arkansas Civil Rights Act based upon Appellee’s alleged discrimination in terminating her on the bases of her permanent restrictions and impairments. In this respect, we agree with the reasoning espoused by the Washington Supreme Court [in Reese v. Sears, Roebuck & Co., 107 Wash.2d 563, 731 P.2d 497 (Wash.1987), overruled on other grounds by Phillips v. City of Seattle, 111 Wash.2d 903, 766 P.2d 1099 (Wash.1989) ] that it matters not how the disability came about; rather, the focus should be upon the subsequent deliber ate action by the employer in terminating the employee based upon a disability. Additionally, we are persuaded that the rights and remedies provided by both Acts are considerably different and serve to fulfill different purposes. Appellant has alleged ttvo separate injuries-one being a work-related physical injury, for which she has received workers’ compensation benefits, and one being a subsequent nonphysical injury arising from Appellee’s action in terminating her based upon her physical disability. The first injury is exclusively cognizable under the Workers’ Compensation Act, while the subsequent injury is of the type envisioned by the Arkansas Civil Rights Act of 1993.
Id. at 160-61. (Emphasis added.)
2. California
In City of Moorpark v. Superior Court of Ventura County, 18 Cal.4th 1143, 77 Cal.Rptr.2d 445, 959 P.2d 752 (1998), plaintiff was an administrative secretary employed by the city who suffered a work-related knee injury. Her supervisor terminated her employment because her injury prevented her from performing essential job functions. Plaintiff filed a lawsuit against the city claiming discrimination based on a physical disability in violation of California’s Fair Employment and Housing Act (FEHA). The city defended asserting that plaintiffs action was barred by the exclusivity provisions of the workers’ compensation law. The trial court disagreed and the Supreme Court of California affirmed.
At issue in Moorpark was whether California Labor Code section 132a provided the exclusive remedy for discrimination based on a work-related disability, precluding FEHA or common law wrongful discharge claims. Section 132a prohibited employers from discriminating against employees “who are injured in the course and scope of their employment.” City of Moorpark, 77 Cal.Rptr.2d 445, 959 P.2d at 756. The California court had earlier ruled that when an injury of the kind described in section 132a results in disability, that section prohibits discrimination based on the disability. Judson Steel Corp. v. Workers’ Comp. Appeals Bd., 22 Cal.3d 658, 150 Cal.Rptr. 250, 586 P.2d 564 (1978). In addition, the FEHA prohibited various types of employment discrimination, including discrimination based on a disability.
The Moorpark court found that the existence of a workers’ compensation remedy does not, by itself, establish the exclusivity of that remedy, and emphasized that section 132a does not contain an exclusive remedy clause. Id. at 1154, 77 Cal.Rptr.2d 445, 959 P.2d 752. The court also determined that the general exclusivity provisions of the state’s workers’ compensation code, sections 3600, subdivision (a) and 3602, subdivision (a) did not establish that section 132a is an exclusive remedy for work-related injury discrimination. The court reasoned that “the plain language of the exclusive remedy provisions contained in subdivisions (a) of sections 3600 and 3602 apparently limits those provisions to division 4 remedies. Remedies that the Legislature placed in other divisions of the Labor Code are simply not subject to the workers’ compensation exclusive remedy provisions.” Id. at 759. Section 132a was contained in division 1 of the Labor Code.
Moorpark also found that terminations in violation of section 132a fall outside of -the compensation bargain because such conduct is “ ‘obnoxious to the interests of the state and contrary to public policy and sound morality.’ ” Id., quoting, Gantt v. Sentry Insurance, 1 Cal.4th 1083, 4 Cal.Rptr.2d 874, 824 P.2d 680, 692 (1992) Lastly, the court emphasized the broad scope of the FHA and concluded that it would be inconsistent with the purposes of that legislation to limit its applicability to disabilities unrelated to work. See also the following decisions of California courts which discuss Moorpark: Amalgamated Transit Union, Local 1277 v. Los Angeles County Metropolitan Transportation Authority, 107 Cal.App.4th 673, 132 Cal.Rptr.2d 207 (2003); Burton v. Ralphs Grocery Company, 2002 WL 31031038 (Cal.Ct.App.2002) (Not Officially Published); Ruiz v. Cabrera, 98 Cal.App.4th 1198, 120 Cal.Rptr.2d 320 (2002); Bagatti v. Department of Rehabilitation, 97 Cal.App.4th 344, 118 Cal.Rptr.2d 443 (2002); and Fretland v. County of Humboldt, 69 Cal.App.4th 1478, 82 Cal.Rptr.2d 359 (1999).
We agree with the reasoning of the California court that it would be inconsistent with the purposes of the WVHRA to limit its applicability to physical-injury disabilities unrelated to work. Workers who are discriminated against because of a work-related injury should not be entitled to less protection under the law than workers disabled by non-work-related injuries.
3.Florida
In Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 (Fla.1989), the Supreme Court of Florida answered in the negative the following certified question: “Whether the workers’ compensation statute [of Florida] provides the exclusive remedy for a claim based on sexual harassment in the workplace.” Byrd, 552 So.2d at 1100. In its opinion, the court noted that
workers’ compensation is directed essentially at compensating a worker for lost resources and earnings. This is a vastly different concern than is addressed by the sexual harassment laws. While workplace injuries rob a person of resources, sexual harassment robs the person of dignity and self esteem. Workers’ compensation addresses purely economic injury; sexual harassment laws are concerned with a much more intangible injury to personal rights. To the extent these injuries are separable, we believe that they both should be, and can be, enforced separately. ”
Id. at 1104 (footnote omitted). (Emphasis added.)
The Florida Supreme Court therefore agrees with the Arkansas court in Davis v. Dillmeier Enterprises, Inc., supra, that physical injuries and nonphysical injuries resulting from disability discrimination can be enforced separately, the first under the Workers’ Compensation Act, the second under the WVHRA.
4.Louisiana
In Cox v. Glazer Steel Corporation, 606 So.2d 518 (La.1992), plaintiff was not rehired because of a compensable injury. After having settled a worker’s compensation claim for the physical injury, plaintiff filed a civil claim against his former employer for discrimination against the handicapped under the Louisiana Civil Right Act for Handicapped Persons. The trial court dismissed the claim and the court of appeals affirmed “holding that the discrimination claim was as outgrowth of the industrial accident and thus barred by the exclusive remedy of workers’ compensation.” Cox, 606 So.2d at 520. The Louisiana Supreme Court reversed on the ground that the coverage of the Civil Rights Act is not within the scope of the workers’ compensation law and is not barred by that law. Id. In a concurring opinion, two of the justices of the court stated that “plaintiffs cause of action for discrimination is not based on the employer’s liability for the injury, but on the employer’s liability for subsequent conduct that, although incidentally related to the on-the-job injury, gave rise to entirely separate liability under an entirely separate statute.” Id. at 521.
5.Maine
In King v. Bangor Federal Credit Union, 568 A.2d 507 (Me.1989), plaintiff resigned from her job because her employer declined to accommodate a work-related disability. She obtained workers’ compensation benefits and thereupon filed a claim against her former employer under Maine’s Human Right Act. The employer argued the exclusivity of workers’ compensation. The Supreme Judicial Court of Maine sustained her claim, recognizing that the state’s Workers’ Compensation Act and Human Rights Act “were created for very different purposes and the injuries recognized under those acts are markedly different.” Id. at 508. The court reasoned that “[t]he injury that [plaintiffs] complaint seeks to redress under the Human Rights Act is the indignity of the loss of an employment opportunity because of her physical handicap. This is an injury distinct from the physical injury for which she was compensated and concerning which she signed a release under the Workers’ Compensation Act.” Id.
6.Michigan
In Boscaglia v. Michigan Bell Telephone Company, 420 Mich. 308, 362 N.W.2d 642 (1985), Boscaglia filed an action against her foimer employer alleging violations of Michigan’s Fair Employment Practices Act and Civil Rights Act. She claimed she was demoted as a result of sex discrimination. Various employment problems allegedly arose after her demotion, including an accusation by her supervisor of coming to work late. She ultimately sought psychiatric treatment and quit her job. She filed a claim for workers’ compensation and was awarded benefits for mental and emotional disability during the pen-dency of her civil action. A second plaintiff, Pacheco, alleged various acts of discrimination against him by his employer, including a suspension, demotion, discharge, and various acts of derision and harassment. He claimed that the acts of discrimination stemmed from his Spanish-American heritage. He did not file a workers’ compensation claim.
In response to what the court described as the “principal question” before it in the two cases, the court held that “the exclusive remedy provision of the workers’ compensation act [does not bar] an action seeking recovery for physical, mental, or emotional injury resulting from an employer’s violation of the fair employment practices act (FEPA) or the Michigan civil rights act.” Boscaglia, 362 N.W.2d at 643. The court in its opinion noted that “[t]he evils at which the civil rights acts are aimed are different from those at which the workers’ compensation act is directed,” Id. at 315, 362 N.W.2d at 645.
The Boscaglia decision was cited by Justice Miller in his Coffman dissent as authority for his view that it was not possible “ to ascribe [to the West Virginia Legislature] any legislative intent that employees handicapped as a result of occupational injuries were to be excluded from the coverage of the handicap discrimination law.” Coffman, 182 W.Va. at 86, 386 S.E.2d at 14.
7. Minnesota
In Karst v. F.C. Hayer Co., Inc., 447 N.W.2d 180 (Minn.1989), the Supreme Court of Minnesota ruled against an injured employee based upon its perception of the legislature’s intent and the election of the plaintiff to recover workers’ compensation benefits, which the court said barred his recovery under other theories. The Minnesota Supreme Court said that only one issue was presented to it in the case, namely, “whether the exclusive remedy provision of the Workers’ Compensation Act precludes an action by a disabled individual against his former employer for disability discrimination under the Minnesota Human Rights Act where the individual becomes disabled as a result of work-related injuries and the former employer refuses to rehire the individual because of the disability.” Karst, 447 N.W.2d at 181. The Court resolved the issue in the affirmative principally on the ground that it believed “the legislature intended the decision of whether or not to rehire an injured worker and the consequences flowing from that decision to be within the scope of the Workers’ Compensation Act.” Id. at 184. The Court concluded its opinion with the statement that “in light of the vital importance of the exclusivity provision to the workers’ compensation system and in the absence of a clear legislative intent to impose the liability of the Human Rights Act in addition to that under the Workers’ Compensation Act, we decline to interpret the Human Rights Act as applicable here.” Id. at 186.
8. Ohio
In Kerans v. Porter Paint Company, 61 Ohio St.3d 486, 575 N.E.2d 428 (1991), the Ohio Supreme Court held that Ohio’s workers’ compensation statute is not the exclusive remedy for claims based upon sexual harassment in the workplace. Noting the scope and purpose of Ohio’s workers’ compensation statute does not differ from Florida’s, the court cited, quoted, and relied upon the decision of the Florida Supreme Court in Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 (Fla.1989). In so doing the court noted “workers’ compensation is directed essentially at compensating a worker for lost resources and earnings. This is a vastly different concern than is addressed by the sexual harassment laws. While workplace injuries rob a person of resources, sexual harassment robs the person of dignity and selfesteem. Workers’ compensation addresses purely economic injury; sexual harassment laws are concerned with a much more intangible injury to personal rights.” Kerans, 575 N.E.2d at 431, quoting Byrd, 552 So.2d at 1104.
9. Rhode Island
In Folan v. State/Department of Children, Youth and Families, 723 A.2d 287 (R.I.1999), plaintiff was sexually harassed in her workplace and was compensated by Rhode Island’s workers’ compensation system for a resulting occupational stress injury. She subsequently filed a civil complaint under the state’s Fair .Employment Practices Act and the Civil Rights of People with Disabilities statutes. In holding for plaintiff, the Rhode Island Supreme Court concluded:
that the Legislature did not intend the exclusivity provision of the Workers’ Compensation Act to bar the independent statutory claims created by the FEPA or the CRA ... the exclusivity clause of the Workers’ Compensation Act as interpreted by defendants could render the FEPA and the CRA nugatory and ineffective ... under our interpretation, the exclusivity clause does not bar a claim if to do so would frustrate a broad, fundamental public policy which fulfills paramount purposes, such as a claim under the FEPA or the CRA.
Id. at 291-92.
10 .Washington
In Reese v. Sears, Roebuck & Co., and Beauchamp v. Columbia Lighting, Inc., 107 Wash.2d 563, 731 P.2d 497 (Wash.1987), overruled on other grounds by, Phillips v. City of Seattle, 111 Wash.2d 903, 766 P.2d 1099 (1989), two consolidated cases, Reese suffered a work-related foot injury for which he received workers’ compensation benefits. After being injured, Reese sought to continue work “by performing Grade 12 clerical and light manual work.” Reese, 731 P.2d at 499. Sears refused to make any accommodation for Reese’s new handicap July 6, 2005 and refused to continue employing Reese absent a full medical release, which his physician could not give. Thereupon, Sears terminated Reese’s employment. Reese thereupon brought an action for handicap discrimination under the state’s Law Against Discrimination.
Beauchamp filed a workers’ compensation claim for work-related chronic bronchitis. The claim was still in dispute at the time of the Supreme Court of Washington’s decision in his civil action against Columbia. The civil action was based on Columbia’s refusal to accommodate Beauchamp’s need to wear a gas mask and its refusal to allow him to return to work.
Seal’s and Columbia defended the respective actions against them on the basis of the exclusivity provision of the state’s workers’ compensation law. The court in rejecting the defense stated:
Harmonizing legislative acts is a traditional responsibility of this court. Even if an apparent conflict existed between [the state’s workers’ compensation statutes] and the Law Against Discrimination, we would be obliged to reconcile that conflict and give effect to both statutory schemes, if this could be achieved without distorting the statutory language. Here, however, there is no conflict between the two statutory schemes. Under [the state’s workers’ compensation statutes], appellant employees sought recovery for their out of pocket costs (lost wages, medical bills, disability allowance) attributed to a specifically defined physical injury or a disease that arose out of their employment.
In contrast, under the Law Against Discrimination appellant employees claim they were injured, not by the physical workplace injuries that gave rise to their respective disabilities, but by a particular employer action taken months after they became disabled. It is the employer response to the disabled worker that is at issue ... For purposes of the Law Against Discrimination, it does not matter how the handicap arose; only the employer’s response to the handicap matters ... Inasmuch as there is no conflict, we need not choose between giving full effect to either the Law Against Discrimination or the [workers’ compensation statutes’] exclusive remedy provision. The Legislature’s intent is upheld by protecting the integrity of both statutory schemes. No one is excluded from the protection of the Law Against Discrimination. Under [the workers’ compensation statutes], employees will continue to receive the sure but limited remedy for their workplace inju ries, and employers will remain protected from all comí actions arising out of those injuries.
Id. at 502-03. (internal citations omitted). (Emphasis added.) The Reese decision was cited by Justice Miller in his Coffman dissent.
11. Wisconsin
In Byers v. Labor and Industry Review Commission, 208 Wis.2d 388, 561 N.W.2d 678 (1997), at the outset of its opinion, the Wisconsin Supreme Court stated:
The sole issue presented is whether Wis. Stat. § 102.03(2), the exclusive remedy provision of the Worker’s Compensation Act (Workers’ Compensation Act), bars a claim under the Wisconsin Fair Employment Act (WFEA), prohibiting discrimination in employment, when the facts that are the basis for the discrimination claim might also support a worker’s compensation claim. We answer this question in the negative, concluding that the legislature intended that the Workers’ Compensation Act exclusive remedy provision does not bar1 a claimant whose claim is covered under the Workers’ Compensation Act from pursuing a claim under the WFEA for discrimination in employment.
Byers, 561 N.W.2d at 679.
As have other courts, the Wisconsin court noted “[t]he purposes of the two statutes are very different. The Workers’ Compensation Act focuses on the employee and his or her work-related injury while the WFEA focuses on employer conduct that undermines equal opportunity in the workplace.” Id. at 682. Later in its opinion, the court made essentially the same point in quoting from the Byrd decision of the Florida Supreme Court and the Boscaglia decision of the Michigan Supreme Court. The Wisconsin court thereupon concluded that “that the legislature intended that the Workers’ Compensation Act exclusive remedy provision does not bar a complainant whose claim is covered under the Workers’ Compensation Act from pursuing a discrimination in employment claim under the WVEA.” Id. at 686.
E.
Harmonizing the Policies Respecting Workers’ Compensation and Human Rights
The State’s Workers’ Compensation Law, W. Va.Code Chapter 23, and The West Virginia Human Rights Act, W. Va.Code Chapter 5, Article 11, set forth two significant legislative public polices. We must therefore endeavor to uphold the Legislature’s intent by protecting the integrity of both statutory schemes. “‘Consistency in statutes is of prime importance, and, in the absence of a showing to the contrary, all laws are presumed to be consistent with each other. Where it is possible to do so, it is the duty of the courts, in the construction of statutes, to harmonize and reconcile laws, and to adopt that construction of a statutory provision which harmonizes and reconciles it with other statutory provisions * * * ’ 50 Am.Jur., Statutes, Section 363 and citing 82 C.J.S., Statutes, § 365, as well as State ex rel. Revercomb v. O’Brien, 141 W.Va. 662, 91 S.E.2d 865; State ex rel. Thompson v. Morton, 140 W.Va. 207, 84 S.E.2d 791; State v. Snyder’, 89 W.Va. 96, 108 S.E. 588; Farmers’ & Merchants’ Bank of Reedsville v. Kingwood Nat. Bank, 85 W.Va. 371, 101 S.E. 734.” State ex rel. Pinson v. Varney, 142 W.Va. 105, 109-10, 96 S.E.2d 72, 75 (1956). The second sentence in Pinson’s quotation was quoted with approval in State v. Williams, 196 W.Va. 639, 641, 474 S.E.2d 569, 572 (1996), to which quoted sentence the Williams Court added the words “to give full force and effect to each, if possible.”
Here, Messer’s cause of action for discrimination is not based on her employer’s liability for a compensable work-related injury within the meaning of the Workers’ Compensation Act. Rather, it is based on Appellees’ alleged subsequent discriminatory conduct that, although incidentally related to the compensable work-related injury, gives rise to an entirely separate liability under the WVHRA. Any apparent conflict between West Virginia’s Workers’ Compensation Act and the WVHRA that may arise can be harmonized by recognizing, as many courts have done, that the rights and remedies of the Acts are considerably different and seive to fulfill different purposes. Thus we hold that the first of the two Acts is directed at compensating an employee who has suffered an injury or disease in the course of and resulting from his/her employment and at shielding the employer from liability outside the woi'kers’ compensation system for such injury. The second is directed towards actions of an employer in discriminating against an employee because of his or her disability. Since the Acts seek to remedy two separate harms, physical injury and discrimination, no conflict exists between the two Acts and it would be inconsistent with the purposes of the West Virginia Human Rights Act, W. Va.Code § 5-11-1 et seq., to limit its applicability to physical — -injury disabilities unrelated to work. The injury that Messer seeks to redress under the WVHRA is the indignity of the alleged discrimination against her because of her disability.
The interpretation which Appellees would attach to the exclusivity clause would render the WVHRA ineffective and useless to a large group of West Virginians who have compensable work-related injuries. Such an interpretation would frustrate a broad, fundamental public policy which fulfills paramount purposes and would effectively relegate one class of employee to an inferior status compared to another class of employee who have injuries or disabilities which are not work-related. Being enacted later in time to the Workers’ Compensation Act, the WVHRA makes no distinction between classes of employees to which civil rights pi'otection is extended. Had the Legislature desired to treat employees with work-related disabilities differently, it would have done so within the WVHRA. It did not do so. That the Workers’ Compensation Act itself excludes from its immunities injuries caused by certain acts, including deliberate intent acts at W. Va.Code § 23-4-2 and discriminatory acts at W. Va.Code § 23-5A-1, et seq., provides a further measure of assurance that the Legislature intended employees such as Mes-ser to be protected by both systems.
Here, Messer has alleged essentially two separate types of injuries. To the extent that a worker’s injuries are of the type cognizable under W. Va.Code § 23-4-1 for which workers’ compensation benefits may be sought, including aggravations and physical and non-physical conditions which flow directly and uniquely from such injury, we find that the exclusivity provision of the Workers’ Compensation Act prohibits recovery outside of the mechanisms set forth in the West Virginia Workers’ Compensation Act. To the extent that a worker’s injuries are directly and proximately caused by the unlawful discriminatory acts of his or her employer, and are of a type not otherwise recoverable under the Workers’ Compensation Act, we hold that the exclusivity provision of the Workers’ Compensation Act is inapplicable as the Legislature did not intend such injuries to fall within the types of injuries for which the Workers’ Compensation Act was established. Thus, while an aggravation or worsening of an employee’s physical injury by the conduct of his/her employer may be compensable under and thus subject to, the exclusive remedy provided by the Workers’ Compensation Act, an employee’s claim against an employer for violation of The West Virginia Human Rights Act and resulting non-physical injuries, such as mental and emotional distress and anguish, directly and proximately resulting from such violation and not associated with the physical injury or the aggravation or worsening thereof are not barred by the exclusivity provisions of the Workers Compensation Act, W. Va Code § 23-2-6 (2003) and -6a (1949). Such violation and the resulting nonphysical injuries are not within the scope of the Workers’ Compensation Act. Rather, they are separate liabilities from the physical injury and were created by The West Virginia Human Rights Act, an entirely different statute from the Workers’ Compensation Act with different policy objectives.
IV.
CONCLUSION
For the reasons stated above, the circuit court's order of August 18, 2003, in its Civil Action No. 02-C-0635, is affirmed, in part, reversed, in part and remanded to the circuit court to allow it to proceed, consistent with this opinion, without being barred by the exclusivity provisions of the Workers’ Compensation Act. This Court expresses no opinion as to whether Appellant’s complaint states a cause of action against Appellees for violation of The West Virginia Human Rights Act.
Affirmed, in part, Reversed, in part and Remanded.
. Appellees' statements are apparently based upon Exhibit 1 to Messer's Petition for Appeal. It is a copy of an EEOC "Determination” letter, dated September 12, 2002, addressed to Messer and Appellees from Eugene V. Nelson, Area Director, EEOC, Pittsburgh Area Office, in regard to Charge Number: 172 — A—11170. The " Determination” letter contains the following information about Messer’s physical condition: “Charging Party, a Nurse Anesthetist, alleged that the Respondent [Appellees] discriminated against her because of her disability by failing to engage in the interactive process for a reasonable accommodation since August 8, 1997, and as a result, it became medically necessary for her to return to Worker’s Compensation in October, 2000.” Appellees’ statement that ”[i]n October of 2000, Appellant re-opened her previous worker's compensation claim” therefore finds some support in the statement in the "Determination” letter. The "Determination" letter makes one finding and two determinations, namely: that "Respondent failed to adhere to the medical restrictions requested for Charging Party”; that "the evidence obtained during the investigation does establish a violation of the Americans with Disabilities Act (ADA) with respect to the reasonable accommodation matter;” and that "the evidence obtained during the investigation does not establish a violation of the American with Disabilities Act (ADA) with respect to the benefits and compensation matter.”
. W. Va.Code § 23-2-6 (2003), in relevant part, provides:
Any employer subject to this chapter who subscribes and pays into the workers’ compensation fund the premiums provided by this chapter or who elects to make direct payments of compensation as provided in this section is not liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after so subscribing or electing, and during any period in which the employer is not in default in the payment of premiums or direct payments and has complied fully with all other provisions of this chapter.
(Emphasis added). W. Va.Code § 23-2-6a (1949), in relevant part, provides:
The immunity from liability set out in the preceding section shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer’s business and does not inflict an injury with deliberate intention.
. Deborah A. Ballam, The Workers' Compensation Exclusivity Doctrine: A Threat to Workers' Rights Under State Employment Discrimination Statutes, American Business Law Journal, 95, 102-106, (Spring, 1989), describes the exclusivity doctrine as being the "Sacred Cow of Workers’ Compensation” stating that "most courts and state legislatures have vigorously protected the concept of employer immunity by aggressively promoting the exclusivity doctrine, even in cases where the injury did not arise from normal incidents of the employment. Courts have protected the doctrine by refusing, for the most part, to allow judicially created exceptions, while the legislatures have protected the doctrine by reacting with legislation repealing the few efforts the courts have made to reduce its scope."
. Messer contends in her reply brief that "West Virginia Code §§ 23-4-2 (’Deliberate Intention’) has no application to a WVHRA Claim” citing Miller v. City Hospital Inc., 197 W.Va. 403, 475 S.E.2d 495 (1996). The Miller case, however, did not involve a claim under the WVHRA. It was a "deliberate intention” case wherein Miller alleged that her employer had engaged in outrageous conduct that intentionally inflicted emotional distress on her. The Court affirmed the circuit court’s summary judgment in favor of the hospital because Miller had failed to offer concrete evidence that the hospital’s acts violated a specific safety statute or standard as required by W. Va.Code § 23-4-2(c)(2)(ii)(C) (1994). In footnote 5 immediately following the Court’s affirmation of the circuit court’s summary judgment, the Court stated: "Although Ms. Miller’s claim does not fall within the ‘deliberate intention’ exception, because her claim is work-related, any remedy she may have is set forth in the Workers' Compensation Act, W. Va.Code § 23-1-1 (1995) et seq. This opinion addresses neither the merits of her claim, nor its compensability under the Workers Compensation Act.” Miller, 197 W.Va. at 410, 475 S.E.2d at 502.
. W. Va.Code § 23-5A-1 (1978), in relevant part, provides:
No employer shall discriminate in any manner against any of his present or former employees because of such present or former employee's receipt of or attempt to receive benefits under this chapter.
W. Va.Code § 23-5A-2 (1982), in relevant part, provides:
Any employer who has provided any type of medical insurance for an employee or his dependents by paying premiums, in whole or in part, on an individual or group policy shall not cancel ... or cause coverage provided to be decreased during the entire period for which that employee ... is claiming or is receiving benefits under this chapter for a temporary disability. ... This section provides a private remedy for the employee ....
(Emphasis added.) W. Va.Code § 23-5A-3 (1990), in relevant part, provides:
It shall be a discriminatory practice within the meaning of section one [§ 23-5A-1] of this article to terminate an injured employee while the injured employee is off work due to a compensable injury ... unless the injured employee has committed a separate dischargeable offense.... It shall be a discriminatory practice ... for an employer to fail to reinstate an employee who has sustained a compensable injury-Any civil action brought under this section shall be subject to [collective bargaining agreements and related exceptions].
(Emphasis added.)
. This section of the Code was enacted in 1993 to overturn Breeden v. Workmen's Compensation Comm’r, 168 W.Va. 573, 285 S.E.2d 398 (1981), wherein the Court created a workers’ compensation compensable injury called a "mental-mental” claim. In that case, an employee filed a workers’ compensation claim for a mental disability which she suffered after being subjected to harassment from her immediate supervisor. The Court held that "an employee who sustains mental or emotional injury which occurs as a result of continuous and intentional harassment and humiliation from her supervisor extending over a period of time has suffered a personal injuiy as required by [the workers’ compensation statute].’’ See Robin Jean Davis and Louis J. Palmer, Jr., Workers' Compensation Litigation in West Virginia: Assessing the Impact of the Rule of Liberality and the Need for Fiscal Reform, 107 W. Va. L.Rev. 43, 79-80 (Fall 2004).
. In Syllabus points 1 and 2 to Price v. Boone County Ambulance Authority, 175 W.Va. 676, 337 S.E.2d 913 (1985), this Court interpreted W. Va.Code § 5-11-13 (1985) and declared (1) that "[a] plaintiff may, as an alternative to filing a complaint with the Human Rights Commission, initiate an action in circuit court to enforce rights granted by the West Virginia Human Rights Act,” and (2) ”[t]he remedies available in circuit court for violation of W. Va.Code § 5-11-9 are those set out in W. Va.Code § 5-1 1-13(c).” W. Va.Code 5-11-13(c) provides:
In any action filed under this section, if the court finds that the respondent has engaged in or is engaging in an unlawful discriminatory practice charged in the complaint, the court shall enjoin the respondent from engaging in such unlawful discriminatory practice and order affirmative action which may include, but is not limited to, reinstatement or hiring of employees, granting of back pay or any other legal or equitable relief as the court deems appropriate. In actions brought under this section, the court in its discretion may award all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, to the complainant.
. W. Va.Code § 5-11-9 (1998) provides:
It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, or except where based upon applicable security regulations established by the United States or die state of West Virginia or its agencies or political subdivisions:
(1) For any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if the individual is able and competent to perform the services required even if such individual is blind or disabled: [there follows a proviso which is not relevant to the issues on appeal].
.W. Va.Code § 5-1 l-3(m) (1998), provides:
The term "disability” means: (1) A mental or physical impairment which substantially limits one or more of such person’s major life activities. The term "major life activities” includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working; (2) A record of such impairment; or (3) Being regarded as having such an impairment. For the purposes of this article, this term [disability] does not include persons whose current use of or addiction to alcohol or drugs prevents such persons from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.
. See also Keatley v. Mercer County Board of Education, 200 W.Va. 487, 495, 490 S.E.2d 306, 314, fn. 15 (1997)(quoting Williams); In re Sorsby, 210 W.Va. 708, 713, 559 S.E.2d 45, 50 (W.Va.2001)(Syl. Pt. 5, Lawson v. County Comm’n, 199 W.Va. 77, 483 S.E.2d 77 (1996)(per curiam) which stated " 'where two statutes are in apparent conflict, courts must, if reasonably possible, construe them so as to give effect to each' Syllabus Point 4, State ex rel. Graney v. Sims, 144 W.Va. 72, 105 S.E.2d 886 (1958)."); Carvey v. West Virginia State Bd. of Educ., 206 W.Va. 720, 527 S.E.2d 831 (1999) (Where it is possible to do so, it is the duty of the courts, in the construction of statutes, to harmonize and reconcile laws, and to adopt that construction of a statutory provision which harmonizes and reconciles it with other statutory provisions). Accord, Lawson v. County Com’n. of Mercer County, 199 W.Va. 77, 483 S.E.2d 77 (1996); United Hosp. Center, Inc. v. Richardson, 757 F.2d 1445 (4th Cir.1985) ("Should there be some inconsistency between the two statutes, or sections of a single statute, courts, in construing the statutes, so far as possible, should seek to steer a 'middle course that vitiates neither provision but implements to the fullest extent possible the directives of each.' Citizens to Save Spencer v. EPA, 600 F.2d 844, 871 (D.C.Cir.1979)”).
. We encourage the Legislature to consider the exclusivity provision with respect to the WVHRA further. We believe that W. Va.Code § 23-5A-1, et seq., may provide a statutory vehicle to do so.
. In so holding, we pause to recognize the wisdom reflected some seventeen years ago by Justice Miller in his dissent in Coffman, wherein he observed that “workers’ compensation benefits relate to employee's injuries and have nothing to do with his status under the handicap law. This latter provision is designed to prevent discrimination against a person who has a handicap.’’ Coffman, 182 W.Va. at 85-86, 386 S.E.2d at 13-14. "Nor,” he wrote, "is it possible to ascribe any legislative intent that employees handicapped as a result of occupational injuries were to be excluded from coverage of the handicap discrimination law.” Id.., 182 W.Va. at 86, 386 S.E.2d at 14. | [
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The Opinion was delivered PER CURIAM.
PER CURIAM:
In this appeal from the Circuit Court of Wood County, we are asked to review three orders granting summary judgment to various defendants in a product liability action. The plaintiffs allege that a defect in a Toyota Camry caused a fire in their garage, and that a defect in a home fire alarm system permitted the fire to spread and destroy their home. After the fire, the plaintiffs’ insurers allegedly destroyed the vehicle and the alarm system, preventing a thorough investigation of the alleged defects.
In two summary judgment orders, the circuit court dismissed the plaintiffs’ claims against two groups of defendants because, as a result of the destruction of the vehicle and alarm system, the plaintiffs could not specifically identify the defect that caused the malfunction in those products. Furthermore, the court believed that the plaintiffs did not rule out all other potential causes for the malfunction in those products. In a third summary judgment order, the circuit court dismissed the plaintiffs’ claims against one product manufacturer as barred by the statute of limitation.
As set forth below, we reverse the circuit court’s first two summary judgment orders and find evidence sufficient to create a triable question of fact as to whether the product malfunctions were the result of inherent defects. However, we affirm the circuit court’s third order finding the plaintiffs’ claims against one manufacturer barred by the statute of limitation.
I.
This civil action arises from a residential fire which destroyed the home of the appellants and plaintiffs-below, Kenneth G. and Rosilyn K. Bennett and their daughter, Rebecca A. Bennett, during the early morning hours on March 25,1998.
In 1995, the Bennetts moved into their new home in Vienna, West Virginia, which had just been constructed by Mr. Bennett’s company, Bob Bennett Homes, Inc. Mr. Bennett contracted with defendant-below ASCO Services, Inc., to install a burglary and fire alarm system in the home. ASCO Services installed an alarm system which contained components manufactured by various subsidiaries of appellee and defendant-below Honeywell, Inc., and which also contained heat sensors manufactured by appellee and defendant-below Chemetronics Caribe, Inc. (“Chemetronics”). In addition, the Bennetts paid for ASCO Services to monitor the system. As a further precautionary measure, Mr. Bennett purchased battery-operated smoke detectors and placed them throughout the house.
After the alarm system was installed, several false alarms occurred. During these false alarms, verbal warnings of a fire would be issued through speaker boxes placed throughout the house (saying “Fire. Fire. Evacuate the premises immediately.”), sirens would sound, and a strobe light located outside the house would flash. Each time a false alarm occurred, the Bennetts would speak with an employee of ASCO Services, and ASCO Services would subsequently inspect and/or repair the system. The Ben-netts were repeatedly assured by ASCO Services that the alarm system was functioning properly and safely.
On March 25, 1998, Mrs. Bennett awoke in the night, smelled smoke and heard a battery-operated smoke detector beeping. Mrs. Bennett woke her daughter, then went downstairs to the garage, turned on the lights and saw flames coming from under the hood area of the Bennetts’ Toyota Camry which was parked in the middle stall of the garage. She then woke her husband and as he dressed, the telephone began ringing. The caller announced that she was with ASCO Services, and asked if the Bennetts were having a problem. Mr. Bennett contends he responded affirmatively, and asked that fire trucks be sent.
Mr. Bennett went to the garage and saw that the engine area of the Camry was on fire, but the fire was so far advanced that Mr. Bennett could not control it. Experts later estimated that, when it was discovered, the fire had been burning for twenty to thirty minutes. Although firemen arrived shortly thereafter, the Bennetts suffered a total loss of their home and its contents. The Bennetts contend that at no time on the night of the fire did the fire alarm system installed by ASCO Services trigger any audible or visual warnings.
The fire was investigated by the Bennetts’ homeowner’s insurance carrier, defendant-below Ohio Farmers Insurance Company, and their car insurance carrier, defendant-below Westfield Insurance Company. Mr. Bennett asserts that he informed the insurance company investigators of his belief that the fire started in the Camry, and that the fire spread throughout the house because the fire alarm system failed to operate properly. Ohio Farmers and Westfield removed the Camry from the Bennetts’ property and placed it in storage for a complete investigation. Insurance company investigators examined the Camry and concluded that the cause of the fire was “undetermined,” and thereafter disposed of the Camry. A few weeks after the fire, Ohio Farmers paid a contractor to tear down the remains of the Bennett’s house and haul the debris to a landfill, after allegedly assuring Mr. Bennett that everything necessary for Ohio Farmers’ investigation had been removed. Apparently, none of the parties examined or removed any portion of the alarm system for investigation, and the alarm system was destroyed and disposed of in the removal process.
The Bennetts subsequently brought the instant lawsuit against Toyota, Inc., for al leged product defects in the Toyota Camry that were the cause of the fire, and against Honeywell and ASCO Services for alleged product defects in the alarm system that allowed the fire to go undetected, thereby resulting in the total destruction of the house. Additionally, the Bennetts brought suit against ASCO Services alleging negligence in the design, installation, and/or maintenance of the alarm system. The Bennetts later filed amended complaints against Ohio Farmers and Westfield for spoliation of evidence, alleging that the insurance companies had impaired the Bennetts’ ability to prosecute their lawsuit because of careless destruction of the Toyota Camry and the alarm system. See Hannah v. Heeter, 213 W.Va. 704, 584 S.E.2d 560 (2003) (discussing the elements of a cause of action for spoliation).
During discovery, in June 2000, the Ben-netts were provided documents that identified Honeywell and its subsidiaries as the manufacturer of many of the components of the alarm system. However, the documents also identified Chemetronics as the manufacturer of the heat sensors used in the alarm system, along with a web site for Chemetron-ics. The Bennetts’ experts identified the heat sensors as significant factors in the failure of the alarm system because of their location in the garage and because the sensors failed to operate properly and detect the fire within one minute of ignition as designed to do. The Bennetts’ experts also determined that the fire had been burning for 20 to 30 minutes when discovered by the Ben-netts. However, the Bennetts presumed that Chemetronics was simply another Honeywell subsidiary. It was not until October 2001, during the deposition of an ASCO Services employee, that the Bennetts discovered that Chemetronics was not a Honeywell subsidiary. Thereafter, in October 2002, the Bennetts filed another amended complaint to include Chemetronics and its parent corporation, Kidde-Fenwal, Inc., as defendants.
After extensive discovery, the defendants filed motions for summary judgment. On December 11, 2003, the circuit court entered three orders granting summary judgment to three groups of defendants: the Toyota defendants, the Honeywell defendants, and Chemetronics. The circuit court’s first two orders, granting summary judgment to the Toyota and Honeywell defendants respectively, dismissed the Bennetts’ claims of product liability because the Bennetts were unable to identify the precise defects and/or causes of the fire, or identify the defects that caused the failure of the alarm system, because of the destruction and spoliation of the Camry and alarm system. The court found that the circumstantial evidence presented was insufficient to defeat summary judgment because the Bennetts could not show that the fire “would not ordinarily happen in the absence of a defect” and that “there was no reasonable secondary cause for the malfunction.” In the third order, the circuit court granted summary judgment in favor of Chemetronics, finding that the appellants’ claims were barred by the two-year statute of limitations.
The Bennetts now appeal the circuit court’s three orders dated December 11, 2003.
H.
We are asked to review the circuit court’s award of summary judgment in favor of several appellees. We review a circuit court’s summary judgment ruling under the standard announced in Syllabus Point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), which is as follows: “A circuit court’s entry of summary judgment is reviewed de novo.”
In reviewing summary judgment, this Court will apply the same test that the circuit court should have used initially, and must determine whether “it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). We defined a “genuine issue of fact” in Syllabus Point 5 of Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995):
Roughly stated, a “genuine issue” for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict for that party. The opposing half of a trialworthy issue is present where the non-moving party can point to one or more disputed “material” facts. A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law.
As with the circuit court, we “must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion,” that is, the appellants. Painter v. Peavy, 192 W.Va. at 192, 451 S.E.2d at 758.
We keep these standards in mind in addressing the appellants’ arguments.
III.
The Bennetts argue that summary judgment was inappropriate as to the product liability claims against Toyota and against Honeywell because different conclusions may be drawn from the evidence as to the existence of a defect in the Camry, and as to the existence of a defect in the fire alarm system. The appellants argue that there is a triable issue of fact regarding whether these defects were the cause of the fire and, ultimately, the total loss of the house. We are therefore asked to consider whether the Bennetts have come forward with enough evidence to defeat summary judgment, and to permit a jury to decide whether or not defects existed in the Camry and in the alarm system, whether or not the fire would have happened in the absence of the defect, and whether or not the fire would have totally destroyed their home. The appellants also argue that the circuit court improperly dismissed the claims against Chemetronics as barred by the statute of limitations, maintaining that the time limit for filing their claim should be tolled by the discovery rule, and did not begin to run until the appellants discovered Chemetronics was an entity separate from Honeywell.
A.
Circumstantial Evidence of Product Defect — Toyota and Honeywell
The circuit court granted summary judgment to Toyota, holding that the Bennetts did not establish the existence of a defect in their Toyota Camry, and did not rule out all other potential causes for the fire such that a jury could only conclude that a defect present in the Camry when it left Toyota’s control caused the fire. The circuit court, in its order, stated: “Alleging that the ‘cause’ of the fire was in or around the Toyota, is insufficient to establish a legal ‘defect.’ ”
The court similarly granted summary judgment in favor of Honeywell because the “plaintiffs have no evidence eliminating reasonable secondary causes of the alleged failure of the fire detection and-warning system.” Additionally, the circuit court stated that the Bennetts presented no evidence that the products supplied by Honeywell “had a design or manufacturing defect at the time they left control of the Honeywell defendants.”
The Bennetts contend that the circuit court erred, arguing that they presented substantial circumstantial evidence of a defect to defeat the summary judgment motion by Toyota. The appellants cite to the extensive testimony of their expert who opined that the cause of the fire was from a defect or failure in the wiring system of the Camry. The Bennetts point out that secondary causes of the fire have been ruled out by both the insurers’ investigators, as well as by their expert.
Additionally, the Bennetts contend that they presented sufficient circumstantial evidence to defeat the summary judgment motion by Honeywell. An expert for the Ben-netts testified that the existence of a defect in the Honeywell alarm system was likely because, when the Honeywell system simply malfunctions, the system issues audible warnings of a malfunction. The Bennetts argue that the fire alarm system had a defect because it failed to issue any audible or visual warnings — of either a malfunction or a fire — at any time during the night of the fire. A Bennett expert testified that the failure of the fire alarm system was caused by a defect in the system, by an installation or maintenance error by ASCO Services, or both.
We adopted a cause of action for strict products liability 'in Morningstar v. Black and Decker Mfg. Co., 162 W.Va. 857, 253 S.E.2d 666 (1979). We held in Syllabus Point 3 of Momingstar that the cause of action is “designed to relieve the plaintiff from proving that the manufacturer was negligent in some particular fashion during the manufacturing process and to permit proof of the defective condition of the product as the principal basis of liability.” The general test of whether a product is defective was established in Syllabus Point 4, where we held:
In this jurisdiction the general test for establishing strict liability in tort is whether the involved product is defective in the sense that it is not reasonably safe for its intended use. The standard for reasonable safeness is determined not by the particular’ manufacturer, but by what a reasonably prudent manufacturer’s standards should have been at the time the product was made.
A plaintiff is not required to establish a strict products liability cause of action by identifying the specific defect that caused the loss, but instead may permit a jury to infer the existence of a defect by circumstantial evidence. This Court held in Syllabus Point 3 of Anderson v. Chrysler, 184 W.Va. 641, 403 S.E.2d 189 (1991), that:
Circumstantial evidence may be sufficient to make a prima facie case in a strict liability action, even though the precise nature of the defect cannot be identified, so long as the evidence shows that a malfunction in the product occurred that would not ordinarily happen in the absence of a defect. Moreover, the plaintiff must show that there was neither abnormal use of the product nor a reasonable secondary cause for the malfunction.
In adopting this rule in Anderson, we reasoned that a product defect may be inferred where there is evidence sufficient for a jury to conclude that the accident would not have occurred unless the product was defective:
In most instances the plaintiff will produce direct evidence of the product’s defective condition. In some instances, however, the plaintiff may not be able to prove the precise nature of the defect in which case reliance may be had on the “malfunction” theory of product liability. This theory encompasses nothing more than circumstantial evidence of product malfunction. ... It permits a plaintiff to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable, secondary causes for the malfunction .... It thereby relieves the plaintiff from demonstrating precisely the defect yet it permits the trier-of-fact to infer one existed from evidence of the malfunction, of the absence of abnormal use and of the absence of reasonable, secondary causes.
Anderson, 184 W.Va. at 645, 403 S.E.2d at 193 (quoting Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 181, 565 A.2d 751, 754 (1989)).
Under Anderson, while a defect in a product cannot be presumed solely from the fact that an accident occurred, proof that a product malfunctioned — that is, failed to function as it was intended and typically would in normal usage — is circumstantial proof of its defective condition. Anderson does not require a plaintiff, to succeed at the summary judgment stage, to conclusively eliminate all possible contributing causes other than a defect for an accident. Instead, a plaintiff is only required to submit evidence that has the capacity to sway the outcome of the litigation, and from which a jury could fairly conclude that the most likely explanation of the accident involves the causal contribution of a product defect.
Under Anderson’s malfunction theory, “a plaintiff makes a submissible case of proof that the accident was caused by some unspecified defect and that no other cause is likely_ The plaintiff is not required to eliminate with certainty all other possible causes of the accident. It is sufficient if the evidence reasonably eliminates other causes such as the handling or misuse of the product by others than the manufacturer, thus permitting the fact finder to find that it was more probably [sic] than not that the product was defective.” 2 Am.L.Prod.Liab.3d § 31:26 (footnotes omitted). See also, Restatement (Third) of Torts: Products Liability, § 3, cmt. c and d [1998] (“The inference of defect may be drawn ... without proof of the specific defect.... [T]he plaintiff must establish by a preponderance of the evidence that the incident was not solely the result of causal factors other than defect at the time of sale. The defect need not be the only cause of the incident; if the plaintiff can prove that the most likely explanation of the harm involves the causal contribution of a product defect, the fact that there may be other concurrent causes of the harm does not preclude liabDity[.]”)
We therefore must consider whether the appellants in the instant case raised triable questions of fact that the products at issue— the Toyota Camry and the Honeywell alarm system — were not reasonably safe for their intended use. We must assess whether the Bennetts introduced evidence with the capacity to sway the outcome of the litigation such that a jury could surmise that the fire, and the subsequent total destruction of the house, resulted from a malfunction in the Toyota Camry and the Honeywell alarm system; that there was no misuse of either product; and that there was no reasonable secondary cause for either malfunction, thus permitting a jury to find that it was more probable than not that either product was defective and a contributing cause of the appellants’ loss.
After examining the record, we find sufficient evidence such that a reasonable juror could infer that the fire started in the Toyota Camry as a result of a malfunction, and that the fire would not have ordinarily happened in the absence of a defect. The Bennetts’ expert testified that it was his opinion that a defect in the wiring system existed in the Camry, a defect which was the ultimate cause of the fire. Due to the destruction of the Camry, the expert was not able to identify the precise defect in question. Still, the record indicates that the Bennetts introduced sufficient evidence for jurors to conclude that the Camry was regularly maintained and serviced, was not previously exposed to neglect, abuse qr abnormal use, and, most importantly, was not being misused at the time the fire started. Sufficient evidence was also offered such that jurors could exclude other reasonable secondary causes for the fire. For instance, an expert hired by Ohio Farmers and Westfield acknowledged that items such as a gasoline can and gasoline-powered equipment located in the garage lacked an ignition source and could not have been an independent cause of the fire. Expert testimony in the record also permits an inference that other reasonable alternative causes for the fire could be ruled out: the fact that Mrs. Bennett turned on the lights in the garage suggested that the electrical wiring was not a source, photographs of the fire scene ruled out other items or vehicles in the garage as the source of the fire, and the burn pattern and main collapse of the garage support the location of the Camry as being the origin of the fire. Accordingly, a genuine issue of material fact clearly exists regarding whether or not a defect in the wiring system caused the Camry to catch on fire.
The Honeywell defendants contend that summary judgment was properly granted because there was no evidence that the components of the alarm system installed in the Bennetts’ home were defective when they left Honeywell’s control. However, “the general test for establishing strict liability in tort is whether the involved product is defective in the sense that it is not reasonably safe for its intended use.” Syllabus Point 4, Morningstar, 162 W.Va. 857, 253 S.E.2d 666 (1979). We must therefore consider whether the Bennetts offered sufficient evidence — circumstantial or otherwise — to create a triable issue of fact regarding whether the alarm system components were not reasonably safe for their intended use.
After careful consideration of the record, we find that material questions of fact exist regarding whether the Honeywell alarm system malfunctioned as a result of a defect, and was therefore not reasonably safe for its intended use. The record suggests that the fire was burning in the garage for at least twenty to thirty minutes before the Bennetts woke up. The Bennetts’ expert testified that the alarm system should have offered immediate detection of either smoke or heat from the fire, and alerted the Bennetts to the fire in less than one minute based upon the proximity of the heat detectors to where the fire started. Furthermore, the alarm system should have alerted the monitoring company, ASCO Services, of the fire. The record suggests that the alarm system did not alert the Bennetts and never issued any type of warning, aural or visual, throughout the night of the fire. Rather, it was a battery-operated alarm which the Bennetts installed independently that issued warnings. Only after the Bennetts discovered the fire did they receive a telephone call from an ASCO Services employee asking if the Bennetts were having a problem.
The Honeywell defendants assert that, even if its alarm system malfunctioned and failed to operate as intended, the Bennetts should not • be allowed to circumstantially prove the existence of a product defect because they cannot rule out all possible secondary causes of the alleged malfunction. The Bennetts, however, maintain that they purchased an alarm system using Honeywell products 'and parts, and that the alarm system did not activate on the night of the fire — • thereby permitting what should have been discovered as a small fire in their garage to rage out of control and totally destroy their home. Furthermore, the alarm system did not detect any malfunction prior to the fire, as it was designed to do, and notify the homeowners that the system needed maintenance or repair.
The Bennetts are not required under Anderson to eliminate all other possible causes, or prove that the alleged defect was the only cause, of the malfunction in the alarm system. They are only required to eliminate those causes which would prevent a jury from finding that it was more probable than not that the alarm system was defective. An expert for the Bennetts opined that the failure of the alarm system was caused by a defect in the system or an installation and servicing error by ASCO Seivices, or both. The Bennetts’ evidence suggests that a malfunction caused by a defect in the alarm system is a likely explanation for the destruction of their home; they need not prove, under Anderson — nor certainly under Rule 56(c) at the summary judgment stage — that it was the only explanation. Accordingly, a genuine issue of material fact exists regarding whether or not a defect in the alarm system caused the system not to activate.
Viewing the record in a light most favorable to the appellants, we find that the.circuit court erred in granting summary judgment to both Toyota and the Honeywell defendants, and we remand the case for further proceedings.
B.
Statute of Limitation — Chemetronics
The circuit court granted summary judgment dismissing the appellants’ claims against Chemetronics, filed on October 11, 2002, finding the claims were barred by the two-year statute of limitation. See W.Va. Code, 55-2-12. The Bennetts claim that they filed an amended complaint immediately upon discovering in October 2001 that Chem-etronics manufactured the heat sensors used in the fire alarm system and acted reasonably and timely, based upon information that they knew or reasonably should have known at relevant times. Chemetronics asserts that the Bennetts reasonably knew or should have known by June 2000 of Chemetronics’ potential liability, and that the October 2002 complaint was not timely.
We ’ discussed in Keesecker v. Bird, 200 W.Va. 667, 682, 490 S.E.2d 754, 769 (1997), that there are four steps to determining if a claim is barred by the statute of limitation. The first step in analyzing any statute of limitation question is to determine the applicable statute. In this case, W.Va.Code, 55-2-12 mandated an action for the injury be filed within two years.
“The second step in evaluating a statute of limitation question is to establish when the requisite elements of the alleged tort occurred, such that the cause of action ‘accrued.’ ” Keesecker, 200 W.Va. at 683, 490 S.E.2d at 770. In this case, the cause of action “accrued” on the night of the fire, March 25,1998.
The next step is to determine whether the plaintiff is entitled to the benefit of the ameliorative effects of the discovery rule.” Id. The discovery rule tolls the statute of limitation until the claimant knows or by the exercise of reasonable diligence should know of his claim. Whether the discovery rule applies is determined, in tort actions, by the application of Syllabus Point 4 of Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997). We stated that “this rule tolls the statute of limitations until a plaintiff, acting as a reasonable, diligent person, discovers the essential elements of a possible cause of action, that is, discovers duty, breach, causation and injury.” Id., 199 W.Va. at 714, 487 S.E.2d at 909. If the plaintiff is not entitled to the ameliorative effects of the discovery rule, then “[t]he last step in the statute of limitations analysis is to determine if the limitation period is tolled by some misconduct of the defendant.” Keesecker, 200 W.Va. at 684, 490 S.E.2d at 771.
The appellants assert that they did not know the identity of the tortfeasor— Chemetronics — until October 2001, and therefore could not have brought suit until that identity was discovered through reasonable diligence. However, applying the third and fourth steps of Keesecker, it is clear that the Bennetts cannot benefit from the discovery rule in their claims against Chemetronies. The record shows that during discovery in June 2000, the Bennetts were given documents that identified Chemetronics as being involved with the manufacture of the heat sensors. The appellants’ experts identified the heat sensors as a potential source of the malfunction of the alarm system. The Ben-netts therefore should have reasonably known in June 2000 — and not in October 2001 — through due ■ diligence that Cheme-tronics was the manufacturer of the heat sensors, and that the heat sensors may have malfunctioned and allowed the fire to destroy their home. Moreover, there is nothing in the record to suggest misconduct on the part of Chemetronics to conceal their identity or their misconduct. Therefore, the appellants aré not entitled to the protection of the discovery rule. We would affirm the circuit court’s order granting summary judgment in favor of Chemetronics.
IV.
The circuit court’s two December 11, 2003 orders as to the Toyota and the Honeywell defendants are reversed. The circuit court’s December 11, 2003 order as to Chemetronics is affirmed, and the ease is remanded for proceedings consistent with this opinion.
Affirmed in part, Reversed in part, and Remanded.
. The parties collectively refer to four appellees and defendants-below as the “Honeywell defendants:” ADEMCO Group, a division of Pittway Corporation; Pittway Corporation; System Sensor; and Honeywell, Inc. The Honeywell defendants manufactured sirens and strobe lights, speaker boxes, smoke detectors, and control panels for the alarm system installed in the appellants' house.
. The parties collectively refer to five different defendants as the "Toyota defendants:” Toyota Motor Corporation; Toyota Motor Manufacturing, Kentucky, Inc.; Toyota Motor Manufacturing, U.S.A., Inc.; Toyota Motor Sales, U.S.A., Inc.; and Cobb and Coulson Auto Sales, Inc., d/b/a C & C Dodge Toyota.
. Still pending before the circuit court are the appellants’ claims against the insurance company defendants for spoliation, and the appellants’ claims against ASCO Services for supplying a defective alarm system, and negligent installation and maintenance of the alarm system.
. Syllabus Point 4 of Gaither v. City Hospital states:
In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statue of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, show know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury.
. This step is espoused by Syllabus Point 3 in Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992):
Mere ignorance of the existence of a cause of action or of the identity of the wrongdoer does not prevent the running of the statute of limitations; the “discovery rule” applies only when there is a strong showing by the plaintiff that some action by the defendant prevented the plaintiff from knowing of the wrong at the time of the injury. | [
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The Opinion of the court was delivered by Justice BENJAMIN.
Justice DAVIS concurs and reserves the right to file a concurring opinion.
Justice STARCHER dissents and reserves the right to file a dissenting opinion.
BENJAMIN, Justice.
These consolidated cases are before the Court upon the appeals of United Hospital Center, Inc. (“UHC”), West Virginia United Health Care System, Inc. (“WVUHS”), and the West Virginia Health Care Authority (“Authority”) from the November 24, 2004 Opinion/Order of the Circuit Court of Marion County, West Virginia, in Civil Action No. 04-P-63, being an administrative appeal styled Fairmont General Hospital, Inc., Petitioner, v. West Virginia Health Care Authority, United Hospital Center, Inc., and West Virginia United Health System, Inc., Respondents. The November 24, 2004 Opinion/Order of the circuit court reversed the May 3, 2004 decision of the Office of Judges, which had affirmed a decision by the Authority, dated October 24, 2003, to approve UHC’s and WVUHS’ application for a certificate of need to construct a hospital facility in Bridgeport, West Virginia, to replace UHC’s existing hospital facility located in Clarksburg, West Virginia.
Having considered the Appellants’ petitions for appeal, the record submitted to the Court, the briefs of the Appellants and Ap-pellee, the amicus curiae brief of the Affiliated Construction Trades Foundation, and the oral argument of counsel, we reverse the circuit court’s Opinion/Order of November 24, 2004, in Civil Action No. 04-P-63, for the reasons stated below.
I.
BACKGROUND
On July 18, 2002, UHC and WVUHS filed an application with the Authority seeking the issuance of a certificate of need to permit construction of a 318-bed hospital facility on a 125-acre site in Bridgeport, West Virginia, immediately off the Jerry Dove exit on 1-79. The new UHC hospital would replace UHC’s existing 375-bed hospital located at Route 19 South and Davisson Run Road on the southwest side of Clarksburg, West Virginia.
In its October 24, 2003 decision, the Authority considered the record before it, including arguments for and against the granting of a certificate of need for a replacement hospital for UHC. In its decision, the Authority considered the statutory requirements set forth in W. Va.Code § 16-2D-9(b) (1999), which declares that “[a] certificate of need may only be issued if the proposed new institutional health service is: (1) Found to be needed; and (2) Except in emergency circumstances that pose a threat to public health, consistent with the state health plan.” In keeping with W. Va.Code § 16-2D-5(b), this determination by the Authority included consideration of “the certificate, of need standards” (“standards”). Included within these standards, was a limitation that replacement hospital facilities be no more than five miles from the hospital facility being replaced. Attention, in part, was focused on concerns that the proposed site of the replacement hospital was too far from UHC’s existing hospital, being some eight miles away.
In addition to its consideration of the Certificate of Need Standards, which are not legislative rules, the Authority also considered the Certificate of Need Rule, which is a legislative rule. The Certificate of Need Rule appears in 65 C.S.R. 7-1 to -28. Section 65 C.S.R. 7-2 of the Certificate of Need Rule defines certain terms used therein, including the term, “Consistent with the State Health Plan”, in subsection 2.7. As therein defined, the term means “a determination made by the [Authority] that the preponderance of the evidence supports the achievement of the applicable provisions of the State Health Plan [which would include the five-mile provision in the Plan] unless the Plan is in conflict with any statute or this rule.”
In its October 24, 2003 decision granting UHC’s and WVUHS’ certificate of need, the Authority, at pages 61-62, made the following rulings:
The West Virginia Certificate of Need Rule, 65 C.S.R. § 7-1 et seq. does not require an application for a certificate of need to be •perfectly consistent with the [State Health Plan]. Rather, the [Certificate of Need] Rule defines the term “consistent with the State Health Plan” to mean “a determination made by the [Authority] that the preponderance of the evidence supports the achievement of the applicable provisions of the State Health Plan.... ”65 C.S.R. § 7-2.7.
The development of the applicant’s proposed replacement hospital eight miles rather than five miles from the existing hospital is not materially inconsistent with the definition of a “replacement” facility. The current [Certificate of Need] Standards for the “Renovation-Replacement of Acute Care Facilities and Services”, although not applicable to this case, define a “replacement” to be within fifteen (15) miles of the original facility. The applicant had the option to file its application under the current standards and elected not to do so due to the cost of filing a new application.
The [Authority] has carefully considered the arguments on this issue and finds that the proposed location of the replacement facility more than five miles from the original facility does not automatically require the Authority to reject the proposal. In the present case, the facility is to be locat- - ed approximately eight miles from the existing one.
(Emphases added.)
Pursuant to W. Va.Code § 16-2D-10, Fair-mont General Hospital, as an “affected person” defined in W. Va.Code § 16-2D-2(a) (1981), sought review by the Office of Judges of the Authority’s decision of October 24, 2003. In its decision of May 3, 2004, the Office of Judges affirmed the Authority’s decision, stating at page 5:
The Authority articulated its rationale in arriving at the conclusion that “8 miles” was consistent, albeit not exact, with the 5-mile limit in the applicable Standards for hospital replacement. The Authority acknowledged that it could require UHC to execute a “new filing” to meet strict compliance with the five mile language of the standard in place at the time of their [sic] application. This, however, would be a superfluous act. The Authority was well within its discretion in finding substantial compliance, in spite of the 3-mile deviation from the Standard.
(Emphasis added.)
Pursuant to W. Va.Code § 16-2D-10, Fair-mont General Hospital appealed the May 3, 2004 decision of the Office of Judges to the Circuit Court of Marion County. The circuit court, in an Opinion/Order entered on November 24, 2004, reversed the decisions of both the Authority and the Office of Judges on the ground that the replacement hospital would not, when constructed, be within five miles of the hospital to be replaced. In reversing the Office of Judges, the circuit court relied upon Section I(W) of the State Health Plan Certificate of Need Standards, entitled “Renovation-Replacement of Acute Care Facilities and Services”, which, in relevant part, declared:
Replacement: A project for the ... construction ... of a physical plant or facility as a result of which:
2. All hospital beds are, or will be, located within five miles of the original facility following completion of the project.
(These quoted provisions will hereinafter be referred to either as the “five-mile limitation” or simply as “the limitation”.) In its eighth Conclusion of Law, the circuit court stated that “[n]o exception exists which would allow the [Authority] to deviate from the regulatory mileage limit.” UHC, WVUHS, and the Authority thereupon appealed the circuit court’s decision to this Court.
Since the parties agree that the sole issue to be decided by the Court in this appeal is whether UHC’s and WVUHS’ proposed replacement hospital is “consistent with the state health plan”, as required by W. Va. Code § 16-2D-9(b)(2) (1981), and specifically with the plan’s requirement that a replacement hospital be “located within five miles of the original facility”; it is not necessary to further review (1) the facts upon which the Authority found that the replacement hospital is needed since that finding is not challenged on appeal; (2) UHC’s and WVUHS’ application filed with the Authority seeking a certificate of need; or (3) the administrative proceedings before the Authority which culminated in its issuance of the certificate of need sought by UHC and WVUHS.
II.
STANDARD OF REVIEW
“On appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W. Va.Code § 29A-5-4(a) and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong.” Syl. pt.l, Muscatett v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
III.
DISCUSSION
Although the parties agree that the ultimate question for the Court to determine is whether the site approved by the Authority for the construction of UHC’s replacement hospital eight miles from the hospital to be replaced is “consistent with the state health plan” and concentrate their advocacy on the intent of that phrase, we believe the first issue to be considered is the threshold determination of whether the five-mile limitation as imposed by the Authority and the Governor conflicts with provisions of W. Va.Code § 16-2D-1 et seq., or is not authorized by legislative guidelines provided for the exercise of powers conferred upon the executive department. In other words, is the limitation a legally valid restriction? The parties to the appeal and the amicus accepted the validity of the limitation without discussion. However, before this Court entertains a discourse between the parties on the question of whether “substantial, but not perfect” consistency compels a finding of compliance under the law, we must first consider the legal validity of the underlying mileage limitation which itself is at the heart of this appeal and which selves as the necessary predicate to any consideration of “consistency” and “compliance.”
A. Validity of the Five-Mile Limitation
We commence with the Authority’s Certificate of Need Rule which defines in Subsection 2.7 thereof (65 C.S.R. § 7-2.7) the phrase “consistent with the state health plan” as used in the Rule to mean “a determination made by the [Authority] that the preponderance of the evidence supports the achievement of the applicable provisions of the State Health Plan unless the Plan is in conflict with any statute or this rule.” (Emphasis added.) Here, the Authority has appropriately recognized that a proposed replacement hospital for which a certificate of need is sought is not required to be consistent with a provision in the State Health Plan, such as the five-mile limitation, if the provision conflicts with a statute or the Certificate of Need Rule.
Our review of applicable West Virginia law reveals that the five-mile limitation does, indeed, conflict with a statute, specifically, W. Va.Code § 16-2D-6(d), which provides that “[a]n application for a certificate of need may not be made subject to any criterion not contained in [W- Va.Code § 16-2D-1 et seq.] or not contained in rules adopted pursuant to [W. Va.Code § 16-2D-8].” Similarly, according to W. Va.Code § 16-2D-9(d), the “[i]ssuanee of a certificate of need ... may not be made subject of any condition unless the condition directly relates to criteria in [W. Va.Code § 16-2D-1 et seq.] or in rules adopted pursuant to [W. Va.Code § 16-2D-8].” It is apparent that the Legislature used “criterion” in W. Va.Code § 16-2D-6(d) and “condition” in W. Va.Code § 16-2D-9(d) as synonymous terms. The five-mile limitation is such a criterion or condition and it is not contained in either W. Va.Code § 16-2D-1 et seq. or in rules adopted by the Authority (or its predecessor agency) pursuant to W. Va. Code § 16-2D-8 (1999).
The minimum criteria for certificate of need reviews are set forth in W. Va.Code § 16-2D-6(a)(1)-(23) and (e), (f) and (g) (1999). Not one of those criteria contains a mileage limitation on the relocation of an existing hospital to which an application for a certificate of need therefor is made subject. Nor does the five-mile limitation directly relate to any of those criteria. W. Va.Code § 16-2D-6(b) authorizes the Authority to “include additional criteria which it prescribes by rules pursuant to [W Va.Code § 16-2D-8].” 65 C.S.R. § 7-12 of the Certificate of Need Rule sets forth “Review Criteria.” Rather than being “additional criteria”, the administrative “Review Criteria” repeat the statutory criteria. Not one of the crite ria set forth in Certificate of Need Rule, 65 C.S.R. § 7-12, contains a mileage limitation on the relocation of an existing hospital. Nor does the five-mile limitation directly relate to any of those criteria.
Accordingly, since the five-mile limitation is not contained in, and does not directly relate to, any of the criteria in W. Va.Code § 16-2D-6 or in the Certificate of Need Rule, UHC’s and WVUHS’ application for a certificate of need and the Authority’s issuance of the certificate could not validly be made subject to that limitation.
In Department of Health and Rehabilitative Services v. Johnson and Johnson Home Health Care, Inc., 447 So.2d 361 (Fla.Ct.App.1984), the District Court of Appeal of Florida considered the validity of an administrative rule that prescribed “a threshold requirement for issuance of a certificate of need (CON) to a home health care provider that each existing provider within the service area must be seeing an average of 300 patients per day according to the census of the last calendar quarter.” Johnson and Johnson Home Health Care, 447 So.2d at 362. The court noted that “[t]he stated purpose of the rule was to halt the proliferation of home health agencies.” Id. However, “[t]he record before the hearing officer showed that the rule of 300 was designed to protect the existing industry from competition.” Id. at 362.. The court concluded that “[tjhere is no reasonable relationship shown between the prohibition of the rule and the health, morals, safety or welfare of the public. The rule is arbitrary and capricious and cannot stand.” Id. at 363. The court then took note of the statutory criteria for evaluating applications for certificates of need, after which it stated: “The hearing officer correctly concluded that the rule of 300 precluded a balanced consideration of all statutory criteria. The rule allows [the Department of Health and Rehabilitative Services] to ignore some statutory criteria and emphasize others, contrary to the legislative purpose it is supposed to implement. The rule exceeds delegated legislative authority.” (Internal citations omitted)'
' Similarly, it may be said the five-mile limitation precludes a balanced consideration of all the statutory criteria for certificate of need reviews set forth in W. Va.Code § 16-2D-6. Consider only two of those criteria, the ones provided in Subsections 6(a)(ll) and (15) of Article 2D. In Subsection 6(a)(ll), the Authority is obligated in the case of the relocation of a health care facility to consider “the need that the population presently served has for the service, the extent to which that need will be met adequately by the proposed relocation or by alternative arrangements, and the effect of the ... relocation of the service on the ability of low income persons, racial and ethnic minorities, women, handicapped persons, other medically underserved population, and the elderly, to obtain needed health care.” Limiting the construction of a replacement hospital to within five miles of the existing hospital may dimmish the ability of the described persons to obtain needed health care. As the Florida court said, such a limitation precludes a balanced consideration of the statutory criteria.
• W. Va.Code § 16-2D-6(a)(15) obligates the Authority to consider the accessibility of the proposed health services “to all the residents of the area to be served by the services.” Again, an arbitrary five-mile limitation may well diminish the accessibility of the relocated hospital to the residents of the area to be served by the facility.
The circuit court in its Opinion/Order of November 24, 2004, stated in its twelfth Conclusion of Law that one purpose of the five-mile limitation “is to protect other area hospitals from the encroachment of new facilities into areas traditionally serviced by those other area hospitals.” While it is not difficult to assume that such. was the purpose of the limitation, the circuit court cited no source for the statement that such was the reason for the limitation. If that were the purpose of the limitation, and we can conceive of no other more logical one, we have found no clear legislative policies or guidelines that would have authorized the Authority and the Governor to incorporate a five-mile limitation into the Certificate of Need Standards, a subject we now consider in greater detail.
It is appropriate to ask where are the Legislature’s public policy objectives and guidelines which provided authority to the Authority (or its predecessor agency) and the Governor to incorporate a five-mile limitation into the Certificate of Need Standards of the State Health Plan? This Court stated as recently as 2003 in State ex rel. West Virginia Citizens Action Group v. West Virginia Economic Development Grant Committee, 213 W.Va. 255, 580 S.E.2d 869 (2003), that
the Legislature must articulate with sufficient clarity its public policy objectives to permit the executive department to effectuate those policy objectives and to educate the public as the legislature’s intentions. We made clear’ in State ex rel. Mountaineer Park, Inc. v. Polan [190 W.Va. 276, 438 S.E.2d 308 (1993) ] that the Legislature cannot “grant ... unbridled authority in the exercise of the power conferred upon ... [an administrative agency].” Syl, Pt. 2, in part, 190 W.Va. at 277, 438 S.E.2d at 309.
Id. at 272, 580 S.E.2d at 886 (footnote omitted). In that same case, we recognized the concern raised by another court “that caprice would control the decision making process in the absence of clear [legislative] guidelines.” Id. We held therein “that when an enabling statute such as West Virginia Code § 29-22-18a(d)(3) extends discretion to the executive branch in contemplation of an expenditure of public funds with only a broad statement of legislative intent and insufficient legislative guidance for the execution of that legislative intent, the Legislature has wrongfully.delegated its powers to legislate in violation of article six, section one of the state constitution.” Id. at 272-3, 580 S.E.2d at 886-7.
The Legislature has empowered the Authority to adopt amendments or modifications of the Certificate of Need Standards with the Governor’s approval (W. Va.Code § 16-2D-5(1)(1) and (2)); to promulgate emergency rules to specify the health services which are subject to certificate of need review (W. Va.Code § 16-2D-3(b)(5)); to promulgate emergency rules to establish a review process for nonhealth related projects (W. Va.Code § 16-2D-7(u)) (1999); to adopt rules prescribing criteria in addition to those set forth in W. Va.Code § 16-2D-6 for certificate of need reviews (W. Va.Code § 16-2D-6(b)); and to promulgate certain additional rules, including emergency rules (W. Va. Code § 16-2D-8). What then were the public policy objectives and the guidelines provided to the Authority and the Governor by the Legislature that would have authorized the Authority and the Governor to incorporate the five-mile limitation into the Certificate of Need Standards? If there are no such objectives or guidelines or if they are insufficient to evidence a clear legislative intent, then in such case the Authority and the Governor have unbridled power, and may act with caprice and arbitrariness, in violation of Article VI, § 1 of the State Constitution.
The Court’s research indicates that the Legislature has not specified any clear public policy objectives or guidelines that would have authorized the five-mile limitation. If any such policies or guidelines can be said to exist, they are obscure in that they have to be ferreted out of the Legislature’s findings and declarations in W. Va.Code § 16-29B-1 (which have more to do with the purposes of Article 29B than with the purposes of Article 2D of Chapter 16 of the W. Va.Code) and in the legislative findings in W. Va.Code § 16-2D-1. Even so, the limitation appears to conflict with, rather than to be supported by, those findings and declarations.
In W. Va.Code § 16-29B-1 (1997), the Legislature identified a number of threats to the health and welfare of the citizens of the State, two of them being “a fragmented system of health care [and] lack of integration and coordination of health care services.” In order to alleviate those threats, the Legislature declared that “an entity of state government [presently, the Authority] must be giv en authority ... to assure that the state health plan, certificate of need program ... serve to promote cost containment, access to care, quality of services and prevention.” Id. The five-mile limitation may do more to promote, than to alleviate, “a fragmented system of health care,” and a “lack of integration and coordination of health care services.” In addition, the five-mile limitation may well be a hindrance, rather than a help, in promoting “access to care, quality of services and prevention.” In any case, the Authority ought not be bridled, without clear legislative-permitting guidelines, by such a self-imposed arbitrary limitation as it goes about implementing its statutoiy mission, including its consideration of statutoiy criteria for certificate of need reviews.
In W. Va.Code § 16-2D-1 (1977), the Legislature declared it “to be the public policy of this State:
(1) That the offering or development of all new institutional health services shall be accomplished in a manner which is orderly, economical and consistent with the effective development of necessary and adequate means of providing for the institutional health services of the people of this state and to avoid unnecessary duplication of institutional health services, and to contain or reduce increases in the cost of delivering institutional health services.
(2) That the general welfare and protection of the lives, health and property of the people of this state require that the type, level and quality of care, the feasibility of the providing such care and other criteria as provided for in this article or by the state health planning and development agency pursuant to provisions of this article, needed in new institutional health services within this State be subject to review and evaluation before any new institutional health services are offered or developed in order that appropriate and needed institutional health services are made available for persons in the area to be served.
The five-mile limitation may well preclude the accomplishment of new institutional health services “in a manner which is orderly, economical and consistent with the effective development of necessary and adequate means of providing for the institutional health services of the people of this state.” The limitation may also not permit the Authority to “avoid unnecessary duplication of institutional health services, and to contain or reduce increases in the cost of delivering institutional health services.” In addition, the limitation may also restrict the Authority in how it can best provide for “the general welfare and protection of the lives [and] health of the people of this State,” and make “available [new needed institutional health services] for persons in the area to be served.”
All in all, the five-mile limitation bespeaks capriciousness and arbitrariness. That characterization is further supported by the facts (1) that within less than six years after the Authority (or its predecessor agency) and the Governor imposed the five-mile limitation, they extended it to fifteen miles and allowed a replacement hospital to be constructed within the same county as the existing facility regardless of distance; and (2) that the Authority in issuing a certificate of need to UHC and WVUHS ruled that eight miles “is not materially inconsistent with [five miles].” The Authority has thus itself acknowledged the arbitrariness of the restriction by greatly expanding its radius in 2002 and by giving the limitation an elasticity of its choosing in a specific case.
Accordingly, we hold that Section I(W) of the Certificate of Need Standards of the State Health Plan for the Renovation-Replacement of Acute Care Facilities and Services approved on January 7, 1997 is invalid insofar as it requires the replacement facility be within five miles of the original facility. The five mile limitation is invalid because it (1) conflicts with W. Va.Code § 16-2D-6(d) (1999); (2) is a criterion not included within the criteria for certificate of need reviews set forth in W. Va.Code § 16-2D-6(a) (1999) or in 65 C.S.R. § 7-12; (3) was promulgated by the executive department of state government without clear legislative public policy objectives and guidelines; (4) precludes a balanced consideration of the statutory criteria for certificate of need reviews as set forth in W. Va.Code § 16-2D-6 (1999); (5) conflicts with, rather than supports, the findings and declarations of the Legislature set forth in W. Va.Code § 16-29B-1 (1997) and W. Va.Code § 16-2D-1 (1977); and (6) is arbitrary and capricious. Since we now invalidate the five-mile limitation in the Certificate of Need Standards of the State Health Plan, it is not necessary for us to consider whether the site of UHC’s and WVUHS’ proposed replacement hospital is “consistent with [ that limitation in] the state health plan” as required by W. Va.Code § 16-2D-9(b)(2).
IV.
CONCLUSION
The circuit court’s Opinion/Order dated November 24, 2004 is reversed and this case is remanded for issuance of a certificate of need consistent with the West Virginia Health Care Authority’s decision of October 24, 2003.
Reversed and remanded with directions.
.Appellants United Hospital Center, Inc. and West Virginia United Health System, Inc. jointly, and Appellant West Virginia Health Care Authority, Inc. separately, filed petitions for appeal (Nos. 050368 and 050369) with this Court from an Opinion/Order of the Circuit Court of Marion County, West Virginia, entered on November 24, 2004, in Civil Action No. 04-P-63. In a Stipulation filed with the Court on March 14, 2005, the three Appellants and the Respondent, Fairmont General Hospital, Inc., agreed and stipulated, pursuant to Rule 3(d) of the West Virginia Rules of Appellant Procedure, that the proceedings in connection with the petitions of appeal be consolidated. The petitions for appeal were granted on May 9, 2005, and consolidated. The joint petitions for appeal of United Hospital Center, Inc. and West Virginia United Health System, Inc. were assigned Case No. 32669 and the separate petition for appeal of the West Virginia Health Care Authority was assigned Case No. 32670.
. UHC, a non-profit corporation, owns and operates a 375-bed regional referral hospital in Clarksburg, West Virginia.
. WVUHS is a non-profit corporation which serves as the sole member of UHC and West Virginia University Hospitals, Inc.
. The Authority was formally known as the West Virginia Health Care Cost Review Authority. The Legislature changed its name in 1997. See W. Va.Code § 16-29B-5 (2001). The Authority, an autonomous division of the Department of Health and Human Resources, administers the certificate of need program as provided in W. Va.Code § 16-2D-1, et seq. See W. Va.Code § 16-29B-5 and W. Va.Code § 16-2D-5(a) (1999).
. The agency of the State designated by the Governor to review final decisions of the Authority. See W. Va.Code § 16-2D-10(a) (1999).
. A "certificate of need" is defined in the Authority's Certificate of Need Rule, 65 C.S.R. 7.2.6, as meaning “a document issued by the [West Virginia Health Care Authority] which indicates that a proposed new institutional health service is in compliance with the intent, purposes and provisions of W. Va.Code § 16-2D-1 et seq., and that a need exists for the proposed new institutional health service.”
. The phrase "consistent with the state health plan” is found in at least three other provisions of Article 2D of Chapter 16 of the W. Va.Code: In W. Va.Code § 16-2D-5(d) and (e) and in W. Va.Code § 16 — 2D—9(f)(I). The phrase also appears in W. Va.Code § 9-5-19(d)(1) (2003). "State health plan” is defined in W. Va.Code § 16-2D-2(ee) (1999) as meaning "the document approved by the governor after preparation by the former statewide health coordinating council, or that document as approved by the governor after amendment by the former health care plan-' ning council or the state agency.” The “document" is neither defined nor described. The current state agency is known as the "West Virginia Health Care Authority.” W. Va.Code § 16-29B-5(1997).
.The Authority’s Certificate of Need Rule is not the same as the Certificate of Need Standards. The Certificate of Need Rule is a legislative rule promulgated pursuant to Chapter 29A of the W. Va.Code. See W. Va.Code § 16-2D-8 (1999). This rule was promulgated by the Authority some years before its consideration of the proposed UHC replacement hospital in this case. Citing W. Va.Code § 16-2D-3(b)(5), 7(u) and 8(c) (1999), all relating to emergency rules, as its statutory authority, this Certificate of Need Rule was established to implement the provisions of the Certificate of Need program found in W. Va.Code § 16-2D-1 et seq., and became effective as of July 1, 2000. The Certificate of Need Standards, on the other hand, are a part of the State Health Plan and exist by virtue of executive department action alone. The procedure for amending or modifying the Certificate of Need Standards is set forth in W. Va.Code § 16-2D-5(1). That procedure requires the Authority to "file with the secretary of state, for publication in the state register, a notice of proposed action, including the text of all proposed amendments and modifications [of the Certificate of Need Standards], and a date, time and place for receipt of general public comment."
. Actually, “in the same county or within fifteen (15) miles of the original facility.”
. The applicants paid a fee of $265,174 to file it's certificate of need application. A fee in like amount would have been required had the applicants refiled their application after October 9, 2002, when the five-mile limitation was replaced with “in the same county or within the fifteen (15) miles of the original facility."
. The quoted provisions of the Certificate of Need Standards were approved by the Governor on January 7, 1997, and were in effect when UHC’s and WVUHS’s application for a certificate of need was declared complete by the West Virginia Health Care Authority on August 2, 2002. Some two months after that date, specifically on October 9, 1992, the Governor approved revisions in the quoted provisions, which are set forth in Section I(EE) of the Certificate of Need Standards and which, in relevant part, declare that "All beds in the replacement facility must be located in the same county or within fifteen (15) miles of the original facility.” The Appellants and the Appellee agree that Section I(W] of the Certificate of Need Standards that was approved by the Governor on January 7, 1997, and that was in effect on August 2, 2002, rather than Section I(EE) of those Standards that was approved by the Governor on October 9, 2002, controlled the disposition of the application for the certificate of need and control the outcome of this appeal.
. W. Va.Code § 29A-5-4(e) (1998) provides that "the Court may consider and decide errors which are not assigned or argued.” De Novo review on appeal means that the result and not the language used in or reasoning of the lower, tribunal’s decision is at issue. A reviewing court may affirm a lower tribunal’s decision on any grounds. See GTE South, Inc. v. Morrison, 199 F.3d 733, 742 (4th Cir., 1999) ("if the administrative order reaches the correct result and can be sustained as a matter of law, we may affirm on the legal ground even though the agency relied on a different rationale”).
. Even though they accepted its validity, the Court would have been helped in its understanding of the limitation had the parties, particularly the Authority, informed the Court as to (1) whether the original Certificate of Need Standards contained a mileage limitation on the site of a replacement hospital; (2) whether there was a mileage limitation amended into the Certificate of Need Standards between the original Standards and January 6, 1997; (3) the reason the five-mile limitation was amended into the Certificate of Need Standards effective with the Governor’s approval thereof on January 7, 1997; (4) whether the five-mile limitation was suggested by the Governor or originated with the Authority or its predecessor agency; (5) what was the change in circumstances, if any, or reason that called for modification and enlargement of the mileage limitation brought about by the October 2002 amendment of the Certificate of Need Standards and whether the modification was suggested by the Governor or originated with the Authority or its predecessor agency; (6) why there is a geographic limitation on the site of a replacement hospital but not on the site of a new hospital that does not replace an existing one; and (7) the source of statutory authority for Sections I(W) and the later Section I(EE) of the Certificate of Need Standards for the Renovation-Replacement of Acute Care Facilities and Services.
. Subsections 12.1, 12.1.a. and 12.1.1 .b. thereof are copied verbatim from W. Va.Code § 16-2D-9(b)(1) and (2). Subsections 12.2, 12.2.a. through 12.2.e. thereof are copied substantially verbatim from W. Va.Code § 16-2D6(e) (1999); Subsections 12.3, 12.3.a. through 12.3.U. thereof are copied substantially verbatim from W. Va. Code § 16-2D-6(a)(1) through (21); Subsection 12.3.V. thereof is copied verbatim from W. Va. Code § 16-2D-6(a)(23); Subsection 12.3.w. thereof is adapted from W. Va.Code § 16-2D-6(a)(11); Subsection 12.4. thereof is copied substantially verbatim from W. Va.Code § 16-2D- 6(f); and Subsection 12.5. thereof is copied substantially verbatim from W. Va.Code § 16-2D-6(g).
. Admittedly, the provisions of W. Va.Code § 16-29B-1 surveyed in this paragraph of the text did not become effective until ninety days after April 12, 1997, the date of passage of Ch. 102, Acts, Regular Session, 199?. That would have been some six months after January 7, 1997, the date the Governor approved the five-mile limitation. As of that date, the Legislature’s findings and limitations contained in W. Va.Code § 16-29B-1 were even more limited and related exclusively to the containment of cost of acute care hospital services. | [
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PER CURIAM.
Thrasher Engineering, Inc. (hereinafter “Thrasher”), seeks a writ of prohibition against the Circuit Court of Marion County, in an attempt to prevent the lower court’s enforcement of a February 28, 2005, order denying Thrasher’s motion for leave to file a third party complaint against the West Virginia Department of Environmental Protection, the West Virginia Division of Natural Resources, and the West Virginia Public Service Commission (hereinafter collectively referenced as “State agencies”) for inchoate contribution. Based upon this Court’s review of the matter presented and applicable precedent, this Court denies the requested writ of prohibition.
I. Factual and Procedural History
On September 9, 2003, the Greater Marion County Public Service District filed a complaint against Thrasher as the designer of a vacuum sewage collection system. On April 9, 2004, property owners affected by the alleged defective sewage collection system filed a complaint against Thrasher, and the lower court consolidated those actions. As a defense to the actions against it, Thrasher asserted that illegally excessive ground water, called I/I (inflow and infiltration), was permitted by the Greater Marion County Public Service District and caused the problems which resulted in waste water back-up in yards and residences.
On June 4, 2004, Thrasher served a third-party complaint on the three State agencies, seeldng to implead them due to their approval of the design of the collection system. On October 6, 2004, the lower court granted the State agencies’ motion to strike Thrasher’s third-party complaint, based upon Thrasher’s failure to provide notice to the State agencies of the claims against them. The lower court also explained that impleading the State agencies would unduly complicate the litigation “by involving separate and distinct issues, creating] significant confusion, and unduly delaying] its ultimate resolution.” The lower court also noted that the “merits of the complaints against [the State agencies] are, at best, questionable.” The lower court emphasized that Thrasher’s allegations were “at best, dubious and unpersuasive.”
On December 6, 2004, Thrasher complied with the notice requirements of Rule 14 of the West Virginia Rules of Civil Procedure and filed another third-party complaint against the State agencies. A hearing was held in the lower court on February 22, 2005, regarding Thrasher’s attempt to implead the State agencies. The State agencies argued that they would be unduly prejudiced by impleader since depositions of key factual witnesses had already been taken without the participation of the State agencies. They contended that the depositions would have to be retaken, at considerable expense and causing additional delay. During the February 22, 2005, hearing, the lower court explained its rationale for denying impleader of the State agencies on the record, as follows:
I agree that the addition of the three (3) State agencies as third-party defendants would unduly complicate the litigation at hand and would cause an even greater delay in this case. In addition, it has great potential to confuse the jury with additional and diverse issues, which could include but are not limited to State agency regulations, communications from State agencies, publication by these State agencies, certification procedures and State policies. The permission to interplead a third-party pursuant to Rule 14A of the West Virginia Rules of Criminal Procedtvre (sic) is placed within the sound discretion of the trial court, and with that latitude I feel that the addition of these three (3) State agencies would significantly prejudice the certified class and the Greater Marion County Public Service Commission.
The order denying Thrasher’s request to im-plead the State agencies was entered on February 28, 2005.
II. Standard of Review
When examining a request for a writ of prohibition, this Court observes the following standard of review:
“ ‘A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va.Code, 53-1-1.’ Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).” Syl. Pt. 2, State ex rel. Kees v. Sanders, 192 W.Va. 602, 453 S.E.2d 436 (1994).
Syl. Pt. 1, State ex rel. United Hospital Center, Inc. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997). This Court has also explained that a writ of prohibition “lies as a matter of right whenever the inferior court (a) has not jurisdiction or (b) has jurisdiction but exceeds its legitimate powers and it matters not if the aggrieved party has some other remedy adequate or inadequate.” State ex rel. Valley Distributors, Inc. v. Oakley, 153 W.Va. 94, 99, 168 S.E.2d 532, 535 (1969).
This standard of review was augmented in syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), as follows:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
“In determining the third factor, the existence of clear error as a matter of law, we will employ a de novo standard of review, as in matters in which purely legal issues are at issue.” State ex rel. Gessler v. Mazzone, 212 W.Va. 368, 372, 572 S.E.2d 891, 895 (2002).
This Court must also acknowledge that “[t]he rationale behind a writ of prohibition is that by issuing certain orders the trial court has exceeded its jurisdiction, thus making prohibition appropriate.” State ex rel. Allen v. Bedell, 193 W.Va. 32, 36, 454 S.E.2d 77, 81 (1994) (Cleckley, J., concurring). As such, “writs of prohibition ... provide a drastic remedy to be invoked only in extraordinary situations.” 193 W.Va. at 37, 454 S.E.2d at 82. More specifically,
this Court will use prohibition ... 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, in part, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).
III. Discussion
Rule 14(a) of the West Virginia Rules of Civil Procedure provides, in perti nent part, that “[a]t any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiffs claim against the third-party plaintiff.” This Court has consistently held that the determination of whether to permit the filing of a third-party complaint is within the sound discretion of the trial court.
The provisions for impleader under Rule 14(a), West Virginia Rules of Civil Procedure, and separate trials under Rule 42(c), West Virginia Rules of Civil Procedure, are within the sound discretion of the trial court and where the third party procedure may create confusion or cause complicated litigation involving separate and distinct issues the trial court does not abuse its discretion in refusing to allow impleader under third party practice.
Syl. Pt. 5, Bluefield Sash & Door Co., Inc. v. Corte Constr. Co., 158 W.Va. 802, 216 S.E.2d 216 (1975), overruled on other grounds by Haynes v. City of Nitro, 161 W.Va. 230, 240 S.E.2d 544 (1977)., Moreover, in syllabus point three of Bluefield Sash, this Court stated that “[i]mpleader under Rule 14(a), West Virginia Rules of Civil Procedure, should not be allowed if there is a possibility of prejudice to the original plaintiff or the third party defendant.”
The question placed squarely before this Court is whether the lower court abused its discretion in denying Thrasher’s motion to file a third-party complaint against the State agencies. The State agencies contend that the lower court was correct in finding a possibility of prejudice to the original plaintiffs and the State agencies and in denying Thrasher’s motion. The Greater Marion County Public Service District and the plaintiffs involved in the class action concur with the contentions of the State agencies and the determination of the lower court. These entities maintain that permitting inclusion of the State agencies at this juncture would cause undue delay, would prejudice the plaintiffs and the State agencies, and would unduly complicate the litigation. Further, the State agencies emphasize the dubious and unpersuasive nature of Thrasher’s allegations against them. The State agencies contend that they had no involvement with the design, construction, or implementation of the sewage collection system in question and therefore are inappropriate participants in the litigation.
Regarding the issue of potential immunity inquiries, it appears to this Court that the inclusion of the State agencies in the litigation would necessitate the investigation of immunity issues, arising under the doctrine of sovereign immunity and the common law. In the February 22, 2005, hearing, the lower court identified the immunity issue as one of the myriad of problems potentially created by the inclusion of the State agencies as third-party defendants and set forth reasoning on the record as follows:
Although I recognize that Thrasher has complied with notice provisions and that Thrasher has a right to bring this claim despite constitutional immunity pursuant to West Virginia — pursuant to the Pittsburgh Elevator series of cases, I believe that the general principles of avoiding an undue complication of the issues in this ease and undue delay and resolution of the case as it relates to the plaintiffs, and the waste of State resources requiring the State institutions to participate far outweighs the defendants right to file a third-party complaint at this time.
The entities supporting the lower court’s order contend that the immunity arguments will create additional confusion and delay, requiring the lower court to resolve issues of immunity based upon this Court’s findings in syllabus point six of Parkulo v. West Virginia Board of Probation and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996) (“Unless the applicable insurance policy oth erwise expressly provides, a State agency or instrumentality, as an entity, is immune under common-law principles from tort liability ... for acts or omissions in the exercise of a legislative or judicial function and for the exercise of an administrative function involving the determination of fundamental governmental policy”).
An additional concern raised by the State agencies is Thrasher’s delay in bringing the motion to implead them. The agencies contend that Thrasher waited approximately fifteen months to file a proper third-party pleading without offering an excuse for such delay. In the interim, seventeen individuals had been deposed without the State agencies’ participation. Significant further discovery would have to be accomplished if the State agencies were to become additional defendants at this point in the litigation. This Court addressed unreasonable delay of this nature in Shamblin v. Nationwide Mutual Insurance Co., 183 W.Va. 585, 396 S.E.2d 766 (1990), and found “no abuse of the trial eourt’s discretion in its decision to deny appellant’s motion for a third-party action.” 183 W.Va. at 597, 396 S.E.2d at 778. The Shamblin Court reasoned that “[t]he appellant’s unexplained delay in filing the motion until shortly prior to trial would have prejudiced the plaintiff had it been granted.” Id.
In the case sub judice, the agencies contend that delay of the nature dealt with in Shamblin, coupled with the complicated legal issues to be infused into the litigation and the absence of a credible legal claim against the agencies, should persuade this Court that the lower court did not abuse its discretion in denying Thrasher’s attempt to implead the State agencies.
Based upon this Court’s review of the particular facts of this ease, we find that granting the impleader motion would have resulted in further significant delay, prejudice, and confusion of the issues in litigation. Thrasher did not immediately file a proper Rule 14 motion and thus permitted the litigation preparation to continue without the inclusion of the State agencies. More importantly, the inclusion of the agencies would create further delay and complication of the litigation issues, resulting in prejudice to the original parties. New theories, particularly surrounding immunity arguments, would be introduced into the litigation. The lower court demonstrated a proficient grasp of the diverse issues that would be infused into the litigation if the State agencies were joined. This Court finds no clear error as a matter of law. The issue of Rule 14(a) impleader was within the sound discretion of the lower court, and that discretion was not abused.
Writ Denied.
. Other defendants included Green River Group, LLC, and AIRVAC, Inc., involved in the construction of the sewage system.
. " 'In general, an abuse of discretion occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed but the circuit court makes a serious mistake in weighing them.’" State v. Hedrick, 204 W.Va. 547, 553, 514 S.E.2d 397, 403 (1999) (quoting Gentry v. Mangum, 195 W.Va. 512, 520 n. 6, 466 S.E.2d 171, 179 n. 6 (1995)).
. The briefs submitted on behalf of the State agencies do not specifically address the issue of whether insurance coverage exists which might alter the immunity status of the agencies. | [
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Justice MAYNARD delivered the Opinion of the Court.
MAYNARD, Justice.
Appellant, Robert Adam Parsons, appeals the July 19, 2004, order of the Circuit Court of Ohio County that denied Appellant’s petition to regain the ability to possess a firearm based on the court’s finding that the grant of such relief would violate federal law. For the reasons that follow, we affirm the circuit court’s order.
I.
FACTS
Appellant was indicted for “wanton endangerment involving a firearm” after he allegedly pointed a handgun at his girlfriend, Kristin Conrad, and cocked the gun’s hammer; /‘domestic battery” for allegedly causing physical harm to his girlfriend by holding her by both arms and shoving her onto a couch; and “battery” on a friend of Ms. Conrad’s, Judith Thompson. At the time of the offense giving rise to these indictments, Appellant was a police officer with the Bethlehem, West Virginia Police Department and a part-time police officer with the town of Yorkville, Ohio. Appellant entered a nolo contendere plea to domestic assault and was sentenced to six months probation. As a specific term of Appellant’s probation, and in accordance with W.Va.Code § 61-7-7(a)(8) (2004), Appellant was not permitted to “use or possess any firearms or lethal weapons.”
After Appellant’s probationary period expired, he filed a petition pursuant to W.Va. Code § 61-7-7(c) in the Circuit Court of Ohio County to regain the ability to possess a firearm. Subsequent to a hearing on the matter, the circuit court dismissed Appellant’s petition after finding that the grant of the relief requested would violate federal law. Appellant now appeals this order.
II.
STANDARD OF REVIEW
Because this case involves the interpretation of a federal statute, this Court’s standard of review is de novo. See Syllabus Point 1, Chrystal R.M. v. Charlie A. L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court is clearly ... involving an interpretation of a statute, we apply a de novo standard of review”).
III.
DISCUSSION
The sole issue before us is whether the circuit court erred in dismissing Appellant’s petition to regain his ability to possess a firearm. We find that it did not. As noted above, Appellant’s petition was filed pursuant to W.Va.Code § 61-7-7(c) which provides:
Any person prohibited from possessing a firearm by the provisions of subsection (a) of this section may petition the circuit court of the county in which he or she resides to regain the ability to possess a firearm and if the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibility concomitant with the possession of a firearm, the court may enter an order allowing the person to possess a firearm if such possession would not violate any federal law.
The circuit court denied the relief sought by Appellant after finding that Appellant’s possession of a firearm would violate the Gun Control Act of 1968 which provides that a person convicted of a misdemeanor crime of domestic violence is prohibited from, inter alia, possessing a firearm. Specifically, according to 18 U.S.C. § 922(g)(9),
It shall be unlawful for any person -
who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
The circuit court concluded that Appellant’s conviction of domestic assault constitutes a conviction of a misdemeanor crime of domestic violence under the federal statute so that Appellant is now prohibited from possessing a firearm.
Appellant challenges the circuit court’s conclusion on several grounds. First, Appel lant cites the language of 18 U.S.C. § 921(a)(33)(B)(ii), which states:
A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil lights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
According to Appellant, the restoration exception in the above provision applies to him so that restoration of his civil rights would only violate federal law if the restoration order specifically denied firearm or ammunition possession. We reject this argument.
By its plain terms, 18 U.S.C. § 921 (a)(33)(B)(ii) provides that a person shall not be considered to be convicted of such an offense “if the conviction ... is an offense for which the person has ... had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).” Federal case law indicates that a person who has not lost his or her civil rights cannot have them “restored” for the purpose of 18 U.S.C. § 921 (a) (33) (B) (ii). In United States v. Jennings, 323 F.3d 263 (4th Cir.2003), cert. denied, 540 U.S. 1005, 124 S.Ct. 531, 157 L.Ed.2d 412 (2003), the defendant was convicted in the United States District Court for the District of South Carolina of possessing a firearm after a conviction in state court of a misdemeanor crime of domestic violence. Because the defendant was not incarcerated for his misdemeanor domestic violence conviction, he lost none of his civil rights under South Carolina law. The defendant appealed the firearm possession conviction. The Fourth Circuit framed the issue as “whether a person convicted of a [misdemeanor crime of domestic violence] but never stripped of his civil rights under state law is thereafter subject to prosecution under 18 U.S.C. § 922(g)(9).” Jennings, 323 F.3d at 266. The court noted that it was the defendant’s contention that he could not be convicted of violating 18 U.S.C. § 922(g)(9) because, regarding his domestic violence conviction, his civil rights, even though they had never been taken away, were nevertheless “restored” under 18 U.S.C. § 921(a)(33)(B)(ii). The court gave short shrift to this argument, reasoning as follows:
As the court noted in McGrath v. United States, 60 F.3d 1005 (2d Cir.1995) [cert. denied, 516 U.S. 1121, 116 S.Ct. 929, 133 L.Ed.2d 857 (1996) ], the “word ‘restore’ means ‘to give back (as something lost or taken away).’ ” Id. at 1007 (quoting Webster’s Third New International Dictionary 1936 (1976)). And, the “ ‘restoration’ of a thing never lost or diminished is a definitional impossibility.” McGrath, 60 F.3d at 1007. Because Jennings’ civil rights were never taken away, it is impossible for those civil rights to have been “restored.”
Jennings, 323 F.3d at 267.
The Jennings court then addressed the defendant’s argument that it is absurd to treat those misdemeanants who never lost their civil rights more harshly than those misdemeanants who temporarily lost their civil rights while incarcerated and had them restored upon release from incarceration. In answering the question whether a literal application of the word “restored” to the defendant produces' an absurd result, the court carefully reviewed case law from other federal circuit courts and found the decisions reached by four of these courts, McGrath, supra, United States v. Smith, 171 F.3d 617 (8th Cir.1999), United States v. Hancock, 231 F.3d 557 (9th Cir.2000), cert. denied, 532 U.S. 989, 121 S.Ct. 1641, 149 L.Ed.2d 500 (2001), and United States v. Barnes, 295 F.3d 1354 (D.C.Cir.2002), to be persuasive. Thus, the court concluded that,
the literal application of the word “restored” as contained in 18 U.S.C. § 921(a)(33)(B)(ii) to Jennings, i.e., requiring him to demonstrate that his civil rights were lost and restored, does not produce an absurd result. First, as recognized by the McGrath, Smith, Hancock, and Banes courts, Congress knew when it enacted the restoration exceptions of 18 U.S.C. §§ 921(a)(20) and 921(a)(33)(B)(ii) that the several states had drastically different laws governing the restoration of civil rights and that drastically different, perhaps anomalous, results were bound to occur. However, Congress intentionally keyed the restoration of civil rights to state law so it follows that Congress consciously made the decision to accept anomalous results — like- a result that favors incarcerated midemeanants over misde-meanants that were not incarcerated. Second, Jennings has other avenues he can pursue to fall within the restoration exception of 18 U.S.C. § 921 (a)(33)(B)(ii); namely, pardon and expungement. Third, to accept Jennings’ position would allow the restoration exception of 18 U.S.C. § 921(a)(33)(B)(ii) to swallow the rule. Under Jennings’ formulation, all persons who are convicted of a [misdemeanor crime of domestic violence] and who do not lose their civil rights would be permitted to possess a firearm. Such a construction would allow almost all persons convicted of a [misdemeanor crime of domestic violence] to possess a firearm, thereby substantially undercutting the federal policy aimed at trying to take firearms out of the hands of persons convicted of a [misdemeanor crime of domestic violence].
Jennings, 323 F.3d at 274 (citations omitted).
We concur with the reasoning in Jennings and the cases on which it relies. Therefore, we hold that a person who has been convicted of a misdemeanor crime of domestic violence and who does not lose his or her civil rights as a result of the conviction cannot have his or her civil rights “restored” for the purpose of 18 U.S.C. § 921(a)(33)(B)(ii) so as to fall within that provision’s restoration exception to the prohibition on firearm possession in 18 U.S.C. § 922(g)(9).
Appellant further avers that his right to possess a firearm is a “civil right” which was taken away upon his domestic assault conviction and is therefore a right that may be restored. We reject this contention. Generally, federal courts have held that the “civil rights” in question under 18 U.S.C. § 921(a)(33)(B)(ii) “are those which most states extend by virtue of citizenship within their borders: (i) the right to vote; (ii) the right to hold elective office; and (iii) the right to sit on a jury.” McGrath, supra, at 1007 (citation omitted). The United States Court of Appeals for the Fourth Circuit has indicated that “[i]n determining whether a defendant’s civil rights have been restored, we look to the whole of state law to determine whether the state has returned to the defendant the rights to vote, to hold public office, and to serve on a jury.” United States v. King, 119 F.3d 290, 293 (4th Cir.1997) (internal quotation marks and citations omitted). Accordingly, we hold that the tern “civil rights” in 921(a)(33)(B)(ii), which provides several exceptions to the prohibition in 922 U.S.C. § (g)(9) on the right of a person convicted of a misdemeanor crime of domestic violence to possess a firearm, generally refers to the rights to vote, hold elective office, and sit on a jury.
Under West Virginia law, Appellant’s misdemeanor conviction of domestic assault did not cause him to lose his civil rights to vote, hold elective office, or sit on a jury. Be cause Appellant did not lose these civil rights, he cannot have them restored within the meaning of 18 U.S.C. § 921 (a)(33)(B)(ii). Consequently, the restoration exception in 18 U.S.C. § 921 (a)(33)(B)(ii) is not applicable to Appellant.
Appellant next contends that the Legislature did not intend to disqualify domestic assault misdemeanants from ever possessing a firearm. Again, we disagree. West Virginia Code § 61-7-7(c) clearly prohibits the restoration of a disqualified person’s ability to possess a firearm “if such possession would ... violate any federal law.” “It is a settled principle of statutory construction that courts presume the Legislature drafts and passes statutes with full knowledge of existing law.” In re Sorsby, 210 W.Va. 708, 714, 559 S.E.2d 45, 51 (2001) (citations omitted). Section 922(g)(9) was added to the Gun Control Act of 1968 in 1996 and, despite the fact that W.Va.Code § 61-7-7 has been amended twice since that time, the Legislature has not seen fit to amend the language of W.Va.Code § 61-7-7(c) which makes the restoration of a disqualified person’s right to possess a firearm contingent on such possession not violating any federal law. Further, it is notable that when the Legislature amended W.Va.Code § 61-7-7 in 2000, it added language specifically disqualifying persons convicted of domestic violence from possessing a firearm. Therefore, we believe that the Legislature has indicated its intent that persons convicted of domestic violence should be disqualified from possessing firearms.
Finally, Appellant asserts that elements of a misdemeanor crime of domestic violence under the federal statute are not the same as the elements of the crime of domestic assault under our State law. According to 18 U.S.C. § 921(a)(33)(A)(i) and (ii),
(33)(A) Except as provided in subpara-graph (C), the term “misdemeanor crime of domestic violence” means an offense that —
(i) is a misdemeanor under Federal or State law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
As noted above, Appellant was convicted of domestic assault the elements of which are set forth in W.Va.Code § 61-2-28(b) (2004) as follows:
Any person who unlawfully attempts to commit a violent injury against his or her family or household member or unlawfully commits an act which places his or her family or household member in reasonable apprehension of immediately receiving a violent injury, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than six months, or fined not more than one hundred dollars, or both.
“Family or household members” is defined, in relevant part, in W.Va.Code § 48-27-204 (2002), as persons who:
(1) Are or were married to each other;
(2) Are or were living together as spouses;
(3) Are or were sexual or intimate partners;
(4) Are or were dating: Provided, That a casual acquaintance or ordinary fraternization between persons in a business or social context does not establish a dating relationship;
(5) Are or were residing together in the same household;
(6) Have a child in common regardless of whether they have ever married or lived together!.]
Although Appellant’s argument on this issue is summary and vague, he apparently contends that the definition of “family or household members” in W.Va.Code § 48-27-204 is broader than the list of domestic relationships in 18 U.S.C. § 921(a)(33)(A)(ii).
Instructive on this issue is the ease of United States v. Belless, 338 F.3d 1063 (9th Cir.2003). In Belless, the defendant pleaded guilty to committing assault and battery on his wife. However, the Wyoming assault and battery statute under which he was charged did not include as an element that the victim share one of the domestic relationships specified in 18 U.S.C. § 921(a)(S3)(A)(ii). It said only that “A person is guilty of battery if he unlawfully touches another in a rude, insolent or angry manner or intentionally, knowingly or recklessly causes bodily injury to another.” Belless, 338 F.3d at 1065 (footnote omitted). Thus, one who engaged in conduct prohibited by the statute was guilty of the crime whether the victim was a spouse or a perfect stranger. Several years later, the defendant was convicted of violating 18 U.S.C. § 922(g)(9) for possessing a firearm after having been convicted of a misdemean- or crime of domestic violence. The defendant challenged the conviction, inter alia, on the issue whether a domestic relationship must be an element of the predicate crime. The court concluded that,
The federal statute does not require that the misdemeanor statute charge a domestic relationship as an element. It requires only that the misdemeanor have been committed against a person who was in one of the specified domestic relationships. It is uncontested in this case that the victim named in the Wyoming citation, Kristen Belless, was Belless’s wife, but he could have been convicted of the crime even had he grabbed a perfect stranger by the arm and angrily shoved him against his car. We find no indication that Congress intended to exclude from the misdemeanors that may trigger 18 U.S.C. § 921(a)(33)(A)(ii) those crimes that are in fact committed against persons who have a domestic relationship specified in the statute, even if the triggering crime does not include such a relationship as an element. Our construction is consistent with the position taken by all seven of our sister circuits to have spoken to the issue.
Id., at 1066.
We adopt the reasoning of the Belless court and its sister courts and hold that a violation of 18 U.S.C. § 922(g)(9), which prohibits the possession of a firearm by one who has a prior misdemeanor conviction for domestic violence, does not require that the underlying statute include as an element of the offense a domestic relationship between the victim of the domestic violence and the misdemeanant. It requires only that the misdemeanor was committed against a person who is enumerated in one of the domestic relationships specified in 18 U.S.C. § 921(a)(33)(A)(ii). The question here, then, is whether the person against whom Appellant committed domestic assault was in one of the domestic relationships with Appellant specified in the federal statute.
Included in the record below is the criminal complaint against Appellant which indicates that Kristin Conrad, the victim of Appellant’s domestic assault, lived at the same address with Appellant at the time of the events that gave rise to Appellant’s domestic assault conviction. Several courts have concluded that a live-in girlfriend qualifies as a domestic' relationship under 18 U.S.C. § 921(a)(33)(A)(ii). See United States v. Shelton, 325 F.3d 553 (5th Cir.2003), cert. denied, 540 U.S. 916, 124 S.Ct. 305, 157 L.Ed.2d 210 (2003) (finding that live-in girlfriend of two months qualified as a domestic relationship under the statute); United States v. Denis, 297 F.3d 25 (1st Cir.2002) (affirming conviction under 18' U.S.C. § 922(g)(9) where victim of predicate misdemeanor assault charge was appellant’s live-in girlfriend at the time of the offense). At least one court has found that the fact that the victim was the misdemeanant’s girlfriend for several years satisfies the “similarly situated requirement” of § 921(a)(33)(A)(ii). See Eibler v. Dept. of Treasury, 311 F.Supp.2d 618 (N.D.Ohio 2004). We therefore believe that the record herein contains a sufficient factual basis for finding that the victim and Appellant met the domestic relationship requirement of § 921(a)(33)(A)(ii).
In summary, we find that Appellant committed a misdemeanor crime of domestic violence as defined in 18 U.S.C. § 921 (a) (3 3)(A) (ii) and is therefore prohibited from possessing a firearm under 18 U.S.C. § 922(g)(9). Because Appellant’s possession of a firearm would violate federal law, the circuit court properly dismissed Appellant’s petition to regain the ability to possess a firearm.
IV.
CONCLUSION
Accordingly, for the reasons set forth above, we affirm the July 19, 2004, order of the Circuit Court of Ohio County that dismissed Appellant’s petition to regain the ability to possess a firearm.
Affirmed.
. This Court has recognized that "[o]nce convicted, whether as a result of a plea of guilty, nolo contendere, or ... [trial], convictions stand on the same footing.” State v. Evans, 203 W.Va. 446, 450, 508 S.E.2d 606, 610 (1998), quoting United States v. Williams, 642 F.2d 136, 139 (5th Cir.1981).
. Appellant does not claim that his domestic assault conviction has been expunged, set aside, or is one for which he has been pardoned.
. The court in Jennings rejected the reasoning in two cases, United States v. Indelicato, 97 F.3d 627 (1st Cir.1996), cert. denied, 519 U.S. 1140, 117 S.Ct. 1013, 136 L.Ed.2d 890 (1997), and United States v. Wegrzyn, 305 F.3d 593 (6th Cir.2002), in which courts found that one who never loses his or her civil rights should not be treated differently than one who lost his or her civil rights and had them restored
. Article IV, § 1 of the Constitution of West Virginia and W.Va.Code § 3-1-3 (1986) provide that a person under conviction of treason, felony, or bribery shall not be permitted to vote. According to W.Va. Const., art. IV, § 4, only citizens entitled to vote (i.e., those who, inter alia, are not under conviction of treason, felony, or bribery) shall be elected to any state, county, or municipal office. West Virginia Code § 6-5-5 (1923) specifically indicates that "[n]o person convicted of treason, felony, or bribery in any election ... shall, while such conviction remains unreversed, be elected ... to any office[.]” Finally, W.Va. Code § 52-1-8 (1993) disqualifies a prospective juror from serving on a jury who has lost the right to vote because of a criminal conviction (for treason, felony, or bribery), or has been convicted of perjury, false swearing or other infamous offense. The term "infamous offense” has been interpreted as including felonies. See Syllabus Point 6, State v. Bongalis, 180 W.Va. 584, 378 S.E.2d 449 (1989) (holding that “[a] felony is an 'infamous crime' as it is punishable by imprisonment in the State penitentiary”).
. Citing in a footnote White v. Dept. of Justice, 328 F.3d 1361 (Fed.Cir.2003); United States v. Shelton, 325 F.3d 553 (5th Cir.2003); United States v. Kavoukian, 315 F.3d 139 (2d Cir.2002); United States v. Barnes, 295 F.3d 1354 (D.C.Cir.2002); United States v. Chavez, 204 F.3d 1305 (11th Cir.2000); United States v. Meade, 175 F.3d 215 (1st Cir.1999); United States v. Smith, 171 F.3d 617 (8th Cir.1999).
. The record designated by Appellant did not include the criminal complaint. However, by motion dated August 5, 2005, Appellee moved to supplement the record with inter alia, the three indictments against Appellant, the warrant for arrest, the criminal complainl, and the statement of Judith Thompson. This Court granted Appel-lee's motion. | [
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The Opinion of the Court was delivered PER CURIAM.
Justice STARCHER concurs and reserves the right to file a concurring opinion.
PER CURIAM.
Appellant, Appalachian Emergency Medical Services, Inc., appeals the October 19, 2004, order of the Circuit Court of Cabell County that affirmed the State Tax Commissioner’s ruling that Appalachian Emergency Medical Service’s Huntington property does not qualify for an exemption from the ad valorem property tax. After careful consideration of this matter, we reverse the circuit court.
I.
FACTS
Appellant Appalachian Emergency Medical Services, Inc. (hereafter “AEMS”) is a nonprofit corporation that was organized to assist emergency medical services in certain West Virginia counties. AEMS is exempt from paying federal income taxes pursuant to section 501(c)(3) of the Internal Revenue Code. In March 2000, AEMS purchased a building in Huntington and began leasing it to the West Virginia Emergency Medical Services Technical Support Network (“TSN”), a State-wide nonprofit organization that provides support services to county-level based emergency services organizations. TSN is funded through federal and State grants, but AEMS receives no such support.
AEMS financed the purchase of the property with a bank loan of $500,000.00 which is guaranteed by TSN. The initial interest rate on the 15-year loan was 9.25%, but that rate is adjusted annually. At the time of the February 5, 2003, circuit court hearing, the loan interest rate had declined to 5%. The original terms of the 15-year lease between AEMS and TSN provided that TSN would make monthly lease payments of $5,500.00. However, these payments had decreased to $5,100.00 as of the time of the 2003 hearing because AEMS had built up sufficient funds in its escrow account to cover future maintenance and repairs on its property.
The Cabell County Assessor claimed that AEMS’ property is subject to ad valorem property taxation which was disputed by AEMS. The parties brought the matter before the Appellee herein, the State Tax Commissioner, pursuant to W.Va.Code § 11-3-24a (1961). The Tax Commissioner subse quently ruled that AEMS’ property is not exempt from taxation. The Tax Commissioner found that because TSN paid a monthly lease payment of $5,500.00 and AEMS paid $5,100.00 per month in mortgage payments, AEMS was collecting “market rent” on its property. Based on W.Va.Code § 11-3-9(a)(12) (2005) which provides a tax exemption for property “used for charitable puiposes, and not held or leased out for profit,” the Tax Commissioner concluded that AEMS’ property, because it is leased out for a profit, is not tax exempt.
AEMS appealed the Tax Commissioner’s ruling to the Circuit Court of Cabell County. After a hearing on the matter, the circuit court affirmed the Tax Commissioner’s ruling. AEMS now appeals the circuit court’s decision.
II.
STANDARD OF REVIEW
We have defined the scope of appellate review of a circuit court order as follows:
In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Syllabus Point 2, Walker v. West Virginia Ethics Com’n, 201 W.Va. 108, 492 S.E.2d 167 (1997). With this standard in mind, we now consider the issue before us.
III.
DISCUSSION
AEMS asserts that its property should be exempt from paying ad valorem property taxes because it is a charitable nonprofit corporation pursuant to § 501(c)(3) of the Internal Revenue Code; TSN, also a charitable organization, uses the property for the charitable purpose of supporting EMS systems throughout the State; and the property is not being leased or held out for profit because the lease payment equals the mortgage payment.
The Tax Commissioner, on the other hand, avers that AEMS’ primary and immediate use of the property is as rental property, which is not an exempt use. Also, the Tax Commissioner disputes AEMS’ claim that it is not turning a profit. The Tax Commissioner found that AEMS’ initial mortgage rate of 9.25% had declined at the time of the hearing below to 5%, while the lease payment charged per month had not declined. Thus, AEMS has collected more in rent than is due under the mortgage. The Tax Commissioner also found that AEMS had continued to pay the same amount each month on the mortgage which permitted it to claim that the lease payment it received each month equaled its mortgage payment. According to the Tax Commissioner, however, the fact that AEMS’ actual monthly mortgage payment was in excess of what was due under the mortgage schedule indicated that AEMS was making a profit.
Our State Constitution provides that property used for “educational, literary, scientific, religious or charitable purposes” may by law be exempted from taxation. W.Va. Const., Art. X, Section 1. “The ... Constitution does not exempt property from taxation, but [it] empowers the legislature to create exemptions for certain types of property.” Wellsburg Unity Apts., Inc. v. County Com’n of Brooke Co., 202 W.Va. 283, 286, 503 S.E.2d 851, 854 (1998). In West Virginia Code § 11 — 3—9(a)(12) (2005), the Legislature provided an exemption from taxation for “[property used’for charitable purposes, and not held or leased out for profit.” This Court has held that “[u]nder section 1, art. 10, Const., the exemption of property from taxation depends on its use. To warrant such an exemption for a purpose there stated, the use must be primary and immediate, not secondary or remote.” Syllabus, State ex rel. Farr v. Martin, 105 W.Va. 600, 143 S.E. 356 (1928). We also have recognized that “[w]here a person claims an exemption from a law imposing a license or tax, such law is strictly construed against the person claiming the exemption.” Syllabus Point 2, State ex rel. Lambert v. Carman, 145 W.Va. 635, 116 S.E.2d 265 (1960).
The resolution of this case is governed by this Court’s holdings in Wellsburg Unity Apts., Inc. v. County Com’n of Brooke Co., supra. In Syllabus Point 2 of Wellsburg, we held that “[r]eal property that is used exclusively for charitable purposes and is not held or leased out for profit is exempt from ad valorem real property taxation. W.Va.Code § 11-3-9 (1990).” We further held in Syllabus Point 3 that,
In order for real property to be exempt from ad valorem property taxation, a two-prong test must be met: (1) the corporation or other entity must be deemed to be a charitable organization under 26 U.S.C. § 501(c)(3) or 501(c)(4) as is provided in 110 C.S.R. § 3-19.1; and (2) the property must be used exclusively for charitable purposes and must not be held or leased out for profit as is provided in W.Va.Code § 11-3-9.
We will now apply this rule to the facts before us.
First, we find that AEMS is deemed to be a charitable organization under § 501(c)(3) of the Internal Revenue Code. The evidence shows that AEMS is exempt from federal income taxes under § 501(c)(3). In Syllabus Point 1 of Wellsburg, supra, this Court held that “[w]hen a corporation is granted a tax exempt status under Section 501(e)(3) of the Internal Revenue Code of 1986, that corporation is deemed to be a charitable organization under 110 C.S.R. § 3-19.1.” Therefore, AEMS is deemed to be a charitable organization and meets the first prong of the test set forth in Wellsburg.
Next, under the second prong of Wellsburg’s two-prong test, we find that the property at issue is used exclusively for charitable proposes. The evidence shows that TSN is a charitable and nonprofit corporation under Internal Revenue Code § 501(c)(3), and that its purpose and mission is to provide a variety of support services to the State’s health care industry, including county-level emergency service organizations. The evidence further shows that, consistent with this mission, TSN uses the property at issue to house administrative offices, its Huntington field office, a conference room, a classroom, telecommunications operations, a storage area, and computer server rooms. According to 110 C.S.R. § 3-2.10,
The term “charity” means a gift to be applied consistently with the existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from dis-. ease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself if it is so described as to show that it is charitable. Any gift not inconsistent with existing laws which is promotive of science or tends to the education, enlightenment, benefit or amelioration of the condition of mankind or the diffusion of useful knowledge, or is for the public convenience is a charity.
We conclude that the property is used for charitable purposes in that TSN uses it to further its mission of assisting emergency services organizations to relieve human suffering.
Finally, having found that AEMS is a charitable organization under 26 U.S.C. § 501(c)(3), and that its property is used exclusively for charitable purposes, we must now determine whether AEMS leases out to TSN for profit. This is the issue upon which the Tax Commissioner and the circuit court decided this case below. As noted previously, the Tax Commissioner found that, because the amount that AEMS collected from TSN as a monthly lease payment exceeded AEMS’ mortgage payment, AEMS was collecting “market rent.” The circuit court agreed with the Tax Commissioner. We believe these findings to be in error.
The lease entered into between AEMS and TSN indicates that after the renovation phase of the property, a monthly rent payment was to be established which would be an amount at least equal to AEMS’ monthly mortgage payment. Subsequently, increases in rent payments would be only by mutual consent of the parties and would only be requested to defray AEMS’ expense in owning the building or to accelerate the reduction of amortized debt. Also, the lease contains a provision concerning AEMS’ application of the rent proceeds that provides:
Landlord covenants that it will apply rent payments received from Tenant solely to reduce its indebtedness to the Guaranty Bank & Trust Company or to other expenses directly related to the Landlord’s ownership of the Premises. On or before June 30th of each year', Landlord will apply at least 75% of the rent payments received in excess of its actual monthly mortgage payments directly to reducing principal of the mortgage and retain any remaining rent proceeds for payment of expenses related to the Landlord’s ownership of the Premises.
In addition, Dennis Nurkiewicz, TSN’s CEO, testified at the circuit court hearing that, at that time, both AEMS’ mortgage payment and TSN’s lease payment were $5,100.00 per month. Mr. Nurkiewicz explained that previously TSN was paying $5,500.00 per month in lease payments, but that AEMS decreased the lease payments to the same amount as the mortgage payments due to the fact that the escrow account for building maintenance had increased to a sufficient level.
In light of this evidence, this Court concludes that AEMS is not leasing out its property for a profit. Rather, the lease payments, either in whole or substantial part, are being used to make AEMS’ monthly mortgage payments. Further, any portion of the lease payment not used to make the mortgage payments is placed in escrow to pay for building maintenance or repair. Therefore, we find that the circuit court cleai-ly erred in its finding that AEMS is leasing its property for profit.
In sum, we find that AEMS is deemed a charitable organization under 26 U.S.C. § 501(c)(3); the property at issue is used exclusively for charitable purposes; and the property is not being leased out for profit. Accordingly, the property is exempt from ad valorem property taxation pursuant to W.Va.Code § 11-3-9(a)(12) and Syllabus Point 3 of Wellsburg.
IV.
CONCLUSION
For the reasons set forth above, we find that AEMS’ Huntington property is exempt from ad valorem property taxation, and we therefore reverse the October 19, 2004, order of the Circuit Court of Cabell County.
Reversed.
. Internal Revenue Code § 501(c)(3) provides in pertinent part that "Corporations ... organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes" are entitled to tax exemption.
. TSN is also designated as exempt from federal taxation under section 501(c)(3) of the Internal Revenue Code.
. According to W.Va.Code § ll-3-24a, in part:
At any time after property is returned for taxation and up to and including the time the property books are before the county court [county commission] for equalization and review, any taxpayer may apply to the assessor for information regarding the classification and taxability of his property. In case the taxpayer ... believes that such property is exempt or otherwise not subject to taxation, he shall file his objections in writing with the assessor. The assessor shall decide the ques tion by either sustaining the protest and making proper corrections, or by stating, in writing if requested, the reasons for his refusal. The assessor may, and if the taxpayer requests, the assessor shall, certify the question to the state tax commissioner in a statement sworn to by both parties, or if the parties are unable to agree, in separate sworn statements, giving a full description of the property and any other information which the tax commissioner may require.
. At the time the Tax Commissioner rendered its decision, the 1998 version of W.Va.Code § 11 — 3— 9 was in effect. However, the relevant language was not changed by the 2005 amendment. Thus, this Court will cite to the 2005 version.
. Rebecca Melton Craig was Tax Commissioner at the time of the February 28, 2002, ruling. Virgil T. Helton is the current Tax Commissioner.
. West Virginia Code § 1 l-3-24a provides that "either the assessor or the taxpayer may apply to the circuit court of the county for the review of the question of ... taxability].]”
. The Tax Commissioner appears to reason in its order that property that is leased, regardless of whether or not it makes a profit, cannot be tax exempt. For example, the Tax Commissioner frames the issue as "[w]hether real property owned by a 501(c)(3) organization and leased to another 501(c)(3) organization is exempt from ad valorem property taxation.” In addition, the Tax Commissioner states that,
When determining whether property is exempt, it is necessary to bear in mind that it is the use by the owner that determines whether exemption applies. The question then is whether Taxpayer is using the property for charitable purposes and not holding the property or leasing out the property for profit].]
The Tax Commissioner's analysis is incorrect. The dispositive question is whether the property is being leased by the charitable organization for profit, and not simply whether it is being leased.
Also, the Tax Commissioner based its ruling in part on the fact that TSN "appears to have a freely assignable lease.” However, the facts before this Court are that TSN used the property for charitable purposes and did not assign the lease.
Finally, the Tax Commissioner avers that although TSN uses the property in furtherance of its charitable purpose, TSN is neither the property owner nor the taxpayer, and thus TSN’s use of the property as the lessee is remote and secondary to AEMS’ ownership. We disagree with this reasoning. The second prong of the test this Court set forth in Wellsburg Unity Apts., Inc. v. County Com'n of Brooke Co., 202 W.Va. 283, 503 S.E.2d 851 (1998) requires simply that the property at issue is used exclusively for charitable purposes, not that die Taxpayer must use the property directly for a charitable purpose. Likewise, 110 C.S.R. § 3-19.1 requires merely that "in order for the property to be exempt, the primary and immediate use of the property must be for one or more exempt purposes.”
. In its order, the Tax Commissioner stated "[w]e do not make any opinion as to whether [AEMS] is a charitable organization.” The circuit court also made no finding on AEMS' charitable status.
. In the hearing before the circuit court, TSN's CEO, Dennis Nurkiewicz, testified that TSN assists county-level emergency services organizations by providing personnel training, certification and licensure; ambulance inspection; the development of treatment protocols; etc.
. This Court long ago indicated that "real estate is not exempt where owned by a [charitable] organization and is leased for private purposes, notwithstanding the application of the income from rentals to charitable and benevolent purposes and upkeep of the premises." Central Realty Co. v. Martin, 126 W.Va. 915, 923, 30 S.E.2d 720, 725 (1944). See also State v. McDowell Lodge, No. 112, 96 W.Va. 611, 123 S.E. 561 (1924) (holding that property of a charitable and benevolent organization, leased for profit, is not exempt even though rents are used to retire debt, for maintenance of property, and for charitable and benevolent purposes).
. Concerning the renovation phase, the lease provides,
for a "Renovation Phase” which is a period beginning on April 1, 2000, and not exceeding seven (7) months. During this Renovation Phase, Landlord will remodel the Premises to meet the Tenant's specifications. Tenant has paid Landlord a security deposit in the amount of One Thousand Seven Hundred and Fifty Dollars ($1750.00) prior to the signing of this Lease. Tenant will pay monthly rent payments for April and May of 2000 in the amount of One Thousand Seven Hundred and Fifty Dollars ($1750.00). Tenant will pay monthly rent payments for June, July, August, September, and October of 2000 in the amount of Three Thousand Six Hundred and Seventy-Five Dollars ($3675.00). The parties anticipate that rent paid during the Renovation Phase will exceed Landlord's mortgage payments and expenses related to the ownership of the building. Upon completion of the Renovation Phase, Landlord will apply at least 75% of the rent payments received in excess of its actual monthly mortgage payments directly to reducing the principal of the mortgage and retain any remaining rent proceeds for payment of expenses related to the Landlord's ownership of the Premises.
This paragraph was subsequently amended to reflect that TSN would pay monthly rental payments of $5,500.00. It was further amended to provide that,
The requirement that the Landlord apply at least 75% of the rent payment in excess of Landlord's monthly mortgage payments during the Renovation Phase directly to reducing the principal of the mortgage is hereby amended to provide that rent overpayments accrued to Landlord during the Renovation Phase will be expended for additional capital improvements to the Premises or expenses related to the ownership of the Premises.
. The Tax Commissioner makes several public policy arguments to support its position that AEMS should not be exempt from paying property taxes. For example, the Tax Commissioner avers that any time a tax exempt entity acts as a landlord, it competes with other property owners who rent out their property. According to the Tax Commissioner, if a charitable entity's property was exempt from ad valorem taxation even though it rented that property to another party, it would enjoy a competitive advantage over other commercial lessors. From a policy perspective, concludes the Tax Commissioner, leasing should not be a function of a charitable entity. Because we find that the property at issue is clearly exempt from taxation under W.Va.Code § 11-3-9(a)(12) and our rule set forth in Wellsburg, we need not consider the Tax Commissioner's policy arguments.
. Significantly, our finding herein that AEMS is not leasing out its property at a profit is limited to the evidence before us which is that AEMS currently uses either all or a substantial portion of the lease payments to make its monthly mortgage payments and any remainder is placed in escrow to maintain its property. Therefore, our decision herein would not apply in the event that AEMS retires its mortgage but continues to collect lease payments. At such time, AEMS may lose its exemption from paying ad valorem property taxes. | [
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PER CURIAM:
This is an appeal by Mr. Frederick Smith (hereinafter “Appellant”) from a conviction in the Circuit Court of Marion County of Possession with Intent to Deliver Cocaine and Possession of a Deadly Weapon by a Felon. The Appellant was sentenced to serve concurrent terms of one to fifteen years and five years. On appeal, the Appellant contends that the lower court erred by denying his motion to suppress a statement he provided to authorities, contending that he had not waived his right to have an attorney present during the statement. Based upon a thorough review of the record, the arguments of the parties, and applicable precedent, we find that the lower court committed no reversible error, and we consequently affirm the Appellant’s conviction.
I. Factual and Procedural History
On April 24, 2001, the Appellant was arrested in the home of an acquaintance, Bertha “Peaches” Horton, after Ms. Horton informed the police that the Appellant possessed drugs and a gun and that she wanted the Appellant removed from her home. While at the home, the police found cocaine, marijuana, and a gun that had been reported stolen. The Appellant was taken to the police station, and his Miranda rights were read to him by Sergeant Kelly Moran. Although the Appellant refused to sign a Miranda rights waiver form, he did not indicate that he wished, to have a lawyer present. While fingerprinting the Appellant and taking photographs, Officer Raymond Fluharty . asked the Appellant whether he knew who owned the gun confiscated by the police. After additional questioning during processing, the Appellant informed Officer Fluharty that the gun belonged to him but that the drugs did not.
The Appellant was indicted by the Grand Jury of Marion County on June 12, 2001. On November 6, 2003, the Appellant filed a motion to suppress the statements he had made to police and a motion to suppress physical evidence. The lower court heard and denied these motions on November 26, 2003. The Appellant was tried by jury in the lower court on December 4 and 5, 2003, and the jury convicted him of Possession with Intent to Deliver Cocaine and Possession of a Deadly Weapon by a Felon.
On appeal, the Appellant maintains that his eighth grade education and learning disability prevented him from fully understanding his right to have an attorney present during questioning by the police. The Appellant contends that the lower court erred by failing to exclude the statement made by the Appellant to the police after refusing to sign the Miranda rights waiver form. The Appellant further argues that the statement was involuntary and was obtained only after extensive questioning by the police officer. Finally, the Appellant contends that the statement was clearly against the weight of the evidence and should not have been admitted at trial.
II. Standard of Review
This Court is confronted with the issue of whether the lower court committed reversible error in denying the Appellant’s motion to suppress statements made during police interrogation. In syllabus point one of State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996), this Court explained the proper standard of review of a court’s ruling on a motion to suppress, as follows:
When reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the light most favorable to the State, as it was the prevailing party below. Because of the highly fact-specific nature of a motion to suppress, particular deference is given to the findings of the circuit court because it had the opportunity to observe the witnesses and to hear testimony on the issues. Therefore, the circuit court’s factual findings are reviewed for clear error.
This Court has also held that “we review de novo questions of law and the circuit court’s ultimate conclusion as to the constitutionality of the law enforcement action.” State v. Lilly, 194 W.Va. 595, 600, 461 S.E.2d 101, 106 (1995). In syllabus point four of Riggle v. Allied Chemical Corp., 180 W.Va. 561, 378 S.E.2d 282 (1989), this Court also explained as follows:
“ ‘The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion. Point 10 Syllabus, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955).’ Syllabus Point 5, Casto v. Martin, 159 W.Va. 761, 230 S.E.2d 722 (1976).” Syllabus Point 5, Grillis v. Monongahela Power Co., 176 W.Va. 662, 346 S.E.2d 812 (1986).
On the ultimate question of whether a particular confession was voluntary, this Court explained as follows in syllabus point two of State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994):
This Court is constitutionally obligated to give plenary, independent, and de novo review to the ultimate question of whether a particular confession is voluntary and whether the lower court applied the correct legal standard in making its determination. The holdings of prior West Virginia cases suggesting deference in this area continue, but that deference is limited to factual findings as opposed to legal conclusions.
Utilizing such standards, we analyze the issues presented in this appeal.
III. Discussion
A. Waiver of Miranda Rights
This Court has consistently held that the burden is on the State to establish that the Appellant made an explicit oral or written waiver of his Miranda rights. See State v. Boxley, 201 W.Va. 292, 496 S.E.2d 242 (1997), cert. denied, Boxley v. West Virginia, 525 U.S. 863, 119 S.Ct. 151, 142 L.Ed.2d 123 (1998); State v. Rissler, 165 W.Va. 640, 270 S.E.2d 778 (1980); State v. McNeal, 162 W.Va. 550, 251 S.E.2d 484 (1978). Syllabus point two of Rissler explained: “In the trial of a criminal case, the State must prove, at least by a preponderance of the evidence, that a person under custodial interrogation has waived the right to remain silent and the right to have counsel present.” 165 W.Va. at 640, 270 S.E.2d at 779.
The Boxley Court stated as follows: ‘When determining whether a waiver was made, there are three considerations: were the rights given in proper form and substance; did the appellant understand them; and did he waive them?” 201 W.Va. at 297, 496 S.E.2d at 247 (quoting Rissler, 165 W.Va. at 646, 270 S.E.2d at 782 (1980)). In syllabus point one of Rissler, this Court explained as follows:
It is not invariably necessary that a person under interrogation make an explicit oral or written statement of waiver in order that it may be properly concluded as a matter of law that the person has waived the right to counsel as guaranteed by W.Va. Const. art. III § 14 and U.S. Const. amend. VI, or has waived the right to remain silent as guaranteed by W.Va. Const. art. III § 5 and U.S. Const. amend. V.
165 W.Va. at 640, 270 S.E.2d at 779.
The Appellant emphasizes the fact that he refused to sign the Miranda rights waiver form after the Miranda rights were read to him. The effect of such refusal to sign a waiver form has been extensively discussed by federal and state authorities. In North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), for instance, the United States Supreme Court explained that the refusal to sign a waiver is not determinative of the admissibility issue and that a defendant may be considered to have waived his Miranda rights in the absence of a signed waiver form. In Butler, the defendant stated that he understood his Miranda rights and would talk to the detective. The North Carolina Supreme Court had ruled that a custodial statement could not be used unless the defendant had explicitly waived his right to counsel. The United States Supreme Court rejected that per se rule, reasoning as follows:
An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.
441 U.S. at 373, 99 S.Ct. 1755; see also State v. Montes, 136 Ariz. 491, 667 P.2d 191 (1983).
In State v. Mitchell, 104 Idaho 493, 660 P.2d 1336 (1983), cert. denied, Mitchell v. Idaho, 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308, the Idaho court rejected “mechanical or formalistic approaches... to evaluate the procedural safeguards given.” 660 P.2d at 1340. The court explained that “[t]he question is not one of form, but whether the appellant, in light of the totality of circumstances surrounding her statements, knowingly and intelligently waived her Miranda rights.” Id. at 1341. “ ‘Any clear manifestation of a desire to waive is sufficient. The test is a showing of a knowing intent, not the utterance of a shibboleth. The criterion is not solely the language but a combination of that articulation and the surrounding facts and circumstances.’ ” Lloyd v. State, 45 Ala.App. 178, 227 So.2d 809, 814 (1969) (quoting Anderson v. State, 6 Md.App. 688, 253 A.2d 387 (1969)).
In United States v. Filiberto, 712 P.Supp. 482 (E.D.Pa.1989), the court explained that “failure to sign a form of waiver does not preclude a finding of waiver, nor does it make further questioning a violation of defendant’s constitutional rights.” 712 F.Supp. at 487. In Filibetto, the court found that the defendant’s statements were voluntary despite his refusal to sign a waiver card since the defendant responded to subsequent questions without requesting counsel or invoking the right to remain silent. Id.
In State v. Gwinn, 169 W.Va. 456, 288 S.E.2d 533 (1982), this Court permitted use of a statement made after a defendant had refused to sign a waiver of rights form. This Court explained:
Trooper R.E. Haynes testified that he orally advised the appellant of his rights and that the appellant appeared to understand them, but that the appellant refused to sign a waiver of rights form. Trooper R.V. Watkins testified that after the appellant was advised of his rights, he asked the appellant where the weapon was, and the appellant responded voluntarily that he had thrown the weapon in the river. Trooper Watldns asked this question knowing that the appellant had refused to sign the waiver of rights form.
169 W.Va. at 462, 288 S.E.2d at 537. The Gwinn Court found that admission of the statement was proper despite the defendant’s failure to sign the waiver form and his subsequent assertion that he had not understood the rights explained to him.
In the instant case there was sufficient evidence to support the trial court’s conclusion that the statement sought to be introduced was voluntarily made without threat or coercion. Although the trial court made no specific findings on the question of whether the appellant understood his rights, which would be the preferable procedure, there was no evidence introduced that the appellant was incapable of understanding his rights, and the appellant’s claim that he did not understand his rights was countered by the testimony of Trooper Watkins. From the evidence presented we cannot say that the decision of the trial court on the issue of voluntariness is plainly wrong.
Id at 463, 288 S.E.2d at 538.
Based upon the foregoing precedent, we find that the fact that the Appellant in the present case refused to sign the Miranda rights waiver form is not dispositive of the issue of admissibility of the statement in question.
B. The Totality of the Circumstances
The totality of the circumstances must be examined to determine whether the Appellant waived his right to have an attorney present, and the State’s burden of persuasion is preponderance of the evidence, as syllabus point two of Rissler explained. 165 W.Va. at 640, 270 S.E.2d at 779; see also Syl. Pt. 5, State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975) (“The State must prove, at least by a preponderance of the evidence, that confessions or statements of an accused which amount to admissions of part or all of an offense were voluntary before such may be admitted into the evidence of a criminal case.”)
As outlined above, subsequent to being informed of his Miranda rights, the Appellant did not request an attorney. During the processes of fingerprinting and mug shots, Officer Fluharty questioned the Appellant with regard to ownership of the gun. After several questions regarding the gun, the Appellant told Officer Fluharty that the gun did belong to him. At the suppression hearing, the lower court examined this exchange between Officer Fluharty and the Appellant and reasoned as follows:
[T]he defendant was properly Mirandized, refused to sign the Miranda form, but did not ask for counsel. I think the police, under those kind of circumstances, can continue to question him as this officer did.
I have some problem with the fact he actually asked him several times, but based on what I — what is before the Court at this time, I think it is a voluntary state ment. I don’t see that there’s any violation that the — of the defendant’s rights in this regard; therefore, I will allow the testimony.
In an April 28, 2004, order denying the Appellant’s post-trial motions, the lower court stated as follows:
Because there was no evidence to the contrary, the Court finds the rights were given in proper form and substance and the defendant understood them. The Court also finds the defendant waived his rights when he made the statement to Officer Fluharty that the gun was his, but the drugs were not. While asking routine processing questions, Officer Fluharty asked the defendant to whom the gun belonged because the gun was listed as stolen on N.C.I.C. When the defendant answered, he effectively waived his rights.
The court continued:
The defendant in the case at bar understood his rights. In fact, he had been convicted of a felony in the past, which would make him familiar with the criminal justice system. Sergeant Moran ceased questioning and left the room when the defendant refused to sign the waiver form. Officer Fluharty asked the defendant during processing if he knew to whom the stolen gun belonged, and the defendant responded.... Based upon the totality of the circumstances, the Court is of the opinion the State proved, by a preponderance of the evidence, the defendant waived his rights.
With regard to his understanding of the rights read to him, the Appellant also raises what this Court considers a spurious argument that his eighth grade education and alleged learning disability prevented him from fully comprehending the Miranda rights as read to him. The Appellant contends that the authority to support this claim is contained in the pre-sentence report. However, the pre-sentence report only restates the information provided by the Appellant himself. The Appellant has not provided any independent evidence indicating that he actually suffers from a learning disability which would prevent him from understanding the rights read to him. No outside source verifies his assertions, and the Appellant did not inform the police officers that he was experiencing any difficulty understanding their recitation of his rights at the time such rights were provided.
Moreover, even if the Appellant does indeed suffer from a learning disability, evidence thereof would had to have been submitted and analyzed to determine its effect upon the admissibility of the statement in question. This Court has previously addressed the issue of a defendant’s inability to understand the Miranda warnings due to intellectual limitations. In State v. Adkins, 170 W.Va. 46, 289 S.E.2d 720 (1982), this Court stated that “[i]t is the general rule that the intelligence of a person making a confession is but one factor to be considered in determining whether a waiver of rights was voluntary.” 170 W.Va. at 53, 289 S.E.2d at 727. The Adkins Court further elaborated:
[Wjhere a person of less than normal intelligence does not have the capacity to understand the meaning and effect of his confession, and such lack of capacity is shown by evidence at the suppression hearing, it is error for the trial judge not to suppress the confession. However, where the defendant’s lower than normal intelligence is not shown clearly to be such as would impair his capacity to understand the meaning and effect of his confession, said lower than normal intelligence is but one factor to be considered by the trial judge in weighing the totality of the circumstances surrounding the challenged confession.
Id. at 54, 289 S.E.2d at 727. Based upon the absence of concrete evidence that the Appellant suffers from a learning disability and that such condition prevented him from comprehending the rights read to him by police officers, we find no merit to the Appellant’s claims that an impairment resulted in an inability to understand the Miranda rights.
IV. Conclusion
This Court’s review of the circumstances in which the Appellant’s statement was provided to police officers indicates that the Appellant did indeed waive his right to have counsel present and his right to remain silent during police questioning. As the lower court observed, the first officer questioning the Appellant terminated the interrogation and permitted the Appellant to begin the processing tasks of fingerprinting and mug shots, under the supervision of Officer Flu-hai'ty. During the performance of those tasks, the Appellant was asked about the ownership of the gun. He did not request an attorney or refuse to answer the question and ultimately informed Officer Fluharty that the gun belonged to him. No evidence of duress or coercion exists. Under these circumstances, this Court finds that the State has demonstrated, by a preponderance of the evidence, that the Appellant’s statement was voluntary and properly admitted into evidence at trial. Thus, we find that the lower court did not err in concluding that the Appellant knowingly and voluntarily waived his Miranda rights when he responded to Officer Fluharty’s questions regarding the ownership of the gun. The statement was properly admitted into evidence, and the arguments offered by the Appellant in an attempt to overturn this conviction fail.
Affirmed.
. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. The record reflects that the Miranda rights were read to the Appellant in proper form and substance.
. We find no merit to the Appellant's contention that his statement to authorities should not have been admitted based upon his contention that the statement was clearly against the weight of the evidence. As the State observed in its brief, the Appellant cites no law or persuasive evidence in support of his theory in that regard. | [
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The Opinion of the Court was delivered PER CURIAM.
PER CURIAM:
This case is before this Court upon appeal of a final order of the Circuit Court of Grant County entered on October 29, 2004. In that order, the circuit court refused to set aside a defense verdict in this medical malpractice action filed by the appellant and plaintiff below, Jennifer Thomas, against the appel-lees and defendants below, Anil K. Makani, M.D., and South Branch Surgical Associates, Inc. The jury determined that Dr. Makani was not negligent in his care and treatment of Ms. Thomas.
In this appeal, Ms. Thomas contends that three jurors were biased in favor of Dr. Makani and that the circuit court abused its discretion by not removing those jurors for cause from the jury panel. Ms. Thomas requests a new trial.
This Court has before it the petition for appeal, the designated record, and the briefs and argument of counsel. For the reasons set forth below, the final order is affirmed.
I.
FACTS
On May 11, 2000, Dr. Makani performed a laparoscopic cholecystectomy on Ms. Thomas. During the surgery, Dr. Makani cut Ms. Thomas’ hepatic bile duct. As a result, Ms. Thomas was immediately transferred to the University of Virginia Medical Center for repair surgery. Ms. Thomas underwent two surgeries over the course of two months. The repair was successful. However, Ms. Thomas claims that the surgeries required considerable recovery time and subjected her to significant pain, suffering, and other damages.
On February 28, 2002, Ms. Thomas filed suit against Dr. Makani and South Branch Surgical Associates, Inc., alleging that Dr. Makani violated the applicable standard of care in performing the laparoscopic cholecys-tectomy. Specifically, Ms. Thomas claimed that Dr. Makani negligently cut her bile duet necessitating separate repair surgeries and extensive medical follow-up. The case proceeded to trial on August 2, 2004. The case was heard by a six-person jury who returned a verdict in favor of Dr. Makani and South Branch Surgical Associates, Inc. Thereafter, Ms. Thomas filed a motion for new trial. The circuit court denied the motion in the final order dated October 29, 2004. This appeal followed.
II.
STANDARD OF REVIEW
As noted above, Ms. Thomas appeals from a final order of the circuit court denying her motion for a new trial. This Court has held that, “Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial comb’s ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.” Syllabus Point 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). With regard to whether a juror should be excused to avoid bias or prejudice in the jury panel, this Court has stated that the matter is within the sound discretion of the trial judge. O’Dell v. Miller, 211 W.Va. 285, 288, 565 S.E.2d 407, 410 (2002). With these standards in mind, we now consider the parties’ arguments.
III.
DISCUSSION
As set forth above, Ms. Thomas argues that the circuit court abused its discretion by refusing to strike for cause three potential jurors who revealed during voir dire that they had received successful medical treatment from Dr. Makani. Ms. Thomas contends that upon further individual questioning, it was clear that these jurors were biased in favor of Dr. Makani, and therefore, they should have been removed from the jury panel.
Ms. Thomas first complains about Juror David Evans. Juror Evans stated that he had been treated by Dr. Makani in 1990 following a vehicle accident. Upon initial questioning by Ms. Thomas’ counsel, Juror Evans indicated that he had a “good experience” with Dr. Makani and that he might possibly “lean toward” him, especially since he did not know anything about medicine. Based on these statements, Ms. Thomas argues that Juror Evans should have been removed from the jury panel for cause pursuant to this Court’s holding in Syllabus Point 5 of O’Dell v. Miller, 211 W.Va. 285, 288, 565 S.E.2d 407, 410 (2002), which states that,
Once a prospective juror has made a clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair.
Dr. Makani and South Branch Surgical Associates, Inc., (hereinafter collectively referred to as “Dr. Makani”) contend, however, that Juror Evans did not make a clear statement of prejudice or bias in favor of Dr. Makani. Dr. Makani points out that upon further questioning by the court, Juror Evans indicated that he would be swayed by the evidence itself and the manner in which it was presented. Dr. Makani further notes that Juror Evans expressly stated that, “as far as picking him [Dr. Makani] over another doctor, I mean, I wouldn’t.”
This Court has previously observed that, “It is a fact of life that in many rural jurisdictions in this State, a limited number of physicians may practice within any given community.” Dupuy v. Allara, 193 W.Va. 557, 562, 457 S.E.2d 494, 499 (1995), overruled on other grounds, Pleasants v. Alliance Corp., 209 W.Va. 39, 543 S.E.2d 320 (2000). As a result, “[w]hen one of these doctors is a party or a witness in a medical malpractice action, it is unlikely the court can seat a panel of jurors with absolutely no contacts with the doctor.” Id. Accordingly, this Court has held that,
Where a physician-patient relationship exists between a party to litigation and a prospective juror, although such prospective juror is not disqualified per se, special care should be taken by the trial judge to ascertain, pursuant to W.Va.Code, 56-6-12 [1931], that such prospective juror is free from bias or prejudice.
Syllabus Point 2, West Virginia Dep’t of Highways v. Fisher, 170 W.Va. 7, 289 S.E.2d 213 (1982).
In this case, Ms. Thomas does not argue that Dr. Makani’s prior treatment of Juror Evans by itself rendered him disqualified from serving on the jury. Rather, she maintains that Jurors Evans’ answers to questions posed to him during individual voir dire clearly showed that he was biased in favor of Dr. Makani. While it is a close question, we nevertheless disagree.
Having carefully reviewed the transcript of the voir dire in this case, we are unable to conclude that Juror Evans made a clear statement of disqualifying bias toward Dr. Makani sufficient to disqualify him from serving on the jury. Certainly, Juror Evans’ initial comments required further inquiry by the court. In Syllabus Point 4 of O’Dell, we explained that,
If a prospective juror makes an inconclusive or vague statement during voir dire reflecting or indicating the possibility of a disqualifying bias or prejudice, further probing into the facts and background related to such bias or prejudice is required.
This Court also advised in Syllabus Point 3 of O’Dell that:
When considering whether to excuse a prospective juror for cause, a trial court is required to consider the totality of the circumstances and grounds relating to a potential request to excuse a prospective juror, to make a full inquiry to examine those circumstances and to resolve any doubts in favor of excusing the juror.
In this case, the trial court, in accordance with O’Dell, did, in fact, question Juror Evans further to determine whether he was capable of rendering a fair verdict. At that point, Juror Evans clarified his earlier statement that he might possibly “lean toward” Dr. Makani. He explained that since he had no medical knowledge, he would more likely believe the doctor who presented the most credible and convincing evidence. He clearly stated that he would not find in favor of Dr. Makani simply because he had treated him fourteen years ago.
After reviewing the record in this case, we conclude that the trial court took “special care” to determine that Juror Evans was free from bias and prejudice. The trial court clearly considered the totality of the circumstances and conducted a full inquiry before determining that there was no basis to disqualify Juror Evans from serving on the jury. In Syllabus Point 12 of State v. Salmons, 203 W.Va. 561, 509 S.E.2d 842 (1998), this Court held that,
A trial judge is entitled to rely upon his/her self-evaluation of allegedly biased jurors when determining actual juror bias. The trial judge is in the best position to determine the sincerity of a juror’s pledge to abide by the court’s instructions. Therefore, his/her assessment is entitled to great deference.
Upon careful review of the record, we are unable to find that the circuit court abused its discretion by not striking Juror Evans for cause from the jury panel.
Ms. Thomas also contends that the circuit court erred by not removing Jurors Gretchen Brace and Linda Porter from the jury panel. However, the record shows that Ms. Thomas did not make a motion to strike these particular jurors for cause. Jurors Bruce and Porter were individually questioned after they indicated that they had been previously treated by Dr. Makani. Following their individual voir dire, counsel for Ms. Thomas did not move to strike either of these jurors for cause. Consequently, we find that Ms. Thomas has waived her right to allege error in this appeal with respect to these two jurors. See Hanlon v. Logan County Bd. of Educ., 201 W.Va. 305, 315, 496 S.E.2d 447, 457 (1997) (“Long standing ease law and procedural requirements in this State mandate that a party must alert a tribunal as to perceived defects at the time such defects occur in order to preserve the alleged error for appeal.”); State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996) (“The rule in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they forget their lines, they will likely be bound forever to hold their peace.”); State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996) (“When a litigant deems himself or herself aggrieved by what he or she considers to be an important occurrence in the course of a trial or an erroneous ruling by a trial court, he or she ordinarily must object then and there or forfeit any right to complain at a later time.”).
IV.
CONCLUSION
Accordingly, for the reasons set forth above, the final order of the Circuit Court of Grant County entered on October 29, 2004, is affirmed.
Affirmed.
. In her petition for appeal, Ms. Thomas asserted additional assignments of error. However, by order dated June 14, 2005, this Court granted the appeal only as to Ms. Thomas' alleged error regarding bias on the part of three jurors.
. In layman’s terms, Dr. Makani removed Ms. Thomas' gall bladder. | [
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The Opinion of the Court was delivered PER CURIAM.
Justice ALBRIGHT dissents and reserves the right to file a dissenting opinion.
Justice STARCHER dissents and reserves the right to file a dissenting opinion.
PER CURIAM.
This case is before the Court on appeal from the June 24, 2004, Order of the Circuit Court of Kanawha County granting Appel-lee’s motion for judgment as a matter of law as filed according to Rule 50 of the West Virginia Rules of Civil Procedure. This Court has before it the petition for appeal, the response, the briefs of the parties, and all matters of record. Following the arguments of the parties and a review of the record herein, this Court finds that the circuit court did not eir in granting Appellee’s motion for judgment as a matter of law. Accordingly, this Court affirms the June 24, 2004, Order of the circuit court.
I.
FACTS
The Appellant in this case, Justin D. Bailey (hereinafter, “Bailey”), worked as a manufacturing associate and later as a team leader for the Appellee, South Charleston Stamping and Manufacturing (hereinafter, “SCSM”), beginning in August of 1991. On. June 19, 1994, Bailey injured his neck, right shoulder, and arm while working as a team leader for SCSM. He missed four days of work as a result of his injury and filed a claim before the Workers’ Compensation Division (hereinafter, “WCD”) which resulted in his being awarded temporary total disability benefits. Bailey subsequently reinjured his neck, right shoulder, and arm while at work on June 6, 1995, and missed nine days of work. Again, he filed a claim for workers’ compensation benefits and received temporary total disability benefits.
Following his return to work, however, Bailey continued to experience pain, stiffness, and numbness in his neck and arm. On February 28, 1996, Dr. Thomas Dannals (hereinafter, “Dr. Dannals”) took Bailey off work and prescribed a course of treatment and rehabilitation. Bailey’s workers’ compensation claim was then reopened, and he began receiving benefits. On September 5, 1996, Bailey’s employment with SCSM was terminated because his absence had exceeded the maximum allowable by plant policy; however, he was soon thereafter reinstated after he called SCSM and explained that he was off work because of his work-related injury, for which he was receiving workers’ compensation benefits.
On December 11, 1996, Dr. John Kroening (hereinafter, “Dr. Kroening”), examined Bailey on behalf of the WCD. Dr. Kroening determined that Bailey had reached his maximum degree of medical improvement. Accordingly, Bailey was awarded a 5% permanent partial disability award on January 20, 1997, which he received until April of 1997.
On February 19,1997, Bailey was asked by SCSM’s assistant human resources manager to report to the plant by March 5,1997, with a list of restrictions and a return-to-work date. Bailey called SCSM and informed the assistant human resources manager that he had not been told by his doctor when he could return to work and that he had not yet received a list of restrictions. Bailey was asked to keep SCSM apprized of his condition, but he did not.
On May 26, 1998, Bailey received a certified letter dated May 22, 1998, from Tonya Trembly (hereinafter, “Trembly”), benefits coordinator for SCSM, requesting that Bailey contact her about his employment within ten days. The letter stated that if she did not hear from Bailey in that time, Trembly would assume that he had voluntarily resigned his position. On June 3, 1998, Bailey attempted to contact Jana Dawson (hereinafter, “Dawson”) and Julian O’Dell (hereinafter, “O’Dell”), but he was able only to reach their voice mail. Soon thereafter, Bailey received a letter of termination dated June 2, 1998, which was signed by O’Dell, the new human resources manager.
Bailey was released by his personal physician, Dr. Dannals, to return to work on October 6, 1998. Bailey called O’Dell and asked if he could return to work at SCSM. By letter dated December 17, 1998, O’Dell informed Bailey that there was not a manufacturing team leader position available, but that there was an associate position open. Bailey was told, however, that he would need to undergo a Functional Capacity Evaluation (hereinafter, “FCE”) in order to be considered for that position. Additionally, Bailey was asked to speak to a benefits representative about certain health insurance claims that apparently should have been or were paid by workers’ compensation. Bailey completed and passed the FCE on December 30, 1998, but failed to resolve the insurance issue.
O’Dell again contacted Bailey by letter on May 10, 1999, and asked him to set up an appointment to discuss the FCE and the insurance issue. Bailey asserts that in the ensuing period of time, he attempted several times to contact O’Dell, while SCSM asserts that it was unable to contact Bailey. On July 12,1999, Dawson attempted to contact Bailey by letter, again requesting that he contact O’Dell. Bailey made no further attempt to contact SCSM. By this point, Bailey had been away from his employment since February 28, 1996, despite having been determined by Dr. Kroening to have reached his maximum degree of medical improvement on December 11,1996.
On July 10, 2002, Bailey brought the instant action alleging discrimination claiming that the termination of his employment constituted discrimination under West Virginia Code §§ 23-5A-1, 23-5A-2, 23-5A-3(a), and 23-5A-3(b). The matter went to trial on November 3, 2003. Following Bailey’s casein-chief, SCSM moved for judgment as a matter of law under Rule 50 of the West Virginia Rules of Civil Procedure as to each of Bailey’s claims. The circuit court found that Bailey had failed to meet his burden of proof under each of his claims under West Virginia Code §§ 23-5A-3(a), 23-5A-3(b), and 23-5A-1 and granted SCSM’s motions for judgment as a matter of law.
II.
STANDARD OF REVIEW
We have held that “ ‘[t]he appellate standard of review for the granting of a motion for a [judgment as a matter of law] pursuant to Rule 50 of the West Virginia Rules of Civil Procedure is de novo. On appeal, this court, after considering the evidence in the light most favorable to the nonmovant party, will sustain the granting of a [judgment as a matter of law] when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court’s ruling granting a directed verdict will be reversed.’ Syllabus Point 3, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996).” Syl. Pt. 5, Smith v. First Community Bancshares, Inc., 212 W.Va. 809, 575 S.E.2d 419 (2002). We review this ease accordingly.
III.
DISCUSSION
Bailey asserts that the circuit court erred in granting SCSM’s motions for judgment as a matter of law. SCSM, however, asserts that when one assesses the law as it applies to the facts in this case, only one reasonable conclusion could be drawn as to the verdict. We will address each of Bailey’s three claims in turn.
A. West Virginia Code § 23-5A-1
West Virginia Code § 23-5A-1 (1978) states that “[n]o employer shall discriminate in any manner against any of his present or former employees because of such present or former employee’s receipt of or attempt to receive [workers’ compensation benefits].” Bailey asserts that, at trial, he presented evidence that he was discriminated against by SCSM when he sought re-employment after he was released to return to work. Specifically, Bailey points to the deposition and trial testimony of O’Dell that requests to return to work are handled differently for someone who is injured at work as opposed to someone who is not injured at work. However, the record reveals that O’Dell explained that this difference arises because a return from a wox-kers’ compensation absence is largely governed by the WCD; whereas, a return from a non-work-related injury is handled by a third party administrator. Bailey further asserts that disparate treatment is also demonstrated in the fact that he was required to undergo a FCE before he could be considered for reinstatement while new hires are not required to undergo a FCE. Bailey asserts that based upon these things, there is significant evidence from which a jury could conclude that SCSM discriminated against Bailey; therefore, the court erred in granting judgment as a matter of law in regard to his claim under West Virginia Code § 23-5A-1.
SCSM and the circuit court disagree and point to this Court’s decision in Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991). In Syllabus Point 1 of Powell, we held that:
[i]n order to make a prima facie case of discrimination under W. Va.Code, 23-5A-1, the employee must prove that: (1) an on-the-job injury was sustained; (2) proceedings were instituted under the Workers’ Compensation Act, W. Va.Code, 23-1-1, et seq.; and (3) the filing of a workers’ compensation claim was a significant factor in the employer’s decision to discharge or otherwise discriminate against the employee.
SCSM asserts that Bailey failed to meet the third prong of the Powell test when he presented his case at trial. The circuit court agreed and held that Bailey was not terminated because he filed a workers’ compensation claim, but because he violated SCSM’s neutral attendance policy and was unable to provide SCSM with a return-to-work date. The court pointed out that Bailey’s absence had exceeded 800 days when he was terminated. The court further pointed out that Bailey had not returned to work in the eighteen months since he was released to work again.
We recognized in Powell that:
[b]ecause of the usual lack of direct evidence, courts have looked to a variety of factors [in determining whether a firing was retaliatory]. Proximity in time of the claim and the firing is relevant, of course. Evidence of satisfactory work performance and supervisory evaluations before the accident can rebut an employer’s claim of poor job performance. Any evidence of an actual pattern of harassing conduct for submitting the claim is very persuasive. Id. at 704, 403 S.E.2d at 721. (Citations omitted.)
We further recognized that “[w]here the employer has a neutral absenteeism policy that permits discharge of an employee who is absent for a specific period of time, courts have generally held that termination of employment under such a policy does not violate a compensation antidiscrimination statute.” Id. at 705, 403 S.E.2d at 722.
We find that, in the present case, Bailey’s termination was remote in time not only to the time of the filing of his workers’ compensation claim, but also to his last receipt of workers’ compensation benefits. There is likewise no evidence of a pattern of harassing conduct for Bailey’s filing of a workers’ compensation claim. While we cannot say whether SCSM’s absenteeism policy is neutral because the policy is not presented in the record before us, we do observe that the pei'iod of absenteeism by Bailey after reaching his maximum degree of medical improvement strains the concept of reasonability. More importantly, Bailey has presented no evidence that he was terminated for any reason other than his absenteeism. Therefore, we find that Bailey has failed to meet the requirements of West Virginia Code § 23-5A-1.
B. West Virginia Code § 23-5A-3(a)
West Virginia Code § 23-5A-3(a) (1990) states that:
[i]t shall be a discriminatory practice within the meaning of section one of this article to terminate an injured employee while the injured employee is off work due to a compensable injury within the meaning of article four of this chapter and is receiving or is eligible to receive temporary total disability benefits, unless the injured employee has committed a separate dis-chargeable offense. A separate discharge-able offense shall mean misconduct by the injured employee wholly unrelated to the injury or the absence from work resulting from the injury. A separate dischargeable offense shall not include absence resulting from the injury or from the inclusion or aggregation of absence due to the injury with any other absence from work.
Bailey asserts that he produced evidence that he was an injured employee off of work due to a compensable injury and that his personal physician had not released him to return to work when he was terminated. However, SCSM points out that Bailey was not receiving and was not eligible to receive temporary total disability benefits at the time of his termination. In fact, the WCD had repeatedly declined to reopen Bailey’s claim. The court below agreed with SCSM, and so do we.
Bailey seeks to have this Court interpret West Virginia Code § 23-5A-3(a) so broadly as to make it practically boundless. Although Bailey would have us believe that he was “off work due to a compensable injury” at the time of his termination, the record demonstrates that he had been released to return to work and was, in the opinion of the WCD, no longer eligible to receive temporary total disability benefits. Therefore, Bailey does not meet the requirements of West Virginia Code § 23-5A-3(a).
C. West Virginia Code § 23-5A~3(b)
Finally, West Virginia Code § 23-5A-3(b) (1990) states that:
It shall be a discriminatory practice within the meaning of section one of this article for an employer to fail to reinstate an employee who has sustained a compensa-ble injury to the employee’s former position of employment upon demand for such reinstatement provided that the position is available and the employee is not disabled from performing the duties of such position. If the former position is not available, the employee shall be reinstated to another comparable position which is available and which the employee is capable of performing. A comparable position for the purposes of this section shall mean a position which is comparable as to wages, working conditions and, to the extent reasonably practicable, duties to the position held at the time of injury. A written statement from a duly licensed physician that the physician approves the injured employee’s return to his or her regular employment shall be prima facie evidence that the worker is able to perform such duties. In the event that neither the former position nor a comparable position is available, the employee shall have a right to preferential recall to any job which the injured employee is capable of performing which becomes open after the injured employee notifies the employer that he or she desired reinstatement. Said right of preferential recall shall be in effect for one year from the day the injured employee notifies the employer that he or she desires reinstatement: Provided, That the employee provides to the employer a current mailing address during this one year period.
Under this statute, Bailey has a burden of proving through competent medical evidence that he has recovered from his compensable injuries and is capable of returning to work and performing his job duties. The circuit court found that Bailey did not meet this burden. Based upon the record, we agree.
We believe that the legislature’s intent in passing West Virginia Code § 23-5A-3(b) was to protect workers’ compensation claimants rather than to provide a mechanism for claimants to unreasonably delay their return to work, as was the case here. We cannot conceive that the legislature sought to sanction an employee waiting some two years after being found to have reached his maximum medical improvement to seek reinstatement to his former position. Furthermore, an employer cannot be held to a duty to honor an employee’s rights when, as here, an employee does not avail himself or herself of the position that was open and offered to him or her. Therefore, we agree with the circuit court that Bailey failed to prove that he meets the requirements of West Virginia Code § 23-5A-3(b).
IV.
CONCLUSION
Accordingly, having found that the evidence before the Court is insufficient to meet Bailey’s burdens under West Virginia Code §§ 23-5A-1, 23-5A-3(a), and 23-5A-3(b), we find that the Circuit Court of Kanawha County did not err in granting SCSM’s motions for judgment as a matter of law. Therefore, the court’s decision is affirmed.
Affirmed.
. Bailey attempted to reopen his claim for temporary total disability benefits thereafter, but was unsuccessful.
. Bailey asserts that the delay in contacting SCSM was due to the fact that Bailey had been trying to reach his attorney, who was out of the office for a week.
.Bailey subsequently and voluntarily withdrew his claim under West Virginia Code § 23-5A-2 before trial.
. Bailey presented a note from Dr. Dannals stating, in part, that Bailey had recovered from carpal tunnel syndrome. However, carpal tunnel syndrome was not a compensable injury in this case, and there is no evidence in the record, beyond Dr. Dannals' bare statement, that it was in any way related to the compensable injury. Furthermore, Dr. Dannals’ note does not make clear whether Bailey had recovered from his compensable injuries such as would allow him to return to work and perform his job duties.
. We save for another day, however, a determination of what constitutes a reasonable period of time during which an employee's rights are protected under West Virginia Code § 23-5A-3(b).
.Bailey was first informed of the manufacturing associate opening on or about October 27, 1998. The record is clear that SCSM repeatedly asked Bailey to come to the plant to resolve certain health insurance issues before the matter of his reinstatement could progress any further, but he did not do that. Instead, in May of 1999, he informed SCSM that he did not intend to contact them further. Rather, he said, SCSM would have to, call him. In that instant, Bailey stopped pursuing reinstatement and was no longer protected.by West Virginia Code § 23-5A-3(b). | [
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DAVIS, Chief Justice:
Mr. Salmons, defendant below/appellant, (hereinafter “Mr. Salmons”), appeals a final judgment by the Circuit Court of Kanawha County convicting him of and sentencing him for the crimes of kidnaping and aggravated robbery. Mr. Salmons was sentenced to thirty years confinement for the aggravated robbery conviction. He was sentenced to life imprisonment with mercy for the kidnaping conviction. The sentences run concurrently. Mr. Salmons now seeks a new trial on the grounds that (1) the State failed to disclose exculpatory evidence, (2) the trial court improperly struck for cause two jurors, and (3) the trial court failed to advise him of his right to testify. Having reviewed the evidence, the parties’ arguments and the applicable authority, we affirm the decision of the Circuit Court of Kanawha County.
I.
FACTUAL AND PROCEDURAL HISTORY
On March 27, 1996, at approximately 5:30 p.m., in Charleston, West Virginia, Mr. Philip Myles, the victim in this case, drove to a bar called the Tap Room. Shortly after Mr. Myles arrived at the bar, Mr. Salmons entered the bar. Mr. Salmons was followed by four other accomplices. Mr. Myles and Mr. Salmons eventually engaged in a conversation and had drinks. Mr. Salmons’ four accomplices left the bar after a brief period. At approximately 6:30 p.m., Mr. Myles left the bar with Mr. Salmons and went directly to his car. While standing next to the car, Mr. Salmons asked Mr. Myles to join him in a game of pool. Mr. Myles declined and indicated he had to go home. According to the trial testimony of Mr. Myles, after he declined to play pool, Mr. Salmons “asked me again and I said no, I don’t want to, and I started to put my keys in the car and [Mr. Salmons] grabbed me by the shirt here and started wrestling me, then he started motion-. ing like this in the alley.” The motioning gesture by Mr. Salmons was a signal to his four accomplices, who had been waiting in an alley since leaving the bar. Mr. Myles testified as follows to the ensuing events:
Q. What happened then?
A. All the people that had left the bar came out of the alley. They were hiding in a little alcove in the alley and they started beating on me and dragging me through the alley.
Q. Now when you say all the people who left the bar, who are we talking about?
A. Kim Porter, Blaine Salmons, and the two other people that I didn’t know.
Q. And they come out of the alley, they start beating on you and dragged you back to the alley?
A. They dragged me back into the alley where they were hiding in that alcove and they were beating me and kicking me and I was on the ground at one point and then Blaine Salmons put my hands up over my head and slams me into the wall.
Q. What happens next?
A. Everyone started going through my pockets and took everything I had and [Mr. Salmons] took my car keys and went back to get the car and drove it over to where we were.
Mr. Myles was forced into the car. Mr. Salmons then drove away with Mr. Myles and his four accomplices. Mr. Salmons drove to Boone County and picked up an individual named Matthew Callahan. Mr. Salmons then returned to Charleston and dropped off two accomplices, John Murphy and Mariah. Next, Mr. Salmons drove to Mr. Myles’ apartment. Upon arriving at the apartment, Mr. Salmons and Matthew Callahan got out of the car and went into Mr. Myles’ apartment. Mr. Myles attempted to escape while the car was parked near his apartment. He bolted from the car and began running and screaming for help. Blaine Salmons ran after Mr. Myles and caught him. Blaine dragged Mr. Myles back to the car. Kim Porter struck Mr. Myles in the head with an object several times. Mr. Myles began bleeding. Mr. Salmons and Matthew Callahan returned carrying items stolen from Mr. Myles’ apartment.
After leaving Mr. Myles’ apartment, Mr. Salmons drove to Lewis County. Kim Porter described the events that next occurred as follows:
Q. Once you all got back in the car, what, if anything, happened?
A. When we got in the car, we went up in a hollow, I don’t know where it was located, and Matthew was talking about, you know, his family’s land or something, and he was talking about, you know, we could kill him and no one would find his body there. So we went a long ways up there and everyone had forced Mr. Myles out of the car and we all had gotten out and Blaine had tried to get Mr. Myles to fight him and he wouldn’t, so all of a sudden he just started throwing punches.
Q. Who’s that that started throwing punches?
A. Blaine. And then everyone started taking turns on beating him.
Q. Who were they beating?
A. Mr. Myles
# ;i« sfc ‡ ❖
Q. When the beatings were over, what did you think, what did you think about Mr. Myles?
A. He was on the ground, he was laying and blood was everywhere and I was scared. I thought he was dead.
After the beating, Mr. Myles was again forced into the car. Mr. Salmons and his accomplices then forced Mr. Myles to ride with them as far as Georgia. While in Georgia, Blaine Salmons decided he wanted to return to Charleston. Mr. Salmons and his accomplices agreed. At that point, Mr. Myles was instructed to drive the car. On March 29, 1996, Mr. Myles drove into Charleston with his abductors. Mr. Salmons and his accomplices got out of the car leaving Mr. Myles by himself. Mr. Myles was given a note by his abductors when they left him. The note read:
Philip, we all just want you to know that we’re sorry and we hope that you don’t go to the police becaus.e we’ll get away and then we’ll be back for you but if you just forget about everything, we’ll never come after you again but if you get one of the Crips in trouble, you will be a dead man so think smart before you do something stupid because you can’t get us all and you know that. Just go on with your life and don’t make us have a reason to come back for you. Peace.
Subsequent to Mr. Myles’ release by his abductors, a grand jury returned an indictment against Mr. Salmons charging him with kidnaping and aggravated robbery in the abduction of Mr. Myles. On November 22, 1996, a jury found Mr. Salmons guilty of both charges. On February 18, 1997, the trial court sentenced Mr. Salmons to thirty years imprisonment on the aggravated robbery conviction, and life imprisonment with mercy on the kidnaping conviction. The sentences were ordered to run concurrently. From this sentencing, Mr. Salmons appeals to this Court.
II.
DISCUSSION
A. The Failure to Disclose Exculpatory Evidence
Mr. Salmons’ first assignment of error involves a statement given to the police by Jeffrey Huff. Mr. Huff was at the Tap Room bar at the time of Mr. Myles’ abduction. Mr. Huff informed police investigating the crime that, as Mr. Myles left the bar, Mr. Myles stated that he was taking Mr. Salmons home. Mr. Huffs statement was never provided to Mi*. Salmons. Mr. Salmons contends in this appeal that failure to produce the statement to him violated the disclosure principles articulated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Rule 26.2 of the West Virginia Rules of Criminal Procedure; and Rule 612(b) of the West Virginia Rules of Evidence.
Before considering the Brady assignment of error, we must first decide whether the Brady issue is properly before this Court. “We are duty bound to take up [this] issue sua sponte, because it implicates the scope of our appellate jurisdiction.” Province v. Province, 196 W.Va. 473, 478 n. 11, 473 S.E.2d 894, 899 n. 11 (1996). The record does not indicate how or when Mr. Salmons first learned of Mr. Huffs statement. Mr. Salmons’ brief mentions, in a footnote, that the defense was unaware of the statement during the trial. The State acknowledges the existence of the statement and has briefed the issue. Regardless of these facts, it appears that the issue of Mr. Huffs statement was never presented to the trial court, as there is no court order or hearing transcript directly addressing Mr. Huffs statement evidencing that the trial court had an opportunity to rule on the matter. While the parties apparently agree that this Court should consider the present issue, we are not bound to hear it. “Courts are never bound by the acts or agreements of the parties.” Bartles v. Hinkle, 196 W.Va. 381, 388, 472 S.E.2d 827, 834 (1996).
We have held that “[a]s a general rule, proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears upon the record, and errors assigned for the first time in an appellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court if objected to there.” Syl. pt. 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). “We have invoked this principle with a near religious fervor. This variant of the ‘raise or waive’ rule cannot be dismissed lightly as a mere technicality. The rule is founded upon important considerations of fairness, judicial economy, and practical wisdom.” State v. Miller, 197 W.Va. 588, 597, 476 S.E.2d 535, 544 (1996). See Syl. pt. 4, State v. Browning, 199 W.Va. 417, 485 S.E.2d 1 (1997) (“This Court will not consider an error which is not properly preserved in the record nor apparent on the face of the record.”); State v. Grimmer, 162 W.Va. 588, 595, 251 S.E.2d 780, 785 (1979) (“When there is an opportunity to speak, silence may operate as a waiver of objections to error and irregularities at the trial which, if seasonably made and presented, might have been regarded as prejudicial.”).
The philosophy underlying this Court’s refusal to address objections raised for the first time on appeal was artfully explained in Wimer v. Hinkle, 180 W.Va. 660, 663, 379 S.E.2d 383, 386 (1989), as part of a design “to prevent a party from obtaining an unfair advantage by failing to give the trial court an opportunity to rule on the objection and thereby correct potential error.” We elaborated on this matter in Whitlow v. Board of Educ. of Kanawha County, 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993), as follows:
The rationale behind this rule is that when an issue has not been raised below, the facts underlying that issue will not have been developed in such a way so that a disposition can be made on appeal. Moreover, we consider the element of fairness. When a ease has proceeded to its ultimate resolution below, it is manifestly unfair for a party to raise new issues on appeal. Finally, there is also a need to have the issue refined, developed, and adjudicated by the trial court, so that we may have the benefit of its wisdom.
In State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996), we expounded further:
Our cases consistently have demonstrated that, in general, the law ministers to the vigilant, not to those who sleep on their rights.... When a litigant deems himself or herself aggrieved by what he or she considers to be an important occurrence in the course of a trial or an erroneous ruling by a trial court, he or she ordinarily must object then and there or forfeit any right to complain at a later time. The pedigree for this rule is of ancient vintage, and it is premised on the notion that calling an error to the trial court’s attention affords an opportunity to correct the problem before irreparable harm occurs. There is also an equally salutary justification for the raise or waive rule: It prevents a party from making a tactical decision to refrain from objecting and, subsequently, should the case turn sour, assigning error (or even worse, planting an error and nurturing the seed as a guarantee against a bad result). In the end, the contemporaneous objection requirement serves an important purpose in promoting the balanced and orderly functioning of our adversarial system of justice.
See Hanlon v. Logan County Bd. of Educ., 201 W.Va. 305, 315, 496 S.E.2d 447, 457 (1997) (“Long standing case law and procedural requirements in this State mandate that a party must alert a tribunal as to perceived defects at the time such defects occur in order to preserve the alleged error for appeal.”); State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996) (“The rule in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they forget their lines, they will likely be bound forever to hold their peace.”).
From what the record reveals to this Court, it is clear that the issue of Mr. Huffs statement should have been presented to the trial court in the first instance as a motion for new trial under Rule 33 of the West Virginia Rules of Criminal Procedure, within ten days of the verdict or at some point thereafter as newly-discovered evidence. See State v. O’Donnell, 189 W.Va. 628, 433 S.E.2d 566 (1993) (reversing trial court’s denial of motion for new trial based upon newly-discovered evidence); State v. Ward, 188 W.Va. 380, 424 S.E.2d 725 (1991) (affirming denial of motion for new trial based upon failure to disclose evidence); State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983) (affirming circuit court’s denial of motion for new trial based upon newly-discovered evidence); State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983) (reversing case, but affirming trial court’s denial of motion for new trial based upon newly-discovered evidence). Based upon the foregoing, we hold that, as a general matter, a defendant may not assign as eiTor, for the first time on appeal, an issue that could have been presented initially for review by the trial court on a post-trial motion.
As we indicated above, ordinarily this Court will decline, on a direct appeal, to consider the merits of an assignment of error in a criminal case that was not initially presented to the trial court. Traditionally, though, this Court has been a diligent protector of a criminal defendant’s constitutional right to a fair trial. See, e.g., State ex rel. Charleston Mail Ass’n v. Ranson, 200 W.Va. 5, 488 S.E.2d 5 (1997) (balancing criminal defendant’s right to fair trial against first amendment rights of news sources); State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504 (1995) (examining criminal defendant’s right to fair trial in light of negligent failure to preserve evidence); State v. Franklin, 174 W.Va. 469, 327 S.E.2d 449 (1985) (scrutinizing criminal defendant’s right to fair trial by impartial jury where courtroom spectators wore badges demonstrably protesting defendant’s allegedly illegal activities). See generally W. Va. Const, art. 3, § 14. As Justice Cleckley pointed out in Miller, 197 W.Va. at 598, 476 S.E.2d at 545,
the “raise or waive” rule, though important, is a matter of discretion. Thus, like most rules, this rule admits of an occasional exception. Exceptions must be few and far between and, therefore, an appellate court’s discretion should not be affirmatively exercised unless the equities heavily preponderate in favor of such a step.
Considering the weighty importance of the constitutional right to a fair trial, we feel that the circumstances of the instant appeal concerning newly-discovered evidence do, in fact, present the very narrow set of circumstances which would permit an exception to the raise or waive rule. Therefore, we hold that when a defendant assigns an error in a criminal case for the first time on direct appeal, the state does not object to the assignment of error and actually briefs the matter, and the record is adequately developed on the issue, this Court may, in its discretion, review the merits of the assignment of error.
It is imperative that we draw a line of caution to defense counsels. “It must be emphasized that the contours for appeal are defined at the circuit court level by setting forth with particularity and at the appropriate time the legal ground upon which the parties intend to rely.” Cooper, 196 W.Va. at 216, 470 S.E.2d at 170. As a general matter, trial judges must be given an opportunity to consider alleged errors so that corrections may be made, if warranted, at the trial level. Rule 33 embodies this principle by encouraging motions for a new trial within ten days of a verdict or soon thereafter based upon newly-discovered evidence. Judicial economy, efficiency, and respect for trial judges are advanced through affording trial judges the opportunity to address potential trial errors in the first instance. See State v. Snider, 196 W.Va. 513, 519, 474 S.E.2d 180, 186 (1996) (“An appellate court looks primarily to the persuasiveness of the trial court’s reasons for [rulings on alleged errors] and gives due regard not only to the factors that inform our opinion but also to its superior point of vantage.”).
Applying the extremely narrow exception to the raise or waive rule announced in this opinion, we obtain the following results. In the instant proceeding, Mr. Salmons alleges not to have known of the existence of Mr. Huffs statement before or during the trial. However, at some point after the trial, but before the petition for appeal was filed, Mr. Salmons learned of Mr. Huffs statement. Mr. Salmons alleges that Mr. Huffs statement is exculpatory evidence. Mr. Salmons did not seek a new trial under Rule 33, and therefore, the trial court was not given an opportunity to rule on this matter. Moreover, the State made no objection to the issue being raised for the first time on appeal and has briefed and argued the issue. Additionally, the statement by Mr. Huff was placed under seal by the trial court as part of a “police grand jury report” and made part of the record. In view of these factors, this Court will exercise its discretion and determine whether, as alleged by Mr. Salmons, the failure to produce Mr. Huffs statement violated Brady, W. Va. R.Crim. P. Rule 26.2 and W. Va. R. Evid. Rule 612(b). '
1. The Brady Argument. Mr. Salmons alleges that Mr. Huffs statement was exculpatory evidence which the State was required to turn over under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and this Court’s decisions interpreting Brady. “In the context of criminal trials, it is without question that it is a constitutional violation of a defendant’s right to a fair trial for a prosecutor to withhold or suppress exculpatory evidence.” Lawyer Disciplinary Bd. v. Hatcher, 199 W.Va. 227, 232, 483 S.E.2d 810, 815 (1997).
In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196-97. Subsequently, in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Court held that the prosecution had a duty to disclose exculpatory evidence even though no requests were made for it. This Court has incorporated into West Virginia jurisprudence the principles set forth in Brady and Agurs. We held in syllabus point 4 of State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982), that “[a] prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution.” See State v. Osakalumi, 194 W.Va. 758, 763, 461 S.E.2d 504, 509 (1995); Syl. pt. 3, State v. Thomas, 187 W.Va. 686, 421 S.E.2d 227 (1992); Syl. pt. 2, State v. Wheeler, 187 W.Va. 379, 419 S.E.2d 447 (1992); State v. Ward, 188 W.Va. 380, 391, 424 S.E.2d 725, 736 (1991); Syl. pt. 1, State v. James, 186 W.Va. 173, 411 S.E.2d 692 (1991); Syl. pt. 4, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989); Syl. pt. 1, State v. Hall, 174 W.Va. 787, 329 S.E.2d 860 (1985). The decision in Agurs formulated the following test for determining the materiality of undisclosed evidence when a defense request for the specific evidence is not made:
It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.
Agurs, 427 U.S. at 112-13, 96 S.Ct. at 2402. See Hatfield, 169 W.Va. at 205, 286 S.E.2d at 411.
In a third landmark case, United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the United States Supreme Court held that there was no difference between exculpatory and impeachment evidence for Brady purposes. The decision in Bagley held that exculpatory or favorable evidence is material to a defendant “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. See Syl. pt. 6, State v. Kerns, 187 W.Va. 620, 420 S.E.2d 891 (1992); Ward, 188 W.Va. at 391, 424 S.E.2d at 736; Fortner, 182 W.Va. at 353, 387 S.E.2d at 820.
In a recent decision, Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), several implications flowing from Bagley were expounded. First, Kyles held that under Bagley “a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” Kyles, 514 U.S. at 434, 115 S.Ct. at 1565. Under Bagley the issue becomes whether, in the absence of the evidence, the defendant received a fair trial. Thus, establishing reasonable probability under Bagley means showing that the government’s nondisclosure undermines confidence in the outcome of the prosecution. Id. Second, Kyles indicated that the Bagley analysis is not a sufficiency of evidence test. Establishing a Brady violation does not require “demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 435, 115 S.Ct. at 1566. Third, Kyles noted that “once a reviewing court applying Bagley has found constitutional error there is no need for further harmless-error review.” Id. Kyles’ disapproval of the harmless error analysis once a Brady violation is determined was explicitly made in the context of habeas corpus review, not direct appeal. Fourth, Kyles held that under Bagley the government has some degree of discretion, but also a corresponding burden:
On the one side, showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution ... must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation, the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.
Id. at 437-438,115 S.Ct. at 1567-1568.
This Court has previously considered cases dealing with prosecutions that have withheld potentially exculpatory evidence. In State v. Hatfield, supra, the defendant was convicted of first degree murder. The defendant learned during his trial that the State knew the identity of the person who owned a gun that was found at the victim’s residence. The owner of the gun was a witness for the defendant. This Court held in Hatfield that the identity of the owner of the gun was not exculpatory evidence. In State v. Hall, supra, the defendant also was convicted of first degree murder. After the conviction, the defendant learned that the State failed to produce a statement by the eyewitness to the crime. The statement contradicted the witness’ trial testimony. This Court found that, based upon the crucial testimony of the witness, a Brady violation occurred, and a new trial was necessary.
In State v. Fortner, supra, the defendant was convicted of sexual offenses. On appeal, the defendant argued that the State failed to disclose a statement given to the police by the victim. The undisclosed statement revealed that one of the five men who had taken part in the sexual offenses committed against the victim had taken a less active part in the crimes. The defendant did not become aware of the victim’s statement until after his trial. It was undisputed by the State that it had the statement and failed to disclose the statement to the defendant prior to trial. We concluded in Fortner that the statement withheld by the prosecution did not contain clearly exculpatory evidence. We also decided that the evidence at trial demonstrated that the defendant could not have been the “fifth man” alluded to by the victim in her statement to the police. Accordingly, the statement could not have impacted on the defendant’s guilt or innocence.
Similarly, in this Court’s decision in State v. Ward, supra, we were again confronted with the issue of alleged exculpatory evidence not being turned over by the State. The defendant in that case was convicted of first degree murder. In Ward, the State failed to reveal the identity of a witness and a statement made by the witness to the police. The statement given by the witness identified another person at the crime scene. The defendant did not learn of the witness and statement until after his trial. This Court concluded that the nondisclosure to the defendant of the witness and statement, in the context of all other evidence in the case, did not violate the defendant’s due process rights. We said that the potentially exculpatory evidence, particularly in light of other contradictory evidence, in no way contradicted the evidence used to convict the defendant at trial. Further, we found to be questionable whether the evidence would even establish that someone else not matching the defendant’s description was present at the crime scene near the time the crime was committed.
In the instant proceeding, Mr. Salmons argues that Mr. Huffs statement contained exculpatory material which the State was constitutionally required to disclose. Mr. Huffs statement indicates only that Mr. Myles voluntarily left the Tap Room with Mr. Salmons. Mr. Salmons’ brief contends that Mr. Myles testified “that he did not voluntarily leave the bar and get into his car with Michael Salmons.” Mr. Salmons further contends that “Huffs statement not only contradicted Myles’ version of the facts, but directly negated an essential element of the crimes charged.” Mr. Myles never testified that he was abducted from inside the bar. On the issue of leaving the bar, Mr. Myles testified as follows:
Q. So at that point in time, Blaine Salmons had left, Kim Porter had left and these other two individuals that you didn’t know had left, is that correct?
A. Yes.
Q. The only individual of this group that was still in the bar was Michael Salmons?
A. That’s correct.
Q. What happened next?
A. I walked out the door and started to get into my car and Michael Salmons said, “Hey, let’s go play a game of pool,” and I said, “No, I have something to do. I need to go and I’ve got a meal in the car and I’m going home.”
Q. When Michael asked you to play pool and you refused, what happened?
A. He asked me again and I said no, I don’t want to, and I started to put my keys in the ear and he grabbed me by the shirt here and started wrestling me, then he started motioning like this in the alley.
Mr. Myles’ testimony indicated clearly that upon leaving the bar, he voluntarily stood at his car and talked with Mr. Salmons. While outside the bar', during the course of a mutual conversation near Mr. Myles’ car, the abduction occurred. No witness testified that Mr. Myles involuntarily left the bar. Moreover, in this Court’s review of the State’s opening statement and closing argument we did not discern any language which suggested Mr. Myles was abducted from inside the Tap Room. Thus, Mr. Huffs statement was not exculpatory evidence, nor did it have any value as impeachment evidence. James, 186 W.Va. at 175, 411 S.E.2d at 694 (“[Ijmpeachment evidence that might be used to show ‘bias or interest’ ... falls within the Brady rule.”). In sum, Mr. Huffs statement was immaterial. See Syl. pt. 1. State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979) (“ ‘Before prosecutorial error can occur under the doctrine of suppression of evidence, it must be shown that the evidence suppressed would be relevant to an issue at the criminal trial.’ ” (quoting Syl. pt. 4, State v. Bolling, 162 W.Va. 103, 246 S.E.2d 631 (1978))). Therefore, we conclude that no Brady violation occurred.
2. The Rule 26.2 Argument. At trial, the State called as a witness Detective L. Pauley of the Charleston Police Department. Detective Pauley was the lead investigating officer in the ease. He also testified before the grand jury. At the conclusion of direct examination of Detective Pauley, Mr. Salmons moved the trial court, for purposes of cross examination, to require the State to turn over a “police grand jury report” compiled by Detective Pauley for the State’s presentation to the grand jury. The trial court denied the motion.
Mr. Salmons argues on appeal that he was entitled, under W. Va. R.Crim. P. Rule 26.2, to have a copy of the “police grand jury report.” This argument is premised, rather precariously, upon proving that had the “police grand jury report” been produced in its entirety, Mr. Salmons would have obtained the statement by Mr. Huff, which was contained in the “police grand jury report.” The presentation of this issue is, therefore, an indirect route to Mr. Salmons’ Brady claim. We have already determined that failure to turn over Mr. Huffs statement did not present a Brady violation. Nevertheless, because Mr. Salmons’ argument attacks the “police grand jury report” in its entirety, we must address this issue. “ ‘Whether, in a particular case, the production of such a [report] will be ordered is a question for the trial court in its discretion to resolve.’ ” State v. Kerns, 187 W.Va. 620, 627, 420 S.E.2d 891, 898 (1992) (quoting Charles E. Torcia, Wharton’s Criminal Procedure § 336, at 655 (13th ed.1990)). Therefore, this Court reviews a trial court’s ruling on a Rule 26.2 motion for abuse of discretion. See Kerns, 187 W.Va. at 627, 420 S.E.2d at 898.
We note at the outset that Mr. Salmons has cited State v. Miller, 184 W.Va. 492, 401 S.E.2d 237 (1990) (per curiam), and State v. Gale, 177 W.Va. 337, 352 S.E.2d 87 (1986) (per curiam), for the proposition that a “police grand jury report” is a statement within the meaning of Rule 26.2. First, we have reminded the bar that per curiam opinions are not to be cited to this Court as authority. Second, neither of the cases cited support Mr. Salmons’ argument. Rule 26.2 of the West Virginia Rules of Criminal Procedure imposes certain conditions for the disclosure of the prior statements of a witness, who is not the defendant, to the adverse party for purposes of impeachment. There are four basic conditions that must be met to require disclosure under Rule 26.2. First, a witness’ prior statement being sought for the purpose of impeaching the direct testimony of that witness must satisfy the definition of a witness’ prior statement pursuant to Rule 26.2(f). Second, the statement must be possessed by the proponent of the witness. Third, the witness’ prior statement must relate to the subject matter of the witness’ testimony on direct examination. Fourth, the prior statement need not be disclosed earlier than the conclusion of the witness’ testimony on direct examination. See 25 Moore’s Federal Practice § 626.2.04[2][a] (1998). Thus, the threshold inquiry for this Court is whether the “police grand jury report” constitutes a statement within the meaning of Rule 26.2. We now proceed to make such an inquiry.
In syllabus point 1 of State v. Wheeler, 187 W.Va. 379, 419 S.E.2d 447 (1992), we determined Rule 26.2(a) provides that
After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the State or the defendant and his attorney, as the case may be, to produce for the examination and use of the moving party any statement of the witness that is in their possession that relates to the subject matter concerning which the witness has testified.
See Syl. pt. 13, State v. McFarland, 175 W.Va. 205, 332 S.E.2d 217 (1985). The critical issue stemming from Wheeler’s pronouncement involves the determination of what is meant by the term “statement.” Rule 26.2(f) defines “statement” to mean (1) a written statement made by the witness that is signed or otherwise adopted or approved by the witness; (2) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical or other recording or a transcription thereof; or (3) a statement, however taken or recorded or a transcription thereof, made by the witness to a grand jury.
“Our Rule 26.2 is patterned after Rule 26.2 of the Federal Rules of Criminal Procedure[.]” State v. Watson, 173 W.Va. 553, 558, 318 S.E.2d 603, 608 (1984). See Kerns, 187 W.Va. at 627 n. 9, 420 S.E.2d at 898 n. 9; State v. Miller, 175 W.Va. 616, 626, 336 S.E.2d 910, 920 (1985). Federal courts interpreting Rule 26.2(f) of the federal rules of criminal procedure have clearly held that, as a general matter, “for production to be required, the materials should not only reflect the witness’ own words, but should also be in the nature of a complete recital that eliminates the possibility of portions being selected out of context.” United States v. Bobadilla-Lopez, 954 F.2d 519, 522 (9th Cir.1992). We observed in McFarland, 175 W.Va. at 221, 332 S.E.2d at 234, that “Rule 26.2(f)(1) defines ‘statement,’ inter alia, as ‘[a] written statement made by the witness that is signed or otherwise adopted or approved by him.’ ” (Citation omitted)
This Court noted in syllabus point 3 of Watson that “[t]he term ‘statement’ [as] de fined in Rule 26.2(f)[ (3) ] ... includes a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.” 173 W.Va. 553, 318 S.E.2d 603. Under Watson the State, in the instant proceeding, would have been obligated to produce the actual testimony given to the grand jury by Detective Pauley, but only insofar as that testimony actually related to his trial testimony on direct examination. See United States v. Medina, 992 F.2d 573, 580 (6th Cir.1993); United States v. Hill, 976 F.2d 132, 140 (3rd Cir.1992); United States v. Span, 970 F.2d 573, 582 (9th Cir.1992). However, the request here is the “police grand jury report,” not Detective Pauley’s actual testimony before the grand jury. See generally, Kerns 187 W.Va. at 625-627, 420 S.E.2d at 896-898 (defendant sought production of actual statement made by testifying witness).
In the instant proceeding, Detective Pauley described the “police grand jury report” as a compilation of all the relevant evidence obtained by police officers during the investigation of this case, which would include documentary and physical evidence. The compilation of this evidence was for the sole purpose of providing it to the prosecutor to be presented by the prosecutor to the grand jury. Clearly, as the applicable law relied upon above indicates, the “police grand jury report” does not meet the threshold requirement of a “statement” under Rule 26.2(f). See Syl. pt. 14, McFarland, 175 W.Va. 205, 332 S.E.2d 217 (“A witness’ notes which are abstracts from reports in the possession of a defendant in a criminal case do not constitute a ‘statement’ as defined in W.Va.R.Crim.P. 26.2(f).”).
Mr. Salmons invites this Court to adopt an interpretation of Rule 26.2 that would allow production of a “police grand jury report” anytime a law enforcement officer responsible for compiling such a report testifies at trial. We refuse to follow this path to its logical chaotic conclusion. Rule 26.2 was not intended to be a clearing house for obtaining documents. The intent of Rule 26.2 is to permit a party to obtain actual statements made by a witness for the purpose of impeaching the testimony of that witness. Therefore, we hold that the “police grand jury report” is not, in and of itself, a statement within the meaning of Rule 26.2(f). Thus, the trial court did not abuse its discretion in denying production of the “police grand jury report” under Rule 26.2.
3. The Rule 612(b) Argument. Mr. Salmons further contends on appeal that he was entitled to the “police grand jury report” under W. Va. R. Evid. Rule 612(b) because Detective Pauley testified that he reviewed the “police grand jury report” prior to his testimony. Mr. Salmons seeks to establish that, had the “police grand jury report” been turned over in its entirety, Mr. Salmons would have obtained Mr. Huffs statement. Having resolved the Brady issue, we nevertheless are obligated to address this issue because this argument, like the Rule 26.2 argument, is a direct attack upon the “police grand jury report” as a whole. We review the trial court’s Rule 612 ruling for an abuse of discretion. See State v. Farmer, 200 W.Va. 507, 512, 490 S.E.2d 326, 331 (1997); Syl. pt. 1, McDougal v. McCam mon, 193 W.Va. 229, 455 S.E.2d 788 (1995); Syl. pt. 10, Board of Ed. of McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990).
Rule 612 enumerates the conditions under which a writing or object used to refresh a witness’ memory, either (1) while testifying or (2) before testifying, may be made available to the adverse party. If the writing or object is used while a witness is testifying, it is mandatory that it be produced. However, if the writing or object is used by the witness before testifying, the determination as to whether the writing or object is to be produced is discretionary with the trial court. See United States v. Nobles, 422 U.S. 225, 232 n. 6, 95 S.Ct. 2160, 2167 n. 6, 45 L.Ed.2d 141 (1975). In United States v. Sheffield, 55 F.3d 341, 343 (8th Cir.1995), it was held that “Rule 612 is not a vehicle for a plenary search for contradictory or rebutting evidence that may be in a file but rather is a means to reawaken recollection of the witness to the witness’ past perception about a writing.” Rule 612 is a rule of evidence. Rule 612 is not a rule of discovery. Its sole purpose is evidentiary insofar as it seeks to promote the search for credibility and memory. See Sporck v. Peil, 759 F.2d 312, 317 (3d Cir.1985). For the purposes of Rule 612, “writing” or “object” includes songs, photographs, sound recordings, and even scents or allusions. It does not matter that the writing or object is an original or a copy. See United States v. Rappy, 157 F.2d 964 (2d Cir.1946); Franklin D. Cleckley, 1 Handbook on Evidence § 6 — 12(C)(4) (1994). “When a writing is used to refresh a witness’ memory the writing itself is not the primary evidence. Rather, the oral testimony of the witness whose memory has been refreshed constitutes the evidence.” Moore, Vestal & Kur-land, 1 Moore’s Manual: Federal Practice and Procedure, ch. 4, § 4.06 (1998).
Under Rule 612(b) if a witness, before testifying, uses a writing or object to refresh his/her memory for the purpose of testifying, then, if the trial court finds that the interests of justice so require, an adverse party is entitled to have the writing or object, if practicable, at the trial. Mr. Salmons contends that under the language of Rule 612(b), the “police grand jury report” should have been produced. The State disagrees for a fundamental reason. The State correctly notes that an exception to Rule 612(b) is contained in Rule 612(c), and that the exception is applicable to this case. Rule 612(c) provides, in relevant part, that “[i]f it is claimed that the writing or object contains matters not related to the subject matter of the testimony, the court shall examine the writing or object in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto.” We agree with the State’s fundamental observation. Rule 612(c) disposes of this issue.
In denying Mr. Salmon’s request for the “police grand jury report” in full, the trial court indicated on the record that it conducted an in camera review of the report and was making the report part of the record for appeal purposes. The trial court also indicated the following:
The report is under seal. The report and everything in it is under seal. As to the substance of the information in the report, you [defendant Salmons] have it all. I reviewed that. I listened to the testimony of the witness. There’s not anything in there that has come into this trial that has not been produced. That’s all I can say.
The trial court concluded that the testimony of Detective Pauley did not relate to any of the documents in the “police grand jury report” that had not already been turned over to Mr. Salmons. Mr. Salmons’ argument in this appeal is that, as a result of Detective Pauley’s testimony, he was entitled to Mr. Huffs statement. We have examined Detective Pauley’s testimony and conclude, as did the trial court, that Detective Pauley’s testimony did not relate to Mr. Huffs statement. Thus, we find no abuse of discretion in the trial court’s denial of Mr. Salmons’ request for the “police grand jury report” under Rule 612(b).
B. Striking Two Jurors For Cause
The trial court struck two jurors who indicated a bias toward homosexuals. Mr. Salmons contends that the trial court struck the two jurors because of their religion. This Court reviews a trial judge’s decision to strike a juror for cause under an abuse of discretion standard. See State v. Wade, 200 W.Va. 637, 490 S.E.2d 724 (1997). We held in syllabus point 6 of State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996), in part, that “[a]n appellate court ... should interfere with a trial court’s discretionary ruling on a juror’s qualification to serve because of bias only when it is left with a clear and definite impression that a prospective juror would be unable faithfully and impartially to apply the law.” Notwithstanding the deference generally accorded in this area, this Court “give[s] strict scrutiny to cases involving the alleged wrongful injection of race, gender, or religion in criminal eases.” State v. Guthrie, 194 W.Va. 657, 681, 461 S.E.2d 163,187 (1995).
It was noted in State v. Charlot, 157 W.Va. 994, 1000, 206 S.E.2d 908, 912 (1974), that “[t]he true test to be applied with regard to qualifications of a juror is whether a juror can, without bias or prejudice, return a verdict based on the evidence and the court’s instructions and disregard any prior opinions he may have had.” See Syl. pt. 1, Wheeler v. Murphy, 192 W.Va. 325, 452 S.E.2d 416 (1994); Syl. pt. 1, State v. Harshbarger, 170 W.Va. 401, 294 S.E.2d 254 (1982). This Court held in syllabus point 5 of Miller, 197 W.Va. 588, 476 S.E.2d 535, that “[ajctual bias can be shown either by a juror’s own admission of bias or by proof of specific facts which show the juror has such prejudice or connection with the parties at trial that bias is presumed.” Moreover, the opinion in Miller held in syllabus point 4, id., that:
The relevant test for determining whether a juror is biased is whether the juror had such a fixed opinion that he or she could not judge impartially the guilt of the defendant. Even though a juror swears that he or she could set aside any opinion he or she might hold and decide the case on the evidence, a juror’s protestation of impartiality should not be credited if the other facts in the record indicate to the contrary.
During jury selection in the instant proceeding, the trial court informed the jury panel that evidence might be presented in the case concerning homosexuality. Two ju rors indicated they held prejudices towards homosexuals. Both witnesses made remarks indicating that their bias toward homosexuals was a product of their religion. The trial court struck both jurors for cause. Mr. Salmons argues that the jurors were struck because of their Christian faith. The State disagrees. So do we. The record is quite clear. The trial judge went to great lengths to place on the record that the two jurors were not being struck because of their religion. The jurors were struck because they admitted they held prejudices against homosexuals. The trial court was not convinced by statements from both jurors that they would be able to put aside their biases towards homosexuals.
This Court ruled in Miller that ultimately “a trial judge is entitled to rely upon [his/her] self-evaluation of allegedly biased jurors [when] determining actual juror bias.” 197 W.Va. at 605, 476 S.E.2d at 553. The trial judge is in the best' position to determine the sincerity of a juror’s pledge to abide by the court’s instructions. Therefore, his/her assessment is entitled to great deference. Miller, 197 W.Va. at 605-606, 476 S.E.2d at 553-554. In Miller, the trial court did not strike two jurors for cause who expressed prejudices towards homosexuals. This Court did not reverse the trial court’s decision in Miller on the issue of prejudices towards homosexuals. However, Justice Cleckley made quite clear that “this Court [was] greatly troubled by the fact that jurors who indicated negative personal opinions about the defendant’s sexual orientation were permitted to serve over a challenge for cause. Indeed, we have ruled the injection of these types of issues into a trial would warrant reversal of the conviction on those grounds alone.” Miller, 197 W.Va. at 606, 476 S.E.2d at 553. In the instant proceeding, the trial judge observed the demeanor and listened to the tone of voice of the two jurors, matters not reproducible in a record. The trial judge determined that the two jurors would not put aside their acknowledged biases towards homosexuals. Therefore, we discern no abuse of discretion.
C. Failure To Advise Defendant Of His Right To Testify
At the close of the State’s casein-chief, Mr. Salmons indicated that he was not presenting evidence. The trial court made no inquiry as to whether Mr. Salmons knew he had a right to testify, nor did the trial judge inquire as to whether Mr. Salmons made a knowing, voluntary, and intelligent waiver of his right to testify. Mr. Salmons argues in this appeal that it was reversible error for the trial court to fail to make such inquiries. “A criminal defendant’s right to give testimony on his own behalf is protected under article three, section ten of our Constitution, as well as the due process provisions of the federal constitution.” Syl. pt. 4, State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77 (1988). In syllabus point 5 of Neuman, id., we held that “[c]ertain constitutional rights are so inherently personal and so tied to fundamental concepts of justice that their surrender by anyone other than the accused acting voluntarily, knowingly, and intelligently would call into question the fairness of a criminal trial.” The decision in Neuman established a prophylactic rule to protect a defendant’s constitutional right to testify. In syllabus point 7 of Neuman, id., the Court stated:
A trial court exercising appropriate judicial concern for the constitutional right to testify should seek to assure that a defendant’s waiver is voluntary, knowing, and intelligent by advising the defendant outside the presence of the jury that he has a right to testify, that if he wants to testify then no one can prevent him from doing so, that if he testifies the prosecution will be allowed to cross-examine him. In connection with the privilege against self-incrimination, the defendant should also be advised that he has a right not to testify and that if he does not testify then the jury can be instructed about that right.
See State v. Blake, 197 W.Va. 700, 478 S.E.2d 550 (1996); State v. Robinson, 180 W.Va. 400, 376 S.E.2d 606 (1988).
Mr. Salmons contends, and the State concedes, that Neuman was violated by the trial court’s failure to inquire into his decision not to testify. In syllabus point 2 of State ex rel May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964), we observed that “[c]ourts indulge every reasonable presumption against waiver of a fundamental constitutional right and will not presume acquiescence in the loss of such fundamental right.” The State invites this Court to overrule Neuman as an unworkable procedural device. Alternatively, the State argues that a Neuman violation is subject to a harmless error analysis. We are not prepared to overrule Neuman. However, we believe the State is correct in its urging that a Neuman violation should be subjected to a harmless error analysis.
Justice Cleckley observed in State v. Blake, 197 W.Va. 700, 712, 478 S.E.2d 550, 562 (1996), “that the rule in Neuman was merely a procedural/prophylactic rule[.]” Blake articulated that “Neuman clarified applicable procedural law only, and not substantive or constitutional law[.]” Id. 197 W.Va. at 713, 478 S.E.2d at 563. In State v. Blair, 158 W.Va. 647, 659, 214 S.E.2d 330, 337 (1975), we noted that “[t]he doctrine of harmless error is firmly established by statute, court rule and decisions as a salutary aspect of the criminal law of this State. In a constitutional context, the doctrine is also applied because appellate courts are not bound to reverse for a technical violation of a fundamental right.” (Citations omitted.) The decision in Blair further held in syllabus point 5 that “[f]ailure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.” Id. It defies logic for this Court to hold that a harmless error analysis applies to substantive constitutional violations, yet hold that a harmless error analysis does not apply to a prophylactic rule designed to protect enforcement of a constitutional right. In fact, “[o]ur cases consistently have held that nonconstitu-tional errors are harmless unless the reviewing court has grave doubt as to whether the [error] substantially swayed the verdict.” State v. Potter, 197 W.Va. 734, 748, 478 S.E.2d 742, 756 (1996). See State v. Rahman, 199 W.Va. 144, 483 S.E.2d 273 (1996); State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995); State v. Young, 185 W.Va. 327, 406 S.E.2d 758 (1991); State v. Ferrell, 184 W.Va. 123, 399 S.E.2d 834 (1990). Therefore, we hold that a violation of Neuman is subject to a harmless error analysis.
In devising a test for harmless error analysis of a Neuman violation we must be mindful of the rationale in Neuman. That is, Neuman seeks to assure that a defendant is aware of his or her right to testify and that there has been no coercion or trickery in a defendant’s decision to relinquish the constitutional right to testify. In a real sense, the issue of evidentiary innocence or guilt is not a direct concern in Neuman. Thus, we hold that a rebuttable presumption exists that a defendant represented by legal counsel has been informed of the constitutional right to testify. When a defendant is represented by legal counsel, a Neuman violation is harmless error in the absence of evidence that a defendant’s legal counsel failed to inform him/her of the right to testify, or that the defendant was coerced or misled into relinquishing the right to testify. When a defendant represents him/herself at trial, a Neuman violation is harmless error where it is shown that the defendant was in fact aware of his/her right to testify and that the defendant was not coerced or misled into relinquishing the right to testify. Applying this test to the instant case, we find that Mr. Salmons was in fact represented by legal counsel. There is nothing in the record to rebut the presumption that legal counsel failed to inform Mr. Salmons of the right to testify. The record fails to disclose any facts showing or suggesting that Mr. Salmons was coerced or misled into giving up the right to testify. In view of the test applied in this case, we find that the Neuman violation was harmless error.
III.
CONCLUSION
In view of the foregoing, we find no error in the conviction and sentence in this case. Therefore, the decision of the Circuit Court of Kanawha County is affirmed.
Affirmed.
. Mr. Salmons' brief cited the date February 27, 1996. However, the evidence at trial and the indictment confirm the incident date of March 27, 1996.
. Mr. Myles was employed as a paralegal by the Attorney General of West Virginia.
. Mr. Myles drove to the bar with a friend, Daryl Adams. Mr. Adams left the bar before Mr. Myles departed.
. Mr. Salmons’ four accomplices were his brother Blaine Salmons, Kim Porter, John Murphy and an individual called Mariah.
. During Mr. Salmons’ trial, Kim Porter was called by the State to testify against him. During her testimony, Kim related the motive in going to the bar:
Q. After you were introduced to Blaine [Salmons], did you and Blaine have conversations?
A. Yes, sir.
Q. And did you have conversations relating to the possibility of going to Florida?
A. Yes, sir.
Q. And after you met Michael Salmons, were there any conversations?
A. Yes, sir.
Q. What were those conversations about?
A. About going to Florida, sir.
Q. Did there come a time when Michael and Blaine Salmons approached you about actually going to Florida?
A. There were conversations about it, yes.
Q. And did there come a time when a plan was developed and it was time to go?
Q. What was that plan?
A. We would go to the Tap Room on Quar-rier Street and we would find a gay guy with a fat wallet that had a lot of money and we would take their car and stuff and go to Florida and put him in the trunk.
. Kim Porter described the events to the jury as follows:
A. We were waiting in the alley for about five minutes and then Michael and Mr. Myles had come out of the bar and they was [sic] in the parking lot for a few minutes and we kept looking around the corner and everyone started running. Me, John and Mariah ... and Blaine—
Q. Let me interrupt you. Which way were you running?
A. Towards Michael and Mr. Myles. I'm sorry.
Q. What was the intention of you all running in that direction.
A. To get him in the alleyway.
Q. Get who?
A. Mr. Myles in the alleyway and rob him and put him in the trunk and head to Florida.
. Mr. Myles' car was a 1995 hatchback Camaro.
. Mr. Salmons and his accomplices financed their journey using Mr. Myles’ credit cards.
. The same indictment also charged Blaine Salmons, Matthew Callahan and Kim Porter with kidnaping and aggravated robbery.
. While the trial court did not rule upon the Brady issue regarding the statement of Mr. Huff specifically, it did address the Rule 26.2 and Rule 612(b) arguments in the context of a request for a "police grand jury report,” which happened to include a copy of Mr. Huffs statement. See infra Part II, § A(2) and A(3). In this first assignment of error, Mr. Salmons has focused upon a specific document that was part of the "police grand jury report,” i.e., Mr. Huff's statement. At trial, Mr. Salmons was unaware of and therefore did not specifically request Mr. Huff's statement.
. Rule 33 states in full:
The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice. If trial was by the court without a jury the court on motion of a defendant for a new trial may vacate the judgment if entered, take additional testimony, and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made only after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within ten days after verdict or finding of guilty or within such further time as the court may fix during the ten-day period.
. The five-prong standard for granting a new trial on the ground of newly-discovered evidence was restated in syllabus point one of State v. Crouch, 191 W.Va. 272, 445 S.E.2d 213 (1994):
A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that plaintiff was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.
Of course, the newly-discovered evidence rule contained in Crouch will not apply where the State has suppressed exculpatory material. In this context, the constitutional due process standard requires only that the evidence would have a reasonable likelihood of affecting the jury verdict. See State v. Frazier, 162 W.Va. 935, 942 n. 5, 253 S.E.2d 534, 538 n. 5 (1979).
. Another longstanding exception to the raise or waive rule is the plain error doctrine. We set forth the criteria for plain error in syllabus point 7 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), wherein it was held that "[t]o trigger application of the 'plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that affects the substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Alleged errors of a constitutional magnitude will generally trigger a review by this Court under the plain error doctrine. Allegations without a prima facie basis of support in the record will not establish the level necessary for a plain error analysis. The mere fact that an alleged error was not addressed by the trial court does not, alone, preclude this Court's use of the plain error doctrine. Indeed, our cases have held that this Court may "take notice of error ... even though such error was not brought to the attention of the trial court.” Syl. pt. 4, in part, State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988). See State ex rel. Morgan v. Trent, 195 W.Va. 257, 261 n. 5, 465 S.E.2d 257, 261 n. 5 (1995); Syl. pt. 6, State v. Mayo, 191 W.Va. 79, 443 S.E.2d 236 (1994); Syl. pt. 1, State v. Hanson, 181 W.Va. 353, 382 S.E.2d 547 (1989); State v. Spence, 182 W.Va. 472, 481 n. 10, 388 S.E.2d 498, 507 n. 10 (1989).
In the instant case, the Brady issue, obviously, presents a constitutional issue. As a general matter, our cases have required that an alleged error be such that a trial court had an opportunity to rule upon the issue even if it failed to do so. Typically, as with the present case, an alleged Brady violation will not present a trial court with an opportunity to make a ruling initially during an actual trial because the violation involves undisclosed evidence. Further, in this case, the lower court was not presented with the Brady issue in post-trial motions. In the instant proceeding the alleged Brady violation is problematically compounded, in that it does not present even de minimis support in the record to justify a plain error analysis by this Court.
. Where a Brady issue is presented to the Court as an assignment of error for the first time on direct appeal and this Court declines to hear the issue because the State objects and the record is inadequately developed, the defendant may seek review of the issue through a habeas corpus proceeding.
. See supra note 13.
. The record indicates that Mr. Salmons sought, during pretrial proceedings and at trial, a "police grand jury report” which actually contained Mr. Huff’s statement. The trial court placed the report under seal and made it part of the record. Its contents were not disclosed to Mr. Salmons.
. The Brady violations alleged in Osakalumi (new trial awarded) and Thomas (new trial awarded) involved a failure by the State to preserve evidence. The decision in James (affirmed conviction) involved the failure to disclose a plea agreement with a co-defendant. We did not resolve the Brady issue in James because of an insufficient record. We suggested the issue be brought in a habeas proceeding. The decision in Wheeler did not present a direct Brady violation. However, the opinion in that case noted that such a violation did not occur.
. The text of Mr. Huff's statement is as follows:
Soon there after they got up to leave [Mr. Salmons and Mr. Myles]. Philip said "Good [n]ite” and we gave each other a hug, and while doing so I quietly asked if he was taking them all home? He said "no just Mike.” We laughed at that and again said "Good [n]ite” to each other and I said "Good [n]ite, [n]ice [m]eeting you to Mike.” Philip had his car keys in his hand. When I left about 20 min[utes] later Philipfs] Black Camero was gone from where it was parked in lot not far from the door.
. We are disturbed by the statements on this issue which appear in Mr. Salmons’ petition for appeal and appeal brief. This Court fully understands and expects defense counsel to vigorously advocate for defendants on appeal. However, no reasonable interpretation of the trial testimony from any witness could lead to the conclusion that Mr. Myles was involuntarily removed from inside the Tap Room.
. We further clarify and emphasize that nothing in Mr. Huff's statement raised questions about the credibility or veracity of Mr. Myles’ account of the evenings events at the Tap Room. Specifically, Mr. Huff’s statement suggests that Mr. Myles might have intended, when they left the bar, to give Mr. Salmons a ride or gone home with Mr. Salmons. Assuming arguendo, that this was true, nothing in such a scenario contradicts any testimony given by Mr. Myles about the circumstances of his leaving the bar. An extensive cross-examination of Mr. Myles did not elicit any testimony that would be in contradiction to any inferences drawn from Mr. Huff's statement. Therefore, Mr. Huff's statement could not be viewed as impeachable evidence regarding Mr. Myles’ veracity or credibility.
. Mr. Salmons had made a similar request during pretrial proceedings.
. Rule 26.2 provides as follows:
(a)Motion for Production. After a witness other than the defendant has testified on direct examination, the court, on motion of a pariy who did not call the witness, shall order the attorney for the State or the defendant and the defendant’s attorney, as the case may be, to produce for the examination and use of the moving party any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.
(b) Production of Entire Statement. If the entire contents of the statement relate to the subject matter concerning which the witness has testified, the court shall order that the statement be delivered to the moving party.
(c) Production of Excised Statement. If the other party claims that the statement contains privileged information or matter that does not relate to the subject matter concerning which the witness has testified, the court shall order that it be delivered to the court in camera. Upon inspection, the court shall excise the portions of the statement that are privileged or that do not relate to the subject matter concerning which the witness has testified, and shall order that the statement, with such material excised, be delivered to the moving party. Any portion of the statement that is withheld from the defendant over his or her objection shall be preserved by the attorney for the state, and, if the defendant appeals a conviction, must be made available to the appellate court for the purpose of determining the correctness of the decision to excise the portion of the statement.
(d) Recess for Examination of Statement. Upon delivery of the statement to the moving party, the court, upon application of that party, may recess the proceedings so that counsel may examine the statement and prepare to use it in the proceedings.
(e) Sanction for Failure to Produce Statement. If the other party elects not to comply with an order to deliver a statement to (he moving party, the court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or, if it is the attorney for the state who elects not to comply, shall declare a mistrial if required by the interest of justice.
(f) Definition. As used in this rule, a statement of a witness means:
(1) A written statement made by the witness that is signed or otherwise adopted or approved by the witness;
(2) A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical or other recording or a transcription thereof or;
(3) A statement, however taken or recorded or a transcription thereof, made by the witness to a grand jury.
(g) Scope of Rule. This rule applies at a suppression hearing conducted under Rule 12, at trial under this rule, and to the extent specified:
(1) in Rule 32(d) at sentencing;
(2) in Rule 32.1(c) at a hearing to revoke or modify probation or supervised release; and
(3) in Rule 46(i) at a detention hearing.
. See United States v. Arboleda, 929 F.2d 858, 862 (1st Cir.1991).
. See State v. Watson, 173 W.Va. 553, 560, 318 S.E.2d 603, 610 (1984) ("[T]he court must ascertain if there exists a 'statement' within the meaning of the rule.”).
. See Syl. pt. 5, Watson, id. ("Under the 'in the possession of language of Rule 26.2(f) of the West Virginia Rules of Criminal Procedure, a prosecutor is required to disclose statements to which he has access even though he does not have the present physical possession of the statements.”).
. See United States v. Susskind, 4 F.3d 1400, 1404 (6th Cir.1993) (discussed in context of Jencks Act).
. See Wheeler, 187 W.Va. at 383, 419 S.E.2d at 451 ("[W]itness statements do not have to be provided under Rule 26.2 until after that witness testifies on direct examination.”); State v. James Edward S., 184 W.Va. 408, 411 n. 3, 400 S.E.2d 843, 846 n. 3 (1990) ("Under Rule 26.2 of the West Virginia Rules of Criminal Procedure, statements do not have to be made available until after the witness testifies on direct examination.”); State v. Lassiter, 111 W.Va. 499, 507, 354 S.E.2d 595, 603 (3987) (”[W]itness' statements ... are not discoverable until the witness has been called.”); State v. Miller, 175 W.Va. 616, 626, 336 S.E.2d 910, 920 (1985) ("Rule 26.2 ... creates no right to production of statements of witnesses until the witness has testified on direct examination.”); Watson, 173 W.Va. at 560, 318 S.E.2d at 610 ("[T]he rule technically does not permit the motion or request to be made until the witness has testified.").
. See also Syl. pt. 3, State v. Sette, 161 W.Va. 384, 242 S.E.2d 464 (1978) ("Unless there are compelling circumstances which dictate to the contrary, a criminal defendant, upon proper motion, is entitled, for the purpose of cross-examination, to have any written statements in the State's possession made by a prosecution witness who has testified against the defendant; furthermore, the defendant must be given a reasonable opportunity to study the statements and prepare cross-examination. ’ ’).
. We made the following observations in Watson, 173 W.Va. at 558, 318 S.E.2d at 608-609:
The advisory committee’s note to Federal Rule 26.2 reflects that the rule developed from two sources.... The first was the Jencks Act, 18 U.S.C. § 3500, which provided a rather detailed procedure requiring the government to produce written statements of witnesses who testified at trial. The defendant had to request production of the written statement once the witness completed his direct examination.
The second source was the case of United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), where the United States Supreme Court recognized under certain circumstances that the prosecutor could compel the production of written statements of defense witnesses. Thus, as the commentators recognized, Nobles provided the reciprocity that the Jencks Act lacked and gave the impetus for the adoption of Rule 26.2.
(Citations and footnote omitted.)
. This Court indicated in syllabus point 4 of Watson that "[e]ven though the grand jury proceedings which involve a witness’ statement have not been typed, this does not exempt the statement from the requirements of Rule 26.2[.]”
. It should be pointed out that a supplemental report written by Detective Pauley was also part of the "police grand jury report." Detective Pau-ley's supplemental report was provided to Mr. Salmons prior to the detective's actual trial testimony. We have indicated elsewhere in this opinion that Rule 26.2 does not require production of a witness’ statement until completion of direct testimony. Our analysis and perhaps ultimate conclusion regarding the "police grand jury report” may have been different had the supplemental report, which was part of the "police grand jury report,” not been provided to Mr. Salmons. The supplemental report has the indi-cia of a final or formal police report. A final or formal police report of an investigation that was written by the State's witness is a statement within the meaning of Rule 26.2(f) and may be required to be produced provided the other requirements of Rule 26.2 are satisfied. See 25 Moore's Federal Practice § 626.2.04[2][c] (1998). See also State v. Dudick, 158 W.Va. 629, 632, 213 S.E.2d 458, 461 (1975) ("[T]he trial court’s refusal to permit defense counsel to inspect the police report was reversible error.”).
.Rule 612 provides:
(a) While Testifying. If, while testifying, a witness uses a writing or object to refresh memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.
(b) Before Testifying. If, before testifying, a witness uses a writing or object to refresh memory for the purpose of testifying and the court in its discretion determines that the interests of justice so require, an adverse party is entitled to have the writing or object produced, if practicable, at the trial, hearing, or deposition in which the witness is testifying.
(c) Terms and Conditions of Production and Use. A party entitled to have a writing or object produced under this rule is entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If production of the writing or object at the trial, hearing, or deposition is impracticable, the court may order it made available for inspection. If it is claimed that the writing or object contains matters not related to the subject matter of the testimony, the court shall examine the writing or object in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing or object is not produced, made available for inspection, or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
. See State v. Dudick, 158 W.Va. 629, 638-639, 213 S.E.2d 458, 464 (1975) ("[0]nce a prosecution witness has testified from notes used to refresh his recollection, the defense is absolutely entitled to look at the notes from which he testified and must be given a reasonable opportunity to study the material and to prepare cross-examination.”).
. Our Rule 612 is patterned after Fed.R.Evid. Rule 612.
. The victim in this case, Mr. Myles, is a homosexual. During cross examination of Mr. Myles, defense counsel asked Mr. Myles if he was a homosexual. Mr. Myles acknowledged that he was a homosexual.
. Only a minority of courts require a Neuman-type colloquy. See Tachibana v. State, 79 Hawaii 226, 900 P.2d 1293 (1995); State v. Ray, 310 S.C. 431, 427 S.E.2d 171 (1993); Sanchez v. State, 841 P.2d 85 (Wyo.1992); LaVigne v. State, 812 P.2d 217 (Alaska 1991); People v. Curtis, 681 P.2d 504 (Colo.1984); Culberson v. State, 412 So.2d 1184 (Miss.1982).
. A majority of courts have expressly rejected imposing a Neuman-type colloquy for trial courts. See Brown v. Artuz, 124 F.3d 73 (2d Cir.1997); United States v. Ortiz, 82 F.3d 1066 (D.C.Cir.1996); Underwood v. Clark, 939 F.2d 473 (7th Cir.1991); United States v. McMeans, 927 F.2d 162 (4th Cir.1991); United States v. Martinez, 883 F.2d 750 (9th Cir.1989), vacated on other grounds, 928 F.2d 1470 (9th Cir.), cert. denied, 501 U.S. 1249, 111 S.Ct. 2886, 115 L.Ed.2d 1052 (1991); Siciliano v. Vose, 834 F.2d 29 (1st Cir.1987); United States v. Janoe, 720 F.2d 1156 (10th Cir.1983); State v. Walen, 563 N.W.2d 742 (Minn.1997); People v. Roman, 172 Misc.2d 339, 658 N.Y.S.2d 196 (1997); State v. Thomas, 128 Wash.2d 553, 910 P.2d 475 (1996); State v. Oliver, 101 Ohio App.3d 587, 656 N.E.2d 348, cert. denied, 73 Ohio St.3d 1409, 651 N.E.2d 1308 (1995); State v. Brooks, 833 P.2d 362 (Utah Ct.App.1992); State v. Hamm, 250 Mont. 123, 818 P.2d 830 (1991); State v. Savage, 120 N.J. 594, 577 A.2d 455 (1990); Phillips v. State, 105 Nev. 631, 782 P.2d 381 (1989); Aragon v. State, 114 Idaho 758, 760 P.2d 1174 (1988); Torres-Arboledo v. State, 524 So.2d 403 (Fla.1988); Commonwealth v. Hennessey, 23 Mass.App. 384, 502 N.E.2d 943, review denied, 399 Mass. 1102, 504 N.E.2d 1066 (1987); People v. Simmons, 140 Mich.App. 681, 364 N.W.2d 783 (1985); State v. Hayes, 314 N.C. 460, 334 S.E.2d 741 (1985); State v. Allie, 147 Ariz. 320, 710 P.2d 430 (1985); People v. Longwith, 125 Cal.App.3d 400, 178 Cal.Rptr. 136 (1981); State v. Albright, 96 Wis.2d 122, 291 N.W.2d 487 (1980).
. Harmless error analysis was adopted for a Neuman-type violation in LaVigne v. State, 812 P.2d 217 (Alaska 1991). | [
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WORKMAN, Justice:
This ease is before this Court upon an appeal from a final order of the Circuit Court of Wyoming County, West Virginia, granting a motion to dismiss filed by the Appellee and Defendant below, the West Virginia Department of Transportation, Division of Highways (hereinafter called “DOH”). In that Order, the circuit court concluded that the DOH is entitled to sovereign immunity in this case because the plain language of Endorsement No. 7 of the State of West Virginia’s (hereinafter called “the State”) liability insurance policy excludes coverage for the claims asserted by the Appellants and Plaintiffs below, the Estates of Matthew Wrenn and Justin Janes. For the following reasons, the Court affirms the circuit court’s Order and holds that the exemptions contained in Endorsement No. 7 do not violate West Virginia law or public policy.
I.
FACTS
Returning from a hunting trip on the evening of November 26, 2007, two young men, Matthew Wrenn and Justin Janes, were traveling together in a vehicle on County Route 35/1, also known as Devil’s Fork Road. As the men rounded an “S” curve and started across a single-lane bridge, their vehicle dropped off the edge and overturned in a deep impoundment of water. Both men drowned.
The Appellants, Howard Wrenn and Sandra Belcher, as natural parents and co-administrators of the estate of Matthew Wrenn, and Angelia Harper, as natural mother and administrator of the estate of Justin Janes, allege that numerous accidents have occurred at this particular site on Devil’s Fork Road. Indeed, another motorist had died in a similar accident at the same bridge only months before the deaths in this case. The Appellants state , that this section of the road consists of multiple, sharp “S” curves, which open into a single-lane bridge that crosses several steel culverts. They allege that, as a result of “washing out” and the buildup of excess debris, a deep impoundment of water has formed approximately fifteen feet under the bridge. They further assert that the bridge itself has no shoulder, guardrails, warning signs, fog lines, edge lines, or other markings to alert motorists to the danger. Moreover, no signs precede the bridge to warn motorists of what they are approaching.
The Appellants further contend that following the previous deadly accident on this road, local citizens contacted the DOH to request that it inspect the site and take the steps necessary to eliminate or minimize the existing hazards. The DOH failed to re spond to these requests; indeed, one citizen had allegedly set up a meeting with a DOH official who then failed to appear at the date and time arranged.
On April 18, 2008, the Appellants filed a complaint alleging that the accident in question was directly and proximately caused by the DOH’s negligent failure to inspect, repair, maintain, attend to and make reasonably safe this section of Devil’s Fork Road. They further requested that, should the DOH invoke exclusions to its insurance coverage contained in “Endorsement No. 7” to its liability policy, the circuit court declare such exclusion null and void as contravening West Virginia law and public policy.
In lieu of filing an answer, the DOH filed a motion to dismiss under West Virginia Rule of Civil Procedure 12(b)(1), alleging that the circuit court lacked jurisdiction because the State is entitled to sovereign immunity. As predicted, the DOH asserted that exclusions set forth in Endorsement No. 7 to the State’s liability insurance policy preclude coverage of the types of claims asserted in the Complaint. After conducting oral argument, the circuit court granted the DOH’s motion, finding that the language of Endorsement No. 7 clearly and unambiguously excluded coverage of the claims asserted and that the DOH was entitled to sovereign immunity. Accordingly, the circuit court dismissed the Appellants’ Complaint with prejudice.
II.
STANDARD OF REVIEW
The Court generally reviews circuit court orders granting motions to dismiss de novo. Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). Moreover, “ ‘appellate courts review questions involving principles of sovereign immunity de novo.’” Blessing v. Nat’l Eng’g & Contracting Co., 222 W.Va. 267, 269, 664 S.E.2d 152, 154 (2008) (quoting Gribben v. Kirk, 195 W.Va. 488, 493, 466 S.E.2d 147, 152 (1995)). Similarly, the appropriate standard of -review for the determination of public policy questions is also plenary. Mitchell v. Broadnax, 208 W.Va. 36, 42, 537 S.E.2d 882, 888 (2000), superseded by statute on other grounds as stated in State ex rel. Citifinancial, Inc. v. Madden, 223 W.Va. 229, 236 n. 20, 672 S.E.2d 365, 372 n. 20 (2008). Consequently, the Court reviews both of the issued raised in this appeal under the de novo standard.
III.
DISCUSSION
A. Overview of West Virginia’s Liability Insurance Policy
Article VI, Section 35 of the Constitution of West Virginia grants sovereign immunity to the State. Regarding the DOH in particular, West Virginia Code § 17-4-37 (2009) specifically grants sovereign immunity for damages resulting from “the defective construction or condition of any state road or bridge.”
Despite this broad immunity, the West Virginia Legislature has recognized that the State should, in certain instances, be held liable for damages resulting from acts undertaken, or responsibilities incurred, by its officials, agents and employees. Accordingly, West Virginia Code § 29-12-1 to -13 (2008) requires that the State establish and develop “an adequate, economical and sound state insurance and bonding service on all state property, activities and responsibilities.” W. Va.Code § 29-12-1.
To accomplish this goal, the Legislature established the State Board of Risk and Insurance Management (hereinafter called “BRIM”), which is charged with the duty of supervising and controlling the state insurance program, id. at § 29-12-3, and is given significant discretion in doing so:
[BRIM] has, without limitation and in its discretion as it seems necessary for the benefit of the insurance program, general supervision and control over the insurance of state property, activities and responsibilities, including:
(A) The acquisition and cancellation of state insurance;
(B) Determination of the kind or kinds of coverage;
(C) Determination of the amount or limits for each kind of coverage;
(D) Determination of the conditions, limitations, exclusions, endorsements, amendments and deductible forms of insurance coverage;
(E) Inspections or examinations relating to insurance coverage of state property, activities and responsibilities;
(F) Reinsurance; and
(G) Any and all matters, factors and considerations entering into negotiations for advantageous rates on and coverage of such state property, activities and responsibilities.
Id. at § 29 — 12—5(a)(1) (emphasis added). West Virginia Code § 29-12-5(a)(2) further provides that:
[BRIM] shall endeavor to secure reasonably broad protection against loss, damage or liability to state property and on account of state activities and responsibilities by proper, adequate, available and affordable insurance coverage and through the introduction and employment of sound and accepted principles of insurance, methods of protection and principles of loss control and risk.
(Emphasis added.) Importantly, however, “[t]he board is not required to provide insurance for every state property, activity or responsibility.” Id. at § 29-12-5(a)(3).
Any insurance policy purchased or contracted for by BRIM must provide that any claims against the State arising under that policy are exempt from the constitutional immunity otherwise afforded to the State. Id. at § 29-12-5(a)(4). In other words, “[s]uits which seek no recovery from state funds, but rather allege that recovery is sought under and up to the limits of the State’s liability insurance coverage, fall outside the traditional constitutional bar to suits against the State.” Syl. Pt. 2, Pittsburgh Elevator v. West Virginia Bd. of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983). Nevertheless, the State is still constitutionally immune from claims arising out of any activity or responsibility that is not covered under its policy. W. Va.Code § 29-12-5(a)(4).
B. The Policy and Exclusions Applicable in this Case
The State’s liability policy in effect at the time of the events underlying this case, Policy No. RMGL 159-52-62 (hereinafter called “the Policy”), provided liability insurance for any “wrongful act” of the “insured.” It defines “wrongful act” as “any actual or alleged act, breach of duty, neglect, ... or omission by the ‘insured(s)’ in the performance of their dut[ies]____” Policy, Coverage E, § 4. Thus, under the plain language of the Policy, any negligence or breach of duty by the insured in the performance of its duties would be covered. In this case, the insured includes the DOH.
Endorsement No. 7 to the Policy, however, significantly restricts the DOH’s liability for “wrongful acts.” It provides:
It is agreed that the insurance afforded under this policy does not apply to any claim resulting from the ownership, design, selection, installation, maintenance, location, supervision, operation, construction, use, or control of streets (including sidewalks, highways or other public thoroughfares), bridges, tunnels, dams, culverts, storm or sanitary sewers, rights-of-way, signs, warnings, markers, markings, guardrails, fences, or related or similar activities or things but it is agreed that the insurance afforded under this policy does apply (1) to claims of “bodily injury” or “property damage” which both directly result from and occur while employees of the State of West Virginia are physically present at the site of the incident at which the “bodily injury” or “property damage” occurred performing construction, maintenance, repair, or cleaning (but excluding inspection of work being performed or materials being used by others) and (2) to claims of “bodily injury” or “property damage” which arise out of the mainte nance or use of sidewalks which abut buildings covered by the policy.
Endorsement No. 7 to Policy No. RMGL 159-52-62 (effective July 1, 2007) (some emphasis added).
1. Endorsement No. 7 Excludes Coverage of the Appellants’ Claims
The DOH contends that the clear language of Endorsement No. 7 limits the State’s insurance coverage to situations in which DOH employees are present at the site of the incident from which the claim arises, and the claim results from the presence of said employees. Put simply, coverage is excluded if no DOH employee is physically present at the scene of the accident. Because no DOH personnel were present on Devil’s Fork Road when the accident occurred in this case, the DOH contends that Endorsement No. 7 unambiguously excludes coverage for the asserted claims. It points out that “[w]here the provisions of an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended.” Syllabus, Keffer v. Prudential Ins. Co. of Am., 153 W.Va. 813, 172 S.E.2d 714 (1970).
The Appellants do not disagree that for claims resulting from one of the matters listed in Endorsement No. 7, coverage is provided only if a DOH employee is present at the scene. Instead, they assert that, on its face, the language of Endorsement No. 7 does not specifically exclude coverage for claims based on the DOH’s “failure to inspect” or “failure to make reasonably safe” its roads, bridges or rights-of-way. They point to the well-settled axiom that “[w]here the policy language involved is exclusionary, it will be strictly construed against the insurer in order that the purpose of providing indemnity not be defeated.” Syl. Pt. 5, Nat’l Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987), overruled, in part, on other grounds by Potesta v. U.S. Fid. & Guar. Co., 202 W.Va. 308, 504 S.E.2d 135 (1998). They further note that, “[t]he general rule of construction in governmental tort legislation cases favors liability, not immunity.” Syl. Pt. 2, in part, Marlin v. Bill Rich Const., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996). In light of these rules of strict construction favoring liability, the Appellants contend that Endorsement No. 7 must be limited solely to claims arising from the matters listed therein. Because they specifically pleaded that the DOH engaged in “wrongful acts” by failing to inspect and make reasonably safe the section of Devil’s Fork Road at issue, and because the “failure to inspect” and “failure to make safe” claims are not explicitly excluded from coverage under Endorsement No. 7, the Appellants urge this Court to find that the Policy provides coverage in this ease.
Although the “failure to inspect” and “failure to make safe” are not specifically identified among the numerous exclusions listed in Endorsement No. 7, these claims necessarily “result from,” or are at least “related to,” the DOH’s ownership of and control over, not to mention its design, maintenance and construction of, the road, bridge, culvert and right-of-way that constituted the site of the accident in this ease. Clearly, the DOH would have no duty to inspect any of these entities if it did not own and control them. Similarly, it is difficult to imagine how the DOH could “make safe” its roads, bridges or rights-of-way without engaging in construction or maintenance of the site, or without installing “signs, warnings, markers, markings, guardrails, [or] fences____” Because all of those acts are clearly excluded from coverage, the overarching duty to “make safe” logically must be excluded as well. Thus, because Endorsement No. 7 excludes coverage for claims “resulting from” its ownership, control, design, construction or maintenance of a particular road, bridge, culvert or right-of-way, as well as activities that are “related or similar to” those named matters, the Ap pellants’ claims in this action are clearly excluded as well.
The Appellants would have the Court hold that because the terms “inspect” and “make safe” are not explicitly included in the language of Endorsement No. 7, claims arising from the breach of those duties are not excluded from coverage. The State, however, cannot reasonably be expected to list every different duty or task that might conceivably be necessary to further road, bridge or right-of-way maintenance, or that might be appropriate only because the DOH owns, supervises, or controls a system of roads, bridges and rights-of-way. Indeed, as the DOH argues, it should not be incumbent upon it “to provide an exhaustive list of alternative phrases and characterizations for the exclusions expressly stated in the Endorsement.” Such a holding would merely encourage imaginatively-named claims by creative attorneys as a means to circumvent application of the exclusionary language in every case.
Finally, while the Appellants correctly point out that long-standing precedent in West Virginia encourages strict construction of insurance policies in favor of liability, see Syl. Pt. 5, McMahon & Sons, 177 W.Va. at 736, 356 S.E.2d at 490, it is equally clear that “[w]here the provisions of an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation. ...” Keffer, 153 W.Va. at 815-16, 172 S.E.2d at 715. Because Endorsement No. 7 is clear and unambiguous, no construction, strict or otherwise, is required.
The conclusion that the language of Endorsement No. 7 is unambiguous clearly comports with this Court’s prior holding in Louk v. Isuzu Motors, Inc., 198 W.Va. 250, 479 S.E.2d 911 (1996). In Louk, a motorist died in a vehicle accident that occurred while she was exiting a Wal-Mart parking lot and attempting to cross a state highway. Id. at 255, 479 S.E.2d at 916. Her estate sued the DOH and Wal-Mart arguing, among other things, that the DOH had negligently approved the site plan without reviewing it as required by DOH regulations, which resulted in the approval of a negligently-designed plan. Id. at 256, 479 S.E.2d at 917. The circuit court granted summary judgment to the DOH, finding that the claims were barred by sovereign immunity. Id. at 255, 479 S.E.2d at 915.
As in the instant case, the State’s insurance policy in effect at the time of the accident in Louk covered “wrongful acts” by the DOH. Endorsement No. 10 to that policy, however, provided that coverage would not apply to the:
“Ownership, design, maintenance, supervision, operation, use or control of streets, including sidewalks, highways or other public thoroughfares, bridges, tunnels, dams, culverts, storm or sanitary sewers, but this exclusion does not apply to bodily injury or property damage which arises out of and occurs during the performance of construction, street cleaning and repair operations or arises out of the maintenance or use of sidewalks which abut buildings covered by this policy.”
198 W.Va. at 257, 479 S.E.2d at 918. On appeal, this Court concluded that the language of Endorsement No. 10 was clear and unambiguous and “[sjinee there was no construction, maintenance, or repair work underway at the time and place of the collision, the policy provides no coverage against the alleged wrongful acts of the DOH.” Id. The Court, therefore, affirmed the circuit court's ruling that sovereign immunity barred the claims against the DOH. Id. Although not expressly stated in that opinion, the Court necessarily believed that the alleged claims related to the design of the intersection at issue and, thus, fell within the ambit of the exclusions in Endorsement No. 10.
As in Louk, the exclusionary language in this case is unambiguous with regard to the claims raised by the Appellants. Because the claims clearly fall within the enumerated exceptions to the Policy’s coverage, and because no DOH employees were present at the scene of the accident, the alleged wrongful acts of the DOH are excluded by Endorsement No. 7.
Finally, the decision here is not contrary to the holding of Russell v. Bush & Burchett, Inc., 210 W.Va. 699, 559 S.E.2d 36 (2001), in which this Court concluded that an earlier, but nearly identical, version of Endorsement No. 7 did not exclude a claim against the DOH for the negligent selection and training of a bridge contractor. In Russell, the plaintiff was injured while working for a DOH contractor. Id. at 702, 559 S.E.2d at 39. He sued the contractor directly under a deliberate intent theory and sued the DOH for negligent selection and training. Id. The DOH argued that it was immune from suit because the endorsement in effect at that time excluded “any claim resulting from the ownership, design, selection, installation, maintenance, location, supervision, operation, construction, use or control of ... bridges ... or related or similar activities or things.... ” Id. at 704, 559 S.E.2d at 41 (emphasis added). The plaintiff responded that the bridge-related exclusionary language contained in the endorsement did not apply to his claim against the DOH because his theory of liability was based on “negligent selection and retention conduct by the DOH, not bridge construction, installation, etc.” Id. at 705, 559 S.E.2d at 42.
Considering these arguments, the circuit court agreed with the plaintiff, and this Court affirmed, stating:
Any negligence in the DOH’s bidder selection process was separate and remote in time and place from and anterior to any bridge construction. While bidder selection and retention could be arguably said to be “related” to bridge construction, such a “relatedness” connection could also be made to the most distant and tenuous activities.
Id. at 706, 559 S.E.2d at 43 (emphasis added). Applying “the principles of law that narrowly construe exclusionary language, that favor liability over immunity, and that favor state accountability,” this Court concluded that the plaintiffs claim was not “categorically” excluded by the exclusionary language. Id. Thus, the Court determined that DOH’s policy provided coverage and immunity was not available to the State in that ease. Id.
Unlike the claims asserted in Russell, the Appellants’ claims in this case are not “separate and remote in time and place” from the DOH’s ownership of and control over Devil’s Fork Road. While it seems clear that the DOH should have inspected the site of the prior accidents and taken steps to improve the safety of motorists on Devil’s Fork Road, any duty to take such steps directly results from and is related to the DOH’s position of ownership of and control over that road, and the plain language of Endorsement No. 7 clearly excludes such claims.
2. Endorsement No. 7 is not contrary to West Virginia law and public policy.
The Appellants argue, in the alternative, that the language of Endorsement No. 7 is so restrictive that it contravenes West Virginia law and public policy. While conceding that BRIM was not required to obtain a policy that would cover all actions taken by the State, they contend that the legislative mandate requires broader coverage than Endorsement No. 7 permits. They assert that, in setting forth its intents and objectives in obtaining State insurance, the Legislature provided that activities undertaken and responsibilities incurred by the State “are subject to liabilities which can and should be covered by a sound and adequate insurance program____” To achieve this broad goal, the Legislature directed BRIM to obtain an insurance policy which would provide “reasonably broad protection.” W. Va.Code § 29-12-5(a)(2). The Appellants assert, however, that Endorsement No. 7 effectively excludes the DOH from liability on essentially all of its primary functions and, thus, does not provide coverage that is “reasonably broad.”
The Appellants further note that the Court has previously, in dicta, questioned the validity of insurance policies that do not insure a state agency against damages resulting from the negligent performance of an agency’s primary function. In Ayersman v. West Virginia Division of Environmental Protection, 208 W.Va. 544, 542 S.E.2d 58 (2000), the Court reinstated a case against the West Virginia Department of Environmental Pro tection (hereinafter called “DEP”) by a landowner who alleged that his property had been flooded as the result of the DEP’s negligence in a nearby mine reclamation project. The circuit court had dismissed the case finding that the DEP was immune from suit because no insurance policy provided liability coverage for this type of claim. 208 W.Va. at 545-46, 542 S.E.2d at 59-60. This Court reversed because the circuit court had failed to make adequate findings of fact and conclusions of law. Id. at 547, 542 S.E.2d at 61.
While acknowledging that it was not necessary to analyze the State’s insurance policy in reaching the ultimate decision, the Court in Ayersman nevertheless noted, in footnote two, that the reclamation of abandoned mine sites is a primary function of the DEP, and that an insurance exclusion which precluded liability for negligent operations of a reclamation site “seems particularly ill-suited for a policy written for the DEP.” 208 W.Va. at 546 n. 2, 542 S.E.2d at 60 n. 2. It thus concluded: “we are skeptical of any policy language that purports to exclude a primary junction of the insured.” Id. (emphasis added).
The Appellants assert that the instant case raises precisely the issue discussed in Ayers-man, because the insurance policy here excludes liability for many of the DOH’s primary functions. West Virginia Code § 17-2A-8(1) charges the Commissioner of the DOH with, among other things, the ability to “exercise general supervision over the state road program and the construction, reconstruction, repair, and maintenance of state roads and highways.” Because liability arising from the performance of these functions is explicitly excluded from coverage by Endorsement No. 7, the Appellants argue that the Policy fails to cover a significant number of the DOH’s primary responsibilities.
Undeniably, the broad scope of Endorsement No. 7 excludes coverage for many of the DOH’s primary functions. As a consequence, the Court must carefully, indeed skeptically, consider the restrictions in light of the Legislature’s stated intention to provide “reasonably broad protection” against liabilities incurred by agencies of the State. Upon such consideration, however, this Court cannot find that Endorsement No. 7 is contrary to the public policy of this State.
The West Virginia Legislature entrusted BRIM with significant discretionary authority in developing and implementing the State’s liability insurance policy. While requiring that such policies provide “reasonably broad protection,” W. Va.Code § 29-12-5(a)(2), and cover “injuries occasioned by culpable state action,” id. at § 29-12-1, the Legislature charged BRIM with determining the “conditions, limitations, exclusions, endorsements, amendments and deductible forms of insurance coverage.” Id. at § 29-12-5(a)(l)(D). It further stated that BRIM was not “required to provide insurance for every state property, activity or responsibility.” Id. at § 29-12-5(a)(3). Thus, “[t]he Legislature has also vested in [BRIM] considerable latitude to fix the scope of coverage and contractual exceptions to that coverage by regulation or by negotiation of the terms of particular applicable insurance policies.” Syl. Pt. 4, in part, Parkulo v. West Virginia Bd. of Prob. and Parole, 199 W.Va. 161, 483 S.E.2d 507 (1996).
In determining the appropriate scope of the insurance coverage, BRIM was faced with an agency that designs, constructs and maintains an extensive system of roads, highways and bridges throughout the State. Unfortunately, accidents causing loss of property, bodily injury, and even death occur frequently in this transportation system, as they do nationally. Because nearly every victim of every accident on these roads, highways and bridges could likely find some basis to sue the DOH for negligence — whether alleging defective design of a curvy mountain road, or that the road had not been sufficiently plowed during bad weather, or simply that a pothole should have been filled but was not — the State would expose itself to enormous liability by covering losses resulting from negligence in its design, construction and maintenance of this system. Thus, although these activities may constitute primary functions of the DOH, requiring the State to provide insurance that covers these functions would likely be unsustainable.
Consequently, in exercising its “considerable latitude” in determining the “conditions, limitations, exclusions, endorsements, amendments and deductible forms of insurance coverage,” W. Va.Code § 29-12-5(a)(l)(D), BRIM balanced the competing interests in providing “reasonably broad protection” while ensuring the continued financial viability of the State. In so doing, it settled on a policy covering injuries and losses that “both directly result from and occur while employees of the State of West Virginia are physically present at the site of the incident.” Endorsement No. 7. As the DOH points out, many of its numerous employees physically work on its roads, highways, bridges and rights-of-way, and, in emergency situations, that work continues around-the-clock. Accordingly, significant coverage is afforded under the State’s Policy, despite the broad exclusions contained in Endorsement No. 7.
Recognizing the breadth of the Division of Highway’s “primary functions,” and the expense that would be incurred by providing insurance coverage for every function, the coverage currently afforded by the State’s liability insurance policy meets the requirement that such coverage provide “significantly broad protection.” Although the exclusions contained in Endorsement No. 7 to the State’s liability insurance policy preclude coverage of many of the Division of Highway’s primary functions, the Endorsement does not violate the laws and public policy of West Virginia.
In so holding, the Court acknowledges that the allegations in this lawsuit indicate that the DOH ignored a serious hazard of which it had been specifically informed, and, if the allegations are time, this Court does not condone the DOH’s failure to respond to the citizens’ complaints. The condition complained of here is alleged to be a one-lane road with multiple “S” curves which opens onto a bridge with no berm, guardrails, edge-line markings or warning signs, and which is fifteen feet above a deep pool of water. If this description is accurate, it presents a dangerous situation. Moreover, because the DOH retains the sole power and authority to maintain and make safe roads like Devil’s Fork Road, West Virginians who use these roads must watch helplessly as members of their community fall victim to known hazardous conditions.
Despite the DOH’s apparent failure to protect the public by more diligent maintenance, it is within the legislative prerogative to determine which activities must be insured. This Court must respect the Legislature’s decision to afford considerable latitude to BRIM in determining the scope of insurance coverage for the State’s public roads, highways and bridges, and, because the Endorsement in this case comports with the relevant statutory requirements, the State’s public policy has not been violated. It is the Legislature’s and BRIM’s function to decide whether to provide coverage for situations such as the one alleged herein. This Court’s function is to give full effect to the plain meaning of a clear and unambiguous policy exclusion.
IV.
CONCLUSION
For these reasons, the final Order of the Circuit Court of Wyoming County entered on August 15, 2008, is affirmed.
Affirmed.
Justice DAVIS dissents and reserves the right to file a dissenting opinion.
. The Complaint additionally sought a declaratory judgment that Endorsement No. 7 is null and void because it has not been signed. The Appellants subsequently waived that issue, however, and it is not before the Court in this appeal. See Tiernan v. Charleston Area Med. Ctr., Inc., 203 W.Va. 135, 140 n. 10, 506 S.E.2d 578, 583 n. 10 (1998) ("Issues not raised on appeal or merely mentioned in passing are deemed waived.”).
. The Appellants rely on West Virginia Code § 17-2A-8 (2009), entitled "Powers, duties and responsibilities of commissioner," and the Department of Highway's Maintenance Manual, to support their position that the DOH is bestowed with the duties to inspect and make safe the roads, bridges and rights-of-way under its control, and should, therefore, be held liable for any breach of those duties.
. The Appellants additionally rely on several circuit court decisions that sustain claims similar to those asserted in the instant case, and thereby extend insurance coverage to incidences at which no DOH employee was present. Those decisions hold no precedential value, however, and are not persuasive to this Court.
. The exposure that would result from insuring all of the DOH’s "primary functions” is clearly extensive and quite possibly unique. The holding in this case, therefore, is limited to the DOH, and the Court does not consider whether an insurance policy excluding coverage of any other agency’s primary functions would violate public policy. | [
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PER CURIAM.
This case is before the Court upon an appeal of James Douglas, who brings the instant appeal pro se, although he was the former attorney for Donna Meadows, the guardian of Jean Holly Dandy, from the March 12, 2008, Order of the Circuit Court of Nicholas County. The circuit court ordered Mr. Douglas to repay Ms. Dandy’s estate certain sums that had been paid to Mr. Douglas in his representation of Ms. Meadows. Specifically, the circuit court directed, in pertinent part, as follows:
3. Any compensation from Ms. Dandy’s estate by received [sic] Mr. Douglas for services rendered subsequent to Ms. Dandy’s competency hearing on December 15, 2005, is to be returned to the Estate of Dandy.
4. Any compensation from Ms. Dandy’s estate received by Mr. Douglas for the Writ of Prohibition is to be returned to the Estate of Dandy.
5. Considering the foregoing, Mr. Douglas is only entitled to receive from Ms. Dandy’s estate compensation for services rendered through the December 15, 2005, hearing excluding costs associated with the Writ of Prohibition. Based on the itemized bills submitted to the court, Mr. Douglas may receive from Ms. Dandy’s estate no more than $7,198.75 for his services (nearly 36.92 hours at $195 per hour), plus $237.91 for expenses, for a total of $7,436.66 in this matter. Any compensation received by Mr. Douglas in excess of this amount is to be returned to the Estate of Dandy.
6. Ms. Chapman is to continue serving as Ms. Dandy’s Guardian ad Litem in this matter until she files a report with the Court indicating that all funds are returned, as herein ordered, to the Estate of Jean Dandy.
The issues raised by Mr. Douglas on appeal are as follows: 1) whether the powers and authority of a guardian ad litem in this context are defined and limited by West Virginia Code § 44A-2-7 (2004) under which the guardian ad litem is appointed to represent an alleged protected person; 2) whether the duties and authority of a guardian ad litem appointed pursuant to West Virginia Code § 44A-2-7 to represent an alleged protected person end when the guardian or conservator is appointed and the appeal period has expired; 3) whether an attorney-in-fact, utilizing the funds of her principal and alleged protected person, can employ legal counsel for the purposes of protecting the person or property of the principal, or for the purposes of litigating the issue of who will be chosen as the principal’s conservator or guardian; 4) whether a circuit court exceeds its authority in ordering an attorney to refund a portion of his fees to one other than his non-complaining client; and 5) whether a circuit court that orders an attorney to refund a portion of his fees to one other than his client violates the attorney’s and his client’s right to contract, as guaranteed to him by the United States Constitution. Based upon our review of the parties’ briefs and arguments, the record, and all other matters before the Court, we find that the circuit court did not abuse its discretion in ordering Mr. Douglas to repay the protected person’s estate some attorney’s fees that the circuit court found Mr. Douglas was not entitled to receive from the estate. Accordingly, we affirm the decision of the Circuit Court of Nicholas County.
I. Facts and Procedural History
Prior to her protected person status, on April 12, 2001, Jean Holley Dandy, the protected person in the instant action, while a fully competent resident of Kentucky, hired an attorney to draft a power of attorney naming her granddaughter, Donna Meadows, as her attorney-in-fact. In late 2004 or early 2005, Ms. Dandy began to experience problems that prevented her from continuing to live in an independent manner. Ms. Meadows arranged for Ms. Dandy to move to Nicholas County, West Virginia, so that she could better care for her grandmother.
On March 7, 2005, Ms. Dandy’s son, Ronald Bowers, filed a petition in the Circuit Court of Nicholas County, seeking his appointment as guardian and conservator for his mother. On March 18, 2005, the court appointed Cammie L. Chapman as legal counsel or guardian ad litem for Ms. Dandy, pursuant to the provisions of § 44A-2-7(a). Mr. Bowers’ petition, however, was dismissed by the circuit court in an Order entered September 6, 2005, due to Mr. Bowers’ request that it be withdrawn because of the omission in the petition of a physician’s evaluation of Ms. Dandy as required by West Virginia Code § 44A-2-3.
On July 15, 2005, Mr. Bowers re-filed the petition, which gives rise to the instant appeal, in the Circuit Court of Nicholas County, again seeking his appointment as guardian and conservator for his mother. The circuit court again appointed Ms. Chapman as guardian ad litem. Mr. Douglas represented Ms. Meadows throughout both petitions. Although Ms. Dandy was not personally served with the petition, Ms. Dandy’s guardian ad litem was properly served. Notwithstanding this fact, Ms. Meadows filed a writ of prohibition in this Court on September 12, 2005, regarding the service issue. The writ was refused on September 15, 2005.
Following hearings on December 9 and 15, 2005, the circuit court found Ms. Dandy to be a protected person. Ms. Meadows was appointed as temporary guardian and the Nicholas County Sheriff was appointed to serve as temporary conservator until a final determination could be made. On May 22 and 23, 2006, the circuit court conducted additional hearings, which resulted in Ms. Meadows being appointed permanent guardian and the Nicholas County Sheriff being appointed as permanent conservator. Fol lowing the May hearings, the circuit court ordered the guardian ad litem, Ms. Chapman, to conduct an accounting of any compensation Ms. Meadows and her attorney, Mr. Douglas, had charged to Ms. Dandy’s estate. The circuit court then directed Ms. Chapman to review the submissions, together with her own fees and expenses charged to Ms. Dandy’s estate, and to present the circuit court with a report of questionable expenditures.
Ms. Chapman’s report, dated October 4, 2006, revealed, in relevant part, that:
1) Mr. Douglas reported being paid a total sum of $17,447.50 by Ms. Dandy’s estate;
2) Mr. Douglas received $9,912.50 for defending the first petition that was withdrawn and the re-filed petition; and
3) Mr. Douglas received a flat fee of $7,535.00 for the writ of prohibition.
By Order entered December 28, 2006, regarding a December 18, 2006, hearing relative to the report of the guardian ad litem, the circuit court stated that “[o]n or before February 15, 2007, Mr. Douglas may file a memorandum of law justifying the fees paid to him by the Estate of Jean Dandy.” The circuit court found that
under Kentucky law, a power of attorney agreement does not convey presumptive authority to the attorney-in-fact to oppose a guardian appointment. As a result, the Court finds that the work performed by Mr. Douglas in seeking Ms. Meadows’ appointment as guardian was work performed on behalf of Ms. Meadows, not Ms. Dandy, and was thereby beyond the scope of the Power of Attorney Agreement and beyond the scope of services that Ms. Dandy should be required to pay for. Thus, the Court finds that Mr. Douglas is not entitled to charge Ms. Dandy’s estate for services he performed after the issue of competency was determined, which oecurred following the hearing on December 15, 2005.
Finally, the Court finds that the costs and fees charged by Mr. Douglas to Ms. Dandy’s estate should not include those incurred for the Writ of Prohibition. The decision to file the Writ of Prohibition was made by Ms. Meadows and her counsel. It was no way beneficial to Ms. Dandy and it would not be fair that her estate be charged for it. Further, Mr. Douglas did not itemize the charges for the Writ and the Court does not award attorney’s fees on a flat rate basis. Thus, the Court finds it inappropriate to charge Ms. Dandy’s estate for the Writ.
Thereafter, by Order entered on March 12, 2008, the circuit court ordered Mr. Douglas to repay to Ms. Dandy’s estate $2,687.50 of the $9,912.50 paid from the estate as that amount was charged to the estate after the December 15, 2005, hearing. Additionally, Mr. Douglas was directed to repay to Ms. Dandy’s estate the $7,500.00 fee charged for the writ of prohibition. It is the repayment of the attorney’s fee charged in connection with the writ of prohibition that is at the heart of Mr. Douglas’ appeal.
II. Standard of Review
The standai’ds of review applicable in this Court’s review of the final Order entered in this matter are as follows:
In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Syl. Pt. 2, Walker v. West Virginia Ethics Comm’n, 201 W.Va. 108, 492 S.E.2d 167 (1997). It is with these standards in mind that we now review the case before us.
III. Discussion of Law
A. The circuit court did not err in not terminating the guardian ad litem’s role upon appointment of the guardian and conservator for the protected person.
The first issue raised in this matter concerns the powers and authority of the protected person’s legal counsel or guardian ad litem. Mr. Douglas maintains that the guardian ad litem’s role should have terminated when the guardian was appointed. Further, Mr. Douglas asserts that the lower court improperly assigned the guardian ad litem the role of determining the propriety of his attorney’s fees.
West Virginia Code § 44A-2-7 requires the circuit court to appoint counsel for an alleged protected person as follows:
(a) The court shall appoint legal counsel for the alleged protected person. In appointing legal counsel, the court shall consider any known preferences of the alleged protected person
(b) Legal counsel shall have the following major areas of concern: (1) Whether or not a guardian is needed; (2) limitation of the role of the guardian to the protected person’s specific needs — e.g., personal supervisor, business affairs, medical consent only; (3) if needed, assure that the person or entity with the greatest interest in the protected person is appointed; (4) if needed, assure the adequacy of the bond; and (5) if needed, assure consideration of proper placement.
(e) In responsibly pursuing the major areas of concern set forth in subsection (b) of this section, counsel may perform any or all of the following: (1) Promptly notify the individual and any caretaker of the appointment of counsel; (2) contact any caretaker, review the file and all other relevant information; (3) maintain contact with the client throughout the case and assure that the client is receiving services as are appropriate to the client’s needs; (4) contact persons who have or may have knowledge of the client; (5) interview all possible witnesses; (6) pursue discovery of evidence, formal and informal; (7) file appropriate motions; (8) obtain independent psychological examinations, medical examinations, home studies, as needed; (9) advise the client on the ramifications of the proceeding and inquire into the specific interests and desires of the individual; (10) subpoena witnesses to the hearing; (11) prepare testimony for cross-examination of witnesses to assure relevant material is inti’oduced; (12) review all medical reports; (13) apprise the decision maker of the individual’s desires; (14) produce evidence on all relevant issues; (15) interpose objections to inadmissible testimony and otherwise zealously represent the interests and desires of the client; (16) raise appropriate questions to all nominations for guardian and the adequacy of the bond; (17) take all steps to limit the scope of guardianship to the individual’s actual needs, and make all arguments to limit the amount of intervention; (18) ensure that the court considers all issues as to the propriety of the individual’s current or intended placement and that the limitations are set forth in the order; (19) inform the client of the right to appeal, and file an appeal to an order when appropriate; and (20) file a motion for modification of an order or a petition for writ of habeas corpus if a change of circumstances occurs which warrants a modification or termination.
(d) The protected personal shall have the right to an independent expert of his or her choice to perform an evaluation and present evidence.
Id.
The foregoing is an expansive list of items that the legal counsel for the alleged protected person is charged with doing. Moreover, there is no limitation contained within the statute regarding the protected person’s legal counsel’s role. Significantly, the statute does not terminate the role of the legal counsel upon the appointment of a guardian or conservator; rather, West Virginia Code § 44A-2-7(e)(20) specifically contemplates that the legal counsel may “file a motion for modification of an order or a petition for writ of habeas corpus if a change of circumstances occurs which warrants a modification or termination.” Id. The filing of such a motion would occur after the guardian or conservator was appointed.
Mr. Douglas relies upon the decision of the Court in Sowa v. Huffman, 191 W.Va. 105, 443 S.E.2d 262 (1994), as support for his position that the guardian ad litem’s role terminates upon the appointment of a guardian and conservator and, therefore, the guardian ad litem should not have been ordered to review his legal fees. The guardian ad litem, however, correctly points our that the Sow a decision was rendered under West Virginia Code § 27-110-l(b) (1990), which was replaced by West Virginia Code § 44A-2-7 in 1994.
Further, in Sowa, the Court stated: However, “[i]t is not the province of the courts to make or supervise legislation, and a statute may not, under the guise of interpretation, be modified, revised, amended, distorted, remodeled, or rewritten, or given a construction of which its words are not susceptible, or which is repugnant to its terms which may not be disregarded.” State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 145, 107 S.E.2d 353, 358 (1959) (citation omitted). See also syl. pt. 1, Consumer Advocate Division of the Public Service Commission v. Public Service Commission, 182 W.Va. 152, 386 S.E.2d 650 (1989). Therefore, although we recognize that the current statutes may not adequately protect the incompetent, it is the legislature which must rectify the problem.
191 W.Va. at 111, 443 S.E.2d at 268. Right after the Sowa decision, the West Virginia statute was changed by the Legislature. The statute, in its current form known as the West Virginia Guardianship and Conservatorship Act, West Virginia Code §§ 44A-1-1 to -5-9 (2004 and 2008 Supp.), does not provide a termination date for the legal counsel appointed to represent the protected person.
Under the foregoing current statutory provisions, the circuit court did not abuse its discretion in directing the guardian ad litem as the protected person’s legal counsel to review the expenditures of the guardian and the guardian’s attorney from the principal’s estate, and to remain as guardian ad litem until the expenditure the court ordered Mr. Douglas to repay to Ms. Dandy’s estate, indeed, had been repaid.
B. The circuit court did not err in ordering the guardian’s legal counsel to refund a portion of his attorney’s fees to the protected person’s estate.
The power of attorney entered into between Ms. Dandy and Ms. Meadows, prior to Ms. Dandy’s competency coming into question, is at the heart of Mr. Douglas’ argument that Ms. Meadows was allowed to pay him the subject attorney’s fees from Ms. Dandy’s estate. Mr. Douglas posits that in the power of attorney that Ms. Dandy signed on April 12,2001, Ms. Dandy gave Ms. Meadows the power to “(k) sign in my name on all accounts standing in my name, and to withdraw funds from said accounts, to open accounts in my name or her [Meadows] name as my attorney in fact.” Further, the power of attorney document, in paragraph (m), authorizes the attorney-in-fact “to retain counsel and attorneys on my behalf, to appear for me in all actions and proceedings to which I may be party in the courts of Kentucky or any other court in the United States.”
It is significant to note at the outset that all parties agree and the law is clear that the power of attorney is governed by the laws of the State of Kentucky as that is the state where Ms. Dandy resided when she executed the power of attorney. The circuit court determined that the language contained within the power of attorney did not authorize Ms. Meadows to hire an attorney to seek Ms. Meadows’ appointment as guardian or conservator and to pay for this attorney with funds from the principal’s, Ms. Dandy’s, estate. What the power of attorney did allow was for Ms. Meadows “to retain counsel and attorneys on my [referring to Ms. Dandy] behalf, to appear for me in all actions and proceedings to which I may be party in the courts of Kentucky or any other court in the United States.” (Emphasis in original). The law in Kentucky is clear that a power of attorney is not a substitute for appointment of a guardian and cannot prevent the institution of guardianship proceedings. Rice v. Floyd, 768 S.W.2d 57, 61 (Ky.1989). As the circuit court correctly determined in the instant matter,
[i]n other words, under Kentucky law, a power of attorney agreement does not convey presumptive authority to the attorney-in-fact to oppose a guardian appointment. As a result, the Court finds that the work performed by Mr. Douglas in seeking Ms. Meadows’ appointment as guardian was work performed on behalf of Ms. Meadows, not Ms. Dandy, and was thereby beyond the scope of the Power of Attorney Agreement and beyond the scope of services that Ms. Dandy should be required to pay for.
Thus, the circuit court concluded that while Ms. Meadows could hire an attorney on behalf of Ms. Dandy for purposes of determining Ms. Dandy’s competency, the circuit court determined that Mr. Douglas was not entitled to charge Ms. Dandy’s estate for the services he performed after the issue of competency was determined, which occurred following the December 15, 2005, hearing. The Court finds, based upon the application of Kentucky law, that the circuit court committed no error in reaching this decision.
Further, under the relevant Kentucky law, the circuit court concluded that Mr. Douglas could not receive any costs associated with the filing of a writ of prohibition with this Court, even though the writ of prohibition was filed prior to Ms. Dandy’s competency determination on December 15, 2005. Specifically, the circuit court found that
the decision to file the Writ of Prohibition was made by Ms. Meadows and her counsel. It was no way beneficial to Ms. Dandy and it would not be fair that her estate be charged for it. Further, Mr. Douglas did not itemize the charges for the Writ and the Court does not award attorney’s fees on a flat rate basis. Thus, the Court finds it inappropriate to charge Ms. Dandy’s estate for the Writ.
In the instant matter, the circuit court provided Mr. Douglas with ample opportunity to justify the attorney’s fee he charged for the writ of prohibition by way of requesting that Mr. Douglas submit additional support for the attorney’s fee he received from the estate for the writ of prohibition. Mr. Douglas did not include a copy of his submission in the file on appeal, but it apparently failed to provide the Court with any justification for the $7,500.00 fee he charged for the filing of a seven-page writ of prohibition, with a 14 point font, on a technical point that the circuit court determined “was in no way beneficial to Ms. Dandy.” The Court finds the circuit court did not err in this conclusion.
IV. Conclusion
For the reasons set forth herein, we affirm the decision of the Circuit Court of Nicholas County.
Affirmed.
. We note at the outset that Mr. Douglas is not a party to the action below. He is pursuing the instant appeal as a self-proclaimed "intervenorin-fact” or “de facto party;’’ however, Mr. Douglas has never taken any action pursuant to West Virginia Rule of Civil Procedure 24 or West Virginia Rule of Appellate Procedure 22 to intervene in the action. West Virginia Code § 58-5-1 (2005) provides that "[a] party to a civil action may appeal to the Supreme Court of Appeals from a final judgment of any circuit court....” Id. (Emphasis added). Additionally, West Virginia Code § 58-5-3 provides that "[a] party desiring to appeal, seeking the original jurisdiction of the Supreme Court of Appeals, or seeking an opinion of the Court on certified questions may file a petition in accordance with Rules of Appellate Procedure promulgated by the Supreme Court of Appeals.” Id. Likewise the West Virginia Rules of Appellate Procedure contemplate the filing of a petition for appeal by a party as the rules refer to petitioner or appellant which are terms defined as "the party.” W. Va. R. of App. Pro. 1.
In syllabus point one of Wade v. Carney, 68 W.Va. 756, 70 S.E. 770 (1911), this Court held that ”[o]ne cannot appeal a case to this court unless he has been a party to the controversy in the circuit court, or stands in the place of such party as legal representative.” Id.; Syl. Pt. 2, Henderson v. Potter Orphan Home, 103 W.Va. 60, 136 S.E. 605 (1927)(holding that "[o]nly parties to such a suit or decree are entitled to be heard upon appeal”).
In order for Mr. Douglas to pursue the instant appeal in his own right, he should have complied with the West Virginia Rules of Civil Procedure and intervened in the action below for the purposes of appealing the lower court's adverse ruling regarding his attorney’s fees. Alternatively, Mr. Douglas could have filed a petition for writ of prohibition with this Court without intervening in the action, as we have previously held that any person whose rights are affected by the action or proceeding in a lower court in which that court allegedly exceeded its legitimate powers may pursue a writ of prohibition in this Court. Syl. Pt. 2, State ex rel. Goodwin v. Cook, 162 W.Va. 161, 248 S.E.2d 602 (1978)(" 'As a general rule any person who will be affected or injured by the proceeding which he seeks to prohibit is entitled to apply for a writ of prohibition; but a person who has no interest in such proceeding and whose rights will not be affected or injured by it can not do so.’ Syllabus Point 6, Linger v. County Court, 150 W.Va. 207, 144 S.E.2d 689 (1965).”); W. Va.Code § 53-1-1 (2000); W. Va. R.App. P. 14. Mr. Douglas, however, chose to proceed with this appeal on his own behalf. It is troubling that Mr. Douglas failed to follow the proper procedural steps set forth in the West Virginia Code, the West Virginia Rules of Civil Procedure, and the West Virginia Rules of Appellate Procedure to ensure a properly effected appeal. Notwithstanding this, there is at least one case decided by the court in which a guardian ad litem was permitted to appeal a reduction in his attorney's fee apparently without being a named party to the action below. Erwin v. Henson, 202 W.Va. 137, 502 S.E.2d 712 (1998).
Because the circuit court’s Order directly impacts Mr. Douglas, the Court will resolve this appeal. The Court’s decision to do so, however, should in no way be considered as condoning the method used to pursue the instant appeal.
. Ms. Dandy died on May 31, 2008.
. The circuit court’s Order was originally entered October 10, 2007; however, none of the parties were advised of the circuit court’s decision until February 28, 2008, when the parties were provided copies of the October 10, 2007, Order. Because of this delay, the circuit court reissued its October 10, 2007, Order by a supplemental Order dated March 12, 2008, styled "Agreed Order Reissuing Final Order Nunc Pro Tunc."
. While the Appellant raised five assignments of error, upon review, the Court has consolidated the errors into two issues.
. West Virginia Code § 44A-2-7(a) provides, in pertinent part, that "[t]he court shall appoint legal counsel for the alleged protected person.” Id.
. West Virginia Code § 44A-2-3 (2004) provides that ”[t]he petition shall include a report by a licensed physician or psychologist evaluating the condition of the alleged protected person[.]” Id. The statutory provision further sets forth various information that must be furnished by the physician or psychologist regarding the alleged protected person's condition. Id.
. Mr. Bowers moved the circuit court to proceed on the second petition without the requisite physician’s evaluation. The circuit court denied Mr. Bowers' motion and ordered a physician's evaluation of Ms. Dandy. The circuit court also noted in its final Order that “although Ms. Dandy was served personally with neither the G-13 Petition, the 'Motion to File Petition Without Evaluation,’ nor notice of the hearing on this motion, Ms. Dandy's Guardian ad Litem, Ms. Chapman, had been properly served.”
. See W. Va.Code § 44A-2-10 (2004) and W. Va.Code § 44A-2-14 (2004).
. The December 15, 2005, date was the date used by the circuit court as the cut-off for compensation to Mr. Douglas from Ms. Dandy's estate as this was the date Ms. Dandy's competency was resolved by the circuit court.
. A "protected person” is defined in West Virginia Code § 44A — 1—4(13) (2004) as follows:
an adult individual, eighteen years of age or older, who has been found by a court, because of mental impairment, to be unable to receive and evaluate information effectively or to respond to people, events, and environments to such an extent that the individual lacks the capacity: (A) To meet the essential requirements for his or her health, care, safety, habilitation, or therapeutic needs without the assistance or protection of a guardian; or (B) to manage property or financial affairs or to provide for his or her support or for the support of legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgment, alone, is not sufficient evidence that the individual is a protected person within the meaning of this subsection____
Id.
. Although Mr. Douglas apparently filed something with the circuit court in response to the circuit court's directive, it was not included in the record, nor designated by Mr. Douglas for purposes of the appeal.
. Ms. Meadows was also ordered to pay back to the estate the sum of $13,800.00, which did not include any attorney's fees; however, no appeal was taken regarding any of the circuit court's rulings relating to Ms. Meadows.
. See generally 2A C.J.S. Agency § 2 (2009) ("Generally the courts will apply the law of the place of execution of a power of attorney in determining the validity of such a document, and •in construing and interpreting it and determining its scope.”)
. The writ of prohibition was filed on September 12, 2005.
. In reaching this determination, however, the Court is in no way ruling that a flat fee is unreasonable under all circumstances for the filing of a petition on an appellate matter, as there very well may be cases in which such a fee is proper. All the Court is deciding is that the circuit court's decision that the attorney's fee charged by Mr. Douglas regarding the writ of prohibition must be repaid to the estate under the facts and law of the case sub judice is not erroneous. | [
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.PER CURIAM:
This case is before this Court upon appeal of a final order of the Circuit Court of Kanawha County entered on April 7, 2008. In that order, the circuit court reversed a decision of the Board of Review of the West Virginia Department of Health and Human Resources which had affirmed a determination by the Bureau of Medical Services that the appellee and petitioner below, Matthew Wysong, by his mother, Mary L. Ramsey, had failed to demonstrate that he meets the medical eligibility requirements for participation in the Medical Home and Community-Based Mentally Retarded/Developmentally Disabled Waiver Program (hereinafter “Waiver Program”). Upon review, the circuit court found that Matthew Wysong satisfies the medical eligibility requirements of the Waiver Program.
In this appeal, the appellants and respondents below, Martha Walker, in her official capacity as Secretary of the Department of Health and Human Resources, and Ray Burl Woods, in his official capacity as State Hearing Officer for the Department of Health and Human Resources (hereinafter collectively referred to as “the DHHR”), contend that the circuit court committed reversible error, as a matter of law, by creating an improper standard for medical eligibility determination with regard to the Waiver Program. This Court has before it the petition for appeal, the entire record, and the briefs and arguments of the parties. For the reasons set forth below, the final order is affirmed.
I.
FACTS
In June 2006, Matthew Wysong, a Medicaid recipient who was twenty-four years old, applied for participation in the Waiver Program, a joint federal-state program established by Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396V (2003). The Waiver Program allows the State to offer the services and level of care that are provided in an intermediate care facility for individuals diagnosed with mental retardation and/or related developmental disabilities (hereinafter referred to as an “ICF/MR”) to eligible individuals in their homes instead of in an ICF/ MR. The purpose of the Waiver Program is to provide home and community-based support to individuals with mental retardation and/or other related developmental disabilities in order to achieve the highest level of independence and self-sufficiency possible in their lives. 42 U.S.C. § 1396n (2003 & Supp. 2009).
In order to be eligible for the Waiver Program, an applicant must satisfy certain medical eligibility criteria. First, the applicant must have a medical diagnosis of mental retardation and/or a related condition. Related conditions include autism, cerebral palsy, epilepsy, or any condition, other than mental illness, found to be closely related to mental retardation because the condition results in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons. If the applicant has an eligible medical diagnosis, he or she must demonstrate that the medical diagnosis is a severe chronic disability that manifested before the applicant reached twenty-two years of age and is likely to continue indefinitely. Next, the applicant must show that the medical diagnosis substantially limits functioning in three or more major life areas. The major life areas are: self-care; receptive and express language (communication); learning (functional academics); mobility; self-direction; and capacity for independent living. The applicant must also show that he or she requires active treatment. Finally, the applicant must qualify for a level of care that similarly diagnosed persons would have in an ICF/MR. See DHHR Provider Manual, Chapter 503-ICF/MR Services (2003).
The record indicates that Mr. Wysong has never previously participated in the Waiver Program, nor been a resident of an ICF/MR. Mr. Wysong lives at home with his mother, Mary Ramsey, who acts as his guardian. He was born one month premature on March 15, 1983. He has been diagnosed with cerebral palsy and epilepsy. His first seizure occurred when he was eight months old. He had no seizures from the age of three and a half until he was approximately seventeen years old. He then began having sixty seizures a day. Mr. Wysong had frontal lobe brain surgery to address his seizures in September 2004 at the age of twenty-one and follow-up surgeries in October 2004 and August 2005.
In 2003, Mr. Wysong was evaluated by a therapist and diagnosed with “ADHD, Personality Disorder NOS [not otherwise specified] and Borderline Intellectual Functioning.” According to the record, Mr. Wysong can read and write. He attended public school through the eighth grade and was placed in “mild impairment” classrooms. He was home-schooled from the ninth to the eleventh grade and participated in vocational training through WV Rehab in Institute, West Virginia, with some success as he was employed by Goodwill Industries through WV Rehab in 2002. However, Mr. Wysong was not able to complete the program because of difficulties with medication management and safety concerns. He is not currently employed.
Documents submitted with Mr. Wysong’s Waiver Program application included an Annual Medical Evaluation, a Psychological Evaluation dated March 9, 2006, and a Social History and Individual Program Plan from Are of West Virginia, a Medicaid provider of behavioral health services. The Annual Medical Evaluation was completed by Dr. Baker, D.O., who made a diagnosis of “Cerebral Palsy-lacks coordination, Seizure Disor der-Attention Deficit Disorder, Excessive Compulsive Disorder-OCD.” Dr. Baker stated that Mr. Wysong’s prognosis was “guarded.” He explained that Mr. Wysong is ambulatory but needs assistance after seizures. He is continent and fully capable of feeding himself. With regard to personal hygiene, the report indicated that Mr. Wysong is independent and capable of self-care but that he needs assistance as he is unable to button clothes, cut his nails, or comb his hair. Dr*. Baker cheeked a box on the evaluation form indicating that Mr. Wysong requires treatment at an ICF/MR level of care.
The Psychological Evaluation was completed by a licensed psychologist, Sandi KiserGriffith, M.A. She made a diagnosis of cognitive disorder, not otherwise specified. Ms. Kiser-Griffith administered various psychological tests. On the Kaufman Brief Intelligence Test, Mr. Wysong obtained a Verbal Standard Score of seventy/four, a Non-Verbal Standard Score of eighty, and a Composite IQ Standard Score of seventyrthree. Ms. Kiser-Griffith also utilized an assessment called the Adaptive Behavior Seale-Residential and Community (hereinafter “ABS”). As discussed in more detail herein, this test is designed to compare the adaptive skills of one adult with that of other adults who have similar disabilities. Mr. Wysong’s scores fell within the average range when compared with other adults diagnosed with having mental retardation. Ms. Kiser-Griffith concluded that Mr. Wysong would benefit from training programs designed to increase his efforts and abilities in domestic activities, vocational activities, and social engagement.
Mr. Wysong’s application for the Waiver Program was initially , denied upon a review of his application and records. The DHHR issued a “Notice of Denial” on June 16, 2006, which stated:
While Mr. Wysong carries the potentially eligible diagnosis of Cerebral Palsy and seizure disorder, the Waiver manual requires that these related conditions must be severe to meet the eligible criteria. Documentation submitted to date does not support that Mr. Wysong’s condition is severe as he is ambulatory, expresses himself thi'ough language, and can perform basic self-care activities. The presence of substantial adaptive deficits in three or more of the six major life areas considered for eligibility is not supported within the documents submitted for review. Also, the psychological evaluation does not indicate a need for active treatment[.]
Upon receipt of the denial, Mr. Wysong requested a hearing. On May 31, 2007, a hearing commenced before State Hearing Officer Ray Burl Woods. Steven Brady, Operations Coordinator for the Waiver Program, testified with regard to the medical eligibility requirements. Linda Workman, a licensed clinical psychologist and licensed school psychologist, contracted by the Bureau of Medical Services (hereinafter “BMS”) to make eligibility determinations, testified on behalf of BMS as an expert witness.
Ms. Workman testified that the documents submitted with Mr. Wysong’s application and subsequent thereto did not indicate that his cerebral palsy is “severe.” She noted that Mr. Wysong is independently ambulatory and has sufficient fine motor ability to take care of most activities of daily living. Ms. Workman also testified that the documentation did not support the presence of substantial functional limitations in three or more major life activities resulting from cerebral palsy as required by the medical eligibility criteria of the Waiver 'Program. In addition, she stated that Mr. Wysong did not satisfy the requirement of “continuous active treatment” at the ICF/MR level of care for adaptive deficits attributed to an eligible diagnosis. In other words, she testified that Mr. Wysong does not have any deficits that necessitate the availability of trained MR personnel twenty-four hours a day to teach him functional skills.
The hearing was continued until August 1, 2007, to allow Mr. Wysong to present the testimony of Ms. Kiser-Griffith. At the outset of her testimony, Ms. Kiser-Griffith deferred to Mr. Wysong’s treating physician, Dr. Baker, with respect to his physical diagnoses of cerebral palsy and seizure disorder, but acknowledged that his impairment in mobility due to cerebral palsy was not severe. Regarding her psychological diagnosis, Ms. Kiser-Griffith testified that Mr. Wysong’s intellectual functioning is borderline mental retardation. She opined that he has deficits in all six of the major life areas and would benefit from training programs designed to increase his efforts and abilities in domestic activities, vocational activities, and social engagement. Ms. Kiser-Griffith further testified that Mr. Wysong’s age equivalent score in the major life area of independent living indicates abilities equivalent to the age of four years and three months. Although Ms. Kiser-Griffith did not specifically state that Mr. Wysong required services through the Waiver Program, she testified that he needs “intensive instruction, services, assistance, and supervision.”
On August 15, 2007, Hearing Officer Woods issued his decision which upheld the DHHR’s denial of services to Mr. Wysong. Hearing Officer Woods found that Mr. Wysong did have an eligible diagnosis of cerebral palsy but that he did not require active treatment; did not have substantial adaptive deficits in three or more major life areas; and did not require the level of care and services provided in an ICF/MR. Thereafter, Mr. Wysong filed a writ of certiorari in the Circuit Court of Kanawha County.
The case was presented to the circuit court through briefs and oral argument. No additional evidence was submitted. The circuit court issued its decision on April 7, 2008, which reversed the decision of Hearing Officer Woods. The circuit court found that Mr. Wysong does have an eligible medical diagnosis of cerebral palsy which is “severe.” The circuit court also found that Mr. Wysong is limited in functioning in three major life areas, specifically, capacity for independent living, self-direction, and self-care. The circuit court further found that Mr. Wysong requires active treatment and meets the requirements for an ICF/MR level of care. The circuit court concluded that if Mi'. Wysong was not living at home with his mother, he would have to be placed in a twenty-four-hour care setting with services, training and supervision. The DHHR now appeals the circuit court’s April 7, 2008, order.
II.
STANDARD OF REVIEW
As set forth above, Mr. Wysong sought review of the decision of the Board of Review of the DHHR by filing a writ of certiorari with the circuit court. This Court has recently explained that an abuse of discretion standard is applied in reviewing a circuit court’s certiorari judgment. State ex rel. Prosecuting Attorney of Kanawha County v. Bayer Corp., 223 W.Va. 146, 150, 672 S.E.2d 282, 286 (2008). As this Court held long ago, “the circuit court has a large discretion in awarding [a writ of certiorari] ... and, unless such discretion is plainly abused, this Court cannot interfere there with.” Syllabus Point 1, in part, Michaelson v. Cautley, 45 W.Va. 533, 32 S.E. 170 (1898). See also Syllabus, in part, Snodgrass v. Board of Educ. of Elizabeth Indep. Dist., 114 W.Va. 305, 171 S.E. 742 (1933) (“When, after judgment on certiorari in the circuit court, a writ of error is prosecuted in this court to that judgment, a decision of the circuit court on the evidence will not be set aside unless it clearly appears to have been wrong.”). With this standard in mind, the assignment of error will be considered.
III.
DISCUSSION
The DHHR asserts that the circuit court committed reversible error in this case by substituting its judgment for that of Hearing Officer Woods and creating an improper standard for medical eligibility determinations under the Waiver Program. This Court has recognized that “[o]n certiorari the circuit court is required to make an independent review of both law and fact in order to render judgment as law and justice may require.” Syllabus Point 3, Harrison v. Ginsberg, 169 W.Va. 162, 286 S.E.2d 276 (1982). In other words, “unless otherwise provided by law, the standard of review by a circuit court in a writ of certiorari proceeding under W. Va.Code § 53-3-3 (1923) (Repl. Vol. 2000) is de novo.” Syllabus Point 2, Bayer, supra. Therefore, the circuit court was not required to give deference to the decision of the hearing officer. See West Virginia Div. of Envtl. Prot. v. Kingwood Coal Co., 200 W.Va. 734, 745, 490 S.E.2d 823, 834 (1997), quoting Fall River County v. S.D. Dept. of Rev., 552 N.W.2d 620, 624 (S.D.1996) (“ ‘De novo refers to a plenary form of review that affords no deference to' the previous decisionmaker.’ ”).
Having ascertained that the circuit court was authorized to make an independent review as to whether Matthew Wysong satisfies the medical eligibility requirements for the Waiver Program, the decision and the record presented will now be reviewed to determine whether the circuit court made a “clear error in judgment or exceeded] the bounds of permissible choices in the circumstances.” Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 (1995). See also Bartles v. Hinkle, 196 W.Va. 381, 389, 472 S.E.2d 827, 835 (1996) (“A trial court abuses its discretion if its ruling is based on an erroneous assessment of the evidence or the law.”).
As outlined above, there are four medical eligibility requirements for participation in the Waiver Program. The first requirement is a medical diagnosis of mental retardation and/or a related condition that is severe. In this ease, there is no dispute that Mr. Wysong has an eligible medical diagnosis; in fact, he has two related conditions, cerebral palsy and epilepsy. In addition, the record clearly shows that these conditions manifested before Mr. Wysong was twenty-two years old and that they are likely to continue indefinitely. The question is whether Mr. Wysong’s condition is severe.
The circuit court concluded that Mr. Wysong’s condition is severe based upon the testimony of both Ms. Workman and Ms. Kiser-Griffith. Both testified that Mr. Wysong’s condition “causes him significant impairments,” is “more than just minimal,” and is “more than just a slight abnormality.” The DHHR contends, however, that Mr. Wysong does not satisfy the severity requirement. In that regard, the DHHR argues that it is reasonable to conclude that an individual diagnosed with “severe cerebral palsy” would likely exhibit substantial limited functioning in the life activity of mobility; yet, the evidence of record shows that Mr. Wysong is ambulatory, continent, able to feed himself, and possesses sufficient fine motor ability to take care of most activities.
Having carefully reviewed the record, this Court is unable to find that the circuit court abused its discretion in concluding that Mr. Wysong’s condition is severe. Although Mr. Wysong’s cerebral palsy does not affect his mobility, the medical evidence in the record indicates that he does need assistance after seizures. Likewise, the record shows that while Mr. Wysong is capable of basic self-care, he needs help buttoning clothing, cutting nails, combing his hair, shaving, and tying his shoes. When Mr. Wysong’s overall condition is considered, the circuit court’s conclusion that he satisfies the severity requirement is not clearly wrong.
The second requirement for participation in the Waiver Program is a limitation in functioning in at least three major life areas. The circuit court determined that Mr. Wysong satisfies this requirement because he has substantial limited functioning in the areas of capacity for independent living, self-direction, and self-care. The DHHR argues, however, that Mr. Wysong’s limited functioning in these areas is not caused by his cerebral palsy, and therefore, he does not satisfy this eligibility requirement. .Upon review, this Court .finds that the evidence supports the circuit court’s conclusion.
As previously noted, in order to determine whether an applicant has substantial limited functioning in a major life area, the ABS is administered during the psychological evaluation. The ABS determines how deficient an individual is in his or her major life activities as compared to other individuals with or without mental retardation or a related condition. In order for an applicant of the Waiver Program to be considered substan tially limited in a major life area, his or her ABS score must be “three (3) standard deviations below the mean or less than one (1) percentile when derived from non-MR normative populations or in the average range or equal to or below the seventy-fifth (75) percentile when derived from MR normative populations.” DHHR Provider Manual, supra, § 503.1.
With regard to capacity for independent living, both Ms. Workman and Ms. KiserGriffith testified that Mr. Wysong’s ABS scores qualified him for the Waiver Program because they were within the average range when compared to other adults with mental retardation. Ms. Kiser-Griffith explained that Mr. Wysong “can’t manage his finances, cannot manage his medications, and he doesn’t even have a concept of calling in refills or [making] doctor appointments.” She stated that he could not work as “[h]e would not have a concept of showing up to work or being able to follow instructions or the social norms of work.”
Concerning self-direction, Ms. Workman testified that she did not believe that Mr. Wysong has limitation of function in this area because he does not “just sit around and do nothing for hours at a time.” Ms. KiserGriffith testified, however, that Mr. Wysong’s score on the ABS is in the sixty-third percentile, again placing him in the average range of abilities compared with other adults with mental retardation. Furthermore, Ms. Kiser-Griffith testified that while Mr. Wysong is capable of personal hygiene, he needs prompting as he does not self-initiate those activities. For example, he has to be told to wash his hands and brush his teeth.
Finally, with regard to self-care, Ms. Workman testified that she did not believe that Mr. Wysong has substantial limitation in this area because he is physically capable of performing self-care activities. To the contrary, Ms. Kiser-Griffith testified that Mr. Wysong has both physical and cognitive limitations in this area. She reiterated that Mr. Wysong has a deficit in the ability to self-initiate personal hygiene activities. In addition, she explained that if a certain activity takes five steps to complete, Mr. Wysong can only complete two of the steps.
Based upon all the above, the circuit court did not abuse its discretion in concluding that Mr. Wysong is substantially limited in functioning in three major life areas, namely, capacity for independent living, self-direction, and self-care. Mr. Wysong clearly does not have the capacity for independent living. Moreover, while he is physically capable of performing some personal hygiene activities, the record shows he needs prompting to do so and that he requires assistance to complete certain tasks.
The final two eligibility requirements for the Waiver Program are the need for active treatment and the need for an ICF/MR level of care. The circuit court determined that Mr. Wysong satisfies these requirements based upon Ms. Kiser-Griffith’s testimony during the August 1, 2007, hearing that Mr. Wysong needs “intensive instruction, services, assistance, and supervision.” She explained that without services, training, and supervision, Mr. Wysong will not learn new skills or “increase [his] independence in activities of daily living.” She also opined that if Mr. Wysong were not living at home with his mother’s care, he would have to be placed in a twenty-four-hour care setting. The DHHR argues that while Mr. Wysong may need services and training, he does not need twenty-four-hour care that is provided in an ICF/MR.
Section 503.1 of the DHHR Provider Manual states that in order for an applicant to qualify to an ICF/MR level of care, evaluations of the applicant must show “a need for intensive instruction, services, assistance, and supervision in order to learn new skills and increase independence in activities of daily living.” Based upon the record, the circuit court did not abuse its discretion in finding that Mr. Wysong satisfies the final two requirements to qualify for the Waiver Program. The circuit court’s conclusion that “Mr. Wysong is not a ‘generally independent’ person who is ‘able to function with little supervision’ ” is not clearly wrong. The evidence in the record shows that Mr. Wysong needs services, training, and supervision. Moreover, it is clear that if it were not for his mother’s care, Mr. Wysong would need to be placed in a twenty-four-hour care setting.
IV.
CONCLUSION
In summary, the record supports the circuit court’s conclusion that Mr. Wysong satisfies the medical eligibility criteria for participation in the Waiver Program. In reaching its conclusion, the circuit court did not create a new standard of medical eligibility for participation in the waiver program as the DHHR contends, but instead applied the Waiver Program rules and definitions to the facts of this ease. Accordingly, based on all the above, the final order of the Circuit Court of Kanawha County entered on April 7, 2008, is affirmed.
Affirmed.
. The DHHR Provider Manual cited herein has been renumbered, but the language remains substantially the same. Nonetheless, the former version is referenced in this opinion as it was in effect at the time Mr. Wysong's application for the Waiver Program, was considered. The new version of the DHHR Provider Manual is available at http://www.wvdhhr.org/bms/Manuals/ bms_manuals_main.htm.
. See State ex rel. Ginsberg v. Watt, 168 W.Va. 503, 505, 285 S.E.2d 367, 369 (1981) ("Department of Welfare [DHHR] is not subject to the Administrative Procedures Act____ Certiorari is the proper means for obtaining judicial review of a decision made by a state agency not covered by the Administrative Procedures Act.”).
. The record indicates that Mr. Wysong does exhibit right side motor impairment. | [
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PER CURIAM:
Petitioner, the municipal corporation of Charles Town (hereinafter “Charles Town”), seeks a writ of prohibition to prevent the Circuit Court of Jefferson County from proceeding with the remainder of the underlying civil action until it is dismissed with prejudice from the case. Respondent Robert W. Furr brought this action against Charles Town after he slipped and fell on “black near-invisible ice” in a public parking lot that was leased, operated and maintained by Charles Town. Charles Town argues that it is entitled to governmental immunity from this suit pursuant to W.Va.Code § 29-12A-5(a)(6) (1986), and filed a motion for judgment on the pleadings and to dismiss the second amended complaint. The circuit court denied the motion and Charles Town subsequently filed this writ of prohibition.
As set forth below, we find that Charles Town is entitled to immunity pursuant to the plain language of W.Va.Code § 29-12A-5(a)(6), and W.Va.Code § 8-12-12, and grant the requested writ.
I.
Facts & Background
On April 1, 2003, Charles Town leased a parking lot from Jackson-Perks Post No. 71, Inc., the American Legion (hereinafter “American Legion”). The lease allowed Charles Town to put parking meters on the lot and collect revenue from them in exchange for an annual rent payment of $1200.00, as well as Charles Town’s promise to maintain the parking lot and “keep the macadam, or blacktop, in a reasonable state of repair” and “keep the premises policed and free from trash, debris, weeds, snow and ice.”
On February 14, 2007, Respondent Robert W. Furr (hereinafter “Respondent Furr”) was injured when he slipped and fell on “black near-invisible ice” while walking across the American Legion parking lot. Respondent Furr sued Charles Town for negligently maintaining the parking lot. He later sought and was granted leave to amend his complaint to add the American Legion as a co-defendant. In his second amended complaint, Respondent Furr alleges that Charles Town and the American Legion
negligently allowed the subject parking lot to be improperly and dangerously maintained, in that the expansions and contractions caused by the forces of Nature over time resulted in a worn and uneven parking lot surface and would freeze in patches of black ice, making it dangerous and unfit for safe passage, all in violation of the lease agreement.
Respondent Furr also alleges that Charles Town breached its contractual agreement by (1) failing to remove snow and ice from the parking lot, (2) failing to inspect and issue reports on the safety conditions of the parking lot, and (3) failing to warn the public or close the parking lot when dangerous conditions, like snow and ice, were present.
On March 20, 2009, Charles Town filed a motion for judgment on the pleadings and to dismiss the second amended complaint, asserting that it was immune from liability for Respondent Furr’s injuries pursuant to the Governmental Tort Claims and Insurance Reform Act, W.Va.Code, § 29-12-1, et. seq., specifically W.Va.Code § 29-12A-5(a)(6). On May 28, 2009, the circuit court denied Charles Town’s motion, and Charles Town thereafter filed this writ of prohibition to prohibit the circuit court from conducting any further proceedings in this case until Charles Town is dismissed with prejudice.
II.
Standard of Review
We have held that “[prohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers, and may not be used as a substitute for [a petition for appeal] or certiorari.” Syllabus Point 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953). In Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), we stated the following standard of review where, as here, a petitioner contends that a trial court has exceeded its legitimate powers:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the thúd factor, the existence of clear error as a matter of law, should be given substantial weight.
With this standard in mind, we proceed to consider the parties’ arguments.
III.
Analysis
The issue before us is whether W.Va.Code § 29-12A-5(a)(6) provides Charles Town with immunity from the allegations made against it in Respondent Furr’s second amended complaint. In order to resolve this question, we must examine the precise words of the statute in question. “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syllabus Point 1, Smith v. State Workmen’s Compensation Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975). Where the statutory language is clear and unambiguous, it should be applied as written. See Syllabus Point 5, Walker v. West Virginia Ethics Comm’n, 201 W.Va. 108, 492 S.E.2d 167 (1997) (“Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.” (internal quotations and citations omitted)); Syllabus Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.”). In determining whether Charles Town is entitled to governmental immunity under W.Va.Code § 29-12A-5(a)(6), we note that the general rule of construction in governmental tort legislation eases favors liability, not immunity.
W.VaCode, § 29-12A-5(a)(6) is part of the Governmental Tort Claims and Insurance Reform Act, W.Va.Code, § 29-12-1, et. seq. The stated purpose of this act is “to limit liability of political subdivisions and provide immunity to political subdivisions in certain instances and to regulate the costs and coverage of insurance available to political subdivisions for such liability.” W.Va.Code, § 29-12A-1 (1986). According to W.Va.Code, § 29-12A-3(c) (1986), municipalities are included in the definition of ‘political subdivision’.
The Governmental Tort Claims Act states at W.Va.Code, § 29-12A-4(b)(l) (1986):
Except as provided in subsection (c) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function[.]
Subsection (c) lists five instances in which political subdivisions are liable for damages arising from an act or omission. Respondent Furr argues that Charles Town is liable for his injuries under W.Va.Code, § 29-12A-4(c)(3), which states that political subdivisions are liable for injuries caused by their negligent failure to keep public roads, highways, streets, avenues, alleys, or sidewalks in repair or free from nuisance. However, W.Va.Code, § 29-12A-4(e) is made subject to the immunities set forth in section five and six of article 29.
The statute at issue herein, W.Va.Code, § 29-12A-5, lists 17 instances in which a political subdivision is immune from liability for a loss or claim. Specifically at issue is W.Va.Code, § 29-12A-5(a)(6), which states:
(а) A political subdivision is immune from liability if a loss or claim results from:
(б) Snow or ice conditions or temporary or natural conditions on any public way or other public place due to weather conditions, unless the condition is affirmatively caused by the negligent act of a political subdivision!)]
This Court previously addressed W.Va.Code, § 29-12A-5(a)(6), in Porter v. Grant County Board of Education, 219 W.Va. 282, 633 S.E.2d 38 (2006), a case in which a spectator who slipped and fell on snow and ice on school grounds while en route to a school-sponsored athletic contest, brought an action against the county school board alleging that the board was negligent for holding the athletic contest on the same date that it cancelled classes eountywide due to inclement whether. The Court found that the school board was entitled to immunity under W.Va.Code, § 29-12A-5(a)(6), because the school board did not place the snow or ice conditions on the sidewalk on which the spectator fell. In Syllabus Point 3 of Porter, the Court held:
W. Va. Code, § 29-12A-5(a)(6) (1986) clearly provides political subdivisions with immunity from liability for losses or claims resulting from snow or ice placed on public ways or other public places by the weather. However, political subdivisions are not immune from liability for losses or claims occurring from an affirmative negligent act of the political subdivision resulting in snow or ice on public ways or other public places.
The Court in Porter gave two examples of affirmative negligent acts which could render political subdivisions liable for injuries resulting from snow or ice on a public way: “an employee of the political subdivision could remove snow or ice from the roadway by throwing it onto the sidewalk. Also an employee ... could permit a broken pipe or hose to leak water onto a sidewalk where the water subsequently freezes.” Porter, 219 W.Va. at 286, 633 S.E.2d at 42.
In the case sub judice, the issue is whether the snow and ice were present on the parking lot as a result of the weather or because of an affirmative negligent act of Charles Town placing it there. Respondent Furr alleges that Charles Town “negligently allowed the subject parking lot to be improperly and dangerously maintained, in that the expansions and contractions caused by the forces of Nature [sic ] over time resulted in a worn and uneven parking lot surface and would freeze in patches of black ice.” He also alleges that Charles Town’s failure to remove the snow from the parking lot led to “cycles of thawing, evaporation, melting, draining and refreezing ... so that dangerous patches of ice would exist in the subject parking lot for extended periods[.]”
There is a substantial difference between the examples of affirmative negligent acts discussed in Porter and the allegations Respondent Furr makes in his second amended complaint. Both of the Porter examples, throwing snow from a roadway onto a sidewalk or permitting water from a broken pipe or hose to leak onto a sidewalk where it subsequently freezes, are situations in which the negligent act caused the snow or ice to be on the public way. Respondent Furr does not allege that the snow or ice would have been absent from the parking lot if not for Charles Town’s negligent act. Rather, the allegation is that Charles Town’s failure to timely remove the snow and ice, coupled with its failure to properly maintain the parking lot caused the snow and ice to be concentrated in a particular area of the parking lot. Respondent Furr contends that Charles Town’s affirmative negligent act was allowing the parking lot to expand and contract over time “caused by the forces of [njature”, thus allowing the lot’s surface to become uneven allowing water to freeze into patches of ice.
We believe that Respondent Furr’s allegation does not constitute an affirmative negligent act because Charles Town did not place the snow and ice onto the parking lot, the weather did. W.Va.Code, § 29-12A-5(a)(6), and this Court’s holding in Porter, state that political subdivisions are immune from liability for losses or claims resulting from snow or ice placed on public ways by the weather.
Respondent Furr also argues that Charles Town should not be permitted to claim immunity under W.Va.Code, § 29-12A-5(a)(6), because it entered into a contract with the American Legion whereby it agreed to “keep the premises policed and free from trash, debris, weeds, snow and ice.” (Emphasis added). Fun- argues that Charles Town waived the immunity set forth in W.Va.Code, § 29-12A-5(a)(6), when it contractually agreed to keep the parking lot free from snow and ice.
Charles Town’s power to enter into the contract with the American Legion comes from W.Va.Code, § 8-12-12, which states, in relevant part:
Every municipality shall have plenary power and authority to enter into a lease with the owner or owners of any real property situate within the corporate limits of such municipality by which such real property is demised, leased and let to such municipality for an off-street parking facility (including parking lots, buildings, ramps, parking meters and other appurtenances deemed necessary, appropriate or incidental to the regulation, control and parking of motor vehicles), which off-street parking facility is hereby declared to be a municipal public work, and every such municipality shall have plenary power and authority to establish, maintain and operate such parking facility....
Any lease entered into by and between any such municipality and the owner or owners of any such real property may contain such terms and conditions as may be agreed upon between the parties, not inconsistent with any of the provisions of this section or other provisions of law.
(emphasis added).
The plain language of this statute states that the terms and conditions of a lease between a municipality and an owner of an off-street parking facility may not include lease terms that are inconsistent with any other provision of law. Reading this statute in pari materia with W.Va.Code, § 29-12A- 5(a)(6), it is clear that a municipality may not assume tort liability for injuries occurring in a leased parking lot for losses or claims resulting from snow or ice that is placed on the parking lot by the weather. To the extent that Respondent Furr argues that Charles Town assumed tort liability for the parking lot by agreeing to keep it free from snow and ice, this lease term is inconsistent with the immunity set forth in W.Va.Code, § 29-12A-5(a)(6), and is thus precluded under the plain language of W.Va.Code, § 8-12-12.
IV.
Conclusion
Based on the foregoing, we find that Charles Town is entitled to immunity under W.Va.Code, § 29-12A-5(a)(6), and grant the requested writ of prohibition.
Writ Granted.
Chief Justice BENJAMIN concurs and reserves the right to file a separate opinion.
. The American Legion filed a cross-claim against Charles Town for indemnity or contribution.
. Syllabus Point 2 of Marlin v. Bill Rich Const., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996), states:
The general rule of construction in governmental tort legislation cases favors liability, not immunity. Unless the legislature has clearly provided for immunity under the circumstances, the general common-law goal of compensating injured parties for damages caused by negligent acts must prevail.
We are also mindful of the public policy considerations underlying governmental immunity that this Court discussed in Hutchison v. City of Huntington, 198 W.Va. 139, 148, 479 S.E.2d 649, 658 (1996):
Immunities under West Virginia law are more than a defense to a suit in that they grant governmental bodies and public officials the right not to be subject to the burden of trial at all. The very heart of the immunity defense is that it spares the defendant from having to go forward with an inquiry into the merits of the case.
. 'W.Va.Code, § 29-12A-3(c) (1986), states:
"Political subdivision” means any county commission, municipality and county board of education; any separate corporation or instrumentality established by one or more counties or municipalities, as permitted by law; any instrumentality supported in most part by municipalities; any public body charged by law with the performance of a government function and whose jurisdiction is coextensive with one or more counties, cities or towns; a combined city-county health department created pursuant to article two, chapter sixteen of this code; public service districts; and other instrumentalities including, but not limited to, volunteer fire departments and emergency service organizations as recognized by an appropriate public body and authorized by law to perform a government function: Provided, That hospitals of a political subdivision and their employees are expressly excluded from the provisions of this article.
. W.Va.Code, § 29-12A — 4(c)(3) states:
Political subdivisions are liable for injury, death, or loss to persons or property caused by their negligent failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within.the political subdivisions open, in repair, or free from nuisance, except that it is a full defense to such liability, when a bridge within a municipality is involved, that the municipality does not have the responsibility for maintaining or inspecting the bridge.
. W.Va.Code, § 29-12A-4(c) states:
Subject to sectioits five [§ 29-12A-5] and six [§ 29-12A-6] of this article, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function[.]
(emphasis added). | [
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PER CURIAM:
This ease involves two consolidated appeals by the Charleston Town Center Company, LP of the West Virginia Human Rights Commission’s November 26, 2008, final orders which adopted the Administrative Law Judge’s final decisions dated May 23, 2008. In its orders, the Human Rights Commission found that Charleston Town Center, LP discriminated against the appellees based on their race. Upon review of the record before the Human Rights Commission and the briefs and arguments of counsel, we reverse the Human Rights Commission’s final orders for the reasons provided below.
I.
FACTS
Separate complaints were filed with the West Virginia Human Rights Commission on behalf of the appellees herein, Steven Bum-pus and Kevin Streets, in which it was alleged that the appellees were discriminated against by the Appellant Charleston Town Center Company, LP, based on their race which is African-American. The Charleston Town Center, LP operates the Charleston Town Center (“Town Center” or “Mall”), a retail shopping mall in downtown Charleston. The appellees alleged in their complaints that they were unlawfully discriminated against by Town Center security guards. At a hearing before the Administrative Law Judge (“ALJ”), the following evidence was adduced.
On the evening of April 22, 2006, Mr. Bumpus, who was sixteen years of age at the time, and Mr. Streets, who was seventeen years of age at the time, along with a friend who is also African-American, entered the Charleston Town Center. The appellees testified that almost immediately upon entering the Town Center, several Mall security guards began watching them. In response to this testimony, Lt. Karl Hager, the Superintendent of Mall security, testified that on the evening in question, two security guards were posted on level one of the Mall, one patrolling from Court Street to Starbucks and the other patrolling from Starbucks to Clendenin Street. According to Lt. Hager, generally two security guards are not together in one place.
Subsequently, Mr. Bumpus and Mr. Streets were among a group of seven or eight African-American male youths who were sitting around different tables at the food court in the Town Center. The youths were approached by Lt. Hager who told them to leave the food court because they did not have food or drinks. There is divergent testimony on the issue of whether any of the youths were eating. Lt. Hager testified that he did not observe any members of the group eating. Mr. Bumpus and Mr. Streets testified, on the other hand, that some members of the group had purchased food. The youths refused to leave the food court as instructed and some of the youths called Lt. Hager a “rent-a-eop.” At that point, Lt. Hager summoned two City of Charleston police officers who were eating in the food court. One of the youths initially refused to leave when commanded to do so by the police officers but eventually acquiesced.
Upon leaving the food court and traveling down to the second level of the Mall, Mr. Bumpus testified that he, Mr. Streets, and two friends from the food court were walking around when they were approached by an unidentified Mall security guard and instructed to keep moving. Mr. Bumpus further testified that they were not blocking traffic at that point.
Next, just before 9:00 p.m. that evening, Lt. Hager again confronted a group of African-American youths, including the appellees, and instructed them to leave the Town Center. Again, there is conflicting evidence with regard to this occurrence. Mr. Bumpus testified briefly that he, Mr. Streets, and others were walking through the Mall when several city police officers approached them and told them to leave the Mall without explaining why. Mr. Streets appeared to testify that they were told to leave the Mall because the stores were closing. Lt. Hager testified that the appellees were in a loud group of about seven individuals. He further testified that he informed them that the Mall was closing, but that the group refused to leave, cursed at him, and called him a rent-aeop. When the youths refused to leave, Lt. Hager again called for city police officers who subsequently escorted the youths from the Town Center.
The appellees and two friends then walked from the Town Center to a movie theater located several blocks away. They ultimately did not see a movie and walked back to Chili’s restaurant, which is attached to the Mall but contains a separate outside entonce. They remained at Chili’s for more than an hour, eating and watching television. Upon exiting the restaurant, the youths walked to a railing located just outside of Chili’s where Mr. Bumpus telephoned his mother for a ride home. At that point one of the appellees’ friends left, leaving three youths remaining along the railing.
When the appellees and their friends exited Chili’s, there was a verbal confrontation occurring between a large group of African-American males and Town Center security guards somewhere between the Mali’s Court Street entrance and Chili’s. At some point, Town Center security called the city police. After identifying the appellees as being part of the group that confronted the security guards, a security guard notified the appellees that they should leave the Mall property before the police arrived, but the appellees refused. By the time the police officers arrived, the large group of individuals had dispersed, but the appellees and a friend remained at the rail near Chili’s restaurant. After the appellees argued with the police officers, they were arrested and charged with trespassing. This charge was later dropped.
After the evidentiary hearing, the ALJ entered a final decision in each ease in which he found that each appellee was subjected to a severe incident of racial harassment by agents of the Town Center. The Human Rights Commission adopted the ALJ’s orders. This Court granted the Town Center’s petition for appeal and consolidated the cases for review.
II.
STANDARD OF REVIEW
This case involves an appeal directly from the Human Rights Commission to this Court. Concerning such appeals, this Court has held:
Where an appeal from an order issued by the West Virginia Human Rights Commission is brought directly to the West Virginia Supreme Court of Appeals, pursuant to W. Va.Code § 5-11-11 (1989), this Court will apply the same standard of review that is applied to Human Rights Commission orders appealed to a circuit court.
Syllabus Point 1, Cobb v. West Virginia Human Rights Com’n, 217 W.Va. 761, 619 5.E.2d 274 (2005). With regard to the standard of review applied by a circuit court to Human Rights Commission orders, we have indicated that “West Virginia Human Rights Commission’s findings of fact should be sustained by reviewing courts if they are supported by substantial evidence or are unchallenged by the parties.” Syllabus Point 1, Human Rights Com’n v. United Transp. Union # 655, 167 W.Va. 282, 280 S.E.2d 653 (1981). Finally, we have held:
Upon judicial review of a contested case under the West Virginia Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the ease for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are: “(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”
Syllabus Point 2, Shepherdstown V.F.D. v. W. Va. Human Rights, 172 W.Va. 627, 309 S.E.2d 342 (1983). With these standards to guide us, we now consider the issues in this ease.
III.
DISCUSSION
The sole question in this ease is whether the ALJ erred in finding that the appellees proved that they were victims of unlawful discrimination. This case arises under our State Human Rights Act which makes it an unlawful practice, in pertinent part, “[f]or any persons being the owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodations to ... [rjefuse, withhold from or deny to any individual because of his or her race ... any of the accommodations, advantages, facilities, privileges or services of the'place of public accommodations!;.]” W. Va.Code § 5-ll-9(6)(A). Once a complainant proves a prima facie case of unlawful discrimination, “[t]he complainant’s prima facie case can be rebutted if the respondent presents a nondiseriminatory reason for the action in question sufficient to overcome the inference of discriminatory intent.” Syllabus Point 2, K-Mart Corp. v. Human Rights Com’n, 181 W.Va. 473, 383 S.E.2d 277 (1989) (footnote added).
This Court finds that the Town Center successfully rebutted the appellees’ prima facie case. In the instant case, the Town Center presented evidence showing that the appellees’ behavior violated the Town Center’s code of conduct. Lt. Hager testified below that a copy of the code of conduct is located at the bottom of each escalator on the second and first floors of the Mall. This code of conduct provides as follows:
• Juvenile groups of four (4) or more will be dispersed. Customers must keep moving in an orderly fashion through the premises and not block walkways or store entrances.
• Seating benches are to be used for shopping breaks not to exceed 15 minutes.
• Food Court seating is for paying customers of the Food Court.
• Loud and boisterous behavior will not be permitted.
• Obscene or offensive language will not be permitted.
• Spitting, sitting in the planters, leaning on railings or throwing objects over them will not be permitted.
• Running, inappropriate behavior, vandalism or any unacceptable conduct on the premises will be grounds for ejection.
• When conditions contribute to an overflow of juveniles, management reserves the right to disperse or eject individuals or groups.
• Proper clothing is required at all times, which includes shoes, shirts and no gang attire or colors.
• Individuals of school age are expected to be in attendance at school during the hours their schools are in session or otherwise in transit to or from home.
Violators Will Be Asked To Leave The Property
Specifically, the Town Center provided evidence below that the appellees were approached by Lt. Hager at the food court because they were being loud. Lt. Hager then instructed the appellees and their friends to leave the food court because they were not paying customers. Further, the Town Center presented evidence that the appellees were directed to leave the Town Center because they were being loud and the Mall was closing. Finally, evidence produced by the Town Center indicated that the appellees were told to leave Town Center property on the sidewalk outside of Chili’s because they were identified as being in a large group of individuals who were being disruptive.
Once the defendant articulates a nondiseriminatory reason for its conduct, the plaintiff bears the burden of showing that the reason articulated for the conduct is pretextual, and that race was the actual motive for the conduct. According to Syllabus Point 3 of K-Mart, supra, this Court held that “[t]he complainant may still prevail if it can be shown that the reason given by the respon dent is merely a pretext for a discriminatory motive.” Courts have indicated that several types of evidence can be used by a plaintiff to prove pretext. These include: “1) comparative evidence; 2) statistical evidence; and 3) direct evidence of discrimination, in the form of discriminatory statements and admissions.” Miles v. M.N.C. Corp., 750 F.2d 867, 870 (1985) (citation omitted). In their testimony below, the appellees made vague references to white youths who were treated differently than the appellees were. However, no evidence was presented that these white youths were violating the code of conduct at that time. Absent such evidence, the appellees are unable to show that the code of conduct was enforced against them in a discriminatory manner. The appellees also presented the testimony of Carol Johnson Cyrus, the aunt of one of the appellees’ friends, that when she called the Mall to complain about the appellees’ treatment, the person who answered the phone for Mall security told her that “[security guards] don’t just bother African Americans, they also get on Goths, you know, the white people that wear black clothing.” We find, however, that an ambiguous statement from an unidentified person is of little probative value in determining the security guards’ motives for their actions against the appellees. In addition, the appellees elicited the testimony of Charleston Police Officer Robert Brown who testified that of the “probably more than a hundred” calls he has responded to in the last thirteen years to eject people from the Mall, “probably about close to a hundred percent ... have been minorities or blacks.” Similarly, Charleston Police Officer Raymond Coleman testified that the individuals he is called to the Town Center to evict are commonly African-American. However, the general recollection of two police officers over a relatively long period of time absent supporting documentation and additional evidence of the total number of police evictions made at the Town Center over the same time period does not permit a meaningful comparison of Mall security’s treatment of African-Americans versus its treatment of persons of other races. For these reasons, we conclude that the above evidence relied upon by the appellees to support their claims is insufficient to prove unlawful discrimination in the present ease.
A fourth way for plaintiffs in an unlawful discrimination claim to prove their case is by showing that the reason articulated by the defendant for the action taken against the plaintiff is not credible. This Court has indicated that “[i]n order to overcome a showing of non-discriminatory reason, the complainant must demonstrate by a preponderance of evidence that the claimed non-discriminatory reason was merely a pretext. Pretext may be demonstrated by showing that the articulated reasons were implausible.” Cobb, 217 W.Va. at 774-775, 619 S.E.2d at 287-288 (citations omitted; emphasis in the original). In finding for the appellees, the ALJ below specifically found that the reasons offered by the Town Center for its treatment of the appellees were not credible. We will now review the ALJ’s bases for this finding.
First, the ALJ states that he cannot discern any misbehavior or violation of the code of conduct to explain the fact that the appellees were subjected to being watched and followed by Mall security guards upon entering the Mall. Presuming that this testimony of the appellees is true, despite the fact that it was disputed by the Town Center, such conduct would not support a claim under the Human Rights Act. This Court previously has found that merely observing entrants to a business establishment cannot sustain an unlawful discrimination claim. Specifically, in K-Mart v. Human Rights Com’n, supra, we concluded with regard to a Syrian family’s complaint that they were watched by employees and a police officer while shopping at K-Mart, “nowhere in the record do we find that the appellant and his family were actually denied, refused, or withheld any services or amenities as required by W. Va.Code § 5 — 11—9[.]” 181 W.Va. at 478, 383 S.E.2d at 282. In their brief to this Court, the appellees aver that while such conduct alone may not constitute a valid claim under the Human Rights Act, it indicates that race was a factor in how the appellees were perceived and supports the AL J’s finding that the appellees were discriminated against based on their race. However, because we conclude that there is no additional evidence of unlawful discrimination, evidence that the appellees were watched is not sufficient to prove pretext.
As a second basis for its finding of pretext, the ALJ placed great weight on Lt. Hager’s testimony that generally he will explain to people .how they are violating the code of conduct and suggest how they may comply with the code to alleviate the problem. However, Lt. Hager testified that he did not explain to the appellees at the food court that if they quieted down or purchased food they could stay. This Court’s review of the record indicates, however, that Lt. Hager explained that he did not utilize this practice with the group at the food court because some members of the group immediately became belligerent. Further, Mall security guards are afforded considerable discretion in their application of the Mall’s code of conduct depending on several factors in any given circumstance such as the size of the group of juveniles, the group’s conduct, the group’s attitude and demeanor, and the condition of the mall, ie., how crowded the Mall is. It is undisputed that the appellees were in a group of seven or eight individuals, at least several of whom were not paying customers of the food court. It is also undisputed that the group refused to leave the food court when instructed to do so by Lt. Hager. Therefore, under these facts, we find that the alleged inconsistency in Lt. Hager’s treatment of the appellees creates no inference that he acted in a racially discriminatory manner.
As a third basis for his decision, the ALJ indicates that
There is no rule which prohibits window shopping, yet Complainants were approached and told they had to keep moving. The same thing occurred when Complainants were escorted out of the Mall. They were asking why are we being asked to leave now, when everyone else is being left alone to leave on their own? No explanation; again a call for the Charleston Police Department to remove them from the premises while other members of the public were not.
The ALJ’s analysis is problematic for several reasons. First, while there is no rule that prohibits window shopping, the code of conduct provides that “Customers must keep moving in an orderly fashion through the premises and not block walkways or store entrances.” While the appellees testified in cursory fashion that they were not blocking traffic, the fact remains that Mall security has the discretion to enforce the code of conduct in accord with Mall conditions. Absent additional details about this alleged occurrence, it cannot be inferred that the unidentified security guard had an unlawful motive for his conduct.
The ALJ explains the final basis for its decision as follows:
Finally, there is the incident outside of Chili’s restaurant, which resulted in the arrest of Complainants for trespass. Lt. Hager associated Complainants with the group that was causing trouble that night outside the Mall entrance simply because they were African-American teenagers. Should Complainants have been white, Lt. Hager would not have instructed Charleston City Police to remove them from the sidewalk just because they were outside Chili’s restaurant. Only because Complainants had questioned the treatment they were receiving from Mall security and him specifically earlier in the evening, Lt. Hager pointed them out to Charleston City Police and directed that they be told to go somewhere which placed them in danger, when they were entitled to stay right where they were. That insistence resulted in their arrest, which Respondent now claims is the result of Complainant’s own behavior, completely disowning their responsibility in the events. (Footnote added).
For the following reasons, we find the ALJ’s conclusion that the incorrect identification of the appellees with the larger group of African-American teenagers proves racial animus to be speculative.
It is undisputed that there was a large group of African-American males, perhaps 15 to 20, confronting Mall security guards somewhere between the Mall entrance on Court Street and Chili’s restaurant during the time the appellees exited Chili’s and proceeded to stand at a rail along the front of the restaurant. At some point, the larger group migrated in the direction of the appellees so that the appellees were among the larger group. Mr. Streets testified to this facts as follows:
A. We just started walking out, and we saw other teenagers, African-American, standing right under that Town Center Mall [sign] and they was [sic] just running around, playing around, and then you could see as they started having a confrontation with the security guards. And we just stood there waiting for [Mr. Bumpus’s] mom. And we just set [sic] there and pretty much watched what was going on. And then as they started confronting, it seemed like more, it seemed like some of them eased their way over here and then we became part of their group and the security guard said everybody needs to leave, even though we just stood there and we weren’t part of it at all. And we just— and then the same thing, we just watched as it kept going on.
Q. Okay. And then what happened?
A. Then they kept getting in it. Threats were being made to each other and—
Q. When you say “threats being made to each other”?
A. From the other teenagers and the security guards. And they, then they said the police are coming now, so we’ll see how you all act when they come. Then that’s when we hear the sirens and stuff going off and they all just run.
Q. Who ran?
A. All those teenagers of African-American blood, all of us except for me, [Mr. Bumpus], Larry, and Lamar had already gone. So they all left and it was just me, Steven, and Larry.
Under these facts, it does not follow that the security guards’ identification of the appellees with the larger group of individuals proves racial animus. Rather, according to the evidence, the action taken against the appellees by the security guards was based on the guard’s belief that the appellees had violated the code of conduct by being among a large group that was- being disruptive. The fact that the security guards believed this in part because the appellees were of the same race as the members of the larger group is not evidence of racial animus against the appellees.
These facts are similar to those in K-Mart v. Human Rights Com’n, supra, wherein a family of Syrian descent who were watched by employees and a police officer because they fit the profile of a band of gypsy shoplifters filed a claim under the Human Rights Act alleging discrimination based on national origin. As discussed above, this Court found that the complainants in K-Mart failed to show a prima facie ease of unlawful discrimination because they were not actually denied, refused, or withheld any services or amenities as required by the Human Rights Act. Significantly, this Court went on to find that
Even assuming, however, that the complainant had made a prima facie ease of discrimination, we believe that the appellee demonstrated a legitimate, nondiscriminatory reason for its actions. K-Mart points to its previous experience with shoplifting bands, the warning call it received in the week prior to the incident, and its obligation to protect both its customers from danger and its inventory from shrinkage.
181 W.Va. at 478, 388 S.E.2d at 282. This Court then concluded that “the chance fact the family group fit the profile of the shoplifting band precipitated the police summons [to watch the complainants], not discrimination.” Id. Similarly, in the instant case, the fact that the appellees were of the same race of and were actually among the group of offenders caused the security guards to identify the appellees as being a part of the group. The fact that the individuals in the larger group were disbanded due to their number and their conduct constitutes a legitimate, nondiscriminatory reason for the security guards’ actions. Further, the fact that the security guards presumed that the appellees were members of the group due to their race and the fact that they were among the group is not unreasonable under the circumstances and does not raise an inference of racial animus. Therefore, for the reasons stated above, we conclude that the evidence relied upon by the ALJ in his decision is insufficient to prove by a preponderance of the evidence that the appellees were discriminated against based on their race.
Our conclusion with regard to the evidence relied on by the ALJ is supported by other evidence of record. The appellees cannot seriously dispute that they were in violation of the code of conduct on the date of the incidents in question. Specifically, the evidence shows that the appellees were among a group of seven or eight youths in the food court, several, if not all, of whom were not paying customers of the food court. When the appellees were asked to leave the Mall around closing time, they were in a group of at least four. Finally, it is undisputed that the appellees were identified as being among a large group of individuals outside of Chili’s who were disruptive and argumentative with security guards. This Court has recognized that “[discipline imposed upon a minority [] does not alone equate to racial discrimination unless there is a preponderance of evidence that the discipline was imposed in a discriminatory manner or for a discriminatory purpose.” Cobb, 217 W.Va. at 776, 619 S.E.2d at 289. Further, Mr. Bumpus testified that he had been to the Town Center hundreds if not thousands of times before the events at issue, apparently without an occurrence similar to the ones in this case. This Court previously has indicated that such evidence significantly weakens a claim of unlawful denial of access to public accommodations. See K-Mart, 181 W.Va. at 478, 383 S.E.2d at 282 (finding that “the [complainants’] allegations that their garb and skin tone precipitated the police summons were weakened by their admission that they shopped at that K-Mart without incident for an extended period prior to [the date of the alleged discrimination]”). Finally, Charleston Police Officer Keith Peoples who, in addition to being a police officer, had provided security at the Town Center for almost 16 years, stated that he had never been aware of security guards referring to African-American youth in derogatory terms and never witnessed African-American youth being harassed or mistreated by Mall security.
In addition, we find that the ALJ’s weighing of the evidence below is arbitrary. First, the ALJ ignores the cursory and nonspecific testimony of the appellees as it relates to the occurrences which form the bases of the appellees’ claims. Second, the ALJ disregards material discrepancies in the appellees’ testimony. For example, Mr. Bumpus provided general testimony with regard to the incident at the food court that his friends were eating food from the Subway restaurant, he had purchased a cookie from Subway, and Mr. Streets also had purchased food. Mr. Streets testified, in contrast, that an individual named Keith Harris and two others had purchased food, but that Mr. Streets had not purchased any food. He also did not indicate that Mr. Bumpus had purchased food. In addition, with regard to the appellees’ eviction from the Mall, Mr. Bum-pus testified in very cursory fashion that several police officers escorted them from the Mall, and he does not indicate that a Mall security guard was involved in the eviction. Specifically, he states that “we were going around on the first floor, and I guess they had radioed police or whatever and they came up to us and told us that they were escorting us out of the mall without any explanation.” Mr. Streets appears to testify, however, that the appellees were informed, apparently by security guards, that the Mall was closing down and they needed to leave. Also, Mr. Streets’ testimony concerning whether the Mall was closing when they were asked to leave is ambiguous. Specifically, Mr. Streets testified as follows:
Q. Okay. And you say things were closing down?
A. Yes.
Q. Okay. So the stores inside the mall were closing?
A. Well, at the time, you didn’t see, because from where I’ve been there now, you see gates closing, you didn’t see it real thinned out. You still seen everything open, but I guess from the time they just, I guess from the time it was being, they told us we needed to leave, even though I still didn’t — I still seen other people there. So it became like an argument, why did we specifically need to leave, and that was like a concern and kind of just, we just want to know why. And it never got answered, we just got escorted out.
These discrepancies in testimony are material to the issues of the appellees’ conduct at the time action was taken against them by the security guards as well as the legitimacy of the action taken against the appellees Another indication of the ALJ’s arbitrariness is the fact that the ALJ credits in every single instance the uncorroborated testimony of the appellees as it relates to the conduct of Mall security guards and police officers. Examples include the ALJ’s statement that Lt. Hager “allowed the police to bully” one of the individuals who was with the appellees’ group at the food court; the ALJ’s indication that one of the police officers involved in the appellees’ arrest “was clearly out of control, acting in an irresponsible fashion;” the ALJ’s contention that “[t]he plain clothes officer was hostile and belligerent toward the [appellees]; and the ALJ’s opinion that the [Town Center] really objects to Complainants ‘running the Mall[,]’ which in reality means nothing more that ‘hanging out at the Mall’ which is apparently alright as long as you’re an off duty white Mall security officer.” The ALJ’s fact-finding in this regard is especially noteworthy in light of the undisputed fact that the appellees and/ or their friends were argumentative and recalcitrant toward Mall security on two occasions, and that the appellees’ demeanor toward city police officers resulted in the their arrests.
Finally, it is significant that the ALJ, without exception, excuses or finds irrelevant evidence of misconduct on the part of the appellees. For example, while acknowledging Mr. Streets’ admission that he “had words” with a police officer outside of Chili’s restaurant, the ALJ credits Mr. Streets’ explanation that his outburst was caused by the fact that he was “astounded by the way [the appellees] were being treated, and it made him angry.” Elsewhere, the ALJ characterizes Lt. Hag-er’s testimony that the appellees’ group “mouthed” him as actually amounting to nothing more than the appellees protesting and questioning how they were being treated. Finally, the ALJ sarcastically comments that when told to leave the Mall, the appellees “had the unmitigated gall to mouth Lt. Hager, by asking why this was being done.”
Based on the above, we find that the ALJ’s decision is clearly wrong in view of the reliable, probative, and substantial evidence on the whole record. Further, we find the ALJ’s fact finding to be arbitrary. Finally, this Court finds that the ALJ’s decision is tainted by a hostility and sarcasm toward the Town Center and its agents that casts doubt on the ALJ’s fairness in deciding the instant ease.
Prior to concluding, we deem it necessary to briefly address the arguments proffered by the appellees in support of the ALJ’s decision. First, the appellees cite from the record alleged evidence of inconsistencies pertaining to Lt. Hager’s version of the incident at the food court. Specifically, the appellees cite an answer to an interrogatory produced by the Town Center in which it is asserted that Lt. Hager approached the appellees’ group in response to a food vendor’s complaint that the group was being disruptive which, say the appellees, is inconsistent with Lt. Hager’s testimony that he approached the group after he witnessed them being disruptive. We note, however, that Lt. Hager explained that after the youths left the food court, one of the vendors indicated to Lt. Hager that he had planned to complain to security about the group’s conduct. The appellees also refer to a supplemental report completed by Lt. Hager five months after the incidents at issue wherein he recorded about the food court incident that “a large group of black males ... were playing around and yelling.” Our review of this report also indicates, however, that Lt. Hager wrote in that same sentence that “I asked them to leave food court if they were not eating.” (Emphasis added.). Far from being contradictory, the reports and testimony cited by the appellees are consistent with the fact that a group of seven or eight individuals, including the appellees, were initially approached by Lt. Hager for being loud and were subsequently instructed to exit the food court because they were not paying customers. There simply is no basis on which to infer racial animus from this evidence.
In .addition, the appellees assert in their brief that
There is also a complete lack of corroboration for Lt. Hager’s version of events, notwithstanding that security guard David Gandee was there at the food court, at least for the end of the incident and Charleston Police Department Officers Midkiff and Ross were integrally involved in the eviction. The Charleston Town Center Mall chose not to call Gandee and Ross to testify. And Midkiff, who was called as a witness by the Commission, could not corroborate Hager’s version of events. There was no testimonial or written evidence of a disturbance provided from the manager of Best of Crete, who allegedly complained about a disturbance. (Citations omitted and footnote added).
The problem with the appellees’ argument is that it seems to ignore the fact that the appellees had the burden of proving unlawful discrimination. Once the Town Center explained that the treatment of the appellees was based on their violation of the code of conduct, it was incumbent upon the appellees to prove that the actual reason for their treatment was racial animus. In other words, the appellees were charged with producing evidence, not speculation, including corroborating evidence, sufficient to show that racial animus was more likely than not the reason for the action taken against them. In light of this fact, it is more remarkable that the appellees did not call David Gandee or others to corroborate the appellees’ version of events.
IV.
CONCLUSION
For the reasons, stated above, we find the Human Rights Commission’s rulings to be clearly wrong in view of the reliable, probative, and substantial evidence on the whole record and affected by arbitrary findings of fact. Accordingly, we reverse the November 26, 2008, orders of the Human Rights Commission.
No. 34739 — Reversed.
No. 34740 — Reversed.
. We wish to acknowledge the contributions of amici curiae who filed briefs in this case, ACLU, West Virginia Employment Lawyers Association, Lawyers’ Committee for Civil Rights Under Law, Mountain State Bar Association, and West Virginia State Conference of the NAACP.
. Although originating as separate Human Rights Act complaints, the two cases were heard and considered together by the Human Rights Commission.
, Lt. Hager testified that Town Center security guards are hired through a company known as U.S. Security Services.
. The Town Center is bordered on the east by Court Street and on the west by Clendenin Street. Starbucks is located in the center of the Mall.
.The Charleston Town Center has three levels. The first two levels contain retail stores, and the third level is the food court.
. The ALJ’s final decisions are essentially identical to each other.
. In his order, the ALJ ordered the Town Center to cease and desist from engaging in unlawful discriminatory practices. He further ordered the Town Center to pay costs of $1,358.50 in the prosecution of this matter, and to pay the appellees incidental damages in the amount of $5,000 for humiliation, embarrassment, emotional distress, and loss of personal dignity suffered as a result of the unlawful discrimination. Finally, he directed the Town Center to implement training of its contracted mall security personnel to refrain from engaging in racial profiling and to include sensitivity training regarding individuals belonging to classes protected under the West Virginia Human Rights Act.
. This Court has held:
In order to make a prima facie case of discrimination in a place of public accommodation, the complainant must prove the following elements:
(a) that the complainant is a member of a protected class;
(b) that the complainant attempted to avail himself of the 'accommodations, advantages, privileges or services’ of a place of public accommodation; and
(c)that the 'accommodations, advantages, privileges or services’ were withheld, denied or refused to the complainant. Syllabus Point 1, K-Mart Corp. v. Human Rights Com'n, 181 W.Va. 473, 383 S.E.2d 277 (1989).
. The first assignment of error raised by the Town Center is that the appellees failed to prove a prima facia case of unlawful discrimination. For purposes of this appeal we will presume that the appellees proved their prima facia case.
. In this instance, the ALJ relies primarily on the testimony of Mr. Bumpus’s mother that her son called her upon entering the Mall and complained that he was being watched by security guards. Ms. Bumpus’s testimony that her son called her shortly after he entered the Mall is consistent with a cellular phone record entered into evidence.
. Similarly, in their brief, the appellees point to Lt. Hager’s testimony in which it appears that he is confused as to whether the code of conduct provides that groups of four or more juveniles or groups of more than four juveniles will be dispersed. According to the appellees, this confusion seriously undermines Lt. Hager’s claim to consistent enforcement of the rules. We disagree. Under the instant facts, any confusion on Lt. Hager’s part on this issue is immaterial. It is undisputed that the appellees were in a 'group of seven or eight persons at the food court, and Lt. Hager indicated at that time that they had to leave the food court because they were not paying customers. It was Lt. Hager’s testimony that he subsequently approached the appellees because they were in a group of about seven, they were being loud, and the Mall was closing. Finally, concerning the incident outside of Chilils restaurant, security guards identified the appellees as being part of a group of approximately fifteen African-American males.
. Despite the ALJ’s finding that it was Lt. Hag-er’s insistence that resulted in the appellee’s arrest, Police Officer Shawn Midkiff testified that the appellees were instructed by a police officer more than three times to leave the area before the arrests for trespassing.
. There is also evidence that Lt. Hager recognized the appellees from his encounters with them or the group they were in earlier in the evening.
. Lt. Hager's Daily Activity Record completed on April 22, 2006, simply indicates that he "Asked large group of kids to leave food court they refused had to get P.D. officer to make them leave.”
. In fact, according to the transcript, Officer Midkiff testified that he remembered nothing about encountering any juveniles in the food court that day. | [
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KETCHUM, Justice:
In this appeal from the Circuit Court of Cabell County, we are asked to review a circuit court order setting aside a jury’s verdict, entering judgment as a matter of law, and granting a new trial on damages to determine the value of a vehicle totaled in a collision.
After careful consideration of the trial transcript and evidence, the briefs and arguments of the parties, and all other matters of record, we reverse the circuit court’s order and reinstate the jury’s verdict holding that the plaintiff below did not establish that she owned the vehicle totaled in the collision.
I.
Facts and Background
On July 22, 2003, a vehicle collision occurred at an intersection in Huntington, West Virginia. The appellant and defendant below, Arianna Tyler, was driving a ear owned by her parents when she drove into an intersection and collided with a vehicle being driven by the appellee and plaintiff below, Arden E. Fredeking. The vehicle being driven by Ms. Fredeking — a 1985 BMW 535i — was totaled in the collision.
In the original complaint filed on September 12, 2003, Ms. Fredeking and the “Fredeking & Fredeking Law Offices, L.C.”— both represented by an attorney employed by the Fredeking & Fredeking law firm— sued for Ms. Fredeking’s personal injuries and for the damages to the 1985 BMW 535i, which the complaint stated was owned by the Fredeking & Fredeking law firm. The defendants filed an answer to the complaint that asserted a counterclaim against Ms. Fredeking seeking contribution for any negligence on her part that contributed to any damage to the BMW 535i owned by the Fredeking & Fredeking law firm. On November 5, 2003, the law firm voluntarily dismissed its claims, and Ms. Fredeking sought to amend her complaint to assert that she was the “proper owner” of the vehicle. By order dated December 11, 2003, the circuit court granted Ms. Fredeking’s motion to amend her complaint.
The issue presented to the jury was whether the plaintiff, Ms. Fredeking, was the owner of the 1985 BMW 535i, and therefore entitled to damages for the value of the totaled vehicle. The defendants contended at trial that Ms. Fredeking was not the owner of the BMW 535i.
At trial, only the plaintiff, Ms. Fredeking, presented witness testimony to the jury. The defendants submitted no witnesses, and relied upon evidence solicited during cross-examination of the plaintiffs witnesses.
The facts adduced at trial are these: in 1985, a business owned by Ms. Fredeking’s father, “Fredeking & Fredeking, Legal Corp.,” purchased the BMW 535i. The vehicle’s title was issued in Florida, and the vehicle was registered and licensed in Florida.
Ms. Fredeking contends that, thirteen years later, in 1998, her father “gave” the vehicle to Ms. Fredeking for her 16th birthday. From 1998 until the time of the collision in 2003, Ms. Fredeking testified that she resided in Huntington, West Virginia where she garaged, drove and serviced the vehicle. At trial, both Ms. Fredeking and her father, R.R. Fredeking, II., testified that Ms. Fredeking was the owner of the vehicle.
However, during that time period the vehicle continued to be registered and licensed in Florida in the name of “Fredeking & Fredeking, Legal Corp.” The vehicle’s registration was never renewed in Ms. Fredeking’s name; instead, each year, the law firm paid for and renewed the registration in its name in the State of Florida.
The vehicle also continued to be titled in the law firm’s name in Florida. At trial, Ms. Fredeking’s father testified that he — as owner of the law firm — signed the back of the vehicle’s Florida title in 1998 to signify he transferred the vehicle to Ms. Fredeking. However, the title to the vehicle was never transferred from the law firm’s name into Ms. Fredeking’s name prior to the accident.
Copies of the police accident report and the post-accident vehicle storage bills were introduced into evidence without objection. Each of these documents stated that the vehicle was owned by the law firm, not by Ms. Fredeking.
At the conclusion of the trial, the jury returned a verdict in favor of the defendants. Specifically, the jury found that the 1985 BMW 535i was not owned by the plaintiff, Ms. Fredeking.
Ms. Fredeking subsequently filed a renewed motion for a judgment as a matter of law or in the alternative for a new trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998]. In an order dated November 1, 2007, the circuit court granted Ms. Fredeking’s motion, concluding that
[A]ll the testimony at trial showed that the vehicle was properly signed over to and owned by Arden Fredeking. The only evidence at trial concerning ownership of the vehicle was that the plaintiffs father signed the title over to the [plaintiff], gave her possession of the title, and gave her possession of the vehicle prior to the motor vehicle accident in question.
The circuit court went on to find that
The only evidence presented at trial indicated that the plaintiff intended the vehicle to be her own and used it as such from the time of the transfer of ownership until the time of the motor vehicle accident.
The circuit court therefore granted Ms. Fredeking’s renewed motion for judgment as a matter of law after trial and held that she was the owner of the BMW 535i, stating that “all of the evidence presented at trial demonstrated that Arden Fredeking was the rightful owner of the motor vehicle.” Based on this ruling, the circuit court awarded the plaintiff a new trial “on damages only” to determine the value of the vehicle totaled in the collision.
The defendants now appeal the circuit court’s November 1, 2007 order granting the plaintiff judgment as a matter of law on the issue of ownership of the 1985 BMW 535i and a new trial on the single issue of damages.
II.
Standard of Review
The circuit court granted the plaintiff judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998]. Prior to the amendment of Rule 50 in April 1998, a post-trial motion for judgment as a matter of law was called a “motion for judgment notwithstanding the verdict” or “motion for judgment non obstante veredicto,” and we note that these vestigial terms continue to occasionally litter both this Court’s opinions and the arguments of attorneys. See, e.g., Syllabus Point 2, Pipemasters, Inc. v. Putnam County Com’n, 218 W.Va. 512, 625 S.E.2d 274 (2005); Syllabus Point 1, Bowyer v. Hi-Lad, Inc., 216 W.Va. 634, 609 S.E.2d 895 (2004); Syllabus Point 2, Kizer v. Harper, 211 W.Va. 47, 561 S.E.2d 368 (2001).
Our standard of review of a judgment notwithstanding the verdict was de novo. In Syllabus Point 3 of Alkire v. First Nat. Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996), we said:
The granting of a motion for judgment notwithstanding the verdict is reviewed de novo, which triggers the same stringent decisional standards that are used by the circuit courts. While a review of this motion is plenary, it is also circumscribed because we must review the evidence in a light most favorable to the nonmoving party.
While the terminology changed when Rule 50 was amended in 1998, it is clear that the standards of review for rulings regarding motions made under the rule were unaffected. Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 482 n. 7, 457 S.E.2d 152, 159 n. 7 (1995). See, e.g., Gillingham v. Stephenson, 209 W.Va. 741, 745, 551 S.E.2d 663, 667 (2001) (This Court applies “a de novo standard of review to the grant or denial of a pre-verdict or post-verdict motion for judgment as a matter of law.”); Syllabus Point 5, Smith v. First Community Bancshares, Inc., 212 W.Va. 809, 575 S.E.2d 419 (2002) (“The appellate standard of review for the granting of a motion for a [judgment as a matter of law] pursuant to Rule 50 of the West Virginia Rules of Civil Procedure is de novo.”)
Still, to clarify our law to reflect the change of terminology in the 1998 amendment to the Rtdes of Civil Procedure, we now hold that the appellate standard of review for an order granting or denying a renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure is de novo.
When this Court reviews a trial court’s order granting or denying a renewed motion for judgment as a matter of law after trial under Rule 50(b), it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party. See, Syllabus Point 2, Alkire v. First Nat. Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996).
With these standards in mind, we examine the arguments of the parties.
III.
Discussion
The defendants argue that the circuit court erred in overturning the jury’s verdict and entering judgment concerning the vehicle’s ownership to the plaintiff, Ms. Fredeking. The plaintiff, Ms. Fredeking, counters that the circuit court’s decision was correct, because all of the testifying witnesses were in agreement that she owned the vehicle at the time of the 2003 collision.
The defendants properly note that Ms. Fredeking bore the burden of proving she was the owner of the vehicle. The defendants contend that while the witnesses testified that Ms. Fredeking owned the BMW 535i, the jury properly drew different inferences from the testimony and documents admitted into evidence, and was properly instructed by the circuit court to assess the credibility of the witnesses. The defendants argue that the jury could reasonably conclude from a review of all of the evidence that the plaintiffs witnesses regarding ownership of the vehicle were not credible. In other words, the defendants argue that the jury gave the testimony of the plaintiffs witnesses no “credit and weight” as was their right under the circuit court’s instructions.
In sum, the defendants take the position that the jury properly found that the plaintiff did not meet her burden of proof, that the jury’s conclusion that the plaintiff did not own the vehicle was supported by the evidence, and that it was error for the circuit court to have usurped the jury’s findings. We agree.
Although a trial court does have some role in determining whether there is sufficient evidence to support a jury’s verdict, it is not the role of the trial court to substitute its credibility judgments for those of the jury. The circuit court’s role in determining whether sufficient evidence exists to support a jury’s verdict was set forth in Syllabus Point 5 of Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), where we held:
In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party’s evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.
Stated another way, we held in Syllabus Point 3 of Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963) that:
In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.
In accord, Syllabus Point 6, Toler v. Hager, 205 W.Va. 468, 519 S.E.2d 166 (1999); Syllabus Point 12, Neely v. Belk Inc., 222 W.Va. 560, 668 S.E.2d 189 (2008).
After carefully examining the trial record and the evidence admitted before the jury, we find that the evidence at trial reasonably supports the jury’s verdict in favor of the defendants. This is particularly so when every reasonable and legitimate inference in favor of the defendants’ position and fairly arising from the evidence is assumed as true. See Orr v. Crowder, supra, and Walker v. Monongahela Power Co., supra.
We therefore find that it was error for the circuit court to have set aside the jury’s verdict that Ms. Fredeking did not own the BMW 535i, and to have entered a judgment as a matter of law that Ms. Fredeking was the owner of the vehicle. We also find that it was error for the circuit court to have granted the plaintiff a new trial on the single issue of damages, based on that judgment as a matter of law.
IV.
Conclusion
The circuit court’s November 1, 2007 order is reversed, and the jury’s verdict is reinstated.
Reversed
Justice ALBRIGHT not participating.
Senior Status Justice McHUGH sitting by temporary assignment.
. Pursuant to administrative orders entered September 11, 2008 and January b 2009, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the Supreme Court of Appeals of West Virginia commencing September 12, 2008, and continuing until the Chief Justice determines that assistance is no longer necessary, in light of the illness of Justice Joseph P. Albright.
. Ms. Tyler's parents, Marlise Tyler and Bradford Tyler, are also appellants and defendants. They were sued as owners of the car driven by Ms. Tyler under the family purpose doctrine.
. The parties resolved and settled all of Ms. Fredeking's claims regarding those injuries prior to trial.
. The complaint stated, in pertinent part:
4. On or about the 22nd day of July, 2003, the Plaintiff, Arden E. Fredeking, was the operator of a 1985 BMW, which was owned by Plaintiff, Fredeking & Fredeking Law Offices, LC....
Ms. Fredeking's complaint also asserted a claim against Ms. Tyler’s insurance company, GEICO Indemnity Company, alleging that the insurance company had engaged in unfair claim settlement practices. See W.Va.Code, 33-11-4 [1985].
. Ms. Fredeking’s motion to amend states, in part:
Arden E. Fredeking was the proper owner of the 1985 BMW at the time of the accident. Fredeking & Fredeking, L.C. was the record owner at the time of the accident. The title to the vehicle had previously been transferred to Arden E. Fredeking and/or R.R. Fredeking, II [the plaintiff's father] but has not been sent to the Department of Motor Vehicles to have a new title issued.
The defendants note that the same lawyer who filed Ms. Fredeking’s complaint and amended complaint in 2003 signed as the notary to Mr. Fredeking’s signature on the back of the vehicle’s title dated in 1998. Mr. Fredeking testified at trial that he had transferred ownership of the vehicle from his law firm to his daughter in 1998 on the date his signature was notarized. The notary, who worked in Mr. Fredeking’s law office, did not testify at trial.
. We note that in November 2003, the defendant-appellants filed a motion for partial summary judgment on the ground that there were "no facts in dispute that Ms. Fredeking did not own the subject 1985 BMW.” Hence, it appears that the issue of the vehicle’s ownership was litigated almost since the inception of Ms. Fredeking’s lawsuit. In its December 11, 2003 order, the circuit court denied the motion for partial summary judgment.
. The defendants point out that, according to the West Virginia Secretary of State, "Fredeking & Fredeking, Legal Corp.” dissolved and ceased to exist in 1992. By dissolving, the defendants argue that the law firm essentially represented to the State of West Virginia that the net assets of the corporation remaining after winding up had been distributed. See W.Va.Code, 31D-14-1401, et seq.
The defendants therefore suggest that, technically, it was impossible for the dissolved and thus non-existent law firm to transfer ownership to Ms. Fredeking in 1998.
. The jury’s verdict form stated, in part:
We the jury agree and find that the car, a 1985 BMW 535(i) was owned by Arden Fredeking[.j
Yes_ No ,/
. Motions for a judgment as a matter of law before a verdict were, prior to 1998, called motions for a directed verdict.
. Neither party objected to the circuit court's instructions, which stated in pertinent part:
Now, in saying that you must consider all of the evidence, I do not mean that you must accept all of the evidence as true or accurate. You, as jurors, are the sole judges of the "credibility of the witnesses” and the "weight of the evidence.” The "credibility of the witness” means the truthfulness or lack of truthfulness of the witness. The "weight of the evidence" means the extent to which you are, or are not, convinced by the evidence. You should carefully scrutinize the testimony given, the circumstances under which the witness has testified and every matter in evidence which tends to indicate whether the witness is worthy of belief____
From these considerations, and all other conditions and circumstances appearing from the evidence, you may give to the testimony of the witness such credit and weight as you believe it is entitled to receive____ | [
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0.062310... |
PER CURIAM.
The instant action is before this Court upon the appeal of Donna Sue Murray [hereinafter “Appellant”], from a March 21, 2007, order entered by the Circuit Court of Kanawha County granting default judgment against her and assessing punitive damages as part of that judgment in lieu of attorneys fees. Herein, the Appellant alleges that it was error for the circuit court to grant default judgment against her, and to assess punitive damages in lieu of attorneys fees. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons expressed below, the March 21, 2007, order of the Circuit Court of Kanawha County is affirmed in part and reversed in part, and remanded with directions.
I.
FACTUAL AND PROCEDURAL HISTORY
Appellant was appointed administratrix of the estate of her mother, Susie Mae Pendleton Smith, following her mother’s death in September, 2000. Appellant served as Administratrix of her mother’s estate until she was removed by order of the County Commission of Kanawha County, West Virginia entered on June 18, 2004. Appellant’s sister, Deborah Harper-Adams [hereinafter “Appellee”], was thereafter appointed to replace her as administratrix. On June 21, 2005, Appellee filed the instant lawsuit against Appellant alleging various torts concerning the prior administration of the estate. The other defendant, OneBeacon Insurance Company was the surety for Murray’s bond as administratrix. Appellant was served with the Summons and Complaint on August 26, 2005. Appellant, who represented herself fro se, never filed an Answer to the Complaint. Appellant alleges that despite the fact that she did not file an Answer, she was in contact with court personnel and opposing counsel throughout the course of the litigation.
Appellee filed a Motion for Default Judgment on October 21, 2005. Before the circuit court could act on the motion, Appellant filed a Chapter 13 Bankruptcy Petition in the United States Bankruptcy Court of the Middle District of Georgia, Columbus Division, on October 28, 2005. The circuit court proceedings were stayed until a Consent Order was entered on September 12, 2006. Once the automatic stay was lifted, the circuit court conducted a hearing on the default judgment motion on September 22, 2006. Appellant was notified of the hearing but did not attend. She alleges that she was unable to attend due to a medical emergency involving an infant for whom she was earing, and that she notified the circuit court of her anticipated absence.
At the hearing, the circuit court awarded default judgment against Appellant as to Count I of the Complaint, for a sum certain of $108,766.00. It also entered default on liability as to Count III of the Complaint, and set a hearing for a writ of inquiry on the Count III damage issues which were not for a sum certain. Appellant attended the hearing on the Count III damages which was conducted on November 29, 2006. At this hearing, the plaintiff orally moved to amend the circuit court’s default judgment order on Count I stating that the $108,766.00 awarded in that order was incorrect due to a typographical error and the correct amount was $88,756.00. The court granted the motion and awarded Appellee $88,756.00, being a sum certain under Count I of the Complaint.
The court then conducted the inquiry of damages on Count III of the Complaint. The circuit court specifically found that thei'e were three assets remaining in the decedent’s Estate. Those assets consisted of the decedent’s home, coin collection and the remainder of the net proceeds of the distribution of the $20,000.00 bond after the expenses and fees were paid by the Estate. The court ordered that a constructive trust be imposed over the Appellant’s one-fifth interest in the remaining assets of the Estate, and ordered that the value of her interest in these assets be used to satisfy the judgment awarded in this case. The court directed that the coin collection be turned over to the Appellee, as Administratrix of the Estate. Lastly, the circuit court ordered that punitive damages were appropriate, and awarded punitive damages in the amount of $50,000.00 in lieu of attorney’s fees.
II.
STANDARD OF REVIEW
A judgment by default may be entered in West Virginia pursuant to the guidelines of Rule 55 of the West Virginia Rules of Civil Procedure [1998]. “Appellate review of the propriety of a default judgment focuses on the issue of whether the trial court abused its discretion in entering the default judgment.” Syl. Pt. 3, Hinerman v. Levin, 172 W.Va. 777, 310 S.E.2d 843 (1983). “On an appeal to this Court the appellant bears the burden of showing that there was error in the proceedings below resulting in the judgment of which he complains, all presumptions being in favor of the correctness of the proceedings and judgment in and of the trial court.” Syl. Pt. 2, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973). Mindful of these standards, we proceed forward to consider the Appellant’s arguments.
III.
DISCUSSION
This appeal involves an entry of default as to liability and an entry of default judgment as to the issue of damages. We have traditionally recognized a distinction between the two. In Syl. Pt. 2, Coury v. Tsapis, 172 W.Va. 103, 304 S.E.2d 7 (1983), we held that “a default relates to the issue of liability and a default judgment occurs after damages have been ascertained.” For reasons explained below, we affirm the circuit court’s entry of default as to liability. However, we reverse the entry of the default judgment awarding damages, and remand with directions.
A. Entry of Default Determining Liability
Appellant alleges that default was improper because the Appellant had multiple eommunications with the circuit court and opposing counsel. Specifically, Appellant alleges that she had direct verbal communication with court personnel throughout the course of the litigation. Appellant also alleges that prior to the September 22, 2006, hearing on the Motion for Default Judgment, she notified the court of a family medical emergency involving an infant for whom she was earing, and her anticipated absence. She asserts that despite this notification, the circuit court proceeded on with the hearing, entering default judgment against her on Count I and a default on Count III. Following entry of this order, Appellant appeared personally at the inquiry of damages on Count III of the Complaint.
Rule 55(a) requires that when a party against whom an entry of default is sought has “failed to plead or otherwise defend as provided for by these rules, and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default.” In the ease before us, Appellant was served with the Summons and Complaint via certified mail on August 26, 2005. Pursuant to Rule 12 of the Wesf Virginia Rules of Civil Procedure, Appellant’s Answer to the Complaint was due no later than 30 days after the service of the summons. As of October 21, 2005, the date the Motion for Default Judgment was filed, Appellant made no request for an extension of time to file an Answer, and made no appearance before the Court or otherwise filed any pleadings in this action.
We have held that certain forms of informal communication between litigants will require that a defaulting party be given notice before unliquidated damages can be assessed under Rule 55(b)(2) of the West Virginia Rules of Civil Procedure. Cales v. Wills, 212 W.Va. 232, 241, 569 S.E.2d 479, 488 (2002). However, we have specifically noted that this type of communication will not prevent entry of a default as to liability. Id. (citing 10A Chai’les Alan Wright et al., Federal Practice and Procedure: Civil 3d § 2686, at 41 (“[I]t must be remembered that an appearance, without any further attempt to defend on the merits, will not keep a party from being held in default for failure to plead or otherwise defend; it merely activates the special notice and judicial review protections provided in the rule.”)). While there was contact between the Appellant, who represented herself pro se in the underlying action, and the circuit court’s staff who advised Appellant on several occasions that she needed to file an Answer and that she should retain counsel, the circuit court afforded the Appellant ample opportunity to retain counsel and continued hearings several times in order to accommodate her attempts to retain counsel. The facts are undisputed that although Appellant was served with the Complaint and knew of the lawsuit, she failed to file an Answer or other responsive pleading in the action. Thus, we believe the circuit court’s entry of default on liability was appropriate with regard to both Count I and III of the Complaint.
B. Default Judgment Awarding Damages
Although we find that the circuit court properly entered default as to liability against the Appellant based upon her failure to file an Answer or other responsive pleading, we find that the circuit court erred in awarding default judgment on Count I (the alleged sum certain amount) and Count III (the alleged unliquidated damages count) of the Complaint.
Appellee’s Motion for Default Judgment contended that Count I of the Complaint, alleging embezzlement, conversion and breach of fiduciary duty, was for a sum certain of $228,500.00, together with pre- and post-judgment interest. However, the motion and supporting affidavits do not demon strate how the amount of damages can be ascertained without resorting to extrinsic facts. In its September 25, 2006, order granting default judgment on Count I of the Complaint, the circuit court awarded “sum certain” damages in the amount of $108,766.00. However, the Court gave no explanation for how it arrived at that figure. Following the entry of that order, that figure was subsequently modified by the Appellee. The circuit court's March 21, 2007, order amended the default judgment amount awarded as sum certain, stating that “due to a typographical error, this amount should be $88,756.00, and Plaintiff orally moved at the hearing to amend the prior judgment amount to this amount.”
We have traditionally held that
[t]he term “sum certain” under West Virginia Rules of Civil Procedure Rule 55(b)(1) contemplates a situation where the amount due cannot be reasonably disputed, is settled with respect to amount, ascertained and agreed upon by the parties, or fixed by operation of law. A claim is not for a “sum certain” merely because the claim is stated as a specific dollar amount in the complaint, verified complaint, or affidavit.
Syl. Pt. 3, Farm Family Mutual Ins. Co. v. Thorn Lumber Company, 202 W.Va. 69, 501 S.E.2d 786. Typical “sum certain” situations covered by Rule 55(b)(1) include actions on money judgments, negotiable instruments, or similar actions where the damages can be determined without resort to extrinsic proof. Id. at 74, 501 S.E.2d at 791. If the damages sought by the party moving for the default judgment are for a sum certain, or an amount which can be rendered certain by calculation, no evidentiary hearing on damages Is necessary and the circuit court may proceed to enter a “default judgment” on all issues in the case. Id. at 73, 501 S.E.2d 786 at 790.
While we recognize that circuit courts are generally not required to conduct an evidentiary hearing on damages that are for a sum certain, circuit courts are still required to make the requisite findings within their orders granting default judgment demonstrating, for purposes of appellate review, how the amount entered can be rendered certain by calculation. The circuit court’s orders fail to address precisely how the $88,756.00 figure was ultimately derived. In her Motion for Default Judgment, the Appellee originally requested an award of $228,500.00, a figure three times that which was ultimately awarded. Following that, the circuit court's first order dated September 25, 2006, entered default on liability against Appellant as to Count I of the Complaint, for a sum certain of $108,766.00, without explaining how that figure was derived. The circuit court subsequently amended that amount, pursuant to Appellee’s oral request at the hearing, to the final sum certain award of $88,756.00. The lack of information contained in the circuit court’s orders leaves this Court no way to assess whether the amount awarded is in fact a sum certain, or whether the circuit court abused its discretion in entering sum certain damages in that amount. Because the circuit court's two default judgment orders as to Count I of the Complaint are bereft of adequate findings on this issue, we reverse them accordingly.
Furthermore, we find error in the circuit court’s default judgment order on Count III of the Complaint awarding the Appellee punitive damages. The order does not specify any basis whatsoever for this award. This Court set forth the factors to be considered in awarding punitive damages in Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991). Herein, the circuit court simply did not make the necessary findings required by Games in order to justify an award of punitive damages. Specifically, the circuit court made no findings regarding the reprehensibility of defendant’s conduct or why such conduct was so willful, wanton and malicious as to warrant punishment by way of punitive damages. It also made no findings regarding whether there was a reasonable relationship of the amount awarded to the actual harm, or the financial position of the defendant. Nor did the circuit court make any findings regarding the award of punitive damages in lieu of attorneys fees. The findings in the Order simply state that Appellee had requested punitive damages in lieu of attorneys fees, and that “punitive damages in lieu of attorney fees is acceptable.” The failure of the court to make the necessary findings required by Games constitutes reversible error.
Moreover, to the extent that the circuit court awarded punitive damages in lieu of attorney’s fees in this case, we find that such action also constitutes reversible error. In Hayseeds v. State Farm, 177 W.Va. 323, 352 S.E.2d 73 (1986), this Court discussed attorney’s fees and punitive damages, and pointed out, in dicta, that punitive damages are often awarded to off-set litigation expenses. Following that decision, this Court also held that because punitive damages are designed in part to subsidize litigation costs, a court’s refusal to award attorneys fees where work had been done to support the theories justifying punitive damages was appropriate. Muzelak v. King Chevrolet, Inc., 179 W.Va. 340, 368 S.E.2d 710 (1988). We wish to make it clear to our circuit courts that the language enunciated by Justice Neely in Hayseeds v. State Farm, and our prior decision in Muzelak v. King Chevrolet, Inc., should not be interpreted by our circuit courts as implied authority to grant such punitive damages awards in lieu of attorney’s fees. Indeed, we have long held that while there are similarities between the criteria for punitive damages and the criteria for an award of attorney’s fees, they are two separate and distinct issues that must be-addressed separately. Midkiff v. Huntington National Bank West Virginia, 204 W.Va. 18, 19, 511 S.E.2d 129, 130 (1998).
Orders of circuit courts necessarily must contain requisite findings of fact and conclusions of law in entering default judgment orders so that meaningful and adequate appellate review is possible. In the case sub judice, the circuit court’s default judgment orders simply do not contain the requisite information necessary for this Court to properly review the circuit court’s decision.
IV.
CONCLUSION
In conclusion, we find that the circuit court properly entered default as to liability against the Appellant based upon her failure to file an Answer or other responsive pleading. However, because we find that the circuit court’s orders lacked findings of fact and conclusions of law permitting adequate appellate review of the default judgment orders, we reverse the circuit court’s orders awarding default judgment and remand with directions to reconsider the damages issues in accordance with this decision. Accordingly, the March 21, 2007, order of the Circuit Court of Kanawha County, is affirmed in part and reversed in part, and remanded with directions.
Affirmed in Part, Reversed in Part, and Remanded.
. Deborah Harper-Adams, [hereinafter "Appellee”], has not filed an appearance nor submitted a response brief in this matter. OneBeacon Insurance Company, a defendant below, has also not filed an appearance or response brief herein.
. By order of the County Commission of Kanawha County, West Virginia entered on November 29, 2000, Appellant was appointed Administratrix to serve under such bond in the ampunt of $20,000.00 issued by OneBeacon Insurance Company as surety thereon.
. Susie Mae Pendleton Smith left as her heirs at law in accordance with the laws of the State of West Virginia her four surviving children Deborah Harper-Adams, Donna Sue Murray, Michael L. Pendleton, and Sharon Pendleton and her grandchild Kendall L. Moore, who is the sole heir of predeceased daughter Margaret Moore. Deborah Harper-Adams’ residence is believed to be Muscogee County, Georgia.
. It is alleged that Appellant collected the valuable personal property of the decedent, reduced it to cash, took it for her own use and benefit, removed it from the State of West Virginia and absconded with it. Among other things, decedent was the owner of an Individual Retirement Account held at Fidelity Investments in the approximate amount of $88,766.00, which had the estate as the beneficiary. Upon her removal as Administratrix, Appellant was ordered to prepare a full and complete accounting of all assets of the estate. It is alleged that she failed and refused to transfer such assets to the Appellee, the new Administratrix.
Specifically, Count I of the Complaint alleges that Appellant embezzled and converted assets from the estate and breached her fiduciary duty as administratrix. However, Count I does not specify a particular amount of damages or particular assets. Rather, Count I generally seeks compensatory, consequential, incidental and punitive damages as can be proven at trial, together with interest, attorney’s fees and costs. Count II of the Complaint alleges that OneBeacon is responsible for all judgments against the Appellant up to and including the face amount of the bond, and that a constructive trust should be imposed upon Appellant’s interest in the Estate. Count III of the Complaint alleges that Appellant willfully, intentionally and fraudulently embezzled the assets of the Estate, and accordingly seeks the imposition of a constructive trust on Appellant’s one-fifth interest in the Estate.
. OneBeacon Insurance Company was served with the Complaint and filed its Answer and Cross-Claim on September 1, 2005.
. In her Motion for Default Judgment, Appellee specifically requested default judgment against Appellant on Count I of the Complaint in the sum certain amount of $228,500.00, plus interest and costs. Additionally, Appellant requested a default on liability against Appellant on Count III of the Complaint, stating that the amount of damages sought on that claim was not a sum certain. Two affidavits signed by Deborah Harper-Adams and Ariella Silberman were submitted in support of the Motion for Default Judgment.
. The Bankruptcy case was dismissed by order entered November 14, 2006.
. In the circuit court's order dated March 21, 2007, the court states that from the time the Complaint was filed there was contact between the Appellant and the circuit court’s staff, who advised the Appellant on several occasions that she needed to file an Answer and that she should retain counsel. The order states that the Appellant was afforded ample opportunity to retain counsel and hearings were continued several times in order to accommodate Appellant's attempts to retain counsel.
. The circuit court’s order gives no explanation for how it arrived at the $108,766.00 award.
. According to the circuit court’s March 21, 2007, order, the Appellant attended the hearing, but still had not filed an Answer or otherwise responsive pleading.
. The circuit court provided that an attorney was to be appointed as special commissioner for the purpose of executing a deed conveying Appellant’s one-fifth interest in the decedent’s domicile, in equal shares, to the remaining heirs of the Estate. In order to ascertain the credit owed to the Appellant, the circuit court further ordered that the decedent’s domicile be appraised by a licensed real estate appraiser. Appellant was also ordered to obtain an appraisal of the decedent's coin collection.
.Rule 55 of the West Virginia Rules of Civil Procedure states, in pertinent part:
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default.
(b) Judgment. Judgment by Default May be Entered as Follows:
(1) By the Clerk. When the plaintiff’s claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the court upon request of the plaintiff and upon affidavit of the amount due shall direct the entry of judgment by the clerk for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant, incompetent person, or convict.
(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant, incompetent person, or convict unless represented in the action by a guardian, guardian ad litem, committee, conservator, curator, or other representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary.
(c) Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).
. Appellant asserts thirteen assignments of error. Because the first three issues presented are dispositive of this case, we need not address the other issues Appellant has raised.
. Appellant alleges that she also had verbal communication with Appellee’s counsel during the course of litigation. However, because the Appellee has not filed a response herein, and because the record does not reflect what, if any, type of communication occurred between the parties’ counsel prior to the entry of default judgment, we cannot verify that such communication did in fact occur.
. From the record, it appears that Appellant has never filed an Answer or other responsive pleading in this matter.
. The term "appeared in the action,” for purposes of a default judgment under Rule 55(b)(2) of the West Virginia Rules of Civil Procedure, is quite different from an appearance for other purposes. Colonial Insurance Company v. Barrett, 208 W.Va. 706, 709, n. 2, 542 S.E.2d 869, 872, n. 2 (2000). We stated in Farm Family Mutual Ins. Co. v. Thorn Lumber Co., 202 W.Va. 69, 75 n. 9, 501 S.E.2d 786, 792 n. 9 (1998):
An appearance for purposes of Rule 55(b)(2) may consist only of letters or conversations, while a general appearance sufficient to waive an objection to personal jurisdiction requires a greater showing of the defendant's acceptance of the court’s jurisdiction. This liberal construction of the term allows for the resolution of litigation on its merits, not technical pleading rules. See, e.g., Lutomski v. Panther Valley Coin Exchange, 653 F.2d 270, 271 (6th Cir.1981)(per curiam)(conversations between defendant’s and plaintiff’s counsel concerning suit sufficient to constitute appearance); Charlton L. Davis & Co., P.C. v. Fedder Data Center, Inc., 556 F.2d 308, 309. (5th Cir.1977)(letters and phone calls from defendant’s counsel constituted appearance); H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 690-92 (D.C.Cir.1970)(per curiam)(settlement discussions constituted appearance.). See generally, James W. Moore, 10 Moore's Federal Practice, 55.21[2][b][I] (Matthew Bender 3d. ed.).
This Court has also recognized that:
[f]or purposes of the requirement for notice to a defaulting party, prior to a hearing on the default, pursuant to Rule 55(b)(2) of the West Virginia Rules of Civil Procedure, an “appearance” by an otherwise defaulting party may consist of any communication to an opposing party that demonstrates either an interest in the pending litigation, or actual notice of the litigation. The communication may be made in written or oral form.
Syl. Pt. 5, Cales v. Wills, 212 W.Va. 232, 569 S.E.2d 479.
. However, pursuant to Rule 55(c) of the West Virginia Rules of Civil Procedure [1998], ”[f|or good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).” Appellant points out that because counsel was obtained just prior to the expiration of the time for appeal, Appellant never filed a Motion to Set Aside Default Judgment before the circuit court.
. A default judgment covered by Rule 55(b)(2) "applies to cases where the amount sued for is not a sum certain. In this situation, after a default is entered, a further hearing is required in order to ascertain the damages.” Farm Family Mutual Ins. Co. v. Thorn Lumber Company, 202 W.Va. 69, 73, 501 S.E.2d 786, 790 (1998)(quoting Coury v. Tsapis, 172 W.Va. 103, 304 S.E.2d 7).
. In Games, we held that:
When the trial court instructs the jury on punitive damages, the court should, at a minimum, carefully explain the factors to be considered in awarding punitive damages. These factors are as follows:
(1) Punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant’s conduct as well as to the harm that actually has occurred. If the defen dant’s actions caused or would likely cause in a similar situation only slight harm, the damages should be relatively small. If the harm is grievous, the damages should be greater.
(2)The jury may consider (although the court need not specifically instruct on each element if doing so would be unfairly prejudicial to the defendant), the reprehensibility of the defendant’s conduct. The jury should take into account how long the defendant continued in his actions, whether he was aware his actions were causing or were likely to cause harm, whether he attempted to conceal or cover up his actions or the harm caused by them, whether/how often the defendant engaged in similar conduct in the past, and whether the defendant made reasonable efforts to make amends by offering a fair and prompt settlement for the actual harm caused once his liability became clear to him.
(3) If the defendant profited from his wrongful conduct, the, punitive damages should remove the profit and should be in excess of the profit, so that the award discourages future bad acts by the defendant.
(4) As a matter of fundamental fairness, punitive damages should bear a reasonable relationship to compensatory damages.
(5) The financial position of the defendant is relevant.
Syl. Pt. 3, 186 W.Va. 656, 413 S.E.2d 897.
. In Hayseeds, Justice Neely recognized, in dicta, that "several courts have held that, even in the absence of a statutory or contractual provision, attorneys’ fees may be awarded to the claimant when the insurer has acted in bad faith, wantonly, or for an oppressive reason.” 177 W.Va. 323, 329, 352 S.E.2d 73, 79. | [
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MAYNARD, Chief Justice.
In this appeal, the appellant and plaintiff below, Linda Muto, appeals the January 16, 2007, order of the Circuit Court of Grant County that dismissed her amended complaint against the appellees and defendants below, Larry Scott, individually, Larry Scott Ltd. Co., and Larado Construction Sales, LLC, after finding that the appellant’s amended complaint did not relate back to her original complaint. As a result, the circuit court found that the amended complaint was untimely. After careful consideration of the arguments of the parties, we conclude that under Rule 15(c)(3) of the West Virginia Rules of Civil Procedure, the amended complaint relates back to the date the original complaint was filed which was a date within the two-year statute of limitations. Therefore, we reverse the circuit court’s dismissal of the amended complaint and remand the case for further proceedings.
I.
FACTS
A thumbnail sketch of the pertinent facts are as follows. On July 4, 2004, Gregory Muto and his wife, appellant Linda Muto, were staying at a cabin at Smoke Hole Cabins in Grant County, West Virginia. At that time, Smoke Hole Cabins was undergoing renovation, and a ditch or canal, more than six feet deep and a hundred yards long, was located on the premises. That night, while walking to another cabin to visit friends, Mr. Muto fell into this ditch and sustained injuries. Mr. Muto has since died.
On February 20, 2006, the appellant filed a claim for negligence against Smoke Hole Cabins. Subsequently, on June 28, 2006, the appellant filed a claim for negligence against “John Doe Contractors, Architects, Consultants, Designers and Engineers for concrete work, construction, design, installation, excavation, and other aspects of building and construction.” The appellant’s original “John Doe” complaint was filed within the two-year statute of limitations which ended on July 4,2006.
On September 28, 2006, the appellant filed an amended complaint in which she named Larry Scott, L. Scott Ltd. Co., and Larado Construction Sales, LLC., the appellees herein, as defendants. The appellees were served with the amended complaint on October 3, 2006, which was within the 120-day period set by Rule 4(k) of the West Virginia Rules of Civil Procedure. The appellees thereafter moved to dismiss the case against them contending that the amended complaint was not filed within the statute of limitations and does not meet the requirements for relating back to the original complaint.
After a hearing on the matter, the circuit court entered its January 16, 2007, order in which it found that the appellant’s amended complaint against the appellees does not relate back to her “John Doe” complaint. The appellant now appeals.
II.
STANDARD OF REVIEW
This Court has held that “Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W.Va. 770, 461 S.E.2d 516 (1995). Further, we construe factual allegations in the light most favorable to the plaintiff. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. at 776 n. 7, 461 S.E.2d at 522 n. 7. Finally, we are asked herein to interpret Rule 15(c) of the West Virginia Rules of Civil Procedure. “An interpretation of the West Virginia Rules of Civil Procedure presents a question of law subject to a de novo review.” Syllabus Point 4, Keesecker v. Bird, 200 W.Va. 667, 490 S.E.2d 754 (1997).
III.
DISCUSSION
The sole issue in this case is whether the appellant’s complaint naming the appellees as defendants relates back to her “John Doe” complaint. If the amended complaint relates back, the amended complaint is timely. Conversely, if the amended complaint does not relate back, it is not timely and dismissal below was proper.
The instant question is governed by Rule 15(c) of the West Virginia Rules of Civil Procedure. According to this rule, in pertinent part:
An amendment of a pleading relates back to the date of the original pleading when: ____(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing paragraph (2) is satisfied and, within the period provided by Rule 4(k) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have brought against the party.
This Court construed this rule in our seminal case of Brooks v. Isinghood, 213 W.Va. 675, 584 S.E.2d 531 (2003). In Syllabus Point 4 of Brooks, we held:
Under Rule 15(e)(3) of the West Virginia Rules of Civil Procedure [1998], an amendment to a complaint changing a defendant or the naming of a defendant will relate back to the date the plaintiff filed the original complaint if: (1) the claim asserted in the amended complaint arose out of the same conduct, transaction, or occurrence as that asserted in the original complaint; (2) the defendant named in the amended complaint received notice of the filing of the original complaint and is not prejudiced in maintaining a defense by the delay in being named; (3) the defendant either knew or should have known that he or she would have been named in the original complaint had it not been for a mistake; and (4) notice of the action, and knowledge or potential knowledge of the mistake, was received by the defendant within the period prescribed for commencing an action and service of process of the original complaint.
We further held that,
Under the 1998 amendments to Rule 15(c)(3) of the West Virginia Rules of Civil Procedure, before a plaintiff may amend a complaint to add a new defendant, it must be established that the newly-added defendant (1) received notice of the original action and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the newly-added defendant, prior to the running of the statute of limitation or within the period prescribed for service of the summons and complaint, whichever is greater. To the extent that the Syllabus of Maxwell v. Eastern Associated Coal Corp., 183 W.Va. 70, 394 S.E.2d 54 (1990) conflicts with this holding, it is hereby modified.
Syllabus Point 9, Brooks.
In its January 16, 2007, order, the circuit court analyzed the propriety of relating the appellant’s amended complaint back to her original complaint according to the four factors set forth in Brooks. The circuit court based its determination that the amended complaint does not relate back to the original complaint primarily on the absence of factor (3) — that the defendant either knew or should have known that he or she would have been named in the original complaint had it not been for a mistake. Specifically the circuit court concluded that “a ‘John Doe’ complaint is not truly a mistake on the Plaintiffs part.” The circuit court reasoned,
This is not a ease where the Plaintiff originally named a defendant which she later learned was not the true party and therefore had to amend her complaint. The Plaintiff filed her claim against “John Doe” knowing that he was not the correct defendant because the Plaintiff did not know the true defendant’s identity. The Plaintiff strategically chose to file a complaint against “John Doe” because she had not yet discovered Defendants’ identities.
In the present case, the Plaintiff had two years to discover Defendants’ true identities. The Plaintiff has presented no evidence that Defendants engaged in any nefarious or deceitful behavior to hide their identities from the Plaintiff. The Plaintiffs necessity to file a “John Doe” complaint did not stem from any actions of Defendants. Therefore, the Plaintiffs amended complaint cannot relate back to the original complaint’s filing date because Defendants did not know, and could not have known, that they should have been named as Defendants in the original complaint.
In addressing the issue in this case, we believe it is significant that Rule 15 should be construed liberally to promote the ends of justice. Rule 15(a) states that leave to amend a complaint should be “freely given when justice so requires.” We have previously explained that,
“The purpose of this policy statement is to secure an adjudication on the merits of the controversy as would be secured under identical factual situations in the absence of procedural impediments.” Franklin D. Cleckley, et al., Litigation Handbook on West Virginia Rules of Civil Procedure § 15(a) at 334 [Juris Publishing, 2002], See also, Syllabus Point 3, Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973). “The goal behind Rule 15, as with all the Rules of Civil Procedure, is to insure that cases and controversies be determined upon their merits and not upon legal technicalities or procedural niceties.” Doyle v. Frost, 49 S.W.3d 853, 856 (Tenn.2001) (citations omitted). See also, Perdue v. S.J. Groves & Sons, Co., 152 W.Va. 222, 161 S.E.2d 250 (1968) (recognizing liberality to amend pleadings existed prior to the adoption of the West Virginia Rules of Civil Procedure).
Brooks, 213 W.Va. at 684, 584 S.E.2d at 540 (footnote omitted). Further, we held in Syllabus Point 3 of Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973):
The purpose of the words “and leave [to amend] shall be freely given when justice so requires” in Rule 15(a) W.Va. R. Civ. P., is to secure an adjudication on the merits of the controversy as would be secured under identical factual situations in the absence of procedural impediments; therefore, motions to amend should always be granted under Rule 15 when: (1) the amendment permits the presentation of the merits of the action; (2) the adverse party is not prejudiced by the sudden assertion of the subject of the amendment; and (3) the adverse party can be given ample opportunity to meet the issue.
Finally, we have made clear that “[prejudice to the adverse party is-the paramount consideration in motions to amend. Absent a showing of prejudice to an adverse party motions to amend should be granted.” State ex rel. Bd. of Ed., etc. v. Spillers, 164 W.Va. 453, 455, 259 S.E.2d 417, 419 (1979) (citations omitted).
After considering the circuit court’s reasoning, the arguments of the parties, and the purpose of Rule 15, we conclude that the appellant’s inability to discover the identities of the appellees prior to the running of the statute of limitations constitutes a “mistake” under the facts of this case. First, all of the requirements of Rule 15(c) for relation back of a pleading are otherwise met. It is undisputed that the appellant’s claim in her amended complaint arose out of the conduct set forth in her original complaint pursuant to Rule 15(e)(2). Also, we find that the appellees received notice of the institution of the original complaint within the 120-day period for service of the original complaint under Rule 4(k) so that the appellees would not be prejudiced in maintaining a defense on the merits. The original complaint was filed on June 28, 2006, which means that the appellant had until October 28, 2006, to serve the original complaint on the appellees. The record indicates that the appellant filed her amended complaint on September 28, 2006. This amended complaint informed the appellees that,
This action was previously filed by Plaintiffs on June 28, 2006 and identifying Larry Scott, Individually, L. Scott Ltd. Co., and Larado Construction Sales LLC. as John Doe defendants. Plaintiffs now amend their Complaint for identification of Larry Scott, Individually, L. Scott Ltd. Co., and Larado Construction Sales LLC as members of the John Doe Defendants previously named.
The record further indicates that the appellees received service of the summons and amended complaint on October 3, 2006. Under our law,
While Rule 15(e)(3) of the West Virginia Rules of Civil Procedure [1998] requires that a party to be brought in by amendment receive notice of the institution of the original action, the form of the notice may be either formal or informal, and does not require service of the original complaint or summons upon the party affected by the amendment.
Syllabus Point 6, Brooks. Thus, when the appellees received service of the amended complaint, they also received notice of the institution of the original complaint. Moreover, this notice occurred within the 120-day period so that the appellees were not prejudiced in maintaining a defense on the merits. Finally, the appellees, upon receiving notice of the filing of the original action on October 3, 2006, knew or should have known that, but for the appellant’s inability to determine their identity earlier, the original action would have been brought against the appellees.
Second, as indicated above, prejudice to the adverse party is the paramount consideration in motions to amend. Under the instant facts, the appellees were not prejudiced by the appellant’s inability to identify them in her original complaint. As noted previously, if the appellant had properly identified the appellees in the original complaint, the appellant had 120 days, or until October 28, 2006, to serve the original complaint on the appellees. Because the appellees received notice of the original complaint well before October 28, we fail to see how they could be prejudiced by the failure to name them in the original complaint.
Third, we find from the record before us that the appellant’s failure to name the appellees in her original complaint was not a deliberate strategy and it did not arise from the appellant’s dilatory conduct. The appellant’s counsel explained at the hearing below that the owner of Smoke Hole Cabins initially informed her that he performed the construction on the ditch himself. She further indicated that it was not until she received discovery responses from Smoke Hole Cabins on August 20, 2006, that the appellees were identified. At that point, she immediately amended the complaint to identify the appellees. Also, in her brief to this Court, the appellant avers that no building pennits or environmental permits regarding directing ground water into a stream were ever obtained or issued which would have created a public record identifying the appellees. Thus, construing the factual allegations in the light most favorable to the appellant, we conclude that the appellant’s filing of a “John Doe” complaint was not a deliberate strategy or due to the appellant’s dilatory conduct.
Finally, we believe that construing the term “mistake” in Rule 15(c)(3)(B) to include circumstances where a “John Doe” complaint is filed due to failure to identify the proper defendants is consistent with our prior expansive construction of Rule 15(c). For example, in Brooks this Court confronted the issue of whether “a mistake concerning the identity of the proper party” is limited to the common situation where the wrong party is named or whether it can also include mistakes of law. This Court held in Syllabus Point 7:
Under Rule 15(c)(3)(B) of the West Virginia Rules of Civil Procedure [1998], a “mistake concerning the identity of the proper party” can include a mistake by a plaintiff of either law or fact, so long as the plaintiffs mistake resulted in a failure to identify, and assert a claim against, the proper defendant. A court considering whether a mistake has occurred should focus on whether the failure to include the proper defendant was an error and not a deliberate strategy.
The appellees assert that the appellant’s failure to identify them in her original complaint does not constitute a “mistake” under Rule 15(c)(3)(B). According to the appellees, the great majority of federal courts that have examined this issue have concluded that lack of knowledge of the true identity of a party does not qualify as a “mistake” under Rule 15(c)(3), so that an amended complaint which substitutes the proper defendants for a “John Doe” defendant does not relate back on the grounds of mistake.
While we recognize the position taken by the majority of federal courts, we are not persuaded to adopt this position in this instance.
We have previously noted that we give substantial weight to federal eases in determining the meaning and scope of our rules. This does not mean that our legal analysis in this area should amount to nothing more that Pavlovian responses to federal decisional law. Rather, a federal case interpreting a federal counterpart to a West Virginia rule of procedure may be persuasive, but it is not binding or controlling.
Brooks, 213 W.Va. at 682, 584 S.E.2d at 538 (citations, quotations, and parenthetieals omitted). In circumstances like the instant case in which a plaintiff, through no fault of her own, is unable to identify the defendants prior to the expiration of the statute of limitations, and where the remaining requirements of Rule 15(c) are met, this Court believes that both justice and common sense require that a plaintiff’s lack of knowledge should constitute a “mistake” under Rule 15(c)(3)(B). Such a finding is wholly consistent with a liberal reading of Rule 15(c) in order to promote the adjudication of cases on their merits.
Accordingly, we now hold that under Rule 15(e)(3)(B) of the West Virginia Rules of Civil Procedure, a “mistake concerning the identity of the proper party” may include the circumstance where the original complaint names a “John Doe” defendant due to the plaintiffs lack of knowledge of the proper defendant where the filing of the “John Doe” complaint is not part of a deliberate strategy in order to achieve an advantage and the plaintiffs lack of knowledge is not due to the plaintiffs dilatory conduct in identifying the proper defendant prior to the expiration of the applicable statute of limitations.
IV.
CONCLUSION
In light of our holding above and our finding that the appellant’s amended complaint relates back to her original complaint under Rule 15(c)(3), we reverse the January 16, 2007, order of the Circuit Court of Grant County that dismissed the appellant’s eom plaint as untimely, and we remand for further proceedings consistent with this opinion.
Reversed and remanded.
. Apparently, Mr. Muto’s death was not caused by injuries sustained in the fall at Smoke Hole Cabins.
. The two-year statute of limitations is found in W. Va.Code § 55-2-12 (1959).
. It appears from the record below that Donna Scott, the wife of Larry Scott, received service of a copy of the amended complaint on October 3, 2006. Larry Scott received service on behalf of L. Scott Ltd. Co. on October 6, 2006, and on behalf of Larado Construction Sales LLC on October 12, 2006. All of these dates are within 120 days of the filing of the original complaint.
.According to West Virginia Rule of Civil Procedure 4(k),
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effective within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
. One commentator has noted that "[although some courts and commentators suggest that the [Rule 15(c)(3)(B)] as written encompasses Doe or similar situations, the majority of [federal] circuits to consider this question have held that the Rule does not extend relation back to such circumstances.” Rebecca S. Engrav, "Relation Back of Amendments Naming Previously Unnamed Defendants Under Federal Rule of Civil Procedure 15(c).” 89 Cal. L. Rev. 1549, 1554 (2001) (footnotes omitted). | [
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DAVIS, Justice:
The appellant herein and defendant below, Rivers Edge Mining, Inc. (hereinafter referred to as “Rivers Edge”), appeals from an order entered October 17, 2007, by the Circuit Court of Boone County. By that order, the circuit court denied Rivers Edge’s motions for judgment as a matter of law, for a new trial, or to alter or amend judgment and upheld the $1,855,107 jury verdict rendered in favor of the appellee herein and plaintiff below, George M. Peters (hereinafter referred to as “Mr. Peters”). On appeal to this Court, Rivers Edge assigns error to the circuit court’s rulings (1) determining that Mr. Peters’s claims under W. Va.Code § 23-5A-1 (1978) (Repl. Vol. 2005) and W. Va.Code § 23-5A-3(b) (1990) (Repl. Vol. 2005) were not preempted; (2) concluding that collateral estoppel did not bar’ Mr. Peters’s claims; (3) permitting the jury to award Mr. Peters damages for front pay; and (4) upholding the jury’s award of punitive damages. Upon a review of the parties’ arguments, the record presented for appellate consideration, and the pertinent authorities, we affirm the decision of the Boone County Circuit Court.
I.
FACTUAL AND PROCEDURAL HISTORY
The events giving rise to the instant appeal began on October 28, 2003, when Mr. Peters, who was employed by Rivers Edge as a coal miner, injured his wrist while hanging cable underground. Mr. Peters reported his injury to his section foreman when it occurred, but continued working until the end of his shift because he believed he had only sprained his wrist. Following the completion of this work shift, Mr. Peters was scheduled to be off work for several days. AVhen the pain in his wrist did not subside, he presented to Putnam General Hospital on November 1, 2003, where physicians determined that Mr. Peters had broken his wrist when he was injured on October 28th and placed his wrist in a cast. In conjunction with the medical treatment he received for his wrist injury, Mr. Peters filed a workers’ compensation claim.
On his next scheduled workday, November 5, 2003, Mr. Peters, while still wearing the cast, reported to work. Because his wrist injury prevented Mi’. Peters from performing his regular job duties but did not preclude him from working altogether, Rivers Edge placed him in its Transitional AVork Program and assigned him the position of coal hauler. Mr. Peters’s cast was removed in January 2004, and was replaced with a brace. Mr. Peters continued working as a coal hauler for Rivers Edge, while wearing a cast or a brace on his wrist, until March 1, 2004, on which date his doctor recommended he stop working because his wrist was not healing properly. AVhile Mr. Peters was off from work, he requested and received workers’ compensation temporary total disability benefits.
Mr. Peters’s treating physician released him to return to work on May 7, 2004. During the preceding week, Mr. Peters communicated several times with his workers’ compensation case manager, Jo Clendenin (hereinafter referred to as “Ms. Clendenin”) regarding the possibility of his return to work at Rivers Edge and his placement in its Transitional Work Program. On Monday, May 10, 2004, Ms. Clendenin received an e-mail from Donnie Pauley (hereinafter referred to as “Mr. Pauley”), the Transitional Work Program manager for Rivers Edge, indicating that Rivers Edge could accommodate Mr. Peters and stating that he would contact Mr. Peters. Shortly thereafter, Mr. Peters spoke with Ms. Clendenin. Ms. Clendenin recalls that she informed Mr. Peters that Rivers Edge could accommodate his employment restrictions and that Mr. Pauley would be calling him; Mr. Peters recalls that Ms. Clendenin informed him about his appointment for a functional capacity evaluation that was scheduled for later that same day.
Mr. Pauley then called the contact number Mr. Peters had listed in his personnel information, which was the phone number for Mr. Peters’s mother’s house, with whom Mr. Peters did not live. When Mr. Peters was not available to take his call, Mr. Pauley left a message with Mr. Peters’s mother to inform Mr. Peters that he had been approved to return to work. Mr. Pauley left two additional messages with Mr. Peters’s mother on May 10th. Mr. Peters returned to his Boone County residence in the evening hours of Tuesday, May 11, 2004. Upon calling his mother, he learned that a representative of Rivers Edge had called to let him know he could return to work. By the time he received this message, his regular work shift had already started and been working for several hours.
On the mprning of Wednesday, May 12, 2004, Mr. Peters called Mr. Pauley. Mr. Pauley informed Mr. Peters that he could return to work at Rivers Edge and would be placed ■ in the Transitional Work Program. Mr. Peters stated that he would return to work on Thursday, May 13, 2004. Later that morning, Mr. Pauley telephoned Mr. Peters two more times. The parties dispute the content of these subsequent conversations. Mr. Pauley recalls that he informed Mr. Peters that he needed to report to work that day, i.e., May 12th, or he would be in violation of the “two-day rule” of the collective bargaining agreement. Mr. Peters recalls that Mr. Pauley indicated that he would be permitted to return to work the following day, ie., May 13th. ■
Mr. Peters did not report for work on May 12, 2004. He did, however, report for work on May 13, 2004, in time for his regular shift. When Mr. Peters arrived at work on May 13th, however, Rivers Edge suspended him for having had more, than two consecutive unexeused absences. Rivers Edge, ultimately terminated Mr. Peters’s employment on May 18, 2004. Thereafter, Mr. Peters’s union, the United Mine Workers of America, District 17, Local Union No. 781, filed a grievance on his behalf to challenge the propriety of his discharge. This grievance was arbitrated, and the arbitrator, by written opinion issued October 19, 2004, concluded that Rivers Edge had demonstrated “just cause” for terminating Mr. Peters’s employment.
Mr. Peters then filed the underlying civil action in the Circuit Court of Boone County on January 25, 2006, alleging that his termination by Rivers Edge “constitute[d] an unlawful retaliatory discharge” in violation of W. Va.Code § 23-5A-1 (1978) (Repl. Vol. 2005) and that Rivers Edge had “refused to reinstate [him] to his employment” as required by W. Va.Code § 23-5A-3(b) (1990) (Repl. Vol. 2005). Thereafter, on November 13, 2006, Rivers Edge moved for summary judgment, arguing that Mr. Peters’s claims are preempted by § 301 of the Labor Management Relations Act because resolution of such claims requires interpretation of the governing collective bargaining agreement. The circuit court denied Rivers Edge’s motion by order entered January 31, 2007.
Following trial of the case, a jury returned a verdict in favor of Mr. Peters on March 26, 2007. Specifically, the jury answered affirmatively the following questions on its verdiet form:
1. Do you find that Plaintiff George Peters’[s] pursuit or receipt of workers’ compensation benefits was a substantial or motivating factor in his discharge from employment?
/ Yes No
2. Do you find that the defendant [Rivers Edge] unlawfully failed to reinstate George Peters to his former position?
/ Yes No
The jury then responded in the negative to the inquiry asking,
3. Do you find that Rivers Edge Mining Inc., has proven it would have discharged Mr. Peters, notwithstanding his pursuit or receipt of workers’ compensation benefits?
_Yes y No
Having made these findings, the jury awarded Mr. Peters a total of $885,107 in compensatory damages. Specifically, the jury awarded compensatory damages of $171,697 for back pay; $513,410 for front pay; and $200,000 for aggravation, inconvenience, humiliation, embarrassment and loss of dignity. The jury further found that Mr. Peters was entitled to an award of punitive damages of $1,000,000.
Rivers Edge then requested the circuit court to review the propriety and amount of the punitive damages awarded by the jury. By order entered June 29, 2007, the circuit court denied Rivers Edge’s requested relief and upheld the jury’s punitive damages award. The circuit court then entered judgment in favor of Mr. Peters by judgment order entered August 2, 2007. On August 15, 2007, Rivers Edge moved for judgment as a matter of law, for a new trial, or to alter or amend the judgment. The circuit court denied all three motions by order entered October 17, 2007. From these adverse rulings, Rivers Edge now appeals to this Court.
n.
STANDARD OF REVIEW
In the instant proceeding, Rivers Edge appeals from the circuit court’s order denying its motion for judgment as a matter of law, its motion for a new trial, and its motion to alter or amend the judgment.
Rivers Edge first assigns error to the circuit court’s denial of its motion for judgment as a matter of law. In Syllabus point 1 of Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009), we recently have held that “[t]he appellate standard of review for an order granting or denying a renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998] is de novo.” Id. Moreover,
[w]hen this Court reviews a trial court's order granting or denying a i’enewed motion for judgment as a matter of law after trial under Rule 50(b) of the West Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party.
Syl. pt. 2, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16.
Rivers Edge also appeals from the circuit court’s ruling denying its motion for a new trial. When reviewing a circuit court’s decision on such a motion, we have held that
“[t]he ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, [and] the trial court’s ruling will be reversed on appeal [only] when it is clear that the trial court has acted under some misapprehension of the law or the evidence.” Syl. pt. 4, in part, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).
Syl. pt. 2, Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W.Va. 209, 672 S.E.2d 345 (2008). Accord Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995) (“We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.”). See also State v. Crouch, 191 W.Va. 272, 275, 445 S.E.2d 213, 216 (1994) (“The question of whether a new trial should be granted is within the sound discretion of the trial court and is reviewable only in the ease of abuse.”). Furthermore,
[i]n determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party’s evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.
Syl. pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983).
Lastly, Rivers Edge challenges the circuit court’s decision denying its motion to alter or amend the judgment.
The standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed.
Syl. pt. 1, Wickland v. American Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998). Thus, to the extent that Rivers Edge assigns error to the circuit court’s determination of questions of law involved in this ease, our review of those assignments of error is de novo: “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Accord Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.”). Where, however, Rivers Edge’s argument pertains to the circuit court’s rulings in the underlying trial, generally, we employ a multifaceted review:
In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to de novo review.
Syl. pt. 2, Walker v. West Virginia Ethics Comm’n, 201 W.Va. 108, 492 S.E.2d 167 (1997). Accord Syl. pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996) (“This Court reviews the circuit court’s final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo."). See also Syl. pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000) (“In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.”).
Mindful of these standards, we proceed to consider the parties’ arguments.
III.
DISCUSSION
On appeal to this Court, Rivers Edge assigns four errors to the circuit court’s rulings (1) determining that Mr. Peters’s claims under W. Va.Code § 23-5A-1 (1978) (Repl. Vol. 2005) and W. Va.Code § 23-5A-3(b) (1990) (Repl. Vol. 2005) were not preempted; (2) concluding that collateral estoppel did not bar Mr. Peters’s claims; (3) permitting the jury to award Mr. Peters damages for front pay; and (4) upholding the jury’s award of punitive damages. We will address each of these errors in turn.
A. Preemption
Rivers Edge first argues that the circuit court erred by ruling that Mr. Peters’s claims were not preempted by federal law. First, Rivers Edge represents that the United States Supreme Court has held that causes of action whose resolution require the interpretation of a collective bargaining agreement are to be determined under federal law. See generally Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). However, this Court, in Yoho v. Triangle PWC, Inc., 175 W.Va. 556, 336 S.E.2d 204 (1985), has held that claims alleging workers’ compensation discrimination under W. Va.Code § 23-5A-1 are not preempted because such claims do not require the interpretation of a collective bargaining agreement for their resolution. See Syl. pt. 2, Yoho, 175 W.Va. 556, 336 S.E.2d 204 (“An action for wrongful termination under W. Va.Code § 23-5A-1 (1981) is not preempted by federal labor law.”).
Nevertheless, Rivers Edge urges this Court to reexamine our holding in Yoho in light of after-decided United States Supreme Court precedent requiring determination of the preemption issue on a case-by-case basis to consider whether resolution of a plaintiffs claims in a particular case requires interpretation of the collective bargaining agreement. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Under the facts of this case, Rivers Edge argues that Mr. Peters’s claims are preempted because its assertion of a nonpretextual reason for discharging Mr. Peters, i.e., his violation of the “two-day rule,” requires interpretation of the collective bargaining agreement governing the parties’ employment relationship.
By contrast, Mr. Peters urges this Court to apply our holding in Yoho to find that his claims of workers’ compensation discrimination are not preempted. Alternatively, Mr. Peters disputes Rivers Edge’s characterization of the case as requiring interpretation of the collective bargaining agreement to resolve his claims of workers’ compensation discrimination. Rather, Mr. Peters states that resolution of his workers’ compensation discrimination claims simply requires proof of a prima facie case as required by Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991). In support of his position, Mr. Peters asserts that the collective bargaining agreement does not need to be interpreted to prove that (1) he sustained an “on-the-job injury”; (2) he instituted “proceedings ... under the Workers’ Compensation Act, W. Va.Code, 23-1-1, et seq.”; and (3) his “filing of a workers’ compensation claim was a significant factor in [Rivers Edge’s] decision to discharge” him. Syl. pt. 1, in part, Powell, 184 W.Va. 700, 403 S.E.2d 717.
The circuit court ruled upon this issue in deciding Rivers Edge’s motion for summary judgment based upon its arguments that Mr. Peters’s claims were preempted. By order entered January 31, 2007, the circuit court denied Rivers Edge’s motion. During the November 27, 2006, hearing thereon, the circuit court explained its reasoning, stating that
I’m going to deny your motion ... I do not think that we’re going to be asking the jury to interpret the contract as this — all of this preemption law is about, and I think that we’re just going to be asking them to settle factual matters____ [Y]our [Rivers Edge’s] motion is denied. It’s not preempted.
The circuit court correctly decided this issue, and we agree with the circuit court’s conclusion: Mr. Peters’s claims of workers’ compensation discrimination are not preempted by federal law.
At the outset, we note that “ ‘[preemption is a question of law reviewed de novo.’ Hartley Marine Corp. v. Mierke, 196 W.Va. 669, 673, 474 S.E.2d 599, 603 (1996), citing Kollar v. United Transportation Union, 83 F.3d 124, 125 (5th Cir.1996).” Syl. pt. 2, Lontz v. Tharp, 220 W.Va. 282, 647 S.E.2d 718 (2007) (per curiam). With respect to the case sub judice, we previously have considered and decided the issue of whether claims alleging workers’ compensation discrimination are preempted by federal law. In Syllabus point 2 of Yoho v. Triangle PWC, Inc., 175 W.Va. 556, 336 S.E.2d 204 (1985), we succinctly held that “[a]n action for wrongful termination under W. Va.Code § 23-5A-1 (1981) is not pre-empted by federal labor law.” This ease remains good law and is determinative of our resolution of the issues presented by this assignment of error.
In his complaint, Mr. Peters alleged, in his “First Cause of Action,” that “[t]he defendants’ [Eastern Associated Coal, LLC; Rivers Edge Mining, Inc.; Bennie Milam; and Peabody Holding Company, Inc.] actions constitute an unlawful retaliatory discharge motivated, in whole or in part, by the plaintiffs [Mr. Peters’s] attempt to receive benefits from the Workers’ Compensation Division of the West Virginia Bureau of Employment Programs, in violation of § 23-5A-1 of the West Virginia Code, as amended.” Thus, Mr. Peters has brought an “action for wrongful termination under W. Va.Code § 23-5A-1.” Syl. pt. 2, in part, Yoho, 175 W.Va. 556, 336 S.E.2d 204. Based upon our clear holding in Syllabus point 2 of Yoho, we conclude that Mr. Peters’s claim alleging workers’ compensation discrimination under W. Va. Code § 23-5A-1 is not preempted. Accordingly, we affirm the circuit court’s ruling similarly finding that Mr. Peters’s workers’ compensation discrimination claim is not preempted.
Our inquiry does not end here, however, because Mr. Peters also alleged in his complaint that his termination by Rivers Edge additionally violated W. Va.Code § 23-5A-3. In his “Second Cause of Action,” Mr. Peters asserted that “[t]he defendants refused to reinstate the plaintiff to his employment, as required by West Virginia Code § 23-5A-3(b).” Our holding in Yoho, however, only addresses actions brought under W. Va.Code § 23-5A-1. The Legislature did not enact W. Va.Code § 23-5A-3 until 1990, which was five years after we decided Yoho. Thus, we did not have occasion to consider the preemption issue vis-a-vis W. Va.Code § 23-5A-3 in Yoho.
Nevertheless, it is apparent from the face of the subject statutes that both W. Va.Code § 23-5A-1 and W. Va.Code § 23-5A-3 afford injured workers protection from discrimination occasioned by their application for and/or receipt of workers’ compensation benefits. Moreover, both of these sections are codified within Article 5A of the West Virginia Code pertaining to “Discriminatory Practices.” Because both of these provisions are part of the same body of law, they should be construed and applied consistently with one another. See Syl. pt. 1,. State ex rel. Simpkins v. Harvey, 172 W.Va. 312, 305 S.E.2d 268 (1983) (“ ‘A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the' same and aid in the effectuation of the general purposes and design thereof, if its terms are consistent therewith.’ Syllabus Point 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).”), superseded by statute on other grounds as stated in State ex rel. Hagg v. Spillers, 181 W.Va. 387, 382 S.E.2d 581 (1989), superseded by statute on other grounds as stated in State v. Yoak, 202 W.Va. 331, 504 S.E.2d 158 (1998); Syl. pt. 3, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975) (“Statutes which relate to the same subject matter should be read and applied together so that the Legislature’s intention can be gathered from the whole of the enactments.”); State v. Epperly, 135 W.Va. 877, 881, 65 S.E.2d 488, 491 (1951) (“[A]ll statutes which deal-with the same subject, or which have the same general purpose, should be read in connection with it, as together constituting one law, even though such statutes were enacted at different times[.]” (citation omitted)).
In Yoho, we reiterated the holding of the United States Supreme Court determining that state law claims requiring the interpretation of a collective bargaining agreement are preempted by federal law: “ ‘[WJhen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between parties in a labor contract, that claim must either be treated as a § 301 claim ... or dismissed as pre-empted by federal labor-contract law.’ ” Yoho, 175 W.Va. at 559, 336 S.E.2d at 207 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206 (1985) (citation omitted)). However, we also considered the Supreme Court’s recognition that
not all labor disputes are pre-empted by Section 301:
Clearly § 301 does not grant the parties to a collective-bargaining agreement the ability to contract for what is illegal under state law. In extending the preemptive effect of § 301 beyond suits for breach .of contract, it would be inconsistent with congressional intent under that section to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.
Yoho, 175 W.Va. at 559, 336 S.E.2d at 207 (quoting Allis-Chalmers, 471 U.S. at 212, 105 S.Ct. at 1912, 85 L.Ed.2d 206 (footnote omitted)). Applying this reasoning to the cause of action at issue in Yoho, we determined that the claim asserted by the injured employee alleging a violation of W. Va.Code § 23-5A-1 was a “state law claim [which] is not dependent upon analysis of the terms of [the parties’] collective bargaining agreement and, therefore, falls into that category of cases which Congress did not intend to preempt.” Yoho, 175 W.Va. at 560, 336 S.E.2d at 208.
Reading and applying W. Va.Code § 23-5A-3 consistently with W. Va.Code § 23-5A-1, we conclude that the same reasoning should apply to the additional claim asserted by Mr. Peters in this case under W. Va.Code § 23-5A-3(b), which claim did not exist when we decided Yoho. To decide otherwise would produce inconsistent results in contravention of this Court’s duty to “avoid whenever possible [an application] of a statute which leads to absurd, inconsistent, unjust or unreasonable results.” State v. Kerns, 183 W.Va. 130, 135, 394 S.E.2d 532, 537 (1990). Accordingly, consistent with our holding in Syllabus point 2 of Yoho, we hold that an action for wrongful termination under W. Va.Code § 23-5A-3 (1990) (Repl. Vol. 2005) is not pre-empted by federal labor law. Because Mr. Peters’s second cause of action alleged a claim for workers’ compensation discrimination pursuant to W. Va.Code § 23-5A-3(b), the circuit court correctly found that Mr. Peters’s claim was not preempted. Therefore, we affirm the circuit court’s ruling.
B. Collateral Estoppel
Rivers Edge next argues that the circuit court erred by ruling that Mr. Peters was not collaterally estopped from relitigating, in circuit court, issues that it claims had already been resolved during the arbitration proceedings. Specifically, Rivers Edge contends that because the arbitrator resolved factual issues pertaining to whether Mr. Peters had violated the collective bargaining agreement’s “two-day rule,” such rulings constituted a final determination on the merits, and the circuit court should not have allowed such issues to be relitigated during the trial in this case.
Responding to Rivers Edge’s arguments, Mr. Peters contends that the circuit court did not err as alleged by Rivers Edge because collateral estoppel forecloses the relitigation of identical issues that have been previously decided. See Syl. pt. 1, in part, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). Because the issues decided in the arbitration proceeding, i.e., whether he had violated the collective bargaining agreement, are not identical to the issues raised in the instant proceeding, i.e., whether his discharge constituted an unlawful retaliatory discharge in violation of W. Va.Code § 23-5A-1 and W. Va.Code § 23-5A-3(b), the circuit court correctly ruled that he was not collaterally estopped from presenting factual issues surrounding his discharge to the jury for their deliberation and determination.
At issue in this assignment of error is whether collateral estoppel operates to preclude Mr. Peters from litigating, in his state court trial, certain factual issues previously decided by an arbitrator during the grievance proceedings brought by his union on his behalf. Collateral estoppel, or issue preclusion, forecloses the relitigation of “issues that were actually litigated in an earlier suit even though the causes of action [in the former and subsequent proceedings] are different.” Mellon-Stuart Co. v. Hall, 178 W.Va. 291, 298-99, 359 S.E.2d 124, 131-32 (1987). Accord State v. Miller, 194 W.Va. 3, 9, 459 S.E.2d 114, 120 (1995) (“[Collateral estoppel requires identical issues raised in successive proceedings and requires a determination of the issues by a valid judgment to which such determination was essential to the judgment.” (footnote and citations omitted)); Conley v. Spillers, 171 W.Va. 584, 588, 301 S.E.2d 216, 220 (1983) (“Collateral estoppel is designed to foreclose relitigation of issues in a second suit which have actually been litigated in the earlier suit even though there may be a difference in the cause of action between the parties of the first and second suit.”). See generally Franklin D. Cleckley, Robin J. Davis, & Louis L Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 8(e)[xi][I] (3d ed. 2008). Stated otherwise, “[t]he central inquiry on collateral estoppel is whether a given issue has been actually litigated by the parties in the earlier suit.” Mellon-Stuart Co., 178 W.Va. at 299, 359 S.E.2d at 132. In this regard, we have held that
[ejollateral estoppel is designed to foreclose litigation of issues in a second suit which have actually been litigated in the earlier suit even though there may be a difference in the cause of action between the parties of the first and second suit. We have made this summary of the doctrine of collateral estoppel:
“But where the causes of action are not the same, the parties being identical or in privity, the bar extends to only those matters which were actually litigated in the former proceeding, as distinguished from those matters that might or could have been litigated therein, and arises by way of estoppel rather than by way of strict res adjudicata.” Lane v. Williams, 150 W.Va. 96, 100, 144 S.E.2d 234, 236 (1965).[ ]
Syl. pt. 2, Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216 (footnote added). More specifically,
[cjollateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.[ ]
Syl. pt. 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (footnote added). Whether the doctrine of collateral estoppel will be applied in a particular ease, though, rests within the sound discretion of the trial court: “[t]he application of the doctrine of collateral estoppel is discretionary with the trial eourt[.]” Syl. pt. 7, in part, Conley, 171 W.Va. 584, 301 S.E.2d 216.
Our inquiry begins with the first factor of the Miller test: was “[t]he issue previously decided ... identical to the one presented in the action in question[?]” Syl. pt. 1, in part, Miller, 194 W.Va. 3, 459 S.E.2d 114. We conclude that it was not. In the prior arbitration, Rivers Edge presented the issue of whether it was justified in terminating Mr. Peters based upon his violation of the “two-day rule.” However, in the underlying circuit court litigation, Mr. Peters presented the issue of whether Rivers Edge’s asserted reliance on his violation of the “two-day rule” was a pretext for the unlawful workers’ compensation discrimination that actually formed the basis of Rivers Edge’s decision to discharge him. Thus, it is clear that the two litigations involve different central issues: the arbitration sought to resolve, under the collective bargaining agreement, whether Rivers Edge terminated Mr. Peters because he had violated the “two-day rule” while the circuit court litigation sought to resolve, under our workers’ compensation discrimination statutes, whether Rivers Edge’s termination of Mr. Peters based upon his violation of the “two-day rule” was pretextual. Be cause these issues are different, they are not identical as required by the first factor of Miller. See Syl. pt. 1, Miller, 194 W.Va. 3, 459 S.E.2d 114. Insofar as Rivers Edge has failed to satisfy the first factor of the Miller test, we need not address the remaining elements of this test given that the satisfaction of all four factors are required for an issue to be collaterally estopped. See Syl. pt. 1, id. Accordingly, the circuit court did not abuse its discretion in ruling that collateral estoppel did not operate to bar Mr. Peters from litigating issues surrounding Rivers Edge’s termination of his employment during the trial of this matter, and we affirm the circuit court’s ruling in this regard.
C. Front Pay
For its third assignment of error, Rivers Edge argues that the circuit court erred by upholding the jury’s award of $513,410 for front pay. In this regard, Rivers Edge argues that the workers’ compensation discrimination statutes are silent as to whether front pay is an available remedy for the violation thereof. Because these statutes are a codification of the common law of retaliatory discharge, Rivers Edge suggests that only those common law remedies are available to an employee asserting a claim for workers’ compensation discrimination. Since reinstatement was not a remedy for retaliatory discharge at common law, Rivers Edge contends that front pay, which is a substitute for reinstatement, is not an available remedy for workers’ compensation discrimination. Citing Harless v. First Nat’l Bank in Fairmont, 169 W.Va. 673, 692, 289 S.E.2d 692, 703 (1982) (Harless II.).
Moreover, Rivers Edge argues, although the West Virginia Human Rights Act specifically provides for the “reinstatement” of aggrieved employees, see W. Va.Code § 5 — 11— 13(e) (1998) (Repl. Vol. 2006), the workers’ compensation discrimination statutes make no such provision. It being presumed that the Legislature knew the law in existence at the time it enacted the workers’ compensation discrimination statutes, Rivers Edge contends that front pay should not be read into the statutes as a remedy for such discrimination when the Legislature made no such designation.
Lastly, Rivers Edge argues that even if front pay is an appropriate remedy in this case, the evidence is not sufficient to support the amount of front pay damages awarded to Mr. Peters. Rivers Edge contends that the amount of front pay damages found by the jury is speculative insofar as it extends too far into the future. In support of this argument, Rivers Edge represents that Mr. Peters was fifty-two years old at the time of the trial and failed to provide evidence of his efforts to mitigate his damages.
Mi’. Peters responds that the circuit court did not err by upholding the jury’s award of damages for front pay. Employing Rivers Edge’s reasoning, Mr. Peters suggests that because the workers’ compensation discrimination statutes are silent as to any remedies that are available for a violation thereof, he should not be entitled to recover any damages from Rivers Edge whatsoever. Mr. Peters contends that, taken to this illogical conclusion, Rivers Edge’s argument is absurd. Rather, Mr. Peters represents that this Court has found a cause of action to exist for the violation of the workers’ compensation discrimination statutes and has- determined that such action sounds in tort. Citing Syl. pt. 2, Shanholtz v. Monongahela Power Co., 165 W.Va. 305, 270 S.E.2d 178 (1980). Insofar as front pay is an available remedy in eases alleging the tort of retaliatory discharge in which reinstatement is not appropriate, citing Dobson v. Eastern Associated Coal Corp., 188 W.Va. 17, 422 S.E.2d 494 (1992), Mr. Peters asserts that he is entitled to recover damages for front pay in this ease.
With respect to Rivers Edge’s objections to the amount of front pay awarded by the jury, Mr. Peters submits that the evidence adduced at trial supports the jury’s award. First, Mr. Peters rejects Rivers Edge’s arguments suggesting that he did not offer sufficient proof of his attempts to mitigate his damages because the burden is on the employer, not the wrongfully terminated employee, with respect to mitigation. Citing Syl. pt. 10, in part, Maxey v. McDowell County Bd. of Educ., 212 W.Va. 668, 575 S.E.2d 278 (2002). Second, Mr. Peters contends that his expert’s calculations were consistent with this Court’s decision in Andrews v. Reynolds Memorial Hospital, Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997).
During the pretrial proceedings in this case, the circuit court determined that reinstatement would not be an appropriate remedy in this ease and, thus, that the proper remedy in lieu of reinstatement would be front pay. See Thompson v. Town of Alderson, 215 W.Va. 578, 581, 600 S.E.2d 290, 293 (2004) (“[A] court may rule preliminarily, that reinstatement is not a remedy that will be considered by the court.”). See also Dobson v. Eastern Assoc. Coal Corp., 188 W.Va. 17, 24, 422 S.E.2d 494, 501 (1992) (recognizing front pay as substitute for reinstatement).
At issue in this assignment of error is whether Mr. Peters is entitled to an award of front pay and, if he is, whether the amount of front pay damages awarded by the jury is supported by the evidence. We will consider each of these issues.
1. Front pay is an available remedy in workers’ compensation discrimination cases. In this case, Mr. Peters asserted claims against Rivers Edge alleging workers’ compensation discrimination pursuant to W. Va.Code § 23-5A-1 and W. Va. Code § 23-5A-3(b). The statutes defining these prohibited discriminatory practices are silent as to the remedies that are available for the violation of these provisions. In Shanholtz v. Monongahela Power Co., 165 W.Va. 305, 270 S.E.2d 178 (1980), we held that an aggrieved employee could maintain a cause of action for workers’ compensation discrimination: “It is a contravention of public policy and actionable to discharge an employee because he has filed a workmen’s compensation claim against his employer.” Syl. pt. 2, id. We further found that such an action sounds in tort. 165 W.Va. at 310, 270 S.E.2d at 182. Accord Syl. pt. 4, in part, Dobson v. Eastern Assoc. Coal Corp., 188 W.Va. 17, 422 S.E.2d 494 (1992) (holding that person who files civil action to enforce provisions of W. Va. Human Rights Act, W. Va. Code § 5-11-1, et seq., “may recover damages sounding in tort”). Because the events surrounding Mr. Shanholtz’s discharge transpired before the Legislature had enacted W. Va.Code § 23-5A-1, we did not apply the statute to the facts of that ease. Nevertheless, we recognized that W. Va.Code § 23-5A-1 “is a codification of what we perceive to be the law, that is, it is a contravention of public policy and actionable to discharge an employee because he filed a workmen’s compensation claim against his employer.” Shanholtz, 165 W.Va. at 312, 270 S.E.2d at 183 (citations omitted). Thus, the common law of the tort of retaliatory discharge and the remedies available thereunder are instructive to our determination of the appropriateness of the award of front pay damages in the case sub judice.
Historically, reinstatement was not a recognized remedy for the tort of retaliatory discharge. As we observed in Harless II,
[t]he tort of retaliatory discharge was fashioned as an exception to the common law rule that an employer had an absolute right to discharge an at will employee____ This exception was drawn not to cover all at will firings but only those where it could be demonstrated that the discharge was in retaliation for the employee’s exercising some substantial public policy right. The remedy afforded was not reinstatement but damages occasioned by the discharge.
Harless v. First Nat’l Bank in Fairmont, 169 W.Va. 673, 692, 289 S.E.2d 692, 703 (1982) (citations omitted).
Notwithstanding the contrary common-law tradition, there has been widespread use of the reinstatement remedy in statutes prohibiting discrimination on the basis of sex, race, age, or handicap. It has even been said that reinstatement is the preferred remedy for the tort of retaliatory discharge, since no other remedy can fully compensate an employee for the wrongful loss of his or her job. In a retaliatory discharge action, reinstatement is an equitable remedy within the court’s discretion[.]
82 Am.Jur.2d Wrongful Discharge § 230 (2003) (footnotes omitted). Thus, reinstate ment has evolved into an accepted remedy for the tort of retaliatory discharge. See, e.g., Eddins v. Geneva Pharms., Inc., 877 F.Supp. 413, 421 (E.D.Tenn.1994) (“The Tennessee Supreme Court has clearly recognized the tort action of retaliatory discharge .. -. and has further held that the remedies of reinstatement and reimbursement for lost wages and work benefits are [among] the ... remedies available to the discharged employee.”); Skirpan v. United Air Lines, Inc., No. 83 C 0447, 1989 WL 84463, at *3 (N.D.Ill. July 21, 1989) (mem. op.) (“[W]e hold that reinstatement is a natural remedy for th[e] tort [of retaliatory discharge based upon workers’ compensation discrimination] which was created to prevent wrongful discharge. No other remedy can fully compensate an employee for the wrongful loss of his or her job.” (citation omitted)).
Similarly, this Court has repeatedly recognized that an employee who is wrongfully discharged may seek the remedy of reinstatement. See, e.g., Syl., Thompson, 215 W.Va. 578, 600 S.E.2d 290 (including within list of remedies available to wrongfully discharged employee under Whistle-Blower Law, W. Va.Code § 6C-1-1, et seq., “reinstatement of the employee”); Syl. pt. 3, Bonnell v. Carr, 170 W.Va. 493, 294 S.E.2d 910 (1982) (“The generally accepted rule is that where a tenured employee of a school system has been wrongfully discharged such employee is entitled to reinstatement.”); Martin v. Mullins, 170 W.Va. 358, 362, 294 S.E.2d 161, 165 (1982) (commenting that, “[u]nder 42 U.S.C. 1983 an entirely good-faith violation of a civil right can result in the type of equitable relief that was awarded the wrongfully discharged ... employees-namely reinstatement with back pay”); Syl. pt. 2, Hall v. Protan, 158 W.Va. 276, 210 S.E.2d 475 (1974) (holding that wrongfully discharged deputy sheriff has right to be reinstated).
Not all cases, though, present the right circumstances for an employee’s reinstatement. When the wrongful discharge is precipitated by or results in a hostile relationship between the employee and the employer, reinstatement is not appropriate. In such circumstances, we have recognized front pay as an acceptable substitute for reinstatement. “[F]ront pay is simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement.” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846, 121 S.Ct. 1946, 1948, 150 L.Ed.2d 62 (2001). Accord Dotson v. Pfizer, Inc., 558 F.3d 284, 300 (4th Cir.2009) (“reeogniz[ing front pay] as a proper form of relief that is ‘an alternative and complement to reinstatement’ ” (quoting Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 307 (4th Cir.1998))); Thompson v. Town of Alderson, 215 W.Va. at 579 n. 1, 600 S.E.2d at 291 n. 1 (“ ‘ “Front pay” is a shorthand term frequently used ... to refer to future lost pay and benefits.’ ” (quoting Tadsen v. Praegitzer Indus., Inc., 324 Or. 465, 472 n. 5, 928 P.2d 980, 981 n. 5 (1996))). Stated otherwise, “[f]ront pay represents the difference between what an employee would have earned from his former employer had he not been fired and what he can expect to earn in any employment in the future.” Casteel v. Consolidation Coal Co., 181 W.Va. 501, 507 n. 8, 383 S.E.2d 305, 311 n. 8 (1989).
Therefore, “this Court [has] recognized that ‘make-whole’ relief could include an award by a jury of front pay in a wrongful discharge case, where reinstatement was not appropriate.” Thompson, 215 W.Va. at 580, 600 S.E.2d at 292 (citation omitted). More specifically, we have observed that
“[t]he inclusion of equitable relief strengthens the conclusion that ... victims of ... discrimination ... be made whole by restoring them to the position they would have been in had the discrimination never occurred.
Front pay, an award for future earnings, is sometimes needed to achieve that purpose. Ordinarily, an employee would be made whole by a backpay award coupled with an order for reinstatement. Reinstatement is the preferred remedy to avoid future lost earnings, but reinstatement may not be feasible in all cases.”
Dobson v. Eastern Assoc. Coal Corp., 188 W.Va. at 24, 422 S.E.2d at 501 (quoting Maxfield v. Sinclair Int’l, 766 F.2d 788, 796 (3d Cir.1985)). Likewise, front pay is a suitable substitute remedy for reinstatement when an employer objects to reinstatement: “A jury may award front pay in a Human Rights Act case where the employer, by opposing reinstatement, ‘elected front pay rather than reinstatement.’ ” Thompson, 215 W.Va. at 580, 600 S.E.2d at 292 (quoting Casteel v. Consolidation Coal Co., 181 W.Va. at 507, 383 S.E.2d at 311).
When determining whether a particular ease lends itself to the remedy of reinstatement or whether an award of damages for front pay would be more appropriate, we have directed that “a court may rule preliminarily, that reinstatement is not a remedy that will be considered by the court.” Thompson v. Town of Alderson, 215 W.Va. at 581, 600 S.E.2d at 293. Decisions regarding the issue of front pay rest within a circuit court’s discretion. See, e.g., Wilson v. Phoenix Specialty Mfg. Co., Inc., 513 F.3d 378, 388 (4th Cir.2008) (“Whether front pay is to be awarded is a matter left to the discretion of the trial judge.” (citation omitted)); Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 504 (4th Cir.2001) (“The award of front pay rests squarely within the district court’s discretion.”).
In light of the foregoing authorities and the development of the law of retaliatory discharge in this State, we hold that an employee who asserts a claim alleging workers’ compensation discrimination in accordance with W. Va.Code § 23-5A-1, et seq., may recover damages for front pay in lieu of reinstatement. Whether the facts of a particular case warrant an award of front pay in lieu of reinstatement is a decision committed to the circuit court, and such a determination will be reviewed for an abuse of discretion.
Applying this holding to the instant proceeding, we conclude that the circuit court did not abuse its discretion in determining that the facts of this case were not appropriate for the consideration of reinstatement and, thus, that Mr. Peters could assert a claim for front pay damages. Given the level of distrust Rivers Edge had of Mr. Peters and the legitimacy of his workers’ compensation claim, it goes without saying that the atmosphere within which Mr. Peters would have been required to work had he been reinstated would hardly have been harmonious or collegial. Rather, the facts of this case lend themselves more to a complete severing of the employer-employee relationship such as would be accomplished through an award of front pay as opposed to forcing the continuation of the broken relationship through reinstatement. Accordingly, we affirm the circuit court's ruling permitting Mr. Peters to seek damages for front pay.
2. The amount of front pay damages awarded by the jury is supported by the evidence. Having concluded that front pay is an available remedy in this case, we next must determine whether the amount of Mr. Peters’s front pay award is excessive. At the conclusion of the underlying trial, the jury returned a verdict in favor of Mr. Peters awarding him damages for, among other things, front pay in the amount of $513,410. With respect to the role of juries, we have held that “[i]t is the peculiar and exclusive province of a jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses regarding them is conflicting and the finding of the jury upon such facts will not ordinarily be disturbed.” Syl. pt. 2, Skeen v. C & G Corp., 155 W.Va. 547, 185 S.E.2d 493 (1971). Therefore,
[i]n determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly, find under the evidence, must be assumed as true.
Syl. pt. 5, Poe v. Pittman, 150 W.Va. 179, 144 S.E.2d 671 (1965). See also Syl. pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983) (“In determining whether there is sufficient evidence to support a jury verdict, the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party’s evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.”). Moreover, “[ejourts must not set aside jury verdicts as excessive unless they are monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice or corruption.” Syl., Addair v. Majestic Petroleum Co., Inc., 160 W.Va. 105, 232 S.E.2d 821 (1977).
With specific respect to awards of front pay, we have counseled that “front pay damages, when appropriate, must be proved to a reasonable probability and are a form of compensatory damages, because they Testore[] the terminated employee to the economic position that the employee would have enjoyed, were it not for the employer’s conduct.’ ” Thompson, 215 W.Va. at 579 n. 1, 600 S.E.2d at 291 n. 1 (quoting Tadsen, 324 Or. at 470, 928 P.2d at 983). Nevertheless, in this State, juries, and not courts, typically resolve uncertainties inherent in calculations of front pay. See Thompson, 215 W.Va. at 581, 600 S.E.2d at 293 (discussing jury’s calculation of front pay award); Dobson, 188 W.Va. at 23-25, 422 S.E.2d at 500-02 (upholding instruction directing jury to consider elements indicative of damages for front pay).
Turning to the facts of the ease sub judice, we conclude that the evidence supports the jury’s assessment of the credibility of the witnesses and the evidence presented in support of the front pay damages that will be incurred by Mr. Peters. The amount of front pay awarded, ie., $513,410, was within the range of figures proffered by the experts as indicative of “the difference between what [Mr. Peters] would have earned from [Rivers Edge] had he not been fired and what he can expect, to earn in any employment in the future.” Casteel v. Consolidation Coal Co., 181 W.Va. at 507 n. 8, 383 S.E.2d at 311 n. 8. Mr. Peters’s evidence also presented calculations for lost future wages within the rubric of various hypothetical scenarios; which considered varying dates of separation from employment in light of Mr. Peters’s age, retirement, and life expectancy. Evidence of this nature is consistent with the elements we consider in calculating awards for lost future earnings in other cases. See Syl. pt. 2, in part, Andrews v. Reynolds Mem’l Hosp., Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997) (instructing that jury award for infant’s lost future earnings will be upheld as not speculative “where the award of lost future earnings is within the range of estimated future earnings, based upon various life scenarios, reduced to present value, established by the expert testimony of an economist at trial” and where such evidence considers a “statistically ... average life expectancy and an average work life expectancy”).
Furthermore, to the extent that Rivers Edge complains that Mr. Peters failed to mitigate his damages, Rivers Edge’s contention is without merit. When an employee is wrongfully discharged and the employer’s actions in discharging said employee are malicious, the employee has no duty to mitigate his/her damages:
Unless a wrongful discharge is malicious, the wrongfully discharged employee has a duty to mitigate damages by accepting similar employment to that contemplated by his or her contract if it is available in the local area, and the actual wages received, or the wages the employee could have received at comparable employment where it is locally available, will be deducted from any back pay award; however, the burden of raising the issue of mitigation is on the employer.
Syl. pt. 2, Mason County Bd. of Educ. v. State Superintendent of Schs., 170 W.Va. 632, 295 S.E.2d 719 (1982) (emphasis added). As will be discussed in greater detail in Sections III.D.l and III.D.2, infra, we find that Rivers Edge’s malicious misconduct in terminating Mr. Peters’s employment in retaliation for his application for and receipt of workers’ compensation benefits absolves Mr. Peters of the duty to mitigate his damages in this ease. Having thus determined the amount of Mr. Peters’s front pay award to have been supported by the evidence, we affirm the circuit court’s ruling upholding the jury’s verdict in this regard.
D. Punitive Damages
Lastly, Rivers Edge contends that the circuit court erred by upholding the jury’s $1,000,000 award of punitive damages in this case. Rivers Edge additionally argues that the circuit court erred by approving the full amount of punitive damages awarded to Mr. Peters and by not reducing the amount of punitive damages awarded by the jury. Mr. Peters responds by stating that the circuit court correctly determined that punitive damages are proper in this case and also correctly upheld the amount of punitive damages awarded by the jury. By order entered June 29, 2007, the circuit court affirmed both the award of punitive damages and the amount thereof recommended by the jury.
At the outset, we note that although we have addressed punitive damages in numerous prior eases, we have not definitively delineated the precise standard by which we review such awards. With regard to awards of punitive damages generally, we have held that,
[u]pon petition, this Court will review all punitive damages awards. In our review of the petition, we will consider the same factors that we require the jury and trial judge to consider, and all petitions must address each and every factor set forth in Syllabus Points 3 and 4 of this case with particularity, summarizing the evidence presented to the jury on the subject or to the trial court at the post-judgment review stage. Assignments of error related to a factor not specifically addressed in the petition will be deemed waived as a matter of state law.
Syl. pt. 5, Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991) (emphasis added). As to the amount of a punitive damages award, we have instructed that,
[u]nder our punitive damage jurisprudence, it is imperative that the amount of the punitive damage award be reviewed in the first instance by the trial court by applying the model specified in Syllabus Points 3 and 4 of Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991), and Syllabus Point 15 of TXO Production Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992), aff'd, 509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993). Thereafter, and wpon petition, this Court will review the amount of the punitive damage award, applying the standard specified in Syllabus Point 5 of Garnes.
Syl. pt. 5, Alkire v. First Nat’l Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996) (emphasis added). It is apparent from both of these holdings, then, that this Court accords a plenary or de novo review to jury awards of punitive damages and to circuit court rulings thereon because this Court considers the same factors that previously were considered by the jury and the trial court. See Syl. pt. 5, Garnes, 186 W.Va. 656, 413 S.E.2d 897. This conclusion is supported further by the similar observation of the United States Supreme Court in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436, 121 S.Ct. 1678, 1685-86, 149 L.Ed.2d 674 (2001), directing that “courts of appeals should apply a de novo standard of review when passing on district courts’ determinations of the constitutionality of punitive' damages awards.” (Footnote omitted). Accordingly, we hold that, when reviewing an award of punitive damages in accordance with Syllabus point 5 of Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991), and Syllabus point 5 of Alkire v. First National Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996), this Court will review de novo the jury’s award of punitive damages and the circuit court’s ruling approving, rejecting, or reducing such award.
In Games, we identified several factors that should be considered by a jury when deciding whether to award punitive damages to a plaintiff:
When the trial court instructs the jury on punitive damages, the court should, at a minimum, carefully explain the factors to be considered in awarding punitive damages. These factors are as follows:
(1) Punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant’s conduct as well as to the harm that actually has' occurred. If the defendant’s actions caused or would likely cause in a similar situation only slight harm, the damages should be relatively small. If the harm is grievous, the damages should be greater.
(2) The jury may consider (although the court need not specifically instruct on each element if doing so would be unfairly prejudicial to the defendant), the reprehensibility of the defendant’s conduct. The jury should take into account how long the defendant continued in his actions, whether he was aware his actions were causing or were likely to cause harm, whether he attempted to conceal or cover up his actions or the harm caused by them, whether/how often the defendant engaged in similar conduct in the past, and whether the defendant made reasonable efforts to make amends by offering a fair and prompt settlement for the actual harm caused once his liability became clear to him.
(3) If the defendant profited from his wrongful conduct, the punitive damages should remove the profit and should be in excess of the profit, so that the award discourages future bad acts by the defendant.
(4) As a matter of fundamental fairness, punitive damages should bear a reasonable relationship to compensatory damages.
(5) The financial position of the defendant is relevant.
Syl. pt. 3, Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897.
We also enumerated additional criteria a trial court should consider when evaluating the correctness of a jury’s award of punitive damages:
When the trial court reviews an award of punitive damages, the court should, at a minimum, consider the factors given to the jury as well as the following additional factors:
(1) The costs of the litigation;
(2) Any criminal sanctions imposed on the defendant for his conduct;
(3) Any other civil actions against the same defendant, based on the same conduct; and
(4) The appropriateness of punitive damages to encourage fair and reasonable settlements when a clear wrong has been committed. A factor that may justify punitive damages is the cost of litigation to the plaintiff.
Because not all relevant information is available to the jury, it is likely that in some cases the jury will make an award that is reasonable on the facts as the jury know them, but that will require downward adjustment by the trial court through remittitur because of factors that would be prejudicial to the defendant if admitted at trial, such as criminal sanctions imposed or similar lawsuits pending elsewhere against the defendant. However, at the option of the defendant, or in the sound discretion of the trial court, any of the above factors may also be presented to the jury.
Syl. pt. 4, Garnes, 186 W.Va. 656, 413 S.E.2d 897.
However, at the most basic level, a review of an award of punitive damages involves two distinct inquiries: whether the case warrants an award of punitive damages and whether the amount of the punitive damages award is proper. We explained this procedure in Syllabus point 7 of Alkire:
Our punitive damage jurisprudence includes a two-step paradigm: first, a determination of whether the conduct of an actor toward another person entitles that person to a punitive damage award under Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895); second, if a punitive damage award is justified, then a review is mandated to determine if the punitive damage award is excessive under Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991).
197 W.Va. 122, 475 S.E.2d 122 (emphasis in original). Applying these authorities to the facts of this case, we proceed to address each of these issues.
1. Mr. Peters is entitled to an award of punitive damages. Rivers Edge first argues that the evidence in this case was not sufficient to support the jury’s award of punitive damages to Mr. Peters. In this regard, Rivers Edge claims that the evidence does not support an award of punitive damages against it because it has not acted “maliciously, wantonly, mischievously or with criminal indifference to civil obligations.” Syl. pt. 3, in part, Jopling v. Bluefield Water Works & Improvement Co., 70 W.Va. 670, 74 S.E. 943 (1912). Moreover, Rivers Edge asserts that punitive damages are not automatically available in a retaliatory discharge case; instead, “there must be evidence of misconduct by the defendant which is above and beyond the mere act of a retaliatory discharge.” Citing Harless v. First Nat’l Bank in Fairmont, 169 W.Va. 673, 692 n. 19, 289 S.E.2d 692, 703 n. 19 (1982) (Harless II). Here, Rivers Edge asserts that Mr. Peters has not produced any evidence to indicate that Rivers Edge acted in any of the prohibited ways in discharging him from employment.
Mr. Peters replies that the circuit court considered the conduct of Rivers Edge and correctly upheld the jury’s award of punitive damages. In demonstrating that Rivers Edge’s conduct supports an award of punitive damages, Mr. Peters had to show only that Rivers Edge acted “wantonly, willfully, or maliciously.” Citing Syl. pt. 4, Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895). Thus, Mr. Peters asserts that “the jury could reasonably conclude that Rivers Edge specifically disregarded the rights of George Peters and generally disregarded the rights of any employee who filed a workers compensation claim that the defendant [Rivers Edge] deemed to be ‘suspicious’.”
By order entered June 29, 2007, the circuit court reviewed and upheld the jury’s award of punitive damages. In its order, the lower court found that the evidence demonstrated that Rivers Edge had been “suspicious” of the validity of Mr. Peters’s workers’ compensation claim, that it placed him under surveillance when his doctor did not approve his return to work, and once his return to work had been approved, continued its surveillance of him rather than responding to his attempts to return to work. . Moreover, the circuit court found further that, although Rivers Edge had known of Mr. Peters’s ability to return to work for six days, the evidence adduced at trial demonstrated that Rivers Edge gave Mr. Peters only five hours’ notice that he was required to report to work on Wednesday, May 12,2004. In its June 29, 2007, punitive damages order, the circuit court enumerated specific findings analyzing the Games factors:
the Court notes that the evidence at trial was sufficient for a jury to conclude that the Plaintiff [Mr. Peters] was severely harmed by the conduct of the Defendants [Rivers Edge], as the plaintiff lost his job, was placed under surveillance, and suffered economic losses; and,
[T]he Plaintiffs introduced the expert testimony of [William E. Cobb][ ] who opined to a reasonable degree of accounting certainty that the Plaintiff suffered economic damages ranging from $632,505.00 to $885,316.00 (Plaintiffs Trial Ex. 4), in response to which the Jury could reasonably determine that there was sufficient evidence to show that the Plaintiffs’ damages was [sic] caused by River’s [sic] Edge Mining’s tortious misconduct; and,
[T]here was sufficient evidence from numerous witnesses, including Defendants [sic] own witnesses, for the jury to determine that Defendants, through the actions of their officers, employees or agents, committed the civil wrongs of unlawful failure to reinstate the plaintiff to his former position within their company, and that pursuit or receipt of workers’ compensation benefits was a motivating factor of plaintiffs discharge (see Jury Verdict Form);[ ] and
[T]his Court finds that the evidence at trial was clearly sufficient for a jury to properly conclude that Defendants continued in their damaging conduct for an extensive period of time; and,
[T]his Court finds that the Plaintiffs [sic] also adduced evidence from its own witnesses, together with the Defendants’ witnesses, [from] which the jury could reasonably conclude that Defendants’ conduct was reprehensible and self-serving____ Here, for example, the Plaintiffs [sic] adduced the following evidence before the Jury, which was apparently sufficient for the Jury’s determinations:
(a) In this case, the jury could reasonably conclude that Rivers Edge specifically disregarded the rights of George Peters and generally disregarded the rights of any employee who filed a workers compensation claim that the defendant deemed to be “suspicious;” and,
(b) The testimony in this case made clear that Rivers Edge and its agents were “suspicious” of the validity of Mr. Peters’[s] workers’ compensation claim. In fact, the individuals involved in the decision to terminate Mr. Peters’[s] employment admitted that they were suspicious of his workers’ compensation claim all the way up to the day of his termination. Yet, instead of allowing the workers^] compensation system to take its course, a reasonable jury could clearly conclude that Rivers Edge chose to take the law in its own hands; and,
(e) The evidence presented to the jury supports a finding that, when Mr. Peterses] doctor indicated he would be unable to return to work on April 28, 2004, Rivers Edge placed Mr. Peters’ [sic] under surveillance the next day. When Mr. Peters’[s] doctor released him to return to work, the plaintiff began seeking to return to his employment with Rivers Edge. However, instead of immediately returning Mr. Peters to work, Rivers Edge continued its surveillance on the plaintiff and did not respond to the plaintiffs attempts to return to work; and,
(d) The evidence presented to the jury indicated that, when Donnie Pauley, the individual who ran the defendant’s transitional work program, finally called Mr. Peters to come back to work, Mr. Pauley told Mr. Peters that it would be fine if the plaintiff returned to work the following day. However, Nancy Arritt (who admitted that she was suspicious of Mr. Peters’[s] workers’ compensation claim) made Mr. Pauley call Mr. Peters back and inform the plaintiff that he had to appear for work that same day; and,
(e) The requirement imposed on the plaintiff by Ms. Arritt meant that, despite the fact that Rivers Edge had been on notice for six days that Mr. Peters could return to work, the defendant only gave Mr. Peters five hours notice that he was required to come to work. The jury could reasonably conclude that this illogical requirement imposed on the plaintiff by Rivers Edge was motivated by malice; and,
(f) When Mr. Peters showed up for work the next day, instead of putting him back to work, Rivers Edge terminated his employment. The jury clearly concluded that all of this conduct on the part of Rivers Edge was calculated and intentional. The facts and inferences in this case do not point so strongly and overwhelmingly in favor of Rivers Edge to lead to the conclusion that the jury was wrong in reaching this conclusion. In fact, the facts and inferences in this case point strongly in support of the jury’s conclusion. Although the defendant had a duty under the law to return Mr. Peters to his employment following his absences related to a workers’ compensation covered injury, Rivers Edge terminated Mr. Peters[’s] employment on the day Mr. Peters showed up for work; and,
(g) Based on the evidence presented at trial, the jury could reasonably conclude that this was simply the way that Rivers Edge did business. As the testimony of Jerry Legg [another former Rivers Edge employee] demonstrated, the defendant had a plan for identifying persons it believed were committing workers’ compensation fraud, placing those individuals under surveillance and taking action against such persons outside of the remedies available in the workers’ compensation system; and,
(h) In this case there was ample evidence presented to prove that Rivers Edge terminated Mr. Peters’[s] employment in retaliation for filing a workers’ compensation claim. In fact, that is what the jury decided. Further, the jury also found that the purported “legitimate” reason that the defendant proffered at trial to explain the termination was a pretext to cover its illegal retaliatory motive to terminate Mr. Peters for receiving or attempting to receive workers’ compensation benefits. This illegal retaliatory motive was apparent at trial when representatives of Rivers Edge testified that they felt Mr. Peters was guilty of fraud and theft; and,
(i) It is also clear from the testimony at trial that Rivers Edge was well aware of the anti-retaliation provisions of the workers’ compensation statutes. The jury could reasonably conclude that the defendant willfully, wantonly and maliciously disregarded Mr. Peters’[s] rights and retaliated against him for receiving or attempting to receive workers’ compensation benefits.
[F]rom this evidence and all the other evidence adduced at trial, ... this Jury, it being a rational trier of fact, had sufficient evidence before it to conclude that River’s [sic] Edge Mining’s conduct was reprehensible ... and warranted the imposition of punitive damages [.]
[I]n regard to the other arguments regarding this Jury’s award of punitive damages ... in this case, there was very substantial evidence from which a jury could properly find that River’s [sic] Edge Mining’s conduct was reprehensible and, specifically, that the plaintiffs pursuit or receipt of workers’ compensation benefits was a substantial or motivating factor in his discharge from employment ...[.]
(Footnotes added). Based, upon these findings, the circuit court found punitive damages to be proper in this case.
Pursuant to our holding in Syllabus point 7 of Alkire, our first punitive damages inquiry is “a determination of whether the conduct of the actor toward another person entitles that person to a punitive damage award under Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895)[.]” Syl. pt. 7, in part, Alkire, 197 W.Va. 122, 475 S.E.2d 122 (emphasis in original). Mayer v. Frobe instructs that, “[i]n actions of tort, where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others appear, or- where legislative enactment authorizes it, the jury may assess exemplary, punitive, or vindictive damages; these terms being synonymous.” Syl. pt. 4, 40 W.Va. 246, 22 S.E. 58. Accord Syl. pt. 1, O’Brien v. Snodgrass, 123 W.Va. 483, 16 S.E.2d 621 (1941) (“Punitive' or exemplary damages are such as, in a proper case, a jury may allow against the defendant by way of punishment for wilfulness, wantonness, malice, or other like aggravation of his wrong to the plaintiff, over and above full compensation for all injuries directly or indirectly resulting from such wrong.”).
Nevertheless, “[t]o sustain a claim for punitive damages, the wrongful act must have been done maliciously, wantonly, mischievously, or with criminal indifference to civil obligations. A wrongful act, done under a bona fide claim of right, and without malice in any form, constitutes no basis for such damages.” Syl. pt. 3, Jopling v. Bluefield Water Works & Improvement Co., 70 W.Va. 670, 74 S.E. 943 (1912). Consistent with this recognition is our observation in Harless v. First National Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982) (Harless II), to the effect that “[t]he mere existence of a retaliatory discharge will not automatically give rise to the right to punitive damages. The plaintiff must prove further egregious conduct on the part of the employer.” Id., 169 W.Va. at 692-93, 289 S.E.2d at 703.
Under the facts of this ease, Mr. Peters has sustained his burden of proof. Not only did Mr. Peters adduce evidence to prove that his termination by Rivers Edge was in retaliation for his application for and receipt of workers’ compensation benefits, Mr. Peters also proved that Rivers ■ Edge’s actions in this regard were malicious. “The foundation of an inference of malice is the general disregard of the rights of others, rather than an intent to injure a particular individual.” Addair v. Huffman, 156 W.Va. 592, 603, 195 S.E.2d 739, 746 (1973). Here, the evidence demonstrated that Rivers Edge had a “general disregard of the rights of others,” id, which was apparent from Rivers Edge’s treatment of Mr. Peters throughout his receipt of statutory workers’ compensation benefits for an injury he received while working for Rivers Edge.
As an employee of Rivers Edge, Mr. Peters had a right to apply for and receive workers’ compensation benefits for any injury he incurred “in the course of and resulting from [his] covered employment.” W. Va. Code § 23-4-1 (a) (2003) (Repl. Volf 2005). Mr. Peters incurred such an injury at work, on October 28, 2003, when he broke his wrist. In spite of repeated medical treatment for this injury, Mr. Peters continued working, through the Transitional Work Program, until his doctor advised him, on March 1, 2004, that he needed to stop working until his wrist healed because it was not healing properly while he continued working. Mr. Peters heeded his physician’s warnings, and requested and received temporary total disability benefits while he was off from work to permit his wrist to finally heal. During this time, Rivers Edge placed Mr. Peters under surveillance because it doubted the credibility of his workers’ compensation claim. However, Mr. Peters’s workers’ compensation claim for his work-related wrist injury was determined to be legitimate and credible because he was granted an 11% permanent partial disability workers’ compensation award for his injured wrist.
Thereafter, when Mr. Peters’s doctor released him to return to work and he informed Rivers Edge of this fact, Rivers Edge did not immediately respond to his request that he be permitted to return to work through the Transitional Work Program. Neither did Rivers Edge timely contact Mr. Peters to inform him of his return to work date. Instead, Rivers Edge again placed Mr. Peters under surveillance.
The following week, Rivers Edge, by Mr. Pauley, attempted unsuccessfully to contact Mr. Peters but did not leave any messages to inform him of the date by which he was expected to return to work or to let him know that his request to return to the Transitional Work Program could be accommodated. When Mr. Pauley spoke with Mr. Peters on May 12, 2004, nearly one week after Mr. Peters’s doctor had released him to return to work, Mr. Pauley informed Mr. Peters that he was required to report for work at his scheduled shift time later that same day. Mr. Peters responded that he could report to work the next day, but he was not prepared to report for his shift that same day, which was scheduled to start only five hours later. Finally, when Mr. Peters reported to work the day after he had spoken with Mr. Pauley, he was suspended and ultimately terminated.
Rivers Edge’s conduct is particularly egregious in light of the fact the sole reason Mr. Peters was off from work, in the first instance, is because he had sustained a work-related injury while working for Rivers Edge. The actions of Rivers Edge show a blatant “disregard” for the statutory workers’ compensation rights accorded to Mr. Peters by the West Virginia Legislature: his right to recover benefits for his work-related injury, W. Va.Code § 23-4-1, and his right to retain his job during and after his convalescence for his work-related injury, W. Va. Code §§ 23-5A-1 and 23-5A-3(b). During the entire time Mr. Peters was off from work, Rivers Edge placed him under surveillance because it doubted the legitimacy of his workers’ compensation claim. After Mr. Peters had been released by his doctor to return to work, Rivers Edge again placed him under surveillance and then delayed informing Mr. Peters as to when it expected him to return to work until, it claimed, he would risk violating the collective bargaining agreement’s “two-day rule” if he did not report for his shift only a few short hours later. This evidence is clearly demonstrative of the maliciousness of Rivers Edge’s actions, not only in retaliating against Mr. Peters by firing him, but also in not respecting his right to apply for and receive workers’ compensation benefits for an injury he received while he was working for Rivers Edge. Adding even more support for the award of punitive damages is the fact that there is no indication that Mr. Peters had a history of disciplinary problems while he was employed by Rivers Edge from November 2, 2002, until he was suspended on May 13, 2004. Thus, Mr. Peters’s first instance of alleged misconduct as a Rivers Edge employee ultimately resulted in termination, again, all because he missed work because he was recovering from an injury he had sustained while performing Rivers Edge’s work. We find that, upon this record, the jury was properly instructed and correctly awarded punitive damages to Mr. Peters. The circuit court also thoroughly reviewed the evidence adduced at trial in light of our punitive damages jurisprudence and properly upheld the jury’s award of punitive damages. Accordingly, we affirm the circuit court’s ruling in this regard.
2. The amount of punitive damages awarded by the jury is not excessive. Rivers Edge argues additionally that if this Court should determine that punitive damages are warranted in this case, such award should be substantially reduced. Citing Syl. pt. 6, Alkire, 197 W.Va. 122, 475 S.E.2d 122. In summary, Rivers Edge complains that the punitive damages awarded are not reasonably related to the harm actually sustained by Mr. Peters insofar as Rivers Edge disputes the amount of compensatory damages awarded by the jury. Additionally, Rivers Edge suggests that the 1:1 ratio of punitive to compensatory damages in this case might not be constitutionally permissible. Citing Exxon Shipping Co. v. Baker, — U.S. -, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003).
Rivers Edge further contends that its conduct was not “reprehensible” as contemplated by BMW of North America, Inc. v. Gore, 517 U.S. 559, 576, 116 S.Ct. 1589, 1599, 134 L.Ed.2d 809 (1996), because it simply discharged Mr. Peters based upon its belief that he had violated the “two-day rule” of the collective bargaining agreement. Moreover, Rivers Edge submits that it did not profit from its discharge of Mr. Peters, that its financial position was not accurately portrayed, and that it has expended substantial sums in the litigation of this case.
Mr. Peters responds by stating that the circuit court correctly upheld the amount of punitive damages awarded to him by the jury as such award is supported by the evidence introduced at trial. In this regard, Mr. Peters asserts that the punitive damages awarded in this case bear a reasonable relationship to the harm occasioned by Rivers Edge’s conduct as well as to the compensatory damages awarded in this ease; the jury awarded Mr. Peters punitive damages of $1,000,000 and compensatory damages of $885,089, for a ratio of punitive damages to compensatory damages of 1.13 to 1.
Mr. Peters additionally contends that the punitive damages awarded in this case represent Rivers Edge’s reprehensible conduct. In support of his argument, Mr. Peters suggests that Rivers Edge regularly resorted to “self-help” methods when it believed an employee’s workers’ compensation claim was fraudulent and terminated employees such as Mr. Peters and Mr. Jerry Legg, who testified at trial. On this point, the circuit court properly instructed the jury that it could consider whether Rivers Edge had retaliated against other employees who had applied for or received workers’ compensation benefits but that it could not punish Rivers Edge for harm caused to anyone other than Mr. Peters.
Mr. Peters also suggests that Rivers Edge’s offers of settlement were neither fair nor prompt; no offer of settlement was made during the mandatory mediation ordered by the circuit court, and the only offer of settlement tendered by Rivers Edge was on the eve of trial in an amount equal to less than one-half of Mr. Peters’s compensatory damages. Finally, Mr. Peters states that Rivers Edge misconstrues the cost of litigation factor; it is the cost of litigation to the plaintiff, not to the defendant.
In its punitive damages order of June 29, 2007, the circuit court also examined the amount of punitive damages awarded by the jury and upheld the jury’s $1,000,000 punitive damages award, finding in pertinent part, that,
from th[e] ... evidence adduced at trial, ... this Jury, it being a rational trier of fact, had sufficient evidence before it to conclude that River’s [sic] Edge Mining’s conduct was reprehensible ... and warranted the imposition of punitive damages in the amounts that such were assessed by the Jury for the conduct of the Defendants that had continued even after the initiation of this litigation; and,
[W]hile the ratio of punitive damages to other damages may be supportive of a factor of 1, 3, 5 or possibly more, given the nature and extent of the evidence in a case, in this case the ratio of punitive damages to other damages (approximately 1:1) is well within the ratios considered reasonable by our Supreme Court of Appeals. The ratio of punitive damages to the compensatory and consequential damages awarded to the Plaintiffs [sic] is approximately one to one; and,
[T]he Jury’s award of punitive damages in this controversy, in their amount and in their extent, will help promote settlements in future matters of this type, especially where there is a disparity of bargaining power between the parties; and,
In that the Defendants’ conduct is unlawful in West Virginia, and that the award of punitive damages to the Plaintiffs [sic] is only a factor of one, the punitive damage award is obviously neither arbitrary, grossly excessive, nor in violation of the Defendants’ due process rights ...; and,
[Fallowing the Court’s recent inquiries into whether or not these West Virginia constitutional grounds have been utilized successfully by any defendant arguing against a jury award of punitive damages, the Court has been unable to ascertain any decision by our Supreme Court that has ruled in favor of any such defendant, when the trial court has properly charged the trial jury by the giving of an instruction of law based upon the enumerated factors set out in the Games case. This Court has determined as a matter of fact and law that it did so charge the Jury properly in regard to the articulated Games factors. Moreover, the Court believes from the Jury’s deliberations and the verdict that it returned awarding a ratio of approximately 1:1 in punitive money damages, e.g. approximately $900,000 non-punitive damages juxtaposed to $1 Million in punitive damages, that the Jury properly applied its Games instructions to the relevant facts of this case[.]
On the basis of these findings and conclusions, the circuit court determined that the $1,000,000 punitive damages award was not excessive and upheld the jury’s verdict awarding punitive damages in this amount:
[A]s a result of all of the findings and conclusions set forth above, the Court has expressly determined that it is just and reasonable, as well as equitable and necessary, to DENY the Defendants’ Motion to Set Aside the Punitive Damages Award and to CONFIRM AND AFFIRM the Jury’s Verdict which awarded $1,000,000 in punitive damages against the Defendants^]
The second part of our two-step analysis of punitive damages awards directs us to consider whether the amount of a punitive damages award is excessive. Thus, we are mandated to conduct, once we have determined that “a punitive damage award is justified, ... a review ... to determine if the punitive damage award is excessive under Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991).” Syl. pt. 7, in part, Alkire, 197 W.Va. 122, 475 S.E.2d 122 (emphasis in original). Our inquiry into the reasonableness or excessiveness of a punitive damages award is guided by our holding in Syllabus point 6 of Alkire:
Every post-trial analysis as to the amount of the punitive damage award should be conducted by the trial court exclusively within the boundaries of Syllabus Points 3 and 4 of Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991), and Syllabus Point 15 of TXO Production Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992)[, aff'd, 509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993)]. We remove from the lexicon of reviewing the amount of a punitive damage award the terms “really mean” and “really stupid,” as they were applied in TXO.
197 W.Va. 122, 475 S.E.2d 122. Thus, in addition to the aforementioned factors enumerated in Syllabus points 3 and 4 of Garnes, 186 W.Va. 656, 413 S.E.2d 897, we must also consider our prior case of TXO Production Corp. v. Alliance Resources Corp., in which we held, at Syllabus point 15, that
[t]he outer limit of the ratio of punitive damages to compensatory damages in eases in which the defendant has acted with extreme negligence or wanton disregard but with no actual intention to cause harm and in which compensatory damages are neither negligible nor very large is roughly 5 to 1. However, when the defendant has acted with actual evil intention, much higher ratios are not per se unconstitutional.
187 W.Va. 457, 419 S.E.2d 870 (1992), aff'd, 509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993).
The United States Supreme Court has identified coordinate considerations for a reviewing court to contemplate when assessing the correctness of the amount of a punitive damages award. In BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), the Court identified three factors courts should consider when reviewing awards of punitive damages: (1) the reprehensibility of the defendant’s conduct; (2) the ratio or relationship of punitive damages to compensatory damages; and (3) sanctions imposed for comparable misconduct. See generally State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (applying Gore analysis).
The Gore Court first observed that “[p]erhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” 517 U.S. at 575, 116 S.Ct. at 1599, 134 L.Ed.2d 809 (footnote omitted). To this end,
courts [were instructed to] determine the reprehensibility of a defendant by considering whether: the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.
Campbell, 538 U.S. at 419, 123 S.Ct. at 1521, 155 L.Ed.2d 585 (citing Gore, 517 U.S. at 576-77, 116 S.Ct. at 1589, 134 L.Ed.2d 809). Thus, “[i]t should be presumed a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.” Campbell, 538 U.S. at 419, 123 S.Ct. at 1521, 155 L.Ed.2d 585 (citing Gore, 517 U.S. at 575, 116 S.Ct. at 1599, 134 L.Ed.2d 809).
The Gore Court then continued its analysis, commenting that “[t]he second and perhaps most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff.” Id., 517 U.S. at 580, 116 S.Ct. at 1601, 134 L.Ed.2d 809 (citation omitted). See also Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18, 111 S.Ct. 1032, 1043, 113 L.Ed.2d 1 (1991) (“We need not, and indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that general concerns of reasonableness and adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calculus.”). In other words, “exemplary damages must bear a ‘reasonable relationship’ to compensatory damages[.]” Gore, 517 U.S. at 580, 116 S.Ct. at 1601, 134 L.Ed.2d 809. In this regard, “[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the ... goals of deterrence and retribution ... [,]” Campbell, 538 U.S. at 425, 123 S.Ct. at 1524, 155 L.Ed.2d 585 (citation omitted), but “[t]he precise award in any ease ... must be based upon the facts and circumstances of the defendant’s conduct and the harm to the plaintiff,” id. But see Exxon Shipping Co. v. Baker, — U.S. -, -, 128 S.Ct. 2605, 2633, 171 L.Ed.2d 570 (2008) (concluding that a punitive to compensatory damages ratio of “1:1 ... is a fair upper limit in ... maritime cases” (emphasis added)).
Lastly, the Gore Court recognized that “[c]omparing the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct provides a third indicium of exeessiveness.” Gore, 517 U.S. at 583, 116 S.Ct. at 1603, 134 L.Ed.2d 809. Thus, “a reviewing court engaged in determining whether an award of punitive damages is excessive should ‘accord “substantial deference” to legislative judgments concerning appropriate sanctions for the conduct at issue.’ ” Id. (quoting Brown ing-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 301, 109 S.Ct. 2909, 2934, 106 L.Ed.2d 219 (1989) (O’Connor, J., concurring, in part, and dissenting, in part)).
Applying these authorities to the facts of the case sub jitdice, we are convinced that the jury’s award of $1,000,000 in punitive damages was not excessive, and the circuit court did not err in upholding this award. As we observed in the preceding section, Rivers Edge’s conduct was sufficiently reprehensible to warrant punitive damages in this amount. Among other things, the evidence adduced at trial showed that Rivers Edge was indifferent to Mr. Peters’s health and safety by doubting the credibility of his workers’ compensation claim, placing him under surveillance, and terminating him for having missed work as a result of his work-related injury. Rivers Edge’s misconduct continued for a period of time and was not a single, isolated incident. Moreover, Rivers Edge’s actions were malicious. In short, Rivers Edge’s conduct “is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.” Campbell, 538 U.S. at 419, 123 S.Ct. at 1521, 155 L.Ed.2d 585 (citation omitted).
Furthermore, the amount of punitive damages awarded in this case is not so excessive as to “raise a suspicious judicial eyebrow.” TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 481, 113 S.Ct. 2711, 2732, 125 L.Ed.2d 366 (1993) (O’Connor, J., dissenting). In Syllabus point 15 of TXO, we held that
[t]he outer limit of the ratio of punitive damages to compensatory damages in eases in which the defendant has acted with extreme negligence or wanton disregard but with no actual intention to cause harm and in which compensatory damages are neither negligible nor very large is roughly 5 to 1. However, when the defendant has acted with actual evil intention, much higher ratios are not per se unconstitutional.
187 W.Va. 457, 419 S.E.2d 870. Here, the jury awarded Mr. Peters punitive damages in the amount of $1,000,000 and compensatory damages in the amount of $885,107. Thus, the actual ratio of punitive damages to compensatory damages in this case is 1.13 to 1, or approximately 1:1. This ratio is not excessive and is well within the constitutionally permissible limits for punitive damages awards.
Finally, there are no comparable criminal or civil penalties to punish employers who wrongfully terminate employees who have applied for or received workers’ compensation benefits. See Vandevender v. Sheetz, Inc., 200 W.Va. 591, 605, 490 S.E.2d 678, 692 (1997) (per curiam) (“[T]he trial court correctly concluded that it was without civil or criminal penalties for comparison purposes.”). The governing statutory law simply does not provide for such penalties. See W. Va.Code § 23-5A-1, et seq. Therefore, the imposition of a punitive damages award is a proper method by which to punish Rivers Edge for its misconduct in wrongfully terminating Mr. Peters. Cf. Boyd v. Goffoli, 216 W.Va. 552, 608 S.E.2d 169 (2004) (upholding punitive damages award in amount greater than authorized civil penalties for same misconduct).
Having therefore determined that the jury was properly instructed and that the circuit court correctly upheld the jury’s verdict awarding Mr. Peters punitive damages of $1,000,000, we affirm the circuit court’s ruling upholding the punitive damages awarded in this case.
IV.
CONCLUSION
For the foregoing reasons, the October 17, 2007, order of the Circuit Court of Boone County is hereby affirmed.
Affirmed.
. Mr. Peters began work with Rivers Edge on November 2, 2002, and was classified by Rivers Edge as a "temporary employee.” In the written arbitration decision issued October 19, 2004, the arbitrator explains Mr. Peters's role as a temporary employee:
As a Temporary Employee, the Grievant [Mr. Peters] was assigned to "B” crew and filled in for the absent permanent employees. The "B” crew worked the 4:00 pm to 2:00 am shift four (4) days per week. Employees know the days their crew is scheduled to work six (6) months in advance.
. Mr. Peters worked the evening shift, which starts at 4:00 p.m. and ends at 2:00 a.m. the following day.
. At the time of the events at issue herein, Mr. Peters had his own house in Boone County and did not live in his mother’s home.
. There existed at the Rivers Edge Mine a collective bargaining agreement between the mine and the mine ■ employees’ labor union, i.e., United Mine Workers of America, which governed employment conditions at said mine and defined the rights and responsibilities of both the employer and the employees. See National Bituminous Coal Wage Agreement of 1998. The "two-day rule” refers to article XXII, § 4 of the collective bargaining agreement which provides “[w]hen any Employee absents himself from work for a period of two consecutive days without the consent of the employer, other than for proven sickness, he may be discharged]!]”
. W. Va.Code § 23-5Á-1 (1978) (Repl. Vol. 2005) prohibits employers from retaliating against employees who have applied for and/or received workers’ compensation benefits: "No employer shall discriminate in any manner against any of his present or former employees because of such present or former employee's receipt of or attempt to receive benefits under this chapter.”
. W. Va.Code § 23-5A-3(b) (1990) (Repl. Vol. 2005) directs that
[i]t shall be a discriminatory practice within the meaning of section one of this article for an employer to fail to reinstate an employee who has sustained a compensable injury to the employee's former position of employment upon demand for such reinstatement provided that the position is available and the employee is not disabled from performing the duties of such position. If the former position is not available, the employee shall be reinstated to another comparable position which is available and which the employee is capable of performing. A comparable position for the purposes of this section shall mean a position which is comparable as to wages, working conditions and, to the extent reasonably practicable, duties to the position held at the time of injury. A written statement from a duly licensed physician that the physician approves the injured employee's return to his or her regular employment shall be prima facie evidence that the worker is able to perform such duties. In the event that neither the former position nor a comparable position is available, the employee shall have a right to preferential recall to any job which the injured employee is capable of performing which becomes open after the injured employee notifies the employer that he or she desired reinstatement. Said right of preferential recall shall be in effect for one year from the day the injured employee notifies the employer that he or she desires reinstatement: Provided, That the employee provides to the employer a current mailing address during this one year period.
. Mr. Peters also averred that Rivers Edge violated W. Va.Code § 23-5A-3(a) (1990) (Repl. Vol. 2005) because it unlawfully terminated his employment while he was off work and receiving workers’ compensation benefits. See W. Va. Code § 23-5A-3(a) (1990) (Repl. Vol. 2005) ("It shall be a discriminatory practice within the meaning of section one [§ 23-5A-1] of this article to terminate an injured employee while the injured employee is off work due to a compensable injury within the meaning of article four [§§ 23-4-1 et seq.] of this chapter and is receiving or is eligible to receive temporary total disability benefits, unless the injured employee has committed a separate dischargeable offense. A separate dischargeable offense shall mean misconduct by the injured employee wholly unrelated to the injury or the absence from work resulting from the injury. A separate dischargeable offense shall not include absence resulting from the injury or from the inclusion or aggregation of absence due to the injury with any other absence from work.”). Additionally, Mr. Peters alleged that Rivers Edge had discriminated against him on the basis of age and disability, see W. Va.Code § 5-11-9(1) (1998) (Repl. Vol. 2006), and that his termination constituted an “unlawful retaliatory discharge” as contemplated by Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978) (Harless I). However, Mr. Peters abandoned these additional theories and proceeded to trial solely upon his claims under W. Va.Code §§ 23-5A-1 and 23-5A-3(b), alleging retaliatory discharge based upon his receipt of workers’ compensation benefits.
. Section 301 of the Labor Management Relations Act is codified at 29 U.S.C. § 185 and affords federal courts jurisdiction over cases involving the interpretation of a collective bargaining agreement. See 29 U.S.C. § 185(a) (1947) (“Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.”). For further treatment of the preemption issue, see Section III.A, infra.
. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206 (1985) ("[Wjhen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between parties in a labor contract, that claim must either be treated as a § 301 claim ... or dismissed as pre-empted by federal labor-contract law.” (citation omitted)); Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 456, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957) ("[Tjhe substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws.” (citation omitted)).
. In its judgment order, the circuit court awarded Mr. Peters an additional $49,259 for prejudgment interest on his back pay award in accordance with W. Va.Code § 56-6-31 (2006) (Supp. 2008) and Rodriguez v. Consolidation Coal Co., 206 W.Va. 317, 524 S.E.2d 672 (1999) (per curiam).
. In addition to the above-quoted standards of review, additional standards of review specific to the issues raised by the parties will be discussed in connection with our discussion and decision of those issues in Section III, infra.
. While we appreciate Rivers Edge's recognition of precedent decided by the United States Supreme Court after we issued our opinion in Yoho v. Triangle PWC, Inc., 175 W.Va. 556, 336 S.E.2d 204 (1985), which precedent requires preemption issues to be decided on a case-by-case basis, we note that none of the authority cited by Rivers Edge overrules our decision in Yoho.
Moreover, Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), is not as distinguishable from our holding in Yoho as Rivers Edge suggests. Although the Court in Lingle recognized that there may arise cases in which a state may grant workers a nonnegotiable right the resolution of which nevertheless requires interpretation of a collective bargaining agreement, Lingle, 486 U.S. at 408-10, 108 S.Ct. at 1883, 100 L.Ed.2d 410, the ultimate preemption inquiry remains whether application of state law "requires the interpretation of a collective-bargaining agreement." Lingle, 486 U.S. at 413, 108 S.Ct. at 1885, 100 L.Ed.2d 410. This is the same analysis we applied in reaching our decision in Yoho. Yoho, 175 W.Va. at 560, 336 S.E.2d at 208.
Finally, to the extent that Rivers Edge urges this Court to adopt a case-by-case approach to preemption issues, we have already done so in Greenfield v. Schmidt Baking Co., Inc., 199 W.Va. 447, 485 S.E.2d 391 (1997). See Syl. pt. 4, Greenfield v. Schmidt Baking Co., Inc., 199 W.Va. 447, 485 S.E.2d 391 (1997) ("An application of state law is pre-empted by § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185 (1947) (1994 ed.), only if such application requires the interpretation of a collective-bargaining agreement.”); Syl. pt. 5, Greenfield, 199 W.Va. 447, 485 S.E.2d 391 ("A determination of pre-emption under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185 (1947) (1994 ed.), requires a fact specific analysis.”).
. In his "Third Cause of Action,” Mr. Peters additionally alleged that “[t]he defendants terminated the plaintiff's employment in violation of West Virginia Code § 23-5A-3(a).” However, because Mr. Peters abandoned this claim before the trial of his case, it is not necessary for us to consider whether this claim is preempted. See supra note 8.
. By contrast, res judicata, or claim preclusion, “is a doctrine which bars the subsequent litigation of any cause of action which has been previously tried on the merits by a court of competent jurisdiction, and includes within its bar issues which might have been tried.” Mellon-Stuart Co. v. Hall, 178 W.Va. 291, 298, 359 S.E.2d 124, 131 (1987). Accord State v. Miller, 194 W.Va. 3, 9, 459 S.E.2d 114, 120 (1995) ("Res judicata generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action.... A claim is barred by res judicata when the prior action involves identical claims and the same parties or their privies.” (citations omitted)).
. Cf. Syl. pt. 1, In re Estate of McIntosh, 144 W.Va. 583, 109 S.E.2d 153 (1959) (discussing doctrine of res judicata).
. Cf. Syl. pt. 4, Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va. 469, 498 S.E.2d 41 (1997) (describing elements of res judicata).
. Courts in other jurisdictions who have considered whether issues resolved in arbitration are identical to issues raised in subsequent civil litigation likewise have concluded that collateral estoppel does not bar an aggrieved employee from litigating such issues anew in civil proceedings alleging workers' compensation discrimination. See, e.g., Truax v. EM Indus., Inc., 107 Ohio App.3d 210, 668 N.E.2d 524, 529 (1995) ("Collateral estoppel precludes relitigation only when the identical issue was actually decided in the former case.... [T]he issues decided in an arbitration and a statutory claim for retaliatory discharge are not the same.”); Carrozza v. Texas Div.-Tranter, Inc., 876 S.W.2d 173, 176 (Tex. App.) ("[Ejven when an arbitration decision [under a collective bargaining agreement] is adverse to an employee, he still has the right to bring a wrongful discharge action under [the Workers’ Compensation Act].” (citations omitted)), rev’d on other grounds, 876 S.W.2d 312 (Tex.1994) (per curiam). See also Goodwin v. Board of Trs. of the Univ. of Illinois, 442 F.3d 611, 621 (7th Cir.2006) (finding no collateral estoppel bar because issues determined by hearing examiner regarding circumstances surrounding employee's discharge were "similar" to issues raised in civil action alleging wrongful discharge but not "identical” thereto); Blanchette v. School Comm. of Westwood, 427 Mass. 176, 181, 692 N.E.2d 21, 25-26 (1998) (deciding that prior arbitration, under collective bargaining agreement, did not preclude aggrieved employee's subsequent civil litigation alleging retaliation in violation of statutory civil rights law); Domingues v. City of San Antonio, 985 S.W.2d 505 (Tex.App.1998) (concluding that collateral estoppel did not bar aggrieved employee from relitigating reason for employer’s disciplinary decision in subsequent proceeding under state whistleblower law where arbitrator previously found that employee had engaged in misconduct warranting discipline). But see Castillo v. City of Los Angeles, 111 Cal.Rptr.2d 870, 875, 92 Cal.App.4th 477, 481 (2001) (“The issue, wrongfulness of the dis charge, is identical in the administrative proceeding and this suit.”).
. This holding is consistent with the decisions of other jurisdictions considering whether an award of front pay is an available remedy in a case alleging workers' compensation discrimination. See, e.g., Grillasca-Pietri v. Portorican American Broad. Co., Inc., 233 F.Supp.2d 258 (D.P.R.2002); Breitenfeldt v. Long Prairie Packing Co., Inc., 48 F.Supp.2d 1170 (D.Minn.1999); Ferry v. Cundiff Steel Erectors, Inc., 218 S.W.3d 390 (Ky.Ct.App.2006); Sicklesmith v. Chester Hoist, 169 Ohio App.3d 470, 863 N.E.2d 677 (2006); Goodman v. Boeing Co., 75 Wash.App. 60, 877 P.2d 703 (1994), aff'd, 127 Wash.2d 401, 899 P.2d 1265 (1995).
. See Sections III.D.l and III.D.2, infra.
. Although we note that our prior decision in Thompson places the determination of the amount of an award of front pay within the jury's consideration, there exists a split of authority on the subject. Some courts permit, like we have, the jury to determine the amount of front pay damages to be awarded. See, e.g., Figgins v. Advance America Cash Advance Ctrs. of Michigan, Inc., 482 F.Supp.2d 861 (E.D.Mich.2007); Cole v. Delaware Tech. & Cmty. Coll., 459 F.Supp.2d 296 (D.Del.2006); Shesko v. City of Coatesville, 324 F.Supp.2d 643 (E.D.Pa.2004); Todaro v. County of Union, 392 N.J.Super. 448, 920 A.2d 1243 (2007); Sicklesmith v. Chester Hoist, 169 Ohio App.3d 470, 863 N.E.2d 677 (2006); Blaney v. International Ass’n of Machs. & Aerospace Workers, Dist. No. 160, 151 Wash.2d 203, 87 P.3d 757 (Wash.2004). However, other jurisdictions have concluded that because awards of front pay provide equitable relief, the court should determine not only whether front pay is proper in a particular case but also the amount of front pay that should be awarded. See, e.g., Mattenson v. Baxter Healthcare Corp., 438 F.3d 763 (7th Cir.2006); Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368 (1st Cir.2004); Cline v. Wal-Mart Stores, Inc., 144 F.3d 294 (4th Cir.1998); Harding v. Cianbro Corp., 498 F.Supp.2d 337 (D.Me.2007); Carpenter v. Tyler Indep. Sch. Dist., 429 F.Supp.2d 848 (E.D.Tex.2006), aff'd, 226 Fed. Appx. 400 (5th Cir.2007) (per curiam); Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790 (Ky.2004); Brady v. Curators of Univ. of Missouri, 213 S.W.3d 101 (Mo.Ct.App.2006). A third distinction has been made by courts that place the calculation of the amount of the front pay award within the province of the court, but permit the consideration of the jury's assessment of the evidence thereon. Compare Watkins v. Input/Output, Inc., 531 F.Supp.2d 777, 780 (S.D.Tex.2007) (concluding that court should determine amount of front pay award but permitting court to "determine the amount of the award with the assistance of an advisory jury question”) with Broadnax v. City of New Haven, 415 F.3d 265, 272 (2d Cir.2005) (describing jury’s role as "non-advisory jury determination”). For a discussion of the differing views of the various United States Circuit Courts of Appeal, see generally Bordeau v. Saginaw Control & Engineering, Inc., 477 F.Supp.2d 797 (E.D.Mich.2007).
. On appeal to this Court, the parties do not dispute that the circuit court correctly instructed the jury with respect to punitive damages. Within its punitive damages order of June 29, 2007, the circuit court restated its charge to the jury in this regard-
In direct reliance upon the holding in Games, this Court charged and instructed the jury as follows:
(0 Punitive or exemplary damages are intended to punish a Defendant, and that a plaintiff is not entitled to recover punitive damages as a matter of right. Punitive damages can be awarded only if you believe from a preponderance of all of the evidence in this case that Defendant [Rivers Edge] acted willfully, wantonly, maliciously, or with criminal indifference toward its obligations in relationship to the employment of Plaintiff George Peters; and,
(ii) In order to recover punitive damages, Plaintiff George Peters must prove actual malice or wantonness on the part of Defendant or must prove such circumstances as warrant an inference of malice or wanton intention on the part of Defendant to wrong Plaintiff George Peters. The jury may award punitive damages only if they believe from a preponderance of the evidence that there has been such reckless and wanton disregard of Plaintiff's right as to show a malignant spirit on the part of Defendant; and,
(iii) The Court further instructs the jury that punitive damages, if awarded, must bear a reasonable relationship to the potential and actual harm caused. Punitive damages must also bear [sic] reasonable relationship to compensatory damages; and,
(iv) The Court instructs the jury that the mere existence of a discriminatory event, such as a termination on the basis of workers' compensation discrimination, does not automatically give rise to the recovery of punitive damages. Indeed, Plaintiff George Peters must establish by a preponderance of the evidence that Defendant engaged in further egregious conduct. In other words, Plaintiff George Peters must establish by a preponderance of the evidence that Defendant's conduct was wanton, willful or malicious to a degree that warrants damages above and beyond full compensation to him for all injuries he may have suffered as a result of Defendant's actions; and,
(v) Therefore, Plaintiff George Peters may only recover punitive damages if he prevails on his workers' compensation discrimination claim and if he proves by a preponderance of the evidence that Defendant did more than simply discharge him but also engaged in other egregious conduct; and,
(vi) You are instructed that in assessing the amount of punitive damages, you should take into consideration all of the circumstances surrounding the particular occurrence, including the nature of the wrongdoing, the extent of harm inflicted, the intent of the party committing the act, and the wealth of the perpetrator as well as any mitigating circumstances; and,
(vii) You are instructed that in assessing the amount of punitive damages, you are not allowed to use punitive damages as a way to punish Defendant for harm that may have been caused to any individual who is not [sic] party to the lawsuit. In other words, in determining an amount of punitive damages, you are not permitted to consider harm that may have been caused to an individual who is not [sic] party to this lawsuit; and,
(viii) If you find from the evidence in this case that the defendant is guilty of wanton, willful, or malicious conduct, or criminal indifference to the civil obligations affecting the rights of Plaintiff George Peters, you may award the plaintiff punitive damages in such sum as you believe sufficient to punish the defendant and to discourage such future conduct; and,
(ix) In awarding punitive damages you may consider the following factors in assessing the amount of punitive damages:
- You may consider whether defendant profited from its wrongful conduct, and if you find defendant did profit from its conduct you may remove the profit and your award should be in excess of the profit, so that the award discourages future bad acts by the defendant.
- As a matter of fundamental fairness, punitive damages should bear a reasonable relationship to compensatory damages.
- In determining the amount of punitive damages, the financial position of defendant is relevant; and,
(x) The Court instructs the jury that you may consider evidence of workers' compensation discrimination by defendants against persons other than George Peters in determining the reprehensibility of the defendants’ conduct.
. The circuit court’s findings upon its review of these Games factors will be discussed in Sections III.D.1 and III.D.2, infra.
. We wish to commend the circuit court for the completeness of its punitive damages order, in which the court thoroughly addressed and considered the various cases comprising this Court’s punitive damages jurisprudence.
. In its order, the circuit court identified Amy Goins as Mr. Peters’s expert witness. However, the trial transcript indicates that William E. Cobb, not Ms. Goins, testified on Mr. Peters's behalf.
. See supra Section I for the relevant text of the jury’s verdict form,
. See also Cline v. Joy Mfg. Co., 172 W.Va. 769, 111 n. 6, 310 S.E.2d 835, 838 n. 6 (1983) ("The usual meaning assigned to 'wilful,' 'wanton' or ‘reckless’ ... is that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a cottscious indifference to the consequences, amounting almost to willingness that they shall follow; and it has been said that this is indispensable." (emphasis in original)); Stone v. Rudolph, 127 W.Va. 335, 345-46, 32 S.E.2d 742, 748 (1944) (defining "willful negligence” as "impl[ying] an act intentionally done in disregard of another's rights, or omission to do something to protect the rights of another after having had such notice of those rights as would put a prudent man on his guard to use ordinary care to avoid injury” (internal quotations and citation omitted)).
. Since the occurrence of the events giving rise to the instant litigation, the Legislature has amended W. Va.Code § 23-4-1, although the quoted language remains unchanged. See W. Va.Code § 23-4-1 (a) (2008) (Supp.2008).
. That is not to say, however, that an employer may not use surveillance techniques to investigate the veracity of an injured employee’s claim for workers’ compensation benefits. In the case sub judice, though, we find that Rivers Edge’s use of surveillance combined with all of the other facts and circumstances present in this case justified the jury’s conclusion to award punitive damages to Mr. Peters. | [
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PER CURIAM:
On January 17, 2008, the appellant, hereafter Mr. Biehl, was found guilty of first degree murder for the beating and strangulation death of Sharron I. Farren of Ripley, West Virginia. Mr. Biehl’s jury did not recommended mercy and on February 20, 2008, the trial court sentenced Mr. Biehl to life imprisonment without the possibility of parole. This appeal followed.
For the reasons set forth herein, we affirm Mr. Biehl’s conviction and sentence.
I.
Background
On January 7, 2007, the decedent was murdered in her home. The State Medical Examiner testified that the decedent died from asphyxia attributable to ligature and manual strangulation and that the force of the strangulation was such that it broke a bone above the decedent’s esophagus and left indentations on her neck. The Medical Examiner further testified that the decedent was beaten in the face, fracturing her nose, and also that the decedent lived approximately two minutes during her strangulation.
In investigating the decedent’s murder, law enforcement investigators learned that Mr. Biehl, who was homeless and unemployed, had been living in a guest room at the decedent’s residence at the decedent’s invitation. Investigators also learned from several witnesses that Mr. Biehl had been seen at the decedent’s residence on the day and evening of the murder. However, following discovery of the decedent’s body the morning after her death, Mr. Biehl could not be located. Deeming Mr. Biehl to be a person of interest, law enforcement authorities issued a bulletin requesting that Mr. Biehl be picked up for questioning.
In the ensuing investigation, investigators learned that shortly prior to the decedent’s death Mr. Biehl had been in an argument with the decedent over Mr. Biehl’s drinking beer, and at one point Mr. Biehl had “jumped up” at the decedent and “got real mean at her.” Investigator’s also learned that Mr. Biehl made several calls from the decedent’s telephone. These included calls to Mr. Biehl’s mother and to an aunt of Mr. Biehl’s who lived in Florida. Investigator’s also learned that later in the evening of the decedent’s death, Mr. Biehl was seen at a convenience store located approximately 1 mile outside of Ripley, WV, where Mr. Biehl asked employees of the store for directions. Trial testimony established that Mr. Biehl was planning to hitchhike to Florida.
On January 10, 2007, Mr. Biehl was located at the Union Mission Shelter in Charleston, West Virginia, and taken to the Kanawha County Sheriffs Department where Mr. Biehl was Mirandized. After agreeing to talk with investigators, Mr. Biehl gave a lengthy rambling statement. In this statement, Mr. Biehl admitted that he had lived at the decedent’s residence. However, Mr. Biehl initially claimed that the decedent had thrown him out of the house on New Year’s Day. Mr. Biehl subsequently amended that statement to say that he had lived in the decedent’s residence for four or five days, and that he left of his own accord.
Mr. Biehl also repeatedly denied being in the decedent’s residence on the day of her murder and it was only when confronted with evidence of the calls he had made from the decedent’s residence on the day of the decedent’s death that Mr. Biehl admitted to being there that day. However, Mr. Biehl at this point attempted to implicate others in the decedent’s death.
When Mr. Biehl was asked whether he had struck the decedent, Mr. Biehl repeatedly denied that he had, stating that the decedent was in good health when he left her residence. When asked about a cut on Mr. Biehl’s knuckle, Mr. Biehl initially stated that he had cut it on a door handle. Mr. Biehl subsequently amended that statement and said that he had been arguing with the decedent and cut his knuckle when he hit a door jam. After further questioning, Mr. Biehl admitted that he had hit the decedent in her nose.
Mr. Biehl was subsequently arrested and charged with the decedent’s murder. Following a jury trial, Mr. Biehl was found guilty of first degree murder and the jury did not make a recommendation of mercy.
II.
Standard of Review
On appeal, Mr. Biehl presents three assignments of error. First, that the evidence submitted at trial was insufficient to sustain a conviction for first degree murder, and therefore the trial court erred in not granting a judgment of acquittal following close of the state’s case-in-ehief. Second, that the trial court erred in admitting evidence that Mr. Biehl struck the decedent in the face shortly before prior to the decedent’s death. Third, that the trial court erred in not submitting to the jury the lessor included offenses of battery, unlawful assault and malicious assault. For purposes of clarity, we set forth our standard of review at the beginning of our discussion for each of these assigned errors.
III.
Discussion
A. Sufficiency of the Evidence
We have previously held that “[a] reviewing court should not reverse a criminal case on the facts which have been passed upon by the jury, unless the court can say that there is reasonable doubt of guilt and that the verdict must have been the result of misapprehension, or passion and prejudice.” Syllabus Point 3, State v. Sprigg, 103 W.Va. 404, 137 S.E. 746 (1927). In Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), we further held that:
The function of an appellate court when reviewing the sufficiency of the evidence to support á criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.
With these standards in mind, we address Mr. Biehl’s argument that the evidence was insufficient to sustain a conviction.
The record before us shows that several witnesses testified at Mr. Biehl’s trial that Mr. Biehl had been living at the decedent’s residence as a guest and had first started living there around New Year’s Day 2007. The day prior to the decedent’s death, Dianna Thurman, a friend of the decedent’s, stayed with the decedent and Mr. Biehl. Ms. Thurman testified that while there, she witnessed Mr. Biehl and the decedent argue over beer and that Mr. Biehl at one point “jumped up” at the decedent and “got real mean at her.”
Several witnesses also testified to seeing Mr. Biehl at the decedent’s residence on the day of her murder. These witnesses included Marvin Brown, who testified that he was at the decedent’s house for several hours with both the decedent and Mr. Biehl, but that he left and went to Charleston and that Mr. Biehl and the decedent remained at the decedent’s home. Later that evening, Mr. Biehl called Mr. Brown’s cell phone approximately ten to fifteen times.
Kimberly Shinn testified to seeing Mr. Biehl, on the day of the decedent’s death, walk into the decedent’s house around 12:30 to 1:00 carrying a case of beer. Bo Watkins, who subsequently discovered the decedent’s body, testified that he saw Mr. Biehl at the decedent’s home around 1:00 or 2:00 in the afternoon. Ronald Hatcher testified that he delivered a kitten to the decedent around 5:30 to 6:00 on the evening of the decedent’s death, and that both the decedent and Mr. Biehl were present at that time. Approximately one hour later, at 7:00 to 7:10 p.m., a local police officer testified that he saw Mr. Biehl walking across a church parking lot, which was located approximately 3/4 of a mile from the decedent’s residence.
In contrast to the testimony clearly placing Mr. Biehl at the decedent’s residence on the day of her death, evidence introduced at Mr. Biehl’s trial also included Mr. Biehl’s statement. In this statement, summarized supra, Mr. Biehl initially repeatedly denied being at the decedent’s residence on the day of her murder, only to subsequently admit to being at the decedent’s home when confronted with evidence proving that he was there. Mr. Biehl’s statement also included repeated denials to having struck the decedent in the face, only to subsequently admit to having hit her in the nose.
Evidence at Mr. Biehl’s trial also established that the decedent was found bent over lying on her face and that she had been, in addition to being strangled to death with a telephone cord, beaten in the face breaking her nose. The jury also heard evidence that around the time of the decedent’s death, Mr. Biehl was seen approximately 3/4 of a mile from the decedent’s residence, and that Mr. Biehl that he had made calls to an Aunt in Florida and further that Mr. Biehl had asked at least two people for directions.
Notwithstanding this evidence, Mr. Biehl argues that the State failed to submit sufficient evidence to prove that he had murdered the decedent. In support of this argument, Mr. Biehl points to DNA evidence recovered from the telephone cord, which included the decedent’s DNA and the DNA of an unknown person. Mr. Biehl argues that the absence of his DNA on the telephone cord establishes that he was not the murderer and that the state failed to prove otherwise.
Having fully considered Mr. Biehl’s arguments, we find that the State submitted sufficient evidence whereby a jury could have found that Mr. Biehl murdered the decedent. While the evidence is largely circumstantial, we have repeatedly held that “[t]he weight of circumstantial evidence, as in the ease of direct evidence, is a question for jury determination, and whether such evidence excludes, to a moral certainty, every reasonable hypothesis, other than that of guilt, is a question for the jury.” Syllabus Point 4, State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967). In the present ease, the evidence supports the jury’s findings. Mi*. Biehl’s repeated denials to being present at the decedent’s home on the day of her death were clearly false, a point ultimately conceded by Mr. Biehl in his statement. These false statements were fairly considered by the jury. Similarly, and perhaps the most crucial piece of evidence against Mr. Biehl is the fact that the Medical Examiner established that the decedent had a bloodied broken nose at the time of her death.
The jury heard of Mr. Biehl’s repeated denials to having struck the decedent in the face, and of Mr. Biehl’s ultimately admitting to hitting the decedent in the nose. When considered with the evidence that the decedent had a bloodied, broken nose at the time of her death, and that the decedent was shortly afterwards seen leaving the decedent’s residence asking for directions, the jury could properly infer that the decedent’s violent death was at the hands of Mr. Biehl. The fact that Mr. Biehl’s DNA was not on the telephone cord is not proof that he was not the murderer under the facts of this ease.
B. Evidence that Mr. Biehl Struck the Decedent
Mr. Biehl argues that he trial court erred in admitting evidence that Mr. Biehl had struck the decedent in the nose without conducting a proper Rule 404(b) hearing under our decision in State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). In response, the State argues that it did not offer evidence that Mr. Biehl had stuck the decedent in the nose as prior bad act evidence, but rather res gestae evidence offered as part and parcel of the proof charged in the indictment.
We have previously held that “[r]ulings on the admissibility of evidence are largely within a trial court’s sound discretion and should not be disturbed unless there has been an abuse of discretion[.]” Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983). With this standard in mind, we turn to the issues raised in this assigned error.
Under our jurisprudence, there is a clear distinction between evidence offered as res jestae of the offense charged and Rule 404(b) evidence. This distinction is between evidence categorized as intrinsic in nature and extrinsic in nature. In Syllabus Point 3, State v. Ferguson, 165 W.Va. 529, 270 S.E.2d 166 (1980), overruled on other grounds by State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983), we held that “[ejvents, declarations and circumstances which are near in time, causally connected with, and illustrative of transactions being investigated are generally considered res gestae and admissible at trial.” See also State v. Dennis, 216 W.Va. 331, 351-352, 607 S.E.2d 437, 457-458 (2004), citing United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990) (“ ‘Other act’ evidence is ‘intrinsic’ when the evidence of the other act and the evidence of the crime charged are ‘inextricably intertwined’ or both acts are part of a ‘single criminal episode’ or the other acts were ‘necessary preliminaries’ to the crime charged”).
This is not to say, however, that prosecutors have free reign to introduce evidence of other crimes under the guise that it is res gestae. Instead, we have held that “[ojther criminal act evidence admissible as part of the res gestae or same transaction introduced for the purpose of explaining the crime charged must be confined to that which is reasonably necessary to accomplish such purpose.” Syllabus Point 1, State v. Spicer, 162 W.Va. 127, 245 S.E.2d 922 (1978).
Mr. Biehl argues that evidence pertinent to the fact that he had stuck the decedent in the nose with his fist prior to her death was extrinsic in nature, constituting evidence of other bad acts governed by Rule JM(b) of our Rules of Evidence. We disagree. The evidence clearly established that at approximately 6:00 p.m., the decedent was seen—for the last time before her death—by a witness and no testimony was offered to establish that the decedent had a bloodied broken nose at that time. Approximately one hour later, Mr. Biehl is seen approximately 3/4 of a mile away from the decedent’s residence and further evidence established that a short time later he was outside of town asking for directions. The evidence clearly established that Mr. Biehl did, in fact, punch the decedent in the nose, and that the decedent at the time of her death had a bloodied and broken nose. Under these circumstances evidence of Mr. Biehl’s striking the decedent in the nose was not extrinsic to the crime charged — first degree murder — but intrinsic evidence proving essential element[s] of the offense, including malice.
Accordingly, we find no error in the trial court’s admission of evidence that Mi’. Biehl punched the decedent in the nose with his first shortly prior to her death.
C. Lessor Included Offenses
Mr. Biehl argues as his final assignment of error that the trial court erred in refusing to instruct the jury on the offenses of battery, unlawful assault and malicious assault. The state argues in response that the trial court did not commit error in refusing Mr. Biehl’s requested instructions, noting that Mr. Biehl concedes that the decedent did not die as a result of Mr. Biehl’s punching her in the nose, but rather that the cause of death was asphyxiation by strangulation.
We have previously held that “[a]s a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo.” Syllabus Point 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996). In Syllabus Point 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), we further held that:
A trial court’s instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge aceurately reflects the law. Deference is given to a trial court’s discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.
With these standards in mind, we turn to the issue raised.
The record shows that the trial court instructed the jury on the elements of first degree murder, and the lessor offenses of second degree murder and voluntary manslaughter. In refusing to give Mr. Biehl’s requested instructions, the trial court reasoned that Mr. Biehl had not introduced any evidence to dispute that the decedent died by asphyxiation, and there was no dispute by Mr. Biehl that Mr. Biehl’s punching the decedent in the nose, breaking it, did not cause the decedent’s death.
We have previously held, in addressing instructions for lessor included offenses in murder trials, that:
Upon .an indictment for murder, in the form prescribed by ... the Code ..., which does not therein also aver facts constituting an assault or assault and battery, it is error in an instruction defining the offenses of which the accused may be found guilty under the indictment, to tell them, if not finding him guilty of the graver offenses covered by the indictment, they may find him guilty of assault and battery.
State v. Lutz, 85 W.Va. 330, 101 S.E. 434 (1919).
In Syllabus Point 2, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982), we further held that “[w]here there is no evidentiary dispute or insufficiency on the elements of the greater offense which are different from the elements of the lesser included offense, then the defendant is not entitled to a lesser included offense instruction.” In State v. Neal, 179 W.Va. 705, 711, 371 S.E.2d 633, 639 (1988), we further noted that:
The statutory indictment for murder does not require the State to aver the manner in which the offense was committed. Code, 61-2-1 [1931]. As noted in Watson [99 W.Va. 34, 127 S.E. 637 (1925) ], State v. Lutz, 85 W.Va. 330, 101 S.E. 434 (1919) and Holland v. Coiner, 293 F.Supp. 203 (N.D.W.Va.1968), when the State avers facts concerning the commission of murder, the indictment may enable the accused to receive a lesser included offense instruction based on the additional facts contained in the indictment. None of these cases suggest that the additional averment concerning the manner in which the murder was committed constitutes a separate offense.
Having fully considered the record before us, we find no error in the trial court’s refusing Mr. Biehl’s requested instructions. The indictment in this case followed the statutory language, averring that Mr. Biehl “on a day in January 2007, in Jackson County, West Virginia, did feloniously, willfully, maliciously, slay, kill, and murder Sharon I. Farren, in violation of the West Virginia Code 63-1-3-1 against the peace and dignity of the state.” There are no averment of facts in the indictment that would entitle Mr. Biehl to the requested instructions. Further, Mr. Biehl did not contest that the decedent was murdered by asphyxiation, but rather contested only that he was the murderer. This is the fact scenario that our holding in Syllabus Point 2, State v. Neider, supra, addresses.
IV.
Conclusion
For the reasons set forth herein, the judgment of the Circuit Court of Jackson County is affirmed.
Affirmed.
. One the element of malice, the Medical Examiner also testified that the decedent was not only strangled by a telephone cord, but by manual strangulation — hands around her throat with such force as to break a bone in the decedent’s throat. This evidence, when considered with the evidence that the decedent was beaten in the face with such force as to break her nose, is evidence that the decedent died a particularly brutal, painful, death and is competent evidence on the issue of malice. | [
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PER CURIAM:
This case is before the Court for a second time. The underlying matter involves an Ohio County Circuit Court action brought by Dr. Robert J. Zaleski [hereinafter “Dr. Zaleski”], an orthopedic surgeon, following the decision of the West Virginia Mutual Insurance Company [hereinafter “the Mutual”] to deny renewal of Dr. Zaleski’s medical malpractice insurance coverage.
In the previous appeal, the Mutual appealed the circuit court’s grant of partial summary judgment to Dr. Zaleski and the denial of the Mutual’s motions seeking dismissal of the ease or for summary judgment. Therein, we considered the issue of whether the circuit court erred in finding that the Mutual is a “state actor” for the purposes of affording its policyholders procedural due process upon review of policy renewal determinations. We affirmed the circuit court’s ruling granting partial summary judgment to Dr. Zaleski and determined that the Mutual is a state actor, and thus, held that physicians who have been afforded the benefit of medical liability insurance coverage through the Mutual are entitled to due process protection in seeking review of any non-renewal decision made by the company. In so holding, we reversed the circuit court’s denial of the Mutual’s dismissal motion and order to reinstate insurance coverage, and remanded the case to the circuit court with directions to (1) remand the question of non-renewal to the Mutual for further hearing in conformity with this Court’s opinion, and (2) conduct such further proceedings not inconsistent with the Court’s opinion as may be required, including the resolution of any disputes which may arise in the course of the Mutual hearing on non-renewal.
The current matter now before the Court involves the Mutual’s appeal of a subsequent order of the circuit court following our decision in Zaleski v. West Virginia Physicians’ Mutual Ins. Co., 220 W.Va. 311, 647 S.E.2d 747 (2007) [hereinafter “Zaleski /”], entered on April 14, 2008, denying the Mutual’s Motion for Reconsideration of its Motion to Dismiss, or in the Alternative Motion for Summary Judgment and also denying the Mutual’s Motion for Entry of Order Granting Motion to Dismiss Pursuant to Rule 12(b)(6), the Mutual’s Motion for Entry of Order Remanding the Non-renewal to the Mutual for Further Hearing and the circuit court’s sua sponte amendment of the Mutual’s non-renewal hearing procedures. Specifically, the parties now dispute whether the circuit court was required, by virtue of our prior mandate in Zaleski I, to grant the Appellant’s motion to dismiss, and whether the circuit court maintained jurisdiction following remand to address the actual content of the Mutual’s due process hearing procedures for non-renewing coverage prior to sending the matter back to the Mutual for hearing. For the reasons stated below, we affirm in part, and reverse in part, the rulings of the circuit court and remand the matter with directions.
I. FACTUAL AND PROCEDURAL BACKGROUND
A brief recitation of the underlying facts follows. Dr. Zaleski purchased a professional liability policy from the West Virginia Board of Risk and Insurance Management [hereinafter “BRIM”] providing coverage for claims he made during the period from December 22, 2001 to December 22, 2004. After Dr. Zaleski’s BRIM policy was transferred to the Appellant along with all other BRIM policies , the Appellant reviewed his prior loss experience and professional training record and determined that Dr. Zaleski represented an unacceptable underwriting risk. On September 8, 2004, the Mutual notified Dr. Zaleski by a certified letter that his existing medical liability insurance policy would not be renewed upon its original termination date of December 22, 2004. The notification letter did not state any reasons for the non-renewal. Thereafter, Dr. Zaleski notified the Mutual that he wished to appeal the non-renewal decision. In response to Dr. Zaleski’s request, the Mutual designated a hearing date and notified Dr. Zaleski that the hearing would be limited to fifteen minutes in duration. Dr. Zaleski attended the appeal hearing on November 11, 2004, and presented evidence to the Committee and responded to questions. The hearing was not stenographieally recorded. The following day, the Mutual called Dr. Zaleski and informed him that the decision to deny renewal was upheld. Dr. Zaleski was also given this same information by way of certified letter dated November 12, 2004. Dr. Zaleski was never advised of any right to appeal the Mutual’s decision.
Following receipt of this information, Dr. Zaleski requested, by letter dated November 30, 2004, a detailed explanation of why the insurance policy would not be renewed. He also filed a formal complaint with the West Virginia Insurance Commissioner. The Mutual responded to the complaint stating that its reason for denying renewal was because of the “frequency of lawsuits in his history.” Upon receipt of the Mutual’s response, the Insurance Commissioner determined that no action would be taken against the Mutual, stating that it did not appear that the Mutual had violated any applicable statute or rule regarding non-renewal of the doctor’s policy. The notification did not provide Dr. Zaleski any information regarding his right to seek judicial review of the Insurance Commissioner’s determination through the circuit court.
Following the determination of the Insurance Commissioner, Dr. Zaleski filed the instant action against the Mutual, alleging that the Mutual’s non-renewal of his malpractice insurance policy amounted to breach of the covenant of good faith and fair dealing, arbitrary and capricious conduct, breach of fiduciary duty, intentional infliction of emotional distress and negligent infliction of emotional distress. The Mutual filed a Motion to Dismiss or, In the Alternative, for Summary Judgment which alleged that it did not have a duty to renew Dr. Zaleski’s insurance policy, and even if its decision to deny renewal was done in an arbitrary and capricious manner, “West Virginia law does not recognize an independent cause of action for arbitrary and capricious conduct on behalf of private entities.” Dr. Zaleski filed a cross-motion for summary judgment claiming that the Mutual was a quasi-public agency whose decisions denying renewal of professional liability policies were subject to review under due process standards, and that he was denied proper procedural due process.
On August 5, 2005, the circuit court held a hearing on the Mutual’s motion. Thereafter, on September 22, 2005, the circuit court denied the Mutual’s motion and granted Dr. Zaleski partial summary judgment, finding that the Mutual was a state actor. In that order, Judge Recht found that the procedural due process offered by the Appellant to Dr. Zaleski “at best shallow and at worst a sham.” The circuit court directed the Mutual to submit a procedure which would afford due process to policyholders appealing non-renewal decisions. Under protest, but pursuant to the lower court’s direction, the Mutual filed a mechanism for review of non-renewal decisions on January 16, 2006. It also included various objections regarding the circuit court’s order. The circuit court entered a final appealable order on April 27, 2006, wherein it reaffirmed the conclusion that the Mutual is a state actor, and thus, Dr. Zaleski was entitled to the same due process safeguards outlined in W. Va.Code § 33-2-13 (1957). The circuit court found that the Mutual failed to afford Dr. Zaleski due process, and therefore directed the reinstatement of insurance coverage to Dr. Zaleski, setting the issue of damages for trial.
On August 25, 2006, the Mutual filed a Petition for Appeal before this Court which was granted on November 28, 2006. We issued our written opinion on June 27, 2007, wherein we affirmed the circuit court’s finding that the Appellant was a state actor for the purposes of a physician seeking renewal of his professional liability insurance and Dr. Zaleski was entitled to due process protection of his property interest in that liability policy. We held that the Mutual was required to make available to parties affected by its non-renewal decisions a review process that minimally includes: notice of the non-renewal which conforms with the requirements of W. Va.Code 33-20C-4(a) and which includes the reasons for non-renewal; hearing before an unbiased hearing examiner; reasonable time in which to prepare to rebut the charges; opportunity to have retained counsel at any hearings on the charges; opportunity to present relevant evidence which includes calling and cross-examining witnesses; and preservation of an adequate record of the review proceedings. We then remanded the ease with direction to the circuit court to remand the matter to the Mutual in accordance with Barazi v. West Virginia State College, 201 W.Va. 527, 498 S.E.2d 720 (1997), to conduct a review process on the non-renewal decision which conforms with the standards we set forth. Specifically, we stated:
In summary, we affirm the lower court’s grant of partial summary judgment to Dr. Zaleski on state action grounds, but reverse the lower court’s denial of Mutual’s dismissal motion and order to reinstate insurance coverage. Therefore, the case is remanded to the Circuit Court of Ohio County with directions for that court to: (1) remand the question of non-renewal to Mutual for further hearing in conformity with this opinion, and (2) conduct such further proceedings not inconsistent with this opinion as may be required, including the resolution of any disputes which may arise in the course of the Mutual hearing on non-renewal.
Following the issuance of this Court’s opinion, Judge Recht set a status conference for September 7, 2007. On September 6, 2007, Appellant submitted the hearing procedures to Dr. Zaleski’s counsel. On September 7, 2007, the parties met for a scheduling conference, wherein Dr. Zaleski was given a deadline to object to the Mutual’s Hearing Procedures for Non-Renewal. According to the Appellant, this was done over its objection because it believed that an evaluation of the procedures was outside of the jurisdiction of the Court on remand and that the matter was not ripe for consideration by the circuit court.
On September 21, 2007, Dr. Zaleski filed a Response to the Appellant’s review process, expressing his objections to its content. Dr. Zaleski raised three concerns with the Mutual’s procedure: 1) the physician, rather than the Mutual, would bear the burden of proof; 2) the section titled “Finality of Appeal Hearing, Findings of Fact and Conclusions of Law” did not advise the physician that he may pursue any available appeal of the Mutual’s decision; and 3) a hearing tribunal composed of members of the Mutual’s board of directors is not “unbiased.” On November 7, 2007, Appellant filed a response, wherein it again voiced its objection and requested that the matter be remanded to the Appellant for further proceedings on the basis that an evaluation of the Mutual’s Hearing Procedures was not ripe for consideration. A hearing was held and further briefs were provided by the parties.
On January 9, 2008, the circuit court issued a letter to Appellant’s counsel instructing the Appellant that it had approved the Recommended Protocols for an Appropriate Review Process of a Decision by the Appellant, with three “major changes.” Specifically, the circuit court ordered that: 1) the procedures developed by the Appellant be changed so that the burden of proof as to the reason for non-renewal would be on the Appellant; 2) that a provision be added to require the Appellant to inform an affected physician as to the scope of any appellate review; and 3) that the composition of the tribunal described in Item VIII of the proposed protocols provide a completely unbiased constituency, which did not include members of the Board of Directors of the Appellant.
On February 12, 2008, Appellant’s counsel responded to the court’s letter, objecting to the circuit court’s attempt to alter the Mutual’s hearing procedures. At a hearing on February 19, 2008, the parties and the Court agreed to address the issues which arose from the Court’s January 9, 2008, letter by agreeing on an order to protect the record.
On March 6, 2008, the Appellant filed a motion to reconsider the circuit court’s decision which was conveyed to the parties in its January 9, 2008, letter. It also filed a Motion for Entry of Order Remanding the Non Renewal to the Mutual for Further Hearing and a Motion for Entry of Order Granting Motion to Dismiss Pursuant to Rule 12(b)(6). Thereafter, on April 14, 2008, the circuit court issued an order formally amending the Appellant’s hearing procedures and denying Appellant’s motion for reconsideration. The order also' denied the Mutual’s Motion for Entry of an Order Granting its Motion to Dismiss and its Motion for Entry of Order Remanding the Non-Renewal to the Mutual for Further Hearing. It is from that final appealable order that the instant appeal arises.' ’
II. STANDARD OF REVIEW
The parties to this action assert opposing interpretations of this Court’s mandate in the Zaleski I decision. The central issues in dispute are whether the circuit court erred in refusing to grant the Mutual’s motion to dismiss, and in proceeding to address the content of the Mutual’s hearing procedures for non-renewal of coverage before the heai’ing was conducted. We have held that “[a] circuit court’s interpretation of a mandate of this Court and whether the circuit court complied with such mandate are questions of law that are reviewed de novo.” Syl. Pt. 4, State ex rel. Frazier & Oxley, L.C. v. Cummings, 214 W.Va. 802, 591 S.E.2d 728 (2003). Indeed, it would be contrary to common sense “to suggest that we must defer to what a trial judge inferred about our intent in what we wrote [in our mandate].” Id. at 810-811, 591 S.E.2d 736-737. With this standard of review in mind, we proceed to evaluate the parties’ arguments.
III. DISCUSSION
Appellant appeals from the circuit court’s order 1) denying its motion for reconsideration of its motion to dismiss, or in the alternative, motion for summary judgment; 2) denying its motion for entry of an order granting its motion to dismiss pursuant to Rule 12(b)(6); and 3) denying its motion for entry of order remanding the non-renewal to Appellant for further hearing. Appellant also appeals from the circuit court’s sua sponte order amending Appellant’s non-renewal hearing procedures. Appellant seeks a reversal of the circuit court’s rulings and a removal of Judge Recht from this case. Appellant also seeks its costs and expenses, including attorney’s fees.
In it’s assignments of error, Appellant first contends that the circuit court’s refusal to grant any motion in favor of the Appellant or to follow the mandate of this Court’s decision in Zaleski I rises to the level of a violation of the Appellant’s due process rights and calls for the need to reverse the circuit court’s order and assign a new judge. It also asserts that the circuit court committed reversible error because it lacked jurisdiction to address the content of the Mutual’s due process hearing procedures for non-renewing coverage, and because it prematurely addressed an issue that was not ripe for consideration by the court since Dr. Zaleski never requested a due process hearing from the Mutual. The Mutual also contends that the circuit court erred in holding that the due process procedures offered by the Mutual in response to this Court’s June 27, 2007, opinion did not meet the minimum requirements of our prior decision in Zaleski I.
In response, Dr. Zaleski alleges that because the Mutual never contended at the circuit court level that Judge Reeht should be removed from the case, Appellant has waived this assignment of error. Alternatively, Dr. Zaleski argues that even if the argument had not been waived, no evidence exists in the record demonstrating that Judge Recht’s removal is warranted. Dr. Zaleski asserts that the fact that the circuit court has made rulings adverse to the Mutual’s position in this ease does not prove that bias exists. Rather, Dr. Zaleski contends that the record demonstrates that Judge Recht has treated the Mutual with civility and fairness throughout the duration of the ease. Additionally, Dr. Zaleski contends that the circuit court did not lack jurisdiction to address the content of the Mutual’s hearing procedures, and that the court correctly determined that the Mutual’s hearing procedures did not meet the requirements outlined in Zaleski I.
As an initial matter, we briefly address Appellant’s argument that Judge Reeht should be removed from this case. Appellant asserts that from the outset of the case, Judge Reeht has injected issues into motions that were not properly plead by counsel for Dr. Zaleski, improperly denied the Appellant any sort of procedural due process in the form of a hearing on key issues before the Court and uniformly found in favor of the Appellee. Appellant devotes a large portion of its brief to the argument that Judge Reeht should be removed from the case because, as a cumulative effect of all of his actions throughout the duration of the case, displayed bias against the Mutual. However, the Mutual did not present this argument to the circuit court or raise any concerns therein. In fact, the Mutual never filed a motion to disqualify Judge Recht or in any way made the circuit court aware of its allegations of bias.
Because this argument is now being raised for the first time on appeal, we must necessarily find that the argument as to this record has been waived. The Appellant was required to bring any issue of possible bias before the circuit court so that it could evaluate its actions to determine the credibility of the allegations and respond to them accordingly. This Court has “long held that theories raised for the first time on appeal are not considered.” Clint Hurt & Assoc. v. Rare Earth Energy, Inc., 198 W.Va. 320, 329, 480 S.E.2d 529, 538 (1996). This Court will not consider nonjurisdictional questions that have not been considered by the trial court. Id. See also Crain v. Lightner, 178 W.Va. 765, 771, 364 S.E.2d 778, 784 (1987). “The rationale behind this rule is that when an issue has not been raised below, the facts underlying that issue will not have been developed in such a way so that a disposition can be made on appeal.” Clint Hurt & Assoc. v. Rare Earth Energy, Inc., 198 W.Va. at 329, 480 S.E.2d at 538. “[Tjhere is also a need to have the issue refined, developed, and adjudicated by the trial court, so that we may have the benefit of its wisdom.” Id. ,
That aside, we now proceed to the two key issues that are at the heart of this controversy, whether, following our decision in Zaleski I, the circuit court erred in (1) refusing to grant the Mutual’s motion to dismiss, and in (2) proceeding to address the content of the Mutual’s hearing procedures for non-renewal of coverage before the non-renewal hearing on remand is conducted. Appellant believes that the Zaleski I decision dismissed the Appellee’s damage claims and remanded the case back to the Appellant to conduct a non-renewal hearing under the Appellant’s current hearing procedures, which it believes contains the due process safeguards required by Syllabus Point 8 of Zaleski I. Appellant alleges that based upon the outcome of that hearing, Dr. Zaleski, if dissatisfied, could then proceed to appeal the decision of the Appellant to the circuit court and the appeal process could begin. Conversely, Dr. Zaleski and the circuit court expansively interpret our prior decision to grant the court jurisdiction to evaluate, and if necessary, alter the hearing procedures of the Appellant before such hearing is conducted to ensure that the Mutual’s procedures comply with Syllabus Point 8, and permit Dr. Zaleski to continue to pursue his damage claims. We find that the circuit court has, at least in part, committed reversible error on remand.
In our conclusion in Zaleski I, we specifically stated:
In summary, we affirm the lower court’s grant of partial summary judgment to Dr. Zaleski on state action grounds, but reverse the lower court’s denial of Mutual’s dismissal motion and order to reinstate insurance coverage. Therefore, the case is remanded to the Circuit Court of Ohio County with directions for that court to: (1) remand the question of non-renewal to Mutual for further hearing in conformity with this opinion, and (2) conduct such further proceedings not inconsistent with this opinion as may be required, including the resolution of any disputes which may arise in the course of the Mutual hearing on non-renewal.
Appellant now contends that because this Court reversed the lower court’s denial of the Mutual’s dismissal motion and order to reinstate insurance coverage, we essentially directed the lower court to dismiss the entire lawsuit filed by Dr. Zaleski, and thus, Judge Recht did not have jurisdiction to review the Appellant’s due process hearing procedures. This argument fails for several reasons.
Although this Court’s mandate expressly “reverse[d] the lower court’s denial of Mutual’s dismissal motion and order to reinstate insurance coverage”, this Court specifically remanded this case to the circuit court, with direction that it “conduct such further proceedings not inconsistent with this opinion as may be required, including the resolution of any disputes which may arise in the course of the Mutual hearing on non-renewal.” Thus, the specific direction was that, instead of proceeding immediately to trial, the Mutual was to be given the opportunity to conduct a non-renewal hearing that comported with due process in accordance with the requirements of Syllabus Point 8 of our decision. Although the procedural posture of the case on appeal required that we effectively reverse the circuit court’s decision denying the dismissal motion in order to remand the ease, at no time did this Court make a dispositive ruling “granting” the Mutual’s motion to dismiss.
Indeed, if Appellant’s motion to dismiss were to have been granted, the case would have concluded, and there would have been no need for this Court to ascertain whether the Mutual was a state actor, no need to remand the question of non-renewal to the Mutual, and no need for the circuit court to retain jurisdiction to conduct further proceedings or resolve disputes between the parties as necessary. Accordingly, based upon the express language of this Court’s mandate in Zaleski I, we conclude that the circuit court did not commit reversible error in denying Appellant’s reconsideration of its motion to dismiss, or in the alternative, motion for summary judgment, and in denying Appellant’s motion for entry of an order granting its motion to dismiss pursuant to Rule 12(b)(6). The case should have remained, and is currently stayed on, the circuit court’s active docket.
We do, however, find fault with the manner in which the circuit court has expansively interpreted this Court’s mandate regarding its scope of jurisdiction on remand. Notwithstanding this Court’s clear mandate directing the circuit court to remand the question of non-renewal to the Mutual for further hearing, and to resolve disputes “which may arise in the course of the Mutual hearing on non-renewal”, the circuit court has exceeded its jurisdiction by requiring the parties to submit proposed hearing procedures and by amending the procedures prior to allowing the Mutual’s non-renewal hearing to even take place. The delay occasioned by such actions is apparent. Well over two years after our decision in Zaleski I, there still has been no hearing.
The mandate of an appellate court in its order formally advising the lower court of its decision marks the end of appellate jurisdiction and the return of the case to the lower tribunal for such proceedings as may be appropriate. State ex rel. Frazier & Oxley, L.C. v. Cummings, 214 W.Va. at 808, 591 S.E.2d at 734. Moreover, “[a] circuit court has no power, in a cause decided by the Appellate Court, to re-hear it as to any matter so decided, and, though it must interpret the decree or mandate of the Appellate Court, in entering orders and decrees to carry it into effect, any decree it may enter that is inconsistent with the mandate is erroneous and will be reversed.” Id. (quoting Syl. Pt. 1, Johnson v. Gould, 62 W.Va. 599, 59 S.E. 611 (1907)). “Upon remand of a case for further proceedings after a decision by this Court, the circuit court must proceed in accordance with the mandate and the law of the case as established on appeal. The trial court must implement both the letter and the spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces.” Id. at Syl. Pt. 3. Furthermore, we have traditionally held that “courts will not ... adjudicate rights which are merely contingent or dependent upon contingent events, as distinguished from actual controversies.” Farley v. Graney, 146 W.Va. 22, 29-30, 119 S.E.2d 833, 838 (1960). Likewise, “courts [will not] resolve mere academic disputes or moot questions or render mere advisory opinions which are unrelated to actual controversies.” Id.
Indeed, a matter must be ripe for consideration before the court may review it. Courts must be cautious not to issue advisory opinions. In this ease, the circuit court’s abstract review of and decision to alter the Mutual’s hearing procedures prior to the non-renewal hearing taking place violates this Court’s long-standing principles of ripeness and the requirement that an actual ease in conti’oversy exist before a matter can be reviewed. In other words, the circuit court put the cart before the horse.
On remand, the non-renewal hearing has not yet been conducted. Thus, as the Appellant correctly points out, the outcome of the non-renewal hearing is unknown at this time. After the hearing is conducted, Dr. Zaleski’s professional liability policy could in fact be renewed, in which case no abstract objection to the procedures could ever become ripe for consideration by the circuit court. On the other hand, if the Mutual would decide not to renew Dr. Zaleski’s insurance, the procedure could be addressed if the objection might change the outcome of the procedures. For these reasons, any review by the circuit court of the due process issues should occur only after the hearing has occurred. As anticipated, this ease has been stayed on the circuit court’s docket by virtue of the remand to the Mutual for further hearing. However, after Dr. Zaleski is provided with a non-renewal hearing and a renewal decision is made, any issues concerning whether the hearing comported with due process requirements and the viability of the Complaint would have to be assessed at that juncture, if necessary.
IV. CONCLUSION
Accordingly, for the reasons stated above, the April 14, 2008, order of the Circuit Court of Ohio County is affirmed in part and reversed in part. The circuit court’s denials of the Appellant’s motion for reconsideration of its motion to dismiss, or in the alternative, motion for summary judgment, and the Appellant’s motion for entry of an order granting its motion to dismiss pursuant to Rule 12(b)(6) are hereby affirmed. The circuit court’s denial of the Appellant’s motion for entry of order remanding the non-renewal to Appellant for further hearing is hereby reversed and remanded with directions. Appellant’s request for costs and expenses, including attorney’s fees, is denied.
Affirmed in part, reversed in part.
Justice WORKMAN dissents and reserves the right to file a dissenting opinion.
Justice KETCHUM concurs and reserves the right to file a concurring opinion.
. The facts and circumstances surrounding the underlying action are more thoroughly discussed in our prior opinion in Zaleski I.
. The Mutual is a West Virginia domestic, private, nonstock, nonprofit corporation formed in 2004 for the purpose of temporarily alleviating the "medical liability insurance crisis” by creating programs to provide medical liability coverage through BRIM. W. Va.Code § 33-20F-2 [Repl. Vol. 2003]. The Mutual accepted the transfer of all existing BRIM medical liability policies on July 1,2004.
. It is undisputed that pursuant to W. Va.Code § 33-20F-9(f)(4)[Repl. Vol. 2006], the Mutual had the right to decline to renew the policies of physicians whose prior loss experience or current training and capabilities created an unacceptable risk.
. The written description of the appeal process provided by the Mutual to Dr. Zaleski stated that 1) coverage was declined by underwriting; 2) an appeal was requested by the Physician; 3) the Physician was requested to make a brief statement to the Underwriting Committee, could ask questions of the Committee, and could entertain questions from Committee members; 4) the Committee would review the application for coverage and the information gathered during the appeal and make a decision immediately following the Physician’s appearance before the Committee; and 5) the Physician would receive a telephone call from a representative of the Committee the day following the appeal and a followup letter by mail.
. This included nineteen medical malpractice claims during twenty-five years of practice, totaling payment of over $2,000,000.00 in indemnity settlements.
.Later, during a hearing conducted on November 15, 2005, Judge Recht commented regarding his characterization of the Appellant’s hearing procedures.
The Court: I did — maybe I got carried away — that's maybe the only fun you have as a judge — where I said that the procedural due process offered by defendant was shallow at best and sham at worst. That probably was going a little too far. I apologize. But it just felt ...
Mr. Johnson: You said that kind of low. I don't know if the court reporter—
The Court: Well, she knows what to take down and what not to.
. The objections included lack of subject matter jurisdiction; improper consideration of claims not asserted in the complaint; grant of relief not requested and not the product of evidentiary hearing; improper ruling that the Mutual was a state actor; and the review performed in Dr. Zaleski's case satisfied all due process concerns.
. West Virginia Code § 33-2-13 [Repl. Vol. 1990] sets forth a procedure to be used by the Insurance Commissioner to review allegations involving any act, omission, rule, regulation or order of the Commissioner.
. See Syl. Pt. 4, Barazi v. West Virginia State College, 201 W.Va. 527, 498 S.E.2d 720 (the proper remedy for reversible due process procedural defects in administrative proceedings is to remand the case to the appropriate tribunal with directions to order the administrative institution to remedy the defect.)
. We observe that West Virginia Trial Court Rule 17.01 requires that motions seeking the disqualification of a trial judge in a given matter be filed within 30 days after discovering the ground for disqualification. WVTCR 17.01 (2003). Obviously, this rule was not followed by Appellant herein.
. Notwithstanding, assuming the argument had not been waived, we still find no merit to the Appellant's allegations of bias. There is simply not sufficient evidence currently in the record supporting Appellant's contention that Judge Recht has displayed bias in this matter depriving the Appellant of any due process and necessitating his removal from the case.
. Were we to decide otherwise, a trial judge such as Judge Recht would be deprived of the opportunity to address claims seeking such judge’s removal from a case and we would be deprived of such a response. We envision that such a scenario would turn disqualification into a strategic tool of enterprising attorneys to the detriment of our justice system.
. To the extent that we find that the circuit court’s review and alteration of the Mutual’s hearing procedures was premature, it is not, at this juncture, necessary for this Court to address the remaining substantive issue presented by Appellant regarding whether the Mutual’s proposed hearing procedures sufficiently meet the due process requirements set forth by this Court in Zaleski I. That issue may be properly addressed, if necessary, in a subsequent appeal following the Mutual’s non-renewal hearing process. | [
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BENJAMIN, Chief Justice.
The instant matter comes before this Court upon direct appeal, pursuant to the provisions of W.Va.Code § 5-ll-ll(a) (1989), from an order entered by the West Virginia Human Rights Commission (hereinafter the “Commission”) finding the appellants Sue J. Erps and William G. Erps, d/b/a Improvements Unlimited were liable to appellee Victor Peoples for claims of hostile work environment and retaliatory discharge arising from a June 16, 2004, workplace incident. The Commission’s January 30, 2008, order affirmed and adopted as its own two orders entered by the Chief Administrative Law Judge in this matter after a full evidentiary hearing. The Chief Administrative Law Judge’s April 6, 2007, order addressed the liability issues, found that the imposition of monetary damages was appropriate and ordered certain injunctive and remedial actions. In an August 29, 2007, supplemental order, the Chief Administrative Law Judge directed the appellants to pay a total of $32,898.81 in damages, consisting of $24,085.30 in lost wages, $3,813.51 in interest and $5,000.00 in incidental damages for humiliation, embarrassment and loss of personal dignity, plus costs. After a thorough review of the record herein, we affirm, in part, and reverse, in part, the Commission’s January 30, 2008, order.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Appellee, Victor Peoples (hereinafter “Mr. Peoples”), is an African-American male who began employment with Improvements Unlimited on April 13, 2004. Improvements Unlimited is a proprietorship owned and operated by appellee William Erps (hereinafter “Mr. Erps”) and his wife, appellee Sue Erps (hereinafter “Mrs. Erps”), and located in Princeton, West Virginia. On June 16, 2004, Mr. Peoples was a member of an Improvements Unlimited crew led by supervisor David Yontz (hereinafter “Mr. Yontz”) building a tie wall at a business college in Blue-field, Tazewell County, Virginia. Additional crew members included Wayne Bragg (hereinafter “Mr. Bragg”) and Jason Harris (hereinafter “Mr. Harris”). All crew members, except Mr. Peoples, were white as are Mr. and Mrs. Erps. That morning an altercation occurred between Mr. Peoples and Mi’. Bragg which is at the heart of the instant dispute.
On the morning of Wednesday June 16, 2004, the Improvements Unlimited crew working on the business college’s tie wall met at company headquarters in Princeton, West Virginia, and drove to the job site. The area where the tie wall was being constructed was approximately 45-50 feet in length and the crew worked within that area. Mr. Yontz and Mr. Bragg were drilling holes while Mr. Peoples and Mr. Harris followed fitting rebar into the holes with sledgehammers. Although there had been no prior tension, arguments or problems between Mr. Peoples and Mr. Bragg, Mr. Peoples picked on Mr. Bragg that morning, calling him names such as “white trash” and “honky.” According to Mr. Bragg, the racially-charged name calling angered him. Mr. Peoples continued his goading of Mr. Bragg by making fun of the way he talked. This made Mr. Bragg angry. At some point, Mr. Peoples asked Mr. Bragg to drill the holes deeper because he was having difficulty fitting the rebar into the holes and Mr. Bragg responded by saying, “You say another word I’ll cut your f* * *ing head off with this shovel, n* * * * *.” The men then approached Mr. Yontz about the situation. Not having heard the exchange and realizing both men were upset and angry, Mr. Yontz feared the situation could escalate and that there might be a physical altercation. Therefore, he ordered them back to work in separate locations.
Mr. Peoples was not satisfied with Mr. Yontz’ response and continued to ask him what he was going to do about Mr. Bragg’s comment. Instead of responding to Mr. Peoples’ question, Mr. Yontz replied “That’s done, over, get back to work.” When Mr. Peoples persisted in his demand for immediate action, Mr. Yontz told him to get back to work or he was fired. Mr. Peoples responded by telling Mr. Yontz to send him home. Again, Mr. Yontz directed Mr. Peoples to return to work. Mr. Peoples would not go back to work, handed Mr. Yontz his sledgehammer and told him “to do what he had to do.” Mr. Yontz responded by telling Mr. Peoples he was fired.
Thereafter, Mr. Peoples left the job site and apparently walked approximately eight to ten miles to his home because he had driven to the job site with Mr. Yontz. Upon arriving at home, Mr. Peoples called Mr. Erps on his cell phone to tell him about the incident. Mr. Erps responded that Mr. Bragg should not have called him the “n” word and that Mr. Erps would handle the situation. That evening, Mr. Erps took statements from Mr. Yontz and Mr. Hams after he saw them at church. Mr. Erps also spoke with Mr. Bragg about not using the “n” word, but took no further disciplinary action.
Mr. Peoples went to the Improvements Unlimited office on Friday, June 18, 2004, to pick up his paycheck. Although Mr. Erps asked Mr. Peoples to stay until after pay checks were distributed, Mr. Peoples left and did not speak with Mr. Erps about the incident. Mr. Peoples returned to the Improvements Unlimited office on Friday June 25, 2004, to pick up his final paycheck. Again, Mr. Erps asked him to stay and talk about the incident with Mr. Bragg and, again, Mr. Peoples left before Mr. Erps could speak to him. Other than asking Mr. Peoples to stay and discuss the incident when paychecks were distributed, there is no evidence in the record that Mr. Erps ever attempted to contact Mr. Peoples at home or by letter to discuss the June 16, 2004, incident with Mr. Bragg.
Mr. Peoples called the West Virginia Human Rights Commission on June 23, 2004, and requested a form to file a discrimination complaint. His complaint was filed on July 2, 2004. Subsequent to filing his complaint, Mr. Peoples felt that Mr. Erps and employees of Improvements Unlimited were following and chasing him. He also stated that Brain Eaves, an African American employee of Improvements Unlimited, offered him money on behalf of Mr. Erps to drop his complaint. He also testified that Claude Erps’ workers attempted to intimidate him.
After receiving a response to Mr. Peoples’ complaint from Mr. Erps, the Human Rights Commission made a probable cause finding and the matter proceeded in litigation. An administrative hearing was held in this matter on December 5-6, 2006, in Princeton, Mercer County, West Virginia. On April 6, 2007, an order was entered finding the Erps and Improvements Unlimited liable for fostering a hostile work environment, retaliatory discharge for engaging in a protected activity, ie., complaining about Mr. Braggs’ comment which was chai’aeterized in the order as sufficiently severe to constitute racial harassment, and retaliation for filing a complaint with the Commission. The Order granted a cease and desist instruction aimed at preventing further discriminatory practices and directed the Erps to institute a harassment policy and reporting procedure to be distributed to all employees and undergo one hour of anti-harassment training together with their supervisory personnel. In addition to requiring the Erps to pay the Commission’s costs in the amount of $1,854.06, the order awarded Mr. Peoples incidental damages in the maximum statutory amount of $5,000.00 and found that lost wages should be awarded, plus statutory interest, from the date of Mr. Peoples’ termination until such time as Mr. Peoples was no longer physically able to perform a laborer job such as the one he performed at Improvements Unlimited.
Mr. Peoples’ hearing testimony revealed that he had begun receiving partial disability benefits from the Veteran’s Administration in August 2004 and had applied for total disability benefits at some point, no later than January 2006, although the exact date he became unable to work was unclear from the record. The April 6, 2007, order directed the Human Rights Commission and Mr. Peoples to determine the exact date that Mr. Peoples was rendered unable to work with documentary evidence, if possible, and submit final calculations regarding back pay by April 20, 2007, with a final decision to be issued by May 30, 2007, after consideration of responses and replies to the calculations. It appears from the record before this Court that Mr. Peoples did not cooperate with obtaining records concerning his disability claims, refusing to sign a release and further refusing to cooperate with the assistant attorney general handling his claim, as evidenced by May 21, 2007, and June 1, 2007, letters from counsel to the Chief Administrative Law Judge. As a result, the Chief Administrative Law Judge entered an order on May 23,2007, directing Mr. Peoples to sign a records release authorization on or before June 4, 2007. On May 24, 2007, the Chief Administrative Law Judge entered a second order reiterating the directive contained in the May 23, 2007, order and indicating that “[flailure of the Commission and Mr. Victor Peoples to provide the requested calculations regarding back pay will result in adverse inferences and the issuance of a Supplemental Final Decision that does not include a back pay award.” By letter dated July 2, 2007, a deputy attorney general handling Mr. Peoples’ claim informed the Chief Administrative Law Judge that Mr. Peoples had indicated he would not sign the release and that counsel would submit a back pay calculation based upon the information available at that time.
On August 29, 2007, the Chief Administrative Law entered a Supplemental Final Decision on Damages. That order contained additional findings of fact that Mr. Peoples was unlawfully terminated from his employment because of racial discrimination on June 16, 2004 and was entitled to back pay for the period from June 16, 2004 to December 2005. Findings of fact were made that Mr. Peoples had been uncooperative with the Commission’s attorneys in their efforts to determine the onset date of his total disability. Finding that Mr. Peoples had suffered an aneurism in January 2006 and has not been able to work, the Chief Administrative Law Judge found Mr. Peoples was not entitled to back pay after December 2005. Based upon the findings made in both the April 6, 2007, order and the August 29, 2007, order, the August 29, 2007, order granted Mr. Peoples $24,085.30 in lost wages, in addition to $3,813.51 in interest upon the same, and reiterated that he was entitled to the statutory maximum $5,000.00 in incidental damages. Upon appeal to the Human Rights Commission, the Chief Administrative Law Judge’s decisions were affirmed and adopted in their entirety. Appellants thereafter sought a direct appeal to this Court pursuant to the provisions of W. Va.Code § 5-ll-ll(a) (1989). Upon consideration of the record created below, the parties’ briefs and oral arguments and the pertinent legal authori ties, we affirm, in part, and reverse, in part, the Commission’s decision.
II.
STANDARD OF REVIEW
In syllabus point 1 of Cobb v. West Virginia Human Rights Commission, 217 W.Va. 761, 619 S.E.2d 274 (2005), this Court held:
Where an appeal from an order issued by the West Virginia Human Rights Commission is brought directly to the West Virginia Supreme Court of Appeals, pursuant to W.Va.Code § 5-11-11 (1989), this Court will apply the same standard of review that is applied to Human Rights Commission orders appealed to a circuit court.
Accordingly, this Court is bound by the statutory standards contained in W.Va.Code § 29A-5^4(a) and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong. Syl. pt. 1, in part, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). We have further stated that West Virginia Human Rights Commission’s findings of fact should be sustained by reviewing courts if they are supported by substantial evidence or are unchallenged by the parties. Syllabus Point 1, West Virginia Human Rights Comm’n v. United Transp. Union, Local No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981). Syl. pt. 2, Smith v. West Virginia Human Rights Commission, 216 W.Va. 2, 602 S.E.2d 445 (2004). Likewise, this Court conducts its review of the Commission’s orders in accordance with the provisions of W.Va.Code § 29A-5-4(g) (1998). Syl. pt. 3, Smith v. West Virginia Human Rights Comm’n, 216 W.Va. 2, 602 S.E.2d 445 (2004) (quoting, Syl. pt. 2, Shepherdstown Volunteer Fire Dept. v. State ex rel. State Human Rights Comm’n, 172 W.Va. 627, 309 S.E.2d 342 (1983)). Utilizing these standards as a guide, we proceed to the issue presented herein.
III.
DISCUSSION
Before this Court, appellants assert five assignments of error challenging the calculation of back pay, the findings of retaliatory discharge, hostile work environment, and retaliation for filing a complaint and the amount of the incidental damages award. As any discussion of damages will be dependent upon our analysis of the substantive claims, we first address the substantive liability findings.
A.
Hostile Work Environment
Appellants argue that the single incident with Mr. Bragg which triggered the events at issue herein was insufficient to constitute a finding of a hostile work environment under our law. Appellees counter by arguing that a significant accumulation of incidents is not always required to support a finding of a racial hostile work environment and that Mr. Bragg’s comment was sufficiently severe to uphold the hostile work environment finding. After consideration of the entire record herein, we agree with the appellants that, in this specific ease, the Commission erred in imposing liability for a racially hostile work environment.
In syllabus point 2 of Fairmont Specialty Services v. West Virginia Human Rights Commission, 206 W.Va. 86, 522 S.E.2d 180 (1999), this Court set forth the standard for establishing a claim for a racially hostile work environment under the West Virginia Human Rights Act, W.Va.Code §§ 55-11-1 to -20 (1999). Therein we held:
To establish a claim for ancestral discrimination, under the West Virginia Human Rights Act, West Virginia Code §§ 5-11-1 to -20 (1999) based upon a hostile or abusive work environment, a plaintiff-employee must prove that: (1) that the subject conduct was unwelcome; (2) it was based on the ancestry of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiffs conditions of employment; and (4) it was imputable on some factual basis to the employer.
Syl. pt. 2, Fairmont Specialty, 206 W.Va. 86, 522 S.E.2d 180. Although this Court previously noted that “[i]n order to constitute harassment, [the] conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive[,]” Conrad v. Szabo, 198 W.Va. 362, 372, 480 S.E.2d 801, 811 (1996)(quoting Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir.1982)), we have not heretofore addressed this first element of a hostile work environment claim, i.e, that the subject conduct was unwelcome, in detail. In light of the Commission’s findings relative to Mr. Peoples’ actions precipitating Mr. Bragg’s comments on June 16, 2004, we find it necessary to address this element of a hostile work environment claim further.
The law surrounding hostile work environment claims has become fairly well developed over the years, with similar standards being adopted and applied in both federal and state courts. In Garcez v. Freightliner Corporation, 188 Or.App. 397, 72 P.3d 78 (2003), the Oregon Court of Appeals outlined the standards applicable to a claim arising from a racially hostile work environment under federal law in the context of a motion for directed verdict. In Garcez, the Oregon court noted:
For a hostile work environment claim to be actionable, the offensive environment must be sufficiently severe or pervasive so as to alter the conditions of the victim’s employment and create an abusive working environment. Meritor Savings Bank, v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). [M]ere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee would not affect the conditions of employment to [a] sufficiently significant degree to violate Title VII. Id. (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1971), cert. den., 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972)). The environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. Faragher v. Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Whether an environment is hostile or abusive can be determined only by considering all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Harris, 510 U.S. at 23, 114 S.Ct. 367, 126 L.Ed.2d 295. Finally, there must be a basis for imposing liability on a defendant, which depends on whether the defendant knew or should have known that the conduct of the plaintiffs coworkers was unwelcome and whether the defendant promptly took appropriate corrective action. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 759, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
Garcez, 72 P.3d at 85-86 (footnote omitted). The court, in Garcez, recognized that much of the law in this area has developed in the context of sexual harassment claims, but noted that the governing principles are “equally germane” to both sexual and racial harassment claims. Id. at 86 n. 7 (“Although Meritor involved a sexual harassment claim, its principles are equally germane to racial harassment claims. See Faragher v. Boca Raton, 524 U.S. 775, 786-87, 787 n. 1, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (Although racial and sexual harassment will often take different forms, and standards may not be entirely interchangeable, we think there is good sense in seeking generally to harmonize the standards of what amounts to actionable harassment.); Vasquez v. County of Los Angeles, 307 F.3d 884, 892 (9th Cir.2002) (Because the elements to prove a hostile work environment are the same for both racial harassment and sexual harassment, eases analyzing both types of harassment are relevant to our analysis.).”). Thus, the standards are similar regardless of the nature of the alleged harassment.
In discussing the “welcomeness” aspect of a hostile work environment claim, the Eighth Circuit Court of Appeals found that:
the conduct at issue must be unwelcome in that the plaintiff neither solicited it nor invited it and regarded the conduct as undesirable or offensive. See Meritor Savs. Bank v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)(Meritor); Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 962 (8th Cir.1993); Hall v. Gus Const. Co., 842 F.2d 1010, 1014 (8th Cir.1988). The proper inquiry is whether [appellant] indicated by [her] conduct that the alleged harassment was unwelcome. Quick [v. Donaldson], 90 F.3d [1372,] 1378 [(8th Cir.1996)], citing Meritor, 477 U.S. at 68, 106 S.Ct. 2399, 91 L.Ed.2d 49.
Scusa v. Nestle U.S.A. Company, Inc., 181 F.3d 958, 966 (8th Cir.1999). See also, Beach v. Yellow Freight System, 312 F.3d 391 (8th Cir.2002) (quoting Scusa); Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir.1986) (“"Whether the activities complained of were unwelcome is usually disputed, as in the present case. In order to constitute harassment, the conduct must be ‘unwelcome’ in the sense that the employee did not solicit or invite it, and the employee regarded the conduct as undesirable or offensive.”); Perkins v. U.S. Airways, Inc., 8 F.Supp.2d 1343, 1351 (M.D.Fla.1998) (“In order to prove the second element, unwelcome harassment, Plaintiff must show that he neither ‘solieit[ed] nor ineite[d] it, and ... that [he] regarded the conduct as undesirable or offensive.’ Bivins v. Jeffers Vet Supply, 873 F.Supp. 1500, 1507 (M.D.Ala.1994), aff'd 58 F.3d 640 (11th Cir.1995) (citation omitted).”); Balletti v. Sun-Sentinel Co., 909 F.Supp. 1539, 1546-47 (S.D.Fla.1995) (“The conduct at issue ‘must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.’ Henson [v. City of Dundee], 682 F.2d [897,] 903 [(11th Cir.1982)].”); Daka, Inc. v. Breiner, 711 A.2d 86, 96 (D.C.Ct.App.1998) (“ ‘Unwelcome’ conduct is conduct which the employee did not solicit or invite and which the employee regarded as undesirable or offensive.”) (citation omitted). The United States District Court for the Western District of Missouri, in Perkins v. General Motors Corp., 709 F.Supp. 1487 (1989), aff'd in part and rev’d in part sub nom, Perkins v. Spivey, 911 F.2d 22 (8th Cir.1990), cert. denied, Perkins v. General Motors Corp., 499 U.S. 920, 111 S.Ct. 1309, 113 L.Ed.2d 243 (1991), set forth the various factors courts look at in determining the “welcomeness” aspect of a hostile work environment claim in the context of a sexual harassment claim. Therein, the court explained:
The conduct complained of must be “unwelcome” in the sense that the employee did not solicit or invite it, and the employee regarded the conduct as undesirable or offensive. In analyzing this element of a sexual harassment claim, courts have looked to a number of facts:
a) Whether plaintiff by her own conduct indicated that the alleged sexual advances were unwelcome.
b) Whether the plaintiff substantially contributed to the alleged distasteful atmosphere by her own profane and sexually suggestive conduct.
e) Whether the plaintiff in response to evidence that at various times she had willingly participated in the conduct now complained of can identify with some precision a point at which she made known to her co-workei’s or superiors that such conduct would heneefore [sic] be considered offensive.
d) Whether and, if so, when, plaintiff reported or complained about any of the incidents at issue.
e) Whether plaintiffs account of the unwelcome sexual conduct is sufficiently detailed and internally consistent so as to be plausible.
f) The nature of the work environment itself.
Perkins, 709 F.Supp. at 1499 (internal quotations and citations omitted).
A determination of whether language or conduct is subjectively offensive and, therefore, actionable “depends on the individual circumstances”. Beach, 312 F.3d at 396 (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22-23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). In determining whether the conduct complained of is unwelcome and, therefore, actionable, a factual inquiry must be made into the totality of the circumstances, including examination of the plain tiffs own actions. As stated by the court in Balletti:
the court may consider whether the plaintiff participated in the very conduct of which she complains. Where a plaintiffs action in the work place shows that she was a willing and frequent participant in the conduct at issue, eoui'ts are less likely to find that the conduct was unwelcome or hostile. See e.g. Reed v. Shepard, 939 F.2d 484 (7th Cir.1991) (plaintiff could not argue that woi’k environment was hostile where she instigated and participated in sexual horseplay and had one of the foulest mouths in the department); Hicks v. Baltimore Gas, 829 F.Supp. 791, 796 (D.Md.1992), aff'd, 998 F.2d 1009 (4th Cir.1993), cert. denied, 510 U.S. 1059, 114 S.Ct. 726, 126 L.Ed.2d 690 (1994), reh’g denied, 511 U.S. 1102, 114 S.Ct. 1876, 128 L.Ed.2d 496 (1994) (plaintiff could not make out case of sexual harassment even though male coworkers called her names, sexually-oriented cartoons were posted on bulletin board, and one cartoon contained derogatory comments with her name; she admitted calling co-workers names, she subjected eo-workers to offensive language, and her own behavior was erratic and angry); Weinsheimer [v. Rockwell International Corp.], [754 F.Supp. 1559,] 1564 (M.D. Fla.1990), aff'd, 949 F.2d 1162 (11th Cir.1991) (conduct was not unwelcome where plaintiff made sexual gestures, told sexual stories, and was otherwise willingly involved in sexual innuendo prevalent at work); Perkins v. General Motors Corp., 709 F.Supp. 1487, 1497-98 (W.D.Mo.1989), aff'd in part and rev’d in part sub nom, Perkins v. Spivey, 911 F.2d 22 (8th Cir.1990), cert. denied, Perkins v. General Motors Corp., 499 U.S. 920, 111 S.Ct. 1309, 113 L.Ed.2d 243 (1991) (men in shop made catcalls, touched plaintiffs breasts, made comments about plaintiffs p[* * * *], placed a hot dog in a condom on plaintiffs desk, made humping and masturbation motions in front of plaintiff, told sexual jokes, shook their genitals at each other and used profanity; no hostile work environment was found, however, since plaintiff encouraged the conduct by herself using shop talk, goosing men, and referring to their genitals as pickles, and where, on the few occasions that she did complain, the conduct was dealt with appropriately).
Balletti, 909 F.Supp. at 1547. A plaintiffs “willing and frequent involvement in the [allegedly offensive conduct] prevalent in her work area indicated] that she did not find the majority of such conduct truly ‘unwelcome’ or ‘hostile’ ”. Weinsheimer v. Rockwell International Corp., 754 F.Supp. 1559, 1564 (M.D.Fla.1990). See also, Loftin-Boggs v. City of Meridian, Miss., 633 F.Supp. 1323, 1327 (S.D.Miss.1986) (“Considering plaintiffs contribution to and apparent enjoyment of the situation, it cannot be said that the defendant’s created ‘an intimidating, hostile, or offensive working environment.’ ... The context presented here is one of vulgar and unprofessional conduct by all, including plaintiff. While the situation was certainly not an effective working environment, it also was not the hostile environment prohibited by Title VIL”). Where a plaintiff has initiated and/or participated in the offensive conduct without complaint, a claim based upon an allegation of a hostile work environment will ordinarily fail.
Plaintiffs participation in the offensive conduct complained of may not forever bar a hostile work environment claim where the plaintiff, at some point, makes clear that in the future such conduct will be deemed unwelcome and the conduct continues thereafter. See, Weinsheimer, 754 F.Supp. at 1564 n. 12 (finding participation in offensive conduct will not completely bar a harassment claim where plaintiff shows “that at some point she clearly made her co-workers and superiors aware that in the future such conduct would be considered ‘unwelcome.’ ”); Loftin-Boggs, 633 F.Supp. at 1327 n. 8 (S.D.Miss.1986) (“Plaintiffs participation in the conduct leading to the creation of the alleged hostile environment does not permanently bar a successful claim of sexual harassment. Once her participation is established, however, she must be able to identify with some precision a point at which she made known to her co-workers or superiors that such conduct would henceforth be considered offensive.”). In discussing the “weleomeness” aspect of the behavior at issue, the Oregon Court in Garcez rejected the defendant’s argument that the plaintiff therein welcomed the alleged harassing conduct because he,
sometimes engaged in conduct similar to that which he claims was harassing, ... and, therefore, did not subjectively perceive the environment to be hostile. In support [of this argument] defendant emphasizes plaintiffs admission that he used terms such as “whitey” and “honkey,” sometimes initiated the use of racial slurs, failed to indicate that he found the conduct offensive other than to merely “walk away,” and admitted that some of his coworkers were not, at times, serious when they used racial slurs.
Despite those admissions, though, we cannot say that no reasonable juror could conclude that plaintiff found the conduct unwelcome. Plaintiff testified that such conduct “might have been a joke to them, but it was no joke to me,” that it made him “mad, unhappy, sad” and that his in-kind responses were merely a means of defending himself. A jury could reasonably believe that testimony and find that, at least some of the time, plaintiff was offended by his coworkers’ conduct. In that regard, this case is distinguishable from Reed v. Shepard, 939 F.2d 484 (7th Cir.1991), and Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958 (8th Cir.1999), on which defendant relies. Although in those cases there was evidence that the plaintiffs had engaged in behavior that was similar to the conduct that they claimed was offensive, there also was evidence that their participation was usually, if not always, willing, that they initiated the conduct, and that they were not upset by it. See Scusa, 181 F.3d at 966 (noting that the plaintiff admitted that she had yelled at other employees, used foul language, and teased other employees); Reed, 939 F.2d at 487 (noting evidence that the plaintiff was put on probation for her use of offensive language, participated in suggestive behavior, and “reveled in the sexual horseplay”). The plaintiffs in those cases did not claim, as plaintiff does here, that their own offensive conduct was a coping mechanism for the harassment directed at them. Based on the totality of the circumstances, plaintiffs evidence was sufficient to support a reasonable inference of unweleomeness.
Garcez, 72 P.3d at 86 (footnote omitted).
Likewise, in Hrobowski v. Worthington Steel Co., 358 F.3d 473 (7th Cir.2004), the court found that the fact that the victim himself had used racist language did not lead inexorably to the conclusion that he welcomed' racial harassment. In reviewing the district court’s grant of summary judgment in favor of the employer, the Seventh Circuit Court of Appeals found that a factual issue existed as to whether the plaintiff welcomed the allegedly offensive racial comments, the court explaining:
The first question is whether a reasonable jury could find that the allegedly harassing speech was unwelcome, a question that the district court resolved in Hrobowski’s favor. Whether words or conduct were unwelcome presents a difficult question of proof turning largely on credibility determinations committed to the factfinder. Reed v. Shepard, 939 F.2d 484, 491 (7th Cir.1991). Worthington argues that any of the allegedly hostile words that Hrobowski encountered actually were welcome because, as Hrobowski admitted, he too made racially oriented jokes and used words such as “spic” and “n[* * * * *]” in the workplace. It is true that Worthington may not be held liable for a hostile environment that Hrobowski himself instigated. See id. In Reed, for example, we held that a directed verdict was appropriate against the hostile environment claim of a female jail employee whose preferred method of dealing with co-workers was with sexually explicit jokes, suggestions, and offers. Id.
This case, however, is distinguishable from Reed. Reed admitted that she had never complained about the allegedly harassing conduct. Id. at 487. All of the evidence in the record, therefore, pointed to the conclusion that she welcomed the conduct on which she based her suit. Hrobowski, by contrast, points to competent evidence that he did object to the type of racist language to which he was subjected. In his deposi tion testimony, Hrobowski points out that he complained to managers Mark Stier and Pat Murley about racial language and jokes in the workplace. Although it is unclear when Hrobowski made these protests or exactly what he said to Stier and Murley (more about that later), a reasonable jury could conclude from this evidence that Hrobowski did not welcome racist speech, at least when he was the victim of that language. Thus, in this ease, that the plaintiff himself used racist language does not lead inexorably tp the conclusion that he welcomed the racial insensitivity of others. We therefore agree with the district court that a reasonable jury could find that the words on which Hrobowski predicates his claim for a hostile environment were unwelcome.
Hrobowski, 358 F.3d at 476. These authorities make clear that a plaintiff who initially participates in the allegedly hostile conduct can not satisfy the “unweleomeness” prong of a hostile work environment claim, i.e. that the complained of conduct was unwelcome, unless evidence is produced that at some point the plaintiff made clear to co-workers and superiors that such conduct would, in the future, be considered unwelcome and the conduct continued thereafter. Where such evidence is produced, a factual question is created as to whether the complained of conduct was “unwelcome”.
The first prong of a hostile work environment claim under Fairmont Specialty requires a plaintiff to set forth evidence that the alleged offensive conduct was unwelcome. In light of the above authorities, we take this opportunity to clarify the evidence necessary to satisfy this burden where the plaintiff has participated in the subject conduct. In order to constitute harassment and satisfy the first prong of a hostile work environment claim as set forth in syllabus point 2 of Fairmont Specialty Services v. West Virginia Human Rights Commission, 206 W.Va. 86, 522 S.E.2d 180 (1999), the subject conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive. When a plaintiff bringing a hostile work environment claim pursuant to the standards enunciated in syllabus point 2 of Fairmont Specialty Services v. West Virginia Human Rights Commission, 206 W.Va. 86, 522 S.E.2d 180 (1999), has solicited, incited or participated in the subject offensive conduct, the plaintiff must introduce evidence indicating (1) that he or she ultimately informed the involved coworkers and/or supervisors that future instances of such conduct would be unwelcome, and (2) that conduct thereafter continued. Where such evidence is produced, a question of fact is created as to whether or not the conduct was unwelcome.
Turning to the matters currently before this Court we first note that a finding of hostile work environment is “a legal conclusion inextricably bound to the facts[.]” Fairmont Specialty, 206 W.Va. at 95, 522 S.E.2d at 189. Under the established law outlined above, the Commission’s order holding the appellants liable for a racially hostile work environment cannot stand. Mr. Peoples failed, as a matter of law, to satisfy the first element of a hostile work environment claim by failing to put forth evidence from which a reasonable fact-finder could conclude that the subject conduct was unwelcome.
The Commission found that Mr. Bragg’s comment which formed the basis of the hostile work environment finding was predicated by Mr. Peoples’ own taunts to Mr. Bragg calling him such racially-charged names as “honky” and “white trash”. Indeed, it is difficult to ignore Mr. Peoples’ own behavior in this incident. Not only did Mr. Peoples make fun of Mr. Bragg’s speech impediment, it was Mr. Peoples who in fact first sparked the working environment with his racially-based taunting of Mr. Bragg. Mr. Bragg thereafter responded with one sentence, containing both a racial slur and a threat of physical violence, stating “you say another word I’ll cut for f* * *ing head off with this shovel, n* * * * While we do not condone Mr. Bragg’s comments, we cannot ig nore the significant role which Mr. Peoples had in creating the very situation of which he later complained — something Mr. Peoples appears to ignore and something which the Commission appears to have minimized.
While most cases, including those cited above, involve an accumulation of incidents and the gradual development of hostilities, this case involves only one relatively brief exchange found to have been instigated by Mr. Peoples. Due to Mr. Peoples’ incitement of and participation in the racially based comments, a prima facie showing that Mr. Bragg’s response was “unwelcome” was not made. Additionally, because there is no evidence that the subject conduct continued after Mr. Peoples voiced an objection to Mr. Yontz, Mr. Peoples likewise fails to create a factual question as to whether such conduct was no longer welcome, yet continued. As such, Mr. Peoples’ hostile work environment claim must fail as a matter of law because he failed to satisfy the first prong of the standard set forth in Fairmont Specialty. Accordingly, we reverse the Commission’s finding of hostile work environment.
B.
Retaliatory Discharge
Appellants also assign as error the finding of retaliatory discharge arguing that it is not supported by the law or evidence. Appellees maintain that the retaliatory discharge finding should be affirmed because the appellants are liable for the acts of their supervisory employee, Mr. Yontz, who fired Mr. Peoples when he demanded action be immediately taken regarding the incident with Mr. Bragg. We agree with the appellants that under the facts and circumstances presented herein, the Commission erred in finding appellants liable for retaliatory discharge.
In syllabus point 4 of Frank’s Shoe Store v. West Virginia Human Rights Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986), we set forth the legal standard that an employee must meet in order to succeed on a retaliatory discharge claim. Therein, we held:
In an action to redress an unlawful retaliatory discharge under the West Virginia Human Rights Act, W. Va.Code, 5-11-1, et seq., as amended, the burden is upon the complainant to prove by a preponderance of the evidence (1) that the complainant engaged in protected activity, (2) that complainant’s employer was aware of the protected activities, (3) that complainant was subsequently discharged and (absent other evidence tending to establish a retaliatory motivation) (4) that complainant’s discharge followed his or her protected activities within such period of time that the court can infer retaliatory motivation.
Syl. pt. 4, Frank’s Shoe Store v. West Virginia Human Rights Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986). The burden was upon Mr. Peoples to establish a prima facie case of retaliatory discharge. Syl. pt. 4, Frank’s Shoe Store. Once Mr. Peoples met this burden, the burden shifted to the appel lants to rebut the presumption and, if appellants are successful in rebutting the presumption, the burden then shifts back to Mr. Peoples to prove by a preponderance of the evidence that the explanation given by appellants was merely pretextual. See, syl. pt. 3, Shepherdstown Volunteer Fire Dept. v. State ex rel. State Human Rights Comm’n, 172 W.Va. 627, 309 S.E.2d 342 (1983) (explaining shifting burdens in action to redress unlawful workplace discrimination). See also, Freeman v. Fayette County Bd. of Educ., 215 W.Va. 272, 277-78, 599 S.E.2d 695, 700-01 (2004) (per curiam) (explaining shifting burdens of proof); Hanlon, 195 W.Va. at 105-06, 464 S.E.2d at 747-48 (same); West Virginia, Dept. of Natural Resources v. Myers, 191 W.Va. 72, 76, 443 S.E.2d 229, 233 (1994) (per curiam) (same).
If we assume that Mr. Yontz’s actions at a remote worksite in “firing” Mr. Peoples when Mr. Peoples refused to return to work until Mr. Bragg’s conduct was addressed would be sufficient to meet Mr. Peoples’ burden of establishing a prima facie case of retaliatory discharge as set forth in Frank’s Shoe Store, then the burden shifted to the Appellants to rebut. In rebuttal, Appellants produced evidence that Mr. Peoples was fired for failure to return to work, not complaining of Mr. Bragg’s comments. The burden then shifted back to Mr. Peoples to demonstrate that the proffered reason was merely pretextual. Mr. Peoples failed to present any evidence that the legitimate, non-retaliatory explanation given by Mr. Erps and Improvements Unlimited for his termination was merely pretextual.
It is undisputed that the incident at issue herein was an isolated event at a construction site in Virginia between two co-workers who had no prior reported history of conflict with one another. The crew leader, Mr. Yontz, upon learning of the situation, separated the men and ordered them back to work in accordance with his prior training in conflict management. While the Chief Administrative Law Judge and, ultimately, the Commission found that Mr. Yontz “terminated” Mr. Peoples immediately after Mr. Peoples refused to return to work until the racial slur and threat of physical violence were addressed and that a retaliatory motive could be inferred, such a finding can only be deemed to be clearly wrong under the facts presented herein. The evidence simply does not support a factual finding that either Mr. Yontz or Mr. Erps terminated Mr. Peoples in retaliation for the protected activity of raising the issue of racial harassment. Mr. Yontz’s decision to terminate Mr. Peoples was based upon Mr. Peoples’ refusal to return to work. Indeed, Mr. Peoples himself admitted that, upon being informed of the incident, Mr. Erps told him that Mr. Erps would handle the matter when he returned to the office and that it should not have happened. Mr. Erps also informed Mr. Peoples that he was not terminated and that he should return to work the following morning. Mr. Peoples, however, failed to return to work and returned to the office only long enough to collect his pay. Mr. Peoples’ failure to present evidence that the reason given by Improvements Unlimited for his initial termination, i.e. his refusal to return to work, was pretextual, precludes his claim for retaliatory discharge as a matter of law. Accordingly, we reverse the Commission’s order to the extent it holds the appellants liable for retaliatory discharge.
C.
Retaliation for Filing a Complaint
In the April 6, 2007, order, which was affirmed by the Commission, the Chief Administrative Law Judge found Improvements Unlimited subjected Mr. Peoples to retaliation for filing a complaint with the Commission through a series of actions such as following him, staring at him and offering him money to dissuade him from pursuing his complaint. This finding is based upon the Chief Administrative Law Judge’s finding that Mr. Peoples’ testimony regarding Claude Erps’ worker’s attempt to intimidate him and Brian Eaves’ attempt to give him money to drop his complaint were credible. Appellants presented testimony contradicting Mr. Peoples, including the testimony of Claude Erps. Appellants also challenged Mr. Peoples testimony regarding Mr. Eaves’ alleged offer on hearsay grounds arguing that Mr. Eaves did not testify and that Mr. Peoples’ version of the event is based upon his subjective “feelings.” Because the findings on this issue are made upon credibility determinations in light of competing testimony, they are to be afforded deference. Accordingly, we affirm the finding that Mr. Peoples was intimidated and retaliated against for filing his complaint with the Commission. However, we note that Mr. Peoples was not awarded monetary damages for this alleged retaliation and intimidation. Moreover, Mr. Peoples neither appealed this aspect of the order below, nor did he take exception to it before this Court. The directives contained within the April 6, 2007, order regarding the adoption, implementation and enforcement of an anti-harassment policy are sufficient remedies under the circumstances presented herein. The Commission may not, hereafter, award monetary damages for this claim because monetary damages were not previously awarded for this specific retaliation claim in the appealed orders and no exception to this lack of monetary damages being awarded on this issue was taken by Mr. Peoples.
IV.
CONCLUSION
The January 30, 2008, order of the West Virginia Human Rights Commission is reversed to the extent that it finds the appellants liable for hostile work environment and retaliatory discharge and imposes monetary damages, including costs, upon them. The January 30, 2008, order of the West Virginia Human Rights Commission is affirmed to the extent it finds appellants liable for intimidating and retaliating against Mr. Peoples for filing a complaint with the West Virginia Human Rights Commission and directing the implementation of an anti-harassment policy and procedure at Improvements Unlimited.
Affirmed, in part, and Reversed, in part.
. Unless otherwise noted, facts recited herein correspond to the findings of fact made by the Chief Administrative Law Judge and set forth in her orders.
. When not drilling holes, Mr. Yontz was operating a bobcat or "skid-steerer” to move materials.
. It appears from the record created at the administrative hearing that Mr. Bragg has speech difficulties, although Mr. Peoples denied Mr. Bragg has any such difficulties.
. During the administrative hearing, Mr. Bragg admitted that he made a racial slur to Mr. Peoples and that he threatened him with physical bodily harm with a shovel.
. Mr. Yontz was drilling at the time.
. It appears from the testimony during the administrative hearing herein that the incident between Mr. Peoples and Mr. Bragg occurred prior to the lunch hour.
. Mr. Erps testified that he had also instructed Mr. Peoples to return to work the following day.
. It appears from the testimony at the administrative hearing that Mr. Yontz and Mr. Harris dictated statements to Mrs. Erps. Mrs. Erps typed the statements before they were signed and dated by the men. While the testimony conflicted as to who and when a statement was taken from Mr. Bragg, the Chief Administrative Law Judge found in the April 6, 2007, order that "Mr. Yontz took Mr. Bragg's statement in 2006. Mr. Bragg cannot read or write. Mr. Yontz prepared Mr. Bragg's statement. Mr. Yontz read the statement to Mr. Bragg before he signed it."
. Improvements Unlimited employees were paid each Friday morning, one week after the work week in which the pay was earned.
.During the administrative hearing, Mr. Peoples was adamant in his testimony that the events in question occurred on June 23, 2004, the same day he filed his complaint with the Human Rights Commission. The documentary evidence, however, contradicted Mr. Peoples’ account as demonstrated by the findings and conclusions set forth in the April 6, 2007, order. While not explicitly stating so, it is obvious from the findings of fact set forth in the April 6, 2007, order, that Mr. Peoples' version of events was not deemed credible by the Chief Administrative Law Judge. According to Mr. Peoples' version of the events which he believes occurred on June 23, 2004, he reported to work that morning at the Improvements Unlimited office in Princeton, drove to the job site with Mr. Yontz and his fellow crew members, worked up until the time of the confrontation with Mr. Bragg without saying anything derogatory to Mr. Bragg, walked eight to ten miles home, called Mr. Erps, called the Human Rights Commission, filed his complaint, walked to another business to apply for a job and witnessed an automobile accident involving one of the other Improvements Unlimited crew leaders, although he could not recall his name. The April 6, 2007, order also found, contrary to Mr. Peoples' testimony, that he signed his complaint on July 2, 2004.
. The hearing transcript reveals that Claude Erps is Mr. Erps' brother and owns a company separate and distinct from Improvements Unlimited.
. It appears from the record before this Court that Mr. Erps initially responded to the complaint and subsequent discovery pro se on behalf of himself, his wife and Improvements Unlimited. Counsel did not appear until August 2005.
. Between the conclusion of the hearing on December 6, 2006, and entry of the April 6, 2007, letter, Mr. Peoples wrote several ex parte letters to the Chief Administrative Law Judge. The first, dated January 19, 2007, disputed a portion of the hearing transcript indicating that he did not testify in that manner recorded and indicated that he needed "to get pay from 6-23-04 to 1-1-06.” A second, undated letter stamped received at the Human Rights Commission on January 26, 2007, indicated that Mr. Peoples had signed up for social security disability and “with the VA.” In that letter, he stated that he "was unemployed, broke and without funds so I went and signed up for income. Waiting on the settlement from the above case.”
. After the conclusion of the hearing Mr. Peoples submitted the first page of a December 28, 2005, decision by the Veterans Administration directly to the Chief Administrative Judge. The August 29, 2007, order cites this document in finding that "[c]learly Mr. Peoples’ partial disability is based on chronic fatigue syndrome” and that he was not totally disabled nor unemployable as a laborer on that date. Other than claim identifying information, the entire text of the unauthenticated document in the record which was relied upon by the Chief Administrative Law Judge in making the disability determination states:
INTRODUCTION
The records reflect that you are a veteran of the Peacetime and Gulf War Era. You served in the Army from April 10, 1986 to August 1, 1986, from April 22, 1987 to April 20, 1990 and from January 31, 1991 to April 25, 1991. You filed a claim for increased evaluation that was received on March 30, 2005. Based on a review of the evidence listed below, we have made the following decision(s) on your claim.
DECISION
1. Evaluation of chronic fatigue syndrome (claimed as a sleep disorder), which is currently 10 percent disabling, is continued.
2. Service connection for gastrointestinal condition and diarrhea is denied.
3. Entitlement to individual unemployability is denied.
There is no indication in the record as to what was contained in the remainder of this document which was not submitted by Mr. Peoples for consideration in this litigation.
. Ultimately, the Seventh Circuit affirmed the grant of summary judgment in favor of the employer finding there was no evidence that the employer was negligent in discovering or addressing racial harassment in the workplace. Id. at 478-79.
. While Mr. Peoples’ taunts of Mr. Bragg does not excuse Mr. Bragg’s threatening response, they raise the question of welcomeness and mitigate against a finding of a hostile work environment, particularly where there were no prior incidents between the men or complaints.
. Although we need not address whether Mr. Peoples’ evidence was sufficient to satisfy the fourth prong of Fairmont Specialty governing imputing the conduct to the employer due to his failure to satisfy the first prong, we do note Mr. Erps’ response upon learning of this situation. While Improvements Unlimited did not have an anti-harassment policy and procedure in place at the time of this incident, Mr. Erps did respond immediately upon learning of the situation. According to Mr. Peoples’ own testimony, when he called Mr. Erps and informed him of the situation, Mr. Erps told him that he should not have been called that name and Mr. Erps would handle the situation when he returned to the office. Mr. Erps also testified that he told Mr. Peoples to return to work the next day, that he was not fired. The Chief Administrative Law Judge did not mention this in her findings and made no finding of fact as to whether it did or did not occur. Mr. Erps then obtained statements from witnesses, verbally instructed Mr. Bragg not to use that word again and affirmatively attempted on two occasions to speak with Mr. Peoples about the incident when Mr. Peoples came to pick up his paychecks, but Mr. Peoples left before speaking with Mr. Erps. These facts raise significant questions as to whether Mr. Peoples would have been able to satisfy the fourth prong of Fairmont Specialty.
. Based upon the unrebutted testimony of Mr. Erps, Mr. Peoples' lack of employment arguably was something within his own control.
. Mr. Peoples testified that one night when he left a bar he frequented he saw a van with the Erps name on it, a large man got out of the vehicle and chased him across a bridge.
. Mr. Peoples testified that Brian Eaves, another African-American employee of Improvements Unlimited, approached him at a bar and attempted to hand him money stating that the Erps knew a lot of people. Mr. Peoples stated this gave him the impression Improvements Unlimited had sent Eaves to pay him off.
.The April 6, 2007, order specifically relates the award of incidental damages to Mr. Peoples feeling "degraded” and "humiliated” after being called the "n” word, terminated and having no choice but to walk home. | [
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PER CURIAM.
This case arises from a dispute over a series of Qualified Domestic Relations Orders issued by the Family Court of Cabell County. Because none of the orders accurately reflects the agreement of the parties, the orders must be reversed and this case remanded for entry of a proper Qualified Domestic Relations Order (hereinafter “QDRO”) that correctly encompasses the ap pellee-wife’s marital share of the appellant-husband’s retirement benefits.
I.
FACTS
The appellant, Thomas D. Chenault, (hereinafter referred to as “Husband”) and the appellee, Sharon K. Chenault, (hereinafter referred to as “Wife”) were married on November 6,1972. At the time of the marriage and continuing after the parties’ divorce, the Husband was employed by the United States Government as a member of the United States Army Reserve and as a deputy United States Marshal. As such, the Husband made contributions to the Federal Employees Retirement System and Civil Service Investment Board both during the marriage and after the termination of the marriage.
The Husband and Wife separated on October 1, 1994. On March 25, 1996, the Circuit Court of Cabell County entered a bifurcated order that divorced the Husband and Wife and reserved resolution of the remaining issues of property distribution, spousal and child support for further hearing.
On June 15, 1996, a hearing was held before the Family Law Master to resolve the remaining issues of property distribution, spousal support and child support. By order entered January 8,1998, the Circuit Court of Cabell County found that the parties’ pensions consisted of the Wife’s West Virginia Consolidated Public Retirement Board pension and the Husband’s federal civil service pension and his Army Reserve pension. The order further stated that “said pensions shall be subject to Qualified Domestic Relations Orders of Fifty Per Cent (50%) each” and that “the plaintiff [Wife] is hereby awarded one-half of the defendant [Husband]’s Civil Service pension and one-half of his Army Reserve pension which shall be subject to Qualified Domestic [Relations] Orders.”
For reasons not explained in the record, a significant period of time elapsed between the January 8, 1998, order defining the Wife’s interest in the Husband’s retirement and any attempt to complete that transaction. On June 1, 2006, the Family Court entered an order designated as a QDRO. This order stated, inter alia:
Pursuant to the equitable distribution as ordered by the Court in the Final Decree of divorce, the Court hereby ORDERS that the Alternative Payee be awarded Fifty Per Cent (50%) of the Participant’s pension plan as of October, 1994. The Alternative Payee shall be eligible to receive payment of the benefit awarded under this Order on the earliest date benefits could be paid to the Participant under the terms of the Plan. IT IS FURTHER ORDERED that from the benefits which would otherwise be payable to the Participant under The Plan (sic). The Plan shall pay to the Alternate Payee, and the Alternate Payee shall receive directly from The Plan, an amount equal to Fifty Per Cent (50%) of those assets held in Participant’s plan from November 1972 to October 1994, together with interest thereon included therein.
For reasons unclear in the record, on October 13, 2006, counsel for the Wife prepared and filed with the Court an order entitled “Amended Qualified Domestic Relations Order.” The proposed order stated, in pertinent part, that “The Court awards as the sole and separate property of Sharon K. Chenault an amount equal to one half the total value of the Plan.” The proposed order was circulated to counsel for the Husband with a Rule 22 notice. Objections to this proposed Order were made by counsel for the Husband.
On March, 1, 2007, a hearing was held in the Family Court of Cabell County, on the objections filed by the Husband to the Amended Qualified Domestic Relations Order. The hearing produced the following testimony between counsel for the Husband and the court:
MR. SMITH: Just so I’m clear on my notes here, she’s entitled to one-half of the accrued cash value from '74 through the date of separation.
THE COURT: Yeah.
MR. SMITH: —October ’94?
THE COURT: That’s standard.
MR. SMITH: That’s what I wanted to make sure I got in my notes.
THE COURT: Okay.
MS. CONWAY: Judge—
MR. SMITH: No annuity? No survivor benefit?
THE COURT: Do what?
MR. SMITH: I said no annuity. No survivor benefit? Just the accrued cash value? Is that—
THE COURT: She’s entitled to that. And whatever she gets out of that, she can do with it what she wants.
MR. SMITH: Okay. Not an annuity or survivor benefit.
THE COURT: That wasn’t part of it.
This hearing was memorialized by order entered March 29, 2007. The order stated, inter alia:
... the Court finds and does ORDER that the parties’ final divorce decree did not provide for the Petitioner to receive any type of annuity or survivor benefit from either the Respondent’s Army retirement or his U.S. Marshal’s Service retirement. The parties’ final divorce Order did provide, however, for the Petitioner to receive one-half of the accrued value of the Respondent’s aforesaid retirement plans from November 1972 through October 1994, which shall be the ORDER of this Court.
On June 28, 2007, the Family Court of Cabell County entered its “Second Amended Qualified Domestic Relations Order.” This order awarded to the Wife “an amount equal to one-half the total value of the plan.” In a later part of the order was a paragraph stating that “pursuant to the equitable distribution as ordered by the Court in the Final Decree of divorce, the Court hereby ORDERS that the Alternate Payee be awarded Fifty Per Cent (50%) of the Participant’s pension plan acquired as of October, 1994.” This order further stated that “the Plan shall pay to the Alternate Payee, and the Alternate Payee shall receive directly from The Plan, an amount equal to Fifty Per Cent (50%) of those assets held in Participant’s plan from November 1972 to October 1994 , together with interest thereon included therein.”
The Husband appealed the Second Amended Qualified Domestic Relations Order to the Circuit Court of Cabell County. By Order entered October 15, 2007, the Husband’s appeal was denied.
The Husband subsequently appealed the circuit court’s denial of his appeal from the family court to this Court. By Order dated June 11, 2008, this Court agreed to review the lower courts’ decisions.
II.
STANDARD OF REVIEW
In Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004), we set forth the applicable standard of review regarding family court appeals. In Syllabus Point 1 we held:
In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.
With these standards in mind, we now consider the issues presented in this case.
III.
DISCUSSION
At the outset, we observe that it is undisputed herein that the Wife is entitled to the marital share of the pension contributions made during the course of the parties’ active marriage. Likewise, it appears undisputed that the Wife is entitled to only that share of the pension or retirement benefits that accrued from the marital share, as opposed to that which is attributable to the post-divorce employment of the Husband. What does appear to be in dispute is whether the order which was entered below, and which is before us now, accurately reflects the actual understandings of the parties and ruling of the court. We conclude that it does not.
When a dispute arises in the equitable distribution of retirement and pension benefits, the family courts may take guidance in preferred methods of distribution. We have previously stated a preferential order for dividing pension and retirement benefits:
When a court is required to divide vested pension rights that have not yet matured as an incident to the equitable distribution of marital property at divorce, the court should be guided in the selection of a method of division by the desirability to disentangling the parties from one another as quickly and cleanly as possible. Consequently, a court should look to the following methods of dividing pension rights in this descending order of preference unless peculiar facts and circumstances dictate otherwise: (1) lump sum payment through a cash settlement or offset from other available material assets; (2) payment over time of the present value of the pensions rights at the time of divorce to the nonworking spouse; (3) a court order requiring that the non-working spouse share in the benefits on a proportional basis when and if they mature. Syllabus Point 5, Cross v. Cross, 178 W.Va. 563, 363 S.E.2d 449 (1987).
The court below opted to divide the Husband’s pension rights with the use of a Qualified Domestic Relations Order. Under the Internal Revenue Code, a QDRO is defined as a domestic relations order “which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan.” 26 U.S.C. § 414(p) (1) (A) (I).
The requirements of a QDRO are defined by federal law. The plan administrator then follows the directions of the QDRO and takes such actions as are necessary to secure the other party’s interest in the pension or retirement.
What appears to have not happened over the nearly decade-long course of this proceeding is the entry of an appropriate qualified domestic relations order allocating to the Wife her appropriate share of the Husband’s retirement benefits. Therefore, this Court is not reviewing so much a conclusion of law or finding by the lower courts, but rather reviewing whether the order entered below accurately reflects the agreements of the parties. It does not.
The earliest order wherein the court attempted to address the division of the Husband’s retirement was entitled Qualified Domestic Relations Order and was entered on June 1, 2006. The Second Amended Qualified Domestic Relations Order entered by the Family Court of Cabell County on June 28, 2007, again attempted to divide the marital interest in the appellant’s federal retirement annuity pursuant to the parties’ agreement. Neither order accurately and completely reflects the agreement of the parties and the lower courts’ rulings, nor does either give the retirement plan administrator authority to separate the Wife’s interest in the Husband’s pension. Both orders fail to specify the dates of marriage and separation; instead, the orders use generic dates. In order to clearly reflect the parties’ agreements and the lower court’s order regarding the Wife’s appropriate share of the Husband’s pension and retirement, the order must contain specific instructions and directives to the plan administrator. Therefore, the QDROs must be reversed and this case must be remanded to the Family Court of Cabell County for entry of a correct QDRO.
In the new QDRO, the Wife’s marital share should be defined by specific date, beginning with the date of the marriage and ending with the agreed date of separation. Only with such specific dates will the plan administrator be able to appropriately distribute the Wife’s marital share. Unfortunately the passage of time means that the QDRO will separate a pension that is currently being distributed, instead of segregating the pension as was anticipated at the time of the entry of the divorce order. We are aware that the Husband sought injunctive relief with the lower courts with regard to the distribution of the Husband’s retirement funds, fearing that the plan administrator would distribute one-half of the total pension amount. The family and circuit courts continue to have jurisdiction and the authority to offset any overpayment to the Wife occasioned by the erroneous Qualified Domestic Relation Orders.
IV.
CONCLUSION
Accordingly, for the reasons set forth above, the Qualified Domestic Relations Or der entered June 28, 2007, is reversed, and this case is remanded to the Circuit Court of Cabell County with directions to enter an order remanding this case to the Family Court of Cabell County for entry of a Qualified Domestic Relations Order that distributes only the marital share of the Husband’s pension and retirement benefits.
Reversed and Remanded with Directions.
. Effective January 1, 2002, the Legislature significantly reorganized the family courts of West Virginia by replacing the family law master system with a new system of family court judges. See W.Va. Const., Art. VIII, § 16 and W.Va.Code i 51-2A-1 to 23 (2001).
. Neither Husband's counsel nor Wife's counsel was involved in the original divorce proceeding. It is not clear from the record why the Qualified Domestic Relations Order was not presented earlier.
.Rule 22 of the West Virginia Family Court Rules states as follows:
(b) Preparation of orders and findings. — In proceedings in which both parties are self-represented, the court shall prepare all orders and findings of fact. In proceedings in which one or both parties are represented by attorneys, the court may assign one or more attorneys to pre pare an order or proposed findings of fact. An attorney assigned to prepare an order or proposed findings shall deliver the order or findings to the court no later than ten days after the conclusion of the hearing giving rise to the order or findings. Within the same time period the attorney shall send all parties copies of the draft order or findings together with a notice which informs the recipients to send written objections within five days to the court and all parties. If no objections are received, the court shall enter the order and findings no later than three days following the conclusion of the objection period. If objections are received, the court shall enter an order and findings no later than ten days after the receipt of the objections.
. It is unclear why counsel stated 1974. Our review of the record indicates that the Wife's entitlement to an interest in the Husband's pension would have commenced at the date of the marriage in 1972.
. The QDROs appear to list the date of the parties’ marriage and date of separation by month and year. We believe that the absence of a date certain for both the date of marriage and the date of separation could be troublesome for the retirement plan administrator. In order to appropriately divide the Husband’s pension, the month, date and year of applicable dates should be included in the order.
. 26 U.S.C.A. § 414 states, in pertinent part:
(p) Qualified domestic relations order defined. — For purposes of this subsection and section 401 (a)(l 3)—
(1) In general.—
(A) Qualified domestic relations order. — -The term “qualified domestic relations order” means a domestic relations order—
(i) which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan, and
(ii) with respect to which the requirements of paragraphs (2) and (3) are met.
(B) Domestic relations order. — The term "domestic relations order” means any judgment, decree, or order (including approval of a property settlement agreement) which—
(i) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and
(ii) is made pursuant to a State domestic relations law (including a community property law).
(2) Order must clearly specify certain facts. — A domestic relations order meets the requirements of this paragraph only if such order clearly specifies—
(A) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order,
(B) the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined,
(C) the number of payments or period to which such order applies, and
(D) each plan to which such order applies.
(3) Order may not alter amount, form, etc., of benefits. — A domestic relations order meets the requirements of this paragraph only if such order—
(A) does not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan,
(B) does not require the plan to provide increased benefits (determined on the basis of actuarial value), and
(C)does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order.
. The parties have designated as the record in this instant appeal only portions of the circuit court's file relating to the QDRO at issue.
. The Husband first filed in Family Court an emergency motion seeking to "amend, supersede or set aside the Second Amended Qualified Domestic Relations Order.” No order was entered regarding that motion. The Husband then sought injunctive relief in the Circuit Court of Cabell County in Case Number 08-C-0084. It appears that no final order has been entered in that civil action. | [
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PER CURIAM:
This matter was presented pursuant to a rule to show cause issued by this Court on January 22, 2009, against Respondent David A. Barnabei, a member of the West Virginia State Bar, upon a petition filed by the Office of Disciplinary Counsel (“ODC”). The rule directed Respondent to show cause why he should not be held in contempt of a previous order entered by this Court in a lawyer disciplinary matter. In that order, entered September 25, 2008, this Court directed that:
(1) the respondent be reprimanded for his conduct; (2) respondent’s practice be supervised for a period of one year by an attorney agreed upon between the [ODC] and respondent. This attorney shall be currently active, in good standing with the West Virginia State Bar, in close geographical proximity and have a substantial criminal practice. The goal of the supervised practice will be to improve the quality and effectiveness of respondent’s law practice to the extent that respondent’s sanctioned behavior is not likely to recur; (3) based upon the totality of the circumstances, to attempt to address the specific concerns about respondent’s continued refusals to respond to lawful known requests for information from the [ODC], respondent shall undergo a psychological evaluation with a licensed psychologist. Respondent must follow the recommended treatment plan, if any, and provide written reports of compliance to the [ODC]; (4) respondent shall complete six hours of Continuing Legal Education during the 2006-2008 reporting period, in addition to what he is otherwise required to complete to maintain his active license to practice, three hours in the area of ethics and three hours in criminal law; and (5) the respondent shall be ordered to reimburse the Lawyer Disciplinary Board the costs of these proceedings pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.
Despite completion of some of this Court’s directives, we find Respondent to have failed to fully perform those actions directed by us in our September 25, 2008, order. Therefore, for the reasons discussed below, we find Respondent to be in contempt of this Court’s September 25, 2008, order, and, accordingly, order that Respondent’s, license to practice law in this State be immediately suspended until such time that Respondent is in full compliance with this Court’s order.
I.
PROCEDURAL BACKGROUND
After this Court entered its September 25, 2008, order, described above, on or about October 27, 2008, the ODC sent Respondent a letter requesting the production of information and certain documents for the purpose of Respondent’s compliance with the September 25,2008, order.
After receiving no response from Respondent, on or about November 20, 2008, the ODC mailed another letter to Respondent enclosing the October 27, 2008, letter with attachments and requesting that Respondent respond by December 1, 2008. The ODC advised Respondent that the failure to respond to the ODC’s letter would result in the ODC’s filing a petition for a rule to show cause with this Court.
After receiving no response from Respondent, the ODC filed a petition for a rule to show cause with this Court on December 5, 2008, in which it requested that Respondent’s license to practice law be immediately suspended until such time that Respondent is in full compliance with this Court’s September 25, 2008, order. Respondent failed to file a responsive pleading to the ODC’s petition for a rule to show cause.
By order dated January 22, 2009, this Court issued a rule to show cause directed against Respondent returnable before this Court on April 8, 2009, commanding and directing Respondent to show cause, if any he can, why he should not be held in contempt of this Court, as prayed for by the ODC in its petition. Respondent failed to show cause why he should not be held in contempt of this Court’s September 25, 2008, order.
II.
STANDARD FOR IMPOSITION OF DISCIPLINE
This Court pi’eviously has held that “[wjhen this Court acts within its jurisdiction, its orders shall be promptly obeyed, or contempt is a proper sanction.” Syllabus Point 1, United Mine Workers of Amer. v. Faerber, 179 W.Va. 73, 365 S.E.2d 353 (1986). Further, “[tjhis Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions’ or annulments of attorneys’ licenses to practice law.” Syllabus Point 3, Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984). These are the standards this Court will apply to decide the instant case.
III.
DISCUSSION
The ODC, in its petition for a rule to show cause, indicates that following this Court’s September 25, 2008, order with regard to Respondent, the ODC attempted to contact Respondent by mail on two separate occasions requesting the production of information and certain documents for compliance with this Court’s order. Subsequently, Respondent failed to respond to both the ODC’s petition for a rule to show cause and this Court’s January 22, 2009, order granting the rule to show cause.
It is clear that Respondent failed to fully comply with this Court’s September 25, 2008, order and should be held in contempt thereof. “This Court views compliance with its orders relating to the practice of law to be among a lawyer’s highest professional responsibilities[.]” Committee on Legal Ethics v. Farber, 191 W.Va. 667, 669, 447 S.E.2d 602, 604 (1994). Accordingly, this Court is authorized “to punish a party for contempt of an order executed by this Court.” Syllabus Point 4, in part, State ex rel. Walker v. Giardina, 170 W.Va. 483, 294 S.E.2d 900 (1982). Moreover, “[i]n deciding on the appropriate disciplinary actions for ethical violations, this Court must consider not only what steps would appropriately punish the respondent áttorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession.” Syllabus Point 3, Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987). The ODC requests that Respondent’s license to practice law be immediately suspended until such time that Respondent is in full compliance with this Court’s order. We deem this sanction to be appropriate to punish Respondent, to serve as an effective deterrent to other members of the Bar, and to be effective in restoring public confidence in the ethical standards of the legal profession.
Therefore, based upon the foregoing, we find that Respondent failed to promptly and fully obey this Court’s September 25, 2008, order, and, accordingly, contempt is a proper sanction. We further find it appropriate to suspend Respondent’s license to practice law until such time that he is in full compliance with this Court’s September 25, 2008, order.
IV.
CONCLUSION
For the reasons stated above, we find Respondent to be in contempt of the September 25, 2008, order of this Court, and we order that Respondent’s license to practice law in the State of West Virginia be suspended until such time that Respondent is in full compliance with this Court’s September 25, 2008, order.
License Suspended.
. The ODC indicates in its petition to show cause that on or about October 28, 2008, the ODC received a complaint against Respondent. Thereafter, the ODC mailed Respondent a letter directing him to file a response to the complaint within 20 days. The ODC further states that upon receiving no response, it mailed Respondent a certified letter directing him to file a response to the complaint on or before December 15, 2008, or that a subpoena duces tecum would be issued for his appearance at the ODC for a sworn statement.
. Based upon representations of the ODC, Respondent has completed, among other things, his continuing legal education, supervision and a psychological examination. He has not followed up on a treatment plan nor has he paid the costs of his disciplinary proceedings or entered into a repayment plan. | [
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PER CURIAM:
This case is before the Court upon Petitioner Jason Galloway’s appeal of a final order of the Circuit Court of Wood County entered on February 14, 2008. The circuit court affirmed a family court ruling which denied Jason Galloway the opportunity to present DNA evidence for the purpose of disestablishing paternity of a child, Ivy Lynn Galloway, born during his marriage to Respondent Tiffany Galloway.
After carefully reviewing the briefs, the legal authority cited and the record presented for consideration, we affirm the circuit court’s ruling.
I.
Facts & Background
The divorce proceeding between Jason Galloway and Tiffany Galloway has been ongoing for almost a decade. The couple were married on August 24, 1998. Two months later, on October 28, 1998, Tiffany Galloway gave birth to a daughter, Ivy Lynn Galloway (hereinafter “Ivy”). Approximately three months after Ivy was born, Tiffany told Jason that the baby might not be his. Shortly thereafter, Jason, Tiffany and Ivy underwent DNA testing and a report, issued on April 29, 1999, confirmed that Jason was not Ivy’s biological father. Jason continued living with Tiffany and Ivy for approximately 14 months after discovering he was not the father.
On July 10, 2000, Tiffany Galloway filed for divorce and the couple separated. Jason Galloway moved in with his mother after the couple separated. Jason’s mother continued to treat Ivy as her grandchild after the separation, often times bringing Ivy to her house. On one of these visits in 2003, when Ivy was four years old, Jason Galloway told Ivy to stop calling him “daddy.”
The issue of paternity was raised during the initial divorce proceeding and a guardian ad litem was appointed to represent Ivy. This divorce proceeding was delayed, awaiting the results of a paternity action in Ritchie County, West Virginia, in which a man named Michael Stevens underwent paternity testing to determine if he was Ivy’s biological father. The paternity test showed that Mr. Stevens was not Ivy’s father. On November 16, 2001, a final hearing was held in the Galloway’s divorce proceeding. Neither party appeared for this hearing and the initial divorce action was dismissed.
A second divorce action was filed, this time by Jason Galloway, on February 21, 2003. Since paternity was again raised, the Family Court of Wood County appointed Joseph P. Albright, Jr., to serve as guardian ad litem to determine whether disestablishment of paternity was in the best interest of the child, as required by Syllabus Point 4 of Michael K.T. v. Tina L.T., 182 W.Va. 399, 387 S.E.2d 866 (1989). In Michael K.T., this Court identified eight factors which must be considered when determining whether blood test evidence should be admitted for the purpose of disproving paternity. These eight factors are:
1) the length of time following when the putative father first was placed on notice that he might be the biological father before he acted to contest paternity;
2) the length of time during which the individual desiring to challenge paternity assumed the role of father to the child;
3) the facts surrounding the putative father’s discovery of nonpaternity;
4) the nature of the father/child relationship;
5) the age of the child;
6) the harm which may result to the child if paternity were successfully disproved;
7) the extent to which the passage of time reduced the chances of establishing paternity and a child support obligation in favor the child; and
8)all other factors which may affect the equities involved in the potential disruption of the parent/ehild relationship or the chances of undeniable harm to the child.
Michael K.T. v. Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872 (1989).
Following his investigation, the guardian ad litem orally presented his conclusion to the court that it would not be in the best interest of the child to disestablish paternity because: (1) the couple was married when the child was born; (2) Jason Galloway is listed as the father on the child’s birth certificate; and (3) Jason Galloway has steady employment, while another man alleged to be the biological father of the child was in jail. The family court adopted the guardian ad litem’s findings and refused to allow Jason Galloway the opportunity to present DNA evidence for the purpose of disestablishing paternity.
Following the family court’s ruling, Jason Galloway filed a pro se appeal to the Circuit Court of Wood County. The circuit court denied his appeal citing the guardian ad litem’s conclusion that it was not in the best interest of the child to disestablish paternity, and stating “it is clear that the best interest of the child would include receiving financial support from the Petitioner ... The Petitioner continued to support the child as his own for many months following Respondent’s confession.”
On January 13, 2006, Jason Galloway filed a Petition for Appeal with this Court. On March 6, 2006, the West Virginia Bureau of Child Support Enforcement filed a motion to remand the case to family court so that a further inquiry into the Michael K.T. factors could occur. On March 13, 2006, Jason Galloway and Tiffany Galloway filed a joint motion to remand the case. By order dated March 17, 2006, this Court refused the Petition for Appeal and remanded the case to the Family Court of Wood County for the additional proceedings requested by the parties.
The family court below subsequently conducted hearings in this matter on May 16, 2006, and January 30, 2007. At the January 30, 2007, hearing, the guardian ad litem failed to produce a written report, but orally told the court that his opinion had not changed and he again recommended that Jason Galloway should not be allowed to present DNA evidence for the purpose of disestablishing paternity. The guardian ad litem stated that many of the Michael K.T. factors are neutral in this ease and did not weigh in favor of either party. The guardian ad litem told the court that his conclusion was based on what was in the best interest of this child. Counsel for Jason Galloway argued that her client was not receiving a meaningful hearing because the guardian ad litem failed to produce a written report addressing the Michael K.T. factors. While the guardian ad litem did not produce a written report prior to this hearing, he orally presented his findings to the court and offered to answer any questions from counsel regarding his investigation and his conclusion that disestablishing paternity was not in the best interest of this child.
The family court again relied on the guardian ad litem’s recommendation and entered a final order on October 16, 2007, in which it ruled that disestablishing paternity was not in the child’s best interest. Jason Galloway appealed this ruling to the circuit court. The circuit court affirmed the family court ruling in a February 14, 2008, final order, in which it discusses the eight Michael K.T. factors and concludes that it is not in the best interest of this child to allow Jason Galloway to present evidence for the purpose of disestablishing paternity. Jason Galloway now appeals that order.
II.
Standard of Review
In this case, we are asked to review an order of the Circuit Court of Wood County that affirmed an order rendered by the Family Court of Wood County. With respect to our review of such an order by a circuit court, we have held that:
In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.
Syllabus Point 1, Carr v. Hancock, 216, W.Va. 474, 216 W.Va. 474, 607 S.E.2d 803 (2004).
III.
Analysis
The issue of whether paternity test results disproving paternity should be admitted into evidence first came before this Court in the Michael K.T. ease. In Syllabus Point 3 of Michael K.T., this Court held:
A trial judge should refuse to admit blood test evidence which would disprove paternity when the individual attempting to disestablish paternity has held himself out to be the father of the child for a sufficient period of time such that disproof of paternity would result in undeniable harm to the child.
As this Court has frequently emphasized, the best interest of the child is the polar star by which all matters affecting children must be guided. See Syllabus Point 7, In re Brian D., 194 W.Va. 623, 461 S.E.2d 129 (1995) (“Cases involving children must be decided not just in the context of competing sets of adults’ rights, but also with a regard for the rights of the children).”). With this principal in mind, this Court has recognized that “the law favors the innocent child over the putative father in certain circumstances.” Michael K.T., 182 W.Va. at 405, 387 S.E.2d at 872. Although we did not establish a finite period of time which must pass before blood test evidence is inadmissible, we did state that “absent evidence of fraudulent conduct which prevented the putative father from questioning paternity, this Court will not sanction the disputation of paternity through blood test evidence if there has been more than a relatively brief period of time.” Id. In William L. v. Cindy E.L., 201 W.Va. 198, 495 S.E.2d 836 (1997), for example, this Court found that a husband in a divorce proceeding could not use blood test evidence to disestablish paternity of child with whom he had a normal father/child relationship for four years.
Turning to the case sub judice, we initially note that Jason Galloway has presented this issue four times in the courts below, twice in family court and twice on appeal to the Circuit Court of Wood County. On all four of these occasions, the courts below have concluded that Jason Galloway held himself out as Ivy’s father for a sufficient period of time such that allowing him to offer evidence for the purpose of disproving paternity would result in harm to the child. Jason Galloway’s main argument before this Court is that the guardian ad litem failed to perform a proper investigation into the Michael K.T. factors, and the circuit court below made factual findings that were clearly erroneous and not supported by the record. We disagree.
The undisputed facts the circuit court, relied on were that Jason Galloway remained married to Tiffany Galloway and living with Ivy for 14 months after discovering he was not the child’s father. While the issue of paternity was raised during the initial divorce proceeding, that proceeding was dismissed on November 16, 2001. The paternity issued remained dormant from that date until February 21, 2003, when Jason Galloway filed a second divorce action. During this gap between the dismissal of the first case and the filing of the second case, Ivy continued to have a grandmother/grandchild relationship with Jason Galloway’s mother. Ivy continued to consider Jason Galloway to be her father until at least 2003.
While it is understandable that counsel for Jason Galloway would be frustrated by the guardian ad litem’s failure to produce a written report, the lack of a written report is not a sufficient ground to remand this case to the family court below for further proceedings. The guardian ad litem investigated the case, spoke with both Jason and Tiffany Galloway, and discussed the Michael K.T. factors at the January 30, 2007, family court hearing. The guardian ad litem offered to answer any questions counsel had about his investigation at this hearing. The family court considered the oral recommendation of the guardian ad litem, as well as the testimony of Jason Galloway when it concluded that he should not be allowed to present evidence for the purpose of disestablishing paternity.
In its February 14, 2008, final order, the circuit court weighed the evidence presented by both parties, and conducted a review of all eight Michael K.T. factors. The circuit court put strong emphasis on the first factor, the length of time following when the putative father first was placed on notice that he might be the biological father before he acted to contest paternity, and found that it weighed against Jason Galloway “because a relatively lengthy period of time had passed” between the time he was put on notice that he was not Ivy’s father and the time he acted to contest paternity. The fourth Michael K.T. factor, the nature of the father/child relationship, was also given great weight by the circuit court, who found “there was evi dence that the Petitioner continued to hold himself out as the father of the child and the child had always considered him her father until at least the age of four. Additionally, the child has had an ongoing relationship with the Petitioner’s mother throughout most of the pendency of this matter.” The circuit court considered the last three factors together and determined that Ivy could suffer “great harm if she has no legal father and is not provided any support, financial or otherwise, from such legal father.” The circuit court applied the eight Michael K.T. factors to the evidence in the record and Jason Galloway has failed to demonstrate that these findings are clearly erroneous.
Finally, we note that Ivy is now ten years old and that remanding this case for a further investigation by the guardian ad litem, as urged by Jason Galloway, would again delay paternity from being settled. As this Court has previously stated, “it is in the child’s best interest for paternity to be settled sooner rather than later.” State ex rel. Dep’t of Health and Human Resources v. Michael George K., 207 W.Va. 290, 299, 531 S.E.2d 669, 678 (2000).
IV.
Conclusion
For the reasons set forth in this opinion, the judgment of the Circuit Court of Wood County, rendered on the 14th day of February 2008, is affirmed.
Affirmed.
Chief Justice BENJAMIN concurs and reserves the right to file a separate opinion.
. The fact that neither party appeared for this hearing is set forth in a September 26, 2007, family court order. Jason Galloway disputes this and states that he attended the hearing.
. Syllabus Point 4 of Michael K.T. v. Tina L.T., supra, states:
A guardian ad litem should be appointed to represent the interests of the minor child whenever an action is initiated to disprove a child's paternity.
. The Court relied on the reasoning of a Pennsylvania case, Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 369 A.2d 416 (1976), in concluding that the law favors the innocent child over the putative father in certain circumstances. Specifically, the Court relied on the following from the Andreas case:
Absent any overriding equities in favor of the putative father, such as fraud, the law cannot permit a party to renounce even an assumed duty of parentage when by doing so, the innocent child would be victimized. Relying upon the representation of the parental relationship, a child naturally and normally extends his love and affection to the putative parent. The representation of parentage inevitably obscures the identity and whereabouts of the natural father, so that the child will be denied the love, affection and support of the natural father. As time wears on, the fiction of parentage reduces the likelihood that the child will ever have the opportunity of knowing or receiving the love of his natural father. While the law cannot prohibit the putative father from informing the child of their true relationship, it can prohibit him from employing the sanctions of the law to avoid the obligations which their assumed relationship would other wise impose.
Andreas, 245 Pa.Super. at 313, 369 A.2d at 419.
. In 2003, when Ivy was four years old, Jason Galloway told her to stop calling him "daddy."
. We note that Trial Court Rule 21.03 allows a guardian ad litem to "make recommendations to the court by testimony or in writing, unless otherwise directed by the court.”
. The circuit court’s final order discusses a number of ways in which Ivy could be harmed by allowing Jason Galloway- to disestablish paternity:
First, the child would be left without a legal father even after having spent almost half of her life believing that the Petitioner was her father. Second, the child would be left without any type of support. This support would, as the Petitioner has clearly pointed out to the Court, undoubtedly include financial support. The child would be significantly harmed by the fact that she would never have any reliable or meaningful financial support from any legal father, natural or otherwise, if the paternity were disproved ... Also, it is important to note that there was a significant passage of time, at least four years, during which the chances of establishing paternity and a support obligation in a natural father in favor of the child have been diminished and reduced. Further, at this point in time the child is eight years old and the chances of establishing paternity are becoming increasingly reduced. | [
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PER CURIAM:
In this case, the West Virginia Department of Health and Human Resources (“the DHHR”) seeks a writ of prohibition to halt the enforcement of a circuit court order dismissing an abuse and neglect petition. The circuit court dismissed the petition as a sanction against the DHHR for failing to timely file an expert’s report with the circuit court.
As set forth below, we grant the requested writ.
I.
Facts and Background
On August 2, 2007, the DHHR filed an abuse and neglect petition against respondent Angela H. in the Circuit Court of Cabell County. The DHHR alleged in the petition that Angela H. had screened positive for amphetamine/methamphetamine, eannabinoids, and cocaine during the birth of her new son, K.M., on July 11, 2007, and that she had her parental rights to other children previously terminated in other actions. Angela H. voluntarily admitted to neglect, and the circuit court adjudicated the mother as neglectful and granted her motion for a post-adjudicatory improvement period.
The DHHR moved to terminate Angela H.’s improvement period — ostensibly because she was not complying with drug treatment programs and because of concerns about her parenting sMlls-and moved to terminate her parental rights to K.M. On August 6, 2008, the circuit court ordered the DHHR to perform a psychological evaluation of Angela H., and set the matter for a final disposition hearing on October 1,2008.
However, at the October 1, 2008 hearing, counsel for the DHHR announced that it had not yet begun to conduct a psychological examination of the respondent mother, Angela H. The circuit court then continued the disposition hearing to November 19, 2008. The circuit court also ordered that the DHHR complete the psychological evaluation of Angela H., and file a report of that evaluation with the court, by November 7, 2008. The circuit court explicitly stated that, if the evaluation was not filed by that date, then “the petition will be dismissed as to the respondent mother.”
The DHHR filed the required psychological report on November 14, 2008. At the November 19th hearing, the circuit court noted that the report had not been timely filed, as the circuit court had explicitly ordered, and the circuit court announced that the petition was being dismissed. The circuit court expressed frustration with the DHHR’s failure to comply with scheduling deadlines, and indicated that it was “an ongoing problem” that this Court should recognize.
In a written order filed December 12,2008, the- circuit court ordered that the abuse and neglect petition against Angela H. be “dismissed for failure to file the psychological report by November 7, 2008.” The circuit court also ordered that the child, K.M., be returned to his mother Angela H.’s custody.
The DHHR immediately petitioned this Court for a writ of prohibition to stop the enforcement of the circuit court’s oral and written orders dismissing the abuse and neglect petition.
II.
Standard of Review
We have held that “[prohibition lies only to restrain inferior courts from proceedings in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers, and may not be used as a substitute for [a petition for appeal] or certiorari.” Syllabus Point 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953). In Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), we stated the following standard of review where, as here, a petitioner contends that a trial court has exceeded its legitimate powers:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
III.
Discussion
The DHHR asserts that the circuit court exceeded its authority when it refused to conduct a hearing on the abuse and neglect petition, as required by W.Va.Code, 49-6-6 [1977], and issued an order that dismissed the petition as a sanction for the DHHR’s failure to timely file a psychological report. The DHHR asserts that a direct appeal of the circuit court’s order would be inadequate since the infant, K.M., would return to an alleged unsafe environment in the mother’s care pending review of the order on appeal.
W.Va.Code, 49-6-6 requires a trial court to conduct a hearing on any motion made to modify a child’s disposition. W.Va.Code, 49-6-6 states, in pertinent part:
Upon motion of a child, a child’s parent or custodian or the state department alleging a change of circumstances requiring a different disposition, the court shall conduct a hearing ... Adequate and timely notice of any motion for modification shall be given to the child’s counsel, counsel for the child’s parent or custodian and to the state department.
In the instant case, the circuit court refused to allow the DHHR to present evidence or witness testimony in a disposition hearing. The circuit court was clearly in error, and should have conducted a hearing to take evidence and testimony in support of the DHHR’s motion seeking to alter Angela H.’s and K.M.’s disposition.
This is not to say, however, that the circuit court erred in attempting to assess sanctions. The transcript of the November 19, 2008 hearing plainly reflects the circuit court’s frustration with the DHHR and its counsel arising from their repeated failures to comply with the circuit court’s orders. Our concern is that the remedy of dismissing the petition, without first considering other sanctions, fails to take into consideration the best interests of the child who is the subject of the abuse and neglect petition. As we stated in Syllabus Point 3 of In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996):
Although parents have substantial rights that must be protected, the primary goal in cases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children.
The early, most formative years of a child’s life are crucial to his or her development. In re Carlita B., 185 W.Va. 613, 623, 408 S.E.2d 365, 375 (1991). We have repeatedly emphasized that “children have a right to resolution of their life situations, to a basic level of nurturance, protection, and security, and to a permanent placement.” State ex rel. Amy M. v. Kaufman, 196 W.Va. 251, 257, 470 S.E.2d 205, 211 (1996). We therefore concluded, in Syllabus Point 1 of In re Carlita B., supra:
Child abuse and neglect eases must be recognized as being among the highest priority for the courts’ attention. Unjustified procedural delays wreak havoc on a child’s development, stability and security.
The central theme of the statutes which pertain to abuse and neglect is that “matters involving the abuse and neglect of children shall take precedence over almost every other matter with which a court deals on a daily basis, and it clearly reflects the goal that such proceedings must be resolved as expeditiously as possible.” Syllabus Point 5, In re Carlita B, supra.
The record in the instant ease shows that the circuit court attempted to give this abuse and neglect matter precedence, and attempted to resolve the case as expeditiously as possible. However, the DHHR and its counsel did not comply with the circuit court’s directions to timely file a report with the circuit clerk. If the circuit court perceived that the delays in resolving the ease resulted from action (or inaction) by the DHHR or its counsel, then any sanctions should first have been directed to the party or to the attorney at fault. But the overarching rule is that any sanctions first should take into account the health and welfare of the child.
IV.
Conclusion
The circuit court’s oral and written orders dismissing the abuse and neglect petition— while understandable — were in error, and failed to take into account the health and welfare of the child and failed to accord the DHHR with the ability to present its evidence and testimony. The writ of prohibition is granted.
Writ Granted.
Chief Justice BENJAMIN concurs and reserves the right to file a concurring opinion.
. The circuit court’s October 23, 2008 order states, in pertinent part:
Based upon the testimony adduced and the record herein, the Court did FIND as follows:
The psychological evaluation of the respondent mother has not been completed. If the psychological evaluation has not been filed on or before November 7, the petition will be dismissed as to the respondent mother____
It is, therefore, ORDERED as follows: ...
This matter is set for disposition as to the respondent mother on November 19, 2008 at 9:00 am; however, if the psychological evaluation of the respondent mother is not filed with the Court on or before November 7, 2008, the petition shall be dismissed as to the respondent mother.
.The following exchange occurred at the November 19, 2008 hearing between the circuit judge, the assistant prosecutor who represented DHHR, and the DHHR case worker:
The Court: By order entered October 23, 2008, pursuant to our appearance here on October the 1st, 2008, I set this matter for disposition today with the proviso that if the psychological evaluation of the Respondent Mother is not filed with the Court on or before November the 7th, 2008, the petition shall be dismissed as to the Respondent Mother. The psychological [report] was not filed until November the 14th, and the Court is dismissing the petition.
Prosecutor: Will the Court entertain a motion for a stay, so that we can approach the Supreme Court of—
The Court: No. I'm dismissing the petition. You may appeal it.
Case worker: I thought that I had the psychological evaluation brought down here, filed and distributed to everybody on Friday the 7th, and I filed one, again, with my court summary.
The Court: It was filed November the 14th, 2008 at 2:34 p.m. in the circuit clerk’s office.... This is one I want to go up, because I want the [Supreme] Court to know when we order things, we don't get them done.... And it’s been an ongoing problem.... I ordered that it be filed and it was not filed timely, and I’m going to back up my order. If the Court wants to send it back, they can send it back, that’s their decision to make. But this is — I'd actually like someone to take my deposition sometime so I can give them the cases and the deadlines and the time frames that we get. They contract these things with the contractual providers and it just doesn’t work. It's dismissed for failure to file it by November the 7th, just like I said. It’s dismissed.
.On November 25, 2008, the petition for the writ of prohibition was filed by an assistant attorney general on behalf of his client, the DHHR. Oddly, the next day, an assistant prosecutor who also represented the DHHR filed a response to the writ of prohibition. The West Virginia Rules of Appellate Procedure allow a party to file only one merits brief on a petition for a writ of prohibition, not two — and they absolutely do not allow parties to file response briefs to their own petition. And to the extent that the assistant prosecutor filed the brief on her own behalf and not the DHHR, we do not believe that trial counsel is an "affected party” with standing to file a brief in opposition to her client’s position. See W.Va. R.A.P. Rule 14.
. We issued a rule to show cause why the petition should not be granted, and the circuit court has delayed reunification of the child with Angela H. pending the Court’s decision.
. We do not, by our decision today, mean to imply that dismissal of a petition is not permitted. To the contrary, dismissal of the petition is the first disposition a court is to consider when assessing any abuse and neglect petition. As W.Va.Code, 49-6-5(a) [2006] says, in part:
Following a determination ... wherein the court finds a child to be abused or neglected, the department shall file with the court a copy of the child’s case plan, including the permanency plan for the child____ The court shall forthwith proceed to disposition giving both the petitioner and respondents an opportunity to be heard. The court shall give precedence to dispositions in the following sequence:
(1) Dismiss the petition[.] | [
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PER CURIAM:
Appellant Charleston Area Medical Center, Inc. (hereinafter “CAMC”), appeals from a final decision of the Circuit Court of Kanawha County, West Virginia, affirming the denial of CAMC’s Petition for Reassessment, filed with the State Tax Department of West Virginia, Office of Hearings and Appeals. In that petition, CAMC sought to vacate an assessment by the State Tax Commissioner, and sought a refund of that assessment. The circuit court, however, upheld the validity of the assessment concluding that CAMC’s provision of in-house health care benefits to certain employees should be considered “gross receipts” for the purposes of the West Virginia Health Care Provider Tax Act of 1993 (hereinafter also referred to as “the Act”). See W. Va.Code § 11-27-1 to -37 (2005 & Supp.2009). Because the circuit court ignored any application of West Virginia Code § ll-27-22(c), which mandates that a health care provider’s method of accounting for purposes of the Act be consistent with its accounting methods used for federal income tax purposes, we reverse and remand this case for entry of an Order directing that Appellee State Tax Department of West Virginia refund to CAMC the amounts paid under protest by CAMC after the administrative decision below.
I. FACTUAL AND PROCEDURAL HISTORY
During the relevant time period, the 1996 and 1997 tax years, CAMC, a non-profit corporation operating hospital facilities in Charleston, West Virginia, provided an optional “self-insurance program” to its approximately 4,500 employees, as well as its retirees. Employees and retirees opting to participate in the program (hereinafter jointly referred to as “covered employees”) were eligible to receive health care at both CAMC facilities and other unrelated, or “outside,” facilities.
To fund the program, CAMC withheld monthly “premiums” from covered employees’ paychecks (retirees made monthly contributions), and deposited the withholdings into a trust fund. CAMC included these premiums in its gross receipts, and thus paid health care provider taxes on those monies. When a covered employee utilized an outside provider, CAMC would pay that provider out of the fund. Covered employees would sometimes also have to pay a deductible or co-pay when using an outside provider, but the fund would cover the balance. CAMC paid the outside providers in cash and then those providers presumably reported those payments as income in their gross receipts for tax purposes.
At issue in this case is the care CAMC provided to its covered employees at its own facilities. Unlike the system used for outside providers, when a covered employee obtained health care at a CAMC facility, no money was withdrawn from the trust fund. Instead, CAMC treated covered employees as a regular patients, recording all aspects of their treatment in the hospital’s billing system. Thus, CAMC tracked the charges associated with the covered employee’s treatment in the same manner that it would track any other patient’s costs, recording the expenses in its billing system.
Unlike other patients, however, CAMC never billed the covered employees or any third party, such as an insurance company, for the charges incurred, nor did it receive any monetary payment for those costs in any other form. Instead, after recording the covered employees’ medical costs in the accounting system, CAMC would then make an adjusting entry and remove that amount from the system. Essentially, because CAMC understood that it would never receive any financial remuneration for the care it provided to its covered employees, it removed the value of that care from its “accounts receivable.” By removing the amount from the “accounts receivable,” CAMC also removed the amount from its taxable “gross receipts,” and thus did not pay the health care provider tax on the cost of the health care provided through its health insurance program.
In February 1998, the State Tax Commissioner assessed an additional health care provider tax against CAMC for the period of July 1,1994, through June 80,1997, asserting that CAMC was liable for the additional tax based on the accounting entries reflecting the costs associated with health care provided to covered employees. The additional tax for the three years totaled $699,515, which consisted of $537,456 in taxes and $132,059 in interest.
CAMC objected to the assessment, and filed a Petition for Reassessment with the State Tax Commissioner. On December 2, 1999, an administrative law judge (hereafter “ALJ”) assigned to the case by the West Virginia State Tax Commissioner’s Office of Hearing Appeals, conducted a hearing on the Petition for Reassessment. At that hearing, CAMC presented two witnesses, while the State Tax Commissioner relied solely on the Notice of Assessment. Following additional briefing, the ALJ issued an administrative decision on March 6, 2001, modifying the earlier assessment. Specifically, the ALJ concluded that the portions of the assessment relating to time periods barred by the statute of limitations could not be collected. The ALJ sustained the assessment for the 1996 and 1997 tax periods, however, and ordered CAMC to pay $198,269 in taxes and $56,904.92 in interest.
CAMC paid the amount ordered under protest and, on May 2, 2001, filed a petition appealing that administrative decision to the Circuit Court of Kanawha County, West Virginia. On May 1, 2008, the circuit court entered an order affirming the assessment by the State Tax Commissioner for the 1996 and 1997 tax periods, and dismissing the ease.
In affirming the assessment, both the ALJ and the circuit court found that CAMC had received “payment” for the medical services provided to covered employees in the form of services rendered. By statute, a provider’s gross receipts are required to include both cash payments and payments “in kind.” Both the ALJ and the circuit court reasoned that the provision of the self-insurance program by CAMC was part of the covered employees’ compensation and, thus, the employees “paid” for their medical care by performing their duties. Moreover, as the ALJ stated,
[t]he economic advantage of health coverage is a great incentive for a majority of the workers in the job place, who, but for that job benefit, would otherwise not be able to afford such coverage. By providing such a benefit to its employees, CAMC, in return, obtains the continued benefit in terms of reduced employee turnover and absenteeism, high productivity and growth of experience in staff level.
Thus, because the ALJ and the circuit court found that CAMC received a benefit for providing medical care to covered employees, they each concluded that the care was paid for “in kind,” and such payment should have been included in CAMC’s gross receipts. Had they been included in those receipts, the health care provider tax would have applied. Accordingly, each affirmed the assessment for the tax periods not barred by the statute of limitations.
II. STANDARD OF REVIEW
“The same standard set out in the State Administrative Procedures Act, W. Va. Code, 29A-1-1, et seq., is the standard of review applicable to review of the Tax Commissioner’s decisions under W. Va.Code, 11-10-10(e) (1986).” Syl. Pt. 3, in part, Frymier-Halloran v. Paige, 193 W.Va. 687, 458 S.E.2d 780 (1995). The West Virginia Administrative Procedures Act provides that “an agency action may be set aside if it is ‘[clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or ... [arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.’” Id. at 695, 458 S.E.2d at 788 (quoting W. Va.Code § 29A-5-4(g)(5) and -4(g)(6)(1964)). “The ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which presume the agency’s actions are valid as long as the decision is supported by substantial evidence or by a rational basis.” Id.
“However, the clearly erroneous rule does not protect findings made on the basis of incorrect legal standards.” Frymier-Halloran, 193 W.Va. at 695 n. 13, 458 5.E.2d at 788 n. 13. As always “[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Thus, “[o]n appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W. Va.Code § 29A-5-4[] and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing-court believes the findings to be clearly wrong.” Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
III. DISCUSSION
a. Background
The West Virginia Health Care Provider Tax Act of 1993 imposes a series of annual broad-based taxes on a variety of services rendered by health care providers. The purpose of this tax is to assist the State of West Virginia (hereinafter “the State”) in raising its share of funds necessary to draw down federal matching funds for Medicaid. W. Va.Code § 11-27-1. To that end, the Act is designed to conform with a federal statute that “places limitations and restrictions on the flexibility states have to raise state share for its medical assistance program.” Id. at § 11 — 27—1(f).
Under the Act, health care providers are taxed, at varying rates, for the privilege of providing sixteen separate types of health care services. Id. at § 11-27-4 to -19. As an example, for providing inpatient hospital services, CAMC is taxed at “two and one-half percent of the gross receipts derived by the taxpayer from furnishing inpatient hospital services in this state.” Id. at § ll-27-9(b) (emphasis added). While the tax rates vary for the different categories of services, the tax is always based on the provider’s “gross receipts” from furnishing that service. Id. at §§ 11-27-4 to-19.
Each tax category defines “gross receipts” as:
the amount received or receivable, whether in cash or in kind, from patients, third-party payors and others for ... [particu lar health] services famished by the provider, including retroactive adjustments under reimbursement agreements with third-party payors, without any deduction for any expenses of any kind: Provided, That accrual basis providers shall be allowed to reduce gross receipts by their contractual allowances, to the extent such allowances are included therein, and by bad debts, to the extent the amount of such bad debts was previously included in gross receipts upon which the tax imposed by this section was paid.
See, e.g., § ll-27-9(c)(l) (emphasis added). Thus, the tax is based on the “gross receipts” for a particular service, and gross receipts include the accounts received or receivable for the provision of that service. Id. Importantly, the receivables include payments in cash or “in kind.” Id.
In this case, the State Tax Commissioner levied an additional assessment on CAMC, taxing the cost of the care that CAMC provided to its covered employees, which the State Tax Commissioner believed constituted “receivables” and thus should have been included in CAMC’s “gross receipts.” In assessing the additional tax, the State Tax Commissioner concluded that CAMC received the services of its covered employees in exchange for the payments otherwise due for the health services provided to them. Because this exchange is payment “in kind” for those services, and because gross receipts include “in kind” payments, the State Tax Commissioner contends that the cost of the care provided should be included in the gross receipts.
CAMC disputes the State Tax Commissioner’s contention that the cost of the care it provided to its covered employees constituted an “accounts receivable,” and points out that it never billed any party for those costs, nor did it ever receive, or expect to receive, remuneration for them. Although CAMC tracked the costs through entries in its accounting system, CAMC contends that those entries were never intended to be part of its gross receipts. To the contrary, according to CAMC, the method used relative to its covered employees was purely for tracking purposes, not billing purposes. CAMC argues that its method of accounting is supported by the generally accepted accounting principals, and it points out that it does not report the costs of the health care provided to its covered employees as gross receipts on its federal income tax forms.
CAMC additionally points out that not all of its employees opted into the self-insurance program, and that those not in the program did not receive additional compensation in any other form. Similarly, an employee was expected to work the same number of hours and perform the same duties, regardless of whether he or she opted into the self-insurance program. Thus, CAMC argues that the State Tax Commissioner failed to present any evidence that CAMC obtained a greater benefit from covered employees then from employees who did not participate in the self-insurance program.
Along those same lines, CAMC notes that although it provided coverage to all employees participating in the self-insurance plan, not all of those covered employees actually partook of the health care services offered by CAMC, while others used a substantial amount of care. Thus, CAMC contends, the value of the services rendered to a covered employee bore no relation to any benefit CAMC gleaned through the alleged “in kind” payment.
b. Accounting Method
The reason for this Court’s reversal of the circuit court stems from the failure of both the ALJ and the circuit court to properly apply the provisions of West Virginia Code § ll-27-22(e). That statute requires “accounting consistency” in the methods of accounting used in calculating health care provider taxes and federal income taxes. Specifically, West Virginia Code § 11-27-22(c), provides, in relevant part, that “[a] taxpayer’s method of accounting under this article shall be the same as taxpayer’s method of accounting for federal income tax purposes.” Id. (emphasis added). Undisputedly, CAMC did not report the “accounting entries” reflecting the costs associated with the health care it provided to its covered employees through its self insurance program as “gross receipts” for federal income tax purposes. Thus, CAMC argues that by requiring it to report those costs in its gross receipts for purposes of the health care provider tax, the State Tax Commissioner, in effect, is requiring that CAMC use a different method of accounting than it uses for calculating its federal income tax, which directly contradicts the plain language of the statute.
In considering this issue, the ALJ acknowledged in his decision that West Virginia Code § ll-27-22(e) requires consistency in the accounting methods. Yet, the ALJ refused to apply the clear statutory directive, finding it inconsistent with other aspects of the statute. The ALJ states in his decision, which was affirmed by the circuit court:
While it is true that W. Va.Code § 11-27-22(e) requires that health care providers follow the same method of accounting on their West Virginia returns as that adopted on their federal income tax returns, the provision does not permit the departure from yet another mandatory provision of the statute imposing the very tax. That provision, in each case, states that “[T]he [sic] tax imposed in subsection (a) of this section shall be ... percent of the gross receipts derived by the taxpayer from furnishing (health care) services in this state.”
Obviously, the mandatory provisions imposing the tax measured by gross receipts should in all cases supersede any other provision, mandatory that it may be, setting forth the mere accounting method used as a starting point for determining taxable income.
(internal citations omitted).
In reviewing any statute, it is well-established in West Virginia that
“[a] statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith.” Syllabus Point 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).
Syl. Pt. 3, Joslin v. Mitchell, 213 W.Va. 771, 777, 584 S.E.2d 913, 919 (2003).
In deciding the meaning of a statutory provision, “[w]e look first to the statute’s language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed.” Appalachian Power Co. v. State Tax Dep’t, 195 W.Va. 573, 587, 466 S.E.2d 424, 438 (1995). See also Syl. pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970) (“[w]here the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.”); Syl. pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) (“[a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.”).
Davis Mem’l Hosp. v. West Virginia State Tax Comm’r, 222 W.Va. 677, 682, 671 S.E.2d 682, 687 (2008).
There has been no issue raised concerning any ambiguity found within the provisions of West Virginia Code § ll-27-22(c). Moreover, a plain reading of that statutory provision indicates that it clearly and unambiguously provides, in relevant part, that “[a] taxpayer’s method of accounting under this article shall be the same as taxpayer’s method of accounting for federal income tax purposes.” Id. (emphasis added). As this Court has previously held, “[t]he word ‘shall,’'in the absence of language in the statute-showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation.” Syl. Pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969); accord Clower v. West Virginia Dept. of Motor Vehicles, 223 W.Va. 535, 544, n. 8, 678 S.E.2d 41, 50 n. 8 (2009)(“The Legislature’s use of the word ‘shall’ ... is given the mandatory meaning of that term.”).
Despite the mandatory meaning of the term “shall” in West Virginia Code § 11-27-22(e), the ALJ determined that the provisions of West Virginia Code § ll-27-4(b), which provides that “[t]he tax imposed in subsection (a) of this section shall be one and three-fourths percent of the gross receipts derived by the taxpayer from furnishing ambulatory surgical center services in this state[,]” “supersede^] any other provision,” including “the mere accounting method” set forth in West Virginia Code § 11-27-22(e).
Let there be no mistake that absent from the Act is any express language by the Legislature that it intended anything other than the .mandatory meaning set forth in West Virginia § ll-27-22(c), which clearly provides that a taxpayer’s accounting method for the purposes of the health care provider tax “shall be the same as the taxpayer’s method of accounting for federal income tax purposes.” Id. (emphasis added). In other words, there -is no indication that the other statutory provisions establishing the rate and measure of the tax imposed, which were relied upon by the ALJ, superceded, changed, or otherwise altered a taxpayer’s accounting method.
To the contrary, by mandating accounting consistency between state and federal taxes, the Legislature, in enacting West Virginia Code § ll-27-22(c), sought to assist taxpayers in maintaining consistency in their record keeping and, in so doing, prevent the significant burden on the taxpayer that having to keep multiple sets of books and to apply multiple accounting methods would impose. The ALJ, and ultimately the circuit court, however, simply ignored the clear and unambiguous statutory provision established in West Virginia Code § ll-27-22(c).
Because of this action, the ALJ and ultimately the circuit court assessed additional health care provider taxes because of a decision mandating CAMC to deviate from the accounting method it uses for federal tax purposes. This is clear given that for federal tax purposes, CAMC did not include accounting entries associated with the self-insurance benefits in its gross receipts, while the ALJ required those same entries, which reflect non-cash items, to be included in gross receipts for the health care provider tax. This was erroneous and violated the provisions of West Virginia Code § ll-27-22(e).
IV. CONCLUSION
Based upon the foregoing, the Court concludes that the circuit court erred in denying CAMC’s petition for reassessment of the additional health care provider tax and interest at issue in this case. Consequently, the Court reverses the final order of the Circuit Court of Kanawha County and remands this case for entry of an Order directing that Appellee State Tax Department of West Virginia refund to CAMC the amounts paid under protest by CAMC after the administrative decision below.
Reversed and remanded.
Justice MeHUGH, having been disqualified, did not participate in the decision of this ease.
Judge SWOPE sitting by temporary assignment.
. There are other errors raised by the Appellant; however, it is not necessary to address these errors due to the Court’s decision to reverse based upon the ALJ’s failure to apply the mandate of West Virginia Code § 1 l-27-22(c).
. CAMC has since changed its self-insurance program and, thus, the question presented in this case is limited to the taxes collected for those years.
.The self-insurance program was the only type of insurance offered by CAMC to its employees. Consequently, employees opting not to participate in the self-insurance program either obtained insurance on their own, perhaps through a spouse, or had no health insurance at all.
. No explanation is given for the seven year delay by the circuit court in issuing this decision.
. See, e.g., W. Va.Code § 1 l-27-9(c)(l)(defining "gross receipts”).
. During the time period at issue in this case, CAMC reported and paid health care provider taxes on its provision of five types of health services: (1) ambulatory surgical centers, (2) emergency ambulance services, (3) inpatient hospital services, (4) physicians’ services, and (5) therapists’ services.
. The State Tax Commissioner contends that no health care is free, even when it is rendered by a health care provider to its employees. Thus, he argues, CAMC must have recouped the costs of such care somewhere, likely by passing the cost on to its employees in the form of reduced wages; the fact that CAMC recouped its expenses in ways more subtle than through cash payments does not mean it should be exempt from paying taxes on that remuneration.
. Contrary to CAMC's contention that the entries were not "accounts receivable,” in the hearing before the ALJ, CAMC’s expert witness in the field of health care accounting, Charles Gibbs, in explaining the accounting method used by CAMC referred to these entries as "accounts receivable.”
. The circuit court’s Order did not specifically address this matter; however, it did affirm the ALJ's decision regarding the issue.
. See, e.g., W. Va.Code § 1 l-27-4(b)(setting forth similar rate and measure of tax language relative to ambulatory surgical centers); W. Va. Code § 1 l-27-7(b)(setting forth similar rate and measure of tax language relative to emergency ambulance service); W. Va.Code § 11-27-9(b)(setting forth similar rate and measure of tax language relative to inpatient hospital services); W. Va.Code § 11-27-16(b)(setting forth similar rate and measure of tax language relative to physicians’ services); and W. Va.Code § 11 — 27— 19(b)(setting forth similar rate and measure of tax language relative to therapists’services). | [
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McHUGH, Justice.
This case is an appeal of the January 13, 2009, order of the Circuit Court of Clay County, by the petitioner below, Kimberly Thomas. By the terms of this order, the circuit court affirmed the family court’s denial of Ms. Thomas’s request for issuance of a domestic violence protective order against respondent below, Joseph B. Morris, pursuant to the provisions of Chapter 48, Article 27 of the West Virginia Code. After carefully examining the record and law in light of the arguments before us, we reverse the circuit court order and remand the matter for return to the family court for entry of an appropriate final protective order.
I. Factual and Procedural Background
Ms. Thomas and Mr. Morris had been in a twelve-year romantic relationship which Ms. Thomas terminated in December 2007. Mi-. Morris attempted to rekindle the relationship beginning in May 2008. Mr. Morris’s efforts to renew the relationship included an ever-increasing number of phone calls and voice mail messages to both Ms. Thomas’s cell phone and work phone, and unannounced appearances at Ms. Thomas’s workplace and at her home. Ms. Thomas maintains that each time she refused to resume the relationship, Mr. Morris’s harassing conduct escalated, culminating in the incidents which occurred on July 13, 2008.
Ms. Thomas represented in her petition for a protective order that she feared for her physical safety based on Mr. Morris’s conduct on the evening of July 13, 2008, and his intensifying pattern of harassment. According to evidence Ms. Thomas supplied before the family court, she was at her trailer with her then boyfriend, now husband, Ray Blake, on July 13, 2008, when Mr. Morris arrived unexpectedly at around 7:30 p.m. After Ms. Thomas did not answer the door, Mr. Morris did not leave the premises but began moving around the outside of the residence, banging on the doors and windows for a period of approximately one to two hours, and asking Ms. Thomas to come out and talk with him. Ms. Thomas claimed that during this time she witnessed Mr. Morris pick up a three foot long metal bar or pipe and saw him bang it against the trailer. Ms. Thomas maintained that she effectively felt trapped in her home during this time. Ms. Thomas said that her feelings of being trapped in the trailer and fearing for her physical welfare were justified for reasons beyond the demanding behavior Mr. Morris exhibited on that evening. These reasons included: she knew Mr. Morris had obtained a concealed weapons permit and routinely carried a concealed weapon; she believed Mr. Moms’ vehicle was blocking her driveway so that she could not leave the scene in her car; and she had no way to call for outside assistance because she did not have a telephone connection in the trailer and cellular coverage was not available where the home was located. Eventually Ms. Thomas and her boyfriend waited until they were sure the Mr. Morris was on the back porch so that they could run out the front door to get to a neighbor’s home a quarter mile away to use a phone.
Once at the neighbor’s home, Ms. Thomas called a friend for a ride to the friend’s home. According to the testimony of both Ms. Thomas and the friend, they returned periodically to the trailer that night so that Ms. Thomas could retrieve her car. Ms. Thomas maintains that she did not immediately seek a protective order because she had hoped the events of the evening would be enough to convince Mr. Morris that she had no intention of renewing the relationship. When Mr. Morris resumed placing unwanted and unanswered phone calls, Ms. Thomas said she realized the events of July 13 were not going to deter Mr. Morris's conduct. At some point Ms. Thomas took up residence in Kanawha County where she filed a petition for a domestic violence protective order out of fear of what else might happen.
Mr. Moms did not deny that Ms. Thomas had ended the relationship, but maintained as a general matter that Ms. Thomas did nothing to deter his more recent advances: she never stopped talking with him on the phone, nor did she refuse his gifts of cards and flowers. She also resumed eating lunch and an occasional dinner with him, both alone and with friends and family. Mr. Morris asserted as well that Ms. Thomas visited him in a Charleston hospital during this period of time and showed physical affection toward him.
As to the events of the evening of July 13, 2008, Mr. Moms admitted going to Ms. Thomas’s trailer in order to talk. To refute Ms. Thomas’ allegations regarding a metal pipe, Mr. Morris introduced into evidence photographs of the door of the trailer taken after July 13 which he maintained did not show any indication that he or anyone had struck the door with a pipe. He also pointed out that Ms. Thomas did not produce a pipe or metal bar at the hearing. Mr. Morris also asserted that Ms. Thomas was free to leave the trailer during the time in question and could have done so by simply getting into her car and driving around his vehicle which was not completely blocking the driveway. Finally, Mr. Moms contended that Ms. Thomas’s actions on that night did not support her claims of being placed in fear of physical harm since she never attempted to contact law enforcement, she kept returning to the area after she left the trailer that night, and she waited several weeks before seeking a protective order.
Upon hearing the case after it was transferred from Kanawha County, the Family Court of Clay County entered an order on September 3, 2008, denying the request for a protective order. Ms. Thomas appealed that order to the circuit court.
By order dated on September 27, 2008, the circuit court reversed the ruling of the family court and remanded the ease. The order conveyed the instruction that the family court was to first “decide the case exclusively by determining whether ... [Ms. Thomas] has, by a preponderance of the evidence, proven an incident of domestic violence as defined by West Virginia Code § 48-27-202; second, the family court shall specifically determine and rule on whether ... [Ms. Thomas] was held, confined or detained against her will.... ”
No new evidence was taken on remand. After hearing the arguments of counsel, the family court again denied the petition for a protective order. The reason for the denial set forth in the family court order issued October 29, 2008, was: “For the reasons stated upon the record, the Court found Petitioner [, Ms. Thomas,] failed to prove by a preponderance of the evidence that Respondent committed domestic violence or abuse as defined by West Virginia Code § 48-27-202(1) through (5).” Ms. Thomas again appealed to the circuit court.
The second appeal resulted in the circuit court affirming the decision of the family court. In its order of January 13, 2008, the circuit court upheld the rulings of the family court which found that Ms. Thomas had not adequately carried her burden of proving that an act or acts of domestic violence had occurred.
It is from this order that Ms. Thomas filed her appeal; this Court granted review on an expedited basis on September 9, 2009.
II. Standard of Review
The concerns raised in this case involve our examination of a circuit court’s review of a family court order. As established in the syllabus of Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004),
In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.
Because our examination in this appeal turns on the interpretation of a statute, we further note that “[where the issue on an appeal from the circuit court is clearly a question of law ... involving an interpretation of a statute, we apply a de novo standard of review.]” Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
We proceed with our study of the issues presented in this appeal in light of these standards.
III. Discussion
Ms. Thomas initially maintains that the circuit court applied an incorrect standard of review to the family court’s determination of law regarding the requirements of W. Va.Code 48-27-202. She correctly states that a predicate underlying the application of law to fact is the determination of what the law requires. Indeed this Court has held that although “findings of fact [generally] are reviewed for clear error and conclusions of law are reviewed de novo ..., ostensible findings of fact, which entail the application of law or constitute legal judgments which transcend ordinary factual determinations[ ] must be reviewed de novo." Syl. Pt. 1, in part, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996). Unquestionably, Ms. Thomas’ arguments raised before the circuit court and renewed here regarding statutory interpretation raise purely legal questions subject to de novo review. Syl. Pt. 1, in part, Appalachian Power Co. v. State Tax Dept. of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute ... presents a purely legal question subject to de novo review.”).
It is clear from the January 13, 2009, order that the circuit court did not undertake an independent analysis of W. Va.Code 48-27-202(3) and (5). Instead, the circuit court applied an abuse of discretion standard to the family court’s findings and conclusions. Nonetheless, whether the application of the incorrect standard of review by the circuit court warrants our reversal in this case requires us to conduct a de novo review of these statutory provisions.
The legislative provisions Ms. Thomas asks us to consider are part of the definition of domestic violence contained in W. Va.Code § 48-27-202 (2001) (Repl. Vol. 2009), which provides in its entirety that:
“Domestic violence” or “abuse” means the occurrence of one or more of the following acts between family or household members, as that term is defined in section 27-204:[ ]
(1) Attempting to cause or intentionally, knowingly or recklessly causing physical harm to another with or without dangerous or deadly weapons;
(2) Placing another in reasonable apprehension of physical harm;
(3) Creating fear of physical harm by harassment, psychological abuse or threatening acts;
(4) Committing either sexual assault or sexual abuse as those terms are defined in articles eight-b and eight-d, chapter sixty-one of this code; and
(5) Holding, confining, detaining or abducting another person against that person’s will.
It is apparent from the plain language of the statute that the Legislature defined five separate acts which independently constitute domestic violence. “When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.” Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959).
Ms. Thomas calls into question the meaning of two of these statutorily defined acts, namely “Creating fear of physical harm by harassment, psychological abuse or threatening acts” and “Holding, confining, detaining or abducting another person against that person’s will.” W. Va.Code § 48-27-202(3) and (5) respectively. We examine these issues in the order presented by Ms. Thomas.
Ms. Thomas’ first argument centers on the act of domestic violence defined in subsection (5) of West Virginia Code § 48-27-202. Ms. Thomas contends the lower courts inappropriately found that evidence of actual physical restraint was a necessary pre requisite to proving the commission of the domestic violence act of “holding, confining, detaining or abducting another person against that person’s will.” Id. The applicable ruling of the circuit court is contained in the following excerpt from the January 13, 2009, order:
11. While the Respondent’s behavior was less than ideal, it did not rise to the level of domestic violence. The Respondent was outside of the Petitioner’s home for a period of one to two hours, but his behavior was not such that he was actively trying to hold, confine, detain or abduct the Petitioner. He was outside her home, attempting to speak with her, and clearly she did not want to speak with the Respondent. However, the Court believes that W. Va.Code § 48-27-202(5) contemplates more aggressive and direct action. The Petitioner testified that she was afraid to leave her home while the Respondent was outside, but she ivas not physically restrained or confined within her home. There was no testimony that the Respondent barred the doors to the Petitioner’s home, or in any way physically forced the Petitioner into her home, and held her there. The Petitioner’s witness, Ray Blake testified that the Petitioner possibly could have gotten her car out of the driveway, and that the Respondent did not have the driveway completely blocked.
Emphasis added. It is readily apparent from the order that the lower court imposed standards which do not appear in this act of domestic violence as it is defined in subsection (5) of West Virginia Code § 48-27-202.
No direct or indirect reference is made in the statute regarding physical force or aggressive action being an element necessary to establish an act of domestic violence pursuant to subsection (5). Moreover, physical imprisonment is hardly the only reason someone may not feel free to leave a situation — depending on the circumstances, fear of retribution, potential harm to others or like controlling factors could also serve the same end. Nothing in the statute places any restrictions on the way one may be held, confined, detained or abducted. Nor do we find any indication in the legislative findings and purposes set forth in the Prevention and Treatment of Domestic Violence Act which lead us to believe that imposing such a requirement would further the Act’s stated intent to deter, prevent and reduce incidences of domestic violence. “‘A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.’ Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).” Syl. Pt. 1, Sowa v. Huffman, 191 W.Va. 105, 443 S.E.2d 262 (1994). Accordingly, we hold that the act of domestic violence defined in West Virginia Code 48-27-202(5) as “holding, confining, detaining or abducting another person against that person’s will” does not require proof of some overt physical exertion on the part of the alleged offender in order to justify issuance of a protective order.
The preponderance of the evidence in this case established that Ms. Thomas had reason to believe that Mr. Morris prevented her from leaving her home on July 13, 2008. As related in the circuit court order, Mr. Morris was outside of Ms. Thomas’ home for a period of one to two hours attempting to speak with her despite her refusal to answer the door. Mr. Morris readily admitted during his testimony that he wanted to rekindle a relationship with Ms. Thomas and to this end called Ms. Thomas at home or at work over 150 times between May and July of 2008. Ms. Thomas testified that she repeatedly told Mr. Morris that she had no desire to reestablish a relationship with him. She also testified during the hearing that she stayed in the trailer on July 13, 2008, because Mr. Morris’ behavior of beating on the doors and windows of the trailer indicated he was in an agitated state, she knew Mr. Morris routinely carried a concealed weapon for which he had a permit, she believed Mr. Morris’ car was blocking her driveway so she could not drive away from the scene, and she was not able to get outside help to either leave the area or to have Mr. Morris removed because she did not have telephone service at the trailer. Although maintaining that Ms. Thomas was free to leave her home on that evening, Mr. Morris never demonstrated that any of Ms. Thomas’ assertions were unfounded. As such, the evidence presented established that Mr. Morris committed an act of domestic violence pursuant to West Virginia Code § 48-27-202(5) for which a protective order should have issued.
Ms. Thomas’ final assignment of error poses a similar evidentiary question relative to another act of domestic violence, defined in West Virginia Code § 48-27-202(3) as “[cheating fear of physical harm by harassment, psychological abuse or threatening acts.” The circuit’s court’s ruling in the January 13, 2009, order regarding this act of domestic violence provides as follows:
12. The Petitioner also contends that the Respondent’s acts, “created fear of physical harm by harassment, psychological abuse, or threatening acts,” as set forth in W. Va.Code § 48-27-202(3). Prior to the events of July 13, 2008, the Respondent had been contacting the Petitioner by phone (Respondent admits he called the Petitioner approximately 150 times between May and July), he also sent her flowers, offered her marriage, and offered his home, all in an attempt to rekindle their relationship. The Petitioner argues that when considering this history, the acts of the Respondent on July 13, 2008, were sufficient to create fear of physical harm in the Petitioner. While the actions of the Respondent throughout the summer of 2008 were undoubtedly “persistent and annoying,” as the Family Court found, there is no evidence that the Respondent ever threatened the Petitioner with physical harm during this time that would lead the Petitioner to reasonably believe the Respondent was threatening her with physical harm on July 13, 2008.
Emphasis added. The circuit court’s interpretation of the statutory definition of this particular act of domestic violence also goes beyond the literal meaning of the statute. By finding that fear of physical harm due to harassment or psychological abuse cannot be established without some proof of an overt or explicit threat of harm by the alleged perpetrator, the lower court not only disregards the plain language of the statutory provision, but it also ignores the Legislature’s directive that the statute be liberally construed to further the purposes of deterring, preventing and reducing domestic violence through legal intervention. W. Va.Code § 48-27-101, n. 4 supra.
As evidenced by the use of the disjunctive “or” in Subsection (3) of West Virginia Code § 48-27-202, the Legislature has set forth three separate ways that fear of physical harm can be demonstrated: (1) by proof of harassment, (2) by proof of psychological abuse, or (3) by proof of threatening acts. Contrary to the circuit court’s finding that there must be some demonstration of an actual threat to commit physical harm, the reference in the statute to threatening acts does not limit such acts to verbal or other overt threats to impose physical harm by an alleged perpetrator. We, therefore, conclude the act of domestic violence defined in West Virginia Code 48-27-202(3) (2001) as “[c]reating fear of physical harm by harassment, psychological abuse or threatening acts” provides that fear of physical harm may be established with (1) proof of harassment, (2) proof of psychological abuse, or (3) proof of overt or covert threatening acts.
The record in this ease established that Mr. Monis created fear of physical harm by harassing Ms. Thomas to reestablish a romantic relationship through an unusually large number of phone calls, voice mail messages, visits to Ms. Thomas’ home and workplace, invitations to lunch and dinner and extending other offers of sizeable gifts. These acts viewed in conjunction with Ms. Thomas’ testimony about Mr. Morris’ threatening behavior on July 13, 2008, regarding Mr. Morris blocking her trailer driveway with his ear and beating on her trailer doors and windows for one to two hours while insisting that she come outside and talk with him provides ample proof that Ms. Thomas had reason to fear that Mr. Morris may physically harm her. These facts adequately support the issuance of protective order pursuant to West Virginia Code § 48-27-202(3.)
IV. Conclusion
As previously established, the circuit court first erred by applying an abuse of discretion standard to its review of questions of law raised on an appeal of a family court order. In addition, we find that application of the deferential standard served to uphold erroneous statements of the law. Therefore, the January 13, 2009, order of the circuit court is reversed. Having concluded that acts of domestic violence pursuant to West Virginia Code 48-27-202(3) and (5) were proven in this case, we reverse and remand the matter for the entry of an appropriate final protection order by the family court. Developments and other changes in circumstances may serve to shape the relief provided. Consequently, we remand the matter to the family court to ascertain the appropriate relief to be granted in the final protective order.
Reversed and remanded.
. The hearing tape from the family court proceeding relied upon by appellate counsel did not appear in the record submitted with the appeal. This Court directed the Clerk to obtain the tape for our review. Once again, we remind appellate counsel of their duty to verily the contents of the record accompanying an appeal and to take appropriate steps to assure that this Court has ready access to the record designated by counsel. Rule 8, W.Va. R.App. Proc.
. In addition to the briefs of the parties, the West Virginia Coalition Against Domestic Violence has made meaningful contribution to our deliberations in this case by submitting an amicus brief.
.Ms. Thomas filed an emergency petition for a domestic violence protective order in the Magistrate Court of Kanawha County on August 1, 2008. A magistrate issued an emergency protective order at that time, and sent the case to the Family Court of Kanawha County for hearing. Because the alleged events occurred in Clay County where both Ms. Thomas and Mr. Morris were living at the time the incidents occurred, the case was transferred by the Kanawha County Family Court to the Clay County Family Court.
. West Virginia Code § 48-27-204 (2002) contains the definition of family or household members to whom the statute applies. Although not raised as an issue in this case, we observe that the statute's protection extends to persons who are or were intimate partners, as well as to persons who are or were dating.
. The relevant findings and purposes of the Legislature in enacting the Prevention and Treatment of Domestic Violence Act appear in West Virginia Code § 48-27-101 (2001) (Repl. Vol. 2009) as follows:
(a) The Legislature of this State finds that:
(1) Every person has a right to be safe and secure in his or her home and family and to be free from domestic violence.
‡ S¡C !(C >¡* * #
(4) Domestic violence can be deterred, prevented or reduced by legal intervention that treats this problem with the seriousness that it deserves.
(b) This article shall be liberally construed and applied to promote the following purposes:
(1) To assure victims of domestic violence the maximum protection from abuse that the law can provide;
(2) To create a speedy remedy to discourage violence against family or household members with whom the perpetrator of domestic violence has continuing contact;
sk * * >k # *
(6) To recognize that the existence of a former or on-going familial or other relationship should not serve to excuse, explain or mitigate acts of domestic violence which are otherwise punishable as crimes under the laws of this State.
. In addition to the mandatory provisions which must appear in every protective order pursuant to West Virginia Code § 48-27-502 (2001), West Virginia Code § 48-27-503 (2001) also lists other provisions which a court may include in a protective order based upon the circumstances of a particular case. | [
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PER CURIAM:
The appellant, Anandhi Murthy, M.D., appeals two orders entered by the Circuit Court of Wetzel County on July 29, 2008, in the underlying wrongful death action brought against her. One order denied Dr. Murthy’s motion to alter the jury verdict, and entered judgment against her for $4 million plus pre-and post-judgment interest. The other order awarded attorney fees and costs against Dr. Murthy. For the reasons set forth below, we affirm in part, reverse in part, and remand this case to the circuit court for proceedings consistent with this opinion.
I.
FACTS
At 7:08 a.m. on June 1, 2001, Elizabeth Karpacs arrived in the Wetzel County Hospital Emergency Room with abdominal discomfort, nausea, vomiting, and diarrhea. Lab tests indicated that Mrs. Karpacs had a highly elevated white blood cell count, and x-rays revealed that Mrs. Karpacs may have been suffering from an ischemic condition in her colon. After receiving this information, Mrs. Karpacs’ family physician sought a surgical consult from the appellant, Dr. Anandhi Murthy.
After Mrs. Karpacs’ admission into the hospital’s intensive care unit, Dr. Murthy proceeded to attempt to rehydrate Mrs. Karpacs by means of an intravenous solution and to prescribe antibiotics. Throughout the day and evening, Dr. Murthy adjusted the amount of fluids given to Mrs. Karpacs. Dr. Murthy last visited Mrs. Karpacs at about 8:20 p.m.
After being advised to go home and come back the next day, the Karpacs family was suddenly called back to the hospital late that night and informed that nothing else could be done for Mrs. Karpacs. Mrs. Karpacs’ family subsequently executed a “do not resuscitate” or DNR order. Mrs. Karpacs eventually slipped into shock and died at 5:55 a.m. on June 2, 2001, apparently from the effects of a dead bowel.
Mrs. Karpacs’ daughter, Andrea KarpacsBrown, the appellee, thereafter brought a wrongful death action against Dr. Murthy, individually and as the administratrix of the estates of her mother and father. Mediation failed and a trial was held in the Circuit Court of Wetzel County from January 22, 2008, to January 25, 2008. The appellee presented expert testimony that Dr. Murthy failed to rehydrate Mrs. Karpacs sufficiently to prepare her for exploratory abdominal surgery which was necessary to preserve Mrs. Karpacs’ life. Dr. Murthy presented expert testimony that due to underlying conditions suffered by Mrs. Karpacs she could not have been rehydrated more aggressively in preparation for surgery. In addition, the appellee and her two siblings testified of their close relationship with their mother and the pain they endured as a result of her death.
At the close of the evidence, the jury found that Dr. Murthy’s negligence caused or substantially contributed to Mrs. Karpacs’ death. The jury awarded $1 million each to the appellee, her two siblings, and for the pain and suffering of Mrs. Karpacs prior to her death for a total verdict of $4 million. In its July 29, 2008, judgment order, the circuit court denied Dr. Murthy’s motion to alter the jury verdict to conform to the $1 million limit on non-eeonomic damages in W. Va.Code § 55-7B-8 (1986). The circuit court entered judgment on behalf of the appellee in the amount of $4 million plus $1,992,238.77 in prejudgment interest and $1,600.67 per day from January 25, 2008, until the judgment is satisfied. In a separate order also entered on July 29, 2008, the circuit court granted the appellee’s motion for attorney fees and costs.
On appeal to this Court, Dr. Murthy alleges several errors with regard to an evidentiary ruling made during the trial, the validity of the verdict rendered against her, and the circuit court’s award of attorney fees and costs to the appellee. This Court will now proceed to address the issues raised by Dr. Murthy.
II.
DISCUSSION
Dr. Murthy first claims that the circuit court erred in denying her the opportunity to respond to the appellees’ testimony by proffering evidence of the DNR order. In considering this issue, this Court is mindful that “[a]bsent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.” Syllabus Point 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).
Prior to trial, the circuit court ruled that evidence of the DNR order would be precluded at trial. Dr. Murthy does not challenge this ruling. Instead, Dr. Murthy argues that the appellee introduced evidence that Mrs. Karpacs’ family would have taken measures at any time on June 1, 2001, and the early morning hours of June 2, 2001, to save Mrs. Karpacs. According to Dr. Murthy, this evidence conflicts with the family’s consent to a DNR order. Dr. Murthy also complains that the appellee asserted at trial that Dr. Murthy abandoned Mrs. Karpacs. Dr. Murthy contends that she should have been permitted to introduce evidence of the DNR order to impeach the appellee’s claim of abandonment. According to Dr. Murthy, the circuit court’s refusal to allow her to introduce evidence of the DNR order to impeach the appellee’s evidence prejudiced her attempt to defend herself against the appellee’s allegations. The appellee responds that evidence introduced at trial has no connection to a DNR order entered at 12:30 a.m., the morning after Dr. Murthy’s claimed inaction had already doomed her mother.
We agree with the appellee. Any malpractice that Dr. Murthy committed occurred prior to the entering of the DNR order. Also, the fact that Mrs. Karpacs’ family consented to the DNR order did not abrogate Dr. Murthy’s duty to provide competent medical care. In addition, there is no evidence that Dr. Murthy knew of the DNR order at the time it was executed or that it affected her conduct in any way. Therefore, we conclude that the circuit court did not abuse its discretion in precluding the introduction of evidence of the DNR order as impeachment evidence, and we affirm the circuit court on this issue.
In her next two assignments of error, Dr. Murthy challenges the sufficiency of the evidence to support various parts of the jury verdict. In considering these issues, this Court is cognizant that
In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party’s evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inferences which reasonably may be drawn from the facts proved.
Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983).
First, Dr. Murthy alleges that the award of damagés for Mrs. Karpacs’ pain and suffering was error because there was insufficient proof of such damages. Dr. Murthy posits that no evidence was offered to prove that Mrs. Karpacs suffered conscious pain as a proximate result of Dr. Murthy’s actions. According to Dr. Murthy, the pain suffered by Mrs. Karpacs upon her arrival at the hospital cannot be attributed to Dr. Murthy. Also, while at the hospital, Mrs. Karpacs was made comfortable through treatment. Finally, Dr. Murthy asserts that there is no assurance that Mrs. Karpacs would have been pain free had Dr. Murthy performed exploratory abdominal surgery on her.
The appellee counters that Mrs. Karpacs entered the hospital with a very painful condition, and evidence shows that Dr. Murthy’s failure to treat this condition needlessly prolonged her pain. Also, there is evidence that Mrs. Karpaes began exhibiting signs of shock at approximately 8:20 p.m. Later, Mrs. Karpacs’ daughter noticed that she was cold and clammy and had a difficult time responding. As Mrs. Karpaes’ condition worsened, a full oxygen mask was placed on her which made communicating with her family difficult. There was also evidence that Mrs. Karpaes had to say goodbye to her family, including a young grandchild, in her final hours.
Again, we find no error on this issue. The jury found that Dr. Murthy’s negligence caused Mrs. Karpaes’ death. As a result, it is reasonable for the jury to infer that the physical pain and emotional turmoil suffered by Mrs. Karpaes as a result of her deteriorating condition were also caused by Dr. Murthy’s negligence. Therefore, we find no merit to Dr. Murthy’s alleged error on this issue, and we affirm the circuit court.
Next, Dr. Murthy avers that the circuit court erred in not reducing the $4 million damages award to conform to the 1986 version of W. Va.Code § 55-7B-8, of the Medical Professional Liability Act, which set the maximum recoverable amount for all non-economic loss at $1 million. Specifically, Dr. Murthy contends that no evidence of economic loss was offered by the appellee at trial. Instead, the claims were for Mrs. Karpaes’ pain and suffering, and her children’s claims were for sorrow suffered from losing their mother. According to Dr. Murthy, there was no effort to east Mrs. Karpaes’ relationship to her children in economic terms. Mrs Karpacs was not described as someone who baby sat her grandchildren, cooked for her children or grandchildren, or otherwise performed specific, quantifiable services.
In its order denying Dr. Murthy relief from the verdict, the eix'euit court found that Di\ Mux’thy’s failure to ask for a verdict form that clearly separated economic from non-economic damages or to ask for an inteiTogatoi’y sepai’ating economic loss fi’om non-economie loss is fatal to Dr. Murthy’s request for a review of the damages awarded. The eix’euit coui’t relied on this Coui’t’s decision in Gerver v. Benavides, 207 W.Va. 228, 530 S.E.2d 701 (1999), for its decision in this matter.
In Gerver, the plaintiff sued his surgeon for allegedly botching his vasectomy surgeiy. The plaintiff presented evidence at trial of lost futui’e earning capacity as follows:
[T]he plaintiffs physicians testified to the permanence of the plaintiffs injui’y, and one testified that the effects of the injury were “crippling” to the plaintiff. One physician testified that nothing further could be done surgically for the plaintiff which would reduce or eliminate his pain. Fui’thei’more, [the plaintiff] testified that, because of his chi’onic pain and his dependence on methadone to function, he was unable to retui’n to gainful employment. The juxy was presented with i'ecords showing the plaintiffs past wages and benefits (such as health insui'ance); with evidence that the plaintiff could no longer earn these wages and benefits; and with evidence that the plaintiff was a 34 year-old-man with a life expectancy of 41.4 more years.
Gerver, 207 W.Va. at 233-234, 530 S.E.2d at 706-707 (footnote omitted). Both the jury instructions and the vei’diet form merged economic damages with non-economic damages. The defendant did not object to the verdict form’s merger of certain economic and non-economic damages together under the heading of “genei’al damages” and did not submit special inteiTogatoiies that would allow the jury to sepai’ate economic from non-economic losses. Specifically, the verdict foi’m stated as follows with regard to general damages:
We the jury, fux’ther find, with regard to GENERAL DAMAGES including the following categories:
—For medical expenses in the futui’e; and
—For past and future physical pain and suffering and mental anguish; and
—For loss or impairment of future earning capacity and benefits; and
—For loss of capacity to enjoy life and to function as a “whole man:” $2,000,000.00
207 W.Va. at 234-235 n. 7, 530 S.E.2d at 707-708 n. 7. In his cross-appeal, the defendant in Gerver contended that the jury’s award of $2 million in “general damages” exceeded the $1 million cap on non-economic damages in W. Va.Code § 55-7B-8 (1986), and asked this Court to reduce the general damages portion of the verdict to $1 million.
This Court found no merit to the defendant’s alleged error in Gerver and explained:
This Court has held on several occasions that when a litigant seeks to make procedural distinctions between “special” damages and “general” damages, that litigant bears the burden of insuring that the circuit court distinguishes between types of damages in the jury’s verdict foim See, e.g., Grove By and Through Grove v. Myers, 181 W.Va. 342, 382 S.E.2d 536 (1989). In Syllabus Point 7 of Miller v. Monongahela Power Co., 184 W.Va. 663, 403 S.E.2d 406 (1991), we made clear that “when the defendant fails to submit a special jury interrogatory asking the jury to set forth special or liquidated damages, this Court’s attention to such errors is entirely a matter of graee[.]”
207 W.Va. at 235, 530 S.E.2d at 708. Accordingly, this Court indicated that “[a]s there is no means to determine whether the non-economic damages assessed by the jury exceeded the $1,000,000 statutory limit, this Court will not presume that error occurred.” Id.
We find that Gerver does not apply to the instant case. In this case, unlike in Gerver, there was no evidence presented of economic damages suffered as a result of Dr. Murthy’s negligence. Second, the appellee did not propose any jury instructions on economic damages. In fact, the subject of economic damages was not mentioned at all in the discussion by the parties and the court on jury instructions. Further, the appellee’s counsel did not argue for a finding of economic damages during his closing argument. Finally, the verdict form does not clearly provide for a finding of economic damages. Rather, the form simply provides for an amount of damages upon a finding of “Past and future sorrow, mental anguish and solace, loss of companionship, comfort and guidance, and loss of services, protection, care and assistance suffered by [each one of Mrs. Karpaes’ children].”
The circuit court, in its order denying relief to Dr. Murthy on this issue, characterized the phrase in the verdict form, “loss of services, protection, care and assistance” as clearly indicating economic damages under our law. However, in light of the absence of evidence of economic damages, the fact that such damages were not clearly addressed in the jury instructions, and the fact that economic damages were not argued to the jury, it cannot be concluded that Dr. Murthy was fairly put on notice that the phrase “loss of services, protection, care and assistance” permitted the jury to find that there were economic damages.
In Miller v. Monongahela Power Co., 184 W.Va. 663, 403 S.E.2d 406 (1991), overruled on other grounds by Mallet v. Pickens, 206 W.Va. 145, 522 S.E.2d 436 (1999), this Court discussed the issue of the calculation of prejudgment interest in the context of our decision in Grove By and Through Grove v. Myers, supra. In Grove, this Court indicated that the defendant has the burden of submitting a special interrogatory to the jury for the designation of the amount of special or liquidated damages for the purpose of calculating prejudgment interest, otherwise the plaintiff is entitled to prejudgment interest on the entire amount of a general verdict. In Miller, we cautioned that our statement in Grove needed to be clarified, and we proceeded to explain that
We did not intend with our statement in Grove to create a trap for the unwary defendant and a jackpot for the silent plaintiff. Our job is not to bail careless defense counsel out of problems of their own making, but neither is it to provide a ■windfall for plaintiffs who sit by and allow the matter of damages and prejudgment interest to become hopelessly confused. Consequently, we would clarify the Grove rule here by adding that when the lawyers and the trial court can sort out the parts of a judgment on which interest should be added, even without the special interrogatories, the trial court should do so.
Miller, 184 W.Va. at 673, 403 S.E.2d at 416.
Our reasoning in Miller applies to the present ease. In light of the fact that the appellee did not present her case below as one including economic damages, she did not proffer jury instructions on economic damages, and such damages were not included in the closing argument to the jury, it was reasonable for Dr. Murthy to not ask for a verdict form or an interrogatory separating economic from non-economic damages. As a result, Dr. Murthy should not be penalized in light of the reasonableness of her action in this regard. Therefore, this Court finds that Gerver does not apply to prevent this Court from reviewing the sufficiency of the evidence to support a verdict of economic damages in this case.
The circuit court concluded that sufficient evidence of economic loss was adduced below based on the following findings:
Services of a parent at issue in this case included (grand)child care, the loss of which is generally regarded as an economic loss, as well as certain household tasks like the cooking of holiday meals that also fall into that category. Of course the concepts of “assistance and care” are also partly economic in nature and embrace all of the sometimes prosaic, but highly valuable tasks performed by a modern grandmother, including, for example, serving and assisting her daughters at the births of grandchildren and in the early infancy of grandchildren when a grandmother is leaned on more heavily than any employee could be. Andrea Karpacs Brown testified about the importance of having the assistance of her mother at the birth of her eldest daughter, Alexandria, born before June 2001, and the loss of those services for her afterborn sons, Nicholas and Zachary and daughter, Adrianna. The jury would be justified in awarding amounts for the economic value of Mrs. Karpacs’ lost services whether or not Mrs. Karpacs would have charged for them because the purpose of the Wrongful Death Act is to compensate the decedent’s beneficiaries as fully as possible. (Footnotes omitted).
This Court’s review of the record indicates that the circuit court’s finding of sufficient evidence to support the award of economic damages is error. We find no evidence in the record that Mrs. Karpacs assisted in caring for her grandchildren, cooked holiday meals, or otherwise aided or advised her children. While the appellee indicates that her mother was present for the birth of her daughter Alexandria, she does not indicate that Mrs. Karpacs assisted the birth in any way. Having found insufficient evidence to support an award of economic damages, we are compelled to conclude that the entire amount awarded by the jury to the appellee is for non-economic loss. The maximum recoverable amount for all non-economic loss under the version of W. Va.Code § 55-7B-8 in effect at the time the underlying claim was brought was $1 million. This Court held in Syllabus Point 6 of Robinson v. Charleston Area Med. Center, 186 W.Va. 720, 414 S.E.2d 877 (1991), that
W. Va.Code, 55-7B-8, as amended, which provides that “the maximum amount recoverable as damages for noneconomic loss” in a medical professional liability action “against a health care provider” is $1,000,000, applies as one overall limit to the aggregated claims of all plaintiffs against a health care provider, rather than applying to each plaintiff separately.
Applying this rule to the instant facts, we find that the maximum amount recoverable in this case is $1 million. Therefore, we conclude that the circuit court erred in denying Dr. Murthy’s motion to reduce the verdict accordingly.
The fourth alleged error raised by Dr. Murthy is the circuit court’s award of prejudgment interest. Our decision above that the appellee failed to present evidence of economic loss is dispositive of this issue. This Court held in Syllabus Point 3 of Capper v. Gates, 193 W.Va. 9, 454 S.E.2d 54 (1994), that “[i]n contract or tort actions, prejudgment interest is available to a litigant as part of compensatory damages if there is an ascertainable pecuniary loss.” Because there is no ascertainable pecuniary loss in the instant case, prejudgment interest is not available. Accordingly, we conclude that the circuit court erred in awarding prejudgment interest to the appellee.
The last assignment of error raised by Dr. Murthy is that the circuit court improperly awarded attorney fees and costs to the appellee. In an order entered by the circuit court on July 29, 2008, the court awarded attorney fees and costs to the appellee based on findings that Dr. Murthy and/or her insurer acted vexatiously or in bad faith. The first basis for this award was the vexatious settlement strategy of Dr. Murthy’s malpractice insurer, Woodbrook. Second, the circuit court found that an expert witness designated by Dr. Murthy, Dr. Roger Abrahams, was not prepared and could not offer fully formed opinions when deposed by the appellee. Third, the court found that Dr. Murthy altered her deposition testimony by testifying for the first time at trial that Mrs. Karpaes had expressed to her an extreme fear of the prospect of surgery. In its order awarding attorney fees and costs, the circuit court did not award a sum certain, but rather directed the appellee to tender to the appellant a calculation of all attorney fees, expenses, and costs within thirty days. If the parties were unable to agree on the proper amount recoverable, the appellee was instructed to contact the circuit court for a hearing on the matter. Finally, the court indicated that it was granting fees and costs according to its inherent power to do so as well as pursuant to West Virginia Rules of Civil Procedure 26(e) and 37.
On appeal, Dr. Murthy argues that the circuit court erred in several ways in awarding fees and costs. First, says Dr. Murthy, the court erred in awarding costs and fees against her based on the actions of her insurer. Second, while Dr. Murthy does not concede error with regard to the matter of Dr. Abrahams, she asserts that the proper course would have been to award reasonable fees incurred in connection with the events surrounding Dr. Abrahams’ deposition, not to award fees and costs for the entire litigation. Finally, Dr. Murthy contends that her single episode of impeached trial testimony in this case does not serve as the basis for the award of fees and costs for the entire trial.
The appellee responds that the circuit court properly awarded fees and costs because the appellant violated trial court orders; repeatedly failed to appear at scheduled hearings; filed misleading pleadings with the court; attempted to present an expert under a false premise; presented inherently incredible testimony at trial; and behaved vexatiously and oppressively, wasting the time of the Court and the appellee in litigation that lasted for five years.
As a preliminary matter, we note that our review of the circuit court’s decision to award attorney fees and costs is for an abuse of discretion. This Court has held:
The imposition of sanctions by a circuit court under W. Va. R. Civ. P. 37(b) for the failure of a party to obey the court’s order to provide or permit discovery is within the sound discretion of the court and will not be disturbed upon appeal unless there has been an abuse of that discretion.
Syllabus Point 1, Bell v. Inland Mut. Ins. Co., 175 W.Va. 165, 332 S.E.2d 127 (1985). Concerning factors to be considered by a court in awarding fees and costs, this Court held in Syllabus Point 2 of Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996):
In formulating the appropriate sanction, a court shall be guided by equitable principles. Initially, the court must identify the alleged wrongful conduct and determine if it warrants a sanction. The court must explain its reasons clearly on the record if it decides a sanction is appropriate. To determine what will constitute an appropriate sanction, the court may consider the seriousness of the conduct, the impact the conduct had in the case and in the administration of justice, any mitigating circumstances, and whether the conduct was an isolated occurrence or was a pattern of wrongdoing throughout the case.
This Court finds that there are several problems with the circuit court’s order awarding attorney fees. First, we are unable to properly review whether the award of fees and costs herein was an abuse of discretion. While the record indicates that a hearing was held in which the parties argued post-trial motions including the motion for fees and costs, evidence was not taken at this hearing. In the absence of an evidentiary hearing, this Court is unable to undertake a meaningful review of the court’s factual findings on which it based its ruling. We are also unable to determine whether the award of all fees and costs is necessary to compensate the appellee for actual harm suffered as a result of Dr. Murth/s and/or her insurer’s alleged misconduct.
Further, in finding misconduct on the part of Dr. Murthy and/or her insurer, the court indicated that the insurer has shown a pattern of engaging in vexatious settlement strategy in other cases before the circuit court and in other states. The court also found that Dr. Murthy engaged in similar misconduct in a previous medical malpractice ease before the Wetzel County Circuit Court. It is improper, however, to impose, sanctions on a party for general misconduct which is unrelated to any identifiable harm suffered by the other party in the case. This Court has held:
Although Rules 11, 16, and 37 of the West Virginia Rules of Civil Procedure do not formally require any particular procedure, before issuing a sanction, a court must ensure it has an adequate foundation either pursuant to the rules or by virtue of its inherent powers to exercise its authority. The Due Process Clause of Section 10 of Article III of the West Virginia Constitution requires that there exist a relationship between the sanctioned party’s misconduct and the matters in controversy such that the transgression threatens to interfere with the rightful decision of the ease. Thus, a court must ensure any sanction imposed is fashioned to address the identified harm caused by the party’s misconduct.
Syllabus Point 1, Bartles v. Hinkle, supra. Under our law, awards of fees and costs against a party should be designed to pay the reasonable expenses caused by the party’s failure to cooperate in discovery. Accordingly, we remand this matter to the circuit court for proceedings consistent with this opinion.
Finally, in her brief to this Court, the appellee raises a cross-assignment of error which is that the circuit court erred in precluding the jury from considering the issue of punitive damages. As evidence to support punitive damages, the appellee points to the testimony of her medical expert that Dr. Murthy’s failure to adequately rehydrate Mrs. Karpaes, aggressively administer antibiotics, and operate on an emergency basis was “egregiously bad.” According to the appellee, the evidence indicates that Dr. Murthy acted with reckless indifference to her patient’s safety and, as a result, the issue of punitive damages should have gone to the jury.
This Court finds no error in the circuit court’s refusal to give an instruction permitting an award of punitive damages. Under our law, “[pjunitive damage instructions are legitimate only where there is evidence that a defendant acted with wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others to appear or where the legislature so authorizes.” Syllabus Point 7, Michael v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994). In the instant case, Dr. Murthy presented a medical expert who testified that Dr. Murthy did not commit medical malpractice. Dr. Murthy further testified to the reasons for her method of treating Mrs. Karpacs. We simply do not find sufficient evidence in the record to support an instruction on punitive damages. For this reason, we conclude that the circuit court did not err in refusing to give an instruction on punitive damages.
In sum, we affirm the circuit court’s ruling precluding the admission of evidence on the DNR order signed by Mrs. Karpac’s children. We further affirm the circuit court’s finding of sufficient evidence to sustain an award of damages based on Mrs. Karpac’s pain and suffering. However, we reverse the circuit court’s denial of Dr. Murthy’s motion to reduce the $4 million jury award to conform to the $1 million limit on non-economic damages in the 1986 version of W. Va.Code § 55-7B-8, as well as the circuit court’s award of prejudgment interest. In addition, we reverse the circuit court’s order awarding attorney fees and costs to the appellee. Finally, we affirm the circuit court’s refusal to instruct the jury on punitive damages.
III.
CONCLUSION
For the reasons stated above, we affirm in part and reverse in part the July 29, 2009, order of the Circuit Court of Wetzel County that denied Dr. Murthy’s motion to alter or amend the verdict and entered judgment on the jury verdict of $ 4 million plus interest. We reverse the July 29, 2009, order of the circuit court that granted attorney fees and costs to the appellee. Finally, we remand this ease to the circuit court for proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
Justice WORKMAN dissents and reserves the right to file a dissenting opinion.
. Elizabeth Karpacs’ husband, Andrew Karpacs, originally brought this action against Dr. Murthy. When Andrew Karpacs died, the appellee took his place in her capacity as the administratrix of her parents' estates.
. This code section was amended effective July 1, 2003, to decrease^ the limit on non-economic damages. See n. 3, infra.
. Because the appellee commenced her action against Dr. Murthy on May 23, 2003, prior to July 1, 2003, the date the 2003 amendments to W. Va.Code § 55-7B-8 went into effect, see W. Va.Code § 55-7B-10 (2003), the $1 million limit on non-economic damages applies to her case. Under the 2003 version of the statute, the maximum amount recoverable as compensatory damages for non-economic loss is $500,000 where the damages for non-economic loss suffered by the plaintiff are for wrongful death.
. The closest thing to evidence of economic damages in the record is the appellee’s statement, in response to the question how her mother's death affected her father, that she had a room added onto her house so her father could move in with her and her family after her mother’s death. According to the appellee, her father became lonely and depressed after her mother’s death.
. In Syllabus Point 3 of Sally-Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986), this Court held:
There is authority in equity to award to the prevailing litigant his or her reasonable attorney’s fees as "costs,” without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.
. In her brief, the appellee asserts that the circuit court’s order awarding fees and costs is not a final, appealable order because no amount has yet been assessed. However, this Court recently held in Syllabus Point 3 of C & O Motors, Inc. v. West Virginia Paving, 223 W.Va. 469, 677 S.E.2d 905 (2009):
An order determining liability, without a determination of damages, is a partial adjudication of a claim and is generally not immediately appealable. However, an immediate appeal from a liability judgment will be allowed if the determination of damages can be characterized as ministerial. That is, a judgment that does not determine damages is a final appeal-able order when the computation of damages is mechanical and unlikely to produce a second appeal because the only remaining task is ministerial, similar to assessing costs.
In the instant case, because all of the appellee's attorney fees, expenses, and costs were awarded, the only remaining task is ministerial, i.e., the calculation of these sums, which is unlikely to produce a second appeal. Therefore, we find that the order awarding fees and costs is appeal-able.
. Rule of Civil Procedure 26(e) relates to the duty to supplement discovery responses in certain specified circumstances and provides that "[i]f supplementation is not made as required by this Rule, the court, upon motion or upon its own initiative, may impose upon the person who failed to make the supplementation an appropriate sanction as provided for under Rule 37.”
The subject of Rule 37 is the failure to cooperate in discovery and the available sanctions for such failure. In addition to the several sanctions set forth in the rule, the rule also provides at (b)(2)(E), in part, that
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. | [
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McHUGH, Senior Status Justice:
Appellant CBC Holdings, LLC (“CBC”) seeks relief from an order of the Circuit Court of Wetzel County through which the trial court concluded that the declaratory judgment action CBC filed to resolve issues of ownership relating to the coalbed methane gas (“coalbed methane”) being extracted by Appellee Dynatec Corporation, USA, (“Dynatec”) was not ripe for decision due to Appellant’s failure to exhaust administrative reme dies available under the Coalbed Methane Act (“Act”). Contrary to the representations of Dynatec and the other corporate Appellees, Appellant asserts that the Act does not grant authority to the Division of Oil and Gas (“Division”) to address by ruling or remedy the ownership issues it has raised. After carefully scrutinizing the Act’s provisions in conjunction with the arguments raised by the parties, we conclude that the trial court committed error by refusing to address the ownership issues raised by Appellant on the grounds of CBC’s failure to exhaust its administrative remedies. Accordingly, we reverse and remand this matter to the trial court.
I. Factual and Procedural Background
Appellant filed a declaratory judgment action with the lower court on January 22, 2007, through which it sought to challenge Dynatec’s right to extract coalbed methane from the Pittsburgh seam of coal on land situate in Wetzel County. What CBC seeks to establish is that the lease agreement Dynatee entered into with Appellee New Gauley Corporation does not include the mineral rights to the coalbed methane based on the failure of the former surface owners to expressly transfer such rights.
Through its complaint, CBC sought a declaration that Dynatec was legally entitled to remove coal from the Pittsburgh coal seam but that it had no correspondent right to extract coalbed methane from that seam. Appellant also sought an adjudication of subsurface trespass against Dynatec and an accounting as to the coalbed methane that has been produced and marketed from the property at issue. As alternative relief, CBC sought damages in connection with the alleged drainage of coalbed methane from its property based on the positioning of Dynatec’s wells.
Arguing that CBC’s claims and the remedies for those claims “fall squarely within the administrative procedures set forth in the Act,” Dynatec moved to dismiss Appellant’s complaint for failing to exhaust its administrative remedies. Upon consideration of the arguments raised by Dynatec in support of its motion to dismiss, the trial court ruled by order of November 16, 2007, that CBC had not exhausted the remedies available to it under the Act. Rather than granting a dismissal of the complaint, however, the trial court sent the matter to the Division to allow it to rule on “the drilling permits and coalbed methane formation ownership.” The trial court expressly stayed a ruling on Dynatec’s motion to dismiss during the pendency of the Division’s consideration of the referred matter.
Through this appeal, CBC seeks to reverse the trial court’s decision that the ownership issues Appellant raised in its complaint must be ruled upon by the Division before the trial court can make any declaration as to Dynatec’s right to be extracting coalbed methane pursuant to the provisions of its lease with the New Gauley Corporation.
II. Standard of Review
As we recognized in White v. Haines, 217 W.Va. 414, 618 S.E.2d 423 (2005), “we accord plenary review to questions of law, including the interpretation of statutory provisions: ‘Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.’ Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep't, 195 W.Va. 573, 466 S.E.2d 424 (1995).” Because the issues on appeal clearly involve the trial court’s interpretation of the Act, we apply a de novo standard of review to the order which is the subject of this appeal.
III. Discussion
At the heart of this appeal is disagreement regarding the procedures that must be followed to reach the ultimate question of who rightfully owns the coalbed methane that Appellees are currently extracting from the Pittsburgh seam. Appellees convinced the trial court that the Division must first make certain factual determinations before the circuit court can rule upon the issue of coalbed methane ownership. CBC maintains that there is no predicate ruling required by the Division and, furthermore, that the Division lacks the authority to rule upon the issues that the trial court has directed through its order.
In its November 16, 2007, order, the trial court expressly “acknowledge[d] that the Defendants [Dynatec Appellees] may not be the owners of the coalbed methane in the Pittsburgh Seam.” But rather than delve into this admittedly thorny issue which is the crux of Appellant’s declaratory judgment action, the trial court opted to send this matter to the Division for a ruling on “whether the Defendants had the right to drill and extract methane from the aforementioned coalbed.” Appellant argues that the Act’s provisions demonstrate a narrowly tailored approach to the regulation of coalbed methane extraction, an approach that does not grant the Division authority to resolve issues of conflicting ownership.
With the adoption of the Act in 1994, the Legislature included a recitation of the public policy concerns and legislative findings that impelled its passage. Among those findings was a declaration that the objective of the Act was to “encourage and ensure the fullest practical recovery of coal and coalbed methane in this state and to further ensure the safe recovery of both natural resources.” W.Va.Code § 22-21-l(a). Through the procedures specified in the Act, the Legislature sought to “provide all coalbed methane operators and coalbed methane owners with an opportunity to recover their just and equitable share of production.” Id.
Under the Act, it is unlawful for any entity to extract coalbed methane without first obtaining a permit from the Division. See W.Va.Code § 22-21-6(a). To obtain a permit, the applicant must identify each coal operator and coal owner of record for any coal seam which is to be penetrated by a proposed well; is within 750 horizontal feet of any portion of the proposed well bore; or is within 100 vertical feet of the designated completion coal seams of the proposed well. See W.Va.Code § 22-21-6(b). The application must be accompanied by “the consent and agreement of the coal owner” and a certificate indicating compliance with the notice provisions set forth in West Virginia Code § 22-21-9.
Any person entitled to notice under the Act is authorized to file comments with the Division in response to an application to extract coalbed methane. See W.Va.Code § 22-21-10 (providing fifteen days for filing comments after filing of permit application). Similarly, all coal owners have fifteen days to file written objections to the application for permission to drill for coalbed methane. See W.Va.Code § 22-21-11. Upon its review of the application, the Chief of the Division can issue a permit at any time if the applicant certifies that the Act’s notice provisions have been met and that there are no objections to the application. Only if there are comments or objections filed in connection with the permit application is a hearing required before the Review Board. See W.Va.Code § 22-21-13.
In the event of a timely filed comment or objection, a hearing is scheduled before the Review Board. At this hearing, the Review Board is charged to consider twelve factors for the purpose of assuring that stimulation of an affected workable coal seam “will not render such seam or any other workable coal seam ... unmineable or unsafe for mining.” W.Va.Code § 22-21-13(c). Following the conclusion of the hearing, the Review Board is required to issue written findings of fact that address relevant considerations regarding the twelve factors delineated in subsection (b). See W.Va.Code § 22-21-13(b). We observe that not one of these twelve factors includes any concern regarding a challenge to the ownership of the coalbed methane.
In addition to the permitting process, the Act sets forth procedures sanctioning the pooling of interests to create a drilling unit which may be followed in the absence of a voluntary pooling agreement. See W.Va. Code §§ 22-21-15 to 21. Pursuant to these provisions, individuals with relatively minor ownership interests are allowed to benefit from the drilling operations of others at a reduced financial outlay. Appellees suggest that had CBC availed itself of the involuntary pooling procedures outlined in the Act it could have remedied the issues that were raised in the declaratory judgment action. We disagree.
As support for its position, Appellees reference the provision that permits a party seeking a pooling arrangement to raise issues concerning the “nature and extent of ownership of each coalbed methane owner or claimant and whether conflicting claims exist.” W.Va.Code § 22-21-17(b)(6). While this statutory provision acknowledges the potential for disagreement regarding the ownership of coalbed methane, the Act does not seek to provide any basis for resolving conflicts of ownership when they occur. In Energy Development Corp. v. Moss, 214 W.Va. 577, 591 S.E.2d 135 (2003), we observed that “the [Coalbed, Methane] statute completely avoids and eschews any attempt at deciding ownership of coalbed methane." Id. at 594, 591 S.E.2d at 152 (emphasis supplied). The only suggestion the Act provides for resolving conflicts regarding ownership, as we explained in Moss, is to encourage parties to a potential pooling arrangement to reach a “voluntary agreement,” or, alternatively, rely upon a “final judicial determination.” W.Va. Code § 22 — 21—17(k); see Moss, 214 W.Va. at 595, 591 S.E.2d at 153.
In view of the clear decision of the Legislature to circumvent the issue of coalbed methane ownership, which is the gravamen of Appellant’s complaint, giving the Division an additional opportunity to essentially affirm that Dynatec produced the necessary documentation required under the Act for issuing coalbed methane permits seems ill-advised. In our opinion, referring this matter to the Division will not assist the trial court in making a decision regarding who owns the subject mineral rights because the provisions of the Act make clear that the West Virginia Division of Oil and Gas does not have the authority to resolve issues of conflicting ownership claims to coalbed methane. Consequently, the administrative referral directed by the trial court appears unlikely to produce a ruling bearing on the merits of the ultimate issue — the ownership of the coalbed methane currently being extracted from the Pittsburgh seam by Dynatec.
We are similarly unpersuaded by Appellees’ argument that CBC failed to heed remedies available under the Act before filing its declaratory judgment action with the circuit court. Other than the pooling provisions of the Act, which clearly are not aimed at resolving conflicting issues of ownership as discussed above, the only other provision of the Act that Appellees claim that CBC failed to seek relief under is West Virginia Code § 22-21-27. Under that section, the Chief of the Division and the Review Board both have authority to seek injunctive relief in connection with contemplated or actual violations of the Act. While the statute extends its remedial reach to “any person who is or will be adversely affected by such violation or threatened violation,” the availability of injunctive relief is of no effect to CBC unless it can cite to a specific provision of the Act that Dynatec has violated or is about to violate. W.Va.Code § 22-21-7(e). Because there is no provision under the Act that makes demonstration of ownership a prerequisite to obtaining a permit, there is no foundational statutory provision that Appellant could rely upon to obtain injunctive relief under West Virginia Code § 22-21-17.
Appellant maintains that the absence of any provisions authorizing the Division to address the improper removal and/or conversion of minerals lends further support to its argument that the Act fails to provide a remedy for the issues it has raised. Similarly lacking from the Act, as Appellant observes, are provisions designed to permit an accounting so that aggrieved parties can quantify the resources that have been sold from particular wells. As we recognized in syllabus point two of Daurelle v. Traders Fed. Savings & Loan Assn., 143 W.Va. 674, 104 S.E.2d 320 (1958), “[t]he rule which requires the exhaustion of administrative remedies is inapplicable where no administrative remedy is provided by law.” Following a careful review of the Act’s provisions in conjunction with the allegations raised in Appellant’s declaratory judgment action, we are compelled to conclude that the Act does not contain remedies aimed at addressing the issues CBC raised below. As a result, we find no basis for the trial court’s conclusion that Appellant failed to exhaust its administrative remedies.
Finally, Appellees argue that the administrative scheme established by the Act would be disrupted in “the absence of the Division reviewing its own conclusions previously reached about the lands in question.” Given the Legislature’s careful limitation on the authority extended to the Division under the Act, we fail to see how the regulatory framework will be disturbed if the Division is denied the opportunity to review its decision to issue coalbed methane permits to Dynatec. The Legislature was clear in its designation of the Division’s regulatory responsibilities. Noticeably absent from those delineated powers is authority to interpret mineral rights and leasehold ownership issues. Because there are no provisions in the Act that contemplate relief for the issues set forth in Appellant’s complaint, there is simply no procedural basis for referring this matter back to the Division.
Based on the foregoing, the decision of the Circuit Court of Wetzel County is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.
Senior Status Justice MeHUGH sitting by temporary assignment.
. Pursuant to administrative order entered March 23, 2009, the Honorable Thomas E. McHugh, Senior Status Justice, was recalled for temporary assignment to the Supreme Court of Appeals of West Virginia under the provisions of Article III, section 8 of the Constitution of West Virginia.
. See W.Va.Code §§ 22-21-1 to -29 (2002 & Supp.2008).
. Also named as Appellees are Dynatec Energy, Inc. and Dynatec Drilling, entities affiliated with Dynatec Corporation, U.S.A. that are engaged in the business of drilling for coalbed methane. New Gauley Corporation is the owner of the Pittsburgh seam of coal that was leased to two of the Dynatec Appellees. For ease of discussion, references to the position of Dynatec incorporate by reference the additional corporate defendants.
. The land at issue is covered by two leases. Under one lease with Western Pocahontas Properties Limited Partnership ("WPP”) and New Gauley Coal Corporation, the leased area comprises 25,987 acres located in Church, Center, Clay, and Grant Districts in Wetzel County. The second lease is with WPP and covers 16,066 acres located in Church and Clay Districts in Wetzel County.
. When the surface rights of various tracts of land owned by Hugh K. Cosgray, Catharine Cos-gray, Cora B. Stewart, and E.E. Stewart were partitioned and allotted to children and heirs, the mineral rights were not specifically addressed. Consequently, CBC argues and seeks to establish that those mineral rights remain with the prior owners of the surface rights to the respective tracts of land.
. Appellant claims that the Dynatec boreholes and casings are placed so close to its property that the Dynatec Appellees are "taking and draining the coalbed methane from the plaintiffs’ [CBC’s] coalbed methane formations.”
. Appellant incorrectly asserted both in its docketing statement and in its petition for appeal that the trial court had dismissed its complaint. See infra n. 8.
. The record makes clear that no final order has been entered by the trial court. Our decision to issue an opinion, rather than dismissing this case as improvidently granted, is compelled by the futility of referring this matter to the Division given the clear lack of administrative authority for resolving issues of coalbed methane ownership. See discussion infra.
. Appellees argue that the following factual issues must be addressed by the Division: (1) identify the specific well that is affecting lands owned by Appellant; (2) determine the drainage pattern of that well; and (3) decide whether Appellant’s land is being affected by the drainage of the Dynatec well.
. Appellees acknowledged in their memorandum in support of the motion to dismiss that the circuit court is the proper tribunal to decide issues of coalbed methane ownership: ’’To the extent the Plaintiff has a conflicting claim to the actual ownership of [coalbed methane], the Defendants agree that this narrow issue is one to be decided by this Court.”
.As an initial matter, the Legislature recognizes that "the value of coal is far greater than the value of coalbed methane and any development of the coalbed methane should be undertaken in such a way as to protect and preserve coal for future safe mining and maximum recovery of the coal.” W.Va.Code! 22-21-l(a).
. Notice has to be provided under the Act to the following entities:
(1) The owners of record of the surface of the tract on which the coalbed methane well is to be located;
(2) The owners of record of the surface of any tract which is to be utilized for roads or other land disturbance;
(3) Each coal owner and each operator (i) from whom a consent and agreement provided for in section seven [§ 22-21-7] of this article is required, or (ii) whose coal seam will be penetrated by the proposed coalbed methane well or is within seven hundred fifty feet of any portion of the well bore; and
(4) Each owner and lessee of record and each operator of natural gas surrounding the well bore and existing in formations above the top of the uppermost member of the “Onodaga Group” or at a depth less than six thousand feet, whichever is shallower. Notices to gas operators shall be sufficient if served upon the agent of record with the office of oil and gas.
W.Va.Code § 22-21-9(a).
. Based on the limited nature of the record before us and disagreement of the parties on this issue, we are unclear as to whether the permits obtained by Dynatec were issued by the Division in the streamlined manner allowed under the Act where no objection is filed or whether there were hearings held before the Review Board. See infra n. 14.
. While Appellees represent that CBC did not file any objections or comments to Dynatec’s permit applications, Appellant stated during oral argument that it had filed objections and comments to those permits.
. Those twelve factors are:
(1)Whether the drilling location is above or in close proximity to any mine opening, shaft, entry, travelway, airway, haulageway, drainageway or passageway, or to any proposed extension thereof, any abandoned, operating coal mine or any coal mine already surveyed and platted but not yet being operated;
(2) Whether the proposed drilling can reasonably be done through an existing or planned pillar of coal, or in close proximity to an existing or planned pillar of coal, taking into consideration the surface topography;
(3) Whether the proposed well can be drilled safely, taking into consideration the dangers from creeps, squeezes or other disturbances due to the extraction of coal;
(4) The extent to which the proposed drilling location unreasonably interferes with the safe recovery of coal or coalbed methane;
(5) The extent to which the proposed drilling location will unreasonably interfere with present or future coal mining operations on the surface including, but not limited to, operations subject to the provisions of article three [§§ 22-3-1 etseq.] of this chapter;
(6) The feasibility of moving the proposed drilling location to a mined-out area, below the coal outcrop, or to some other location;
(7) The feasibility of a drilling moratorium for not more than one year in order to permit the completion of imminent coal mining operations;
(8) The methods proposed for the recovery of coal and coalbed methane;
(9) The practicality of locating the well on a uniform pattern with other wells;
(10) The surface topography and use;
(11) Whether any stimulation of the coal seam will render such seam or any other workable coal seams unmineable or unsafe for mining; and
(12) Whether the director of the office of miners’ health, safety and training has submitted recommendations as to the safety of any proposed stimulation. In considering any recommendations made by the director of the office of miners’ health, safety and training, the board shall incorporate such recommendations in its findings, conclusions and order unless the board determines that there is clear and convincing evidence on the record supporting a finding, conclusion or order inconsistent with such recommendations.
W.Va.Code § 22-21-13(b).
. See supra n. 15.
. The Act provides that a "party claiming an ownership interest in the coalbed methane may file an application with the chief [of the Division] to pool ... (ii) separately owned tracts ... to form a drilling unit for the production of coalbed methane from one or more coalbed methane wells.” W.Va.Code§ 22-21-15(a).
. And, if Dynatec is correct in asserting that Appellant had notice of the permit applications and did not file timely comments or objections, CBC should not be allowed to belatedly raise objections with the Division predicated on mineral ownership.
. See W.Va.Code § 22-21-17(k) (contemplating "resolution of conflicting claims either by voluntary agreement of the parties or a final judicial determination"). | [
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PER CURIAM:
In the instant case, the appellants, Jacob Joehum, Sr., and Jacob Jochum, Jr., d/b/a Jack Joehum Truck Service, appeal the October 1, 2007, order of the Circuit Court of Ohio County granting summary judgment in favor of the appellee, Waste Management. The Jochums filed a complaint in the Circuit Court of Ohio County on November 6, 2006, alleging that Waste Management breached an asset purchase agreement whei’ein it had agreed to buy the Jochums’ waste disposal business. In the final order, the circuit court found that two conditions precedent to the contract in question, §§ 9(d) and 9(e), had not been satisfied and, therefore, Waste Management had the right to terminate the agreement. In this appeal, the Jochums contend that genuine issues of material fact exist with regard to whether or not §§ 9(d) and 9(e) were satisfied. After reviewing the facts of the ease, the issues presented, and the relevant statutory and case law, this Court reverses the decision of the circuit court and remands this case for further proceedings.
I.
FACTS
On March 8, 2004, the appellants, Jacob Jochum, Sr., and Jacob Jochum, Jr., d/b/a Jack Jochum Truck Service, and the appellee, Waste Management of West Virginia, Inc., entered into an Asset Purchase Agreement (hereinafter, the “Agreement”) wherein Waste Management agreed to purchase Jack Jochums Truck Service for $465,000.00. Jack Jochum Truck Service provides waste disposal services, which includes retrieving, transporting, and disposing of residential, commercial, and industrial garbage in Ohio and Marshall Counties, West Virginia.
The Agreement between the parties provided for the purchase of all of the Jochums’ business assets, which included the transfer of the Jochums’ certificates of convenience and necessity (hereinafter, the “Certificates”). The Certificates allowed the Jochums to provide waste disposal services in Ohio and Marshall Counties. As provided by W.Va.Code § 24A-2-5 (1980), it was “unlawful for any common carrier by motor vehicle to operate within this state without first having obtained from the [Public Service Commission of West Virginia (hereinafter, the “PSC”)] a certificate of convenience and necessity.” Transferring the Certificates from the Jochums to Waste Management would have permitted Waste Management to enter the West Virginia solid waste hauling market in Ohio and Marshall Counties and cross state lines in the transportation of solid waste.
On March 22, 2004, the Joehums and Waste Management initiated proceedings before the PSC to obtain approval of the transfer of the Certificates. The potential transfer of the Certificates to Waste Management was protested by another existing regulated hauler in the area, American Disposal Services of West Virginia, Inc. (hereinafter, “ADS”). On December 28, 2005, the PSC issued an order granting approval of the transfer of the Certificates to Waste Management. Soon thereafter, ADS petitioned this Court to hear an appeal of the PSC’s order, and on June 9, 2006, we denied the petition.
On April 11, 2006, while ADS’ petition for appeal of the PSC’s December 28, 2005, older was pending before this Court, the United States Magistrate for the United States District Court for the Southern District of West Virginia issued a decision in Harper, et al. v. Public Service Commission of West Virginia, et al., 427 F.Supp.2d 707 (S.D.W.Va.2006). In Harper, the District Court “declared that W.Va.Code § 24A-2-5 [was] invalid insofar as it require[d] solid waste haulers engaged in the interstate transportation of solid waste to obtain a certificate of convenience and necessity from the PSC prior to providing those services.” 427 F.Supp.2d at 724. The Court in Harper “permanently enjoined” the PSC from interfering in the “interstate transportation of solid waste from West Virginia to other states” with regard to a business’ failure to obtain a certificate of convenience and necessity. Id. As a result of the Harper decision, the certificates were never actually transferred to Waste Management.
Thereafter, on April 26, 2006, Waste Management gave notice to the Joehums that it was terminating the parties’ Agreement pursuant to § 9(e), stating that the Harper deeision adversely affected the value of the Joe-hums’ Certificates and, thus, made the transaction less economic. Section 9(e) of the Agreement provided:
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants herein contained, and intending to be legally bound, the parties agree as follows:
9. CONDITIONS TO BUYER’S CLOSING. Al obligations of Buyer to close hereunder are subject to fulfillment by Seller or waiver by Buyer, prior to or on the date of Closing of the following conditions:
(e) No law, rule, regulation, order, writ or judgment of any court, arbitrator or other agency of government or any agreement to which Buyer or an affiliate of Buyer is bound shall have prevented or prohibited or make less economic the consummation of the transactions contemplated hereby.
Upon receiving Waste Management’s notice that it was terminating the Agreement, the Joehums, on November 6, 2006, filed a complaint in the Circuit Court of Ohio County alleging that Waste Management breached the Agreement by terminating the contract. On February 22, 2007, Waste Management filed, a motion for summary judgment. By an order entered on October 1, 2007, the circuit court granted Waste Management’s motion for summary judgment finding that two conditions precedent to the contract in question, §§ 9(d) and 9(e), had not been satisfied and, therefore, Waste Management had the right to terminate the Agreement. Specifically, the circuit court found that,
no dispute exists as to the facts material to the adjudication of the issues in this ease: whether [Waste Management] breached the Agreement with the [Joehums], whether § 9(e) of the Agreement is ambiguous, and whether a law was passed making the sale of the [Jochums’] business less economic.
This appeal followed.
II.
STANDARD OF REVIEW
The Jochums contend that the circuit court erred in granting summary judgment to Waste Management. In Syllabus Point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), this Court stated that “[a] circuit court’s entry of summary judgment is reviewed de novo." Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment is required when the record shows that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In Syllabus Point 3 of Aetna Casualty & Surety Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), this Court held: “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.”
Moreover, “[s]ummary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.” Syllabus Point 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). In addition, “[i]f the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure.” Syllabus Point 3, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). With these standards in mind, we proceed to consider the Jochums’ arguments.
III.
DISCUSSION
The issue in this appeal is whether the circuit court’s granting of Waste Management’s motion for summary judgment was appropriate. The Jochums first argue that summary judgment was not proper because genuine issues of material fact exist as to whether or not § 9(e) of the Agreement was satisfied or violated. In that regard, the Jochums contend that the phrase “less economic” in § 9(e) is ambiguous. We agree.
The Jochums argue that “less economic” means less profitable, not that a better deal may be struck elsewhere if the Jochums’ Certificates need not be purchased in light of Harper. Moreover, the Jochums maintain that their business actually became more profitable after the decision in Harper. They state that the profitability of the entire area subject to the Jochums’ Certificates depends on the Jochums’ customer base, not the Certificates, which weren’t even assigned a value in the Agreement. With this in mind, the Jochums submit that their gross revenues increased from $16,300.00 in March, 2006, and $16,303.61 in January, 2007, to $17,616.84 in June, 2007. They assert that at the time of the filing of their brief in this ■Court, their revenues were approximately $17,000.00, and expected to remain at those levels. As such, since their business is not currently less profitable, they argue that Waste Management could not void the Agreement under § 9(e).
Conversely, Waste Management asserts that the terminology used in the Agreement was a good faith effort to include any type of situation that would render the contract less economic, including specifically stating that any “law, rule, regulation, order writ or judgment of any court, arbitrator, or other agency of government.” It argues that the Harper decision falls squarely within these specified categories, as it was an “order” of a federal “court.” Further, it explains that § 9(e) includes broad language agreed to by both parties, which states that developments of any of the kinds specified that would render the consummation of the transaction “less economic” were to be the risk of the seller prior to closing the Agreement, and the risk of the buyer after closing. It points out that had the Harper decision been rendered after closing, then, under those circumstances, it would have been Waste Management’s bad fortune. It states that the Joehums engaged in the negotiation of the terms of the Agreement and entered into it voluntarily, knowingly, and intelligently.
This Court has explained that “[t]he term ‘ambiguity’ is defined as language reasonably susceptible of two different meanings or language of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning.” Syllabus Point 4, Estate of Tawney v. Columbia Natural Resources, L.L.C., 219 W.Va. 266, 633 S.E.2d 22 (2006). In addition, we have long held that “ ‘[uncertainties in an intricate and involved contract should be resolved against the party who prepared it.’ Syllabus Point 1, Charlton v. Chevrolet Motor Co., 115 W.Va. 25, 174 S.E. 570 (1934).” Syllabus Point 8, Estate of Tawney supra. See also, Combs v. McLynn, 187 W.Va. 490, 493, 419 S.E.2d 903, 906 (1992); Hays and Co. v. Ancro Oil & Gas, Inc., 411 S.E.2d 478, 480, 186 W.Va. 153, 155 (1991); Smith v. Municipal Mut. Ins. Co., 289 S.E.2d 669, 671-672 169 W.Va. 296, 301 (1982); Nisbet v. Watson, 251 S.E.2d 774, 780, 162 W.Va. 522, 530 (1979); and Henson v. Lamb, 120 W.Va. 552, 199 S.E. 459 (1938).
In the case at hand, we are not persuaded by Waste Management’s contention that “less economic” was an unambiguous term in the parties’ Agreement. To the contrary, the evidence of record illustrates that there was significant confusion surrounding the meaning of that provision. For example, Mr. Joehum, Jr. stated in his affidavit that he believed “make less economic the consummation of the transactions contemplated hereby,” would only apply if new laws, PSC regulations, or taxes increased Waste Management’s cost of continuing the Joehums’ business, resulting in less profit. Similarly, Mr. Joehum, Sr. stated in his affidavit that he “did not understand nor intend the provision to mean that Waste Management could repudiate the agreement simply because it believes it no longer has to purchase Certificates to operate waste disposal in West Virginia, or that it could use it to renege on the agreement without showing how it would lose money.”
The Joehums, in disputing the meaning of “less economic,” submitted evidence that their business is actually more profitable today than it was when Waste Management provided notice that it wished to void the underlying Agreement. Waste Management, on the other hand, contends that “less economic” is distinguishable from less profitable. Both 'parties provide a reasonable analysis concerning their individual interpretations of “less economic.” Had Waste Management drafted a more clear and precise document that included a definition of “less economic,” as well as cited the pending Harper decision, this may have been a different ease. However, that is not the situation at hand and, therefore, we find that the undefined terms “less economic” are ambiguous, leaving room for multiple interpretations.
This Court has held that: “ ‘ “Where a contract is ambiguous then issues of fact arise and summary judgment is ordinarily not proper.” Syl. Pt. 2, Lee Enterprises, Inc. v. Twentieth Century-Fox Film Corp., 172 W.Va. 63, 303 S.E.2d 702 (1983). Syllabus Point 2, Buckhannon Sales Co. v. Appalantic Corp., 175 W.Va. 742, 338 S.E.2d 222 (1985).’ Syllabus Point 2, Glenmark Associates, Inc. v. Americare of W. Va., Inc., 179 W.Va. 632, 371 S.E.2d 353 (1988).” Syllabus Point 1, Ohio Valley Contractors, Inc. v. Board of Educ. of Wetzel County, 182 W.Va. 741, 391 S.E.2d 891 (1990). Given the ambiguity of the contract and the lack of evidence developed below, the circuit court’s award of summary judgment was improper as there are genuine issues of material fact with regard to the parties’ interpretation of “less economic.” Therefore, the judgment of the circuit court is reversed, and the case is remanded for further proceedings consistent with this opinion.
In a separate argument, the Jochums state that the circuit court erred in ruling that: “When the Harper ruling was decided on April 11, 2006, the issue of whether the Certificates transfer would gain governmental approval was still undecided, thus, failing to satisfy the condition set forth in Section 9(d) of the Agreement.” Section 9(d) provides,
All obligations of Buyer to close hereunder are subject to fulfilment by Seller or waiver by Buyer, prior to or on the date of Closing, of the following conditions:
(d) Seller and Buyer shall have received all necessary governmental consents, including the approval of the West Virginia Public Service commission and the consents to the assignment of Seller’s customers including any municipal contract that may exist.
The Jochums state that the PSC approved the transfer of the Jochums’ Certificates to Waste Management in December, 2005, following a delay caused by ADS, a competitor which opposed the Agreement between the Jochums and Waste Management. In June, 2006, this Court refused ADS’ petition for appeal of that decision. The Jochums believe that § 9(d) was satisfied in December, 2005, notwithstanding ADS’ appeal. They point out that West Virginia Rules of Appellate Procedure Rule 6 provides that, “Any person desiring to present a petition for an appeal may make application for a stay of proceedings to the circuit court in which the judgment or order desired to be appealed was entered.” In this case, neither ADS, nor Waste Management, moved the PSC to stay the effects of the order.
Waste Management responds that it is irrelevant whether or not the PSC initially approved the transfer of the Certificates in December, 2005, because they were not actually transferred prior to Waste Management’s April 26, 2006, notice of termination. Thus, it contends that § 9(d) was not satisfied prior to closing the Agreement. Waste Management further asserts that governmental approval for the transfer of the Certificates was not final in December, 2005, and that final governmental approval for the transfer of the Certificates was dependant on the outcome of the petition for appeal filed by ADS. Therefore, it believes that the PSC’s approval was not finalized until June 9, 2006, when this Court denied ADS’ petition for appeal. Accordingly, since the Harper decision was issued on April 11, 2006, and Waste Management gave notice to the Jochums on April 26, 2006, that it was terminating the parties’ Agreement pursuant to § 9(e), Waste Management argues that the provisions of § 9(d) were not satisfied prior to closing.
We find Waste Management’s argument on this issue unpersuasive and without merit. It was Waste Management who provided notice on April 26, 2006, that it wished to terminate the Agreement based upon the Harper decision and not based upon § 9(d). It was also Waste Management who requested that the PSC revoke its earlier grant of approval of the transfer of the Certificates due to the fact that it no longer wished to complete the Agreement with the Jochums. It is important to point out that Waste Management did not make such a request of the PSC until after it had already provided notice of termination of the Agreement to the Joe-hums. Moreover, it is equally significant to acknowledge that after the decision in Harper was rendered, Waste Management no longer needed the Certificates to conduct business in West Virginia. The bottom line with regard to this issue is that Waste Management attempted to terminate the Agreement pursuant to § 9(e) in relation to the issuance of the Harper decision. Thus, any reference by the circuit court to § 9(d) was not relevant to resolve the Jochums’ underlying complaint because Waste Management sought termination of the Agreement for an entirely separate reason.
Assuming, arguendo, that § 9(d) was applicable to determine whether or not Waste Management properly terminated the underlying Agreement, the record before the circuit court was not sufficient to allow for such a determination. While the Jochums were required to obtain approval for transfer of the Certificates prior to closing, nothing in the Agreement provided a deadline date for such transfer. Moreover, there is no language in the Agreement stating that such transfer of the Certificates had to occur prior to Waste Management’s repudiation based upon other provisions of the Agreement. Indeed, “it is generally held that when a condition to be performed is not limited by an agreement, the condition must be performed or abandoned within a reasonable time.” Heartland, L.L.C. v. McIntosh Racing Stable, L.L.C., 219 W.Va. 140, 150, 632 S.E.2d 296, 306 (2006). See also, Syllabus Point 2, E. Shepherdstown Developers, Inc. v. J. Russell Fritts, Inc., 183 W.Va. 691, 398 S.E.2d 517 (1990). Accordingly, given the fact that § 9(d) was not limited by the Agreement, questions surrounding the reasonableness of any delay in transfer would have been issues to be resolved by a jury. See, e.g., Howell v. Appalachian Energy, Inc., 205 W.Va. 508, 517, 519 S.E.2d 423, 432 (1999) (“What constitutes a ‘reasonable period of time’ is normally a question of fact”); Stone v. United Engineering, 197 W.Va. 347, 360, 475 S.E.2d 439, 452 (1996) (“The question of whether the vendee had a reasonable time to cure the defect or dangerous condition is a question of fact and is therefore for the jury”). In consideration of the aforementioned, the circuit court improperly granted summary judgment to Waste Management.
IV.
CONCLUSION
Accordingly, for the reasons set forth above, the final order of the Circuit Court of Ohio County entered on October 1, 2007, is reversed and remanded for further proceedings consistent with this opinion.
Reversed and Remanded.
Chief Justice BENJAMIN, deeming himself disqualified, did not participate in the decision of this ease.
Judge BLOOM sitting by temporary assignment.
. ADS filed a Reply Brief in this matter for the purpose of disputing the allegation by the Jochums that: "Due to delays caused by [ADS], a competitor which opposed the agreement, the PSC didn't approve the transfer until December, 2005." ADS states that it was exercising its statutory and constitutional right to protest the transfer application of the Certificates and that any "delays” in the appeal process at the PSC were not caused by ADS.
. On December 11, 2006, at the request of Waste Management, the PSC revoked its previous approval of the transfer of the Certificates. The Joehums did not appeal the PSC's order.
. The Jochums also make an allegation in their brief before this Court that Waste Management was required to comply with the Agreement under the covenant of good faith and fair dealing. This is the first time in this matter that the Jochums have made such an argument as this was not an issue before the circuit court. Waste Management contends that this Court’s review is limited to the lower court’s finding that there was no genuine issue of material fact that the conditions precedent were violated. We agree. We explained in Whitlow v. Board of Education of Kanawha County, 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993), that: "Our general rule in this regard is that, when nonjurisdictional questions have not been decided at the trial court level and are then first raised before this Court, they will not be considered on appeal.” Therefore, the issue of whether or not Waste Management violated the covenant of good faith and fair dealing will not be considered on appeal. | [
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KETCHUM, J.:
This is an appeal of two orders entered by the Circuit Court of Cabell County finding that the appellants did not have an easement of any kind across the appellees’ property. First, the circuit court entered a summary judgment order finding, as a matter of law, that the appellants did not have an easement appurtenant across the property. Second, after a one-day bench trial, the circuit court entered a final judgment order holding that the appellants had failed to demonstrate, by clear and convincing evidence, that they had a prescriptive easement across the appellees’ property.
After careful consideration of the trial transcript and evidence, the briefs and arguments of the parties, and all legal authority cited, we affirm the circuit court’s rulings in favor of the appellees.
I.
Facts and Background
The appellants, brothers Kenneth and Marty Newman, own a 77-acre tract of real property in Cabell County, West Virginia. The Newman property is an old family farm that has been owned by the Newman family since the late 1800’s. Neither the Newman brothers, nor anyone else, currently lives on this property. They visit it approximately 7 to 14 times a year.
The Newman property is bordered on its southern, eastern and northern sides by property owned by the appellees, James and Tomasina Michel. The Michels purchased their property in 1973 and have resided on it continuously since then.
The parties’ dispute is over whether the Newmans have an easement across the Michels’ property to access the Newman family farm.
The genesis for the parties’ dispute was in 1940, when the Newman property was owned by, and lived on by, the appellants’ grandmother, Ida Newman. At that time, the property could be accessed by following County Road 26 easterly across what is now the southern part of the Michels’ property, and then turning left onto a road — described in the record as “the Old Road” — that went north across the Michels’ property and connected to the southern edge of the Newman property.
Near its intersection with the Old Road, County Road 26 ran alongside the north bank of the Mud River, and was occasionally impassable due to flooding. To provide an alternate route to the Newman family home, Ida Newman’s son, T.M. Newman — who lived on but did not own any interest in the Newman property — in 1940 obtained a written “easement or right of way for road purposes only” from one of the Michels’ predecessors in interest, Gladys and Cyril Elwell. This easement turned off of County Road 26 at the southwest edge of the Michels’ property, and proceeded across the Michels’ property approximately 980 feet northeast before connecting with the Old Road, also on the Michels’ property. The Old Road continued north approximately 900 feet to the southern border of the Newman property. This easement allowed the Newman family to avoid County Road 26 when it was flooded and traverse a course that is currently the Michels’ driveway.
In 1946, six years after the easement agreement was signed between T.M. Newman and the Elwells, T.M. Newman died. Still, the Newman family continued using the T.M. Newman easement after his death. The Newman family, including the Newman appellants (who were children at the time), moved from the family farm to Barboursville, West Virginia in approximately 1955. The Newman family continued to use the property for occasional recreational and farming purposes, and continued to access it by using the T.M. Newman easement until 1963.
In 1963, the Michels’ immediate predecessor in title, Emma and Gary Fletcher, built a house on their property, the same house that the Michels reside in today. This house was built across the upper end of the T.M. Newman easement. After this house was built, the Newmans developed a new roadway, a “spur,” around the new house. Apparently, the Fletchers did not give the Newman family permission to build and use the spur, but there is also no evidence the Fletchers challenged their use of it.
The Fletchers sold this house and the surrounding property to the Michels in 1973. After the Michels bought this property, the Newmans continued to proceed up the Michels’ driveway and use the spur connecting with the Old Road that lead to their property. James Michel testified that the New-mans had his permission to use his driveway and the spur. The Newmans testified that, like the previous owners, the Michels did not give them explicit permission to use the driveway and the spur, nor did they ask them to leave or tell them that they were not allowed to use it.
The last member of the Newman family to live on the property, Steve Newman, died in 1973. In 1975, the family home on the Newman property burned down and has not been re-built. Since the mid-1970s, the Newmans’ visits to their property have been irregular, around 7 to 14 times a year.
Additionally, over the years, County Road 26 — the original access leading to the Newman land — fell into disrepair. The road became overgrown with trees and brush, and was damaged by flooding from the Mud River, such that it was not accessible by vehicle. It could, however, be traversed on foot to the beginning of the Old Road.
From 1973 until 2003, there was nothing more than minor disagreements between the Newmans and the Michels. Then, in 2003, the Newmans found the Michels’ driveway blocked by a locked metal gate. The New-mans also found that Mr. Michel had erected fencing across County Road 26, beyond the end of the Michels’ driveway, ostensibly to prevent cattle from coming onto his land. However, at oral argument before this Court, counsel for the Michels stated that the fence across County Road 26 had been removed and is no longer there.
Following this dispute over the locked gate and fence, the Newmans filed this lawsuit to enforce the T.M. Newman easement. A one day bench trial was held in the Circuit Court of Cabell County on June 4, 2007. However, before the bench trial began, the circuit court considered cross-motions for summary judgment on whether the T.M. Newman easement was an easement in gross (that is, it was solely for T.M. Newman’s use), or was an easement appurtenant (that is, it was connected to the Newmans’ and Michels’ properties and bound future owners). The circuit court found that because T.M. Newman never had an ownership interest in the Newman property, the easement could not attach to and run with the land. The circuit court therefore concluded that the T.M. Newman easement was in gross and had expired upon T.M. Newman’s death in 1946. The circuit court therefore granted summary judgment to the Michels on this issue.
Following this ruling, the parties proceeded to trial on the sole remaining issue of whether the Newmans had established a prescriptive easement across the Michels’ property. On September 13, 2007, the circuit court issued an order finding that the New-mans’ and their ancestors’ use of the Michels’ driveway began permissively and that there was no subsequent act manifesting an adverse or hostile claim which would convert the use from being permissive into being prescriptive. The circuit court therefore found that the Newmans failed to meet their burden of establishing, by clear and convincing evidence, that they had a prescriptive easement over the Michels’ driveway.
The Newmans now appeal the circuit court’s summary judgment ruling that the T.M. Newman easement was an easement in gross, rather than an easement appurtenant, and its judgment after the trial that the Newman family’s posb-1946 use of the T.M. Newman easement and the spur did not constitute a prescriptive easement.
II.
Standard of Review
“A circuit court’s entry of summary judgment is reviewed de novo.” Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). We apply the same review process as the circuit court, which is: “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.”
Our standard of review of a circuit court’s judgment after a bench trial was set out in Syllabus Point 1 of Public Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996):
In reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court’s underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to de novo review.
A circuit court’s finding is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Bd. of Educ. of County of Mercer v. Wirt, 192 W.Va. 568, 579, 453 S.E.2d 402, 413 (1994), quoting United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). However, we exercise complete and independent review over the circuit court’s interpretation and conclusions of law. Phillips v. Fox, 193 W.Va. 657, 661, 458 S.E.2d 327, 331 (1995).
III.
Discussion
The Newmans make two arguments in this appeal. First, the Newmans argue that the circuit court erred in finding that the T.M. Newman easement was in gross. Second, assuming that the circuit court did not err, and the T.M. Newman easement was in gross and terminated at the time of his death in 1946, then the Newmans argue that the circuit court erred in finding that the Newmans did not obtain a prescriptive easement over the course of their pos!^1946 use of the Michels property.
Before addressing the Newmans’ arguments, we begin with the general definition of the term “easement.” “An easement may be defined as the right one person has to use the lands of another for a specific purpose and is a distinct estate from the ownership of the soil itself.” Kelly v. Rainelle Coal Co., 135 W.Va. 594, 604, 64 S.E.2d 606, 613 (1951), overruled in part on other grounds by Kimball v. Walden, 171 W.Va. 579, 301 S.E.2d 210 (1983). See also Restatement (Third) of Property § 1.2(1)(2000) (“[a]n easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.”).
The land benefitting from an easement is called the dominant estate; the land burdened by an easement is called the servient estate.
It is essential to the existence of an easement, which is appurtenant to land, that there be two distinct estates or tenements, the dominant to which the right belongs, and the servient upon which the obligation rests____ The term easement and the term servitude are often used indiscriminately; the one is usually applied to the right enjoyed, the other to the burden imposed. A right of way over the land of another is an easement in the dominant estate and a servitude upon the servient estate.
Cottrell v. Numberger, 131 W.Va. 391, 397, 47 S.E.2d 454, 457 (1948). (Citations omitted).
In this case, the Newmans assert that the Newman property is the dominant estate, and that the Michels’ property is the servient estate. The burden of proving the existence of an easement rests on the New-mans. As we held in Syllabus Point 1 of Berkeley Development Corp. v. Hutzler, 159 W.Va. 844, 229 S.E.2d 732 (1976), “The burden of proving an easement rests on the party claiming such right and must be established by clear and convincing proof.”
A. Easement appurtenant or Easement in gross
The first issue we address is whether the circuit court was correct when it found that the T.M. Newman easement was in gross, rather than an easement appurtenant, and granted summary judgment to the Michels on this issue.
“An easement appurtenant is a right to use a certain parcel, the servient estate, for the benefit of another parcel, the dominant estate. Essentially, an easement appurtenant serves the owner of the dominant estate in a way that cannot be separated from his rights in the land.” Hodgins v. Sales, 139 Idaho 225, 230, 76 P.3d 969, 974 (2003) (internal citation omitted). See also, Syllabus Point 1, Jones v. Island Creek Coal Co., 79 W.Va. 532, 91 S.E. 391 (1917) (“If an easement granted be in its nature an appropriate and useful adjunct of the dominant estate conveyed, having in view the intention of the grantee as to the use of such estate, and there is nothing to show that the parties intended it as a mere personal right, it will be held to be an easement appurtenant to the dominant estate.”).
An easement appurtenant may therefore be thought of as the right to use a certain parcel of land that is called a servient estate, a right that is attached — i.e., appurtenant to — the dominant estate. A survey of other jurisdictions reveals similar descriptions of appurtenant easements. The main features of an easement appurtenant are that there must be both a dominant and servient estate; the holder of the easement must own the dominant estate; the benefits of the easement must be realized by the owner of the dominant estate; and these benefits must attach to possession of the dominant estate and inhere to and pass with the transfer of the title to the dominant estate.
The definition of easement in gross relied upon by this Court in Ratino v. Hart, 188 W.Va. 408, 411, 424 S.E.2d 753, 756 (1992) (per curiam), was as follows:
An easement in gross is not appurtenant to any estate in land or does not belong to any person by virtue of ownership of estate in other land but is mere personal interest in or right to use land of another; it is purely personal and usually ends with death of grantee.
Unlike an easement appurtenant, an easement in gross does not run with the land and creates no dominant or servient estates. See Restatement (Third) of Property: Servitudes § 1.4(2) (2000). Other courts have stated that an easement in gross is purely personal and usually ends with the death of the grantee. Shingleton v. State, 260 N.C. 451, 454, 133 S.E.2d 183, 185 (1963). An easement in gross is not assignable and applies to specific people and not to guests or assignees. Beckstead v. Price, 146 Idaho 57, 65, 190 P.3d 876, 884 (2008).
Many jurisdictions, including this Court, have shown a strong constructional preference for finding easements to be appurtenant rather than in gross. In Syllabus Point 3 of Post v. Bailey, 110 W.Va. 504, 159 S.E. 524 (1931), this Court stated: “An easement will not be presumed to be in gross when it can fairly be construed to be appurtenant.”
This Court has previously addressed how to determine whether an easement is appurtenant or in gross. We said in Syllabus Point 2 of Post v. Bailey, supra:
Whether an easement is appurtenant or in gross is to be determined by the intent of the parties as gathered from the language employed, considered in the light of surrounding circumstances.
The circuit court below found that the T.M. Newman easement was not an easement ap purtenant because T.M. Newman had no ownership interest in a dominant estate. T.M. Newman lived on the Newman property, but his mother, Ida Newman, owned the property. Additionally, the T.M. Newman easement did not have a terminus at, and did not touch, the Newman property. Rather, the T.M. Newman easement ran over the property and driveway currently owned by the Michels and connected to the Old Road, which runs north into the Newman property. With no ownership interest in the property and an easement that did not connect the dominant and servient estates, the circuit court concluded that the T.M. Newman easement was an easement in gross.
The language used in T.M. Newman’s agreement with the Elwells supports the circuit court’s conclusion that the T.M. Newman easement was in gross. The document states that the agreement is made between Gladys Marie Short Elwell and Cyril John Elwell, parties of the first part, and T.M. Newman, party of the second part. The agreement also explicitly states that its terms are limited to the Elwells and to T.M. Newman:
It is understood and agreed between the parties hereto that said 20 foot right of way or road is to be used and enjoyed for road purposes only, by the parties of the first part [the Elwells] and the second part [T.M. Newman] respectively, and is not to be considered or treated as a public road.
The Newman appellants’ argument that the T.M. Newman easement is an easement appurtenant fails for three reasons. First, T.M. Newman had no ownership interest in the Newman family property. A baseline requirement for one to have an easement appurtenant is that the holder of the easement must own the dominant estate which the easement serves. Second, the T.M. Newman easement does not connect to the Newman property, rather it runs over the Michels’ property and connects with the Old Road that leads north to the Newman property. Therefore, the Newman property cannot be considered a dominant estate. Finally, the language of the agreement states that the 20-foot road easement is to be used only by T.M. Newman and the Elwells. This agreement, which names T.M. Newman personally, is directly in line with the definition of an easement in gross which “does not belong to any person by virtue of ownership of estate in other land but is mere personal interest in or right to use land of another; it is purely personal and usually ends with death of grantee.” Ratino, supra, 188 W.Va. at 411, 424 S.E.2d at 756.
For these reasons we affirm the circuit court’s granting of summary judgment to the Michels and finding that the T.M. Newman easement was in gross and terminated upon T.M. Newman’s death in 1946.
B. Prescriptive Easement or Permissive Use
Following the circuit court’s ruling that the T.M. Newman easement was in gross, the parties proceeded to trial on the sole issue of whether the Newmans had established a prescriptive easement across the Michels’ property. The circuit court found that there was no clear and convincing evidence that the post-1946 use of the T.M. Newman easement and subsequent use of the spur that developed around the Michels’ residence was adverse to, or objected to, by the Michels or their predecessors in interest, the Fletchers. The circuit court therefore ruled that the Newmans failed to establish a claim that was sufficient to create a prescriptive easement over the Michels’ property.
Prescriptive easements are often described as being similar in nature to the doctrine of adverse possession. The main distinction between these concepts is that an adverse possession claimant occupies or possesses the disputed land, whereas one seeking a prescriptive easement makes some easement-like limited use of the disputed land.
In Town of Paden City v. Felton, 136 W.Va. 127, 66 S.E.2d 280 (1951), this Court addressed what a party must show in order to establish a prescriptive easement, stating at Syllabus Point 1;
To establish an easement by prescription there must be continued and uninterrupted use or enjoyment for at least ten years, identity of the thing enjoyed, and a claim of right adverse to the owner of the land, known to and acquiesced in by him; but if the use is by permission of the owner, an easement is not created by such use.
All of the elements of prescriptive use, including the fact that the use relied upon was adverse, must appear by clear and convincing evidence. See Syllabus Point 2, Beckley Nat. Exchange Bank v. Lilly, 116 W.Va. 608, 182 S.E. 767 (1935).
In order to make a valid claim for a prescriptive easement over the Michels’ property, the Newman appellants had the burden to show, by clear and convincing evidence, that their use of the Michels’ driveway was (1) continuous, open and uninterrupted; (2) for a period of at least 10 years; (3) adverse to the owner of the land, known and acquiesced in by him or her; and (4) without the owners permission.
In Veach v. Day, 172 W.Va. 276, 304 S.E.2d 860 (1983), this Court stated that the continuous requirement that is necessary to support the establishment of a prescriptive easement must constitute more than occasional or sporadic use of the right of way. The Court in Veach examined a Texas case, Fannin v. Somervell County, 450 S.W.2d 933 (Tex.Civ.App.1970), in which a group of people who occasionally used a private parcel along a river for picnicking, camping, swimming and fishing, failed to demonstrate that their use was sufficiently continuous to support a prescriptive easement. Another case relied on in Veach, Stupnicki v. Southern New York Fish & Game Ass’n, 41 Misc.2d 266, 244 N.Y.S.2d 558 (N.Y.Sup.Ct.1962), held that occasional or sporadic use of an abandoned road over an owner’s land would not be sufficient to create a prescriptive easement.
The testimony at trial showed that the Newman appellants used the T.M. Newman easement continuously for a 10-year period. There was testimony that the Newmans used portions of the T.M. Newman easement and the spur between 1963 and 1975. The Newman appellants’ uncle, Steve Newman, lived on the property from the early 1960’s through 1973. During this period, Kenneth Newman accessed the property using the spur on a monthly basis to assist his uncle with various chores. Kenneth Newman also testified that he visited the property two or three times a week during farming season between 1959 and 1964. Marty Newman testified that he remembers family picnics during the early 1960’s, farming several large gardens on the property during the late 1960’s, and accompanying his father on trips to the farm during the late 1960’s and early 1970’s. Based on this testimony, the New-mans’ use of the spur around the Michels’ residence between 1963 and 1975 was sufficient to establish that the use was continuous for a period of at least 10 years.
However, the Newman appellants also had to demonstrate that their use of the easement was adverse to the Michels and then’ predecessors in interest, the Fletchers. The circuit court found that the Newmans’ use of the driveway and spur was neither adverse to, nor objected to during the time the Fletchers owned the property (1947-1973). The circuit court found that the Newmans’ use began permissively with the granting of the T.M. Newman easement in 1940. Even though the T.M. Newman easement expired upon T.M. Newman’s death in 1946, the Newmans’ use of this easement and the spur which they later developed were not objected to by the Fletchers. The circuit court concluded that the Newmans’ use of the property began permissively and that no adverse or hostile event occurred after the inception of this use which would convert it from being permissive into being prescriptive.
The circuit court’s analysis of why the Newmans’ use of the easement was permissive rather than prescriptive was guided by Syllabus Point 2 of Faulkner v. Thorn, 122 W.Va. 323, 9 S.E.2d 140 (1940), which states:
The use of a way over the land of another, permissive in its inception, will not create an easement by prescription no matter how long the use may be continued, unless the licensee, to the knowledge of the licensor, renounces the permission and claims the use as his own right, and thereafter uses the way under his adverse claim openly, continuously and uninterruptedly, for the prescriptive period.
Four people testified on behalf of the Newman appellants at the trial below. Along with the Appellants, Marty and Kenneth Newman, the Newmans’ sister, Margie Phillips and their aunt, Myrtle Belcher, all testified that they used a portion of the T.M. Newman easement and the spur around the residence openly. All four witnesses state that they did not seek permission to use this route, nor was access to it denied by the Fletchers. The testimony reveals that the Fletchers were aware of the Newmans’ use of the easement, were on good terms with the Newman family, and that the issue of whether the Newmans had an easement across the Fletcher’s property was never discussed.
The Fletchers’ lack of explicit permission in the face of the Newmans’ use of their property is not sufficient to satisfy the adverse requirement. Faulkner and Town of Paden City require one to make a decisive act manifesting an adverse or hostile claim. The testimony showed no such hostile act occurred during the time the Fletchers owned the property. Rather, the Newmans’ use of a portion of the T.M. Newman ease ment and the spur continued routinely throughout the time the Fletchers owned the property, and at no time did the Newmans and Fletchers have any disagreement over this use.
While the Newmans’ relationship with the Michels was not as friendly as it had been with the Fletchers, the testimony at trial was that the Michels allowed the Newmans to use their driveway, park near their residence and access the property by foot. Both Kenneth and Marty Newman testified that for the last 30 years, they parked by the side of the Michel residence and walked up to their property. James Michel testified that prior to the day of the trial, the Newmans had his permission to use his driveway and park by the side of his house. The testimony does not reveal any adverse or hostile acts on the part of the Newmans since the Michels bought the property in 1973 which would convert their use from being permissive into being prescriptive. This lack of an adverse or hostile act is fatal to the Newmans’ claim that they established a prescriptive easement over the Michels’ property.
We therefore affirm the circuit court’s finding that the Newmans failed to meet their burden of showing, by clear and convincing evidence, that they established a prescriptive easement over the Michels’ property.
IV.
Conclusion
For the foregoing reasons, we affirm the circuit court’s orders.
Affirmed.
. The Newman property is bordered on its western side by property whose owner is not a party to this case.
. James Michel withdrew this permission on the day of the trial. He stated, "As of today, after this, no. They're not going to have permission to use it.”
. Black's Law Dictionary (8th ed. 2004) defines an "easement” as:
An interest in land owned by another person, consisting of the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for. access to a public road). The land benefitting from an easement is called the dominant estate; the land burdened by an easement is called the seivient estate. Unlike a lease or license, an easement may last forever, but it does not give the holder the right to possess, take from, improve, or sell the land. The primary recognized easements are. (1) a right-of-way, (2) a right of entry for any purpose relating to the dominant estate, (3) a right to the support of land and buildings, (4) a right of light and air, (5) a right to water, (6) a right to do some act that would otherwise amount to a nuisance, and (7) a right to place or keep something on the servient estate.
We gave a similar, detailed definition of the term in Town of Paden City v. Felton, 136 W.Va. 127, 136, 66 S.E.2d 280, 286 (1951), where we said (with citations omitted):
An easement in real estate is an interest in land and for every such easement there must be two distinct estates or tenements, the dominant to which the right belongs, and the servient upon which the obligation rests. It is an incorporeal hereditament and may be created in various ways. The general rule, subject to several exceptions, is that an easement can be created only by grant, express or implied, or by prescription, which presupposes a grant. An easement may, however, be created by agreement or covenant as well as by grant. Many authorities say that, as an exception to the general rule just stated, an easement may sometimes be created by estoppel. One eminent authority states that an easement may be created or acquired by six different methods: express grant, reservation or exception in a deed, implied grant, prescription, a statutory proceeding usually under the power of eminent domain, and estoppel.
. See Windham v. Riddle, 381 S.C. 192, 201, 672 S.E.2d 578, 583 (2009) ("[A]n appurtenant easement inheres in the land, concerns the premises, has one terminus on the land of the party claiming it, and is essentially necessary to the enjoyment thereof.”); U.S. v. Blackman, 270 Va. 68, 613 S.E.2d 442 (2005) (“An easement appurtenant, also known as a pure easement, has both a dominant and a servient tract and is capable of being transferred or inherited. It frequently is said that an easement appurtenant 'runs with the land,' which is to say that the benefit conveyed by or the duty owed under the easement passes with the ownership of the land to which it is appurtenant.”); Lewitz v. Porath Family Trust, 36 P.3d 120, 122 (Colo.App., 2001) ("an easement appurtenant is an 'incorporeal right' attached to and belonging with some other parcel of land. It runs with that land and is incapable of existence separate and apart from the particular land to which it is annexed.”); Yaali, Ltd. v. Barnes & Noble, Inc., 269 Ga. 695, 695-96, 506 S.E.2d 116, 117-118 (1998) ("The creation of an easement appurtenant requires that the grantee of the easement own the dominant estate, the land benefitted by the easement. This principle is known as 'unity of title.’ Without unity of title, no easement appurtenant can be created.”) (footnote omitted); Shingleton v. State, 260 N.C. 451, 454, 133 S.E.2d 183, 185-186 (1963) ("An appurtenant easement is one which is attached to and passes with the dominant tenement as an appurtenance thereof; it is owned in connection with other real estate and as an incident to such ownership.... An easement appurtenant is incapable of existence apart from the particular land to which it is annexed, it exists only if the same person has title to the easement and the dominant estate; it must bear some relation to the use of the dominant estate, and it must agree in nature and quality to the thing to which it is claimed to be appurtenant. An easement appurtenant is incident to an estate, inheres in the land, concerns the premises, pertains to its enjoyment, and passes with the transfer of the title to the land, including transfer by descent.”); Holland v. Flanagan, 139 W.Va. 884, 81 S.E.2d 908 (1954) ("An easement appurtenant is defined as: 'An "incorporeal right” which is attached to and belongs with some greater and superior right or something annexed to another thing more worthy and which passes as incident to it and is incapable of existence separate and apart from the particular land to which it is annexed.’ Black’s Law Dictionary, Fourth Edition, page 599.”). See also 7 Thompson on Real Property 60.06(f)(1) (Thomas ed. 1994) ("The property burdened by an easement appúrtenant is know as the servient estáte, and the property benefitted by the easement is the dominant estate.”).
. "At common law, easements in gross were strongly disfavored because they were viewed as interfering with the free use of land. Thus, the common law rule of long standing is that an easement is 'never presumed to be in gross when it [can] fairly be construed to be appurtenant to land.'” U.S. v. Blackman, 270 Va. at 77, 613 S.E.2d at 446, quoting French v. Williams, 82 Va. 462, 468, 4 S.E. 591, 594 (1887). For examples of other courts applying the constructional preference for easements appurtenant, see Luevano v. Group One, 108 N.M. 774, 779 P.2d 552, 555 (1989); Continental Baking Co. v. Katz, 68 Cal.2d 512, 439 P.2d 889, 67 Cal.Rptr. 761 (1968); Martin v. Music, 254 S.W.2d 701 (Ky.1953); Todd v. Nobach, 368 Mich. 544, 118 N.W.2d 402 (1962); Johnson County v. Weber, 160 Neb. 432, 70 N.W.2d 440 (1955).
. See Saxe, When "Comprehensive" Prescriptive Easements Overlap Adverse Possession: Shifting Theories of "Use" and "Possession." 33 B.C. Envtl. Aff. L. Rev. 175 (2006) (contrasting elemerits required for adverse possession and prescriptive easements, and noting that the doctrines are "quite similar.").
. Syllabus Point 2 of Post v. Wallace, 119 W.Va. 132, 192 S.E. 112 (1937), states the requirement slightly differently:
The open, continuous and uninterrupted use of a road over the land of another, under bona fide claim of right, and without objection from the owner, for a period of ten years, creates in the user of such road a right by prescription to the continued use thereof.
See also Norman v. Belcher, 180 W.Va. 581, 378 S.E.2d 446 (1989); Foster v. Sumner, 180 W.Va. 617, 378 S.E.2d 659 (1989); Crane v. Hayes, 187 W.Va. 198, 417 S.E.2d 117 (1992); Jamison v. Waldeck United Methodist Church, 191 W.Va. 288, 445 S.E.2d 229 (1994); Carr v. Constable, 196 W.Va. 276, 470 S.E.2d 408 (1996); Wheeling Stamping Co. v. Warwood Land Co., 186 W.Va. 255, 412 S.E.2d 253 (1991), Moran v. Edman, 194 W.Va. 342, 460 S.E.2d 477 (1995).
. Though not an issue in this case, exclusivity is another element that is sometimes required for one to obtain a prescriptive easement. " ‘Exclusive use’, however, does not mean that no one has used the way except the claimant of the easement; it means that his right to do so does not depend upon a similar right in others. In order to establish an independent prescriptive right, the individual user must perform some act to the knowledge of the servient owner which clearly indicates his individual claim of right.” Town of Paden City, 136 W.Va. at 137, 66 S.E.2d at 286-87 (citation omitted). See also, Syllabus Point 3, Hall v. Backus, 92 W.Va. 155, 114 S.E. 449 (1922) ("Use of an open way in common with the owner of the land on which it is and the public in general is presumptively permissive, and not exercised under a claim of right, in the absence of proof of some act on the part of the person so using it, or circumstance under which he used it, showing a claim of exclusive or peculiar right in him distinct from that of the general public.”).
.For other cases discussing the "continuous" requirement, see Turner v. Anderson, 130 Colo. 275, 274 P.2d 972 (1954); Trexler v. Lutz, 180 Pa.Super. 24, 118 A.2d 210 (1955); Uliasz v. Gillette, 357 Mass. 96, 256 N.E.2d 290 (1970).
. See Perry v. Williams, 84 N.C.App. 527, 530, 353 S.E.2d 226, 228 (1987) (use of roadway during farming season constituted continuous enjoyment).
. The circuit court also cited Town of Paden City, supra, which stated that no matter when the use began or how long it lasts, a prescriptive easement will not be created if it began by permission of the owner of the servient estate, unless the person claiming the easement makes a decisive act manifesting an adverse or hostile claim. 136 W.Va. 127, 137-38, 66 S.E.2d 280, 287 (1951).
. Appellant Marty Newman, when asked whether the Fletchers ever refused him access to the spur, testified: "I never heard any refusal. I never heard anything, any recognition along that line, as permission granted either.”
Appellant Kenneth Dale Newman testified that his father Hugh Newman had a good relationship with Gary Fletcher, stating: "Yes, and he was always glad to see dad and they always had a good conversation."
The Newman appellants sister, Margie Phillips, testified that Gary Fletcher and her father, Hugh Newman were friendly and spoke to each other from time to time. When asked whether Gary Fletcher gave her father express permission to use the T.M. Newman easement, Margie Phillips stated: "That was never a question.” When asked whether Gary Fletcher ever denied the Newmans access to use it, she responded: "No.”
. Appellant Marty Newman testified that in the last 30 years, he has parked at the base of the hill and walked up to the property. He testified that James Michel never gave him permission to park there, but also did not ask him to leave when he accessed the property.
James Michel testified that since 1973, the Newmans have parked at the base of the spur, by his side yard, and walked up the hill.
. The Newmans concede that the necessity for the easement they seek arose in approximately 1977 when a portion of County Road 26 near the Old Road was closed due to road deterioration and high water. The Newmans argue that with the closing of this road, the best access to their property is by using the Michels’ driveway and the spur around the Michels’ residence.
County Road 26 is a public road. Both James Michel and the Newman appellants testified that there is a "Road Closed” sign on the entrance point of this road beyond the end of the Michels’ driveway. There was no evidence presented, however, that this sign was placed there by a county or state official, or that the formal procedure for closing an unused road, street, or travel way, as described in W.Va.Code, 7-l-3h [1967], occurred with regard to County Road 26. W.Va. Code, 7-l-3h allows a landowner to submit an application to a county commission to close a road, street, or other travel way that abuts the landowner's property. If the county commission concludes that the use and rights of no person or persons in such a road or travel way will be impaired, the commission may enter an order closing the road.
During oral argument in this matter, counsel for the Newman appellants was asked whether the County Road 26 access point, if not fenced off by the Michels, would provide his clients with a sufficient entiyway onto their property. Counsel responded by stating "With that access, we’ll take it.” Counsel for the Michels then told the Court that the fence which James Michel had erected in front of County Road 26 is no longer there and stated that the Michels do not contest that the Newmans have the right to access their property by traveling on the remains of County Road 26 to the Old Road, and then traversing the Old Road north across the Michels’ property onto the Newmans' property. | [
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KETCHUM, Justice:
In this appeal from the Circuit Court of Kanawha County, we are asked to consider whether a plaintiffs state cause of action against a motor vehicle manufacturer is preempted by federal law. The plaintiff was injured in a motor vehicle roll-over accident, in part, because the side-window glass shattered and allowed the plaintiffs arm to exit the vehicle and be pinned between the vehicle and the pavement. The plaintiff contends that his vehicle was defective because the manufacturer used tempered glass in the side-door windows instead of stronger laminated glass.
Upon a motion from the defendant manufacturer, the circuit court granted summary judgment and dismissed the plaintiffs glass defect claims. The circuit court concluded that the plaintiffs glass defect claims were preempted by Federal Motor Vehicle Safety Standard 205, a regulation that permits motor vehicle manufacturers options in choosing side-window materials.
After carefully reviewing the record, the briefs and arguments of the parties, and the federal legal authorities on this question, we feel compelled to find that the circuit court’s decision was correct. As set forth below, we hold that the plaintiffs side-window glass defect claims are preempted by federal law, and affirm the circuit court’s summary judgment order entered in favor of the vehicle manufacturer.
I.
Facts and Background
On January 30, 2001, appellant Francis Robert Morgan (“Mr.Morgan”) was driving a 1999 Ford Expedition south on Interstate 79 in Braxton County, West Virginia. The vehicle rolled over, and Mr. Morgan’s left hand and left arm were ejected through the broken tempered glass of the driver’s side-door window and pinched between the ground and the exterior of the door panel. Mr. Morgan suffered a severe degloving injury to his left arm and hand as a result.
Mr. Morgan’s wife, Josephine Morgan, was sitting in the second row of the vehicle and was injured in the rollover. Mrs. Morgan filed the underlying action in this ease on January 27, 2003, naming her husband and appellee Ford Motor Company (“Ford”) as party defendants. Mr. Morgan answered the complaint on January 31, 2003, and asserted cross claims against Ford that included, inter alia, causes of action for strict liability, negligence, breach of warranty, fraudulent omission, and intentional infliction of emotional distress.
Mr. Morgan’s causes of action against Ford relate to the crashworthiness of the 1999 Ford Expedition vehicle, and are predicated on Ford’s installation of tempered glass in the side windows of the vehicle. Mr. Morgan’s expert, Thomas J. Feaheny, issued a report indicating that the 1999 Ford Expedition was defective and unreasonably dangerous in its design because of the tempered glass. It was Mr. Feahenjfs opinion that laminated glass, or some other ejection-resistant side-window glass or glazing — which was technologically and economically feasible— should have been used, and would have prevented the ejection of Mr. Morgan’s arm through the driver’s side window.
Another expert retained by Mr. Morgan, Paul Lewis, Jr., was a biomechanics specialist. Like Mr. Feaheny, Mr. Lewis was of the opinion that Mr. Morgan would not have suffered the degloving injui’y had the glass in the vehicle’s window prevented his arm from exiting the confines of the vehicle during the rollover.
On June 26, 2007, Ford filed a motion for summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure asserting, among other things, that Mr. Morgan’s glass-defect claims were preempted by federal law. Ford contended that Mr. Morgan’s state law side-window-glass defect claims were impliedly preempted by the National Traffic and Motor Vehicle Safety Act, 49 U.S.C. § 30101, et seq. (“the Safety Act”), and its implementing regulation pertaining to glass/glazing, Federal Motor Vehicle Safety Standard 205 (“FMVSS 205”).
In an order filed September 17, 2007, the circuit court granted Ford’s motion for summary judgment. The circuit court found that the appellant’s “claim of a glass/glazing defect in the subject vehicle relates solely to the choice of tempered glass over other permitted options, and not to any application or specific design or manufacturing defect in the glass/glazing present in the subject vehicle.” The circuit court further found that FMVSS 205 “permits a motor vehicle manufacturer to use one of several options for the materials in side and rear windows, including glass-plastic, laminates, and tempered glass” and found that Ford had used one those optional glazing materials, tempered glass, in the side windows of the subject 1999 Ford Explorer.
In its order, the circuit court looked to the United States Supreme Court’s interpretation of the Safety Act in Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). In Geier the plaintiff asserted that her vehicle was defective because the vehicle’s manufacturer failed to equip it with airbags. The manufacturer — relying upon a list of safety options in the then-effective variant of FMVSS 208— chose to equip the vehicle with only seatbelts. The U.S. Supreme Court ruled that because FMVSS 208 deliberately provided manufacturers with a range of choices among different passive restraint devices (including seat-belts and airbags), the plaintiffs defect suit was pre-empted. The circuit court interpreted the Geier decision to mean that because FMVSS 208 was deliberately designed to provide manufacturers with safety options, a state court defect action that might compel a manufacturer to choose one of those safety options over the others available under the regulation frustrated the federal scheme and was, therefore, impliedly preempted by the federal regulation.
Applying this interpretation of FMVSS 208 in Geier to FMVSS 205 in the case below, the circuit court below determined that:
[Bjecause tempered glass is a permitted option for manufacturers to use in vehicle side windows under FMVSS 205, the imposition of state tort liability based on the exercise of such option would frustrate the full purposes and objectives of Congress.
The circuit court therefore concluded that the appellant’s glass/glazing defect claim was preempted by federal law, and entered judgment for appellee Ford.
The appellant, Mr. Morgan, now appeals the circuit court’s September 17, 2007 summary judgment order.
II.
Standard of Review
“ ‘Preemption is a question of law reviewed de novo.’ Hartley Marine Corp. v. Mierke, 196 W.Va. 669, 673, 474 S.E.2d 599, 603 (1996), citing Kollar v. United Transportation Union, 83 F.3d 124, 125 (5th Cir.1996).” Syllabus Point 2, Lontz v. Tharp, 220 W.Va. 282, 647 S.E.2d 718 (2007) (per curiam).
III.
Discussion
The sole issue raised in this appeal is whether the circuit court erred in its conclusion that appellant Mr. Morgan’s side-window glass and glazing defect claims are preempted by FMVSS 205. Before turning to the parties’ arguments, we first discuss the basic parameters of preemption jurisprudence.
A. Fundamental Preemption Guidelines
The preemption doctrine has its origin in the Supremacy Clause of the United States Constitution, which states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const., Art. VI, el. 2. As interpreted by Chief Justice John Marshall, the expounder of the Constitution state laws are invalid and preempted under the Supremacy Clause if they “interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution[.]” Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824).
This Court has therefore interpreted the preemption doctrine to mean that “[t]he Supremacy Clause of the United States Constitution, Article VI, Clause 2, invalidates state laws that interfere with or are contrary to federal law.” Syllabus Point 1, Cutright v. Metropolitan Life Ins. Co., 201 W.Va. 50, 491 S.E.2d 308 (1997).
Nevertheless, our law has a bias against preemption. Preemption of topics traditionally regulated by states — like health and safety — is greatly disfavored in the absence of convincing evidence that Congress intended for a federal law to displace a state law. Put succinctly, preemption is disfavored in the absence of exceptionally persuasive reasons warranting its application:
As we have frequently indicated, “[preemption of state law by federal statute or regulation is not favored ‘in the absence of persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.’ ”
Commonwealth Edison Co. v. Montana, 453 U.S. 609, 634, 101 S.Ct. 2946, 69 L.Ed.2d 884 (1981) (quoting Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981), quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963)).
When it is argued that a state law is preempted by a federal law, the focus of analysis is upon congressional intent. Preemption “is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977). The task presented for a court when a federal preemption defense is raised “is to determine whether state regulation is consistent with the structure and purpose of the statute [or federal regulation] as a whole.” Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992); accord Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). “To discern Congress’ intent we examine the explicit statutory language and the structure and purpose of the statute.” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990); see also FMC Corp. v. Holliday, 498 U.S. 52, 56-57, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990).
Although “there can be no one crystal clear distinctly marked formula” for determining whether a state statute is preempted the United States Supreme Court has identified two ways in which preemption may be accomplished: expressly or impliedly.
To establish a ease of express preemption requires proof that Congress, through specific and plain language, acted within constitutional limits and explicitly intended to preempt the specific field covered by state law. See Hillsborough County, Fla. v. Automated Medical Labs., Inc., 471 U.S. 707, 715-16, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) (noting that the presumption against preemption governs unless preemption “ Vas the clear and manifest purpose of Congress’ ”) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)).
There are two recognized types of implied preemption: field preemption and conflict preemption. Implied field preemption occurs where the scheme of federal regulation is so pervasive that it is reasonable to infer that Congress left no room for the states to supplement it. Implied conflict preemption occurs where compliance with both federal and state regulations is physically impossible, or where the state regulation is an obstacle to the accomplishment or execution of congressional objectives. To prevail on a claim of implied preemption, “evidence of a congressional intent to pre-empt the specific field covered by state law” must be pinpointed. See Wardair Canada, Inc. v. Florida Dep’t of Revenue, 477 U.S. 1, 6, 106 S.Ct. 2369, 91 L.Ed.2d 1 (1986).
One final point: the U.S. Supreme Court has recognized that an agency regulation with the force of law can explicitly or implicitly preempt conflicting state regulations. See, e.g., Geier v. American Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000); Hillsborough County, Fla. v. Automated Medical Labs., Inc., 471 U.S. at 713, 105 S.Ct. 2371. In such cases, a court must not rely on mere agency proclamations that the federal regulation preempts state law, but must perform its own conflict determination, relying on the substance of state and federal law. Wyeth v. Levine, 555 U.S. -, - 129 S.Ct. 1187, 1201, 173 L.Ed.2d 51 (2009).
B. The Parties’ Arguments on Preemption
The parties in this case dispute whether West Virginia’s general common law on product liability is preempted by the National Traffic and Motor Vehicle Safety Act, 49 U.S.C. § 30101, et seq. (“the Safety Act”), and its implementing regulation pertaining to glass/glazing, Federal Motor Vehicle Safety Standard 205 (“FMVSS 205”). We first address whether these federal enactments explicitly preempt our State’s common law action, and then address whether they trump our law under the theory of implied conflict preemption.
(1) Express Preemption.
We first briefly dispense with the question concerning whether the appellant’s common-law cause of action is explicitly preempted by the Safety Act or FMVSS 205.
The Safety Act requires the National Highway Traffic Safety Administration (“NHTSA”) to “prescribe motor vehicle safety standards” that are “practicable, meet the need for motor vehicle safety, ... [and are] stated in objective terms.” 49 U.S.C. § 30111(a). The Safety Act defines a “motor vehicle safety standard” as the “minimum standard for motor vehicle or motor vehicle equipment performance.” 49 U.S.C. § 30102(a)(9).
The Safety Act contains an express preemption provision, which states:
When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter.
49 U.S.C.A. § 30103(b)(1). Preemption under this provision is not, however, complete. Another portion of the Safety Act — often referred to as the “savings clause” — states:
Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.
49 U.S.C. § 30103(e). Read together, these two statutes indicate a congressional intent to expressly preempt state-enacted regulations, but to not preempt common law suits that arise even though a manufacturer has complied with a federal regulation establishing a “minimum standard for motor vehicle or motor vehicle equipment performance.” 49 U.S.C. § 30102(a)(9). See Geier v. American Honda Motor Co., Inc., 529 U.S. at 867-68, 120 S.Ct. 1913. The savings clause “removes tort actions from the scope of the express pre-emption clause,” 529 U.S. at 869, 120 S.Ct. 1913, and “preserves those actions that seek to establish greater safety than the minimum safety achieved by a federal regulation intended to provide a floor.” Id., 529 U.S. at 870, 120 S.Ct. 1913.
The Safety Act therefore does not expressly preempt the appellant’s common-law cause of action.
We also find no language in FMVSS 205 that would indicate a clear expression of congressional intent to preempt common law suits regarding glazing in motor vehicles. Instead, we find agency language suggesting that FMVSS 205 would “not have any substantial direct effects on the States” including “preempting] State law[.]” The final 2003 version of FMVSS 205, as published in the Federal Register, was accompanied by the following agency statement:
Executive Order 13132 requires us to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” ... We also may not issue a regulation with Federalism implications and that preempts State law unless we consult with State and local officials early in the process of developing the proposed regulation.
This final rule will not have any substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.
68 F.R. 43964, 43971 (July 25, 2003). Accordingly, it appears that when FMVSS 205 was most recently revised, the NHTSA did not intend to expressly preempt actions arising under state law.
Accordingly, we need consider only whether the appellant’s common law action is invalidated under a theory of implied preemption.
2. Implied Conflict Preemption.
We are asked by the parties to examine the theory of implied conflict preemption, and whether a state common-law suit regarding a manufacturer’s choice of side-window glass materials is an obstacle to the accomplishment or execution of congressional objectives under the Safety Act and FMVSS 205.
Understanding the parties’ arguments on implied conflict preemption requires a brief examination of the federal safety regulation at issue. FMVSS 205 — which may be found at 49 C.F.R. § 571.205 — sets forth various requirements for glazing materials that may be used in motor vehicles. The NHTSA stated three purposes for the regulation, as follows:
The purpose of this standard is to reduce injuries resulting from impact to glaz ing surfaces, to ensure a necessary degree of transparency in motor vehicle windows for driver visibility, and to minimize the possibility of occupants being thrown through the vehicle windows in collisions.
49 C.F.R. § 571.205 at S2. The regulation does not, however, directly identify the glazing materials approved for use in motor vehicles, but rather incorporates by reference a standard designed by the American National Standards Institute (“ANSI”). The current standard — “American National Standard for Safety Glazing Materials,” ANSI/SAE Z26.11996 — provides as follows:
Except for special requirements for specified locations, safety glazing materials of seven general types can meet some or all requirements detailed in this standard. Ml seven types are commei’cially feasible today. Each of them possesses its own distinctive safety characteristics. The seven types are listed below and ai'e described in Section I.
(1) Laminated Glass
(2) Glass-Plastic Glazing Material
(3) Tempered Glass
(4) Plastic
(5) Multiple Glazed Unit (Class 1 and Class 2)
(6) Bullel^Resistant Glazing ■
(7) Bullet-Resistant Shield
The standard permits laminated glass to be used throughout a vehicle, while tempered glass can be used anywhere other than in the windshield. See, ANSI/SAE Z26.1-1996, T. 1 (Items 1 & 2). The ANSI standards also state that:
One safety glazing material may be superi- or for protection against one type of hazard, whereas another may be superior against another type ... [N]o one type of safety glazing material can be shown to possess the maximum degree of safety under all conditions.
Id. at § 2.2.
Appellee Ford argues that our interpretation of the preemptive effect of FMVSS 205 is controlled by the U.S. Supreme Court’s decision in Geier v. American Honda Motor Co., supra. Ford asserts that the Geier decision stands for the proposition that state common-law suits are preempted whenever they would foreclose one of several equipment options authorized by a federal motor vehicle safety standard. Because FMVSS 205 offers manufacturers several options for materials to choose among when installing side windows in vehicles, Ford asserts that a state common-law suit precluding one of those options is implicitly preempted.
The appellant, Mr. Morgan, argues that Geier is being given an overbroad interpretation. Geier, the appellant argues, was not based on the mere existence of regulatory options. Instead, the Geier decision was founded upon extrinsic evidence that demonstrated a federal agency had a detailed plan that would be obstructed by state law. The appellant contends that the evidence in Geier showed that the federal agency had adopted an authoritative policy behind the regulations at issue, a policy designed to encourage manufacturers to gradually phase in a mix of optional safety equipment. The availability of options was essential to the success of the federal agency objectives.
Mr. Morgan asserts that under Geier, if a federal agency does not consider the avail ability of a particular option to be essential to its objectives, • then a common-law theory foreclosing that option does not stand as an obstacle to the agency’s objectives and is not preempted. Mr. Morgan further asserts that there is no evidence of an agency plan, policy, or objective behind FMVSS 205 that would be thwarted by a state cause of action. When the circuit court construed Geier to mean that options always preempt a state cause of action to declare one of those options as unsafe, the appellant argues that the congressional intent behind the Safety Act (which permits common law actions and which states that safety standards are, by definition, only a “minimum standard,” 49 U.S.C. § 30102(a)(9)) was thwarted.
Overshadowing the parties’ arguments are two federal cases issued after the circuit court entered its summary judgment order in the instant case. In the first case, O’Hara v. General Motors Corp., 508 F.3d 753 (5th Cir.2007), a federal appeals court concluded that Geier does not apply to an interpretation of FMVSS 205, and, accordingly, that a state common-law suit alleging that the tempered glass in a vehicle was defective was not preempted by federal law. In the second ease, Wyeth v. Levine, 555 U.S. -, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009), the U.S. Supreme Court held that explicit regulatory pronouncements by a federal agency that state common-law suits “frustrate the agency’s implementation of its statutory mandate” are insufficient to preempt a state common-law suit. In so holding, the Court appears to have expounded upon its decision in Geier.
To better understand the parties’ positions on implied preemption, we must explore the courts’ decisions in Geier, O’Hara, and Wyeth.
a. Geier v. American Honda
Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) concerned the preemptive effect of the Safety Act and FMVSS 208, a series of standards listing the approved types of passive restraints manufacturers could install inside vehicles. Those passive restraints ranged from types of seat belts to airbags. The plaintiff, Alexis Geier, collided with a tree while driving a 1987 Honda Accord. The plaintiff was restrained by a manual shoulder and lap belt, but was still seriously injured. Because the car was not equipped with airbags, the plaintiff sued American Honda on the tort law theory that the vehicle was negligently and defectively designed. The plaintiff essentially argued that “[a]s far as FMVSS 208 is concerned, the more airbags, and the sooner, the better.” 529 U.S. at 874, 120 S.Ct. 1913.
The United States Supreme Court, by a 5-4 majority, concluded that the plaintiffs tort law suit was preempted by FMVSS 208.
First, to determine the objectives of FMVSS 208, the Court examined the statements by the federal agency when FMVSS 208 was being promulgated, and examined the history (starting in 1967) behind the adoption and revision of regulations for passive restraints. 529 U.S. at 875-878, 120 S.Ct. 1913. The “relevant history and background are complex and extensive.” 529 U.S. at 883, 120 S.Ct. 1913. The Court noted that NHTSA “had rejected a proposed FMVSS 208 ‘all airbag’ standard because of safety concerns (perceived or real) associated with airbags.” 529 U.S. at 879, 120 S.Ct. 1913. The agency history showed that NHTSA had sought to encourage manufacturers to adopt a mix of devices to “help develop data on comparative effectiveness” of passive restraint systems, to build public confidence, and to allow the industry time to overcome the safety problems and high production costs associated with airbags. Id. Considering this extensive history and record of agency deliberations, the Court found that FMVSS 208
... deliberately provided the manufacturer with a range of choices among different passive restraint devices. Those choices would bring about a mix of different devices introduced gradually over time; and FMVSS 208 would thereby lower costs, overcome technical safety problems, encourage technological development, and win widespread consumer acceptance — all of which would promote FMVSS 208’s safety objectives.
529 U.S. at 875,120 S.Ct. 1913.
Because FMVSS 208 sought to engender “a gradually developing mix of alternative passive restraint devices,” the Court concluded that the tort suit filed by the plaintiff “would stand as an ‘obstacle’ to the accomplishment of that objective.” 529 U.S. at 886, 120 S.Ct. 1913. The Court therefore found that the plaintiffs suit was preempted.
b. O’Hara v. General Motors
Following the U.S. Supreme Court’s opinion in Geier, a handful of federal and state trial courts found that FVMSS 205 preempts state tort claims arising from a manufacturer’s choices of one glazing material over another in motor vehicles.
Only one appellate court in the nation — the United States Court of Appeals for the Fifth Circuit — has directly addressed the preemptive effect of FMVSS 205. And the Fifth Circuit has concluded that FMVSS 205 does not preempt state tort claims.
The facts in O’Hara v. General Motors Corp., 508 F.3d 753 (5th Cir.2007) are similar to those in the instant case. As the O’Haras’ 2004 Chevrolet Tahoe rolled over in an accident, the plaintiffs’ daughter’s arm was seriously injured when she was partially ejected through a passenger side window. The plaintiffs claimed that GM’s use of tempered glass in the side windows was unreasonably dangerous so as to render the vehicle defective under state tort law, and the plaintiffs argued that “advanced glazing would have decreased the likelihood of passenger ejection.” 508 F.3d at 755. The federal district court granted summary judgment to GM, finding that FMVSS 205 preempted the plaintiffs’ state law suit.
On appeal, the Court of Appeals reversed the district court’s ruling and found the plaintiffs could proceed with their suit. The Court examined Geier, and interpreted Geier to mean:
When a federal safety standard deliberately leaves manufacturers with a choice among designated design options in order to farther a federal policy, a common law rule which would force manufacturers to adopt a particular design option is preempted.
O’Hara, 508 F.3d at 759 (emphasis added).
Turning to the record, the O’Hara Court examined the text of the regulation and the ANSI standards for glazing materials, and found that FMVSS 205 is “a materials standard that sets a safety ‘floor’ to ensure that the glazing materials used by manufacturers meets certain basic requirements.” 508 F.3d at 760.
The Court also found that FMVSS 205 differs significantly from FMVSS 208 (the regulation considered in Geier) because FMVSS 208 “includes detailed implementation timelines which required manufacturers to introduce airbag technology gradually pri- or to 1997____All of these factors — detailed implementation timelines, full vehicle testing procedures and ‘options’ language — are conspicuously absent from FMVSS 205.” 508 F.3d at 760.
The Court further found that FMVSS 205 does not articulate a glazing materials public policy like that relied upon by the U.S. Supreme Court in interpreting FMVSS 208. In Geier, the Court “had the benefit of extensive pre-litigation agency statements interpreting FMVSS 208 and making NHTSA’s occupant crash protection policy clear,” 508 F.3d at 760, and the final rule commentary on the version of FMVSS 208 at issue in Geier was 47 pages long and laid “out the agency’s concerns regarding public acceptance of airbag technology.” 508 F.3d at 761. The O’Hara Court noted that the final rule commentary on FMVSS 205 is short — only eight pages — and identifies the public goal behind the update as “increasing the clarity and usability of the standard.” 508 F.3d at 761. The Court could find no language “indicating that NHTSA intended to ‘preserve the option’ of using tempered glass in side windows, or that preserving this option would serve the safety goals of FMVSS 205.” Id.
The O’Hara Court also examined a NHTSA proposal during the 1990s to amend FMVSS 205 to require advanced glazing to prevent occupant ejection during rollover accidents. See NHTSA, Rollover Prevention, Advance Notice of Proposed Rulemaking, 57 Fed.Reg. 242 (Jan. 3, 1992). In 2002, NHTSA withdrew its proposal, stating that it declined to require advanced glazing based on “safety and cost concerns.” Notice of Withdrawal, 67 Fed.Reg. 41,365, 41,367 (June 18, 2002). Those safety concerns included the agency’s desire to investigate and develop standards for new technologies like side airbags, and that advanced glazing carried “drawbacks, including a slightly increased risk of minor neck injuries.” O’Hara, 508 F.3d at 757. NHTSA stated that it was “more appropriate to devote its research and rulemaking efforts with respect to ejection mitigation to projects other than advanced glazing.” 67 Fed.Reg. at 41,367.
The Court in O’Hara carefully examined NHTSA’s 2002 Notice of Withdrawal, and found no articulable “federal policy regarding advanced glazing in side windows which would be frustrated by the O’Hara’s suit.” O’Hara, 508 F.3d at 761-62. “Overall, the Notice of Withdrawal emphasizes the existence of other promising rollover protection technologies and NHTSA’s need to devote resources to developing procedures to test them.... It did not reject advanced glazing as unsafe!.]” 508 F.3d at 762.
The Court then examined a post-Geier ease on preemption from the U.S. Supreme Court, Sprietsma v. Mercury Marine, 537 U.S. 51, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002). In Sprietsma, the plaintiffs decedent was killed after falling from a boat and being struck by unguarded propeller blades. The plaintiff brought suit under state law against the engine manufacturer, alleging that the engine was defective and should have had a propeller guard.
The manufacturer in Sprietsma argued that the state law action was preempted under Geier by federal laws because the U.S. Coast Guard had specifically studied, but decided to “take no regulatory action,” with regard to propeller guards. 537 U.S. at 66, 123 S.Ct. 518. In other words, because the federal agency had refused to require propeller guards, the manufacturer argued that a state law ruling holding that propeller guards were required would interfere with the agency’s policy. Sprietsma, 537 U.S. at 64-66, 123 S.Ct. 518. The U.S. Supreme Court disagreed and concluded that the plaintiffs state law action was not preempted, 537 U.S. at 70, 123 S.Ct. 518, holding that the Coast Guard’s “decision not to regulate a particular aspect of boat safety is fully consistent with an intent to preserve state regulatory authority pending the adoption of specific federal standards.” 537 U.S. at 65, 123 S.Ct. 518. The Court ruled that an agency’s decision not to regulate and require a particular form of safety equipment — like propeller guards— did not “convey an authoritative message of a federal policy” against that form of safety equipment. 537 U.S. at 67, 123 S.Ct. 518.
Taken together, the Court in O’Ham found that FMVSS 205 was best understood as a minimum safety standard, and applying Geier and Sprietsma concluded that the plaintiffs’ common law claims were not preempted. 508 F.3d at 763.
c. Wyeth v. Levine
Five days before oral argument in the instant appeal, the United States Supreme Court issued an opinion which revisited its holding in Geier, and which revisited the Court’s decisions on implied conflict preemption. While the Court’s decision, reached with a 6-3 majority, involved a different statute and different regulatory scheme than in the instant case, we believe that the Court’s decision markedly clarified its holding in Geier.
In Wyeth v. Levine, 555 U.S. -, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009), the Court examined whether a state law failure-to-warn defect suit was preempted by drug regulations adopted under federal law. The drug Phenergan is corrosive and causes irreversible gangrene if it enters a patient’s artery. The plaintiff received the drug Phenergan via the IV-push method into her arm, and the drug somehow entered an artery. As a result, the plaintiff’s forearm had to be amputated. The plaintiff brought suit against the manufacturer, alleging that the labeling was defective because it failed to instruct clinicians not to use the high-risk IV-push method. A jury found the Phenergan labels to be insufficient and awarded damages.
One of the manufacturer’s arguments offered in support of preemption was that the FDA had declared, in its preamble to a 2006 regulation governing the content and format of prescription drug labels, that federal law establishes .“both a ‘floor’ and a ‘ceiling,’ ” so that “FDA approval of labeling ... preempts conflicting or contrary State law.” 555 U.S. at -, 129 S.Ct. at 1200. The regulation also declared that certain state-law actions, such as those involving failure-to-warn claims, “threaten FDA’s statutorily prescribed role as the expert Federal agency responsible for evaluating and regulating drugs.” Id. The manufacturer argued that because the FDA is statutorily charged with determining whether drug labels are safe, then state-law judgments on the safety of those labels would subvert the FDA’s determinations.
The' Supreme Court rejected the manufacturer’s preemption argument and concluded that:
In prior cases, we have given “some weight” to an agency’s views about the impact of tort law on federal objectives “when the subject matter is technical!] and the relevant history and background are complex and extensive.” Geier, 529 U.S. at 883,120 S.Ct. 1913. Even in such cases, however, we have not deferred to an agency’s conclusion that state law is pre-empted.
555 U.S. at -, 129 S.Ct. at 1201. The Court went on to conclude that the agency’s view that its regulations preempted state law were “inherently suspect” and “at odds with what evidence we have of Congress’ purposes!.]” 555 U.S. at -, 129 S.Ct. at 1201. The Court found that the plaintiffs suit was not preempted by federal law.
Important to the case at bar, the Court made clear the basis for its decision in Geier. The Court indicated that Geier was founded upon the federal agency’s explanation of how state law would interfere with its regulation, and how state law would be an obstacle to the accomplishment of a clear federal objective. The Court stated:
[In Geier], we held that state tort claims premised on Honda’s failure to install airbags conflicted with a federal regulation that did not require airbags for all cars. The Department of Transportation (DOT) had promulgated a rule that provided car manufacturers with a range of choices among passive restraint devices. Rejecting an “ ‘all airbag’ ” standard, the agency had called for a gradual phase-in of a mix of passive restraints in order to spur technological development and win consumer acceptance. Because the plaintiffs claim was that car manufacturers had a duty to install airbags, it presented an obstacle to achieving “the variety and mix of devices that the federal regulation sought.”
... In Geier, the DOT conducted a formal rulemaking and then adopted a plan to phase in a mix of passive restraint devices. Examining the rule itself and the DOT’s contemporaneous record, which revealed the factors the agency had weighed and the balance it had struck, we determined that state tort suits presented an obstacle to the federal scheme. After conducting our own pre-emption analysis, we considered the agency’s explanation of how state law interfered with its regulation, regarding it as further support for our independent conclusion that the plaintiffs tort claim obstructed the federal regime.
555 U.S. at -, 129 S.Ct. at 1203 (citations omitted).
Justice Thomas, concurring in the judgment in Wyeth v. Levine but writing separately from the majority, pinpointed a general concern with the Court’s “purposes and objectives” implied conflict preemption jurisprudence. More importantly, Justice Thomas pinpointed a specific concern with the Court’s effort in Geier to “comb through agency commentaries” to find a congressional objective that was contrary to the specific language of the Safety Act’s savings clause. Justice Thomas says that preemptive effect should only be given to congressional intent that is derived directly from properly enacted laws and regulations, and not intent that is mystically divined from letters, briefs, speeches, “congressional and agency musings” or other extraneous sources. As he stated:
The Supremacy Clause ... requires that pre-emptive effect be given only those to federal standards and policies that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bicameral and presentment procedures____
My review of this Court’s broad implied pre-emption precedents, particularly its “purposes and objectives” pre-emption jurisprudence, has increased my concerns that implied pre-emption doctrines have not always been constitutionally applied. Under the vague and “potentially boundless” doctrine of “purposes and objectives” pre-emption, Geier v. American Honda Motor Co., 529 U.S. 861, 907, 120 S.Ct. 1913, 146 L.Ed.2d 914 (STEVENS, J., dissenting), for example, the Court has preempted state law based on its interpretation of broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not contained within the text of federal law. See, e.g., ... Geier, supra, at 874-883, 120 S.Ct. 1913 (relying on regulatory history, agency comments, and the Government’s litigating position to determine that federal law preempted state law).
Congressional and agency musings, however, do not satisfy the Art. I, § 7 requirements for enactment of federal law and, therefore, do not pre-empt state law under the Supremacy Clause. When analyzing the pre-emptive effect of federal statutes or regulations validly promulgated thereunder, “[ejvidence of pre-emptive purpose [must be] sought in the text and structure of the [provision] at issue” to comply with the Constitution.
Wyeth v. Levine, 555 U.S. at -, 129 S.Ct. at 1208 (Thomas, J., concurring) (citations and footnotes omitted).
Justice Thomas went on to levy specific criticism of Geier, and to suggest that the Court erred in Geier when it strained to divine a congressional or agency intent in favor of preemption that was contrary to the specific “savings clause” language in the Safety Act.
The Court’s decision in Geier to apply “purposes and objectives” pre-emption based on agency comments, regulatory history, and agency litigating positions was especially flawed, given that it conflicted with the plain statutory text of the saving clause within the Safety Act, which explicitly preserved state common-law actions by providing that “Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law,” 15 U.S.C. § 1397(k) (1988 ed.). In addition, the Court’s reliance on its divined purpose of the federal law — to gradually phase in a mix of passive restraint sys terns — in order to invalidate a State’s imposition of a greater safety standard was contrary to the more general express statutory goal of the Safety Act “to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents,” 15 U.S.C. § 1381 (1988 ed.). This Court has repeatedly stated that when statutory language is plain, it must be enforced according to its terms. The text in Geier “directly addressed the precise question at issue” before the Court, so that should have been “the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” With text that allowed state actions like the one at issue in Geier, the Court had no authority to comb through agency commentaries to find a basis for an alternative conclusion.
555 U.S. at-, 129 S.Ct. at 1215 (Thomas, J., concurring) (citations omitted).
Because the application of the implied preemption doctrine often engenders conclusions that “wander far from the statutory text,” Justice Thomas summarized his criticism of the implied conflict preemption doctrine that was the basis for the Court’s decision in Geier like this:
Under this approach, the Court routinely invalidates state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not embodied within the text of federal law.
555 U.S. at-, 129 S.Ct. at 1215 (Thomas, J., concurring).
3. Distilling the various principles of implied conflict preemption
We now turn again to the parties’ arguments, which can now be better viewed in the fluctuating light of the current state of implied conflict preemption jurisprudence.
Mr. Morgan asserts that his glazing defect suit is not preempted by FMVSS 205. He contends that this Court should follow the decisions in O’Hara v. General Motors Corp., supra, and Sprietsma v. Mercury Marine, supra, and hold that Geier v. American Honda stands for the principle that a common law rule which would force manufacturers to adopt a particular design option is preempted only when a federal safety standard deliberately leaves manufacturers with a choice among designated design options in order to further a clearly defined federal policy. Mr. Morgan asserts that FMVSS 205 does not offer manufacturers choices among different glazing options in order to further a clearly defined federal policy.
Instead, Mr. Morgan points out that FMVSS 205 sets forth simple, base line testing guidelines for manufacturers to ensure glazing is safe for use in vehicles, and argues that there is little history and background indicating a congressional intent mandating that manufacturers be permitted to choose glazing materials that are, under state law, unreasonably safe for their intended use. The only public policy clearly expressed in the agency’s history when adopting FMVSS 205 is “increasing the clarity and usability of the standard.” O’Hara, 508 F.3d at 761. Further, as for the NHTSA’s decision to consider requiring advanced glazing materials to prevent passenger ejections and later decision not to adopt any new regulations, the plaintiff argues that under Sprietsma, the decision not to require advanced glazing materials did not “convey an authoritative message of a federal policy” against state common-law actions mandating that form of safety equipment in motor vehicles.
Ford continues to take the position that the plaintiffs suit is preempted by FMVSS 205. Ford argues that, like the passive restraint options in FMVSS 208 that were considered in Geier v. American Honda, FMVSS 205 gives manufacturers a list of optional glazing materials to choose among. Under FMVSS 208, the NHTSA had “rejected a proposed FMVSS 208 ‘all airbag’ standard because of safety concerns (perceived or real) associated with airbags,” 529 U.S. at 879, 120 S.Ct. 1913; under FMVSS 205, the agency had rejected a proposed standard requiring advanced glazing in side and rear windows, in part because of safety concerns arising from a slight increase in neck injuries. Ford therefore asserts that this Court should find that the NHTSA “deliberately provided the manufacturer with a range of choices among different” glazing materials, and that those “choices would bring about a mix of different devices” that should “lower costs, overcome technical safety problems, encourage technological development, and win widespread consumer acceptanee[.]” Geier, 529 U.S. at 875, 120 S.Ct. 1913.
We discern that we are stuck between a rock and a jurisprudential hard place. On the one hand, the U.S. Supreme Court’s recent decision in Wyeth v. Levine suggests that Geier has a limited interpretation — that conflict preemption may only be inferred when there is an extensive contemporaneous history, and detailed agency explanations, showing a federal scheme that would be obstructed by the plaintiffs tort claim. Ford has presented us with little agency history to support a policy indicating that FMVSS 205 was intended to preempt state common law actions, and we have no agency explanations identifying a clear federal objective that would be corrupted by allowing the plaintiff to proceed. And finally, the only other appellate coui’t to directly consider the question — the Fifth Circuit in O’Hara — has conclusively ruled that FMVSS 205 establishes only a “floor” for safe glazing equipment, and does not preempt a state eoux't suit seeking to establish a “ceiling.”
On the other hand, several state and federal trial courts across the counti’y have ruled that any intei’pretation of the preemptive effect of FMVSS 205 is controlled by Geier’s “purposes and objectives” analysis. In agency pronouncements about altexring the objectives of FMVSS 205, NHTSA has indicated that glazing other than tempered glass can increase the xrisk of neck injuries in accidents. Courts have thexofoxo concluded that a state tort law, which imposes liability based upon a manufactux’ei’’s choice to use the tempered glass option allowed by FMVSS 205, is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, and therefore is federally preempted.
FMVSS 205 permits the manufacturer to make a choice between available safety options for side-window glass; a design defect claim would foi’eelose choosing one of those options. We understand that the instant case seeks to impose liability for only one of the options allowed by FMVSS 205. But actions in the courts of each of West Virginia’s 55 counties could theoi’etically, one-by-one, eliminate all of the options offered under FMVSS 205. In the worse case, regulation by jui'ies could, in a piecemeal fashion, eviscerate the unitary federal regulation and leave manufacturers with no options for glazing matei’ials in vehicle side windows.
We therefoi’e conclude that the circuit court in the instant ease did not err in finding that the plaintiffs claim was preempted by FMVSS 205. We believe — as Justice Thomas noted in Levine — that Geier is flawed because it requires coux'ts to look beyond the propei’ly-enaeted federal statute or law and divine an agency’s intent from extraneous matei’ials to determine the preemptive effect of a regulation. Still, we ai’e compelled to find that our decision must be controlled by Geier, because the NHTSA made a public policy decision to not mandate advanced glazing in side windows because of safety concerns that advanced glazing has a slightly increased risk of neck injuries. Geier is, until altered or explicated by the United States Supreme Court, the guiding law of the land.
We therefore find that because the NHTSA gave manufacturers the option to choose to install either tempered glass or laminated glass in side windows of vehicles in FMVSS 205, permitting the plaintiff to proceed with a state tort action would foreclose that choice and would interfere with federal policy.
IV.
Conclusion
The circuit court’s September 17, 2007 order is affirmed.
Affirmed.
Justice DAVIS disqualified.
Judge SWOPE, sitting by temporary assignment.
. Mr. Morgan also asserted cross claims against Bridgestone/Firestone, Inc.; those claims were later voluntarily dismissed. Mrs. Morgan also named Bridgestone/Firestone, Inc., as a defendant. Mrs. Morgan subsequently resolved all of her claims related to the subject rollover.
. Tempered glass and laminated glass are defined as follows:
The term "tempered glass” means a single piece of specially treated sheet, plate, or float glass possessing mechanical strength substantially higher than annealed glass. When broken at any point, the entire piece breaks into small pieces that have relatively dull edges as compared to those of broken pieces of annealed glass. (Other terms such as "heat treated glass,” “toughened glass,” "case hardened glass,” and "chemically tempered glass” are used also).
The term "laminated glass” means two or more pieces of sheet, plate, or float glass bonded together by an intervening layer or layers of plastic material. It will crack or break under sufficient impact, but the pieces of glass tend to adhere to the plastic. If a hole is produced, the edges are likely to be less jagged than would be the case with ordinary annealed glass.
"1.6. Laminated Glass,” and "1.21. Tempered Glass,” American National Standard for Safety Glazing Materials, ANSI/SAE Z26.1-1996 at 1-2.
. Of John Marshall, Joseph Story said, "His proudest epitaph may be written in a single line — 'Here lies the expounder of the Constitution.’ ” Jean Edward Smith, John Marshall: Definer of a Nation xi (Macmillan, 1998).
. General Motors Corp. v. Smith, 216 W.Va. 78, 83, 602 S.E.2d 521, 526 (2004) (per curiam) ("Our law has a general bias against preemption.”); In re: West Virginia Asbestos Litigation, 215 W.Va. 39, 42, 592 S.E.2d 818, 821 (2003) (“[B]oth this Court and the U.S. Supreme Court have explained that federal preemption of state court authority is generally the exception, and not the rule."); State ex rel. Orlofske v. City of Wheeling, 212 W.Va. 538, 543, 575 S.E.2d 148, 153 (2002), quoting Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981) ("Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law.”); Hartley Marine Corp. v. Mierke, 196 W.Va. 669, 673, 474 S.E.2d 599, 603 (1996) ("preemption is disfavored in the absence of convincing evidence warranting its application.’’). See also, Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 2250, 135 L.Ed.2d 700, 715 (1996) ("Congress does not cavalierly pre-empt state-law causes of action.”); CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993) ("Given the importance of federalism in our constitutional structure ... we entertain a strong presumption that federal statutes do not preempt state laws; particularly those laws directed at subjects-like health and safety-'traditionally governed’ by the states.”); Law v. General Motors Corp., 114 F.3d 908, 910 (9th Cir.1997), quoting Easter-wood, id. ("preemption will not lie unless it is 'the clear and manifest purpose of Congress.’ ”); FMC Corp. v. Holliday, 498 U.S. 52, 62, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990) (there is a "presumption that Congress does not intend to preempt areas of traditional state regulation.”).
There is a long line of cases where this Court has guarded against unnecessary federal preemption of our state’s right to provide a remedy for wrongful acts. See, e.g., In Re: West Virginia Asbestos Litigation, 215 W.Va. 39, 592 S.E.2d 818 (2003) (preemption the exception, not the rule); Syllabus Point 3, State ex rel. Orlofske v. City of Wheeling, 212 W.Va. 538, 575 S.E.2d 148 (2002) (West Virginia state courts have subject matter jurisdiction over federal preemption defenses); Chevy Chase Bank v. McCarnant, 204 W.Va. 295, 512 S.E.2d 217 (1998), citing FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990) (addressing the issue of whether the West Virginia Consumer Credit and Protection Act was preempted by the federal Fair Debt Collections Practices Act, holding that there is a strong presumption that Congress does not intend to preempt areas of traditional state regulation); Martin Oil Co. v. Philadelphia Life Ins. Co., 203 W.Va. 266, 507 S.E.2d 367 (1997) (state law actions having incidental involvement or referral to ERISA plans do not present risk of conflicting or inconsistent state law application and are not preempted); Hartley Marine Corp. v. Mierke, 196 W.Va. 669, 474 S.E.2d 599 (1996), cert denied sub nom, Hartley Marine Corp. v. Paige, 519 U.S. 1108, 117 S.Ct. 942, 136 L.Ed.2d 832 (1997) (preemption is disfavored in the absence of convincing evidence warranting its application).
. Hartley Marine Corp. v. Mierke, 196 W.Va. 669, 674, 474 S.E.2d 599, 604 (1996) (In any preemption analysis, the focus of the inquiry is on congressional intent.); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) quoting Malone v. White Motor Corp., 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978), quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963) (" '[t]he purpose of Congress is the ultimate touchstone’ of preemption analysis.’ ”).
. Hines v. Davidowitz, 312 U.S. at 67, 61 S.Ct. 399.
. Gade v. National Solid Wastes Management Ass’n, 505 U.S. at 98, 112 S.Ct. 2374; Jones v. Rath Packing Co., 430 U.S. at 525, 97 S.Ct. 1305.
. The United States Supreme Court differentiated these prototypes in Gade, 505 U.S. at 98, 112 S.Ct. 2374 (citations and quotation marks omitted):
[F]ield pre-emptionf ] [occurs] where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, and conflict pre-emption[ ] [occurs] where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress[.]
The Court similarly differentiated between implied forms of pre-emption in Northwest Cent. Pipeline Corp. v. Kansas Corp. Comm'n, 489 U.S. 493, 509, 109 S.Ct. 1262, 103 L.Ed.2d 509 (1989), stating:
In the absence of explicit statutory language signaling an intent to pre-empt, we infer such intent where Congress has legislated comprehensively to occupy an entire field of regula tion, leaving no room for the States to supplement federal law, or where the state law at issue conflicts with federal law, either because it is impossible to comply with both, or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives [.]
(citations omitted).
Implied field pre-emption arises when a federal act impinges on subject matter which a state statute attempts also to regulate, even though there may be no direct contradiction between the enactments. "There is no constitutional rule which compels Congress to occupy the whole field. Congress may circumscribe its regulation and occupy only a limited field. When it does so, state regulation outside that limited field ... is not forbidden or displaced.” Kelly v. State of Washington, 302 U.S. 1, 10, 58 S.Ct. 87, 82 L.Ed. 3 (1937). The intent to occupy the field is "not to be implied unless the act of Congress, fairly interpreted, is in actual conflict with the law of the state.” Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960).
Implied conflict preemption occurs "where 'compliance with both federal and state regulations is a physical impossibility,’ or where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress!.]' ” Hartley Marine Corp., 196 W.Va. at 674, 474 S.E.2d at 604, citing Gade v. National Solid Wastes Management Ass’n, 505 U.S. at 98, 112 S.Ct. 2374. A conflict occurs “ 'to the extent it ... is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.' ” California v. Federal Energy Regulatory Comm’n, 495 U.S. 490, 506, 110 S.Ct. 2024, 109 L.Ed.2d 474 (1990) (quoting Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984)). "Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law.” Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982).
. The appellee does not assert a field preemption argument, that is, it does not assert that the Safety Act or FMVSS 205 is so comprehensive that it is reasonable to infer that Congress left no room for the States to supplement it.
. The complete title of the standard is "American National Standard for Safety Glazing Materials for Glazing Motor Vehicles and Motor Vehicle Equipment Operating on Land Highways— Safety Standard,” approved by the American National Standards Institute on August 11, 1997.
In order to procure a copy of the standard, FMVSS 205 states, in part:
A copy of ANSI/SAE Z26.1-1996 may be obtained from the Society of Automotive Engineers, Inc., 400 Commonwealth Drive, Warrendale, PA 15096-0007. A copy of ANSI/SAE Z26.1-1996 may be inspected at NHTSA’s technical reference library, 400 Seventh Street,
SW., Room 5109, Washington, DC or at the Office of the Federal Register, 900 North Capitol Street, NW., Suite 700, Washington, DC. At the time the 1999 Ford Explorer in this case
was constructed, FMVSS 205 required conformity with an earlier version of this safety standard, ANSI Z26.1-1977, as supplemented by Z26.1a1980. See 49 Fed.Reg. 6732 (Feb. 23, 1984). For purposes of this appeal, however, there is no substantive difference between these standards, as both laminated and tempered glass have long been included as materials approved for use in vehicle side windows.
. The Court noted that in 1972, the U.S. Department of Transportation adopted a new policy designed to encourage seatbelt usage. The agency gave new vehicle manufacturers the option to either install passive restraints such as automatic seatbelts or airbags, or to add an “ignition interlock” device that forced occupants to buckle up by preventing the vehicle’s ignition from turning on if the seatbelt was unbuckled. Many manufacturers chose the ignition interlock. In 1974, the agency added a requirement that seatbelts also include a continuous warning buzzer to encourage reattachment of the belt. The two devices were so unpopular with the public that Congress passed a law in 1974 that forbade the agency from ever requiring such devices in the future. The agency contended that the disastrous experience with the two devices directly influenced subsequent passive restraint initiatives. 529 U.S. at 875-76, 120 S.Ct. 1913.
. See, e.g., Martinez v. Ford Motor Co., 488 F.Supp.2d 1194 (M.D.Fla.2007) (finding FMVSS 205 preempted a state tort action because "the key factor to consider is whether the standard permits the manufacturer to make a choice between available options and whether the design defect claim would foreclose choosing that option.’’); Erickson v. Ford Motor Co., 2007 WL 2302121. (D.Mont., 2007) (applying Geier to hold that plaintiff's design defect theory, as to the use of tempered glass, was preempted); Samardvich v. General Motors Corp., Case No. BC 363661 (Sup.Ct., County of Los Angeles, CA., May 18, 2007) (same); Rotter v. Ford, Index No. 11183/03 (N.Y.Sup.Ct. May 18, 2007) (holding that plaintiff’s tort action was preempted "in that the use of tempered glass ... is an option included in [Safety Standard 205]”); Brown v. Land Rover North America, Inc., No. 01—1923—G, 2006 WL 2560273 (Sup.Ct., Suffolk County, MassSuper.2006) (relying upon Geier, concluded that the state tort claim was preempted because it was "of no consequence” that the case involved FMVSS 205 rather than FMVSS 208).
. Two federal district courts have followed suit. See, e.g., Spruell v. Ford Motor Co., 2008 WL 906648 (W.D.Ark.Apr.1, 2008); Burns v. Ford Motor Co., 2008 WL 222711 (W.D.Ark.Jan.24, 2008). Additionally, one state court has concluded that FMVSS 205 does not preempt a state tort claim over failure to use laminated glass in the side passenger windows of a “motor coach” passenger bus. MCI Sales and Service, Inc. v. Hinton, 272 S.W.3d 17 (Tex.App.2008).
. Further confounding our analysis, we once held in Syllabus Point 3 of Blankenship v. General Motors Corp., 185 W.Va. 350, 406 S.E.2d 781 (1991) that:
In the litigation of vehicle crashworthiness cases under theories of product liability, whenever there is a split of authority in other jurisdictions on an issue about which this court has not yet spoken, the trial court should presume that we would adopt the rule most favorable to the plaintiff.
We also stated in Blankenship that:
For there to be a "split of authority,” however, the rule urged by the plaintiff must have been pronounced either by the highest court of a state or by a federal circuit court. Neither state intermediate courts of appeals cases nor federal district court cases are sufficiently authoritative to constitute a "split of authority” unless there are so many of them from one jurisdiction over such a long period that it can be reasonably inferred that the highest court of the state or the federal court of appeals acquiesces in the rule.
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MeHUGH, Justice:
Our review in this ease involves issues raised in the Order of Certification of the Jackson County Circuit Court entered on August 11, 2008, regarding the extent to which formaldehyde-based negligence claims are preempted under the provisions of the federal Manufactured Home Construction and Safety Standards Act (hereinafter “MHA”). After examining the briefs submitted, hearing oral arguments and reviewing the relevant law, we have reformulated the questions with answers as explained in detail below.
I. Factual and Procedural Background
In September 1995, Ronald Lee and Brenda G. Harrison (hereinafter “Harrisons”), purchased a manufactured home constructed by Skyline Corporation (hereinafter “Skyline”). In constructing the home, Skyline used certain building materials supplied by Georgia-Pacific Corporation (hereinafter “Georgia-Pacific”). These materials included formaldehyde treated floor decking, which the parties appear to agree complied with the federal regulatory standards for formaldehyde emission levels of plywood and particleboard materials used in manufactured homes. See 24 C.F.R. §§ 3280.308 and 3280.309.
After the manufactured home was delivered and installed, the Harrisons modified the structure by adding hardwood flooring and a walk-in closet, and building on three decks and an extension to the home. Skyline did not participate in any of these subsequent construction projects, nor did Skyline supply any materials associated with the additional work.
The Harrisons maintain that they began experiencing various health problems after living in the home for six years. In attempting to identify the cause or causes of the problems, the Harrisons had their home inspected and among the things they learned was that debris from the formaldehyde-treated floor decking had been left in the duct work of the manufactured home’s heating system. On April 11, 2005, the Harrisons filed suit against Skyline, Georgia-Pacific and others. With regard to formaldehyde, the complaint specifically alleged:
During the course of manufacture of the Mobile Home,[ ] Skyline caused numerous pieces of Georgia Pacific manufactured home decking containing formaldehyde to be cut into pieces. The formaldehyde containing sawdust and residue of this process was negligently swept or otherwise placed by Skyline into the forced air heating ducts____
The complaint further alleges that “the plaintiffs [were exposed] to toxic levels of formaldehyde” released into the air of the home when the formaldehyde treated waste materials in the duet work were subjected to forced air heat.
Skyline filed a motion to dismiss based in part on the assertion that federal law preempted the Harrison’s formaldehyde based negligence claim. Following the conclusion of discovery, Skyline again raised the issue in a motion for summary judgment. The trial court entered an order on October 10, 2007, dismissing some of the Harrisons’ claims against Skyline. However, the order relates a different outcome as to the claim concerning formaldehyde treated panels as shown by the following excerpt from the Conclusions of Law:
55. Regarding the argument that Plaintiffs’ claim for personal injury from excess formaldehyde gas in the manufactured home is preempted by federal law, the court is persuaded that the law of this state is that such claims are not preempted by the National Manufactured Housing Construction and Safety Standards Act, 42 U.S.C.A. Sections 5401-5426, nor by regulations promulgated thereunder.[ ]
After further concluding that genuine issues of material fact remained unresolved with regard to the formaldehyde based claim, the lower court denied Skyline’s motion for summary judgment.
Skyline next filed a motion requesting the lower court to either reconsider Skyline’s preemption argument or to seek review of the preemption question by this Court. By order dated July 22, 2008, the trial court affirmed its prior denial of summary judgment of the formaldehyde based claims and granted the request to certify questions of law regarding the federal preemption defense raised by Skyline and Georgia-Pacific to the negligence claims. On August 11, 2008, the trial court entered an order certifying the following three questions with answers to this Court:
1. Does the preemption provision found at 42 U.S.C. § 5403(d) preempt and bar plaintiffs common law negligence claim based upon formaldehyde exposure when the Plaintiffs do not claim, and cannot establish, that the Defendants failed to comply with the formaldehyde standards established in 24 C.F.R. §§ 3280.308 and 3280.309?
ANSWER: NO.
2. May the plaintiffs present evidence of ambient air testing for the presence of formaldehyde in support of their common law negligence claim when HUD specifically considered and rejected the ambient air standard that plaintiffs want to present to a court and jury as the standard of care.
ANSWER: YES.
3. Does the “savings clause” of 42 U.S.C. § 5409(c) preclude the Court from granting the Defendants’ motions for summary judgment when despite the legislative history which established that it was is [sic] HUD’s intention that federal standards preempt State and local formaldehyde standards in accordance with 42 U.S.C. § 5403(d)?
ANSWER: YES.
By order entered January 22, 2009, this Court agreed to review the preemption issues raised.
II. Standard of Review
The established “appellate standard of review of questions of law answered and certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996). Likewise, “Preemption is a question of law reviewed de novo.” Syl. Pt. 1, Morgan v. Ford Motor Co., 224 W.Va. 62, 680 S.E.2d 77 (2009).
III. Discussion
Although the lower court certified three questions for our consideration, we find it more suitable to consolidate the issues into two questions because the circuit court’s third question is an essential part of the discussion of the meaning of the supremacy clause of 42 U.S.C. § 5403(d) raised in the first certified question. This consolidation results in the following reformulated questions:
1. Did Congress intend to preempt common law negligence claims based on formaldehyde exposure in manufactured homes which seek to establish a standard of performance not covered by the federal Manufactured Home Construction and Safety Standards Act, 42 U.S.C. §§ 5401-5426, or regulations promulgated thereunder and which pose no challenge to the federally established formaldehyde emission standards, 24 C.F.R. §§ 3280.308 and 3280.309?
2. Is ambient air testing for the presence of formaldehyde in wood products used in the construction of a manufactured home built in accordance with the provisions of the federal Manufactured Home Construction and Safety Standards Act, 42 U.S.C. §§ 5401-5426 admissible as evidence in a common law negligence action seeking to establish a standard of performance not covered by the Act or associated regulations when the regulatory agency responsible for carrying out the federal Act rejected the use of ambient air standards as the measure of acceptable formaldehyde emission levels for certain wood products installed in such homes?
We most recently discussed the analysis applied to preemption questions in Morgan v. Ford Motor Company, 224 W.Va. 62, 680 S.E.2d 77 (2009). As related in Morgan, the preemption doctrine has its roots in the supremacy clause of the United States Constitution and is based on the premise that federal law can supplant inconsistent state law. Id. at Syl. Pt. 2. However, preemption is not automatic, especially in areas such as health and safety which have traditionally been regulated by the states. Id. at Syl. Pt. 3.Thus for preemption to occur, there has to be convincing evidence that Congress intended a federal law to supersede a state law. Such Congressional intent may be express or implied in the language of the statute under consideration. Id. at Syl. Pts. 4 and 5. Preemption may be implied when the pervasive regulatory scheme of a federal Act leaves no room for state regulation (field preemption), or where compliance with both federal and state regulations is physically impossible or state regulation otherwise is an obstacle to accomplishing congressional objectives (conflict preemption). Id. at Syl. Pt. 7. In brief, the first step in a preemption analysis is to determine if the federal Act in question expressly bars state action. If state involvement is not expressly barred by the terms of the federal statute, the second step is to determine whether field preemption or conflict preemption may be implied from the construction of the statute or federal standards promulgated thereunder.
A. Express Preemption
The MHA actually has two significant provisions weighing in on the issue of preemption. It is apparent from a common sense reading of these two clauses of the MHA that state common law claims are not expressly preempted under the Act. The first provision, appearing in 42 U.S.C. § 5403(d), is designated “Supremacy of Federal standards” (hereinafter referred to as the “supremacy clause”) and reads:
Whenever a Federal manufactured home construction and safety standard established under this chapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any manufactured home covered, any standard regarding the construction or safety applicable to the same aspect of performance of such manufactured home which is not identical to the Federal manufactured home construction and safety standard. Federal preemption under this subsection shall be broadly and liberally construed to ensure that disparate State or local requirements or standards do not affect the uniformity and comprehensiveness of the standards promulgated under this section nor the Federal superintendence of the manufactured housing industry as established by this chapter. Subject to section 5404 of this title, there is reserved to each State the right to establish standards for the stabilizing and support systems of manufactured homes sited within that State, and for the foundations on which manufactured homes sited within that State are installed, and the right to enforce compliance with such standards, except that such standards shall be consistent with the purposes of this chapter and shall be consistent with the design of the manufacturer.
Emphasis added.
The second preemption related'provision of the MHA is found in 42 U.S.C. § 5409(e) (hereinafter referred to as the “savings clause”) and states: “Compliance with any Federal manufactured home construction or safety standard issued under this chapter does not exempt any person from any liability under common law.” Emphasis added.
When the United States Supreme Court was faced with similar conflicting clauses in the National Traffic and Motor Vehicle Safety Act in Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000), it concluded that both clauses needed to be given effect in deference to congressional intent. Following this course, the Supreme Court in Geier found that due to the presence of a saving clause that the language of the supremacy clause before it had to be narrowly read so as to preempt only state statutes and regulations which were not identical to a federal standard stated in the motor vehicle safety statute or rules promulgated thereunder.
We see no cause to apply different reasoning in our consideration of the supremacy and saving clauses of the MHA. The express terms of the supremacy clause only preempt states and their political subdivisions from having manufactured home standards which are not identical to a federal standard applicable to the same aspect of performance. The issue raised in the pending suit does not involve such conflicting state standards but rather asserts a claim based upon common law negligence. The savings clause of the MHA makes it clear that the congressional intent was not to explicitly preclude common law suits. Courts in other jurisdictions, while considering formaldehyde based claims involving manufactured homes, have likewise found that common law suits are not expressly preempted by the MHA. See, e.g. In re: FEMA Trailer Formaldehyde Products Liability Litigation, 620 F.Supp.2d 755 (E.D.La.2009); Shorter v. Champion Home Builders Co., 776 F.Supp. 333 (N.D. Ohio 1991); Richard v. Fleetwood Enterprises, Inc., 4 F.Supp.2d 650 (E.D.Tex.1998); Mizner v. North River Homes, Inc., 913 S.W.2d 23 (Mo.App. E.D.1995).
Skyline argues that even if the MHA does not expressly preempt state jurisdiction of all manufactured housing construction and safety issues, it was the intent of Congress that state jurisdiction be limited to matters for which there is no HUD standard. Indeed, the presence of an express preemption provision does not, by itself, foreclose an implied preemption analysis. The presence of a saving clause does not eliminate the possibility that some common law actions may still be preempted under a federal Act when implied preemption principles are applied. Geier, 529 U.S. at 869, 120 S.Ct. 1913. We proceed to consider whether the Harrisons’ claim is impliedly preempted either on the basis of field or conflict preemption.
B. Implied Preemption
I. Field Preemption
Where states have traditionally regulated conduct in a given area, field preemption may only be founded on clear and manifest congressional intent to alter that tradition and occupy the field. English v. General Electric Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). The Harrisons pending claim against Skyline is for the negligent manufacture of their home. The alleged negligent act committed by Skyline is leaving waste materials from formaldehyde treated particleboard or plywood panels in the heating ducts while installing the treated panels as floor decking in the home. The Harrisons’ maintain that the waste materials from particleboard or plywood generated an unsafe level of formaldehyde in the manufactured home when heated. Negligent conduct historically has been regulated by state common law. Richard v. Fleetwood Enterprises, Inc., 4 F.Supp.2d at 657; see also In re: FEMA Trailer Formaldehyde Products Liability Litigation. As previously established, manifestation of congressional intent in the MHA regarding conflicts with state law is contained in the supremacy and saving clauses. The MHA supremacy clause provides that the standards in the Act are supreme over any standard that state law may impose (42 U.S.C. § 5403(d)), and the saving clause provides that common law liability can attach in spite of compliance with federal standards (42 U.S.C. § 5409(c)). Accordingly, we find no clear manifestation of congressional intent to occupy the field of regulation of formaldehyde usage in manufactured housing so as to preempt all state common law causes of action involving formaldehyde.
2. Conflict Preemption
As noted previously, conflict preemption may exist under two circumstances: (1) when federal and state regulations conflict and compliance with both is physically impossible, or (2) when state involvement would be an obstacle to accomplishing congressional objectives.
No state regulation is at play in the pending ease, and no one has argued that it would be impossible to comply with both a common law standard governing disposal of formaldehyde treated waste products and the federal formaldehyde emissions standard. Instead, Skyline’s argument advocating implied preemption focuses on the suit being an obstacle to achieving the purposes of the MHA as set forth in the Act. Skyline as- serfs in its brief that the legislative history of the MHA indicates the intent of Congress to limit state involvement as shown by the following excerpt from a U.S. Senate Report: “ ‘States would be permitted to retain jurisdiction under State law over a mobile home safety issue where there is no HUD standard.’ [S.Rep.No. 93-693, 93rd Cong., 2d Sess. (1974) reprinted in 1974 U.S.C.C.A.N. 4273,] 4279.” Skyline also notes that 24 C.F.R. § 3282.11(d) promulgated pursuant to the MHA by HUD explicitly reflects the congressional desire for preemption of any state action which conflicts with federal oversight of the provisions of the MHA:
No State or locality may establish or enforce any rule or regulation or take any action that stands as an obstacle to the accomplishments and execution of the full purposes and objectives of Congress. The test of whether a State rule or action is valid or must give way is whether the State rule can be enforced or the action taken without impairing the Federal superintendence of the manufactured home industry as established by the Act.
We are not convinced that either or both of these pieces of information lead to the conclusion that Congress intended to remove all matters related to formaldehyde emissions in manufactured homes from the purview of the States. The Senate Report appears to do no more than make clear that, in addition to being permitted under the MHA supremacy clause to set manufactured home standards identical to federal standards, States are free to establish manufactured home standards to address issues not covered by HUD regulation. It is merely a restatement of the express provision of the MHA that “Nothing in this chapter shall prevent any State agency or court from asserting jurisdiction under State law over any manufactured home construction or safety issue with respect to which no Federal manufactured home construction and safety standard has been established pursuant to the provisions of section 5403 of this title.” 42 U.S.C. § 5422(a).
As to the significance of the cited preemption language in the HUD regulations to our deliberations in the present case, this Court has recognized that a federal agency regulation with the force of law can preempt conflicting state requirements. Syl. Pt. 8, Morgan, 224 W.Va. at 65, 680 S.E.2d at 80. In such cases, however, courts do not determine whether preemption exists based upon the bald statement of preemption in a federal regulation, but rather by examining the substance of the relevant state and federal law to determine if a conflict does exists. Id. The specific question before us then is whether allowing a suit of common law negligence to proceed in State court would be an obstacle to accomplishing congressional objectives of producing manufactured homes in an affordable, uniform and safe manner.
The amicus curiae asserts that the HUD formaldehyde emissions standard applicable to the manufactured home industry promulgated pursuant to the provisions of the MHA squarely conflicts with the ambient air standards the Harrisons want to use to establish their negligence claim. The HUD standard is a product standard rather than an ambient air standard. The product standard requires that the particleboard or plywood panels manufactured for installation in manufactured homes must meet certain emission standards before the panels may in turn be used in the construction of manufactured homes. See 24 C.F.R. § 3280.308. It is further maintained in the amicus brief that HUD had considered an ambient air standard in formulating the emission standard. An ambient air test would require testing of the home after the panels were installed and the home is completely assembled. As explained in the amicus brief, HUD clearly rejected an ambient air standard as the industry standard. HUD represented that the product standard was adopted because the product standard is an effective measure of formaldehyde emission levels, involves a readily available test method and has the potential to prevent formaldehyde problems before homes are sold. The amicus curiae urges us to find that the Harrisons formaldehyde based claim is preempted under the provisions of the supremacy clause and the purposes of the MHA because the Harrisons want to use an ambient air standard to argue their formaldehyde based negligence claim when ambient air standards are not identical to the HUD product standard.
The Harrisons assert that their suit poses no challenge to the established HUD standard.' Instead, they filed the formaldehyde based negligence claim seeking to establish construction standards for manufactured homes for which no HUD regulations exist. The Harrisons maintain that Skyline was negligent by leaving waste materials from formaldehyde treated panels in the heating ducts of their manufactured home, which generated an unsafe formaldehyde level in the air. Proper disposal of formaldehyde waste materials is an activity for which HUD has no standard. The Harrisons say they wish to introduce ambient air samples in their case not to prove a flaw in the way the treated panels themselves were manufactured, but to establish a standard for proper disposal of formaldehyde treated waste materials. Consequently their suit does not conflict with the supremacy clause or any of the stated objectives or purposes of the MHA. The Harrisons claim that their suit actually furthers the purpose of the act by promoting safety in the manufacture of the homes.
There are relatively few cases which address the issue of whether common law claims for injuries caused by formaldehyde emissions in manufactured homes are impliedly preempted under the MHA. Some of these eases involve issues not present in the case before us. The lower court’s October 10, '2007, order in which Skyline’s motion for summary'judgment of the Harrisons’ formaldehyde based negligence claim on preemption grounds was denied, cited to the eases of Shorter v. Champion Home Builders Company and Mizner v. North River Homes, Inc. for support of its conclusion without providing any reasons for reliance on these decisions. Skyline suggests instead that the decisions in In re: FEMA Trailer Formaldehyde Products Liability Litigation and Macmillan v. Redman Homes, Inc., 818 S.W.2d 87 (Tex.App.-San Antonio Dist.1991), provide the more reasoned analysis. Having carefully reviewed these cases, we find that none of them concern claims comparable to the Harrisons’ of seeking to establish a standard of performance in an area which HUD has not promulgated regulatory standards pursuant to the MHA. Instead, the focus of these cases are tort claims which pose a direct challenge to the formaldehyde emission standard established by HUD. We do, however, find that the discussion in Macmillan sheds some light on our current inquiry.
Macmillan involved wrongful death and personal injury suits against companies that manufactured and repaired a manufactured home. The plaintiffs did not allege any failure to conform with the federally prescribed product standard, yet they did contend that the ambient air inside the home contained unsafe levels of formaldehyde. The action was viewed as a direct challenge to the HUD product standard for formaldehyde emissions in that the plaintiffs were asserting the manufacturers of the home were negligent by failing to meet an ambient air standard which HUD had rejected as the federal formaldehyde emission standard. Holding that the MHA preempts state court jurisdiction to litigate safety issues governed by an existing MHA formaldehyde standard, the court in Macmillan also recognized by referencing the provisions of 42 U.S.C. § 5422 that Congress intended to allow “state courts [to] assert jurisdiction over manufactured housing safety issues when there is no. federal standard on the subject.” 818 S.W.2d at 94 (emphasis in original omitted).
The Harrisons common law negligence claim in this case is an attempt to set a performance standard in an area for which HUD has no standard: the proper disposal of formaldehyde treated materials during the manufactured home construction process. We fail to see how such a standard would thwart attainment of the overall objectives of the MHA since it would promote the purpose of “protecting] the quality, durability, safety and affordability of manufactured homes.” 42 U.S.C. § 5401(b)(1). Accordingly we conclude that common law negligence claims based on formaldehyde exposure in manufactured homes which seek to establish a standard of performance not covered by the federal Manufactured Home Construction and Safety Standards Act, 42 U.S.C. §§ 5401-5426, or regulations promulgated thereunder and which pose no challenge to the federally established formaldehyde emission standards, 24 C.F.R. §§ 3280.308 and 3280.309, are not subject to preemption.
Given the nature of the standard the Harrisons are seeking to establish through pursuit of their claim, we see no reason why results of ambient air tests would be generally barred as evidence in the case. We are not persuaded that HUD’s rejection of an ambient air standard necessarily precludes allowing the use of ambient air levels as evidence in a case where no direct challenge to HUD’s formaldehyde emissions standard is made. This Court was apprised during oral argument that after panels meeting HUD’s product standard are installed in a manufactured home the measure of formaldehyde emissions is made by ambient air tests. Proof of conformance with the product standard thus would provide no meaningful information in a suit trying to establish that a building design or construction method is faulty when evidence of these flaws are not manifested until after the panels meeting the product standard are installed. Consequently, we hold that ambient air testing for the presence of formaldehyde in wood products used in the construction of a manufactured home built in accordance with the provisions of the federal Manufactured Home Construction and Safety Standards Act, 42 U.S.C. §§ 5401-5426, is admissible as evidence in a common law negligence action seeking to establish a standard of performance not covered by the Act or associated regulations as long as the tests are not used to challenge the formaldehyde emission levels established under the Act. Naturally, the decision regarding admissibility of evidence at trial is left to the sound discretion of the court. As we have clearly indicated, “ ‘The West Virginia Rules of Evidence ... allocate significant discretion to the trial court in making evidentiary ... rulings. Thus, rulings on the admission of evidence [in a given ease] ... are committed to the discretion of the trial court____’ Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).” Syl. Pt. 9, in part, Tudor v. Charleston Area Medical Center, Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997).
IV. Conclusion
For the reasons stated herein, we answer the reformulated certified questions as follows:
1. Did Congress intend to preempt common law negligence claims based on formaldehyde exposure in manufactured homes which seek to establish a standard of performance not covered by the federal Manufactured Home Construction and Safety Standards Act, 42 U.S.C. §§ 5401-5426, or regulations promulgated thereunder and which pose no challenge to the federally established formaldehyde emission standards, 24 C.F.R. §§ 3280.308 and 3280.309?
Answer: No.
2. Is ambient air testing for the presence of formaldehyde in wood products used in the construction of a manufactured home built in accordance with the provisions of the federal Manufactured Home Construction and Safety Standards Act, 42 U.S.C. §§ 5401-5426 admissible as evidence in a common law negligence action seeking to establish a standard of performance not covered by the Act or associated regulations when the regulatory agency responsible for carrying out the federal Act rejected the use of ambient air standards as the measure of acceptable formaldehyde emission levels for certain wood products installed in such homes?
Answer: Yes.
Certified questions answered.
. 42 U.S.C. §§ 5401-5426.
. In addition to the briefs of the parties, this Court also has been afforded the insight of the West Virginia Housing Institute on this subject by way of its amicus brief.
. The performance of counsel during oral argument of this case is especially noteworthy. We extend recognition to John Teare, counsel for the petitioners, and Jamie Little, counsel for the respondents, both for being fully prepared to discuss the issues and for being candid in responding to questions raised by the Court.
.Skyline and Georgia-Pacific jointly petitioned this Court to consider the questions certified by the lower court. This Court dismissed Georgia-Pacific from the case upon joint motion of Skyline, Georgia-Pacific and the Harrisons, leaving Skyline as the sole petitioner in this matter in which'the Harrisons are respondents.
. Skyline is the sole remaining defendant in this suit.
. See 42 U.S.C. § 5402, “Codification” notation (explaining that general term "manufactured home” includes mobile homes).
. The U.S. Department of Housing and Urban Development (hereinafter "HUD”) is charged with promulgation of regulations to implement the provisions of the MHA. See generally Manufactured Home Construction and Safety Standards, 24 C.F.R. § 3280, and Manufactured Home Procedural and Enforcement Regulations, 24 C.F.R. § 3282.
. See Syl. Pt. 3, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993) (acknowledging this Court's authority to reformulate questions certified to it).
. The supremacy clause of the Traffic and Motor Vehicle Safety Act considered in Geier stated:
Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment[,] any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard.
Geier at 867, 120 S.Ct. 1913 (citation omitted). The saving clause of the motor vehicle safety Act stated that " '[compliance with’ a federal safety standard ‘does not exempt any person from any liability under common law.’ " Id. at 868, 120 S.Ct. 1913 (citation omitted).
. See 42 U.S.C. § 5422(a), quoted and discussed infra at B.2., Conflict Preemption.
. Congress enumerated the purposes of the MHA in 42 U.S.C. § 5401(b) as follows:
(1)to protect the quality, durability, safety, and affordability of manufactured homes; (2) to facilitate the availability of affordable manufactured homes and to increase home[-]ownership for all Americans;
(3) to provide for the establishment of practical, uniform, and, to the extent possible, performance-based Federal construction standards for manufactured homes;
(4) to encourage innovative and cost-effective construction techniques for manufactured homes;
(5) to protect residents of manufactured homes with respect to personal injuries and the amount of insurance costs and property damages in manufactured housing, consistent with the other purposes of this section;
(6) to establish a balanced consensus process for the development, revision, and interpretation of Federal construction and safety standards for manufactured homes and related regulations for the enforcement of such standards;
(7) to ensure uniform and effective enforcement of Federal construction and safety standards for manufactured homes; and
(8) to ensure that the public interest in, and need for, affordable manufactured housing is duly considered in all determinations relating to the Federal standards and their enforcement.
. Supra n. 8.
. Some of these cases involve preemption under the MHA of state claims seeking to enforce federal standards, see e.g. Richard v. Fleetwood Enterprises, 4 F.Supp.2d 650 (E.D.Tex.1998), Woolridge v. Redman Homes, Inc., 792 F.Supp. 1469 (N.D.Tex.1991), Hall v. Fairmont Homes, 105 Ohio App.3d 424, 664 N.E.2d 546 (1995); other cases address the preemptive effect of the MHA on state and local regulations rather than state common law actions, see e.g. Scurlock v. City of Lynn Haven, Fla., 858 F.2d 1521 (11th Cir.1988), Liberty Homes, Inc. v. Dept. of Indus., Labor & Human Relations, 125 Wis.2d 492, 374 N.W.2d 142 (Wis.App.1985). For a general overview of cases dealing with the issue of preemption under the MHA, see William G. Phelps, Pre-emptive Effect of Construction and Safety Standards of National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C.A. §§ 5401-5426), 172 A.L.R. Fed. 349 (2001). | [
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PER CURIAM:
This case is before the Court upon the appeal of the Appellant, Danny Minigh, from the August 20, 2007, Order of the Circuit Court of Calhoun County, denying the Appellant’s post-trial motions and sentencing the Appellant to a term of one to five years in the State penitentiary upon his conviction by a jury of one count of conspiracy to commit a felony offense in violation of West Virginia Code § 61-10-31(2005). The felony offense at issue is conspiracy to manufacture a Schedule IV controlled substance in violation of West Virginia Code § 60A-4-101(2005). The Appellant argues that the circuit court erred: 1) by not granting the Appellant’s Motion to Dismiss based upon Double Jeop ardy when a Braxton County circuit court judge swore a jury, took evidence, and granted the Appellant’s Motion to Dismiss, stating that the Braxton County charges are in Double Jeopardy with the Calhoun County charges due to the charges being similar in nature; 2) by allowing the Appellee to use evidence in the Calhoun County trial from the Braxton County traffic stop, ruling that this evidence is intrinsic to the charges; and 3) by not granting the Appellant’s post-trial Motion for Judgment of Acquittal when the Appellee produced no evidence of a conspiracy occurring within the jurisdiction of Calhoun County.
I. Factual and Procedural Background
A. Braxton County Charges
During the night and early morning of July 22 and July 23, 2004, Trooper Mark Yost of the West Virginia State Police pulled over a vehicle traveling on Route 5 from Interstate 79 heading toward Glenville, in Braxton County, West Virginia. Trooper Yost observed a headlight out on the vehicle, causing him to stop the car. The Appellant was driving the car. He was accompanied by George Dusky, who was the owner of the vehicle and a passenger in the front seat, and James “Bub” Jones, who was a passenger in the back seat.
Trooper Yost testified that the Appellant did not have a driver’s license and “appeared to be extremely nervous for a minor traffic violation.” The Appellant also gave the trooper a fictitious name, Roger Minigh. After issuing the Appellant a warning, Trooper Yost asked if he could search the vehicle and both the Appellant and Mr. Dusky consented.
During the search, the trooper found a shopping list containing ingredients for methamphetamine, including such items as a hose, matches, and lye. The trooper also found a bag of white pills, one gallon of acetone, four 12-ounce bottles of HEET gas line antifreeze and one bottle of Red Devil lye. The trooper further testified that he found numerous receipts with the same date on them for various products all of which are considered methamphetamine precursors. Finally, Trooper Yost testified that when he was removing the items from the vehicle, the Appellant made the spontaneous statement that “[t]hat is mine[,]” referring to the items being removed. Trooper Yost then gave all three men a Miranda warning and placed them under arrest.
According to the Indictment brought in Braxton County, the Appellant was charged with attempting to operate a clandestine drug laboratory, which is a felony offense. The Circuit Court of Braxton County, by Order entered April 13, 2006, dismissed the Indictment against the Appellant, with prejudice. The Braxton County circuit court’s Order indicates that prior to trial the Appellant moved to dismiss the Indictment “asserting double jeopardy. The circuit court took defendant’s motion under advisement, desiring to hear the state’s ease in chief.” The circuit court further stated in its Order:
The Court then impaneled the jury and the parties conducted voir dire of the jury panel. The parties each exercised their appropriate strikes of the jury. It appearing proper to do so, the Court then swore in the jury panel.
Each party then gave an opening statement. The State of West Virginia by counsel began the presentation of the sworn testimony of its first witness. The defendant, by counsel cross examined the witness.
At the conclusion of cross examination defendant through his counsel renewed his motion to dismiss the indictment on double jeopardy grounds. The state did not resist the motion. The Court then granted said motion.
B. Calhoun County Charges
Regarding the charges brought in Calhoun County, West Virginia, James “Bub” Jones, one of the passengers in the vehicle that was stopped in Braxton County, gave the West Virginia State Police consent to search his residence, which was located in Calhoun County. Trooper First Class J.B. Hunt of the West Virginia State Police was stationed at the Grantsville Detachment in Calhoun County. He testified that he received the consent to search signed by James M. Jones. Trooper Hunt further testified that he also obtained a search warrant to search Mr. Jones’s home.
Trooper Hunt stated that he assisted in executing the search of Mr. Jones’s home. He stated that the troopers found a set of Ohaus balance beam scales, a gym bag containing several items that belonged to the Appellant, including an expired West Virginia operator’s license belonging to Danny Minigh, three spoons with white powder on them, and stained coffee filters. The troopers also found during the search, which included the area beneath Mr. Jones’s home, a pharmaceutical and nursing book, syringes, plastic containers, tubing that was stained brown, a chemistry beaker with a brown substance in it, jars with tubing coming out of them, and a glass jar with a yellow substance in it, among other evidence. Trooper Hunt testified that all of these materials, which were identified in various photographs, were methamphetamine precursors.
A separate search warrant was also obtained for an outbuilding located on Mr. Jones’s property near his home. Trooper Hunt testified that there they found metal tubing, brass tubing, and match sticks soaking in solvent. They also found stained coffee filters and a Coke bottle with a substance in it.
Corporal D.P. Stareher of the West Virginia State Police also testified about finding a jug of muriatic acid and additional coffee filters with stains consistent with iodine or some other chemical during the search of the outbuilding. Like Trooper Hunt’s testimony, Corporal Starcher’s testified about finding evidence in the outbuilding that included copper tubing, a jug, which had the striker plates off of matchbooks soaking in a solvent, and stained gloves. Corporal Stareher further stated that he smelled the strong odor of iodine and other materials that are used in the manufacture of methamphetamine.
Additionally, First Lieutenant Michael Goff of the West Virginia State Police, an expert on methamphetamine, testified that he took part in the investigation of Mr. Jones’s residence. Lieutenant Goff testified regarding all the material found at the Jones residence and explained how the material was used in the production of methamphetamine. Lieutenant Goff opined that the items were being used to manufacture methamphetamine, and that the collection of the items found underneath Mr. Jones’s house constituted a methamphetamine lab. Lieutenant Goff also testified regarding a stipulation that was introduced into evidence regarding the chemist’s report from the West Virginia State Police lab. The chemist was unable to testify due to being on maternity leave; however, Lieutenant Goff testified that the stipulated report indicated that at least one of the samples obtained during the search of Mr. Jones’s home was methamphetamine. Additionally, the remaining samples that were analyzed were chemicals that are used in the process of manufacturing methamphetamine.
James M. “Bub” Jones also testified at trial. He stated that he had pleaded guilty to conspiracy as a co-conspirator with the Appellant. During the Appellant’s trial, however, Mr. Jones denied any knowledge of the items found at his house, with the exception of the copper tubing located in the out building, which Mr. Jones stated belonged to him. Mr. Jones further denied making methamphetamine or using the drag. Mr. Jones testified that the Appellant was residing at his home and that the Appellant had purchased the various methamphetamine precursors found in the vehicle during the Braxton County stop on the day of the stop. Mr. Jones testified that even though he didn’t know what a “meth lab” was, there might be one at his house. Mr. Jones also testified that he bought some of the pills on the trip with the Appellant and Mr. Dusky.
Finally, David Charles Phares II, an inmate at the correctional facility located at Pruntytown, West Virginia, testified for the Appellant. Mr. Phares stated that he met Mr. Jones in July 2004, when Mr. Jones tried to get him to move a meth lab from his residence in Calhoun County to Gilmer County, West Virginia. Mr. Phares testified that Mr. Jones asked him to help him move the meth lab because of a prior search done of his residence.
The Appellant was indicted in Calhoun County for conspiracy to manufacture methamphetamine, operating a clandestine laboratory, and manufacturing a controlled substance. He was ultimately convicted of the sole count of conspiracy to manufacture methamphetamine.
II. Discussion
A. Double Jeopardy
The Appellant argues that double jeopardy was violated when the Circuit Court of Calhoun County denied the Appellant’s Motion to Dismiss the charges against him pending in Calhoun County. The Appellant argues that double jeopardy prohibited the trial of the Calhoun County charges, because the Braxton County Circuit Court swore a jury, took evidence, and dismissed the Braxton County charges. The Appellant maintains that dismissal of the Calhoun County charges was warranted due to the dismissal of the Braxton County charges. In other words, the Appellant asserts that
it could be argued that jeopardy attached when Judge Facemire swore and seated the jury in Braxton County. Furthermore, if Judge Facemire ruled that this was one transaction and dismissed the case due to being in jeopardy with Calhoun County, then jeopardy has been attached to the whole criminal transaction.
The Appellee, however, argues that the Appellant’s conviction in the Calhoun County case did not violate the prohibition against double jeopardy. The Appellee asserts that not only did the offenses occur in two separate jurisdictions; but, the offenses that the Appellant was charged with in Braxton County were separate and distinct from the offenses the Appellant was charged with in Calhoun County.
“Our standard of review of a motion to dismiss an indictment is generally de novo.” State v. Davis, 205 W.Va. 569, 578, 519 S.E.2d 852, 861 (1999). Applying this standard of review, the Court now considers whether double jeopardy principles were violated in this ease.
In syllabus points one and two of State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992), this Court held as follows regarding double jeopardy:
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution consists of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.
“The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense.” Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).
Gill, 187 W.Va. at 138, 416 S.E.2d at 255, Syl. Pts. 1 and 2.
Additionally, the Court adopted the test enunciated by the United State Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), for determining whether a double jeopardy violation was present. That test is as follows:
“Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Syllabus Point 8, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 (1983).
Gill, 187 W.Va. at 138, 416 S.E.2d at 255, Syl. Pt. 6.
From a review of the record in this matter, at a hearing on the double jeopardy issue, which occurred on May 11 and May 25, 2006, in the Circuit Court of Calhoun County, counsel for the Appellant acknowledged that the Appellant could not meet the standard for proving double jeopardy under the Blockburger test. See id. The Appellant’s counsel conceded that different elements were needed to prove the charges in Braxton County as opposed to the charges pending in Calhoun County and that the charges in Braxton County versus the charges pending in Calhoun County were not from the same transaction. The Appellant’s counsel further conceded that the resolution of the Braxton County case was not an adjudication on the merits and the Appellant’s counsel thought that the Braxton County judge had erroneously dismissed the charges against the Appellant on double jeopardy grounds. Consequently, what the Appellant ultimately argued below is that the ruling of the Braxton County Circuit Court foreclosed the criminal prosecution in Calhoun County by virtue of the application of either res judicata or collateral estoppel.
It is untenable as to how the Appellant’s counsel failed to direct this Court’s attention to the foregoing concessions made before the Circuit Court of Calhoun County regarding the Appellant’s double jeopardy argument. Notwithstanding this oversight, the inherent problem with the Appellant’s double jeopardy argument is that the dismissal of the charges by the Circuit Court of Braxton County did not result in an acquittal, a conviction, or any resolution of the criminal charges brought against the Appellant on the merits. Gill, 187 W.Va. at 138, 416 S.E.2d at 255, Syl. Pt. 1. Neither did the prosecution and ultimate conviction in Calhoun County result in the Appellant receiving multiple punishments for the same offense. Id.
Finally, a review of the charges filed against the Appellant in Braxton County in relation to the charges filed against the Appellant in Calhoun County establishes that the charges in Braxton County consist of different elements and, therefore, require different proof from those brought against the Appellant in Calhoun County. Gill, 187 W.Va. at 138, 416 S.E.2d at 255, Syl. Pt. 6. Specifically, in Braxton County, the Appellant was charged with attempting to operate a clandestine drug laboratory, which stemmed from the evidence that was seized from the vehicle that the Appellant was driving at the time he was stopped in Braxton County. West Virginia Code § 61-11-8 (2005) sets forth the elements for an attempt to commit an offense as “[e]very person who attempts to commit an offense, but fails to commit or is prevented from committing it, shall, where it is not otherwise provided, be punished____” Id. Further, this Court has held that “ ‘[i]n order to constitute the crime of attempt, two requirements must be met: (1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime.’ Syl. Pt. 2, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).” Syl. Pt. 1, State v. Burd, 187 W.Va. 415, 419 S.E.2d 676 (1991).
In contrast, the charges filed against the Appellant in Calhoun County included manufacturing a controlled substance, operating a clandestine laboratory, and conspiracy to manufacture a controlled substance. The Appellant was ultimately convicted of conspiracy to manufacture methamphetamine. In order to prove conspiracy, the State must show the following:
“In order for the State to prove a conspiracy under W. Va.Code, 61-10-31(1), it must show that the defendant agreed with others to commit an offense against the State and that some overt act was taken by a member of the conspiracy to effect the object of that conspiracy.” Syl. Pt. 4, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981).
Burd, 187 W.Va. at 416, 419 S.E.2d at 677, Syl. Pt. 3.
Consequently, there is no basis for the dismissal of the charges on double jeopardy grounds as from a review of the record in this case, double jeopardy principles have neither been implicated, nor violated regarding the Appellant’s criminal conviction. Therefore, the Circuit Court of Calhoun County committed no error regarding its decision denying the Appellant’s Motion to Dismiss.
Further, regarding the Appellant’s collateral estoppel argument, the Appellant is misguided in his argument that “[i]f Judge Facemire ruled that this was one transaction, then any other court of competent jurisdiction is collaterally estopped from ruling otherwise.” In syllabus point one of State v. Porter, 182 W.Va. 776, 392 S.E.2d 216 (1990), this Court held:
The principle of collateral estoppel applies in a criminal ease where an issue of ultimate fact has once been determined by a valid and final judgment. In such case, that issue may not again be litigated between the State and the defendant. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).
Porter, 182 W.Va. at 777, 392 S.E.2d at 217, Syl. Pt. 1.
It is clear from the record that the Circuit Court of Braxton County did not determine that there was only one criminal transaction as that reasoning is simply not found in either an official transcript or the circuit court’s Order. While it appears that the Circuit Court of Braxton County dismissed the criminal charges against the Appellant on double jeopardy grounds, this Court cannot ascertain from the one order before it that was entered by the Circuit Court of Braxton County that said dismissal was based upon any ultimate factual determination, let alone a correct application of double jeopardy principles. Accordingly, the Appellant has failed to demonstrate the existence of any issue of ultimate fact that was determined by a valid and final judgment that had been determined in the Braxton County case, which would have precluded the case from going forward in Calhoun County. Id.
B. Evidence of Braxton County Charges
The Appellant argues that the circuit court incorrectly allowed evidence from the Braxton County vehicle stop into evidence in the Calhoun County trial in violation of West Virginia Rule of Evidence 404(b). The Appellee argues that the use of the evidence was intrinsic and was a proper application of West Virginia Rule of Evidence 404(b).
This Court has previously held that as a general rule “[a] trial court’s evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998); see also State v. Guthrie, 194 W.Va. 657, 680, 461 S.E.2d 163, 186 (1995) (“[M]ost rulings of a trial court regarding the admission of evidence are reviewed under an abuse of discretion standard.... [A]n appellate court reviews de novo the legal analysis underlying a trial court’s decision.”). Where the issue involves the admissibility of evidence under Rule 404(b) of the West Virginia Rules of Evidence, however,
[t]he standard of review for a trial court’s admission of evidence pursuant to Rule 404(b) involves a three-step analysis. First, we review for clear error the trial court’s factual determination that there is sufficient evidence to show the other acts occurred. Second, we review de novo whether the trial court correctly found the evidence was admissible for a legitimate purpose. Third, we review for an abuse of discretion the trial court’s conclusion that the “other acts” evidence is more probative than prejudicial under Rule 403.
State v. LaRock, 196 W.Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996).
Using the foregoing standard of review, this Court opined in syllabus point one of State v. McIntosh, 207 W.Va. 561, 534 S.E.2d 757 (2000), that
“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. W. Va.R. Evid. 404(b).” Syl. Pt. 1, State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
207 W.Va. at 564-565, 534 S.E.2d 757. 534 S.E.2d at 760-761, Syl. Pt. 1.
Additionally, we stated in LaRock:
In determining whether the admissibility of evidence of “other bad acts” is governed by Rule 404(b), we first must determine if the evidence is “intrinsic” or “extrinsic.” See United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990): “ ‘Other act’ evidence is ‘intrinsic’ when the evidence of the other act and the evidence of the crime charged are ‘inextricably intertwined’ or both acts are part of a ‘single criminal episode’ or the other acts were ‘necessary preliminaries’ to the crime charged.” (Citations omitted). If the proffer fits in to the “intrinsic” category, evidence of other crimes should not be suppressed when those facts come in as res gestae—as part and parcel of the proof charged in the indictment. See United States v. Masters, 622 F.2d 83, 86 (4th Cir.1980) (stating evidence is admissible when it provides the context of the crime, “is necessary to a ‘full presentation’ of the case, or is ... appropriate in order ‘to complete the story of the crime on trial by proving its immediate context or the “res gestae” ’ ”). (Citations omitted)____ Evidence the defendant was responsible for all the injuries to the victim would seem to “ ‘complete the story of the crime.’ ” Masters, 622 F.2d at 86. (Citation omitted). Indeed, evidence admissible for one of the purposes specified in Rule 404(b) and res gestae not always is separated by a bright line. See United States v. Cook, 745 F.2d 1311, 1317-18 (10th Cir.1984), cert. denied, 469 U.S. 1220, 105 S.Ct. 1205, 84 L.Ed.2d 347 (1985).
196 W.Va. at 312, 470 S.E.2d at 631 n. 29; see Syl. Pts. 1 and 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994)(establishing procedural requirements for admissibility of evidence under West Virginia Rule of Evidence 404(b)).
Lastly, in syllabus point one of State v. Youngblood, 217 W.Va. 535, 618 S.E.2d 544 (2005), cert. granted and judgment vacated on other grounds, 547 U.S. 867, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006), this Court reiterated that “[o]ther criminal act evidence admissible as part of the res gestae or same transaction introduced for the purpose of explaining the crime charged must be confined to that which is reasonably necessary to accomplish such purpose.’ Syl. pt. 1, State v. Spicer, 162 W.Va. 127, 245 S.E.2d 922 (1978).” Youngblood, 217 W.Va. at 538, 618 S.E.2d at 547, Syl. Pt. 1.
The Circuit Court of Calhoun County, by Order entered July 5, 2006, determined that the evidence of crimes that the Appellant had been charged with in Braxton County was intrinsic to the crimes charged in Calhoun County. Specifically, the circuit court stated:
The “other crime” evidence occurred near in time and place to the crimes charged by the Indictment. Acquisition of these items that were seized in Braxton County is a necessary preliminary to the operation of a clandestine drug lab and the production of methamphetamine, both of which crimes are alleged in the Indictment. Thus, as the State maintains, this is evidence of preparation. The presence of defendant and Jones, together with the items seized from the [v]an in Braxton county is also probative of the conspiracy count of the Indictment and, therefore, shows concerted activity, as the State maintains.
Further, inasmuch as the defendant was the operator of the [v]an in which the items were seized, the evidence tends to connect the defendant to items necessary to manufacture methamphetamine----
A clandestine drug lab likely cannot operate without the items seized in the Braxton County stop. This evidence portrays to the Jury the complete story of the inextricably linked events____It provides important context for the crimes that are charged by the Indictment.
Further, a limiting instruction regarding the Braxton County evidence was given to the jury in the Calhoun County trial following the testimony regarding the Braxton County traffic stop. The circuit court instructed the jury that the evidence was admitted for a limited purpose. Specifically, the circuit court instructed as follows:
The jury must remember that the defendant is being tried in this court for operating a meth lab or a clandestine drug lab in Calhoun County, manufacturing methamphetamine in Calhoun County, and entering into a conspiracy in Calhoun County. This evidence about the traffic stop occurring in another county is something that this man is not on trial for.
It was admitted into evidence for a limited purpose, and that was to the extent that evidence may — depending on the credit and weight you give to it, if any — may indicate a conduct that is a necessary preliminary to the crimes that are charged in Calhoun County or — depending on the weight and credibility you give to the evidence, if any — it may indicate evidence necessary to complete the story of the entire transaction.
So that evidence was admitted for a limited purpose, and you must always remember that in your consideration of this case.
A review of the circuit court’s ruling in admitting the evidence of the Braxton County traffic stop supports this Court’s conclusion that the circuit court was correct in allowing the admission of the evidence at trial. The circuit court had enough evidence to show that the Braxton County traffic stop and the evidence associated with that stop occurred. The circuit court correctly found the evidence was admissible for a legitimate purpose under West Virginia Rule of Evidence 404(b). The circuit court did not abuse its discretion in determining that the admissibility of the evidence for a limited purpose was more probative than prejudicial under West Virginia Rule of Evidence 403. LaRock, 196 W.Va. at 310-11, 470 S.E.2d at 629-30.
C. Sufficiency of the Evidence
The Appellant argues that the circuit court erred by not granting his post-trial Motion for Judgment of Acquittal when the Appellee produced no evidence of a conspiracy occurring in Calhoun County. The Appellant maintains that because Mr. Jones denied his involvement in the conspiracy during his testimony at trial when he testified that the did not manufacture the methamphetamine or purchase the ingredients, there was no evidence that a conspiracy had occurred. The Appellant argues that based on the evidence, he should have been convicted of operating a clandestine laboratory, and manufacturing a controlled substance, but not conspiracy.
In contrast, the Appellee argues that while Mr. Jones testified that he had no knowledge of the Appellant placing methamphetamine precursors and material to produce the drug in his home, Mr. Jones pleaded guilty to conspiracy. The Appellee also asserts that Mr. Jones testified that he smelled some thing funny in his home while the Appellant was staying at his home and that a “meth lab” might be at his home. Finally, there was other circumstantial evidence introduced during trial including pictures of all the evidence seized by the West Virginia State Police, testimony by the troopers involved in the search of Mr. Jones’s residence, and the testimony from Lieutenant Goff, an expert regarding the chemistry related to methamphetamine, who testified that in his expert opinion a methamphetamine was manufactured at Mr. Jones’s home. Consequently, the Appellee maintains that there was sufficient circumstantial evidence to sustain the Appellant’s conviction.
The Court applies a de novo standard of review to the denial of a motion for judgment of acquittal based upon the sufficiency of the evidence. LaRock, 196 W.Va. at 304, 470 S.E.2d at 623. As this Court has further explained:
The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.
Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
Moreover,
[a] criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.
Syl. Pt. 3, in part, Guthrie, 194 W.Va. at 663, 461 S.E.2d at 169.
Utilizing the foregoing standards, we now examine whether there was sufficient evidence to support the Appellant’s conviction, keeping in mind that all the evidence must be viewed in the light most favorable to the prosecution. Id. As previously mentioned, in order to convict the Appellant of conspiracy to manufacture methamphetamine, the Appellee had the burden of proving that the Appellant agreed with others to commit the crime of manufacturing methamphetamine, and that some overt act was taken by a member of the conspiracy to effect the object of the conspiracy, which was the manufacture of methamphetamine. See Burd, 187 W.Va. at 416, 419 S.E.2d at 677, Syl. Pt. 3.
The Appellee offered evidence that both the Appellant and Mr. Jones purchased precursors or items that are used in the manufacture of methamphetamine. Additionally, Mr. Jones testified that the Appellant was staying at Mr. Jones’s home, that Mr. Jones had smelled something funny in his home while the Appellant was staying there, and that a “meth lab” might be at his home. There was other circumstantial evidence introduced during the Appellant’s trial including pictures of all the evidence seized by the West Virginia State Police, testimony by the troopers involved in the search of Mr. Jones’s residence, and the testimony from Lieutenant Goff that in his expert opinion methamphetamine was manufactured at Mr. Jones’s home. There was also a stipulation that at least one of the samples obtained during the search of Mr. Jones’s home was methamphetamine. Even though Mr. Jones testified at trial that he was not involved in the conspiracy, he also testified that he had pleaded guilty to the conspiracy. Conse quently, given that “a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt[,]” there is overwhelming evidence to sustain the jury’s verdict convicting the Appellant of conspiracy. Syl. Pt. 3, in part, Guthrie, 194 W.Va. at 663, 461 S.E.2d at 169. Thus, the circuit court did not err in denying the Appellant’s Motion for Judgment of Acquittal.
III. Conclusion
Based upon the foregoing, the decision of the Circuit Court of Calhoun County is affirmed.
Affirmed.
. West Virginia Code § 61-10-31 provides, in relevant part:
It shall be unlawful for two or more persons to conspire (1) to commit any offense against the State ... if, ... one or more of such persons does any act to effect the object of the conspiracy.
... It shall not be a defense to any prosecution under this section thirty-one that the conduct charged or proven is also a crime under any other provision or provisions of this Code or the common law.
Any person who violates the provisions of this section by conspiring to commit an offense against the State which is a felony, ... shall be guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than one nor more than five years or by a fine of not more than ten thousand dollars, or, in the discretion of the court, by both such imprisonment and fine....
Id.
. Trooper Yost testified that "precursors” were items that are normally used in the production of methamphetamine.
. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. According to the Appellant’s brief, James "Bub” Jones and George Dusky were never charged for any crime in Braxton County.
. The Appellant argues the following regarding the dismissal of the charges in Braxton County:
After taking the matter under advisement, Judge Facemire swore the jury, allowed the Prosecuting Attorney to call his first witness and upon the Defendant's renewed motion to dismiss, dismissed all charges in Braxton County against Danny Minigh stating this was one transaction and Mr. Minigh would be in jeopardy with the Calhoun County charges.
The problem with this factual rendition is that the Appellant has failed to produce any official transcript or court order wherein the Circuit Court of Braxton County specifically states what the Appellant alleges that the circuit court found. Instead, all that has been provided to this Court is the April 13, 2006, Order, which fails to provide any additional reasoning regarding the ruling made by the Braxton County circuit court.
. James "Bub” Jones, the owner of the home that was searched in Calhoun County, was charged similarly to the Appellant, according to the Appellant’s brief. Mr. Jones, however, ultimately pleaded guilty to conspiracy to manufacture methamphetamine and agreed to testify against the Appellant. The Appellee, as part of the plea agreement, dismissed the remaining charges against Mr. Jones. Finally, it appears that Mr. Dusky was never charged in Calhoun County.
. The Court's conclusion in this case, however, does not alter the well-established precedent that jeopardy attaches once a jury is empaneled and sworn, or in a bench trial, once the judge begins taking evidence in the case. Syl. Pt. 3, Manning v. Inge, 169 W.Va. 430, 288 S.E.2d 178 (1982)(" 'One is in jeopardy when he has been placed on trial on a valid indictment, before a court of competent jurisdiction, has been arraigned, has pleaded and a jury has been impaneled and sworn.’ Syl. pt. 1, Adkins v. Leverette, [164 W.Va. 377], 264 S.E.2d 154 (1980).”); see also Syl. Pt. 4, Manning, 169 W.Va. at 430-31, 288 S.E.2d at 179 ("Jeopardy attaches in a non-jury trial in a magistrate court which is exercising proper jurisdiction when the accused has been charged in a valid warrant and has entered a plea and the magistrate has begun to hear evidence.”). | [
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PER CURIAM:
In this appeal from the Circuit Court of Monongalia County, we are asked to review a circuit court order granting summary judgment that dismissed the appellant’s cross-claim against the appellee for contribution and for fraudulent misrepresentation. The circuit court’s order also dismissed certain personal injury claims against the appellee that had been assigned by the plaintiff-below to the appellant.
After careful consideration of the briefs, the arguments of the parties, and all matters of record, we affirm the circuit court’s summary judgment order.
I.
In 2001, plaintiff-below Doris E. Jennings owned a gas station and convenience store called the “Repo Depot.” Ms. Jennings met with an insurance agent, defendant-below and appellee Kevin Fike, about purchasing an insurance policy for her business. Mr. Fike was an agent for defendant-below and appellant Farmers Mutual Insurance Company (“Farmers Mutual”). Mr. Fike completed an application seeking coverage for Ms. Jennings, and submitted the application to Farmers Mutual. An underwriter reviewed the application and approved the issuance of a policy. On June 11, 2001, Farmers Mutual issued a businessowners policy to Ms. Jennings for the Repo Depot property.
Two months later, on August 15, 2001, the Repo Depot was destroyed by fire. Ms. Jennings made a claim against her Farmers Mutual policy for the loss.
Several days later, Farmers Mutual discovered that two pages of the application submitted by Mr. Fike were missing. Farmers Mutual contacted Mr. Fike, and on August 22, 2001 he faxed the missing pages to Farmers Mutual. Those missing pages completed by Mr. Fike indicated that Ms. Jennings had never previously filed property damage claims against any other insurance policy — but an investigation by Farmers Mutual after August 22nd apparently revealed that Ms. Jennings had, in fact, previously filed claims. The underwriter for Farmers Mutual later stated that he did not realize those pages were missing from the application, but if those pages had been attached, stated that he would have refused to issue a policy to Ms. Jennings.
Farmers Mutual declined to pay Ms. Jennings’ fire claim, and instead chose to investigate the cause of the fire and the damages claimed by Ms. Jennings. A private investigator spoke with various people who knew Ms. Jennings, and a Farmers Mutual agent accused Ms. Jennings of lying on her application for insurance and arson, saying “we think you burnt it.” While Ms. Jennings was not represented by counsel, Farmers Mutual hired a lawyer to take a “statement under oath” from Ms. Jennings that lasted nearly seven hours. Ms. Jennings believed that Farmers Mutual “treated me like a friggin’ criminal,” and she hired an attorney. Shortly thereafter, on November 9, 2001, Farmers Mutual paid Ms. Jennings approximately $245,000.00 for the fire loss.
On May 29, 2002, Ms. Jennings brought suit against Farmers Mutual and against Mr. Fike alleging breach of contract, violations of the Unfair Trade Practices Act, and common law bad faith. Ms. Jennings also sought Hayseeds damages. Additionally, Ms. Jennings alleged that Mr. Fike had been negligent in his completion and handling of her application for insurance, and alleged that both Mi-. Fike and Farmers Mutual had caused intentional and negligent infliction of emotional distress.
Appellant Farmers Mutual filed a cross-claim against appellee Mr. Fike for misrepresentation. Fanners Mutual asserted that the application for insurance completed by Mr. Fike contained inaccurate and incomplete information, and that Farmers Mutual reasonably relied on this information in providing insurance coverage to Ms. Jennings. Additionally, the cross-claim asserted that Fanners Mutual was entitled to contribution and indemnity from Mr. Fike.
In June 2004, Ms. Jennings settled and released all her claims against Farmers Mutual for $500,000.00. Additionally, Ms. Jennings assigned to Farmers Mutual all of her claims against Mr. Fike arising from her May 29, 2002 complaint.
Mr. Fike filed motions for summary judgment seeking to dismiss all of Farmers Mutual’s claims. First, Mr. Fike contended that Farmers Mutual’s claim for contribution was extinguished by the good faith settlement between Farmers Mutual and Ms. Jennings. Second, Mr. Fike argued that Farmers Mutual’s reliance claim should be dismissed because the record showed that Farmers Mutual never detrimentally relied on the information in the application for insurance. Mr. Fike argued that Farmers Mutual carelessly based its decision to afford coverage on an application that was missing pages — whether the application completed by Mr. Fike contained incomplete or inaccurate information was irrelevant to that decision. And third, Mr. Fike argued that under West Virginia law, personal injury claims — such as Ms. Jennings’ claims against Mr. Fike for negligence and for intentional or negligent infliction of emotional distress — cannot be assigned.
On May 22, 2008, the circuit court entered a thorough and detailed order granting summary judgment to Mr. Fike on all counts.
Appellant Farmers Mutual now appeals the circuit court’s May 22, 2008 summary judgment order.
II.
We review a circuit court’s order granting summary judgment de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
III.
Fanners Mutual contends that the circuit court’s summary judgment order was wrong in three respects. First, Farmers Mutual argues that its claim for contribution against Mr. Fike was not extinguished by its settlement with Ms. Jennings. Farmers Mutual argues that the settlement with Ms. Jennings was, in part, for torts committed by Mr. Fike while he was acting as an agent for Farmers Mutual, and therefore that Mr. Fike should bear some share of liability for the settlement. Second, Farmers Mutual contends the circuit court erred in dismissing its claim for misrepresentation. Farmers Mutual takes the position that a question of fact exists regarding whether Farmers Mutual justifiably relied upon the absence of information that Mr. Fike should have provided. Finally, Farmers Mutual asserts that the circuit court erred in ruling that Ms. Jennings’s personal injury claims against Mr. Fike were not assignable.
The first argument by Farmers Mutual concerns its claim for contribution against Mr. Fike. In Syllabus Point 6 of Board of Educ. v. Zando, Martin & Mil- stead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990), we stated the following principle regarding contribution:
A party in a civil action who has made a good faith settlement with the plaintiff pri- or to a judicial determination of liability is relieved from any liability for contribution.
Under, this principle, Farmers Mutual’s good faith settlement with Ms. Jennings relieved Farmers Mutual from any liability for contribution to Mr. Fike. The circuit court concluded that under this principle in Zando, the opposite should also be true: the settlement relieved Mr. Fike of any liability for contribution to Farmers Mutual. The circuit court determined that under Zando, it would be unfair to permit the settling defendant to pursue a claim of contribution against a non-settling defendant, while simultaneously precluding the non-settling defendant from pursuing a claim for contribution against the settling defendant.
Farmers Mutual argues that the circuit court misinterpreted Zando. We disagree.
It is an established principle that “[i]n West Virginia one joint tort-feasor is entitled to contribution from another joint tort-feasor[.]” Syllabus Point 3, Haynes v. City of Nitro, 161 W.Va. 230, 240 S.E.2d 544 (1977). See also, Syllabus Point 3, Sitzes v. Anchor Motor Freight, Inc., 169 W.Va. 698, 289 S.E.2d 679 (1982) (“As between joint tortfeasors, a right of comparative contribution exists inter se based upon their relative degrees of primary fault or negligence.”).
It is just as established, however, that a right to contribution “can only be invoked by one of the joint tortfeasors in the litigation.” 169 W.Va. at 713, 289 S.E.2d at 688 (emphasis added). When a tortfeasor “elect[s] to remain in the case he ... will be liable for contribution in favor of the other joint tortfeasor[.]” Reager v. Anderson, 179 W.Va. 691, 704, 371 S.E.2d 619, 632 (1988). If a tortfeasor is not a part of the litigation— whether because of a settlement or because the tortfeasor was not sued — our law is clear that no contribution may be had from that tortfeasor. See Syllabus Point 6, Charleston Area Medical Center v. Parke-Davis, 217 W.Va. 15, 614 S.E.2d 15 (2005) (“[A] tortfeasor who negotiates and consummates a settlement with an injured party on behalf of itself before any lawsuit is filed cannot subsequently bring an action seeking contribution from a tortfeasor who was not apprised of and not a party to the settlement negotiations and agreement.”); Lombard Canada, Ltd. v. Johnson, 217 W.Va. 437, 618 S.E.2d 446 (2005) (same); Board of Educ. v. Zando, Martin & Milstead, Inc., 182 W.Va. at 603-04, 390 S.E.2d at 802-03 (“The fundamental purpose of inchoate contribution is to enable all parties who have contributed to the plaintiffs injuries to be brought into one suit. Not only is judicial economy served, but such a procedure also furthers one of the primary goals of any system of justice — to avoid piecemeal litigation which cultivates a multiplicity of suits and often results in disparate and unjust verdicts.”).
In the instant case, Farmers Mutual is no longer a “tortfeasor” that remains in the litigation. Accordingly, we believe that the circuit court’s conclusion — that the claims of contribution between Farmers Mutual and Mr. Fike were extinguished by the good faith settlement with the plaintiff — was correct.
Farmers Mutual’s second argument centers upon its cross-claim alleging that Mr. Fike made misrepresentations that Farmers Mutual detrimentally relied upon. Farmers Mutual contends that Mr. Fike carelessly filed an application for Ms. Jennings seeking insurance coverage that indicated that she had no prior property damage claims. Specifically, it appears that the paper application for insurance was printed on both sides of the page, but when Mr. Fike faxed the application to Farmers Mutual, only the front sides of the pages were transmitted. Farmers Mutual did not receive two of the reverse sides of the application until August 22, 2001, one week after the fire at the Repo Depot. Those reverse sides had sections detailing an applicant’s prior property damage claims. However, the application completed by Mr. Fike incorrectly indicated that Ms. Jennings had no prior property damage claims.
Fanmers Mutual asserts that it reasonably relied to its detriment upon the information contained — or, more specifically, not contained — in the application for insurance prepared by Mr. Fike. Farmers Mutual claims that had it known about Ms. Jennings’s prior property damage claims it would not have issued an insurance policy to Ms. Jennings.
The record, however, contains a memorandum from a Farmers Mutual underwriter, dated September 10, 2001, which states that the underwriter approved the application for coverage after he “quickly reviewed the section showing no losses. However, this [section] in fact only relates to sexual abuse or other allegations. Actual loss history is on the reverse side of the Acord commercial insurance application section.” In other words, it appears that the Farmers’ Mutual underwriter issued the insurance policy after mistaking the application section relating to sexual abuse claims for the application section relating to property damage claims, and not because of incorrect or absent information about property damage claims.
The circuit court determined that, on this record, Farmers Mutual could not show that it detrimentally relied on the information that was never provided to Farmers Mutual.
To prevail on a claim for misrepresentation, a plaintiff must establish that “the act claimed to be fraudulent was the act of the defendant ... (2) that it was material and false; [3] that plaintiff relied on it and was justified under the circumstances in relying upon it; and [4] that he was damaged because he relied on it.” Syllabus Point 1, Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981) (emphasis added). The misrepresentations by the defendant need not be the sole inducement for the plaintiffs actions; the plaintiff must only show that “the representations contributed to the formation of the conclusion in the plaintiffs mind[.]” Syllabus Point 3, in part, Horton v. Tyree, 104 W.Va. 238, 139 S.E. 737 (1927).
After carefully reviewing the record, we believe that the circuit court’s decision to grant summary judgment to Mr. Fike on the misrepresentation claim was correct. Farmers Mutual has offered no evidence suggesting that the representations contained in Ms. Jennings’ application contributed to the “formation of the conclusion” in the underwriter’s mind that the insurance policy should be issued. The record plainly establishes that the underwriter negligently failed to notice that two pages were missing from the faxed application form. Put simply, Farmers Mutual has offered no reasoning to support a finding that the underwriter’s carelessness in relying upon an incomplete application was “justified under the circumstances.”
The third argument proffered by Farmers Mutual on appeal is that the circuit court erred in holding that Ms. Jennings could not assign her personal injury causes of action to Farmers Mutual.
Our law on this question is clear: a cause of action for personal injuries may not be assigned. We stated, in Hereford v. Meek, 132 W.Va. 373, 391-92, 52 S.E.2d 740, 750 (1949) that:
[N]othing is assignable, either at law or in equity, which does not directly or indirectly involve a right to property ... Under the rule of the common law [a personal injury tort] is not assignable. No statute of this State has come to the attention of this Court which gives it assignability or removes it from the operation of the common-law rule. (Citation omitted.)
See also, Syllabus Point 2, Delaware CWC Liquidation Corp. v. Martin, 213 W.Va. 617, 584 S.E.2d 473 (2003) (“The assignment of a legal malpractice claim is contrary to the public policy of West Virginia; therefore, any such assignment is void as a matter of law.”). See also, R.D. Hursh, Assignability of claim for personal injury or death, 40 A.L.R.2d 500, § 3 (1955) (“It seems that few legal principles are as well settled, and as universally agreed upon, as the rule that the common law does not permit assignments of causes of action to recover for personal injuries.”).
Farmers Mutual has directed us to no authority indicating why this fundamental principle of the common law should be abandoned. And after a careful review of the record, we believe that the circuit court’s application of the principle was correct.
IV.
We affirm the circuit court’s May 22, 2008 summary judgment order.
Affirmed.
. See Syllabus Point 1, Hayseeds, Inc. v. State Farm Fire & Cas., 177 W.Va. 323, 352 S.E.2d 73 (1986) ("Whenever a policyholder substantially prevails in a property damage suit against its insurer, the insurer is liable for: (1) the insured’s reasonable attorneys’ fees in vindicating its claim; (2) the insured's damages for net economic loss caused by the delay in settlement, and damages for aggravation and inconvenience.”)
. In addition to the cross-claim, Farmers Mutual filed a third-party complaint against Mr. Fike's liability insurer, Utica Mutual Insurance Company, alleging the company had engaged in bad faith in the handling of the cross-claim.
. The parties disputed who was at fault for this error. Mr. Fike stated that Ms. Jennings denied having any prior claims. Ms. Jennings, however, testified in her deposition that Mr. Fike never asked her about proper property damage claims. She also testified that Mr. Fike never showed her the completed application; instead, he asked her questions from memory and took notes on a legal pad, and then completed and faxed the application. | [
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WORKMAN, Justice.
This case is before the Court upon the appeal of an Order Granting Motion for Summary Judgment entered by the Circuit Court of Logan County, Judge Erie H. O’Briant presiding, on March 21, 2007. The circuit court determined that while the Appellant, Evelyn “Peach” Murphy, had standing to maintain the deliberate intent action pursuant to West Virginia Code § 23 — 4—2(c)(2005), she could do so only on behalf of the persons who have a cause of action under the statute, which, according to the circuit court, would be widows and widowers, children, and dependents. In reaching this decision, the circuit court relied upon the decision reached by this Court in Savilla v. Speedway Superamerica, LLC, 219 W.Va. 758, 639 S.E.2d 850 (2006). Additionally, the circuit court rejected the Appellant’s arguments that she was a dependent and that the limitation of beneficiaries in a deliberate intent action violated the Equal Protection Clauses of the West Virginia Constitution or the United States Constitution. Based upon our review of the record before the Court, the parties’ briefs and arguments, and all other matters presented, we reverse the lower court's decision and remand this case to the circuit court for further proceedings. In so reversing, we hereby expressly overrule the language of syllabus point three of Savilla, as well as any other language in the opinion to the extent that it holds there is no cause of action for an employee’s death in a deliberate intention action filed by the decedent’s personal representative against the decedent’s employer.
I. Factual and Procedural Background
On November 2, 2005, Andrew John Murphy, the decedent, had been working for S.W. Jack Drilling Company for a little over a month,'when he was directed to beat down foam on a mudpit. While working around the mudpit, Mr. Murphy noticed that the liner, which held contaminants, had fallen off the bank of the mudpit. Mr. Murphy was attempting to pull the liner out of the mudpit when he fell into the mudpit and died. Mr. Murphy was nineteen years old.
A family friend, Larry Jett, was first appointed administrator of Mr. Murphy’s estate, and filed the instant deliberate intention action against various defendants, seeking recovery under the provisions of West Virginia Code § 23-4-2(d) (2005), on May 17, 2006. Mr. Jett, however, died unexpectedly, causing Mr. Murphy’s mother, the Appellant, to be appointed administratrix of his estate on December 12, 2006. The Order substituting the Appellant was entered on December 18, 2006. Mr. Murphy’s only surviving heirs were his mother and a sister.
Subsequently, the Appellee, S.W. Jack Drilling, Co., filed for summary judgment, claiming that under Savilla, while the administratrix had standing to bring a deliberate intent action, the representative can only maintain that action on behalf of those designated in West Virginia Code § 23-4-2(c). The Appellant, however, did not qualify as a “dependent” under the statute, based upon the determination made by Workers’ Compensation. Consequently, the Appellee asserted that there were no persons with the statutory right to maintain the action and recover damages.
The lower court, relying upon Savilla, agreed with the Appellee and it is this ruling that forms the basis for the instant appeal.
II. Standard of Review
This Court’s standard of review for a circuit court’s entry of summary judgment is de novo. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment is required when the record shows that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. Thus, the Court has held that “[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Applying the foregoing standard, we now turn consider to the issues before the Court in this case.
III. Discussion
At the center of the ease before us is Savilla, a decision rendered by the Court less than three years ago. See 219 W.Va. at 758, 639 S.E.2d at 850. Because of the confusion that has been caused by one of the holdings reached by the Court in Savilla, it is incumbent upon this Court to now critically examine both the facts and law of that case in conjunction with the case sub judice.
The Savilla case involved a tragic set of facts in which Linda Kannaird, who was fifty-four years old, drowned when a rescue boat operated by the City of Charleston overturned in flood waters on February 18, 2000. 219 W.Va. at 760, 639 S.E.2d at 852. Ms. Kannaird was being evacuated from a Speedway Superamerica (“Speedway”) convenience store where she worked. Id. She was not married at the time of her death and had only one adult child, Eugenia Moschgat, who was a resident of North Carolina and who had been estranged from her mother for a number of years. Id. at 760-61, 639 S.E.2d at 852-53.
Ms. Moschgat was appointed administratrix of her mother’s estate on February 28, 2000. Ms. Moschgat filed a lawsuit against the City of Charleston and Speedway on April 11, 2000, alleging negligence against the City and deliberate intention against Ms. Kannaird’s employer, Speedway. Id. at 760, 639 S.E.2d at 852.
Subsequently, on June 8, 2000, a number of Ms. Kannaird’s siblings, alleging that they were potential recipients of damages in the suit filed by Ms. Moschgat, sought to have Ms. Moschgat removed as administratrix and personal representative of Ms. Kannaird’s estate, because of her hostility towards and estrangement from her mother. Id. The circuit court, upon hearings, found that- Ms. Moschgat’s hostility toward her late mother’s siblings necessitated her removal as personal representative of the estate. Id. at 761, 639 S.E.2d at 853. Diana Savilla, Ms. Kannaird’s sister, was appointed as the administratrix of the estate. Id.
The case proceeded with discovery and took other procedural twists, including an attempted removal to federal court. Id. During this time, Speedway and Ms. Moschgat, acting independently from Ms. Savilla, entered into an agreement in which Speedway promised to pay Ms. Moschgat a sum of money for a release of all Ms. Moschgat’s personal claims against Speedway. Id. The agreement was contingent upon Speedway’s dismissal from the action. Id.
Thereafter, Speedway filed a motion to dismiss. Id. Speedway argued that Ms. Savilla, as the personal representative of Ms. Kannaird’s estate, had no standing to assert a deliberate intention claim arising from Ms. Kannaird’s death because Ms. Savilla was not within one of the specific classifications of persons who are named in West Virginia Code § 23-4-2(c), referring to “the widow, widower, child or dependent of the employee[.]” Id. at 761-62, 639 S.E.2d at 853-54. Speedway also argued that its agreement with Ms. Moschgat satisfied all possible deliberate intention claims against Speedway because Ms. Moschgat was the only potential individual who could have a deliberate intention claim under West Virginia Code § 23-4-2(c) and, therefore, the claims against Speedway required dismissal. 219 W.Va. at 762, 639 S.E.2d at 854.
The circuit court granted Speedway’s motion, • concluding that deliberate intention claims could only be brought on behalf of the persons listed in West Virginia Code § 23-4-2(c) and could not be pursued by the personal representative of a decedent in a wrongful death suit. Id. at 762, 639 S.E.2d at 854. The circuit court did not address Speedway’s alternative argument regarding the settlement reached with Ms. Moschgat. Id. Ms. Savilla appealed to this Court. Id.
On appeal, the Court examined “whether anyone other than Ms. Moschgat had or has a potential cause of action against Speedway, Ms. Kannaird’s employer, as a result of her death.” Id. The Court began its analysis of this question by stating “[a]s previously noted, W. Va.Code, 23-4-2(c) [2005] specifically provides that the Svidow, widower, child or dependent’ of an employee has a cause of action against an employer as a result of an employee’s death arising from an employer’s alleged ‘deliberate intention’ misconduct.” Savilla, 219 W.Va. at 762, 639 S.E.2d at 854. The Court then applied the principle of “ex-pressio unius est exclusio alterius[,]” which means “the express mention of one thing implies the exclusion of another[.]” Id. (quoting, in part, Syl. Pt. 3, Manchin v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710 (1984)). In applying this maxim, the Court concluded that “W. Va.Code, 23-4-2(c)’s express mention of certain person who have a cause of action against an employer for deliberate intention wrongful death damages implies the exclusion of other persons who are not mentioned in the statute.” Savilla, 219 W.Va. at 762, 639 S.E.2d at 854. Thus, the Court found that “potential damages recovery under a cause of action authorized by W. Va.Code, 23-4-2(e) [2005] is limited to a smaller class of beneficiaries than those persons who are set forth in W. Va.Code, 55-7-6[1992] [commonly referred to as ‘the wrongful death statute’].” Savilla, 219 W.Va. at 763, 639 S.E.2d at 855 (footnote added).
The Court held in syllabus point three of Savilla that “[p]ursuant to W. Va.Code, 23-4-2(c) [2005] and W. Va.Code, 55-7-6 [1992], the persons who can potentially recover ‘deliberate intention’ damages from a decedent’s employer are the persons specified in W. Va.Code, 23-4-2(c) [2005]: the employee’s widow, widower, child, or dependent of the employee.” 219 W.Va. at 759, 639 S.E.2d at 851, Syl. Pt. 3.
The circuit court’s application of this holding resulted in the summary judgment, which is the subject of this appeal. It is important to note at the onset that Savilla was decided by a simple three to two majority, with Justice Davis and Justice Maynard dissenting. The dissenting opinion pointed out the undeniable flaws in the majority’s application of West Virginia Code § 23-4-2(c). West Virginia Code § 23-4-2(e) provides:
If injury or death result to any employee from the deliberate intention of his or her employer to produce the injury or death, the employee, the widow, widower, child or dependent of the employee has the privilege to take under this chapter and has a cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable in a claim for benefits under this chapter, whether filed or not.
Id. (Emphasis added).
The majority in Savilla omitted any discussion or analysis of the words “the employee” from the persons whom the statute clearly and expressly states has a claim for “injury or death.” 219 W.Va. at 762-764, 639 S.E.2d at 854-855; see W. Va.Code § 23-4-2(c). This omission was discussed at length in the dissenting opinion to Savilla in which Justice Davis opined that under the deliberate intent statute, a “cause of action exists for an injury or death to an employee.” 219 W.Va. at 769, 639 S.E.2d at 861. Further, Justice Davis stated that under West Virginia Code § 23-4-2(c), in a fatal injury case, the “‘employee’ means the estate of the employee.” 219 W.Va. at 770, 639 S.E.2d at 862. Justice Davis found that the majority opinion in Savilla, “abolished a right granted to an employee to have a separate cause of action for his/her death through his/her estate.” Id. at 771, 639 S.E.2d at 863.
Justice Davis’ dissenting opinion was consistent with this Court’s prior decision in Zelenka v. City of Weirton, 208 W.Va. 243, 539 S.E.2d 750 (2000). In Zelenka, the estate of a city employee who was killed in a work-related accident filed a wrongful death action against the city, alleging that the city acted with deliberate intent. 208 W.Va. at 245-46, 539 S.E.2d at 752, 753. The plaintiffs decedent was forty-six years old at that time of his death and was survived by his parents, three sisters, and a brother. Id. at 246, 539 S.E.2d at 753 n. 4. A workers’ compensation claim was filed as a result of the death and because the decedent had no dependents, the workers’ compensation benefits available to his estate were limited to $5,000 in funeral expenses. Id. at 246, 539 S.E.2d at 753. It was clear in Zelenka that the “ease was prosecuted by the apparent non-dependent executrix of the decedent’s estate.” Id. at 249, 539 S.E.2d at 756.
The dissenting opinion in Savilla was correct in that the majority’s omission “muddied the waters with respect to a fatal injury to an employee.” 219 W.Va. at 770, 639 S.E.2d at 862. This occurred when the majority simply ignored plain, unambiguous terms set forth by the Legislature in West Virginia Code § 23-4-2(c). This omission and the concomitant confusion it has created cannot be ignored by this Court.
Although this Court is loathe to overturn a decision so recently rendered, it is preferable to do so where a prior decision was not a correct statement of law. As the United States Supreme Court stated regarding the consideration of this difficult decision and its impact on the well-established principle of stare decisis:
The Court has said often and with great emphasis that “the doctrine of stare decisis is of fundamental importance to the rule of law.” Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 494, 107 S.Ct. 2941, 2957, 97 L.Ed.2d 389 (1987). Although we have cautioned that “stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision,” Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 241, 90 S.Ct. 1583, 1587, 26 L.Ed.2d 199 (1970), it is indisputable that stare decisis is a basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon “an arbitrary discretion.” The Federalist, No. 78, p. 490 (H. Lodge ed. 1888) (A.Hamilton). See also Vasquez v. Hillery, 474 U.S. 254, 265, 106 S.Ct. 617, 624, 88 L.Ed.2d 598 (1986) (stare decisis ensures that “the law will not merely change erratically” and “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals”).
Our precedents are not sacrosanct, for we have overruled prior decisions where the necessity and propriety of doing so has been established. See Patterson v. McLean Credit Union, supra, 485 U.S. at 617-618, 108 S.Ct. at 1420-1421 (citing cases). Nonetheless, we have held that “any departure from the doctrine of stare decisis demands special justification.” Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 2311, 81 L.Ed.2d 164 (1984).
Patterson v. McLean Credit Union, 491 U.S. 164, 172, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), sttperceded in part on other grounds by the Civil Rights Act of 1991.
Thus, after substantial deliberation, this Court comes to the inevitable conclusion in this ease that our prior decision in Savilla must be reversed, in part, due to the majority opinion’s omission of certain salient statutory language and any substantial discussion thereof. The majority opinion’s omission abolished the right of the employee’s estate to bring a deliberate intention action against an employer in cases involving the employee’s death. W. Va.Code § 23-4-2(c). The omission unquestionably provides this Court with the special justification necessary for the departure from the doctrine of stare decisis.
Additionally, from a pure public policy perspective, it would be an incredible miscarriage of justice for this Court to allow the legally incorrect holding in Savilla to stand. The Court in Savilla obliterated any means of providing for compensation to those who lose a loved one at the hands of an employee’s deliberate intent-type conduct. It is difficult to fathom that West Virginia law would ever allow an employer to act with complete intentional disregard for an employee’s life, deliberately intend the employee’s death and then be allowed to walk away unscathed by such conduct.
Consequently, it is time to correct the erroneous holding reached by the Court in Savilla. “Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.” Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968). Thus, we hold that under the clear and unambiguous terms of West Virginia § 23-4-2(c) (2005), an employee, widow, widower, child, or dependent has a deliberate intention cause of action against the employer for injury or death of an employee. In the event of an employee’s death, the decedent’s estate has a claim. To the extent that syllabus point three of Savilla v. Speedway Superamerica, LLC, 219 W.Va. 758, 639 S.E.2d 850 (2006), conflicts with this holding, it is expressly overruled.
Moreover, West Virginia Code § 23-4-2(c) provides that the employee, the widow, widower, child or dependent of the employee ... “has a cause of action against the employer, as if this chapter had not been enacted ____” Id. (emphasis added). Regarding the meaning of this phrase, the majority in Savilla relied upon Collins v. Dravo Contracting Co., 114 W.Va. 229, 171 S.E. 757 (1933). In Collins, the Court addressed the phrase as follows:
The question is raised that no recovery can be had in this action by the administratrix because Code, 23-4-2, gives the right of action to “the widow, widower, child or dependent of the employee”. We do not think this contention well founded. The statute in question gives the right of action “as if this chapter had not been enacted.” If it had not been enacted, then for death by wrongful act the personal representative sues under Code, 55-7-6, and that section, including its limitation of recovery, would apply to the extent not inconsistent with Code, 23-4-2. Since Code, 23-4-2, names the beneficiaries who take, the recovery under its terms would be distributed to “the widow, widower, child or dependent” and not in accordance with Code, 55-7-6. But it is the personal representative who sues subject to the difference in distribution of any recovery.
Collins, 114 W.Va. at 235-36, 171 S.E. at 759. The foregoing discussion was dicta in Collins, however, the majority in Savilla relied on this dicta to ultimately hold that
[a] personal representative who is not one of the statutorily-named beneficiaries of a deliberate intention cause of action authorized by W. Va.Code, 23-4-2(c) [2005] has standing to assert a deliberate intention claim against a decedent’s employer on behalf of a person who has such a cause of action in a wrongful death suit’ filed pursuant to W. Va.Code, 55-7-6 [1992].
219 W.Va. at 759, 764, 639 S.E.2d at 851, 855 Syl. Pt. 2.
We continue to uphold this point of law made by the Savilla court. Adherence to this holding is also found in a recent decision of the Supreme Court of Oregon in Behurst v. Crown Cork & Seal USA, Inc., 346 Or. 29, 203 P.3d 207 (2009). In Behurst, the Oregon court was presented with a certified question from a federal district court asking whether the Oregon Workers’ Compensation statute concerning deliberate intention, which is similar to the instant statute, allows the personal representative, of a deceased workers’ estate to bring a wrongful death action against the employer where the only beneficiaries of the claim were the workers’ non-dependent parents. Id. at 208-09.
The Oregon court found that the deliberate intention statute within the workers’ compensation statutory scheme “removes the exclusive liability bar.” Id. at 208. In order to answer the certified question, however, the Behurst court reasoned as follows:
The answer to the certified question depends on the legislative intent behind ORS 656.156(2) and ORS 30.020. ORS 656.156(2) does not provide a cause of action to nondependent parents or, for that matter, to any person. Rather, that statute states that a worker, spouse, child, or dependent may “take under this chapter” and also may “have cause for action against the employer, as if such statutes had not been passed * * (Emphasis added.) The phrase, “have cause for action,” if read in isolation, might signify a grant of a substantive right to bring an action. But the phrase, “as if such statutes had not been passed,” clarifies that matter. The legislature intended to remove a statutory obstacle to the initiation of an action, not to authorize a new basis for civil liability that the law does not already recognize. The phrase “such statutes” can only refer back to the phrase “this chapter,” meaning the Workers’ Compensation Law. Accordingly, ORS 656.156(2) necessarily assumes that the designated persons — workers, spouses, children, and dependents — may pursue an action against an employer based on some other source of law, as if the exclusive liability bar in ORS 656.018(l)(a) did not exist, as long as they allege that the employer caused a worker’s injury or death by deliberate intention. This court implicitly recognized as much in Kilminster when it stated that ORS 656.156(2) “removes the bar that otherwise would prevent a worker from maintaining an action for damages against the employer * * 323 Or. at 629, 919 P.2d 474 (emphasis added).
203 P.2d at 209-10.
In addressing the employer’s argument that a personal representative can only bring an action for the benefit of the persons, i.e., the employee, widow, widower, children and dependent, identified in the statute, the Supreme Court of Oregon first recognized that “[i]t is the right of the worker that the personal representative enforces in bringing a wrongful death action against the employer under ORS 30.020(1).” Id. at 211. Moreover, the Behurst Court reasoned that
[t]he proper question, therefore, is not whether ORS 656.156(2) lists “parents” as potential claimants under that statute. Rather, the question is whether parents are among those persons on whose behalf a personal representative may institute an action for the deliberate wrongful death of a worker under ORS 30.020. The answer is yes. ORS 30.020(1) authorizes an action for wrongful death on behalf of “surviving parents” if the decedent might have maintained an action against the wrongdoer for the same injurious act or omission. ORS 30.020(2)(d) authorizes an award of damages in a wrongful death action to compensate “decedent’s * * * parents for pecuniary loss and for loss of the society, companionship and services of the decedent; * * If the personal representative’s wrongful death claim satisfies the deliberate intention criterion, the claim is one that “the decedent might have maintained * * *[,] had the decedent lived, against the wrongdoer * * ORS 30.020(1). Accordingly, the personal representative’s claim for wrongful death for the benefit of decedent’s parents properly vindicates the worker’s right to an action under ORS 656.156(2).
Behurst, 203 P.3d at 210-211.
We find the Supreme Court of Oregon’s reasoning in Behurst persuasive. Accordingly, we hold that the estate of an employee who suffers death as the result of deliberate intent-type conduct that is recognized by the provisions of West Virginia Code § 23-4-2(c)(2005) has a claim on behalf of the beneficiaries thereof, for any excess of damages over the amount received or receivable in a claim for benefits under the workers’ compensation statutes, regardless of whether a claim seeking such benefits is filed. In the case of an employee’s death, a personal representative of the decedent’s estate may assert a deliberate intention claim against a decedent’s employer on behalf of any person(s) identified in West Virginia Code § 55-7-6 (2000), so long as the decedent could have maintained the action against the employer by satisfying the deliberate intention statutory criteria as this is the only method for vindicating the worker’s right to an action under the provisions of West Virginia Code § 23-4-2(c)(2005).
In reaching this decision, this Court is following the express statutory language of West Virginia Code § 23-4-2, which as the Supreme Court of Oregon found in Behurst, guides one to the wrongful death statute in those cases where an employee dies as a result of an employer’s deliberate intent-type conduct. Moreover, the wrongful death statute, West Virginia Code § 55-7-6, follows the laws of descent and distribution found in West Virginia Code § 42-1-1, et seq., (2004), for purposes of distributing any damages obtained by the filing of action by the employee’s estate.
IV. Conclusion
Based upon the foregoing, because we overrule that portion of the Savilla decision relied upon by the circuit court in granting summary judgment in favor of the employer, this Court reverses the circuit court’s grant of summary judgment and remands this case for further proceedings consistent with this opinion.
Reversed and Remanded.
. The Defendants included Eastern American Energy Corp., Kenneth Greathouse, Rodney Paxton, Dorothy Lewis, Dennis Lewis, The Jack Company, S.W. Jack Drilling Co., and Turner Excavating, Inc.; however, this appeal was filed only on behalf of S.W. Jack Drilling Co.
. The Appellant also alleged counts sounding in failure to train, negligent hiring, vicarious liability, joint venture, strict liability, and outrage.
. The Appellant filed an Amended Complaint with the Court on June 9, 2006, adding an additional Defendant, Turner Excavating, Inc., to the action, and omitting a named Defendant, Kermit Tyree Contracting, Inc., from the action. Subsequently, Kermit Tyree Contracting, Inc. and The Jack Company were dismissed from the action pursuant to an Agreed Orders voluntarily dismissing them entered on June 9, 2006, and July 12, 2006, respectively.
The circuit court, by Order entered August 24, 2006, granted the Plaintiff’s Motion to Amend and allowed the Plaintiff to file a Second Amended Complaint, wherein the Plaintiff added causes of action sounding in wrongful death, premises liability, and negligence on the part of the non-employer Defendants. The Plaintiff also omitted the outrage cause of action from the Complaint.
By Order entered August 15, 2006, the circuit court granted then Defendant, Eastern American Energy Corp.’s Motion to Dismiss the strict liability against it, and recognized the omission of the outrage claim from the Plaintiff’s Amended Complaint.
By Order entered September 15, 2006, the circuit court granted the Motion to Dismiss filed by the Defendants, Kenneth Greathouse, Rodney Paxton, and S.W. Jack Drilling Co., determining that the Plaintiff's causes of action for failure to train, negligent hiring, vicarious liability, joint venture, strict liability, and outrage, are outside the scope of the deliberate intention statute and could not be maintained against the employer Defendants because of immunity pursuant to West Virginia Code § 23-4-2.
As a result of a mediation of the case, which occurred on January 9, 2007, a settlement of the Plaintiff’s claims against the Defendants, Dorothy Lewis, Dennis Lewis, and Turner Excavating, Inc., was reached and those parties were dismissed from the action.
. The Appellant raised a second issue raised in this case arising out of the Appellant’s filing a claim for workers’ compensation benefits based upon being a dependent. The Appellant filed for dependents' benefits with the Workers’ Compensation Office of Claims Management on March 16, 2006. On August 11, 2006, the Office of Claims Management issued a decision denying the Appellant’s claim due to a determination that she was not a dependent of her son at the time of his death under the provisions of West Virginia Code § 23-4-10(d) (2005). The Appellant’s claim for dependent’s benefits was denied by the Workers’ Compensation Office of Claims Management and not appealed by the Appellant. Pursuant to the provisions of West Virginia Code § 23-5-1 (b) (2005), upon written notice of any decision a dependent may, within thirty days, file an objection with the office of judges appealing the decision. "Unless an objection is filed within the thirty-day period, the finding or action is final. This time limitation is a condition of the right to litigate the finding or action and hence jurisdictional.’’ Id. (Emphasis added).
Notwithstanding this statutory language, however, the Court’s ruling today allows the personal representative of a decedent’s estate, the Appellant in this case, to pursue a deliberate intention cause of action file on behalf of the decedent. Consequently, the issue of what effect a denial of dependent’s benefits has in this matter is now moot.
. West Virginia Code § 55-7-6 (2000) provides:
(a) Every such action shall be brought by and in the name of the personal representative of such deceased person who has been duly appointed in this state, or in any other state, territory or district of the United States, or in any foreign country, and the amount recovered in every such action shall be recovered by said personal representative and be distributed in accordance herewith. If the personal representative was duly appointed in another state, territory or district of the United States, or in any foreign country, such personal representative shall, at the time of filing of the complaint, post bond with a corporate surety thereon authorized to do business in this state, in the sum of one hundred dollars, conditioned that such personal representative shall pay all costs ad judged against him or her and that he or she shall comply with the provisions of this section. The circuit court may increase or decrease the amount of said bond, for good cause.
(b) In every such action for wrongful death, the jury, or in a case tried without a jury, the court, may award such damages as to it may seem fair and just, and, may direct in what proportions the damages shall be distributed to the surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents and any persons who were financially dependent upon the decedent at the time of his or her death or would otherwise be equitably entitled to share in such distribution after making provision for those expenditures, if any, specified in subdivision (2), subsection (c) of this section. If there are no such survivors, then the damages shall be distributed in accordance with the decedent’s will or, if there is no will, in accordance with the laws of descent and distribution as set forth in chapter forty-two of this code. If the jury renders only a general verdict on damages and does not provide for the distribution thereof, the court shall distribute the damages in accordance with the provisions of this subsection.
Id.
. Further, the Appellant posits that upholding Savilla also causes the legislative scheme set forth in West Virginia Code § 24-4-2 (2005) to violate the equal protection rights of heirs to the Estate of Andrew John Murphy. Thus, the Appellant argues that utilizing the rational basis test as the statute involves economic rights, the varying treatment of different groups or persons must be rationally related to a legitimate governmental purpose. Marcus v. Holley, 217 W.Va. 508, 523-24, 618 S.E.2d 517, 532-33 (2005)(citing U.S. Const. Amend. 14; W. Va. Const. Art. 3, § 10). The Appellant maintains that the beneficiaries of the Estate of Andrew John Murphy are not re ceiving the same benefits and protections as are the beneficiaries of a deceased person who has been wrongfully killed while not on the job, or who has been killed while on the job, but with a family or dependents.
Succinctly stated, while the Court, due to its decision today, does not have to resolve this particular argument, it is difficult to discern how this different treatment of the two groups is even rationally related to a legitimate governmental purpose, especially in light of a deliberate intention action falling outside the parameter of employer immunity.
Cynical observers might argue that a few irresponsible employers might even assign single employees with no dependents the unnecessarily dangerous duties in order to protect themselves from liability which might otherwise ensue.
. In Kilminster v. Day Management Corp., 323 Or. 618, 919 P.2d 474 (1996), the Supreme Court of Oregon had already determined that the Oregon deliberate intention statute, Oregon Revised Statute 656.156(2), removed the bar to an action by the personal representative of a deceased worker' against an employer for the worker’s wrongful death, if the personal representative claims that the death resulted from the employer's deliberate intention.
In Kilminster, the decedent's father was the personal representative of the decedent’s estate. Id. at 475. The Oregon Court rejected the argument that because a personal representative was not expressly named in the deliberate intention statute as have a right to bring an action, the personal representative was precluded from bringing the action. Id. at 480. The Oregon court found the argument "not well taken[,]” determining that "[(logically, the only party who can pursue that action, and thereby effectuate the substantive right afforded the deceased worker by ORS. 656.156(2), is the workers' personal representative.” 919 P.2d at 480.
. Oregon Revised Statute 656.156(2) provides:
(2) If injury or death results to a worker from the deliberate intention of the employer of the worker to produce such injury or death, the worker, the widow, widower, child or dependent of the worker may take under this chapter, and also have cause for action against the employer, as if such statutes had not been passed, for damages over the amount payable under those statutes.
Id.
. Oregon Revised Statute 30.020 provides, in relevant part:
1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent’s surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent’s domicile would be entitled to inherit the personal property of the decedent, and for the benefit of any stepchild or stepparent whether that stepchild or stepparent would be entitled to inherit the personal property of the decedent or not, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced by the personal representative ... or by a person for whose benefit the action may be brought under this section if that person is not the wrongdoer.
(2) In an action under this section damages may be awarded in an amount which:
(a) Includes reasonable charges necessarily incurred for doctors' services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent;
(b) Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent’s death;
(c) Justly, fairly and reasonably compensates for pecuniary loss to the decedent’s estate;
(d) Justly, fairly and reasonably compensates the decedent’s spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent; and
(e) Separately stated in finding or verdict, the punitive damages, if any, which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived.
Id.
. The decision reached today is consistent with prior decisions of this Court in which the personal representative of an decedent’s estate has pursued a deliberate intention cause of action. See Zelenka, 208 W.Va. at 243, 539 S.E.2d at 750(al-lowing non-dependent executrix of decedent’s estate to pursue deliberate intention claim); Michael v. Marion County Bd. of Educ., 198 W.Va. 523, 482 S.E.2d 140 (1996)(allowing decedent’s spouse to bring deliberate intent cause of action against employer individually and as representative of decedent's estate); Cline v. Jumacris Min. Co., 177 W.Va. 589, 355 S.E.2d 378 (1987)(al-lowing widow of employee to proceed in her own capacity as well as representative of employee's estate); see also Roney v. Gencorp, 431 F.Supp.2d 622 (S.D.W.Va.2006)(allowing executor of estate to pursue deliberate intention claim against employer). | [
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McHUGH, Justice:
Appellants Christopher Todd Zaeh and Ramona C. Goeke appeal from the May 27, 2008, order of the Circuit Court of Wirt County denying their motion to set aside a default judgment previously entered against them. As grounds for both the motion to set aside and the appeal, Appellants argue that the default judgment is a void order based on the absence of in personam jurisdiction. Appellee Leslie Equipment Company contends that the trial court did have personal jurisdiction over the nonresident Appellants based on the constructive service provisions of the West Virginia Rules of Civil Procedure. After a careful review of the applicable law and rules governing this issue, we conclude that the trial court committed error in refusing to set aside the default judgment for lack of in personam jurisdiction.
I. Factual and Procedural Background
On October 18, 2007, Leslie Equipment filed a complaint in the Circuit Court of Wirt County against Wood Resources Company, L.L.C., and Appellants, as officers of the company. Through the lawsuit, Leslie Equipment sought to recover an alleged debt arising from Wood Resources’ purchase of goods and services on credit. To serve process on Appellants, Leslie Equipment looked to Rule 4(e)(2) of the West Virginia Rules of Civil Procedure, which authorizes the use of constructive service on nonresident defendants by means of certified mail in certain instances.
When Appellants did not file a responsive pleading following notification of the lawsuit, Leslie Equipment moved for a default judgment on or about January 25, 2008. The trial court granted Leslie Equipment’s motion for a default judgment by order entered on February 1, 2008, finding Appellants jointly and severally liable for the amount of $22, 459.70.
When he attempted to schedule a hearing on a motion to dismiss the complaint for lack of in personam jurisdiction, Appellants’ counsel discovered that a default judgment had been entered against his clients. After obtaining a copy of the default judgment by means of facsimile, Appellants’ counsel filed a motion to set aside the default judgment and dismiss the action on grounds that the judgment was void for lack of personal jurisdiction. Following a hearing on this motion on May 12, 2008, the trial court denied the relief sought by Appellants. Through its order of May 27, 2008, the trial court ruled that: (1) Appellants had actual notice of the pendency of the legal action that resulted in the entry of a default judgment against them; (2) the manner in which service of process was effected under Rule 4(e)(2) is similarly authorized by West Virginia Code § 56-3-33 (2005); (3) the rules of civil procedure control where there is a conflict with statutory law; and (4) Appellants have failed to show good cause or excusable neglect entitling them to set aside the default judgment. Through this appeal, Appellants seek to reverse the trial court’s decision that the default judgment entered against them is a valid and enforceable judgment.
II. Standard of Review
We review a decision by a trial court to award a default judgment pursuant to an abuse of discretion standard. See Syl. Pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974). Where, however, “the issue on appeal from the circuit court is clearly a question of law ..., we apply a de novo standard of review.” Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). With these standards in mind, we proceed to consider whether the trial court committed error in refusing to vacate the default judgment at issue.
III. Discussion
A. In Personam Jurisdiction
The validity of any court ruling is dependent on two jurisdictional predicates: “To enable a court to hear and determine an action, suit or other proceeding it must have jurisdiction of the subject matter and jurisdiction of the parties; both are necessary and the absence of either is fatal to its jurisdiction.” Syl. Pt. 3, State ex rel. Smith v. Bosworth, 145 W.Va. 753, 117 S.E.2d 610 (1960). With regard to the need for personal jurisdiction over a nonresident defendant we have recognized:
The Due Process Clause of the Fourteenth Amendment to the United States Constitution operates to limit the jurisdiction of a state court to enter a judgment affecting the rights or interests of a nonresident defendant. This due process limitation requires a state court to have personal jurisdiction over the nonresident defendant.
Syl. Pt. 1, Pries v. Watt, 186 W.Va. 49, 410 S.E.2d 285 (1991). Consequently, a determination that the trial court lacked in person-am jurisdiction will render the default judgment at issue void and unenforceable. See Syl. Pt. 1, Schweppes U.S.A. Ltd. v. Kiger, 158 W.Va. 794, 214 S.E.2d 867 (1975) (holding that order rendered without personal and subject matter jurisdiction renders decree “utterly void”); see also Smith v. Smith, 140 W.Va. 298, 302-03, 83 S.E.2d 923, 925-26 (1954) (recognizing necessity of personal jurisdiction for judgments founded upon personal liability).
Appellants contend that the manner in which Leslie Equipment sought to effect service of process on them deprived the trial court of the necessary personal jurisdiction to enter an enforceable default judgment. Relying solely on the provisions of Rule 4 of the West Virginia Rules of Civil Procedure, Leslie Equipment had the clerk of the circuit court transmit the complaint and summons to the nonresident Appellants by means of certified mail. The pertinent provisions of Rule 4 provide for constructive service by means of “certified mail, return receipt requested, and delivery restricted to the addressee” “when plaintiff knows the residence of a nonresident defendant or the principal office of a nonresident defendant foreign corporation or business trust for which no officer, director, trustee, agent, or appointed or statutory agent or attorney in fact is found in the State....” W.Va.Code §§ 4(d)(1)(D); 4(e)(2).
While Rule 4 specifies the manner in which constructive service may be effected upon a nonresident defendant, Appellants assert that the rule does not address the issue of personal jurisdiction. In marked contrast to Rule 4, Appellants observe that West Virginia Code § 56-3-33 — our long-arm statute — expressly contemplates and mandates that when a nonresident or his duly authorized agent commits one or more of seven delineated acts the Secretary of State, by operation of law, becomes the nonresident’s attorney-in-fact. And, when lawful service is effected on the Secretary of State in connection with an action ai’ising from the nonresident’s commission of an act specified in West Virginia Code § 56-3-33, that service of process “shall be of the same legal force and validity as though such nonresident were personally served with a summons and complaint within this state.” Id.
In Lozinski v. Lozinski, 185 W.Va. 558, 408 S.E.2d 310 (1991), we recognized how the adoption of our long-arm statute was a legislative device by which the trial courts of this state could obtain personal jurisdiction over nonresident defendants within the bounds of due process. Accord Harman v. Pauley, 522 F.Supp. 1130, 1135 (S.D.W.Va.1981). After discussing how “West Virginia’s extraterritorial ‘reach’ of jurisdiction over nonresidents is obtained through what are commonly-referred to as ‘single-acts,’ ” we determined that the failure to pay child support was a qualifying tortious act for purposes of obtaining personal jurisdiction over a Florida resident via the West Virginia Secretary of State. Lozinski, 185 W.Va. at 561, 563, 408 S.E.2d at 313, 315. Articulating the import of West Virginia Code § 56-3-33, we stated: “The intent and benefit of any long-arm statute is to permit the secretary of state to accept process on behalf of a nonresident and to view such substituted acceptance as conferring personal jurisdiction over the nonresident.” Lozinski, 185 W.Va. at 563, 408 S.E.2d at 315 (emphasis supplied).
Proper exercise of jurisdiction over a nonresident defendant by a trial court exists when: “(1) a statute ... authorize^] service of process on the nonresident defendant, and (2) the service of process ... comport[s] with the Due Process Clause.” In re Celotex Corp., 124 F.3d 619, 627 (4th Cir.1997); see also Syl. Pt. 5, Abbott v. Owens-Corning Fiberglas Corp., 191 W.Va. 198, 444 S.E.2d 285 (1994) (adopting two-step approach for examining personal jurisdiction over nonresident: (1) whether defendant’s actions satisfy “our personal jurisdiction statutes” and (2) whether defendant’s contacts with West Virginia satisfy federal due process). Typically, the first step in determining whether a trial court validly exercised personal jurisdiction over a nonresident defendant involves applying the provisions of our long-arm statute— West Virginia Code § 56-3-33. See Easterling v. American Optical Corp., 207 W.Va. 123, 130, 529 S.E.2d 588, 595 (2000) (applying test adopted in Abbott, supra ).
Critical to this ease, however, is the fact that Leslie Equipment chose not to employ the provisions of West Virginia Code § 56-3-33 to obtain service of process on two nonresident defendants. Foregoing the Secretary of State’s substituted acceptance that is expressly authorized by the long-arm statute, Leslie Equipment opted to serve Appellants pursuant to the constructive service provisions of Rule 4. And, despite the absence of any authority, Leslie Equipment argues that personal jurisdiction can be obtained over a nonresident defendant through means of constructive service.
Characterizing Appellants’ position that compliance with the long-arm statute is necessary to establish personal jurisdiction over a nonresident defendant as a “technical argument,” Leslie Equipment contends that a trial court automatically obtains personal jurisdiction over a nonresident defendant when it complies with the constructive service provisions set forth in Rule 4. See W.Va. R.Civ.P. 4(e)(2). This contention lacks merit as the provisions of Rule 4 address service of process and not the underlying jurisdictional prerequisites necessary for a trial court’s exercise of jurisdiction. See 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1061 at p. 319 (3rd ed. 2002) (observing that “although valid service under Rule 4 provides appropriate notice to persons against whom claims are made, it does not ensure that the defendant is also within the in personam jurisdiction power of the ... court”); accord Insurance Corp. v. Compagnie des Bauxites, 456 U.S. 694, 715 n. 6, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (Powell, J., concurring) (stating that “Rule 4 deals expressly only with service of process, not with the underlying jurisdictional prerequisites”). Moreover, courts have uniformly rejected the argument that in personam jurisdiction can be obtained over a nonresident defendant by means of personal or constructive service. See Smith v. Smith, 140 W.Va. 298, 303-04, 83 S.E.2d 923, 926-27 (1954) (reasoning that because personal service of process on nonresident defendant has same effect as order of publication, in personam jurisdiction cannot be obtained in this manner); accord Honegger v. Coastal Fertilizer & Supply, Inc., 712 So.2d 1161, 1162 (Fla.2nd Dist.App.1998) (holding that constructive service was insufficient to confer requisite personal jurisdiction necessary to enforce judgment for monetary damages); Ford Motor Credit Co. v. Shaw, 108 F.R.D. 218, 220 (N.D.Ala.1985) (recognizing that valid personal judgment cannot be obtained against nonresident defendant upon constructive service of process).
As the Fourth Circuit recognized in Central Operating Company v. Utility Workers, 491 F.2d 245 (4th Cir.1974), “[u]nder West Virginia law, a judgment that' operates in personam cannot be rendered against a defendant upon whom only constructive service has been executed.” Id. at 251 (citing Fabian v. Kennedy, 333 F.Supp. 1001 (N.D.W.Va.1971)). In Fabian, the district court examined whether the West Virginia courts acquired personal jurisdiction over a nonresident defendant through delivery of process to the Florida residence of the defendant. In reaching its conclusion the trial court reasoned:
No statute or rule of the State of West Virginia, pursuant to Rule 4(e), Federal Rules of Civil Procedure, provides that in personam jurisdiction can be had over a non-resident served outside the state. Personal service of process on a non-resident of West Virginia outside the state has the same effect, and no other, as an order of publication.
Rule 4(f), West Virginia Rules of Civil Procedure, provides that personal service outside the state on a non-resident shall have the same effect as constructive service. It is held in Grant v. Swank, 74 W.Va. 93, 81 S.E. 967 [(1914)], that a personal decree against a non-resident defendant, not served otherwise than by publication, and not appearing to the proceeding, is erroneous.
333 F.Supp. at 1005 (some citations omitted). Based on the absence of either federal or state law (statute or rule) granting the trial court in personam jurisdiction by means of extraterritorial service, the court determined in Fabian that it lacked the necessary personal jurisdiction over the nonresident defendant. Id.
Leslie Equipment wrongly equates service of process with the trial court’s acquisition of the necessary personal jurisdiction over Appellants. The fact that service of process was effected on the nonresident defendant in Fabian was inconsequential. Of signifi canee in Fabian and in the case sub judice is whether the necessary in personam jurisdiction arose pursuant to a statute or rule. See 333 F.Supp. at 1005. As discussed above, the purpose of our long-arm statute’s adoption was to create a legal mechanism by which personal jurisdiction could be obtained over nonresident defendants in compliance with the minimum contacts analysis inherent to an individual’s rights of due process. Under West Virginia Code § 56-3-33, the acceptance by the Secretary of State of service of process as the attorney-in-fact for a nonresident defendant who has committed one of the enumerated statutory acts is the legal equivalent of personally serving that nonresident within this state. See W.Va.Code § 56-3-33. By statutory design, compliance with the service of process procedures set forth in West Virginia Code § 56-3-33 expressly authorizes the exercise of personal jurisdiction over nonresident defendants by the courts of this state.
In contrast to the legislative schema of West Virginia Code § 56-3-33, Rule 4 of the West Virginia Rules of Civil Procedure does not provide that constructive service on a nonresident defendant has the same force of law as personal service effected in state. As a result, in personam jurisdiction does not arise by operation of law when a nonresident defendant is constructively served with process pursuant to the provisions of Rule 4 of the West Virginia Rules of Civil Procedure.
Simply put, Leslie Equipment has not identified any West Virginia law under which constructive service of process on a nonresident defendant gives the trial courts of this state personal jurisdiction. By failing to avail itself of the statutory method that vests our trial courts with in personam jurisdiction over nonresident defendants, the constructive service effected upon Appellants led to a default judgment that is void and unenforceable as against Mr. Zaeh and Ms. Goeke. See Syl. Pt. 1, Kiger, 158 W.Va. 794, 214 S.E.2d 867. Because there is no conflict between the provisions of Rule 4 and West Virginia Code § 56-3-33, there is no basis for concluding, as did the trial court, that the provisions of Rule 4 supplant the provisions of the long-arm statute. See State v. Davis, 178 W.Va. 87, 90, 357 S.E.2d 769, 772 (1987), overruled on other grounds, State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994) (recognizing that court rules will supersede procedural statutes where they are in conflict). Thus, the trial court erred in concluding that it had personal jurisdiction over Appellants based on the constructive service effected pursuant to Rule 4.
B. Void Judgment
As this Court recognized in Evans v. Holt, 193 W.Va. 578, 457 S.E.2d 515 (1995), a movant seeking relief under Rule 60(b)(4) of the West Virginia Rules of Civil Procedure must show that the judgment sought to be vacated is void and that the motion to vacate the judgment was filed within a reasonable period of time. Id. at 587, 457 S.E.2d at 524. Because we have determined that the default judgment entered against Appellants was void for lack of personal jurisdiction, Appellants have only one other hurdle to meet in seeking relief under Rule 60(b)(4). They are required to establish that they sought to vacate the default judgment within a reasonable time. See Evans, 193 W.Va. at 587, 457 S.E.2d at 524. The record in this case indicates that Appellants’ motion to set aside the default judgment was filed with the trial court on March 27, 2008. That motion was filed within ten days of counsel’s discovery that a default judgment was entered against his clients on February 1,2008.
In Evans, we found a motion to set aside a void judgment to be timely filed when the filing occurred thirty days after the defendant received notice of the judgment and fourteen months after the judgment’s entry. See 193 W.Va. at 587, 457 S.E.2d at 524. Significantly less time transpired in this case than in Evans as Appellants moved to set aside the default judgment less than two months after its entry and only ten days after learning of the judgment. We would be hard pressed to rule against Appellants on the issue of whether they sought to vacate the default judgment within a reasonable period of time under the facts of this case. Accordingly, we determine that the trial court erred in refusing to set aside the default judgment as void under Rule 60(b)(4).
Based on the foregoing, the decision of the Circuit Court of Wirt County is reversed.
Reversed.
Justice DAVIS dissents in part and concurs in part and reserves the right to file a dissenting and/or concurring opinion.
Justice WORKMAN concurs and reserves the right to file a concurring opinion.
Justice KETCHUM concurs and reserves the right to file a concurring opinion.
. The default judgment at issue was entered by the trial court on February 1, 2008.
. See W.Va.R.Civ.P. 4(e)(2).
. Also named as a defendant in the suit was Wendell L. Koprek, the president of Wood Resources.
. Wood Resources is a foreign limited company not authorized to do business in this state.
. The record in this matter includes return receipt cards reflecting Mr. Zach’s acceptance of the complaint and summons on October 22, 2007, at his New Mexico residence. Seven days later, Mr. Zach accepted delivery at his residence for service of legal process intended for Ms. Goeke at her Iowa residence.
. By order entered in March 2008, Leslie Equipment obtained a summary judgment ruling against Wendell Koprek in connection with this same debt obligation. See supra note 3.
. This contact with the trial court was made on March 17 or 18, 2008.
. The certificate of service reflects that this motion was mailed to Leslie Equipment’s counsel on March 25, 2008.
. Appellants argue that Leslie Equipment did not fully comply with the provisions of Rule 4 because the certified mail was not delivery restricted as Mr. Zach signed for the process intended for Ms. Goeke. See supra note 5.
. Those acts are:
(1) Transacting any business in this state;
(2) Contracting to supply services or things in this state;
(3) Causing tortious injury by an act or omission in this state;
(4) Causing tortious injury in this state by an act or omission outside this state if he or she regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;
(5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when he or she might reasonably have expected such person to use, consume or be affected by the goods in this state: Provided, That he or she also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;
(6) Having an interest in, using or possessing real property in this state; or
(7) Contracting to insure any person, property or risk located within this state at the time of contracting.
W.Va.Code § 56-3-33(a).
. See supra note 10.
. Although we identified the relevant "personal jurisdiction" statutes in Abbott as W.Va. Code §§ 31-1-15 and 56-3-33, the former statute, which pertained to corporations, was repealed effective October 1, 2002. And, while the manner of serving foreign corporations is currently set forth in W.Va.Code § 31D-15-1510 (2009) as part of the West Virginia Business Corporation Act, W.Va.Code §§ 31D-1-101 to -17-1703 (2009), subsection f. specifically provides that this section is not the exclusive means of serving a foreign corporation. See W.Va.Code § 31D-15-1510(f); accord Vass v. Volvo Trucks North America, Inc., 304 F.Supp.2d 851, 854 n.1 (S.D.W.Va.2004).
. See supra note 12.
. Because Leslie Equipment opted not to follow the provisions for substituted service by the Secretary State set forth in West Virginia Code § 56-3-33, there is no need to examine either the application of our long-arm statute or the consequent minimum contacts analysis that typically follows. See Celotex, 124 F.3d at 627 (observing that "the West Virginia long-arm statute is coextensive with the full reach of due process").
. Leslie Equipment did utilize the Secretary of State to obtain service of process on Wood Resources. See W.Va.Code § 56-3-33.
. A copy of the summons was left with defendant's sixteen-year-old son at the Florida residence.
. Courts have repeatedly held that actual notice of the suit by a nonresident defendant has no bearing on the issue of personal jurisdiction. See, e.g., Buggs v. Ehrnschwender, 968 F.2d 1544, 1548 (2nd Cir.1992); Sieg v. Karnes, 693 F.2d 803, 807 (8th Cir.1982); Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225, 1227 (Fla.1986).
. Cf. W.Va.R.Civ.P. 4(f) (rendering personal service effected extraterritorially on West Virginia resident as equivalent of personal service effected in state).
. Our decision in this matter is limited to recognizing that the personal jurisdiction that arises by operation of law pursuant to the provisions of West Virginia Code § 56-3-33 does not similarly arise when constructive service is effected under Rule 4. Because Leslie Equipment sought to establish personal jurisdiction based on the constructive service provisions of Rule 4, there is no factual development in the record that would permit the minimum contacts analysis typically employed when the issue of personal jurisdiction is raised. See Pries, 186 W.Va. at 50, 410 S.E.2d at 286, syl. pts. 2, 3.
. See Schweppes, 158 W.Va. at 800, 214 S.E.2d at 871 (recognizing that strict compliance is generally required where manner of service of process is specified statutorily).
. See W.Va.R.Civ.Pro. 82 (recognizing that rules of procedure should not be construed to extend or limit jurisdiction).
. Because we determine in subsection B. of this opinion that Appellants timely moved to set aside the default judgment, they did not waive their right to asset the lack of personal jurisdiction.
. Appellants’ counsel discovered the default judgment on March 17, 2008. | [
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PER CURIAM:
The instant action is before this Court upon the appeal of Clifford Crum [hereinafter “Appellant”] from a December 10, 2007, order of the Circuit Court of Raleigh County denying a motion to amend filed by Appellants against Equity Inns, Inc. [hereinafter “Equity Inns”] and refusing to disturb its prior grant of summary judgment as to Equity Inns. Herein, Appellant alleges that the circuit court erred by granting summary judgment to Equity Inns, and by refusing to permit Appellant to amend his complaint against Equity Inns to assert claims for res ipsa loquitur and strict liability. Conversely, Equity Inns asserts that the circuit court properly granted it summary judgment and appropriately denied Appellant’s motion to amend his complaint as to Equity Inns. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons expressed below, the December 10, 2007, order of the Circuit Court of Raleigh County is affirmed.
I.
FACTUAL AND PROCEDURAL HISTORY
On July 7, 2004, Appellant, a mediator employed with Federal Mediation and Conciliation Service, suffered injuries when a thirty-three pound light fixture which had been attached to the ceiling fell on his head while he was mediating a case in a conference room at the Hampton Inn located in Beekley, West Virginia. Appellant filed the instant action in the Circuit Court of Raleigh County on March 31, 2005, alleging that he was injured as a result of John Doe’s negligence in failing to properly install the light fixture to the ceiling, Virginia Inn Management, Inc.’s [hereinafter “VIM”] negligence in failing to properly inspect and maintain its premises in a safe manner prior to the sale of the property, and Equity Inns’ negligence in failing to properly inspect and maintain the premises in a safe manner. Appellant also named Travelers Property and Casualty Insurance Company in the Complaint, asserting a claim for bad faith.
On May 5,2006, Equity Inns filed a Motion for Summary Judgment seeking dismissal of the only claim filed against it — a claim of negligence for failure to properly inspect and maintain its premises in a safe manner. In its Motion for Summary Judgment, Equity Inns provided the expert report of architect and planner, Mr. Francis A. Guffey, II, dated April 12, 2006, which opined that the subject light fixture fell because it was improperly installed with plastic wall expansion anchors and # 8 wood screws mounted in the five-eighths inch gypsum board ceiling only, rather than with one-half inch by three inch Tapcon Anchors that would have reached past the ceiling, through the furring space, and into the concrete deck above, as per the recommendation of Lithonia Lighting, the manufacturer of the light fixture. This defective light fixture was installed approximately two years before Equity Inns purchased and took possession of the building in 1994. Equity Inns also presented Mr. Guffey’s expert testimony wherein he opined that once the installation of the light fixture was complete, its defects were not capable of being observed or detected by anyone changing .the light bulbs or otherwise examining the fixture.
Thereafter, on May 11, 2006, Appellant filed a one-page Response in Opposition to Equity Inns’ Motion for Summary Judgment, asserting that Equity Inns’ motion was premature, as the proposed amended complaint raised a res ipsa loquitur claim and Appellant sought discovery as to the insurance policies and contracts between the parties to the sale and construction of the building, revealing who may be responsible for the condition which caused the light fixture to fall.. Appellant also filed a Motion to Amend Complaint and for Relief From Judgment Order Dismissing Virginia Inn Management of West Virginia on May 12, 2006, asserting that there were new facts discovered through Equity Inns’ expert which implicated VIM and other newly-identified parties, including Construction Concepts, Inc., who were formerly John Does. The proposed amended complaint contained additional claims for res ipsa loquitur and strict liability against all parties.
Equity Inns filed a Reply to Appellant’s Response in Opposition to its Motion for Summary Judgment on May 22, 2006, alleging that Appellant failed to meet his burden under Rule 56 of the West Virginia Rules of Civil Procedure of producing affidavits, depositions, or discovery demonstrating that a genuine issue of fact existed for trial, and failed to demonstrate adequate reasons why a continuance for further discovery was needed. Additionally, Equity Inns argued that the fact that Appellant had filed a motion to amend his complaint was not sufficient reason to deny summary judgment, as the motion to amend had not yet been granted. Thereafter, on June 1, 2006, Equity Inns filed a Response to Appellant’s Motion to Amend Complaint and for Relief From Judgment Order Dismissing Virginia Inn Management of West Virginia asserting that Appellant could not state a legitimate claim for res ipsa loquitur against Equity Inns because Appellant could not eliminate other responsible causes for the incident as required by our law in Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997), since the conduct of third persons was implicated by the evidence presented by Equity Inns. Equity Inns also asserted that Appellant could not state a legitimate claim against it based upon strict liability because the Restatement (Second) of Torts §§ 519-20 and West Virginia case law demonstrate, as a matter of law, that the operation of a hotel would not constitute an abnormally dangerous activity.
By Memorandum entered on July 27, 2006, and Order entered July 28, 2006, the circuit court granted Equity Inns’ Motion for Summary Judgment, finding that Appellant’s response to Equity Inns’ Motion for Summary Judgment failed to challenge the opinion of Equity Inns’ expert that the failure of the light fixture was due to a construction defect and not by Equity Inns’ insufficient or inadequate maintenance or inspection of the fixture. Thus, the circuit court found that Appellant produced no evidence, depositions, affidavits, admissions, or other materials which show that there is an issue of material fact that Appellant breached a duty owed to Appellant. Further, the circuit court found that although Appellant alleged that Equity Inns’ motion was premature because further discovery needed to be conducted, he failed to identify with reasonable specificity the facts to be discovered, or explain how the facts might show that there is a genuine issue of material fact that would defeat summary judgment or show why he had not already engaged in such discovery, as required by Elliott v. Schoolcraft, 213 W.Va. 69, 576 S.E.2d 796 (2002).
Additionally, the circuit court found that although Appellant alleged that Equity Inns’ motion was premature because a proposed amended complaint had been filed, this allegation was not sufficient to prevent summary judgment, as the possibility that Appellant may have been permitted to file an amended complaint is not recognized by Rule 56 of the West Virginia Rules of Civil Procedure as a basis upon which summary judgment should be refused. Furthermore, in assessing whether the motion to amend prevented summary judgment, the circuit court found that the proposed amended complaint did not state any allegations against Equity Inns that were not among the issues raised in the Motion for Summary Judgment, because the only factual allegations the Appellant made in the proposed amended complaint were the same as those previously stated-that Equity Inns failed to properly install the light fixture and that it was negligent in failing to properly inspect and maintain its premises in a safe manner. The circuit court ruled that Appellant could not present any evidence through its claim for res ipsa loquitur against Equity Inns that would raise an issue of fact preventing summary judgment.
Following those orders, on September 22, 2006, Appellant filed a Petition for Appeal with this Court claiming that it was error for the circuit court to deny his motion to amend his complaint, including his new claims of res ipsa loqiátur and strict liability; that it was error for the circuit court to deny him the right to proceed against VIM because his claims were not extinguished by the statute of repose; and that the circuit court erred in granting summary judgment to Equity Inns. However, subsequent to filing the Petition for Appeal, Appellant’s counsel located a deed indicating that the subject accident of July 7, 2004, occurred a few months short of ten years after the November 18, 1994, sale of the hotel to Equity Inns Partnership, L.P. Because the circuit court’s order denying Appellant’s Motion to Amend Complaint and for Relief from Judgment-Order Dismissing Virginia Inn Management, Inc. was grounded on the court’s mistaken belief that the subject incident occurred more than ten years after VIM sold the building and that the statute of repose under W. Va.Code 55-2-6(a) barred the cause of action, Appellant and VIM filed a Joint Motion to Remand the appeal to the Circuit Court of Raleigh County on December 6, 2006. On December 19, 2006, Equity Inns filed an Objection to the Motion for Remand as it relates to Appellant’s claim against Equity Inns, stating that the fact that the incident occurred just less than ten years after the sale of the hotel had no bearing on Appellant’s cause of action against Equity Inns, which owned and operated the hotel at the time of the incident. Because a joint Motion to Remand had been filed, on January 24, 2007, this Court granted Appellant and VIM’s motion and remanded the matter to the circuit court for further proceedings. No further action was taken on the appeal.
Thereafter, on February 26, 2007, Appellant filed a second Motion to Amend Complaint and for Relief from Judgment Order Dismissing Virginia Inn Management, Inc. before the circuit court, asserting that there were new facts discovered which implicated VIM, that other defendants which were previously named as John Does had been identified, and that the two-year statute of limitations had not yet expired at the time his original motion to amend was filed. Appellant’s newly proposed amended complaint was virtually identical to the amended complaint he had submitted to the circuit court on May 11, 2006, which the circuit court initially refused.
On March 12, 2007, Equity Inns filed a Response to Appellant’s motion alleging virtually the same arguments it previously made in response to the first motion to amend filed by Appellant. On March 19, 2007, Appellant filed a two-page reply which asserted that summary judgment was premature until the ease was completely developed and discovered pursuant to a time frame which allowed for liberal discovery and development of experts. In particular, Appellant contended that the sales contract which was requested before summary judgment was granted could not be found, but could possibly determine liability for the accident. Appellant also submitted an affidavit of counsel regarding the need for further discovery which alleged that Appellant still needed to take the deposition of Francis Guffey, to hire an expert to review Mr. Guffey’s report, to obtain sales receipts and warranties for the light fixture requested in previous discovery, and obtain contracts for the sale of the property which were also requested in previous discovery.
On October 31, 2007, a hearing was conducted before the circuit court where the parties discussed the issues of whether the summary judgment granted by the circuit coui’t in favor of Equity Inns regarding Appellant’s negligence claim should be set aside; and whether Appellant should be permitted to amend his complaint to state claims against Equity Inns based on the legal theories of res ipsa loquitur and strict liability although the circuit court had previously ruled that such claims could not be maintained. Following the hearing, the circuit court entered an order on December 10, 2007, that held that there was no reason to disturb its prior ruling which granted summary judgment to Equity Inns, and denied Appellant’s motion to amend his complaint as it related to Equity Inns. Specifically, the circuit court found that “[t]he amended complaint does not allege new allegations against [Equity Inns] that were not disposed of already in the ... grant of summary judgment.” It is from this order that Appellant now appeals.
II.
STANDARD OF REVIEW
Our review of the circuit court’s grant of summary judgment to Equity Inns is de novo. See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (“[a] circuit court’s entry of summary judgment is reviewed de novo.”). However, regarding the circuit court’s denial of Appellant’s motion to amend the complaint to assert claims for res ipsa loquitur and strict liability against Equity Inns, our standard of review is abuse of discretion. We have held that
“[a] trial court is vested with a sound discretion in granting or refusing leave to amend pleadings in civil actions. Leave to amend should freely be given when justice so requires, but the action of a trial court in refusing to grant leave to amend a pleading will not be regarded as reversible error in the absence of a showing of an abuse of the trial court’s discretion in ruling upon a motion for leave to amend.”
Syl. Pt. 6, Perdue v. S.J. Groves and Sons Co., 152 W.Va. 222, 161 S.E.2d 250 (1968). With these standards of review in mind, we proceed to consider the arguments of the parties.
III.
DISCUSSION
Herein, Appellant asserts two assignments of error. First, Appellant alleges that the circuit court erred by granting summary judgment to Equity Inns because discovery was still pending and a motion to amend his complaint had been filed. Second, Appellant alleges that the circuit court erred by refusing to permit Appellant to amend his complaint to assert claims for res ipsa loqioitur and strict liability against Equity Inns. We will address each of these arguments separately.
A. Summary Judgment
Rule 56(c) of the West Virginia Rules of Civil Procedure allows a Motion for Summary Judgment to be granted to the defendant if the pleadings, depositions, answers to interrogatories, and any admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the defendant is entitled to a judgment as a matter of law. See Angelucci v. Fairmont General Hosp., Inc., 217 W.Va. 364, 368, 618 S.E.2d 373, 377 (2005)(quoting Sly., Redden v. Comer, 200 W.Va. 209, 488 S.E.2d 484 (1997); Syl. Pt. 1, Wayne County Bank v. Hodges, 175 W.Va. 723, 338 S.E.2d 202 (1985)). “The essence of the inquiry the court must make is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Wilson v. Daily Gazette Co., 214 W.Va. 208, 588 S.E.2d 197 (2003)(quoting Williams v. Precision Coil, 194 W.Va. 52, 61, 459 S.E.2d 329, 338 (1995)). The dispute about a material fact is genuine only when a reasonable jury could render a verdict for the nonmoving party if the record at trial were identical to the record compiled in the summary judgment proceedings. Powderidge Unit Owners Ass’n v. Highland Properties, Ltd., 196 W.Va. 692, 698, 474 S.E.2d 872, 878 (1996).
In West Virginia, landowners and occupiers such as Equity Inns are not liable in negligence for injuries that occur to non-trespassing entrants of their land, unless such landowners or occupiers breach their duty of reasonable care under the circumstances. Mallet v. Pickens, 206 W.Va. 145, 155, 522 S.E.2d 436, 446 (1999). In order to establish a prima facie case of negligence in West Virginia, a plaintiff must show that a defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action will lie without a duty broken. Jack v. Fritts, 193 W.Va. 494, 497-498, 457 S.E.2d 431, 434-435 (1995)(quoting Syl. Pt. 1, Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703 (1981)).
In the ease sub judice, Equity Inns filed a Motion for Summary Judgment seeking dismissal with prejudice of the claim asserted in Appellant’s complaint that Equity Inns was negligent in failing to properly inspect and maintain its premises in a safe manner. In support of said motion, Equity Inns provided the expert report of architect and planner, Francis A. Guffey, II, which opined that the subject light fixture fell because it was improperly installed with plastic wall expansion anchors and # 8 wood screws mounted in the five-eighths inch gypsum board ceiling only, rather than with one-half inch by three inch Tapcon Anchors that would have reached past the ceiling, through the furring space, and into the concrete deck above, as per the recommendation of Lithonia Lighting, the manufacturer of the light fixture. This defective light fixture was installed approximately two years before Equity Inns purchased and took possession of the building in 1994. Significantly, Equity Inns also pre sented Mr. Guffey’s expert testimony wherein he opined that once the installation of the light fixture was complete, its defects were not capable of being observed or detected by anyone changing the light bulbs or otherwise examining the fixture.
Once Equity Inns filed a properly supported Motion for Summary Judgment, Appellant had the affirmative burden of producing affidavits, depositions, answers to interrogatories, and/or a response which set forth specific facts showing that a genuine issue for trial existed. However, Appellant failed to meet his burden to defeat summary judgment. In his one-page Response to Equity Inns’ Motion for Summary Judgment, Appellant argued that Equity Inns’ Motion for Summary Judgment was premature, as the proposed amended complaint raised a res ipsa loquitur claim and Appellant sought discovery as to the insurance policies and contracts between the parties to the sale and construction of the building, revealing who may be responsible for the condition which caused the light fixture to fall. However, Appellant failed to produce any evidence, depositions, affidavits, admissions, or other materials which show that there is an issue of material fact that Appellant breached a duty owed to Appellant, and failed to identify with reasonable specificity the facts that still needed to be discovered, or explain how the facts might show that there is a genuine issue of material fact that would defeat summary judgment. Rule 56 of the West Virginia Rules of Civil Procedure requires more than this.
Indeed, we have held that,
[i]f the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of material fact, the burden of production shifts to the non-moving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explain- • ing why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure.
Stonewall Jackson Memorial Hosp. Co. v. American United Life Ins. Co., 206 W.Va. 458, 466, 525 S.E.2d 649, 657 (1999). To meet its burden, the nonmoving party on a motion for summary judgment must offer more than a mere scintilla of evidence and must produce evidence sufficient for a reasonable jury to find in a non-moving party’s favor. The evidence illustrating the factual controversy cannot be conjectural or problematic. Williams v. Precision Coil, Inc., 194 W.Va. at 59, 459 S.E.2d at 336. The nonmoving party must also present evidence that contradicts the showing of the moving party by pointing to specific facts demonstrating that there is a trial-worthy issue which is not only a genuine issue but also is an issue that involves a material fact. Moreover, the non-moving party cannot create a genuine issue of material fact through mere speculation or building of one inference upon another. Id. at 60, 459 S.E.2d at 337. The party opposing a motion for summary judgment may not rest on allegations of his or her unsworn pleadings and must instead come forth with evidence of a genuine factual dispute. Mere allegations are insufficient in response to a motion for summary judgment to show that there is a genuine issue for trial. Powderidge Unit Owners Ass’n v. Highland Properties, Ltd., 196 W.Va. at 698 nn. 10, 11, 474 S.E.2d at 878 nn. 10, 11.
An opponent of a summary judgment motion requesting a continuance for further discovery need not follow the exact letter of Rule 56(f) of the West Virginia Rules of Civil Procedure in order to obtain it. Elliott v. Schoolcraft, 213 W.Va. at 73, 576 S.E.2d at 800. However, at a minimum, the party making an informal Rule 56(f) motion must satisfy four requirements. It should (1) articulate some plausible basis for the party’s belief that specified “discoverable” material facts likely exist which have not yet become accessible to the party; (2) demonstrate some realistic prospect that the material facts can be obtained within a reasonable additional time period; (3) demonstrate that the material facts will, if obtained, suffice to engender an issue both genuine and material; and (4) demonstrate good cause for failure to have conducted the discovery earlier. Id.
In assessing the merits of Appellant’s arguments herein, Appellant continues to make very loose, generalized assertions that summary judgment was granted prematurely because discovery was still pending and a motion to amend had been filed. As he did below, Appellant fails to identify with reasonable specificity any other facts to be discovered, or explain how the facts might show that there is a genuine issue of material fact that would defeat summary judgment or show why he had not already engaged in such discovery. The only specific argument Appellant makes is that summary judgment was granted prematurely because the written report of Equity Inns’ expert architect, Francis Guffey, leaves possible inferences and questions of fact that Equity Inns would be responsible for contribution to the accident wherein he stated:
“The furnished photos indicate a light frame that was to be anchored to the ceiling in four locations. The anchoring system used included plastic wall expansion anchors and #8 wood screws. The plastic anchor was mounted in the 5/8" gypsum board ceiling only. This is a totally improper method of anchoring this fixture, as the pullout resistance of the anchor is extremely low. This type of anchoring would not be apparent to anyone changing the light bulbs or otherwise examining the fixture.”
Appellant contends that an inference exists that if it was owned by Equity Inns for almost 10 years, they might have caused or hastened the process of the light fixture falling by changing the bulbs or cleaning the light fixture. However, this argument was never presented to the circuit court below. To the extent that is now attempting to make an argument that was not previously presented to the circuit court for consideration, we will not now entertain the same. See Mayhew v. Mayhew, 205 W.Va. 490, 506, 519 S.E.2d 188, 204 (1999)(“Our law is clear in holding that, as a general rule, we will not pass upon an issue raised for the first time on appeal.”); Kronjaeger v. Buckeye Union Ins. Co., 200 W.Va. 570, 585, 490 S.E.2d 657, 672 (1997); State v. Miller, 197 W.Va. 588, 597, 476 S.E.2d 535, 544 (1996)(“Indeed, if any principle is settled in this jurisdiction, it is that, absent the most extraordinary circumstances, legal theories not raised properly in the lower court cannot be broached for the first time on appeal.”).
When the circuit court ruled on Equity Inns’ Motion for Summary Judgment, there was no outstanding discovery as to Equity Inns. A review of the record reveals that Equity Inns had already provided Appellant with every document that was responsive to his requests that was in Equity Inns’ possession. In fact, Appellant had been given copies of Equity Inns’ insurance policies at the time summary judgment was granted, which revealed no information regarding whether Equity Inns was responsible for the condition that caused the subject light fixture to fall. Additionally, although the sales contract that Appellant requested had not been produced by Equity Inns because it was not in its possession, VIM subsequently provided this contract to Appellant on November 18, 2008. The sales agreement also does not appear to impute any liability to Equity Inns.
Additionally, the circuit court correctly held that the proposed amended complaint did not prevent summary judgment. The proposed amended complaint simply rehashed the same two issues, improper installation of the light fixture and improper inspection of its premises, and thus, there was nothing new presented that prevented summary judgment. In its order granting summary judgment to Equity Inns, the circuit court explained,
An examination of the proposed amended complaint discloses that it does not state any allegations against this defendant that were not among the issues raised in the Rule 56 motion. The only factual allegations in the amended complaint against the moving Defendant are that it (among
8.1 Liability of Purchaser. Except for any obligation expressly assumed or agreed to be assumed by the Purchaser hereunder, the Purchaser does not assume any obligation of the Seller or any liability for claims arising out of any occurrence prior to Closing. “all defendants”) failed to “properly install ... the fixture” and that Hampton (the moving defendant) was negligent “in failing to properly inspect and maintain its premises in a safe manner.
Both of these issues were disposed of in the consideration of the motion for summary judgment. There is no dispute that the moving Defendant did not participate in the installation of the fixture, and the Plaintiff presented no factual material in response to the Defendant’s expert report that points to any specific act or omission which could constitute the failure to maintain or inspect the light fixture in a way which could have disclosed the defect.
The circuit court also considered, but rejected, Appellant’s attempt to keep his case alive against Equity Inns by amending his complaint to rely upon the principle of res ipsa loquitur. The court’s analyzed the matter as follows:
Plaintiffs proposed amended complaint alleges in Count 13 that the moving Defendant is “liable to the plaintiff under the theory of Res Ipsa Loquitur since the light fixture was under the exclusive control and management of defendant Equity Inn.” Count 13 asserts the application of a legal principle as distinguished from the assertion of fact. As such, the Court is permitted to determine, as a legal issue, whether the reliance on res ipsa loquitur in Count 13 is sufficient to defeat the Rule 56 motion for summary judgment.
It is well established that the principle of res ipsa loquitur does not create a cause of action. It is, rather, an evidentiary principle that allows the trier of fact to infer negligence when three criteria are present: “1) the instrumentality which causes the injury must be under the exclusive control and management of the defendant; 2) the plaintiff must be without fault; and 3) the injury must be such that in the ordinary course of events it would not have happened had the one in control of the instrumentality used due care.”
The permissible inference is not a substitute for a factual basis upon which to find negligence. “In making general allegations of fault, stated without support, a party cannot avoid summary judgment merely because the doctrine of res ipsa loquitur is invoked. The plaintiff must still produce evidence to establish the existence of a genuine issue of material fact for a res ipsa loquitur case to survive.” Syl. Pt. 6, Bronx v. St. Jude’s Hosp. Clinic, 184 W.Va. 594, 402 S.E.2d 263 (1991).
We agree with the circuit court. Because the circuit court properly found that Appellant did not offer specific facts or evidence showing that there is a genuine issue remaining for trial, the circuit court’s grant of summary judgment to Equity Inns should be affirmed.
B. Motion to Amend Complaint
In his second assignment of error, Appellant maintains that the circuit court erred in refusing to allow Appellant to amend his complaint to assert claims for res ipsa loquitur and strict liability against Equity Inns. Upon thoroughly reviewing the arguments of the parties and the record before us, we find that the circuit court correctly refused to permit Appellant to amend the complaint.
Addressing Appellant’s claim for res ipsa loquitur first, Appellant alleges that “Defendant Equity Inn, Inc. d/b/a The Hampton Inn, and/or all other defendants are also liable to the plaintiff under the theory of Res Ipsa Loquitur since the light fixture in question was under the exclusive control and management of defendant Equity Inn, Inc. d/b/a The Hampton Inn, and/or all other defendants. Mr. Crum was entirely without fault and his injuries would not have happened in the ordinary course of events had the defendants in control used dire (sic) care.” However, pursuant to the evidentiary rule of res ipsa loquitur, it may only be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when: 1) the event is of a kind which ordinarily does not occur in the absence of negligence; 2) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence, and 3) the indicated negligence is within the scope of the defendant’s duty to the plaintiff. Syl. Pt. 3, Kyle v. Dana Transport, Inc., 220 W.Va. 714, 649 S.E.2d 287 (2007); Beatty v. Ford Motor Co., 212 W.Va. 471, 574 S.E.2d 803 (2002); Syl. Pt. 4, Foster v. City of Keyser, 202 W.Va. 1, 501 S.E.2d 165 (1997).
Herein, there is no question that Appellant cannot satisfy the second criteria necessary for the invocation of res ipsa loquitur, because other responsible causes, including the conduct of third persons, have not been sufficiently eliminated by the evidence. To the contrary, the conduct of third persons who incorrectly installed the light fixture has been implicated by the evidence to be the responsible cause for the subject incident. Appellant has also maintained that there are multiple parties who may have been responsible for his injury, including the builder’s, unknown decorators, and previous owners and managers. We held in Syl. Pt. 5, Kyle v. Dana Transport, Inc., 220 W.Va. 714, 649 S.E.2d 287, that
The doctrine of res ipsa loquitur cannot be invoked where the existence of negligence is wholly a matter of conjecture and the circumstances are not proved, but must themselves be presumed, or when it may be inferred that there was no negligence on the part of the defendant. The doctrine applies only in cases where defendant’s negligence is the only inference that can reasonably and legitimately be drawn from the circumstances.
Id. (quoting Syl. Pt. 5, Davidson’s, Inc. v. Scott, 149 W.Va. 470, 140 S.E.2d 807 (1965)).
Furthermore, regarding Appellant’s claim for strict liability against Equity Inns, we note that, for reasons unknown, Appellant did not initially address this claim in his response to Equity Inns’ Motion for Summary Judgment. Thus, this issue was not discussed or ruled upon by the circuit court below. However, even if the issue had been properly presented below, the circuit court would not have committed error in denying Appellant’s motion to amend as it pertains to this claim. Appellant’s proposed amended complaint alleges that “Defendant’s Equity Inn, Inc. and all others are strictly liable to the plaintiff because the situation he faced with the falling light fixture was inherently dangerous to plaintiff.” In his brief, Appellant herein alleges that “[t]he jury should be allowed to consider this ease and make all appropriate inferences. That is why we urge the unusual theory of strict liability on this Court as well. There must be some rational way for Mr. Crum to be compensated.” Appellant also alleges that Equity Inns “should be legally responsible for the incident. It occurred on their watch on their property.”
In Peneschi v. National Steel Corp., 170 W.Va. 511, 295 S.E.2d 1 (1982), we explicitly adopted into our common law the doctrine of strict liability for abnormally dangerous activity as articulated in the Restatement (Second) of Torts (1976). Restatement (Second) of Torts § 519 (1976) provides that: (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm; and 2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. Restatement (Second) of Torts § 520 (1976) states that in determining whether an activity is abnormally dangerous, six factors are to be balanced. The factors are:
a) existence of a high degree of risk of some harm to the person, land or chattels of others;
b) likelihood that the harm that results from it will be great;
c) inability to eliminate the risk by the exercise of reasonable care;
d) extent to which the activity is not a matter of common usage;
e) inappropriateness of the activity to the place where it is earned on; and
f) extent to which its value to the community is outweighed by its dangerous attributes.
Restatement (Second) of Torts, § 520.
In applying the doctrine of strict liability in prior eases, we have, for instance, ruled that the use of explosives in blasting operations, though necessary and lawfully used, being intrinsically dangerous and extraordinarily hazardous, renders the contractor liable for damages resulting to the property of another from such blasting, without negligence on the part of the contractor, whether the damage was caused by vibrations or by casting rocks or other debris on the complaining party’s property. Whitney v. Ralph Myers Contracting Corp., 146 W.Va. 130, 118 S.E.2d 622 (1961); Moore, Kelly & Reddish, Inc. v. Shannondale, Inc., 152 W.Va. 549, 165 S.E.2d 113 (1968); Perdue v. S.J. Groves & Sons Co., 152 W.Va. 222, 161 S.E.2d 250. We have also held that the sale and distribution of gasoline could be an abnormally dangerous activity and is subject to the Restatement (Second) of Torts test that is applicable to any other activity involving similar or greater danger to the public. Bowers v. Wurzburg, 207 W.Va. 28, 528 S.E.2d 475 (1999). We have never applied the doctrine of strict liability to hotels and hotel owners, and choose not to do so here.
Although Appellant urges this Court to “tread new waters” and hold hotels and their owners strictly liable for any injuries that occur on their premises, the Restatement (Second) of Torts § 519-20 and our prior ease law demonstrate that the operation of a hotel would not constitute an abnormally dangerous activity which would subject Equity Inns to strict liability for the injuries allegedly sustained by Appellant. Furthermore, we cannot simply disregard the requirement that a duty of care must in fact be breached before an owner and/or occupier of land can be held liable to a non-trespassing entrant. Mallet v. Pickens, 206 W.Va. at 155, 522 S.E.2d at 446. As we have previously cautioned,
Courts have traditionally recognized that, ‘[a] line must be drawn between the competing policy considerations of providing a remedy to everyone who is injured and of extending exposure to tort liability almost without limit. It is always tempting to impose new duties and, concomitantly, liabilities, regardless of the economic and social burden. Thus, the courts have generally recognized that public policy and social considerations, as well as foreseeability, are important factors in determining whether a duty will be held to exist in a particular situation.’
Id. at 156, 522 S.E.2d at 447 fn. 15.
Appellant contends that as a result of the circuit court’s rulings, he is now left with a meaningless ease and “an innocent victim is left without any remedy for an injury which was caused by others.” Appellant asserts that there is no one responsible to sue because he cannot locate Construction Concepts, one of the decorators, or obtain valid service or jurisdiction over Beekley Hotel Limited Partnership, the entity which sold the hotel to Equity Inns, because they withdrew from West Virginia. However, we find this argument wholly unconvincing. Although Construction Concepts, Inc. has moved from West Virginia and has not yet been located, this does not mean that Appellant’s counsel could not find the corporation with effort. Likewise, there is no evidence that service could not be accomplished upon Beekley Hotel Limited Partnership by delivering a copy of the summons and complaint to an officer, director or agent of the company or by publication, as permitted by Rule 4 of the West Virginia Rules of Civil Procedure. It appeal’s from the record that both of these entities formerly did business in West Virginia, thus the circuit court likely maintains personal jurisdiction over them.
Rule 56 is designed to provide a method of promptly and speedily disposing of the controversy if there is no triable issue of fact. Guthrie v. Northwestern Mut. Life. Ins. Co., 158 W.Va. 1, 8, 208 S.E.2d 60, 65 (1974) (citing Weather-Rite Sportswear Co. v. United States, 62 Cust.Ct. 373, 298 F.Supp. 508 (U.S.Cust.Ct.1969); 10 Charles Alan Wright and Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure, Section 2712, p. 370). Because the circuit court appropriately used summary judgment in this matter to discern that no genuine issue of material fact exists, there is no need for the Appellant to waste valuable judicial resources by continuing futile litigation against Equity Inns. Accordingly, we believe the circuit court correctly granted summary judgment and correctly refused to permit Appellant to amend his complaint against Equity Inns, and the order of the Circuit Court of Raleigh County is affirmed.
IY.
CONCLUSION
For the foregoing reasons, the December 10, 2007, order of the Circuit Court of Raleigh County is hereby affirmed.
Affirmed.
Justice WORKMAN dissents and reserves the right to file a dissenting opinion.
. Appellee Equity Inns has been dismissed from the instant action on summary judgment. However, this case is still currently pending before the circuit court as it pertains to the remaining defendants. Although Appellant attempts to raise collective issues in his brief regarding all defendants, this Court will only address those issues raised pertaining to Equity Inns.
. Appellee Beekley Hotel Limited Partnership and/or VIM contracted in or around 1992 with Construction Concepts, Inc. or Wright & Associates to construct the building that now operates as the Hampton Inn at 110 Harper Park Drive, Beekley, West Virginia. The architect on this project was W.R. Eades, Jr. It is believed that the subject light fixture was installed by Construction Concepts, Inc., Wright & Associates, other builders, or by decorators brought in by the original owner or manager of the building to provide lighting and interior decor in completion of the building. VIM contends that it provided accounting and managing services for the business until November 18, 1994, when Beekley Hotel Limited Partnership sold the building to Equity Inns. Equity Inns is the current owner of the subject property.
.VIM previously filed a Motion to Dismiss on May 11, 2005, which was granted by the circuit court on July 1, 2005, on the grounds that VIM, as a seller of real property, did not owe to a subsequent invitee of the purchaser a duty to inspect the premises prior to the sale. The circuit court found that the cause of action pled against VIM arose from VIM’s role as a vendor, not from its role as a builder. The court held that to succeed on such a tort claim, Appellant must allege that VIM, as a vendor of real property, breached a duty owed to the Appellant. For reasons more thoroughly stated below, VIM was subsequently brought back into the instant action, and currently remains a defendant in the' case.
. On January 9, 2006, Appellant filed a Motion for Leave to File Amended Complaint, seeking to add two additional counts against Equity Inns and John Doe for strict liability and res ipsa loquitur. This'motion was not addressed by the Court prior to Equity Inns’ Motion for Summary Judgment.
. For reasons unknown, Appellant’s Response in Opposition to Equity Inns’ Motion for Summary Judgment did not address the strict liability claim Appellant also sought against all parties.
. Additionally, by Memorandum dated July 28, 2006, and Order dated August 2, 2006, the circuit court denied Appellant’s Motion to Amend Complaint and for Relief from Judgment Order Dismissing Virginia Inn Management of West Virginia. Regarding Appellant’s motion to amend his complaint as to Equity Inns, the circuit court merely reiterated that the motion to amend was denied, and that the issue was addressed by the court when it ruled on Equity Inns’ Motion for Summary Judgment. As to Appellant’s request for relief from the judgment order dismissing VIM, the circuit court found that Appellant failed to adequately address this issue in its motion and present any argument that the criteria and requirements of Rule 60(b) apply to the present circumstances. Additionally, the court found that the statute of repose, W. Va.Code § 55-2-6(a), barred the cause of action stated in Appellant's proposed amended complaint against VIM because VIM sold the building to Equity Inns in 1994, more than ten years before the subject incident occurred. Accordingly, Appellant’s request for relief from the judgment dismissing VIM and Appellant’s request to amend the complaint as to VIM were denied. This belief by the court was subsequently determined to be in error.
. The circuit court granted Appellant's motion to amend as to all parties except Equity Inns.
. Although a copy of said contract could not be located within the record. Equity Inns represents that the sales contract states the following:
. Despite the fact that the strict liability claim was not raised or addressed by the circuit court below, Equity Inns has responded to Appellant’s arguments on appeal that the court erred in refusing to permit him to amend his complaint to assert a strict liability claim. Accordingly, we will address this argument.
. In his Reply brief, Appellant alleges, for the first time, that the common law of West Virginia makes an innkeeper responsible for injuries which occur to a guest. Shifflette v. Lilly, 130 W.Va. 297, 43 S.E.2d 289 (1947). While this may have conceivably been a plausible theory of recovery for Appellant to pursue against Equity Inns, such a claim was never asserted by Appellant below. To the extent that this issue is now being presented for the first time before this Court, we will not consider the same. | [
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PER CURIAM:
This case is before the Court upon the June 30, 2008, Order of the Circuit Court of Marshall County, West Virginia, wherein the circuit court granted Partial Summary Judgment to the Appellees, Richard Blake, Jr., and John T. Parker and determined that the Appellant, State Farm Mutual Automobile Insurance Company (hereinafter sometimes referred to as “State Farm”), was required to defend and indemnify Mr. Blake against property damage claims arising out of the loss of a trailer that were made by Mr. Parker. The Appellant asserts that the circuit court erred: 1) in refusing to apply the plain language of West Virginia Code § 17D-4-12(e) (2009), which specifies an insurer is not required to extend liability coverage to property “transported by” or “in charge of’ the insured; 2) in finding State Farm’s policy language, which likewise limits the extension of property damage liability coverage in accordance with the provisions of West Virginia Code § 17D-4-12(e), was ambiguous and internally inconsistent with other policy provisions; 3) in finding the insured had a reasonable expectation of property damage liability coverage for the loss of the trailer; and, 4) in finding State Farm had a duty to defend the suit brought by Mr. Parker. In opposition, the Appellees argue that the circuit court correctly determined that State Farm’s exclusionary policy language was ambiguous. Moreover, the Appellees maintain that assuming, arguendo, the State Farm exclusionary language is clear and unambiguous, the exclusionary language is void and unenforceable below the mandatory limits of property damage coverage required by West Virginia Code § 17D-4-12. Based upon the Court’s review of the briefs and arguments of the parties, the record, and all other matters before the Court, the Court finds that the circuit court’s determination regarding the subject language in the State Farm policy is eiToneous. Accordingly, the Court reverses the decision of the circuit court and remands the ease for entry of an order consistent with this opinion.
I. Procedural and Factual History
On March 31, 2005, the Appellee, Richard Blake, Jr., borrowed a 1999 Hudson trailer from his neighbor, the Appellee, John T. Parker. Mr. Blake attached the trailer to his vehicle, which was a 1997 Dodge Ram pickup truck. Mr. Blake was involved in a single vehicle accident while driving his truck, which also was towing Mr. Parker’s trailer. Both the truck and trailer were total losses.
At the time of the accident, Mr. Blake was insured by a State Farm policy of insurance, which provided property damage liability coverage in the amount of $25,000 per accident. It is undisputed that the policy did not provide comprehensive or collision coverage because Mr. Blake had declined to purchase these coverages.
The policy issued to Mr. Blake was on Form 9848.3 and was approved by the Office of the West Virginia Insurance Commissioner on July 1, 2001. The policy provided under Section 1 — Liability-Coverage A that State Farm will:
1. pay damages which an insured becomes legally liable to pay because of:
a. bodily injury to others, and
b. damage to or destruction of property including loss of its use, caused by accident resulting from the ownership, maintenance or use of your car, and
2. defend any suit against an insured for such damages with attorneys hired and paid by us. We will not defend any suit after we have paid the applicable limit of our liability for the accident which is the basis of the lawsuit.
The policy also provides property damage liability coverage for trailers as follows:
Trailer Coverage
The liability coverage extends to the ownership, maintenance or use, by an insured, of:
1. trailers designed to be pulled by a private passenger car or a utility vehicle____
The policy, however, contained the following provision under the caption “When Coverage A Does Not Apply,” which precludes the extension of liability coverage for damage to property as follows:
In addition to the limitations of coverage in Who Is an Insured and Trailer Coverage:
THERE IS NO COVERAGE:
4. FOR ANY DAMAGES TO PROPERTY OWNED BY, RENTED TO, IN THE CHARGE OF OR TRANSPORTED BY AN INSURED ....
Following the accident, Mr. Blake submitted a claim with State Farm seeking coverage for the loss to Mr. Parker’s trailer. Mr. Blake did not submit a claim for the damage to his vehicle. By letter dated April 11, 2005, State Farm denied coverage for Mr. Blake’s claim for the damages to Mr. Parker’s trailer.
On April 27, 2005, Mr. Parker filed suit against Mr. Blake in the Magistrate Court of Marshall County, West Virginia, seeking property damages for the value of his trailer. The lawsuit ultimately was dismissed when Mr. Blake confessed judgment on May 23, 2005, in the amount of $3,000, plus costs and interests. Mi’. Blake forwarded the confessed judgment to his State Farm agent and again requested that State Farm pay the judgment. State Farm did not alter its position that there was no coverage for Mr. Blake’s claim.
On March 16, 2006, Mr. Blake and Mr. Parker jointly filed the instant lawsuit against State Farm and Mr. Blake’s State Farm agent, Rosalyn Rhodes, alleging entitlement to property damage liability coverage for the loss of the trailer. Additionally, the Appellees asserted both first-party and third-party bad faith claims against State Farm. The Appellees subsequently filed a Motion for Partial Summary Judgment on the issue of whether State Farm had an obligation to provide coverage for the damage caused by Mr. Blake to Mi’. Parker’s trailer as a result of the March 31, 2005, accident. The circuit court granted the Appellees’ motion. It is this ruling that forms the basis for the instant appeal.
II. Standard of Review
State Farm argues that the circuit court erred in granting the Appellees’ Motion for Partial Summary Judgment. The Court’s standard of review of the circuit court’s entry of summary judgment is de novo. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Further, “[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
The instant appeal requires the Court to review the relevant terms of the State Farm insurance policy that is the subject of this litigation. Generally, “[djetermination of the proper coverage of an insurance contract when the facts are not in dispute is a question of law.” Syl. Pt. 1, Tennant v. Smallwood, 211 W.Va. 703, 568 S.E.2d 10 (2002). “[T]he interpretation of an insurance contract, including the question of whether the contract is ambiguous, is a legal determination which, like the court’s summary judgment, is reviewed de novo on appeal.” Dairyland Ins. Co. v. Fox, 209 W.Va. 598, 601, 550 S.E.2d 388, 391 (2001)(quoting Payne v. Weston, 195 W.Va. 502, 506-07, 466 S.E.2d 161, 165-66 (1995)). Keeping these standards in mind, the Court now examines the issues raised by the Appellant.
III. Discussion of Law
A.
The first issue is whether the policy language in the relevant State Farm policy comports with the provisions of West Virginia Code § 17D-4-12(e). The Appellant argues that the policy language it relied upon to deny coverage for the subject trailer was consistent with the provisions of West Virginia Code § 17D-4-12(e), while the Appellees assert that the policy language is ambiguous. Because these are two separate issues, we first address whether the relevant policy language complies with the provisions of West Virginia Code § 17D-4-12(e).
In defining and establishing the scope and provisions of the motor vehicle liability policy in the provisions West Virginia Code § 17D-4-12(e), the following salient statutory language is found:
(e) Such motor vehicle liability policy need not insure any liability under any workers’ compensation law nor any liability on account of bodily injury to or death of an employee of the insured while engaged in the employment, other than domestic, of the insured, or while engaged in the operation, maintenance or repair of any such vehicle nor any liability for damage to property owned by, rented to, in charge of or transported by the insured.
Id. (Emphasis added). Juxtaposed with this statutory provision is the State Farm policy language at issue, which provides that there is no coverage “FOR ANY DAMAGES TO PROPERTY OWNED BY, RENTED TO, IN THE CHARGE OF OR TRANSPORTED BY AN INSURED
In reviewing the statutory language as opposed to the State Farm policy language, it is undeniable that the State Farm policy language tracks the provisions of West Virginia Code § 17D-4-12(e) almost verbatim. Despite this fact, however, the circuit court found that “[t]he exclusionary language relied upon by State Farm is unenforceable because it is contrary to and more restrictive than the property damage liability coverage required by the State of West Virginia in the State’s Financial Responsibility Statute.” The circuit court’s finding is contrary to the plain and unambiguous language of West Virginia Code § 17D-4-12(e).
Moreover, the Appellees maintain that the exclusionary language is void and unenforceable below the mandatory limits of property damage coverage required by West Virginia Code § 17D-4-12. State Farm argues that to treat the very exception to the applicability of coverage set forth in West Virginia Code § 17D-4-12(e) as mere exclusionary language, which in some situations may necessitate the mandate of minimum levels of liability coverage, would be contrary to the plain language of West Virginia Code § 17D- 4-12(e) and the manifest intent of the Legislature. The Court agrees.
It is important that one of the purposes of the Motor Vehicle Safety Responsibility Law, West Virginia Code §§ 17D-1-1 to -6-7 (2009), is “ ‘to provide a minimum level of financial security to third-parties who might suffer bodily injury or property damage from negligent drivers.’ ” Dairyland Ins. Co. v. East, 188 W.Va. 581, 585, 425 S.E.2d 257, 261 (1992)(quoting Jones v. Motorists Mut. Ins. Co., 177 W.Va. 763, 766, 356 S.E.2d 634, 637 (1987)). As the Court of Appeals of Idaho concluded in McMinn v. Peterson, 116 Idaho 541, 777 P.2d 1214 (Id.Ct.App.1989), in analyzing language in the Idaho Code similar to that found here, “[t]he ‘in charge of,’ ... exclusion of automobile liability insurance, does not contravene any public policy of protecting innocent victims of negligent and financially irresponsible motorists so as to render such exclusion invalid.” Id. at 1217. Unquestionably, liability coverage would have been applicable in this case had the trailer that was attached to Mr. Blake’s vehicle caused personal injury or property damage to another while affixed to Mr. Blake’s vehicle. This event, however, did not occur. The loss that occurred in this case was not only outside the coverage provided by the State Farm policy, as the insured only purchased liability coverage and not comprehensive or collision coverage, but it is also outside the coverage that is mandated by the provisions of West Virginia Code § 17D-4-12(e).
B.
The next issue the Court must address is whether the State Farm policy language is ambiguous. The circuit court found:
The exclusionary clause relied on by State Farm is ambiguous on two separate levels. First, the policy language in and of itself is ambiguous in that the phrase “in the charge of’ is not defined and consequently there is no way to determine the scope of coverage available in numerous different circumstances, most notably in the ease at hand. Second, ambiguity arises in the context of the application and interaction between the general property damage liability coverage contained within Mr. Blake’s policy, the trailer coverage contained within that policy, and the exclusionary language upon which State Farm now relies.
The Appellant maintains that the State Farm policy contains a clear and unambiguous limitation of coverage for property “in the charge of’ or “transported by” the insured. Further, simply because these phrases are undefined does not create an ambiguity in the policy language, but merely requires a court to apply the plain, ordinary meaning to these phrases. Under a plain reading of the language, there is no ambiguity. The Appellees, however, assert that because the State Farm policy terms “in charge of’ and “transported by” are not defined in the relevant policy, the language is ambiguous. The Appellees also assert that State Farm’s interpretation of the exclusionary language at issue would negate any scenario in which property damage liability coverage for damage to a trailer used by an insured would be available and this, therefore, creates an ambiguity.
The Court has never required every term in an insurance policy, nor any contract for that matter, to be defined or else be found ambiguous. Rather, as the Court stated in Payne v. Weston, 195 W.Va. 502, 466 S.E.2d 161 (1995):
In West Virginia, insurance policies are controlled by the rules of construction that are applicable to contracts generally. We recognize the well-settled principle of law that this Court will apply, and not interpret, the plain and ordinary meaning of an insurance contract in the absence of ambiguity or some other compelling reason. Our primary concern is to give effect to the plain meaning of the policy and, in doing so, we construe all parts of the document together. We will not rewrite the terms of the policy; instead, we enforce it as written. Syllabus Point 1 of Russell v. State Automobile Mutual Insurance Company, 188 W.Va. 81, 422 S.E.2d 803 (1992), states: “ ‘Where the provisions of an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended.’ Syllabus, Keffer v. Prudential Ins. Co., 153 W.Va. 813, 172 S.E.2d 714 (1970).”
Payne, 195 W.Va. at 507, 466 S.E.2d at 166; see Syl. Pt. 3, Am. States Ins. Co. v. Tanner, 211 W.Va. 160, 563 S.E.2d 825 (2002). Thus, the overwhelming case law supports the established principle that “[language in an insurance policy should be given its plain, ordinary meaning.” Syl. Pt. 1, Soliva v. Shand, Morahan & Co., Inc., 176 W.Va. 430, 345 S.E.2d 33 (1986), overruled, in part, on other grounds by National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987).
As the Court opined in Payne, [t]he term “ambiguity” is defined as language “reasonably susceptible of two different meanings” or language “of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning [.]” Syl. pt. 1, in part, Shamblin v. Nationwide Mut. Ins. Co., 175 W.Va. 337, 332 S.E.2d 639 (1985). Only if the court makes the determination that the contract cannot be given a certain and definite legal meaning, and is therefore ambiguous, can a question of fact be submitted to the jury as to the meaning of the contract. It is only when the document has been found to be ambiguous that the determination of intent through extrinsic evidence become a question of fact. Where a provision of an insurance policy is ambiguous, it is construed against the drafter, especially when dealing with exceptions and words of limitation. See Syl. pt. 1, West Virginia Ins. Co. v. Lambert, 193 W.Va. 681, 458 S.E.2d 774 (1995).
195 W.Va. at 507, 466 S.E.2d at 166. “[A] court[, however,] should read policy provisions to avoid ambiguities and not torture the language to create them.” Id.
In reviewing the relevant State Farm policy language, the policy provides, in relevant part, that there is property damage liability coverage for trailers as follows: “The liability coverage extends to the ownership, maintenance or use, by an insured, of ... trailers designed to be pulled by a private passenger car or a utility vehicle____” The policy, however, contained the following provision precluding the extension of property damage liability coverage under the caption “When Coverage A Does Not Apply,” as follows:
In addition to the limitations of coverage in Who Is an Insured and Trailer Coverage:
THERE IS NO COVERAGE:
4. FOR ANY DAMAGES TO PROPERTY OWNED BY, RENTED TO, IN THE CHARGE OF OR TRANSPORTED BY AN INSURED....
The Court finds that the State Farm policy language initially extends property damage liability coverage and then places a limitation on the coverage extended. Even though the Appellees maintain that this creates an ambiguity in the policy language, the Court disagrees and finds the relevant policy language not only to be clear and unambiguous, but expressly allowed by the language of West Virginia Code § 17D-4-12(e).
Moreover, the Appellees’ contention that the use of the terms “in charge of’ and/or “transported by” is ambiguous does not create an ambiguity. This Court has held that “[t]he mere fact that parties do not agree to the construction of a contract does not render it ambiguous. The question as to whether a contract is ambiguous is a question of law to be determined by the court.” Syl. Pt. 1, Berkeley County Pub. Serv. Dist. v. Vitro Corp. of America, 152 W.Va. 252, 162 S.E.2d 189 (1968); accord Syl. Pt. 4, Pilling v. Nationwide Mut. Fire Ins. Co., 201 W.Va. 757, 500 S.E.2d 870 (1997).
Again, the Court determines, based upon its review of the salient policy language, that there is no ambiguity in the phrases “in charge of’ and/or “transported by.” Likewise, other jurisdictions have reached similar results after examining this same or similar policy language derived from similar statutory language. For instance, the phrase “to property owned by, rented to, in charge of or transported by the insured” was found by the Court of Appeal of Louisiana for the First Circuit to be clear and unambiguous, as well as in compliance with the Motor Vehicle Safety Responsibility Law of Louisiana. Allstate Ins. Co. v. Reid, 934 So.2d 56 (La.Ct.App.2005), writ denied, 942 So.2d 534 (La.2006). In reaching this decision, the Louisiana Court relied upon the decision reached by the Court of Appeal of Louisiana for the Fifth Circuit in State Farm Fire & Cas. Ins. Co. v. Delatte, 806 So.2d 806(2001), wherein the court opined:
Thus, if Delatte had injured another person by striking them or their property with the boat trailer at the time of the accident, the policy would provide liability coverage to him, although the injuries were caused by the trailer rather than by the insured vehicle. However, at issue in this ease is not damages caused by the trailer, but rather damages to property being transported by Delatte[.]
Reid, 934 So.2d at 61; see Babcock v. Farmers Ins. Exch., 299 Mont. 407, 999 P.2d 347 (2000) (finding no ambiguity in policy that contained express language that liability coverage was not applicable to property “in the charge of’ or “being transported by” insured); McMinn, 777 P.2d at 1216 (determining that trailer borrowed from friend and damaged when it broke loose from pick-up truck not covered because insured was “in charge of’ the trailer).
The Appellees place great weight on the decision reached by the Supreme Court of Montana in Grimsrud v. Hagel, 328 Mont. 142, 119 P.3d 47 (2005). While the issue before the court in Grimsnid was whether there was coverage for two snowmobiles that were being pulled by a trailer attached to the insured’s vehicle, it was noted in the case that State Farm paid the claim for damage to the trailer, which was not owned by the insured. Id. at 50. The Appellees posit that this payment by State Farm in Grimsrud of the coverage that the Appellees seek State Farm to pay in the instant ease somehow creates an ambiguity in the policy currently before the Court.
It is significant that there no support for the proposition that conduct creates an ambiguity in policy language as generally extrinsic evidence only comes into play after an ambiguity is found to exist. See Payne, 195 W.Va. at 507, 466 S.E.2d at 166 (“It is only when the document has been found to be ambiguous that the determination of intent through extrinsic evidence become a question of fact. Where a provision of an insurance policy is ambiguous, it is construed against the drafter, especially when dealing with exceptions and words of limitation. See Syl. pt. 1, West Virginia Ins. Co. v. Lambert, 193 W.Va. 681, 458 S.E.2d 774 (1995).”).
Further, notwithstanding the passing statement by the Montana court regarding the trailer damage being part of the property damage coverage, the Montana court upheld the lack of coverage for the snowmobiles under essentially the same policy and statutory language that is now before the Court. The court in Grimsrud ultimately held as follows:
That transported property is excluded from the mandatory coverage provided to an insured is not inconsistent with the purpose and intent of the MPLA____ It was Grimsrud and Wentz, who knowingly entrusted their snowmobiles to Hagel’s driving, for whom the MLPA does not mandate coverage. They opted to take the risk, at least to the amount of the loss not within them personal coverage, when they entrusted their friend with the care of their property. We conclude that an exclusion from motor vehicle liability insurance coverage that meets the requirements of § 61-6-103(5), MCA, is not invalid....
State Farm denied coverage to its insured, Hagel, for property transported by him pursuant to a valid exclusion in its policy.
Grimsrud, 119 P.3d at 52.
Similarly, in the instant case, it was Mr. Parker who entrusted his trailer to Mr. Blake’s driving. Mr. Parker took the risk and could have verified either under his own insurance policy or Mr. Blake’s insurance policy whether he would have had coverage for any accident that might occur involving his trailer prior to letting Mr. Blake borrow it. In other words, unlike the unsuspecting third party involved in an accident who can not arrange for the possibility of the accident before it occurs and make sui’e that coverage for such accident was in place, Mr. Blake and Mr. Parker had the opportunity to provide for such an occurrence and did not.
IV. Conclusion
Based upon the foregoing, the decision of the Circuit Court of Marshall County, West Virginia, is hereby reversed and this case is remanded to that court for entry of an Order consistent with this Opinion.
Reversed and remanded.
. The claim was made by Mr. Blake through his agent, Rosalyn E. Rhodes.
. According to the Appellees’ Complaint, Mr. Blake assigned to Mr. Parker
any and all claims for damages possessed by Mr. Blake against his insurer, State Farm, and his agent, Rosalyn Rhodes, for damages caused by their violation of the provisions of the West Virginia Unfair Claims Settlement Practices Act and the regulations promulgated by the Office of the West Virginia Insurance Commissioner pursuant to said Act.
.The Circuit Court of Marshall County, West Virginia, dismissed the third-party bad faith claim by Order entered on April 23, 2007.
. West Virginia Code § 17D-4-12(b)(2) requires a minimum of $20,000 per person, $40,000 per accident in bodily injury liability coverage, and $10,000 per accident in property damage liability coverage. Id.
. See, e.g., Imgrund v. Yarborough, 199 W.Va. 187, 483 S.E.2d 533 (1997)(upholding "owned but not insured” exclusion to uninsured coverage above mandatory limits of uninsured motorist coverage required by statute); Ward v. Baker, 188 W.Va. 569, 425 S.E.2d 245 (1992)(upholding named driver exclusionary insurance policy language, but requiring insurer to provide minimum mandatory limits set forth in West Virginia Code § 17D-4-12).
. As ancillary matters, the circuit court also erred in its determinations that the Appellees had reasonable expectations of coverage and that State Farm had a duty to defend Mr. Blake in the Magistrate Court action. First, regarding reasonable expectations of coverage, as the Court most recently stated in Blankenship v. City of Charleston, 223 W.Va. 822, 679 S.E.2d 654 (2009),
[w]here an insurance policy is clear and unambiguous, "[t]he court is bound to adhere to the insurance contract as the authentic expression of the intention of the parties, and it must be enforced as made where its language is plain and certain.” Keffer v. Prudential Insurance Company of America, 153 W.Va. 813, 816, 172 S.E.2d 714, 716 (1970). ”[T]he court cannot make a new contract for the parties where they themselves have employed express and unambiguous words.” Id. Consequently, it is unnecessary to consider any argument raised regarding the reasonable expectation of coverage based on extrinsic evidence of intent of the parties, such as the application for insurance. As we explained in National Mutual Insurance Co. v. McMahon & Sons, Inc., "[i]n West Virginia, the doctrine of reasonable expectations is limited to those instances ... in which the policy language is ambiguous.” 177 W.Va. at 742, 356 S.E.2d at 496.
Blankenship, 223 W.Va. at 825, 679 S.E.2d at 657. Because the Court determines that there is no ambiguity in the State Farm policy language at issue, there can be no reasonable expectation of insurance coverage.
Further, given the Court’s determination that there was no coverage for the trailer under the State Farm policy, then State Farm had no duty to defend Mr. Blake in the action brought by Mr. Parker. Id. (determining that ”[b]ecause the policy did not extend insurance coverage to the type of project giving rise to the injuiy in question,” lower court correctly found no duty to defend or indemnify). | [
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DAVIS, Justice:
The appellant herein and petitioner below, Corporal Randy D. Burgess (hereinafter “Corporal Burgess”), appeals from an order entered March 21, 2008, by the Circuit Court of Raleigh County. By that order, the circuit court affirmed an earlier decision of the Raleigh County Deputy Sheriff Civil Service Commission (hereinafter “the Commission”). The Commission had upheld the disciplinary action taken against Corporal Burgess by his employer, the appellee herein and respondent below, the Sheriff of Raleigh County, Daniel W. Moore (hereinafter “Sheriff Moore”). Sheriff Moore had disciplined Corporal Burgess by demoting him to the rank of Deputy and reducing his pay in accordance with such demotion following (1) Corporal Burgess’s negative reaction to his superiors’ decision to refuse his request to take June 2, 2006, off from work as a vacation day and (2) his failure to report to work on June 2, 2006. On appeal to this Court, Corporal Burgess assigns as error (1) the failure to provide him with a predisciplinary hearing in violation of W. Va.Code § 7-14C-3 (1995) (Repl. Vol. 2006) after he had requested such a hearing and (2) the finding that his actions amounted to actionable misconduct and, if punishment was warranted, the failure to impose progressive, less punitive discipline. Upon a review of the parties’ arguments, the record presented for appellate consideration, and the pertinent authorities, we find that it was error to deny Corporal Burgess a predisciplinary hearing after he had requested such a hearing and, accordingly, reverse the decision of the Raleigh County Circuit Court finding no such error had been committed. We further remand this ease to the circuit court to afford Corporal Burgess a prediseiplinary hearing.
I.
FACTUAL AND PROCEDURAL HISTORY
The events giving rise to the instant proceeding are generally not disputed by the parties. Corporal Burgess works within the Court Security Division (hereinafter “the Division”) of the Raleigh County Sheriffs Department. The Division provides security for the Raleigh County Courthouse and the Raleigh County Judicial Annex (hereinafter “Judicial Annex”) and transports incarcerated individuals to and from court hearings. Captain Charles Darlington is the Division’s supervisor; Lieutenant Mitchell “Skee” Barley (hereinafter “Lieutenant Barley”) is next in command; and Sergeant James Byrd Miller (hereinafter “Sergeant Miller”) reports directly to Lieutenant Barley. Sergeant Miller’s job duties include processing vacation requests submitted by the Division’s employees and prepai’ing monthly work schedules for the Division. Lieutenant Barley oversees the approval and denial of employees’ requests for time off from work.
Pursuant to administrative policies of the Raleigh County Sheriffs Department, which are observed by the Division, employees are required to submit requests for time off from work for vacation leave thirty days in advance of the requested day(s) off. Despite the existence of this policy, it is not rigidly enforced, and requests may be submitted less than thirty days before the requested day(s) off. In preparation of the Division’s June 2006 work schedule, Sergeant Miller sent an e-mail message to Division employees asking them to submit their requests for days off during the month of June; such requests were inquired to be submitted by May 26, 2006. Pursuant to this e-mail, Corporal Burgess submitted a request for one holiday day off on June 2, 2006, and ten vacation days off from June 5, 2006, through June 16, 2006. Because other employees had also requested June 2, 2006, off from work; because June 2, 2006, was not a holiday; and because several court hearings had been scheduled for June 2, 2006, Corporal Burgess’s request for June 2, 2006, off from work was denied. However, Corporal Burgess’s request to use vacation days from June 5, 2006, through June 16, 2006, was approved. The parties dispute when Corporal Burgess received the paperwork indicating the partial approval and partial denial of his leave request and also disagree as to when Corporal Burgess received the Division’s June 2006 work schedule, which Sergeant Miller e-mailed to Division employees on May 30, 2006.
On June 1, 2006, Corporal Burgess’s assigned post was at the doors of the Judicial Annex; because his request for vacation leave had not been granted, Corporal Burgess was also assigned to this post on June 2, 2006. During the afternoon of June 1st, Sergeant Miller passed through the doors where Corporal Burgess was posted; upon seeing Corporal Burgess, Sergeant Miller reminded him to be on time for work on June 2nd because several court hearings were scheduled for that day. Corporal Burgess responded that he was not working on June 2nd because he had requested that day off, indicating that he had not received notice that his request for that day off from work had been denied and further suggesting that he had not yet seen the June 2006 work schedule that had listed him as working on that day. Sergeant Miller directed Corporal Burgess to report for work on June 2nd, and Corporal Burgess reiterated that he did not plan to report to work that day. The conversation between Corporal Burgess and Sergeant Miller became somewhat heated, and, during this exchange, Corporal Burgess used profanity. Corporal Burgess later explained that the use of profanity was common among Division employees and particularly in speaking with Sergeant Miller with whom he had been friends since childhood. Other Division employees who witnessed this interaction reported that they did hot know whether members of the public had, in fact, overheard the conversation, and that they felt that Corporal Burgess had been disrespectful of and insubordinate to Sergeant Miller.
Following this exchange, Sergeant Miller called Lieutenant Barley who, in turn, called Corporal Burgess. During this conversation, Lieutenant Barley directed Corporal Burgess to report to work on June 2nd to which Corporal Burgess again stated that he did not plan to report to work that day and would, if not granted vacation time off, use sick leave instead. Approximately one-half hour after his shift ended -on June 1st, Corporal Burgess called in sick in anticipation of his absence from work on June 2nd. Corporal Burgess claims that he needed to be off from work on June 2nd in order to take his pregnant wife to a doctor’s appointment in Charleston, West Virginia; it does not appear, though, that Corporal Burgess ever communicated this fact to either Sergeant Miller or to Lieutenant Barley when he spoke with them on June 1st or when he later called in sick in anticipation of his June 2nd absence from work.
As a result of the manner in which Corporal Burgess communicated with Sergeant Miller and Lieutenant Barley on June 1, 2006, and in light of Corporal Burgess’s failure to report for work on June 2, 2006, Lieutenant Barley, on June 7, 2006, filed a formal complaint with Sheriff Moore charging Corporal Burgess with “gross insubordination” and “conduct unbecoming of an officer and member of the department.” Following the filing of the complaint, Sheriff Moore met with Corporal Burgess on June 19, 2006, at which time, Corporal Burgess claims to have requested a prediseiplinary hearing. After this meeting, an internal investigation was conducted, which substantiated Corporal Burgess’s misconduct. As a result of the investigation, Sheriff Moore, by letter dated August 3, 2006, demoted Corporal Burgess to the rank of Deputy and reduced his pay in accordance with such demotion. Thereafter, on August 10, 2006, Corporal Burgess filed an answer and objection to his discipline with the Raleigh County Deputy Sheriff Civil Service Commission (Commission). Following its September 19, 2006, hearing, the Commission issued an order upholding the discipline imposed by Sheriff Moore.
Corporal Burgess then appealed the Commission’s decision to the Circuit Court of Raleigh County. By order entered March 21, 2008, the circuit court also affirmed the disciplinary action taken against Corporal Burgess. It is from this adverse decision that Corporal Burgess appeals to this Court.
II.
STANDARD OF REVIEW
On appeal to this Court, Corporal Burgess asks us to review a decision of the Circuit Court of Raleigh County that, in turn, affirmed a decision rendered by the Raleigh County Deputy Sheriff Civil Service Commission. We previously have held that “[a] final order of a deputy sheriffs’ civil service commission, based upon findings not supported by the evidence, upon findings contrary to the evidence, or upon a mistake of law, will be reversed and set aside by this Court upon review.” Syl. pt. 1, Mangum v. Lambert, 183 W.Va. 184, 394 S.E.2d 879 (1990). Furthermore,
[a]n appellate court may reverse a decision of the Civil Service Commission for Deputy Sheriffs, W. Va.Code § 7-14-1 (1991), et seq., as clearly wrong or arbitrary or capricious only if the Commission used a misapplication of the law, entirely failed to consider an important aspect of the problem, offered an explanation that ran counter to the evidence before the Commission, or offered an explanation that was so implausible that it could not be ascribed to a difference in view or the product of Commission expertise.
Syl. pt. 3, Messer v. Hannah, 222 W.Va. 553, 668 S.E.2d 182 (2008). Our review of the issues in the case sub judice will be governed by these standards.
III.
DISCUSSION
Corporal Burgess assigns two errors in his appeal to this Court: (1) he was denied a predisciplinary hearing in violation of W. Va. Code § 7-14C-3 (1995) (Repl. Vol. 2006) after he had requested such a hearing and (2) his actions did not amount to actionable misconduct and, if they did, he was entitled to progressive, less punitive discipline.
A. Predisciplinary Hearing
For his first assignment of error, Corporal Burgess contends that both the Commission and the circuit court erred by upholding the Sheriffs decision to discipline him when he was not afforded a predisciplinary hearing, as required by W. Va.Code § 7-14C-3, after he had requested such a hearing. In its order following its September 19, 2006, hearing, the Commission concluded that Corporal Burgess was not entitled to a predisciplinary hearing before a hearing board because discipline of the enumerated types, i.e., reduction in rank and pay, had been taken against him, citing W. Va.Code § 7-14C-3(b), and, thus, he was entitled only to a hearing before the Commission. The Commission further explained that
[t]he provisions of law providing for a hearing before a hearing board also provide that either the aggrieved deputy or the sheriff may appeal the ruling of the hearing board to the Deputy Sheriff Civil Service Commission West Virginia Revised Code § 7-UC-5. It is therefore clear that the intention of the statute is to provide immediate access to a deputy against whom the punitive action is discharge, suspension or reduction in rank or pay rather than forcing the aggrieved deputy to go through the preliminary process of a hearing before the hearing board. Effectively the intention of the statute is to provide an opportunity for prompt hearing before the administrative panel i.e. the Deputy Sheriff Civil Service Commission directly and such provision of law is designed to protect the interests of the deputy sheriffs.
Similarly, the circuit court, by order entered March 21, 2008, observed that
[Corporal] Burgess contends that Sheriff Moore did not grant his request for a hearing board [hearing] as contemplated under West Virginia Code Section 7-14C-3....
In the present case, the [Corporal] was notified of the results of the investigation and of the proposed action by the Sheriff and the [Corporal] was given, according to the record, appropriate opportunity to reply to the Sheriff’s findings and then he subsequently demanded a review. That review was done before the Raleigh County Deputy Sheriff Civil Service Commission and was conducted under West Virginia Code Section 7-14-17.
The Court FINDS in this matter that the Department conducted an adequate predetermination hearing, granting unto the officer the right to respond to the Sheriff’s findings and proposed action. The Court further FINDS that that process essentially granted to Deputy Burgess the rights which he claims under West Virginia Code Section 7-14[C]-3 and that the procedure used by the Sheriff of Raleigh County in this procedure was in fact constitutionally adequate.
(Emphasis in original).
Before this Court, Corporal Burgess contends that although he requested a predisciplinary hearing when he met with Sheriff Moore, no such hearing was provided before he was demoted to the rank of Deputy. Because Sheriff Moore failed to comply with the statutory procedures in this regard, i.e., W. Va.Code § 7-14C-3 (1995) (Repl. Vol. 2006), Corporal Burgess argues that the Sheriffs disciplinary actions are void and he should be reinstated to the rank of Corporal. Corporal Burgess concedes that immediate disciplinary action may be taken under W. Va.Code § 7-14C-2(e) (1995) (Repl. Vol. 2006) if a deputy reports for work while under the influence of alcohol, a controlled substance, or a mental or emotional disorder, but that this statute does not apply to the facts of this case. Rather, Corporal Burgess suggests that W. Va.Code § 7-14C-3(b) requires that he be provided the predisciplinary hearing he requested:
The hearing shall be conducted by the hearing board of the deputy sheriff except that in the event the recommended punitive action is discharge, suspension or reduction in rank or pay, and the action has been taken, the hearing shall be pursuant to the provisions of section seventeen, article fourteen of this chapter, if applicable. Both the sheriff and the deputy sheriff shall be given ample opportunity to present evidence and argument with respect to the issues involved.
Corporal Burgess further urges the Court to adopt the reasoning it used in reviewing an analogous statutory provision in Alden v. Harpers Ferry Police Civil Service Commission, 209 W.Va. 83, 543 S.E.2d 364 (2001):
W. Va.Code § 8-14A-3(b) (1997) (Repl. Vol. 1998) requires that, before a civil service officer may be disciplined through discharge, suspension, or reduction in rank or pay, he/she must be afforded a predisciplinary hearing before a hearing board unless there exist exigent circumstances that require the recommended disciplinary action to precede such hearing. To the extent our prior decision in the Syllabus of City of Huntington v. Black, 187 W.Va. 675, 421 S.E.2d 58 (1992), is inconsistent with this holding, it is hereby expressly modified.
Syl. pt. 4, Alden, 209 W.Va. 83, 543 S.E.2d 364.
Sheriff Moore responds that W. Va.Code § 7-14C-3(b) authorizes him to discipline deputy sheriffs without first affording them a predisciplinary hearing. This section specifically directs that if “the recommended punitive action is ... reduction in rank or pay, and the action has been taken,” the hearing should be conducted in accordance with W. Va.Code § 7-14-17 (1996) (Repl. Vol. 2006). Sheriff Moore further represents that W. Va.Code § 7-14-17 requires that a written statement of the reasons for the disciplinary action be provided to the aggrieved deputy and that a hearing before the civil service commission be provided, if such a hearing is requested. In this case, Sheriff Moore states that he provided Corporal Burgess with a written statement of the reasons for his disciplinary actions and that Corporal Burgess had the hearing before the Deputy Sheriff Civil Service Commission that he had requested.
With respect to W. Va.Code § 7-14C-3(b), Sheriff Moore suggests that the exception language contained therein should be construed as excepting from the predisciplinary hearing requirements those cases, such as the instant proceeding, that involve designated types of disciplinary actions such as the “reduction in rank or pay” imposed upon Corporal Burgess.
At issue in this case is the meaning of the statutory language set forth in W. Va.Code § 7-14C-3 (1995) (Repl. Vol. 2006) and whether this statute requires a predisciplinary hearing be afforded to a deputy sheriff who requests such a hearing. In full, this section provides
(a) If the investigation or interrogation of a deputy sheriff results in the recommendation of some punitive action, then, before taking punitive action the sheriff shall give notice to the deputy sheriff that he or she is entitled to a hearing on the issues by a hearing board. The notice shall state the time and place of the hearing and the issues involved and be delivered to the deputy sheriff not less than ten days prior to the hearing. An official record, including testimony and exhibits, shall be kept of the hearing.
(b) The hearing shall be conducted by the hearing board of the deputy sheriff except that in the event the recommended punitive action is discharge, suspension or reduction in rank or pay, and the action has been taken, the hearing shall be pursuant to the provisions of section seventeen [§ 7-14-17], article fourteen of this chapter, if applicable. Both the sheriff and the deputy sheriff shall be given ample opportunity to present evidence and argument with respect to the issues involved.
(e) With respect to the subject of any investigation or hearing conducted pursuant to this section, the hearing board may subpoena witnesses and administer oaths or affirmations and examine any individual under oath and may require and compel the production of records, books, papers, contracts and other documents.
(d) Any decision, order or action taken as a result of the hearing shall be in writing and shall be accompanied by findings of fact. The findings shall consist of a concise statement upon each issue in the case. A copy of the decision or order and accompanying findings and conclusions, along with written recommendations for action, shall be delivered or mailed promptly to the deputy sheriff or to his or her attorney of record.
W. Va.Code § 7-14C-3. To summarize the parties’ interpretations of this statutory language, Corporal Burgess suggests that subsection (b) requires a predisciplinary hearing except when immediate disciplinary action is permitted to be taken in accordance with W. Va.Code § 7-14C-2(e), while Sheriff Moore contends that a predisciplinary hearing is not required when the disciplinary action is one of the types enumerated in subsection (b). Our review of the relevant statutory language, however, leads us to reject both of these interpretations and to rely, instead, upon the statutory language as it is clearly written.
Our determination of the meaning of statutory language requires us first to consider the legislative intent underlying the statutory enactment at issue: “[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syllabus point 1, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975). In ascertaining such legislative intent, we consider the precise words used by the Legislature. “A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.” Syl. pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951). Accord Syl. pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959) (“When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.”). However, “[a] statute that is ambiguous must be eonsti’ued before it can be applied.” Syl. pt. 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992). Accord Syl. pt. 1, Ohio County Comm’n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983) (“Judicial interpretation of a statute is warranted only if the statute is ambiguous and the initial step in such interpretative inquiry is to ascertain the legislative intent.”).
The statutory language at issue herein, W. Va.Code § 7-14C-3, is plain and clearly requires that a deputy sheriff facing discipline receive notice of his/her entitlement to a predisciplinary hearing, W. Va.Code § 7-14C-3(a), and that such a hearing be provided unless one of the specified disciplinary actions has already been taken against the deputy sheriff facing discipline, W. Va.Code § 7-14C-3(b). Specifically, in subsection (a), the Legislature explicitly states, in relevant part, that “[i]f the investigation or interrogation of a deputy sheriff results in the recommendation of some punitive action, then, before taking punitive action the sheriff shall give notice to the deputy sheriff that he or she is entitled to a hearing on the issues by a hearing board.” W. Va.Code § 7-14C-3(a) (emphasis added). This language plainly contemplates a separate and distinct predisciplinary hearing, before a hearing board, “before ... punitive action” is taken. Id. Based upon this plain language, we hold that W. Va.Code § 7-14C-3(a) (1995) (Repl. Vol. 2006) requires a sheriff to notify a deputy sheriff facing discipline of his/her entitlement to a hearing on the issues giving rise to such discipline “before ... punitive action” is taken.
Subsection (b) then addresses the manner in which such predisciplinary hearing is to be conducted. In pertinent part, W. Va.Code § 7-14C-3(b) provides:
The hearing shall be conducted by the hearing board of the deputy sheriff [2] except that in the event the recommended punitive action is discharge, suspension or reduction in rank or pay, and the action has been taken, the hearing shall be pursuant to the provisions of section seventeen [§ 7-14-17], article fourteen of this chapter, if applicable.
(Bracketed numbers and emphasis added). This statutory language plainly envisions two types of hearings: (1) predisciplinary hearings that occur before disciplinary action has been taken, which hearings are conducted before a hearing board, and (2) hearings that occur after certain types of disciplinary action have been taken, which hearings are conducted in accordance with the provisions of W. Va.Code § 7-14-17 (1996) (Repl. Vol. 2006). Pursuant to this plain language, we therefore hold that W. Va.Code § 7-14C-3 (1995) (Repl. Vol. 2006) contemplates two distinct types of hearings. The first type of hearing, which is governed by W. Va.Code §§ 7-14C-3(a & b), is a predisciplinary hearing, which is conducted before disciplinary action has been taken and is held before a hearing board. Alternatively, the second type of hearing, which is governed by W. Va.Code § 7-14C-3(b), is conducted after disciplinary action in the form of “discharge, suspension or reduction in rank or pay” has been taken and is held in accordance with the provisions of W. Va.Code § 7-14-17 (1996) (Repl. Vol. 2006).
Under the facts of the case sub judice, it is unclear whether Sheriff Moore notified Corporal Burgess of his right to a predisciplinary hearing as required by W. Va. Code § 7-14C-3(a). Nevertheless, Corporal Burgess testified before the Commission that he had requested a predisciplinary hearing during his initial meeting with Sheriff Moore, on June 19, 2006, and that no predisciplinary hearing was afforded to him before he received Sheriff Moore’s letter dated August 3, 2006, disciplining him by reducing his rank and pay. Although Sheriff Moore disputes Corporal Burgess’s claim that he requested a predisciplinary hearing, Sheriff Moore has not presented any evidence to refute Corporal Burgess’s testimony. Moreover, the parties do not dispute the fact that Corporal Burgess was not afforded a predisciplinary hearing. Insofar as Corporal Burgess requested a predisciplinary hearing during his meeting with Sheriff Moore nearly two months before punitive action was taken against him and he was not afforded a predisciplinary hearing, Corporal Burgess has been denied his right to receive a prediseiplinary hearing in violation of the provisions of W. Va.Code § 7-14C-3. Thus, to the extent that both the Circuit Court of Raleigh County and the Raleigh County Deputy Sheriff Civil Service Commission concluded that Corporal Burgess had been afforded the predisciplinary hearing he had requested, such “findings [are] not supported by the evidence,” Syl. pt. 1, in part, Mangum v. Lambert, 183 W.Va. 184, 394 S.E.2d 879, but, rather, such “findings [are] contrary to the evidence,” id. Accordingly, we reverse the orders of both the circuit court and the Corn mission finding that Corporal Burgess received an adequate prediseiplinary hearing, and we further remand this ease so that the prediseiplinary hearing requested by Corporal Burgess may be conducted. As we cautioned in Alden, 209 W.Va. at 88, 543 S.E.2d at 369, this opinion is not deciding whether Corporal Burgess committed the misconduct with which he has been charged nor are we determining the propriety of the discipline imposed upon Corporal Burgess therefor. Rather, we simply are remanding this ease to afford Corporal Burgess the prediseiplinary hearing that W. Va.Code § 7-14C-3 entitles him to receive.
B. Nature of Misconduct and Resultant Discipline
Based upon our resolution of Corporal Burgess’s first assignment of error relating to the failure to afford him a prediseiplinary hearing, our reversal of the orders upholding the disciplinary actions taken against him, and our remand of this case for the conduction of a prediseiplinary hearing, it would be premature for us to consider Corporal Burgess’s second assignment of error regarding the nature of the misconduct with which he has been charged and the discipline resulting therefrom. See Section III.A., supra.
IV.
CONCLUSION
For the foregoing reasons, the March 21, 2008, order of the Circuit Court of Raleigh County is hereby reversed, and this ease is remanded for further proceedings consistent with this opinion.
Reversed and Remanded.
. Although the disciplinary sanctions imposed upon Mr. Burgess have reduced his rank from Corporal to Deputy, Mr. Burgess disputes the propriety of such sanctions in his appeal to this Court. Therefore, until we have determined whether such a reduction in rank was an appropriate punishment for the misconduct Mr. Burgess is alleged to have committed, we will refer to him by using the title he had at the time the events giving rise to the instant disciplinary proceeding occurred, i.e., Corporal.
. It is not clear why Corporal Burgess requested holiday time off on June 2, 2006, insofar as June 2, 2006, was neither a state holiday nor a legal holiday.
. Sheriff Moore also relies upon this Court's pri- or decision in Johnson v. Ashley, 190 W.Va. 678, 681 n. 3, 441 S.E.2d 399, 402 n. 3 (1994) (per curiam), wherein we determined that a pretermination hearing had been conducted when a deputy sheriff was called into a pretermination meeting and had been given the opportunity to respond to the charges against him. Insofar as the Johnson case was decided in 1994, approximately one year before the statute at issue herein which specifically addresses predisciplinary hearings, W. Va.Code § 7-14C-3, was enacted in 1995, we are not persuaded by the language of Johnson, which was neither based upon nor decided under the statutory language applicable to the case sub judice.
. See note 5, infra.
. While the plain language of the subject statute leads to the holdings obtained in this case, we note that our decision herein is consistent also with our prior decision in Alden v. Harpers Ferry Police Civil Setvice Commission, 209 W.Va. 83, 543 S.E.2d 364 (2001), wherein we reviewed a substantially similar statutory provision that requires a predisciplinary hearing be afforded to a civil service officer facing certain types of disciplinary actions. See Syl. pt. 4, Alden, 209 W.Va. 83, 543 S.E.2d 364 (W. Va.Code § 8-14A-3(b) (1997) (Repl. Vol. 1998) requires that, before a civil service officer may be disciplined through discharge, suspension, or reduction in rank or pay, he/she must be afforded a predisciplinary hearing before a hearing board unless there exist exigent circumstances that require the recommended disciplinary action to precede such hearing. To the extent our prior decision in the Syllabus of City of Huntington v. Black, 187 W.Va. 675, 421 S.E.2d 58 (1992), is inconsistent with this holding, it is hereby expressly modified.”). | [
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PER CURIAM:
This case is before this Court upon appeal of a final order of the Workers’ Compensation Board of Review (hereinafter, the “BOR”) entered January 17, 2007. In that order, the BOR reversed the decisions of the Office of Judges (hereinafter, the “OOJ”) and the Workers’ Compensation Commission (hereinafter, the “Commission”) which found the claim of the appellant, Jenny S. Williby, to be compensable. The appellant was injured in a fall that occurred while she was crossing the street to return to her place of employment after picking up her lunch during a work break. The BOR concluded that the appellant’s injury did not occur in the course of and as a result of her employment. In this appeal, the appellant contends that the BOR erred by reversing the decisions of the OOJ and the Commission, and maintains that her claim should have been held compensable. Based upon the parties’ briefs and arguments in this proceeding, as well as the relevant statutory and case law, this Court finds that the BOR did not commit reversible error and accordingly, affirms the decision below.
I.
FACTS
The appellant is a loan clerk at First Century Bank (hereinafter, the “bank” or the “employer”) located in Bluefield, West Virginia. She is a salaried employee at the bank and works thirty-nine-and-one-half hours per week. Employees of the bank are required to record their time by punching a time clock. The appellant receives two fifteen-minute paid breaks per day, during which she is not required to punch out on the time clock. She also has an unpaid thirty-minute lunch period from 12:30 p.m. until 1:00 p.m. and is required to punch out on the time clock during that time.
On September 3, 2004, at 11:50 a.m., the appellant was injured during her first fifteen minute break of the day. It was a holiday weekend, and the appellant maintains that the bank was understaffed, causing her to be late in taking her break. When she did take her break, she used it to go across the street to the Manor Market to pick up her lunch. As the appellant was crossing the street to return to the bank, she fell in the middle of the road on uneven pavement and injured her shoulder. She then returned to the bank and was taken to Bluefield Regional Medical Center, which determined that she had sustained a right shoulder fracture, facial abrasions, and cephalgia (a headache).
The appellant’s initial treatment plan was to use a shoulder immobilizer. She was then released from the hospital and instructed to follow-up with Dr. Stephen O’Saile. Thereafter, Dr. O’Saile had the appellant evaluated by MRI to determine if she had a rotator cuff tear’. A November 9, 2004, MRI revealed a supraspinatus tear at the insertion point with the intact biceps tendon. On November 17, 2004, Dr. O’Saile performed a rotator cuff surgery on the appellant. The appellant has since recovered, with some limitations, and has returned to work.
The appellant filed a workers’ compensation claim which was ruled compensable by the Commission on November 11, 2004, for “Fracture Upper Humerus Ot.”- On November, 18, 2004, following a diagnosis update filed on November 17, 2004, by Dr. O’Saile, the appellant’s claim was ruled compensable for “Fracture Upper Humerus Ot” and “Nontraumacomplete Rupt Ro.” On December 1, 2004, the bank, by counsel, filed a protest to the November 11, 2004, and November 18, 2004, award/orders of the Commission. On October 19, 2005, the OOJ affirmed the November 11, 2004, finding by the Commission that held the appellant’s claim compensable. On January 17, 2007, the BOR reversed and vacated the OOJ’s decision, thereby rejecting the appellant’s claim. The BOR concluded that the appellant’s injury did not occur in the course of and as a result of her employment.
On February 15, 2007, the appellant petitioned this Court for appeal from the final order of the BOR. The appellant argues that her injury occurred in the course of and as a result of her employment, while the appellee, the Office of Insurance Commission, disagrees. The appellee does not question that the appellant sustained the injury on that day, however, it does maintain that the injury did not occur as a result of and in the course of her employment. On October 30, 2008, we granted the appellant’s petition for appeal.
II.
STANDARD OF REVIEW
This ease comes before this Court as an appeal from an order of the BOR, which reversed the decisions by the OOJ and the Commission. When this Court grants an appeal from the BOR, our review of the Board’s final order is guided by W.Va.Code § 23-5-15 (2003) , which directs that,
(b) [i]n reviewing a decision of the board of review, the supreme court of appeals shall consider the record provided by the board and give deference to the board’s findings, reasoning and conelusions[.]
(d) If the decision of the board effectively represents a reversal of a prior ruling of either the commission or the office of judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the supreme court of appeals only if the decision is in clear violation of constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board’s findings, reasoning and conclusions, there is insufficient support to sustain the decision. The court may not conduct a de novo re-weigh ing of the evidentiary record. If the court reverses or modifies a decision of the board pursuant to this subsection, it shall state with specificity the basis for the reversal or modification and the manner in which the decision of the board clearly violated constitutional or statutory provisions, resulted from erroneous conclusions of law, or was so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board’s findings, reasoning and conclusions, there is insufficient support to sustain the decision.
In Lovas v. Consolidation Coal Company, 222 W.Va. 91, 95, 662 S.E.2d 645, 649 (2008), this Court stated:
In Barnett v. State Workmen’s Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970), this Court explained that “[w]hile the findings of fact of the [BOR] are conclusive unless they are manifestly against the weight of the evidence, the legal conclusions of the [BOR], based upon such findings, are subject to review by the courts.” 153 W.Va. at 812, 172 S.E.2d at 707 (quoting Emmel v. State Compen. Dir., 150 W.Va. 277, 284, 145 S.E.2d 29, 34 (1965)). Conclusions of law are subjected to de novo inspection. Syl. Pt. 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994). “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). In syllabus point one of Appalachian Power Company v. State Tax Department, 195 W.Va. 573, 466 S.E.2d 424 (1995), this Court also explained that “[¡Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.”
Additionally, in Fenton Art Glass Co. v. West Virginia Office of Ins. Com’r, 222 W.Va. 420, 427, 664 S.E.2d 761, 768 (2008), this Court stated:
Because our consideration of the issues before us necessarily requires us to consider the standard of review of the BOR, we observe that “[w]hen the [BOR] reviews a ruling from the [OOJ,] it must do so under the standard of review set out in W.Va. Code § 23-5-12(b) (1995), and failure to do so will be reversible error.” Syl. Pt. 6, Conley v. Workers’ Compensation Div., 199 W.Va. 196, 483 S.E.2d 542 (1997).
West Virginia Code § 23-5-12(b) (1995), directs, in relevant part, that:
The [BOR] may affirm the order or decision of the [OOJ] or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the [OOJ] if the substantial rights of the petitioner or petitioners have been prejudiced because the [OOJ]’s findings are:
(1) In violation of statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the [OOJ]; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
With these standards in mind, the assigned error will be considered.
III.
DISCUSSION
The appellant argues that the BOR fundamentally erred in finding that her claim was not compensable due to the fact that she was injured off the premises of the bank, that it occurred during a break in which the bank had no control over her actions, and therefore, such injury did not occur in the course of and as a result of her employment. The appellant attests that her two fifteen minute breaks are paid breaks and that she was still on the clock when the injury occurred. She states that the pay policy of the bank indicates that those breaks are considered a part of the regular working hours of the bank’s employees.
The appellant further contends that her actions in going across the street were taken as an accommodation to her employer, and thus, did occur as a result of, and in the course of her employment. She points out that she works in customer service and that it is expected of an employee in her position to delay taking breaks or lunch if she is working with a customer at the time such breaks or lunch are scheduled to begin. She states that in order to accommodate the bank, employees on many days have to skip breaks or rush to get their lunches. On the day of her injury, the appellant states that the bank’s failure to provide adequate staffing left her,, and other employees, in the position of having to skip her break and work in order to further the business practices of the bank. Thus, she reasons that her claim should be compensable.
Conversely, the appellee maintains that the appellant’s injury was sustained while she was on a break from employment, while away from and off the employer’s premises, and at a location where the employer has no right or power of direction or control over the employee or the condition causing her injury. As such, the appellee contends that the appellant’s injury did not occur in the course of and as a result of her employment and that the Commission and OOJ erred in finding her claim compensable.
We begin our analysis by first setting forth some basic principles of workers’ compensation law. In Syllabus Point 1 of Barnett v. State Workmen’s Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970), this Court held that “[i]n order for a claim to be held compensable under the Workmen’s Compensation Act, three elements must coexist: (1) a personal injury (2) received in the course of employment and (3) resulting from that employment.” Aso, it is well-established that: “ ‘A claimant in a workmen’s compensation case must bear the burden of proving his claim but in doing so it is not necessary to prove to the exclusion of all else 'the causal connection between the injury and the employment.’ Syllabus Point 2, Sowder v. State Workmen’s Compensation Commissioner, 155 W.Va. 889, 189 S.E.2d 674 (1972).” Syllabus Point 1, Myers v. State Workmen’s Compensation Comm’r, 160 W.Va. 766, 239 S.E.2d 124 (1977).
In the case at hand, this Court must consider whether an injury that occurred to the appellant while she was on a break from employment, outside of the employer’s premises, and not under the control of the employer, was compensable. The injury occurred as the appellant was crossing the public street to return to her workplace with her lunch. Under West Virginia’s “going and coming” rule, this Court has held that an injury or death occasioned to an employee while going to or coming from work, and which occurs while he or she is not on the premises of the employer, is not compensable. See Brown v. City of Wheeling, 212 W.Va. 121, 569 S.E.2d 197 (2002); Bilchak v. State Workmen’s Compensation Commissioner, 153 W.Va. 288, 168 S.E.2d 723 (1969); Taylor v. State Compensation Commissioner, 116 W.Va. 13, 178 S.E. 71 (1935). As this Court recognized in Brown, “[u]nder normal circumstances, an employee’s use of a public highway going to or coming from work is not considered to be in the course of employment. The reasoning underlying this rule is that the employee is being exposed to a risk identical to that of the general public; the risk is not imposed by the employer.” Brown, 212 W.Va. at 126, 569 S.E.2d at 202. This Court further held in the Syllabus of Buckland v. State Compensation Comm’r, 115 W.Va. 323, 175 S.E. 785 (1934):
An injury, resulting in death, received by an employee while traveling upon a public highway in the same manner and for like purposes as the general public travels such highway, and not in performance of his duties for his employer, is not an injury received in the course of employment within the meaning of the Workmen’s Compensation Act and is, therefore, not compensable.
This Court has recognized, however, that there may be special circumstances that could bring such conduct within the course of an employee’s employment. In Syllabus Point 4 of Brown, this Court further explained that “ ‘[a]n injury incurred by a workman, in the course of his travel to his place of work and not on the premises of the employer, does not give right to participation in such [Workers’ Compensation] fund, un less the place of injury was brought within the scope of employment by an express or implied requirement in the contract of employment, of its use by the servant in going to and returning from his work.’ Syllabus Point 2, De Constantin v. Public Service Commission, 75 W.Va. 32, 83 S.E. 88 (1914).” “In other words, the employee may not recover workers’ compensation benefits, and the employer is not immune from a negligence action.” Brown, 212 W.Va. at 125, 569 S.E.2d at 201. Basically, “[a]n employee is entitled to compensation for an injury sustained in going to or coming from his work, only where such injury occurs within the zone of his employment, and that zone must be determined by the circumstances of the particular case presented.” Syllabus Point 1, Carper v. Workmen’s Compensation Comm’r, 121 W.Va. 1, 1 S.E.2d 165 (1939). “No definite rule can be laid down as to what is the zone of employment, and each case must be decided on its own facts and circumstances.” Id. at 3, 1 S.E.2d at 166. Thus, this Court has recognized that special circumstances within a given claim are directly relevant to whether a given injury is compensable.
One exception to the “going and coming” rule is that if employees are required, as a condition of their employment, to routinely journey from place to place, then injuries incurred by those employees while traveling are compensable. This Court has held that “Workmen’s Compensation law generally recognizes that an employee is entitled to compensation for an injury received while traveling on behalf of the employer’s business.” Syllabus Point 1, Calloway v. State Workmen’s Compensation Comm’r, 165 W.Va. 432, 268 S.E.2d 132 (1980). However, when an employee engages in a “major deviation from the business purpose,” such compensation can be denied. Id. at Syllabus Point 3.
Another exception to the “going and coming” rule that this Court has recognized is the “special errand” exception. In Harris v. State Workmen’s Compensation Comm’r, 158 W.Va. 66, 70-71, 208 S.E.2d 291, 293-94 (1974), this Court explained:
“When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.”
Id. (citing 1 Larson Workmen’s Compensation Law § 16.10 (1972)). In accord, Courtless v. Jolliffe, 203 W.Va. 258, 263, 507 S.E.2d 136, 141 (1998). Such a “special errand” may require the use of a highway to perform an employee’s duties for the employer. For example, in Syllabus Point 1 of Canoy v. State Compensation Comm’r, 113 W.Va. 914, 170 S.E. 184 (1933), we stated:
Injury or death of an employee of a subscriber to the Compensation Fund occurring upon a public highway and not on the premises of the employer, gives right to participate in the fund, when “the place of injury was brought within the scope of employment by an express or implied requirement of the contract of employment, of its use by the servant in going to and returning from work.”
In the case sub judice, the appellant claims that her injury occurred as a result of and in the course of her employment as a loan clerk at the bank, however, she does not direct us to any legal or factual support for such a conclusion. She does not contend that she was running a “special errand” for her employer nor does she contend that she was traveling across the street to pick up her lunch on behalf of, or at the direction of, her employer. In fact, her testimony during two separate depositions, on January 10, 2005, and on July 25, 2005, establishes an opposite conclusion.
During the January 10, 2005, deposition, the appellant testified she fell because of uneven pavement on a public street, not owned or controlled by the bank, and at a time when she was on a break from employment. She further testified that she was not conducting business for the bank at the time of the injury as she had walked across the street to pick up her lunch for the day. Equally important, she testified that the bank did not have any control over what she could do, or where she could go, during her break. The following colloquy occurred at that deposition:
Q. How did you get hurt on September 3, 2004?
A. I took a break and went to pick up my lunch. And as I was coming back from picking up my lunch, I fell and fell face down on the street at Federal Street.
Q. Was this a lunch break or just a regular break?
A. It was a break. See, I didn’t have my 15-minute break that morning, so I had taken it to pick up my lunch.
Q. How long was the break?
A. It was a 15-minute break.
Q. And where was your lunch that you were going to pick up?
A. It was at the Manor Market right across the street.
Q. During this 15-minute break that you were on, did the bank control what you could do?
A. To my knowledge, no.
Q. Were you doing any bank business when you fell?
A. No, I was picking up lunch.
Q. What caused you to fall?
A. Well, I think it was like uneven pavement.
Q. Now, for the sake of whoever is reading this and deciding this, the bank doesn’t control that Federal Street, does it?
A. Not to my knowledge.
Q. It’s a public street that the public uses?
A Right.
Moreover, during her July 25, 2005, supplemental deposition, the appellant responded to questions from her attorney as follows:
Q. And you fell coming back across the street?
A. Yes, sir.
Q. Were you to the sidewalk yet, on the bank side of the street yet?
A. I was kind of like in the middle of the road.
Q. And you fell. Do you know what happened, why you fell?
A. I guess it was kind of like an uneven pavement. I don’t really know. I just fell down, and just tried to get up myself.
Although the appellant argues that her only choice was to rash across the street to get lunch or not to eat, the record does not reflect that she was deprived on the subject date of her regular lunch break. In consideration of the entire record before us, there is no evidence that the appellant was doing any work for her employer in walking across the public street to pick up her lunch during her break period on the day of the accident. She was not on her employer’s premises, she was not engaged in any work-related activity, she was not required or even directed by her employer to cross the street and pick up her lunch during her break, and thus, she was not exposed to a work-related risk. In fact, the appellant testified that during her fifteen minute break she could have gone anywhere she wanted. She testified that employees could go across the street, pick up pop, a muffin, then’ dinner, or go to pick up their kids at school during their break, as long as they were back in fifteen minutes.
In crossing the street to pick up her lunch, the appellant was exposed to the same risk as every other member of the public walking on the street that day. See Brown, supra. Nothing in the record supports the conclusion that there was a causal connection between the duties of the appellant’s employment and her fall on the street. The appellant did not state that she missed her breaks or lunches on busy days at the bank, just that they were taken after she completed transactions with the particular customer she may have been assisting at that time. In other words, her breaks and lunch periods were occasionally delayed, but not can-celled.
On the day of the appellant’s accident, she was using one of her two daily breaks to pick up her lunch from a private business located across the street from her place of employment. The accident occurred at 11:50 a.m. and the appellant’s scheduled lunch period was from 12:30 p.m. until 1:00 p.m. The fact that the appellant’s fifteen minute break may have been delayed does not support her argument that she had to cross the street that day, at that very moment, to pick up her lunch as an accommodation of her employer. She was not asked, directed, or required to go to a location outside of the bank to pick up her lunch during her break period, nor was she running a “special errand” for her employer. It was a purely personal function, not involving her employment, and not resulting from her employment. Moreover, at the time of the appellant’s accident, her scheduled lunch period was still forty minutes away. She could have waited for her lunch period and picked up a meal at that time. Or, as she testified that she did on most days, the appellant could have brought her lunch from home and eaten it in the lunch area provided by the bank on bank premises. Instead, the appellant chose to go to a location where the employer had no right or power of direction or control over her, or the condition causing the injury to her.
In consideration of all of the above, it is clear that the appellant’s fall and injury did not occur in the course of or as a result of her employment. Consequently, the BOR’s final order is not “in clear violation of constitutional or statutory provisions, is [not] clearly the result of erroneous conclusions of law, [and is not] so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board’s findings, reasoning and conclusions, [that] there is insufficient support to sustain the decision.” See W.Va.Code § 23-5-15(d) (2003). Accordingly, the BOR’s final order is affirmed.
IV.
CONCLUSION
For the reasons set forth above, the January 17, 2007, final order of the Workers’ Compensation Board of Review is affirmed.
Affirmed.
. This Court notes that the BOR was previously identified as the Workers' Compensation Appeal Board, with the change in name becoming effective on January 31, 2004. See W.Va.Code § 23-5-11 (2005); State ex rel. Darling v. McGraw, 220 W.Va. 322, 324, n. 2, 647 S.E.2d 758, 760 n. 2 (2007).
. Pursuant to W.Va.Code §§ 23-2C-1 to -24, the Workers' Compensation Commission was abolished on January 1, 2006, and was succeeded by BrickStreet Mutual Insurance Company, a private employer mutual insurance company. All workers’ compensation claims with dates of injury or last exposure before July 1, 2005, are payable from what is statutorily referred to as the "Old Fund” which is regulated by the Insurance Commissioner, the real party-in-interest here. The use of “Commission” in this opinion refers to both the predecessor, the Workers’ Compensation Commission, and the successor, the Insurance Commissioner.
. Magnetic Resonance Imaging (MRI) is primarily a medical imaging technique most commonly used in radiology to visualize the internal structure and function of the body.
. The 2003 version of W.Va.Code § 23-5-15 applies to this case pursuant to this Court's decision in Wampler Foods, Inc. v. Workers’ Compensation Division, 216 W.Va. 129, 602 S.E.2d 805 (2004). We note that this statute was amended in 2005; however, the subsections quoted herein were not altered. | [
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DAVIS, Justice:
The instant matter consists of two appeals from the Workers’ Compensation Board of Review (hereinafter “the Board”) that have been consolidated because they present the same issue for this Court’s consideration and resolution. In both cases, the claimant suffered a work-related injury in the course of and as a result of his employment. Both claimants have continued to experience pain from their work-related injuries, neither claimant has been able to return to work or resume normal activities, and both claimants have developed depression that their treating physicians have attributed to their work-related injuries. Throughout the proceedings underlying the instant appeals, the claimants’ requests to add a diagnosis of depression as a compensable component of their claims has been denied. On appeal to this Court, the claimants assert that the Insurance Commissioner of West Virginia (hereinafter “the Commissioner”) erred by refusing to add a depression diagnosis to their claims because they were not diagnosed with depression “within 6 months of the[ir] injury or significant injury-related complication” as required by W. Va.C.S.R. § 85-20-12.2.a (2005) to render such a diagnosis compensable. Upon a review of the parties’ arguments, the records presented for appellate consideration, and the pertinent authorities, we reverse the decision of the Board in both cases. We further remand both cases with directions to add a diagnosis of depression to each of the claimant’s underlying claims.
I.
FACTUAL AND PROCEDURAL HISTORY
Although the instant appeals have been consolidated because they raise the same legal question, we will separately discuss the facts relevant to each appeal to provide the proper context for our decision.
A. Case Number 35036 — Ernie Bowers
Ernie L. Bowers (hereinafter “Mr. Bowers”), one of the appellants herein, was injured in the course of and as a result of his employment on July 12, 2002. At the time of his injury, Mr. Bowers was employed as a mechanic in a coal mine; he injured his back when he slipped and fell while using a bar to lift a heavy motor. Mr. Bowers underwent back surgery in January 2003, and has undergone pain management therapy, but he has been unable to return to work due to the ongoing pain and decreased mobility resulting from his work-related back injury. By decision dated November 18, 2005, the Workers’ Compensation Commission granted Mr. Bowers a 34% permanent partial disability award due to his work-related cervical and lumbar injuries; Mr. Bowers ultimately withdrew his subsequent appeal of this award.
In April 2004, Mr. Bowers’s treating physician, Dr. Richard Trenbath (hereinafter “Dr. Trenbath”), first observed that Mr. Bowers “ha[d] a very depressed affect,” and prescribed him medication for depression. On May 26, 2004, Dr. Trenbath requested the Workers’ Compensation Claims Administrator (hereinafter “Claims Administrator”) to authorize a prescription for medication to treat Mi-. Bowers’s depression that had resulted from his work-related injury; however, it does not appear from the record that the Claims Administrator authorized this medication.
Dr. Trenbath continued to observe and recount Mr. Bowers’s symptoms of depression in his subsequent treatment notes. Nearly two years after first prescribing medication for Mr. Bowers’s depression, Dr. Trenbath, on May 24, 2006, requested that major depression be added as a compensable diagnosis to Mr. Bowers’s workers’ compensation claim resulting from his July 12, 2002, work-related back injury. The Office of Medical Management (hereinafter “the OMM”) denied this request on July 11,2006, citing W. Va.C.S.R. § 85-20-12.2.a, which requires a psychiatric diagnosis be made within six months of the work-related injury, or a significant complication thereof, upon which such psychiatric diagnosis is based to be held compensable. In turn, the Claims Administrator upheld the OMM’s denial of a depression diagnosis by order entered October 3, 2006. Likewise, the Office of Judges (hereinafter “the OOJ”), by decision dated February 5, 2007, and the Board, by order entered March 26, 2008, upheld these rulings. From these adverse decisions, Mr. Bowers appeals to this Court.
B. Case Number 34672 — Darrell Dotson
Darrell W. Dotson (hereinafter “Mr. Dotson”), the other appellant herein, was injured in the course of and as a result of his employment on March 23, 1998. At the time of his injury, Mr. Dotson was employed as an underground coal miner; he injured his back while pulling a miner cable. Mr. Dotson briefly returned to work, but severe lumbar pain resulting from his work-related back injury forced him to cease employment in June 1998. Since that time, Mr. Dotson has undergone pain management therapy, but he has been unable to return to work due to the ongoing pain and decreased mobility resulting from his work-related back injury. By decision dated February 25, 2003, the Workers’ Compensation Division granted Mr. Dotson a 5% permanent partial disability award due to his work-related injury. Mr. Dotson appealed this award, and, by order entered March 18, 2004, the OOJ reversed Mr. Dotson’s earlier award and granted him, instead, a 19% permanent partial disability award due to his work-related lumbosacral injury; the Board of Review affirmed Mr. Dotson’s 19% permanent partial disability award by order entered December 29, 2004. This Court refused Mr. Dotson’s subsequent appeal of this award.
On June 1, 1999, Mr. Dotson’s treating physician, Dr. Margaret S. Wantz (hereinafter “Dr. Wantz”), first recorded that Mr. Dotson is “becoming more and more depressed due to pain and being unable to work.” Thereafter, on June 4, 1999, Dr. Wantz prescribed medication to treat Mr. Dotson’s symptoms of depression; the Workers’ Compensation Commission authorized this medication.
Dr. Wantz continued to observe and recount Mr. Dotson’s symptoms of depression in her subsequent treatment notes. Nearly seven and one-half years after first observing Mr. Dotson’s depression, Dr. Wantz, on February 1, 2006, requested that major depression be added as a compensable diagnosis to Mr. Dotson’s workers’ compensation claim resulting from his March 23, 1998, work-related back injury. The Office of Medical Management (the OMM) denied this request on February 13, 2006, citing W. Va.C.S.R. § 85-20-12.2.a, which requires a psychiatric diagnosis be made within six months of the work-related injury, or a significant complication thereof, upon which such psychiatric diagnosis is based to be held compensable. In turn, the Claims Administrator upheld the OMM’s denial of a depression diagnosis by order entered February 15, 2006. Likewise, the Office of Judges (the OOJ), by decision dated July 25, 2006, and the Board, by order entered April 5, 2007, upheld these rulings. From these adverse decisions, Mr. Dotson appeals to this Court.
II.
STANDARD OF REVIEW
On appeal to this Court, both claimants contend that error occurred in the decisions to deny their requests to add a diagnosis of depression as a compensable component of their claims for their work-related back injuries. Our review of workers’ compensation appeals is guided by the criteria set forth in W. Va.Code §§ 23-5-15(b-c) (2005) (Repl. Vol. 2005):
(b) In reviewing a decision of the board of review, the supreme court of appeals shall consider the record provided by the board and give deference to the board’s findings, reasoning and conclusions]]]
(c) If the decision of the board represents an affirmation of a prior ruling by both the commission and the office of judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the supreme court of appeals only if the decision is in clear violation of constitutional or statutory provision, is clearly the result of erroneous conclusions of law, or is based upon the board’s material misstatement or mischaraeterization of particular components of the evidentiary record. The court may not conduct a de novo re-weighing of the evidentiary record. If the court reverses or modifies a decision of the board pursuant to this subsection, it shall state with specificity the basis for the reversal or modification and the manner in which the decision of the board clearly violated constitutional or statutory provisions, resulted from erroneous conclusions of law, or was based upon the board’s material misstatement or mischaraeterization of particular components of the evidentiary record.
In other words, “[w]hen it appears from the proof upon which the Workmen’s Compensation [Board of Review] acted that its finding was plainly wrong an order reflecting that finding will be reversed and set aside by this Court.” Syl. pt. 5, Bragg v. State Workmen’s Comp. Comm’r, 152 W.Va. 706, 166 S.E.2d 162 (1969). Mindful of this standard, we proceed to consider the parties’ arguments.
III.
DISCUSSION
In both Mr. Bowers’s case and Mr. Dotson’s ease, the Claims Administrator denied requests to add a diagnosis of depression as a compensable component of the claimants’ work-related back injury claims because neither claimant had presented evidence to indicate that he had been diagnosed with depression within six months of his initial injury as required by W. Va.C.S.R. § 85-20-12.2.a. Thereafter, both the OOJ and the Board affirmed the Claims Administrator’s decisions.
Before this Court, both claimants argue that their requests to add a diagnosis of depression to their compensable claims were wrongly denied pursuant to W. Va.C.S.R. § 85-20-12.2.a because this regulation applies an arbitrary six-month time frame to determine whether a work-related psychiatric condition is compensable. Both Mr. Bowers and Mr. Dotson contend that they presented undisputed testimony that neither of them had a prior history of depression and that the depression symptoms they suffer have occurred as a direct result of their work-related back injuries and the resultant ongoing pain, reduced mobility, and ensuing disability associated therewith. Thus, Mr. Bowers and Mr. Dotson assert that all of the record evidence supports their claims that their depression developed as a direct result of their compensable, work-related back injuries and that the denial of their requests to add a diagnosis of depression to their compensable claims was erroneous.
The Commissioner responds that the depression diagnoses requested by the claimants is not available to either of them insofar as W. Va.C.S.R. § 85-20-12.2.a requires that, “[i]n order to be regarded as work-related, symptoms of an injury-related psychiatric diagnosis must be manifest within 6 months of the injury or significant injury-related complication.” In this regard, the Commissioner states that neither claimant provided evidence of the onset of symptoms of depression until well after the expiration of the relevant six-month time period. Accordingly, the Commissioner contends that the decisions denying the claimants the addition of a depression diagnosis were proper.
In these consolidated cases, we are asked to determine whether a claimant must manifest symptoms of a “work injury-related psychiatric disorder” within the six-month time frame established by W. Va.C.S.R. § 85-20-12.2.a to render such “work injury-related psychiatric disorder” a compensable component of the claimant’s underlying work-related injury claim. Based upon our consideration of this regulation and the governing statutory provisions, we conclude that W. Va.C.S.R. § 85-20-12.2.a is invalid because it does not comport with the express legislative intent set forth in the workers’ compensation statutory law. In this regard, W. Va.C.S.R. § 85-20-12.2.a does not fulfill the Legislature’s goal of compensating injured workers for injuries they have sustained “in the course of and resulting from their ... employment,” W. Va.Code § 23-4-l(a) (2008) (Supp.2009), nor does it comply with the Legislature’s recognition of permitting injured workers to request adjustments to their claims resulting from such work-related injuries, W. Va.Code § 23-4-16 (2005) (Repl. Vol. 2005) and W. Va.Code § 23-5-2 (2005) (Repl. Vol. 2005).
To be valid, a regulation promulgated pursuant to legislative authority must carry out the legislative intent of its governing statutes.
“It is fundamental law that the Legislature may delegate to an administrative agency the power to make rules and regulations to implement the statute under which the agency functions. In exercising that power, however, an administrative agency may not issue a regulation which is inconsistent with, or which alters or limits its statutory authority.” Syllabus point 3, Rowe v. West Virginia Department of Corrections, 170 W.Va. 230, 292 S.E.2d 650 (1982).
Syl. pt. 6, Simpson v. West Virginia Office of the Ins. Comm’r, 223 W.Va. 495, 678 S.E.2d 1 (2009) (emphasis added). In other words,
“[a]ny rules or regulations drafted by an agency must faithfully reflect the intention of the Legislature, as expressed in the controlling legislation. Where a statute contains clear and unambiguous language, an agency’s rules or regulations must give that language the same clear and unambiguous force and effect that the language commands in the statute.” Syllabus point 4, Maikotter v. University of West Virginia Board of Trustees/West Virginia University, 206 W.Va. 691, 527 S.E.2d 802 (1999).
Syl. pt. 7, Simpson v. West Virginia Office of the Ins. Comm’r, 223 W.Va. 495, 678 S.E.2d 1. Accord Syl. pt. 15, Simpson, id. (“ ‘ “ ‘Rules and Regulations of ... [an agency] must faithfully reflect the intention of the legislature; when there is clear and unambiguous language in a statute, that language must be given the same clear and unambiguous force and effect in the [agency’s] Rules and Regulations that it has in the statute.’ Syl. pt. 4, Ranger Fuel Corp. v. West Virginia Human Rights Commission, 180 W.Va. 260, 376 S.E.2d 154 (1988).” Syl. pt. 2, in part, Chico Dairy Company v. Human Rights Commission, 181 W.Va. 238, 382 S.E.2d 75 (1989).’ Syllabus point 5, Appalachian Power Co. v. State Tax Department of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).”). Thus,
“[p]rocedures and rules properly promulgated by an administrative agency with authority to enforce a law will be upheld so long as they are reasonable and do not enlarge, amend or repeal substantive rights created by statute.” Syllabus point 4, State ex rel. Callaghan v. West Virginia Civil Service Commission, 166 W.Va. 117, 273 S.E.2d 72 (1980).
Syl. pt. 11, Simpson, 223 W.Va. 495, 678 S.E.2d 1.
The regulatory language at issue herein, W. Va.C.S.R. § 85-20-12.2.a (2005), holds compensable “[w]ork injury-related psyehiatric disorders” that satisfy the criteria enumerated therein:
“Work injury-related psychiatric disorders” means those psychiatric disorders caused by or aggravated by a work injury or disease. Attached as Exhibit A is a list of psychiatric diagnoses which are, by definition, not significantly contributed to by a work-related injury, unless the disorder ends in the phrase “due to a general medical condition” where the general medical condition is caused by the work-related injury. In order to be regarded as work-related, symptoms of an injury-related psychiatric diagnosis must be manifest within 6 months of the injury or significant injury-related complication based on credible medical evidence.
(Emphasis added). Despite this regulation’s adoption of a time period within which the symptoms of a work-related psychiatric disorder must manifest themselves in order to be held compensable, the corresponding statutes do not contain a similar requirement. Rather, the statutes authorizing injured workers to apply for an adjustment of their claims to add additional, compensable components of their initial work-related injury do not impose any such time periods within which an additional symptom, condition, or aggravation of their initial work-related injury must appear to be held compensable.
Specifically, W. Va.Code § 23-4-16(b) (2005) (Repl. Vol. 2005) provides that,
[i]n any claim in which an injured employee makes application for a further award of permanent partial disability benefits ..., if the application is in writing and filed within the applicable time limit as stated [in W. Va.Code § 23-4-16(a)(2) ] above, the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, shall pass upon the request within thirty days of its receipt and, if the commission determines that the claimant may be entitled to an award, the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, shall refer the claimant for further examinations that are necessary.
Similarly, W. Va.Code § 23-5-2 (2005) (Repl. Vol. 2005) directs that,
[i]n any case where an injured employee makes application in writing for a further adjustment of his or her claim under the provisions of section sixteen [§ 23-4-16], article four of this chapter and the application discloses cause for a further adjustment, the commission shall, after due notice to the employer, make the modification, or changes with respect to former findings or orders in the claim that are justified—
Accord W. Va.C.S.R. § 85-20-6.6 (2005) (requiring treating physician to update diagnosis codes but not imposing time limitation within which such diagnosis must be made); Kincannon v. State Comp. Comm’r, 107 W.Va. 533, 149 S.E. 665 (1929) (recognizing that full extent of injured worker’s compensable injury may not be immediately apparent and contemplating initial and subsequent disability awards, all related to initial, compensable, work-related injury).
In addition to being contrary to the legislative intent to permit the adjustment of workers’ compensation claims without regard to the time within which the additional symptom of the compensable injury manifested itself, the application of W. Va.C.S.R. § 85-20-12.2.a unfairly differentiates between psychiatric and physical complications of a compensable work-related injury. By its terms, W. Va.C.S.R. § 85-20-12.2.a establishes different standards for psychiatric (non-physical) symptoms arising from a compensable, work-related injury and physical (non-psychiatric) symptoms arising from the same injury insofar as the time frame within which psychiatric symptoms must be manifest to be held compensable does not have a corresponding time frame that is applicable to physical symptoms arising from the same work-related injury. Such a distinction between psychiatric and physical conditions attributable to a compensable injury is arbitrary and impermissible.
A workmen’s compensation claim must be considered in its entirety and cannot be regarded as divisible in the sense of being barred ... in relation to a disability of one character, or a disability affecting one part of the claimant’s body, but, at the same time, alive and litigable in relation to another disability arising from the same injury but of a different character or one affecting a different part of the claimant’s body.
Syl., in part, Bowman v. Workmen’s Comp. Comm’r, 150 W.Va. 592, 148 S.E.2d 708 (1966). Because the practical effect of the language of W. Va.C.S.R. § 85-20-12.2.a is to treat “a disability of one character,” i.e., psychiatric symptoms, differently than “another disability arising from the same injury but of a different character,” i.e., physical symptoms, we find W. Va.C.S.R. § 85-20-12.2.a to be invalid and unenforceable.
Accordingly, we hold that W. Va. C.S.R. § 85-20-12.2.a (2005) is an invalid administrative rule because it arbitrarily distinguishes between psychiatric (non-physical) symptoms of a compensable work-related injury and physical (non-psychiatric) symptoms of the same compensable work-related injury when the Legislature has not made such a distinction. We further hold that neither W. Va.Code § 23-4-16(b) (2005) (Repl. Vol. 2005) nor W. Va.Code § 23-5-2 (2005) (Repl. Vol. 2005) requires that, to be held compensable, symptoms of a “work injury-related psychiatric disorder” must manifest within six months of the underlying work-related injury or a significant complication thereof.
Applying these holdings to the facts of the two cases before us, we conclude that the decisions to deny the claimants’ requests to add a diagnosis of depression were plainly wrong. See Syl. pt. 5, Bragg v. State Workmen’s Comp. Comm’r, 152 W.Va. 706, 166 S.E.2d 162. Pursuant to W. Va.Code § 23-4-16(a)(2), requests to modify, change, or reopen an existing claim “must be made within five years of the date of the initial award.” Here, both Mr. Bowers and Mr. Dotson met this threshold requirement. Mr. Bowers requested the addition of a depression diagnosis on May 24, 2006, which date was within five years of his initial 34% permanent partial disability award, which was granted on November 18, 2005, and the appeal of which was dismissed at Mr. Bowers’s request. Likewise, Mr. Dotson requested the addition of a depression diagnosis on February 1, 2006, which date was within five years of his initial PPD award, which was granted on February 25, 2003, and ultimately affirmed, as modified by the OOJ, by the Board of Review’s order entered December 29, 2004. Cf. Syl. pt. 2, in part, Pugh v. Workers’ Comp. Comm’r, 188 W.Va. 414, 424 S.E.2d 759 (1992) (holding that statutory time limit set forth in W. Va.Code § 23-4-16(a)(2) begins to run from “the last payment in the original award or any subsequent increase thereto”). Therefore, both claimants have met the temporal requirements for requesting a modification of their underlying claims.
Moreover, to be held compensable, an injury must have occurred “in the course of and resulting from [the worker’s] ... employment.” W. Va.Code § 23-4-l(a). Here, the parties do not dispute that Mr. Bowers and Mr. Dotson both injured their back as a result of a work-related injury, and, in fact, both of their underlying claims have been held compensable. With respect to the depression diagnosis they seek to add to their claims, both claimants represent that they were not depressed before their work-related injuries, and both claimants have presented unrefuted evidence that their depression has resulted from their compensable back injui’ies. Because both Mr. Bowers and Mr. Dotson have demonstrated a causal relationship between the diagnosis of depression they request and their underlying, work-related injuries, their requests to add such a diagnosis should have been granted. Accordingly, the Board’s orders refusing to add such a diagnosis in both cases are reversed, and both cases are remanded with directions to add a diagnosis of depression to the claimants’ compensable claims. See Syl., in part, Justice v. State Comp. Dir., 149 W.Va. 216, 140 S.E.2d 424 (1965) (“When a claimant makes timely application in writing ... for further adjustment of his claim and upon such application establishes a fact or facts not previously considered by the [Claims Administrator] in his former findings which would entitle claimant to greater benefits than he has already received, the claim should be reopened, and this Court will reverse an order of the Workmen’s Compensation ... Board [of Review] affirming an order of the [Claims Administrator] which denies a reopening of the claim.”).
IV.
CONCLUSION
For the foregoing reasons, the decision rendered March 26, 2008, by the Workers’ Compensation Board of Review in Mr. Bowers’s claim, Case Number 35036, is hereby reversed, and this case is remanded with directions to add a diagnosis of depression to Mr. Bowers’s underlying compensable claim. Likewise, the decision rendered April 5, 2007, by the Workers’ Compensation Board of Review in Mr. Dotson’s claim, Case Number 34672, also is reversed, and this case also is remanded with directions to add a diagnosis of depression to Mr. Dotson’s underlying compensable claim.
Case Number 35036 — Reversed with Directions.
Case Number 34672 — Reversed with Directions.
Chief Justice BENJAMIN concurs and reserves the right to file a concurring opinion.
. Pursuant to W. Va.Code § 23-2C-1, et seg., Brickstreet Mutual Insurance Company replaced the West Virginia Insurance Commissioner as the administrator of the West Virginia Workers’ Compensation Fund on December 31, 2005. However, because both Mr. Bowers and Mr. Dotson sustained work-related injuries prior to this structural change, the Insurance Commissioner, as the administrator of the "Old Fund,” remains the party respondent to these proceedings.
. For the full text of W. Va.C.S.R. § 85-20-12.2.a (2005), see Section III, infra.
. A corrected order was later issued on July 28, 2006, similarly denying the addition of a diagnosis of depression.
. It is also apparent from our reading of the regulation’s plain language that the Claims Administrator misconstrued and misapplied W. Va. Code § 85-20-12.2.a in denying Mr. Bowers’s and Mr. Dotson’s requests insofar as this section requires the manifestation of symptoms of "an injury-related psychiatric diagnosis,” not the actual diagnosis thereof, within the relevant time period. See Syl. pt. 4, State ex rel. ACF Indus. v. Vieweg, 204 W.Va. 525, 514 S.E.2d 176 (1999) ("Interpretations as to the meaning and application of workers’ compensation statutes rendered by the Workers’ Compensation Commissioner, as the governmental official charged with the administration and enforcement of the workers’ compensation statutory law of this State, pursuant to W. Va.Code § 23-1-1 (1997) (Repl. Vol. 1998), should be accorded deference if such interpretations are consistent with the legislation’s plain meaning and ordinary construction." (emphasis added)). Given our decision finding this regulation to be contrary to the governing statute, however, we need not further address this error.
. Because we find W. Va.C.S.R. § 85-20-12.2.a to be facially invalid as violative of the governing legislative intent, we need not conduct a detailed analysis to determine the regulation's validity. See Syl. pts. 12-14, Simpson v. West Virginia Office of the Ins. Comm’r, 223 W.Va. 495, 678 5.E.2d 1 (2009) (setting forth test for determining if administrative rule is interpretive or legislative to ascertain its validity).
. That is not to say, however, that a claimant's workers' compensation claim remains open indefinitely. W. Va.Code § 23-4-16(a)(2) (2005) (Repl. Vol. 2005) very explicitly requires that requests for modification be made within five years of a claimant’s award of permanent disability benefits: "Except as stated below, in any claim in which an award of permanent disability was made, any request [to modify, change, or reopen a prior award] must be made within five years of the date of the initial award. During that time period, only two requests may be filed.” However, such time limits apply only to claims in which an order has been entered closing the claim. See, e.g., Syl. pt. 2, Pugh v. Workers’ Comp. Comm'r, 188 W.Va. 414, 424 S.E.2d 759 (1992) ("W. Va.Code, 23-4-6 [1983], in part, permits the power and jurisdiction of the Workers’ Compensation Commissioner to continue over cases before the Commissioner and to make modifications or changes with respect to former findings or orders as may be justified, provided that no further award may be made in the cases of nonfatal injuries more than two times within five years after the Commissioner shall have made the last payment in the original award or any subsequent increase thereto in any permanent disability case.” (emphasis added)); Syl. pt. 1, Craft v. State Comp. Dir., 149 W.Va. 28, 138 S.E.2d 422 (1964) ("The time limitations contained in Code, 23-4-16, as amended, are applicable only to the reopening of a claim for workmen’s compensation benefits previously closed by a final order of the director." (emphasis added)). In conjunction with their receipt of permanent partial disability awards, both Mr. Bowers's and Mr. Dotson's underlying compensable claim has been closed, and, thus, the time limits established by W. Va.Code § 23-4-16(a)(2) apply to their requests to add a diagnosis of depression to their compensable claims.
By contrast, unlike the requirements of W. Va.C.S.R. § 85-20-12.2.a, neither W. Va.Code § 23-4-16 nor W. Va.Code § 23-5-2 require the onset of additional symptoms to occur within a finite period of time from the date upon which the claimant was injured in order to render such symptoms compensable components of the claimant’s initial claim. | [
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BENJAMIN, Justice:
Paul M. Blake, Jr., Prosecuting Attorney of Fayette County, West Virginia, invokes the original jurisdiction of this Court seeking an Order reversing the Circuit Court of Fay-ette County, West Virginia’s March 25, 2005 Order denying the State’s motion to disqualify defense counsel, John R. Mitchell, Sr., in the matter of State v. Robert Eugene Carroll, Indictment No. 05-F-12. The basis of the State’s motion before the circuit court was a claimed conflict of interest arising from defense counsel’s . prior representation of a State’s witness and the witness’s relatives in various criminal and civil proceedings. The circuit court denied the State’s motion, find ing the State did not have standing to seek to disqualify defense counsel. Upon our review of this matter, we find that the State may be afforded standing to seek disqualification of a criminal defense counsel. We also order that a writ of prohibition shall issue prohibiting the Circuit Court of Fayette County from further proceeding in the matter of State v. Robert Eugene Carroll, Indictment Number 05-F-12, until such time as a hearing is held in the matter and the circuit court determines whether or not John R. Mitchell, Sr. should properly be disqualified from serving as defense counsel in the underlying matter in light of the guidance provided herein.
I.
FACTS AND PROCEDURAL HISTORY
During its January 2005 term, the Fayette County grand jury returned Indictment Number 05-F-12 against Respondent Robert Eugene Carroll charging him with the crimes of Murder in the First Degree and Sexual Assault in the First Degree. The charges arise from the 1986 attack and murder of Cathy Faye Carroll, Respondent’s estranged wife, and the sexual assault of her fifteen year old daughter.
Following John R. Mitchell, Sr.’s appearance as counsel for Mr. Carroll, the State filed a motion to disqualify Mr. Mitchell and his law firm as counsel for Mr. Carroll due to an alleged conflict of interest. The alleged conflict of interest arises from Mr. Mitchell’s prior representation of Charles G. Keenan and Mr. Keenan’s relatives. Mr. Keenan has been designated as a material fact witness relative to the charges brought against Mr. Carroll. Neither party disputes that Mr. Mitchell’s representation of Mr. Keenan ceased shortly before the Carroll indictment. The State’s motion asserted that Mr. Mitchell’s representation of Mr. Keenan “presents a real and substantial conflict of interest, making his further representation of Robert Eugene Carroll improper and unethical and give[s] the appearance of impropriety.”
At the direction of the circuit court, Mr. Mitchell obtained an informal legal ethics opinion from the Office of Disciplinary Counsel. In a letter dated February 15, 2005, the Office of Disciplinary Counsel stated that the “situation appears to create an appearance of impropriety.” The informal opinion expressed concern regarding Mr. Mitchell’s ability to cross-examine Mr. Keenan without the disclosure of confidential information. It also questioned whether the earlier representation of Mr. Keenan could result in a material limitation of the scope of Mr. Keenan’s cross-examination to the detriment of Mr. Carroll. Following a February 28, 2005 hearing on the State’s motion, the circuit court entered an Order on March 25, 2005 denying the State’s motion for lack of standing.
The Fayette County Prosecuting Attorney filed his Petition for Writ of Prohibition with this Court on May 24, 2005. On June 9, 2005, after consideration of the matters raised in the Petition and in Mr. Carroll’s response thereto, this Court issued a rule to show cause why the requested writ should not be awarded. Subsequently, on June 22, 2005, Charles G. Keenan filed a Motion to Intervene in this matter, requesting both the disqualification of Mr. Mitchell from Mr. Carroll’s defense and that any ruling of this Court protect the movant’s interest in confidential communications made with Mr. Mitchell during Mr. Mitchell’s representation of him. Specifically, Mr. Keenan expressed “fear that John R. Mitchell will be compelled to disclose some or all of those confidential communication[s] upon cross-examination of [Mr. Keenan] in order to publically discredit [Mr. Keenan’s] testimony.” Upon consideration of the record before this Court, the oral arguments of counsel and the pertinent legal authorities, we grant the writ, as moulded.
II.
STANDARD OF REVIEW
In Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), this Court set forth the test for determining the propriety of issuing a writ of prohibition. Therein we held:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). When considering the issuance of a writ of prohibition arising from a circuit court’s ruling on a motion for disqualification, this Court has consistently found the same to be an appropriate method of challenge. See State ex rel. McClanahan v. Hamilton, 189 W.Va. 290, 296, 430 S.E.2d 569, 575 (1993); State ex rel. Keenan v. Hatcher, 210 W.Va. 307, 311, 557 S.E.2d 361, 365 (2001); State ex rel. Ogden Newspapers, Inc. v. Wilkes, 198 W.Va. 587, 589, 482 S.E.2d 204, 206 (1996)(per curiam). The rationale for such a finding was succinctly set foi’th in Ogden Newspapers, wherein we stated:
The reason that a writ of prohibition is available in this Court to review a motion to disqualify a lawyer is manifest. If a party whose lawyer has been disqualified is forced to wait until after the final order to appeal, and then is successful on appeal, a retrial with the party’s formerly disqualified counsel would result in a duplication of efforts, thereby imposing undue costs and delay. See State ex rel. DeFrances v. Bedell, 191 W.Va. at 516, 446 S.E.2d at 909. Conversely, if a party who is unsuccessful in its motion to disqualify is forced to wait until after the trial to appeal, and then is successful on appeal, not only is that party exposed to undue costs and delay, but by the end of the first trial, the confidential information the party sought to protect may be disclosed to the opposing party or made a part of the record. Even if the opposing party obtained new counsel, irreparable harm would have already been done to the former client. The harm that would be done to the client if it were not allowed to challenge the decision by the exercise of original jurisdiction in this Court through a writ of prohibition would effectively emasculate any other remedy.
State ex rel. Ogden Newspapers, Inc., 198 W.Va. at 589-90, 482 S.E.2d at 206-7.
III.
DISCUSSION
The primary issue presented to this Court is whether the State has standing to seek disqualification of defense counsel in a criminal proceeding on the basis of a conflict of interest where defense counsel formally represented a State’s witness. The circuit court found standing did not exist. We disagree.
Our prior decisions and the commentary to our Rules of Professional Conduct recognize that an opposing party may, in appropriate circumstances, bring a motion for disqualification due to a conflict of interest. In Syllabus Point 1 of Garlow v. Zakaib, 186 W.Va. 457, 413 S.E.2d 112 (1991), we held:
A circuit court, upon motion of a party, by its inherent power to do what is reasonably necessary for the administration of justice, may disqualify a lawyer from a case because the lawyer’s representation in the case presents a conflict of interest where the conflict is such as clearly to call in question the fair or efficient administration of justice. Such motion should be viewed with extreme caution because of the interference with the lawyer-client relationship.
(Emphasis added); see also State ex rel. Morgan Stanley & Co. v. MacQueen, 187 W.Va. 97, 416 S.E.2d 55 (1992) (involving motion brought by defendant investment firm to disqualify the State’s counsel on basis of conflict of interest where counsel also represented certain State employees whose conduct may be at issue in action to recover investment funds allegedly lost due to conspiracy between employees and investment firm). Moreover, Rule 1.7 of the Rules of Professional Conduct sets forth the general rules governing conflicts of interest. The Comment thereto states, in pertinent part:
Conflict Charged by an Opposing Party Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. In litigation, a court may raise the question when there is reason to infer that the lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. When the conflict is such as to clearly call in question the fair or efficient administration of justice, opposing counsel mag properly raise the question. Such an objection should be viewed with caution, for it can be misused as a technique of harassment.
W. Va. R. Prof. Cond. 1.7 Comment (emphasis added).
We recognize that the decisions cited above arise in the civil litigation context, rather than the criminal context herein presented. We further recognize that in criminal matters, an accused has certain constitutional rights relative to counsel under both the Sixth Amendment of the United States Constitution and Article III, Section 14 of the West Virginia Constitution. Although a criminal defendant has a right to the effective assistance of counsel pursuant to the Sixth Amendment and Article III, Section 14, the right to choice of counsel is not absolute. We have previously held that while an indigent defendant is entitled to competent counsel, he is not entitled to counsel of choice. Syl. Pt. 2, Watson v. Black, 161 W.Va. 46, 239 S.E.2d 664 (1977). Further, when addressing a criminal defendant’s right to counsel of choice in light of the Sixth Amendment, the United States Supreme Court has stated “while the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Sixth Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988) (involving disqualification related to dual representations). See also United States v. Locascio, 6 F.3d at 927, 931 (2d Cir.1993) (presumption in favor of choice of counsel may be overcome by actual or potentially serious conflict of interest); United States v. O’Malley, 786 F.2d 786, 789 (7th Cir.1986) (right to choice of counsel is not absolute); United States v. Ross, 33 F.3d 1507, 1523 (11th Cir.1994) (“The need for fair, efficient, and orderly administration of justice overcomes the right to counsel of choice where an attorney has an actual conflict of interest, such as when he has previously represented a person who will be called as a witness against a current client at a criminal trial.”); State v. Needham, 298 N.J.Super. 100, 688 A.2d 1135, 1136 (1996) (stating “while defendant is entitled to retain qualified counsel of his own choice, he has no right to demand to be represented by an attorney disqualified because of an ethical requirement.”)(emphasis in original) (citations omitted); State ex rel. Youngblood v. Sanders, 212 W.Va. 885, 889, 575 S.E.2d 864, 868 (2002) (right to choice of counsel is not absolute). Where representation is affected by an actual conflict of interest, the defendant can not be said to have received effec tive assistance of counsel as required by the Sixth Amendment.
The defendant’s interest is not the only interest to be considered when ensuring the fairness and integrity of criminal trials. “[CJourts have, an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings are fair to all who observe them.” Wheat, 486 U.S. at 160, 108 S.Ct. at 1698. See also, Locascio, 6 F.3d at 931(same); United States v. Cunningham, 672 F.2d 1064, 1072, n. 7 (2d Cir.1982) (“We believe the government has a sufficient interest in preserving the integrity of a criminal proceeding in which one of its potential witnesses is a former, client of defendant’s counsel to allow the government to raise the question.”); United States v. Gotti, 9 F.Supp.2d 320, 323 (S.D.N.Y.1998) (“courts are obligated to protect thé integrity of judicial proceedings and to ensure the effectiveness of the assistance of counsel by eliminating actual conflicts and carefully regulating potential ones.”); Hanna v. State, 714 N.E.2d 1162 (Ind.Ct.App.1999) (noting under principles announced in Wheat, trial courts “have an independent duty to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment” when alerted to conflicts of interest by one of the parties.). Recognizing this interest, the United States Courts of Appeals for the Fourth, Fifth and Eleventh Circuits have found the government is under a duty to raise defense counsel’s potential conflicts of interest and move for disqualification, if necessary. Tatum, 943 F.2d at 379-80 (4th Cir.1991); In re Gopman, 531 F.2d 262, 265-6 (5th Cir.1976) (government’s duty arises from the ethical duty of its attorney); United States v. Migliaccio, 34 F.3d 1517, 1528 (10th Cir.1994). We find these decisions persuasive.
While standing to raise a conflict of interest in a disqualification is generally vested with the client, an exception to this rule exists “where the interests of the public are so greatly implicated that a third party should be entitled to 'raise the conflict.” Lowe v. Experian, 328 F.Supp.2d 1122, 1128 (D.Kan.2004). Considering its interest in the fairness and integrity of criminal trials, it is unsurprising that several courts have expressly recognized the government’s (or State’s) standing to move for the disqualification of defense counsel in light of an actual or potentially serious conflict of interest. Cunningham, 672 F.2d at 1072, n. 7 (government has sufficient interest in integrity of criminal proceeding to raise question of disqualification); In re Gopman, 531 F.2d at 265-6 (government, through its attorney, has standing to report ethical problems arising from attorney’s dual representation of union and union officials during federal grand jury investigation of union activities); United States v. Culp, 934 F.Supp. 394, 399 (M.D.Fla.1996) (rejecting challenge to government’s standing to bring motion to disqualify arising from defense counsel’s prior representation of government witness); United States v. Linton, 502 F.Supp. 871, 876 (D.Nev.1980) (finding government has standing to move to disqualify defense counsel due to existence of conflict of interest or serious possibility of conflict of interest); State v. Ehlers, 262 Neb. 247, 631 N.W.2d 471 (2001) (holding State has standing to seek disqualification of defense counsel). While not specifically finding the government (or State) had standing to seek disqualification of defense counsel due to a conflict of interest, numerous other courts, including this Court, have reviewed lower courts’ disqualification rulings on motions brought by the government (or State). See, e.g., Wheat, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (government objection to proposed substitution of counsel due to dual representations); Locascio, 6 F.3d at 927 (2d Cir.1993) (“house counsel” representation of “head” and “underboss” of alleged criminal enterprise and counsel as “unsworn witness”); Ross, 33 F.3d 1507 (11th Cir.1994) (former representation of prosecution witness); United States v. Gotti, 771 F.Supp. 552 (E.D.N.Y.1991) (counsel as witness and prior representation of government witnesses); United States v. James, 555 F.Supp. 794 (S.D.N.Y.1983) (prior representation of potential prosecution witness); Lemaster v. Ohio, 119 F.Supp.2d 754 (S.D.Ohio 2000) (former representation of co-defendant/witness); People v. Ortega, 209 Ill.2d 354, 283 Ill.Dec. 530, 808 N.E.2d 496 (2004) (former client as witness); Hanna v. State, 714 N.E.2d 1162 (Ind.Ct.App.1999) (dual representation); State v. Kezer, 918 S.W.2d 874 (Mo.Ct.App.1996) (counsel as witness for impeachment purposes); State v. Needham, 298 N.J.Super. 100, 688 A.2d 1135, 1136 (1996) (former client as principle witness); State v. Catanoso, 222 N.J.Super. 641, 537 A.2d 794 (1987) (president of former business client as witness); Gonzalez v. State, 117 S.W.3d 831 (Tex.Crim.App.2003) (counsel as potential witness); State ex rel. Youngblood v. Sanders, 212 W.Va. 885, 575 S.E.2d 864 (2002) (prior consultation with co-defendant’s wife regarding incident and possible representation). In the criminal arena, the prosecutor is the guardian of the State’s interest in the fairness and integrity of our criminal justice system. In discussing a prosecutor’s duties with respect to criminal matters, this Court has previously held that “[t]he prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case. In keeping with this position, he ... must deal fairly with the accused as well as other participants in the trial. It is the prosecutor’s duty to set a tone of fairness and impartiality!!]” Syl. Pt. 3, in part, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977). In light of the State’s interest in the fairness and integrity of criminal trials and the recognized duties of a prosecutor, we now hold that the State of West Virginia, through the prosecuting attorney, has standing to move for disqualification of defense counsel in a criminal proceeding in limited circumstances where there appears to be an actual conflict of interest or where there is a significant potential for a serious conflict of interest involving defense counsel’s former (or current) representation of a State witness.
In making a motion for disqualification of a criminal defendant’s chosen defense counsel, the State bears a heavy burden of proving disqualification is necessary and justified. United States v. Diozzi, 807 F.2d 10, 16 (1st Cir.1986); United States v. Washington, 797 F.2d 1461, 1465 (9th Cir.1986); Hanna, 714 N.E.2d at 1165; Ehlers, 631 N.W.2d at 481; Needham, 688 A.2d at 1136; Catanoso, 537 A.2d at 796; Gonzalez, 117 S.W.3d at 837. “[Bjeeause disqualification of a criminal defenclant’s chosen counsel raises problems of a constitutional dimension, it is a harsh remedy that should be invoked infrequently.” Ehlers, 631 N.W.2d at 479 (citing U.S. v. Gotti, 9 F.Supp.2d 320 (S.D.N.Y.1998)). In Wheat, the United States Supreme Court noted that although a court “must recognize a presumption in favor of [a defendant’s] counsel of choice,” the presumption “may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.” Wheat, 486 U.S. at 164, 108 S.Ct. at 1700. See also Locascio, 6 F.3d at 931 (same).
Upon the State’s motion to disqualify counsel, a trial court “must balance two Sixth Amendment rights: (1) the right to be represented by counsel of choice and (2) the right to a defense conducted by an attorney who is free of conflicts of interest.” Ross, 33 F.3d at 1523, citing Wheat, 486 U.S. at 160, 108 S.Ct. at 1697; Ehlers, 631 N.W.2d at 480, citing Ross. In addition, a trial court must balance “the constitutional right of the defendant to representation by counsel of his choosing with the court’s interest in the integrity of its proceedings and the public’s interest in the proper administration of justice.” United States v. Reese, 699 F.2d 803, 805 (1983). See also Cunningham, 672 F.2d at 1070 (“[i]n determining whether the right of the accused to counsel of his own choosing should be honored in a particular case, we must balance the defendant’s constitutional right against the need to preserve the highest ethical standards of professional responsi bility.”); United States v. James, 555 F.Supp. 794, 797 (S.D.N.Y.1983) (same). Where the disqualification sought is based upon a conflict of interest with a government witness, “the decision to disqualify an attorney in a criminal case requires an evaluation of the interests of the defendant, the government, the witness and the public view of the circumstances of each particular case.” O’Malley, 786 F.2d at 790. Consequently, “in evaluating Sixth Amendment claims, ‘the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his lawyer as such.’ ” Wheat, 486 U.S. at 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (quoting United States v. Cronic, 466 U.S. 648, 657, n. 21, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). “[E]ven the constitutional dimension of a criminal defendant’s right to counsel of his choice does not give the defendant the right to take advantage of his preferred attorney’s confidential knowledge gained from prior representation of the witness.” O’Malley, 786 F.2d at 791-2 quoting United States v. James, 708 F.2d 40, 45 (2d Cir.1983).
Several courts have addressed the concerns which are raised by a motion to disqualify defense counsel in situations where a prosecution witness is defense counsel’s former client. Such concerns are centered upon confidential information, its use in cross-examination of the former client and counsel’s divided loyalties between current and former clients. Such concerns are valid in light of an attorney’s ethical responsibilities to former clients which may preclude an attorney’s representation of another. See W. Va. R. Prof. Cond. 1.9. Addressing conflicts of interest between current and former clients of a criminal defense attorney, the United States Court of Appeals for the Eleventh Circuit has noted:
Our goal is to discover whether the defense lawyer has divided loyalties that prevent him from effectively representing the defendant. If the conflict could cause the defense attorney improperly to use privileged communications in cross-examination, then disqualification is appropriate. Indeed, it is also true that disqualification is equally appropriate if the conflict could deter the defense attorney from intense probing of the witness on cross-examination to protect privileged communications with the former client or to advance the attorney's own personal interest. In short, the court must protect its independent interest in ensuring that the integrity of the judicial system is preserved and that trials are conducted within ethical standards.
Ross, 33 F.3d at 1523 (citations omitted). See also Ehlers, 631 N.W.2d at 480 (same). Similarly, the United States District Court for the Middle District of Florida has stated:
Because of the lawyer’s continuing duty of confidentiality, the representation, be it simultaneous or successive, of more than one defendant charged in the same criminal conspiracy inevitably presents a conundrum for the lawyer who is so engaged. This conundrum is posed most starkly where, as here, the lawyer’s former client will testify against his current client as a witness for the Government. To vigorously defend his current client, the lawyer must cross-examine his former client in an effort to impeach the former client’s credibility. The ethical canons thus present the lawyer with a Hobson’s choice: the lawyer must either seek to elicit confidential information from the former client, or refrain from vigorous cross-examination. Because the conflicting ethical imperatives under such circumstances place the defense lawyer in an untenable position, representation under such circumstances is presumptively suspect.
Culp, 934 F.Supp. at 398 (citations and footnote omitted).
The Illinois Supreme Court recently identified four non-exclusive interests or factors for a court to consider when determining whether the State has overcome the presumption in favor of a defendant’s counsel of choice. Those considerations include: People v. Ortega, 209 Ill.2d 354, 283 Ill.Dec. 530, 808 N.E.2d 496, 502 (2004) (citing People v. Holmes, 141 Ill.2d 204, 152 Ill.Dec. 268, 565 N.E.2d 950 (1990)). The appearance of impropriety arising from counsel’s cross-examination of a former client raises several distinct concerns including: (1) a perception that a State’s witness may have unfairly aided a criminal defendant; (2) a perception that defense counsel may not vigorously cross examine his former client; and (3) a perception that defense counsel will use confidential information in the cross examination of his former client. Needham, 688 A.2d at 1137-38.
(1) the defendant’s interest in having the undivided loyalty of counsel; (2) the State’s right to a fair trial in which defense counsel acts ethically and does not use confidential information to attack a State’s witness; (3) the appearance of impropriety should the jury learn of the conflict; (4) the probability that continued representation by counsel of choice will provide grounds for overturning a conviction.
Ever cognizant in the circuit court's mind when considering a State motion for the disqualification of defense counsel must be the State’s motive for bringing the same. The circuit court must consider whether a situation truly involves an actual or serious potential for a conflict of interest or whether the State is instead seeking to deprive the defendant of his or her counsel of choice. As recognized by the United States Supreme Court
Petitioner of course rightly points out that the Government may seek to ‘manufacture’ a conflict in order to prevent a defendant from having a particularly able defense counsel at his side; but trial courts are undoubtedly aware of this possibility and must take it into consideration along with all of the other factors which inform this sort of a decision.
Wheat, 486 U.S. at 163, 108 S.Ct. at 1692. See also Comment W. Va. R. Prof. Cond. 1.7 (warning such a motion may be “misused as technique of harassment.”) We agree with the United States Supreme Court that the State’s motive in bringing a motion for disqualification is an appropriate and necessary inquiry for the circuit court to determine in ruling on such a motion.
We find the substantial case law from other jurisdictions cited above to be persuasive in considering the competing interests which must be balanced upon the State’s motion to disqualify a criminal defendant’s choice of counsel due to an alleged conflict of interest arising from counsel’s former representation of a State’s witness. Accordingly, we hold that where the State moves for disqualification of a criminal defendant’s counsel of choice due to counsel’s former representation of a State witness, the State bears a heavy burden of proving disqualification is necessary and justified. A presumption in favor of a defendant’s choice of counsel exists. However, this presumption may be overcome where, in the court’s view, the State demonstrates the existence of an actual conflict of interest or the significant potential for a serious conflict of interest. In determining whether a conflict of interest should overcome the presumption in favor of defendant’s choice of counsel, the circuit court must balance: (1) the defendant’s right to be represented by counsel of choice; (2) the defendant’s right to a defense conducted by an attorney who is free of conflicts of interest; (3) the court’s interest in the integrity of its proceedings; (4) the witness’s interest in protection of confidential information; (5) the public’s interest in the proper administration of justice; (6) the probability that continued representation by counsel of choice will provide grounds for overturning a conviction; and (7) the likelihood that the State is attempting to create a conflict in order to deprive the defendant of his counsel of choice. Factors which the circuit court should weigh in conducting this balance include, but are not limited to: (1) the potential for use of confidential information by defendant’s counsel when cross-examining the State’s witness; (2) the potential for a less than zealous cross-examination by defendant’s counsel of the State’s witness; (3) the defendant’s interest in having the undivided loyalty of his or her counsel; (4) the State’s right to a fair trial; and (5) the appearance of impropriety should the jury learn of the conflict. These factors are to be considered in light of the individual facts and circumstances of each ease.
Our holding today is meant to guide the circuit court’s consideration of the State’s motion to disqualify a criminal defense counsel. We recognize the difficulty in predicting conflicts which may become apparent during the course of a criminal trial and that the circuit court does not have the benefit of hindsight in making its determination. In light of these difficulties, the United States Supreme Court found the trial court should be afforded considerable latitude in making its determination to disqualify a criminal defense attorney due to a conflict of interest. Wheat, 486 U.S. at 163-64, 108 S.Ct. at 1699-1700. Recognizing the trial court’s need for latitude, several courts have applied an abuse of discretion standard when reviewing decisions on disqualification motions. See Locascio, 6 F.3d at 931; O’Malley, 786 F.2d at 793; Lemaster, 119 F.Supp.2d at 765; Ortega, 283 Ill.Dec. 530, 808 N.E.2d at 500; Gonzalez, 117 S.W.3d 831. We agree that this is the appropriate standard of review.
Although the circuit court is afforded discretion in its balance of competing interests, an adequate record must be made for review. We have previously held:
Before a circuit court disqualifies a lawyer in a case because the lawyer’s representation may conflict with the Rules of Professional Conduct, a record must be made so that the circuit court may determine whether disqualification is proper. Furthermore, this Court will not review a circuit court’s order disqualifying a lawyer unless the circuit court’s order is based upon an adequately developed record. In the alternative, if the circuit court’s order disqualifying a lawyer is based upon an inadequately developed record, this Court, under appropriate circumstances, may remand a case to the circuit court for development of an adequate record.
Syl. Pt. 5, Garlow. In light of the significant constitutional interests at stake when the State seeks to disqualify a criminal defense counsel and the need for an adequate record for review, we hold that a circuit court presented with a motion by the State to disqualify a criminal defense counsel due to a conflict of interest arising from counsel’s former representation of a State witness shall hold a hearing to afford the State, the defendant and the State’s witness an opportunity to present evidence regarding their competing interests. The circuit court shall not require the client to disclose confidential information during the hearing, but may, in appropriate circumstance where there is a significant question regarding the possibility of disclosure of confidential information at trial, conduct an in camera review of the purported confidential information. The circuit court shall set forth its findings and ruling in a manner adequate for review.
IV.
CONCLUSION
This Court finds the State to have standing to seek the disqualification of a criminal defense attorney due to a conflict of interest arising from counsel’s former representation of a State’s witness. Accordingly, we grant the writ as moulded and remand this matter for proceedings consistent with this opinion order.
WRIT GRANTED AS MOULDED.
Justice BENJAMIN delivered the opinion of the Court.
Justice DAVIS concurs and reserves the right to file a concurring opinion.
. Paul M. Blake, Jr. is currently a qircuit court judge.
. Mr. Mitchell defended Charles G. Keenan on a first degree murder charges brought in 2000. Mr. Mitchell's representation of Mr. Keenan included two appearances before this Court, including the reversal of Mr. Keenan's conviction for voluntary manslaughter. See State ex rel. Keenan v. Hatcher, 210 W.Va. 307, 557 S.E.2d 361 (2001) (dismissal of recidivist charges due to disqualification of prosecutor based upon conflict of interest) and State v. Keenan, 213 W.Va. 557, 584 S.E.2d 191 (2003)(reversal of voluntary manslaughter conviction and remand for new trial). Additionally, Mr. Mitchell represented Gary K. Skaggs, the brother of Mr. Keenan's wife, in a civil action arising from the death of Mr. Skaggs’ son, Fayette County civil action number 01-C-113. It appears that the civil litigation concluded in April 2005 and was unrelated to the charges pending against Mr. Carroll. The first degree murder charges asserted against Mr. Keenan are likewise unrelated to the incident for which Mr. Carroll has been charged. It appears that Mr. Keenan is currently awaiting the new trial which was ordered in 2003.
. According to Mr. Carroll, Mr. Mitchell's representation of Mr. Keenan ceased September 14, 2004 upon Mr. Keenan’s retention of substitute counsel.
. As stated by the United States Court of Appeals for the Fourth Circuit in United States v. Tatum, 943 F.2d 370, 375 (4th Cir.1991):
The effective performance of counsel requires meaningful compliance with the duty of loyalty and the duty to avoid conflicts of interest, and a breach of these basic duties can lead to ineffective representation. More than a mere possibility of a conflict, however, must be shown. The Sixth Amendment is implicated only when the representation of counsel is adversely affected by an actual conflict of interest. When counsel for a defendant in a criminal case has an actual conflict of interest when representing the defendant and the conflict adversely affects counsel's performance in the defense of the defendant, prejudice to the defense is presumed and a new trial must be ordered.
(Emphasis in original). See also United States v. Ross, 33 F.3d 1507, 1523 (11th Cir.1994) ("When an actual conflict of interest exists, the client is denied effective assistance of counsel, and the attorney may be disqualified.”)
. It is, of course, the obligation of defense counsel in the first instance to proceed in a manner consistent with counsel’s obligations under the West Virginia Rales of Professional Conduct. | [
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PER CURIAM:
This case is before this Court upon the appeal of Matthew S. Flanders from his convictions in the Circuit Court of Roane County, West Virginia, by a jury, of three counts of brealdng and entering a building other than a dwelling, two counts of larceny, one count of possession of a controlled substance with intent to deliver and five counts of conspiracy. The convictions arose from the allegations of the State that Flanders and others engaged in a crime spree in and about Spencer, West Virginia, following a Fourth of July celebration. Pursuant to orders of the Circuit Court of Roane County entered on March 12, 2004, and April 9, 2004, Flanders was sentenced to an aggregate term in the penitentiary of not less than 3 nor more than 25 years and directed to pay, restitution to the crime victims. The record indicates that Flanders is currently incarcerated in the St. Marys Correctional Center in St. Marys, West Virginia.
This Court has before it the petition for appeal, all matters of record and the briefs of counsel. The appellant assigns as error the Circuit Court’s denial of his motion challenging the sufficiency of the indictment and the Circuit Court’s admission in evidence of a written statement given to the police by an individual named Robert Shaffer, Jr. Upon careful consideration, however, this Court concludes that those assignments are without merit. Consequently, the orders entered by the Circuit Court on March 12, 2004, and April 9, 2004, are affirmed.
I.
Factual and Procedural Background
According to the evidence of the State, appellant Flanders, age 18, and a number of friends gathered to watch a municipal fireworks display in Spencer on July 4, 2002. Thereafter, the appellant and Samuel McClung broke into the nearby Cain Veterinary Clinic and stole several vials of an animal tranquilizer known as ketamine. Keta-mine, commonly used as an anesthetic during surgery on cats, is a Schedule III controlled substance under W. Va.Code, 60A-2-208 (2002). Known on the street as “Special K,” ketamine can be cooked down to powder form and ingested as an illicit drug. While in the Clinic, the appellant and McClung also took a cash box containing approximately $100.00. The appellant and McClung then broke into the adjoining Spencer Lanes bowling alley. Finding nothing of value, they left the premises.
Later, with McClung acting as lookout, appellant Flanders broke into Reid’s Auto Sales and took the keys to a number of vehicles parked on the lot. The appellant and McClung then left Reid’s Auto Sales but returned shortly thereafter accompanied by M. T., a 16 year old juvenile. The individuals took the following vehicles from the lot: (1) a 1993 Ford Explorer, driven by Samuel McClung, (2) a 1997 Pontiac Sunfire, driven by M. T., and (3) a 1997 Chevy Monte Carlo, driven by the appellant. The individuals di’ove the vehicles throughout the area for an extended period of time and abandoned them in separate locations in the early morning hours of July 5, 2002. According to the report filed by the Roane County Sheriffs Department, the Pontiac Sunfire was not damaged, but the Ford Explorer was damaged in the amount of $3,500.00, and the Monte Carlo was a total loss.
In January 2003, a Roane County grand jury returned an indictment charging the appellant with a number of offenses relating to the above events. A jury trial was conducted by the Circuit Court in November 2003. Samuel McClung, under a plea agreement with the State, testified and implicated the appellant in each of the charges. In addition, State’s exhibit 44 was admitted into evidence which was a small kettle containing a white powder residue. The kettle containing the powder had been seized.from the appellant’s bedroom pursuant to a search warrant. The State elicited testimony before the jury to the effect that, upon testing, the powder was identified as ketamine.
The' appellant, on the other hand, testified at trial and denied any involvement in the events in question. Specifically, the appellant stated that he watched the fireworks in Spencer with his girlfriend, Sara Stotts, and that, thereafter, they spent the evening together at the appellant’s residence. Similar testimony was given during the trial by Ms. Stotts. Consequently, an instruction upon the defense of alibi was included by the Circuit Court in its charge to the jury.
As indicated above, the jury found appellant Flanders guilty of three counts of breaking and entering a building other than a dwelling, two counts of larceny, one count of possession of a controlled substance with intent to deliver and five counts of conspiracy. The appellant was sentenced to an aggregate term in the penitentiary of not less than 3 nor more than 25 years and directed to pay restitution. The appellant’s convictions maybe summarized in relation to the events of July 4 and 5, 2002, as follows: (1) with regard to the Cain Veterinary Clinic, one count of breaking and entering a building other than a dwelling, one count of petit larceny relating to the taking of the vials of ketamine, the cash box and the money therein, one count of possession of ketamine with intent to deliver and three counts of conspiracy, (2) with regal'd to Spencer Lanes bowling alley, one count of breaking and entering a building other than a dwelling and (3) with regard to Reid’s Auto Sales, one count of breaking and entering a building other than a dwelling, one count of grand larceny relating to the taking of the vehicles, the keys and two dealer plates, and two counts of conspiracy.
In January 2004, the Circuit Court denied the appellant’s motion for a new trial. Subsequently, this appeal was granted.
II.
The Sufficiency of the Indictment
First, appellant Flanders contends that the Circuit Court committed error by denying his motion to dismiss Counts 4 and 11 of the indictment. Count 4 charged the appellant with grand larceny with regard to Reid’s Auto Sales, and Count 11 was the corresponding conspiracy charge. The appellant asserts that those Counts should have been dismissed because the use of the word “approximately” in Count 4, in relation to the value of the vehicles allegedly stolen, created an uncertainty thereby resulting in a denial of his right to be fully and plainly informed of the charges against him. The appellant relies upon State v. Criss, 125 W.Va. 225, 23 S.E.2d 613 (1942), which held that an allegation in an indictment, that a reel of stolen wire cable was of the “approximate value” of $50.00, was indefinite and rendered the indictment fatally defective.
The indictment, in Criss, alleged that the defendant committed grand larceny by taking “one reel of approximately three hundred feet of No. 2 parallel duplex wire cable ... of the approximate value of Fifty Dollars [.]” By contrast, Count 4 herein states:
That Matthew S. Flanders, on the _ day of July, 2002, in the said County of Roane, State of West Virginia, committed the offense of “Grand Larceny”, in that Matthew S. Flanders, did unlawfully, intentionally, knowingly and feloniously committed simple larceny of goods or chattels of the value of one thousand dollars or more, with the intent to permanently deprive the owner Reid’s Auto Sales thereof, to-wit: one (1) 1993 Ford Explorer valued at approximately Four Thousand Dollars ($4,000.00); one (1) 1997 Pontiac Sunfire valued at approximately Four Thousand Five Hundred Dollars ($4,500.00); one (1) 1997 Chevy Monte Carlo valued at approximately Five Thousand Nine Hundred Dollars ($5,900.00); one (1) set of keys to a 1991 Pontiac Grand Prix; one (1) set of keys to a 1992 Chevy Cavalier; one (1) set of keys to a 1988 Jeep Cherokee; one (1) set of keys to a 1988 Ford Ranger; one (1) set of keys to a 1984 Ford truck; one (1) set of keys to a 1995 Dodge Neon; one (1) dealer plate #DUC2 1604; and one (1) dealer plate # DUC3 1604; with a grand total of Fourteen Thousand Four Hundred ($14,-400.00) from the goods and chattels belonging to Reid’s Auto Sales, in violation of the West Virginia Code 61-3-13(a), against the peace and dignity of the State.
The Constitution of West Virginia, art. Ill, § 14, provides the accused with the right to be “fully and plainly informed of the character and cause of the accusation.” As this Court recognized in State v. Wade, 174 W.Va. 381, 384, 327 S.E.2d 142, 146 (1985), the requirements of that provision have been implemented in Rule 7(c)(1) of the West Virginia Rules of Criminal Procedure. Pursuant to that Rule, an indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” The West Virginia Rules of Criminal Procedure have been in effect since 1981.
In syllabus point 6 of State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999), this Court held:
An indictment is sufficient under Article III, § 14 of the West Virginia Constitution and W.Va. R.Crim. P. 7(c)(1) if it (1) states the elements of the offense charged; (2) puts a defendant on fair notice of the charge against which he or she must defend; and (3) enables a defendant to assert an acquittal or conviction in order to prevent being placed twice in jeopardy.
Syl. pt. 2, State ex rel. Day v. Silver, 210 W.Va. 175, 556 S.E.2d 820 (2001). Moreover, as this Court observed in syllabus point 2 of State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996): “Generally, the sufficiency of an indictment is reviewed de novo. An indictment need only meet minimal constitutional standards, and the sufficiency of an indictment is determined by practical rather than technical considerations.” Syl. pt. 2, State v. Palmer, 210 W.Va. 372, 557 S.E.2d 779 (2001); syl. pt. 7, State v. Bull, 204 W.Va. 255, 512 S.E.2d 177 (1998).
Here, the appellant was charged in Count 4 with grand larceny concerning the items taken from Reid’s Auto Sales. An examination of Count 4 reveals that it substantially followed the provisions of the statute under which the appellant was charged, W.Va.Code, 61-3-13(a) (1994). See, n. 3, supra. Although the value of each of the vehicles was set forth as approximations, Count 4 began with the allegation, consistent with W.Va. Code, 61-3-13(a) (1994), that the appellant committed “simple larceny of goods or chattels of the value of one thousand dollars or more.” Moreover, alleging that the appellant intended to “permanently deprive” Reid’s Auto Sales of the items, Count 4 then described the vehicles, setting forth the make, model and year of each vehicle and its approximate value. In the latter regard, the record indicates that all of the vehicles sold at Reid’s Auto Sales were used, rather than new, vehicles. Count 4 concluded by stating that the various items taken from Reid’s Auto Sales totaled $14,400.00.
In its ruling, the Circuit Court expressed the opinion that, if one vehicle of “approximate value” had been the only item taken, a dismissal might have been warranted. The Circuit Court concluded, however, that, in view of the allegation that multiple vehicles were among the items taken, Count 4 was sufficient to withstand the motion to dismiss. This Court agrees and finds the Criss case cited by the appellant not to be dispositive in these circumstances. In the more recent case of State ex rel. Day v. Silver, supra, this Court held in syllabus point 5:
In order for an indictment for larceny to be sufficient in law, it must identify with specificity the particular items of property which are the subject of the charge by specifically describing the property, unless the property is incapable of identification as in cases involving fungible goods, United States currency or comparable articles.
For the above reasons, this Court concludes that Count 4 sufficiently set forth the elements of grand larceny, put the appellant on notice of the charges against him and did not violate his protections against double jeopardy. Therefore, the appellant’s assignment of error concerning Count 4 and the corresponding conspiracy charge in Count 11 is without merit.
III.
The Statement of Robert Shaffer, Jr.
Appellant Flanders also assigns as error the Circuit Court’s admission in evidence of a written statement given to the police by an individual named Robert Shaffer, Jr.
Toward the end of its case-in-chief, the State called Robert Shaffer, Jr., to the stand and asked him whether, after July 4 and 5, 2002, he and the appellant had had a conversation about the events in question. Upon denying any memory thereof, the State showed Shaffer a written statement he gave to the police on August 1, 2002, some two weeks after the alleged conversation took place. Although he admitted writing and signing the statement and indicated that it was a truthful account of his conversation with the appellant, Shaffer also told the jury: (1) that he still did not remember having the conversation with the appellant, (2) that he gave the statement to the police (apparently in an effort to exonerate himself) because he thought he was a suspect in the crimes and (3) that the conversation he had could have been with Samuel McClung rather than with the appellant. The Circuit Court instructed the jury that the August 1, 2002, statement to the police was being used to refresh Shaffer’s recollection and that the statement was not evidence.
During Shaffer’s ensuing testimony, the contents of his statement to the police, which essentially consisted of the appellant’s admission of involvement in the crimes charged, were revealed to the jury. No objection thereto was raised by the appellant during Shaffer’s testimony.
Thereafter, during an in camera discussion, the Circuit Court concluded that, inasmuch as Shaffer had testified that he wrote and signed the statement and that he had said that the statement was a truthful account of his conversation with the appellant, the statement would be admissible pursuant to Rule 803(5) of the West Virginia Rules of Evidence as a recorded recollection. Shaffer’s statement to the police was then admitted into evidence under that Rule upon the State’s motion and read to the jury. Although appellant Flanders objected to the admission of the statement during the in camera discussion, his objection was not pursued when the Circuit Court made its formal ruling. As the trial transcript reveals:
Mr. Sergent: * * * We would move to read to the jury the contents in its entirety of State’s Exhibit no. 49.
The Court: You want to offer that as evidence?
Mr. Sergent: Yes, your Honor.
The Court: And this is the statement of Robert Shaffer, Jr.
Mr. Sergent: The statement of Robert Allen Shaffer, Jr.
The Court: Is there an objection?
Ms. Monk: No objection.
The Court: Without objection, the Court will order admitted into evidence the statement of Robert Shaffer, Jr. [.]
After the August 1, 2002, statement of Shaffer to the police was read to the jury, the State rested its case. The appellant now asserts that the Circuit Court committed error in admitting the statement because Shaffer’s equivocal testimony at trial, in fact, undermined the statement’s validity and precluded the State from establishing a proper foundation for its admission. In the opinion of this Court, however, that assertion is deprived of significance by the failure to preserve the issue for appeal.
Rule 103(a) of the West Virginia Rules of Evidence provides that error may not be predicated upon the admission of evidence unless a substantial right of the party is affected and “a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context [.]” In this ease, the August 1, 2002, statement given by-Shaffer to the police, recounting appellant Flanders’ acknowledgment of involvement in the crimes charged, was used by the State during Shaffer’s testimony each time he stated that he could not remember the conversation with the appellant. As indicated above, no objection thereto was raised by the appellant to Shaffer’s testimony.
Thereafter, an objection was made during the in camera discussion during which the Circuit Court determined the statement to be "admissible as a recorded recollection. As shown above, however, that objection was not pursued when the State moved for the statement’s admission. The Circuit Court, thus, noted that the statement would be admitted in evidence “without objection.” Nor could the admission of Shaffer’s statement be considered plain error or overly prejudicial. Shaffer was called by the State near the end of its case-in-chief, and his statement to the police, which he consistently attempted to disavow before the jury, followed the testimony of,Samuel McClung who implicated the appellant in each of the charges. Moreover, the kettle found in the appellant’s bedroom, which contained a powder residue identified as ketamine, had already been admitted in evidence.
In syllabus point 1 of State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964), this Court held: “Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal.” Syl. pt. 9, State v. Shrewsbury, 213 W.Va. 327, 582 S.E.2d 774 (2003); syl. pt. 7, State v. Carey, 210 W.Va. 651, 558 S.E.2d 650 (2001); syl. pt. 1, State v. Simons, 201 W.Va. 235, 496 S.E.2d 185 (1997); syl. pt. 10, State v. Satterfield, 193 W.Va. 503, 457 S.E.2d 440 (1995). Here, no objection to the August 1, 2002, statement was made during Shaffer’s testimony, and a subsequent objection was not pursued upon specific inquiry by the Circuit Court at the time the statement was admitted into evidence. Consequently, this Court declines to grant relief with regard to this assignment of error.
IV.
Conclusion
The appellant’s assignments of error concerning the sufficiency of the indictment and the statement of Robert Shaffer, Jr., are without merit. Accordingly, the orders, of the Circuit Court of Roane County, West Virginia, entered on March 12, 2004, and April 9, 2004, sentencing the appellant to the penitentiary and directing him to pay restitution are affirmed.
Affirmed
. This Court follows its past practice and shall refer to the name of this underage individual by initials only. State v. Jason H., 215 W.Va. 439, 441 n. 2, 599 S.E.2d 862, 864 n. 2 (2004).
. The order of March 12, 2004, directed the appellant to pay restitution to the Cain Veterinary Clinic in the amount of $ 170.00. The order of April 9, 2004, directed the appellant to pay $11,895.00 to the owner of Reid’s Auto Sales.
. The indictment charged the appellant with grant larceny pursuant to W.Va.Code, 61-3-13(a) (1994), which states:
If a person commits simple larceny of goods or chattels of the value of one thousand dollars or more, such person is guilty of a felony, designated grand larceny, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one nor more than ten years, or, in the discretion ,of the court, be confined in jail not more than one year and shall be fined not more than two thousand five hundred dollars.
. Rule 803 of the West Virginia Rules of Evidence states in part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(5) Recorded recollection. — A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him or her to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
. In so concluding, this Court notes that, although the Circuit Court admitted Shaffer’s August 1, 2002, statement under Rule 803(5) as a recorded recollection, the statement was referred to prior to that ruling as a statement to refresh recollection and as a prior inconsistent statement. In view of the failure to preserve the issue for appeal, this Court need not preemptively determine which of those alternatives most accurately described the statement as it was utilized by the Slate at trial.
. Rule 103(d) of the West Virginia Rules of Evidence concerning “plain error” in relation to evidentiary rulings states: “Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.”
. In so holding, this Court is not unmindful that the appellant raised the issue of the admissibility of Shaffer's statement in his motion for a new trial. The motion, however, was not sufficient to preserve the error under the circumstances of this case.
First, the Circuit Court was never asked to exercise its discretion in terms of assessing the prejudicial impact to the appellant the statement would have if revealed to the jury. Second, although the appellant objected to the statement during the in camera discussion, Shaffer, at that point, had been excused as a witness, and the jury, through the State's questioning of Shaffer, had already learned of the statement’s contents, without objection. Third, as stated above, the objection to the statement made during the in camera discussion was not pursued when the State moved for its admission. The motion for a new trial did not rehabilitate those omissions by the appellant. See, State v. Simons, supra, 201 W.Va. at 240 n. 8, 496 S.E.2d at 190 n. 8, (indicating that the failure to raise an objection to the admission of police booking reports constituted a waiver, notwithstanding the raising of that issue during argument upon the defendant's post-trial motions of acquittal and for a new trial); State v. Humphrey, 177 W.Va. 264, 272, 351 S.E.2d 613, 620-21 (1986) (stating that matters surrounding the impaneling of a jury must be raised by objection and not for the first time in a motion for a new trial). In State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983), this Court observed:
The defendant further argues that the prosecuting attorney improperly impeached a defense witness on a past criminal conviction. In his motion for a new trial, the defendant, for the first time, contended that this was improper impeachment because the criminal charge against the witness was still pending in court. The failure of the defendant to make a timely objection forecloses consideration of this point on appeal, although we do note that the witness admitted in her testimony that she had in fact already been convicted of the crime referred to by the prosecuting attorney.
172 W.Va. at 823, 310 S.E.2d at 890. See also, Vol. II, F.D. Cleckley, Handbook on West Virginia Criminal Procedure, p. 282 (2nd ed., Michie— 1993) ("Failure to raise claims in an appropriate and timely manner generally bars review by post-conviction motion and direct appeal.'').
. A final assignment of error raised by the appellant concerns the State’s reference during the trial to a pre-trial request that the appellant submit additional fingerprints to State investigators. However, the appellant testified at trial, in response, that he was aware of no such request. Moreover, his counsel told the jury during closing arguments that there was no fingerprint evidence connecting the appellant to the crimes.
In denying the appellant’s motion for a new trial, the Circuit Court found that the fingerprint issue "did not play a substantial or material role in this case.” Upon careful review, this Court agrees and finds no reversible error in that regard. | [
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PER CURIAM:
This is an appeal by David Wayne Hedrick (hereinafter “Appellant”) from an order of the Circuit Court of Kanawha County holding that a child support arrearage collection was not barred by the ten-year statute of limitations. On appeal, the Appellant maintains that the lower court incorrectly determined that the statute of limitations did not bar the action against him. • Upon thorough review of the record, the briefs, and applicable precedent, this Court reverses the decision of the Circuit Court of Kanawha County.
I. Factual and Procedural History
The Appellant and his former wife, Carolyn Hedrick, were divorced by order entered on June 18, 1975. In that June 18, 1975, order, child support of $150.00 monthly was granted for the benefit of the parties’ two sons, the younger of whom reached the age of majority on July 17, 1988. The record reflects that various attempts were made between 1975 and the present to collect child support from the Appellant. On October 8, 1985, for instance, a suggestee execution was issued in an attempt to collect the owed child support. In 1989, three income withholding notices were sent to the Appellant. Prior to June 1990, the Appellant relocated to the State of Florida, and attempts to obtain federal and state tax refund offsets were made at least seven times from 1989 to 2001. The calculations contained in the record reflect that the Appellant was in arrears in the payment of child support by $67,483.07, including interest, from June 1, 1975, to October 31, 2002.
On January 15, 2002, the West Virginia Bureau for Child Support Enforcement (hereinafter “Bureau”) issued a wage withholding order to obtain the child support arrearage. The Appellant sought relief from that wage withholding order, and on December 10, 2002, an order was issued by the Family Court of Kanawha County holding that the statute of limitations barred enforcement of the wage withholding order against the Appellant. The Family Court reasoned that “[t]he entire notion of administrative collection attempts, such as wage with holding [sic] and tax intercepts, are new to the law and are not on the same level as a court-sanctioned collection attempts, such as a writ of execution or a suggestion.”
The Bureau and Mrs. Taylor appealed that determination to the Circuit Court of Kana-wha County. On June 16, 2003, the Circuit Court reversed the Family Court order, reasoning that the Bureau “has taken enforcement action through income withholding and income tax refund intercept, and that there was never a 10-year period within which collection efforts were not made.” Further, the Circuit Court held that the Appellant had not properly pled or raised the statute of limitations defense. On March 15, 2005, this Court granted the Appellant’s petition for appeal from the Circuit Court order.
II. Standard of Review
In examining the Circuit Court’s order currently on appeal, this Court has consistently been guided by the rule that “[t]his Court reviews the circuit court’s final order and ultimate disposition under an abuse of discretion standard. We revievp challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.” Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). Utilizing that standard of review, we examine the issues presented sub judice.
III. Discussion
A. The Statute of Limitations
The statute of limitations governing the execution of judgment is found at West Virginia Code § 38-3-18 (1923) (Repl. Vol. 1997), and provides as follows:
On a judgment, execution may be issued within ten years after the date thereof. Where execution issues within ten years as aforesaid, other executions may be issued on such judgment within ten years from the return day of the last execution issued thereon, on which there is no return by an officer or which has been returned unsatisfied. An action, suit or scire facias may be brought upon a judgment where there has been a change of parties by death or otherwise at any time within ten years next after the date of the judgment; or within ten years from the return day of the last execution issued thereon on which there is no return by an officer or which has been returned unsatisfied. But if such action, suit or scire facias be against the personal representative of a decedent, it shall be brought within five years from the qualification of such representative.
B. Shaffer v. Stanley
Approximately five months after the issuance of the lower court’s order in this matter, this Court encountered a remarkably similar ease and issued an opinion in Shaffer v. Stanley, 215 W.Va. 58, 593 S.E.2d 629 (2003). In Shaffer, released on November 26, 2003, this Court held that administrative actions to obtain child support payments, such as the tax refund intercepts attempted in the present case, do not act to toll the running of the statute of limitations. In Shaffer, a former husband had sought to terminate social security withholding by the Bureau of Child Support Enforcement for collection on judgment for support arrearag-es. In addressing the arguments raised in that case, this Court reiterated the principle that “when a provision for periodic payments of child support is made in a divorce decree, these installments become decretal judgments as they become due.” 215 W.Va. at 63, 593 S.E.2d at 634. In syllabus point six of Robinson v. McKinney, 189 W.Va. 459, 432 S.E.2d 543 (1993), this Court had previously clarified that “[t]he ten-year statute of limitations set forth in W.Va.Code, 38-3-18 [1923] and not the doctrine of laches applies when enforcing a decretal judgment which orders the payment of monthly sums for alimony or child support.”
The Shaffer Court reasoned that “[a] comparison of the traditional definition of and procedure for the execution of a judgment with the provisions for tax offsets indicates to this Court that a tax offset is not an execution....” 215 W.Va. at 65, 593 S.E.2d at 636. A tax offset, the Shaffer Court explained, “does not involve a process of the court that results in the issuance of a judicial writ.” Id. at 65, 593 S.E.2d at 636. “Rather, a tax offset is a purely administrative action initiated and carried out by executive agencies.” Id. The Shaffer Court ultimately concluded that the Bureau’s attempts to in- tercept the former husband’s income tax refunds did not constitute an execution, for purposes of tolling ten-year limitations period to collect on judgment. Specifically, in syllabus point five of Shaffer, this Court explained as follows:
The procedure utilized by the Bureau for Child Support Enforcement to obtain payment of past due child support from Federal and State tax refunds from over-payments made to the Secretary of the Treasury of the United States or the State Tax Commissioner, as provided for in W.Va.Code § 48-18-117 (2001) and W.Va. Code § 48-18-118 (2001), does not constitute an execution of a judgment under W.Va.Code § 38-3-18 (1923) for the purpose of tolling the ten-year limitation period for the execution of an issuance on a judgment.
Utilizing the reasoning enunciated in Shaffer, this Court finds that the administrative actions to obtain child support payments in the present case did not serve to toll the running of the statute of limitations.
C. Appellant’s Assertion of Statute of Limitations Defense
The Bureau also advances the argument that it is inappropriate to allow the statute of limitations to bar an action against the Appellant since the Appellant did not properly plead a statute of limitations defense. We find that this argument does not withstand scrutiny. The Appellant did indeed raise the issue of the statute of limitations, albeit informally, with the Bureau on May 5,1999. The Appellant raised that issue again on September 20, 2002, in a letter to the Family Court. In the September 20, 2002, letter, the Appellant specifically noted the statute of limitations issue, explaining that “because no official action had ever been taken by the WVBCSE and due to the statute of limitations, I thought there was no legal merit to it....” The Bureau also asserted that the statute of limitations had been insufficiently raised in Shaffer, and this Court determined that “Mr. Stanley’s raising of the statute of limitation defense was not so untimely as to constitute waiver.” 215 W.Va. at 67, 593 S.E.2d at 638.
D. Residence Outside West Virginia
The Bureau further asserts that the statute of limitations should have been tolled during the period in which the Appellant resided out of the State of West Virginia, pursuant to West Virginia Code § 55-2-17 (1923) (Repl. Vol. 2000). This Court has previously clarified, however, that where a defendant is amenable to service of process, his absence form the jurisdiction does not toll the statute of limitations. See Gray v. Johnson, 165 W.Va. 156, 267 S.E.2d 615 (1980) (holding that statute of limitations for personal injury suit is not tolled by absence from state of defendant who is amenable to service by terms of nonresident motorist statute where plaintiff has address for nonresident motorist). The lower court initially ordering the child support in the present matter would have retained continuing jurisdiction under West Virginia Code § 48-11-105 (2001) (Repl. Vol. 2004) to modify its original order as to alimony and child support, as the altered circumstances of the parties and the needs of the children may have required. In syllabus point six of In re Estate of Hereford, 162 W.Va. 477, 250 S.E.2d 45 (1978), this Court succinctly asserted that “[cjhild support is always subject to continuing judicial modification.” See also Acord v. Acord, 164 W.Va. 562, 264 S.E.2d 848 (1980) (holding that circuit court vested with continuing jurisdiction to reopen judgment and modify decree). In Carter v. Carter, 198 W.Va. 171, 479 S.E.2d 681 (1996), this Court noted that a circuit court “is vested with continuing jurisdiction to modify its original order regarding child support ..., as the circumstances of the parties or the welfare of the children may require.” 198 W.Va. at 177 n. 10, 479 S.E.2d at 687 n. 10.
With specific reference to the child support collection issue, other jurisdictions have specified that the statute of limitations is not tolled by absence from the State where the court retains continuing jurisdiction over the person owing child support. See Stonecipher v. Stonecipher, 131 Idaho 731, 963 P.2d 1168, 1173 (Id.1998) (holding that defendant is not considered absent from the State where jurisdiction over defendant may be had under long arm statute); Brown v. Vonsild, 91 Nev. 646, 541 P.2d 528, 531 (1975) (holding that statute of limitations was not tolled by absence of nonresident divorced husband where he was “continuously subject” to service in original divorce proceedings).
Based upon the foregoing, this Court finds that the absence of the Appellant from the State did not toll the running of the statute of limitations.
E. Refund to the Appellant
Based upon this Court’s conclusion that the Appellant’s funds were withheld without legal basis, the Appellant is entitled to a refund from the Bureau in an amount equal to the funds improperly withheld. In Shaffer, this Court addressed the refund issue and explained that the Legislature has provided specific procedures whereby obligors may contest income withholding. See W.Va. Code § 48-14-405 (2001) (Repl. Vol. 2004). The Legislature has also directed that “[t]he [West Virginia Support Enforcement] commission shall, by administrative rule, establish procedures for promptly refunding to obligors amounts which have been improperly withheld ....” W.Va.Code § 48-14-407(b) (2002) (Repl. Vol. 2004). The Shaffer Court referenced these administrative rules, recognizing that the Child Advocate Office is required to arrange a refund of the amount improperly withheld. 215 W.Va. at 69, 593 S.E.2d at 640. The Shaffer Court concluded as follows:
It is clear from the above that the Legislature has manifested an intent that the BCSE repay funds which were improperly withheld from an obligor’s income. It is equally clear that the BCSE has recognized that it has such a duty. Moreover, simple fairness dictates that when a government entity exercises its considerable power to obtain a portion of an obligor’s income through force of law, it cannot escape all responsibility when its actions result in an overpayment by the obligor. Accordingly, we conclude that the BCSE is liable to an obligor for repayment when it improperly withholds funds from his or her income.
Id.
The Bureau directs this Court’s attention to recent changes to West Virginia Code § 29-12-5 (2004), made subsequent to the issuance of this Court’s opinion in Shaffer, clarifying that the Board of Risk Management is not required to provide an all-inclusive policy for any state agency. The Bureau maintains that since it was engaged in a good faith action to collect support, there should be no refund to the Appellant for funds already withheld. We find, however, that the expressed public policy of this State is to provide prompt refunds of amounts illegally obtained from obligors. We find no merit to the Bureau’s arguments that a refund should not be ordered in this ease.
IV. Conclusion
Based upon the foregoing analysis, this Court concludes that the statute of limitations bars the collection of child support originally granted in the divorce and child support order entered in 1975. As the Shaffer Court clarified, intervening attempts to collect child support, such as attempts to obtain the obligor’s tax refunds, do not constitute executions for purposes of tolling the ten-year statute of limitations. The youngest son reached his age of majority in 1988, and this action was not initiated until fourteen years later, in 2002. No intervening attempt to collect child support served to toll the statute of limitations; consequently, the statute of limitations bars the wage withholding attempted in this case. We reverse the order of the Circuit Court of Kanawha County and remand this case for a determination of the amount of refund owed to the Appellant.
Reversed and remanded with directions.
. We note that while the Bureau did issue a suggestee execution in 1985, any tolling of the statute of limitations which may have been effected by that means would only have extended the period by ten years, to 1995, and does not affect the outcome of this appeal wherein the Bureau began wage withholding in January 2002. The Appellant has indicated in his brief that he has no knowledge of the suggestee execution, has never been informed of the existence of that suggestee execution, and has no knowledge of enforcement of that execution. Moreover, it is noted by this Court that a suggestee execution is void if there is no underlying execution ordered. See W. Va.Code § 38-5A-3 (1979) (Repl. Vol. 1997); Rorrer v. Murphy, 124 W.Va. 1, 18 S.E.2d 581 (l942) (holding that prohibition would lie to prevent enforcement of suggestee execution in absence of issuance and return of execution wholly or partly unsatisfied). The record contains no clear indication of whether the 1985 suggestee execution was valid in this case. As stated above, even a valid suggestee execution in 1985 would not have extended the period to 2002 when the wage withholding under investigation in this case was initiated.
. The Shaffer Court recognized the existence of other cases in which actions other than executions had been deemed to toll the statute of limitations and specifically held that such cases were not dispositive “because these cases are completely devoid of any analysis or citation of authority to support such a proposition." 215 W.Va. at 65, 593 S.E.2d at 636 (citing Robinson v. McKinney, 189 W.Va. 459, 463, 432 S.E.2d 543, 547 (1993); Clay v. Clay, 206 W.Va. 564, 568, 526 S.E.2d 530, 534 (1999); and State ex rel. DHHR Schwab v. Schwab, 206 W.Va. 551, 554, 526 S.E.2d 327, 330 (1999)).
. West Virginia Code § 55-2-17 provides as follows:
Where any such right as is mentioned in this article shall accrue against a person who had before resided in this State, if such person shall, by departing without the same, or by absconding or concealing himself, or by any other indirect ways or means, obstruct the prosecution of such right, or if such right has been or shall be hereafter obstructed by war, insurrection or rebellion, the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted. But if another person be jointly or severally liable with the person so obstructing the prosecution of such right, and no such obstruction exist as to him, the exception contained in this section as to the person so absconding shall not apply to him in any action or suit brought against him to enforce such liability. And upon a contract which was made and was to be performed in another state or country, by a person who then resided therein, no action shall be maintained after the right of action thereon is barred either by the laws of such state or country or by the laws of this State.
. West Virginia Code § 48-11-105 provides, in pertinent pari, as follows:
(a) The court may modify a child support order, for the benefit of the child, when a motion is made that alleges a change in the circumstances of a parent or another proper person or persons. A motion for modification of a child support order may be brought by a custodial parent or any other lawful custodian or guardian of the child, by a parent or other person obligated to pay child support for the child or by the bureau for child support enforcement of the department of health and human resources of this state.
(b) The provisions of the order may be modified if there is a substantial change in circumstances. If application of the guideline would result in a new order that is more than fifteen percent different, then the circumstances are considered a substantial change.
. The Appellant has indicated that approximately $6,000.00 has been illegally withheld. That amount can be determined with specificity upon remand. | [
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PER CURIAM:
Appellant, City of Dunbar, appeals the September 3, 2004 order of the Circuit Court of Kanawha County that granted summary judgment to Appellee Dunbar Fraternal Order of Police in its action to enforce the terms of a collective bargaining agreement entered into between the two parties. After careful consideration of the parties’ arguments, we affirm, in part, reverse, in part, and remand for additional proceedings.
I.
FACTS
On October 16, 1995, Appellant City of Dunbar (hereafter “the City”) and Appellee Dunbar Fraternal Order of Police (hereafter “FOP”) entered into a collective bargaining agreement (hereafter “CBA”). At issue in this case are three provisions of the CBA. The first is the termination provision which provides that “This Agreement shall become effective October 16, 1995 and shall termi nate on October 16,1998.” The second is the renegotiation provision which states:
The parties to this Agreement hereby agree, commencing at least sixty (60) days prior to the expiration of this Agreement, to bargain in good faith with regard to a successor contract. While negotiations are continuing, this Agreement shall remain in full force and effect for such an additional period of time as is necessary to negotiate a successor contract.
The third provision at issue is one regarding health insurance premiums which provides:
The members of the Police Department covered under this agreement will pay no more premium or be provided any less benefit coverage than any other bargaining-unit in the City of Dunbar.
By letter dated August 13, 1998, the City sent notice to the FOP indicating that it did not intend to renegotiate a contract with the FOP upon the termination of the CBA on October 16, 1998. On September 24, 1998, the FOP filed an action against the City alleging in Count I that the CBA contains no termination clause and that the City was required to bargain for a successor agreement. In Count II, the FOP contended that the City unilaterally altered the terms of the contract by requiring police officers to pay contributions toward their health insurance coverage. Count II further alleges that the City should be required to abide by the CBA and to continue paying health insurance coverage until the parties reach a successor agreement.
On March 11, 2000, the circuit court ordered a stay of proceedings pending the outcome of litigation involving the City and its firefighters in regard to health insurance premium contributions. Subsequently, after an August 18, 2003, hearing, the circuit court lifted the stay. On September 2, 2003, the City moved to file an amended answer to set forth a number of additional defenses. By order dated November 14, 2003, the circuit court denied the City’s motion, finding that the “Plaintiff is on notice of the Defendant’s position by virtue of the remainder of the Answer.” Thereafter, the parties filed cross motions for summary judgment. On September 3, 2004, the circuit court granted the FOP’s summary judgment motion.
The circuit court ruled in its order that the City is required to pay the difference between HMO and PEIA basic indemnity health premiums for FOP members. The circuit court further ordered the City to negotiate in good faith with respect to a successor agreement, ordered the parties to mediate toward an agreement, and ordered the City to pay for the mediator’s fees. Finally, the circuit court ordered the City to pay for the FOP’s attorney fees and costs.
II.
STANDARD OF REVIEW
In reviewing the circuit court’s summary judgment order, we are mindful that, “A circuit court’s entry of summary judgment is reviewed de novo.” Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
III.
DISCUSSION
The City challenges the circuit court’s summary judgment order on several grounds. First, the City asserts that the circuit court abused its discretion by denying the City’s motion for leave to file an amended answer. Specifically, the City argues that it was not dilatory in filing its motion to amend because no discovery had occurred and summary judgment motions had not yet been briefed. We reject the City’s argument. The FOP filed its complaint on September 24, 1998, and the City filed its answer on October 7, 1998. On March 11, 2000, the circuit court ordered a stay of proceedings pending the outcome of the firefighters’ litigation against the City. The City filed its motion for leave to amend its answer after the stay was lifted about three and one-half years later. Significantly, the City had fifteen months to file its motion to amend between the filing of its answer and the circuit court's stay of the proceedings, but it failed to do so.
In Syllabus Point 3 of State ex rel. Vedder v. Zakaib, 217 W.Va. 528, 618 S.E.2d 537 (2005), this Court held:
The liberality allowed in the amendment of pleadings pursuant to Rule 15(a) of the West Virginia Rules of Civil Procedure does not entitle a party to be dilatory in asserting claims or to neglect his or her case for a long period of time. Lack of diligence is justification for a denial of leave to amend where the delay is unreasonable, and places the burden on the moving party to demonstrate some valid reason for his or her neglect and delay.
We do not believe that the City has demonstrated a valid reason for its 15-month delay between the time it filed its answer and the stay of proceedings. Every new defense sought to be raised by the City in its proposed amended answer was or should have been known by the City when it filed its answer. Therefore, we conclude that the circuit court did not abuse its discretion in denying the City’s motion for leave to file an amended complaint.
Second, the City contends that the circuit court erroneously granted the FOP’s motion for summary judgment by failing to address arguments raised in the City’s motion for summary judgment and its opposition to the FOP’s summary judgment motion. Specifically, the City claims that the circuit court failed to address its argument that the CBA is void ab initio pursuant to W.Va.Code § 11-8-26 (1963), which states, in pertinent part,
Except as provided in sections fourteen-b [§ 11 — 8—14b], twenty-five-a [§ ll-8-25a] and twenty-six-a [§ ll-8-26a] of this article, a local fiscal body shall not expend money or incur obligations:
(1) In an unauthorized manner;
(2) For an unauthorized purpose;
(3) In excess of the amount allocated to the fund in the levy order;
(4)In excess of the funds available for current expenses.
According to the City, this code section prohibits a local fiscal body from entering into a contract the performance of which would invade revenue for a subsequent year. The City contends that because the CBA at issue bound the City in 1995 to pay wages and benefits to police officers for 1996, 1997, and 1998, the CBA is void.
Cases cited by the City in support of its position include State ex rel. Mick v. County Court of Lewis County, 110 W.Va. 533, 158 S.E. 790 (1931), Ireland v. BOE of Kanawha Co., 115 W.Va. 614, 177 S.E. 452 (1934), and Meador v. County Court of McDowell Co., 141 W.Va. 96, 87 S.E.2d 725 (1955), in which this Court refused to enforce multi-year employment contracts entered into by cities or counties based on W.Va.Code § 11-8-26. The FOP responds by citing Huntington Water Corp. v. City of Huntington, 115 W.Va. 531, 177 S.E. 290 (1934), in which this Court recognized the validity of a multi-year contract entered into by the Huntington Water Corporation and the City of Huntington for water service.
We do not find it necessary to choose between the two lines of cases cited by the parties or to revisit those cases in deciding the issue before us. Rather, we deem it appropriate to decide the instant case on the unique facts before us. First, it is significant to this Court that, unlike in the cases cited to us by the City, the City did not challenge the CBA on the basis of W.Va.Code § 11-8-26 during the CBA’s original term. Further, the City failed to cite W.Va.Code § 11-8-26 in its answer to the FOP’s complaint. In fact, the City did not raise W.Va.Code § 11-8-26 as a defense until it filed its motion for leave to amend its answer. We believe that the proper time for the City to challenge the CBA’s legality on the basis of W.Va.Code § 11-8-26 was during the CBA’s initial term from October 16, 1995, to October 16, 1998. Because the City failed to do so, we will not at this stage in the proceedings consider the CBA to be invalid from its inception.
Next, the City claims that the circuit court erred in ruling that it had an obligation to bargain with the FOP to reach a successor agreement despite the termination clause in the CBA. We disagree. While it is true that the CBA, by its terms, provided that it was to terminate on October 16, 1998, it also contains a provision indicating that the parties are to bargain in good faith and that the terms of the CBA are to continue during that bargaining period. The City would have us enforce the termination clause and disregard the renegotiation provision. This we decline to do. This Court has held that “specific words or clauses of an agreement are not to be treated as meaningless, or to be discarded, if any reasonable meaning can be given them consistent with the whole contract.” Syllabus Point 3, in part, Moore v. Johnson Service Co., 158 W.Va. 808, 219 S.E.2d 315 (1975). We believe that both the termination clause and the renegotiation clause should be given meaning, and that the City has a duty under the CBA to bargain in good faith.
The City, however, complains that the FOP’s interpretation of the renegotiation clause results in the perpetual enforcement of the CBA. We are sympathetic to the City’s concern. Again, the renegotiation provision indicates that “[w]hile negotiations are continuing, this Agreement shall remain in full force and effect for such an additional period of time as is necessary to negotiate a successor contract.” The language of this provision appears to indicate that the CBA is to continue until a successor agreement is reached regardless of when or whether a successor agreement is reached. We reject such a construction. Generally, this Court will not interpret a contract in a manner that creates an absurd result. See Syllabus Point 2, Ashland Oil, Inc. v. Donahue, 159 W.Va. 463, 223 S.E.2d 433 (1976) (holding that “Termination provisions of an agreement involving the sale of goods which, if applied strictly, are so one-sided as to lead to absurd results, will be declared unconscionable”); Glen Falls Ins. Co. v. Smith, 217 W.Va. 213, 221, 617 S.E.2d 760, 768 (2005) (stating that “A contract of insurance should never be interpreted to create an absurd result, but should instead receive a reasonable interpretation” citing Soliva v. Shand, Moraban & Co., Inc., 176 W.Va. 430, 432, 345 S.E.2d 33, 35 (1986), overruled, in pari, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987)). Because to read the CBA to create a perpetual contract from which the City can never extricate itself is absurd, we interpret the CBA to terminate after a reasonable period of time regardless of whether a successor agreement is reached.
The City urges that the CBA should have terminated on October 16, 1998, according to its termination provision, if no successor agreement was reached. We disagree. The provision at issue indicates that the CBA is to remain in full force and effect while negotiations continue. If we were to accept the City’s reasoning, that it was bound to bargain only until the CBA’s termination date, the “full force and effect” language would be unnecessary since the CBA would by its own terms remain in effect while the parties bargained. Therefore, we believe that the language at issue should be read so as to give the parties a reasonable period of time after the termination date of the CBA to reach a successor agreement, during which time the CBA will remain in effect. Under the facts of this ease, and at this point in this litigation, we believe that the terms of the CBA should remain in effect until June 30, 2006. This date gives the parties more than six months to bargain in good faith after receiving this Court’s decision on this issue, which we deem to be a reasonable period of time. If the parties are unable to reach a successor agreement, the CBA will terminate on June 30, 2006.
Further, the City assigns as error the circuit court’s ruling that police officers cannot be required to pay the difference in premiums between the PEIA basic indemnity health plan and the HMO plan. According to the parties, the City provides its employees with health insurance through the Public Employees Insurance Agency (hereafter “PEIA”). City employees are permitted to select the type of coverage they desire from among PEIA’s basic health insurance indemnity plan and an HMO plan. In 1997, the City notified its employees, including po lice officers, that all insurance rates would substantially increase, particularly rates for the HMO plan which would carry a much higher rate than the PEIA basic plan. As a result, those employees who selected the more expensive HMO coverage were required to pay the difference in premiums between the PEIA indemnity plan and the HMO plan. It is the position of the FOP that those officers who selected HMO coverage are entitled to reimbursement for the difference in the premiums.
The circuit court found on this issue as follows:
The applicable contractual language is found in Article XVI of the Fraternal Order of Police (FOP) contract. It states that,
“The members of the Police Department covered under this agreement will pay no more premium or be provided any less benefit coverage than any other bargaining unit in the City of Dunbar.”
Since the FOP coverage necessarily depends on the coverage of other “bargaining units,” it is necessary to look at those contracts to determine the entitlements of the FOP. Therefore, the Court has reviewed the contract between the Dunbar Professional Firefighters (Firefighters) and the City of Dunbar (City). Article Seven, Section 2 of this contract states, in part, that,
“the City shall pay the full amount of the premium attributable to coverage of regular, full-time employees (and his or her dependents) for participation in the City’s Insurance Benefits Plan concerning life and health insurance. The plan shall contain hospitalization, major medical coverage, short term disability and life insurance....”
The FOP contract at issue here was in effect between October 16, 1995 and October 16, 1998. The Firefighters’ contract was in effect between February 26, 1995 and February 25,1998. After careful consideration of the arguments presented, the Court finds that the City violated Article XIV of the FOP contract in requiring those officers who had HMO coverage to pay the difference in cost of the HMO premium and the non-HMO premium during the contract period. The Court finds that although the City was under no obligation to offer the additional HMO coverage, once it did so, it was bound by the language of Article Seven, Section 2 of the Firefighter contract which obligated the City to pay the full amount of the premium.
According to the City, the circuit court erred in its interpretation of the FOP and firefighters’ contracts. The City contends that the FOP contract requires only that the FOP pay no more of a premium than any other bargaining unit. At all times pertinent to this litigation, says the City, both the firefighters and the FOP members who selected the HMO plan have been responsible for the difference between the more expensive HMO premium and the less expensive PEIA premium. Thus, concludes the City, the FOP members have not paid more than the firefighters for health insurance.
We find that the circuit court erred in granting summary judgment on this issue. The Health Insurance provision of the CBA provides that “[t]he members of the Police Department covered under this agreement will pay no more premium or be provided any less benefit coverage than any other bargaining unit in the City of Dunbar.” As correctly noted by the circuit court, if the City’s firefighters do not pay the difference between the PEIA basic plan and the HMO plan, the CBA mandates that the FOP members also cannot be compelled to pay the difference. The circuit court interpreted the firefighters’ agreement with the City to provide that the City would pay all of the firefighters’ premium under the more expensive HMO plan. However, the City had disputed this very interpretation and, as a result, the firefighters and the City were in litigation over this issue in a separate proceeding at the time the circuit court granted summary judgment in the instant ease. This Court has held that “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syllabus Point 3, Aetna Cas. & Surety Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). Again, at the time the circuit court interpreted the Dunbar firefighters’ CBA, its interpretation remained a question of fact to be decided in another proceeding. Therefore, we believe the circuit court erred by prematurely deciding this issue before it was fully litigated. Accordingly, we reverse the circuit court and remand for further consideration of this issue.
Finally, the City asserts that the circuit court erroneously awarded attorney fees and costs to the FOP. In response, the FOP cites two bases for the fees and costs — the Wage Payment and Collection Act which provides that employees can receive reasonable attorney fees and costs for having to pursue litigation to force employers to pay wages and benefits owed to them; and the fact that the failure of public officials to discharge their clear duties can be the basis for an award of attorney fees and costs in mandamus actions.
We reject the City’s argument on this issue. “As a general rule, each litigant bears his or her own attorney’s fees absent a contrary rule of court or express statutory or contractual authority for reimbursement.” Syllabus Point 2, Sally-Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986). Also, “[t]here is authority in equity to award to the prevailing litigant his or her reasonable attorney’s fees and ‘costs,’ without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.” Syllabus Point 3, Sally-Mike, supra We believe that the City acted in bad faith by refusing to bargain with the FOP to reach a successor agreement. Even if this Court accepts that the City had a good faith belief that the CBA was to terminate on October 16, 1998, regardless of whether a successor agreement was reached, the fact remains that the City, 60 days prior to that termination date, flatly refused to attempt to negotiate a new CBA. Instead, the City simply stated that it did not intend to renegotiate a contract with the FOP upon the CBA’s termination. Such action was in gross violation of the clear agreement entered into by the parties “to bargain in good faith with regard to a successor agreement.” Therefore, we do not believe that the circuit court erred in awarding attorney fees and costs to the FOP.
IV.
CONCLUSION
In conclusion, for the reasons stated above, this Court concludes first that the circuit court did not err in failing to grant the City’s motion for leave to file an amended answer. Second, we find that the parties herein had a duty under the CBA to bargain in good faith to reach a successor agreement, and we affirm the circuit court on this issue. We further find that this duty to bargain extends for a reasonable period of time which this Court believes should expire on June 30, 2006. Third, we conclude that there are disputed issues of genuine fact concerning the City’s obligation to pay the entire health care premium of those POP members who are under the HMO health care plan. Therefore, we reverse and remand for further proceedings on this matter. Finally, we affirm the circuit court’s grant of attorney fees and costs to the FOP. Accordingly, the September 3, 2004, order of the Circuit Court of Kanawha County that granted summary judgment to the FOP is affirmed, in part, reversed, in part, and remanded.
Affirmed, in part, reversed, in part, and remanded.
Justice DAVIS, deeming herself disqualified, did not participate in the decision in this case.
Judge KIRKPATRICK, sitting by special assignment.
. This Court has explained that "[tjhroughout its history the basic history of the statute has been that a local fiscal body shall make no contract and incur no obligation which would involve the expenditure of future levies.” Edwards v. Hylbert, 146 W.Va. 1, 18, 118 S.E.2d 347, 356 (1960) (internal quotation marks and citations omitted). The Court has further noted that "[n]ecessity and inconvenience will not justify the bending or breaking of this law.” Shonk Land Co. v. Joachim, 96 W.Va. 708, 721, 123 S.E. 444, 449 (1924).
. In its brief to this Court, the FOP says that an April 5, 2005 order entered by the judge in the separate firefighters' proceeding specifically ordered the City “to pay the premiums for both HMO and non-HMO participants." The FOP attached a copy of this order to its brief. This Court will not consider this order because it was not part of the record below when the circuit court in this case granted the FOP's motion for summary judgment. Also, the City raises challenges to the propriety of the April 5, 2005 order. Therefore, we believe that the best course is to remand this issue to the circuit court to take additional evidence and hear the arguments of the parties.
. The City also asserts that the circuit court erred in ordering the parties to mediate without giving them an opportunity to negotiate on their own, and in ordering the City to pay the mediator's, fees. According to the City, the circuit court has left it in a "perplexing" situation. So long as the FOP does not agree to a new contract, the City must pay the costs of the terms of employment in the CBA and must pay the mediation costs while continuing to bargain to reach a successor agreement. The City believes that such a situation does not leave the FOP with much of an incentive to reach an agreement.
According to Rule 25.03 of the West Virginia Trial Court Rules, "a court may, on its own motion ... refer a case to mediation. Upon entry of an order referring a case to mediation, the parties shall have fifteen (15) days within which to file a written objection, specifying the grounds.” This Court does not find in the record where the City filed such an objection to the circuit court's mediation ruling. Generally, "[t]his Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.” Syllabus Point 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958). Because the City did not file an objection to the court-ordered mediation, the circuit court was not given the opportunity to reconsider its ruling. Accordingly, we decline to address this assignment of error. | [
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MAYNARD, Justice:
These consolidated proceedings involve five inmates of the Mount Olive Correctional Center who complain that the respondents and appellees, William K. Davis, Commissioner of the Division of Corrections, and George Trent, Warden of the Mount Olive Correctional Center, have deprived them of their personal computers without procedural due process of law and in retaliation for litigation against the Division of Corrections by “jailhouse lawyers.” Four of the inmates, Samuel Anstey, Gary Shepherd, Dwaine King, and Larry James brought original jurisdiction petitions in this Court. The fifth inmate, Charles Plantz, appeals a dismissal of his petition for writ of mandamus in the Circuit Court of Fayette County. These eases were consolidated for argument and opinion. After a careful review of the issues raised and the documents filed in these actions, we deny the inmates the relief which they seek.
I.
FACTS
For over a decade, state inmates were permitted to purchase and use personal computers in their prison cells subject to certain limitations. Early in 1996, prison officials at the Mount Olive Correctional Center (“Mount Olive”) confiscated eleven personal computers after discovering that some inmates were using the computers to write letters to various companies containing threats of lawsuits. In addition, some inmates were charging fellow inmates for legal work done on the computers. Among the computers confiscated were those belonging to Kenneth Blevins, described as a jailhouse lawyer, and the appellant in the present case, Charles Plantz. The majority of inmates who possessed computers in their cells were allowed to keep them at that time.
Subsequently, Kenneth Blevins and other inmates instituted litigation in federal court challenging the confiscation of their computers. Apparently, this litigation resulted in settlement agreements between prison officials and inmates in which the computers of Kenneth Blevins and Charles Plantz were returned to them. In their brief to this Court, the relators and the appellant (hereafter “inmates”)allege that during the settlement process in the federal litigation, respondent and appellee, Mount Olive Warden George Trent, threatened to remove all personal computers from Mount Olive if the lawsuit was continued.
On August 23, 1996, Warden Trent issued a directive to the inmates at Mount Olive stating, in part, that computers and related items would be “grandfathered.” That is, inmates owning computers as of the date of the directive, and who met several criteria, were permitted to retain possession of their computers. However, no new computers would be permitted in the cells of inmates at Mount Olive after this date.
On August 18, 1997, respondent and appellant herein, William Davis, Commissioner of the Division of Corrections, issued policy directive 639.01 which states that inmates would no longer be permitted to possess personal computers or any related components. Inmates were to be given thirty days to make arrangements for sending their computers out of the facility, at the end of which the institution would be responsible for sending any remaining computers out of the facility. Each correctional facility was to determine the beginning date of this thirty day period. On September 8, 1997, Commissioner Davis issued policy directive 653.00, the purpose of which is to set minimum standards for the establishment and operation of law library materials and related support equipment in adult correctional facilities.
On November 10, 1997, Warden Trent issued a memorandum stating that as of December 1, 1997, personal computers and any related components would be considered “contraband.” Consequently, the relators sought relief by filing pro se habeas or mandamus petitions with this Court. The appellant appealed pro se from the denial of a mandamus petition in the Fayette County Circuit Court.
By Order of May 20, 1997, this Court issued a rule to show cause why the relief requested in the petitions should not be granted against the respondents; granted the petition for appeal; consolidated the cases herein; and appointed legal counsel for the inmates.
The inmates request that this Court remand their cases to the Circuit Court of Kanawha County to be consolidated with the ease of Kenneth Ray Blevins v. George Trent, Warden, et al., for the taking of evidence and to develop the record concerning the issues raised in their brief to this Court.
II.
STANDARD OF REVIEW
As noted above, these consolidated cases include original proceedings in both habeas corpus and mandamus and an appeal from the circuit court’s denial of a mandamus
petition. “Our standard of appellate review of a circuit court’s decision to refuse to grant relief through an extraordinary writ of mandamus is de novo. ” State ex rel. Warner v. Jefferson County Com’n, 198 W.Va. 667, 671, 482 S.E.2d 652, 656 (1996). Further,
A writ of mandamus will not issue unless three elements coexist — (1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.
Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
III.
DISCUSSION
A.
Preliminary Considerations
Concerning the appropriateness of an original proceeding in habeas corpus to challenge the policy at issue, we note that “[hjabeas corpus lies to test the legality of the restraint under which a person is detained.” Tasker v. Griffith, 160 W.Va. 739, 742, 238 S.E.2d 229, 231 (1977). We have distinguished between two types of restraint. See Tasker. The traditional use of habeas corpus, not involved here, is to challenge the restraint imposed on the petitioner by testing the constitutionality of his underlying conviction. The second is the restraint imposed on the petitioner because of his incarceration and is not related to the original conviction. This includes, for example, challenges to the constitutionality of prison discipline, conditions, and regulations. This Court has held that the scope of the writ of habeas corpus extends to cover challenges to this second type of restraint. See Tasker, supra (finding that the scope of the writ of habeas corpus extends to cover a challenge to the petitioner’s restraint in administrative segregation because of his alleged infraction of prison rules and regulations). In fact, this Court has had ample occasion to grapple with the issue of prison conditions in recent decades. See, e.g., Crain v. Bordenkircher, 176 W.Va. 338, 342 S.E.2d 422 (1986); Hackl v. Dale, 171 W.Va. 415, 299 S.E.2d 26 (1982); Hickson v. Kellison, 170 W.Va. 732, 296 S.E.2d 855 (1982); Harrah v. Leverette, 165 W.Va. 665, 271 S.E.2d 322 (1980); Tasker, supra; and State ex rel. Pingley v. Coiner, 155 W.Va. 591, 186 S.E.2d 220 (1972).
When considering challenges to prison regulations, we are ever mindful of both the natural conditions which accompany incarceration for breaking society’s laws and the contrasting roles of prison administrators and judges. Incarceration necessarily involves substantial limitations upon a prisoner’s personal liberty. “Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a ‘retraction justified by the considerations underlying our penal system.’ ” Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935, 950 (1974) (citation omitted). The primary responsibility for ensuring the orderly and effective maintenance of our penal system rests with prison administrators. These administrators are the ones responsible for developing and implementing the policies and procedures which are designed to guarantee that the various goals of incarceration are realized. This Court has recognized that prison administrators have broad discretion in the management of correctional facilities. For example, this Court has stated that “[t]he maintenance of discipline in a jail is essential to the effective and proper operation of a penal system and is an executive function with which courts ordinarily will not interfere.” Syllabus Point 2, Drake v. Airhart, 162 W.Va. 98, 245 S.E.2d 853 (1978). Also, “[pjrison officials are vested with wide discretion in disciplining prisoners committed to their custody[.j” Syllabus Point 3, in part, Id.
On the other hand, “a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.” Wolff, 418 U.S. at 555, 94 S.Ct. at 2974, 41 L.Ed.2d at 950. For example, we have stated that “[cjertain conditions of jail confinement may be so lacking in the area of adequate food, clothing, shelter, sanitation, medical care and personal safety as to constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution.” Syllabus Point 2, Hickson, supra. Also, due process guarantees continue to operate in a prison context. (See Harrah, supra, where we set forth the due process requirements for prison disciplinary hearings). It is obvious, therefore, that this Court will disturb the actions of prison administrators that infringe basic constitutional rights. See Drake, supra. Because the instant consolidated cases concern alleged violations of a constitutional nature, they are properly before this Court. In deciding these cases, we must achieve in the prison context a “mutual accommodation between institutional needs and objectives and the provisions of the Constitution[.j” Wolff, 418 U.S. at 556, 94 S.Ct. at 2975, 41 L.Ed.2d at 951. In seeking the proper balance, we are careful not to usurp the authority of prison administrators, yet we must be vigilant in not relinquishing this Court’s role as guardian of fundamental constitutional commitments. With these considerations as our cynosure, we now proceed to discuss the specific issues before us.
B.
General Right of Inmates to Possess Computers
In their brief to this Court, the inmates specifically request that this Court not decide the issue of whether inmates have a general right to possess computers in then-cells. The inmates argue, instead, that our decision here should hinge on the specific facts of the cases before us. We disagree. The initial determination of whether there exists a general right,of inmates to possess computers provides the proper starting point for examining the more limited questions raised in these eases.
It is generally held that unless other constitutional rights are involved, prisons may disallow the possession of personal property. See Bannan v. Angelone, 962 F.Supp. 71 (W.D.Va.1996) (upholding policy disallowing word processors and typewriters where plaintiff presented no specific facts indicating any substantial likelihood of prejudice stemming from the denial of a typewriter or word processor). Although there appear to be few cases from other jurisdictions concerning inmates’ right to possess computers, there are several cases involving the right to possess typewriters or word processors. These cases usually arise from inmates’ claims that prohibitions on the possession of typewriters or word processors impede their constitutional right of access to the courts. For the most part, courts have not been sympathetic to such claims. While “due process requires that prisoners have access to paper, pens, notarial services, stamps, and adequate library facilities, ... there is ‘. no constitutional right to a typewriter as an incident to the right of access to the courts.’ ” Taylor v. Coughlin, 29 F.3d 39, 40 (2nd Cir.1994), quoting Wolfish v. Levi 573 F.2d 118, 132 (2d Cir.1978), rev’d on other grounds sub nom. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Likewise, in Sasnett v. Department of Corrections, 891 F.Supp. 1305, 1313 (W.D.Wis.1995), aff'd, Sasnett v. Sullivan, 91 F.3d 1018 (7th Cir.1996), vacated on other grounds, 521 U.S. 1114, 117 S.Ct. 2502, 138 L.Ed.2d 1007 (1997), the court held:
The right of access to the courts incorporates a right to state-supplied pen and paper to draft legal documents, Bounds, 430 U.S. at 824, 97 S.Ct. at 1496, but does not require such sophisticated tools as computers and memory typewriters. See Sands v. Lewis, 886 F.2d 1166 (9th Cir.1989) (no constitutional right to memory typewriters); cf. United States ex rel. v. Lane, 718 F.2d 226, 232 (7th Cir.1983) (criminal defendant has no right of access to computerized legal research system upon forgoing right to court appointed counsel). The right of access does not mandate even the provision of ordinary typewriters. Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir.1989); Twyman v. Crisp, 584 F.2d 352, 358 (10th Cir.1978); Wolfish v. Levi 573 F.2d 118 (2nd Cir.1978), rev’d on other grounds, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1978); Tarlton v. Henderson, 467 F.2d 200 (5th Cir.1972); Inmates, Washington County Jail v. England, 516 F.Supp. 132, 140 (E.D.Tenn.1980), aff'd without opinion, 659 F.2d 1081 (6th Cir.1981).
See also, Brinson v. McKeeman, 992 F.Supp. 897, 910 (W.D.Tex.1997) (“access to typewriters and copy machines is not an essential part of the right of access to the courts.” (Footnote omitted)); Blades v. Twomey, 159 A.D.2d 868, 553 N.Y.S.2d 215 (A.D.3 Dept.1990) (upholding prison regulation denying to inmate legal assistant possession of typewriter with value over $200); Martin v. Jeffes, 93 Pa.Cmwlth. 82, 86, 501 A.2d 308, 310 (1985) (“Petitioner has no constitutional right to possess a typewriter in prison.”); and Sands v. Lewis, supra. We are persuaded by the uniformity of opinion on this issue and therefore hold that prison inmates have no constitutional right to possess personal computers in their cells.
C.
Issue 1: Creation of Property Interests
Our determination that inmates have no general constitutional right to possess computers does not completely dispose of these cases. The inmates make several specific allegations concerning why the removal of their computers is wrong under the particular circumstances involved here. First, the inmates allege that they acquired a property interest in their computers because of the decade long policy permitting computers in the cells so that they are entitled to procedural due process prior to the removal of the computers. In support of this argument, the inmates cite Spruytte v. Department of Corrections, 184 Mich.App. 428, 459 N.W.2d 52 (1990) where the court found that inmates enjoyed a protected property interest in acquiring possession of a personal computer by virtue of a state administrative rule.
The Fourteenth Amendment of the Federal Constitution provides, in part, that the State may not “deprive any person of life, liberty, or property, without due process of law[.]” “The Due Process Clause, Article III, Section 10 of the West Virginia Constitution, requires procedural safeguards against State action which affects a liberty or property interest.” Syllabus Point 1, Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977). To determine whether the prison administrators violated the due process rights of the inmates, we must first determine whether the inmates have a property interest in the possession of personal computers in their cells and, second, whether the inmates were deprived of this property interest without due process of law. See Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996).
“Although the Constitution protects property interests, it does not create them. To decide whether the plaintiff had a property interest at stake, we look to see whether some independent source, such as federal, state, or local law, has created an enforceable expectation.” Hutchison, 198 W.Va. at 154, 479 S.E.2d at 664 (footnote omitted). This Court has stated that “[a] ‘property interest’ includes not only the traditional notions of real and personal property, but also extends to those benefits to which an individual may be deemed to have a legitimate claim of entitlement under existing rules or understandings.” Syllabus Point 3, Waite, supra.
To have a property interest, the plaintiff must demonstrate “more than an abstract need or desire for it.... He must, instead, have a legitimate claim of entitlement to it” under state or federal law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Additionally, the protected property interest is present only when the individual has a reasonable expectation of entitlement deriving from the independent source. State laws therefore guide us in deciding whether plaintiff possessed only an unprotected unilateral expectation of a claim of entitlement, or instead had a constitutional-protected “legitimate claim of entitlement.” Id.
Hutchison, 198 W.Va. at 154, 479 S.E.2d at 664.
Property interests, however, do not arise from policies promulgated solely at the discretion of state officials. In Escobar v. Landwehr, 837 F.Supp. 284 (W.D.Wis.1993), an inmate claimed that he was deprived of his property without due process of law when he was forced to ship personal items out of the correctional facility pursuant to new internal management procedures. The court stated that it found nothing in Wisconsin’s statutes or regulations that could give rise to a reasonable expectation on the part of the inmate in the continued possession of the now forbidden property, noting, instead, that these statutes and rules placed issues of inmate property in the discretion of prison officials. The court opined that “[w]hen state law vests permission to possess or obtain certain property in an official’s discretion rather than the application of concrete rules, ‘there is no property.’ ” Escobar, 837 F.Supp. at 288 (citation omitted).
Likewise, we have found no laws or regulations that grant to the inmates a property interest in the possession of computers, and the inmates cite to none. They base their claims, instead, on the decade long policy of allowing computers in inmates’ cells and the warden’s memo of August 23, 1996 which stated that inmates already possessing computers on that date would be allowed to retain them. These policies, however, reside solely in the discretion of prison administrators. This discretion is pursuant to both statute and administrative regulation. W.Va. Code § 28-5-2 (1923) grants to the Commissioner of Corrections the authority to “make such rules and regulations as the commissioner may deem best" as to the overall management of prison inmates. W.Va.Code § 28-5-3 (1974) provides, in part, that "[t]he warden shall be the chief executive officer of the penitentiary and shall have charge of its internal police and management[.]" Further, the warden "shall have the custody and control of all the real and personal property at the penitentiary, subject to the orders of the [Commissioner of Corrections]." W.Va.Code § 28-5-3, in part. Finally, 95 C.S.R. 2, § 18.4 (1996) provides that, "[pjrocedures shall specify the personal property inmates can retain in their possession."
The policies relied upon by the inmates are merely the internal operating procedures of the facility and are easily revoked by the issuance of subsequent policy statements. One policy is regularly replaced by another as prison administrators deem best. This flexibility allows prison administrators to respond appropriately to the unique challenges of prison management. The inmates urge this Court to hold that prison administrators are prohibited from altering a policy that has been in effect for any length of time without the operation of due process procedures. Such a holding would not only have no basis in law but also would be unwieldy and unworkable. We conclude, therefore, that the policies relied upon by the inmates are insufficient to create a property interest. Consequently, the inmates have no property interest in the continued possession of personal computers in their prison cells. Accordingly, due process of law is not necessary under the facts of these cases.
In their brief to this Court, the inmates characterize the removal of their computers as a "taking." It is undisputed that the computers at issue are the personal property of the inmates. Therefore, due process of law would be necessary before state officials could deprive the inmates of the ownership of these computers. The challenged policy, however, results in no deprivation because it merely requires inmates who own computers to send them out of the facility to an address of their choosing. The circumstances at hand are similar to those in Williams v. Meese, 926 F.2d 994 (10th Cir.1991) where prison officials seized an inmate's ring and postage stamps and sent them to an address supplied by the inmate. The court found that "[a]lthough plaintiff no longer has possession of the property, he still r~tains control over it and, therefore, has not been `deprived' of the property." Williams, 926 F.2d at 998. Likewise, in Zatko v. Rowland, 835 F.Supp. 1174 (N.D.Cal.1993), the court found that an inmate was not deprived of his postage stamps where the stamps were replaced with embossed envelopes, and the inmate had the opportunity to mail the excess stamps home or donate them to the state. We agree with the reasoning in these cases and find that because the policy at issue does not cause a deprivation of property, due process of law is not required.
D.
Issue ~: Reasonable Access to the Courts
Second, the inmates aver that the loss of their computers infringes on the right of reasonable access to the courts. In their brief to this Court, they do not set forth specific factual allegations to support this claim but merely state that "[t]his situation is a complex factual issue being litigated in {Kanawha County Circuit Court] and includes issues such as inadequate legal assistance to inmates .., inadequate time in the law library, and limited amount of paperwork allowed in each inmates' cell."
In the recent case of State ex rel. James v. Hun, 201 W.Va. 139, 494 S.E.2d 503 (1997) (per curiam), we discussed the constitutional requirement that prison inmates have a right of meaningful access to the courts. There we stated that "this right of meaningful access to the courts is not completely unfettered." James, 201 W.Va. at 141, 494 S.E.2d at 505. Rather,
the State may impose reasonable restrictions and restraints upon the acknowledged propensity of prisoners to abuse both the giving and the seeking of assistance in the preparation of applications for relief: for example, by limitations on the time and location of such activities and the imposition of punishment for the giving or receipt of consideration in connection with such activities.
Id., (quoting Johnson v. Avery, 393 U.s. 483, 490, 89 S.Ct. 747, 751, 21 L.Ed.2d 718, 724 (1969)). In James we concluded that limiting the amount of personal property, including legal documents which an inmate may possess, to that which he can fit into a locker box and two large plastic containers, is a reasonable restriction on an inmate's right of meaningful access to the courts.
In the present case, we believe that prohibiting the possession of personal computers in inmates' cells is certainly a reasonable restriction. "The law is well established that a state has `a compelling interest in maintaining security and order in its prisons[.]'" Harris v. Forsyth, 735 F.2d 1235 (11th Cir.1984) (citation omitted). The possession of computers by inmates compromises security and order by providing the capability to store vast amounts of information that is not easily detectable during searches of inmates' cells. Further, almost unlimited quantities of material may be stored in computers. Pornography, gambling information, accounts of inmates' indebtedness to other inmates, guards' schedules, and escape plans are only a few such examples. This list of illegal uses of a computer is limited only by the imaginations of those with technological capability, anti-social propensities, larceny and mischief in their hearts, and a lot of spare time on their hands. In addition, as noted above, the overwhelming majority of courts that have decided the issue have found that the right of access to the courts does not include the right to possess typewriters and computers. We hold, therefore, that the right of meaningful access to the courts does not include the right of inmates to possess computers in their prison cells.
E.
Issue 3: Detrimental Reliance
Next, the inmates argue that inmates who purchased computers in reliance on the decade long policy permitting computers in the cells are entitled to reimbursement for the loss of the use of their computers. According to the inmates,
[u]nder basic contract law, the [inmates] have been harmed as a result of their detrimental reliance on the respondents' decade-long policy permitting computers. If [inmates] can sell their computers for a reasonable price, or, if they choose to give their computers to someone outside the prison as a gift, then the actual harm is limited. Otherwise, compensation should be in order.
The inmates' invocation of the doctrine of detrimental reliance or promissory estoppel is misplaced for several reasons. First, as noted previously, three of the inmates are before this Court by way of original proceedings in habeas corpus. While the proper use of habeas corpus is to test the constitutionality of the petitioner's restraint, it is not the proper mechanism by which to bring a contract action. Also, promissory estoppel is not applicable to the facts of this case.
In general promissory estoppel is an equitable doctrine which, under certain circumstances, will nullify the defense of lack of consideration in a contract action. 7 M.J., Estoppel, § 14. Thus in certain circumstances where the promisor leads the promisee to rely to his detriment courts will permit the promisee to recover in spite of a lack of consideration to the promisor.
Cochran v. Ollis Creek Coal Company, 157 W.Va. 931, 936-937, 206 S.E.2d 410, 414 (1974). The relationship between prison administrators and the inmates under their charge simply is not a contractual one. The policies promulgated by administrators cannot fairly be characterized as promises so as to create a promisor-promisee relationship.
F.
Retaliation C'laim
The inmates also argue that the prison administrators removed their computers in retaliation for the exercise of their constitutional right of meaningful access to the courts. In support of their argument, the inmates rely on Mathis v. Sauser, 942 P.2d 1117 (Alaska 1997). In Sauser prison administrators promulgated a new policy that specifically prohibited inmates from possessing computers (except the laptop variety) and printers. The official rationale given for the new policy included'the belief that “prisoners have been utilizing computers to harass prison officials at [the prison] with frivolous litigation and large amounts of paperwork.” Sauser, 942 P.2d at 1119. Inmate Mathis protested the impending seizure of his printer, alleging that the anticipated action violated his constitutional right of access to the courts. The court found that the stated rationale for the new policy was an impermissible attempt by administrators to curtail frivolous litigation, a responsibility which rests primarily with the judiciary. The court explained:
The question before us is not whether Mathis possesses a constitutional right to have a printer in his cell. Rather, we must determine whether Mathis, under Alaska’s constitution, has a constitutionally protected interest in not being deprived of his printer if the rationale behind such deprivation is to restrict his right of access to the courts. Our inquiry is framed by the record in this case, which suggests that the [Standard Operating Procedure] may have been promulgated to address the “problem” of pro se litigation on the part of ... inmates.
Sauser, 942 P.2d at 1120 (footnote omitted). The inmates urge us to adopt the same approach as the Alaska court and find that “the respondents have confiscated the computers of the petitioners and the appellant in response to inmate use of computers to access the courts, and, specifically, to discourage and send a message to all inmates that the respondents will not punish for the use of the courts like Kenneth Blevins.”
“Prison officials may not retaliate against an inmate because of the inmate’s exercise of his right of access to the courts.” Aguilar v. Chastain, 923 S.W.2d 740, 744 (Tex.App.1996). See also Boblett v. Angelone, 942 F.Supp. 251 (W.D.Va.1996), aff'd, 121 F.3d 697 (4th Cir.1997); Hudspeth v. Figgins, 584 F.2d 1345 (4th Cir.1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2013, 60 L.Ed.2d 386 (1979); and Johnson v. Rodriguez, 110 F.3d 299 (5th Cir.1997), cert denied, — U.S. —, 118 S.Ct. 559, 139 L.Ed.2d 400 (1997). Such retaliatory conduct is actionable because it may tend to chill inmates’ exercise of their constitutional right of access to the courts. See ACLU of Maryland, Inc. v. Wicomico County, Md., 999 F.2d 780 (4th Cir.1993).
The elements of a claim under a retaliation theory are the plaintiffs invocation of “a specific constitutional right,” the defendant’s intent to retaliate against the plaintiff for his or her exercise of that right, a retaliatory adverse act, and causation, i.e., “but for the retaliatory motive the complained of incident ... would not have occurred.”
Johnson, supra, 110 F.3d at 310 (citation omitted and footnote added). “The constitutional right of access to the courts encompasses only an inmate’s own reasonably adequate opportunity to file nonfrivolous legal claims challenging [his] convictions or conditions of confinement.” Johnson, 110 F.3d at 310-311, citing Lewis v. Casey, 518 U.S. 343, 356, 116 S.Ct. 2174, 2182, 135 L.Ed.2d 606, 621 (1996). It does not include secondary litigation activity such as a jailhouse lawyer’s legal work on behalf of other inmates. See Johnson, supra. The alleged adverse retaliatory act must result in some adversity to the inmate who exercised his right of access to the courts “to warrant concern about a chilling effect on the exercise of his right to access the courts.” Boblett, 942 F.Supp. at 254. Finally, a prisoner alleging retaliation must allege sufficient facts tending to support his allegation of retaliation. See White v. White, 886 F.2d 721 (4th Cir.1989). Broad assertions of retaliation are not sufficient.
Examining the allegations before us in light of the above standards, we find that the inmates fail to state claims for retaliation. Our review of applicable cases from other jurisdictions reveals that retaliation claims usually concern an individual prisoner or class of prisoners, each of whom exercised a fundamental right and suffered an alleged retaliatory action. See e.g., Boblett, supra (prisoner alleged harassment and termination from employment for availing himself of grievance procedure); Thomas v. Collins, 960 S.W.2d 106 (Tex.App.1997) (prisoner alleged that he was held in administrative segregation for filing grievance and lawsuit); Johnson, supra (prisoner brought action on his own behalf and the behalf of a class of prisoners alleging that the state parole scheme in which prisoners’ litigation history was a factor in the parole process violated the right of access to the courts); Aguilar, supra (inmate alleged that destruction of legal papers during a cell search was retaliation for his involvement in a federal civil rights suit); and Hudspeth, supra (prisoner alleged threat of physical harm by guard in retaliation for litigation). The deprivation or hardship suffered by prisoners in such cases generally is not actionable but for the fact that it allegedly occurred in response to the invocation of a constitutional right and was intended to chill the future exercise of that right. Courts regularly must infer wrongful intent and find the necessary degree of causation from the fact that a prisoner or prisoners exercised a right and soon thereafter experienced an adverse act. Therefore, a retaliation claim must include all of the elements stated above and must set them forth with specificity.
In the present cases, each inmate fails to state a claim for retaliation in that each fails to allege that he exercised a fundamental right for which he suffered the removal of his computer. Each instead avers that Kenneth Blevins and others brought a lawsuit for which all prisoners are now denied possession of their computers. This allegation does not meet the initial threshold requirement of a retaliatory claim, i.e., the plaintiffs invocation of a specific constitutional right. Absent this, the connection between the invocation of the right and the subsequent adverse act is insufficient to prove intent and causation.
In addition, we believe that retaliation claims which allege that the adverse act is an institution-wide policy are problematic. This is so because the nexus between the invocation of the constitutional right and the subsequent adverse act in most cases would be too tenuous to prove “but for” causation. Proving the requisite intent would also be difficult. A prisoner who alleges retaliation in such a case would be burdened with proving that he exercised a specific constitutional right, the subsequent enactment of an institution-wide policy with the intent to retaliate against the plaintiff for his exercise of the right, and that the policy would not have been promulgated but for the retaliatory motive. While it is not necessarily this Court’s belief that such a claim could never be successful, the circumstances giving rise to such a claim would be rare.
Consequently, this Court will generally determine the constitutionality of a challenged prison policy, not by the legitimacy of the motivations for its enactment, but according to whether the policy results in a violation of a fundamental right. We are convinced that this approach enjoys several advantages. First, it prevents inmates from challenging otherwise legitimate policies simply by alleging retaliation. If we were to adopt the position urged on us by the inmates, policies properly instituted by administrators would be subject to an entirely new avenue of challenge. This, in turn, would increase litigation. Second, our approach recognizes the broad discretion of prison administrators to enact the policies necessary to ensure the safety and security of both prisoners and prison personnel. Third, it confines retaliation theory to the narrow circumstances for which it was intended. Finally, it relieves courts of the dubious task of parsing the motives of prison administrators in the enactment of policies which would otherwise pass constitutional muster. We therefore find no merit in the inmates’ retaliation claims.
G.
Prison Administrators’ Duty to Store Property
Finally, the inmates claim that the prison administrators have a statutory duty to safely store the inmates’ computers. They hinge their argument on 95 C.S.R. 2, § 18.5 (1996) which states:
Security of Personal Property. Procedures shall govern the control and safeguarding of inmate personal property. Personal property retained at the correctional facility shall be itemized in a written list which is kept in the permanent file. The inmate shall receive a current copy of this list. All inmate’s property retained by the correctional facility shall be accurately inventoried, handled carefully and securely stored. The property shall be available if required by the inmate and returned at the time of release. Confiscated items shall be noted on the inventory list which is signed by the inmate. Receipts shall be provided to the inmate for all funds and possessions stored, and upon release from the correctional facility, receipts shall be signed by inmates acknowledging return of then-property.
A careful reading of the regulation reveals that it does not mandate the storing of any personal property by prison administrators but merely states the procedures to be followed if personal property is stored. Therefore, we are not persuaded by the inmates’ reliance on this administrative regulation. By its own terms, it only governs personal property retained at the correctional facility. In Nitcher v. Armontrout, 778 S.W.2d 231 (Mo.App.1989), the court held that a prison regulation which stated that inmates’ excess personal property was to be mailed to the inmates’ families, donated to a charitable organization, or destroyed after being stored for ninety days did not conflict with a statute requiring the administrative officer to take charge of the inmates’ property and return it to them upon release. The court reasoned that the means for returning property to the inmates through family members or visitors provided an adequate substitute. Here, unlike in Nitcher, this Court is not aware of any statute or regulation mandating the storage of inmates’ personal property. Even if there were such a rule, however, under the reasoning in Nitcher, it would not necessarily conflict with the challenged policy.
We recognize, however, that there may be mitigating circumstances that call for flexibility on the part of prison administrators. The instant cases may present such circumstances. The inmates have invested substantial funds in their computers and must now decide how best to dispose of them. Inmates who have family members or friends who are willing to receive the computers are presented with a ready solution. However, those inmates who have no one outside to whom they can send their computers are confronted with a genuine dilemma. In such circumstances, we believe it is important that the warden store these computers for a reasonable amount of time so as to allow the inmates the opportunity to make appropriate arrangements for the storage, sale or disposal of their computers. What constitutes a reasonable amount of time may depend, in part, on the efforts of each inmate to locate suitable outside storage or other disposal method. The burden rests with each inmate to keep prison administrators apprised of his efforts. We are confident that in this way the computers can be disposed of in a timely manner to the satisfaction of all parties.
IV.
CONCLUSION
For the reasons set forth above, we conclude that the contentions of the inmates are without merit. We therefore affirm the or der of the Circuit Court of Fayette County which denied the relief sought by the appellant. It is also adjudged and ordered that the various writs of the relators heretofore issued be, and the same hereby are, dismissed.
No. 25155 — Writ denied.
No. 25156 — Writ denied.
No. 25157 — Writ denied.
No. 25158 — Affirmed.
. No evidence in these cases was taken below. Therefore, the following facts are derived from the briefs filed herein and their attached exhibits.
. For example, inmates were prohibited from connecting computers to telephone lines and using computers for gambling and viewing pornographic materials.
. The exact outcome of this litigation is unclear from the briefs filed with this Court. According to the brief filed on behalf of the relators and the appellant, "much of this litigation was successful for the inmates.”
. Howard Painter is currently the warden of the Mount Olive Correctional Center.
. Attached to the brief of the inmates is a Declaration of Daniel Hedges, legal counsel for several of the inmates in the federal lawsuit in which he states in part:
4. During the negotiations concerning settlement of this lawsuit Warden George Trent stated on July 12, 1996 that if the inmates continued to pursue said civil action and did not settle on the offered terms the Commissioner would remove all computers from Mount Olive Correctional Complex.
5. During a conference in front of federal Magistrate Judge Mary Feinberg on July 16, 1996 Leslie Kiser, general counsel for the Division of Corrections re-stated the same — that if the suit were continued and not settled on the terms the state was offering at that time the Commissioner would remove all computers from Mount Olive.
. In the November 10, 1997 memorandum, Warden Trent stated that he had originally informed the inmates of the prohibition on personal computers two months earlier and had at that time authorized the purchase of ten IBM Wheelwriter word processors for general inmate use.
. Each of the consolidated cases arrives in this Court by way of different procedural mechanisms and requests slightly different relief.
Samuel Anstey, in his pro se habeas petition and motion for temporary restraining order or preliminary injunction, complains that his computer was "taken" without procedural due process as "mass punishment.” Anstey argues that such punishment is unjust because he has done nothing wrong.
In their pro se habeas petition and motion for temporary restraining order and preliminary injunction, Gary W. Sheppard and Dwaine King complain that the unconstitutional taking of Sheppard’s computer has deprived King of his right to Sheppard's legal assistance. They also assert that “since the State does not provide legal assistance to inmates, the State must permit inmates to have fellow inmates assist them.”
Larry E. James, Jr., in his pro se mandamus petition, seeks to compel the respondents to safely store his computer. James opines that he has been threatened with disciplinary action for not removing his computer from Mount Olive, even though he has nobody to whom he can send his computer.
Finally, as noted above, Charles Plantz brings a pro se appeal from the denial of a mandamus petition in the Fayette County Circuit Court wherein he sought to compel the respondents to safely store his computer. The petition for appeal raises additional issues such as the constitutionality of the computer “seizure” and the alleged retaliation for access to the courts.
.According to the inmates, the Blevins litigation in the Circuit Court of Kanawha County, which is Civil Action No. 97-C-2969, concerns the allegation that all inmate computers were "permanently seized" in retaliation for Blevins' litigation in federal court. According to the respondents and appellees, the litigation in Kanawha County concerns an alleged breach of the settlement agreement in the federal litigation. The inmates state in their brief that an evidentiary hearing has not yet occurred in the Circuit Court of Kanawha County because the court granted the respondents' and appellees' motion to stay proceedings until this Court resolved these consolidated cases. We do not find it necessary to remand the cases before us and we proceed to decide the issues raised herein.
. We note, also, that one shudders to think what the reaction of the public would be if this Court were to order that damages be awarded to the inmates under these speciflc circumstances.
. This Court has also addressed retaliation claims in other contexts, such as employment relations, for which it has crafted different rules. See e.g., Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978); McClung v. Marion County Commission, 178 W.Va. 444, 360 S.E.2d 221 (1987); and Imperial Colliery Co. v. Fout, 179 W.Va. 776, 373 S.E.2d 489 (1988). It is important to note that the elements set forth above apply only in the prison context.
. While the appellant, Charles Plantz, apparently was a party to the Blevins litigation in federal court, he fails to set forth a specific claim of retaliation, alleging instead that "[t]he removal order is the subject of numerous lawsuits and other civil actions, because it was initiated as retaliation for access to the courts, in contravention of the State & Federal Constitutions.” Plantz notes the alleged verbal threat made by Warden Trent during the Blevins litigation "that if those inmates pursued their litigation through to relief, respondent would take the inmate personal computers!.]” This broad assertion, however, is simply not sufficient to constitute a retaliation claim. | [
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PER CURIAM:
The Auditor of the State of West Virginia appeals a June 11, 1997 order of the Circuit Court of Wood County that allowed a City of Parkersburg demolition lien on a certain piece of real estate to take priority over property tax liens of the State Auditor and a judgment lien of St. Joseph’s Hospital of Parkersburg. Appellant State Auditor argues that the circuit court erred in applying the doctrine of equitable subordination. For reasons explained below, we reverse the circuit court.
I.
On July 13, 1995, the City of Parkersburg (“City”) notified Rosemariea C. Carpenter, the Auditor of the State of West Virginia (“Auditor”), the Sheriff of Wood County (“Sheriff’), and St. Joseph’s Hospital of Par-kersburg (“Hospital”) by letter that the City intended to demolish a structure on a certain piece of real estate located within the City’s boundaries. The City had determined that the structure had deteriorated to the extent that it presented a hazard to the public’s health, safety and welfare.
At the time of the notification, the Auditor had five statutorily created property tax liens on the property for delinquent taxes for the years 1992 through 1996 totaling approximately $250.00 plus interest and costs. The Hospital had a judgment lien recorded against the property on November 21, 1994 for $3,060.50. The City removed the structure from the property, and after the demolition was completed, filed a demolition lien against the property on November 27, 1995 for $2,820.06.
After the City filed the demolition lien, it filed a complaint in the Circuit Court of Wood County alleging that the City had demolished a structure on property owned by Rosemariea Carpenter, and that, as a result of the City’s demolition, the lien-holding defendants and Ms. Carpenter had unjustly benefited. The City requested that it be reimbursed for the demolition costs. In the alternative, the City requested that the circuit court permit the City to sell the property and apply the proceeds first to the costs of the sale, then to the costs of demolition, and the remainder, if any, to the defendants’ liens.
The Auditor filed a motion to dismiss, and the circuit court, by letter on February 14, 1996, denied the motion, except for the City’s request for monetary judgment against the defendant lien holders. The court directed all parties to submit briefs on the issue of lien priority. On May 10, 1996, the circuit court heard oral argument on the priority of the liens on the subject property.
Following oral arguments the judge ruled that the City’s demolition lien took priority over the Auditor’s property tax liens and the Hospital’s judgment lien, applying the doctrine of equitable subordination. The trial court ordered that the property be sold. This appeal followed.
II.
This is a case of statutory interpretation. We are mindful that “[t]his Court reviews the circuit court’s final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.” Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). See Syllabus Point 1, West Virginia Human Rights Commission v. Garretson, 196 W.Va. 118, 468 S.E.2d 733 (1996) (“Interpreting a statute presents a purely legal question subject to our de novo review on which neither party bears the burden of proof.”).
The issue before this Court is the priority of liens. The general rule in establishing priority of liens is “first in time, first in right.” We have stated:
According to the language of W.Va.Code § 38-10C-1 (1943), liens in favor of the state, a political subdivision, or a municipality generally take their place in chronological order, upon docketing, with the deeds of trust and other liens. The statute does, however, provide for one exception to the general rule. Liens for [real property] taxes accruing under W.Va.Code § 11-8-1 et seq. are not subject to the recordation requirements of W.Va.Code § 38-10C-1.
McClung Investments, Inc. v. Green Valley Community Public Service District, 199 W.Va. 490, 493, 485 S.E.2d 434, 437 (1997).
While the Auditor is exempt from the requirement to record liens for real property taxes under W.Va. Code, '38-10C-1 [1943], no such exemption applies to a municipal demolition lien created under W.Va. Code, 8-12-16. There is nothing in our statutes which allows a municipal demolition lien to have priority over other perfected liens. Rather, municipal demolition liens are required to be recorded in the office of the clerk of the county commission to provide notice under W.Va.Code, 38-10C-1 [1943]. Priority is determined by the chronological order of the filings of hens in the clerk’s office, except for real property taxes which do not need to be recorded. McClung, supra.
This Court has held:
A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith.
Syllabus Point 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).
The trial court acknowledged in its order that the City’s hen was filed after the Auditor’s liens attached and subsequent to the Hospital’s judgment lien, but held that the City’s demolition lien should, nevertheless, be first in priority, due to the doctrine of equitable subordination.
Equitable subordination is a doctrine of equity that is applied almost exclusively in bankruptcy proceedings, generally where there is inequitable conduct by a claimant resulting in injury to other creditors. 4 Lawrence P. King, Collier on Bankruptcy, 510.05[1] at 510-13 (15th ed. rev. 1998). The goal of the doctrine is to put a creditor in the place he would have occupied, but for the inequitable conduct. A three-factor test has been established to determine if the doctrine should apply: 1) the claimant must have engaged in inequitable conduct; 2) the claimant must have unfairly profited from the action or must have placed other creditors at a disadvantage; and 3) subordination must be consistent with the principles contained in the Bankruptcy Code. In re Daugherty Coal Company, Inc., 144 B.R. 320, 323 (N.D.W.Va.1992).
The City argues that the Auditor, the Sheriff and the Hospital have unjustly benefited from the City’s demolition, and the defendants inequitably “sat on their rights.” However, the City produced no evidence which tended to prove that the Auditor did anything outside of his authority, or contrary to the laws and policies that govern his office’s operation. Nor was there any evidence that other defendants took any action other than that provided for by the law governing the perfection of liens. We find that the doctrine of equitable subordination is not applicable in this matter, and even if the principles of the doctrine were applied to the facts of this case, the City’s lien would not be placed ahead of the defendants’ liens.
Applying the general rule of “first in time, first in right,” with appropriate consideration of W.Va.Code, 38-10C-1 [1943], the City’s demolition lien falls in order after the Auditor’s real property tax liens and the Hospital’s judgment lien.
III.
Consequently, we reverse the June 11, 1997 order of the Circuit Court of Wood County.
Reversed.
. We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4 (1992).
. Rosemariea C. Carpenter, the property owner of record, did not appear in any of the proceedings below and her whereabouts were unknown to the remaining parties.
. The Sheriff of Wood County joined the brief of the Auditor in this appeal.
.The City's authority to demolish structures is located in W.Va.Code, 8 — 12—16(d) [1996]. It provides, in part:
The governing body of every municipality shall have plenary power and authority to adopt an ordinance requiring the owner or owners of any dwelling or building under determination of the state fire marshal, as provided in section twelve [§ 29-3-12], article three, chapter twenty-nine of this code, or under order of the enforcement agency of the municipality, to pay for the costs of repairing, altering, or improving, or of vacating and closing, removing or demolishing any dwelling or building. Every municipality shall also have the right to file a lien against the real property in question ... or to institute a civil action in a court of competent jurisdiction against the landowner or other responsible party for all costs incurred by the municipality with respect to the property and for reasonable attorney fees and court costs incurred in the prosecution of the action.
. W.Va.Code, 11A-1-2 [1961] provides:
■ There shall be a lien on all real property for the taxes assessed thereon, and for the interest and other charges upon such taxes, at the rate and for the period provided by law, which lien shall attach on the first day of July, one thousand nine hundred sixty-one, and each July first thereafter for the taxes payable for the ensuing fiscal year.
. W.Va.Code, 38-3-6 [1923] provides, in part:
Every judgment for money rendered in this State, other than by confession in vacation, shall be a lien on all the real estate of or to which the defendant in such judgment is or becomes possessed or entitled, at or after the date of such judgement.... Such lien shall continue so long as such judgment remains valid and enforceable, and has not been released or otherwise discharged.
. See supra, footnote 4.
. W.Va.Code, 38-10C-1 [1943] provides that:
No lien in favor of the State of West Virginia, or any political subdivision thereof or any municipality therein, whether heretofore or hereafter accruing, except the lien for taxes accruing under the provisions of article eight [§ 11-8-1 et seq.] chapter eleven of the Code of West Virginia, one thousand nine hundred thirty-one, shall be enforceable as against a purchaser (including lien creditor) of real estate or personal property for a valuable consideration, without notice, unless docketed, as hereinafter provided, in the office of the clerk of the county court [county commission] of the county wherein such real estate or personal property is, before a deed therefor to such purchaser is delivered for record to the clerk of the county court [county commission] of such county. The term "purchaser” as used herein shall be construed to include lien creditors whose liens were acquired and perfected prior to such docketing. | [
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PER CURIAM:
A jury found the appellant in this proceeding, Paul D. York, guilty of daytime burglary in violation of W.Va.Code 61-3-11, and the Circuit Court of Clay County sentenced him to from 1-10 years in the State Penitentiary. On appeal, Mr. York claims, among other things, that the circuit court improperly failed to suppress the admission of evidence obtained during a search of the trunk of the vehicle which he was driving immediately prior to his arrest.
I.
BACKGROUND FACTS
On June 26,1996, Gene King, who was the Chief of Police for the Town of Clay, West Virginia, observed the appellant, who was driving a white Ford Fairmont with a temporary Kentucky license tag, veer to the left across a double yellow line to pass a car which had slowed to make a right-hand turn. Chief King immediately pursued the appellant and pulled him over about four blocks away. The appellant stopped approximately two and one-half feet from the curb in front of a private residence on Route 16, the main road through Clay, West Virginia.
When Chief King asked to see the appellant’s driver’s license, the appellant, who was not a West Virginia resident, said that he had left the license with his wife at a motel room in Charleston, West Virginia. Shortly thereafter, he changed his story and stated that he had recently allowed his license to expire.
Chief King made a dispatch inquiry concerning the appellant, and that inquiry showed that the appellant’s Georgia driver’s license had expired in 1990. Upon learning this, Chief King decided to arrest the appellant and impound his vehicle. Chief King, therefore, immediately ordered that the dispatcher send a tow truck to tow the appellant’s car for the impoundment. He then notified the appellant that he was under arrest and that the vehicle was going to be impounded.
Upon learning that the vehicle was going to be impounded, the appellant protested and stated that the vehicle belonged to his father who lived in Kentucky. Chief King nonetheless stated that it was his obligation to tow the vehicle and get it off the street.
The driver’s side door of the vehicle was open, and a deputy who had appeared on the scene, noticed two small jewelry or “locket” boxes on the floor of the driver’s side of the vehicle. The boxes contained jewelry, and independent of the discovery of these items, Chief King had determined that it was necessary to do an inventory search of the vehicle before it was towed.
During the subsequent inventory search, a number of items, including two VCRs, were discovered in the trunk of the vehicle. One of the VCR’s had a white repair tag attached to it that contained the name and number of John Ramsey, who was an inhabitant of the town of Clay. Chief King was familiar with Mr. Ramsey and contacted him about the VCR. Mr. Ramsey shortly thereafter arrived at the scene and identified the VCR and told the authorities that it had been in his house that morning when he had left for work. Later that day, Mr. Ramsey learned that his house had been broken into and that his VCR had been stolen.
The appellant was subsequently indicted for daytime burglary in violation of West Virginia Code § 61-3-11.
Prior to the appellant’s trial, his attorney moved to suppress the various items seized by the police during the inventory search, including Mr. Ramsey’s VCR. A suppression hearing was subsequently held, and at that hearing, the trial judge ruled that the appellant had the burden of proof and the burden of going forward with the evidence. At the conclusion of the hearing, the court ruled that the initial stop of the appellant’s vehicle was proper and that the offense of driving without a valid operator’s license gave Chief King reasonable cause to arrest the appellant. The court also ruled that there was no reasonable alternative to impoundment of the vehicle since allowing it to remain where it was parked could have constituted a danger to the public who were using the highway. Additionally, the court ruled that the inventory search conducted pursuant to the im-poundment was necessary to protect the appellant’s property and protect the police from false claims. Since the search was appropriate, the court concluded that the discovery and seizure of Mr. Ramsey’s VCR was lawful. The court, therefore, denied the motion to suppress the admission of the VCR into evidence.
The appellant’s actual trial commenced on August 5, 1996. At that trial, John Ramsey testified that on the morning of June 26, 1996, he read the clock on his VCR as he was about to leave his home for a trip to Sum-mersville. He also testified that sometime that afternoon, he was contacted and taken to the scene of the appellant’s traffic stop in Clay, West Virginia. At the scene, Mr. Ramsey identified his VCR, and when he returned home, he saw that his back door had been kicked in.
During the trial, evidence was also introduced relating to the stop of the appellant, as well as the search which resulted in the discovery of the VCR. Finally, the VCR itself was introduced into evidence. The appellant chose not to testify, and the defense presented no witnesses. As previously indicated, at the conclusion of the trial, the jury returned a verdict of guilty.
After the jury returned its verdict, the appellant filed post-trial motions in which he claimed, among other things, that the trial court had erred in imposing upon him the burden of proof and burden of going forward with the evidence during the suppression hearing. He also claimed that the search of his vehicle had been conducted in violation of his constitutional rights and that the trial court had erred in refusing to suppress the admission of the VCR which had been discovered during that search.
At the conclusion of the hearing on the post-trial motions, the trial court concluded that the appellant had, in fact, been erroneously charged with the burden of proof and the burden of going forward with the evidence at the suppression hearing. The court, therefore, ordered that the appellant be provided with a new suppression hearing. The court denied the other motions made by the appellant.
A second suppression hearing was conducted on January 23, 1997. At that second suppression hearing, Chief King explained that inventory searches were routinely conducted of impounded vehicles, and he suggested that he always conducted inventory searches when he impounded vehicles. He also suggested that such searches were necessary to protect the police and political subdivision from false claims relating to missing personal property. Additional evidence basically proceeded along the lines of the evidence adduced at the first suppression hearing.
During the suppression hearing, the appellant argued that he could have made other arrangements for the security of his vehicle prior to the impoundment and that under such circumstances the impoundment was unreasonable.
At the conclusion of the second suppression hearing, the trial court again ruled that the appellant was arrested and the court also concluded that the chief of police’s decision to impound the vehicle was proper since there was no reasonable alternative to impoundment. Finally, the court ruled that the inventory search in the case was not pretextual and was conducted for the legitimate public purpose of protecting both the officer and the political subdivision for which the officer was employed from potential liability. The court accordingly denied the motion to suppress and declined to set aside the jury’s verdict of guilty.
As previously indicated, in the present appeal, the appellant claims that the circuit court erred in refusing to suppress the evidence seized during the search.
II.
BURDEN OF PROOF
This Court has held that a trial court’s legal conclusions regarding the suppression of evidence seized in a search and seizure situation are reviewed de novo, while factual determination involving those legal conclusions are reviewed under a clearly erroneous standard. State v. Buzzard, 194 W.Va. 544, 461 S.E.2d 50 (1995). See also, State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996).
III.
DISCUSSION
As previously stated, the appellant in the present proceeding claims that the trial court erred in refusing to suppress the admission of evidence obtained during the search of the trunk of the vehicle which he was driving. The record rather clearly shows that this search was a warrantless search conducted pursuant to "the so-called “inventory search” exception to the general rule that a properly-obtained search warrant is constitutionally required for the valid search of private areas of a vehicle such as the one involved in this case.
In State v. Goff, 166 W.Va. 47, 272 S.E.2d 457 (1980), this Court discussed at some length the prerequisites of the “inventory search” exception. The Court indicated that for a search to be constitutionally sustainable under the “inventory exception”:
(1) [TJhere was an initial lawful impoundment of the vehicle;
(2) the driver was not present at the time of the impoundment to make other arrangements for the safekeeping of his belongings;
(3) the inventory itself was prompted by a number of valuables in plain view inside the car; and
(4) there was no suggestion that the inventory search was a pretext for conducting an investigative search.
State v. Goff, 166 W.Va. at 49, 272 S.E.2d at 460.
The Court believes that the “inventory search” in the present case fails on each of these four points.
As stated in State v. Goff, id., the first prerequisite to a valid inventory search is an initial lawful impoundment of a vehicle. This requirement was specifically set forth in Syllabus Point 1 of State v. Goff, id., as follows: “The right to an inventory search begins at the point where the police have a lawful right to impound the vehicle.”
In the later case of State v. Perry, 174 W.Va. 212, 324 S.E.2d 354(1984), the Court discussed what is necessary for there to be a lawful impoundment. One critical prerequisite is that the police have “reasonable cause” for impounding the vehicle. The Court proceeded to define “reasonable cause” by quoting with approval State v. Singleton, 9 Wash. App. 327, 332-33, 511 P.2d 1396, 1399-1400 (1973), which states:
“Reasonable cause for impoundment may, for example, include the necessity for removing (1) an unattended-to car illegally parked or otherwise obstructing traffic;
(2) an unattended-to car from the scene of an accident when the driver is physically or mentally incapable of deciding upon steps to be taken to deal with his property, as in the ease of the intoxicated, mentally incapacitated or seriously injured driver;
(3) a car that has been stolen or used in the commission of a crime when its retention as evidence is necessary; (4) an abandoned ear; (5) a car so mechanically defective as to be a menace to others using the public highway; (6) a car impoundable pursuant to ordinance or statute which provides therefor as in the case of forfeiture.”
State v. Perry, 174 W.Va. at 216, 324 S.E.2d at 358.
In the present case the State argued, and the circuit court concluded, that, following the appellant’s arrest, his vehicle was, or was potentially, an unattended-to car obstructing traffic. It is clear that the other five causes do not apply.
Although at one point Chief King testified that the appellant’s vehicle was impounded because it was obstructing traffic, elsewhere in his testimony, he clearly and repeatedly stated that the reason he ordered the towing or the impounding of the vehicle was because he suspected that the appellant had engaged in criminal activity. His testimony proceeded as follows:
Q Okay. Now, with regard to the vehicle being towed, why — why did you make a decision to tow this vehicle?
A The decision to tow that vehicle: he didn’t know where he was at. He hadn’t been in this territory. He had just passed a police officer in broad view and didn’t stop and ask for directions, proceeded on around this lady in town that had put her turn signal. And he had already misled me about his operator’s license, and the temporary tags on the ear. And a place such as this, you recognize a stranger or local citizen, and so forth, and that’s one of the reasons I even handcuffed him; I did not know him. He was an unlicensed operator; and he had a vehicle with out-of-state with an old temporary tag up in the back glass.
Later, Chief King expanded upon this in the following testimony:
Q All right. The only thing I’m asking you is, what did all of these things that you testified to make you suspicious of? Did it make you suspicious that he, perhaps, was a law breaker of some sort; that he was a fugitive of some sort; or that he was a troublemaker of some sort? Did all of these things that we’ve covered here so far during my questioning—
A Yes.
Q —make you suspicious that this man was in some way a criminal?
A Yes. Why wouldn’t they?
Q Okay. All right.
A Yes, sir.
Q Let me back up. At what point did you first become suspicious of the fact that Mr. York might be in some way a criminal or that he might be up to something?
A Well, the first point I can’t say, but it was he had lied about his operators, which they had expired in 1990; this was in 1996. You’d passed — you’re wanting help. We’re a small town, the streets are narrow. And you’re lost — you don’t know where you’re at — the first time in this area — there sets a police officer — you didn’t slow down or put on taillights and back up, or pull off real quick and wait, and say, “Where am I at? Can you help me?” This adds to it, sir. Yes, sir, it does.
Based on this evidence this Court can only conclude that Chief King was primarily motivated to impound the appellant’s vehicle because he suspected that the appellant had engaged in criminal activity. This becomes more apparent in light of the testimony of Chief King that the obstruction of traffic was relatively minor and could apparently have been corrected by parking the vehicle a little closer to the curb:
Q Okay. I want to take you back just a little bit to, you said when you first pulled the vehicle over it was approximately two and a half feet from the curb. Was it out in the street, out in the portion that’s driven on by the public?
A It wasn’t no big deal if the traffic was all going south, but the northbound traffic, it was — they’d a had to veered over acrossed and take more of their highway if two was passing there, cause, you know, your streets are just, you know, of course, just so wide, you know. And it should have been a couple of feet or two and a half closer to the sidewalk than what it was because of the traffic.
In light of all this, this Court believes that the trial court was clearly wrong in holding that the impoundment was reasonable.
Even if the impoundment were proper, as pointed out previously, State v. Goff, supra, indicates that for an inventory search to be proper, the taking of the inventory itself must be prompted by a number of valuables in plain view inside the car, and there must be no suggestion that the inventory search was a pretext for conducting an investigative search. It is clear from Chief King’s testimony that he suspected that the appellant had committed a crime other than the minor traffic violation for which he was stopped. It is also clear that he was not motivated to conduct the search by the valuables in plain view inside the appellant’s car, for at the suppression hearing he testified as follows:
Q ... Now, let me ask you this: When did you make the decision to conduct this search? In this whole flow of events that we’re talking about here, that I apologize to you, we’re going into in real minute detail. When during this flow or sequence of events did you make the decision to make this search?
A I don’t think you quite heard the statement, sir. And. I apologize if you misunderstood me. An inventory search and a search is altogether different in the sight of the law. Even if I hadn’t saw nothing in the front end of the car, an inventory search would have been completed on the car’s content; inside, plus sometimes — nine this month that I’ve had towed, that went to the graveyards and wrecker shop — people don’t come and claim them. If they’d been no keys in the vehicle — and sometimes you don’t need the key; your switch will work without a key in the switch. But I would have inventoried what was in — I could get to in that vehicle before it was towed, for my own protection. But the key was in the switch. Then, when Officer Holcomb was there with me also. I would have done it without Officer Holcomb. It’s my job. But I would have taken the key and inventoried for spare tires, and jacks, and tools, in. the trunk before the car would have been towed.
% ¡fc
Q So, what you’re telling us is that you were going to do the inventory search. And we all agree, that this was an inventory search; right? This was an inventory search?
A That’s what I stated, sir.
Q Right. Okay. You had decided to do the inventory search just as part of your routine of having the vehicle impounded; correct?
A Yes.
Q Okay. So, in other words, as you just stated, the fact that you found a locket box — or that Deputy Holcomb found the locket box on the floor of the vehicle un derneath the gas peddle, or near the gas peddle, had nothing to do with your decision to conduct the inventory search; correct? You had already made that decision; right?
A I would have inventoried the vehicle and its contents.
Q Even — let me — let me ask it again, cause I’m not sure if I’m making myself clear to you and I want to get a good clear record here. You would have conducted the inventory search regardless of whether or not you or Deputy Holcomb would have found those locket boxes in the front seat of the car.
A I would have inventoried the vehicle. It wouldn’t make a darn what was in the floor or laying in the seat, I would have inventoried, the same procedures, the vehicle before it left my sight and went to the tow shop.
Q Okay. Is that your standard procedure?
A Yes, it is.
Finally, even though not essential to the decision in this case, the Court, in State v. Perry, supra, recognized that when a driver of a vehicle has been arrested in or near his car, he must ordinarily be given an opportunity to make arrangements for disposition of it himself before it is impounded. Specifically, the Court held in Syllabus Point 2 of State v. Perry, supra, that:
There is no need to confer with the owner or possessor of a car prior to impoundment concerning the disposition of his vehicle and its contents where he is unavailable or physically or mentally incapable of making arrangements for its protection or the vehicle has been stolen or has been used in the commission of a crime and its retention as evidence is necessary. However, in the situation where the owner or possessor of a vehicle has been arrested in or near his car, ordinarily, he must be given a reasonable opportunity to make some alternative disposition of the vehicle before the police may impound it for the sole purpose of protecting it and its contents from theft or damage.
In the present case, the State suggests that an alternative disposition of the appellant’s vehicle would have required the presence of the appellant’s wife or father and that they were many miles away and that it would have taken an unduly long time for them to arrive in Clay. While this facially seems to be a valid argument, Chief King’s testimony indicates that he made a decision to impound the vehicle even before he arrested the appellant and even before he had discussed alternative dispositions of the vehicle. Further, as previously indicated, the testimony of Chief King suggests that any traffic problem caused by the vehicle could have been cured by parking it slightly closer to the curb, an alternative disposition which the police could have made with little difficulty. The fact that this might have been a reasonable disposition is buttressed by testimony that a magistrate’s office was an eight or ten minute walk from the location of the vehicle. The appellant was charged with a misdemeanor traffic violation which could have been handled by the magistrate in a short period.
For the reasons stated, this Court believes that the search of the trunk of the appellant’s vehicle was improper under the “inventory search” exception and that the trial court erred in failing to suppress the evidence seized as a result of that search. The Court also concludes that the judgment of the Circuit Court of Clay County should be reversed and the defendant’s conviction set aside.
Reversed and conviction set aside.
. We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4 (1992).
. W.Va.Code 61-3-11, provides, in relevant part:
(b) If any person shall, in the daytime, enter without breaking a dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit a crime therein, he shall be deemed guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than one nor more than ten years.
. This Court notes that in Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), the Supreme Court of the United States indicated that the Federal Constitution did not always require that the police afford a stopped individual an opportunity to make an alternative disposition of his vehicle.
This Court and the Supreme Court of the United States have both recognized that while a state may not interpret its constitutional guarantee which is identical to a federal constitutional guarantee in a manner more restrictive than the Supreme Court of the United States, nothing prevents a state court from equaling or exceeding the federal standard. Adkins v. Leverette, 161 W.Va. 14, 239 S.E.2d 496 (1977); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Sihron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
In State v. Goff, 166 W.Va. 47, 272 S.E.2d 457 (1980), Justice Miller recognized that the case of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the then-lead case on inventory searches, perhaps did not go as far in protecting a defendant’s rights as did the Court in Goff. Justice Miller said:
While it may be argued that these conditions are not an integral part of the Opperman holding, we consider them to be. Even if they are not required by the Fourth Amendment, they comport with our view of the prerequisites of an inventory search under Article III, Section 6 of the West Virginia Constitution.
State v. Goff, 166 W.Va. at 49, 272 S.E.2d at 460 (1980).
The Court also emphasized in State v. Perry, 174 W.Va. 212, 324 S.E.2d 354 (1984), that that decision was based on our interpretation of our constitution provision:
In this case, we find that the arresting officer did not have a ground for impoundment that would enable him to avoid giving the driver a reasonable opportunity to make an alternative disposition. The failure to permit such alternative disposition renders the impoundment and subsequent inventory search invalid. We specifically base this requirement, as we did in Goff, on Section 6 of Article III of the West Virginia Constitution.
State v. Perry, 174 W.Va. at 218, 324 S.E.2d at 360.
In light of the fact that we have based our decision in the present case on factors other than the failure of the police department to afford the appellant an opportunity to make an alternative disposition of his vehicle, and in light of the fact that our inventory search rule is more expansive than the federal rule, the Court does not believe that the decision in Colorado v. Bertine, alters the outcome of this case.
. In addition to challenging the search in this case, the appellant claims that his attorney rendered ineffective assistance of counsel, that there were defects in the jury selection process, and that the jury was prejudiced when it was allowed to see him shackled and otherwise restrained. These assignments all relate to events that occurred during trial and will not necessarily recur during a possible retrial. We have law discussing the problems raised, and because the resolution of these issues is unnecessary to the decision of this case, the Court believes that a redundant recitation of the law on the points is unnecessary. | [
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The Opinion was delivered PER CURIAM.
PER CURIAM.
Tina S. (“Tina”), the intervenor below and the appellant before this Court, appeals a final order of the Circuit Court of Mingo County entered on May 27, 2004, terminating the intervenor status of Tina and thus denying her request to adopt Michael S. Jr. (“Michael Jr.”).
We affirm the circuit court’s ruling terminating Tina’s intervenor status; and we agree with the circuit court that it is in the best interest of the child for the West Virginia Department of Health and Human Resources (“DHHR”) to immediately begin a search for another adoptive placement option for Michael Jr.
I.
This case arises from a referral received on October 25, 2003, by the DHHR about the living conditions, hygiene, and mental health of Michael Jr., a five year old child. The referral alleged that the homes of his biological parents, Brenda E. and Michael Sr. (“Brenda” and “Michael Sr.”), were in deplorable condition; that both parents and child suffered from poor hygiene; that Michael Jr. was not potty trained at age five; and that both parents were substance abusers.
After the DHHR investigated the referral, the DHHR filed a child abuse and neglect petition on December 15, 2003, pursuant to W.Va.Code, 49-6-3 [2005] against Brenda and Michael Sr., seeking immediate custody of Michael Jr. ,
At a December 15 hearing, the circuit judge found sufficient evidence to justify immediate removal of Michael Jr. from the custody of his biological parents. Michael Jr. was directly remanded into the DHHR’s custody based on a finding that he was in imminent danger due to aggravated circumstances. Michael Jr. was also appointed a guardian ad litem.to represent and protect his best interest.
On December 17, 2003, a preliminary hearing was convened and the circuit judge held that Michael Jr. should remain in the legal and physical custody of the DHHR. The appellant, Tina, who is a friend of Brenda, was given intervenor status at this hearing because she expressed an interest in adopting Michael Jr.
At the hearing Tina was told that she would be required to fill out the necessary paperwork, complete a home study, and undergo a psychological evaluation.
An adjudicatory hearing was held on January 20, 2004. At that hearing the circuit court found that Michael Jr. was a neglected child in accordance with W.Va.Code, 49-6-2(c) [2005]. Tina attended this hearing and was informed of the date for her psychological evaluation.
At a February 23, 2004 dispositional hearing, Brenda and Michael Sr. requested a post-adjudicatory improvement period. The circuit court granted a sixty-day improvement period for Brenda, but denied Michael Sr.’s request. Another dispositional hearing was scheduled for April 21, 2004, at 3:30 p.m.
On April 16, 2004, Tina transported Brenda to a supervised visit with Michael Jr. The DHHR caseworker was present at the visit, and reported that there was little interaction between Tina and Michael Jr., and the interaction that did take place showed no signs of an emotional bond between the two.
On April 20, 2004, the day before the scheduled April 21 dispositional hearing, the circuit court changed the time for the April 21 hearing from 3:30 p.m. to 8:30 a.m. Brenda was present for the April 21, 2004 hearing, but Tina did not attend the hearing. Due to the limited record, it is unclear whether Tina informed Brenda of the time change, or if Brenda informed Tina. But it is clear that Tina knew of the hearing and failed to attend. At the hearing, Brenda was granted an extension on her improvement period.
The court held a final dispositional hearing on May 27, 2004. Tina did not attend this hearing in person, but was represented by counsel. Evidence was presented by the DHHR caseworker to the effect that no emotional bond existed between Michael Jr. and Tina; that Tina did not complete a home study or psychological evaluation; and that Tina had not had any contact with Michael Jr. in more than a month. Tina also failed to attend a multi-disciplinary treatment team (“MDT”) meeting where DHHR workers who were working on the Michael Jr. case discussed what was in the best interest of Michael Jr.
The circuit court’s order from the May 27 hearing reflected that Brenda voluntarily relinquished her parental rights to Michael Jr. The order also terminated the parental rights of Michael Sr. because of his neglect of Michael Jr. and his non-participation with the healings and services offered. The order also states that, due to Tina’s non-cooperation with the proceedings and her failure to attend visitations or hearings, placement of Michael Jr. with Tina would not be in the best interest of the child. In conclusion the order stated that Michael Jr. should immediately be placed for adoption.
ll.
“In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.” Syllabus Point 2, Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997).
Also, under the abuse of discretion standard, we will not disturb a circuit court’s decision unless the circuit court makes a clear error of judgment or exceeds the bounds of permissible choices in the circumstances. Hensley v. West Virginia Department of Health and Human Resources, 203 W.Va. 456, 461, 508 S.E.2d 616, 621 (1998).
In cases dealing with children this Court has repeatedly stated that the best interest of the child is the polar star upon which decisions should be based. In re Erica C., 214 W.Va. 375, 589 S.E.2d 517 (2003). Determining what is in the child’s best interest is especially important when the child has been abused and neglected by his or her own parents and is currently in limbo as to a permanent home. “Child abuse and neglect cases must be recognized as being among the highest priority for the courts’ attention. Unjustified procedural delays wreak havoc on a child’s development, stability, and security.” Syllabus Point 2, In re Michael Ray T., 206 W.Va. 434, 525 S.E.2d 315 (1999). With the standard of the best interest of the child guiding this decision, we turn to the issue in the instant case: whether the circuit court erred in ruling against placing Michael Jr. in the adoptive custody of Tina, and in dismissing her as an invervenor.
Tina argues that her dismissal as an inter-venor and possible adoptive parent of Michael Jr. was improper because she was not given any notice of a time change for a dispositional hearing, and that the lack of notice caused her to miss the April 21 hear ing. Thus, Tina argues, she was prevented from presenting “her side of the story” as to why she would be an appropriate candidate to adopt Michael Jr.
However, the DHHR points to the fact that the biological mother, Brenda, testified that she spoke with Tina and that Tina did know of the time change for the dispositional hearing. The DHHR also presented evidence showing that it notified Tina of the change in time. Finally, the DHHR points to all of the previous hearings, meetings, and visitations in the case where Tina could have shown a consistent and caring interest in Michael Jr., but did not.
While the limited record from below does not show that formal written notice was given to Tina of the time change, the circuit court found that she was informed of the time change by Brenda. Formal written notice of a time change for a proceeding may be necessary in some instances. However, in the instant ease it is clear that Tina had actual notice as to when the dispositional hearing was going to occur, and she did not attend the hearing.
The lack of formal written notice in this instance should not be overlooked, but it is not outcome determinative. “Cases involving children must be decided not just in the context of competing sets of adults’ rights, but also with a regard for the rights of the children).” Syllabus Point 3, In re Michael Ray T., 206 W.Va. 434, 525 S.E.2d 315 (1999). Michael Jr. needs immediate permanency, consistency, and stability to counteract the lack of care and learning of his infant childhood.
Furthermore, Tina’s absence from court proceedings, because of an alleged lack of notice or other reasons cannot be taken as meaning that she had a lack of opportunity to have her position considered by the court.
Tina canceled her psychological evaluation, and never scheduled a home study. She did not attend an MDT in which placement options for Michael Jr. were discussed. Tina transported Brenda to visitations with Michael Jr., but Tina herself only visited once with Michael Jr. — then only for a short period of time. During this short visit, the DHHR caseworker noticed no emotional bond between Tina and Michael Jr. Tina never requested additional meetings with Michael Jr., and took no steps to further the possibility of becoming his adoptive parent. The court stated that “[d]ue to Tina S.’s non-eooperation with these proceedings and failure to attend the visitations with the child and the hearings in this matter, placement of the child with Tina S. would not be in the best interests of the child.”
From the record before the Court, there is more than sufficient evidence to affirm the circuit court’s decision to dismiss Tina as intervenor and possible adoptive parent of Michael Jr.
III.
In conclusion, we find that the circuit court did not abuse its discretion in dismissing the intervenor, Tina S., from consideration as the potential adoptive parent for Michael Jr., because she was non-cooperative with the proceedings and failed to attend visitations and hearings. Any further delay in this case would be unjust to Michael Jr. and would be against his best interest. Accordingly, it is in the best interest of Michael Jr. that he be placed for permanent adoption according to DHHR policy and procedure. The order of the Circuit Court of Mingo County is affirmed.
Affirmed.
. The investigator not only found deplorable living conditions, but was also told by Michael Sr., that he had been previously convicted in Ohio of several counts of gross sexual imposition against minor children.
. The judge also found, inter alia, that: (1) Michael S. and Brenda E. lived in two separate homes; (2) Brenda E.'s home had large holes in the bathroom and kitchen doors and you could see the ground; (3) Michael Sr., the father, did not have potable water in his home and his source of electricity was an extension cord run from Brenda E.'s home; (4) both homes were unkept and dirty; (5) each home had puppy feces on the floor; (6) [Michael Jr.] lived in the home with Michael Sr. and slept in bed with him; (7) Michael Sr., had been convicted of several counts of gross sexual imposition against children under the age of thirteen; and (8) Brenda E. was aware of prior sexual convictions.
. It was later determined that the evaluation was never performed, based on a letter from the doctor who was to perform the evaluation, because Tina had canceled the appointment and never rescheduled. | [
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Justice DAVIS delivered the Opinion of the Court.
DAVIS, Justice:
Martha Carol Staton (hereinafter “Mrs. Staton”), appeals from an order entered June 30, 2004, by the Circuit Court of Raleigh County. By that order, the circuit court reversed the portion of an order of the family court that awarded Mrs. Staton an equitable share of Stephen Edward Staton’s (hereinafter “Mr. Staton”) police disability pension. The circuit court found that the family court was correct in classifying Mr. Staton’s pension as a disability pension; however, the circuit court found that the family court erred in finding that the pension was a marital asset subject to equitable distribution. On appeal, Mrs. Staton argues that Mr. Sta-ton’s pension was a marital asset subject to equitable distribution. Based upon the parties’ arguments, the record designated for our consideration, and the pertinent authorities, the decision of the circuit court is affirmed in part, reversed in part, and remanded for further consideration.
I.
FACTUAL AND PROCEDURAL HISTORY
Mr. and Mrs. Staton were married in 1986. Prior to their marriage, Mr. Staton began employment with the City of Beckley Police Department in 1974. During his tenure with the police department, Mr. Staton contributed seven percent of his salary to the City of Beckley Retirement Fund. This employment continued until Mr. Staton was deemed disabled due to a knee injury on March 12,1996. During the marriage, the parties received almost $80,000.00 from the disability fund. Mr. and Mrs. Staton separated on April 26, 2000, and Mrs. Staton filed for divorce.
The family court entered an order on May 3, 2002, and ordered that “[Mrs. Staton] shall be awarded a portion of [Mr. Staton’s] pension account in relation to the years of the marriage and that [Mr. Staton] shall cooperate in all respects to cause a Qualified Domestic Relations Order to be entered.” Mr. Staton appealed to the circuit court. The circuit court remanded the matter by order entered August 14, 2002, for the family court to take evidence to determine whether the pension was a retirement pension or a disability pension. The circuit court stated that the “[family court order] does not state whether the pension is a disability pension or a retirement pension. [Mr. Staton’s] objection claims that it is a disability pension, and that unlike a retirement pension, it is not subject to marital distribution and the entry of a [Qualified Domestic Relations Order].” The circuit court reasoned that if the pension was to compensate Mr. Staton for future lost wages, then it was separate property and not subject to distribution. The circuit court directed:
Upon remand of this issue, the family court will take such evidence as it deems necessary to ascertain whether [Mr. Sta-ton’s] pension is a disability pension or a retirement pension. If it is found to be a disability pension, the payments received during marriage will be deemed to have been distributed with the parties’s (sic) marital assets as determined at the time of separation. With respect to future payments, the family court will determine whether those payments compensate [Mr. Staton] for lost future income. If so, the payments are separate property and the value of the disability pension is not subject to marital distribution. If, however, the family court' finds that any portion of the future payments are intended to restore a lost or damaged marital asset, such portion would be a marital asset subject to distribution.
If upon these principles the family court finds that [Mr. Staton’s] disability pension is not subject to .distribution as a marital asset, the future income he derives from the pension should be included in the income upon which child support and spousal support shall be calculated. If, however, the family court finds that all or part of the disability pension is subject to marital distribution, the family court must calculate the portion of his future payments that constitutes marital property, and only the remainder will be deemed part of [Mr. Staton’s] income for the purposes of the calculation of child support and spousal support.
If the disability pension is not marital property, it is not subject to a [Qualified Domestic Relations Order] or to any further attention. If it is partly marital and partly nonmarital property, it is subject to a [Qualified Domestic Relations Order] only as to the portion that is marital property, if the administration of the disability pension is such that only a part of it can be subjected to a [Qualified Domestic Relations Order], If the family court finds that it is partly marital and partly nonmarital, and that the fund from which payments are made cannot be segregated for [Qualified Domestic Relations Order] purposes, the family court may calculate the portion of each future payment that constitutes marital property, and the remainder of each payment will be deemed [Mr. Sta-ton’s] income for the purposes of the calculation of child support and spousal support. Under that arrangement, [Mr. Staton] will pay a portion of each future disability payment as marital distribution, and a portion as child and/or spousal support.
On remand, a hearing was held on April 11, 2003, and the family court heard testimony from the distributor of the fund, and determined that “[Mr. Staton] began receiving a disability pension on March 12, 1996[,] and continues to receive said pension.” Further, the family court found that “on the date of being awarded the disability pension [Mr. Staton] was eligible for retirement with the City of Becldey and would have earned approximately sixty three percent (63%) of his pension and he became vested in such pension program in August of 1994.”
The family court based these determinations on the testimony of Gary Sutphin, the City Treasurer and Recorder for the City of Beekley, West Virginia, who testified as to the distribution of the police pension fund. Mr. Sutphin testified that there is no difference between the money collected by the City of Becldey Police Department for an employee’s retirement pension versus an employee’s disability pension. The money collected out of each check goes into a general fund that is available upon retirement. However, because Mr. Staton was disabled, he was able to receive a disability award and to access the pension fund prior to reaching the age of retirement.
Mr. Sutphin also explained that retirement benefits are calculated based on the average of the three highest years of salary, and that salary can include payment for unused sick time, vacation time, comp time, and overtime. He further espoused that disability benefits are determined based on sixty percent of the salary at the time of the disability, and do not include any buyback of unused benefits. The disability benefits are eligible for cost of living increases. It was further explained by Mr. Sutphin that retirement pensions are based on years of service and age; whereas, disability pensions are based on injury and illness.
The record reveals that Mr. Staton, at the time of his disabling injury, had worked long enough to meet the years of service component of his retirement. However, while he ■was vested in his retirement, he had not met the age requirement to begin drawing a full retirement. Because he was not yet able to draw his retirement, Mr. Staton exercised his right to draw disability benefits, which have no age prerequisite. Based on evidence taken from Gary R. Sutphin, City Treasurer and Recorder of Becldey, West Virginia, the family court found that “the disability pension was a replacement of lost wages and future lost wages on behalf of [Mr. Staton].” The family court directed that the disability pension be subjected to a marital distribution.
Mr. Staton appealed, and the circuit court found in its June 30, 2004, order that the pension was correctly classified as a disability pension by the family court; however, the circuit court further found that the family court erred in concluding that it was a marital asset subject to equitable distribution. The circuit court reasoned that “a pension that functions as compensation for a disability or injury is separate property, but a pension that functions as a retirement pension (deferred compensation) is marital property.... The evidence received by the Family Court with respect to the pension plan for policemen of the City of Beekley indicates, however, that the pension received by [Mr. Staton] is purely a disability pension.” Therefore, the circuit court determined that the portion of the family court’s order subjecting the disability pension to equitable distribution was in error.
Mrs. Staton appeals to this Court and argues that the pension was marital property. She avers that the disability pension was disbursed from funds that Mr. Staton paid into during the marriage, thereby creating an asset from the work of Mr. Staton. Therefore, Mrs. Staton contends that she is entitled to an equitable distribution of the funds. Both parties have requested their attorneys’ fees and costs.
II.
STANDARD OF REVIEW
The standard of review with which we approach this matter has been explained as follows:
In reviewing a final order entered by a circuit judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.
Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). See also Syl. pt. 2, Lucas v. Lucas, 215 W.Va. 1, 592 S.E.2d 646 (2003) (“In reviewing challenges to findings made by a family court judge that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.”). Mindful of these standards, we proceed to consider the parties’ arguments.
III.
DISCUSSION
The sole issue for resolution on appeal is whether disability pension benefits are separate or marital property. Mrs. Staton argues that the pension was a marital asset subject to equitable distribution. Mr. Staton argues that a disability award should be treated as a personal injury award and is, therefore, separate property. He expands his argument by alleging that, to the extent that the payment replaces past lost wages and compensates for past medical expenses, it is marital property. However, to the extent the payment compensates for future post-separation lost income, it is separate property.
In a divorce proceeding, subject to some limitations, all property is considered marital property. “Except as otherwise provided in this section, upon every judgment of annulment, divorce or separation, the court shall divide the marital property of the parties equally between the parties.” W. Va. Code § 48-7-101 (2001) (Repl.Vol.2004). Our case law also recognizes a preference for categorizing property as marital property. ‘“W. Va.Code, 48-2-1(e)(1) (1986) [W. Va. Code § 48-1-233 (2001) (Repl.Vol.2004) ], defining all property acquired during the marriage as marital property except for certain limited categories of property which are considered separate or nonmarital, expresses a marked preference for characterizing the property of the parties to a divorce action as marital property.’ Syl. pt. 3, Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990).” Syl. pt. 1, Koontz v. Koontz, 183 W.Va. 477, 396 S.E.2d 439 (1990) (per curiam).
Despite the preference of earmarking property as marital property, certain properties are characterized as separate property. “ ‘To the extent that its purpose is to compensate an individual for pain, suffering, disability, disfigurement, or other debilitation of the mind or body, a personal injury award constitutes the separate non-marital property of an injured spouse.’ Syl. Pt. 1, Hardy v. Hardy, 186 W.Va. 496, 413 S.E.2d 151 (1991).” Syl. pt. 2, Huber v. Huber, 200 W.Va. 446, 490 S.E.2d 48 (1997). Further, “[a] loss of consortium claim is the separate nonmarital property of the uninjured spouse.’ Syl. Pt. 4, Hardy v. Hardy, 186 W.Va. 496, 413 S.E.2d 151 (1991).” Syl. pt. 3, id. However, “[ejconomic losses, such as past wages and medical expenses, which diminish the marital estate are distributable as marital property when recovered in a personal injury award or settlement.” Syl. pt. 2, Hardy, 186 W.Va. 496, 413 S.E.2d 151.
This Court, in Conrad v. Conrad, 216 W.Va. 696, 612 S.E.2d 772 (2005) (per cu-riam), recently discussed the issue of long-term disability benefits and whether such proceeds are properly characterized as separate or marital property. In that case, this Court found that the long term disability benefits were marital property! This determination was based, in large part, on the fact that the parties had a specific conversation about the need to secure their future. Toward that end, the parties in Conrad decided jointly to apply for such benefits and paid the premiums on a monthly basis for thirty years. In Conrad, the receipt of long-term disability benefits began prior to the parties’ separation and was secured through premiums paid dui'ing the marriage from marital funds.
We reasoned that
[t]he majority of courts contemplating the proper classification of disability benefits have adopted an approach which focuses on the underlying purpose of the specific disability benefits at issue. Thus, benefits which actually compensate for disability are classified as separate property because they are personal to the spouse who receives them. However, where justified by the particular facts of the case, courts adopting this approach have separated the benefits into a retirement component and a true disability component, classifying the retirement component as marital property and the disability component as separate property.
Conrad, 216 W.Va. at 700, 612 S.E.2d at 776 (internal citations omitted). Therefore, we previously discussed and now specifically hold that benefits that actually compensate for disability are separate property because such monies are personal to the spouse who receives them. In some cases, benefits will need to be separated into a retirement component and a true disability component, classifying the retirement component' as marital property and the disability component as separate property. Further, im Conrad, we stated that there is no “hard and fast rule that all disability benefits are, or are not, marital property subject to distribution_ Rather, the ... determination [must be made] on a case-by-case basis according to the particular facts[,] giving careful consideration to the entire marital property and keeping an eye toward a just and equitable distribution.” Id., 216 W.Va. at 700-01, 612 S.E.2d at 776-77 (quoting Metz v. Metz, 61 P.3d 383 (Wyo.2003)).
In the ease presently pending before this Court, the parties did not decide to jointly apply for the disability benefits. Rather, seven percent of Mr. Staton’s pay was automatically withheld from his monthly income. The record shows that Mr. Staton suffered an injury and was disabled from his job. Because of his disability, he was able to access the police pension fund earlier than he could have for retirement purposes. Under these circumstances, we find that the family court and the circuit court were correct in their determination that Mr. Staton received a disability award. While this is money that would have been earmarked for retirement and was in essence deferred compensation, the fact that it was disbursed as disability money changed the manner in which it was calculated and distributed by the pension fund. However, the fact that Mr. Staton received a disability award from the police pension fund does not preclude him from subsequently receiving a retirement award from the same fund. ■
During oral argument before this Court, Mr. Staton’s attorney argued that his client was receiving a disability award and that it would convert to a retirement pension upon his client’s retirement. Mr. Staton’s counsel, also during oral argument before this Court, stated that the issue of the disbursement of the fund once it converted to retirement money was not addressed by the lower court, and provided no further explanation. It appears counsel for Mrs. Staton agrees with this proposition because, during oral argument before this Court, he stated that Mrs. Staton would receive the same percentage of disbursement once it converted from disability to retirement.
While it is clear that Mr. Staton is receiving a disability award, it is also clear, based on the arguments of counsel before this Court, that Mr. Staton’s disability benefit was capable of conversion to a retirement benefit at some future point in time. Earlier, we recognized the possibility that some cases require apportioning of retirement benefits versus disability benefits. Under this scenario, Mrs. Staton is entitled to an equitable distribution of any monies from the police pension fund that are truly for retirement purposes; however, she is not entitled to a distribution of disability monies. Therefore, the circuit court’s determination that the disability award constitutes only separate property is reversed, and remanded with instructions to take any evidence needed to determine at what point in time Mr. Staton was or is able to draw retirement benefits. The lower court should then proceed to determine the net value of the retirement benefits as of the date of the parties’ separation. Mrs. Staton is then entitled to an equitable share of those proceeds based on the number of years of the parties’ marriage.
In reaching this conclusion, we realize that the alimony award and the child support award may need to be adjusted. Mrs. Staton received a monthly alimony award of $550.00 beginning on November 1, 2001, and ending on October 31, 2008. She also was awarded $672.91 per month in child support until the minor children reach the age of majority or until they complete secondary school. In calculating the amount of these awards, the lower court included the amount of Mr. Sta-ton’s disability award in his monthly salary. On remand, the lower court is directed to determine the portion of the disability award that actually represents retirement money. Mrs. Staton is entitled to only an equitable distribution of the retirement money, and the retirement component should not be included in the disability portion that is properly included as part of Mr. Staton’s monthly salary in determining alimony and child support obligations.
IV.
CONCLUSION
In summary, we affirm the lower court’s determination that Mr. Staton was awarded a disability pension. We reverse the lower court’s order that found the entire award was disability, and remand this matter for a determination of the date on which Mr. Staton became or will become eligible to draw his retirement pension. The lower court should assess the value of the retirement benefits as of the date of separation, and Mrs. Staton is entitled to her equitable distribution of any portion of the disability award that is retirement money. Further, the lower court is instructed to re-evaluate the alimony and child support awards based on any reductions in Mr. Staton’s monthly salary when his retirement benefits are apportioned out of his monthly disability award. Further, we note that both parties have requested their attorneys’ fees and costs. This matter should also be addressed by the lower court, and it should exercise its discretion in making any awards.
Affirmed, in part; Reversed, in part; and Remanded, with instructions.
. The parties did not designate the video of the April 11, 2003, remand hearing as part of the record. However, we exercised our right to take judicial notice of the record and requested a video copy to review prior to making our decision. See, e.g., Syl. pt. 2, State ex rel. County Court of Cabell County v. Battle, 147 W.Va. 841, 131 S.E.2d 730 (1963) (“Matters not contained in the record of the case cannot be considered by this Court in the disposition of the case unless it is such matter as comes within the classification of Judicial notice.”).
2. W. Va.Code § 48-2-1 (e)(1) was recodified as W. Va.Code § 48-1-233 (2001) (Repl.Vol.2004), and defines marital property, in pertinent part, as follows:
(1) All property and earnings acquired by either spouse during a marriage, including every valuable right and interest, corporeal or incorporeal, tangible or intangible, real or personal, regardless of the form of ownership, whether legal or beneficial, whether individually held, held in trust by a third party, or whether held by the parties to the marriage in some form of co-ownership such as joint tenancy or tenancy in common, joint tenancy with the right of survivorship, or any other form of shared ownership recognized in other jurisdictions without this state, except that marital property does not include separate property as defined in section 1-238 [W. Va.Code § 48-1-238]; and
(2) The amount of any increase in value in the separate property of either of the parties to a marriage, which increase results from: (A) an expenditure of funds which are marital property, including an expenditure of such funds which reduces indebtedness against separate property, extinguishes liens, or otherwise increases the net value of separate property; or (B) work performed by either or both of the parties during the marriage.
. W. Va.Code § 48-1-237 (2001) (Repl.Vol.2004) states:
"Separate property” means:
(1) Property acquired by a person before marriage;
(2) Property acquired by a person during marriage in exchange for separate property which was acquired before the marriage;
(3) Property acquired by a person during marriage, but excluded from treatment as marital property by a valid agreement of the parties entered into before or during the marriage;
(4) Property acquired by a party during marriage by gift, bequest, devise, descent or distribution;
(5) Property acquired by a party during a marriage but after the separation of the parties and before ordering an annulment, divorce or separate maintenance; or
(6)Any increase in the value of separate property as defined in subdivision (1), (2), (3), (4) or (5) of this section which is due to inflation or to a change in 'market value resulting from conditions outside the control of the parties.
. In the present case, the final order was issued by the circuit court on June 30, 2004. Therefore, neither the family court nor the circuit court had the benefit of this Court's discussion contained within the Conrad case. However, the parties’ appellate briefs were filed with this Court in June and July 2005, after this Court's Conrad opinion. Neither party cited to or discussed this opinion.
. A review of the April 11, 2003, remand hearing before the family court was expected to reveal testimony from Gary Sutphin, the City Treasurer and Recorder, regarding the issue of the disability award converting to retirement benefits at a certain time. However, Mr. Sutphin was never questioned about this suggestion and never stated whether, in fact, the disability does convert to retirement, and if so, on what date.
. The record revealed that Mr. Staton was employed in another job where his disability was not a factor in his job performance. The date on which Mr. Staton actually retires is not relevant in the determination of retirement benefits subject to equitable distribution. Because Mr. Sta-ton had already met the years of service requirement of receiving retirement benefits, the only relevant question is on what date Mr. Staton would have also met the age component of the retirement pension and been able to draw his retirement. In this way, parties are precluded from working at other jobs indefinitely or electing disability benefits to thwart a spouse's entitlement to retirement benefits.
. See W. Va.Code § 48-7-104 (2001) (Repl.Vol. 2004) ("[T]he court shall ... [determine the net value of all marital property of the parties as of the date of the separation!.]'').
. The record before us does not reveal the reason for the specified termination date.
. W. Va.Code § 48-5-504(a) (2001) (Repl.Vol.2004) provides, in pertinent part, that "[t]he court may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action.” | [
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MAYNARD, Justice:
This judicial disciplinary proceeding arises from a complaint filed with the Judicial Investigation Commission (hereinafter, “the Commission”) alleging that Wayne County Magistrate William Tom Toler violated several Canons of the West Virginia Code of Judicial Conduct. Throughout the period of this disciplinary proceeding, Mr. Toler was suspended without pay as a result of allegations that he engaged in sexual misconduct while performing his duties as a Magistrate of Wayne County. The Commission found probable cause that Mr. Toler violated Canon 1(A), Canon 2(A), Canon 2(B), Canon 3(A), and Canon 3(B)(2) of the Code of Judicial Conduct. The matter was then forwarded to the Judicial Hearing Board (hereinafter, “the Board”). The Board concluded that Mr. To-ler violated Canon 1(A) and Canon 2(A) and recommended: (1) censuring Mr. Toler; (2) suspending him for one year without pay; (3) fining him $5,000.00; (4) requiring that Mr. Toler pay the costs of the proceedings before the Judicial Hearing Board; and (5) providing that the sanctions be imposed separately for each of the four violations committed by Mr. Toler. Having reviewed the recommendation, all matters of record, and the briefs and arguments of counsel, we find that Mr. Toler violated the Code of Judicial Conduct. Thus, for the reasons set forth below, the sanctions recommended by the Board are hereby adopted and imposed by this Court.
I.
FACTS
On July 8, 2004, the Acting Administrator of this Court filed a complaint against William Tom Toler, Magistrate of Wayne County, with the Judicial Investigation Commission alleging among other things that Mr. Toler had been charged with the commission of serious criminal offenses which would also constitute a violation of the Code of Judicial Conduct. Attached to the complaint was a letter from the Chief Judge of the Twenty-fourth Judicial Circuit stating that on July 7, 2004, a Wayne County grand jury indicted Mr. Toler on eight felony counts of sexual abuse, a count of demanding a bribe, and a misdemeanor count of indecent exposure.
On July 7, 2004, pursuant to Rule 2.14(d)(1) of the Rules of Judicial Disciplinary Procedure, the Chief Justice of this Court ordered the suspension of Mr. Toler without pay while the criminal matter against him was pending. On July 16, 2004, a separate order was entered by this Court stating that there was probable cause to believe that Mr. Toler engaged in, or was engaging in, a serious violation of the Code of Judicial Conduct. That order also provided that Mr. Toler was suspended without pay and prohibited from hearing any further civil or criminal cases or performing any other judicial functions pending the resolution of the matter. Following those orders, we remanded the complaint back to the Judicial Investigation Commission for the filing of formal charges, and held that such charges would be held in abeyance pending the outcome of the criminal charges against Mr. Toler.
On August 5, 2004, the initial formal charges against Mr. Toler were filed with the Judicial Hearing Board alleging violations of Canon 1(A), Canon 2(A), Canon 2(B), Canon 3(A), and Canon 3(B)(2) of the Code of Judicial Conduct. On July 14, 2005, the formal charges were amended to include two additional counts against Mr. Toler which had been filed in a superceding criminal indictment in the Circuit Court of Wayne County.
During the general election on November 4, 2004, while criminal charges were pending against him, Mr. Toler was re-elected to his post as magistrate. On February 24, 2005, Mr. Toler was acquitted by a jury of the criminal charges against him in the Circuit Court of Wayne County. Thereafter, on March 4, 2005, Mr. Toler filed a motion with this Court seeking reinstatement as magistrate with back pay. On June 1, 2005, this Court again held Mr. Toler’s motion for reinstatement in abeyance pending the full development of the record through the judicial investigation process. See In re Toler, 216 W.Va. 743, 613 S.E.2d 604 (2005).
On July 13, 2005, and July 14, 2005, the complaint against Mr. Toler was heard before the West Virginia Judicial Hearing Board. The Commission called four witnesses during its presentation of the ease who claimed they were victims of Mr. Toler’s inappropriate behavior. All four witnesses testified that prior to the criminal trial wherein Mr. Toler was accused of sexual assault and other charges, that none of the four individuals knew each other and none had discussed any of the allegations between and/or among themselves.
The first witness, a corrections officer in Wayne County, stated that on one occasion while she and Mr. Toler were alone in the magistrate’s office, that Mr. Toler began walking toward her and stood very close to her face, followed by him putting his hand and his finger on her breasts. He then asked her if he could “go downtown on her.” Mr. Toler further asked if she had anybody who could do that to her. She understood Mr. Toler’s suggestion as a solicitation for oral sex.
The Commission’s second witness testified that on the evening of March 2, 2001, that her husband beat her up and she left her house and went to her sister’s residence to stay for the night. The witness explained that she and her husband were going through a divorce at the time. She said the next morning she went to see Mi*. Toler in hopes of filing a domestic violence petition against her husband. While she was being-assisted by a magistrate assistant in filling out the domestic violence petition, Mr. Toler entered the office with her husband. He then awarded the marital home to her husband and gave her four hours to remove her belongings from the house. Minutes later, she and Mr. Toler were alone in his office. Mr. Toler told her that he could help her if she would help him. He added that he would help her get a lawyer and would see to it that her husband paid dearly. According to this witness, he then grabbed her blouse and pulled it up along with her bra exposing her breasts and put his hands on her breasts. Mr. Toler then removed one hand from her breast and grabbed her between the legs and told her he wanted to f:: *k her. This behavior continued until she was able to leave his office.
A third witness described one occasion when she and Mr. Toler were alone in his office because she was inquiring about a case she had filed against another individual in magistrate court during a previous month. Mr. Toler said he did not know anything about the case, but stated that he could cure her problems. When she said she did not understand what he meant, he explained that men only want one thing and began walking toward her. She said he grabbed her breasts with both hands and she angrily told him to get his hands off her. Mr. Toler then laughed and sat down on the corner of his desk. After Mr. Toler attempted this same behavior a second time she immediately left his office.
The fourth witness testified that she went to Mr. Toler to complete a domestic violence petition following a fight with her boyfriend which required her to seek medical attention. While she and Mr.' Toler were alone in his office, he asked her if she liked sex and if she was any good at performing oral sex. She completed the necessary paperwork for the domestic violence petition and proceeded to the elevator. Mr. Toler entered the elevator with her and kissed her on the mouth as soon as the doors closed. He then grabbed her hands and told her he wanted to show her something and he forced her hands between his legs. While he held her hands on his crotch he asked her if she liked his penis. She pulled away from Mr. Toler, exited the elevator, and left the building.
On August 22, 2005, the Judicial Hearing Board filed its Recommended Findings of Fact, Conclusions of Law, and Proposed Disposition with regard to the charges against Mr. Toler. The Board found that Mr. Toler had committed inappropriate sexual contact with four different women on four separate occasions while performing his official duties as a magistrate. It recommended that Mr. Toler be censured; that he be suspended for one year without pay; that he be fined $5,000.00; and that he pay the costs of the proceedings before the Judicial Hearing Board. In addition to those specific recommendations against Mr. Toler, the Board rec- ommendéd that the sanctions be imposed consecutively for each of the four separate violations of the Code of Judicial Conduct committed by Mr. Toler against the four female victims. The Board further stated that if it had lawful authority it would recommend the removal of Mr. Toler from the Office of Magistrate of Wayne County because he had violated the public’s trust and diminished the public’s confidence in the integrity of the judiciary.
II.
STANDARD OF REVIEW
In cases in which this Court is asked to discipline judicial officers, we independently review the record to determine if the findings of fact and recommendations of the Hearing Board are appropriate. As we stated in Syllabus Point 1 of In re Browning, 192 W.Va. 231, 452 S.E.2d 34 (1994), “ ‘[t]he Supreme Court of Appeals will make an independent evaluation of the record and recommendations of the Judicial [Hearing] Board in disciplinary proceedings.’ Syllabus Point 1. West Virginia Judicial Inquiry Commission v. Dostert, 165 W.Va. 233, 271 S.E.2d 427 (1980).” Included “within this independent evaluation is the right to accept or reject the disciplinary sanction recommended by the Board.” Matter of Crislip, 182 W.Va. 637, 638, 391 S.E.2d 84, 85 (1990).
Moreover, pursuant to Rule 4.5 of the West Virginia Rules of Judicial Disciplinary Procedure, the burden of proof to be applied in judicial disciplinary proceedings is that the allegations of the formal charge must be proved by clear and convincing evidence in order to recommend the imposition of discipline on any judge. See Syllabus Point 4, In re Pauley, 173 W.Va. 228, 314 S.E.2d 391 (1983) (“Under Rule 111(C)(2) (1983 Supp.) of the West Virginia Rules of Procedure for the Handling of Complaints Against Justices, Judges and Magistrates, the allegations of a complaint in a judicial disciplinary proceeding ‘must be proved by clear and convincing evidence.’ ”) Therefore, this Court must review both the record and the law in this case de novo and determine if clear and convincing evidence exists to prove the allegations in the complaint against Mr. Toler.
Additionally, in accordance with the directives found in Browning, we do note, however, that substantial consideration should be given to the Hearing Board’s findings of fact. “This consideration does not mean that this Court is foreclosed from making an independent assessment of the record, but it does mean that absent a showing of some mistake or arbitrary assessment, findings of fact are to be given substantial weight.” 192 W.Va. at 234, n. 4, 452 S.E.2d at 37, n. 4.
Applying the foregoing standards, we now review the charges against Mr. Toler and the Board’s recommended sanctions.
III.
DÍSCUSSION
The Judicial Investigation’s Counsel states that Mr. Toler violated Canon 1(A) and Canon 2(A) of the Code of Judicial Conduct and urges this Court to adopt the Judicial Hearing Board’s recommended sanctions and impose them upon Mr. Toler consecutively. Conversely, Mr. Toler argues that the recommended sanctions are not appropriate because there were only two verified complaints filed against him in this action and both are now barred by the statute of limitations. He further maintains that the other witnesses listed in the Judicial Investigation Commission’s Recommended Findings of Fact, Conclusions of Law, and Proposed Disposition, never actually filed complaints against him and therefore evidence from those witnesses should not be considered in the underlying proceedings by this Court.
With regard to Mr. Toler’s statute of limitations defense, the Judicial Counsel explains that the ease before this Court arises out of a complaint filed by the Acting Administrative Director of the Courts on July 8, 2004, one day after learning that Mr. Toler had been charged in the Circuit Court of Wayne County in a nine count indictment returned July 7, 2004. On August 5, 2004, formal charges were filed by the Judicial Investigation Commission against Mr. Toler, while on July 14, 2005, amended formal charges were filed by the Commission against Mr. Toler.
After carefully reviewing the facts of this case, it is clear to us that all of the actions taken by the Acting Administrative Director of the Courts in filing the original complaint and all actions taken by the Commission to file formal charges as directed by this Court were done well within the two-year limitations period. Rule 2.12 of our Rules of Judicial Disciplinary Procedure provides that, “[a]ny complaint filed more than two years after the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation of the Code of Judicial Conduct, shall be dismissed by the Commission.” The record in this case shows that the initial complaint was filed within one day of the indictment against Mr. Toler, while the amended formal charges were filed one year and seven days after that indictment. We find that there is no violation of Rule 2.12 with regard to the two-year statute of limitations on the filing of complaints.
Having found Mr. Toler’s argument with regard to the statute of limitations to be without merit, we now consider whether the evidence supports the Commission’s findings that Mr. Toler violated the Code of Judicial Conduct.
It is well settled that under the West Virginia Constitution, the Supreme Court of Appeals of West Virginia has the authority to censure or temporarily suspend a magistrate. W.Va. Const., Article VIII, § 8. Moreover, the West Virginia Rules of Judicial Disciplinary Procedure Rule 4.12 enumerates the sanctions that the Judicial Hearing Board may recommend and that this Court may impose for violations of the Code of Judicial Conduct. Possible sanctions include: (1) admonishment; (2) reprimand; (3) censure; (4) suspension without pay for up to 1 year; (5) a fine of up to $5,000.00; and (6) involuntary retirement in limited circumstances. Additionally, this Court can assess the cost of the disciplinary proceedings against a judge. Id.
“The purpose of judicial disciplinary proceedings is the preservation and enhancement of public confidence in the honor, integrity, dignity, and efficiency of the members of the judiciary and the system of justice.” Syllabus, In the Matter of Gorby, 176 W.Va. 16, 339 S.E.2d 702 (1985). Thus, “[u]nder the authority of article VIII, sections 3 and 8 of the West Virginia Constitution and Rule [4.12] of the [West Virginia Rules of Judicial Disciplinary Procedure], the Supreme Court of Appeals of West Virginia may suspend a judge, who has been indicted for or convicted of serious crimes, without pay, pending the final disposition of the criminal charges against the particular judge or until the underlying disciplinary proceeding-before the Judicial Investigation Commission has been completed.” Syllabus, In the Matter of Grubb, 187 W.Va. 228, 417 S.E.2d 919 (1992).
In this case, we have made an independent and exhaustive evaluation of the record by reviewing the formal charges filed against Mr. Toler; the amended formal charges; the Recommended Findings of Fact, Conclusions of Law and Proposed Disposition filed by the Judicial Hearing Board; the briefs filed by both parties in this case; the exhibits; transcripts; orders; motions; and all other remaining information contained in the record before this Court. After carefully reviewing such evidence, we have determined that there was clear and convine- ing evidence that Mr. Toler violated Canon 1(A) and Canon 2(A) of the Code of Judicial Conduct. As discussed above, four women testified about the sexual misconduct committed by Mr. Toler after they went to the Magistrate Court of Wayne County seeking assistance from that court. The testimony of those witnesses was direct, clear, and concise, and we find it to be truthful and credible.
Having determined that Mr. Toler’s actions did, in fact, violate the Code of Judicial Conduct, we now turn to the issue of whether or not he should receive the sanctions recommended by the Judicial Hearing Board.
The Judicial Hearing Board recommended the following sanctions be imposed by this Court against Mr. Toler:
1.) That Mr. Toler be censured for his conduct;
2.) That Mr. Toler be suspended for one year without pay;
3.) That Mr. Toler be fined $5,000.00;
4.) That Mr. Toler pay the costs of the proceedings before the Judicial Hearing Board;
5.) That the above sanctions be imposed for each of the four violations Mr. Toler committed against the four female victims and that the violations be consecutive for each of the two Canons violated.
After fully reviewing the circumstances of this case, we agree with, and therefore, adopt and impose the Board’s recommended actions with regard to sanction numbers 1, 2, 3, and 4. Given the clear and convincing evidence that Mr. Toler violated Canon 1(A) and Canon 2(A), we find that he should be censured for his actions; suspended for one year without pay; fined $5,000.00; and ordered to pay the costs of the proceedings before the Judicial Hearing Board.
We must now proceed to consider the Judicial Hearing Board’s recommended sanction number 5 which provides that the sanctions be imposed consecutively for each of the four violations of the Code of Judicial Conduct committed by Mr. Toler against the four female victims. This is a matter of first impression before this Court.
The Judicial Investigation Counsel points out that there were four separate acts of sexual misconduct committed against four different individuals at four different times. Moreover, all of the misconduct occurred while the women had gone to Mr. Toler to seek help from the magistrate court for various reasons. On each of the four separate occasions not only did Mr. Toler engage in improper sexual touching of the women or forcing them to touch him, he engaged in outrageous and inappropriate talk about sex or sexual conduct. The Judicial Counsel contends that the Judicial Hearing Board’s recommended sanctions must be imposed consecutively for such egregious conduct as that of Mr. Toler’s separate and distinct violations of the Code of Judicial Conduct.
In Syllabus Point 4 of Matter of Troisi 202 W.Va. 390, 504 S.E.2d 625 (1998), we explained that, “ ‘[p]ursuant to article VIII, section 8 of the West Virginia Constitution, this Court has the inherent and express authority to “prescribe, adopt, promulgate and amend rules prescribing a judicial code of ethics, and a code of regulations and standards of conduct and performances for justices, judges and magistrates, along with sanctions and penalties for any violation thereof!.]” ’ Syllabus Point 5, Committee On Legal Ethics v. Karl, 192 W.Va. 23, 449 S.E.2d 277 (1994).”
Moreover, as discussed earlier in this opinion, W.Va. Const., Art. VIII, § 8, in part, provides: “Under its inherent rule-making power ... the supreme court of appeals is authorized to censure or temporarily suspend any justice, judge or magistrate having the judicial power of the State, including one of its own members, for any violation of any such code of ethics, code of regulations and standards.” (Emphasis added). In addition, Rule 4.12 of the Rules of Judicial Disciplinary Procedure provides for the specific sanctions which may be imposed for a violation of the Code of Judicial Conduct. The relevant section of Rule 4.12 for purposes of the resolution of this issue is as follows: “The Judicial Hearing Board may recommend or the Supreme Court of Appeals may impose any one or more of the following sanctions for a violation of the Code of Judicial Conduct_” (Emphasis added).
It is clear to us that Rule 4.12 of the Rules of Disciplinary Procedure sets forth available sanctions for “a” violation of the Code of Judicial Conduct. It is equally apparent that W.Va. Const., Art. VIII, § 8 provides authorization for this Court to sanction a judicial officer for “any” violation of the Code. In this case, the Judicial Hearing Board recommended sanctions against Mi-. Toler for each of the four separate violations against each of the four victims in this case. Having found that Mi-. Toler did, in fact, violate the Code of Judicial Conduct on at least four different occasions, in four completely separate and distinct situations, and against four- separate individuals, it simply would make little or no sense to find in any other manner than to impose sanctions against Mr. Toler for each of the separate violations and to impose such sanctions consecutively. Given the nature and extent of the misconduct in this ease, to rule otherwise would diminish public confidence in the judiciary, impugn the judicial disciplinary process, and would have a chilling effect on the willingness of victims of domestic violence to seek help from the judicial system.
Thus, pursuant to Article VIII, Sections 3 and 8 of the West Virginia Constitution and Rule 4.12 of the Rules of Judicial Disciplinary Procedure, it is clearly within this Court’s power and discretion to impose multiple sanctions against any justice, judge or magistrate for separate and distinct violations of the Code of Judicial Conduct and to order that such sanctions be imposed consecutively. To hold a violator of the Code of Judicial Conduct who has committed only one offense to the same exact standard and subject that offender to the same sanctions as a violator who has committed four, five, or fifty separate acts of misconduct would suggest unreasonable disparate treatment and this Court must give proper consideration and weight to the severity of each of the independent acts of judicial misconduct when deciding appropriate sanctions.
These four victims went to the magistrate court to seek the court’s help during times of stress and vulnerability. Imagine going to a magistrate’s office to fill out a domestic violence petition after being beaten so badly that you required medical attention and then having the magistrate grab you and engage in revolting and inappropriate sexual contact. Such conduct cannot and will not be tolerated by this Court. On each of the four different occasions Mr. Toler engaged in improper touching of the women as well as grossly inappropriate talk about sex or sexual conduct. Moreover, on each occasion, Mr. Toler subjected each individual to grossly inappropriate sexual misconduct while he was performing his official duties as magistrate. Four separate complaints could have been presented to the Judicial Hearing Board and the Board could have recommended and this Court could have imposed sanctions in each of the four complaints. Thus, we see nothing that would preclude us from adopting, and therefore we hereby do adopt, the Judicial Hearing Board’s recommendation to impose the sanctions against Mr. Toler consecutively-
Accordingly, this Court finds that Mr. To-ler should be censured for his actions; that Mr. Toler be suspended for one year without pay; that Mr. Toler be fined $5,000.00; that Mr. Toler pay the costs of the proceedings before the Judicial Hearing Board; and that the aforementioned sanctions be imposed consecutively for each of the four violations Mr. Toler committed against the four female victims which resulted in four separate and distinct violations of the Code of Judicial Conduct. We further hold that Mr. Toler’s four-year suspension as Magistrate begins from July 14, 2005, the date of the amended formal charges filed by the Judicial Investigation Commission. We believe the recommended sanctions are fair and meet the objectives of preserving public confidence in the legal profession and the judicial process.
Finally, we note that Mr. Toler has a. motion pending for back pay as a result of the February 24, 2005, acquittal to the criminal charges filed against him in the Circuit Court of Wayne County. On July 7, 2004, this Court suspended Mr. Toler from his position as Magistrate of Wayne County, without pay, until the resolution of those criminal charges against him. Following his acquittal, Mr. Toler filed a motion for back pay and reinstatement as magistrate. On June 1, 2005, we held Mr. Toler’s motion for reinstatement with back pay in abeyance until the Judicial Investigation Commission determined whether to proceed with the charges against him. On June 8, 2005, the Judicial Hearing Board rejected Mr. Toler’s motion to dismiss the charges against him and the Board filed a motion to allow it to conduct a disposition hearing on this matter. Such hearing was conducted on July 13, 2005, and July 14, 2005, and on September 6, 2005, the Board filed its Recommended Findings of Fact, Conclusions of Law, and Proposed Disposition with this Court.
After thoroughly reviewing the facts of this matter, we have determined that Mr.' Toler is due back pay from July 7, 2004, until June 8, 2005, the date when the Judicial Investigation Commission decided to proceed with the investigation of the charges against him. Mr. Toler’s award of back pay, however, shall be offset by the imposition of the four separate $5,000.00 sanctions we have adopted and imposed against Mr. Toler as well as the expenses resulting from the costs of the proceedings before the Judicial Hearing Board. Such costs are to be determined by the Judicial Hearing Board and the Judicial Investigation Commission and certified to this Court within thirty days of this Opinion.
IV.
CONCLUSION
For the foregoing reasons, we adopt the recommended sanctions as set forth by the Board and order that Magistrate William Tom Toler be publicly censured; that he be suspended for one year without pay; that he be fined $5,000.00; that he pay the costs of the proceedings before the Judicial Hearing Board; and that each of the sanctions herein levied be imposed consecutively for each of the four violations Mr. Toler committed against the four female victims which resulted in four separate and distinct violations of the Code of Judicial Conduct. We further hereby order that the four consecutive $5,000.00 fines, as well as the costs assessed against Mr. Toler for the Judicial Hearing Board’s proceedings, shall be offset against any back pay owed to Mr. Toler and that all reasonable costs and expenses of the proceedings against him shall be determined by the Judicial Hearing Board and by the Judicial Investigation Commission and certified to this Court within thirty days of the issuance of this Opinion. Moreover, such costs shall include, but not be limited to, all costs for staff, attorneys, travel, etc., for investigating and prosecuting the matter as well as all costs necessary to conduct the hearing against Mr. Toler. Finally, we hold that the date of Mr. Toler’s suspension shall begin on July 14, 2005, and shall continue thereafter for a period of four years from and after that date.
Public Censure, Fine, One Year Suspension Without Pay, Costs, With Each of these Sanctions to be Imposed Consecutively.
. Rule 2.14(d)(1) of our Rules of Judicial Disciplinary Procedure provides that,
[i]f the judge has been convicted of a serious offense or has been indicted or otherwise charged with a serious offense, the Chief Justice may order that the judge not hear any further civil or criminal matters or perform other judicial functions while the matter is pending, with or without pay.
. Magistrates are "judges" within the meaning of the Code of Judicial Conduct and are subject to its Canons. Canon 6, Code of Judicial Conduct (1995).
. Canon 1(A) of the Code of Judicial Conduct provides:
An independent and honorable judiciary is ■ indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective.
.Canon 2(A) of the Code of Judicial Conduct provides: "A judge shall respect and comply with the law, shall avoid impropriety and the appearance of impropriety in all of the judge's activities, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
. We note that as a practical matter Mr. Toler's term in office ends December 31, 2008, while our four year suspension imposed upon him extends beyond that date by nearly six months. We decline to address at this time whether or not Mr. Toler's suspension would continue should he be re-elected in 2008. | [
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DAVIS, Justice:
This is an appeal from an order of the Circuit Court of Kanawha County rendered in favor of the parents of a home-schooled child with respect to their claim that their child should be permitted to participate in interseholastie athletics notwithstanding his home-schooled status. On appeal, the West Virginia State Board of Education, State Superintendent David Stewart, the Marion County Board of Education, Marion County Superintendent Thomas Long, and the West Virginia Secondary School Activity Commission (hereinafter collectively referred to as “School Officials”) argue that the circuit court erred in concluding: (1) that the School Officials had breached a statutory duty by failing to make interseholastie athletics available to home-schooled children; (2) that the legislative rule prohibiting home-schooled children from participating in interseholastie athletics violates equal protection; and (3) that the School Officials breached their duty to make reasonable rules and regulations with respect to the participation of home-schooled children in interseholastie athletics. We agree with the School Officials and reverse the order of the circuit court.
I.
FACTUAL AND PROCEDURAL HISTORY
Daniel and Christy Jones (hereinafter “the Joneses”), plaintiffs below and appellees herein, are residents of Marion County, West Virginia. The Joneses have elected to home ■ school their children, including their son Aaron. In 2002, when Aaron was approximately eleven years old, he indicated to his parents his desire to participate on the Mannington Middle School wrestling team. Had Aaron been a student in the public school system, he would have been a sixth grade student at Mannington Middle School. The Joneses investigated the possibility of Aaron joining the Mannington Middle School wrestling team and were advised that they needed approval from the West Virginia Secondary School Activities Commission (hereinafter “the WVSSAC”). Upon contacting the WVSSAC, the Joneses were advised that, pursuant to W. Va.C.S.R. § 127-2-3.1, participation in interseholastic athletic activities was limited to students who were enrolled full-time in a WWSSAC participating school. Consequently, since Aaron was not enrolled as a full-time student at Mannington Middle School, he would not be permitted to participate on the wrestling team. The Joneses received similar responses from Dave Stewart, State Superintendent of Schools, and from the Marion County Board of Education.
Thereafter, on or about December 12, 2002, the Joneses filed a complaint against the School Officials seeking, inter alia, declaratory, equitable and injunctive relief. Along with the complaint, the Joneses filed a motion seeking a temporary restraining order and preliminary injunction. Following a preliminary hearing on December 13, 2002, the circuit court entered a preliminary injunction permitting Aaron to immediately participate on the Mannington Middle School wrestling team. At the same time, the circuit court established a briefing schedule and set the matter for a final hearing on February 13, 2003. The final hearing was held and, on September 23, 2003, the circuit court entered its “DECISION AND FINAL ORDER” ruling in favor of the Joneses and declaring that:
1) the defendants have breached their statutory duty under West Virginia Code section 18-8-l(e)(3) by failing to make an available educational resource available to Aaron, 2) the defendants have violated Aaron’s right to equal protection, as guaranteed by Article III, section 10 of the West Virginia Constitution, because the blanket prohibition on home schooled students participating in interseholastic athletics fails the applicable rational basis test, and 3) the defendants have breached the duty to promulgate reasonable rules and regulations by implementing a total ban rather than crafting fair rules tailored to any legitimate concerns that may flow from allowing home schooled students, who are otherwise qualified, to participate on sports teams fielded by the public school they would be attending if they were not home schooled.
In addition, the circuit court granted a writ of prohibition directed to the School Officials to “prevent them from exceeding their statutory and constitutional authority by excluding otherwise qualified home schooled students from participating on sports teams fielded by public schools.” Finally, the circuit court issued a writ of mandamus
a. to compel the defendants to comply with their statutory duty to afford the plaintiffs access to available educational resources, which includes participation in interseholastic athletics;
b. to compel the defendants to afford the plaintiffs and their son the right to equal protection, as guaranteed by the West Virginia Constitution, which means that the defendants shall not give effect to the enrollment rule that excludes home schooled students from interseholastic athletics;
c. to compel the defendants to comply with their statutory duty to promulgate reasonable rules, which shall not include an enrollment rule that results in the blanket prohibition against home schooled students participating in interscholastic athletics; and
d. to compel the defendants to allow the plaintiffs’ son, Aaron, to try out for and, if successful, to compete on any sports team that is being fielded by the public school Aaron would otherwise attend were he not being home schooled.
It is from this order of the circuit court that the School Officials now appeal.
II.
STANDARD OF REVIEW
In this appeal we are asked to review a final order rendered by a circuit court. We apply a three-part standard of review to such an order:
In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of-review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Syl. pt. 2, Walker v. West Virginia Ethics Comm’n, 201 W.Va. 108, 492 S.E.2d 167 (1997). We are also asked to review the circuit court’s award of extraordinary relief in the form of writs of mandamus and prohibition. These rulings are reviewed de novo. “The standard of appellate review of a circuit court’s order granting relief through the extraordinary writ of mandamus is de novo.” Syl. pt. 1, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995). Accord Syl. pt. 1, Rollyson v. Jordan, 205 W.Va. 368, 518 S.E.2d 372 (1999). “The standard of appellate review of a circuit court’s order granting relief through the extraordinary writ of prohibition is de novo.” Syl. pt. 1, Martin v. West Virginia Div. of Labor Contractor Licensing Bd., 199 W.Va. 613, 486 S.E.2d 782 (1997). With regard for these standards, we proceed to address the issues herein raised.
III.
DISCUSSION
The circuit court expressed three grounds for finding that the School Officials had improperly denied the Joneses’ request that them home-schooled child be allowed to participate in interscholastic athletics: (1) that the School officials had breached a statutory duty; (2) that they had violated the home-schooled student’s right to equal protection; and (3) that they had breached the duty to promulgate reasonable rules and regulations. We addresses each of these issues in turn.
A. Statutory Duty
The circuit court concluded that the School Officials breached a statutory duty by failing to make interscholastic athletics available to home-schooled children. To determine if the circuit court was correct in this conclusion, we first look to the language of the statute purportedly violated by the School Officials, W. Va.Code § 18-8-1(c)(3) (2003) (Repl. Vol. 2003), which states:
This subdivision applies to both home instruction exemptions set forth in subdivisions (1) and (2) of this subsection. The county superintendent or a designee shall offer stick assistance, including textbooks, other teaching materials and available resources, as may assist the person or persons providing home instruction subject to their availability. Any child receiving home instruction may upon approval of the county board exercise the option to attend any class offered by the county board as the person or persons providing home instruction may consider appropriate subject to normal registration and attendance requirements. .
(Emphasis added).
' With respect to the portion of this provision that requires a county superintendent to “offer such assistance, including textbooks, other teaching materials and available resources, as may assist the person or persons providing home instruction subject to their availability,” the circuit court first reasoned that
[tjhere is no dispute that participation in interscholastic athletics offers an individual student opportunities to learn important life lessons and expands the educational experience beyond the four walls of the traditional classroom. Therefore, it is arguable that the coaching and facilities that are available to a student athlete could be considered an available educational resource within the meaning of the aforementioned statute.
The court then concluded that “[t]he defendants have breached their statutory duty under the above-quoted portion of West Virginia Code section 18 — 8—1(c)(3) by failing to make interscholastic sports available to Aaron.” This conclusion by the circuit court simply is not supported by the language contained in this statute.
Initially, we observe that “[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975). However, “[w]hen a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.” Syllabus point 5, State v. General Daniel Morgan Post No. 518, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959). We find no ambiguity in the provision relied upon by the circuit court. “ ‘ “Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.” Syl. Pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970).’ Syllabus Point 4, Syncor International Corp. v. Palmer, 208 W.Va. 658, 542 S.E.2d 479 (2001).” Syl. pt. 4, Charter Communications VI, PLLC v. Community Antenna Serv., Inc., 211 W.Va. 71, 561 S.E.2d 793 (2002).
In plain language, this provision refers to providing resources “as may assist the person or persons providing home instruction.” W. Va.Code § 18-8-l(c)(3). Clearly, this statute pertains to providing educational resources to the person or persons providing instruction, who, in this case, was Mrs. Jones. Because the statute does not address providing resources, such as interscholastic sports, to a home-schooled student, we are not at liberty to judicially add such a provision.
“ ‘[I]t is not for [courts] arbitrarily to read into [a statute] that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.’ Banker v. Banker, 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996) (citing Bullman v. D & R Lumber Company, 195 W.Va. 129, 464 S.E.2d 771 (1995); Donley v. Bracken, 192 W.Va. 383, 452 S.E.2d 699 (1994)). ([Emphasis added). See State ex rel. Frazier v. Meadows, 193 W.Va. 20, 24, 454 S.E.2d 65, 69 (1994). Moreover, ‘[a] statute, or an administrative rule, may not, under the guise of “interpretation,” be modified, revised, amended or rewritten.’ Syl. pt. 1, Consumer Advocate Division v. Public Service Commission, 182 W.Va. 152, 386 S.E.2d 650 (1989). See Sowa v. Huffman, 191 W.Va. 105, 111, 443 S.E.2d 262, 268 (1994).” Williamson v. Greene, 200 W.Va. 421, 426-27, 490 S.E.2d 23, 28-29 (1997).
Longwell v. Board of Educ. of County of Marshall, 213 W.Va. 486, 491, 583 S.E.2d 109, 114 (2003). Accord State ex rel. Blankenship v. Richardson, 196 W.Va. 726, 735, 474 S.E.2d 906, 915 (1996) (“ ‘[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.’ ” (quoting Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 692, 408 S.E.2d 634, 642 (1991))). Therefore, we find the circuit court erred in concluding that the School Officials breached their duty under W. Va.Code § 18-8-1(c)(3).
B. Equal Protection
The circuit court concluded that, by excluding home-schooled children from participation in interscholastic athletics, the School Officials have violated the equal protection rights of home-schooled children. See West Virginia Const, art III, § 10. “Equal protection of the law is implicated when a classification treats similarly situated persons in a disadvantageous manner. The claimed discrimination must be a product of state action as distinguished from a purely private activity.” Syl. pt. 2, Israel by Israel v. West Virginia Secondary Sch. Activities Comm’n, 182 W.Va. 454, 388 S.E.2d 480 (1989). Here, there is no question that the equal protection claim involves state action, so we will proceed with our analysis.
The complained of classification established by the School Officials treats home-schooled children differently from children who are enrolled in the public schools with respect to their eligibility to participate in interscholastic athletics. This Court has previously recognized that Bailey v. Truby, 174 W.Va. 8, 23, 321 S.E.2d 302, 318 (1984). In other words, a “classification[] not affecting a fundamental right or some suspect or quasi-suspect criterion ... will be sustained so long as it ‘is rationally related .to a legitimate state interest.’ ” Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W.Va. 573, 594, 466 S.E.2d 424, 445 (1995) (quoting City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320 (1985) (additional citations omitted)). See also Janasiewicz v. Board of Educ. of Kanawha County, 171 W.Va. 423, 426, 299 S.E.2d 34, 37 (1982) (“Equal protection requires that similarly situated classes be treated alike.... When there is a rational basis to distinguish between groups of individuals, not based on invidious discrimination, then different treatment does not offend equal protection provisions.” (internal citations omitted)).
[participation in nonacademic extracurricular activities, including interscholastic athletics, does not rise to the level of a fundamental or constitutional right under article XII, § 1 of the West Virginia Constitution. Therefore, its regulation need only be rationally related to a legitimate purpose.
In a case similar to the one at bar, which addressed the issue of whether the state could refuse to provide school bus transportation to students attending parochial schools, this Court explained that
[p]ublic and parochial school children may rationally be treated differently because they are not similarly situated. All children under sixteen years old are required to attend approved schools; but a parochial school student has chosen to reject a free public school education in favor of a privately paid education emphasizing religious beliefs and principles.
Janasiewicz v. Board of Educ. of Kanawha County, 171 W.Va. 423, 426, 299 S.E.2d 34, 37-38. The Janasiewicz Court went on to hold:
The Equal Protection Clause of the Fourteenth Amendment is not violated by treating public and nonpublic school children differently in allocations of state aid and educationally-related resources. We overrule Syllabus Point 2 of State ex rel. Hughes v. Board of Education, 154 W.Va. 107, 174 S.E.2d 711 (1970).
Syl. pt. 2, Id. Having already determined that treating public and nonpublic school children differently in allocations of state aid and educationally-related resources does not offend equal protection, we have no difficulty concluding that treating public and nonpublic school children differently with respect to participation in interscholastic sports does not violate equal protection.
As with the parochial students in Jana-siewicz, the parents of home-schooled children have voluntarily chosen not to participate in the free public school system in order to educate their children at home. In making this choice, these parents have also chosen to forego the privileges incidental to a public education, one of which is the opportunity to qualify for participation in interscho-lastie athletics.
Moreover, the School Officials have asserted numerous grounds supporting a rational basis for excluding home-schooled children from participation in interscholastie athletics. Two of these grounds we find particularly persuasive: (1) promoting academics over athletics, and (2) protecting the economic interests of the county school systems.
With respect to promoting academies over athletics, the School Officials note that the WVSSAC has, in keeping with the policies and rules of the West Virginia Board of Education, imposed grade requirements which must be met for a student to participate in interscholastic sports. In particular, one rule of the WVSSAC requires that “[i]n accordance with West Virginia Board of Education § 126-26-1 et seq., ‘Participation in Extracurricular Activities’ (Policy 2436.10, C-Rule), students must maintain a 2.0 average to participate in interscholastic athletics.” W. Va.C.S.R. § 127-2-6.9 (footnote added). Moreover, “[a] student is required to do passing work in the equivalent of at least 20 periods (four subjects with full credit toward graduation) per week. Failure to earn passing marks in four full credit subjects during a semester shall render a student ineligible for the following semester.” W. Va.C.S.R. § 127-2-6.1.
Children who are home schooled may be taught a completely different curriculum than children in the public school system. More importantly, though, is the fact that regardless of the curriculum, home-schooled children are graded differently from those in the public school system. Instead of receiving semester grades, home-schooled children are evaluated only once yearly through either a standardized test, examination of the student’s work portfolio, or by completing “an alternative academic assessment of proficiency that is mutually agreed upon by the parent or legal guardian and the county superintendent.” W. Va.Code § 18-8-1 (c)(2)(D)(I-iv) (2003) (Repl. Vol. 2003). The School Officials maintain that attempting to convert the progress assessments of home-schooled children into a numerical formula in order to equate it to the 2.0 average that is required for participation in interscholastic athletics would create an undue burden on the county school systems.
Furthermore, the different grading standards and methods used for home-schooled children would significantly impede the School Official’s ability to maintain the academic standards that have been established for participation in interscholastic athletics. For example, the School Officials point out that allowing home-schooled children to participate in interscholastic athletics would create a risk of mischief on the part of some parents of athletically skilled, yet academically struggling, children. Specifically, a parent could withdraw an academically struggling child from the public school system in order to maintain his or her athletic-eligibility, thereby thwarting the efforts of the public school system to promote academics over athletics.
Finally, the School Officials maintain that the public schools would suffer financially from the participation of home-schooled children in interscholastic sports. They explain that county school boards receive funding for their athletic programs based upon a formula that takes into consideration their average daily attendance and enrollment numbers. See W. Va.Code § 18-9A-9(1) (1994) (Repl. Vol. 2003). Home-schooled children do not contribute to the average daily attendance or enrollment numbers of the public schools, thus no funds are expended to the county boards in consideration of those children. To then require counties to spend these limited funds to support the athletic participation of home-schooled students would create a financial burden.
Based upon the foregoing discussion, we now hold that prohibiting home-schooled children from participating in interscholastic athletics does not violate equal protection under art. Ill, § 10 of the West Virginia Constitution.
C. Duty to Promulgate Reasonable Rules and Regulations
The circuit court concluded that
the defendants have breached the duty to promulgate reasonable rules and regulations by implementing a total ban rather than crafting fair rules tailored to any legitimate concerns that may flow from allowing home schooled students, who are otherwise qualified, to participate on sports teams fielded by the public school they would be attending if they were not home schooled.
We disagree.
With respect to legislative rules, this Court has explained that
“[i]t is fundamental law that the Legislature may delegate to an administrative agency the power to make rules and regulations to implement the statute under which the agency functions. In exercising that power, however, an administrative agency may not issue a regulation which is inconsistent with, or which alters or limits its statutory authority.” Syllabus Point 3, Rowe v. Department of Corrections, 170 W.Va. 230, 292 S.E.2d 650 (1982).
Syl. pt. 3, Ney v. State Workmen’s Comp. Comm’r, 171 W.Va. 13, 297 S.E.2d 212 (1982). See also Anderson & Anderson Contractors, Inc. v. Latimer, 162 W.Va. 803, 807-08, 257 S.E.2d 878, 881 (1979) (“Although an agency may have power to promulgate rules and regulations, the rules and regulations must be reasonable and conform to the laws enacted by the Legislature.” (citation omitted)).
With respect to our analysis of whether a specific legislative rule comports with its statutory authority, this Court has established that
[j Judicial review of an agency’s legislative rule and the construction of a statute that it administers involves two separate but interrelated questions, only the second of which furnishes an occasion for deference. In deciding whether an administrative agency’s position should be sustained, a reviewing court applies the standards set out by the United States Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The court first must ask whether the Legislature has directly spoken to the precise question at issue. If the intention of the Legislature is clear, that is the end of the matter, and the agency’s position only can be upheld if it conforms to the Legislature’s intent. No deference is due the agency’s inteipretation at this stage.
Syl. pt. 3, Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).
The legislative rule at issue in this case directs that,
[t]o be eligible for participation in interscholastic athletics, a student must be enrolled full-time in a member school as described in Rule 127-2-6 on or before the eleventh instructional day of the school year. Enrollment must be continuous after the student has officially enrolled in the school.
W. Va.C.S.R. § 127-2-3.1 (footnote added). There is no accompanying statutory provi sion that expressly excludes home-schooled children from participation in interseholastic athletics. Accordingly, we must presume that the Legislature entrusted this decision to the WVSSAC. See Appalachian Power Co., 195 W.Va. 573, 589, 466 S.E.2d 424, 440 (“ ‘[i]n the absence of ... [legislative] direction as to what elements are to be considered in promulgating ... [a] rule, the presumption is that ... [the Legislature] is entrusting the decision as to what to consider to the hands of the agency in deference to the agency expertise.’”) (alteration in original) (quoting Kennedy v. Block, 606 F.Supp. 1397, 1403 (W.D.Va.1985), vacated on other grounds by 784 F.2d 1220 (4th Cir.1986)).
This brings us to the second part of the analysis:
If legislative intent is not clear, a reviewing court may not simply impose its own construction of the statute in reviewing a legislative rule. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. A valid legislative rule is entitled to substantial deference by the reviewing court. As a properly promulgated legislative rule, the rule can be ignored only if the agency has exceeded its constitutional or statutory authority or is arbitrary or capricious. W. Va.Code, 29A-4-2 (1982).
Syl. pt. 4, Appalachian Power. Likewise, we have long held that “ ‘[interpretations of statutes by bodies charged with their administration are given great weight unless clearly erroneous.’ Syl. Pt. 4, Security Nat’l Bank & Trust Co. v. First W. Va. Bancorp.[ Inc.], 166 W.Va. 775, 277 S.E.2d 613 (1981).” Syl. pt. 3, Corliss v. Jefferson County Bd. of Zoning Appeals, 214 W.Va. 535, 591 S.E.2d 93 (2003). See also Board of Educ. of County of Taylor v. Board of Educ. of County of Marion, 213 W.Va. 182, 188, 578 S.E.2d 376, 382 (2003) (same); Syl. pt. 3, Smith v. Board of Educ. of Logan County, 176 W.Va. 65, 341 S.E.2d 685 (1985) (same).
We will first consider whether the WVSSAC has exceeded its constitutional or statutory authority. The Legislature established the WVSSAC and gave the county boards of education the option to “delegate ... control, supervision and regulation of interscholastic athletic events and band activities to the [WVSSAC] ....” W. Va.Code § 18-2-25 (1967) (Repl. Vol. 2003). This Court has previously examined this statutory provision, and found it to be Constitutional:
Notwithstanding the transfer of supervisory authority over interscholastic athletic events and other extracurricular activities to county boards of education and the West Virginia Secondary School Activities Commission, West Virginia Code § 18-2-25 (1994) is constitutional, since it is clear that the Legislature, in enacting said statute, only intended to permit county boards of education and the West Virginia Secondary School Activities Commission to supervise and to regulate extracurricular activities subject to the West Virginia State Board of Education’s duty under Article XII, § 2 of the West Virginia Constitution to generally supervise the schools in this state.
Syl. pt. 6, State ex rel. Lambert by Lambert v. West Virginia State Bd. of Educ., 191 W.Va. 700, 447 S.E.2d 901 (1994). Having previously concluded that the WVSSAC’s control of interscholastic athletics does not exceed constitutional authority, we must now decide whether its promulgation of governing rules has exceeded its statutory authority.
Within W. Va.Code § 18-2-25, the statute creating the WVSSAC, the Legislature has directed that the WVSSAC be “empowered to exercise the control, supervision and regulation of interscholastic athletic events and band activities of secondary schools, delegated to it pursuant to this sec tion.” While this statement does not expressly grant to the WVSSAC the power to. promulgate rules and regulations, a complete reading of the statute plainly indicates that this was the Legislatures intent. See Syl. pt. 2, Rose ex rel. Rose v. St. Paul Fire & Marine Ins. Co., 215 W.Va. 250, 599 S.E.2d 673 (2004) (“ ‘The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.’ Syllabus Point 1, Smith v. State Workmen’s Compensation Com’r, 159 W.Va. 108, 219 S.E.2d 361 (1975).”); State ex rel. Morgan v. Trent, 195 W.Va. 257, 263, 465 S.E.2d 257, 263 (1995) (“ ‘[I]n ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation.’ Syl. Pt. 2, Smith v. State Workmen’s Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).” (additional quotations and citations omitted)). Indeed, the very next sentence in this statute plainly reflects the legislatures intention that the WVSSAC have the authority to promulgate rules and regulations by presupposing the existence of such rules: “The rules and regulations of the West Virginia secondary school activities commission shall contain a provision for a proper review procedure and review board and be promulgated in accordance with the provisions of chapter twenty-nine-a [§§ 29A-1-1 et seq.] of this Code_” W. Va.Code § 18-2-25. This statute goes further to mandate that the WVSSAC
shall promulgate reasonable rules and regulations providing for the control, supervision and regulation of the interscholastic athletic events and other extracurricular activities of such private and parochial secondary schools as elect to delegate to such commission such control, supervision and regulation, upon the same terms and conditions, subject to the same regulations and requirements and upon the payment of the same fees and charges as those provided for public secondary schools.
Id. (emphasis added). Thus, the Legislature has expressly directed the WVSSAC promulgate reasonable rules and regulations with respect to private and parochial secondary schools, and has mandated that those rules and regulations correspond with rules provided for public secondary schools. This demonstrates without a doubt that the Legislature intended the WVSSAC to promulgate rules to carry out its control, supervision and regulation of interscholastic athletic events with respect to the public schools in those counties electing to delegate such control to the WVSSAC.
Additionally, we note that the Legislature empowered the WVSSAC “to exercise ... control, supervision and regulation of interscholastic athletic events.” W. Va.Code § 18-2-25. Primary to exercising such authority over “athletic events” is determining who is eligible to participate in such events, as the WVSSAC has done in the legislative rule at issue in this case. Therefore, we find the WVSSAC has not exceeded its statutory authority in promulgating a rule pertaining to the eligibility requirements for participating in interscholastic athletics.
The final portion of our analysis under Syllabus point 4 of Appalachian Power is to determine whether the legislative rule in question is arbitrary or capricious. Again, the specific legislative rule at issue requires that
[t]o be eligible for participation in interscholastic athletics, a student must be enrolled full-time in a member school as described in Rule 127-2-6 on or before the eleventh instructional day of the school year. Enrollment must be continuous after the student has officially enrolled in the school.
W. Va.C.S.R. § 127-2-3.1. Our discussion under the “Equal Protection” portion of this opinion, Section III.B., supra, demonstrates that this rule is not arbitrary or capricious as it is rationally related to the legitimate state purposes of promoting academics over athletics and protecting the economic interests of the county school systems. Therefore, based upon the full discussion set out above, we now hold that the West Virginia Secondary Schools Activities Commission did not violate its constitutional or statutory authority in promulgating the legislative rule found at W. Va.C.S.R. § 127-2-3.1, which requires that, to be eligible for participation in interscholastic athletics, a student must be enrolled full-time in a school participating in the West Virginia Secondary Schools Activities Commission.
IV.
CONCLUSION
For the reasons stated in the body of this opinion, we reverse the September 23, 2003, order of the Circuit Court of Kanawha County, including the writs of mandamus and prohibition therein granted.
Reversed.
Justices STARCHER and BENJAMIN dissent and file dissenting opinions.
. W.Va.C.S.R. § 127-2-3.1 states:
To be eligible for participation in interscholastic athletics, a student must be enrolled full-time in a member school as described in Rule 127-2-6 on or before the eleventh instructional day of the school year. Enrollment must be continuous after the student has officially enrolled in the school.
The rule referred to in this section, found at W.Va.C.S.R. § 127-2-6, describes the criteria for being enrolled "full-time.”
. We pause to acknowledge the appearance of various amici curiae in this matter: The West Virginia Federation of Teachers, AFL-CIO; The West Virginia School Boards Association; and The West Virginia Education Association. We appreciate the contributions of these amici, and consider their positions in connection with the arguments of the parties with whom they are aligned.
. An earlier version of this code section was actually in place at the time the Joneses filed their law suit, but it does not differ substantively from the current version:
The superintendent or a designee shall offer such assistance, including textbooks, other teaching materials and available resources, as may assist the person or persons providing home instruction subject to their availability. Any child receiving home instruction may, upon approval of the county board of education, exercise the option to attend any class offered by the county board of education as the person or persons providing home instruction may deem appropriate subject to normal registration and attendance requirements.
W.Va.Code § 18-8-1(c) (2001) (Supp. 2001).
. To the extent that parents desire their home-schooled child to experience the many benefits of team or individual athletics, there typically are ample opportunities for such participation outside the realm of interscholastic athletics.
. W. Va.C.S.R. § 126-26-1 et seq. contains the State Board of Education legislative rules for participation in extracurricular activities and states, in relevant part, that "[i]n order to participate in the extracurricular activities to which this policy applies, a student must: 3.1 Maintain a 2.0 average.... AND 3.2 Meet State and local attendance requirements." W. Va.C.S.R. § 126— 26-3.
6. W. Va.C.S.R. § 127-2-6 describes the criteria for being enrolled "full-time.”
. The rules do provide for certain exceptions, but those exceptions do not apply to home-schooled children. See, e.g., W. Va.C.S.R. § 127-2-3.2 ("Students can participate only in schools in which they are enrolled; however, an exception may be granted by the Board of Directors as follows: 3.2.1 if a feeder school does not afford students the opportunity to participate and they are otherwise eligible.”); W. Va.C.S.R. § 127-2-3.5 ("[s]ixth grade students may be eligible to participate in the interscholastic sport teams except football in the middle school in which they are enrolled.”).
. The Marion County Board of Education has elected to delegate its interscholastic athletic program to the WVSSAC.
9. W. Va.C.S.R. § 127-2-6 describes the criteria for being enrolled "full-time.” | [
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PER CURIAM:
These cases are before this Court upon a number of pro se petitions from inmates sentenced to terms of confinement in facilities of the West Virginia Division of Corrections. The inmate petitioners, Alen Stull, et al., are currently lodged in regional and county jails in West Virginia while awaiting transfers to the Division. Substantial delays in the transfers have occurred because of alleged overcrowding of the Division’s facilities. The petitioners assert that their continued incarceration in regional and county jails is unlawful and has resulted in a denial of the rehabilitative programs to which they are entitled. Accordingly, the petitioners seek prompt transfer to Division of Corrections facilities or release from confinement.
On October 1, 1997, this Court issued a rule against the Commissioner of the Division of Corrections directing him to show cause why relief in mandamus should not be awarded to the petitioners. Subsequently, this Court ordered that the Executive Director of the Regional Jail and Correctional Facility Authority be joined as a respondent. Moreover, a Special Master was appointed to assist this Court in the review of this matter, and the Kanawha County Public Defender was appointed to represent the petitioners. See, W.Va.Code, 29-21-1 [1989], et seq.
This Court has before it the pro se petitions, all matters of record, including the report of the Special Master, and the briefs and argument of counsel. For the reasons stated below, and particularly in view of the decisions of this Court in State ex rel. Dodrill v. Scott, 177 W.Va. 452, 352 S.E.2d 741 (1986), and State ex rel. Smith v. Skaff 187 W.Va. 651, 420 S.E.2d 922 (1992), this Court is of the opinion that relief in mandamus is warranted and that the petitioners, and others similarly situated, are entitled to prompt transfer to Division of Corrections facilities. Specifically, we direct the Commissioner of the Division of Corrections to submit to this Court within 60 days a full and complete plan for the immediate transfer to Division facilities of at least 50% of all inmates currently lodged in regional and county jails who are awaiting such transfer. In addition, we direct the Commissioner of the Division of Corrections to submit to this Court, as soon as practicable, a full and complete long-range plan for the transfer of such inmates to Division of Corrections facilities. Both plans shall be reviewed by the Special Master who shall promptly submit separate reports, as to the adequacy of each plan, tó this Court.
I.
As indicated above, the petitioners are inmates sentenced to Division of Corrections facilities who have, nevertheless, been lodged for extended periods of time in regional and county jails. In fact, the record indicates that the petitioners have been awaiting transfer to Division facilities for periods between six months and two years from the date of sentencing. The record further indicates that there are currently in excess of 700 inmates who are similarly situated. The regional and county jails are reimbursed by the Division of Corrections for housing these inmates. The Division maintains that the problem is due to the overcrowding of Division facilities such as the Mount Olive Correctional Complex, a penitentiary for maximum-medium security inmates, the Huttonsville Correctional Center, a penitentiary for medium security inmates, and the Anthony Center, a facility for youthful offenders. W.Va.Code, 25-1-3 [1994], According to the Division, the prison popula tion in West Virginia is expanding at an annual rate of just over 9%.
Following the issuance of the rule to show cause in October 1997, the Commissioner of the Division of Corrections filed a response in which the Division’s policy for transferring inmates from regional and county jails to Division of Corrections facilities was set forth. That policy, known as Policy Directive 664.01 (effective January 16, 1997), indicated that transfers to Division facilities were made upon the basis of bed availability and that parole eligibility dates, medical needs and disciplinary requirements were of primary importance in determining which inmates were transferred. See, W.Va.Code, 25-1-5 [1945], concerning the Division’s rule making authority. As Policy Directive 664.01 stated in part: “The philosophy of the Division of Corrections is to transfer inmates, on the basis of bed availability, consistent with classification procedures, in the most expeditious manner without compromising public or institutional security.”
In a per curiam order entered herein on December 8, 1997, however, this Court indicated that Policy Directive 664.01 did not satisfy the Division’s nondiscretionary duty “to incarcerate those inmates who are sentenced to the penitentiary in a state penal facility operated by the Division of Corrections.” See, syl. pt. 1, Smith, supra. As the order stated: “While it appears that the DOC has promulgated a policy to manage the overcrowding dilemma in the most effective manner possible, the fact remains that the DOC is not in compliance with our decisions in Dodrill and Smith. This noncompliance cannot continue indefinitely.” Consequently, pursuant to the order of December 8, 1997, the Division was directed to submit a plan to this Court and to the West Virginia Legislature outlining a proposal for addressing the overcrowding problem.
On January 30, 1998, the Division of Corrections submitted a 1 page “Master Plan to Manage West Virginia’s Overcrowding Prison Population.” The Plan simply listed proposals to increase bed availability at facilities of the Division of Corrections over a period of years. Attached to the Plan were various statistical reports concerning the expected growth of the prison population in West Virginia.
The report of the Special Master, however, filed with this Court on March 21, 1998, concluded that the Plan was inadequate to meet the transfer and overcrowding problems raised by the petitioners. Specifically, the report stated:
[T]he single page which is labeled “Master Plan” and lists a series of projects which could increase bed capacity is a plan only in the narrowest sense of the word. When states or other jurisdictions develop written plans for managing inmate population problems in the 1990’s, they first spend a great deal of time and energy making certain that they understand the problems they are attempting to solve. The Plan which I have reviewed contains no hint that [it] was the result of a serious and thoughtful planning process. * * * In summary, my review of the Plan submitted by the Division of Corrections suggests that most of the steps necessary to develop a legitimate inmate population management plan have not yet occurred. As a result, I do not recommend that plan as a sound basis for finally addressing the overcrowding problem which has brought the DOC before the Court.
As stated above, the petitioners seek prompt transfer to Division of Corrections facilities or release from confinement. The Division, on the other hand, asks this Court to allow it to pursue and implement the above Plan without judicial intervention.
II.
The pro se petitions filed herein constitute, in effect, original proceedings in mandamus cognizable under the jurisdiction of this Court. W.Va. Const, art. VIII, sec. 3; W.Va.R.App.P. 14; W.Va.Code, 53-1-2 [1933]. As this Court observed in State ex rel. Bronaugh v. City of Parkersburg, 148 W.Va. 568, 572, 136 S.E.2d 783, 785-86 (1964): “It has been authoritatively stated that the primary purpose or function of a writ of mandamus is to enforce an established-right and to enforce a corresponding imperative duty created or imposed by law.” Syl. pt. 1, Brumfield v. Board of Education of Logan County, 121 W.Va. 725, 6 S.E.2d 238 (1939); syl. pt. 6, State ex rel. Matheny v. County Court of Wyoming County, 47 W.Va. 672, 35 S.E. 959 (1900). More specifically, syllabus point 3 of Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981), holds:
Before this Court may properly issue a writ of mandamus three elements must coexist: (1) the existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the part of the respondent to do the thing the petitioner seeks to compel; and (3) the absence of another adequate remedy at law.
Parks v. Board of Review, 188 W.Va. 447, 452, 425 S.E.2d 123, 128 (1992); syl., Valley Camp Coal Co. v. Robinson, 180 W.Va. 108, 375 S.E.2d 579 (1988); Reed v. Hansbarger, 173 W.Va. 258, 261, 314 S.E.2d 616, 619-20 (1984); syl. pt. 1, Meadows v. Lewis, 172 W.Va. 457, 307 S.E.2d 625 (1983); 12B M.J. Mandamus § 3 (1992); 52 Am.Jur.2d Mandamus § 64 (1970).
In State ex rel. Dodrill v. Scott, supra, the Governor of West Virginia, in 1986, issued an executive order directing the Commissioner of the Department of Corrections to accept no further inmates into the Department’s custody until such time as the conditions of the Department’s institutions were “appropriate and warranted the acceptance of additional inmates.” 177 W.Va. at 454, 352 S.E.2d at 743. The executive order was implemented as a result of overcrowding of the Department’s facilities. Soon after, the Circuit Court of Jackson County ruled that the executive order was invalid and ordered the Commissioner to accept inmates sentenced to the Department’s custody from that county. The Commissioner challenged the ruling of the Circuit Court of Jackson County in this Court by seeking relief in prohibition.
This Court, in Dodrill, however, confirmed the invalidity of the executive order and denied the requested relief. Noting that many statutory sentencing provisions in this State provide “that a person convicted of such and such a crime shall be imprisoned in the penitentiary,” 177 W.Va. at 456, 352 S.E.2d at 744 (emphasis in original), this Court stated:
The legislature has thus imposed upon the judiciary, the Department of Corrections, and all other officials involved in the post-conviction custodial care of convicted felons, a mandatory, nondiscretionary duty to imprison these convicts in facilities ‘provided by the State.’ Penal statutes invoking such mandatory language therefore do not permit the imprisonment of those convicted under them in county facilities.
177 W.Va. at 456, 352 S.E.2d at 744 (emphasis in original).
Moreover, this Court, in Dodrill, referred to W.Va.Code, 62-13-5 [1977], which states in part: “All persons committed by courts of criminal and juvenile jurisdiction for custody in penal, correctional or training institutions under the jurisdiction of the commissioner of corrections shall be committed to an appro priate institution[.]” (emphasis added) Concluding that statutory language to be mandatory, this Court determined that W.Va.Code, 62-13-5 [1977]:
[RJequires the Commissioner of the Department of Corrections to accept for confinement all persons sentenced by courts of this State to state penal facilities. The jails of various counties, however, are not institutions within the West Virginia Department of Corrections. Thus W.Va. Code, 62-13-5 [1977] prohibits the Commissioner of the Department of Corrections from lodging or forcing to be lodged in a county jail any person sentenced by a circuit court of this State to a state penal facility.
177 W.Va. at 456, 352 S.E.2d at 745.
Similarly, in State ex rel. Smith v. Skaff, supra, this Court awarded relief in habeas corpus to an inmate incarcerated in the Eastern Regional Jail in Martinsburg, West Virginia, who had waited 13 months for transfer to a Division of Corrections facility. Specifically, in Smith, this Court directed the Division of Corrections to develop a plan to provide “some temporary arrangement to meet its obligation to house and detain all those lawfully sentenced to a state penal facility until such time as the new prison [the Mt. Olive Correctional Complex] is completed.” 187 W.Va. at 655, 420 S.E.2d at 926. Reaffirming the principles expressed in Dodrill, syllabus point 1 of Smith holds:
The statutory scheme of this state places a nondiscretionary duty upon the Division of Corrections to incarcerate those inmates who are sentenced to the penitentiary in a state penal facility operated by the Division of Corrections. Hence, the Division of Corrections is prohibited from lodging inmates in a county or regional jail facility absent the availability of space in these facilities once the inmates have been sentenced to a Division of Corrections facility.
In so holding, this Court, in Smith, observed that it is “extremely unfair” for the Division of Corrections to shift the prison overcrowding problem to the regional and county jails. 187 W.Va. at 655, 420 S.E.2d at 926. As the opinion in Smith states: “Not only are these [regional and county jail] facilities in no better position to cope with this problem in view of their own fiscal limitations with all the overcrowding and understaffing problems attendant thereto, but it simply is not their responsibility under the law.” 187 W.Va. at 655, 420 S.E.2d at 926.
Here, as stated above, the petitioners assert that their continued incarceration in regional and county jails is unlawful and has resulted in a denial of the rehabilitative programs to which they are entitled. In the latter regard, the petitioners cite Cooper v. Gwinn, supra, in which this Court recognized that “the Legislature requires rehabilitation to be the primary goal of the West Virginia corrections system.” 171 W.Va. at 252, 298 S.E.2d at 788. The Division of Corrections, on the other hand, asks this Court to allow it to pursue and implement the above Master Plan to Manage West Virginia’s Overcrowding Prison Population without judicial intervention. Moreover, the Division asserts, inmates awaiting transfer receive the benefit of various rehabilitation programs, such as educational services and substance abuse counseling, while lodged in regional and county jails and, furthermore, are being denied neither “good time” credit against their sentences nor parole while so incarcerated. See, W.Va. Code, 28-5-27 [1984]. The Regional Jail and Correctional Facility Authority, while in general agreement with the Plan submitted by the Division, contends that jail programming is primarily designed for pre-trial detention and for short-term misdemeanants and that, therefore, “[t]he backlog of state-convicted inmates housed in regional jails has created a significant strain on both jail staff and inmates.”
The record herein indicates that the petitioners have been awaiting transfer to Division facilities for periods between six months and two years from the date of sentencing. The record further indicates that there are currently in excess of 700 inmates who are similarly situated. In addition, according to the Division, the prison population in West Virginia is expanding at an annual rate of just over 9%. As we made clear in the order of December 8, 1997, pursuant to State ex rel. Dodrill v. Scott and State ex rel. Smith v. Skaff, the Division has a nondiscretionary duty to incarcerate those inmates, who are sentenced to the penitentiary, “in a state penal facility operated by the Division of Corrections.” The Division may not shift that duty to the regional and county jails. It is disturbing that the Division continues to do so. Whether the fault should be attributed to the executive branch or legislative branch may be fairly debatable, but suffice it to say a high degree of irresponsibility has been demonstrated to the legal obligation of the state to house its prisoners as the legislature itself has mandated.
Even without the report of the Special Master, it is obvious to this Court that the Plan submitted by the Division of Corrections is inadequate to meet the transfer and overcrowding problems raised by the petitioners. Although both the Division and the Regional Jail and Correctional Facility Authority assert that the West Virginia Legislature has committed funds to increase bed availability at the Division’s facilities, nothing in the attenuated Plan reveals that the Division has engaged in the kind of meaningful analysis necessary to best utilize those funds. Certainly, a consideration of the transfer and overcrowding problems involves more than the mathematical solution of increasing the number of beds available to prison inmates. In the meantime, such inmates lodged in regional and county jails may not, in fact, be receiving the programs to which they are entitled.
Without doubt, the Division of Corrections is in need of adequate facilities “so that prisoners may serve the full sentence imposed upon them.” See, n. 3, supra. In order to achieve such facilities, however, a full and complete long-range plan must be developed. Nevertheless, of immediate concern is the transfer of prison inmates who currently are unlawfully lodged in regional and county jails within the meaning of State ex rel. Dodrill v. Scott and State ex rel. Smith v. Skaff. As the report of the Special Commissioner observed:
Even given the existing overcrowding in both the corrections system and the jails, some steps can be taken to ameliorate the situation. I would agree that special attention (and priority) ought to be given to jail inmates for whom special programming has been ordered. Secondly, for those inmates without special programming requirements there should be a more equitable “first in-first out” system for admission to the state system. I further concur that inmates who “act out” in jail so that they can be transferred to the state system should not be. rewarded by having that behavior rewarded accordingly.
Thus, we conclude that a one-page plan developed by the West Virginia Division of Corrections which consists of nothing more than proposals to increase bed availability at facilities of the Division over a period of years, and which contains no meaningful analysis of such matters as the problems of prison overcrowding and the lodging of prison inmates for extended periods of time in regional and county jails, fails to satisfy the directive of this Court that the Division of Corrections submit a plan, pursuant to this Court’s decisions in State ex rel. Dodrill v. Scott, supra, and State ex rel. Smith v. Skaff, supra, concerning the Division’s nondiscretionary duty to incarcerate those inmates, who are sentenced to the penitentiary, in a state penal facility operated by the Division of Corrections.
Accordingly, this Court is of the opinion that relief in mandamus is warranted and that the petitioners, and others similarly situated, are entitled to prompt transfer to Division of Corrections facilities. Specifically, we direct the Commissioner of the Division of Corrections to submit to this Court within 60 days a full and complete plan for the immediate transfer to Division facilities of at least 60% of all inmates currently lodged in regional and county jails who are awaiting such transfer. In addition, we direct the Commissioner of the Division of Corrections to submit to this Court, as soon as practicable, a full and complete long-range plan for the transfer of such inmates to Division of Corrections facilities. Both plans shall be reviewed by the Special Master who shall promptly submit separate reports, as to the adequacy of each plan, to this Court.
Writs granted as moulded.
. We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4. (1992).
. The Master Plan to Manage West Virginia’s Overcrowding Prison Population submitted to this Court by the Division stated in its entirety:
Beds to Year Be Added Plan 1997 • Adult Prison Beds 2445
1998 240 Add beds at HCC, projected completion date 12/98.
60 Contract with Ohio County Jail to House 60 inmates
70 Contract with McDowell County Jail to House 70 inmates
35 Open Smithers Correctional Treatment Center
15 Add 15 beds at the Huntington, Charleston and Becldey Centers
115 Add 115 beds to Anthony Correctional Center
100 Add 100 beds to Pruntytown Correctional Center
'450 Transform Colin Anderson into a Correctional Center
Add 100 Beds to HCC 1999
Add 35 beds to Smitliers Center
250 Open Lakin Correctional Center — 250 beds
240 Add 240 Maximum Security Beds at MOCC 2001
1800 Build new Correctional Center for 1800, infrastructure to support 3600
1800 Add 1800 beds to the new Correctional Center 2005
. In so holding, this Court, in Dodrill, acknowledged:
We are aware that the Department of Corrections has made some attempts during the last year to alleviate the unconstitutional overcrowding at the State's penal facilities. The Department of Corrections, with the cooperation of the Governor, has made progress through the use of good time awards, early release programs, commutations, transfers to other facilities, outside work projects, work release centers, and parole. We applaud these efforts, but would much prefer adequate facilities so that prisoners may serve the full sentence imposed upon them.
177 W.Va. at 457, 352 S.E.2d at 746.
. Subsequently, in State ex rel. Smith v. Skaff, 189 W.Va. 73, 428 S.E.2d 54 (1993), this Court noted that the Division of Corrections "complied with our directive to develop a plan for the temporary housing of state prisoners.” 189 W.Va. at 74, 428 S.E.2d at 55 (emphasis added).
. It is worth noting that on July 6, 1998, an inmate at the South Central Regional Jail died as a result of injuries he received in a fight with another inmate. In an article in the Charleston Daily Mail on July 6, 1998, jail administrators attributed the death, in part, to overcrowding.
. In documents filed herein, both the Division of Corrections and the Regional Jail and Correctional Facility Authority suggest that not all inmates awaiting transfer receive the benefit of rehabilitation programs while lodged in regional and county jails. As stated in the response of the Division:
Inmate movement is arranged based on parole eligibility date. The purpose is to ensure that an inmate with an eligibility date in sight moves to the Mount Olive Correctional Complex as soon as possible so that he may be able to begin whatever educational or counseling classes which may not have been available to him in the regional jail.
Moreover, the Regional Jail and Correctional Facility Authority, in its response, stated that "[i]nmates who require special treatment or programming available only at Corrections facilities must have priority in transfer.”
The record indicates that, while the completion of certain rehabilitation programs may be required of an inmate following his or her release upon parole, a prison inmate is more likely to receive the benefit of such programs before release if he or she is transferred from a regional or county jail to a Division facility.
. It should be noted that the Division of Corrections asserts that W.Va.Code, 31-20-5(8) [1994], provides authority for the Division "to utilize the regional jails to house prisoners." As W.Va.Code, 31-20-5(8) [1994], states, in creating a plan to establish regional jails, the Regional Jail and Correctional Facility Authority shall consider:
The leasing of any available portion of any regional jail space and the leasing of available facilities of any regional jail to the West Virginia department of corrections for the keeping and detaining of prisoners sentenced to serve terms of incarceration under the custody of the West Virginia department of corrections for nonviolent crimes and to contract with the department of corrections for the providing of food, clothing, shelter and any and all incidental costs in the care, control and maintenance of such prisoners: Provided, That such leasing does not restrict space or facilities needed for the detention of county prisoners.
(emphasis added)
Furthermore, the Division does not contend that any such contract actually exists with respect to these petitioners.
The provisions of W.Va.Code, 31-20-5(8) [1994], notwithstanding, the Regional Jail and Correctional Facility Authority has indicated to this Court, as noted above, that "[t]he backlog of state-convicted inmates housed in regional jails has created a significant strain on both jail staff and inmates.” See, n. 5, supra, concerning the recent fatality in the South Central Regional Jail. Accordingly, the Division’s suggestion that W.Va. Code, 31-20-5(8) [1994], precludes relief in this proceeding is without merit. As stated above with regard to another statute more central to our consideration herein, the language of W.Va. Code, 62-13-5 [1977], that department of corrections inmates "shall be committed to an appropriate institution,” was described by this Court, in Dodrill, supra, as prohibiting the Division of Corrections "from lodging or forcing to be lodged in a county jail any person sentenced by a circuit court of this State to a state penal facility-” | [
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STARCHER, Justice:
The appellants and defendants below, State Farm Fire and Casualty Company (“State Farm”) and Allstate Insurance Company (“Allstate”), appeal an order of the Circuit Court of Jackson County granting summary judgment to several homeowners in a dispute concerning policy exclusions in two homeowners’ insurance policies. The policyholders’ homes were damaged by rocks falling from the highwall of a 40-year old abandoned rock quarry situated next to the homes. The policyholders’ insurance carriers denied coverage, claiming that the applicable insurance policies excluded losses caused by “landslides” and “erosion.” The circuit court concluded that the policies did not exclude from coverage losses caused by “rockfalls” and “weathering,” and that the plaintiffs’ losses were the result of those events. The circuit court held that the plaintiffs were entitled to coverage under the policies.
After reviewing the record, we conclude that questions of material fact exist concerning whether coverage exists under both policies. We reverse the circuit court’s order granting summary judgment and remand the ease for trial.
I.
Factual Background
The plaintiff-appellees in this case — Robert and Janet Murray, Bernie and Julie Rees, and Robert Withrow — are the owners of three adjacent properties on Spring Street in Ripley, West Virginia. The plaintiffs’ homes were constructed on their properties in the 1970’s. Immediately adjacent to the rear of the three houses is a man-made high-wall standing nearly 50 feet high. This vertical highwall is the result of quarrying operations conducted in the 1950’s. The highwall is allegedly located on property owned by defendant-appellee Robert B. Harris.
On February 22, 1994, several large boulders and rocks fell off the highwall and onto the houses owned by plaintiffs Murray and Withrow, causing extensive damage. The house owned by plaintiffs Mr. and Mrs. Rees was not damaged by rocks. However, firemen compelled all three families to leave their homes because of the possibility that additional rocks could fall, and turned off all electricity and water. An engineer who examined the highwall several days later concluded that further rockfalls would “continue to occur, some with potentially disastrous results.” None of the three families has lived in their homes since February 22,1994.
Several engineers and geologists examined the property and highwall in the following weeks. Each gave, to some extent, an opinion that what occurred on Spring Street was primarily a “rockfall” and not a “landslide,” because no “sliding” was involved: a layer of shale supporting a layer of sandstone “weathered,” removing support for the sandstone, and sandstone blocks broke loose and dropped onto the plaintiffs’ homes. One expert said that he thought of a rockfall as “almost a vertical displacement free-falling through the air off of a cliff, a highwall, an escarpment.” However, several of the experts conceded that rock falls are considered to be a type of landslide, and are accepted as a sub-category of a landslide; and they further agreed that erosion contributed to the moving of the rocks in the instant case.
Furthermore, there is evidence in the record that negligent construction of the high-wall behind the plaintiffs’ residences, namely the cutting of the rock face at a near vertical angle, contributed to the rockfall. Expert George A. Hall indicated that “the design of the cut-slope on Spring Street did not meet standards which you would reasonably and normally expect for civil engineering purposes of designing cut-slopes.” He also said that had proper civil engineering techniques been used when the highwall was created, the danger of a fall like the one that occurred would not be present.
Plaintiffs Murray and Rees filed claims for the losses to their homes with their homeowner’s insurance carrier, defendant State Farm. Plaintiff Withrow filed a similar claim with his insurance carrier, defendant Allstate. Insurance agents notified the plaintiffs that State Farm and Allstate would not cover the losses, citing to numerous policy provisions and exclusions, including an exclusion for losses caused by landslide or erosion.
The plaintiffs then filed the instant lawsuit against defendants Allstate and State Farm alleging breach of contract and bad faith. The plaintiffs also sued defendant Harris for nuisance, trespass, and failing to protect the plaintiffs’ property from the “dangerous, artificial manmade condition existing on the defendant’s property!.]” Defendant State Farm filed a counterclaim against the plaintiffs seeking a declaratory judgment regarding State Farm’s obligations under its policies.
The plaintiffs and defendants State Farm and Allstate filed motions for summary judgment concerning coverage under the disputed insurance policies. Through a letter ruling on January 3, 1997 and a subsequent order on March 17, 1997, the circuit court granted summary judgment to the plaintiffs. The circuit court held that the rockfall “is a loss covered under the plaintiffs’ respective insurance policies.” The court also held that whether the plaintiffs’ damages were caused by a rockfall, and the extent of those damages, were issues to be determined by a jury.
State Farm and Allstate now appeal the circuit court’s order.
II.
Standard of Review
This appeal arises from the circuit court’s granting of partial summary judgment to the plaintiff. Our review is de novo. Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). In reviewing summary judgment, this Court will apply the same test that the circuit court should have used initially, and must determine whether “it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
In this case we are primarily asked to review the circuit court’s interpretation of an insurance contract. In Payne v. Weston, 195 W.Va. 502, 506-07, 466 S.E.2d 161, 165-66 (1995), we discussed the applicable standard of review in such cases, stating that “[t]he interpretation of an insurance contract, including the question of whether the contract is ambiguous, is a legal determination which, like the court’s summary judgment, is reviewed de novo on appeal.” “Determination of the proper coverage of an insurance contract when the facts are not in dispute is a question of law.” Pacific Indemnity Co. v. Linn, 766 F.2d 754, 760 (3d Cir.1985).
When a court interprets an insurance policy, the “[l]anguage in an insurance policy should be given its plain, ordinary meaning.” Syllabus Point 1, Soliva v. Shand, Morahan & Co., Inc., 176 W.Va. 430, 345 S.E.2d 33 (1986). ‘"Where the provisions of an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended.” Syllabus, Keffer v. Prudential Ins. Co. of America, 153 W.Va. 813, 172 S.E.2d 714 (1970).
However, “[w]henever the language of an insurance policy provision is reasonably susceptible of two different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning, it is ambiguous.” Syllabus Point 1, Prete v. Merchants Property Ins. Co. of Indiana, 159 W.Va. 508, 223 S.E.2d 441 (1976). “It is well settled law in West Virginia that ambiguous terms in insurance contracts are to be strictly construed against the insurance company and in favor of the in sured.” Syllabus Point 4, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987).
With these principles in mind, we undertake a plenary review of the disputed policy language to determine whether the plaintiffs’ homeowners’ policies from defendants Allstate and State Farm provide coverage in the factual situation presented.
III.
Discussion
Defendants Allstate and State Farm provided the plaintiffs with “all-risk” homeowner’s insurance policies. Under an all-risk policy, recovery is allowed for all losses arising from any fortuitous cause, unless the policy contains an express provision excluding the loss from coverage. Essex House v. St. Paul Fire & Marine Ins. Co., 404 F.Supp. 978, 987 (S.D.Ohio 1975). See generally, J. Draper, Coverage Under All-Risk Insurance, 30 A.L.R.5th 170 (1995).
Both Allstate and State Farm contend that the losses suffered by the plaintiffs are barred from coverage by express policy provisions excluding losses resulting from “earth movement, including but not limited to ... landslide ... [or] erosion[.]”
The defendants challenge the circuit court’s order on four grounds. First, both defendants challenge the circuit court’s summary judgment order finding that coverage existed under the policies because the plaintiffs’ losses were the result of a “rockfall” caused by “weathering,” and not excluded by policy provisions regarding “landslide” and “erosion.” Second, both defendants argue that the earth movement exclusions are clear and unambiguous, and should therefore not be construed but instead applied to exclude coverage for the plaintiffs. Third, defendant State Farm argues that even if the earth movement exclusion could be construed as ambiguous, an extensive “lead-in” clause in its policy clarifies any ambiguity and excludes any coverage as to plaintiffs Murray and Rees. Lastly, both defendants argue that the plaintiffs cannot recover for the total loss of their homes due to the potential for a future rockfall, but can only recover for the actual physical damage sustained.
We address these arguments in turn.
A.
The Circuit Court’s Summary Judgment Order
We first address the circuit court’s order. While the circuit court’s letter ruling and subsequent order are less than perfectly clear, it appears that the circuit court concluded that the boulders that damaged the plaintiffs’ homes arose from a “rockfall” rather than a “landslide.”' Based in part upon the expert testimony in the record, the circuit court construed the policy language strictly against the insurance carriers and found that “the language therein did not include or contemplate a rockfall[.]” The circuit court further referred to expert testimony, apparently to hold that the rockfall was the result of “weathering” as opposed to “erosion,” and that the plaintiffs were therefore covered under their homeowners’ policies.
Defendants Allstate and State Farm first contend that the circuit court erred in finding that a “rockfall” is not included within the definition of “landslide.” The defendants cite to Dupps v. Travelers Ins. Co., 80 F.3d 312 (8th Cir.1996), where the court, addressing a landslide triggered by a sinkhole, stated that “[t]he ordinary meaning of the term ‘landslide’ includes rocks falling down a bluff.... [T]he only reasonable interpretation of the policy prohibits recovery for rocks which have fallen_” 80 F.3d at 314. Similarly, the court in Syllabus Point 4 of Olmstead v. Lumbermens Mut. Ins. Co., 22 Ohio St.2d 212, 259 N.E.2d 123 (1970) concluded that “[t]he common ordinary meaning of the word ‘landslide’ is a sliding down of a mass of soil or rock on a steep slope.”
We agree with the defendants that the circuit court erred. We hold that the plain, ordinary meaning of the word “landslide” in an insurance policy contemplates a sliding down of a mass of soil or rock on or from a steep slope. See generally, 13A G. Couch, Couch on Insurance 2d 48:180 (1982) (“What Constitutes a Landslide”).
Allstate and State Farm also argue that the circuit court erred in concluding that “weathering” is different from “erosion,” and therefore any loss resulting from weathering is not excluded from coverage. The Dictionary of Geological Terms defines “erosion” as “the group of processes whereby earth or rock material is loosened or dissolved and removed from any part of the earth’s surface,” specifying that it includes the processes of “weathering, solution, corrosion and transportation.” The American Heritage Dictionary also includes within its definition of erosion the “natural processes, including weathering, dissolution, abrasion, corrosion and transportation, by which material is removed from the earth’s surface.”
We again agree that the circuit court erred. We hold that the plain, ordinary meaning of the word “erosion” in an insurance policy contemplates a natural process that includes weathering, dissolution, abrasion, corrosion and transportation whereby material is removed from the earth’s surface.
Applying these definitions to the circuit court’s order, it is clear that the circuit court’s granting of partial summary judgment to the plaintiffs was incorrect. A naturally-occurring “rockfall” is included within the common definition of “landslide,” and the process of “weathering” to rock is included as a component of the natural process of erosion. We further hold that the circuit court erred in finding that as a matter of law coverage existed under the policies by applying these definitions. However, as discussed below substantial questions of fact remain to be resolved concerning the existence of coverage.
B.
Earth Movement Exclusion
Both insurance policies in this case contain exclusions for “earth movement.” The policy issued by Allstate excludes coverage for any loss resulting from:
2. Earth movement, including, but not limited to, earthquake, volcanic eruption, landslide, subsidence, mud flow, sinkhole, erosion, or the sinking, rising, shifting, expanding, bulging, cracking, settling or contracting of the earth. This exclusion applies whether or not the earth movement is combined with water.
Similarly, the policy issued by State Farm excludes coverage for losses resulting from:
b. Earth Movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to earthquake, landslide, mudflow, sinkhole, subsidence and erosion.
When a policyholder shows that a loss occurred while an insurance policy was in force, but the insurance company seeks to avoid liability through the operation of an exclusion, the insurance company has the burden of proving the exclusion applies to the facts in the case. Syllabus Point 7, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987). “Where the policy language involved is exclusionary, it will be strictly construed against the insurer in order that the purpose of providing indemnity not be defeated.” Syllabus Point 5, Id.
Both of the earth movement exclusions in this case refer to “earth movement” including, but not limited to “earthquake,” “volcanic eruption,” “landslide,” “subsidence,” “mud flow,” “sinkhole,” “erosion,” “sinking,” “shifting,” or “settling.” None of these terms is further defined in the insurance policies. The defendant insurance companies argue that the facts in this case show that the rocks and earthen debris that fell on the plaintiffs’ homes constitute a “landslide” caused by “erosion,” an event within the earth movement exclusions.
The plaintiffs, however, argue that the facts show the damage to their homes was caused by the negligent creation of the high-wall in the 1950’s and its negligent maintenance by defendant Harris today, two events that would be covered by the policies.
On the one hand, the exclusions cited in the defendants’ policies could bar coverage for solely natural events such as earthquakes, volcanic eruptions, and sinkholes. On the other hand, the same exclusions refer to events which could be man-made, such as subsidence or earth movement caused by equipment or a broken water line. Or, as alleged in this case, earth movement could be caused by both man and nature over a period of time, such as landslides, mudflows, or the earth sinking, shifting, or settling. Because the policy language is reasonably susceptible to different meanings, we believe that the earth movement exclusions in the insurance policies at issue are ambiguous, and must have a more limited meaning than that assigned to it by the defendants.
The majority of courts that have considered earth movement exclusions have found them to be ambiguous. Having found the clause to be ambiguous, courts have used two methods of policy construction to examine whether coverage exists or is excluded under the earth movement exclusion.
First, courts have applied two doctrines of construction, ejusdem generis and noscitur a sociis, to limit the application of the earth movement exclusion to natural, catastrophic events, rather than man-made events.
Second, courts have examined the particular causes of the loss presented by the policyholder, and although an excluded event (such as earth movement) may have been a concurring or contributing cause of a loss, courts have allowed policyholders to recover under an insurance policy if the proximate cause of the loss was an event insured by the policy.
We believe that both approaches are applicable in this case. We therefore examine exclusions in the instant case using the same two approaches.
First, having determined that the earth movement exclusions at issue in this case are ambiguous, we apply the construction principles of ejusdem generis and noscitur a sociis. Under the doctrine of ejusdem generis, “[w]here general words are used in a contract after specific terms, the general words will be limited in their meaning or restricted to things of like kind and nature with those specified.” Syllabus Point 4, Jones v. Island Creek Coal Co., 79 W.Va. 532, 91 S.E. 391 (1917). The phrase noscitur a sociis literally means “it is known from its associates,” and the doctrine implies that the meaning of a general word is or may be known from the meaning of accompanying specific words. See Syllabus Point 4, Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975). The doctrines are similar in nature, and their application holds that in an ambiguous phrase mixing general words with specific words, the general words are not construed broadly but are restricted to a sense analogous to the specific words.
In the seminal case of Wyatt v. Northwestern Mutual Ins. Co. of Seattle, 304 F.Supp. 781 (D.Minn.1969), the district court considered a summary judgment motion where an insurance company sought, through the operation of an earth movement exclusion, to avoid liability for losses caused by the negligence of a contractor excavating land adjacent to the policyholder’s home. While holding that the exclusionary language was intended to remove from coverage losses resulting from natural causes and natural phenomena, such as earthquakes, the court concluded that questions of fact remained as to whether the movement of earth that damaged the policyholder’s house was caused by the actions of third parties. The court reasoned that the earth movement exclusion was created by insurance companies
... to relieve the insurer from occasional major disasters which are almost impossible to predict and thus to insure against. There are earthquakes or floods which cause a major catastrophe and wreak damage to everyone in a large area rather than one individual policyholder. When such happens, the very basis upon which insurance companies operate is said to be destroyed. When damage is so widespread no longer can insurance companies spread the risk and offset a few or the average percentage of losses by many premiums. Looking at the special exclusionary clause in the policy here in question, it seems to cover situations where one single event could adversely affect a large number of policyholders.... All of these are phenomena likely to affect great numbers of people when they occur.
This gives some force to the view that the various exclusions were not intended to cover the situation as here where “earth movement” occurred under a single dwelling, allegedly due to human action of third persons in the immediate vicinity of the damage.
304 F.Supp. at 783. We believe that similar reasoning underlies the exclusions in this case.
Examining the exclusionary terms used by Allstate and State Farm in their context, and applying the rule that ambiguities must be resolved in favor of the insured, we conclude that both earth movement exclusions must be read to refer only to phenomena resulting from natural, rather than man-made, forces.
Therefore, when an earth movement exclusion in an insurance policy contains terms not otherwise defined in the policy, and the terms of the exclusion relate to natural events (such as earthquakes or volcanic eruptions), which events, in some instances, may also be attributed to a combination of natural and man-made causes (such as landslides, subsidence or erosion), the terms of the exclusion must be read together and limited to exclude naturally-occurring events rather than man-made events.
The second approach consistently taken by courts in construing insurance policies is that for coverage to exist under an insurance policy, policyholders are required to prove that the efficient proximate cause of the loss was an insured risk. For example, in Huntington, Ashland & Big Sandy Transportation Co. v. Western Assur. Co. of Toronto, Ont., 61 W.Va. 324, 57 S.E. 140 (1907), an insurance policy on the policyholder’s steamboat excluded coverage for “loss, damage or expense resulting from stranding or grounding, unless caused by stress of weather.” The evidence suggested that heavy, gusting winds caused the steamboat to run aground. This Court held that high wind was a “stress of weather,” and whether wind was a proximate cause of the loss was a question of fact for the jury. 61 W.Va. at 325-26, 57 S.E. at 140. The Court sustained a jury verdict for the policyholder.
Another example is LaBris v. Western National Ins. Co., 133 W.Va. 731, 59 S.E.2d 236 (1950), where a policyholder sought to recover for the collapse of the roof of a tire repair shop under a policy insuring against “direct loss by windstorm.” We stated that in order for a policyholder to recover under such a policy, “wind must be an efficient cause of the loss, and the qualifying word ‘direct’ in referring to the cause of the loss means ‘proximate or immediate.’ ” 133 W.Va. at 739, 59 S.E.2d at 240. We stated in Syllabus Point 2 that “it must be established by a preponderance of the evidence that a windstorm of itself was sufficient to, and did cause the alleged damage to the property insured, though there may be other contributing causes.” We concluded that there was no coverage for the policyholder because the evidence showed that the roof collapse was caused by water accumulating on the roof, and not wind. In accord, Lewis v. St Paul Fire & Marine Ins. Co., 155 W.Va. 178, 182 S.E.2d 44 (1971) (no coverage because policyholder failed to prove damage to building was a “direct loss by windstorm”).
The scope of coverage under an all-risk homeowner’s policy includes all risks except those risks specifically excluded by the policy. A majority of jurisdictions use the “efficient proximate cause” doctrine in adjudicating coverage issues for all-risk insurance policies, where both a covered and a non-covered peril contribute to a loss. When a loss is caused by a combination of covered and specifically excluded risks, the loss is covered if the covered risk was the proximate cause of the loss. Two leading treatises sup-According to Couch on port this position. Insurance:
In determining cause of loss for purposes of fixing insurance liability, if there is evidence of concurrent causes for the damage, the “proximate cause” to which the loss is to be attributed is the dominant, efficient one that sets the other causes in operation; causes which are incidental are not proximate, even though they may be nearer the loss in both time and place. Where it is said that the cause to be sought is the direct and proximate cause, it is not meant that the cause or agency which is nearest in point of time or place to the result is necessarily to be chosen, since there may be a dominant cause even though concurrent or remote in point of time or place.
L. Russ, 7 Couch on Insurance 3d § 101:44 (1997). Similarly, Professor Appleman’s treatise states that “where the insured risk was the last step in the chain of causation set in motion by an uninsured peril, or where the insured risk itself set into operation a chain of causation in which the last step may have been an excepted risk,” recovery may be allowed. J. Appleman, 5 Insurance Law and Practice § 3083 (1969).
We hold that, when examining whether coverage exists for a loss under a first-party insurance policy when the loss is caused by a combination of covered and specifically excluded risks, the loss is covered if the covered risk was the efficient proximate cause of the loss. No coverage exists for a loss if the covered risk was only a remote cause of the loss, or conversely, if the excluded risk was the efficient proximate cause of the loss. The efficient proximate cause is the risk that sets others in motion. It is not necessarily the last act in a chain of events, nor is it the triggering cause. The efficient proximate cause doctrine looks to the quality of the links in the chain of causation. The efficient proximate cause is the predominating cause of the loss.
One more point is made clear by courts considering the problem of concurrent risks: the question of which event was the efficient proximate cause of the loss is generally a question of fact. State Farm Fire & Cas. Co. v. Von Der Lieth, 54 Cal.3d 1123, 1131, 2 Cal.Rptr.2d 183, 188-89, 820 P.2d 285, 290-91 (1991).
After reviewing the record, we conclude that substantial questions of material fact remain for jury resolution. The earth movement exclusions apply to exclude naturally occurring risks. The plaintiffs argue that the evidence currently in the record suggests that the rocks fell from the quarry highwall due to its negligent vertical con struction in the 1950’s, and its negligent maintenance by the current owner. These risks facially appear to be covered by the language in both policies. Conversely, the defendants argue that the plaintiffs’ losses are the result of the excluded event of a landslide caused by another excluded event, erosion. We believe that whichever of these events was the efficient proximate cause of the plaintiffs’ losses is a question for the finder of fact.
C.
State Farm’s Lead-In Clause
State Farm contends in its reply brief that a “lead-in” clause in the “Losses Not Insured” section of its policy precludes coverage to plaintiffs Murray and Rees, and excludes coverage for all forms of earth movement, regardless of whether resulting from natural or man-made causes. The State Farm lead-in clause states:
SECTION I — LOSSES NOT INSURED
* * *
2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:
The policy then goes on to list numerous occurrences that are excluded, including the previously discussed “earth movement.”
State Farm uses unique language in the “Losses Not Insured” section of its policy (which includes the earth movement exclusion), language not employed by other insurance companies in standard all-risk insurance policies. As one court recently recognized in construing an earth movement exclusion,
... State Farm adopted language peculiar to itself, and one of plaintiffs’ [insurance] experts describes State Farm as a “deviated company” which employs its own language and is “known in the industry as ones who try to push earth movement as broadly as they can.”
Winters v. Charter Oak Fire Ins. Co., 4 F.Supp.2d 1288,1292 (D.N.M.1998).
The court in Cox v. State Farm Fire & Cas. Co., 217 Ga.App. 796, 459 S.E.2d 446 (1995) considered State Farm policy language nearly identical to that at hand and held the lead-in clause to be ambiguous. The policyholders in Cox alleged that their home had been damaged by vibrations from explosions, and that explosions were a covered peril under their homeowner’s policy. As in this case, State Farm in that case denied coverage under the earth movement exclusion, and argued that man-made earth movement was excluded by the lead-in clause which expanded the exclusion to cover “natural or external forces.” The court stated that:
Because “external” is not defined in the policy, we must give the word its usual and common meaning. As we have found no definition of the word that means anything other than apart, beyond, exterior or connected to the outside (see Webster’s Third New International Dictionary), we cannot define the word to include a concept of non-natural or man-made forces as State Farm would have us do. Therefore, we must interpret this provision as excluding coverage arising from natural forces from beyond or outside the property.
217 Ga.App. at 797, 459 S.E.2d at 448 (citation omitted).
We believe a similar analysis applies here. The policy language at issue in this case does not define the term “external,” and we must therefore give the word its “plain, ordinary meaning.” We can find no definition for “external” that means anything other than outside, apart, or beyond, and we cannot define the word to include man-made forces as State Farm would have us do. As with the court in Cox, we interpret the provision as excluding from coverage natural risks arising from beyond or outside the property.
State Farm also argues that its lead-in clause operates to defeat the efficient proximate cause doctrine, and argues that if earth movement in any way contributes to a loss, regardless of the proximate cause, then under the lead-in clause the entire loss is excluded from coverage under the all-risk policy. The plaintiffs, however, argue that such a construction reaches a result contrary to the reasonable expectations of policyholders. We agree with the plaintiffs’ argument.
“With respect to insurance contracts, the doctrine of reasonable expectations is that the objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.” Syllabus Point 8, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987).
As in the instant case, where third-party negligence is alleged to be the proximate cause of a loss, we believe a policyholder could reasonably expect to be covered under State Farm’s policy. Only through a painstaking review of the lengthy “Losses Not Included” section would a policyholder discover the language suggesting that, because the negligence occurred in conjunction with an excluded event, the loss would not be covered. “Insureds with all-risks insurance likely have heightened expectations because of the comprehensive nature of the coverage and the greater premium rates. These expectations would not often be given effect if recovery was denied whenever an exception or exclusion contributed to the loss.” R. Fierce, Insurance Law — Concurrent Causation: Examination of Alternative Approaches, 1985 S.Ill.U.L.J. 527, 544 (1986).
An example of the overbreadth of State Farm’s position was suggested by the court in Wyatt v. Northwestern Mut. Ins. Co. of Seattle, 304 F.Supp. at 783, which stated:
It seems hard to contend that the insurance policy meant to exclude all earth movements, for it is difficult to distinguish between a situation where a piece of heavy equipment breaks loose and hits a house causing serious damage and a situation where that equipment instead hits only an embankment next to a house but causes the earth to move and thereby damages the house. Certainly not all earth movements, or at least those where some human action causes such are included in the exclusion.
However, applying State Farm’s interpretation of its policy to the fact pattern proffered by the court in Wyatt, there would be no coverage. We believe such an interpretation clearly goes against the reasonable expectations of the parties.
We agree with the court’s statement in Howell v. State Farm Fire & Cas. Co., 218 Cal.App.3d 1446, 267 Cal.Rptr. 708 (1st Dist.1990), that:
Indeed, if we were to give full effect to the State Farm policy language excluding coverage whenever an excluded peril is a contributing or aggravating factor in the loss, we would be giving insurance companies carte blanche to deny coverage in nearly all cases. A similar point was made by the Supreme Court in Garvey [v. State Farm Fire & Cas. Co., 48 Cal.3d 395, 408, 257 Cal.Rptr. 292, 299, 770 P.2d 704, 711]. There, the court noted that the insured cannot be permitted to claim coverage merely because an included peril is a contributing cause of a loss. The court reasoned that since “[i]n most instances, the insured can point to some arguably covered contributing factor” such a rule would transform an “ ‘all-risk’ ” policy into an “ ‘all-loss’ ” policy, and would make the insurer liable in almost every case.
The present case presents the inverse situation. Here, the State Farm policies would deny coverage whenever an excluded peril is a contributing factor to the loss. Since, in most instances, an insurer can point to some arguably excluded contributing factor, this rule would effectively trans form an “all-risk” policy into a “no-risk” policy.
218 Cal.App.3d at 1456-57 n. 6, 267 Cal.Rptr. at 715 n. 6 (citation omitted).
A statement in a concurring opinion to Howell makes clear how State Farm’s interpretation of the lead-in clause goes against the reasonable expectations of policyholders. Justice Barry-Deal stated that “[n]o reasonable person would pay for insurance against some future peril if it were possible for the insurer to avoid liability by discovering an excluded peril somewhere in the chain of causation.... [W]here an insurer chooses to insure against the direct and proximate results of a certain peril, it may not rely on the concurrence of an excluded cause to deny coverage.” 218 Cal.App.3d at 1476, 267 Cal. Rptr. at 728-29.
Our examination of the State Farm lead-in clause leads us to a similar conclusion. As indicated previously, when an insurance carrier chooses to insure against a loss proximately caused by a particular peril, it may not rely on the mere concurrence of .an excluded peril to deny coverage. The excluded peril must itself be the efficient proximate cause of the loss. Because State Farm’s lead-in clause conflicts with the reasonable expectations of the parties, it should be construed to allow coverage for losses proximately caused by a covered risk, and deny coverage only when an excepted risk is the efficient proximate cause of the loss.
D.
Whether the Plaintiffs Suffered a “Direct Physical Loss” To Their Property
As indicated previously, the Allstate policy provides coverage for any “sudden and accidental loss to the property,” while the State Farm policy “insure[s] for accidental direct physical loss to the property[.]” Defendants Allstate and State Farm do not dispute the fact that the plaintiffs’ losses were “sudden” and “accidental.” Instead, the defendants argue that as a matter of law the insurance carriers cannot be held responsible for the total loss of the plaintiffs’ property. The defendants essentially contend that while their policies might cover the actual physical damage to the Murray and With-row homes, the policies do not cover any losses occasioned by the potential damage that could be caused by future rockfalls.
The appellants cite us to only one case in support of their argument, Hoffman v. State Farm Fire & Cas. Co., 16 Cal.App.4th 184, 19 Cal.Rptr.2d 809 (2nd Dist.1993), and we believe that case is factually and legally inapplicable here.
In Hoffman, the court held that policyholders were not entitled to recover under an all-risk homeowner’s policy when the damage became apparent over a year after the policyholders sold their home, canceled the policy and moved out. The policyholders contended that, a year after they moved out of their home, they discovered an entire region surrounding their former home was subjected to a massive, slow-moving landslide, and that their former home suffered some structural damage. The policyholders contended that they were entitled to recover for the damage to their former home, and to recover for the “just discovered” diminished market value of the property when it was sold. The court stated, in dicta, that “[diminution in market value is not a covered peril. In fact, insuring land values is illegal in California, and doing so is a felony misdemeanor.” 16 Cal.App.4th at 190, 19 Cal.Rptr.2d at 812 (citations omitted).
Hoffman fails to mention four other California cases where the courts held policyholders could recover for losses to their homes other than tangible physical damage caused by landslides. See Strickland v. Federal Ins. Co., 200 Cal.App.3d 792, 246 Cal.Rptr. 345 (2nd Dist.1988); Snapp v. State Farm Fire & Cas. Co., 206 Cal.App.2d 827, 24 Cal.Rptr. 44 (2nd Dist.1962); Hughes v. Potomac Ins. Co., 199 Cal.App.2d 239, 18 Cal.Rptr. 650 (1st Dist.1962); and Pfeiffer v. General Ins. Corp., 185 F.Supp. 605 (N.D.Cal.1960). In each case, the cosmetic damage to the policyholders’ homes was relatively minor, while the cost of making the home inhabitable usually exceeded the policy limits. In each case, the insurance company refused coverage, and in each ease the court held the insurance company liable for the total cost of making the property liveable.
For instance, in Hughes, supra, the policyholders awoke one morning to discover 30 feet of their backyard had washed into a creek, leaving their home standing on the edge of a newly-formed 30-foot cliff. The landslide deprived the house of subjacent and lateral support essential to the stability of the house. An insurance adjuster concluded that the house sustained only $50.00 in damage, but that the cost of a retaining wall and fill to support the dwelling was $19,000.00. The insurance carrier denied coverage contending its policy only insured the physical damage to the dwelling. The court rejected this argument and found the appellant insurance carrier liable for the entire loss to the use of the property. The court stated:
To accept appellant’s interpretation of its policy would be to conclude that a building which has been overturned or which has been placed in such a position as to overhang a steep cliff has not been “damaged” so long as its paint remains intact and its walls still adhere to one another. Despite the fact that a “dwelling building” might be rendered completely useless to its owners, appellant would deny that any loss or damage had occurred unless some tangible injury to the physical structure itself could be detected. Common sense requires that a policy should not be so interpreted in the absence of a provision specifically limiting coverage in this manner. Respondents correctly point out that a “dwelling” or “dwelling building” connotes a place fit for occupancy, a safe place in which to dwell or live. It goes without question that respondents’ “dwelling building” suffered real and severe damage when the soil beneath it slid away and left it overhanging a 30-foot cliff. Until such damage was repaired and the land beneath the building stabilized, the structure could scarcely be considered a “dwelling building” in the sense that rational persons would be content to reside there.
199 Cal.App.2d at 248-49, 18 Cal.Rptr. at 655.
We believe similar reasoning is applicable to the case at hand. The policies in question provide coverage against “sudden and accidental loss” and “accidental direct physical loss” to property. “‘Direct physical loss’ provisions require only that a covered property be injured, not destroyed. Direct physical loss also may exist in the absence of structural damage to the insured property.” Sentinel Management Co. v. New Hampshire Ins. Co., 563 N.W.2d 296, 300 (Minn.App.1997) (citations omitted).
The properties insured by Allstate and State Farm in this case were homes, buildings normally thought of as a safe place in which to dwell or live. It seems undisputed from the record that on February 22,1994 all three of the plaintiffs’ homes became unsafe for habitation, and therefore suffered real damage when it became clear that rocks and boulders could come crashing down at any time. The record suggests that until the highwall on defendant Harris’ property is stabilized, the plaintiffs’ houses could scarcely be considered “homes” in the sense that rational persons would be content to reside there.
We therefore hold that an insurance policy provision providing coverage for a “sudden and accidental loss” or an “accidental direct physical loss” to insured property requires only that the property be damaged, not destroyed. Losses covered by the policy, including those rendering the insured property unusable or uninhabitable, may exist in the absence of structural damage to the insured property.
IV.
Conclusion
We reverse the circuit court’s summary judgment ruling that found as a matter of law that coverage existed under the Allstate and State Farm policies. Because we find substantial questions of material fact in the record concerning the existence of coverage, we remand the case for further proceedings to determine whether the plaintiffs sustained a loss, and whether that loss was proximately caused by the covered risk of third-party negligence, or proximately caused by the excluded natural events of a landslide or erosion.
Reversed and remanded.
Appendix A
Cases Construing Earth Movement Exclusions
A. Jurisdictions holding that earth movement exclusions are ambiguous, and limited in application only to naturally-occurring catastrophic events include: Winters v. Charter Oak Fire Ins. Co., 4 F.Supp.2d 1288 (D.N.M.1998) (water line broke in policyholder’s clubhouse, causing soil beneath clubhouse to shift and damaging building; court held that cov erage could exist because earth movement exclusion applied only to naturally-occurring earthquake-type phenomena; any earth movement in this case was caused by a man-made source, that is, a water line); Cox v. State Farm Fire & Cas. Co., 217 Ga.App. 796, 459 S.E.2d 446 (1995) (policyholder’s home damaged by vibrations from explosions; insurance company denied coverage citing earth movement exclusion; court found policy ambiguous, applied principle of ejus-dem generis and found exclusion limited to earth movement from natural causes; man-made forces such as explosions were covered under the policy); Boston Company Real Estate Counsel, Inc. v. Home Ins. Co., Inc., 887 F.Supp. 369 (D.Mass.1995) (before constructing office building, engineers reported soil was unsuitable and would not support building; contractor continued to construct building, and building settled at a rate “exceeding expectations;” court held meaning of earth movement exclusion was confined “to its commonplace usage — referring only to sudden, cataclysmic events (e.g. earthquakes);” gradual soil compression was therefore not earth movement as defined by exclusion); American Motorists Ins. Co. v. R & S Meats, Inc., 190 Wis.2d 196, 526 N.W.2d 791 (1994) (city negligently constructed storm sewer; after heavy rain, water flowed beneath floor of policyholder’s building and blast freezer; water froze under freezer floor, causing floor to heave upward damaging walls, pillars, and ceiling beams; court held that earth movement exclusion was not applicable to human action, and therefore did not bar coverage); Sentinel Associates v. American Manufacturers Mut. Ins. Co., 804 F.Supp. 815 (E.D.Va.1992) (policyholder’s shopping center damaged when soil supporting foundation washed away by broken water line; court construed earth movement exclusion to apply only to natural, rather than man-made, phenomena; genuine issue of fact remained of whether natural forces (settling) or a man-made problem (leaking water pipe) caused the damage); Steele v. Statesman Ins. Co., 530 Pa. 190, 607 A.2d 742 (1992) (next-door neighbor overloaded property during construction, causing hillside to collapse onto policyholder’s house; court applied ejusdem generis doctrine and construed earth movement and landslide exclusion to apply only to natural events; coverage existed for hillside collapse due to man-made event of construction); Howell v. State Farm Fire & Cas. Co., 218 Cal.App.3d 1446, 267 Cal.Rptr. 708 (1990) (summer brush fire destroyed vegetation, and subsequent winter rain triggered landslide damaging insured property; policy provided coverage for losses caused by brush fire; under California statute, earth movement and water damage exclusions could only operate to avoid coverage if an excluded event (earth movement or water damage rather than brush fire) was the “efficient proximate cause” of the loss); Safeco Ins. Co. of America v. Hirschmann, 112 Wash.2d 621, 773 P.2d 413 (1989) (heavy rain and high wind — a covered risk' — caused landslide which damaged policyholder’s home; insurance company argued policy excluded coverage for earth movement “whether occurring alone or in any sequence with a covered peril;” court held issue of which event (rain and wind or landslide) was the efficient proximate cause of loss was question of fact, and that exclusions only circumvented coverage when the excluded peril was the efficient proximate cause of loss); Garvey v. State Farm Fire & Cas. Co., 48 Cal.3d 395, 257 Cal.Rptr. 292, 770 P.2d 704 (1989) (addition to policyholder’s house pulled away; policyholder alleged loss caused by contractor negligence; insurance company denied coverage and alleged loss caused by excluded event of earth movement; court ruled that in light of conflicting evidence, question of which event was the proximate cause of the loss, and thereby whether coverage existed, was a jury question); Clyce v. St. Paul Fire & Marine Ins. Co., 850 F.2d 1398 (11th Cir.1987) (retaining wall and basement wall damaged, allegedly due to “earth pressures;” insurance company refused coverage under earth movement exclusion; court held that “earth movement” and “earth pressures” were significantly different terms for coverage purposes, and evidence created jury question as to whether coverage existed); Peters Township School Dist. v. Hartford Acc. & Indemn. Co., 833 F.2d 32 (3d Cir.1987) (schools damaged by subsidence in mines inactive for nearly 50 years; court held that earth movement exclusions have historically related to natural, catastrophic earth movement; because mine subsidence was not “natural” but the result of man’s activity, coverage existed under policy); Jones v. St. Paul Ins. Co., 725 S.W.2d 291, 294 (Tex.Ct.App.1986) (court found earth movement exclusion unambiguous, but concluded that settling of policyholder’s house resulting from soil contracting as it dried was not “earth movement” as contemplated by the policy. “The earth movement exclusion contemplates abnormally large movements such as the examples listed.”); Villella v. Public Employees Mut. Ins. Co., 106 Wash.2d 806, 725 P.2d 957 (1986) (building contractor negligently failed to provide proper drainage around policyholder’s house, causing foundation to be undermined and house to settle; insurance company argued coverage precluded if earth movement contributed to the loss, “regardless how slight in degree;” court disagreed, holding that if negligent construction was the efficient proximate cause of loss, coverage existed); Henning Nelson Constr. Co. v. Fireman’s Fund American Life Ins. Co., 383 N.W.2d 645 (Minn.1986) (“[T]he earth movement exclusion must be construed to apply to earth movements caused by widespread disasters and not to those caused by human forces.” Court found coverage when eight possible man-made causes combined on construction site to push earth against foundation wall and cause its collapse); Ariston Airline & Catering Supply Co. v. Forbes, 211 N.J.Super. 472, 511 A.2d 1278 (1986) (earth movement exclusion limited to natural phenomena akin to earthquakes, landslides or floods; exclusion did not exclude coverage for frost-heave damage to freezer floor caused by design and construction defects); United Nuclear Corp. v. Allendale Mut. Ins. Co., 103 N.M. 480, 709 P.2d 649 (1985) (earthen dam collapsed due to “differential settling,” releasing 94 million gallons of uranium tailings; applying doctrine of ejusdem generis, court construed term “earth movement” to cover only natural phenomenon, and exclusion did not apply to the collapse of the dam); Holy Angels Academy v. Hartford Ins. Group, 127 Misc.2d 1024, 487 N.Y.S.2d 1005 (N.Y.Sup.1985) (policyholder’s building damaged by construction of subway tunnel; court held losses covered by policy, and found earth movement exclusion inapplicable because exclusion was only designed to remove from coverage losses occurring from natural causes such as earthquakes); Mattis v. State Farm Fire & Cas. Co., 118 Ill.App.3d 612, 73 Ill.Dec. 907, 454 N.E.2d 1156 (1983) (policyholder’s basement wall displaced by settling of backfill due to improper construction; court held earth movement exclusion was ambiguous, limited to same class as earthquake and landslide, and did not provide insurance company a basis for denial of coverage); Bly v. Auto Owners Ins. Co., 437 So.2d 495 (Ala.1983) (policyholder’s house damaged by vibrations from logging trucks; court held loss was outside earth movement exclusion because “the enumerated types of earth movement are all natural phenomena”); Barash v. Insurance Co. of North America, 114 Misc.2d 325, 451 N.Y.S.2d 603, 607 (1982) (fill beneath policyholder’s home decomposed and foundation collapsed; court held earth movement exclusion limited to “sudden earth movement on a large scale,” and deterioration of the fill beneath one house is not a large-scale earth movement; loss was outside exclusion); State Farm Ins. Companies v. Gilbert, 3 Ark.App. 52, 621 S.W.2d 880 (1981) (retaining wall collapsed into policyholder’s yard; court held that because exclusionary clause contained only the term “earth movement” alone without other limiting words, term was ambiguous and question of fact was created over meaning of the term); Peach State Uniform Service, Inc. v. American Ins. Co., 507 F.2d 996 (5th Cir.1975) (policyholder’s building collapsed when sewer caved in beneath foundation; court held loss outside policy exclusion for “other earth movement;” phrase was ambiguous, and would be construed to refer only to “phenomena related to forces operating within the earth itself’); Wisconsin Builders, Inc. v. General Ins. Co. of America, 65 Wis.2d 91, 221 N.W.2d 832 (1974) (policyholder-contractor built apartment building beneath bluff; to prevent landslides, policyholder filled space between building and bluff with twice the specified amount of fill; weight of fill dirt combined with bulldozer moving dirt caused apartment wall to collapse; trial court erred in defining earth movement as “all movements of the earth whether it be up, down or sideways;” term “earth movement” should be limited to same class of peril as earthquake and landslide, and case remanded for trial); Strubble v. United Services Automobile Association, 35 Cal.App.3d 498, 110 Cal.Rptr. 828 (1973) (insured’s home damaged by landslide triggered by earthquake; court held that because policy provided coverage for earthquake, landslide exclusion was inapplicable and coverage existed under policy); Vormelker v. Oleksinski 40 Mich.App. 618, 199 N.W.2d 287 (1972) (contractor ignored engineer’s report and built policyholder’s home on unstable soil; soil shifted, damaging home; insurance company asserted earth movement exclusion; court concluded that whether proximate cause of loss was earth movement (excluded) or improperly constructed foundation (covered) was a jury question); Gullett v. St. Paul Fire & Marine Ins. Co., 446 F.2d 1100 (7th Cir.1971) (boulders from retaining wall fell on policyholder’s building; court applied doctrine of ejusdem generis and held earth movement exclusion limited to earthquakes and landslides; jury question existed as to whether loss was caused by “falling objects” — a covered peril — or landslide — an excluded peril); Government Employees Ins. Co. v. DeJames, 256 Md. 717, 261 A.2d 747 (Md.App.1970) (foundation of policyholder’s house collapsed due to possible contractor negligence; court held that under doctrine of ejusdem generis, term earth movement was limited to “unusual movement” and not normal pressures and settling); Wyatt v. Northwestern Mut. Ins. Co. of Seattle, 304 F.Supp. 781 (D.Minn.1969) (contractor excavated property adjacent to policyholder’s home removing lateral support and damaging home; insurance company denied coverage citing earth movement exclusion; court limited exclusion to “occasional major disasters which are almost impossible to predict and thus insure against” such as earthquakes and floods; exclusion did not apply to earth movement events involving human action); General Ins. Co. of America v. Lapidus, 325 F.2d 287 (9th Cir.1963) (policy excluded coverage for settling but contained coverage for landslide; court found coverage existed for continuing slippage of soil around insured’s home); and Anderson v. Indiana Lumbermens Mutual Ins. Co., 127 So.2d 304 (La.App.1961) (policy excluded coverage for earth movement, but covered landslides; coverage existed for settling because it was a “collapse.”).
B. Jurisdictions that have concluded that earth movement exclusions are not ambigu'ous, and apply to absolve the insurance company from any liability under the policy regardless of the cause or type of earth movement, include: State Farm Fire & Cas. Co. v. Bongen, 925 P.2d 1042 (Alaska 1996) (construction company clear cut land above policyholder’s property; heavy rains caused mudslide that damaged property; court held that earth movement exclusion was unambiguous and precluded coverage); Kula v. State Farm Fire & Cas. Co., 212 A.D.2d 16, 628 N.Y.S.2d 988 (N.Y.A.D.1995) (water line from policyholder’s well ruptured, washing out dirt supporting one corner of house and damaging foundation; court found policy unambiguously excluded coverage for earth movement regardless of the cause, whether natural or human); Alf v. State Farm Fire & Cas. Co., 850 P.2d 1272 (Utah 1993) (water line to policyholder’s house froze and burst, washing away soil beneath tennis court and driveway; court found that while damage to the pipe was covered, policy unambiguously excluded coverage for earth movement); Schroeder v. State Farm Fire & Cas. Co., 770 F.Supp. 558 (D.Nev.1991) (water pipe ruptured, saturating soil and causing damage to policyholder’s building; court held policy unambiguous and excluded earth movement caused by “non-natural phenomena”); Millar v. State Farm Fire & Cas. Co., 167 Ariz. 93, 804 P.2d 822 (1990) (policyholder’s home damaged when soil beneath it sank due to water escaping from broken sprinkler system; court found earth movement exclusion unambiguous and denied coverage); Village Inn Apartments v. State Farm Fire & Cas. Co., 790 P.2d 581 (Utah App.1990) (water pipe ruptured, saturating soil beneath policyholder’s apartments and causing foundation to settle eight inches; earth movement exclusion unambiguous and precluded recovery); Nida v. State Farm Fire & Cas. Co., 454 So.2d 328 (La.App.1984) (policyholder’s home damaged when clay soil beneath home expanded and contracted; court found earth movement exclusion unambiguous and denied coverage); Stewart v. Preferred Fire Ins. Co., 206 Kan. 247, 477 P.2d 966 (1970) (policyholder’s home sank into mine shaft underlying property; court declined to apply ejusdem gen-eris, and held earth movement clause includes act originating from the carelessness of man); Underwood v. United States Fidelity & Guaranty Co., 118 Ga.App. 847, 165 S.E.2d 874 (1968) (city negligently widened creek, causing water to damage bridge serving as policyholder’s driveway; court found earth movement exclusion unambiguous, and because earth movement contributed to the loss, no coverage existed).
C. For additional sources, see B. Mattis, Earthquake and Earth Movement Claims Under Allr-Risk Insurance Policies in the New Madrid Fault Zone, 21 Mem.St. U.L.Rev. 59 (1990); B. Mattis, Earth Movement Claims Under All Risk Insurance: The Rules Have Changed in California, 31 Santa Clara L.Rev. 29 (1991). See generally, R. Brazener, Property Insurance: Construction and Effect of Provision Excluding Loss Caused by Earth Movement or Earthquake, 44 A.L.R.3d 1316 (1972).
. The March 2, 1994 report from engineer Eric G. Denemark to Mr. Rees stated:
Looking at the highwall from the Church Street end up to and past the Withrow's yard, there is evidence of other past rockfalls. We feel that this wall is inherently unstable and that these events will continue to occur over time. Immediately behind the Withrow home a large block is already wedged off the sandstone unit and sits, precariously and temporarily, on what is left of the underlying shale. This is an extremely dangerous situation that, in our opinion, places the Withrow home at immediate risk.
The situation behind your home has not advanced quite as far.... It is only a matter of time before it too will fail resulting in a rockfall similar to that which occurred last week.
Another factor perhaps worthy of consideration, is that, typically, small pieces of rock will "spall” off the wall sporadically but relatively continuously.... While the potential for structural damages is minimal, a relatively small fragment, grapefruit-size for example, can easily inflict a serious or fatal injury should it strike a person or animal. You may want to consider this when contemplating letting your children or pets play near the high-wall. We would consider anywhere in the backyard to be potentially dangerous.
. The Rees allege that after moving from their home they were unable to afford the mortgage payments. They were forced to convey the property back to the bank holding the deed of trust. The bank then moved the house and relocated it to another site.
As to the remaining houses, a letter from the City of Ripley Building inspector states that: Presently the houses are unsightly, unsafe, and are creating a health hazard. We are requesting they be torn down and removed from their location. We feel it would be unsafe to repair or rebuild either house at their present site. The city will not issue any building permit for rebuilding or repairing either house without first having the rockfall stabilizing and secured.
.Hobart M. King, an expert hired by the City of Ripley, stated in a letter to the mayor that:
Because the distinction between a rockfall and a landslide is sometimes important for insurance purposes, I made special effort to determine what had happened....
Mr. King discussed this distinction in his deposition testimony:
A. In a landslide, what you have is a mass [of] rock or soil that is sliding over an underlying surface. That sliding takes place across a plane. There is a plane or a surface of failure at the base of the moving material. When I was looking at what had happened in Spring Street, there was no surface of failure along which sliding occurred. Sandstone blocks had fallen from the higher elevation above that shale layer that I previously discussed was underneath the sandstone. So, those two reasons would be why I would call that a rockfall....
Q. Would you agree that a rockfall is a type of landslide?
A. No. Slide[s] take place over a surface of failure. A fall occurs when a piece of the earth has broken away and falls independently, no sliding involved.
. Allstate insured Mr. Withrow's home under a "Deluxe Homeowners Policy” which provided that Allstate would pay for any "sudden and accidental physical loss to the property described in the Dwelling Protection Coverage, except as limited or excluded by this policy.”
The State Farm Homeowners Policy (Special Form 3) provided to the Murrays and Rees indicates that the policy "insure[s] for accidental direct physical loss to the property described in Coverage A except as provided in SECTION 1— LOSSES NOT INSURED.”
. A provision in an insurance policy may be deemed to be ambiguous if courts in other jurisdictions have interpreted the provision in different ways. This rule is based on the understanding that "one cannot expect a mere layman to understand the meaning of a clause respecting the meaning of which fine judicial minds are at variance.” C. Marvel, Division of Opinion Among Judges on Same Court or Among Other Courts or Jurisdictions Considering Same Question, as Evidence That Particular Clause of Insurance Policy is Ambiguous, 4 A.L.R.4th 1253, § 2[a] (1981).
. While every insurance policy must be analyzed based upon its own language, numerous courts faced with analogous policy language have reached nearly identical conclusions. A clear majority of courts continue to find earth movement exclusions ambiguous, and limited in application only to naturally-occurring catastrophic events such as earthquakes. However, a few jurisdictions have concluded that earth movement exclusions are not ambiguous, and apply to absolve the insurance company from any liability under the policy regardless of the cause or type of earth movement.
A collection of these cases is found in Appendix A, attached to this opinion.
. As one court indicated, the efficient proximate cause rule is "a rule of construction because certain consequences follow from the terms of the contract and from a legal policy applicable to the situation. Insurers cannot circumvent the rule by redefining causation.” Sunbreaker Condominium Association v. Travelers Ins. Co., 79 Wash.App. 368, 375 n. 8, 901 P.2d 1079, 1082 n. 8 (1995) (citations omitted).
.Courts use varying terms such as "proximate cause,” "efficient proximate cause,” "efficient cause,” "predominant cause” or "moving cause.” As one court grappling with the meaning of the efficient proximate cause doctrine noted,
Regardless of the name of the doctrine or number of adjectives within it, the law requires a decision as to what event will be held accountable as the cause of the loss.... Given the weight of authority, [and] the similarity if not identicalness of efficient proximate cause to proximate cause ... the Court finds that the predominating cause of the loss is the appropriate standard.
Pioneer Chlor Alkali Co., Inc., v. National Union Fire Ins. Co. of Pittsburgh, Pa., 863 F.Supp. 1226, 1231 (D.Nev.1994). The court went on to say in a footnote that:
Although perhaps containing an unnecessary adjective, and not at all making the doctrine more clear, the Court will use the majority term "efficient proximate cause.” To invent a new term would only add to tire confusion in this legal nebula where case precedents filled with the legal jargon of efficient proximate cause offer little guidance in the doctrine's application and result.
Id., n. 6. We believe this reasoning is equally applicable to the instant case.
. By one commentator’s count, 34 jurisdictions (including West Virginia in LaBris v. Western National Ins. Co., 133 W.Va. 731, 59 S.E.2d 236 (1950)) have adopted some form of concurrent or proximate cause analysis in examining coverage under first-party and/or third-party insurance policies. See F. MacLaughlin, Third-Party Liability Policies: The Concurrent Causation Doctrine and Pollution Exclusions, 24 Brief 20, 22-23 (1995).
. A current revision to Appleman holds similarly:
Various problems occur where there is dual, concurring or intervening causation leading to the loss of claim for which coverage is sought. In such a situation, the reasonable expectations of the insured should be considered and upheld which usually means that coverage will be found.... [Tjhe court may utilize the rule that the efficient proximate cause rule permits a recovery under the policy where the loss occurs due to a loss from a covered peril which also sets into motion a chain of events occurring in an unbroken sequence culminating in damage from an excluded peril.
E. Holmes, 2 Appleman on Insurance 2d § 6.2 (1996).
. An example of the efficient proximate cause doctrine in action is Frontis v. Milwaukee Ins. Co., 156 Conn. 492, 242 A.2d 749 (1968). The policyholder owned the Frontis building, a four-story building sharing a common wall with an adjoining building. A fire in the adjoining building destroyed the building, requiring its demolition and removal. .The only fire damage caused to the Frontis building was a broken window. However, without the lateral support of the adjoining building, the shared common wall could no longer support the Frontis building, requiring the removal of the third and fourth floors of the Frontis building.
The court in Frontis was asked to address whether the removal of the top two floors of the Frontis building was a "direct loss by fire” within the meaning of an insurance policy. The court concluded that the loss was covered, holding that a fire can be the proximate, dominant, active and efficient cause of a loss even if the fire starts outside the insured premises and never extends to them in the form of combustion. 156 Conn, at 497, 242 A.2d at 752.
Another example is Brian Chuchua's Jeep, Inc. v. Farmers Ins. Group, 10 Cal.App.4th 1579, 13 Cal.Rptr.2d 444 (1992). The policyholder purchased earthquake insurance. An earthquake damaged an underground gasoline tank, and leaking gasoline damaged the soil. The insurance carrier refused coverage for the gasoline clean-up costs citing a pollution exclusion. The court determined that because the risk of earthquake was insured against, if "the trier of fact determines the earthquake was the efficient proximate cause of the leakage, the cleanup expenses will be covered.” 10 Cal.App.4th at 1583, 13 Cal.Rptr.2d at 446. Insurance companies sought to have Brian Chuchua's Jeep "depublished" by the California Supreme Court arguing its publication would compromise their pollution exclusions because it "mandates an analysis of whether, despite the exclusion, the cause of the loss is covered.” The Court refused to depublish the opinion. See Third-Party Liability Policies: The Concurrent Causation Doctrine and Pollution Exclusions, 24 Brief 20, 43 (1995).
For other examples, see Pioneer Chlor Alkali Co., Inc., v. National Union Fire Ins. Co. of Pittsburgh, Pa., 863 F.Supp. 1226 (D.Nev.1994) (rag negligently left in pipeline diverted flow of brine; brine concentrated in pipes corroding small holes; brine then mixed with chlorine creating acidic solution that corroded main pipelines, causing release of chlorine gas; insurance company refused coverage citing exclusion for losses caused by "corrosion;” district court ruled that jury question existed over whether rag or corrosion was the efficient proximate cause of loss); State Farm Fire & Cas. Co. v. Von Der Lieth, 54 Cal.3d 1123, 2 Cal.Rptr.2d 183, 820 P.2d 285 (1991) (policyholder alleged that third-party negligence by the state, county, developer and homeowners' association proximately caused landslide that damaged home; insurance carrier refused coverage under "earth movement” and “water damage” exclusions; court held that issue of whether third-party negligence was the efficient proximate cause of the loss was jury question); Wallach v. Rosenberg, 527 So.2d 1386 (Fla.App.1988) (next-door-neighbor failed to maintain sea wall and it collapsed during storm; collapse caused policyholder's sea wall to collapse; insurance carrier denied coverage under exclusion for "earth movement” or “water damage;” court held that jury question was created whether neighbor's negligence, a covered event, was the efficient proximate cause of the loss); and Vormelker v. Oleksinski, 40 Mich.App. 618, 199 N.W.2d 287 (1972) (contractor disregarded engineer's report that soil was unstable and built policyholder's house on soil; soil shifted and house damaged, and insurance carrier denied claim citing earth movement exclusion; court held that jury was properly instructed that if earth movement was the sole proximate cause of the collapse, it should return a verdict for defendants).
. "Before the doctrine of reasonable expectations is applicable to an insurance contract, there must be an ambiguity regarding the terms of that contract.” Syllabus Point 2, Robertson v. Fowler, 197 W.Va. 116, 475 S.E.2d 116 (1996). As noted previously, the policy language at issue in the State Farm policy is subject to several interpretations, and is therefore ambiguous.
. Another commentator reviewing similar State Farm policy language stated:
This [lead-in] clause, applied at face value, would clearly negate coverage in case of a concurring excepted cause. The clause may clear up any ambiguities in the minds of insurance counsel, but whether it would do so for the insurance consumer is questionable. Indeed, whether such a clause would actually be read by the insurance consumer is questionable. The change should have little impact on the objectively reasonable expectations of the insurance consumer. If anything, the clause is more confusing to the layman than was the old "contributed to, or aggravated by” exception.
Many courts allow recovery when an excepted cause acts concurrently with a covered cause despite increasingly explicit exclusionary language. This trend seems likely to continue regardless of the insurance industry's persistent efforts to refine their policies. Courts appear to look at the exclusionary language only to determine which causes or events are covered and which are not, and pay little attention to surplus verbiage. This approach is most likely explained as a sub silentio application of the doctrine of reasonable expectations.
R. Fierce, Insurance Law — Concurrent Causation: Examination of Alternative Approaches, 1985 S.IU.U.L.J. 527, 538 (1986).
. We acknowledge that jurisdictions are in conflict over the effect of the State Farm lead-in clause in landslide cases. At least two jurisdictions hold the clause has no effect on limiting coverage: California (Howell v. State Farm Fire & Cas. Co., 218 Cal.App.3d 1446, 267 Cal.Rptr. 708 (1st Dist.1990)); and Georgia (Cox v. State Farm Fire & Cas. Co., 217 Ga.App. 796, 459 S.E.2d 446 (1995)). At least five jurisdictions hold that the lead-in clause is enforceable: Alaska (State Farm Fire & Cas. Co. v. Bongen, 925 P.2d 1042 (Alaska 1996)); New York (Kula v. State Farm Fire & Cos. Co., 212 A.D.2d 16, 628 N.Y.S.2d 988 (N.Y.A.D.1995)); Utah (Alf v. State Farm Fire & Cas. Co., 850 P.2d 1272 (Utah 1993) and Village Inn Apartments v. State Farm Fire & Cos. Co., 790 P.2d 581 (Utah App.1990)); Nevada (Schroeder v. State Farm Fire & Cas. Co., 770 F.Supp. 558 (D.Nev.1991)); and Arizona (Millar v. State Farm Fire & Cas. Co., 167 Ariz. 93, 804 P.2d 822 (1990)).
We question the holdings of these latter jurisdictions, as they found the earth movement policy language to be unambiguous and clear, and suggested that the policyholder's reasonable expectations were more in line with being a "fervent hope usually engendered by loss.” Millar, 167 Ariz. at 97, 804 P.2d at 826. These latter jurisdictions also suggest that the policyholder and insurance company freely negotiated and defined the scope of coverage, and intended to exclude the efficient proximate cause doctrine. Such a position is contrary to the position we have taken in our case law that "[insurance contracts are notoriously complex ... and border on the status of contracts of adhesion. Under this view the insured and insurer do not stand in pari causa, and therefore, the insured’s assent to the agreement lacks completeness in relation to that of the insurer.” Bell v. State Farm Mut. Auto. Ins. Co., 157 W.Va. 623, 628-29, 207 S.E.2d 147, 150-151 (1974) (citations omitted). As we said in National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 741-42 n. 6, 356 S.E.2d 488, 495-96 n. 6 (1987):
While this rule may equitably be enforced with regard to a contract negotiated at arm's length between parties of reasonably equivalent bargaining power and signed by each, it would be unfair to apply the general rule in the case of the modern insurance contract. These policies are contracts of adhesion, offered on a take-it- or-leave-it basis, often sight unseen until the premium is paid and accepted, full of complicated, almost mystical, language. “It is generally recognized the insured will not read the detailed, cross-referenced, standardized, mass- produced insurance form, nor understand it if he does.” C & J Fertilizer, Inc. v. Allied Mutual Insurance Co., 227 N.W.2d 169, 174 (Iowa 1975); accord, 3 Corbin on Contracts § 559 (1960); Keeton, [Insurance Law Rights at Variance with Policy Provisions,] 83 Harv.L.Rev. [961] at 968 [1970]. The majority rule is that the insured is not presumed to know the contents of an adhesion-type insurance policy delivered to him, 7 Williston on Contracts § 906 B (1963), and we hereby adopt the majority view.
We therefore decline to follow these latter jurisdictions.
. See, e.g., Sentinel Management Co. v. New Hampshire Ins. Co., 563 N.W.2d 296 (Minn.App.1997) (contamination of apartment building by release of asbestos fibers constituted direct, physical loss to property under all-risk policy); Farmers Ins. Co. of Oregon v. Trutanich, 123 Or.App. 6, 858 P.2d 1332 (1993) (landlord-policyholder’s house contaminated by odors from methamphetamine lab run by subtenant in basement; cost of removing odors was a direct physical loss under policy); Western Fire Ins. Co. v. First Presbyterian Church, 165 Colo. 34, 437 P.2d 52 (Colo.1968) (policyholder-church, which was rendered unusable due to saturation of soil under and around church with gasoline, sustained a direct physical loss under policy). | [
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McCUSKEY, Justice:
This is an appeal from an election contest decision concerning the November 5, 1996 general election for a seat on the Calhoun County Commission. The appellant, Willis “Tom” Gainer (hereinafter “Gainer”), asks us to overrule the June 3,1997 final order of the Circuit Court of Calhoun County. Pursuant to that order, the circuit court disallowed as void all votes cast in the election for County Commissioner in Precinct No. 7 of Calhoun County, where Gainer’s sister served as a poll worker in violation of W.Va.Code § 3-1-28(a)(5) (1993). The practical effect of the lower court’s ruling was to remove the incumbent, Gainer, from his office as county commissioner and elect the appellee, David Barr (hereinafter “Barr”), to that office. The principal issue now before this Court is whether the remedy employed by the circuit judge was appropriate. For the reasons set forth below, we conclude that the remedy was proper, and, accordingly, we affirm the judgment of the circuit court.
I.
FACTUAL BACKGROUND
The November 5, 1996, general election in Calhoun County involved a race for the office of County Commissioner. Gainer, the Democratic nominee, was an incumbent County Commissioner. Barr was the Republican challenger.
Prior to the election, Patty Little, a member of the county Democratic Party Executive Committee, nominated Jackie Robinson as a poll worker for Precinct No. 7 of Calhoun County. Ms. Robinson had served as a poll worker in past.elections. More importantly, Ms. Robinson is Gainer’s biological sister, and Ms. Little was cognizant of that fact when she selected her to work the election. The testimony of Ms. Little suggests that she also knew it was illegal for a family member of a candidate to serve as a poll worker in the election. In addition, in the Spring of 1996, Ms. Little had attended a meeting of the Democratic Party Executive Committee during which the subject of candidates’ siblings serving as poll workers was discussed.
In October 1996, the Calhoun County Commission held a meeting at which it appointed as poll workers the nominees on a list submitted by the county Republican Party Executive Committee. At the time of the meeting, the county Democratic Party had not yet submitted its list of poll worker nominees. Consequently, the commission did not appoint Democratic Party poll workers at its October meeting.
After the October 1996 meeting of the county commission, different people on the Democratic Executive Committee submitted the names of the Democratic nominees for poll worker to Richard Kirby, the county clerk. A few weeks before the election, a list of nominees for Precinct No. 7 was delivered to him by Ms. Little. Ms. Robinson’s name was among those on the list. The county commission did not meet to appoint poll workers after the Democratic nominees were submitted to Mr. Kirby. Because the Democratic poll worker positions were not filled by the commission, Mr. Kirby, in his capacity as county clerk, filled the vacancies by appointing those persons who had been nominated by the Democratic Party, including Ms. Robinson. Like Ms. Little, Mr. Kirby knew that Gainer and Ms. Robinson were brother and sister.
On November 5, 1996, the general election was held. The election was conducted using paper ballots, and Ms. Robinson worked on the ballot counting board in Calhoun County’s Precinct No. 7. Upon entering the building where the Precinct No. 7 polling was conducted, and prior to casting their ballots, voters could see Ms. Robinson in the “counting room.”
Several voters at Precinct No. 7 noted Ms. Robinson’s presence as a poll worker. These voters knew that she was Gainer’s sister. One such voter indicated that she did not think Ms. Robinson’s service as a poll worker was proper. Another voter expressed her belief that Ms. Robinson would know for whom she had voted. A third voter testified that he specifically recalled seeing Ms. Robinson as he passed the counting room before casting his vote. Ms. Robinson was also observed outside the counting room by voters and fellow poll workers. She was seen in the area where the ballot box was located, getting coffee, walking down the hall to the restroom, and outside the building talking to her daughter.
Gainer was aware that his sister usually serves as an election poll worker. Consequently, according to his affidavit, he was not surprised that she did so in the November 5, 1996 election.
The county-wide, unofficial election results, as computed on November 5, 1996, from the ballot counters’ tally sheets, showed Gainer to be the victor county-wide with 1,313 votes in his favor and 1,289 votes for Barr, a margin of 24 votes. In Precinct No. 7 where his sister served as a poll worker, Gainer’s margin was more substantial with 164 votes for Gainer and 126 votes for Barr, a difference of 38 votes.
On November 12, 1996, the Calhoun County Commission, sitting as the Board of Canvassers, declared the official result for the Commissioner’s race to be 1,323 for Gainer and 1,300 for Barr, a margin of 23 votes. In Precinct No. 7, the count was 164 for Gainer and 130 votes for Barr, a 34 vote difference. Barr filed a demand for a recount, which was held on November 22, 1996, and certified by the Board of Canvassers on December 2, 1996. The final certified result was as follows:
Calhoun County: Gainer — 1,325 Barr — 1,298 (Gainer by 27)
Precinct No. 7: Gainer — 167 Barr — 127 (Gainer by 40)
On December 11, 1996, Barr filed objections with the county commission pertaining to the conduct of the election, the results, and the certification of those results. Among other things, he alleged that Ms. Robinson was legally disqualified from serving as a poll worker due to her relation to Gainer.
On January 29, 1997, the county commission conducted a hearing on Barr’s objections. Testimony and other evidence was presented, and a record was prepared. After the hearing, the commission voted on whether to sustain or reject Barr’s objections. Gainer abstained from the vote. The two remaining commissioners were unable to reach agreement. Thus, Barr’s objections were rejected, the recount was allowed to stand, and the results of the election to the Calhoun County Commission were certified.
Barr thereafter appealed to the Circuit Court of Calhoun County. On May 22, 1997, the circuit judge issued a Letter of Opinion, setting forth findings of fact and conclusions of law. Among other things, the circuit judge found that Gainer, Ms. Robinson, Ms. Little, and Mr. Kirby "knowingly and intentionally violated the provisions of WV Code § 3-1-28 prohibiting Jackie Robinson's service as a poll worker." On June 3, 1997, the circuit judge entered an order disallowing as void all votes cast for the office of County Commissioner in Calhoun County Precinct No. 7 in the November 5, 1996 election. It is from that order that Gainer appeals to this Court.
II.
STANDARD OF REVIEW
The standard of review on appeal of an election contest proceeding was articulated by this Court in Syllabus Point 6 of Brooks v. Crum, 158 W.Va. 882, 216 S.E.2d 220 (1975):
While the appellate court may examine the record in the review of election contests in order to reach an independent conclusion, it merely determines whether the conclusions of law are warranted by the findings of fact, and it will not, as a general rule, disturb findings of fact on conflicting evidence unless such findings are manifestly wrong or against the weight of the evidence.
III.
DISCUSSION
The issue before this Court is whether the circuit court utilized the appropriate remedy in disallowing as void all votes cast for the office of County Commissioner in the precinct where Gainer's sister served as a poll worker. We conclude that this remedy was entirely proper under the ~facts and circumstances of this case.
West Virginia Code § 3-1-28 (1993) provides unequivocally that
(a) To be eligible to be appointed or serve as an election official in any state, county or municipal election held in West Virginia, a person: ... (5) May not be the parent, child, sibling or spouse of a candidate on the ballot in the precinct where the official serves....
It is undisputed in this case that Gainer's sister's service as a poll worker at Precinct No. 7, where he was on the ballot, constituted a clear violation of this statute. Gainer argues that the statutory language is merely directory, not mandatory, due to the Legislature's use of the words "may not" rather than "shall not" in drafting the provision. The circuit court flatly rejected this semantical argi.iment, reasoning that
[t]o rely upon the absence of "shall not" as a basis for interpreting the statute as merely directory, would rob the statute of all meaning and effect and nullify its clear intent. This Court must conclude the legislature did not establish section 28's prohibitions and at the same time intend the prohibitions to be violated at the pleasure of election officials.
We, too, are unpersuaded by Gainer's argument. We observe that "all provisions of election laws are mandatory in the sense that they impose the duty of obedience upon those who come within their purview." 26 AM.JUR.2D Elections § 466 (1996). As this Court noted in Terry v. Sencindiver, 153 W.Va. 651, 658, 171 S.E.2d 480, 484 (1969), "[tithe voice of the public demands and our statutes are designed to produce elections free from fraud and illegality." In order to give effect to the manifest intent of the Legislature in enacting WVa. Code § 3-1-28(a)(5), we interpret the statute's prohibition as being mandatory and no less forceful than had its drafters used the word "shall" in articulating the qualities which render a person ineligible to serve as an election official in West Virginia.
Moreover, in Syllabus Point 2 of Pridemore v. Fox, 134 W.Va. 456, 59 S.E.2d 899 (1950), this Court held that
[un the absence of a showing of fraud or misconduct on the part of election officers, preventing a free expression of the will of the voters, and affecting the result of the municipal election, irregularities in the conduct thereof by such officers, not shown to have affected its result, will not vitiate such election.
Conversely, and implicit in this holding, is the proposition which we find applies in this case. That is, when misconduct on the part of election officers prevents a free expression of the will of the voters, and affects the result of the election, the irregularities in the conduct thereof by such officers operate to vitiate the election.
In this case, the circuit judge found that “a County Commissioner, a County Clerk, a member of a party executive committee, and a poll worker ... knowingly violated” the provisions of W. Va.Code § 3-l-28(a)(5). Upon a careful review of the record, it does not appear to us that these findings of fact are manifestly wrong or against the weight of the evidence, and, therefore, we will not disturb them. See Brooks, supra. In addition, we believe that it can be reasonably inferred, from the testimony adduced at the hearing before the county commission, that Ms. Robinson’s service as a ballot counter had a chilling effect on the free expression of the will of the voters in Precinct No. 7. Moreover, we find that there is convincing evidence that the result of the election was, in fact, affected by this misconduct. The margin in favor of Gainer in Precinct No. 7 (40 of 294 votes) was sufficient to change the outcome of the election. In other words, Gainer would not have won the election but for the vote spread in that precinct. Given this evidence, we conclude under Pridemore, supra, that the November 5,1996 election for Commissioner was vitiated by the misconduct in Precinct No. 7.
The Legislature has not crafted a remedy for a violation of W.Va.Code § 3-l-28(a)(5). Consequently, the task of fashioning a suitable remedy falls upon the courts. As stated earlier, in the case sub judice, the circuit court determined that it was necessary to disallow the votes cast for County Commissioner in Precinct No. 7. Thus, we proceed to consider whether the circuit judge erred in selecting this remedy.
In Syllabus Point 4 of Terry v. Sencindiver, supra, this Court stated:
Where illegal votes have been cast and have been commingled with the valid votes received in a precinct, making it impossible to purge such illegal votes, the entire vote of the precinct must be rejected if it appears that sufficient illegal votes were cast to affect, or leave in doubt, the result of said election.
While we do not imagine that the will of every voter in Precinct No. 7 was stifled by Ms. Robinson’s illegal service at the polls, it seems to us that the impropriety of her service was noted by a sufficient number of voters that the result of the county commission election in that precinct is irreversibly tainted. Because it would be impossible to purge only the tainted votes, it was necessary to reject all votes cast for County Commissioner in Precinct No. 7, which is precisely what the circuit judge did. Recognizing that the disenfranchisement of voters is not a matter to be taken lightly, the circuit judge narrowly tailored the remedy which he ordered so that only those votes cast in the Commissioner’s race in that precinct were disallowed. The voters’ choice in that precinct for all other offices was not disturbed.
Accordingly, under the circumstances of this case, we hold that when the sibling of a candidate for public office serves as a poll worker in a precinct where the candidate’s name is on the ballot, in violation of W.Va. Code § 3 — 1—28(a)(5) (1993), and there is evidence that the sibling’s presence at the polls prevented a free and full expression of the voters’ will and affected the result of the election, all votes cast in that precinct for that office are rendered invalid and should be disallowed.
In so ruling, we underscore that our foremost concern in the resolution of election disputes is the preservation of the sanctity of the vote. Thus, while even the partial disenfranchisement of voters should not be undertaken without all due caution, this Court will not countenance misconduct which imperils the voters’ choice. We uphold the circuit court’s order because it advances these ideals.
Affirmed.
. The transcript of a January 29, 1997 hearing in this matter before the Calhoun County Commission contains the following testimony by Ms. Little at page 53:
Q Were you aware when you nominated Jackie Robinson to work as a poll worker that she was, in fact, Tom Gainer’s sister and that was illegal?
A I did not even connect Tom and Jackie Robinson when I asked her to work.
Q You didn’t know she was his sister?
A I knew it, but it just — I didn’t even connect the two when I asked her to work.
Q Were you aware in general of the law prohibiting that?
A I knew that his wife or his mother or father or child could not work.
. Appellant Gainer sat as a member of the Board of Canvassers for both the official count on November 12, 1996, and the recount on December 2, 1996. The recount was certified by a vote of 2 to 1, with Gainer voting with the majority for certification. | [
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PER CURIAM.
The sole question in this appeal is whether “rent subsidies,” paid to Kings Daughters Housing, Inc., by the United States -Department of Housing and Urban Development to make decent housing available to certain elderly citizens, constitute “grants” within the meaning of the West Virginia sales tax law pursuant to W.Va.Code § 11-15-9. The Circuit Court of Berkeley County held that they were “grants” within the meaning of West Virginia sales tax law, and that, as a consequence, Kings Daughters Housing, Inc., was entitled to exemption from the West Virginia sales tax. In this appeal, the State Tax Commissioner claims that the circuit court erred in making this ruling and that the “rent subsidies” should not be considered “grants.”
I.
FACTUAL BACKGROUND
Kings Daughters Housing, Inc., which is classified as a charitable organization exempt from federal income taxation under Section 501(c)(3) of the Internal Revenue Code, is the owner and operator of a housing complex commonly referred to as “KD Court” located in Martinsburg, West Virginia. This complex provides housing and services to elderly persons with relatively low incomes. Although it is a charitable organization, less than one-half of its support is derived from gifts, charitable contributions, or membership fees. In fact, the majority of its funding comes from the United States Department of Housing and Urban Development in the form of housing assistance payments or “rent subsidies.” KD Court is not a profit-making operation, and there is evidence that, without the subsidy, it could not be self-sustaining.
West Virginia Code § 11-15-9 exempts charitable organizations from the requirement that the West Virginia sales tax be paid on sales and services. To receive the exemption, however, the charitable organization must receive more than one-half of its support from any combination of gifts, grants, charitable contributions, or membership fees. The particular language of W.Va.Code § 11-15-9, creating this exemption provides:
(6) Sales of tangible personal property or services to a corporation or organization which has a current registration certificate issued under article twelve [§ 11-12-1 et seq.] of this chapter, which is exempt from federal income taxes under Section 501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as amended, and which is:
ifc % ❖ ❖ * ❖
(C) A corporation or organization which annually receives more than one half of its support from any combination of gifts, grants, direct or indirect charitable contributions or membership fees;
The present action arose when the West Virginia Sales Tax Commissioner questioned whether the “subsidy payments” received by Kings Daughters Housing, Inc., were “grants” under this statute. If they were not, Kings Daughters Housing, Inc., which received the majority of its income from the subsidies, was not, in the Commissioner’s view, exempt from the West Virginia sales tax, even though it was a charitable organization.
After the question arose, Kings Daughters Housing, Inc., took the position, and argued, that the subsidies were “grants” within the meaning of W.Va.Code § 11-15-9, and that it was exempt from the sales tax. After considering the matter, the West Virginia State Tax Commissioner, in an administrative decision, held that the subsidy payments were not “grants” and that Kings Daughters Housing, Inc., was subject to the sales tax. Kings Daughters Housing, Inc., appealed that decision to the Circuit Court of Berkeley County. The circuit court, after hearing the arguments of the parties, interpreted the word “grants” in W.Va.Code § 11-15-9, to include the subsidies paid to Kings Daughters Housing, Inc., and it is from that decision that the State Tax Commissioner now appeals.
II.
STANDARD OF REVIEW
In Appalachian Power Company v. State Tax Department of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995), this Court indicated that review of a ruling interpreting a statute should be conducted on a de novo basis. Specifically, in Syllabus Point 1, the Court stated: “Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.”
III.
DISCUSSION
In Syllabus Point 3 of Ohio Cellular RSA Limited Partnership v. Board of Public Works of the State of West Virginia, 198 W.Va. 416, 481 S.E.2d 722 (1996), this Court recognized that:
“ ‘In the absence of any specific indication to the contrary, words used in a statute will be given their common, ordinary and accepted meaning.’ Syl. Pt. 1, Tug Valley Recovery Center, Inc. v. Mingo County Commission, 164 W.Va. 94, 261 S.E.2d 165 (1979).” Syl. Pt. 1, Pennsylvania and West Virginia Supply Corp. v. Rose, 179 W.Va. 317, 368 S.E.2d 101 (1988).
The common, accepted definition of a “subsidy” is:
A grant of money made by government in aid of the promoters of any enterprise, work, or improvement in which the government desires to participate, or which is considered a proper subject for government aid, because such purpose is likely to be of benefit to the public. [Emphasis added.]
Black’s Law Dictionary, Fifth Edition, 1979.
The fact that a “subsidy” is commonly considered a “grant” suggests to this Court that the circuit court was correct in ruling that the rent subsidies paid to Kings Daughters Housing, Inc., were “grants.”
In examining W.Va.Code § 11-15-9, the Court notes that the Legislature grouped “grants” with “gifts” and “charitable contributions.” In Syllabus Point 1 of Darlington v. Mangum, 192 W.Va. 112, 450 S.E.2d 809 (1994), the Court stated:
“ ‘It is a fundamental rule of construction that, in accordance with the maxim nosci-tur a sociis, the meaning of a word or phrase may be ascertained by reference to the meaning of other words or phrases with which it is associated. Language, although apparently general, may be limit ed in its operation or effect where it may be gathered from the intent and purpose of the statute that it was designed to apply only to certain persons or things, or was to operate only under certain conditions.’ Syllabus point 4, Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975).” Syllabus point 1, Banner Printing Co. v. Bykota Corp., 182 W.Va. 488, 388 S.E.2d 844 (1989).
Both “gifts” and “charitable contributions” involve the concept of donation, or the giving of something to accomplish charitable purpose. From the use of these associated words, the application of maxim ñoscitur a sociis indicates that the Legislature intended the term “grant” in W.Va.Code § 11-15-9, also to mean the giving of something to accomplish a charitable purpose. Rather clearly'the “subsidies” involved in the present case were given by the federal government to accomplish a charitable purpose, that is, to provide decent and affordable housing to low income elderly persons. This fact, along with the commonly accepted definition of a “subsidy,” leads the Court to conclude that the subsidies in question were, in fact, “grants” within the meaning of W.Va.Code § 11-15-9.
. Lastly, the Court notes that the documents filed in this case show that the payments made to Kings Daughters Housing, Inc., have ,been made by the federal government pursuant to the housing assistance provisions of Title 42 of the United States Code. That title specifically refers to such assistance as being a “grant”: “Housing assistance. The term “housing assistance” means, with respect to federally assisted housing, the grant ... provided for the housing under the provisions of law referred to in [§ 13641(2) ]....” [Emphasis added.] 42 U.S.C. § 13641(3).
After conducting a de novo review of the question presented on appeal, this Court concludes that the Circuit Court of Berkeley County properly characterized the “rent subsidies” in this case as “grants” and that the judgment of that court finding Kings Daughters Housing, Inc., entitled to the sales tax exemption should be affirmed.
The judgment of the Circuit Court of Berkeley County is, therefore, affirmed.
Affirmed.
. We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4 (1992).
.The circuit court specifically found:
1. That the sole issue before the Court is a question of law, to-wit: whether the "rent subsidy,” also referred to as "housing assistance payments,” paid to the Petitioner by the United States Department of Housing and Urban Development, which the Court will refer to as the "Section 8 subsidy," is a “grant,” within the meaning of that term as it is used in West Virginia Code § 11 — 15—9(f)(3).
2. That the West Virginia legislature has not statutorially defined the term "grant,” as it is used in W.Va.Code § 11 — 15—9(f)(3).
3. That the Tax Commissioner has not defined the term "grant” as it is used in W.Va.Code § 11 — 15—9(f)(3), by legislative rule or regulation.
4. That the Tax Commissioner cannot define the term "grant” as it is used in W.Va.Code §11-15-9(0(3), by administrative decision in contested cases.
5. That the Tax Commissioner has not defined the term "grant” as it is used in W.Va.Code § 11 — 15—9(f)(3), by the ruling below, but has only attempted to define what a "grant” is not.
6. That the term "grant” as it is used in W.Va.Code 11 — 15—9(f)(3), is not ambiguous, and therefore, must be given its plain and ordinary meaning.
7. That the Petitioner failed in the administrative hearing to present sufficient evidence that the purchases of repair parts, repair services or replacements for appliances were for repair or replacement of appliances installed in, affixed to or incorporated into the Petitioner's building.
WHEREFORE, it is hereby ORDERED and ADJUDGED, that the Section 8 subsidy paid to the Petitioner by (he United States Department of Housing and Urban Development is a grant, within the plain and ordinary meaning of the term as it is used in West Virginia Code § 11 — 15— 9(f)(3).
. Kings Daughters Housing, Inc.’s "KD Court” housing was constructed pursuant to 42 U.S.C. § 13641(2). | [
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WORKMAN, Chief Justice:
This case is before the Court upon the appeal of Charleston Area Medical Center (“CAMC”) and Janice Smith (“Appellant Smith”) (collectively “Appellants”) from the April 15, 1996, final order of the Circuit Court of Kanawha County denying the Appellants’ motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, arising from a December 15, 1995, jury trial wherein a verdict was returned in favor of the Appellee, Jana Lynn Tudor. The jury awarded the Appellee $86,157 in special damages for lost wages, $500,000 in general damages for “damage to professional reputation, emotional distress and mental anguish,” $1,000,000 in punitive damages against the Appellant CAMC, and $50,000 in punitive damages against the Appellant, Smith. The Appellants argue on appeal that the trial court erred: 1) in refusing to grant the Appellants’ motion for a directed verdict on the Appellee’s claim for constructive retaliatory discharge; 2) in submitting the Appel-lee’s claim for tortious interference with employment opportunities to the jury, said claim being unsupported as a matter of law; 3) in failing to grant defendants a directed verdict on the Appellee’s libel and slander claims; 4) in permitting the jury to consider the Appel-lee’s invasion of privacy claim, said claim being unsupported as a matter of law; 5) in admitting the de la Torre memorandum into evidence; 6) in admitting the videotape deposition of Betty Tiernan into evidence; and 7) in submitting the issue of punitive damages to the jury and in failing to grant the Appellants’ remittitur on the emotional distress and punitive damages awards. Based upon our review of the parties’ briefs, arguments, and all other matters submitted before this Court, we affirm the trial court’s decision, with the exception of the trial court’s denial of the Appellants’ motion for remittitur, which we reverse.
I. FACTS
The Appellee, Jana Lynn Tudor, was initially employed by CAMC in 1988 as a registered nurse. From March 11, 1991, until July, 1993, she worked in the Adolescent Unit (“unit”) at Women’s and Children’s Hospital. Her supervisor while working in this unit was Appellant Smith, who was also the nurse manager. From the time she began working in the unit, the Appellee requested the weekend night shift and worked it exclusively until she tendered her resignation in July of 1993.
The Appellee testified that she had also worked under the supervision of Debbie Carte, who was the nurse manager of the unit prior to Janice Smith. The Appellee stated that when she worked on the unit under Ms. Carte, she never worked alone, as there was always another nurse assigned to the unit. Problems on the unit began, according to the Appellee, when Appellant Smith took over the unit. Under Appellant Smith’s supervision, the Appellee testified that she was assigned to work the unit alone “most of the time.” The Appellee testified that her assignment to work the shift alone raised concerns in her mind regarding patient safety. She also testified that she “felt like it was inadequate care because I couldn’t be everywhere at one time.... ”
It is when the Appellee began to voice her concerns about having only one registered nurse assigned to a shift that “things went downhill[,]” according to her testimony. The first time the Appellee voiced her concern to Appellant Smith was in early October 1992. The Appellee testified that she left the unit to go into the Pediatrics Intensive Care Unit (“PICU”) to have another nurse witness the Appellee waste an unused portion of a narcotic. According to the Appellee’s testimony, Zella White, the nursing supervisor, came to the unit, found no nurse there, and waited in the unit until the Appellee emerged from the PICU. Ms. White questioned the Appellee as to why she had left the unit unattended. The Appellee proceeded to explain to Ms. White why she had left the unit. The Appel-lee also testified that she told Ms. White that there should be an additional nurse or care giver staffed on the unit.
Appellant Smith responded to the incident by issuing the following memorandum dated November 3, 1992, regarding “[l]eaving unit uncovered. 2 Rns needed:”
Zella shared ... [with] me your concern about not having 2 Rns on & going off the unit to waste a med. As Zella has already shared ... [with] you it was not necessary to leave the unit to waste a narcotic — it could have been left in lock up until supervisor came or when PICU nurse was free she could have come to you.
Unless the acuity warrents [sic] 2 Rns we cannot staff consistently ... [with] 2 Rns — we will be adding enough staff to always have 2, but when census ... [drops] the 2nd care giver may be pulled. If you have concerns, please let me know & I will come in to discuss them ... [with] you ... or if you have literature that supports your concern, please share it ... [with] me.
The Appellee testified that she never followed up with Appellant Smith’s invitation to present her with literature supporting her position.
The next time the Appellee raised any concern about the staffing problem was approximately one month later in November. At that time, the Appellee was on the floor alone when a seventeen-year-old adolescent girl needed to get out of the bed to use the restroom. The Appellee, without calling for any assistance, in contravention of hospital policy, got her up out of bed and into the bathroom, where the patient passed out. The Appellee tried to break the patient’s fall; however, the patient hit her head on the floor. Just as this occurred, Ms. White, once again happened to come on the floor. Ms. White assisted the Appellee in getting the patient into a wheel chair.
On November 8, 1992, in compliance with hospital policy, the Appellee completed an incident report. Under the section entitled “Suggestions For Prevention of Future Occurrences? (Corrective Action Plan),” the Appellee wrote “[a]lways have two people staffed on floor....” Upon receipt of this incident report, Appellant Smith called the Appellee into her office, along with Ms. White. According to the Appellee, Appellant Smith expressed concern to the Appellee about the comments she had written regarding two individuals staffing the unit. Essentially, Appellant Smith told the Appellee that staffing had nothing to do with the incident and, accordingly, her comments were incorrect. The Appellee testified that Appellant Smith got angry and upset with her over the comments.
According to the Appellee, Appellant Smith was so infuriated with her for suggesting on these occasions that two persons should always be assigned to the unit that she retaliated against her. First, according to the Appellee’s testimony, Appellant Smith instructed her to engage in unethical nursing practices concerning the disposal of narcotics. While the Appellee testified that it was unethical to lock up the unused portion of the narcotic until either a supervisor or PICU nurse could come to the unit, the Appellee was unable to cite to any applicable ethical provision or CAMC internal policy that contradicted Appellant Smith’s instructions.
Next, the Appellee alleged that in early 1993, she obtained information from another employee that her evaluation had been downgraded. The Appellee met with Johana McKitrick, the charge nurse at the time, who confirmed to the Appellee that Appellant Smith had requested that her evaluation be changed. The Appellee testified that when she inquired of Ms. McKitrick why this had occurred, Ms. McKitrick responded that, “Jana, I really — I can’t tell you, I don’t know. The only thing I can say is, I think she [Appellant Smith] just doesn’t like you for some reason, and I can’t give you the reason.”
The Appellee also introduced evidence that during this time period from November 1992 until July 1993, she made two to three requests to transfer off the unit. None of these requests resulted in an interview for the position she was attempting to transfer into. The Appellee, however, had been granted a transfer in September of 1992 into the PICU. The Appellee voluntarily turned down this transfer, even though the position paid the same salary and included the same benefits as she earned on the unit. Additionally, the Appellee claimed she was treated unfairly in her requests for vacation time. She requested the weekend of July 4, 1993, or the following weekend off and was denied that request. The Appellee testified that “most” of the other requests for time off during this same time period were granted.
The Appellee was absent from her assigned shifts on May 28, 29, and 30, 1993. The Appellee called in sick for those shifts on May 28, 1993. She later presented a physician’s note, dated June 3, 1993, advising her employer that she had been ill on those days. Under the CAMC attendance policy, which was admitted at trial, missing a shift scheduled the day before, the day of, or the day after a holiday resulted in two occasions of absence instead of the usual one. The CAMC attendance policy contained no provision for excused absences due to illness. Except for eight specifically stated exclusions from the policy, any day missed is treated as an absence.
The Appellee testified that she subsequently decided to leave CAMC and gave her two weeks notice on June 25, 1993. The Appellee testified that her sole reason for submitting her resignation was her belief that staffing on the unit was not going to change. According to Appellant Smith, when an employee terminates employment at CAMC, it is hospital policy that the manager complete a “Personnel Action Form.” As part of information provided on that form, the manager is required to state his or her opinion as to whether the employee should be rehired by CAMC. If the manager’s recommendation is that rehiring of the employee should not occur, the manager must specifically state reasons for that opinion. Appellant Smith indicated “no” on the form in response to the inquiry: “rehire? yes or no.” The reasons given by Appellant Smith for that opinion was “absentism” [sic]. The Appellant sent the form to the personnel office for inclusion in the Appellee’s permanent personnel file.
At the time the Appellee submitted her resignation, the evidence indicated that she had never been given a written warning for absenteeism during her five-year tenure at CAMC. On June 28, 1993, however, Ms. McKitrick, the Appellee’s charge nurse, issued a written warning to the Appellee for absenteeism. The written warning, prepared by Ms. McKitrick, and signed by Ms. McKi-trick and Appellant Smith, indicated that the Appellee had called in the day before a holiday and on the actual holiday and that the Appellee had been warned for this absenteeism offense on February 13, 1993. The Ap-pellee, however, testified that she had never received a verbal warning for absenteeism on February 13, 1993. Additionally, the Appel-lee produced the time card for Ms. McKitrick which indicated that she had not worked on February 13, 1993, the day the verbal warning was purportedly issued. Further, there was evidence that normally the verbal warnings, while not kept in the personnel file, were kept in departmental files. The departmental file did not contain a record of the alleged February 1993 verbal warning.
After leaving CAMC, the Appellee applied for various positions at several health care facilities, including Thomas Memorial Hospital (“Thomas”). The only place that afforded the Appellee an interview was Thomas. The Appellee interviewed with two head nurses at Thomas, and both nurses prepared favorable interview forms which indicated that the Ap-pellee should be hired. Records obtained from Thomas and introduced at trial indicated that Thomas’ personnel office telephoned Linda Honaker, a personnel assistant at CAMC, requesting a reference for the Appel-lee. Ms. Honaker reviewed the Appellee’s personnel file and informed the personnel office at Thomas that the Appellee had resigned and that she was recommended as a “no rehire” due to an absenteeism problem. Ms. Honaker testified that there was an unwritten agreement with Thomas and St. Francis that these hospitals, along with CAMC, would release rehire eligibility information over the telephone, despite the CAMC policy that written authorization was required before such information would be released.
When the Appellee was not hired by Thomas, she testified that she took steps to try to ascertain what type of information CAMC was providing potential employers about her. The Appellee hired Documented Reference Check (“D.R.C.”), a California company, that performs reference cheeks to find out what, if any, negative information is being disclosed about a person to potential employers. On October 3, 1994, Eileen de la Torre, a D.R.C. representative, contacted Appellant Smith by telephone requesting employment information about the Appellee. The report indicates that Appellant Smith told Ms. de la Torre that the Appellee had no noteworthy accomplishments; that her interpersonal skills with management were poor; that she had a tendency to brood and not express her needs clearly; that she had an attendance problem; and that Appellant Smith would not rehire the Appellee.
Appellant Smith vehemently denied ever having a conversation with Ms. de la Torre. The Appellant testified that the only conversation she ever had with anyone concerning the Appellee was the conversation previously mentioned, wherein she told someone at Strategic Ventures, Inc. (“SVI”) that the Appellee, while being a good nurse, did not like to work independently and had an absenteeism problem.
Finally, the Appellee offered the videotaped deposition of Betty Tiernan in evidence over the objection of the Appellants. Ms. Tiernan had been employed as a nurse in the medical intensive care unit at CAMC’s Memorial Division. She had never worked on the unit with either the Appellant Smith or the Appellee. She testified that she had also voiced concerns to both supervisors and others at CAMC about one nurse being assigned to a shift. Ms. Tiernan stated that when she voiced her concerns and complaints, she was invited to write a policy that would cover staffing and admission issues relating to her concerns. She was ultimately fired from CAMC for bringing a reporter into a CAMC management information meeting without the knowledge or permission of the speaker. She testified that she believed she was fired because she “wrote ... [a] letter to the newspaper and drew public attention perhaps in a negative light to CAMC.”
II. DISCUSSION
A. CONSTRUCTIVE RETALIATORY DISCHARGE
The first assignment of error concerns whether the trial court erred in refusing to grant the Appellants’ motion for a directed verdict on the Appellee’s claim for constructive retaliatory discharge. The Appellants contend that the Appellee failed, as a matter of law, to show that any of her actions were in support of a substantial public policy of this state and to establish the necessary elements of a constructive retaliatory discharge. In contrast, the Appellee maintains that the trial court did not err in submitting her claim to the jury because substantial public policies were involved in this case and ample evidence to sustain the finding of a constructive discharge was. presented to the jury.
Before undertaking a review of the error alleged, we set forth the standard of review to be utilized in syllabus point one of Alkire v. First National Bank, 197 W.Va. 122, 475 S.E.2d 122 (1996):
In reviewing a trial court’s denial of a motion for judgment notwithstanding the verdict, it is not the task of the appellate court reviewing facts to determine how it would have ruled on the evidence presented. Its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, in ruling on a denial of a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally insufficient to sustain the verdict, it is the obligation of the appellate court to reverse the circuit court and to order judgment for the appellant.
197 W.Va. at 124, 475 S.E.2d at 124, Syl. Pt. 1, in part. Further, in Dodrill v. Nationwide Mutual Insurance Co., 201 W.Va. 1, 491 S.E.2d 1 (1996), we stated that “[essentially, the same rules apply where motions for a directed verdict are implicated.” Id. at 9, 491 S.E.2d at 9.
In order to prevail under a constructive retaliatory discharge theory, the Appellee must prove that a “substantial public policy” of this state has been violated. As this Court held in the syllabus of Harless v. First National Bank (“Harless I”), 162 W.Va. 116, 246 S.E.2d 270 (1978):
The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer’s motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge.
Id. at 116, 246 S.E.2d at 271. “To identify the sources of public policy for purposes of determining whether a retaliatory discharge has occurred, we look to established precepts in our constitution, legislative enactments, legislatively approved regulations, and judicial opinions.” Syl. Pt. 2, Birthisel v. Tri-Cities Health Servs. Corp., 188 W.Va. 371, 424 S.E.2d 606 (1992). Finally, “[inherent in the term ‘substantial public policy’ is the concept that the policy will provide specific guidance to a reasonable person.” Id. at 372, 424 S.E.2d at 607, Syl. Pt. 3.
In numerous prior decisions, this Court has identified specific instances of what qualifies as substantial public policy. See, e.g., Syl. Pt. 4, Page v. Columbia Natural Resources, Inc., 198 W.Va. 378, 480 S.E.2d 817 (1996) (finding substantial public policy violation when at-will employee was discharged based on concern that employee has given or may be called to give truthful testimony in legal action); Syl. Pt. 4, Roberts v. Adkins, 191 W.Va. 215, 444 S.E.2d 725 (1994) (holding that cause of action for wrongful discharge may exist under West Virginia Code § 21-5-5, which sets forth criminal liability for employers who coerce employees to purchase goods in lieu of wages); Slack v. Kanawha County Hous. & Redevelopment Auth., 188 W.Va. 144, 423 S.E.2d 547 (1992) (finding generally that substantial public policy implicated where employee brings attention of federal prosecutors to improprieties in operation of housing authority); Syl. Pt. 2, Lilly v. Overnight Transp. Co., 188 W.Va. 538, 425 S.E.2d 214 (1992) (holding that substantial public policy is predicated upon West Virginia Code § 17C-15-l(a), § 17C-15-31 and § 24A-5-5Q), relating to operation of motor vehicle with brakes in unsafe working condition); Syl. Pt. 2, Collins v. Elkay Mining Co., 179 W.Va. 549, 371 S.E.2d 46 (1988) (holding that substantial public policy arises from West Virginia Mine Safety Act, West Virginia Code § 22A-1A-20); Syl. Pt. 2, McClung v. Marion County Comm’n, 178 W.Va. 444, 360 S.E.2d 221 (1987) (holding that substantial public policy is grounded in Wage and Hour Act, West Virginia Code § 21-5C-8); Syl. Pt. 2, Shanholtz v. Monongahela Power Co., 165 W.Va. 305, 270 S.E.2d 178 (1980) (holding that substantial public policy arises from Workers’ Compensation Act, West Virginia Code § 23-5A-1).
In the present case, the Appellee maintains that a substantial public policy emanates from West Virginia Code of State Regulations § 64-12-14.2.4(1987), which is a regulation promulgated by the West Virginia Board of Health and is part of a regulatory scheme governing the licensure of hospitals. That regulation provides that:
14.2.4. There shall be an adequate number of licensed registered professional nurses to meet the following minimum staff requirements:
d. A registered professional nurse shall be on duty and immediately available for bedside care of any patient when needed on each shift, 24 hours per day and seven days a week.
e. Licensed practical nurses as needed to supplement registered professional nurses in appropriate ratio to professional nurses.
f. Auxiliary workers as needed to provide physical care and assist with simple nursing and clerical procedures not requiring professional nurses.
Id. The above-referenced regulation not only mandates that an “adequate” number of registered nurses be available to meet “minimum” staffing requirements, but it also mandates that “[a] registered professional nurse shall be ... immediately available for bedside care of any patient when needed....” Id. (emphasis added).
The Appellants maintain that because this regulation is “too general to provide any specific guidance or is so vague that it is subject to different interpretations!;,]” they should not be exposed to liability under this Court’s pronouncements in Birthisel. See 188 W.Va. at 377, 424 S.E.2d at 612. In Birthisel, the plaintiff relied upon general admonitions relating to the requirement of good care for patients by social workers found in regulations established by the West Virginia Social Work Board as a basis for her retaliatory discharge claim, when she was forced to resign because of her failure to transfer data from various records onto master treatment plans. Finding that those general admonitions “contained] no specific provision relating to a patient’s record review” and were “extremely general,” this Court concluded that the regulations “d[id] not constitute a specific statement of public policy.” Id. at 379, 424 S.E.2d at 614. In arriving at this conclusion, we further noted in Birthisel, however, that “ '[t]he employer is bound, at a minimum, to know the fundamental public policies of the state and nation as expressed in their constitutions and statutes[.]’ ” Id. at 377, 424 S.E.2d at 612 (quoting Gantt v. Sentry Ins., 1 Cal.4th 1083, 1095, 4 Cal.Rptr.2d 874, 882, 824 P.2d 680, 688 (1992)).
In the instant ease, it does not take an in-depth analysis for this Court to hold that West Virginia Code of State Regulations § 64-12-14.2.4 sets forth a specific statement of a substantial public policy which contemplates that a hospital unit will be properly staffed to accommodate the regulation’s directive; to ensure that patients are protected from inadequate staffing practices; and to assure that medical care is provided to hospital patients, especially children and young adolescents, who must depend upon others to protect their medical interests and needs.
We now turn to whether the Appellee established the necessary elements of a constructive retaliatory discharge. The Appel-» lants argue that there is a complete absence of factual elements which substantiates a constructive discharge. The Appellants further allege that the Appellee was never threatened with discharge and was never urged to resign. Her pay and benefits were never reduced. Her job responsibilities were not altered in any way and there was no evidence of an unfair or unfavorable job. In other words, the Appellants argue that there was a lack of any evidence that the Appellee was involuntarily subjected to employment conditions that would force a reasonable person to end their employment, or that the conditions imposed upon her were different than those placed upon other employees. In contrast, the Appellee contends that there was ample evidence to sustain the jury’s finding of a constructive discharge.
Under the law enunciated by this Court in Slack v. Kanawha County Housing & Redevelopment Authority, 188 W.Va. 144, 423 S.E.2d 547 (1992);
[w]here a constructive discharge is claimed by an employee in a retaliatory discharge ease, the employee must prove sufficient facts to establish the retaliatory discharge. In addition, the employee must prove that the intolerable conditions that caused the employee to quit were created by the employer and were related to those facts that gave rise to the retaliatory discharge.
In order to prove a constructive discharge, a plaintiff must establish that working conditions created by or known to the employer were so intolerable that a reasonable person would be compelled to quit. It is not necessary, however, that a plaintiff prove that the employer’s actions were taken with a specific intent to cause the plaintiff to quit.
Id. at 146, 423 S.E.2d at 549, Syl. Pts. 5 and 6.’
In the present case, the evidence presented by the Appellee revealed that she regularly worked her shifts for over two years alone, without either another nurse or care giver to assist her. Moreover, at times, she was left alone on her shift to care for up to nine seriously ill patients. During this time peri od, the evidence indicated that the Appellee raised her concerns about the staffing situations to other nurses who worked in the unit. Twelve nurses on this unit ultimately requested and received transfers to other CAMC units. Moreover, after November 1992, the evidence established that she was the recipient of reprisals for voicing concerns about the staffing situation. First, she was reprimanded by Appellant Smith for placing those concerns in an incident report. Appellant Smith testified that she became angry with the Appellee over the comments. The evidence further revealed that in early 1993, Appellant Smith directed that the Appellee’s spring evaluation be downgraded, allegedly as a result of the complaints she made, which reduced her merit raise. The Appellee presented additional evidence that her requests for vacation time and her attempts to transfer to other units were denied. Finally, the Appellée testified that these working conditions became intolerable. She stated that she felt like the conditions were never going to change and that professionally and ethically, “I couldn’t be a part of that.”
In viewing the evidence in the .light most favorable to the Appellee, who was the non-moving party, it is clear that the Appellee presented sufficient evidence of constructive retaliatory discharge to send the issue to the jury. See Alkire, 197 W.Va. at 124, 475 S.E.2d at 124, Syl. Pt. l, in part. Consequently, we conclude that the trial court did not err in refusing to direct a verdict in favor of the Appellants on this issue.
B. TORTIOUS INTERFERENCE
The next alleged error concerns whether the trial court erred in submitting the Appellee’s tortious interference with employment opportunities claim for jury determination. The Appellants maintain that the Appellee’s claim' was based upon her allegation that CAMC and Janice Smith provided adverse information to prospective employers regarding the Appellee’s employment with CAMC. The Appellants contend, however, that the Appellee produced no definitive evidence that Appellant Smith ever communicated with a prospective employer about the Appellee and that the only evidence as to any communication by CAMC was the information conveyed to Thomas by Ms. Honaker, a personnel assistant at Women’s and Children’s, in response to an inquiry specifically authorized by the Appellee. With regard to the information provided by Ms. Honaker, the Appellants argue that it cannot form the basis for liability against CAMC because such information was protected by a release signed by the Appellee, was privileged, and was not tortious, because it was completely true. The Appellee contends, however, that the release provision on the Thomas application form did not absolve the Appellants of liability for wrongful conduct and that no qualified privilege applied to the Appellants’ malicious conduct against the Appellee.
This error is predicated upon the following release executed by the Appellee when she completed the employment application with Thomas: “I hereby authorize Herbert J. Thomas Memorial Hospital to make a thorough investigation of my past employments and all the facts stated on my application for employment. I release from all liability or responsibility all persons, places of business, and municipalities supplying such information.” It is well established in this jurisdiction that when a person gives another entity a release, the release does not absolve a party from liability for the party’s intentional, reckless or grossly negligent conduct. See Murphy v. North Am. River Runners, Inc., 186 W.Va. 310, 316, 412 S.E.2d 504, 510 (1991) (stating that “a general clause in an exculpatory agreement or anticipatory release exempting the defendant from all liability for any future negligence will not be construed to include intentional or reckless misconduct or gross negligence, unless such intention clearly appears form the circumstances”) (citing Restatement (Second) of Torts § 496B cmt. d (1963, 1964)). Moreover, “in order for the express agreement ... [to ‘release from all liability or responsibility all persons, places or business, and municipalities supplying such information’] to be effective, it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm.” 186 W.Va. at 316, 412 S.E.2d at 510.
It is undeniable that when the Appellee signed the above-mentioned information, she was not giving the Appellants carte blanche authorization to release false information about her. Further, the Appellee presented testimony from Appellant Smith herself that she had conveyed information to a potential employer over the phone, in violation of hospital policy, that the Appellee had an absenteeism problem and was a “no rehire” at CAMC. The evidence presented at trial demonstrated that the same employment information was conveyed by Ms. Honaker to Thomas.
With regard to the qualified privilege claimed by the Appellants,
[qualified privileges are based upon the public policy that true information be given whenever it is reasonably necessary for the protection of one’s own interests, the interests of third persons or certain interests of the public. A qualified privilege exists when a person publishes a statement in good faith about a subject in which he has an interest or duty and limits the publication of the statement to those persons who have a legitimate interest in the subject matter; however, a bad motive will defeat a qualified privilege defense.
Syl Pt. 4, Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994).
There was ample evidence presented to the jury from which it could find that the Appellants acted with a “bad motive” towards the Appellee. This evidence included Appellant Smith’s testimony that she was upset and angry when the Appellee stated in an incident report that the reason a patient fell was due to inadequate staffing. There was also evidence of: the Appellee’s requests for transfers and vacation requests that were denied; the Appellee’s narrative performance evaluation which was favorable; but, the accompanying numerical evaluation which was average, purportedly due to Appellant Smith’s request that the evaluation be downgraded; Appellant Smith’s violation of CAMC’s confidentiality policies when she shared negative information about the Appel-lee’s employment at CAMC over the telephone with a third-party outside CAMC; and the fact that the Appellee had no negative history of absenteeism in her personnel file until Appellant Smith placed it there after the Appellee had tendered her resignation which was also the same day that Appellant Smith indicated that the Appellee was a “no rehire” due to absenteeism. Thus,- there was a basis upon which the jury could have concluded that collectively this evidence revealed ill-will or malice between Appellant Smith and the Appellee.' This “bad motive” would necessarily defeat any qualified privilege defense asserted by the Appellants. Thus, the trial court did not err in submitting the tortious interference claim to the jury.
C. ALLEGED EVIDENTIARY ERRORS
The Appellants maintain that the trial court committed reversible error in admitting the de la Torre memorandum and in admitting the videotaped deposition of Betty Tiernan into evidence. It is important to note that
[t]he West Virginia Rules of Evidence ... allocate significant discretion to the trial court in making evidentiary ... rulings. Thus, rulings on the admission of evidence ... are committed to the diseretion of the trial court. Absent a few exceptions, this Court will review evidentiary ... rulings of the circuit court under an abuse of discretion standard.
Syl. Pt. 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).
With regard to the de la Torre memorandum, the Appellants assert that it was irrelevant, highly prejudicial and did not fall within the business records exception to the hearsay rule. First, the relevancy issue is easily resolved based upon our prior decision in McDougal, where we stated:
Rule 401 provides: “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Under Rule 401, evidence having any probative value whatsoever can satisfy the relevancy definition. Obviously, this is a liberal standard favoring a broad policy of admissibility. For example, the offered evidence does not have to make the existence of a fact to be proved more probable than not or provide a sufficient basis for sending the issue to the jury.
Id. at 236, 455 S.E.2d at 795. It is clear the report was properly admitted under West Virginia Rules of Evidence 401 and 402. The report demonstrated that Appellant Smith exhibited ill-will toward the Appellee. Further, it was relevant with regard to the Ap-pellee’s intentional infliction of emotion distress claim insofar as it clearly revealed the wrongful and deliberate sharing of the Ap-pellee’s negative employment history with a party outside of CAMC which was in clear violation of hospital policy.
Moreover, the report was properly admitted under the business record excep tion to the hearsay rule. See W. Va. R. Evid. 803(6). This Court has held that
“Records made routinely in the regular course of business, at the time of the transaction or occurrence, or within a reasonable time thereafter, are generally trustworthy and reliable, and therefore ought to be admissible when properly verified.” Syl. Pt. 4, State v. Fairchild, 171 W.Va. 137, 298 S.E.2d 110 (1982).
Syl. Pt. 3, Daniel B. ex rel. Richard B. v. Ackerman, 190 W.Va. 1, 435 S.E.2d 1 (1993).
In this case, Michael Rankin, the Chief Service Officer of D.R.C., testified that the de la Torre memorandum was prepared in the regular course of D.R.C.’s business activities on the same day that the reference check occurred. The report was prepared from the transcription notes taken during the reference check and the report was closely reviewed by the D.R.C. representative, in this case de la Torre, and a supervisor. Finally, in order to assure the accuracy of the report, it must be signed by the D.R.C. representative, in this case Ms. de la Torre, under penalty of perjury. Consequently, we cannot conclude that the trial court erred in admitting the de la Torre memorandum.
Next, the Appellants also assert that the Betty Tiernan videotaped deposition was improperly admitted under West Virginia Rule of Evidence 404(b) as similar acts evidence to prove CAMC’s improper motive and intent concerning the Appellee. The Appellants argue that not only did the trial court fail to conduct an in camera hearing, but that Ms. Tiernan’s testimony failed to meet the requisites set forth in State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994), for the evidence to be admissible. In contrast, the Appellee maintains that the evidence was properly admitted under Rule 404(b) to show the following:
1. That similar to Jana Tudor, Betty Tiernan was formerly employed as a nurse by CAMC.
2. That similar to Jana Tudor, Betty Tiernan voiced complaints to CAMC about unsafe staffing practices on her unit.
3. That similar to Jana Tudor, Betty Tiernan’s complaints related to the practice of assigning only one nurse on a unit.
4. That similar to Jana Tudor, Betty Tiernan was forced to leave her employment within a few months after making these staffing complaints.
5. That similar to Jana Tudor, Betty Tiernan subsequently encountered difficulties in finding other nursing employment in the Kanawha Valley area.
In McGinnis, we set forth the following procedure for evaluating the admissibility of Rule 404(b) evidence:
Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and 'arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court’s general charge to the jury at the conclusion of the evidence.
Id. at 151, 455 S.E.2d at 520, Syl. Pt. 2.
Contrary to the Appellants’ assertion, the trial court conducted an in camera hearing, wherein the court allowed the parties to submit briefs on the admissibility of this evidence, as well as to present oral argument on the issue. Further, the trial court reviewed the videotape and read the accompanying transcript prior to making its ruling. Upon this careful review of the evidence, the trial court concluded:
I think based on >the evidence that has been presented to the Court 'that I am prepared to make a finding that first of all, only as to the defendant CAMC — not as to the defendant Janice Smith, the defendant CAMC — that there certainly is more than a preponderance of the evidence that the defendant committed these acts.
I find that they in fact are similar in nature to the conduct, at least on certain of the counts or elements in this plaintiffs case. I am willing and will be telling— well, first of all, under 403, the Court finds that they are more relevant than they are prejudicial. Probative value is that which has been enumerated in all these in all these briefs and which I will be incorporating into an order.
I think this has been one matter that has been fully briefed by both sides. The Court will tell the jury that they can only consider this as to CAMC defendant and only on the issue of intent, motive and state of mind.
Based upon a review of the record in this case, this Court concludes that the lower court properly followed the procedure established by McGinnis for evaluating the admissibility of the similar acts evidence under West Virginia Rule of Evidence 404(b). Consequently, the trial court did not abuse its* discretion in allowing the evidence to be admitted.
D. EMOTIONAL DISTRESS AND PUNITIVE DAMAGES AWARD
The last issue concerns whether the trial court erred in failing to grant the Appel lants’ motion for remittitur on the emotional distress and punitive damages awards. The Appellants assert that the circuit court failed to recognized the dangers warned of by this Court in Harless v. First National Bank (“Harless II”), 169 W.Va. 673, 289 S.E.2d 692 (1982), and Dzinglski which were manifested in the jury’s verdict. The Appellants maintain that “[t]he ... [Appel-lee’s] paucity of evidence regarding the alleged emotional distress she suffered makes it obvious that, on its face, the jury’s award of $500,000 in damages for this claim was excessive and necessarily contained a punitive element.” The Appellee, however, asserts that the award of punitive damages was consistent with this Court’s decision in Harless II.
Much confusion has arisen regarding whether an award of punitive damages can be made where damages for intentional infliction of emotional distress have already been awarded. Today, we attempt to resolve this confusion. We begin by reexamining the first case in which we held that both damages for intentional infliction of emotional distress and punitive damages could be awarded. In Harless II, we held in syllabus point five that:
Because there is a certain openendedness in the limits of recovery for emotional distress in a retaliatory discharge claim, we decline to automatically allow a claim for punitive damages to be added to the damage picture. We do recognize that where the employer’s conduct is wanton, willful or malicious, punitive damages may be appropriate.
169 W.Va. at 674, 289 S.E.2d at 694, Syl. Pt. 5. We further stated that “ ‘[t]he recovery for emotional distress as well as other compensatory damages such as lost wages should adequately compensate the plaintiff.’ ” Id. at 692, 289 S.E.2d at 703. We also cautioned that “a claim for emotional distress without any physical trauma may permit a jury to have a rather open-hand in the assessment of damages. Additionally, a jury may weigh the defendant’s conduct in assessing the amount of damages and to this extent[,] emotional distress damages may assume the cloak of punitive damages.” Id. at 690, 289 S.E.2d at 702.
More recently, however, in syllabus point eight of Dzinglski we held:
In permitting recovery for emotional distress without proof of physical trauma when the distress arises out of the extreme and outrageous conduct intentionally caused by the defendant, damages awarded for the tort of outrageous conduct are essentially punitive damages. Therefore, in many cases emotional distress damages serve the policy of deterrence that also underlies punitive damages.
191 W.Va. at 281, 445 S.E.2d at 222, Syl Pt. 8. This holding in Dzinglski was predicated upon language from our previous decision in Mace v. Charleston Area Medical Center Foundation, Inc., 188 W.Va. 57, 422 S.E.2d 624 (1992), wherein we expressed “our concern that in cases where damages for emotional distress are sought, ‘a claim for emotional distress without any physical trauma may permit a jury to have a rather open-hand in the assessment of damages.’” 191 W.Va. at 288, 445 S.E.2d at 229 (quoting Harless II, 169 W.Va. at 690, 289 S.E.2d at 702); see also Wells v. Smith, 171 W.Va. 97, 104, 297 S.E.2d 872, 879 (1982) overruled on other grounds by Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991) (recognizing that cause of action for tort of outrageous conduct permits recovery of damages for emotional distress without proof of physical trauma where distress arises out of extreme and outrageous conduct intentionally or recklessly caused by defendant and that “[djamages awarded for the tort of outrageous conduct are essentially punitive damages”).
In Dzinglski, the lower court allowed the issue of punitive damages to go to the jury; however, the lower court struck the award of punitive damages based upon the defendant’s post-trial motion objecting to the award. Specifically, we stated that
[b]y allowing the jury to consider punitive damages, the trial court permitted the jury to stack punitive damages upon punitive damages, thereby effectively imposing two punitive damage verdicts against Weirton Steel for the same acts. The trial court’s decision to dismiss Mr. Dzinglski’s claim for punitive damages correctly avoided this double recovery.
191 W.Va. at 288, 445 S.E.2d at 229.
The quandary results because, according to Harless II, there are cases where both damages for intentional infliction of emotional distress and punitive damages are proper; but, by the same token, under Dzinglski, there are also circumstances where punitive damages are to be considered double recovery where damages for intentional infliction for emotional distress with no physical trauma are also awarded by the jury. In attempting to clarify the law on this issue, we focus on a delineation of specific circumstances under which jury awards for both intentional infliction of emotional distress and punitive damages will be considered a double recovery.
This issue arises in connection with claims of intentional infliction of emotional distress without proof of physical injury. See Harless II, 169 W.Va. at 690, 289 S.E.2d at 702 and Dzinglski, 191 W.Va. at 281, 445 S.E.2d at 222. In cases where the jury is presented with an intentional infliction of emotional distress claim, without physical trauma or without concomitant medical or psychiatric proof of emotional or mental trauma, i.e. the plaintiff fails to exhibit either a serious physical or mental condition requiring medical treatment, psychiatric treatment, counseling or the like, any damages awarded by the jury for intentional infliction of emotional distress under these circumstances necessarily encompass puni tive damages and, therefore, an additional award for punitive damages would constitute an impermissible double recovery. Where, however, the jury is presented with substantial and concrete evidence of a plaintiffs serious physical, emotional or psychiatric injury arising out of the intentional infliction of emotional distress, i.e. treatment for physical problems, depression, anxiety, or other emotional or mental problems, then any compensatory or special damages awarded would be in the nature of compensation to the injured plaintiff(s) for actual injury, rather than serving the function of punishing the defendant(s) and deterring such future conduct, a punitive damage award in such cases would not constitute an impermissible double recovery. To the extent that this holding conflicts with our decision in Dzinglski it is hereby modified. See 191 W.Va. at 281, 445 S.E.2d at 222, Syl. Pt. 8. Where a jury verdict encompasses damages for intentional infliction of emotional distress, absent physical trauma, as well as for punitive damages, it is incumbent upon the circuit court to review such jury verdicts closely and to determine whether all or a portion of the damages awarded by the jury for intentional infliction of emotional distress are duplicative of punitive damages such that some or all of an additional award for punitive damages would constitute an impermissible double recovery. If the circuit court determines that an impermissible double recovery has been awarded, it shall be the court’s responsibility to correct the verdict.
This holding is in no way to be construed as requiring corroboration of a plaintiffs intentional infliction of emotional distress claim, nor are we requiring the introduction of expert testimony to prove the plaintiffs claim. See Slack, 188 W.Va. at 152, 423 S.E.2d at 555; Syl. Pt. 4, Tanner v. Rite Aid of West Virginia, 194 W.Va. 643, 461 S.E.2d 149 (1995). All that we intend from this decision is that in order to collect damages for intentional infliction of emotional distress, as well as punitive damages in the same action, the jury must be presented with some quantifiable measure of compensatory damages sustained from the intentional infliction of emotional distress so that it is clear that those damages are not duplicative punitive damages.
The evidence presented by the Appellee in the instant case with regard to the mental and emotional damages she sustained was scant. The Appellee testified that “[t]hey [the Appellants] destroyed my professional reputation” and how she trusts people, that “they probably tore me down as a person, I think,” and that “I just am not happy, I’m depressed most of the time.” Additionally, the Appellee’s mother, with whom the Appel-lee resides, testified that her daughter was a “completely different person” who didn’t trust her family anymore because of what occurred. She also stated that her daughter had become irritable and withdrawn.
In light of the paucity of evidence presented by the Appellee with regard to the mental and psychological damages sustained as a result of the Appellants’ actions, this ease presents a prime example of the type of case originally contemplated by this Court in Dzinglski where the compensatory damages awarded for intentional infliction of emotional distress are indeed punitive in na ture. It is clear that in its award of damage for the Appellee’s emotional distress, the jury was, in effect, punishing the Appellants for their intentional and outrageous conduct. Accordingly, the trial court erred in not granting the Appellants’ motion for remitti-tur setting aside the punitive damages awards entered against them on the grounds that punitive damages are duplicative of the jury’s award of damages for intentional infliction of emotional distress. See Mace, 188 W.Va. at 67, 422 S.E.2d at 634 (upholding jury’s damage award for intentional infliction of emotional distress and finding punitive damage award unwarranted).
Based on the foregoing, the decision of the Circuit Court of Kanawha County is affirmed in part and reversed in part and remanded so that the trial court can enter an order remitting the punitive damages previously awarded in this case.
Affirmed, in part; reversed, in part; and remanded with directions.
. The judgment order was entered on January 2, 1996.
. According to the testimony of Darlene Sur-baugh, who was a registered nurse in the unit during the relevant time period, the unit had 14 beds and the ages of children on the unit ranged from 9 to 18 years. The nature of the illnesses of the children in this unit ranged from medical/surgical patients to patients with cystic fibrosis, cancer, seizure disorders and drug overdose. The unit also took overflow patients and often these patients were under the age of 9.
. The weekend night shift was from 7:00 p.m. Friday night until 7:00 a.m. Saturday morning, from 7:00 p.m. Saturday night until 7:00 a.m. Sunday morning, and from 7:00 p.m. Sunday night until 7:00 a.m. Sunday morning.
. According to Appellant Smith, when she became nurse manager, she began cost-cutting measures after careful assessment. One of those measures was to decrease staffing costs.
. According to the Appellee’s undisputed testimony, it was CAMC's policy that wasting of a narcotic was to occur when a patient needed part of a dosage of a narcotic. Under those circumstances, another registered nurse was required to witness the nurse draw the dosage and dispose of the remaining unused portion of the narcotic.
.Appellant Smith further testified that no other nurses ever complained about having only one nurse assigned to the shift. The Appellee, however, produced several nurses who testified that complaints by various nurses had been voiced over this staffing concern. The Appellee further voiced her concerns to several supervisory employees including Johana McKitrick and Darlene Surbaugh, the charge nurses for the unit, Darla Brumfield, a nursing supervisor, and Mike King, CAMC’s Vice President of Operations. The concerns raised by the Appellee with Mr. King occurred after the Appellee had left CAMC. Finally, Dr. Kisner testified that the Appellee had verbally told her that she had reported her concerns to Janet Fairchild, the executive secretary for the West Virginia Board of Nurse Examiners. There was, however, no further evidence offered by the Appellee to substantiate this claim.
. After the November 1992, the Appellee testified that an LPN was assigned to work the unit "[f]or a while.”
. Appellant Smith testified that she got upset with the Appellee over the comments, but the reason was the Appellee’s suggestion that "that I am putting a patient in safety hazards, because I would never, ever do that."
. Ms. McKitrick testified that she had given the Appellee a very favorable evaluation, which was reflected in her narrative comments. In addition to the narrative comments, there are also numerical ratings that actually determine what pay raises, if any, are given. According to Ms. McKi-trick, the highest numerical rating for ten different categories was an 8. Despite the favorable narrative commentary, Ms. McKitrick gave the Appellee a numerical rating of only 3.5 in half of the categories, which reflects an average performance. The Appellee testified that Ms. McKi-trick told her that after she showed the favorable narrative commentary with favorable ratings to Appellant Smith, Appellant Smith instructed her to lower the ratings that Ms. McKitrick was prepared to give. What favorable numerical ratings Ms. McKitrick would have given was not introduced in evidence at trial.
. Ms McKitrick denied that she told the Appel-lee that Appellant Smith asked that her evaluation be changed. Ms. McKitrick further denied that Appellant Smith had asked her to downgrade the Appellee's evaluation. The only evidence that would support that the evaluation was changed is that Ms. McKitrick's overwhelming favorable narrative commentary regarding the Appellee simply did not correlate with the numerical ratings on the same performance categories.
. According to Appellant Smith’s testimony, in the spring of 1993, the Appellee approached her and accused her of blocking the Appellee’s transfers within CAMC. Appellant Smith denied that she had ever done this. Appellant Smith also told the Appellee that she had never been contacted by any manager within CAMC and asked to give a reference with regard to the Appellee. Appellant Smith then testified that the Appellee asked her what recommendation she would give if asked. The Appellant told the Appellee "I would tell them she was a good nurse, but she had an absenteeism problem.”
. Appellant Smith testified that four other nurses on the unit had requested vacation time before the Appellee had and that, during prime vacation time, the rule is first come-first served.
. Further, under the attendance policy part-time employees, such as the Appellee, were to receive an oral warning if they incurred two occasions of absence within six months. If two additional occasions for absence occurred within six months of the oral warning, a written warning was given. Two more occasions of absence within six months of the written warning resulted in a one week suspension without pay. Two more occasions within six months of the suspension would result in the employee’s discharge.
. The Appellants produced evidence at trial which indicated that from the day the Appellee began in the unit until the day she resigned, she was scheduled to work 340 shifts and failed to appear for 33 of those shifts. This equates to an absenteeism rate of approximately 10%.
. The Appellee had received at least four other verbal warnings for absenteeism during her tenure at CAMC.
. Ms. McKitrick also did not note that absenteeism was a problem on her written evaluation of the Appellee in the spring of 1993.
. CAMC’s policy on release of employee information to parties outside the medical center is as follows: Strict guidelines are followed before information about employees is released to parties outside the Medical Center. The information which may be released is limited to job performance, dates of employment, verification of salary, and rehire eligibility which is released only upon written authorization of the employee. Telephone information is limited to verification of dates of employment, job title and salary. Addresses and telephone numbers are not released.
.While the Appellee had provided Thomas with written permission to inquire into her employment history with CAMC, CAMC was not in possession of that written authorization at the time Ms. Honaker gave Thomas the Appellee’s employment information.
. The Appellee testified that she paid $65 to obtain a report.
. Ms. de la Torre did not testify at trial. Instead, a reference check report was admitted in evidence under the business records exception. See W. Va. R. Evid. 803(6). The D.R.C. representative, in this case Ms. de la Torre, must be proficient in shorthand as a job requirement and initially records the entire telephone conversation between herself and the former employer, the Appellants in this case, using shorthand. Ms. de la Torree then prepares a report which is essentially a transcript of the telephone conversation that took place between herself and Appellant Smith. The report was admitted in evidence, over the Appellants’ objection, during the testimony of Michael Rankin, the Chief Service Officer of D.R.C.
. Appellant Smith specifically stated that the employee identified themself as being from Home Health Services, which is apparently a part of SVI. SVI is a related, but separate corporate entity from CAMC.
. The Appellee applied for a job with SVI in November of 1993.
. The trial court allowed the videotape deposition in under Rule 404(b) of the West Virginia Rules of Evidence, on the basis that it was evidence of similar acts by CAMC.
. The letter criticized CAMC for cutting nurses’ merit pay from 8 percent to 4 percent annually, for decreasing matching funds for nurses retirement accounts, and for reducing educational assistance and conference moneys for employees.
. At the outset, we note that the verdict form used allowed the jury to award both special (lost wages) and general (emotional distress, mental anguish, damage to professional reputation) damages as long as the jury found, by a preponderance of the evidence, that liability existed as to any one of the five cause of actions (retaliatory discharge, tortious interference, defamation, invasion of privacy and intentional infliction of emotional distress) alleged by the Appellee. The jury found liability existed as to every cause of action averred by the Appellee, including intentional infliction of emotional distress. The Appellants allege no error in submitting that cause of action to the jury and, in fact, state in their reply brief that "[tjhere was no opportunity for the ... Appellants to object to the submission of ... Appellee's emotional distress claim and punitive damage claim prior to the jury's verdict because ... [Appellee] was entitled to jury consideration of both elements of damages.”
We previously held with regard to general verdicts that
[w]here a jury returns a general verdict in a case involving two or more liability issues and its verdict is supported by the evidence on at least one issue, the verdict will not be reversed, unless the defendant has requested and been refused the right to have the jury make special findings as to his liability on each of the issues. Syl. Pt. 6, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct 384, 83 L.Ed.2d 319 (1984). Similarly, in cases such as the instant case, where the jury makes special findings, we will not reverse the verdict where multiple issues are presented, if the verdict is supported by the evidence on at least one issue. Consequently, because we uphold the lower court on both the constructive retaliatory discharge and tortious interference of employment opportunities issues, we find it unnecessary to address the assignments of error raised by the Appellants with respect to defamation and invasion of privacy.
. West Virginia Code of State Regulations § 64-12-14.2.4 (1987) was amended in 1994. The changes to § 64-12-14.2.4 were minor and have no impact on the outcome of this decision.
. The legislature authorized the West Virginia Board of Heath to enact such regulations governing hospitals in West Virginia Code § 16-5B-8 (1995) “to protect patients in institutions ... from detrimental practices and conditions, or to ensure adequate provision for their accommodations and care.” Id.
. The Appellee also introduced in evidence the hospital guidelines which indicated that more than one nurse or care giver was required on any give shift. Further, Rachel Byrd, CAMC’s Director of Nursing, testified that between 1991 and 1993, the unit was consistently understaffed according to CAMC's own Medicus records. According to Ms. Byrd, the practice of assigning only one nurse per shift on the unit also contravened internal policies adopted by CAMC’s nursing administrators which required a minimum of two care givers per shift. Finally, Dr. Deborah Kisner, Professor and Director of Nursing Education at Fairmont State College, testified that CAMC’s practice of routinely assigning only one nurse to the unit was unsafe.
.The Appellants also rely upon this Court’s decision in Bowe v. Charleston Area Medical Center, Inc., 189 W.Va. 145, 428 S.E.2d 773 (1993), to support their contention that the regulations relied upon by the Appellee did not constitute a substantial public policy. "Per curiam opinions [, however,] . .. are used to decide only the specific case before the Court; , everything in a per curiam opinion beyond the syllabus point is merely obiter dicta." Lieving v. Hadley, 188 W.Va. 197, 201, 423 S.E.2d 600, 604 n. 4 (1992).
. Whether the staffing practice at issue created a substantial danger to the safety of the public is a factual determination. Similarly, whether the employee was discharged for bringing attention to the staffing practice is also a factual determination in each case. See Lilly, 188 W.Va. at 541-42, 425 S.E.2d at 217-18 and n. 6.
. As previously mentioned. Appellant Smith testified that the rule regarding vacation time under the circumstances alleged was first come-first served, and four other nurses had already requested vacation time, prior to the Appellee's request being made. See infra note 12.
. While the Appellee claimed that Appellant Smith blocked her requested transfers, Appellant Smith testified that she had not blocked any of the Appellee's requested transfers and further, she had never been contacted by another manager within CAMC about the Appellee.
. We note that this Court makes no findings on these issues. The-Appellee’s evidence supporting her case was contested by the Appellants at every turn. The only question before us is whether sufficient evidence was presented to support the Appellee’s claim and to make the matter a jury question.
.The Appellee asserts in a footnote that "the '... [Appellants] were also procedurally barred from asserting this defense at trial since it was never properly pled as an affirmative defense as required by W.V.R.C.P. Rule 8(c).” The Appellants responded to this assertion raised by the Appellee in her response to the Appellants' motion before the lower court. The Appellants maintained that they could not have raised the release as an affirmative defense at the time their answer to the complaint was filed because they did not know that such release existed until it was produced during discovery. While the pleading of release is an affirmative defense that should be raised in an answer to a complaint, "West Virginia Rule of Civil Procedure 15(b) provides that when issues not raised by the pleadings ‘are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.’ ” State, Dep't of Health and Human Re sources, Child Advocate Office ex rel. Robert Michael B. v. Robert Mortis N., 195 W.Va. 759, 764, 466 S.E.2d 827, 832 (1995). It is clear, upon review of the record, that the issue was clearly tried by the “express or implied consent” of the parties, insomuch as the Appellee never raised any objection or made any argument with respect to this issue at trial. Id.
.Some jurisdictions have determined that a party’s attempt to absolve itself from liability for an intentional tort is against public policy. See Reece v. Finch, 562 So.2d 195, 200 (Ala.1990); Kellums v. Freight Sales Centers, Inc., 467 So.2d 816, 817 (Fla.Dist.Ct.App.1985). Other jurisdictions have simply held such exculpatory clauses invalid if they purport to exonerate a party from willful, wanton or reckless conduct or from an intentional tort. See Jones v. Dressel, 623 P.2d 370, 376 (Colo.1981); Winterstein v. Wilcom, 16 Md.App. 130, 293 A.2d 821, 824-25 (Md.Ct.App.1972).
. Whether the information released by CAMC and Appellant Smith concerning Appellee’s absenteeism problem that resulted in her "no rehire” status was false is not for this Court to determine as it was a question of fact for the jury to decide. See Crump v. Beckley Newspapers, Inc. 173 W.Va. 699, 710, 320 S.E.2d 70, 81 (1983) (stating that "th[e] controversy as to the underlying truth or falsity of the statements” is a question of fact for the jury).
. Again, whether such a bad motive or malice existed in this case was properly left for the jury to determine. See Syl. Pt. 3, Stewart v. Riley, 114 W.Va. 578, 172 S.E. 791 (1934) ("Given a privileged occasion and words within the scope of the privilege as established facts, the question of whether the utterance was malicious is for the jury.”).
. West Virginia Rule of Evidence 803(6) provides:
Records of regularly conducted activity. — A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
Id.
.We find that the Appellants’ contention that the de la Torre memorandum lacks a sufficient indicia of trustworthiness to be considered a business record is without merit. Further, the Appellants’ reliance upon Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645, reh'g denied, 318 U.S. 800, 63 S.Ct. 757, 87 L.Ed. 1163 (1943), to support their contention is factually distinguishable from the instant case. In Palmer, an accident report prepared by a railroad engineer in connection with a crossing accident was found inadmissible as a business record. The Supreme Court, in upholding the inadmissibility of the report, stated:
In short, it is manifest that in this case those reports are not for the systematic conduct of the enterprise as a railroad business. Unlike payrolls, accounts receivable, accounts payable, bills of lading and the like, these reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating, not in railroading.
Id. at 114, 63 S.Ct. 477; see In re Estate of Solomon ex rel. Solomon v. Shuell, 435 Mich. 104, 457 N.W.2d 669, 677 (Mich.1990) ("Palmer has subsequently been read to stand for the proposition that the trial court, in its discretion, may exclude evidence meeting the literal requirements of the business records exception where the underlying circumstances indicate a lack of the trustworthiness business records are presumed to have”). In the instant case, the trial court did not abuse its discretion in determining that the record had the necessary requisite of trustworthiness to compel its admission in evidence.
. West Virginia Rule of Evidence 404(b) provides:
(b) Other crimes, wrongs, or acts. — Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Id.
. The Appellants assert that the testimony was improperly admitted as a similar act because Ms. Tiernan never worked in the Adolescent Unit, never worked with the Appellee, and was never under the supervision of Appellant Smith. Further, according to (he Appellants, Ms. Tiernan was fired by CAMC for allegedly bringing a reporter to a meeting where the speaker did not know that the reporter was present, which is completely inapposite to the issues in the instant case.
. We have recognized the application of McGin-nis for purposes of determining the admissibility of Rule 404(b) evidence in the civil context in Stafford v. Rocky Hollow Coal Co., 198 W.Va. 593, 482 S.E.2d 210 (1996) (involving former employee’s wrongful discharge action against former employer, its president and parent corporations).
. The trial court offered a limiting instruction to the jury prior to the playing of the videotaped deposition.
. While the Appellants also couch this assignment of error in terms of the trial court erring in submitting the issue of punitive damages to the jury, the Appellants never objected to this at trial. Indeed, the Appellants offered their own jury instruction on the issue, as well as agreed to the issue being placed on the verdict form. Thus, we will only address the remittitur issue as it relates to whether the damages for intentional infliction of emotional distress and punitive damages awarded by the jury are duplicative under this Court's decision in Dzinglski. See 191 W.Va. at 281, 445 S.E.2d at 222, Syl. Pt. 8.
. See 191 W.Va. 278, 445 S.E.2d 219.
. In reviewing this issue in other jurisdictions, there is no clear majority view. The following jurisdictions have held that recovery for both punitive and emotional distress is double recovery. See Southern Gen. Ins. Co. v. Holt, 200 Ga.App. 759, 409 S.E.2d 852, 860 (Ga.Ct.App.1991), aff'd in part, rev'd in part, 262 Ga. 267, 416 S.E.2d 274 (Ga.1992)(stating that damages for intentional infliction of emotional distress and punitive damages "constituted impermissible double recovery” where suit brought against insurer for bad-faith refusal to settle underlying action); Kewin v. Massachusetts Mut. Life Insur. Co., 79 Mich.App. 639, 263 N.W.2d 258, 266 (Mich.Ct.App.1978) aff'd in part, rev'd in part, 409 Mich. 401, 295 N.W.2d 50 (1980)(stating that "we held that exemplary damages could not be recovered in this type of case because it was possible to recover damages for mental anguish and exemplary damages were intended to compensate for the same injuries” where mental anguish arose from insurer’s alleged bad faith refusal to honor valid claim); Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157, 165 (Ill.1961) (concluding where widow’s severe emotional distress arose from defendant’s threat to murder widow’s husband and fulfillment of threat that "punitive damages cannot be sanctioned as an additional recovery in ... [an intentional infliction of emotional distress] action. Since the outrageous quality of the defendant’s conduct forms the basis of the action, the rendition of compensatory damages will be sufficiently punitive.”).
Interestingly, even though the above-referenced jurisdictions have not specifically held that punitive damages constitute a double recovery only when there are damages for intentional infliction of emotional distress with no concomitant physical injury, in each of the above-cited cases, the facts of those cases are consistent with this distinction.
In contrast, other jurisdictions have found that punitive damages awarded in addition to damages for intentional infliction of emotional distress do not constitute a double recovery. See Heller v. Pillsbury Madison & Sutro, 50 Cal. App.4th 1367, 58 Cal.Rptr.2d 336, 350 (Cal.App.1996) ("punitive damages are recoverable for intentional infliction of emotional distress”); Hall v. May Dep't Stores Co., 292 Or. 131, 637 P.2d 126, 134-37 (Or.1981), abrogated on other grounds by McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841 (Or.1995) (stating that punitive damages are recoverable in principle under theory of intentional infliction of emotional distress); Gianoli v. Pfleiderer, 209 Wis.2d 509, 563 N.W.2d 562, 569 (Wis.Ct.App.), rev. denied, 211 Wis.2d 530, 568 N.W.2d 298 (Wis.1997) (upholding lower court’s award of punitive damages based upon action for intentional infliction of emotional distress); Hall v. Montgomery Ward & Co., 252 N.W.2d 421, 425 (Iowa 1977) (finding that employee was entitled to collect punitive damages as well as compensatory damages for intentional infliction of emotional distress).
. We recently held in syllabus point five of Stump v. Ashland, Inc., 201 W.Va. 541, 499 S.E.2d 41 (1997), that "[u]pon appropriate proof, both compensatory and punitive damages may be awarded to a plaintiff in an action for negligent infliction of emotional distress.” We also stated in Stump, however, that in a negligent infliction of emotional distress case, "the focus is on the seriousness of the emotional distress suffered by the plaintiff. The seriousness of this distress must be proved through the use of medical and psychiatric evidence.” 201 W.Va. at 552-53, 499 S.E.2d at 52-53 (emphasis added); accord Heldreth v. Marrs, 188 W.Va. 481, 491, 425 S.E.2d 157, 167 (1992).
. In Dzinglski, the plaintiffs claim for intentional infliction of emotional distress without physical trauma arose out of the plaintiffs employer's investigation of the plaintiff for alleged improprieties. See 191 W.Va. at 281-83, 445 S.E.2d at 222-24. Those improprieties included approving payment for salaried supervisory employees who performed no actual work and accepting kickbacks. Id. The jury awarded the plaintiff $500,-000 in compensatory damages, as well as punitive damages. Id. at 283, 445 S.E.2d at 224. The circuit court set aside the punitive damages award. Id.
. We do not by our opinion seek to blur the distinction between actual damages for emotional injury, damage to reputation and mental anguish (which are given as the result of and in an amount determined by the degree of a party's injury) and punitive damages, which are imposed in addition to such actual damages. In the instant case, however, we believe the jury clearly blurred this line, and the jury clearly incorporated punitive damages into its calculation of actual damages. | [
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WORKMAN, Justice:
Appellant Jacob Beard (hereinafter referred to as “Defendant”) seeks a reversal of the ruling issued by the Circuit Court of Greenbrier County on September 4, 1996, with regard to the circuit court’s conclusion following a Kastigar hearing that the State had not violated the use immunity agreement it entered into with Defendant. Upon a complete review of the transcript from the proceedings and the arguments of counsel, we determine that any possible error connected to the immunized testimony was harmless beyond a reasonable doubt and accordingly, we affirm the lower court’s ruling.
I. PROCEDURAL BACKGROUND
As a result of Defendant’s prior appeal to this Court in 1995 from his first degree murder convictions for the locally infamous “Rainbow murders,” we remanded for a Kastigar hearing to determine whether the State could prove that its indictment and conviction of Defendant were obtained without violating the use immunity agreement granted to Defendant in 1983. State v. Beard, 194 W.Va. 740, 756-57, 461 S.E.2d 486, 502-03 (1995). Since the trial court had failed to conduct a Kastigar hearing, -we held in Beard I:
[R]emand is necessary for the limited purpose of allowing the State the opportunity to prove that the evidence used to indict and convict Appellant was derived from legitimate sources wholly independent of his immunized testimony. If the State meets its burden, then Appellant’s conviction stands. Upon the failure of the State to make such a showing, however, the indictment must either be dismissed or a new trial awarded, unless the error is determined to be harmless beyond a reasonable doubt.
Id. Our ruing in Beard I was compelled by the United States Supreme Court’s decision in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), in which the Fifth Amendment’s protections against compelling an individual to testify against himself when viewed in conjunction with a federal use immunity statute were held to
provide!] a sweeping proscription of any use, direct or indirect, of the compelled testimony and any information derived therefrom.... This total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an ‘investigatory lead,’ and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures.
Id. at 460, 92 S.Ct. 1653.
On remand, a lengthy Kastigar hearing was held over a period of five separate days during which the State presented evidence from numerous individuals who were involved in either investigating or prosecuting Defendant for the Rainbow murders. In addition to cross-examining the State’s witnesses at the Kastigar hearing, Defendant testified as to matters relevant to the use immunity agreement and events transpiring thereafter. Following the conclusion of the evidence, the trial court ruled from the bench on July 9, 1996, and then issued its order reflecting such rulings on September 4, 1996. In its thorough twenty-six page order, the lower court carefully considered whether the State made direct or indirect use of the information offered by Defendant in connection with the grant of use immunity provided him by the State.
In its Kastigar order, the circuit court reviewed the testimony of each of the trial witnesses to explore whether the identity of those individuals and the information to which they testified were discovered as a result of information Defendant provided the State. With the possible exception of Christine Cook and Karen Willis, the circuit court concluded that each of the remaining witnesses were discovered independently. The trial court also ruled that Defendant’s time card reflecting his work record on the date of the murder could not be determined to have been located separate from information provided by Defendant. In considering whether the testimony of Ms. Cook and Ms. Willis and the time card’s introduction into evidence could have contributed to Defendant’s conviction, the circuit court concluded that such evidence was not inculpatory evidence. Given the absence of any incriminating evidence arising from the testimony of Ms. Cook, Ms. Willis, or the physical evidence of the time card, combined with the fact that the remaining evidence used to convict Defendant was obtained independently, the trial coui’t rejected Defendant’s position that his conviction had been obtained through tainted evidence.
II. STANDARD OF REVIEW
Our review of the circuit court’s ruling on the Kastigar issue is subject to the clearly erroneous standard. In United States v. Harris, 973 F.2d 333 (4th Cir.1992), the court stated in connection with its review of a Kastigar ruling, “[wjhen the [trial] court uses correct legal principles, its taint determination is a factual finding subject to review under the clearly erroneous standard.” Id. at 337 (citing United States v. Jones, 542 F.2d 186, 199 (4th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 375 (1976)).
The standards that the lower court was required to follow in making its Kastigar rulings were two-fold. First, the State had the burden of demonstrating by a preponderance of the evidence that the evidence used to indict and convict Defendant was obtained independent of any use-immunized testimony. United States v. North, 910 F.2d 843, 854, modified in part, 920 F.2d 940 (D.C.Cir.1990), cert. denied, 500 U.S. 941, 111 S.Ct. 2235, 114 L.Ed.2d 477 (1991). Then, if the trial court determines, as it did in this case, that the State has not met its burden with regard to any of the evidence, the court is required to make a determination of whether the admission of such non-independent evidence was harmless beyond a reasonable doubt. Since the record indicates that the trial court both understood and applied the correct burdens and standards in making its Kastigar ruling, we can reverse the decision below only upon a determination that the lower court was clearly erroneous.
III. DISCUSSION
A. The Investigation
The murders for which Defendant was convicted occurred on June 25,1980. Defendant first came under suspicion when he placed several anonymous phone calls to one of the victim’s parents in July 1982. As a result of a separate criminal matter involving misdemeanor charges of animal cruelty, Defendant entered into a use immunity agreement with the State on February 3,1983. See Beard I, 194 W.Va. at 755, 461 S.E.2d at 501. In exchange for a dismissal of the animal cruelty charges, Defendant agreed to provide the State with information regarding the Rainbow murders. The State granted Defendant immunity in connection with the Rainbow murders for any after-the-fact involvement he may have had, but expressly denied immunity to Defendant for involvement as either a principal or an accessory before the fact.
After signing the use immunity agreement, Defendant submitted to two polygraph examinations concerning his knowledge regarding the murders and his whereabouts on the date of the murders. Defendant consistently stated that he was at work at Greenbrier Tractor Sales on the date of the murder until around 1:00 p.m. when he went out in the field to do some work for a customer. He stopped by the store on his way home from work around 5:15 p.m. and then attended a school board meeting that evening around 7:00 p.m. He denied having any knowledge regarding the murders which had occurred on Droop Mountain, but indicated that on his way home from work around 5:80 p.m. he saw Christine Cook’s vehicle at an entrance to the Droop Mountain Park known as “Lover’s Lane.” Present with Ms. Cook, according to Defendant, were Paulmer “Buddy” Adkison and Bill McCoy, as well as two girls who might have been the Rainbow girls.
Apparently as a result of the information Defendant provided during his polygraph on February 3, 1983, Christine Cook was polygraphed on February 7,1983. Ms. Cook had previously been questioned by the State police twice and stated that she was not in the area of Droop Mountain after 3:00 or 4:00 p.m. on the date of the murders and had no knowledge regarding the murders. Although Defendant strenuously asserts that Christine Cook changed her testimony when she was polygraphed on February 7, 1983, the record does not support this assertion. According to the record, Ms. Cook first admitted to being with the group of “relevant necessary people” on Droop Mountain when she was re-questioned by the police on April 29,1992. At that time, she admitted to being on Droop Mountain with “Buddy” Ad-kison, Bill McCoy, Richie Fowler, Arnie Cut-lip, and Gerald Brown on the date of the murders, possibly as late as 5:00 p.m.
Three days after his polygraph, Defendant called Sergeant Robert Alkire of the State Police to tip him off to what is now believed to be a fabricated murder case known as the “corn chopper” incident. Defendant reported to Sergeant Alkire that another Rainbow member was murdered in September of 1980, and her body had been put through a corn chopper owned by Defendant. Although that case was ultimately closed when no body was ever discovered, Sergeant Alkire testified that he worked closely with Defendant chasing down leads, and as a result of Defendant’s cooperation with the State Police concerning that alleged incident, he was not being seriously pursued as a suspect in connection with the Rainbow murders during that time period. Sergeant Alkire further testified that the State Police were not actively investigating Defendant for the Rainbow murders from 1985 to 1991.
The Pocahontas County Sheriffs Department renewed its separate investigation into the Rainbow murders in 1985 when Jerry Dale took office as sheriff. During this period of the local investigation, deputy Allen Tracy made a handwritten note in 1986 regarding Alice Roberts that apparently was not fully investigated. At some point in 1990 or 1991, the Pocahontas County Prosecuting Attorney, Walt Weiford, encouraged the Sheriffs Department to share its investigato ry materials with the State Police. As a result of this late-coming cooperation, Sergeant Alkire saw deputy Tracy’s note regarding Alice Roberts and tracked down Mrs. Roberts. Mrs. Roberts directed Sergeant Alkire to her daughter, Pam Wilson, who actually saw two “hippie-type” women get into a blue van driven by Richie Fowler on the date of the murder. Ms. Wilson further testified at Defendant’s criminal trial that she believed she saw Bill McCoy and Winters “Pee Wee” Walton with Richie Fowler that afternoon. After being subjected to police interrogation, “Pee Wee” Walton told the State Police that he saw Defendant commit the murders. A second individual, Johnnie Lewis, similarly admitted that Defendant was the trigger man following police interrogation.
During this same time period — 1990 or 1991 — a separate incident occurred where a Rainbow member committed suicide in the Pocahontas County jail. After the suicide, a Rainbow family member advised the local law enforcement that they should renew their investigation into the Rainbow murders and specifically suggested that they speak to Tina Hirzel regarding her knowledge about the murders. When Tina Hirzel was questioned, she provided hearsay information that the murder victims had been picked up in Richie Fowler’s van and then she named four or five individuals responsible for the murders, one of whom was Defendant.
Additional trial witnesses were discovered during the 1991 phase of the investigation conducted pursuant to the joint efforts of the State Police and the Sheriffs Department. Steve Goode reported seeing the blue van at Gerald Brown’s residence on the evening of the murder. He indicated that Gerald Brown, Richie Fowler, and Defendant were at the Brown residence around 6 p.m. on the date of the murder. Mr. Goode testified that the Fowler van was backed into the Brown residence and that the three individuals were engaged in hosing out the van. Another individual, Mike Hively, observed the Fowler van at the Brown residence that same evening. William Scott testified that he saw Defendant driving out of Droop Mountain Park at approximately 3:30 or 3:45 p.m. at a high rate of speed on the date of the murder. Odessa Hively testified that she saw Defendant’s vehicle, but not him, at the entrance to Droop Mountain Park between 5:30 and 6:00 p.m. As to the time of the murders, Virginia Schoolcraft testified that she heard two rapidly-fired gunshots on the date of the murders between 4:00 and 4:15 p.m. In 1991, a statement was taken from an incarcerated Keith Cohenour concerning the fact that he had heard Defendant state, while at the Gerald Brown residence several months after the murders, that everyone should just keep their mouths shut.
On April 16, 1992, indictments for the Rainbow murders were issued against Defendant, Richie Fowler, Gerald Brown, Bill McCoy, Arnie Cutlip, “Pee Wee” Walton, and Johnny Lewis. Issues of police misconduct and questions regarding the credibility of the evidence resulted in the dismissal of these indictments on July 17, 1992. See Beard I, 194 W.Va. at 745, 461 S.E.2d at 491. On January 13, 1993, five of the original indict-ees, including Defendant, were re-indicted for the Rainbow murders.
B. The Indictment
Defendant argued below that the indictment issued against him was obtained in violation of Kastigar principles based on the fact that a statement he gave to Florida police upon his arrest for the Rainbow murders was read to the grand jury. Upon his arrest for the Rainbow murders in April 1992, Defendant provided a statement to the police after being Mirandized in which he stated his alibi for the date of the murders. Approximately one week before the indictment was issued, Defendant’s counsel wrote a letter to the Prosecuting Attorney demanding that exculpatory alibi evidence be presented to the grand jury. Rather than presenting numerous alibi witnesses, the State read into evidence the Florida statement which fully sets forth Defendant’s alibi.
The trial court found that because the State had an obligation to provide any exculpatory information to the grand jury, the reading of the statement to the grand jury was not a violation of Kastigar. Because there was no incriminating information in the Florida statement, we cannot find a Kasti-gar violation through the reading of the Florida statement to the grand jury.
C. The Conviction
Defendant argues that the State wrongly used evidence that it obtained from him following the use immunity agreement to obtain his conviction. Specifically, Defendant asserts that the State altered its position as to the time frame of the murders in order to refute his alibi defense. In addition, Defendant maintains that he led the police to Christine Cook and that she was the critical witness whose testimony resulted in his conviction. Defendant also claims that the State’s failure to take any steps whatsoever to isolate those individuals with knowledge of his statements made in connection with the grant of use immunity requires the conclusion that Kastigar has been violated given the likelihood that Defendant’s alibi information played a role in the way this case was both investigated and prosecuted.
1. Time Frame
As to the altered time frame contention, Defendant cites evidence presented at trial by the chief medical examiner, Dr. Irvin Sopher, and Elizabeth Johndrow. Whereas Dr. Sopher had initially estimated the time of death at 7:00 p.m. or later, at trial he altered his previous opinion by testifying that the murder could have been committed anytime between 4:00 and 8:00 p.m. The trial court, in its order, observes that time of death pronouncements are by their very nature subjective and not capable of scientific precision. With regard to Elizabeth Johndrow, the traveling companion of the Rainbow victims, the trial court took judicial notice of the fact that her initial statements that she separated from the victims in Richmond, Virginia, at noon on June 25, 1980, would not have physically permitted the women, who were hitchhiking, to be in Pocahontas County at the time of the murder.
Based on the foregoing, we do not find that the trial court was clearly erroneous in its ruling that no Kastigar violation arose by virtue of these two witnesses’ altered trial testimony. Moreover, we observe that there were other witnesses such as Steve Goode and William Scott, whose discovery and identity cannot be tied to Defendant, whose statements would support the State’s theory relative to an earlier time of death.
2. Christine Cook
Defendant strenuously argues that were it not for Christine Cook’s testimony, he would not have been convicted. According to Defendant, she is the only one who actually placed him on Droop Mountain on the date of the murder. In making this argument, however, Defendant omits reference to the two eye-witnesses in this case — “Pee Wee” Walton and Johnny Lewis. He also turns a blind eye to the testimony of William Scott indicating that he saw Defendant coming out of Droop Mountain Park at approximately 3:45 p.m. on the date of the murders.
Christine Cook never testified that she saw Defendant on the date of the murders on Droop Mountain. She consistently stated that she did not know who Defendant was and that he was not among the group of individuals with whom she was associating on Droop Mountain on that date. Only on further questioning by the State at trial, did Ms. Cook state that it was possible that Defendant was there, but she remained adamant in her position that she never saw him.
Defendant’s real concern with regard to Ms. Cook is that she identified the group of so-called “relevant necessary people” that were up on Droop Mountain on the date of the murder. While Ms. Cook did ultimately identify Bill McCoy, Gerald Brown, Arnie Cutlip, “Pee Wee” Walton, Johnnie Lewis, and Richie Fowler as being on the mountain that afternoon when she was re-questioned by the State Police on April 29, 1992, the police already had located through independent sources the two eye-witnesses to the crime — “Pee Wee” Walton and Johnny Lewis. And critically, they had been led to those individuals not by Christine Cook, but as a result of the note made by deputy Tracy in 1986 that Sergeant Alkire then investigated in 1990 or 1991, which led to Pam Wilson. Contrary to the position advocated by Defendant, Pam Wilson, rather than Christine Cook, was the lynchpin in the State’s investigation of Defendant.
D. Kastigar Ruling
The circuit court determined that, notwithstanding the State’s failure to completely satisfy the Kastigar requirements regarding the trial testimony of Christine Cook and Karen Willis, and the physical evidence of Defendant’s time card, such evidence could not have contributed to Defendant’s conviction because of its exculpatory nature. As stated above, the standard by which the trial court was required to examine the possible Kastigar violations was whether any error associated with the admission of this evidence is harmless beyond a reasonable doubt. See North, 910 F.2d at 854. In weighing the issue of whether evidence is harmless beyond a reasonable doubt, the United States Supreme Court stated in Chapman v. California, 886 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), that there are two approaches to such an inquiry: (1) was there “a reasonable possibility that the evidence complained of might have contributed to the conviction;” or (2) did the beneficiary of constitutional error prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Id. at 23-24, 87 S.Ct. 824 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)). In a subsequent case, Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), the Supreme Court examined the harmless error beyond a reasonable doubt standard in the context of a defendant’s denial of an opportunity to impeach a prosecution witness for bias and stated that a number of factors were to be considered: the importance of the witness’ testimony, whether the testimony was cumulative, the presence or absence of corroborating or contradicting testimony on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution’s case. Id. at 1438.
In making its determination that the possible error in introducing evidence from Ms. Cook, Ms. Willis, and the time card itself, was harmless beyond a reasonable doubt, the trial court exhaustively reviewed the evidence presented at trial and at the Kastigar proceedings to examine whether the evidence used to convict Defendant flowed from sources independent of the information provided by Defendant. The lower court concluded that the discovery of Pam Wilson by Sergeant Alkire in 1991 was independent of any information provided by Defendant and that she witnessed the two “hippie-type” girls “meeting the Rainbow murder vietims[’] description get into the van operated by Mr. Fowler, with Bill McCoy and Winters Walton present.” As to the two eye witnesses, “Pee Wee” Walton and Johnnie Lewis, the trial court determined that their names “in no way came through any information furnished or disclosed by” Defendant. The court went through this same process with the additional witnesses of Bill Scott, Steve Goode, Mike Hively, Odessa Hively, and Keith Cohenour, and determined that each of those witnesses was obtained separately from any information provided by Defendant. Upon our review of the record in this case, we cannot conclude that the lower court was clearly erroneous in ruling that any Kastigar violations that occurred in this case did not warrant a new trial as such error was harmless beyond a reasonable doubt.
While we uphold the trial court’s conclusion that the State’s indictment and conviction of Defendant were obtained by evidence procured independent of that information provided by Defendant, we feel compelled to make certain observations about the manner in which the State proceeded to investigate and prosecute this case following the use immunity agreement. The law is clear that once a defendant is granted use immunity, out of an abundance of caution, the State should, when possible, insulate any investigators and prosecutors who are familiar with the immunized statement from subsequent investigation and prosecution of the compelled witness and/or seal any incriminating documents obtained as the result of a grant of immunity. See Harris, 973 F.2d at 337. The preferred manner of proceeding, as the eleventh cirouit has articulated in United States v. Hampton, 775 F.2d 1479 (11th Cir.1985), is to establish certain precautions to insulate those individuals apprised of the immunized testimony:
Unless the government relies solely upon evidence obtained prior to the immunized testimony, the principles of Kastigar generally require (as a practical matter) a showing that prosecuting officials and their agents were aware of the immunity problem and followed reliable procedures for segregating the immunized testimony and its fruits from officials pursuing any subsequent investigations.
Id. at 1490 (citation omitted); see State v. Ely, 708 A.2d 1332, 1340 (Vt.1997) (observing that where there is widespread access to immunized evidence “it will be difficult, if not impossible, for a prosecutor ... to show non-use” and recommending that procedures be adopted “that will limit access to immunized evidence, and that persons who investigate or prosecute immunized witnesses be separate from those who had access to the immunized testimony”).
The record is clear in this case that both the primary investigator for the State Police, Sergeant Alkire, and the individual who prosecuted the case, Walt Wei-ford, were never removed from involvement after the use immunity agreement was signed. The trial court found that neither of these individuals had knowledge of the use immunity agreement until after Defendant was indicted for the murders in 1992 or 1993. As the First Circuit Court of Appeals observed in United States v. Serrano, 870 F.2d 1 (1st Cir.1989) the purpose of the Fifth Amendment’s protection against compelled testimony is not “automatically frustrated by the government’s mere exposure to immunized testimony.” Id. at 17. But, rather, it is the use that is made of such immunized testimony that calls into play the protections first enunciated in Kastigar. See Harris, 973 F.2d at 338 (citing United States v. Caporale, 806 F.2d 1487, 1518 (11th Cir.1986) cert. denied, 482 U.S. 917, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987)). Since Sergeant Alkire and Mr. Weiford played an ongoing role in this case, it is difficult to assume that they were investigating this case without some awareness of Defendant’s alibi defense. And based on this arguable cognizance of Defendant’s alibi, it is impossible to rule out the possibility that such knowledge played some role, no matter how minor or insignificant, in how the prosecution of this case progressed. Because we do not adopt the position announced by the Eighth Circuit in McDaniel regarding extending the protections of Kastigar to nonevidentiary uses, we cannot conclude that this intellectual awareness alone was sufficient to taint the entire prosecutorial process. As the court observed in United States v. Byrd, 765 F.2d 1524 (11th Cir.1985), “[t]he government is not required [in a Kastigar proceeding] to negate all abstract ‘possibility’ of taint. Rather, the government need only show by a preponderance of the evidence that, in fact, the evidence used was derived from legitimate, independent sources.” Id. at 1529 (quoting United States v. Seiffert, 501 F.2d 974, 982 (5th Cir.1974)).
Based on the foregoing, we affirm the decision of the Circuit Court of Greenbrier County.
Affirmed.
. Due to a change of venue motion, this case was tried in Greenbrier County, rather than in Pocahontas County where the murders actually occurred.
. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653,32 L.Ed.2d 212 (1972).
. Defendant had requested pre-trial that a Kastú gar hearing be held, but the trial court denied the motion. In its ruling from the bench on July 9, 1996, in connection with the Kastigar hearing, the circuit court acknowledged that when the issue of holding such a hearing was first raised, it "didn’t quite recognize the duties that were incumbent upon it, and did not do so at that particular point in time.”
. 18 U.S.C.i 6002(1994).
. Defendant was never compelled to testify in any proceeding in connection with his execution of the use immunity agreement.
. Because the evidence was controverted as to whether Sergeant Alkire actually retrieved Defendant's time card in 1982 after Defendant made phone calls to Mr. Durian, one of the victim's father, see infra note 8, or immediately following the execution of the immunity agreement, the trial court ruled that such evidence could not be viewed as having been obtained independent of any information provided by Defendant.
.Ms. Cook, who testified at trial regarding the identity of those individuals present on Droop Mountain on the afternoon of the murder, never identified Defendant as being present on that date. Ms. Willis, the records keeper at Defendant’s place of employment, testified that it was routine for employees of Greenbrier Tractor Sales to pencil in times on their time cards when they went out on a job to do work for customers. Defendant's time card for the date of the murder showed that he had clocked out at 1:15 p.m. and pencilled in a hand-written entry of 5:15 for his quitting time on the date of the murder.
.A tap was placed on Mr. Durian’s phone and Defendant's identity was discovered when he placed a second call to the same residence. During the phone conversation, Defendant indicated that the police were not doing their job with regard to investigating the murders and stated that his interest in the matter arose from the fact that he had a daughter. Defendant also stated that he was not the murderer.
. See Beard I, 194 W.Va. at 755, 461 S.E.2d at 501 (stating the text of the use immunity agreement).
. Although we ruled in syllabus point one of Beard I that polygraph evidence is not admissible evidence in a criminal trial, 194 W.Va. at 744, 461 S.E.2d at 490, we note that the polygraph tests administered to Defendant on February 3, 1983, clearly showed deceptive responses to questions related to the Rainbow murders. It is puzzling why, given Defendant's deceptive responses, he was not viewed by the state police, according to the testimony of Sergeant Alkire, as a serious suspect beginning in 1983.
. Several individuals confirmed Defendant's presence at the school board meeting on the evening of the murders.
. Defendant testified that Ms. Cook was sitting in the middle of the car’s front seat, that the Rainbow girls were in the backseat, and that Messrs. Adkison and McCoy were standing on either side of the vehicle.
. Christine Cook gave statements to the State Police regarding her knowledge of the Rainbow murders on July 4, 1980, and on September 8, 1982. She was immediately questioned by the police following the murders, apparently due to the fact that her boyfriend "Buddy" Adkison was considered a suspect. Thus, the police had clearly spoken to Ms. Cook before her name was ever provided by Defendant.
. This term was coined by the State in its prosecution of Defendant at trial and Defendant repeatedly uses this term on appeal to argue that Christine Cook was the critical witness to place the group of relevant individuals on Droop Mountain on the date of the murders.
. Defendant told Sergeant Alkire that "Buddy” Adkison and Arnie Cutlip brought the body of an already deceased girl to his property and that he witnessed the processing of the body through the corn chopper.
. Arnie Cutlip was held six months in jail for the "corn chopper” murder following a magistrate's finding of probable cause. The record suggests that no indictment was ever issued for the alleged murder.
. From the very beginning of the investigation, the State Police and the Sheriff's Department had conducted separate investigations into the Rainbow murders with little or no cooperation between the two divisions of law enforcement.
. The source of Ms. Hirzel's information was David Adkison, the brother of "Buddy” Adkison.
. When originally questioned in 1985, he stated that it was late in the afternoon. At trial he testified that he had gotten off work at 3:00 p.m., purchased gas, and then saw Defendant somewhere between 3:30 and 3:45 p.m. on that date while on his way home.
. Because Defendant had provided Mrs. Hively's name as someone who could verify his attendance at the school board meeting on the evening of the murder, he argues that her identity as a witness was not obtained independently. The trial court dismissed this contention due to the fact that Mrs. Hively's name had been noted separately back in 1986 by deputy Tracy.
. As Ms. Schoolcraft was interviewed by the state police on the day after the murders, there is no dispute that she was an independently discovered witness.
. The trial court rejected Defendant’s contention that Mr. Cohenour's name had been discovered as a result of Defendant having given the police the name of Lester Goode. Defendant argued that since Mr. Goode was a friend of Mr. Cohenour, Mr. Cohenour’s identity was not discovered independently. The trial court determined that Mr. Cohenour’s name had been noted independently by deputy Tracy in 1986 and was not in any way connected to information provided by Defendant.
. Mr. Cohenour testified that Defendant "told Gerald [Brown] to make sure that he kept his mouth shut and everything would be all right” and to ”[m]ake sure his peons did, too.”
. "Pee Wee" Walton and Johnnie Lewis were not re-indicted, as they had been given immunity by the State. Defendant was the only individual ever tried by the State for the Rainbow murders. The record is silent as to why the other individuals who were indicted for the murders were never brought to trial.
. The Florida statement contained the following information: (1) Defendant left work at 5:00 p.m. on 6/25/80; (2) Defendant called his wife before leaving work; (3) Defendant’s wife asked him to pick up milk on the way home; (4) Defendant and his wife planned to attend a school board meeting that evening at 7:00 p.m.; (5) Defendant stopped at J & K Market on the way home; (6) Defendant and his wife attended the School Board meeting; (7) Defendant’s wife left the meeting at 9:30 p.m. to go to work; and (8) Defendant got a ride home with Roger and Patty Pratt.
. The underlying concern in any Kastigar inquiry is that an individual not be compelled to give incriminating evidence in exchange for immunity that is then later used to secure a conviction against that person for the same crime about which he provided immunized testimony. See Kastigar, 406 U.S. at 453, 92 S.Ct. 1653. In marked contrast to the typical Kastigar scenario, none of the information that Defendant ever provided to law enforcement officials was self-incriminating.
. The State argues additionally, citing United States v. Lipkis, 770 F.2d 1447 (9th Cir.1985), that the Florida statement was outside the specific umbrella of the use immunity agreement. Since the use immunity afforded Defendant applied to statements made to West Virginia authorities, the State maintains that the Florida statement made a decade after the original immunity grant, post-arrest for a crime expressly outside the corners of the immunity agreement, and to authorities in a separate jurisdiction eliminates even the possibility that the Florida statement could be viewed as violating the use immunity agreement. Given the lower court's conclusion that the presentment of the Florida statement to the grand jury involved exculpatory evidence only, we need not further address this argument.
. Defendant seeks to have this Court extend the rulings of Kastigar and Harris in a fashion compatible with the Eighth Circuit Court of Appeals' decision in United States v. McDaniel, 482 F.2d 305 (8th Cir.1973). In that case, which is recog nized as the seminal decision on the issue of non-evidentiary uses of immunized testimony, the court of appeals held that the proscription against indirect use of immunized testimony announced in Kastigar extended to "all prosecutorial use of the testimony, not merely that which results in the presentation of evidence before the jury.” Id. at 311. As examples of proscribed indirect use, the McDaniel court identified "assistance in focusing the investigation, deciding to initiate prosecution, refusing to plea-bargain, interpreting evidence, planning cross-examination, and otherwise generally planning trial strategy.” Id. The Fourth Circuit has yet to adopt this approach and we do not resolve today whether non-evidentiary uses, such as those articulated in McDaniel, are included within the proscribed uses covered by Kastigar. We do note, however, that the Fourth Circuit made clear in Harris that investigatory use of immunized testimony falls within the umbrella of Kastigar's protections. 973 F.2d at 336-37.
. Because Defendant's alibi was stronger from 7:00 p.m. on when witnesses verified that he was in attendance at the school board meeting, Defendant argues that the State impermissibly used his alibi information to move the time of death forward to a time when his alibi was less tight.
. Defendant stresses that Ms. Johndrow had, prior to trial, stated on as many as eight separate occasions, that she was certain she had departed from the victims at noon on June 25, 1980.
.The trial court took judicial notice of the fact that approximately 4.5 hours of driving time were necessary to travel from Richmond, Virginia, to Pocahontas County, West Virginia. According to the trial testimony of Pam Wilson, she saw the two "hippie-type” girls get into Richie Fowler's van at approximately 3 p.m. on the date of the murder. Additional evidence concerning time that would impact on the likelihood that Ms. Johndrow was mistaken as to the date when she left the murder victims was offered through Virginia Schoolcraft who testified as to hearing two rapidly-fired gunshots between 4:00 and 4:15 p.m. on the date of the murders. While the trial court's conclusion that the traveling time between Richmond and Pocahontas County necessarily rendered Ms. Johndrow’s testimony regarding the date she departed from the murder, victims subject to alteration by the State, this conclusion is not unassailable. However, for the reasons stated in the text where we observe that the testimony of such irrefutably independent witnesses as William Scott and Steve Goode may have suggested a need to reconsider what time the murders occurred, we do not find reversible error in the possibility that Ms. Johndrow’s departure testimony may have been altered with awareness of Defendant’s alibi.
. See supra note 14.
. While the trial court, in its Kastigar order, attributes the location of Pam Wilson to information provided by Tina Hirzel, the evidence presented at the Kastigar hearing clearly demonstrates that Ms. Wilson's identity resulted from deputy Tracy's handwritten note in 1986. Regardless of which of these individuals led to Ms. Wilson, she was discovered independent of any information provided by Defendant.
.See supra note 7.
. Although Defendant had provided Mrs. Hively's name as a witness to his school board attendance, see supra note 20, the trial court determined that her testimony regarding spotting Defendant's truck unattended between 5:30 and 6:00 p.m. on the date of the murders was not connected to any information that Defendant had provided.
. One other ground upon which Defendant relies to assert a violation of Kastigar was the State’s cross-examination of Defendant by reference to a statement given to police under Defendant’s grant of use immunity. At trial, when Defendant testified that he had not seen Bill McCoy on the date of the murders at Droop Mountain Park on his way home from work, his prior statement was briefly used as a tool to refresh his recollection. Defendant argues that under New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 59 L.Ed.2d 501 (1979), the State's use of Defendant’s statement constituted reversible error. We do not find Portash to be controlling as the holding in that case was that testimony given before a grand jury under a grant of immunity cannot be constitutionally used to impeach a defendant at a subsequent proceeding. Id. at 459-60, 99 S.Ct. 1292. Given the limited and completely non-hostile manner in which Defendant’s prior immunized statement was used at trial merely to refresh his recollection, we conclude that this use does not come within the Kastigar concerns regarding use of compelled testimony. Furthermore, there was no mention during the cross-examination of the previous statement having been made under a grant of immunity.
. We are not unmindful of the fact that many rural areas in our state do not have the luxury of being able to transfer investigatory or prosecuto-rial duties to other police officers or prosecutors. Many West Virginia counties have only part-time prosecuting attorneys; a number of West Virginia counties have three or fewer deputies.
. While Mr. Weiford was an assistant prosecutor at the time, he signed the use immunity agreement.
. The record indicates that Defendant's counsel made Mr. Weiford aware of the use immunity agreement by letter dated January 8, 1993, just before the second indictment was returned against Defendant.
. We do observe, however, that the significant time lapse between the various investigations which were conducted by separate entities in this case somewhat reduces the likelihood that Defendant's alibi information first provided in 1983 was used when the investigation was renewed seven or eight years later. The investigation that began in 1990 or 1991 appears to have sprung up anew and to have been fueled almost entirely by new leads that were entirely independent of any information that Defendant may have ever provided to the state police in 1983.
. As the Fifth Circuit Court of Appeals observed in Serrano,
To what extent the Fifth Amendment's privilege against self-incrimination bars the nonevi-dentiary use of immunized testimony is a difficult question. Neither Murphy [v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964)] nor Kastigar addressed this question, and lower courts have disagreed on the issue. The commentators are also divided over this issue.
870 F.2d at 16-17 (rejecting notion “that all nonevidentiary use necessarily violates the Fifth Amendment” and citing federal court decisions as split on the issue of non-evidentiary use of immunized testimony); see Ely, 708 A.2d at 1339-40 (discussing split of authorities regarding nonevidentiary use); State v. Gault, 551 N.W.2d 719, 724-25 (Minn.Cl.App.1996) (recognizing divergence of opinion on nonevidentiary use of immunized testimony). | [
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PER CURIAM:
In this post-divorce visitation controversy, Mrs. Dorothy Hawk (hereinafter “Appellant”) appeals an order of the Circuit Court of Grant County denying her the visitation rights enumerated in a divorce order. The Appellant’s former husband, Mr. Cleo Hawk (hereinafter “Appellee”), had been granted custody of the parties’ two children. We reverse and remand for reinstatement of the visitation rights specified in the divorce order.
Pursuant to a December 17, 1996, final divorce order, custody of the parties’ two sons, Brian, born on February 26, 1983, and Derek, born on June 26,1985, was granted to the Appellee, with visitation to the Appellant. No objections were raised concerning the visitation or custody arrangements. In the presence of the Appellant’s counsel during the final divorce proceedings, the Appellee suggested that he would forbid his sons from visiting their mother after they became adults and would write them out of his will if they did so. Visitation with the mother did occur on December 18, 1996. The scheduled Christmas 1996 visitation did not occur, and there has apparently been only one visitation between the Appellant and her sons since December 1996.
On January 7, 1997, the Appellant filed a contempt motion seeking to enforce the visitation schedule set forth in the divorce order. During a February 5, 1997, hearing on that motion, the Appellee explained that the children did not wish to visit the Appellant. The lower court then asked the parents to leave, and the court questioned the boys regarding their visitation with the mother. From the record of that exchange, it appears that the boys were unable to provide the court with any explanation for their hesitance to visit the Appellant, and at the conclusion of the conversation with the boys, the lower court ordered a trial visitation scheduled for February 15, 1997, from 9:00 a.m. until 5 p.m. The order further indicated that the court would “contact the infant boys by phone and make inquiry as to all relevant matters regarding visitation. Thereafter, the Court shall determine if any further hearing is necessary and if not, shall enter a written opinion as to the issues presented in the Petition for Contempt.” The lower court apparently engaged in an ex parte communi cation with the boys at some time subsequent to February 15, 1997, of which we have no record.
In a March 24, 1997, written order, the lower court ruled that the Appellee was not in contempt. The lower court stated: "the court would find, if necessary, that Dorothy Hawk is the at-fault party to this divorce and the children are aware of this and it would be emotionally and psychologically damaging and not in the best interests of the children for the Court to force visitation."
The Appellant requests this Court's review, alleging that the lower court erred in (1) failing to find the father in contempt for violating the visitation order, and (2) failing to enforce that prior visitation order. We agree with the Appellant's contentions and reverse and remand for enforcement of the visitation schedule enumerated in the divorce order. As the Appellant asserts, the only factual basis the lower court offered for its conclusion that the boys should not visit their mother was the statement in the March 24, 1997, order to the effect that the mother was at fault in the divorce and that the children would be emotionally and psychologically damaged by forced visitation. No specific factual bases were offered for those conclusions.
Where the actions of the parent do not affect the child, we have been cautious in considering fault in the visitation determination. In David M. v. Margaret M., 182 W.Va. 57, 385 S.E.2d 912 (1989), for instance, the lower court had ruled that the mother and primary caretaker of the child was not a fit and suitable person to have permanent care and custody of the child based upon her sexual activities. 182 W.Va. at 59, 385 S.E.2d at 914. We held that the lower court erred by holding that three instances of sexual misconduct, occurring over two years, warranted a finding of unfitness, without evidence establishing that the child was harmed or that the conduct per se was so outrageous, given contemporary moral standards, as to call into question her fitness as a parent. 182 W.Va. at 72, 385 S.E.2d at 927.
In syllabus point four of J.B. v. A.B, 161 W.Va. 332, 242 S.E.2d 248 (1978), we explained:
Acts of sexual misconduct by a mother, albeit wrongs against an innocent spouse, may not be considered as evidence going to the fitness of the mother for child custody unless her conduct is so aggravated, given contemporary moral standards, that reasonable men would find that her immorality, per se, warranted a finding of unfitness because of the deleterious effect upon the child of being raised by a mother with such a defective character.
In J.B., we emphasized that the award of custody "should not be an exercise in punishment of an offending spouse. In punishing the offending spouse one may also punish the innocent child, and our law will not tolerate that result." 161 W.Va. at 345, 242 S.E.2d at 256. See also Kenneth L.W. v. Tamyra S.W., 185 W.Va. 675, 408 S.E.2d 625 (1991).
In syllabus point three of Hailer v. Hailer, 198 W.Va. 487, 481 S.E.2d 793 (1996), we explained as follows:
W.Va.Code 48-2--iS (1993) grants the circuit court in a divorce proceeding plenary power to order and enforce a noncustodial parent's visitation rights with his or her children. W.Va.Code 48-2--15(b)(1)(1993), visitation, provides, in pertinent part:
The court may provide for the custody of minor children of the parties, subject to such rights of visitation, both in and out of the residence of the custodial parent or other person or persons having custody, as may be appropriate under the circumstances. In every action where visitation is awarded, the court shall specify a schedule for visitation by the noncustodial parent.
Syl. Pt. 2, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).
We also expressed the concern for preserving the visitation rights of non-custodial parents in syllabus point nine of White v. Williamson, 192 W.Va. 683, 453 S.E.2d 666 (1994): "In considering visitation issues, the courts must be mindful of facilitating the right of the non-custodial parent to a full and fair chance to continue to have a close relationship with his children."
In syllabus point two of Mary Jean H. v. Pamela Kay R., 198 W.Va. 690, 482 S.E.2d 675 (1996), we explained that “[a] court, in defining a parent’s right to visitation, is charged with giving paramount consideration to the welfare of the child involved.’ Syl. Pt. 1, Ledsome v. Ledsome, 171 W.Va. 602, 301 S.E.2d 475 (1983).” We have also recognized, however, that total suspension of visitation is justified only under the most severe circumstances. In Mary Ann P. v. William R. P., Jr., 197 W.Va. 1, 475 S.E.2d 1 (1996), a case involving alleged sexual abuse and aggravated domestic violence, we acknowledged that upon certain occurrences, visitation could be suspended pending family therapy. We determined in Mary Ann P. that the record was “clear that forced visitation at this time would be detrimental to the children and futile on the defendant’s behalf without professional intervention.” 197 W.Va. at 8, 475 S.E.2d at 8; see also Lufft v. Lufft, 188 W.Va. 339, 343, 424 S.E.2d 266, 270 (1992) (explaining that the right to visitation is determined by considering the child’s welfare). Even under the egregious circumstances of Mary Ann P., we directed the lower court to determine a recommencement date for supervised visitation. 197 W.Va. at 8, 475 S.E.2d at 8 (citing Weber v. Weber, 193 W.Va. 551, 457 S.E.2d 488 (1995)). We specified that if no agreement regarding counseling could be reached, the lower court should “take any additional evidence needed and direct the participation in such counseling as a condition of the continuation of the plan for restoring visitation.” Id.
Based upon our analysis of the record and the arguments of counsel in the present case, we conclude that the action taken by the lower court was not justified. The record is silent regarding detriment to these boys occasioned by visitation with their mother. In addressing the sufficiency of a final order in a divorce proceeding, we explained in Province v. Province, 196 W.Va. 473, 473 S.E.2d 894 (1996), that “[t]he order must be sufficient to indicate the factual and legal basis for the family law master’s ultimate conclusion so as to facilitate a meaningful review of the issues presented. Where the lower tribunals fail to meet this standard — i.e. making only general, eonelusory or inexact findings — we must vacate the judgment and remand the case for further findings and development.” 196 W.Va. at 483, 473 S.E.2d at 904.
Where the reasons for a lower tribunal’s decision are not clearly identified within the order, we cannot conduct a meaningful review. As we specified in P.T.P., IV by P.T.P., III v. Board of Education of the County of Jefferson, 200 W.Va. 61, 488 S.E.2d 61 (1997):
Appellate courts, on review, rely heavily on the trial judge’s order; the order is extremely important. The order often assists appellate courts in understanding what the trial court did and why, and good orders often rebut allegations made by appealing parties in briefs and arguments. If the lower tribunal is interested in having its decision affirmed, then the lower court should assist the appellate courts by providing comprehensive, well-reasoned orders. Submission of a comprehensive order assists an appellate court in finding a way to affirm the lower court’s order.
200 W.Va. at 65, 488 S.E.2d at 65. We also expressed this concept in Harrison v. Ginsberg, 169 W.Va. 162, 286 S.E.2d 276 (1982), as follows:
Our function as a reviewing court is to review the record to determine if the evidence adduced below supports the findings of the inferior tribunal, and whether the tribunal’s conclusions follow from those findings. However, if the record of the proceedings below does not reveal those facts which were determinative of the ruling or the logic behind the ruling, we are powerless to review the lower tribunal’s action.
169 W.Va. at 170, 286 S.E.2d at 284.
Based upon the absence of a factual recitation of the justification for the lower court’s termination of parental visitation, we reverse the decision and remand for .the reinstatement of visitation rights, as expressed in the divorce order.
Reversed and remanded.
. We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4 (1992).
. The Appellant had filed for divorce on December 18, 1995, seeking custody of the two sons. The Appellee answered the divorce complaint and also sought custody of the sons. On January 11, 1996, the family law master granted temporary custody of the boys to the father, based upon their desire to be placed with the father, and visitation was granted to the Appellant. Problems with visitation allegedly began in February 1996 when the children expressed hesitance to visit the Appellant. | [
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Justice DAVIS delivered the Opinion of the Court.
Chief Justice ALBRIGHT and Justice STARCHER concur and reserve the right to file concurring opinions.
DAVIS, Justice.
The appellants herein and petitioners below, Warren Lee A., stepfather of the minor child Jon L., and Melissa A. A., biological mother of Jon L., appeal from an order entered September 24, 2004, by the Circuit Court of Roane County. By the terms of that order, the circuit court granted the relief requested by the appellees herein, Robin L. and Janet L., paternal grandparents of Jon L., and prohibited Warren and Melissa from changing Jon L.’s surname in connection with his adoption by Warren. On appeal to this Court, Warren and Melissa argue that the circuit court erred by refusing their request to change Jon’s surname commensurate with Warren’s adoption of the child. Upon our review of the parties’ arguments, the record designated for appellate consideration, and the pertinent authorities, we find that the circuit court erred by refusing to permit the requested name change. Accordingly, we reverse the circuit court’s ruling and remand this case for further proceedings consistent with this opinion.
I.
FACTUAL. AND PROCEDURAL HISTORY
The minor child who is the subject of these adoption proceedings, Jon C. L., was born on October 16, 1998, to his parents Jonathon Kelli L. and Melissa A.A. [formerly Melissa A. L.]. Jon’s parents, Jonathon and Melissa divorced in June, 2000, but shared his custody thereafter. On October 15, 2000, Jonathon died as a result of injuries he sustained in a motor vehicle accident. Shortly thereafter, Jonathon’s parents and Jon’s paternal grandparents, Robin L. and Janet L., filed an action for grandparent visitation with Jon, which visitation was granted and has since been modified as a result of Jon’s attendance of preschool.
On June 7, 2003, Melissa A.A. married her current husband, Warren Lee A., at which time Jon and Melissa moved into Warren’s home. Since Melissa and Warren’s marriage, Warren has interacted with Jon as a father figure, Jon regards him as such, and Jon sometimes even refers to Warren as “Dad”. Thereafter, on June 4, 2004, Warren, joined by Melissa, filed in the Circuit Court of Roane County a petition to adopt Jon. Included within the adoptive relief sought was also a request to change Jon’s name from Jon C.L. to Jon C.A. so that his surname and that of his parents, his biological mother and his adoptive stepfather, would be the same. In connection with the filing of the adoption proceeding, the circuit court appointed a guardian ad litem to safeguard Jon’s best interests. Also in conjunction with the filing of the adoption petition, notice of the pending adoption proceeding was provided to Robin L. and Janet L., who, as Jon’s paternal grandparents, were entitled to such notice as a result of the death of their son and Jon’s biological father, Jonathon.
The circuit court conducted a final adoption hearing in this matter on August 2, 2004. At that hearing, the grandparents appeared by counsel and orally objected both to the child’s adoption by Warren and to the proposed surname change. From the record, it is apparent that the relationship between Melissa and Robin and Janet is acrimonious, but that the grandparents have nevertheless been faithfully exercising their visitation with Jon in accordance with the order awarding them grandparent visitation. Furthermore, as a result of the unique nature of the adoption proceedings involving a stepparent in this ease, it is clear that the finalization of the adoption would not usurp their right to grandparent visitation. See W. Va.Code § 48-10-902 (2001) (Repl.Vol.2004) (“If a child who is subject to a grandparent visitation order under this article is later adopted, the order for grandparent visitation is automatically vacated when the order for adoption is entered, unless the adopting parent is a stepparent ... of the child.”). See also Syl. pt. 2, Petition of Nearhoof, 178 W.Va. 359, 359 S.E.2d 587 (1987) (“Upon the petition of a grandparent, pursuant to W. Va. Code, 48-2B-1 [1980], seeking visitation rights with a grandchild or grandchildren, who is the child or are the children of the grandparent’s deceased child, a trial court may order that the grandparent shall have reasonable and seasonable visitation rights with the grandchild or grandchildren provided such visitation is in the best interest of the grandchild or grandchildren involved, even though the grandchild or grandchildren has or have been adopted by the spouse of the deceased child’s former spouse.”). Nevertheless, the circuit court noted the grandparents’ objections.
In response to the grandparents’ opposition to changing Jon C. L.’s surname, Warren and Melissa offered to retain the child’s former surname as his middle name, ie., Jon L. A., or to hyphenate his last name to include both his former and proposed future surnames, ie., Jon C.L-A. During the course of the proceedings, Jon’s guardian ad litem recommended that Warren be permitted to adopt Jon, but she did not specifically state whether Jon’s surname should be changed.
Upon the evidence presented during the adoption hearing, the circuit court ultimately granted the petition for adoption but denied the request to change Jon’s surname. As to these matters, the circuit court, by order entered September 24, 2004, ruled
Accordingly, it is ADJUDGED, DECLARED and ORDERED that said child is adopted by petitioner WARREN L. A[.], and from this time forward, the rights, duties, privileges, and relationships between said child and the petitioner Warren L. A[.], shall be the same in all respects, including the right of inheritance, as if the child had been born to him and petitioner, Melissa A. A[.]
The Court then considered the motion of the petitioner to change the child’s name to JON C[.] A[.], or alternatively, to JON L[.] A[.] Considering the objection of the paternal grandparents, the Court FINDS that the proposed change of the child’s name would not significantly advance his interests, and if the child wishes to change his name, he can do so as an adult. Therefore, it is ADJUDGED, DECLARED and ORDERED that from this time forward said child’s name shall remain be [sic] JON C[.] A[.], to which ruling the petitioners did OBJECT.
From this ruling, Warren and Melissa now appeal to this Court.
II.
STANDARD OF REVIEW
The solitary issue presented for our consideration and determination in this case is whether the circuit court erred by denying the request of Warren and Melissa to change Jon’s surname incident to his adoption by Warren. We previously have held that our review of a circuit court’s order is varied:
In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Syl. pt. 2, Walker v. West Virginia Ethics Comm’n, 201 W.Va. 108, 492 S.E.2d 167 (1997): Accord Syl. pt. 1, State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997).
Moreover, where, as here, the question before the circuit court involves the interpretation of the applicable law and governing statutes, our review is plenary. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). See also Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995) (“Inteipreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.”).
Mindful of these standards, we proceed to consider the parties’ arguments.
III.
DISCUSSION
On appeal to this Court, the parties do not dispute the correctness of the order of adoption itself, but rather Warren and Melissa assign error to that part of the circuit court’s order which denied their request to change Jon’s surname incident to his adoption by Warren. In support of their appeal, Warren and Melissa argue that the adoption statutes, themselves, give them the authority to change Jon’s name in conjunction with his adoption by Warren and that the child’s grandparents do not have the right to object thereto. By contrast, Robin and Janet contend that they were entitled to object to the proposed name change pursuant to those statutory provisions governing name changes, specifically W. Va.Code § 48-25-102 (2001) (Repl.Vol.2004).
At the outset, we feel it is imperative to address another of the grandparents’ objections, this one being that the petition for appeal in this case was not timely filed by Warren and Melissa. The final order of adoption was entered by the circuit court on September 24, 2004, and Warren and Melissa filed their petition for appeal with this Court on March 22, 2005, nearly six months after the entry of the circuit court’s order. Robin and Janet contend that the petition for appeal was required to be filed within four months of the final order. In support of their position, the grandparents rely on W. Va.Code § 48-22-704(a) (2001) (Repl.Vol. 2004), which provides, in pertinent part, that “[a]n order or decree of adoption is a final order for purposes of appeal to the supreme court of appeals on the date when the order is entered,” and Rule 3(a) of the West Virginia Rules of Appellate Procedure, which directs that “[n]o petition shall be presented for an appeal from ... any ... order, which shall have been entered more than four months before such petition is filed in the office of the clerk of the circuit court where the ... order being appealed was entered.” In response to the grandparents’ contentions, Warren and Melissa assert that the correct appeal period in this case was six months, insofar as W. Va.Code § 48-22-704(b) allows up to six months to vacate an order of adoption: “[a]n order or decree of adoption may not be vacated, on any ground, if a petition to vacate the judgment is filed more than six months after the date the order is final.”
We appreciate the perceived conflict between the finality dates of an adoption order as submitted by Warren and Melissa, however we also believe the language of W. Va. Code § 48-22-704(a) speaks for itself in rendering a final order of adoption appealable upon its entry. In any event, we are concerned that these technical difficulties in the filing of this petition for appeal might overshadow the more pressing concern, that being the final resolution of the name change issue of the little boy subject to these proceedings. Given the vast impact our decision of this case will have on this young man for years to come, and perhaps even for the rest of his life if he does not, as the circuit court has suggested he might, change his name upon his majority, we are reluctant to decline the invitation to address the merits of this case based upon the appeal’s procedural posture. See Zikos v. Clark, 214 W.Va. 235, 241, 588 S.E.2d 400, 406 (2003) (per curiam) (‘We decline to delay the resolution of these pivotal issues on technical procedural grounds, particularly because all necessary parties appear to be before the court.”). See also In re Erica C., 214 W.Va. 375, 380, 589 S.E.2d 517, 522 (2003) (per curiam) (“[A] mere procedural technicality does not take precedence over the best intei'ests of the child[.]” (internal quotations and citation omitted)). Accordingly, because all necessary parties are currently present before the Court and due to the importance of this matter, we will exercise our authority to decide the matters presented by this appeal.
Turning now to' the merits of the case before us, we recognize that adoptions in West Virginia, and elsewhere, are governed by statute. “The proceedings being wholly statutory, adoption may be effected only by compliance with the prescribed requirements of the law.” In re Adoption of Watson, 45 Haw. 69, 73, 361 P.2d 1054, 1056 (1961). Accord Sowers v. Tsamolias, 23 Kan.App.2d 270, 273, 929 P.2d 188, 191 (1996) (“[T]he law of adoption is dependent on state statutory law.” (citations omitted)), ajfd on other grounds, 262 Kan. 717, 941 P.2d 949 (1997); Franklin v. White, 263 Ala. 223, 225, 82 So.2d 247, 249 (1955) (“[T]he right of adoption is purely statutory.” (internal quotations and citations omitted)). Given the statutory nature of adoption law, a review of the various canons of statutory construction will be instructive to our analysis.
When examining an issue requiring statutory construction, we first determine the expression of legislative intent evident in the subject statute. “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975). “Once the legislative intent underlying a particular statute has been ascertained, we proceed to consider the precise language thereof.” State ex rel. McGraw v. Combs Servs., 206 W.Va. 512, 518, 526 S.E.2d 34, 40 (1999). If the language employed by the Legislature in the given enactment is plain, we apply, rather than construe, such provision. “A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect” Syl. pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951). Accord DeVane v. Kennedy, 205 W.Va. 519, 529, 519 S.E.2d 622, 632 (1999) (“Where the language of a statutory provision is plain, its terms should be applied as written and not construed.” (citations omitted)).
A review of the adoption statutes, codified at W. Va.Code § 48-22-101, et seq., makes it abundantly clear that the Legislature not only intended to permit an adoptive parent to change a minor child’s name incident to such adoption, but plainly anticipated such a result. The first reference to a child’s new name upon adoption is in the statute setting forth the required elements for an adoption petition. W. Va.Code § 48-22-502(a)(l) (2001) (Repl.Vol.2004) directs that “[t]he petition shall be verified and set forth: ... [t]he name ... of the child, and the name by which the child shall be known.” See also W. Va.Code § 48-22-902(a)(2-3) (2003) (Repl. Vol.2004) (directing that, in the case of the adoption of a child who “has immigrated to the United States,” “[t]he verified petition shall set forth the following: .... [t]he name of the child adopted in a foreign country [and] ... [t]he name by which the child shall be known henceforth”). Therefore, when a prospective adoptive parent initially makes his/her application to adopt a child, the adoptive parent may specify what the child’s new name will be after the adoption.
Thereafter, W. Va.Code § 48-22-701 (2001) (Repl.Vol.2004), which governs the adoption proceedings, themselves, references the change of a child’s name during the course of his/her adoption. Specifically, W. Va.Code § 48-22-701(d) explains the procedure to be followed by a court conducting a final adoption hearing, and, upon a finding by the court that the adoption should be permitted, the court “shall make an order reciting the facts proved and the name by which the child shall thereafter be known,” as well as the new relationships resulting from the adoption, itself. See also W. Va.Code § 48-22-903 (2003) (Repl.Vol.2004) (mandating that, in proceedings recognizing a foreign adoption decree and upon the requisite findings, the court “shall enter an order of adoption,” and “[t]he order shall ... set forth the name by which the child shall be known henceforth”). Thus, as part of the final order of adoption, the Legislature has recognized a change in the child’s name resulting from the adoption proceedings.
Finally, upon the conclusion of the adoption proceedings, documents reflecting the child’s new adoptive name are required to be filed with the state registrar of vital statistics.
Immediately upon the entry of such order of adoption, the court shall direct the clerk thereof forthwith to make and deliver to the state registrar of vital statistics a certificate under the seal of said court, showing:
... The name by which said child has previously been known; [and]
... The name by which the child is to be thereafter known[.]
W. Va.Code § 48-22-702(d)(3,5) (2001) (Repl.Vol.2004). Following this recording, a new birth certificate is required to be issued for the child.
Upon receipt of the certificate, the registrar’ of vital statistics shall forthwith issue and deliver by mail to the adopting parents at their last-known address and to the clerk of the county commission of the county wherein such order of adoption was entered a birth certificate in the form prescribed by law, except that the name of the child shown in said certificate shall be the name given him or her by the order of adoption.
W. Va.Code § 48-22-702(e) (emphasis added). Hence, it is evident that the change of a child’s name incident to his/her adoption is not only permitted by the Legislature but is anticipated thereby as the child’s new adoptive name is the name required to be listed on the child’s birth certificate that is issued upon the finalization of the adoption.
With each of these referenced statutes, it is important to note that no discretion is afforded to the circuit court to either accept or reject the requested name change; rather, the statutes treat the change of name of an adopted child as a matter of course incident to the adoption proceeding, itself. Neither are those persons entitled to notice, such as the grandparents herein, entitled to object to a proposed change of name during an adoption proceeding.
Despite this absence of discretion or ability to formally object to a child’s name change during an adoption proceeding, we do not think such ability to change a child’s name is necessarily absolute. Rather, under the unique circumstances of the case sub judice, because a stepparent adoption was involved, the child’s parent had to assent to the child’s adoption by her spouse. See W. Va.Code § 48-22-301(b)(3). Likewise, given the priority given to a fit parent vis-a-vis the care, control, and custody of his/her child, we find it necessary for a parent, whose spouse seeks to adopt the parent’s child, to assent to the proposed name change. See Syl. pt. 1, In re Willis, 157 W.Va. 225, 207 S.E.2d 129 (1973) (“In the law concerning custody of minor children, no rule is more firmly established than that the right of a natural parent to the custody of his or her infant child is paramount to that of any other person; it is a fundamental personal liberty protected and guaranteed by the Due Process Clauses of the West Virginia and United States Constitutions.”). Any other result would elevate the rights and interests of a potential adoptive parent above those of the child’s actual, and in this ease biological, parent, which is clearly contraindicated by the law of this State.
Moreover, the statutes according permission to an adoptive parent to change a child’s name in connection with his/her adoption of the child is consistent with the longstanding law of this State recognizing the ultimate effect of an adoption proceeding: a termination of previous familial relationships and the creation of new familial relationships, protected by the umbrella of finality. In this regard, the Legislature has specifically stated that
[u]pon the entry of such order of adoption, any person previously entitled to parental rights, any parent or parents by any previous legal adoption, and the lineal or collateral kindred of any such person, parent or parents, except any such person or parent who is the husband or wife of the petitioner for adoption, shall be divested of all legal rights, including the right of inheritance from or through the adopted child under the statutes of descent and distribution of this state, and shall be divested of all obligations in respect to the said adopted child, and the said adopted child shall be free from all legal obligations, including obedience and maintenance, in respect to any such person, parent or parents. From and after the entry of such order of adoption, the adopted child shall be, to all intents and for all purposes, the legitimate issue of the person or persons so adopting him or her and shall be entitled to all the rights and privileges and subject to all the obligations of a natural child of such adopting parent or parents.
W. Va.Code § 48-22-703(a) (2001) (Repl.Vol. 2004). This provision has been construed as signifying that “the entry of a final order of adoption effectively changes the legal and familial relationships of the parties thereto by divesting the pre-adoption lineages and obligations and replacing them with ties indicative of the post-adoption state of affairs.” State ex rel. Brandon L. v. Moats, 209 W.Va. 752, 770, 551 S.E.2d 674, 692 (2001) (Davis, J., dissenting). Additionally, “the central aim of adoption is finality, finality in the severance of pre-existing relationships and finality in the creation of new adoptive relationships, which breeds certainty for adopted children and their adoptive parents, alike, in their new adoptive relationship.” In re Grandparent Visitation of Cathy L. (R.) M. v. Mark Brent R., 217 W.Va. 319, 328, 617 S.E.2d 866, 875 (2005) (per curiam) (Davis, J., concurring) (citation omitted). See also State ex rel. Smith v. Abbot, 187 W.Va. 261, 266, 418 S.E.2d 575, 580 (1992) (“Finality is of the utmost importance in an adoption.”).
Accordingly, we hold that an adoptive parent may, incident to an adoption proceeding, change his/her adopted child’s name to reflect the new adoptive relationship. However, in the case of a stepparent adoption where the adoptive parent is married to the child’s parent, the child’s parent must assent to the proposed name change. In this case, not only did Warren seek to change Jon’s name in his adoption petition to reflect the parties’ new adoptive relationship, but Melissa assented to, and vigorously supported, such a name change. Thus, to the extent that the circuit court denied the change of Jon’s surname as requested by Warren and Melissa in Warren’s petition to adopt Jon, we find the circuit court erred and reverse that ruling. We further remand this case to the Circuit Court of Roane County for further proceedings consistent with this opinion, including entry of an order changing Jon’s surname as requested by Warren and Melissa incident to Warren’s adoption of the child.
IV.
CONCLUSION
For the foregoing reasons, the September 24, 2004, order of the Circuit Court of Roane County is hereby reversed, and this case is remanded for further proceedings consistent with this opinion.
Reversed and Remanded.
. Due to the sensitive nature of the facts at issue herein, and the confidentially customarily accorded to adoption proceedings, we will refer to the parties herein by their first names and initials. See In re Clifford K., 217 W.Va. 625, 630 n. 1, 619 S.E.2d 138, 143 n. 1 (2005), and cases cited therein.
. We recognize that the name by which Warren L.A. typically goes is "Lee,” rather than "Warren”. However, because the circuit court did not make this distinction, we will refer to the stepfather herein as "Warren” so as to avoid confusion with the lower court's rulings.
. See W. Va.Code § 48-10-402 (2001) (Repl.Vol. 2004) (permitting grandparent to petition for visitation with grandchild when no other domestic actions regarding the child are pending).
. Because Warren, the person seeking to adopt Jon was his stepparent and married to Jon's biological mother, Melissa's assent thereto and joinder in the adoption petition was statutorily required. See W. Va.Code § 48-22-301 (b)(3) (2001) (Repl.Vol.2004) ("Consent or relinquishment shall not be required of a parent or of any other person having custody of the adoptive child: .... Who, in a stepparent adoption, is the birth parent or adoptive parent of the child and is married to the petitioning adoptive parent. In such stepparent adoption, the parent must assent to the adoption by joining as a party to the petition for adoption.").
. Among the information required to be contained within a petition for adoption is "[t]he name ... of the child, and the name by which the child shall be known” after the finalization of the adoption. W. Va.Code § 48-22-502(a)(l) (2001) (Repl.Vol.2004).
.Pursuant to W. Va.Code § 48-22-601(a)(5) (2001) (Repl.Vol.2004), grandparents are required to be given notice of an adoption petition involving their grandchild when the grandchild's parent, who is the grandparents’ child, is deceased:
Unless notice has been waived, notice of a proceeding for adoption of a child must be served, within twenty days after a petition for adoption is filed, upon:
A grandparent of the child if the grandparent's child is a deceased parent of the child and, before death, the deceased parent had not executed a consent or relinquishment or the deceased parent's parental relationship to the child had not been otherwise terminated.
The grandparents in this case were also entitled to notice of the adoption petition as parties who had in effect an order of visitation with the minor child sought to be adopted. See W. Va. Code § 48-22-601(a)(3) (providing that "notice of a proceeding for adoption of a child must be served" on "[a]ny person .. who has visitation rights with the child under an existing court order issued by a court in this or another state”).
. In the context of a proceeding to change a person’s name, W. Va.Code § 48-25-102 (2001) (Repl.Vol.2004) permits “[a]ny person who is likely to be injured by the change of name of any person so petitioning, or who knows of any reason why the name change of any such petitioner should not be changed, may appear at the time and place named in the notice, and shall be heard in opposition to such change.”
. The grandparents further contend that the various exceptions which permit an extension of the four-month appeal period do not apply to this case. See W. Va. R.App. P. 3(a) ("provid[ing], that the judge of the circuit court may for good cause shown, by order entered of record prior to the expiration of such period of four months, extend and re-extend such period, not to exceed a total extension of two months, if a request for the transcript was made by the party seeking an appeal ... within thirty days of the entry of such ... order”).
. Although the grandparents and, to some degree, the circuit court rely upon the statutes governing name changes, W. Va.Code § 48-25-101, et seq., as authority to permit the grandparents to object to the requested change of Jon's surname and the circuit court's decision to defer to such objection, we do not agree that these statutes are dispositive of, or even applicable to, the instant proceeding. The context in which this case arose in the circuit court and the manner in which it is presented for our consideration on appeal is in the nature of an adoption proceeding, not a name change proceeding. Warren's and Melissa's request to change Jon’s surname was not a separate proceeding filed under the name change statutes but rather was incident to Warren's petition to adopt Jon. Insofar as the adoption statutes specifically pertain to and govern the instant proceeding, we find them to be determinative of the issues herein rather than the more general statutes relating solely to petitions to change a person's name. See Syl. pt. 1, UMWA by Trumka v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984) ("The general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled.”). Accord Daily Gazette Co., Inc. v. Caryl, 181 W.Va. 42, 45, 380 S.E.2d 209, 212 (1989) ("The rules of statutory construction require that a specific statute will control over a general statute[.]” (citations omitted)).
. By contrast, the name change statutes repose discretion in the circuit court to enter an order granting or refusing the petition for change of name. See W. Va.Code § 48-25-103 (2001) (Repl.Vol.2004) (directing that “the court or judge thereof in vacation may order a change of name as applied for” (emphasis added)). See also Lufft v. Lufft, 188 W.Va. 339, 424 S.E.2d 266 (1992) (establishing guidelines for court to follow when presented with a change of name request for a minor child under the name change statutes); In re Petition of Harris, 160 W.Va. 422, 236 S.E.2d 426 (1977) (same).
. In fact, we are rather taken aback by the circuit court's order denying the requested name change insofar as that ruling arose out of deference to the grandparents' wishes vis-a-vis the • child's name in this case. What we find most troubling about this scenario is the fact that the grandparents' preference was permitted to trump that of the biological mother whose assent to the adoption petition was required, who was a party to the adoption proceedings, and whose parental rights in and to her minor child had not been, and have not been, terminated. We repeatedly have recognized, as has the United States Supreme Court, that, absent a showing of unfitness, a parent is entitled to the care, custody, and control of his/her minor child and that such rights prevail over the interests of all other interested parties, including those of the child's grandparents. See, e.g., In re Clifford K., 217 W.Va. at 657, 619 S.E.2d at 160 (finding that rights of child's grandparents were “not on par with” those of child’s psychological parent and primary caretaker); Rozas v. Rozas, 176 W.Va. 235, 238, 342 S.E.2d 201, 205 (1986) ("Absent a showing that a natural parent is unfit, a natural parent’s right to custody outstrips that of a grandparent." (citations omitted)); Leach v. Bright, 165 W.Va. 636, 638, 270 S.E.2d 793, 794 (1980) (per curiam) ("The law in this jurisdiction has long been that the fit natural parent’s right to custody of his or her child is paramount to that of any third party, including a grandparent.” (citation omitted)). See also Troxel v. Granville, 530 U.S. 57, 72, 120 S.Ct. 2054, 2063, 147 L.Ed.2d 49, 60 (2000) (concluding that rights of grandparents cannot be permitted to unconstitutionally infringe upon a parent’s "fundamental right to make decisions concerning the care, custody, and control” of his/her child). Thus, absent express statutory authority granting those persons entitled to notice of an adoption proceeding the power to object thereto, the circuit court improperly accorded weight to the grandparents' preference in refusing to change Jon’s surname.
. This holding is consistent with the decisions of other states permitting adoptive parents to change their adopted child's name as a matter of course during adoption proceedings. See, e.g., In re Adoption of Watson, 45 Haw. 69, 361 P.2d 1054 (1961); Coffey v. Department of Soc. Servs. of Baltimore City, 41 Md.App. 340, 397 A.2d 233 (Md.Ct.Spec.App.1979); Smith v. Benson, 542 S.W.2d 571 (Mo.Ct.App.1976); Frasier v. McClair, 282 S.C. 491, 319 S.E.2d 350 (Ct.App.1984). But see Sowers v. Tsamolias, 23 Kan.App.2d 270, 929 P.2d 188 (1996) (vesting court with discretion to permit or deny requested name change in adoption proceeding), aff’d on other grounds, 262 Kan. 717, 941 P.2d 949 (1997). | [
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Justice DAVIS delivered the Opinion of the Court.
DAVIS, Justice.
In these consolidated eases, the West Virginia Department of Health and Human Resources (hereinafter “WVDHHR”) appeals from the dispositions in two separate juvenile delinquency proceedings where the respective circuit courts temporarily placed the juveniles in out-of-state facilities. The WVDHHR argues that the circuit courts failed to comply with W. Va.Code § 49-5D-3 (2004) (Repl.Vol.2004), which mandates the institution of a multidisciplinary treatment planning process. Based on the parties’ arguments, the record designated for our consideration, and the pertinent authorities, we reverse the decisions of the circuit courts.
I.
FACTUAL AND PROCEDURAL HISTORY
The case before us involves (wo consolidated juvenile cases: the case of Brandon B. (hereinafter “Brandon”) and the ease of Ja-Quin B. (hereinafter “JaQuin”). The two cases are unrelated, except as to the application of W. Ya.Code § 49-5D-3. For a background understanding of the cases, we will discuss the factual allegations separately as they apply to each juvenile.
A.Case of Brandon
At the age of sixteen, Brandon was charged in a juvenile proceeding with battery on a police officer, obstructing/resisting, and domestic assault. Because of the nature of his alleged crimes, Brandon was placed at the Eastern Regional Detention Center while awaiting adjudication. An agreement was reached between the prosecutor and Brandon that Brandon would admit his actions, would be adjudicated a delinquent for the battery and domestic assault, the obstructing charge would be dropped, and Brandon would be placed in the custody of the WVDHHR for placement at the Glen Mills School in Pennsylvania.
An adjudicatory hearing was held on March 19, 2004. The hearing was scheduled for the afternoon; however, the case was called during the morning docket. The transcript of the hearing reveals that the circuit court called the case early to accommodate one of the attorney’s schedules. The court accepted the proposed agreement, and adjudged Brandon to be a delinquent. During the adjudicatory hearing, the court addressed the juvenile directly and, because the prosecutor and Brandon agreed about placement, made the decision “to move forward with disposition at this time, by agreement and at request of counsel, having signed the acknowledgment and admission which you and [your counsel] each signed, and further having entered the adjudication order reflecting adjudication.” The court placed Brandon in the custody of the WVDHHR for placement at the Glen Mills School in Pennsylvania.
Later in the day on March 19, 2004, the juvenile probation officer (hereinafter “JPO”) telephoned the WVDHHR to advise that a dispositional hearing had been held earlier that morning, and that a disposition had been reached. Brandon was placed at the Glen Mills school on April 12, 2004. Brandon did not object to the failure to convene a multidisciplinary treatment planning process. Since the filing of the appellate briefs, Brandon successfully completed his placement program and was released.
B.Case of JaQuin
JaQuin was fifteen years of age when a juvenile delinquency petition was filed. A plea agreement was reached wherein JaQuin admitted to a charge of brandishing a weapon, the State agreed to drop other pending charges and not to pursue other possible charges, and JaQuin agreed to placement at George Junior Republic, a juvenile facility in Pennsylvania.
An adjudicatory hearing and a dispositional hearing were held on June 16, 2004. The circuit court approved the plea agreement, adjudicated JaQuin as a delinquent, placed him in the custody of the WVDHHR, and ordered him placed at George Junior Republic. JaQuin was admitted to George Junior Republic on June 21, 2004. The WVDHHR received no notice of the delinquency petition or of the adjudicatory hearing, and was not. involved in the plea negotiations. In fact, the WVDHHR had no knowledge of the juvenile proceeding until it received a letter from the placement facility regarding paperwork required under the interstate compact. JaQuin did not contest the adjudication process or his placement. He successfully completed the placement program in January 2005, and was released.
C.Consolidated Cases
The WVDHHR filed petitions for appeal in both cases, arguing that the respective circuit courts failed to follow the mandatoiy guidelines set forth in W. Ya.Code § 49-5D-3. It is undisputed that the WVDHHR was not present for either of the juvenile proceedings at the adjudicatory or the disposi-tional phases. Further, it is acknowledged that no multidisciplinary treatment planning process was instituted for either juvenile pri- or to the adjudicatory and dispositional hear ings. These cases were consolidated by order of this Court on March 9, 2005.
II.
STANDARD OF REVIEW
To resolve the issue before us, we are required to consider the application of the relevant statute. In this regard, we have held that “ ‘[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.’ Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).” Syl. pt. 3, Alden v. Harpers Ferry Police Civil Serv. Comm’n, 209 W.Va. 83, 543 S.E.2d 364 (2001). Mindful of these applicable standards, we now consider the substantive issues herein raised.
III.
DISCUSSION
The WVDHHR appeals, bringing before this Court the issue of whether the circuit courts circumvented the statutorily-mandated multidisciplinary treatment planning process. The State of West Virginia, Brandon, and JaQuin (hereinafter referred to collectively as “appellees”) argue first that the WVDHHR does not have standing to bring this appeal, and second that the issues raised herein are now moot and should be dismissed. Because the issues of mootness and standing are dispositive issues, we will address them prior to our examination of the statute. We will first direct our attention to the issue of standing, then we will turn our attention to the issue of mootness.
A. Standing
The appellees argue that the WVDHHR lacks standing to bring this appeal. The contention of the appellees is that both juveniles agreed with the adjudication and dispositions; therefore, the WVDHHR does not have the right to appeal the result. Moreover, the appellees buttress this argument by averring that only the juveniles and the prosecutors are parties to the underlying actions; therefore, as a nonparty, the WVDHHR is not afforded appellate recourse. We cannot agree with either argument.
We have previously stated that “standing is defined as ‘[a] party’s right to make a legal claim or seek judicial enforcement of a duty or right.’ Black’s Law Dictionary 1413 (7th ed.1999).” Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 94, 576 S.E.2d 807, 821 (2002). Ultimately, “the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” State ex rel. Abraham Line Corp. v. Bedell, 216 W.Va. 99, 111-12, 602 S.E.2d 542, 554-55 (2004) (internal citations omitted) (Davis, J., concurring). More specifically,
Standing is comprised of three elements: First, the party attempting to establish standing must have suffered an “injury-in-fact” — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent and not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct forming the basis of the lawsuit. Third, it must be likely that the injury will be redressed through a favorable decision of the court.
Syl. pt. 5, Findley, 213 W.Va. 80, 576 S.E.2d 807.
In the present case, the WVDHHR seeks to litigate its right to participate in the underlying juvenile proceedings, and is not seeldng to enforce the rights of the juveniles. In fact, the affected juveniles filed briefs opposing the arguments set forth by the WVDHHR. Therefore, we must determine if the WVDHHR has a proper right to assert. An examination of the child welfare statutes reveal that the WVDHHR “is designated as the agency to cooperate with the United States department of health and human services and United States department of justice in extending and improving child welfare services, to comply with regulations thereof, and to receive and expend federal funds for these services.” W. Va.Code § 49-1 — 1(d) (1999) (Repl.Vol.2004). Further, we are guided by the pmpose of a multidisciplinary team, which
is to provide a system for evaluation of and coordinated service delivery for ... children undergoing certain status offense and delinquency proceedings. It is the further purpose of this article to establish, as a complement to other programs of the department of health and human resources, a multidisciplinary screening, advisory and planning system to assist courts in facilitating permanency planning, following the initiation of judicial proceedings, to recommend alternatives and to coordinate evaluations and in-community services.
W. Va.Code § 49-5D-1 (1998) (Repl.Vol. 2004). We have also previously stated that the WVDHHR must “assist the court in maldng its placement determination by providing the court with full information on placements and services available both in and out of the community. It is the court’s responsibility to determine the placement.” Syl. pt. 3, in part, State v. Frazier, 198 W.Va. 678, 482 S.E.2d 663 (1996).
The applicable statutes are clear' that the WVDHHR is charged with an affirmative duty to participate in developing permanency plans, and also is financially obligated to expend its funds to provide services. In the present cases, the juveniles were placed in the WVDHHR’s custody, and the WVDHHR was financially responsible for those placements. Moreover, the WVDHHR has an obligation under the applicable statutes to participate in the multidisciplinary treatment planning process. Therefore, we conclude that the WVDHHR does have standing to pursue this action. Now that we have determined that the WVDHHR can properly bring this action, we turn to the issue of mootness.
B. Mootness
The appellees argue that, because Brandon and JaQuin have completed their programs and have been released, the statutory issue before the Court is now moot and should be dismissed. We have previously reasoned “ ‘[a] case is not rendered moot even though a party to the litigation has had a change in status such that he no longer has a legally cognizable interest in the litigation or the issues have lost their adversarial vitality, if such issues are capable of repetition and yet will evade review.’ Syl. pt. 1, State ex rel. M.C.H. v. Kinder, 173 W.Va. 387, 317 S.E.2d 150 (1984).” Syl. pt. 1, State ex rel. J.D. W. v. Harris, 173 W.Va. 690, 319 S.E.2d 815 (1984).
The crux of the appeal before us involves the application of a statute. The fact that the two juveniles are no longer in their respective placements does not change our ability to review and examine the language of a statute. Further, it has been represented to this Court that the present cases represent a small portion of cases involving the pertinent statute. Therefore, it is evident that, if, in fact, the statute has been violated, this is certainly a situation capable of repetition. While the issue of the placement of the present juveniles is moot, the issue of the application of the statute is ripe for our consideration. Now that we have determined that the WVDHHR has standing, and that the issue is proper for our review, we turn to the matter of the application of the statute.
C.W. Va.Code 49-5D-3 (2004) (Repl.Vol.2004)
In this ease, we are called upon to determine whether W. Va.Code § 49-5D-3 is mandatory, and, if so, whether the circuit courts failed to follow the requirements set forth within the statute. We first note that “[a] multidisciplinary treatment planning process shall be established within each county of the state[.]” W. Va.Code § 49-5D-3(a)(l). Further,
[treatment teams shall assess, plan and implement a comprehensive, individualized service plan ... for juveniles and their families involved in ... delinquency proceedings ... when, in a delinquency proceeding, the court is considering placing the juvenile in the department’s custody or placing the juvenile out-of-home at the department’s expense pursuant to the provisions of section thirteen [§ 49-5-13] of said article. In any such ... delinquency case, the juvenile probation officer shall notify the local office of the department of health and human resources and the division of juvenile services at least five working days before the court proceeding in order to allow the multidisciplinary treatment team to convene and develop a comprehensive individualized service plan for the child: Provided, That such notice is not required in cases where the child is already in state custody or there exist exigent circumstances which justify taking the child immediately into custody without a judicial proceeding.
W. Va.Code § 49-5D-3(a)(2).
We have had occasion to examine this statute in a previous case, E.H. v. Matin, 201 W.Va. 463, 498 S.E.2d 35 (1997). In that ease, we noted
“[i]t is well established that the word ‘shall,’ in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation.” Syllabus Point 1, Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86 (1982).
Syl. pt. 1, E.H. v. Matin, 201 W.Va. 463, 498 S.E.2d 35. Based on the mandatory language within the statute, we previously held that “[mjultidisciplinary treatment teams must assess, plan, and implement service plans pursuant to W. Va.Code § 49-5D-3.” Syl. pt. 2, id. Further, we stated “[t]he language of W. Va.Code § 49-5D-3 is mandatory and requires the Department of Health and Human Resources to convene and direct treatment teams not only for juveniles involved in delinquency proceedings, but also for victims of abuse and neglect.” Syl. pt. 3, id.
This statement of the law was further approved by this Court, at Syllabus point 8, in State ex rel. Ohl v. Egnor, 201 W.Va. 777, 500 S.E.2d 890 (1997), wherein, the Court held “ ‘[t]he language of W. Va.Code § 49-5D-3 [ (1996) (Repl.Vol.1996) ] is mandatory and requires the Department of Health and Human Resources to convene and direct treatment teams not only for juveniles involved in delinquency proceedings, but also for victims of abuse and neglect.’ Syl. pt. 3, E.H. v. Matin, 201 W.Va. 463, 498 S.E.2d 35 (1997).” In Ohl, this Court found that the circuit court exceeded its authority under the statute when it placed a child in a private military school. This Court further recognized the mandatory nature of the WVDHHR’s involvement in juvenile proceedings when it chastised the WVDHHR for failing to properly perform its statutorily-mandated duties.
Therefore, as the statute makes clear and as previously explained in the Ma-tin and the Ohl case, the language of W. Va.Code § 49-5D-3 is mandatory. Accordingly, we hold that the language of W. Va. Code § 49-5D-3 (2004) (Repl.Vol.2004) requires every county to establish a multidisci plinary treatment planning process, and the West Virginia Department of Health and Human Resources is required to convene and direct treatment teams for juveniles involved in delinquency proceedings when the court is considering placing the juvenile out-of-home at the expense of the West Virginia Department of Health and Human Resources, or when the court is considering placing the juvenile in the custody of the West Virginia Department of Health and Human Resources. In the current cases, the circuit court placed both juveniles out-of-home at the WVDHHR’s expense, and further gave the WVDHHR custody of the juveniles. It follows that the mandatory language of W. Va.Code § 49-5D-3 applied, and a multidisciplinary treatment planning process was required prior to placement.
Notably, the JPO “shall notify the local office of the [WVDHHR] ... at least five working days before the court proceeding in order to allow the multidisciplinary treatment team to convene and develop a comprehensive individualized service plan for the child: Provided, That such notice is not required in eases where the child is already in state custody[.]” W. Va.Code § 49-5D-3(a)(2). Brandon was already in state custody; therefore, the five-day notice requirement did not apply to his case. JaQuin was not in custody; however, the WVDHHR had no knowledge of the juvenile proceedings until after the hearings were over and the child had already been placed. Clearly, the mandatory notice language was not followed.
The appellees use the notice provision to suggest that the requirement of a mandatory multidisciplinary treatment planning process is waived when the child is in custody, as was Brandon’s case. However, such a construction would overlook the clear statutory language that states: “notice is not required in cases where the child is already in state custody[.]” W. Va.Code § 49-5D-3(a)(2) (emphasis added). The statute only exempts the five-day notice requirement when the child is in custody, and does not waive the requirement of a mandatory multidisciplinary treatment planning process in any circumstance.
Notwithstanding the dear statutory mandates and this Court’s prior recognition of those mandates, neither Brandon nor JaQuin received a multidisciplinary treatment planning process prior to placement. By failing to follow the mandates, the circuit courts prevented the WVDHHR from complying with its mandated role in the juveniles’ dispositions. We note the appellees’ argument that the dispositions were in the best interests • of the juveniles, and that they were entered into by agreement of the parties; therefore, they claim, the rights of the juveniles were protected, and neither juvenile objected to the disposition. However, agreements by the parties cannot supersede the mandatory provisions of the statute. In a delinquency proceeding, before a juvenile can be placed out-of-the-home at the WVDHHR’s expense, and before a juvenile can be placed in the custody of the WVDHHR, a multidisciplinary treatment planning process must be convened. Neither child received the benefit of the mandatory language of the statute.
IV.
CONCLUSION
Accordingly, we conclude that a multidisciplinary treatment planning process was required to be convened in each juvenile’s case, and, therefore, reverse the circuit courts decisions. Because the juveniles have already successfully completed their placements, we decline to remand them individual cases for imposition of the required treatment plan. For the foregoing reasons, we reverse the orders of the Circuit Court of Brooke County and the Circuit Court of Berkeley County.
Reversed.
. These cases originated in two different circuit courts: the Circuit Court of Brooke County and the Circuit Court of Berkeley County. Two different circuit judges presided over these matters in their respective counties. Because both cases involve the same issue, they were consolidated by order of this Court on March 9, 2005.
. In State v. JaQuin B., No. 32563, the appellees' arguments were submitted on briefs and were not presented orally.
. "We follow our past practice in juvenile and domestic relations cases which involve sensitive facts and do not utilize the last names of the parties.” State ex rel. West Virginia Dep't of Human Servs. v. Cheryl M., 177 W.Va. 688, 689 n. 1, 356 S.E.2d 181, 182 n. 1 (1987) (citations omitted).
. " 'Juvenile delinquent’ means a juvenile who has been adjudicated as one who commits an act which would be a crime under state law or a municipal ordinance if committed by an adult[.]” W. Va.Code § 49-1-4(8) (1998) (Repl.Vol.2004).
. Moreover, as discussed, infra, in Section III. C, W. Va.Code § 49-5D-3, which involves the multidisciplinary treatment planning process, sets forth the WVDHHR's right to participate in juvenile proceedings.
. The statute at issue has been amended since it was examined in E.H. v. Matin, 201 W.Va. 463, 498 S.E.2d 35 (1997). The 1996 version of die statute provided, in pertinent part:
(a) On or before the first day of January, one thousand nine hundred ninety-five, a multidisciplinary treatment planning process shall be established within each county of the state, either separately or in conjunction with a contiguous county by the secretary of the department with advice and assistance from the prosecutor’s advisory council as set forth in section four [§ 7-4-4], article four, chapter seven of this code.
.Treatment teams shall assess, plan and implement a comprehensive, individualized service plan for children who are victims of abuse or neglect and their families when a judicial proceeding has been initiated involving the child or children and for children and their families involved in delinquency proceedings.
(b) Each treatment team shall be convened and directed by the child’s or family’s case manager. The treatment team shall consist of the child’s custodial parent(s) or guardian(s), other immediate family members, the attorney(s) representing the parent(s) of the child, if assigned by a judge of the circuit court, the child, if the child is over the age of twelve, and if the child’s participation is otherwise appropriate, the child, if under the age of twelve when the team determines that the child's participation is appropriate, tire guardian ad li-tem, the prosecuting attorney or his or her designee, and any other agency, person or professional who may contribute to the team’s efforts to assist the child and family.
W. Va.Code § 49-5D-3 (1996) (Repl.Vol.1996). The only substantive change relevant for our consideration is the addition of the notice provision, namely, the provision in W. Va.Code § 49-5D-3(a)(2) (2004) (Repl.Vol.2004), which provides: "In any such ... delinquency case, the juvenile probation officer shall notify the local office of the department of health and human resources and the division of juvenile services at least five working days before the court proceeding in order to allow the multidisciplinary treatment team to convene and develop a comprehensive individualized service plan for the child[.]”
. We are cognizant of the appellees’ concern that the multidisciplinary planning treatment process can lengthen the duration of juvenile proceedings. Recognizing that the purpose of the treatment process is to assist, not hinder, the juvenile proceedings, and further recognizing the number of individuals involved with potential scheduling issues, we point out that nothing in the statute prevents telephone participation in meetings. Significantly, in a case where all parties are in agreement as to placement, there is no need for a long and protracted treatment planning process. | [
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PER CURIAM:
Appellant appeals from the trial court’s order denying relief from a default judgment rendered against the appellant for delinquent payments under a lease agreement. For the reasons stated herein we affirm the rulings of the trial court.
I.
On April 22,1996, George Steven Shawkey (“Shawkey”) incorporated Apex Restaurants Corporation (“Apex-California”) under the laws of the State of California. Shawkey was the president and owner of 100% of the stock. In the same year Shawkey formed a business relationship with Emre Sarihan (“Sarihan”) who expressed a desire to expand his existing bar and restaurant business. Prior to February 6, 1997, Shawkey sold his interest in Apex-California to Sarihan. Shawkey was then hired by Sarihan to continue to function as Director of Operations and Real Estate for Apex-California.
In his capacity as Director of Operations and Real Estate for Apex-California, Shaw-key entered into negotiations with Phil Shaffer, a representative of Realmark Developments, Inc. (“Realmark”), to lease property in Charleston, West Virginia. The property under consideration for lease was to be the location of a restaurant and bar of Apex-California. As a result of the negotiations, on February 6, 1997, Shawkey executed a lease with Realmark on behalf of Apex-Cali-fomia for a building in Charleston.
After executing the lease, Shawkey informed Sarihan that the lease had been executed, only to be told by Sarihan that he could not commit to the lease because of financial difficulties. As a result of Sarihan’s refusal to honor the lease, Shawkey severed his relationship with Apex-California. Shaw-key then informed Realmark that Apex-Cali-fomia did not intend to fulfill the lease that Shawkey had executed on behalf of Apex-California. Shawkey further advised Phil Shaffer of Realmark that he believed he could, on his own, successfully operate a restaurant on the same property for which he had negotiated a lease on behalf of Apex-California.
Shawkey then incorporated Apex Restaurants, Inc. (“Apex-WV”) under the laws of West Virginia on February 7, 1997. Shaw-key claims that he informed Phil Shaffer that he would prefer to pay rent on a month-to-month basis. Shawkey never signed a separate lease with Realmark under the name of Apex Restaurants, Inc. (Apex-WV). Nevertheless, the Apex-California lease that was signed by Shawkey on February 6 was, for some reason, not signed on behalf of Real-mark until February 12, 1997. This was several days after Shawkey had apparently reached an agreement with Realmark on his own. Shawkey began operating Apex-WV as Shooters Restaurant. After a period of time the restaurant closed.
On May 7, 1999, Realeo Limited Liability Company (“Realeo”), successor to Realmark, filed a complaint against Apex-WV for delinquent lease payments. The lease that names Apex Restaurants Corporation (Apex-California) was attached to the complaint as an exhibit. Apex-WV never answered the complaint, and nearly one year later Realeo filed a motion for entry of default. On April 6, 2000, default judgment was entered in favor of Realeo in the amount of $47,381.48. Approximately one year and three months after the entry of the default judgment, on July 3, 2001, Apex-WV filed a motion to set aside judgment. On June 23, 2004, three years later, the circuit court entered an order denying the motion to set aside judgment. It is from the June 23, 2004 order that appellant appeals.
II.
We review default judgments under an abuse of discretion standard. In Syllabus Point 3 of Hinerman v. Levin, 172 W.Va. 777, 310 S.E.2d 843 (1983), we held:
Appellate review of the propriety of a default judgment focuses on the issue of whether the trial court abused its discretion in entering the default judgment.
In accord, Syllabus Point 1, Cales v. Wills, 212 W.Va. 232, 569 S.E.2d 479 (2002).
In Syllabus Point 3 of Parsons v. Consolidated Gas Supply Corporation, 163 W.Va. 464, 256 S.E.2d 758 (1979) we held:
In determining whether a default judgment should be entered in the face of a Rule 6(b) motion or vacated upon a Rule 60(b) motion, the trial court should considen (1) The degree of prejudice suffered by the plaintiff from the delay in answering; (2) the presence of material issues of fact and meritorious defenses; (3) the significance of the interests at stake; and (4) the degree of intransigence on the part of the defaulting party.
We also said in Parsons that “there is the necessity to show some excusable or unavoidable cause to explain the delay in answering.” 163 W.Va. at 471, 256 S.E.2d at 762.
We will analyze separately each of the Parsons factors:
1. The degree of prejudice: The initial inquiry under Parsons is a determination of the degree of prejudice to Realeo if the default as to liability is vacated. While this point is not argued specifically, we find nothing in the record to indicate that Realeo would be prejudiced by vacation of the default judgment.
2. The presence of material issues of fact and meritorious defenses: The second Parsons factor is whether appellant has shown the existence of material issues of fact. In examining this factor we need only determine whether “there is ... reason to believe that a result different from the one obtained would have followed from a full trial.” Hinerman, 172 W.Va. at 783-84, 310 S.E.2d at 850. Appellant essentially asserts that the judgment should not be allowed to stand because appellant is not the party named in the lease agreement that was attached to the complaint. Although we make no comment on whether Apex Restaurants, Inc. (Apex-WV) could prevail on its defenses, we find that the defense could satisfy the second Parsons requirement.
3. The significance of the interests at stake: Under the third Parsons factor we examine the interests at stake in the litigation. The default judgment in the instant case was in the amount of $47,381.48. In Parsons the amount of monetary damages was $35,000.00. The amount in Parsons was considered to be “not insignificant.” This case is quite similar to Parsons.
4. The degree of intransigence by the defaulting party: Under Parsons’ fourth factor, we examine the degree of intransigence by Apex Restaurants, Inc. “In Parsons ... this' court noted that any evidence of intransigence on the part of a defaulting party should be weighed heavily against him in determining the propriety of a default judgment.” Hinerman, 172 W.Va. at 782, 310 S.E.2d at 849.
The record in this case shows that the complaint against Apex Restaurants, Inc. (Apex-WV) was filed on May 7, 1999, and that on May 17, 1999, the Secretary of State accepted service on behalf of Apex Restaurants, Inc. There is nothing in the record to suggest that Shawkey did not have actual notice of the filing of the original suit. Default judgment was entered pursuant to a motion on April 6, 2000, approximately eleven months after the filing of the complaint.
The intransigence of the appellant is exhibited by Shawkey’s complete disregard for the pending action for the approximately eleven-month period prior to entry of the default judgment order. And, the appellant’s intransigence is exacerbated by appellant’s continued disregard of the default judgment in the instant case for approximately eleven more months after he obtained counsel in the second case that was filed on May 22, 2000. See supra, footnote 2.
It further appeal’s from the record that the appellant has challenged the default judgment outside the time period prescribed by Rule 60(b) of the West Virginia Rules of Civil Procedure (1998). Apex Restaurants, Inc. (Apex-WV) filed its motion to set aside the default judgment on July 3, 2001, approximately one year and three months after the default judgment was entered. The only reason asserted by the appellant for failing to answer the complaint is stated in appellant’s reply brief and is not supported by evidence. In the reply brief the reason offered by the appellant is that Shawkey is not an attorney and that he believed consultation with an attorney was unnecessary. We find that even if the assertions were supported by the evidence, they are not persuasive. We also note that Shawkey did obtain counsel on or before June 19, 2000, when he filed a motion to dismiss in the companion case, and yet it was not until almost one year later that appellant filed the motion to set aside judgment rendered against Apex Restaurants, Inc. (Apex-WV). We find this degree of intransigence to be significant.
5. The existence of excusable or avoidable cause: Under the final consideration required by Parsons, a defaulting party must show some excusable or unavoidable cause to explain the delay in answering the complaint. As previously stated, the scant record before us sheds little light on this issue. We find the assertion made by counsel in his reply brief to be insufficient in this regard. There fore, we find no merit in the appellant’s position as to this final Parsons factor.
In weighing the Parsons factors, we believe that the record does not support a finding that undue prejudice would result against Realeo by setting aside the default judgment. We have also determined that the appellant may have defenses which have merit, and that the interests at stake are significant. These findings, however, must be weighed against Apex Restaurants, Inc.’s intransigence and its failure to present any excusable or unavoidable cause for not timely filing any responsive pleadings.
We believe that the proper balance in this case requires the Court to affirm the trial court’s denial of appellant’s motion to set aside judgment of default. We said in Hinerman, 172 W.Va. at 782, 310 S.E.2d at 848, that “although this court is quite willing to review default judgments and to overturn them in cases where good cause is shown, a demonstration of such good cause is a necessary predicate to our overruling a lower court’s exercise of discretion.”
We also note that Rule 60(b) requires the filing on a motion to set aside judgment within a reasonable time not to exceed one year. See supra, footnote 3. In the instant case Apex Restaurants, Inc. (Apex-WV) filed its motion well beyond the one-year time period. The Rule 60(b) motion was filed only after Shawkey had been sued personally in a second lawsuit by Realeo in an attempt to make Shawkey personally liable for the debts of Apex Restaurants, Inc. under the lease. We also find that the filing of the motion to set aside judgment was not within a reasonable time as required by Rule 60(b).
III.
Based on the foregoing we find the circuit court did not abuse its discretion in denying Apex Restaurants, Inc.’s motion to set aside judgment, and, therefore, we affirm the ruling of the circuit court.
Affirmed.
Chief Justice ALBRIGHT dissents and reserves the right to file a dissenting opinion.
. The stated term of the written lease was from February 4, 1997, ending on February 3, 2007.
. On May 25, 2000, a separate complaint was filed by Realeo against Shawkey, individually, claiming that the corporate veil should be pierced and that Shawkey should be held personally liable for Apex Restaurants, Inc.'s debts. The later-filed case against Shawkey was consolidated with the instant case and is still pending in the circuit court.
. W.Va.R.Civ.P. Rule 60(b) [1998] reads as follows:
(b) Mistakes; inadvertence; excusable neglect; unavoidable cause; newly discovered evidence; fraud, etc. — On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, excusable neglect, or unavoidable cause; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to grant statutory relief in the same action to a defendant not served with a summons in that action, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, petitions for rehearing, bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
. We note that the trial court’s order ruling on the motion to set aside the default judgment does not contain specific findings of fact and conclusions of law with respect to the factors which must be considered under Parsons v. Consolidated Gas Supply Corporation, 163 W.Va. 464, 256 S.E.2d 758 (1979). We take this-opportunity to encourage trial courts, when ruling upon Rule 60(b) motions to set aside default judgments, to address these factors in detail in their orders. | [
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Justice STARCHER delivered the Opinion of the Court.
STARCHER, J.:
This is an appeal of a conviction for misdemeanor battery from the Circuit Court of Monongalia County.
In this case, after his arrest, and after being fully advised of his constitutional right to the assistance of counsel, the appellant chose to represent himself in magistrate court and was subsequently convicted of misdemeanor battery. The appellant appealed the magistrate court conviction to the circuit court. The circuit court did not advise the appellant of his right to counsel, and did not question the appellant’s decision to exercise his right to self-representation before the circuit court. After a bench trial before the circuit court, the appellant was once again convicted of misdemeanor battery.
We are now asked to examine the circuit judge’s post-trial conclusion — made in the absence of any pre-trial admonitions to or colloquies with the appellant — that the appellant knowingly, intelligently and voluntarily waived his right to representation by an attorney before the circuit comb. As set forth below, we find no error in the circuit judge’s determination and affirm the conviction.
I.
Facts & Background
On May 5, 2001, appellant Francis Anthony Sandor, III was arrested and charged with misdemeanor battery in Monongalia County, West Virginia. The arrest followed an altercation inside a convenience store in which the appellant knocked a female acquaintance to the ground and restrained her there while claiming he was making a “citizen’s arrest.”
Later that day, the appellant was arraigned in magistrate court and signed a form expressly waiving his right to counsel. Subsequently, in the magistrate court proceeding, the appellant filed eight motions and one request for discovery on his own behalf. A bench trial was conducted by a magistrate on November 14, 2001, and despite the appellant’s pro se defense, he was convicted of misdemeanor battery.
On November 19, 2001, the appellant filed paperwork with the magistrate court clerk to initiate an appeal of his case to the circuit court. Included with the paperwork that the magistrate court clerk had the appellant complete was a financial affidavit that is used to determine an accused’s eligibility for public defender services. This affidavit — which in Monongalia County is normally forwarded to the circuit court for determination of whether counsel should be appointed for an accused — was instead inadvertently lodged in the appellant’s magistrate court file. The magistrate court file was thereafter forwarded to the circuit court on November 30, apparently with the financial affidavit still buried within.
The circuit court scheduled the trial of the appellant’s case to begin on January 22, 2002. Prior to his trial, on January 17, the appellant — still acting pro se — filed a motion for a continuance because of “the time that would be needed to subpoena witnesses for my defense.” The appellant asserted that he needed more time to prepare because he was unaware that a trial date had been scheduled, and because he had been out of town from the end of November 2001 through early January 2002. A hearing on the continuance motion was held the next day and the motion was denied. At that hearing, the appellant indicated to the circuit court that he complet ed a financial affidavit, but had done so because the magistrate clerk “had me just fill out these two papers” and that he filled out “whatever they gave me.” The appellant told the circuit judge that “I filled out a pauper’s affidavit just so I could get a [new trial] date.”
At no time — either by any other witting or by any statement — did the appellant ever affirmatively indicate to the circuit court, to the prosecutor, or to anyone else that he wished to alter his decision to proceed on the misdemeanor battery charge without the assistance of counsel. Instead, the record is replete with statements and conduct which the circuit court later found indicative of the appellant’s desire to continue self-representation.
Furthermore, the record indicates that the circuit court had previous experience with the appellant acting pro se in a criminal matter. At the same time that the appellant was representing himself in magistrate court in the misdemeanor case at bar, the record reveals that the appellant had a separate felony criminal case pending before the same circuit judge. In that separate case, he had asserted his right to self-representation. More importantly, two months before his circuit court trial on the misdemeanor battery charge, the appellant had represented himself at his trial on the felony charge and was acquitted.
The record indicates that the appellant was brought before the circuit judge for arraignment on a felony charge on June 8, 2001. The appellant initially advised the circuit judge that he intended to obtain counsel. Several subsequent hearings and trial dates were continued because the appellant asserted that he needed additional time to obtain counsel. The circuit court finally appointed counsel for the appellant, but the appellant rejected the attorney’s appointment and thereafter proceeded pro se.
Trial of the felony charge was finally scheduled to begin in circuit court on November 27, 2001. The appellant appeared pro se at a circuit court hearing on November 19, 2001 and again argued for a continuance— but this time asserted only that he did not have transcripts of prior healings and was therefore unprepared for trial. The appellant, acting pro se, filed and argued several other motions at the same hearing. Another hearing was held on November 26, 2001, and the appellant again addressed several motions he prepared by himself, including motions to continue the trial. The circuit judge refused to grant the appellant additional continuances. None of the appellant’s motions or actions at either of these hearings indicate ed to the circuit judge that the appellant was seeking the assistance of counsel or that he no longer wished to continue to proceed pro se.
A jury trial began on the appellant’s felony charge in circuit court on November 27, 2001. The appellant again renewed his motion to continue, not because he had no attorney, but because he wanted more time to prepare for trial. The motion was denied. After a two-day trial, during which the appellant acted wholly without the assistance of counsel, the appellant was acquitted of the felony charge.
Thereafter the circuit court’s appellate retrial of the appellant’s misdemeanor battery charge was conducted on January 22, 2002. At trial, the appellant — acting pro se — cross-examined all three of the prosecution’s witnesses, raised an objection to the testimony of one, and moved for a judgment as a matter of law at the close of the prosecution’s case, arguing that the case against him was insufficient. The appellant also testified on his own behalf, and presented a closing argument summarizing his defense and analyzing the evidence presented. At no time during this appellate trial did the appellant request the assistance of an attorney. After considering the evidence, on January 25, 2002, the circuit court entered a judgment of guilty against the appellant.
On February 4, 2002, a motion was filed by the appellant formally requesting the assistance of counsel for the appeal process. Another motion filed the same day asked the circuit judge to clarify for the appellant “why I didn’t receive the Counsel requested;” attached to this motion was the financial affidavit completed by the appellant on November 19, 2001.
The circuit court immediately appointed counsel for the appellant. Several post-trial motions were filed by counsel, including a motion for a new trial alleging that the appellant had been deprived of his constitutional right to counsel. Copies of transcripts from the appellant’s felony case were requested on June 14, 2002, to assist the circuit court in assessing whether the appellant had knowingly, intelligently and voluntarily proceeded without the assistance of counsel in the misdemeanor case; unfortunately, those transcripts were not produced for nearly two years.
After reviewing the record and conducting several hearings, the circuit court concluded that the appellant had completed a financial affidavit on November 19, 2001, only so he could secure a new trial date, not because he was seeking the appointment of counsel. In an order dated August 11, 2004, that denied the appellant’s motion for a new trial, the circuit court stated, “The Court is convinced that the [appellant] did not complete the affidavit to obtain Court Appointed counsel, nor did the [appellant] desire Court Appointed counsel.” Based upon the record in the instant case and the record in the appellant’s felony ease, the circuit court concluded that “the [appellant] never intended to request Court Appointed counsel and that he made a knowing, intelligent and voluntary decision to represent himself in this proceeding.”
Thirty-three months after trial was held in circuit court, on October 21, 2004, the circuit court entered an order sentencing the appellant to jail for one year and ordering him to pay a fine of $100.00. The appellant was also ordered to pay restitution to the victim, and to pay all court costs and appointed attorney fees.
The appellant now appeals the circuit court’s orders.
II.
Standard of Review
In the instant case we are called upon to consider whether the appellant knowingly, intelligently and voluntarily waived his right to counsel in his bench trial before the circuit court, after having so waived counsel in his bench trial before a magistrate.
We review a judge’s decision to allow an accused to exercise his right to self-representation under an abuse of discretion standard. As we stated in Syllabus Point 1 of State v. Powers, 211 W.Va. 116, 563 S.E.2d 781 (2001):
When a criminal defendant who has asserted the right of self-representation seeks to relinquish that right and utilize substitute counsel, this Court will apply an abuse of discretion standard of review to the trial court’s decision on the matter.
The instant case, however, differs from Powers in a substantial way: the record is simply not clear whether the appellant — who had previously asserted the right of self-representation in magistrate court — truly sought to relinquish that right in circuit court.
Our inquiry must, therefore, include an examination of the factual record to determine whether the appellant intended to exercise his right to self-representation before the circuit court. “Whether the waiver of the right to counsel was intelligently and understandingly made is a question of fact.” State ex rel. Powers v. Boles, 149 W.Va. 6, 9, 138 S.E.2d 159, 162 (1964). The circuit court made factual findings that the record, taken as a whole, established that the appellant intended to proceed without the assistance of counsel. “When this Court reviews challenges to the findings and conclusions of the circuit court, a two-prong deferential standard of review is applied. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard.” Syllabus Point 1, McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Phillips v. Fox, 193 W.Va. 657, 661, 458 S.E.2d 327, 331 (1995), quoting, United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948).
III.
Discussion
It has long been recognized that the right to the assistance of counsel guaranteed by the Sixth Amendment to the Constitution of the United States, and by Article III, Section 14 of the West Virginia ConstiUition, embodies a correlative right to waive the assistance of counsel. See Faretta v. California, 422 U.S. 806, 814, 95 S.Ct. 2525, 2530, 45 L.Ed.2d 562, 570 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942)); Syllabus Point 7, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983).
“A person accused of a crime may waive his constitutional right to assistance of counsel ... if [such a waiver is] made intelligently and understandingly.” Syllabus Point 5, State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d 159 (1964). In State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (W.Va.1983), we concluded that an accused could exercise his right to self-representation, but recognized that the light was subject to reasonable restrictions. As we stated in Syllabus Point 8 of Sheppard:
A defendant in a criminal proceeding who is mentally competent and sui juris, has a constitutional right to appear and defend in person without the assistance of counsel, provided that (1) he voices his desire to represent himself in a timely and unequivocal manner; (2) he elects to do so with full knowledge and understanding of his rights and of the risks involved in self-representation; and (3) he exercises the right in a manner which does not disrupt or create undue delay at trial.
The appellant argues that the circuit court had an unconditional duty to advise the appellant, on the record, of his right to counsel in his appeal before the circuit court. Furthermore, the appellant argues that the circuit court had a duty to interrogate the appellant, on the record, to ascertain that the appellant’s decision to proceed without counsel was made with full knowledge and understanding of his rights and of the risks involved with self-representation. Because the circuit court made no inquiries of the appellant, and made no attempt to advise the appellant of the perils of proceeding pro se, the appellant argues that his constitutional rights were violated and that his conviction in the circuit court must be reversed.
The State concedes that it is helpful and appropriate for a circuit judge to engage in such a colloquy with an accused on the record. However, the State argues that such a colloquy is not required by the State or federal Constitution so long as the appellant’s conduct and other evidence of record make it clear that the appellant knew of his rights and of the risks but chose self-representation. We agree.
The predominant trend among courts appears to be that when an accused decides to proceed without the assistance of counsel, trial courts should question the accused to assess whether the decision has been made knowingly and intelligently. As we stated in Sheppard,
The determination of whether an accused has knowingly and intelligently elected to proceed without the assistance of counsel depends on the facts and circumstances of the ease. The test in such cases is not the wisdom of the accused’s decision to represent himself or its effect upon the expeditious administration of justice, but, rather, whether the defendant is aware of the dangers of self-representation and clearly intends to waive the rights he relinquishes by electing to proceed pro se. To this end, the trial court is required to conduct, on the record and out of the presence of the jury, an inquiry of the defendant, informing him of his rights and of the possible consequences of self-representation.
172 W.Va. at 671, 310 S.E.2d at 188 (citations omitted). See also, Syllabus Point 2, State v. Sandler, 175 W.Va. 572, 336 S.E.2d 535 (1985) (partially quoting the above text from Sheppard).
Sheppard requires “a ‘penetrating and comprehensive inquiry,’ including an interchange with the defendant that produces more than passive ‘yes’ and ‘no’ responses.” 3 Wayne R. LaFave, Jerold H. Israel & Nancy King, Criminal Procedure § 11.5(c) at 575 (2nd ed. 1999). The trial court’s inquiry should be calculated:
1. To ascertain if the defendant is cognizant of and willing to relinquish his right to assistance of counsel.
2. To insure that the accused is aware of the nature, complexity and seriousness of the charges against him and of the possible penalties that might be imposed.
3. To warn the accused of the danger and disadvantages of self-representation, (e.g., that self-representation is almost always detrimental and that he will be subject to all the technical rales of evidence and procedure, the same as if he had been represented by counsel.)
4. To advise the defendant that he waives his right to refuse to testify by going outside the scope of argument and testifying directly to the jury.
5. To make some inquiiy into the defendant’s intelligence and capacity to appreciate the consequences of his decision.
State v. Sandler, 175 W.Va. 572, 574, 336 S.E.2d 535, 537 (1985).
A trial court is not, however, required to follow Sheppard as though it were a sacrosanct litany, and the failure to make inquiry as to any particular topic does not make a reversal of a conviction inevitable. As we have stated:
These guidelines are not mandatory. The omission of one or more of the warnings in a particular case would not necessarily require reversal, so long as it is apparent from the record that the defendant made a truly intelligent and knowledgeable waiver of his right to counsel.
Sandler, 175 W.Va. at 574, 336 S.E.2d at 537.
The goal of Sheppard is that the accused be aware of the right to counsel and the disadvantages of proceeding pro se. That awareness can be established, however, without regard to any admonitions or colloquies by the court. “[B]ecause the test [for a valid waiver of the right to counsel] concerns what the accused understood rather than'what the court said or understood, explanations are not required.” United States v. Kimmel, 672 F.2d 720, 722 (9th Cir.1982).
Hence, when a colloquy regarding the accused’s decision to proceed pro se is not reflected in the record, appellate courts may proceed to examine the totality of the circumstances of the ease and the background of the accused in an attempt to assess whether the accused’s deeisipn was constitutionally fair. “In most jurisdictions, the preferred procedure as to warnings and inquiries is exactly that: appellate courts describe the procedure as the ‘better’ practice, but do not require that the lower courts adhere to it.” 3 Wayne R. LaFave, Jerold H. Israel & Nancy King, Criminal Procedure § 11.5(c) at 576. As one court stated in describing its “preference” for a detailed colloquy with an accused:
Our holding, that a specific on the record warning of tbe dangers and disadvantages of self-representation is not an absolute necessity in every case for a valid waiver of counsel, should in no way be interpreted as any indication that we disfavor such a policy. Exactly the opposite is true. At best, requiring appellate courts to search through voluminous records for evidence of knowledge of this type is a time-consuming effort and a waste of judicial resources. It is a waste of judicial resources not because it is a frivolous inquiry, but because it could be avoided with a relatively short and simple colloquy on the record. Indeed, such a practice would be better for all parties involved because it would both help prevent error, and it would make frivolous appeals easier to dispose of. Thus, we are hopeful that all courts will voluntarily pursue this practice and that government prosecutors will see the benefit in encouraging courts with other practices to change them.
Meyer v. Sargent, 854 F.2d 1110, 1115 (8th Cir.1988).
Because of the constitutional origins of an accused’s right to counsel, and correlative right to proceed without counsel, if the facts and circumstances in the record do not show that the accused knowingly and intelligently elected to proceed without the assistance of counsel, then reversible error has occurred unless it can be shown that the error was harmless beyond a reasonable doubt. See Syllabus Point 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975) (“Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.”).
We therefore conclude that when an accused chooses to proceed without the assistance of counsel, the preferred procedure is for the trial court to warn the accused of the dangers and disadvantages of self-representation and to make inquiries to assess whether the accused’s choice is knowing, intelligent and voluntary. In the absence of such a colloquy, a conviction may be sustained only if the totality of the record demonstrates that the accused actually understood his right to counsel, understood the difficulties of self-representation, and still knowingly and intelligently chose to exercise the right to self-representation.
In the instant case, after a careful review of the record, we cannot say that the circuit court erred in allowing the appellant to proceed with his circuit court appeal without the assistance of counsel.
To begin, the record clearly reflects that on May 5, 2001, the appellant was advised by a magistrate, and therefore plainly knew, that he had a right to the assistance of counsel on his misdemeanor battery charge. The record further reflects that the appellant intelligently, knowingly and voluntarily informed the magistrate that he wished to proceed without counsel. The appellant thereafter actively participated in his magistrate court defense, albeit unsuccessfully.
Furthermore, the record does not reflect that the appellant unequivocally, informed the circuit court that he had changed his initial decision, and that he wished to be represented by counsel in the circuit court. In most instances, the completion of the financial affidavit that is used to determine an accused’s eligibility for public defender services constitutes “an application for the provision of publicly funded legal representation.” W.Va. Code, 29-21-16(b). While the appellant did complete a financial affidavit, the record is clear that he did not do so because he wanted publicly-funded legal representation. When the appellant appeared pro se before the circuit court, he did not ask the court to rule on the application and appoint him a lawyer. Instead he told the court that he filled out the financial affidavit merely because a magistrate clerk “had me just fill out these ... papers” and because he thought that by filling out the papers he could “get a date” for a new trial. Nowhere in the record do we otherwise find any indication that the appellant indicated to the court, to the prosecutor, or to anyone else that he wished for the assistance of an attorney. Accordingly, because the appellant left the circuit court with the understanding that he wished to continue to proceed pro se, we cannot say on this record that the circuit court erred in allowing him to do so.
We acknowledge that the record does not contain a colloquy between the circuit court and the appellant concerning the appellant’s right to counsel and right to self-representation. The perils presented by the lack of a colloquy are firmly demonstrated by the facts in this case: following the appellant’s circuit court conviction, the circuit court was required to embark on a thirty-three-month review of the record in this case and the appellant’s concurrent felony case to assess whether the appellant’s decision to proceed without counsel was constitutionally acceptable. The appellant’s appeal to this Court was granted exclusively because of the lack of any colloquy, and this Court has also struggled to review a sterile record to assess the appellant’s understanding and motives prior to his January 2002 trial. Several minutes of pre-trial conversation by the circuit court would have obviated years of litigation.
Still, taken in its totality, the record indicates that the appellant presented the circuit court with every appearance that he stubbornly wished to proceed on his own. The appellant was brought before the circuit court on felony charges in June 2001 at the same time that the instant misdemeanor battery charge was pending. In that felony case, the appellant was repeatedly given opportunities by the circuit court to either hire counsel or to have counsel appointed on his behalf. Each time, the appellant declined counsel and, when his case finally went to trial in November 2001, he was acquitted after ably representing himself. Combined with the appellant’s explicit rejection of counsel in the magistrate court when he was arrested in May 2001; his actions in filing motions and proceeding to trial in magistrate court without counsel; his failure to unequivocally indicate to the circuit court that he wanted the assistance of counsel in the circuit court; and his actions and statements before the circuit court, we cannot say that the circuit court erred in not inquiring of the appellant whether he was aware of his right to counsel, or aware of the perils of proceeding to trial without counsel.
In sum, we perceive that the appellant actually understood his right to counsel, understood the difficulties of self-representation, and still knowingly and intelligently chose to exercise the right to self-representation in this case in both the magistrate court and the circuit court. We therefore cannot say from the existing record that the appellant was deprived of any constitutional right.
IV.
Conclusion
Finding no error with the appellant’s conviction and sentence, we affirm the circuit court’s orders of August 11, 2004 and October 21, 2004.
Affirmed.
. The appellant does not dispute that the altercation occurred: when police arrived at the convenience store, they found the appellant (who stood six feet, six inches tall and weighed 245 pounds) pinning the female (who was five feet, two inches tall and weighed 109 pounds) down. Witnesses indicated the appellant held her down for nearly fifteen minutes by placing his foot on her throat while simultaneously holding her arms.
The parties present different versions of the events leading up to the altercation. The appellant asserts that the female victim approached the appellant as he sat peacefully in a vehicle in the convenience store's parking lot and, unprovoked, struck the appellant in the face. The appellant further asserts that as the victim fled, he followed her into the store and attempted to call the police on a payphone. The appellant alleges that the victim again attacked him, causing damage to the payphone, and in response he was compelled to restrain her while awaiting the arrival of the police.
The victim suggested a different course of events. The victim apparently first met the appellant in a nearby bar when the appellant offered the victim some cocaine. The victim maintained that when she declined the appellant’s proposal and revealed the appellant's cocaine use to others, the appellant became upset and began screaming epithets about the victim. The victim claimed she fled the bar in fear and walked to the convenience store. While waiting for a ride she saw the appellant ride up in a vehicle in the parking lot. The victim said that when she approached the car, the appellant grabbed her arm and tried to pull her into the car. At that point, she claimed she struck the appellant and fled back into the store to call a friend on a payphone. The appellant pursued her into the store, pulled her away from the payphone (and in the process ripped the handset off of the payphone) and pinned her to the ground.
Both the magistrate and the circuit judge appear to have rejected the appellant's version of events in favor of the victim’s version.
. The appellant does not dispute that he was fully advised of his right to counsel in magistrate court, and that he knowingly and intelligently waived that right. The magistrate court form, entitled "Initial Appearance: Rights Statements," stated in pertinent part:
The magistrate has informed me that ... I have the right to be represented by an attorney at every further proceeding and that, if I qualify as being unable to afford to hire an attorney, one will be appointed to represent me. I understand that if I decide to represent myself, I cannot later claim that I was denied my right to be represented by an attorney.
DEFENDANT MUST INITIAL ONE OF THE FOLLOWING THREE CHOICES:
/s/ FSIII (a) I give up my right to have an attorney represent me.
A magistrate also signed the form, indicating that he had informed the appellant of his rights, and that the appellant had waived his right to counsel "knowingly and voluntarily.”
. The affidavit is a form allowing the accused to set forth his or her financial condition, and for the local public defender office (or, in the absence of such an office, a circuit judge) to determine if the accused is legally eligible for the appointment of counsel. The form does not specifically state, "I want an attorney.”
However, the affidavit operates as a demand for counsel through the operation of W.Va.Code, 29-21-16(b) [1990], which states:
All persons seeking legal representation made available under the provisions of this article [pertaining to the provisions of public defender services] shall complete the agency's financial affidavit form, which shall be considered an application for the provision of publicly funded legal representation.
. The appellant stated to the circuit court:
Your honor, on the finding in magistrate court, I went to their office and filled out two papers for a notice of intent to appeal, or whatever they gave me. I’ve got them here, as soon as I locate them.... And these — that they would be placed back in front of Magistrate Roberts to be approved. And these are the two that I filled out blank, and it was 11-19-01, and I had the problem — you know, I didn't know if he filled out in a timely manner, so I filled out a pauper’s affidavit just so I could get a date.... And now I don’t have it with me, but I was sent a paper. It was a copy, and the date on it was — that it had been set for 7-18. That was the understanding that I had ... that the case was set for July 18th.
. Various statements by the appellant to the circuit court include:
"I have a list of materials for evidence and I have — I prepared the case.” |
"I have the case basically together. I just need some time to pull it all together.”
"I have several motions that I would like to present to the court, and they're not ready. I have a rough draft on some of them[.]"
“[T]he case basically depends on the credibility of two witnesses’ statements, and with the West Virginia Rules of Evidence, I can attach the truthfulness with their character. And I'm referring to, I believe, 608A, 608B, 613, 609A, and those are basically the issues I was dealing with on preparing for the case.”
"He would have to be subpoenaed, and I would have to be able to lead him as a hostile witness because in the manner in which he testified last time.” .
"But, anyway, I would have to lead the witness. He would have to be my witness and cross-examination wouldn’t be sufficient, I feel.”
.Coincidentally, November 19, 2001 is the same day upon which the appellant completed the financial affidavit and other paperwork to begin the appeal of his magistrate court conviction to the circuit court.
. The Benchbook for U.S. District Court Judges, published by the Federal Judicial Center, provides a guide for questions a judge can ask to convey the disadvantages the defendant will likely suffer if he proceeds pro se:
(1) Have you ever studied law?
(2) Have you ever represented yourself in a criminal action?
(3) Do you understand that you are charged with these crimes:
[state the crimes with which the defendant is charged]?
(4) Do you understand that if you are found guilty of the crime charged in Count I the court must impose an assessment of $50 and could sentence you to as many as_years in prison and fine you as much as $_? [Ask defendant a similar question for each crime with which he or she may be charged in the indictment or information.]
(5) Do you understand that if you are found guilty of more than one of those crimes this court can order that the sentences be served consecutively, that is, one after another?
(6) Do you understand that the U.S. Sentencing Commission has issued sentencing guidelines that will affect your sentence if you are found guilty?
(7) Do you understand that if you represent yourself, you are on your own? I cannot tell you or even advise you how you should try your case.
(8) Are you familiar with the Federal Rules of Evidence?
(9) Do you understand that the Federal Rules of Evidence govern what evidence may or may not be introduced at trial and that, in representing yourself, you must abide by those rules?
(10) Are you familiar with the Federal Rules of Criminal Procedure?
(11) Do you understand that those rules govern the way a criminal action is tried in federal court?
[Then say to defendant something to this effect:]
(12) I must advise you that in my opinion a trained lawyer would defend you far better than you could defend yourself. I think it is unwise of you to try to represent yourself. You are not familiar with the law. You are not familiar with court procedure. You are not familiar with the rules of evidence. I.strongly urge you not to try to represent yourself.
(13) Now, in light of the penalty that you might suffer if you are found guilty, and in light of all of the difficulties of representing yourself, do you still desire to represent yourself and to give up your right to be represented by a lawyer?
(14) Is your decision entirely voluntary?
til the answers to the two preceding questions are yes, say something to the following effect:]
(15) I find that the defendant has knowingly and voluntarily waived his right to counsel. I therefore permit the defendant to represent himself [herself].
Benchboolc § 1.02 (4th ed. 2000).
. See, e.g., Dallio v. Spitzer, 343 F.3d 553, 563 (2d. Cir.2003) (rejecting any "rigid waiver formulas or scripted procedures” and emphasizing that whether an accused's waiver is knowing and intelligent depends on the "totality of the circumstances”); Nelson v. Alabama, 292 F.3d 1291, 1295 (11th Cir.2002) (holding "that ideally a trial court should hold a hearing to advise a criminal defendant on the dangers of proceeding pro se,” but concluding that "failure to do so ... is not an error as a matter of law.”); United States v. Davis, 269 F.3d 514, 518-19 (5th Cir. 2001) (noting that although court "has consistently required ... Faretta warnings” regarding the clangers of self-representation, there is "no sacrosanct litany for warning defendants against waiving the right to counsel,” and courts must exercise discretion "[depending on the circumstances of the individual case.”); United States v. Lopez-Osuna, 242 F.3d 1191, 1199 (9th Cir.2001) (a trial judge does not need to "use a particular script” for there to be a valid waiver of the right to counsel, but rather the determination is based upon the circumstances of the individual case); United States v. Kind, 194 F.3d 900, 904 (8th Cir.1999) (noting that district court’s failure to "specifically warn[ ] the defendant of the dangers and disadvantages of self-representation” before allowing him to proceed pro se was not fatal if an appellate court could discern from "entire record” that "defendant had the required knowledge from other sources”); United States v. Hughes, 191 F.3d 1317, 1323-24 (10th Cir.1999) (holding that waiver of counsel "may be valid absent an inquiry by the court where the surrounding facts and circumstances, including the defendant’s background and conduct, demonstrate that [he] actually understood his right to counsel and the diffi culties of pro se representation and knowingly and intelligently waived his right” (internal quotation marks omitted)); United States v. Singleton, 107 F.3d 1091, 1097 (4th Cir.1997) (noting that counsel waiver requires “evaluating the complete profile of the defendant and the circumstances of his decision as known to the trial court at that time ... by examining the record as a whole”); United States v. Bell, 901 F.2d 574, 576-77 (7th Cir.1990) (expressing “strong preference” for formal waiver inquiry, but rejecting reversal "where the'record as a whole demonstrates that the defendant knowingly and intentionally waived his right to counsel”); United States v. Hafen, 726 F.2d 21, 26 (1st Cir.1984) ("Although the practice of issuing specific warnings to defendants who wish to proceed pro se is a good way — perhaps the best way — to insure that the requirements of Faretta are met, it is not the only way.”).- | [
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PER CURIAM:
Beverly Selby, guardian ad litem (“GAL”) for Ben W. (“child”), and George B.W., father of the child, appeal a June 4,1997 order of the Circuit Court of Kanawha County that returned custody of the child to Sharon B.W. (“appellee”), mother of the child. Prior to the order George B.W. (“appellant”) had temporary custody of the child. During this period he sought a change of custody, alleging that the appellee’s boyfriend had sexually abused the child. The circuit court denied the request.
On appeal, appellant and the GAL argue that the circuit court was clearly wrong not to find that the child had been sexually abused, that the court had erred in failing to qualify a child psychologist as an expert wit ness, and that the court erred in evaluating the issue of sexual abuse on a preponderance of evidence standard. After reviewing the extensive record in this case and the arguments of the parties, we affirm the circuit court, in part, and remand this matter for further proceedings.
I.
The appellant and the appellee were married on May 21, 1988 and separated on or about April 7, 1995. The appellee thereafter filed for divorce in the Circuit Court of Ka-nawha County. During the course of the marriage the couple had one child who was approximately 4 years old at the time the parties separated. Following the separation, the appellee was temporarily awarded custody pending a final disposition. The appellant was given liberal visitation.
During the summer of 1996, the appellant father had an extended visitation with the child. During the visitation period the child allegedly accused the appellee’s boyfriend of sexual abuse. Following the accusations, the appellant obtained the services of Dr. Timothy Freeman, a child psychologist. The appellant also successfully obtained from the circuit court an emergency order granting the appellant temporary custody of the child based on the sexual abuse allegations. He thereafter filed a petition to change custody.
Attorney Beverly Selby was appointed as guardian ad litem for the child for further proceedings. The custody issue came before the family law master who directed the appellant to make the child available for examination by the appellee’s experts. Apparently the appellant resisted, and the appellee filed a motion in the circuit court to compel the appellant to present the child to appellee’s selected expert for a psychological evaluation. The motion was granted.
The appellant promptly sought a writ of prohibition in this Court — our first George B.W. case. The appellant contended that the order permitting an evaluation by the appel-lee’s experts was an abuse of discretion. That issue and others were addressed in State ex rel. George B.W. v. Kaufman, 199 W.Va. 269, 483 S.E.2d 852 (1997).
In George B.W. we granted the writ as moulded, requiring the circuit court to take evidence to determine the appropriateness of the appellee’s request for an additional evaluation of the child. The matter was remanded to the circuit court for further proceedings on the issues of expert evaluation of the child, modification of custody and supervised visitation.
Following remand, the parties conducted discovery, and a 6 day hearing was held before the circuit court.
During the course of the hearing, the circuit court refused to qualify Dr. Timothy Freeman as an expert, who was offered by the appellant to support appellant’s suspicions of sexual child abuse. The court found that the while the witness was a clinical psychologist, the witness did not have the necessary training, in-class and/or clinical experience to be an effective and competent witness in a child sexual abuse case. The court further found that Dr. Freeman was not “qualified to testify in this matter as an expert witness in the area of child sexual abuse.”
The appellant also called Dr. Christina Arco, Ph.D., a child psychologist, as a witness. Dr. Arco’s testimony was limited to her review of Dr. Freeman’s techniques. Dr. Arco was quálified by the circuit court as an expert witness in child psychology and as a forensic witness. Dr. Arco, who had not interviewed the child, testified that Dr. Freeman’s procedures in interviewing the child were valid, as were questions presented to the child during the interview.
Dr. William Bernet, a child psychiatrist testifying for the appellee, was accepted by the court as an expert witness. Dr. Bernet testified that he did not believe that the child had been sexually abused, but rather was confused due to the pressures and strains the child was experiencing from his parents' separation.
The circuit court evaluated the evidence on sexual abuse under a preponderance of the evidence standard and determined that the sexual abuse allegations were not proven. The court refused to award full custody of the child to the appellant. The appellee's expert, Dr. Bernet, was directed by the court to develop a reunification plan between the child and the appellee, who was reassuming physical custody of the child. Dr. Bernet was also directed to establish a visitation plan for the child and the appellant. Since the June 4, 1997 circuit court order, Dr. Bernet has been coordinating the family plan for the parties.
II.
The standard of review in this case is as follows:
This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.
Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). See also, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).
The first assignment of error we examine is whether the lower court erred in using a preponderance of the evidence standard, rather than a credible evidence standard, to determine if sexual abuse had been proven.
The appellant and the GAL rely on Syllabus Point 2 of Mary D. v. Watt, 190 W.Va. 341, 438 S.E.2d 521 (1992) for the proposition that "[a] finding that sexual abuse has occurred must be supported by credible evidence." Mary D., supra, 190 W.Va. at 348, 438 S.E.2d at 528. However in Mary D., we were examining the issue of supervised visitation in situations where the non-custodial parent has been charged with sexual abuse. This Court determined in Mary D., that when a non-custodial parent has been charged with abuse, the trial court may order supervised visitation in order to protect the child, and the allegation of sexual abuse need only be supported by credible evidence. The general standard of proof in civil cases is preponderance of evidence. See generally, Brown v. Gobble, 196 W.Va. 559, 563, 474 S.E.2d 489, 493 (1996). In Mary D., we stated that because termination of parental rights was not involved, but only supervised visitation, that the standard of credible evidence was sufficient.
In this case, allegations of sexual abuse were not made against a visiting or custodial parent, but rather a third party. For this reason, we do not extend the lower credible evidence standard to this case.
The appellant and the GAL next argue that the lower court was clearly erroneous in faffing to qualify Dr. Timothy Freeman, Ph.D. as an expert witness. In determining who is an expert, circuit courts must conduct a two-step inquiry:
First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testi~r.
Syllabus Point 5 in part, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995). Dr. Freeman is a clinical psychologist who has worked with children since the 1980's. Dr. Freeman's graduate studies included work at a clinic where children who had been sexually abused were treated. He testified that, as a child psychologist, while he had worked with some sexually abused children, it was not the larger part of his primary practice. The circuit court acknowledged that Dr. Freeman was a child psychologist, but determined that because Dr. Freeman had testified in only three previous court matters, and because his practice did not encompass a great number of sexually abused children, Dr. Freeman did not qualify as an expert witness.
Under Gentry we must first determine if Dr. Freeman meets the minimal educational or experiential qualifications. Dr. Freeman’s extensive training and professional experience should obviously qualify him as an expert witness in a matters relating to child custody. We have held that courts should err on the side of admissibility. Gentry, supra, 195 W.Va. at 525, 466 S.E.2d at 184. When an expert witness is qualified by training or education, “it is an abuse of the trial court’s discretion to refuse to qualify that individual as an expert.” Cargill v. Balloon Works, Inc., 185 W.Va. 142, 146, 405 5.E.2d 642, 646 (1991) (per curiam). The testimony of Dr. Freeman was in a “field that [was] relevant to the subject under investigation.” Gentry, supra. Further, the testimony offered by Dr. Freeman would have assisted the trier of fact.
The second prong that circuit courts must examine is whether Dr. Freeman’s area of expertise covered the particular opinion that Dr. Freeman sought to render to the court. We have held that “a witness may be qualified as an expert by practical experience in a field of activity conferring special knowledge not shared by mankind in general.” Syllabus Point 2 in part, State v. Baker, 180 W.Va. 233, 376 S.E.2d 127 (1988). Dr. Freeman sought to render testimony concerning the interviews with the child and the conclusions he reached following these interviews. The area of expertise held by Dr. Freeman qualified him to testify concerning these issues.
We therefore conclude that the circuit court was clearly erroneous in failing to qualify Dr. Freeman as an expert. However, Dr. Freeman was permitted to testify and the court heard his entire testimony. Consequently, we find that the error committed by the circuit court in failing to qualify Dr. Freeman as an expert witness did not constitute reversible error.
Finally, the appellant and the GAL argue that the circuit court was clearly erroneous in failing to find that the child was sexually abused. This is a question of fact that is reviewed under a clearly erroneous standard. See Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). There was no physical evidence of abuse in this case, and the allegations of abuse were made under an extremely trying time in the life of a little child. Therefore, we do not find that the lower court was clearly erroneous in its findings.
We next address an area of great concern to this Court, the issue of visitation. The appellant in this matter has been effectively cut off from his child following the entry of the circuit court’s last order. Appellant has been permitted two 1 hour visitations with his child and no phone calls. We have held:
If the protection of the children provided by supervised visitation is no longer necessary, either because the allegations that necessitated the supervision are determined to be without “credible evidence’’ (Mary D. v. Watt, 190 W.Va. 341, 348, 438 S.E.2d 521, 528 (1992)) or because the noncustodial parent had demonstrated a clear ability to control the propensities which necessitated the supervision, the circuit court should gradually diminish the degree of supervision required with the ultimate goal of providing unsupervised visitation. The best interests of the children should determine the pace of any visitation modification to assure that the children’s emotional and physical well being is not harmed.
Syllabus Point 4, Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).
In this matter, no evidence was offered tending to show that the father abused the child. The ultimate goal in this case is for the child to have the best relationship possible with both of his parents. Therefore, we direct the lower court to forthwith address the issue of visitation so as to establish a meaningful visitation plan for the parties and the child. We remind both the appellant and the appellee not to discourage any visitation with the other parent, or to poison the child in the child’s relationship with the other parent in any way. Such conduct would be grounds to modify visitation or even modify custody. See generally, Lesavich v. Anderson, 192 W.Va. 553, 453 S.E.2d 387 (1994) (per curiam); Anderson v. Newman, 190 W.Va. 577, 439 S.E.2d 442 (1993) (per curiam); and Weece v. Cottle, 177 W.Va. 380, 352 S.E.2d 131 (1986) (per curiam).
Furthermore, should the mother appellee resume a relationship with the boyfriend who allegedly abused the child, said relationship could affect the mother’s custodial rights.
III.
In conclusion, we find that the circuit court did not err in using the preponderance of evidence standard in determining the issue of whether there had been sexual abuse of the child, and that the circuit court was not clearly erroneous on the issue of sexual abuse. We do find that the court erred in not qualifying Dr. Freeman as an expert witness, but we find this not to be reversible error. Finally, we remand this matter to the circuit court with instructions to forthwith address the matter of visitation to establish a meaningful visitation plan for the parties and the child.
Affirmed, in part, and remanded with directions.
. We point out that a per curiam opinion is not legal precedent See Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4 (1992).
. We follow our traditional practice in cases involving sensitive facts and use initials to identify the parties rather than their full names. See In re Jeffrey R.L., 190 W.Va. 24, 26 n. 1, 435 S.E.2d 162, 164 n. 1 (1993).
. Even though the appellee filed a divorce action in 1995, at the time this Court heard this matter, no final divorce had been granted. George B.W. lives in Charleston, West Virginia, and Sharon B.W. lives in Memphis, Tennessee.
. The record reflects that the mother appellee no longer has a relationship with the boyfriend who allegedly abused the child.
.It is difficult to ascertain as a matter of certainty whether allegations of sexual abuse in a vitriolic divorce have merit. In this matter it is troubling that George B.W. was before the family law master in a hearing on August 15, 1996. At that hearing George B.W. did not prevail. He then raised the sexual abuse issue for the first time the following day in pleadings filed with the circuit court.
. Circuit courts should not base their determination of whether an individual is an expert on the number of times an individual has appeared in court:
Whether a proffered expert witness has testified in court on prior occasions, while relevant, certainly is not dispositive. Once an expert witness passes the minimal threshold. further credentials affect the weight of the testimony not its admissibility.
Gentry, supra, 195 W.Va. at 523 n. 14, 466 S.E.2d at 182 n. 14.
. According to the child’s treating psychologist, the child recanted the allegations after returning to his mother's custody.
. The GAL informed this Court during oral argument that she has been instructed by the court not to have any contact with the child. 'This instruction is in direct conflict with In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993) in which we set out the duties and responsibilities of guardians ad Litem. The GAL is directed to perform those tasks set forth in In re Jeffrey, and to have that contact with the child necessary to perform her job. | [
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MAYNARD, Justice:
This case is before this Court upon appeal of a final order of the Circuit Court of Green-brier County entered on January 20, 2004. In that order, the appellant and defendant below, Helen Regina Webster, was found guilty of the offense of domestic battery and was sentenced to five days in jail. The sentence was suspended, however, and the appellant was placed on unsupervised probation for one year.
In this appeal, the appellant argues that the circuit court erred by not allowing her counsel to make a closing argument following the presentation of evidence at her bench trial. She also contends that the circuit court erred by not allowing her to introduce evidence of prior acts of violence by the victim toward her to show that she acted in self-defense. The appellant requests that her conviction be reversed and that she be granted a new trial.
This Court has before it the petition for appeal, the entire record, and the briefs of counsel. For the reasons set forth below, the appellant’s conviction is reversed, and this case is remanded for a new trial.
I.
PACTS
The appellant, Helen Regina Webster, owns and operates a pawn shop in White Sulphur Springs, West Virginia. She has a license to sell firearms. On July 31, 2003, the appellant went to the residence of her ex-husband, John Cargile. The appellant and Mr. Cargile’s divorce had become final a few months before, but the division of marital property had not been completed. Aceord- ing to the appellant, she and Mr. Cargile agreed to meet at his trailer to attempt to make a division of them marital property.
The appellant admits that she had a couple of drinks before she went to Mr. Cargile’s residence. Upon arrival, the appellant took a can of spray paint and painted “How do you like me now?” on the grass in Mr. Car-gile’s front yard. Thereafter, the appellant entered the trailer followed by Mr. Cargile. The appellant claims that upon entering the residence she realized that Mr. Cargile had taken several rifles belonging to her business so she decided to look around for other items from her shop. As the appellant searched the trailer, Mr. Cargile followed her. A physical altercation ensued, and Mr. Cargile called the police.
According to Mr. Cargile, after the appellant searched his residence, she began to punch, kick, and scratch him. He says that the physical abuse continued, for approximately two minutes, at which time the appellant’s son came in and took his mother outside to her truck. When the police arrived at the scene, the appellant was sitting in her truck outside of Mr. Cargile’s trailer. Following an investigation, the appellant was charged with domestic battery.
The appellant was convicted in magistrate court on October 1, 2003. She appealed the conviction and a bench trial was held in the Circuit Court of Greenbrier County. The circuit, court found the appellant guilty on January 13, 2004. She was sentenced to five days in jail, but the sentence was suspended, and she was placed on unsupervised probation for one year. The final order was entered on January 20, 2004, and this appeal followed.
II.
STANDARD OF REVIEW
As set forth above, the appellant has alleged two errors in this appeal. In particular, the appellant asserts that the circuit court erred by refusing to permit her counsel to make a closing argument. This issue presents a question of law. In Syllabus Point 1 of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995), this Court held that, “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.”
The appellant also contends that the circuit court erred by not allowing her to present certain evidence during her trial. This Court has held that, “ ‘The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion.’ Syllabus point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds, State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).” Syllabus Point 1, State v. Calloway, 207 W.Va. 43, 528 S.E.2d 490 (1999). With these standards in mind, we now consider whether the circuit court erred in its rulings.
III.
DISCUSSION
The appellant first contends that the circuit court erred by refusing to allow her counsel to make a closing argument during her bench trial. In support of her argument, the appellant relies upon Herring v. New York, 422 U.S. 853, 859, 95 S.Ct. 2550, 2554, 45 L.E.2d 593, 598 (1975), a case in which the United States Supreme Court declared that “the overwhelming weight of authority, in both federal and state courts, holds that a total denial of the opportunity for final argument' in a nonjury criminal trial is a denial of the basic right of the accused to make his defense.” In response, the State concedes that the circuit court erred by not allowing defense counsel to present a summation following the close of evidence.
The record supports the appellant’s assertion that her counsel was denied the right to make a closing argument. After the defense rested, the Court immediately began to issue a verdict. Defense counsel objected and asked for a mistrial stating,
I haven’t had a closing argument or an opportunity to discuss any of this. We haven’t had an opportunity to present any findings of fact. And you’re making a decision on this, Your Honor, I find that you have not given her a fair trial here, Your Honor.
The court noted the objection and replied, “I’ve heard enough and don’t want to hear any closing argument, very candidly, and it’s my option.”
The court clearly erred by refusing to allow the appellant’s counsel to make a closing argument. In Herring, the Court explained,
The Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may seem, unless he has waived his right to such argument, or unless the argument is not within the issues in the case, and the trial court has no discretion to deny the accused such right.
422 U.S. at 860, 95 S.Ct. at 2554, 45 L.E.2d at 599, quoting Yopps v. State, 228 Md. 204, 207, 178 A.2d 879, 881 (1962). Accordingly, we must reverse the appellant’s conviction. The appellant is entitled to a new trial because “a closing argument is a part of the trial, and a failure to allow the argument cannot be separated from the trial as a whole.” State v. Lovins, 177 Or.App. 534, 538, 33 P.3d 1060, 1063 (2001). See also Thomas v. United States, 473 A.2d 378, 378 (D.C.1984) (finding that the trial court could not satisfy the Herring right by allowing defense counsel to present a closing argument at a hearing following the defendant’s trial and conviction); M.E.F. v. State of Florida, 595 So.2d 86, 87 (Fla.Dist.Ct.App.1992) (finding that allowing closing argument to be presented in writing following defendant’s trial and conviction did not cure the error).
Therefore, we hold that a defendant in a criminal case has a right to present a closing argument at trial and the failure of a court to allow the defendant the opportunity to present an oral closing argument at trial constitutes reversible error that cannot be cured upon appeal by remand of the case for the purpose of permitting an oral closing argument post-trial.
This is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The ... judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He [or she] may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. [The judge] may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects [the judge] must have broad discretion
Herring, 422 U.S. at 862, 95 S.Ct. at 2555, 45 L.E.2d at 600.
IV.
CONCLUSION
Accordingly, for the reasons set forth above, the final order of the Circuit Court of Greenbrier County entered on January 20, 2004, is reversed, and this case is remanded for a new trial.
Reversed and remanded.
. See W.Va.Code § 61-2-28(a) (2001).
. The police officer who was called to the scene gave the appellant a preliminary breath test which showed that she was under the influence of alcohol.
. Mr. Cargile claims that the guns were gifts.
. The appellant's son had been working across the street from Mr. Cargile's residence.
. The investigating police officer took several pictures of Mr. Cargile which showed scratches on his arms, shoulders, and around his left ear.
. Having found that, the appellant is entitled to a new trial, we need not address her second assignment of error regarding the circuit court’s failure to allow her to present certain evidence at trial. | [
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Chief Justice ALBRIGHT delivered the Opinion of the Court.
Justices DAVIS and MAYNARD concur and reserve the right to file concurring opinions.
ALBRIGHT, Chief Justice.
This is an appeal by Ms. Vicky Lynn Gray (hereinafter “Appellant”) from the Circuit Court of Mercer County’s dismissal of the Appellant’s civil action alleging that a physi- eian, Ashraf Mena, M.D., physically assaulted her. The lower court dismissed the civil action based upon its finding that the Appellant failed to follow the pre-suit requirements of the West Virginia Medical Professional Liability Act. In response, the Appellant contends that she is not required to adhere to those prerequisites because this is not a medical malpractice action; rather, she characterizes it as a civil action for assault. Based upon this Court’s review of the record, arguments of counsel, and applicable precedent, we reverse the determination of the lower court and remand this matter to the lower court for reinstatement of the Appellant’s civil action.
I. Factual and Procedural History
In November 2001, the Appellant was admitted to Princeton Community Hospital with swelling in her lower extremities, abdominal pain, high blood sugar, a hormone deficiency, and Addison’s disease. The Appellant alleges that the defendant, Dr. Mena, examined her in a hospital room behind a closed curtain in the absence of a nurse or other staff member. The Appellant further alleges that Dr. Mena, without her consent, moved her underclothing and inserted his non-gloved finger into her vagina during the examination. The Appellant contends that this procedure was not medically necessary and constituted an assault and battery. In her November 21, 2003, complaint, the Appellant, asserting that the offensive action was in the nature of a battery or sexual assault, did not follow the pre-suit requirements of the Medical Professional Liability Act. See W.Va.Code § 55-7B-6(b) (2000) (Supp.2005).
On May 12, 2004, the lower court granted the defendants’ motions to dismiss, sustaining the defendants’ contention that the suit was subject to the requirements of the Medical Professional Liability Act. On appeal, the Appellant maintains that her failure to follow the prerequisites of the Act should not have resulted in dismissal of her civil action.
II. Standard of Review
In syllabus point two of State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995), this Court held that “[a]ppellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo.” See also Richardson v. Kennedy, 197 W.Va. 326, 331, 475 S.E.2d 418, 423 (1996). With specific regal'd to interpretations of statute, this Court stated as follows in syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995), as follows: “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Utilizing the de novo standard of review, we proceed to an analysis of the issues presented in this appeal.
III. Discussion
Pursuant to the definitions articulated by the West Virginia Legislature in the Medical Professional Liability Act, the Act applies only to “medical professional liability actions,” and the legislature has provided the following definition of that phrase in West Virginia Code § 55-7B-2® (2003) (Supp. 2005):
(i) “Medical professional liability” means any liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient.
In this Court’s analysis of the Act, we have acknowledged the limitation provided by that precise definition of medical professional liability and have explained as follows at syllabus point three of Boggs v. Camden-Clark Memorial Hospital Corp., 216 W.Va. 656, 609 S.E.2d 917 (2004):
The West Virginia Medical Professional Liability Act, codified at W. Va.Code § 55-7B-1 et seq., applies only to claims resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient. It does not apply to other claims that may be contemporaneous to or related to the alleged act of medical professional liability.
In Boggs, the plaintiff had combined a claim for medical malpractice with claims of fraud, destruction of records, the tort of outrage, and spoliation of evidence. Based upon failure to give timely notice on the malpractice claims, the trial court dismissed all claims and refused to allow the plaintiff to amend the complaint. In reviewing the trial court’s action, this Court explained in Boggs that the special protection granted to health care professionals does not extend to all acts committed by those individuals.
Fraud, spoliation of evidence, or negligent hiring are no more related to “medical professional liability” or “health care services” than battery, larceny, or libel. There is simply no way to apply the MPLA to such claims. The Legislature has granted special protection to medical professionals, while they are acting as such. This protection does not extend to intentional torts or acts outside the scope of “health care services.” If for some reason a doctor or nurse intentionally assaulted a patient, stole their possessions, or defamed them, such actions would not require application of the MPLA any more than if the doctor or nurse committed such acts outside of the health care context.
Boggs, 216 W.Va. at 663, 609 S.E.2d at 923-24. In reviewing the rationale utilized in Boggs, we note an inconsistency and seek to remedy that inconsistency in the present opinion. In Boggs, as quoted immediately above, this Court stated that the Act’s protection does not extend to intentional torts; yet the Act itself states that it applies to “any tort,” thus encompassing intentional torts. See West Virginia Code § 55-7B-2(i). The current case illuminates the deficiency in the Boggs statement regarding intentional torts. We recognize that in the case sub judice, a good faith argument may be made that a claim of assault and battery is clearly a claim of an intentional tort which did not involve health care services rendered or which should have been rendered. Similarly, we recognize that a good faith argument may be made that because the alleged assault and battery occurred in the course of an ostensible medical examination, the Appellant’s claim is subject to the pre-suit requirements at issue. Having examined this matter in the context of the present case, we clarify Boggs by recognizing that the West Virginia Legislature’s definition of medical professional liability, found in West Virginia Code § 55-7B-2(i), includes liability for damages resulting from the death or injury of a person for any tort based upon health care services rendered or which should have been rendered. To the extent that Boggs suggested otherwise, it is modified.
This Court also addressed the notice requirements of the Act in Hinchman v. Gillette, 217 W.Va. 378, 618 S.E.2d 387 (2005). The Court explained that in reviewing a claim of insufficiency in notice in a situation of this nature, “a principal consideration ... should be whether a party challenging or defending the sufficiency of a notice and certificate has demonstrated a good faith and reasonable effort to further the statutory purposes.” 217 W.Va. at 386, 618 S.E.2d at 395. The Hinchman Court was careful to articulate that “[t]he requirement of a pre-suit notice of claim and screening certificate of merit is not intended to restrict or deny citizens’ access to the courts.” Id. at 379, 618 S.E.2d at 388, syl. pt. 2, in part. Characterizing dismissal as a draconian remedy, the Hinchman Court also emphasized that the purpose of statutes impacting rights of litigants is not to create some breed of gamesmanship. 217 W.Va. at 385, 618 S.E.2d at 394.
The Hinchman Court ultimately interpreted the Act liberally, permitting a litigant to proceed to adjudication on the merits and concluding as follows at syllabus point four:
Under W.Va.Code, 55-7B-6 [2003], when a healthcare provider receives a pre-suit notice of claim and screening certificate of merit that the healthcare provider believes to be legally defective or insufficient, the healthcare provider may reply within thirty days of the receipt of the notice and certificate with a written request to the claimant for a more definite statement of the notice of claim and screening certificate of merit. The request for a more definite statement must identify with particularity each alleged insufficiency or defect in the notice and certificate and all specific details requested by the defendant. A claimant must be given a reasonable period of time, not to exceed thirty days, to reply to a healthcare provider’s request for a more definite statement, and all applicable periods of limitation shall be extended to include such periods of time.
217 W.Va. at 380, 618 S.E.2d at 389.
This Court also acknowledged in Hinch-man that the statute in question is new and has not been subjected to extensive judicial analysis. 217 W.Va. at 384, 618 S.E.2d at 393. In that vein, this Court recognized that “a similar statute for medical malpractice claims has been in effect in Florida for some time.” Id. Thus, this Court noted that “[t]he Florida courts have addressed a number of issues arising under their statute, and their analyses are instructive and persuasive.” Id.
Florida has encountered a case similar to the case sub judice. In Burke v. Snyder, 899 So.2d 336 (Fla.App.2005), a plaintiff alleging sexual assault by a health care provider did not comply with the statutory notice and pre-suit screening requirements for medical malpractice actions. The defendant therefore moved to dismiss the complaint. In response, the plaintiff contended that her claims were not premised upon acts arising from the rendering of medical care; thus, as in the present case, the plaintiff contended that she was not required to adhere to statutory pre-suit requirements. Id. at 337. The trial court agreed with the contentions of the defendant and dismissed the action. On appeal, the Florida court receded from a 1999 holding, in O’Shea v. Phillips, 746 So.2d 1105 (Fla.App.1999), that the pre-suit requirements did apply to a claim of sexual assault by a health care provider. Instead, the Burke court found that the claim of sexual misconduct, under the particular facts existing in Burke, was not a claim arising out of negligent medical treatment. Thus, the Burke court held that the statutory pre-suit requirements did not apply to the plaintiffs claim. Burke, 899 So.2d at 341.
A principal component of Burke is the recognition that the particular facts alleged by a plaintiff will impact the applicability of the statute. For instance, where the allegedly offensive action was committed within the context of the rendering of medical services, the statute applies. Where, however, the action in question was outside the realm of the provision of medical services, the statute does not apply. In Buchanan v. Lieberman, 526 So.2d 969 (Fla.App.1988), a patient alleged that her doctor committed a battery upon her during an office visit by fondling her breasts for purposes of sexual gratification and forcibly kissing her. The reviewing court held that the particular conduct alleged in that case did not involve the provision of medical services. It was simply a battery, rather than arising from any medical diagnosis or treatment. The court reasoned as follows:
The battery only remotely arose from a doctor-patient relationship, that is, the only connection between the battery and the doctor-patient relationship is the fact that the battery occurred in the doctor’s office. Had Dr. Lieberman assaulted Mrs. Buchanan at a bar, that act would not be considered “medical malpractice.” The result should not be any different simply because of the locality of the act.
526 So.2d at 972. Both Burke and B%ichan-an turn upon the fact that the “complaint makes no mention of any pretense of medical care by the doctor-” Burke, 899 So.2d at 340. “The plaintiff does not allege that Dr. Snyder engaged in sexual conduct under the guise of medical diagnosis, treatment or care.” Id.
Conversely, in the present case, while the Appellant characterizes the event as not affiliated in any manner with the provision of medical services, the defendant, should this case proceed to trial, would most certainly argue that his actions were necessary to a complete diagnosis and investigation of the complaints presented to him by the Appellant. The resolution of this matter of whether the allegedly offensive action occurred within the context of rendering medical services is exceedingly fact-driven. We caution all litigants preparing a complaint in such matters to be diligent in adhering to the requirements of the Medical Professional Liability Act where the healthcare provider's action could possibly be construed as having occurred within the context of the rendering of health care services.
However, in the present case, the plaintiff filed the civil action and did not characterize the action as one falling within the realm of the Medical Professional Liability Act. Thus, under the particular circumstances of this case, dismissal appears to be a disproportionately harsh sanction. Given the newness of the statute and the approach taken by the Florida courts, as reviewed above, we do not believe that the Appellant’s case should have been dismissed. We find that the Appellant and her counsel, in good faith, made a legitimate judgment that this case should be framed as an assault and battery civil action, rather than a medical malpractice action. The Appellant therefore filed her civil action without adherence to West Virginia Code § 55-7B-6. In this situation, the defendants should be permitted to request compliance with the statutory requirements. The lower court should thereafter examine the issues raised by the defendants and require the Appellant to comply with the statute. The statute of limitations for bringing an action under West Virginia Code § 55-7B-6 should be tolled during this court assessment, and the Appellant should be provided with an additional thirty days after the court decision to comply with the provisions of the statute.
This resolution conforms to the principles underlying this Court’s determinations in Hinchman and Boggs that the medical malpractice statute should not be unnecessarily utilized as an instrument to prevent adjudication on the merits. As this Court stated in syllabus point two of McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972), “[a]lthough courts should not set aside default judgments or dismissals without good cause, it is the policy of the law to favor the trial of all cases on their merits.” This Court also expressed this principle in Dimon v. Mansy, 198 W.Va. 40, 479 S.E.2d 339 (1996), wherein we stated: “[W]e recognize that dismissal based on procedural grounds is a severe sanction which runs counter to the general objective of disposing cases on the merit.” 198 W.Va. at 45-46, 479 S.E.2d at 344-45.
Again, we emphasize that while we would strongly encourage litigants to err on the side of caution by complying with the requirements of the Act if any doubt exists, we cannot favor dismissal of this particular civil action where adjustments can readily by made to permit adjudication on the merits. We cannot, however, assure future litigants who fail to comply with the requirements of the Act that dismissal can be avoided. As quoted above, this Court in Hinchman stated that “[t]he requirement of a pre-suit notice of claim and screening certificate of merit is not intended to restrict or deny citizens’ access to the courts.” 217 W.Va. at 379, 618 S.E.2d at 388, syl. pt. 2.
Based upon the foregoing analysis, this Court reverses the determination of the lower court and remands this matter to the lower court for reinstatement of the Appellant’s civil action and additional action in compliance with this Court’s decision. This Court expresses no opinion as to the merits of any of the Appellant’s claims.
Reversed and Remanded.
. The Appellant’s civil action included Dr. Mena, Princeton Endocrinology, and Princeton Community Hospital as defendants.
. Addison's disease is an endocrine or hormonal disorder.
. In her complaint, the Appellant alleged assault and battery, sexual assault and/or sexual abuse, outrage, intentional infliction of emotional and mental distress, and/or negligent infliction of emotional or mental distress.
. West Virginia Code 55-7B-6(b) provides in pertinent part, as follows:
(b) At least thirty days prior to the filing of a medical professional liability action against a health care provider, the claimant shall serve by certified mail, return receipt requested, a notice of claim on each health care provider the claimant will join in litigation. The notice of claim shall include a statement of the theory or theories of liability upon which a cause of action may be based, and a list of all health care providers and health care facilities to whom notices of claim are being sent, together with a screening certificate of merit. The screening certificate of merit shall be executed under oath by a health care provider qualified as an expert under the West Virginia Rules of Evidence and shall state with particularity: (1) The expert's familiarity with the applicable standard of care in issue; (2) .the expert's qualifications; (3) the expert's opinion as to how the applicable standard of care was breached; and (4) the expert's opinion as to how the breach of the applicable standard of care resulted in injury or death. A separate screening certificate of merit must be provided for each health care provider against whom a claim is asserted. The person signing the screening certificate of merit shall have no financial interest in the underlying claim, but may participate as an expert witness in any judicial proceeding. Nothing in this subsection may be construed to limit the application of Rule 15 of the Rules of Civil Procedure.
. That definition of "medical professional liability” was formerly codified at West Virginia Code § 55-7B-2(d) (1986) (Repl.Vol.2000).
. We also note that many medical malpractice claims are premised upon the contention that a battery had been committed.
. Boggs is of limited assistance in formulating a resolution of the present case since the fraud, destruction of records, and-spoliation of evidence claims did not arise within the course of an actual physical examination. In the present case, it is the action of the physician in the context of an ostensible examination that is at issue.
. As this Court explained in Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973), "to the extent possible, under modern concepts of jurisprudence, legal contests should be devoid of those sporting characteristics which gave law the quality of a game of forfeits or trial by ambush.” 156 W.Va. at 875, 199 S.E.2d at 58. | [
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The Opinion of the Court was delivered PER CURIAM.
PER CURIAM.
This matter is before us as an appeal of the order entered on August 6, 2004, by the Circuit Court of Fayette County denying Miguel Quinones (hereinafter referred to as “Appellant”) habeas corpus relief. This order was entered after an omnibus hearing at which Appellant challenged his second degree murder conviction. Appellant maintains that the lower court erred in refusing to grant relief on various grounds, including ineffective assistance of counsel and failure to strike jurors for cause. Based upon the briefs and arguments of counsel in this proceeding, a review of the record certified to this Court and the relevant legal authority, we affirm the decision of the lower court.
I. Factual and Procedural Background
On August 11, 2000, Appellant was convicted of second degree murder for the June 19, 1995, killing of a man which occurred as a result of a dispute involving cocaine. Appellant, Miguel Gonzalez and Damien Bagut were present during the murder, and Mr. Bagut testified at Appellant’s trial that he inflicted the fatal gunshots into the victim. Appellant was sentenced to a determinate twenty-five year sentence, whereas Mr. Ba-gut received a twenty year sentence in return for his plea of guilty. During his juvenile proceeding, Mr. Gonzalez admitted to being an accessory after the fact and was adjudicated delinquent.
The relevant events surrounding the murder were brought out during the trial. After his mother died in 1995 when Appellant was sixteen years old, a friend named Miguel Gonzalez suggested that Appellant move with him to Fayette County, West Virginia. The two young men moved into a house where Damien Bagut and others lived. Mr. Gonzalez knew Mr. Bagut before moving to West Virginia, although Appellant did not. Appellant soon discovered after moving to the house that Mr. Bagut was selling illegal drugs; the murder victim was one of Mr. Bagut’s customers.
Appellant testified that on the day of the murder he was asleep on the couch when the victim arrived at the house. He awakened to the sound of a gunshot and instinctively moved toward the sound. He discovered Mr. Bagut and the victim each holding guns. The victim dropped his gun after he saw Appellant and lunged toward him. Appellant maintained that he did not have a gun that day and he did not shoot the victim but that Mr. Bagut fired all the shots which killed the victim. Indeed, Mr. Bagut testified at trial that he shot the victim in the head more than once and Appellant did not have a gun when the shooting occurred. Both Mr. Bagut and Appellant testified at the murder trial that Mr. Bagut put a plastic bag over the victim’s head and secured it with a rope around the victim’s neck so as to contain the blood. Mr. Bagut and Mr. Gonzalez, who had been asleep and did not witness the shooting, dragged the body to a van, which Mr. Bagut drove away alone. The victim’s body was later found in the van; a passerby spotted the van which had been driven into a creek.
The State’s witnesses included two women with whom Mr. Bagut had made arrangements to drive the trio to New York City after the murder. The women testified that they overheard the conversation of the three young men, some of which was in Spanish. The women essentially said that they understood from the conversation that both Mr. Bagut and Appellant had shot the victim in the face and that Appellant had secured the bag on the victim’s head. Other pertinent facts from the trial will be related later in this opinion within the discussion of the assigned errors.
The jury found Appellant guilty of murder on August 11, 2000. On September 22, 2000, the trial court denied Appellant’s motion for probation and sentenced him to a definite term of twenty-five years in the state penitentiary. Thereafter, a petition for appeal was filed to this Court which alleged trial court error for: failure to strike two jurors for cause; improperly handling the matter of prosecutorial misconduct regarding pretrial publicity which warranted a mistrial being declared; and improperly denying the admission of a statement of the unindicted co-defendant Miguel Gonzalez. This Court refused Appellant’s petition for appeal on November 9, 2001.
Appellant filed a pro se petition for a writ of habeas corpus after which the lower court appointed counsel to represent him. An amended petition was filed on May 29, 2003, and an evidentiary hearing was held on that date. Counsel for both sides submitted proposed findings of fact and conclusions of law, and the lower court denied relief by order entered on August 6, 2004. It is from this order that the present appeal is taken.
II. Standard of Review
As this case is an appeal of a denial for a writ of habeas corpus, we first note that “[fjindings of fact made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong.” Syl. Pt. 1, State ex ret. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975). In Phillips v. Fox, 193 W.Va. 657, 458 S.E.2d 327 (1995), we further stated that
[i]n reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Id. at 661, 458 S.E.2d at 331.
A number of issues are raised by Appellant through his attorney and a supplemental pro se brief. This Court’s focus in a habeas corpus review is on constitutional matters, which we plainly expressed in syllabus point four of State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979), by stating: “A habeas corpus proceeding is not a substitute for a wilt of error in that ordinary trial error not involving constitutional violations will not be reviewed.” See also State ex rel. Phillips v. Legursky, 187 W.Va. 607, 608, 420 S.E.2d 743, 744 (1992) (“Traditionally, we have held that habeas corpus is not a substitute for an appeal and that a showing of error of a constitutional dimension is required in order to set aside a criminal conviction in a collateral attack by writ of habeas corpus.”). As a result, we confine our review in this case to issues having constitutional ramifications, which are ineffective assistance of counsel and failure to strike jurors for cause. Any review standards uniquely applicable to these particular areas will be identified within the discussion of each subject.
III. Discussion
A. Ineffective Assistance of Counsel
Appellant maintains that his trial counsel provided ineffective assistance because he (1) neglected to conduct an adequate investigation; (2) did not adequately advise Appellant and prepare him to testify; and (3) failed to subject the States’s case to meaningful adversarial testing. He then contends that the cumulative effect of all of counsel’s deficiencies deprived him of due process of law which resulted in his conviction of a more serious offense than his co-defendants and a punishment which was disproportionate to his involvement in the crime.
Appellant’s right to competent and effective assistance of counsel is constitutionally guaranteed. U.S. Const., amend. VI; W.Va. Const., art. III, § 14. In West Virginia,
claims of ineffective assistance of counsel are ... governed by the two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):(1) Counsel’s performance was deficient under an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.
Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). The objective standard we must apply requires us to
determine whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of professionally competent assistance while at the same time refraining from engaging in hindsight or second-guessing of trial counsel’s strategic decisions. Thus, a reviewing court asks whether a reasonable lawyer would have acted, under the circumstances, as defense counsel acted in the case at issue.
Id. at 6-7, 459 S.E.2d at 117-18, Syl. Pt. 6, in part. If the actions of defense counsel are found to be unreasonable, then we must determine whether the defendant was prejudiced as a result. As this Court in State v. Miller stated: “To demonstrate prejudice [when asserting a claim of ineffective assistance of counsel], a defendant must prove there is a ‘reasonable probability1 that, absent the errors, the jury would have reached a different result. 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.” 194 W.Va. at 15, 459 S.E.2d at 126.
With regard to the issue of inadequate investigation, Appellant contends that trial counsel was remiss by: taking no action on two pretrial motions filed by the attorney originally appointed by the court to represent him; not reviewing the prosecutor’s file or visiting the crime scene; not interviewing the State’s witnesses; and not attempting to locate Miguel Gonzalez whom Appellant alleges would have proven a vital witness for his defense.
With regard to the responsibility of an attorney to investigate, the United States Supreme Court in Strickland v. Washington said, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness ease, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgment.” 466 U.S. at 691, 104 S.Ct. 2052. With this backdrop, we turn to examine Mr. Keenan’s performance as trial counsel.
Mr. Keenan explained at the habeas proceeding that he had discussed with Mr. Harrington the pretrial motions which had been filed regarding the exclusion of evidence and lineup identification. Mr. Keenan said that he determined after further consultation with the prosecution that evidence of other crimes would not be advanced so there was no need to pursue Mr. Harrington’s motion to exclude evidence. We note that the trial record reflects that other crimes evidence was not introduced. As to the lineup identification motion, Mr. Keenan testified at the habeas hearing that as a result of his review of the case he believed pursuing the motion would be fruitless. We have no basis on which to find these tactical decisions unreasonable under the circumstances.
Mr. Keenan admitted to not reviewing the case file at the prosecutor’s office, but, testified at the omnibus hearing that he reviewed the file he inherited from former counsel, Travers R. Harrington, which contained copies of the contents of the prosecutor’s file. To supplement his review of this file, Mr. Keenan said he met with Mr. Harrington and consulted with the private investigator Mr. Harrington had hired. Mr. Keenan also related during his testimony that his investigation included a visit to the crime scene, albeit without Appellant accompanying him. Additionally, he reviewed drawings, reports and photographs collected by the investigating law enforcement officers as well as spoke with the officers in advance of their trial testimony. Mr. Keenan admitted that he had not interviewed the women who had driven the trio to New York after the murder was committed even though they were listed to testify at the murder trial as witnesses for the State. However, Mr. Keenan explained at the habeas hearing that he spoke with Mr. Harrington about the interviews he had conducted with the women and he reviewed the investigator’s reports containing information about the interviews the investigator had with these witnesses. Our review of Mr. Keenan’s cross examination of these witnesses supports a finding that Mr. Keenan’s investigation and preparation was reasonable and adequate.
However, despite the in-depth review of the materials in his possession, the record reflects that Mr. Keenan neglected to review the file in the prosecutor’s office. As a consequence, Mr. Keenan was not aware of a significant document in that file which was apparently missing from the Harrington materials. That document was a multi-page statement of Miguel Gonzalez to the police regarding events surrounding the murder, cover-up and flight to New York. The statement indicated that Appellant had not shot the victim, was not the person who placed the bag on the victim’s head and did not move the body to the van or otherwise assist in removing the body from the scene. The record shows that Mr. Keenan did not discover the importance of the Gonzalez statement until the day of trial when Appellant presented a few pages of the statement, obtained from an undisclosed source, to Mr. Keenan. The trial court appropriately granted a continuance allowing defense counsel time to review the information, but Mr. Keenan did not subpoena Mr. Gonzalez and chose instead to attempt to have the statement admitted into evidence during the trial, which proved unsuccessful. Appellant con tends that due to Mr. Keenan’s inadequate investigation his defense was weakened because a vital witness was not procured to testify at trial.
Mr. Keenan’s reliance on the completeness of a file he described as voluminous, which he inherited from another attorney who had no doubt developed the file not only from materials obtained from the prosecutor but also from his investigator and other sources, is not reasonable. Mr. Keenan said that he had checked with the prosecutor who had indicated that he had provided all of the information he had to Mr. Harrington, but reliance on that representation is simply not acceptable especially under the circumstances. Given the seriousness of the offense charged, the age of the accused, the amount of time which had passed between the murder and Mr. Keenan’s appointment to the case, and the volume of the file, a review of the file in the prosecutor’s office should have been completed at the outset of representation. Finding Mr. Keenan’s performance in this regard to be deficient, we now must determine whether there is a reasonable probability that the outcome of the trial would have been different had counsel conducted a proper investigation.
Appellant ardently argues that the in-person testimony of Mr. Gonzalez “exonerating ... [Appellant] would have been very powerful” and would likely have made a change in the outcome of the case. While Mr. Keenan acted unreasonably, we are simply not convinced that his conduct prejudiced the outcome of Appellant’s case. Nothing in the record indicates the exact whereabouts of Mr. Gonzalez since the time he had been released in 1998 from custody for his involvement as an accessory to the murder. Furthermore, even if he had been located, we are not convinced of the probability that his testimony would have added anything to Appellant’s defense. It is not contested that Mr. Gonzalez was asleep at the time the gunshots were fired and he did not witness any of the shooting. Damien Bagut, who did testify at trial, indicated that he fired all of the shots and that Appellant had not assisted with the removal of the body from the murder scene. Appellant repeated this rendition of what occurred during his trial testimony. Mr. Gonzalez had nothing more to offer in the way of testimony and actually saw less of what had occurred during the course of the crime. Moreover, while the statement given to police by Mr. Gonzalez was not admitted into evidence, his testimony at the juvenile proceeding about the events surrounding the murder was admitted and the jury had the benefit of that information to reach its verdict. We do not find it likely that Mr. Gonzales’ in-person testimony at trial would have been more persuasive to the jury.
Appellant next contends that Mr. Keenan did not properly advise or prepare him regarding his testimony. Appellant admits that there was poor communication and little rapport between Mr. Keenan and himself. Nevertheless, Appellant fails to specifically indicate what further information or direction he needed from counsel. The record shows that Mr. Keenan met with Appellant at the regional jail before trial on six occasions prior to trial. According to Appellant’s brief, the six visits amounted to, at most, only 5.1 hours spent in pre-trial consultation. Appellant also claims that counsel’s repeated requests during trial for continuances in order to consult with Appellant demonstrated that counsel had not prepared Appellant for trial. Mr. Keenan testified at the habeas hearing that in addition to discussing the evidence in the case on each occasion that he visited Appellant in jail he also discussed the Appellant’s right to testify or not testify as well as the State’s right to cross-examine him if he testified. While spending only 5.1 hours with a client facing a serious felony charge is far from commendable, our review of the record does not reveal that Appellant was ill-prepared for trial or could have benefited from further direction from Mr. Keenan either before or during trial.
This leads us to Appellant’s contention that his trial counsel failed to subject the States’s case to meaningful adversarial testing. In this regard, Appellant points specifically to counsel’s inability to succeed in having the Gonzalez statement to the police admitted into evidence and charges that Mr. Keenan’s cross examination of the State’s witnesses was inadequate. We find no merit in this claim. The record reflects that Mr. Keenan repeatedly tried to have the Gonza lez statement introduced as evidence but the trial judge ultimately ruled that the statement was not made under oath and was not as trustworthy as the testimony of Mr. Gonzalez during a court proceeding. We have no reason to conclude that the inability to convince the trial court to allow the out-of-court statement to be admitted into evidence was due to defense counsel’s substandard performance. Likewise, our review of the trial transcript does not reveal that Mr. Keenan was in any way ill-prepared in his cross-examination of the State’s material witnesses. Furthermore, as we previously observed in State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995), “[t]he method and scope of cross-examination ‘is a paradigm of the type of tactical decision that [ordinarily] cannot be challenged as evidence of ineffective assistance of counsel.’ Hutchins v. Garrison, 724 F.2d 1425, 1436 (4th Cir.1983), cert. denied, 464 U.S. 1065, 104 S.Ct. 750, 79 L.Ed.2d 207 (1984).” Daniel at 328, 465 S.E.2d at 430.
Based upon all of the above-stated reasons, we do not find that Appellant was denied a fair trial because of ineffective assistance of counsel and his allegations in this regard must fail. We find no abuse of discretion by the lower court regarding the ineffective assistance of counsel claim and agree with the court’s conclusion, memorialized in the August 6, 2004, order, that Appellant “has failed to show... cumulative deficiencies [in counsel’s performance] upon which to base a finding that ... [Appellant] was denied due process of law.”
B. Failure to Strike Jurors for Cause
Appellant contends that the trial court committed error by refusing to strike two jurors from the jury panel for cause, thus requiring him to use two of his peremptory challenges to strike the jurors. One of these jurors during the course of years had retained the legal services of the county prosecutor and the assistant prosecutor assigned to the murder trial to address legal matters associated with his business. The other juror indicated he had serious concerns with people who use alcohol and drugs since both of his children had tragically died, one due to a drunk driver. Both jurors indicated upon individual questioning by the court that they could be fair and unbiased as jurors and the court denied defense counsel’s motions to strike for cause.
Appellant urges us to find that our holding regarding rehabilitation of jurors in O’Dell v. Miller, 211 W.Va. 285, 565 S.E.2d 407 (2002), should be applied to his ease. We do not agree. In O’Dell we stated in syllabus point five that “[o]nce a prospective juror has made a clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair.” We conclude from our careful review of the record that the matters the two juror candidates originally raised did not represent prejudice beyond question so as to indicate that they had a present and fixed view of the case. Without the demonstration of such disqualifying prejudice or bias, the rule in O’Dell is not implicated. We further note our holding in syllabus point seven of State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75 (1995), in which we said:
A trial court’s failure to remove a biased juror form a jury panel does not violate a defendant’s right to a trial by an impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Section 14 of Article III of the West Virginia Constitution. In order to succeed in a claim that his or her constitutional right to an impartial jury was violated, a defendant must affirmatively show prejudice.
Failing to find the requisite showing of prejudice demonstrated in this case, we find no error on which to grant relief in habeas corpus.
IV. Conclusion
Finding no reversible error for the reasons stated above, the order entered on August 6, 2004, by the Circuit Court of Fayette County is affirmed.
Affirmed.
. Appellant was a juvenile at the time of the murder but was transferred to adult status on February 6, 1997, pursuant to the provisions of West Virginia Code § 49-5-10 (2001) (Repl.Vol. 2004).
. A report of the defense investigator revealed that Appellant’s father was serving a life sentence in another state for a murder conviction.
. The State medical examiner testified that the victim sustained three gunshots to the head.
. The apparent delay in trial of the 1995 murder was due in part to Appellant’s escape in 1997 from a detention center where he had been placed after his initial extradition from New York following the murder. Appellant was located in another state and extradited for a second time in 1999.
. Appellant initially sought to appeal the habeas corpus denial pro se, alleging eleven errors involving trial and post-conviction proceedings. Once this Court granted the pro se petition and set the matter on the argument docket, Appellant requested that attorney Jack L. Hickock represent him. The assignments of error made by Mr. Hickock involve claims of abridgement of due process due to ineffective assistance of trial counsel and improper refusal of the trial court to strike two jurors for cause. Mr. Hickock then listed in his brief the following four items which Appellant had raised in his pro se petition but which Mr. Hickock admittedly did not fully develop: the habeas court failed to consider or rule on all grounds raised in the habeas corpus petition; the habeas court accepted as true some false allegations of the State regarding circumstances surrounding Appellant’s extradition; the evidence admitted at trial was insufficient to support a murder conviction; and trial court error in the treatment of pretrial publicity of the murder case involving the prosecutor. Additionally, a supplemental pro se brief was attached to Mr. Hickock's brief identifying a somewhat different list of errors. We note that during his testimony at the omnibus hearing Appellant, in response to a question posed by the presiding judge, indicated that he was waiving all issues except his claims of being deprived of a fair trial due to ineffective assistance of counsel and being disproportionately punished in light of his level of involvement in the crime.
. Appellant has been represented by different lawyers at the proceedings leading up to this appeal. At the outset, Travers R. Harrington, Jr. was Appellant's court-appointed counsel who represented Appellant in the juvenile proceedings but, for reasons not entirely clear from the record, was replaced nearly seven months prior to the murder trial by James W. Keenan. Mr. Keenan represented Appellant through his trial and direct appeal. When Appellant filed a pro se petition for a writ of habeas corpus, the lower court appointed James W. Blankenship III to represent him. Mr. Hickock joined Mr. Blankenship in his representation of Appellant at the omnibus hearing. Mr. Hickock succeeded Mr. Blankenship in presenting this appeal. The ineffective assistance of counsel claim before us solely involves the performance of Mr. Keenan. | [
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PER CURIAM:
This is an appeal by a convicted felon, Michael V. Kemp, from a decision of the Circuit Court of Tyler County denying him relief in a habeas corpus proceeding. Mr. Kemp was being held in the West Virginia Penitentiary on four counts of sexual abuse in the first degree. In his petition for a writ of habeas corpus, Mr. Kemp claims that he was denied effective assistance of counsel at his trial and that the trial court had committed certain trial errors. One week prior to oral arguments, the appellant was released from the penitentiary, and we find that the extraordinary relief offered by the post-conviction writ of habeas corpus is not available to Mr. Kemp.
I.
In 1992 the appellant was charged with four counts of first degree sexual abuse for which he retained counsel. A criminal trial was conducted which resulted in a mistrial when the jury was unable to reach a verdict. A second trial was conducted in 1993 and Mr. Kemp was convicted on all four counts. He was sentenced to four consecutive one-to-five year terms in the West Virginia Penitentiary.
Mr. Kemp contends that his attorney was ineffective at his second trial. During the time between the first and second trials the prosecuting attorney was able to locate an expert who would testify concerning sexual abuse and children. However, no expert was contacted for the defense by Mr. Kemp’s counsel.
Mr. Kemp further contends that several times during voir dire and during the trial, his counsel appeared to be confused and ill-prepared. After conviction and sentencing, the appellant filed a pro se Writ of Habeas Corpus in the Circuit Court of Tyler County which was denied. This is an appeal of that habeas corpus action.
This Court was advised by appellant’s counsel that prior to oral arguments before this Court, the appellant had been released from the penitentiary.
II.
We find that because the appellant has already been released, his request for a writ of habeas corpus is moot. As we have previously noted:
Moot questions or abstract propositions, the decision of which would avail nothing in the determination of controverted rights of persons or the property, are not properly cognizable by a court.
Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908). In accord, Syllabus Point 5, West Virginia Educ. Ass’n. v. Consolidated Public Retirement Bd., 194 W.Va. 501, 460 S.E.2d 747 (1995); Syllabus Point 1, State ex rel. Durkin v. Neely, 166 W.Va. 553, 276 S.E.2d 311 (1981); Syllabus Point 3, State ex rel. Capitol Business Equipment, Inc. v. Gates, 155 W.Va. 64, 180 S.E.2d 865 (1971); Syllabus Point 1, State ex rel. West Virginia Secondary School Activities Commission v. Oakley, 152 W.Va. 533, 164 S.E.2d 775 (1968); Syllabus Point 1, Swartz v. Public Service Comm’n, 136 W.Va. 782, 68 S.E.2d 493 (1952).
Accordingly, we deny the relief requested.
Appeal denied.
. We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4 (1992) ("Per curiam opinions ... are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta ... Other courts, such as many of the United States Circuit Courts of Appeals, have gone to non-published (not-to-be-cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.”)
. An excerpt for the trial transcript indicates that the attorney for the defendant was completely unfamiliar with what the expert was to testify:
Q. With regard to a child that’s been sexually abused, is there a profile or certain symptoms that victims of sexual abuse portray?
A. Yes, there is.
Attorney: Objection. It’s an improper question. It is not admissible to support an opinion.
Court: In what respect?
Attorney: I don’t know what a profile is, first. And I don’t know what that means, and it’s not self explanatory.
(TRANS. P. 139).
. We acknowledge that many state and federal courts have determined that parole or probation is sufficient restriction of freedom to warrant a writ be issued. However, with this particular set of facts we will not decide that issue at this time.
.Although we hold that the appellant cannot, at this time, petition for a writ of habeas corpus, he may be able to protect himself through a writ of error known as coram nobis. This particular writ has been used for post-conviction issues when the defendant is not incarcerated. See generally 2 Franklin D. Cleckley, Handbook on West Virginia Criminal Procedure 11-508 to 509 (2d 1993).
We recognize that the West Virginia Rules of Civil Procedure 60(b) has abolished the writ of coram nobis in civil cases. However, "the writ of coram nobis ... remains available whenever resort to a more usual remedy would be inappropriate.” James v. United States, 459 U.S. 1044, 1046-47, 103 S.Ct. 465, 466-67, 74 L.Ed.2d 615, 616 (1982). | [
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PER CURIAM:
In a proceeding instituted by the West Virginia Board of Medicine (hereinafter “Board”) against Paul T. Healy, M.D., the Board concluded that the medical license of Dr. Healy should be suspended for five years, such suspension being stayed upon certain conditions. The Circuit Court of Mineral County affirmed that decision, and Dr. Healy appeals, contending that the Board and lower court erred in finding that he falsified medical records. We affirm the decision of the Board and the Circuit Court of Mineral County.
I.
Dr. Healy began his practice of medicine and surgery in 1954. Mrs. Margaret Stanis-lawczyk became a patient of Dr. Healy in 1984 and was treated by Dr. Healy for a variety of ailments, including hypertension and frequent respiratory infections. On January 4, 1990, Mrs Stanislawczyk informed Dr. Healy that she had experienced tenderness of the right breast. Dr. Healy ordered a mammogram of both breasts, and the January 8, 1990, mammogram was interpreted by Dr. Buenventura Orbeta, a radiologist. On January 8, 1990, Dr. Orbeta contacted Dr. Healy and advised Dr. Healy that he was unable to complete the examination due to breast tenderness. Dr. Orbeta further informed Dr. Healy that he had advised Mrs. Stanislawczyk to return in three to six months for another mammogram based upon a density in her breast. Dr. Healy contends that he telephoned the patient on January 8, 1990, and confirmed Dr. Orbeta’s recommendation to return in three to six months for a repeat mammogram.
Mrs. Stanislawczyk failed to return for an additional mammogram and was diagnosed with breast cancer on March 1, 1993. She subsequently underwent a mastectomy of the right breast. In April 1993, Mrs. Stanislaw-czyk apprised Dr. Healy of her diagnosis and questioned him regarding his failure to inform her of the results of the January 8, 1990, mammogram. Dr. Healy responded to Mrs. Stanislawczyk’s question by contending that he and Dr. Orbeta had both conveyed the recommendation to her that she should repeat the 1990 mammogram within three to six months.
In October 1993, Dr. Healy received correspondence from Mrs. Stanislawczyk’s attorney demanding $125,000 for the act of failing to timely diagnose the cancer. On February 25, 1995, Mrs. Stanislawczyk filed a complaint with the Board, alleging that Dr. Healy had ignored a 1990 mammogram report of a possible tumor in her right breast and that he had failed to follow up to ensure that she obtained another mammogram. Mrs. Stan-islawezyk also contended that as a result of Dr. Healy’s action, the tumor metastasized, causing her to undergo a mastectomy of the right breast.
In a March 23, 1995, response to the complaint, Dr. Healy provided “office notes” and patient medical records of his dealings with the patient, reflecting that he had contacted Mrs. Stanislawczyk by telephone on January 8, 1990. While these entries were dated 1990, they were written on stationery dated 1991 and 1993, and all the notations appeared to be written with the same pen.
On August 1, 1995, the Board issued a subpoena duces tecum to Dr. Healy for all original medical records relating to the care Mrs. Stanislawczyk. Dr. Healy once again provided the same records he had attached to the March 23, 1995, response to the complaint. On November 13, 1995, Dr. Healy appeared before the Board’s Complaint Committee. When questioned with regard to the suspicious nature of the notes, Dr. Healy first reported that he used the same pen over an eleven-year period in recording the patient’s information. He later admitted that he had “reassembled” the notes from the original records based upon his concern that the Board would be unable to read the original notes which were written in an unusual form of shorthand.
Although the “reassembled” records indicated that he had contacted the patient after the January 1990 mammogram to advise her that a repeat mammogram was necessary, Mrs. Stanislawczyk testified that when she and her son visited Dr. Healy’s office in April 1993 and asked him why he had not called her or made an appointment for a repeat mammogram, Dr. Healy had informed her that he thought the girls at the hospital would take care of that.
On September 20, 1996, the Board filed a complaint against Dr. Healy, alleging that he falsified the patient’s medical records to make it appear as though he had contacted her following the 1990 mammogram and that he had failed to follow up in any way on the radiographic report of the mammogram. The Board alleged that such conduct constituted a deceptive, untrue or fraudulent representation in the practice of medicine.
On January 6,1997, the administrative law judge recommended revocation of Dr. Healy’s license based upon clear and convincing evidence that Dr. Healy made a deceptive, untruthful and fraudulent representation in the practice of medicine when he provided records which purported to be his original records but were in fact records which he knew were not original records, thus violating West Virginia Code § 30-3-14(c)(9) and 11 CSR 1A 12.1(s).
On January 17, 1997, the Board adopted the findings of fact and conclusions of law of the administrative law judge, but found that the appropriate discipline would constitute a five-year suspension of Dr. Healy’s license rather than the revocation recommended by the administrative law judge. The Board stayed the five-year suspension, conditioned upon the payment of a $10,000 civil fine; the payment of costs of $7667 witness fees; and upon Dr. Healy’s commitment to maintain complete and current records, including telephone conversations. The Board determined that random audits of Dr. Healy’s patient records would be conducted, at least once in each calendar quarter.
If any audit report reflects the Respondent’s failure to keep complete and current records pursuant to this Order, and if the Board thereupon determines that the Respondent failed to keep complete and current records pursuant to this Order, the STAY shall be dissolved and terminated, and the SUSPENSION shall be in effect immediately upon service upon the Respondent of the Board’s determination and written notice thereof.
On March 24, 1997, the Circuit Court of Mineral County affirmed the Board’s order of January 17, 1997. Dr. Healy thereafter appealed to this Court contending that the Board failed to prove by clear and convincing evidence that he falsified the records. Dr. Healy admits that he provided transcribed notes rather than the originals, but he explains that he reassembled the originals only to prevent confusion by the Board in attempting to interpret the originals written in his unusual form of shorthand. Dr. Healy emphasizes the testimony of his office nurse, Joyce Norvell, L.P.N., indicating that she was. familiar with Mrs. Stanislawczyk and personally overheard Dr. Healy notify Mrs. Stanislawczyk regarding the mammogram and the necessity for a repeat mammogram.
Dr. Healy also contends that the Board erred in concluding that he made a deceptive, untruthful, and fraudulent representation in the practice of medicine. Dr. Healy main tains that the lower court erred in failing to reverse the administrative law judge’s findings of fact and in affirming the extreme penalty imposed by the Board.
Subsequent to this Court’s acceptance of Dr. Healy’s petition for appeal, the Board, by order dated January 15,1998, terminated the stay and reinstated the five-year suspension of Dr. Healy’s license after an independent medical consultant’s audits of Dr. Healy’s records revealed that Dr. Healy had failed to maintain adequate and complete records as ordered in the January 17, 1997, Board order.
II.
In the syllabus of Berlow v. West Virginia Board of Medicine, 193 W.Va. 666, 458 S.E.2d 469 (1995), we explained that the West Virginia Administrative Procedure Act, West Virginia Code § 29A-5-1, et seq., establishes the guidelines to be followed by circuit courts in reviewing decisions of the West Virginia Board of Medicine.
“Upon judicial review of a contested case under the West Virginia Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the ease for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are: ‘(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law, or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.’ ” Syllabus point 2, Shepherdstown Volunteer Fire Department v. [State ex rel. State of] West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).
We have also determined as follows:
[F]indings of fact made by an administrative agency will not be disturbed on appeal unless such findings are contrary to the evidence or based on a mistake of law. In other words, the findings must be clearly wrong to warrant judicial interference.... Accordingly, absent a mistake of law, findings of fact by an administrative agency supported by substantial evidence should not be disturbed on appeal.
Modi v. West Virginia Bd. of Medicine, 195 W.Va. 230, 239, 465 S.E.2d 230, 239 (1995) (citations omitted).
As we cautioned in Devrnja v. West Virginia Board of Medicine, 185 W.Va. 594, 408 S.E.2d 346 (1991), “the Board must keep in mind the legislative findings as set forth in W.Va.Code, 30-3-1 (1980), that the practice of medicine is a privilege granted to citizens, but not a natural right, and that there is a need to protect the public interest through the licensing procedures.” 185 W.Va. at 596, 408 S.E.2d at 348. In a New Jersey case based upon a physician’s appeal from an order of the State Board of Medical Examiners revoking his license to practice medicine and surgery, the New Jersey Supreme Court addressed the issue of tampering with a patient’s medical records:
We are persuaded that a physician’s duty to a patient cannot but encompass his affirmative obligation to maintain the integrity, accuracy, truth and reliability of the patient’s medical record. His obligation in this regard is no less compelling than his duties respecting diagnosis and treatment of the patient since the medical community must, of necessity, be able to rely on those records in the continuing and future care of that patient. Obviously, the rendering of that care is prejudiced by anything in those records which is false, misleading or inaccurate. We hold, therefore, that a deliberate falsification by a physician of his patient’s medical record, particularly when the reason therefor is to protect his own interests at the expense of his patient’s, must be regarded as gross malpractice endangering the health or life of his patient.
In re Jascalevich, 182 N.J.Super. 455, 442 A.2d 635, 644-45 (1982).
In the case sub judice, pursuant to the standard of review applicable to decisions of the Board, we conclude that the findings of fact are not clearly wrong and that the Board clearly and convincingly proved that Dr. Healy falsified the patient medical records and made a deceptive, untruthful and fraudulent misrepresentation in the practice of medicine. Dr. Healy admitted that he did not provide original patient records when those documents were requested, he misrepresented the nature of the documents produced by informing the Board that they were original records, and he then fabricating varying explanations for the suspicious nature of the notes provided. We therefore affirm in all respects.
Affirmed.
. We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4 (1992).
. Civil litigation was apparently not pursued.
. Dr. Healy was the patient's family physician. She had a family history of breast cancer, and her mother had died of the disease.
. Dr. Healy testified that the "reassembled” notes were actually transcriptions of his "initial medical notes, some of which were done by caricature, by drawings, etc., some of which would have probably been illegible for the average lay person to read, so by virtue of that, since the Board wanted the information, I transcribed this information from the original notes.” He further testified that he didn’t think the Board "would be devious enough to look at the bottom of my sheets to see what date the sheet was produced.” Dr. Healy also forwarded the explanation that he used a pencil for Mrs. Stanislaw-czyk's records over a ten year period because he hurt his index finger on a band saw and could not hold a pen, but "could hold a pencil by reason of the fact that they are hexagonal.” He also informed the Board that he had "sequestered” the patient notes in the "archives files” since Mrs. Stanislawczyk had not had an appointment for several years since the 1990 mammogram.
. Dr. Healy was provided an opportunity prior to the filing of charges to surrender his license to practice medicine and surgery.
. Specifically, the Board required Dr. Healy to "keep complete written records of all patient consultations, including telephone consultations, which shall include at least the following information: a. Complaint; b. Diagnosis: c. Examination; d. Treatment/Plan.” Further, the Board required Dr. Healy to "cause all records of patient consultations, including telephone consultations, to be transcribed within a reasonable time after each consultation, a period of fifteen (15) days being a presumption of reasonableness.”
.Although Mrs. Norvell testified that Dr. Healy maintained patient records on a "big card,” such card was never produced: Mrs. Norvell testified that she was in the next room when Dr. Healy telephoned Mrs. Stanislawczyk and that she remembered this conversation vividly, even though it occurred seven years prior to Mrs. Norvell’s testimony. Mrs. Norvell contended that she could hear "very, very clearly” while she and Dr. Healy’s daughter were filing in the next room. Dr. Healy's daughter did not testify. | [
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STARCHER, Justice:
This case is before this Court on two questions certified from the United States Court of Appeals for the Fourth Circuit. The case arises from a September 1994 injury sustained by a partner in a two-man partner ship, in the course of and as a result of his work for the partnership. Because the partnership did not subscribe to the West Virginia Workers’ Compensation Fund, the injured partner sought medical benefits for his injuries from his wife’s employer’s health insurance plan. The health insurance carriers refused to provide medical benefits, relying upon an exclusion in the health insurance plan against injuries compensable under any workers’ compensation law.
The partner, plaintiff James Leland Rader, filed a lawsuit to recover medical benefits against the health insurance carriers, defendants American Association of Christian Schools (“AACS”) and Gallagher Bassett Services, Inc. (“Gallagher”). The health insurance carriers defended the action, claiming that under West Virginia law the plaintiff would have been eligible for workers’ compensation benefits if he had applied for such benefits. A federal magistrate judge ruled that the plaintiff was not eligible for workers’ compensation benefits and was therefore entitled to medical benefits from the health insurance plan. The insurance carriers appealed to the Court of Appeals.
The dispositive question from the Court of Appeals asks whether a partnership, which does not employ any persons other than the partners, is required to subscribe to the West Virginia Workers’ Compensation Fund. If the plaintiffs partnership was required to subscribe, then he may be entitled to workers’ compensation benefits under West Virginia law, and conversely, ineligible for medical benefits from the health insurance plan. The Court of Appeals concluded that this question is unsettled under West Virginia law, and determined that this question is disposi-tive of the issues in this case.
As set forth below, we hold that the plaintiffs partnership was not required to subscribe to the workers’ compensation fund, and further that the plaintiff would not have been entitled to workers’ compensation benefits under West Virginia’s workers’ compensation laws.
I.
Facts and Background
Plaintiff Karen Sue Rader is employed as a teacher at Elk Valley Christian School in Elkview, West Virginia. Elk Valley Christian School is a member of defendant AACS, which provides a health benefits plan (“the Plan”) to the employees of its members. The Plan is administered by defendant Gallagher. Mrs. Rader elected health coverage under the Plan and she listed her husband, plaintiff James Rader, as a dependent.
In 1988, Mr. Rader and a friend, Terry Bradshaw, formed a partnership known as T & J Painting. All of the work of T & J Painting has been performed solely by the two partners, and the partnership does not employ other persons. T & J Painting has never subscribed to or contributed to the West Virginia Workers’ Compensation Fund.
In September 1994, Mr. Rader was injured in the course of his employment when he fell from a ladder. Mr. Rader incurred over $48,000.00 in medical expenses because of the injury, and he filed a claim for benefits with his wife’s health insurance carriers, defendants AACS and Gallagher. The claim was denied on the basis of a provision in the Plan that precludes coverage for, inter alia,
... [a]ny accidental bodily injury which arises out of or in the course of any employment with any Employer and/or for which the individual is entitled to benefits under any workers’ compensation law or ... receives any settlement from a workers’ compensation carrier.
The defendants asserted that Mr. Rader was entitled to receive workers’ compensation benefits, notwithstanding the failure of T & J Painting partnership to make contributions to the workers’ compensation fund, and thus Mr. Rader was excluded from health insurance coverage under the Plan.
The Raders filed an action in state court claiming they were entitled to benefits under the Plan. The defendants removed the action to federal court on the basis of diversity of citizenship. After discovery, the parties agreed to submit the matter to a magistrate judge for decision. The magistrate judge ruled in favor of the Raders on their claim that the defendants improperly denied them benefits under the Plan. The defendants appealed that decision to the Court of Appeals.
II.
Question Certified by the Court of Appeals
The primary question certified to this Court by the United States Court of Appeals for the Fourth Circuit is:
Under the law of West Virginia as it existed in 1994, was a partnership that did not employ anyone other than the members of the partnership an employer within the meaning of W.Va.Code § 23-2-1 (1994), such that the partnership was required by West Virginia law to furnish contributions to the workers’ compensation fund on behalf of the members of the partnership?
As discussed below, we answer this question in the negative.
m.
Discussion
An “employer” that is “required to subscribe to and pay premiums into the workers’ compensation fund” is defined by W.Va.Code, 23-2-1 (a) [1991] as “all persons, firms, associations and corporations regularly employing another person or persons[.]”
The defendants contend that under West Virginia law, a partnership is recognized as a separate legal entity distinct from the individual partners. The defendants therefore argue that a partnership is by statute an employer, and that the partners are “persons” regularly employed by the partnership. The defendants essentially argue that every partnership is required by W.Va.Code, 23-2-1(a) [1991] to subscribe to the workers’ compensation fund. The defendant contends that this principle is recognized in another portion of the workers’ compensation act, which states that “[i]f an employer is a partnership ... such employer may elect not to include as an ‘employee’ ... any member of such partnership^]” W.Va. Code, 23-2-1(g)(2) [1991].
The defendant then argues that, under W.Va.Code, 23-2-5(g) [1993], even though the plaintiffs partnership never subscribed to the workers’ compensation fund, the plaintiff may still successfully pursue a workers’ compensation claim. W.Va.Code, 23-2-5(g) [1993] stated that:
No employee of an employer required by this chapter to subscribe to the workers’ compensation fund shall be denied benefits provided by this chapter because the employer failed to subscribe or because the employer’s account is either delinquent or in default.
The plaintiffs argument focuses entirely on the language of W.Va.Code, 23-2-l(a) [1991], and that section’s definition of “employer.” The plaintiff argues that only employers “regularly employing another person” are required to subscribe to the workers’ compensation fund. The plaintiff contends that because his partnership has never employed anyone, it was never required to subscribe to the fund. We agree with the plaintiffs construction of the statute.
“Where the language of a statute is plain and unambiguous, there is no basis for application of rules of statutory construction; but courts must apply the statute according to the legislative intent plainly expressed therein.” Syllabus Point 1, Dunlap v. State Compensation Director, 149 W.Va. 266, 140 S.E.2d 448 (1965). See also, Syllabus Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951); Syllabus Point 1, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).
To accept the defendants’ argument that a partner is an “employee” under W.Va.Code, 23-2-l(a) [1991] would be to ignore the plain and unambiguous language of the statute. W.Va.Code 23-2-1 (a) [1991] clearly defines an employer “required to subscribe to and pay premiums into the workers’ compensation fund” as a person, firm, association, or corporation that regularly employs another person or persons.
The defendants’ argument asks us to ignore the legal characteristics of a partner. While a partnership may be an entity “distinct” from the partners, a partnership is not an entity wholly separate from its members, but is an aggregate of the individuals making up the partnership. As to any employees of the partnership, the partners, as principals, occupy the status of co-employers. The partners cannot be both employers and employees. In an ordinary partnership, each partner has by law an equal share m management and ownership, and each partner is therefore in actual possession of the powers of the employer. A partner is an owner of the business, and may, if he chooses, elect to pay premiums to the workers’ compensation fund for coverage of himself and the other partners. However, unless a partnership regularly employs individuals other than the partners, a partnership is not required under W.Va.Code, 23-2-1 (a) [1991] to subscribe to the workers’ compensation fund.
We note that a majority of other jurisdictions have held that under the common law, unless otherwise altered by statute, a working member of a partnership cannot be an employee of the partnership within the meaning of a workers’ compensation statute. See generally, 4 R. Larson, Larson’s Workers’ Compensation Laws § 54.30 (1998); W. Appel, Ownership Interest in Employer Business as Affecting Status as Employee for Workers’ Compensation Purposes, 78 A.L.R.4th 973, § 4 (1991).
We conclude that under W.Va.Code, 23-2-1(a) [1991], a partnership that does not regularly employ any person other than the partners is not required to subscribe to the workers’ compensation fund. While a partnership that does not regularly employ any persons other than the partners may elect to subscribe to the workers’ compensation fund for the protection of the partners pursuant to W.Va.Code, 23-2-1 (d) [1991], it is not required to do so. We further conclude that W.Va.Code, 23 — 2—5(g) [1993] does not extend workers’ compensation coverage to a partner in the plaintiffs position, because such a partner is not an “employee of an employer required by thit chapter to subscribe to the workers’ compensation fund.”
IV.
Conclusion
We answer the question certified by the Court of Appeals in the negative. Under the law of West Virginia as it existed in 1994, a partnership that did not employ anyone other than the members of the partnership was not an employer within the meaning of W.Va. Code, 23-2-1 [1991]. Such a partnership was not required by West Virginia law to furnish contributions to the workers’ compensation fund on behalf of the members of the partnership.
Certified Question Answered.
. The second question certified by the Court of Appeals is:
If a partnership that did not employ anyone other than the members of the partnership was an employer within the meaning of § 23-2-1 (a), but did not furnish the required contributions to the workers' compensation fund and did not elect to include the members of the partnership as employees pursuant to W.Va. Code § 23 — 2—1(g)(2), (h) (1994), was a member of the partnership entitled to receive workers’ compensation benefits pursuant to W.Va.Code § 23 — 2—5(g) (1994)?
Because we answer the first question in the negative, and hold that a partnership which does not employ anyone other than the members of the partnership is not an employer within the meaning of W.Va.Code, 23-2-l(a) [1991 ], we do not need to address this second question.
. Because the plaintiff was injured in 1994, in this case we are called upon to interpret the 1991 version of W.Va.Code, 23-2-1. We note that the Legislature substantially revised the entire Workers’ Compensation Act in 1995, including W.Va. Code, 23-2-1. No changes were made affecting this appeal.
W.Va.Code, 23-2-1 [1991] stated, in pertinent part, with emphasis added:
(a) The state of West Virginia and all governmental agencies or departments created by it, including county boards of education, political subdivisions of the state, any volunteer fire department or company and other emergency service organizations as defined by article five, chapter fifteen of this code, and all persons, firms, associations and corporations regularly employing another person or persons for the purpose of canying on any form of industry, service or business in this state, are employers within the meaning of this chapter and are hereby required to subscribe to and pay premiums into the workers' compensation fund for the protection of their employees and shall be subject to all requirements of this chapter and all rules and regulations prescribed by the commissioner with reference to rate, classification and premium payment: Provided, That such rates will be adjusted by the commissioner to reflect the demand on the compensation fund by the covered employer.
(d) Employers who are not required to subscribe to the workers’ compensation fund may voluntarily choose to subscribe to and pay premiums into the fund for the protection of their employees and in such case shall be subject to all requirements of this chapter and all rules and regulations prescribed by the commissioner with reference to rates, classifications and premium payments and shall afford to them the protection of this chapter, including section six of this article, but the failure of such employers to choose to subscribe to and to pay premiums into the fund shall not impose any liability upon them other than such liability as would exist notwithstanding the provisions of this chapter.
(g) The following employers may elect not to provide coverage to certain of their employees under the provisions of this chapter: ...
(2) If an employer is a partnership, sole proprietorship, association or corporation, such employer may elect not to include as an "employee” within this chapter, any member of such partnership, the owner of the sole proprietorship or any corporate officer or member of the board of directors of the association or corporation. ...
(h) In the event of election under subsection (g) of this section, the employer shall serve upon the commissioner written notice naming the positions not to be covered and shall not include such "employee’s” remuneration for premium purposes in all future payroll reports, and such partner, proprietor or corporate or executive officer shall not be deemed an em ployee within the meaning of this chapter after such notice has been served.
. W.Va.Code, 47B-2-1 [1995] states that "A partnership is an entity distinct from its partners.”
. The defendant places great emphasis on this 1991 legislative amendment to W.Va.Code, 23-2-1(g) treating partners as "employees.” Prior to 1991, partners of partnership-employers required to subscribe to the workers’ compensation fund were not afforded coverage under the fund unless those partners notified the commissioner of their intent to "opt in” and pay premiums for workers' compensation coverage.
In 1991, the Legislature amended W.Va.Code, 23-2-1 (g)(2) to state that partners of partnership-employers required to subscribe to the fund are afforded coverage unless those partners serve the commissioner with written notice that they elect to not be covered by workers' compensation.
We do not think this amendment bears on the issue at hand in this case, because we do not believe the plaintiff’s partnership ■ was ever an employer required by statute to subscribe to the fund.
.The plaintiff argues that the intent of the Legislature to deny workers' compensation benefits to partners of partnerships that fail to subscribe to the fund was made clear by a 1995 amendment to W.Va.Code, 23-2-l(h). The statute now states that "if an employer has not subscribed to the fund even though it is obligated to do so under the provisions of this article, then any such partner, proprietor or corporate or executive officer shall not be covered and shall not receive the benefits of this chapter.”
. W.Va.Code, 23-2-l(d) [1991] allows employers, such as the plaintiffs partnership, that are not required to subscribe to the workers’ compensation fund to "voluntarily choose to subscribe to and pay premiums into the fund for the protection of their employees[.]” For the text of W.Va. Code, 23-2-1 (d), see footnote 1, supra.
. See, e.g., Rockefeller v. Industrial Comm. of Utah, 58 Utah 124, 197 P. 1038 (1921); Le Clear v. Smith, 207 App.Div. 71, 202 N.Y.S. 514 (1923); Gebers v. Murfreesboro Laundry Co., 159 Tenn. 51, 15 S.W.2d 737 (1929); Wallins Creek Lumber Co. v. Blanton, 228 Ky. 649, 15 S.W.2d 465 (1929); In re W.A. Montgomery & Son, 91 Ind. App. 21, 169 N.E. 879 (1930); Chambers v. Macon Wholesale Grocer Co., 334 Mo. 1215, 70 S.W.2d 884 (1934); Goldberg v. Industrial Comm. of Ohio, 131 Ohio St. 399, 3 N.E.2d 364 (1936); Rasmussen v. Trico Feed Mills, 148 Neb. 855, 29 N.W.2d 641 (1947); Johnson v. Dept. of Labor & Industries, 33 Wash.2d 399, 205 P.2d 896 (1949); Pederson v. Pederson, 229 Minn. 460, 39 N.W.2d 893 (1949); Fink v. Fink, 64 So.2d 770 (Fla.1953); Brinkley Heavy Hauling Co. v. Youngman, 223 Ark. 74, 264 S.W.2d 409 (1954); American Surety Co. v. Cooper, 222 Miss. 429, 76 So.2d 254 (1954); Jernigan v. Clark & Day Exploration Co., 65 N.M. 355, 337 P.2d 614 (1959); Leventhal v. Atlantic Rainbow Painting Co., 68 N.J.Super. 406, 172 A.2d 710 (1961); Herman v. Kandrat Coal Co., 205 Pa.Super. 117, 208 A.2d 51 (1965); Marlow v. E.L. Jones and Son, Inc., 248 S.C. 568, 151 S.E.2d 747 (1966); Metro Constr., Inc. v. Industrial Comm'n, 39 Ill.2d 424, 235 N.E.2d 817 (1968); Dunn v. North Dakota Workmen's Comp. Bureau, 191 N.W.2d 181 (N.D.1971); Ford v. Mitcham, 53 Ala.App. 102, 298 So.2d 34 (1974); Scoggins v. Aetna Cas. & Sur. Co., 139 Ga.App. 805, 229 S.E.2d 683 (1976); Black v. Black Bros. Constr., 381 A.2d 648 (Me.1978); Powell v. Vigilant Ins. Co., 577 S.W.2d 364 (Tex.Civ.App.1979).
.We emphasize that our decision today concerns partnerships that do not employ any "non-partners.” We express no opinion concerning the application of W. Va.Code, 23-2-1 [1991] to partnerships with "non-managing” or limited partners. | [
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PER CURIAM:
The guardian ad litem for the child Jesse R. and the former foster parents of Jesse R. — Sherry and Larry R. — together appeal a December 10,1997 order of the Circuit Court of Nicholas County. The circuit court’s order denied Sherry and Larry R.’s request for visitation with Jesse R. We vacate the circuit court’s order and remand this case for an evidentiary hearing regarding allegations of sexual abuse that were made against Sherry and Larry R. Following this hearing, the circuit court should reconsider the visitation issue, in light of the best interests of Jesse R.
I.
In 1994, Jesse R., then 4 years old, was removed from his biological mother’s custody by an emergency petition and order of the court, and placed in the custody of the West Virginia Department.of Health and Human Resources (“DHHR”). Following an abuse and neglect proceeding, the biological mother relinquished her parental rights, and the legal custody of Jesse R. was placed in the DHHR.
Jesse R.’s biological father, Todd H., was not a party to the abuse and neglect proceeding. However, Todd H. subsequently voluntarily relinquished his parental rights, so that Jesse R. could be adopted by his foster parents, Sherry and Larry R.
Sherry and-Larry R. subsequently began proceedings to adopt Jesse R. All of the necessary steps for the adoption had been completed and the final paperwork was being prepared when — in October of 1997 — a teenaged girl whom Sherry and Larry R. had assisted over the years accused Sherry and Larry R. of sexually abusing her.
As a result of these accusations, after being with his foster parents Sherry and Larry R. for approximately 3 years, Jesse R. was removed from this home by the DHHR. The record indicates that the accusations of sexual abuse of the teenaged girl by Sherry R., were later retracted by the girl, and that the judge was aware of this recantation. The record before this Court in the instant case contains no further information about any proceedings regarding the girl’s accusations of sexual abuse.
After Jesse R. was removed from their home, Sherry and Larry R. filed a motion in the circuit court seeking visitation with Jesse R. The circuit court held a hearing on December 10, 1997. In findings of fact, the circuit judge stated that he did “not know if visitation with Mr. and Mrs. [R.] would be beneficial or detrimental to the infant respondent Jesse ... at this time.” However, the circuit judge went on to conclude that it was in the best interests of Jesse R. not to permit visitation.
Sherry and Larry R. appeal the circuit court’s decision to this Court, joined by the guardian ad litem, and contend that visitation of Jesse R. by Sherry and Larry R. would be in the best interests of Jesse R.
II.
This Court has repeatedly recognized the needs of children whose custodial situation has been altered to have continued contact with individuals with whom the children have formed an emotional bond.
For example, we have held that visitation should be permitted between a child and her stepfather and half-brother, Honaker v. Burnside, 182 W.Va. 448, 388 S.E.2d 322 (1989); that circuit courts should consider whether continued association with siblings in other placements following an abuse and neglect proceeding would be in a child’s best interest, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991); that visitation rights may be granted to a parent whose parental rights have been terminated due to abuse or neglect proceedings, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995); and that a child has a right to continued association with a foster parent after being placed with natural parents, if the contact is in the best interest of the child, In re Jonathan G., 198 W.Va. 716, 482 S.E.2d 893 (1996).
Regarding continued association with foster parents, this Court has stated:
A child has a right to continued association with individuals with whom he has formed a close emotional bond, including foster parents, provided that a determination is made that such continued contact is in the best interests of the child.
Syllabus Point 11, In re Jonathan G., 198 W.Va. 716, 482 S.E.2d 893 (1996).
We have held:
It is a traumatic experience for children to undergo sudden and dramatic changes in their permanent custodians. Lower courts in cases such as these should provide, whenever possible, for a gradual transition period, especially where young children are involved. Further, such gradual transition periods should be developed in a manner intended to foster the emotional adjustment of the children to this change and to maintain as much stability as possible in their lives.
Syllabus Point 3, James M. v. Maynard, 185 W.Va. 648, 408 S.E.2d 400 (1991).
Clearly “[t]he best interests of a child are served by preserving important relationships in that child’s life.” Syllabus Point 2, State ex rel. Treadway v. McCoy, 189 W.Va. 210, 429 S.E.2d 492 (1993).
Sherry and Larry R. were the foster parents of Jesse R. for approximately 3 years and had formed a significant relationship with the child. It appears that Jesse R. was removed from the one stable home he had known, and was placed elsewhere, without any type of transition and without affording his foster parents any visitation.
Applying the foregoing principles, we conclude that the circuit court did not have a sufficient record to support its determination to deny visitation to the appellants. Consequently, such a denial was an abuse of the circuit court’s discretion.
We are troubled that the circuit court did not consider, examine and weigh any evidence concerning the alleged sexual abuse. Instead, it appears that the circuit court relied upon the mere fact of (retracted) allegations of abuse of another child to deny Sherry and Larry R. visitation with Jesse R.
We reverse the circuit court’s order of December 10, 1997. We remand this case to the Circuit Court of Nicholas County with directions to conduct an evidentiary hearing. The circuit court should determine, inter alia, what evidence if any exists supporting the allegations of sexual abuse against Sherry R. We further require the circuit court to re-examine the issue of visitation, in light of the evidence adduced at the hearing and the principles enunciated in this opinion, and to
make full findings of fact and conclusions of law on the issue of whether visitation by Sherry and Larry R. would be in the best interests of Jesse R.
Reversed and Remanded with Directions.
Justice McGRAW did not participate in the decision of this ease.
. Consistent with our general practice, we use initials rather than full names in cases involving sensitive matters. See In re Jonathan P., 182 W.Va. 302, 303 n. 1, 387 S.E.2d 537, 538 n. 1 (1989).
. Jesse R.'s half brother, Zachary, then aged 12, was also removed from his mother’s custody.
. Dr. Christina Arco, Ph.D., a licensed psychologist, examined Jesse R. for adoption purposes just a few months before he was removed from Sherry and Larry R.’s home. Dr. Arco stated in her report that Jesse R. deserved to stay with the R.’s "where [Jesse] feels safe, secure, and loved for the first time in his young lifetime.”
. While this appeal only addresses the circuit court’s denial of Sherry and Larry R.'s motion for visitation, we note that the legislature has established rules and guidelines for the removal of children from foster homes. These guidelines are found in W.Va.Code, 49-2-14 [1995] it provides, in pertinent part:
(a) The state department may temporarily remove a child from a foster home based on an allegation of abuse or neglect, including sexual abuse, that occurred while the child resided in the home. If the department determines that reasonable cause exists to support the allegation, the department shall remove all foster children from the arrangement and preclude contact between the children and the foster parents. If, after investigation, the allegation is determined to be true by the department or after a judicial proceeding a court finds the allegation to be true or if the foster parents fail to contest the allegation in writing within twenty calendar days of receiving written notice of said allegations, the department shall permanently terminate all foster care arrangements with said foster parents: Provided, That if the state department determines that the abuse occurred due to no act or failure to act on the part of the foster parents and that continuation of the foster care arrangement is in the best interests of the child, the department may, in its discretion, elect not to terminate the foster care arrangement or arrangements.
(b) When a child has been placed in a foster care arrangement for a period in excess of eighteen consecutive months and the state department determines that the placement is a fit and proper place for the child to reside, the foster care arrangement may not be terminated unless such termination is in the best interest of the child and:
(1) The foster care arrangement is terminated pursuant to subsection (a) of this section;
(2) The foster care arrangement is terminated due to the child being returned to his or her parent or parents;
(3) The foster care arrangement is terminated due to the child being united or reunited with a sibling or siblings;
(4) The foster parent or parents agree to the termination in writing;
(5) The foster care arrangement is terminated at the written request of a foster child who has attained the age of fourteen; or
(6) A circuit court orders the termination upon a finding that the state department has developed a more suitable long-term placement for the child upon hearing evidence in a proceeding brought by the department seeking removal and transfer. | [
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PER CURIAM:
Pamela N. Wooten, appellant/plaintiff (hereinafter “Ms. Wooten”) appeals from a final decree entered by the Circuit Court of Wyoming County granting her a divorce from John Raymond Wooten, appellee/defen-dant (hereinafter “Mr. Wooten”). Ms. Wooten contends that the trial court committed error by (1) awarding her rehabilitative alimony instead of permanent alimony; and (2) in not equitably distributing the funds in her former spouse’s retirement plan. After a review of the parties’ arguments, the record evidence, and the pertinent authorities, we reverse the Circuit Court of Wyoming County.
I.
FACTUAL BACKGROUND
The parties were married on November 7, 1977. During the marriage two children were born. Mr. Wooten was employed as a coal miner, as well as engaging in part-time self-employment. Ms. Wooten was primarily a homemaker throughout the marriage. On October 11, 1996, Ms. Wooten filed for divorce on the grounds of irreconcilable differences. The family law master recommended child support in the amount of $715.00 and rehabilitative alimony in the amount of $650.00 per month for seven years. Ms. Wooten filed a petition for review with the circuit court objecting to rehabilitative alimony. Ms. Wooten requested permanent alimony, in an amount greater than $650.00 per month. The circuit court adopted the recommendations of the family law master and entered a final divorce decree on December 19,1997.
Subsequent to the final decree being entered, Ms. Wooten filed a motion to set aside the divorce decree on the grounds that a marital asset was not disposed of equitably. Ms. Wooten asserted, through excusable neglect and inadvertence, no mention or distribution of Mr. Wooten’s retirement plan was made in the family law master’s recommendation or the divorce decree. The circuit court denied the motion regarding the alimony award. Additionally, the circuit court denied Ms. Wooten’s request for an equitable distribution of Mr. Wooten’s retirement plan. This appeal followed.
II.
STANDARD OF REVIEW
When a circuit court adopts the family law master’s recommendations this Court applies the three-pronged standard of review set forth in syllabus point 1 of Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995):
In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.
Accord Syl. pt. 1, Porter v. Bego, 200 W.Va. 168, 488 S.E.2d 443 (1997).
III.
DISCUSSION
A. Alimony
Ms. Wooten argues that the circuit court committed error in awarding her rehabilitative alimony instead of permanent alimony. This Court has noted that “[t]he concept of ‘rehabilitative alimony’ generally connotes an attempt to encourage a dependent spouse to become self-supporting by providing alimony for a limited period of time during which gainful employment can be obtained.” Syl. pt. 1, Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984). We held in syllabus point 3 of Molnar:
There are three broad inquiries that need to be considered in regard to rehabilitative alimony: (1) whether in view of the length of the marriage and the age, health, and skills of the dependent spouse, it should be granted; (2) if it is feasible, then the amount and duration of rehabilitative alimony must be determined; and (3) consideration should be given to continuing jurisdiction to reconsider the amount and duration of rehabilitative alimony.
Ms. Wooten contends that rehabilitative alimony is not appropriate in this case because of her age, limited education and lack of prior employment skills. Ms. Wooten argues that it is simply not realistic to believe that, by obtaining more education, she could maintain the standard of living to which she was accustomed during the marriage. Also, Ms. Wooten asserts that the amount of rehabilitative alimony is grossly inadequate to pay for a college education and meet her living expenses. In contrast, Mr. Wooten tersely states that rehabilitative alimony was proper and that Ms. Wooten is “a young woman, [and] has been treated fairly by the [e]ourt.” This Court disagrees with Mr. Wooten. We noted in syllabus point 6 of Wyant v. Wyant, 184 W.Va. 434, 400 S.E.2d 869 (1990) that:
In eases in which the supporting spouse has an income and earning capacity substantially greater than that which the dependent spouse could realistically achieve under even the best of circumstances, rehabilitative alimony may not be sufficient if the dependent spouse is the primary caretaker of minor children and did not intend to join the work force on a full time basis prior to the dissolution of the marriage.
Rehabilitative alimony is not appropriate in this case because of Ms. Wooten’s age, lack of prior marketable work experience, and limited education. “Rehabilitative alimony has been utilized frequently where a younger dependent spouse entered marriage with marketable skills, which then deteriorated through nonuse, or the dependent spouse evidenced a capability for self-support, which could be developed through training or academic study.” Molnar, 173 W.Va. at 203, 314 S.E.2d at 76. Mr. Wooten’s annual income is $78,018.60. Assuming, arguendo, that Ms. Wooten obtained a higher education, it is not realistic to believe that, at age 50 years Ms. Wooten would be able to find employment in Wyoming County. On remand the circuit court should determine, based upon Ms. Wooten’s proven living expenses and other relevant factors, an appropriate award for permanent alimony.
B. Pension Fund
Ms. Wooten contends that Mr. Wooten’s pension plan is a marital asset. During one of the hearings before the family-law master, Ms. Wooten testified that she was seeking one-half of the pension. Neither the recommended order of the family law master nor the final decree addressed or discussed the issue of Mr. Wooten’s pension. “An order directing a division of marital property in any way other than equally must make specific reference to factors enumerated in § 48-2-32(c), and the facts in the record that support application of those factors.” Syl. pt. 3, Somerville v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988). It was not until after the final decree was entered that Ms. Wooten realized that the pension fund was not distributed as marital property. Ms. Wooten filed a timely motion under Rule 60(b) of the West Virginia Rules of Civil Procedure seeking relief from the decree on the grounds of excusable neglect and inadvertence as a result of the failure to distribute the pension monies as a marital asset. The circuit court denied the motion and ruled that Ms. Wooten had, in essence, waived her claim to one-half of Mr. Wooten’s pension. In so ruling, the circuit court found that the issue of Mr. Wooten’s pension was not raised in the petition for review of the family law master’s recommendation and that the final decree was actually drafted by counsel for Ms. Wooten.
Once Ms. Wooten realized the inadequacy of the recommended decision and the final divorce decree, she timely filed her Rule 60(b) motion. The purpose of Rule 60(b) is to correct such mistakes, as the record is clear that Mr. Wooten’s pension was indeed a marital asset to equitable distribution.
This Court reviews a trial court’s ruling on a motion under Rule 60(b) for abuse of discretion. The purpose of Rule 60(b) is to correct such mistakes, as the record is clear that Mr. Wooten’s pension was indeed a marital asset subject to equitable distribution. See McDaniel v. Kleiss, 198 W.Va. 282, 290, 480 S.E.2d 170, 178 (1996); Johnson v. Nedeff, 192 W.Va. 260, 266, 452 S.E.2d 63, 69 (1994). Therefore, this Court concludes that the circuit court abused its discretion by failing to grant Ms. Wooten’s Rule 60(b) motion. On remand, the court shall equitably divide that portion of Mr. Wooten’s pension which accrued during the parties’ marriage.
IV.
CONCLUSION
For the reasons set forth in this opinion, the final divorce decree entered by the Circuit Court of Wyoming County is reversed. This case is remanded for an award of permanent alimony properly calculated and for the equitable distribution of Mr. Wooten’s pension which was acquired during the parties’ marriage.
Reversed and Remanded.
. One child is now emancipated.
. At the time of the divorce, Mr. Wooten’s gross annual income was $78,018.60.
. Ms. Wooten was forty-nine at the time of the divorce.
. Ms. Wooten has only a high school diploma.
. We agree with Ms. Wooten that, based upon Mr. Wooten's income, the amount of permanent alimony should be significantly greater than the rehabilitative alimony award of $650.00 per month. West Virginia Code § 48-2-16(b) sets forth factors to be utilized in the determination of alimony and provides, in pertinent part, as follows:
(1) The length of time the parties were married;
(2) The period of time during the marriage when the parties actually lived together as husband and wife;
(3) The present employment income and other recurring earnings of each party from any source;
(4) The income-earning abilities of each of the parties, based upon such factors as educational background, training, employment skills, work experience, length of absence from the job market and custodial responsibilities for children;
(5) The distribution of marital property to be made under the terms of a separation agreement or by the court under the provisions of section thirty-two of this article, insofar as the distribution affects or will affect the earnings of the parties and their ability to pay or their need to receive alimony, child support or separate maintenance;
(6) The ages and the physical, mental and emotional condition of each party;
(7) The educational qualifications of each party;
(8) The likelihood that the party seeking alimony, child support or separate maintenance can substantially increase his or her income- earning abilities within a reasonable time by acquiring additional education or training;
(9) The anticipated expense of obtaining the education and training described in subdivision (8) above;
(10) The costs of educating minor children;
(11) The costs of providing health care for each of the parties and their minor children;
(12) The tax consequences to each party;
(13) The extent to which it would be inappropriate for a party, because said party will be the custodian of a minor child or children, to seek employment outside the home;
(14) The financial need of each party;
(15) The legal obligations of each party to support himself or herself and to support any other person; and
(16) Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable grant of alimony, child support or separate maintenance. | [
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MAYNARD, Justice:
Appellants, Keith and Kathleen St. Clair, as foster parents of the infant Harley C., appeal the order of the Circuit Court of Harrison County, West Virginia, which dismissed the petition filed in this matter and returned the infant to his biological parents. The St. Clairs contend the circuit court erred in failing to adjudicate Harley C. as an abused child; in failing to terminate the parental rights of the biological parents; and in failing to revoke the pre-adjudicatory improvement period. Upon a thorough review of this matter, we believe Harley C. is an abused child and the circuit court erred in failing to terminate parental rights. The circuit court’s order which restored permanent custody to the biological parents is reversed.
Harley C. was born prematurely by caesarean section on February 8, 1997 and spent the first month of his life in the hospital. Due to concerns about bonding, especially with his mother, and the health and safety of the child, social services were provided to the parents, some of which continued until the date of the injury described below. Home health nursing services and basic parenting services, such as bathing, diaper changing, and feeding schedules, had also been provided to the parents.
Harley C. was injured on July 9, 1997, when he was five months old. Harley was taken to Ruby Memorial Hospital where he was diagnosed with a rotational fracture of the femur. He underwent a full skeletal x-ray, known as a “baby gram,” which revealed •a healing broken eighth rib and possibly a healing broken ninth rib on the right side. The infant was placed in a body cast. A referral was made to the Department of Health and Human Resources (DHHR) for suspected child abuse.
Harrison County Deputy Sheriff Albert Maraño, with the assistance of Jennifer Gray, a child protective service worker for DHHR, took a statement from Mary C., Harley’s mother. In her statement, Mary C. denied Harley had been injured in the past. Her only explanation for the broken rib(s) was that the fracture(s) might have occurred during birth. When questioned about the fracture to his leg, Mary C. reported that the infant had been lying on the couch with pillows above his head and below his feet when she left the living room to go to the bathroom. She stated that she heard Harley scream, and when she went to investigate, he was lying on the floor on his right side. She also stated the couch that Harley fell from was about eighteen inches high, and the fall caused the fracture to his leg. Mary C. said she and her mother took Harley to the doctor in Bridgeport who told them Harley would have to go to the hospital in Morgan-town. Kenneth L., Harley’s father, was working that day. On the way to Morgan-town, Mary C. and her mother stopped to pick up Kenneth L., so he could travel to Morgantown with them.
Kenneth L. also gave a statement to Deputy Maraño and Jennifer Gray. He stated he was not home when Harley was injured. However, he supported Mary C.’s version of events. Kenneth L. denied that Harley had been hurt before.
The Ruby Memorial Hospital Emergency Department Record lists the diagnostic impression of Harley as: “(1) Right femur fracture; (2) Suspicion of child abuse; (3) Diaper rash.” Dr. Murphy, a radiologist, was consulted by the Pediatrics Department concerning Harley’s fracture. Dr. Murphy characterized the fracture as a “rotational injury” and added, “The issue of abuse in such a fracture must be addressed.... I would place child in protective custody until issue resolved.”
Harley improved and was discharged from the hospital on July 11, 1997. However, based on the information provided to DHHR regarding Harley’s injury, on July 15, 1997, DHHR filed a petition in circuit court alleging Harley was an abused child. Harley was immediately removed from his parents’ home and placed in foster care with the St. Clairs, the appellants in this case.
The court held a preliminary hearing on July 25, 1997. Jennifer Gray and several doctors who had treated Harley testified at the hearing. Dr. Cathy Jones, Harley’s pediatrician, testified that she saw Harley in her office on July 3, 1997. At that time she was concerned about bonding and growth issues. She testified that she called Child Protective Services (CPS) to express her concerns and to inquire as to whether Harley was being followed by the agency. She was assured Harley was being actively followed. Dr. Jones testified that the child was next seen in her office by her partner, Dr. Cogar, on July 9, 1997, the day Harley’s leg was fractured. The parents were told their child could not be treated in the office and they opted to take Harley to Ruby Memorial Hospital in Morgantown. Dr. Jones testified that Dr. Cogar was suspicious of abuse and called DHHR to report her concerns. On cross-examination, Dr. Jones testified that the radiologist who reviewed Harley’s x-ray called to inform her the x-ray indicated a rotational fracture. Dr. Jones stated that this immobile five-month old had his leg twisted until it broke. She explained that her recommendation was not to send the child home because he would be at greater risk now. He was in a cast from his waist to his toes with a femur fracture, he would not feel well and would cry, and she already had reservations about Harley’s growth and the parenting skills of the biological parents.
Dr. Leah Rene Urbanosky, a resident in orthopedic surgery at Ruby Memorial Hospital, also testified at the preliminary hearing. Dr. Urbanosky testified that Harley was admitted to the hospital with a femur fracture of the right leg. The child was placed in a east in the operating room under anesthesia. Dr. Urbanosky stated that Harley underwent a baby gram or full skeletal x-ray which showed an old healing fracture of the eighth rib and possibly the ninth rib on the right side. She stated that rib fractures during birth are uncommon, “probably one of the least common things because of the chest, the rib cage is so mobile.” She also testified that if Harley suffered from an abnormality which caused his bones to break more easily than a normal child, the abnormality probably would have been diagnosed at birth. When asked if children of this age commonly suffer femur fractures, Dr. Urbanosky replied that “at least fifty percent of the time when a child this age presents with femur fracture of any sort, there is child abuse involved[J”
Dr. Urbanosky was asked on cross-examination if she was aware of whether the hospital had an x-ray of Harley’s chest on file which had been taken during his initial stay at Ruby Memorial Hospital. The doctor replied that she did not know because that was not part of her care of the child; there may have been because he was born premature with respiratory difficulties.
At the close of testimony, the circuit court expressed disbelief regarding whether the baby’s leg could have been fractured according to the parents’ explanation. The court was also concerned about the rib fractures, inadequate parenting skills, bonding, and the growth issue. These concerns were expressed in the court’s order, which placed legal and physical custody of Harley with DHHR.
An adjudicatory hearing was scheduled for August 26,1997. This hearing was continued with the caveat that an adjudicatory hearing would be held in two to four weeks or an agreed order granting a pre-adjudicatory improvement period would be submitted to the court. The parents requested a pre-adjudi-catory improvement period. The motion was joined by DHHR and the guardian ad litem. The court entered an order on September 16, 1997, which granted a three-month pre-adju-dicatory improvement period to both parents. The court reasoned the parents would likely fully participate in an improvement period because they had previously attended a multidisciplinary team meeting, had voluntarily underwent psychological evaluations, and had completed financial disclosure documents provided by DHHR. The court ordered DHHR to prepare and submit an individualized family ease plan and, within sixty days, a progress report. A quarterly review hearing was held on December 19, 1997, wherein the court reviewed the progress reports and the status of the case and ordered the treatment team providers to submit biquarterly written reports to the case manager. These reports were to “include, but not be limited to, services provided and progress achieved during the preceding period.”
Prior to the quarterly review hearing, on December 15, 1997, DHHR moved to revoke the improvement period of both parents. A hearing date was set for January 16, 1998. However, the motion was discussed at the status hearing held on January 14, 1998. The motion was therefore not brought before the court and an order was not entered; the parties and the guardian ad litem agreed it was unnecessary to conduct a hearing regarding revocation of the improvement period due to the fact that it had automatically expired. It was decided the case would proceed to adjudication and, if necessary, disposition. The court ordered increased visitation between Harley and his biological parents and scheduled the adjudicatory hearing and the dispositional hearing.
The adjudicatory hearing was held on March 11, 1998. Mary C. and Kenneth L. admitted neglect. Both denied abusing the child and stated they did not know who inflicted the physical abuse. The court found that Harley C. is a neglected child within the meaning of W. Va.Code § 49 — 1—3(h)(1) and that Mary C. and Kenneth L. are neglecting parents. The dispositional hearing was scheduled for April 7,1998.
DHHR informed the court at the disposi-tional hearing that the department’s position had changed; instead of recommending reunification of the family, the department was now seeking termination of parental rights. The stated reason for the change in position was that no explanation had been given for the injuries that had been inflicted upon Harley. In other words, no perpetrator had been identified. The psychologist who had been counseling the parents testified during cross-examination that he had been given no indication, during counseling sessions, as to who might have inflicted the injuries. At the close of testimony, DHHR made a motion to terminate the rights of the parents. This motion was made because the individual who caused Harley’s injuries had not been identified, despite compliance with the family case plan. The motion was opposed by the parents and the guardian ad litem.
In its dispositional hearing order, the court stated that it “found that there was no evidence as a whole in this case to support a termination of the parental rights of the respondents!.]” The court ordered reunification of the child with his natural parents; ordered that Mary C. and Kenneth L. be referred to a community agency for assistance; and dismissed the petition. Counsel for DHHR then asked the court to stay the ruling pending appeal to this Court. The motion was denied.
The foster parents moved to intervene in the proceedings. The lower court ordered intervention and granted the foster parents the right to submit evidence in accordance with the rule set forth in In re Jonathan G., 198 W.Va. 716, 482 S.E.2d 893 (1996). However, the court denied the foster parents access to the court file. The foster parents then requested that this Court grant an emergency stay and access to the court file. We stayed execution of the circuit court’s order, ordered that Harley be returned immediately to the care and custody of the foster parents, allowed the biological parents to seek an order permitting supervised visitation, and allowed the foster parents “full and complete access to the official record on file in this case[.]” The foster parents now appeal the circuit court’s dispositional order.
Preliminarily, we note that Mary C. and Kenneth L. and the guardian ad litem argue the foster parents have no standing to bring this appeal. They argue the foster parents are not parties to the action. Only DHHR or the guardian ad litem has standing to seek an appeal of the circuit court’s decision. We disagree. This Court previously recognized the right of foster parents to bring an appeal of a Circuit court’s decision to return a foster child to the child’s biological parents. In re Jonathan G., 198 W.Va. 716, 482 S.E.2d 893 (1996). In Jonathan G., the circuit court granted standing to the Stems, the foster parents of Jonathan G., and allowed them to intervene in the proceedings “in order to present another perspective on the best interests of the minor.” Id. at 723, 482 S.E.2d at 900. Because the Stems were recognized as intervenors below, their right to seek an appeal of the lower court’s order was not questioned. Their appeal was granted and their concerns were addressed by this Court.
In its April 28, 1998 order, the circuit court in the case sub judice unequivocally ordered that the St. Clairs “have standing to intervene in this matter!.]”’
By the very definition of intervention the intervenor is a party to the action. After intervention, he or she is as much a party to the action as the original parties, and renders himself vulnerable to complete adjudication of the issues in litigation between himself and the adverse party. To make his rights effectual he must necessarily have the same power as the original parties, subject to the authority of the court reasonably to control the proceedings in the case.
59 Am.Jur.2d Parties § 170 (1987). As in-tervenors, the St. Clairs are parties to the action. They have all the rights and responsibilities of any other party to the action, including the right to appeal to this Court. We therefore hold that foster parents who are granted standing to intervene in abuse and neglect proceedings by the circuit court are parties to the action who have the right to appeal adverse circuit court decisions.
I.
Standard of Review
In this appeal, we are asked to reverse an order of the circuit court which found that Harley C. was a neglected child, but failed to find that he was an abused child within the meaning of the statute and prior opinions of this Court. We are asked to reverse the circuit court’s ruling which reunited Harley with his biological parents instead of terminating their parental rights. The standard of review in such eases is succinctly stated in In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).
Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court’s account of the evidence is plausible in light of the record viewed in its entirety.
Syllabus Point 1, id.
After thoroughly reviewing the briefs and the record submitted in this case, we are “left with the definite and firm conviction that a mistake has been committed.”
II.
Adjudication of Abuse and Neglect
The St. Clairs argue on appeal that the circuit court erred in not adjudicating Harley C. as an abused child. In support of this alleged error, the St. Clairs point to the testimony of Dr. Jones, Dr. Urbanosky, and Dr. Murphy as evidence that Harley C. was abused. A review of this evidence and a close look at the statutory definitions of “abused” and “neglected” leads us to conclude that Harley C. has indeed been abused. A neglected child is defined by W.Va.Code § 49-1-3(h)(1)(A) (1998) as a child
[wjhose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child’s parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when such refusal, failure or inability is not due primarily to a lack of financial means on the part of the parent, guardian or custodian!.]
In contrast, an abused child is defined as “a child whose health or welfare is harmed or threatened by: (1) A parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly allows another person to inflict, physical injury or mental or emotional injury, upon the child or another child in the home[.]” W.Va.Code § 49-l-3(a)(l) (1998). This Court has enlarged this definition by stating that “[ijmplicit in the definition of an abused child under West Virginia Code § 49-1-3 (1995) is the child whose health or welfare is harmed or threatened by a parent or guardian who fails to cooperate in identifying the perpetrator of abuse, rather choosing to remain silent.” Syllabus Point 1, W.Va. Dept. of Health and Human Resources v. Doris S., 197 W.Va. 489, 475 S.E.2d 865 (1996). Furthermore,
[t]he term ‘knowingly’ as used in West Virginia Code § 49-l-3(a)(l) (1995) does not require that a parent actually be present at the time the abuse occurs, but rather that the parent was presented with sufficient facts from which he/she could have and should have recognized that abuse has occurred.
Syllabus Point 7, id. When presented with the medical testimony regarding Harley’s injuries, we believe the parents should have known their child was abused and should have put forth a concerted effort to identify the abuser.
The medical evidence includes the testimony of Harley’s pediatrician, Dr. Cathy Jones, who testified at the preliminary hearing that she was concerned about bonding and growth issues and had referred Harley to Child Protective Services even before the fracture injuries occurred. In fact, Dr. Jones testified that she was so concerned about Harley’s failure to gain weight that she was going to admit him to the hospital to determine if he suffered from a complication such as reflux if he was not “showing better catch up growth at [his] next visit[.]” CPS was already ac tively following Harley at the time Dr. Jones contacted the agency.
Dr. Cogar, Dr. Jones’ partner, examined Harley the day his leg was injured. Dr. Cogar was suspicious of abuse, and she reported her suspicions to DHHR. Dr. Murphy, a radiologist in Clarksburg who reviewed the x-ray of Harley’s leg, called Dr. Jones to ask if Harley’s case had been reported because he thought “this injury could be indicative of abuse and must be evaluated.” Dr. Murphy believed that because of the rotation and nature of the injury, Harley’s leg had been twisted until it broke. Due to the type of injury, Dr. Jones testified that she was “very concerned” about the child. When asked how the leg might have gotten twisted to the point that it broke, Dr. Jones answered one of the more common causes is that it is “inflicted;” grabbing the baby’s leg and wrenching it would be consistent with a rotational injury. The doctor testified that theoretically, this type of injury rarely might possibly happen when a child falls off a couch. When questioned further regarding the possibility of the child getting his leg stuck between the cushions and falling off the couch, the doctor answered that one would still raise the issue of why the child was left on the couch unattended. Dr. Jones believes that femur fractures in five-month old children are very rare and are always suspicious.
Dr. Urbanosky, a resident in orthopedic surgery at Ruby Memorial Hospital, also testified at the preliminary hearing. Dr. Urba-nosky stated that it is very unusual for a child of this age to suffer from a femur fracture, and, at least fifty percent of these injuries involve child abuse. The doctor explained that these types of fractures generally occur in children who are involved in high energy types of activities, such as jumping, bouncing, or climbing. A child three months old, which would have been Harley’s age at the time of the leg injury discounting for his premature birth, generally cannot roll over, scoot, or even sit up unattended. Consequently, the mother’s explanation that Harley rolled over by himself and fell off the couch resulting in a rotational-type leg fracture greatly concerned Dr. Urbanosky.
Dr. Urbanosky also testified the baby gram revealed that Harley was suffering from one or more broken ribs. The only explanation the parents offered for the broken ribs was that perhaps the fracture(s) occurred during birth. Dr. Urbanosky testified that rib fractures are uncommon during birth as the chest is very mobile and soft. Furthermore, Harley was delivered by cesarean section, which Dr. Urbanosky testified is much more controlled than a vaginal delivery. Also, Harley’s records did not indicate he had been injured at the time he was born.
Jennifer Gray testified that Harley was referred to her because of the fractured femur. She testified that she interviewed the parents in an effort to determine how the leg was broken. Mary C. said she left Harley on the couch, went to the bathroom, heard Harley crying, went back to the living room and Harley was on the floor. Kenneth L. was not home, but stated that Mary C. had related the same story to him. Ms. Gray reported that the seat of the couch is 18 to 20 inches off the floor, and the floor is carpeted.
Ms. Gray testified that from the time Harley was born, various services had been made available to the parents. These services were made available because Harley was premature and the hospital nurses identified bonding problems and limited knowledge of parenting. A home health nurse was assigned to the parents to provide services following Harley’s initial release from the hospital. Right From the Start provided basic parenting training. The parents were also referred to the Early Intervention Program through the United Summit Center. Even though several appointments were made through the early intervention program, the parents attended only one session.
When questioned by the guardian ad litem as to whether Ms. Gray’s position was that Harley was abused as opposed to neglected, Ms. Gray answered, “Since we are not positive that the fall from the couch is what caused his broken leg, then we feel that it is more an issue of abuse during — relating to that specific injury.” Ms. Gray believed the explanation of falling from the couch was not consistent with the type of injury Harley suffered.
At the close of testimony, the judge stated that the broken leg, the growth issue, the bonding issues, and the rib fractures concerned him. He stated that he did not believe any of these problems individually would rise to the level of abuse; however, he also did not believe the rotational fracture was caused by the child falling off the couch. The fractures coupled with bonding and growth issues caused the judge to find that Harley was abused or neglected and to continue him in foster care.
The parties agreed that Mary C. and Kenneth L. should receive a three-month pre-adjudicatory improvement period. Close to the end of the improvement period, DHHR filed a motion to revoke the improvement period for lack of meaningful participation. The Department believed the parents could not identify and meet Harley’s needs. The court determined the improvement period lapsed on its own terms and the parties should proceed to adjudication.
At the adjudication hearing, Mary C. and Kenneth L. admitted Harley received extensive injuries while in their custody and that a failure to protect constituted neglect. In its order, the court found the parents “were willing to admit that medical evidence showed that the above-named infant child had suffered physical abuse while in their custody as his parents, even though they denied abusing the child and did not know who inflicted the physical abuse.” The court concluded that Harley was a neglected child and the parents were neglecting parents because the “infant child is harmed or threatened by a present failure or inability of the above-named infant child’s parents to supply the child with necessary supervision, when such failure or inability is not due primarily to a lack of financial means on the part of the parents.” Even though the parents admitted the child was abused while in their custody, the court failed to inquire into who inflicted the abuse and whether the parents made any effort to identify the abuser.
We are clearly convinced somebody severely injured this small child on two separate occasions. Injured him badly enough to break his bones. Although this immobile child was constantly under adult supervision, no one seems to know who inflicted the abuse. In their briefs to this Court, the parents say they attempted to identify the abuser. However, both parents merely offer blanket conclusions; neither offers an explanation of the efforts he or she undertook to attempt to identify the perpetrator. The record contains no showing of any effort undertaken by either parent in an attempt to determine who inflicted this abuse on their child.
This Court has previously said: “ ‘Although parents have substantial rights that must be protected, the primary goal in eases involving abuse and neglect, as in all family law matters, must be the health and welfare of the children.’ Syl. pt. 3, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).” Syllabus Point 3, Matter of Taylor B., 201 W.Va. 60, 491 S.E.2d 607 (1997). Once again we reiterate that “[ijmplicit in the definition of an abused child under West Virginia Code § 49-1-3 (1995) is the child whose health or welfare is harmed or threatened by a parent or guardian who fails to cooperate in identifying the perpetrator of abuse, rather choosing to remain silent.” Syllabus Point 1, W.Va. Dept. of Health & Human Resources v. Doris S., 197 W.Va. 489, 475 S.E.2d 865 (1996). As failure to attempt to identify the abuser is contained in the definition of “abuse,” we believe the circuit court erred in determining Harley was neglected rather than abused. We also believe this child remains at risk if returned to the home of his parents.
III.
Disposition
The dispositional hearing was held on April 7, 1998. Between the time the adjudication and the dispositional hearings were held, the Court Appointed Special Advocate (CASA) appointed to serve on this case wrote a letter to the court expressing serious con cerns about Harley’s safety. Specifically, she wrote:
It is also a concern that these injuries have been more or less ignored throughout these proceedings. We are very pleased that the parents have done so well in addressing the neglect issues in their improvement period, but it has been as if the injuries never happened. Has it been forgotten that the reason this child was removed was because of the injures — serious ones? ?
At the dispositional hearing, the Department moved for termination of parental rights due to the fact that the abuser or perpetrator had not been identified. Counsel for the mother stated that he believed it was “highly unlikely that either of these individuals [Mary C. or Kenneth L.] had any direct involvement with the injures.” He went on to state that, “Notwithstanding we have no other viable explanation for how they may have occurred and notwithstanding also that none of the medical evidence that we have seen but not heard in the context of formal testimony under oath that would support really any other theory but that some active type of abuse was perpetrated upon the child.” Nonetheless, counsel for Mary C. moved that custody be returned to these parents. Counsel for Kenneth L. and the guardian ad litem also sought reunification.
The judge determined there was no evidence to support termination even though he acknowledged he
was probably the most skeptical person in this room when we saw pictures of the couch at the preliminary hearing and their surmising or suggesting that he fell and twisted and those sorts of things was the cause of the injury. There wasn’t anybody that believed that less than I did and there isn’t anybody including [the CASA’s] worry on this that worries more about this than I do.... [B]ut it seems to me that there is no evidence that the court is aware of, looking at the record as a whole and I guess I am not limiting myself to what was produced today, nor has the State proffered any and I didn’t ask for a proffer but it seems to me that there is no evidence that would substantiate a termination of these parents’ rights[.]
The court ordered that Harley be returned to the physical and legal custody of Mary C. and Kenneth L.
The St. Clairs maintain the lower court erred in not terminating the parental rights of Mary C. and Kenneth L. We agree. This Court has said:
Parental rights may be terminated where there is clear and convincing evidence that the infant child has suffered extensive physical abuse while in the custody of his or her parents, and there is no reasonable likelihood that the conditions of abuse can be substantially corrected because the perpetrator of the abuse has not been identified and the parents, even in the face of knowledge of the abuse, have taken no action to identify the abuser.
Syllabus Point 3, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993). The parents admit Harley suffered extensive physical abuse while in then.- custody. There is no evidence either one of them seriously attempted to identify the abuser. The evidence presented as to how the injuries may have occurred conflicts with the medical evidence. Thus, the court erred in reuniting this child with his parents rather than terminating Mary C.’s and Kenneth L.’s parental rights.
IV.
Conclusion
For the foregoing reasons, we find the Circuit Court of Harrison County erred in not adjudicating Harley C. an abused child and in failing to terminate the parental rights of Mary C. and Kenneth L. The ruling of the circuit court is reversed and remanded to enter an order consistent with this opinion.
Reversed and remanded.
. We note that interestingly enough, the excuses offered for the injuries in this case are the very excuses offered by the parents in Matter of Taylor B., 201 W.Va. 60, 491 S.E.2d 607 (1997).
. For guidelines regarding the role of foster parents at termination proceedings, see In re Jonathan G., 198 W.Va. 716, 726-29, 482 S.E.2d 893, 903-06 (1996).
. Dr. Eric Jones, the treating staff orthopedist, conveyed to Dr. Urbanosky that child abuse is involved in "greater than equal to fifty percent for this agent injury.” | [
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PER CURIAM.
This case is before the Court on appeal from the August 25, 2004, Order of the Circuit Court of Kanawha County granting summary judgment in favor of the Appellees and finding that there was no genuine issue of material fact as to whether Appellant had filed the underlying action outside of the period allowed by the statute of limitations. Finding that Appellant had filed his complaint outside of the period allowed by the statute of limitations, the court dismissed the complaint with prejudice.
This Court has before it the petition for appeal, the response, the biiefs of the parties, and all matters of record. Following the arguments of the parties and a review of the record herein, this Court finds that existing case law supports the position of Appel-lees over that of Appellant. Accordingly, this Court affirms the August 25, 2004, Order of the circuit court granting summary judgment in favor of Appellees.
I.
FACTS
Between 1969 and 1991, Appellant Goodwin worked at various businesses-including that of his father-as an auto body and trim painter, a foreman, a welder, and a “body man.” For the last four to five years of his working life and after his father’s retirement, Goodwin ran the family business until its close in 1991. Goodwin never worked again in any capacity because he “just didn’t want to work.”
Beginning in 1988, three years before the closure of his business, Goodwin noted a funny taste in his mouth as well as tightness in his chest and trouble breathing while painting. At some point in or around that same time, Goodwin purchased and “religiously” used an air-supplied respirator, which seemed to remedy his symptoms. In 1997, six years after Goodwin himself stopped painting, Goodwin was again exposed to paint while watching his son-in-law and a friend paint a bus outside of Goodwin’s former shop. Goodwin was not wearing a respirator at the time and began to again experience shortness of breath and chest pains.
On June 3, 1997, Goodwin went to see his family physician, Dr. Victor Selvaraj, in regard to his difficulty in breathing. At that time, Dr. Selvaraj noted in his medical records that Goodwin “has been painting caus ing breathing problems.” Dr. Selvaraj diagnosed Goodwin with chronic obstructive pulmonary disease and referred Goodwin for further tests. Those respiratory function tests revealed that Goodwin suffered from asthma but did not otherwise distinguish that Goodwin’s asthma was associated with his work with auto body paint products. Nonetheless, Goodwin, according to his own testimony, associated his breathing problems with exposure to paint. In his March 22, 2004 deposition, Goodwin’s testimony was as follows:
Q: When did you first start thinking that the breathing problems you were having were related to paint exposure?
A: When I went to the doctor in ’97.
Q To Dr. Selvaraj?
A Yes.
Q: Did Dr. Selvaraj tell you that he thought that your breathing problems were related to paint exposure?
A: No.
Q: Then why did you make that connection in ’97?
A: I told him that I had been in paint, and he didn’t say anything. He just started treating me for breathing.
Q: But you felt it was related to paint?
A: Me?
Yes. C?
Yeah, I thought it was. <¡
Did Dr. Selvaraj tell you that he thought it was related to paint? O’
No, not really. <ri
Has any doctor told you they thought your breathing problems were related to paint exposure? O’
A: No.
Q: Why do you believe your breathing problems are related to paint exposure?
A: Because I got — like four or five times before that, I’d had that problem and it went away. This time it didn’t go away. It never left.
He went on later in that same deposition to ■explain that his belief that his breathing problems were caused by paint began as early as 1988:
Q: At any time in those last three or four year’s when you were operating your garage, if you had an over-all paint job, you had breathing problems, correct?
A: If I did one, yes.
Q: And you believed it was the paint that was causing those problems; is that right?
A: Uh-huh.
Q: Is that a yes?
A: Yes. Yes.
Nonetheless, subsequent examinations of Goodwin by Dr. Selvaraj in March and August of 1998 again showed test results within normal limits.
In or around 1998, Goodwin contacted the Law Offices of Stuart Calwell (now The Cal-well Practice) in regard to an advertisement the law firm was running seeking clients who worked around paint and who had experienced breathing problems. On or about April 21, 1998, the Law Offices of Stuart Calwell filed an application before the Social Security Administration on Goodwin’s behalf seeking supplemental security income benefits based on a history of hernias and asthma, which was subsequently denied. On June 14, 1999, acting on a release prepared by the Law Offices of Stuart Calwell, Dr. Selvaraj forwarded Goodwin’s medical records to Cal-well’s office. Those medical records included Dr. Selvaraj’s diagnosis and his note that Goodwin had “been painting causing breathing problems.”
Goodwin’s attorneys referred him to Dr. Roger A. Abrahams, who on November 8, 1999, submitted a letter to the Law Offices of Stuart Calwell expressing his belief that Goodwin suffered from “occupational asthma as a result of exposure to isocyanate-contain-ing paint during his employment in the auto body repair business.” Distinguishing the medical histories of Dr. Selvaraj and his own admitted beliefs about the relationship between paint exposure and his breathing problems, Goodwin asserts that Dr. Abrahams was the first doctor to actually diagnose Goodwin with “occupational” asthma related to his work with paint.
Thereafter, on October 22, 2001, the Law Offices of Stuart Calwell filed a complaint on behalf of Goodwin alleging negligence on the part of the manufacturing defendants, failure to warn on the part of the manufacturing defendants, breach of warranty on the part of the manufacturing defendants, strict liability of the manufacturing defendants, and conspiracy on the part of certain manufacturing defendants. Goodwin’s complaint sought both compensatory and punitive damages.
On April 27, 2004, the defendants jointly moved for summaiy judgment, alleging that Goodwin’s complaint was filed outside the period of time allowed by the statute of limitations. The defendants argued that Goodwin’s action was filed (a) over four years after he had first informed his family doctor of his breathing problems and his own belief about the cause of his breathing problems, and (b) two years and four months after Goodwin sought and engaged lawyers with an advertised expertise in paint exposure cases and had his medical records delivered to them. Goodwin responded that he could not have known nor reasonably should have known about his paint-related condition until his diagnosis by Dr. Abrahams in November 1999. Goodwin also raised the issue of claimed neuropsychological damage from the exposures he had to paint of which he was unaware until 2003.
The circuit court conducted a hearing on the motion for summary judgment on July 16, 2004, following which the court granted judgment in favor of the defendant. The circuit court found that Goodwin knew or should have known (a) that he was injured, (b) who made the products which injured him, and (c) the causal relationship between those products and his injury “well before October 22,1999.” Therefore, the court found that Goodwin’s complaint was filed outside of the statute of limitations. Goodwin appeals the court’s order granting summary judgment.
II.
STANDARD OF REVIEW
This Court has held that “[a] circuit court’s entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Summary judgment should be granted only if the record demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” West Virginia Rules of Civil Procedure, Rule 56(c). To that end, this Court has held that “[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963); Syl. Pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). “If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure.” Williams at Syl. Pt. 3. With that standard in mind, we turn now to a discussion of the facts as they apply to the law in this case.
III.
DISCUSSION
Here, the issue at the heart of the motion for summary judgment was whether Goodwin filed his complaint outside the time allowed by the statute of limitations. Goodwin cites Gaither v. City Hospital, Inc., 199 W.Va. 706, 714-715 487 S.E.2d 901, 909-910 (1997), to argue that “[i]n a great majority of cases, the issue of whether a claim is barred by the statute of limitations is a question of fact for the jury,” not an issue which should be disposed of on summary judgment. Goodwin further draws on Syllabus Point 3 of Stemple v. Dobson, 184 W.Va. 317, 400 S.E.2d 561 (1990), in which this Court stated:
Where a cause of action is based upon tort or on a claim of fraud, the statute of limitations does not begin to run until the injured person knows, or by the exercise of reasonable diligence should know, of the nature of his injury, and determining that point in time is a question of fact to be answered by the jury.
However, the defendants point out that this Court has, on more than one occasion, affirmed summary judgment in eases where the undisputed facts establish that the suit was time-barred pursuant to the applicable statute of limitations. See e.g., Jones v. Aburahma, 215 W.Va. 521, 600 S.E.2d 233 (2004); Thompson v. Branches-Domestic Violence Shelter of Huntington, 207 W.Va. 479, 534 S.E.2d 33 (2000); Stephens v. West Virginia College of Graduate Studies, 203 W.Va. 81, 506 S.E.2d 336 (1998); Vorholt v. One Valley Bank, 201 W.Va. 480, 498 S.E.2d 241 (1997). This Court agrees with the defendants and with the Court’s earlier decisions that summary judgment can and should be granted on the basis of an applicable statute of limitations when no genuine issue of material fact exists as to whether the statute of limitations has been violated. Here, the material facts are not in general dispute. Thus, where, as here, the issue is one of law, a consideration of summaiy judgment is appropriate.
The statute of limitations applicable to this particular case is set forth in West Virginia Code § 55-2-12, which states that “[ejvery personal action for which no limitation is otherwise prescribed shall be brought.. .within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries.” Certainly, there are instances when the tolling of the statute of limitations becomes a question of fact, such as when a plaintiff may not be aware of his or her injury or may not be aware of the cause of a known injury. Accordingly, this Court developed the so-called “discovery rule,” which is illustrated in Syllabus Point 4 of Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997), wherein we held that “[i]n tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury.” More particularly, “[i]n products liability cases, the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence should know, (1) that he has been injured, (2) the identity of the maker of the product, and (3) that the product had a causal relation to his injury.” Syl. Pt. 1, Hickman v. Grover, 178 W.Va. 249, 358 S.E.2d 810 (1987); Syl. Pt. 1, Cecil v. Airco, Inc., 187 W.Va. 190, 416 S.E.2d 728 (1992).
Here, Goodwin’s testimony provides an un-rebutted record of when Goodwin first believed he had been injured and what had caused him this harm. Goodwin, however, argues that he should not be considered to be aware of his injury (“occupational asthma”) until November 8, 1999, when he received a report of his diagnosis from Dr. Abrahams. The defendants, however, argue that Goodwin was aware of his injury at least as early as 1997, and that fact is established by his testimony and the treatment he first sought from Dr. Selvaraj. Goodwin’s contentions are not persuasive in view of the facts in this case and our prior decisions. His own testimony leaves nothing to question. Goodwin testified that by 1997 he knew he had been injured by his exposure to paint. Furthermore, all of his actions confirm that conclusion.
Goodwin would have this Court determine that the statute of limitations did not begin to run until Dr. Abrahams made a diagnosis of occupational asthma in November 1999. However, Goodwin himself acknowledged in his deposition testimony that he believed all along, and at least by 1997, that his breathing problems were attributable to his use of isocyanate-containing paint products manufactured by the defendants. This Court has repeatedly stated that the statute of limitations begins to run when a plaintiff has knowledge of the fact that something is wrong and not when he or she knows of the particular nature of the injury. See, Harrison v. Seltzer, 165 W.Va. 366, 371, 268 S.E.2d 312, 315 (1980); Gaither v. City Hosp., Inc., 199 W.Va. 706, 712, 487 S.E.2d 901, 907 (1997); McCoy v. Miller, 213 W.Va. 161, 166, 578 S.E.2d 355, 360 (2003). Goodwin’s argument that we should depart from this bedrock precedent is unpersuasive.
The record conclusively reveals that long before the diagnosis of occupational asthma (based upon a 1999 medical referral by his attorneys), Goodwin believed that inhaled paint fumes caused him serious pulmonary problems, shortness of breath, and tightness in his chest. One such example of an exposure associated with symptoms was the incident in 1997 when Goodwin watched his son-in-law paint a bus. “Where a plaintiff knows of his injury, and the facts surrounding that injury place him on notice of the possible breach of a duty of care, that plaintiff has an affirmative duty to further and fully investigate the facts surrounding that potential breach.” McCoy v. Miller, 213 W.Va. 161, 165, 578 S.E.2d 355, 360 (2003)(citing Harrison v. Davis, 197 W.Va. 651, 478 S.E.2d 104 (1996)). In fact, the record reveals that Goodwin did indeed take affirmative action to investigate his breathing problems.
Goodwin related breathing problems to painting as early as 1988. He contacted his family doctor on June 3, 1997, with specific complaints which he related to painting. In 1998, Goodwin sought out the legal services of the Law Offices of Stuart Calwell because the firm advertised for clients who had experienced breathing problems due to exposure to paint. By June of 1999, Goodwin’s attorneys had received the pertinent medical records from Dr. Selvaraj, which noted that Goodwin had “been painting causing breathing problems.” Five months later, the office apparently received Dr. Abrahams’ report diagnosing Goodwin with occupational asthma. It was yet another 23 months, however, before Goodwin would file suit.
In the end, consideration of the discovery rule based upon the unrebuttable record herein leads the Court to agree with the circuit court that the underlying action was filed well over two years after Goodwin first knew that he suffered a breathing problem caused by his use of isocyanate-containing paints. While it is unclear to us why there was such a significant delay in the filing of the underlying action, it is clear that the discovery rule was never intended to excuse such a delay, nor will this Court allow the discovery rale to be modified, manipulated or expanded to now be used to remedy such a delay. Accordingly, we agree that Goodwin’s complaint was filed 'beyond the applicable statute of limitations.
In a further attempt to avoid the effect of the statute of limitations herein, Goodwin also now complains of a separate neuropsychological injury caused by the same exposures to paint fumes that caused his breathing problems. Goodwin asserts that he was absolutely unaware of such an injury until it was diagnosed by Dr. Steven F. Dreyer, a psychologist, in 2003. Goodwin claims that the neuropsychological injury was caused not by isocyanates contained in the paint, but by solvents contained in the paint. Goodwin argues that this injury is a separate and distinct injury caused by a separate and distinct product component. He does not claim that a separate exposure caused this injury. Because the neuropsychological injury was not diagnosed until 2003, Goodwin asserts that it should be ruled a viable claim as the statute of limitations had not yet run on the claim when the circuit court issued its decision.
We disagree. The issue before us is when Goodwin knew that he had suffered harm from breathing paint fumes. There is simply no credible argument upon which Goodwin can rely to avoid the operation of the statute of limitations under these facts. Goodwin knew in 1997, and arguably earlier, that he had suffered some sort of injury due to his exposure to paints. On this record, it was Goodwin’s duty to begin investigating the full extent of his injuries at that time. “Where a plaintiff sustains a noticeable personal injury from a traumatic event, the statute of limitations begins to run and is not tolled because there may also be a latent injury arising from the same traumatic event.” Syl. Pt. 3, Jones v. Trustees of Bethany College, 177 W.Va. 168, 351 S.E.2d 183 (1986).
Goodwin asserts that he did not and could not have known about a latent neurop-sychological injury until he read Dr. Dreyer’s report in 2003, and, therefore, the discovery rule operates to save his claim. Such an argument fails under Bethany College. It is the recognition of harm from exposure to paint fumes herein which triggers the statute of limitations. In Bethany College, this Court acknowledged that other jurisdictions have clarified the “traumatic eventylatent manifestation case” and its relationship to the statute of limitations, such as in the case of Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 230 (5th Cir.1984):
“ ‘The pure latent injury case ordinarily arises in one of three situations: a suit by a worker who contracts an occupational disease, a medical malpractice suit by a patient who discovers an injury long after the negligent medical treatment has been administered, or a product liability suit by a consumer of a drug or other medically related product who discovers a side effect from the use of the defendant’s product. In each of the pure latent injury cases, the plaintiff fails to discover either the injury or its cause until long after the negligent act occurred.’ ” Id. at 170-171, [351 S.E.2d at] 185-186.
In such a case, the discovery rule is applicable. However, Goodwin’s alleged neuropsy-chological injury cannot be called a “pure latent injury.” And we stated in Bethany College:
“[wjhere there has been a noticeable injury caused by a traumatic event, the fact that there may be a latent component to the injury does not postpone the commencement of the statute of limitations according to a substantial majority of courts. Brassard v. Boston & Me. R.R., 240 F.2d 138 (1st Cir.1957); Ciccarone v. United States, 486 F.2d 253 (3d Cir.1973); Beech v. United States, 345 F.2d 872 (5th Cir.1965); Steele v. United States, 599 F.2d 823 (7th Cir.1979); Fletcher v. Union Pac. R.R., 621 F.2d 902 (8th Cir.1980), cert. denied, 449 U.S. 1110, 101 S.Ct. 918, 66 L.Ed.2d 839 (1981); McEntire v. Malloy, 288 Ark. 582, 707 S.W.2d 773 (1986); Carter v. Cross, 373 So.2d 81 (Fla.App.1979); Dowling v. Lester, 74 Ga.App. 290, 39 S.E.2d 576 (1946); Ralphs v. City of Spirit Lake, 98 Idaho 225, 560 P.2d 1315 (1977); Caudill v. Arnett, 481 S.W.2d 668 (Ky.1972); Christian v. Daniell Battery Manufacturing Co., 279 So.2d 214 (La.App.1973); Guiley v. Hammaker, 55 Or.App. 921, 640 P.2d 664 (1982); Steele v. Organon, Inc., 43 Wash.App. 230, 716 P.2d 920 (1986); Duke v. Housen, 589 P.2d 334 (Wyo.), cert. denied, 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86 (1979); 51 Am.Jur.2d Limitations of Actions § 135 (1970).” Id. at 170, [351 S.E.2d at] 185.
Where, as here, a party subjectively relates an event or events (here, exposure to paint) to a noticeable harm or injury, Bethany College is controlling.
It isn’t important whether or when Goodwin was aware of the full extent of injuries that might be manifested from. the exposure^). What is important is that Goodwin knew that he had been harmed as a result of an identified event or events (i.e., exposure(s) to paint fumes), and it was his duty thereafter to fully investigate the injuries that might follow that exposure. As we explained in Bethany College, “[w]ith the customary utilization of discovery and other pretrial procedures, considerable time can be consumed from the date the suit is filed and before it is ready for trial. This time period when coupled with the initial period of limitations should enable a plaintiff to learn of any latent injuries that have occurred from the initial traumatic event.” Id. at 172, 351 S.E.2d at 187. Goodwin engaged counsel who advertised an expertise and experience in paint exposure claims. Waiting some five more year's to consider potential neuropsychological harm under such circumstances is simply unreasonable.
IV.
CONCLUSION
Having determined that Goodwin’s cause of action was filed outside of the period of time allowed by the statute of limitations, we find that there remains no issue of material fact to be determined through trial as to whether Goodwin’s cause of action was filed in violation of the statute of limitations. Accordingly, this Court finds that it was not error for the Circuit Court of Kanawha County to enter an Order Granting Summary Judgment in favor of Appellees.
Affirmed.
. The business did not close for any medical reasons related to Goodwin.
. The Social Security Administration decision referenced a report regarding a September 24, 1998, examination of Goodwin by Dr. Nilima Bhirud, which was apparently not made a part of this record. According to the Social Security Administration decision, Dr. Bhirud noted that Goodwin began having breathing problems two years earlier and that he had been diagnosed with asthma attributable to exposure to paint chemicals.
. It is interesting to note that the November 8, 1999, letter appears to rely on the results of tests purportedly performed on November 9, 1999, and December 6, 1999.
. See, also, note 2.
. The complaint also listed White Dodge as a defendant. White Dodge was later dismissed from the suit on April 10, 2002.
. Goodwin’s complaint does not directly allege neuropsychological damage. The closest allegation of such an injury was the allegation of ‘Tplhysical and mental pain and suffering." Otherwise, the complaint is focused on Goodwin's claims of occupational asthma. The first apparent mention of neuropsychological damage arose in Goodwin’s Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment, filed on July 9, 2004.
. No issue has been raised as to whether or when Goodwin became aware of who produced the paints which caused his injury.
. Again, it is unclear if Dr. Bhirud’s report, which was apparently attached to Goodwin’s failed attempts to obtain Social Security Disability Benefits in 1998, was made a part of the record in the circuit court proceeding. If it was, Dr. Bhirud's reported history of a diagnosis of asthma attributable to paint exposure would add further support to defendants’ position.
. Goodwin also points out that the circuit court did not address the neuropsychological injury in its order granting summary judgment. However, as previously pointed out, Goodwin only raised the issue himself almost in passing and seemingly as an afterthought in the last page of his argument in his Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment. Notably, Goodwin's complaint was never amended to include a separate and distinct claim for neuropsychological injuries caused by a separate and distinct component product within the paint to which he was exposed. | [
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PER CURIAM:
The appellant, Kathy Robinette (“Kathy”) petitioned the Circuit Court of Tucker County to modify the circuit court’s appointment of the appellee, Carla Robinette (“Carla”), as a guardian and conservator for Shelda Jean Robinette (“Shelda”) and her estate. Shelda is Kathy’s and Carla’s mother. Carla lives in Tucker County, West Virginia and Kathy lives in Ohio.
The Circuit Court of Tucker County ruled that Kathy had failed to show that Carla was not an appropriate guardian and conservator and refused to modify its appointment order. Kathy has appealed that order to this Court.
We affirm the circuit court’s action; however, we remand the case with instructions that the circuit court should modify its order to provide that Ohio attorney Elizabeth Goodwin or another suitable person should manage certain assets and income in Ohio that belong to Shelda for Shelda’s benefit.
I.
Shelda Jean Robinette was born and raised in Tucker County, and has apparently resided in Ohio or in West Virginia all of her life. A guardian ad litem appointed for Shel-da by the Circuit Court of Tucker County in connection with the proceedings in the instant ease concluded that Shelda had legally resided in West Virginia since at least 2001 and until the present time; and this conclusion is supported by the record. Shelda owns property and assets located in West Virginia and in Ohio.
In 2003, at Kathy’s request, the Cuyahoga County, Ohio, Common Pleas Court appointed Ohio attorney Elizabeth Goodwin as guardian and conservator of Shelda and her estate. Attorney Goodwin has been managing Shelda’s assets and property in Ohio since 2003, including receiving certain income from social security and other sources that Shelda is entitled to receive. Attorney Goodwin has apparently retained this income in a trust account pending the outcome of these legal proceedings, and has paid certain expenses for the maintenance of Shelda’s property in Ohio.
In May of 2004, Carla filed a “Petition For Appointment Of Conservator/Guardian” for Shelda in the Tucker County Circuit Court. A report from Shelda’s personal physician submitted in connection with Carla’s petition stated that Shelda has mild dementia and has difficulty making complex decisions; that Shelda has expressed a desire to remain with Carla; and that Carla is an appropriate conservator and guardian.
On August 23, 2004, the Tucker County Circuit Court held an evidentiary hearing and subsequently entered an order finding that Shelda is a “protected person” under W.Va.Code, 44A-1-4 [2000] and appointing Carla as the guardian and conservator of Shelda and her estate.
On September 22, 2004, Kathy filed a Petition for Revocation of the circuit court’s order. On November 17, 2004, Kathy filed an amended Petition, styled as a “Petition for Modification” of the circuit court’s order, and a second evidentiary hearing was held.
In her Petition for Modification, Kathy requested that the Tucker County Circuit Court grant “shared custody” of Shelda to Kathy and Carla, with Shelda to live in Ohio for six months and in West Virginia for six months. Kathy proposed that Attorney Goodwin should be the conservator of all of Shelda’s property and assets and should be Shelda’s guardian when Shelda is in Ohio; and that Carla should be Shelda’s guardian when Shelda is in West Virginia.
Following the second evidentiary hearing, the circuit court denied Kathy’s Petition for Modification. The circuit court found that Kathy had produced no evidence showing that Carla was failing in her duties as guardian and conservator, or that Carla had violated any of the reasonable rules or regulations with which she is required by law to comply. The circuit judge heard evidence showing that Shelda had freely and.clearly expressed her desire to live with Carla; and that Shel-da’s degree of incompetence was not so great that the circuit court should ignore Shelda’s wishes — as long as doing so would be otherwise consistent with Shelda’s best interests.
The appellant appeals from the Tucker County Circuit Court’s November 30, 2004 order refusing to modify its previous guardianship and conservatorship order.
II.
When this Court reviews challenges to the findings and conclusions of the cir cuit court, a two-prong deferential standard of review is applied. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard.
Syllabus Point 1, McCormick v. Allstate, 197 W.Va. 415, 475 S.E.2d 507 (1996).
III.
In her appeal, Kathy Robinette does not challenge the jurisdiction of the Tucker County Cii'cuit Court to rule on the issue of whether to order a guardianship/eonservatorship for Shelda and her estate. Kathy does however contend in her appeal that the Tucker County Circuit Court should have revoked its original appointment order.
Kathy clearly sought this relief in the circuit court in her Petition for Revocation of the circuit court’s original guardianship/conservator order. However, Kathy’s Petition for Revocation was never ruled upon by the circuit court — because she withdrew it from the circuit court’s consideration:
Kathy’s subsequent Petition for Modification did not assert that the Ohio court’s action precluded the Circuit Court of Tucker County from deciding who should be an appropriate guardian and conservator of Shelda and her estate. Rather, Kathy’s petition requested that the Circuit Court of Tucker County modify its ruling to order the “shared custody” arrangement described above.
“This Court will not pass on a nonju-risdictional question which has not been decided by the trial court in the first instance.” Syllabus Point 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958). Kathy has therefore failed to preserve for appeal any challenge to the propriety of the Tucker County Circuit Court’s consideration on the merits of the issue of who should be Shelda’s guardian or conservator.
The only issue properly before this Court is the substantive legal propriety of the circuit court’s ruling on Kathy’s Petition for Modification. Both parties in their briefs submit and we will assume for purposes of our decision that the circuit court’s ruling on this issue is reviewed for an abuse of discretion.
Shelda Jean Robinette is an elderly woman who is no longer capable of making complicated decisions about her own welfare. Despite evidence suggesting that Kathy and Carla have had a stormy relationship, the record shows that the circuit court had sufficient grounds to conclude that Carda has proven to be a competent caretaker for Shel-da over the past several years.
We are comfortable in upholding the circuit court’s conclusion in the exercise of its discretion not to modify its order appointing Carla to act as Shelda’s guardian and conservator. Therefore, we affirm the circuit court’s appointment of Carla Robinette as Shelda Robinette’s guardian and conservator, subject to the limitations hereinafter described.
After a full review of the record, we are also persuaded that, given the current strained relationship between Kathy and Carla, Shelda’s property and assets in Ohio are much more likely to be efficiently, appropriately, and amicably managed for Shelda’s benefit if the currently functioning arrangement for such management is continued in place — at least until some change of circumstances shows the need for a change in management.
Consequently, we remand the instant case with instructions that the circuit court should modify its guardianship and conservatorship order to provide that Ohio attorney Elizabeth Goodwin (or if she cannot continue in that role, another appropriate party in Ohio who is approved by the Tucker County Circuit Court) should manage Shelda’s property and assets located in Ohio for Shelda’s benefit. That management should include receiving and directing Shelda’s income that is currently being received by attorney Goodwin to Carla for Carla’s use in caring for care of Shelda, less any expenses that are necessary for the maintenance of Shelda’s Ohio property and assets. A regular accounting of said management should be made to Carla, Kathy, and any other appropriate persons or entities as determined by the circuit court.
Affirmed and Remanded with Instructions.
. Under West Virginia law, a “guardian” is a "person appointed by the court who is responsible for the personal affairs of a protected person” and a "conservator" is a "person appointed by the court who is responsible for managing the estate and financial affairs of a protected person." W.Va.Code, 44A-1-4 [2000].
. The record suggests that Shelda may have been brought by Kathy before the Ohio court in connection with a guardianship/conservatorship petition while Shelda was in Ohio in 2003; that the Ohio court may have declined to take any action due to statements made by Shelda to the court; that Carla subsequently unsuccessfully tried to have an attorney file a guardianship/conservator-ship in West Virginia; and that the Ohio court thereafter entered a guardianship/conservator-ship order. The exact details of these events are not relevant to our ruling herein.
. However, W.Va.Code, 44A-2-10(b) [1994] states that the court may only appoint one guardian and one conservator.
. In issuing its November 2004 ruling, the trial court said “[t]herefore, your petition for Modification is going to be denied and the Petition for Revocation being withdrawn, the issue is now moot."
. In fact, the relief requested in Kathy’s Petition for Modification constituted an explicit recognition that the Tucker County Circuit Court had such authority.
.We find no merit in Kathy's additional arguments on appeal that the circuit court failed to make adequate inquiry into Shelda’s competency, and that the bond set for Carla was improper.
. A better result, of course, would be for Kathy and Carla to agree to an appropriate plan of management of Shelda's Ohio property and assets that did not require the services of an attorney. | [
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PER CURIAM:
This is an appeal by Michael W. Nutter (hereinafter “Appellant”) from a decision of the Circuit Court of Jackson County regarding the Appellant’s child support obligations. The order from which the Appellant appeals, entered April 24, 2004, held that the Appellant was entitled to a refund of $437.93 from the Bureau for Child Support Enforcement (hereinafter “Bureau”). The Appellant contends that the lower court’s prior June 30, 2003, finding of negligent handling of accounts on the part of the Bureau should have resulted in a monetary damages award for personal stress and wage losses for the Appellant and his current wife. Upon thorough review of the briefs, arguments, record, and applicable precedent, this Court affirms the lower court’s April 24, 2004, order.
I. Factual and Procedural History
On April 10, 1987, the Appellant and Alice Gwen Nutter were granted a divorce, and custody of their son Justin was granted to Mrs. Nutter. In addition to the child support owed in the Alice Nutter case, the Appellant also owed child support to a previous wife, Linda Nutter Wiblin. The record reflects that the Appellant failed to pay the required child support in both the Wiblin and Nutter accounts and accumulated a child support arrearage. The Bureau was apparently inefficient in maintaining records recording which monetary amounts ultimately paid by the Appellant should be attributed to each of the two child support obligation accounts. A February 6, 2003, audit definitively concluded that the Appellant owed $1,775.89 in child support to Alice Nutter, plus $1,372.02 in interest on the underpayment through January 19, 2003. The post January 19, 2003, financial situation was to be determined at a later date.
By order entered June 30, 2003, the lower court approved the findings of the February 6, 2003, audit and specifically declared that the Bureau had been negligent in misapplying payments between the Nutter account and the Wiblin account. The credit for payments made by the Appellant subsequent to January 19, 2003, the date of the last calculations included in the audit, was to be determined after the June 30, 2003, order. Neither party appealed the June 30, 2003, order.
It is from an April 24, 2004, lower court order that the Appellant currently appeals. That order held that based upon the payments received from the Appellant subsequent to January 19, 2003, the Appellant was entitled to a refund of $437.93 from the Bureau. The Bureau has affirmed that such amount has been paid to the Appellant. The April 24, 2004, order also denied the Appellant’s request for attorney fees.
On August 25, 2004, the Appellant filed an appeal of the April 24, 2004, order to this Court. The Appellant contends that the lower court’s June 30, 2003, finding of negligence on the part of the Bureau should have warranted monetary damages to be paid by the Bureau to the Appellant. He explains that freezes were wrongly placed on his checking and savings accounts; income tax refunds were unfairly intercepted; and employment time was lost due to the difficulties created by the Bureau’s inefficiency. By letter to this Court dated August 10, 2005, the Appellant, acting pro se, requested damages in the amount of $1,173,500.00. By letter dated September 12, 2005, the Appellant asserted his desire to file a civil action against the Bureau, seeking $1,173,500.00 in damages.
In response to the Appellant’s petition for appeal, the Bureau filed a cross assignment of error asserting that this case should be dismissed since the June 30, 2003, finding of negligence was never appealed. However, the Bureau further asserts that if this Court does act on this matter, the Bureau seeks a remand for recalculation of the amount owed to Mr. Nutter. The Bureau contends that the audit erroneously based its calculations upon “notices to income withhold” rather than upon the actual court-ordered child support orders. The Bureau argues that the actual child support obligations are more accurately reflected in the court orders, rather than the income withholding notices used by the auditors.
II. Standard of Review
In considering the appeal of a circuit court’s order, this Court employs a two-pronged deferential standard:
When this Court reviews challenges to the findings and conclusions of the circuit court, a two-prong deferential standard of review is applied. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard.
Syl. Pt. 1, McCormick v. Allstate Insurance Co., 197 W.Va. 415, 475 S.E.2d 507 (1996). This Court is also guided by our consistently stated rule that “[t]his Court reviews the circuit court’s final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).
III. Discussion
The posture in which this case is presented must be addressed at the outset of this evaluation. The June 30, 2003, finding of negligence on the part of the Bureau was not appealed by either party. Thus, the only matters properly before this Court on appeal are those contained in the April 24, 2004, order. That properly appealed order set forth the reimbursement amount owed to the Appellant as $437.93 and declined to extend attorney’s fees to the Appellant. The Appellant now seeks damages in the amount of $1,173,500.00, apparently based upon the pri- or finding of negligence that was not appealed.
This Court has no jurisdiction to award damages to the Appellant based upon the lower court’s prior order finding negligence in the Bureau’s record keeping. First, the order regarding the negligence of the Bureau was not appealed, and second, this Court, as an appellate court, has no authority to provide a litigant with a damages award where the lower court did not address the issue of damages. See Tiernan v. Charleston Area Med. Ctr., Inc., 203 W.Va. 135, 150 n. 27, 506 S.E.2d 578, 593 n. 27 (1998) (“ ‘This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.’” (citation omitted)); Syl. Pt. 2, Trent v. Cook, 198 W.Va. 601, 607, 482 S.E.2d 218, 224 (1996) (“ ‘[T]he Supreme Court of Appeals is limited in its authority to resolve assignments of nonjurisdictional errors to a consideration of those matters passed upon by the court below and fairly arising upon the portions of the record designated for appellate review.’ ” (citations omitted)); Syl. Pt. 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974) (“As a general rule, proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears upon the record, and errors assigned for the first time in an appellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court if objected to there.”).
With respect to the lower court’s order denying attorney’s fees to the Appellant, our review clearly demonstrates that the lower court was correct. West Virginia Code § 48-18-108(d) (Supp.2005) explicitly provides that “[n]o court may order the Bureau for Child Support Enforcement to pay attorney’s fees to any party in any action brought pursuant to this chapter.” We consequently affirm the lower court’s order denying the Appellant attorney’s fees.
The Bureau filed a cross-assignment of error regarding the alleged error in the audit utilized to calculate the refund owed to the Appellant. Upon review, this Court concludes that because the Bureau did not appeal the June 30, 2003, lower court approval of the audit, this Court has no jurisdiction to entertain arguments regarding the methodology utilized in the audit procedures. We therefore decline to address the matters raised in the Bureau’s cross-assignment of error.
As a final matter to be recognized, it appears from the record that the Appellant sought relief in an action seeking insurance benefits through the Bureau’s insurer, AIG Claim Services, Inc., Property/Casualty Claim Division. The Appellant’s action was not initially successful, and the record is unclear regarding the current posture of that insurance claim.
Having reviewed the matters asserted by the Appellant in this appeal, this Court finds that the lower court’s order of April 24, 2004, should be affirmed in its entirety.
Affirmed.
. The Appellant's child support obligation to Justin Nutter terminated with Justin's high school graduation in May 2002.
. As emphasized by the Bureau, it must be observed that the confusion in the Appellant’s payments originated in the Appellant's own failure to make all payment of child support in a timely manner.
. The record reflects that the Linda Wiblin account was finalized in February 2000 with a finding of the Wood County Circuit Court that the Appellant was entitled to a refund from the Bureau for overpayments in the Linda Wiblin account. At that time, despite the fact that an arrearage existed in the Alice Nutter account, the Appellant was reimbursed fpr his overpayments in the Wiblin account.
.The audit was performed by the independent accounting firm of McDonough, Eddy, Parsons & Baylous. The audit was based upon the income withholding orders submitted to the Appellant's sources of income by the Bureau.
. The June 30, 2003, order specifically stated as follows: "The Court finds that the Bureau of Child Support Enforcement was negligent in misapplying payments between the Wiblin and Nutter accounts.”
. See W. Va.Code § 58-5-4 (1998) (Repl.Vol. 2005).
. Prior to the promulgation of that statute, this Court had also ruled that no statutory authority existed for the granting of attorney fees against the predecessor to the Bureau, the Child Advocate Office. In State ex rel. Division of Human Services v. Benjamin P.B., 190 W.Va. 81, 436 S.E.2d 627 (1993), this Court found that attorney fees could not properly be assessed against the Child Advocate Office because no statutory authority existed which would permit the recovery of attorney fees in that paternity action and because the Bureau's actions were not per se oppressive for purposes of awarding attorney fees. 190 W.Va. at 84, 436 S.E.2d at 630.
. This Court previously explained in Parkulo v. West Virginia Board of Probation, 199 W.Va. 161, 483 S.E.2d 507 (1996), that the State Board of Risk and Insurance Management is authorized to purchase insurance providing coverage of all State "property, activities and responsibilities.” 199 W.Va. at 168, 483 S.E.2d at 514. In syllabus point two of Pittsburgh Elevator Co. v. West Virginia Board of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983), this Court held that "[s]uits which seek no recovery from state funds, but rather allege that recovery is sought under and up to the limits of the State's liability insurance coverage, fall outside the traditional constitutional bar to suits against the State.” This Court also recognized as follows in syllabus point one of Eggleston v. West Virginia Department of Highways, 189 W.Va. 230, 429 S.E.2d 636 (1993), this Court held as follows:
W.Va.Code, 29-12-5(a) (1986), provides an exception for the State's constitutional immunity found in Section 35 of Article VI of the West Virginia Constitution. It requires the State Board of Risk and Insurance Management to purchase or contract for insurance and requires that such insurance policy "shall provide that the insurer shall be barred and estopped from relying upon the constitutional immunity of the State of West Virginia against claims or suits.”
. The record before this Court relates directly to the Appellant's divorce and child support issues and does not contain detailed information regarding the Appellant’s claim for insurance proceeds. It does, however, contain a letter from AIG Claim Services, Inc., insurer for the Bureau, dated August 12, 2004. That letter advises the Appellant that the documentation reviewed by AIG "did not bring to light any additional facts that would cause us to be able to change our position on this claim.” The record does not contain any information regarding subsequent action by the Appellant or AIG on this claim. | [
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DAVIS, J.
This is a lawyer disciplinary proceeding brought against Theodore R. Dues, Jr. (hereinafter referred to as “Mr. Dues”) by the Office of Disciplinary Counsel (hereinafter referred to as “the ODC”) on behalf of the Lawyer Disciplinary Board (hereinafter referred to as “the Board”). A Hearing Panel Subcommittee of the Board determined that Mr. Dues committed thirty-nine violations of the Rules of Professional Conduct. Consequently, the Board and The ODC have recommended (1) that Mr. Dues’ license to practice law be suspended for eighteen months; (2) that he establish, as a condition of reinstatement, that he is mentally and emotionally fit to practice law; (3) that upon reinstatement he be supervised in the practice of law for two years; (4) that he make restitution to various former clients in an amount that totals $13,000.00; (5) that he reimburse the State Bar Client Protection Fund $5,500.00; and (6) that he pay the costs of this disciplinary proceeding in the amount of $1,968.16.
Mr. Dues does not contest the Board’s findings of thirty-nine violations of the Rules of Professional Conduct. However, Mr. Dues contends that the suspension recommendation is too harsh in light of mitigating circumstances. Based upon the parties’ arguments to this Court, the record designated for our consideration, and the pertinent authorities, we agree with Mr. Dues that a suspension of his law license is not appropriate. Consequently, we conclude that the following sanctions shall be imposed upon Mr. Dues: (1) public reprimand; (2) that for a period of twenty-four months his practice of law shall be restricted solely to work as a mental hygiene commissioner; (3) that he shall be supervised during this period by the chief judge of the Circuit Court of Kanawha County; (4) that as a condition of returning to the full practice of law at the end of the twenty-four month period, he must provide the Office of Disciplinary Counsel with written documentation from a mental health provider indicating that his diagnosed severe depression is under control; (5) that he make restitution to various former clients in an amount that totals $13,000.00; (6) that he reimburse the State Bar Client Protection Fund $5,500.00; and (7) that he pay the costs of this disciplinary proceeding in the amount of $1,968.16.
I.
FACTUAL BACKGROUND
On March 1, 2004, an eleven count statement of charges was filed against Mr. Dues by an investigative panel. The charges arose as a result of nine complaints filed against him by former clients and two complaints filed by the ODC. The facts underlying each of the eleven counts are summarized below.
First Charge. In January of 2001, James C. Meeks retained Mr. Dues to represent him in a civil action in which Mr. Meeks was sued in his capacity as executor of his mother’s estate. In March of 2002, Mr. Dues informed Mr. Meeks that he was going to have heart surgery and that other attorneys would be available to handle his case. However, no other attorney contacted Mr. Meeks. It was not until November of 2002 that Mr. Meeks was able to make contact with Mr. Dues. During the November contact, Mr. Dues informed Mr. Meeks that he was scheduling a meeting with a judge and that he would contact Mr. Meeks in two weeks. Mr. Dues failed to contact Mr. Meeks as promised. After several attempts to contact Mr. Dues, Mr. Meeks filed an ethics complaint on March 15, 2003. Subsequent to the filing of the ethics complaint, the ODC attempted to communicate with Mr. Dues by mail on two occasions. He made no response to either communication.
As a consequence of Mr. Meeks’ complaint, the Board found that Mr. Dues violated Rule 1.3 by not pursuing the ease diligently. The Board also determined that Mr. Dues violated Rule 1.4 by failing to communicate with his client, and Rule 1.16(d) by failing to terminate representation. Additionally, the Board found that Mr. Dues’ failure to respond to the ODC’s correspondence was a violation of Rule 8.1(b).
Second Charge. In 1998, Lavem E. Ruth retained Mr. Dues to represent her son, who had received a leg injury in an automobile accident. Mr. Dues settled the case out of court. As a result of complications arising from surgery on her son’s leg, Ms. Ruth retained Mr. Dues for the purpose of bringing a medical malpractice action. In July of 2001, Ms. Ruth paid Mr. Dues $1,058.92 for an expert to review her son’s medical records. Ms. Ruth was not pleased with the results of the review and thereafter, in January of 2002, she paid Mr. Dues an additional $2,000.00 for a second opinion by another expert. As a result of Mr. Dues’ failure to provide Ms. Ruth with information about the second expert review, she filed an ethics complaint in April of 2003. After the filing of the ethics complaint, the ODC attempted to communicate with Mr. Dues by mail on two occasions. He failed to respond to either communication.
As a consequence of Ms. Ruth’s complaint, the Board found that Mr. Dues violated Rule 1.3 by not pursuing the case diligently, and Rule 1.4 by failing to communicate with his client. Additionally, the Board found that Mr. Dues’ failure to respond to the ODC’s correspondence was a violation of Rule 8.1(b).
Third Charge. On an unspecified date Herbert and Hubert McKinney retained Mr. Dues to represent them in several matters. At some unknown period, communication between Mi'. Dues and the McKinneys stopped. In April of 2003, the McKinneys sent a letter to Mr. Dues and requested the return of their file materials. The letter was returned marked “Unclaimed.” Thereafter, in May of 2003, the McKinneys filed an ethics complaint against Mi-. Dues. After the filing of the ethics complaint, the ODC attempted to communicate with Mr. Dues by mail on one occasion, but no response was made to the communication.
As a consequence of the McKinneys’ complaint, the Board found that Mr. Dues violated Rule 1.4 by failing to communicate with his clients, and Rule 1.16(d) by failing to return the McKinneys’ file materials. Additionally, the Board found that Mr. Dues’ failure to respond to the ODC’s correspondence was a violation of Rule 8.1(b).
Fourth Charge. In 2000, Mr. Dues filed a medical malpractice action on behalf of Jean-nettia D. Spencer. • During the course of the litigation, Mr. Dues failed to engage in discovery and neglected the case. The ease was eventually dismissed with prejudice without Ms. Spencer’s knowledge. As a result of Mr. Dues’ failure to keep in contact with Ms. Spencer, she sent him a letter terminating his services and requesting her file materials. Mr. Dues failed to turn over the file materials. In June of 2003, Ms. Spencer filed an ethics complaint against Mr. Dues. After the filing of the ethics complaint, the ODC attempted to communicate with Mr. Dues by mail on one occasion, but no response was made to the communication.
As a consequence of Ms. Spencer’s complaint, the Board found that Mr. Dues violated Rule 1.1 by failing to competently represent his client. The Board also found that Mr. Dues violated Rule 1.4 by failing to communicate with his clients, and Rule 1.16(d) by failing to return Ms. Spencer’s file materials. Additionally, the Board found that Mr. Dues’ failure to respond to The ODC’s correspondence was a violation of Rule 8.1(b).
Fifth Charge. In March of 2002, Raymond J. Smith paid Mr. Dues $3,500.00 as a retaining fee to represent him in a discrimination ease. Prior to the case going to trial, Mr. Dues referred the case to another attorney. In doing so, Mr. Dues agreed to forward a portion of the retainer fee, $2,700.00, to the new attorney and to return the balance of $800.00 to Mr. Smith. However, Mr. Dues failed to return the money promised to Mr. Smith. After Mr. Smith made several unsuccessful attempts to contact Mr. Dues, he filed an ethics complaint in July of 2003. After the filing of the ethics complaint, The ODC attempted to communicate with Mr. Dues by mail on one occasion, but no response was made to the communication.
As a consequence of Mr. Smith’s complaint, the Board found that Mr. Dues violated Rule 1.4 by failing to communicate with his client. The Board also found that Mr. Dues violated Rule 1.15(b) and (c), and Rule 8.4(c) by failing to return the balance of the retainer fee to Mr. Smith. Additionally, the Board found that Mr. Dues’ failure to respond to The ODC’s correspondence was a violation of Rule 8.1(b).
Sixth Charge. Lois E. Heath retained Mr. Dues to represent her in a discrimination suit. In March of 2000, Mr. Dues informed Ms. Heath that a lawsuit had been filed and that she would receive a letter from him confirming that the action had been filed. Ms. Heath never received such a letter. Consequently, Ms. Heath contacted Mr. Dues’ office. Ms. Heath was told that Mr. Dues was away on medical leave and that another attorney would contact her. However, no attorney contacted Ms. Heath. In July of 2003, Ms. Heath filed an ethics complaint against Mr. Dues. Subsequent to the filing of the ethics complaint, The ODC attempted to communicate with Mr. Dues by mail on two occasions, but no response was made to either communication.
As a consequence of Ms. Heath’s complaint, the Board found that Mr. Dues violated Rule 1.4 by failing to communicate with his client. Additionally, the Board found that Mr. Dues’ failure to respond to The ODC’s correspondence was a violation of Rule 8.1(b).
Seventh Charge. In 2000, Jeffrey L. Moss retained Mr. Dues to represent him in an employment discharge action. During the course of the litigation Mr. Dues failed to return telephone calls by Mr. Moss, cancelled scheduled appointments and failed to keep Mr. Moss abreast of the status of the case. Mr. Dues also failed to conduct discovery in the case and to properly brief matters for the court. After an adverse ruling was rendered in the case, Mr. Dues obtained a fee to file an appeal, but failed to do so. Mr. Moss filed an ethics complaint against Mr. Dues on February 14, 2003. Subsequent to the filing of the ethics complaint, The ODC attempted to communicate with Mr. Dues by mail on two occasions, but no response was made to either communication.
As a consequence of Mr. Moss’ complaint, the Board found that Mr. Dues violated Rule 1.4 by failing to communicate with his client. The Board also found that Mi'. Dues violated Rule 1.3 by not pursuing the case diligently, and Rule 1.1 by failing to competently represent his client. Additionally, the Board found that Mr. Dues’ failure to respond to The ODC’s correspondence was a violation of Rule 8.1(b).
Eighth Charge. In April of 1997, Ruth E. Royal retained Mr. Dues to represent her in an employment dispute. Ms. Royal paid Mr. Dues $5,500.00 as a retaining fee. The rec ord indicates that throughout the course of the litigation Mr. Dues neglected the case and failed to communicate with his client. The case was eventually dismissed because of Mr. Dues’ failure to competently participate. Ms. Royal filed an ethics complaint against Mr. Dues on October 23, 2003. Subsequent to the filing of the ethics complaint, The ODC attempted to communicate with Mr. Dues by mail on two occasions, but no response was made to either communication.
As a consequence of Ms. Royal’s complaint, the Board found that Mr. Dues violated Rule 1.4 by failing to communicate with his client. The Board also found that Mr. Dues violated Rule 1.3 by not pursuing the case diligently, and Rule 1.1 by failing to competently represent his client. Additionally, the Board found that Mr. Dues’ failure to respond to The ODC’s correspondence was a violation of Rule 8.1(b).
Ninth Charge. Nancy C. Cooper retained Mr. Dues to represent her in an employment ease in May of 2000. Ms. Cooper paid Mr. Dues $5,500.00 as a retaining fee. During the course of the litigation Mr. Dues informed Ms. Cooper that he was ill, but was able to continue to represent her. However, the record indicates that Mi-. Dues neglected the case and failed to keep Ms. Cooper informed of the status of the case. Eventually a settlement agreement was reached in the case. Mr. Dues promised to return Ms. Cooper the retaining fee once the settlement was finalized. However, Ms. Cooper was forced to find another attorney to finalize the settlement, and she was never returned her retainer fee. Ms. Cooper filed an ethics complaint against Mr. Dues on November 13, 2003. Subsequent to the filing of the ethics complaint, The ODC attempted to communicate •with Mr. Dues by mail on one occasion, but no response was made to the communication.
As a consequence of Ms. Cooper’s complaint, the Board found that Mr. Dues violated Rule 1.4 by failing to keep his client aware of the status of her case. The Board also found that Mr. Dues violated Rule 1.3 by not pursuing the case diligently, and Rule 1.1 by failing to competently represent his client. Further, the Board determined that Mr. Dues violated Rule 8.4(e) by failing to return the retainer fee to Ms. Cooper, and Rule 1.16(a)(2) for failing to terminate representation when his health materially impaired his ability to represent Ms. Cooper. Additionally, the Board found that Mr. Dues’ failure to respond to The ODC’s correspondence was a violation of Rule 8.1(b).
Tenth and Eleventh Charges. The record is not clear, but it appeal’s that The ODC filed two charges against Mr. Dues. One charge involves Mr. Dues’ failure to attend a disciplinary deposition hearing and to produce documents. The Board found that this conduct violated Rule 8.4(c) and (d). The second charge stems from Mr. Dues’ failure to terminate representation of the complaining clients when his physical condition materially impaired his ability to represent them. The Board found that this conduct violated Rule 1.16(a)(2).
II.
STANDARD OF REVIEW
Our standard of review of lawyer disciplinary proceedings was set out in syllabus point 3 of Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994), as follows:
A de novo standard applies to a review of the adjudicatory record made before the [Lawyer Disciplinary Board] as to questions of law, questions of application of the law to the facts* and questions of appropriate sanctions; this Court gives respectful consideration to the [Board’s] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [Board’s] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.
Accord Syl. pt. 3, Lawyer Disciplinary Bd. v. Cunningham, 195 W.Va. 27, 464 S.E.2d 181 (1995). Furthermore, we have made clear that “[t]his Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys’ licenses to practice law.” Syl. pt. 3, Committee on Legal Ethics of the West Virginia State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).
III.
DISCUSSION
Mr. Dues does not contest the violations found by the Board. Therefore, we will not disturb the Board’s determination that Mr. Dues engaged in conduct that violated thirty-nine provisions of the Rules of Professional Conduct. Further, Mr. Dues “does not oppose the imposition of any of the recommended sanctions other than the recommendation for an eighteen-month suspension of [his] license to practice law.” In arguing against a suspension of his license to practice law, Mr. Dues contends that the debilitating condition of his mental health during the periods that the complaints arose is a mitigating factor that justifies not suspending his license to practice law. Instead, Mr. Dues requests this Court temporarily limit his practice of law to administrative matters such as mental health commissioner and guardian work. On the other hand, The ODC argues that the suspension recommendation by the Board is justified by the aggravating circumstances of this case. Moreover, The ODC contends that Mr.. Dues’ mental impairment is insufficient to justify a rejection of the suspension recommendation.
A. Aggravating Circumstances
This Court has held that “[aggravating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify an increase in the degree of discipline to be imposed.” Syl. pt. 4, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003). In this proceeding, the ODC has cited to a number of factors which it contends are sufficiently aggravating to warrant suspending Mr. Dues’ license to practice law.
The ODC notes that Mr. Dues initially failed to participate in the disciplinary proceedings. This conduct included failing to respond to the charges and failing to attend his scheduled deposition. The ODC also points out that at some point Mr. Dues closed his law office, but failed to reten files or refund moneys to his clients. As a consequence of this conduct, the State Bar Client Protection Fund was required to reimburse one of Mr. Dues’ clients a retaining fee in the amount of $5,500.00.
The thirty-nine violations found against Mr. Dues has also been cited by The ODC as an aggravating factor. In the Scott decision this Court “recognized ‘multiple offenses’ as an aggravating factor in a lawyer disciplinary proceeding.” Scott, 213 W.Va. at 217, 579 S.E.2d at 558. Further, The ODC points out that Mr. Dues has. been previously disciplined by this Court in 1992 with a public reprimand for failing to file an income tax return. This Court has held that “ ‘[p]rior discipline is an aggravating factor in a pending disciplinary proceeding because it calls into question the fitness of the attorney to continue to practice a profession imbued with a public trust.’ ” Lawyer Disciplinary Bd. v. Artimez, 208 W.Va. 288, 297, 540 S.E.2d 156, 165 (2000) (quoting Syl. pt. 5, Committee on Legal Ethics v. Tatterson, 177 W.Va. 356, 352 S.E.2d 107 (1986)).
Finally, as an aggravating factor, The ODC has indicated that in 2002, three federal cases in which Mr. Dues was counsel were dismissed because of his failure to properly litigate the matters.
B. Mitigating Circumstances
Mr. Dues contends that a suspension of his license to practice law is not appropriate because of mitigating circumstances surrounding the violations. We have held that “[mjitigating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify a reduction in the degree of discipline to be imposed.” Syl. pt. 2, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003). In Scott, we outlined some considerations that are viewed as mitigating:
Mitigating factors which may be considered in determining the appropriate sanction to be imposed against a lawyer for violating the Rules of Professional Conduct include: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make restitution or to rectify consequences of misconduct; (5) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (6) inexperience in the practice of law; (7) character or reputation; (8) physical or mental disability or impairment; (9) delay in disciplinary proceedings; (10) interim rehabilitation; (11) imposition of other penalties or sanctions; (12) remorse; and (13) remoteness of prior offenses.
Syl. pt. 3, Scott. In this proceeding Mr. Dues focuses primarily upon the mental impairment he had during the period in which the violations occurred.
The record indicates that in 2002, Mr. Dues had a heart attack and triple bypass surgery. In 2003 he was admitted to the hospital on at least three occasions due to physical health problems, and also underwent a prostrate operation. The physical problems Mr. Dues experienced apparently led to severe depression. Consequently, on or about December of 2002, Mr. Dues began psychiatric treatment under the care of Dr. Martin J. Kommor, at the West Virginia University Department of Behavioral Medicine and Psychiatry, Charleston Division. At various times, Mr. Dues has been placed on the following medications to treat his depression: paxil, effexor and lexapro.
. During the disciplinary hearing, an independent psychiatric evaluation was performed on Mr. Dues, at the request of The ODC, by Dr. Ralph S. Smith, Jr. A report was submitted by Dr. Smith in which he made the following assessment of Mr. Dues:
It is my opinion that [Mr. Dues] did have a serious depression, which interfered with his functioning as an attorney during the times in question of most of the complaints ....
If Mr. Dues is allowed to continue to practice, psychiatric treatment is imperative to prevent relapse of his depression and to support him in times of intérnal (physical illness) stress and external life stress. Due to the multiple episodes of depression and regressive behavior, he will probably need indefinite care to prevent future relapse. If his physical health holds up and his mental health stabilizes with continued psychiatric care, it is likely that his personality dysfunction will not express itself as severely as it has had in the past under the stressful situations and that he can function adequately.
C. Sanctions
Mr. Dues contends that his mental disability is a mitigating circumstance. The ODC, on the other hand, argues that Mr. Dues’ mental disability is not mitigating. Both parties cite to the criteria for establishing mental disability as a mitigating circumstance that is set out in Rule 9.32 of the ABA Standards for Imposing Lawyer Sanctions. Under Rule 9.32 a mental disability is considered mitigating when:
(1) there is medical evidence that the respondent is affected by a ... mental disability; (2) the ... mental disability caused the misconduct; (3) the respondent’s recovery from the ... mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
ABA/BNA Lawyers’ Manual on Professional Conduct, at 01:839 (2005). Because we believe that the mitigating mental disability standard established by the ABA is sound, we adopt that standard. Consequently, we hold that in a lawyer disciplinary proceeding, a mental disability is considered mitigating when: (1) there is medical evidence that the attorney is affected by a mental disability; (2) the mental disability caused the misconduct; (3) the attorney’s recovery from the mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
The ODC contends that Mr. Dues’ mental disability is not mitigating because he is unable to satisfy the third and fourth factors of our test. We disagree.
Mr. Dues correctly points out that Dr. Smith has opined that he is making good progress through treatment for his depression, and that by maintaining such treatment he will be able to function adequately as an attorney. Moreover, the record clearly demonstrates that, throughout all of the recent difficulties Mr. Dues has had, the one area of law that he has shown he is able to handle without incident is the area of administrative law as a mental hygiene commissioner. We believe these facts satisfy the third and fourth requirements of Rule 9.32.
Having determined that Mr. Dues has established his mental disability as a mitigating factor, we must now determine what weight this mitigating factor should be given. In the commentary for Rule 9.32, the ABA has suggested the following weight categories:
If the offense is proven to be attributable solely to a [mental] disability ..., it should be given the greatest weight. If it is principally responsible for the offense, it should be given very great weight; and if it is a substantial contributing cause of the offense, it should be given great weight. In all other cases in which the [mental] disability ... is considered as mitigating, it should be given little weight.
ABA/BNA Lawyers’ Manual on Professional Conduct, at 01:840 (2005) (emphasis added). In the instant proceeding, we believe the unique facts involved here justify assigning the “greatest weight” to Mr. Dues’ mental disability.
Mr. Dues was admitted to the practice of law in this state in 1978. From that time up until the complaints in the instant matter, this Court has never imposed a sanction against him for misconduct involving a client. The one instance, in 1992, in which this Court was called upon to reprimand Mr. Dues, the matter did not involve a client. In other words, from 1978 until approximately 2002, Mr. Dues was an outstanding lawyer for the public. It was only after Mr. Dues sustained a heart attack, triple bypass surgery and a prostrate operation that he began to falter in his duties and responsibilities as an attorney. Dr. Smith has attributed the legal deficiencies directly to the serious depression that flowed from Mr. Dues’ physical impairments. As a result of the direct connection between Mr. Dues’ mental disability and the misconduct in this case, we are of the opinion that limiting his practice, as opposed to suspending his license, serves as an effective deterrent to other members of the Bar and maintains the public confidence in the ethical standards of the legal profession. See ABA/ BNA Lawyers’ Manual on Professional Conduct, at 01:814 (“In less serious cases of incompetence ... a sanction requiring the lawyer ... to limit [his/her] practice to handling certain types of cases may better protect the public than a period of suspension from practice.”).
The ODC also contends that this Court’s decision in Scott supports a suspension of Mr. Dues’ law license. We disagree.
The decision in Scott involved an attorney who was found to have committed twenty-two violations of the Rules of Professional Conduct. This Court suspended the attorney’s law license for three years. One of the mitigating factors cited by the attorney in Scott was his diagnosis of Bipolar II Disorder. This Court rejected Bipolar II Disorder as a complete mitigating factor:
In our review of the facts we find that Mr. Scott has failed to persuasively connect his Bipolar II Disorder with all of the conduct involved in this specific case. Arguably, the disorder may have played a role in Mr. Scott’s lack of diligence with his civil cases and other matters. Consequently, the disorder would appear to be a mitigating factor on the issue of lack of diligence. However, nothing in Mr. Scott’s brief indicates how Bipolar II Disorder caused him to engage in dishonesty. No evidence was adduced that connected Mr. Scott’s Bipolar II disorder to his pattern of lying and falsification to conceal his lack of diligence.
Scott, 213 W.Va. at 215, 579 S.E.2d at 556 (citation omitted).
A critical factor distinguishes Scott from the facts in the instant ease. The attorney in Scott could not connect all of his legal deficiencies, i.e., lying to clients, judges, and officers of the court, and falsifying documents, to his Bipolar II Disorder. Contrariwise, Mr. Dues has presented unchallenged medical evidence that his legal deficiencies were directly connected to the serious depression that flowed from his physical problems. It is only because of this direct connection that we are compelled to accord the “greatest weight” to Mr. Dues’ mental disability.
We wish to make clear that we appreciate the gravity of Mr. Dues’ misconduct. Under a different set of facts, such misconduct could warrant a sanction greater than that recommended by the Board. However, we believe that the unique facts of this case convincingly demonstrate that, in addition to his clients, Mr. Dues was also a tragic victim in this matter. He was the victim of a mental disease that “the legal community has been slow to recognize ... as a legitimate disease that merits attention.” Todd Goren & Bethany Smith, “Depression as a Mitigating Factor in Lawyer Discipline,” 14 Geo. J. Legal Ethics 1081, 1082 (2001).
IV.
CONCLUSION
In view of the foregoing, .the following sanctions are imposed upon Mr. Dues: (1) public reprimand; (2) that for a period of twenty-four months his.practice of law shall be restricted solely to work as a mental hygiene commissioner; (3) that he shall be supervised during this period by the Chief Judge of the Circuit Court of Kanawha County; (4) that as a condition of returning to the full practice of law at the end of the twenty-four month period, he must provide the Office of Disciplinary Counsel with written documentation from a mental health provider indicating that his diagnosed severe depression is under control; (5) that he make restitution to various former clients in an amount that totals $13,000.00; (6) that he reimburse the State Bar Client Protection Fund $5,500.00; and (7) that he pay the costs of this disciplinary proceeding in the amount of $1,968.16.
Public Reprimand.
. Pursuant to W. Va.Code § 27-5-1 (2002) (Repl.Vol.2004) the chief judge of each circuit appoints attorneys to serve as mental hygiene commissioners.
. Rule 1.3 provides as follows:
A lawyer shall act with reasonable diligence and promptness in representing a client.
. Rule 1.4 provides as follows:
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
. Rule 1.16(d) provides as follows:
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
.Rule 8.1(b) provides as follows:
[A] lawyer in connection with ... with a disciplinary matter, shall not:
(b) ... knowingly fail to respond to a lawful demand for information from ... disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
. For the text of Rule 1.3, see footnote 2.
. For the text of Rule 1.4, see footnote 3.
. For the text of Rule 8.1, see footnote 5.
. For tire text of Rule 1.4, see footnote 3.
. For the text of Rule 1.16(d),' see footnote 4.
. For the text of Rule 8.1 (b), see footnote 5.
. Rule 1.1 provides as follows:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
. For the text of Rule 1.4, see footnote 3.
. For the text of Rule 1.16(d), see footnote 4.
. For the text of Rule 8.1(b),seefootnote5.
. For the text of Rule 1.4, see footnote 3.
. Rule 1.15(b) and (c) provides as follows:
(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
(c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.
. Rule 8.4(c) provides as follows:
It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
. For the text of Rule 8.1(b), see footnote 5.
. For the text of Rule 1.4, see footnote 3.
. For the text of Rule 8.1(b), see footnote 5.
. For the text of Rule 1.4, see footnote 3.
. For the text of Rule 1.3, see footnote 2.
. For the text of Rule 1.1, see footnote 12.
. For the text of Rule 8.1(b), see footnote 5.
. For the text of Rule 1.4, see footnote 3.
. For the text of Rule 1.3, see footnote 2.
. For the text of Rule 1.1, see footnote 12.
. For the text of Rule 8.1 (b), see footnote 5.
. For the text of Rule 1.4, see footnote 3.
. For the text of Rule 1.3, see footnote 2.
. For the text of Rule 1.1, see footnote 12.
. For the text of Rule 8.4(c), see footnote 18.
. Rule 1.16(a)(2) provides as follows:
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
. For the text of Rule 8.1(b), see footnote 5.
. Rule 8.4(c) and (d) provides as follows:
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice.
. For the text of Rule 1.16(a)(2), see footnote 34.
. The specific factors which this Court considers in imposing sanctions for violating the Rules of Professional Conduct include:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury caused by the lawyer's misconduct; and (4) the existence of any aggravating or mitigating factors.
Syl. pt. 4, in part, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998). For the purposes of this proceeding, the fourth factor under Jordan is the dispositive consideration.
. The opinion in that case was not published. See Committee on Legal Ethics v. Dues, No. 21424, December 11, 1992 (unpublished). The ODC has also noted that Mr. Dues was admonished by the Lawyer Disciplinary Board in 1999 for failing to respond to disciplinary authority.
. Mr. Dues also contends, and we agree, that there is no evidence of a dishonest or selfish motive on his part in causing the violations, and that he has shown remorse.
. The Board had recommended that the attorney's license to practice law be annulled.
. This disease has been summarized as follows: Depression ... is a medical sickness with clear biological roots: people who suffer from severe depression have been found to have unusual levels of certain brain hormones. According to the American Psychiatric Association, a person is considered clinically depressed if they exhibit at least five or more of the following symptoms, with at least one of the first two symptoms existing:
(1) depressed mood most of the day, nearly every day, as indicated by subjective report (e.g., feels sad or empty) or observation made by others (e.g., appears tearful);
(2) markedly diminished interest or pleasure in all, or almost all activities most of the day (as indicated by either subjective account or observation made by others);
(3) significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day;
(4) insomnia or hypersomnia nearly every day;
(5) psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feeling of restlessness or being slowed down);
(6) fatigue or loss of energy nearly every day;
(7) feelings of worthlessness or excessive or inappropriate guilt ... nearly every day (not merely self-reproach or guilt about being sick);
(8) diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or observed by others);
(9) recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without specific plan, or a suicide attempt or a specific plan for committing suicide;
Depression has been found to be comparable with, or worse than, .chronic medical conditions such as hypertension, diabetes, angina, arthritis, back problems, lung problems, and gastrointestinal disorders....
Given that lawyers may disproportionately suffer from depression, there are several reasons why depression should receive more attention from the legal community. First, depression is more common today than any time in history and seems to be increasingly more common with every generation. Second, less than 20 percent of people who suffer from depression actually seek treatment, and of those who seek treatment some 20 to 50 percent terminate it prematurely. There is some good news for those who suffer from depression: with a combination of treatments and new drugs some 85 percent of people are able to manage their ' depression and lead normal lives.
Goren & Smith, "Depression as 'a Mitigating Factor in Lawyer Discipline,” 14 Geo. J. Legal Ethics at 1082-1084. , | [
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STARCHER, J.:
The Circuit Court of Cabell County presents three certified questions to this Court relating to the jurisdiction of a family court to establish a parent’s support obligation for a child, when the child is also the subject of an abuse or neglect proceeding in the circuit court. We are asked to decide whether in such eases the authority to impose a child support obligation lies in the circuit court or in the family court.
As set forth below, we find that jurisdiction to establish a child support obligation lies solely with the circuit court that is adjudicating, or has adjudicated, the custody and decision-making responsibility for the child as a result of an abuse or neglect petition.
I.
Facts & Background
The three certified questions in this case concern the child support obligation of a parent, whose children have been placed into the custody of the Department of Health and Human Resources as a result of an abuse or neglect proceeding filed in a circuit court, all pursuant to Chapter 49 of the West Virginia Code. The questions essentially ask us to resolve a single, jurisdictional question: between a circuit court and a family court, which court should calculate and enforce the parent’s child support obligation?
On June 30, 2003, the Department of Health and Human Resources (“the Department”) filed a petition in the Circuit Court of Cabell County alleging that the four children of Kimberly Smith had been abused or neglected. Pursuant to a circuit court order, the children were temporarily removed from Ms. Smith’s custody and placed into foster care. After several hearings, the circuit court concluded in an order dated June 7, 2004 that clear and convincing evidence of abuse and neglect had been presented and terminated Ms. Smith’s parental rights to the children. The Department was granted permanent physical and legal custody of the children, and they were subsequently placed with foster families.
While the children were in temporary foster care pursuant to the circuit court’s order, on February 11, 2004, the Department initiated a separate civil action by filing a new petition in the Family Court of Cabell County seeking to establish a child support obligation for Ms. Smith. The Department alleged in the petition for child support that it was “currently paying expenses for the minor children” and that Ms. Smith “owes a duty of support to the children which she is not meeting.” The Department therefore requested that the family court enter an order requiring Ms. Smith “to pay such sum or sums of money sufficient for the support and maintenance of the minor children, in accordance with the child support formula, while the children are in foster care[.]”
The family court, however, refused to exercise jurisdiction over the Department’s petition for child support. In an order dated June 11, 2004, the family court stated:
The Family Court does not have jurisdiction in the present case.... Jurisdiction for establishing the support obligation lies exclusively with the [Circuit] Court that Ordered the placement of the children).
The family court’s order dismissed the Department’s petition for child support.
The Department appealed the family court’s dismissal order to the circuit court. The Department argued to the circuit court that, as a general proposition, it was experiencing difficulty establishing child support obligations in abuse and neglect cases because family courts and circuit courts were in disagreement concerning which court could or should establish the support obligation. As the Department stated:
[T]he Family Court dismissed the action holding that the Family Court lacks jurisdiction to establish child support and that jurisdiction lies wholly with the Circuit Court which removed the child from the custody of the parent....
The [Department] has previously appealed the same ruling of the Family Court [of Cabell County] regarding jurisdiction in eleven (11) other cases. In each of the appeals assigned to the Honorable Alfred E. Ferguson, the order of dismissal by the Family Court was affirmed ... The ap peals assigned to the Honorable Dan O’Hanlon were remanded to the Family Court for entry of a support order_ ... [The Department] is experiencing difficulty establishing the federally-mandated child support' obligation in Chapter 49 [abuse and neglect] cases as the split of decision regarding jurisdiction is typical across the State.
The Department therefore asked the circuit court to certify questions to this Court to clarify the procedure that the Department, family courts and circuit courts should pursue to establish a parent’s child support obligation when an abuse or neglect petition has been fíléd.
In an order dated December 15, 2004, the circuit court certified the following questions to this Court:
Certified Question One:
Does the Family Court have jurisdiction to establish child support if the same child is also the subject of a pending proceeding or order under Chapter 49 of the West Virginia Code, when no order of the Circuit Court addresses child support?
Answer of the Circuit Court: Yes.
Certified Question Two:
May the Circuit Court transfer jurisdiction to the Family Court to calculate child support in a proceeding under Chapter 49 of the West Virginia Code by administrative order en masse?
Answer of the Circuit Court: No.
Certified Question Three:
May the Circuit Court transfer jurisdiction to the Family Court to calculate child support in a proceeding under Chapter 49 of the West Virginia Code by administrative order on a case by case basis?
Answer of the Circuit Court: No.
II.
Standard of Review
“The appellate standard of review of questions of law answered and certified by a cireuit court is de novo.” Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).
III.
Discussion
It is well established that this Court has the authority to reformulate certified questions.
When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W.Va.Code, 51-1A-1, et seq. and W.Va.Code, 58-5-2 [1967], the statute relating to certified questions from a circuit court of this State to this Court.
Syllabus Point 3, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993).
After considering the record and the briefs and arguments of the Department, we believe that the circuit court’s three certified questions should be reformulated and distilled down into this single question:
If a child is either the subject of an abuse or neglect proceeding in a circuit court, or the subject of a circuit court order affecting the custodial or decision-making responsibility for the child pursuant to Chapter 49 of the West Virginia Code, does the circuit court have exclusive jurisdiction to establish a child support obligation for that child?
As we discuss below, we believe that the answer to this question is “Yes.”
We begin our analysis of this question by looldng to the historical purpose behind the creation of the family court system, and its relationship to the circuit courts.
In October 1997 this Court entered an order that established the “Commission on the Future of the West Virginia Judicial System.” The Commission was charged with examining the State court system and proposing “structural, organizational, and procedural changes that will ensure a just, effective, responsive, and efficient court system into the next century.” One of the many areas examined by the Commission was the inefficient, piecemeal approach taken by the then-existing court system in addressing legal issues concerning parents and children.
After extensive public hearings and deliberations, the Commission determined — as the law stood in 1998 — that families entering the court system faced a “fragmented and dupli-cative” system:
[A] family in crisis could encounter five different decision makers in the course of attempting to resolve its problems: a magistrate, to hold healings on a domestic violence petition; a family law master, to hear evidence on a divorce; a circuit judge, to conduct an abuse and neglect proceeding; a different circuit judge to conduct a delinquency proceeding regarding the behavior of one of the children; and a panel of county commissioners to conduct a proceeding regarding the contested legal guardianship of a minor.
Report of the Commission on the Future of the West Virginia Judicial System at 34 [1998]. The Commission recognized that judicial decision makers, acting without coordination, were likely to issue inefficient and/or conflicting orders:
[W]hen there is no coordination between different segments of the court system, it is possible that a judge hearing an abuse and neglect case may not be aware of a pending divorce, a disputed non-testamentary legal guardianship, a juvenile delinquency proceeding, and/or a recent domestic violence petition. This lack of integration and consolidation does not serve the best interest of the families, interferes with the ability of the system to provide a quality resolution, and does not make efficient use of judicial resources.
Id.
To resolve this problem, in December 1998 the Commission proposed that the Legislature establish a “unified family court.” The Commission, relying upon studies by the American Bar Association and upon an examination of family court systems devised by twenty-five other states, proposed a “one judge, one family” system. Under this system, one judicial officer would be empowered to make decisions concerning families, parents and children. The unified family court system crafted by the Commission contemplated that one, specially-trained judge would have “comprehensive jurisdiction of all family law cases, including juvenile matters,” and that all cases pertaining to one family— such as divorce, domestic violence, paternity, or abuse and neglect — would be assigned to that judge. Id. at 34-37, 432 S.E.2d 74.
The Legislature responded to the Commission’s recommendations by creating the current family court system. The Legislature did not, however, wholly adopt the recommended “one judge, one family” concept and did not establish the family court system as a “unified court” with the powers necessary for resolution of all family law matters. Instead, the system adopted by the Legislature makes clear that “[a] family court is a court of limited jurisdiction.” W.Va.Code, 51-2A-2(d) [2004]. We interpreted this language in State ex rel. Silver v. Wilkes, 213 W.Va. 692, 584 S.E.2d 548 (2003) to mean that the Legislature established the family courts as courts of limited jurisdiction that are “inferi- or” to the circuit courts.
The Legislature did consolidate jurisdiction over many family law issues into the original jurisdiction of the family courts. Following the recommendations of the Commission, family courts now have jurisdiction over divorces — including the power to dissolve a marriage, equitably distribute marital property, and determine child and spousal support obligations — and have contempt power to enforce any family court decrees. Family courts also have jurisdiction over actions seeking child support, when the parents have never married; over actions to establish paternity; over civil domestic violence cases seeking a protective order; and over infant guardianship cases.
But not all areas of family law were placed before the family courts. One significant area of family law discussed by the Commission remains within the sole jurisdiction of the circuit courts: child abuse or neglect proceedings under Chapter 49 of the West Virginia Code.
In the instant case we are asked to determine whether, and to what extent (if any), family courts may exercise jurisdiction over a parent’s child support obligation, when the child is subject to an abuse or neglect proceeding in the circuit court. To answer this question we must examine the various legislative enactments delineating the jurisdiction of the family and circuit courts in the context of abuse or neglect cases.
W.Va.Code, 49-6-1 [2005] clearly states that an abuse or neglect petition may only be filed in “the circuit court in the county in which the child resides[.]” Likewise, the statute setting forth the jurisdiction of the family courts, W.Va.Code, 51-2A-2(e) [2004], states that when an abuse or neglect petition is filed in a circuit court, and “an action for divorce, annulment or separate maintenance” is at the same time pending in a family court, the family court must defer to the circuit court. As the statute states, any orders of the circuit court “shall supercede and take precedence over an order of the family court respecting the allocation of custodial and decision-making responsibility for the child between the parents.”
The instant ease arises, however, because of what the family court jurisdiction statute regarding abuse or neglect jurisdiction does not say. W.Va.Code, 51-2A-2(c) places limitations upon the family court’s “allocation of custodial and decision-making responsibility;” it says nothing of the family court’s power to create and enforce a child support obligation. Concerning that power, W.Va.Code, 51-2A-2(a)(2) and (10) state:
The family court shall exercise jurisdiction over the following matters: ...
(2) All actions to obtain orders of child support ...; ...
(10) All actions brought, including civil contempt proceedings, to enforce an order of spousal or child support....
Relying upon these two subsections, the Department argues that family courts retain jurisdiction, to determine a parent’s support obligation for a child who is subject to an abuse or neglect petition. The Department asserts that it may therefore turn to the family courts to obtain an order for the support of a minor child whenever a parent is obligated to support the child and is failing to do so — even when a circuit court has placed that child in the custody of the Department as a result of the filing of an abuse or neglect petition.
After carefully examining the statutory scheme concerning the establishment of child support obligations in abuse or neglect cases, we reject the Department’s interpretation of W.Va.Code, 51-2A-2. We believe that when an abuse or neglect petition has been filed, the family courts are divested of jurisdiction to establish a support obligation for the child and that the duty to establish a support obligation lies solely with the circuit court.
The circuit court’s duty to impose a child support obligation upon hearing an abuse or neglect petition is found in W.Va.Code, 49-7-5 [1936]. That statute states, in part:
If it appears upon the hearing of a petition under this chapter that a person legally liable for the support of the child is able to contribute to the support of such child, the court or judge shall order the person to pay the state department, institution, organization, or private person to whom the child was committed, a reasonable sum from time to time for the support, maintenance, and education of the child.
This statute — adopted in 1936 — indicates that a circuit court “shall” require a parent to pay support for a child to the Department if the parent “is able to contribute to the support of such child.” The determination of whether and how much a parent can contribute to the support of a child is not, however, a visceral, unfettered decision for the circuit court; rather, the existence and amount of a child support obligation under W.Va.Code, 49-7-5 must now be computed in light of recent statutes which pertain to the calculation of a support obligation. See Syllabus Point 12, Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953) (“The Legislature, when it enacts legislation, is presumed to know of its prior enactments.”); Syllabus Point 5, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908) (“A statute should be so read and applied as to make it accord with the spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject-matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith.”).
The current statutory scheme regarding child support obligations requires judges— family court or circuit court — to use the Guidelines for Child Support Awards found in Article 13 of Chapter 48 to calculate the existence and amount of a parent’s child support obligation. The Guidelines for Child Suppoyi Awards are not limited to being applied only by family courts, but are to be used by any court that is assessing any child support obligation. Specifically, W.Va.Code, 48-13-701 [2001] states that “[t]he guidelines in child support awards apply as a rebuttable presumption to all child support orders established or modified in West Virginia.” (Emphasis added.) The statute mandates that the Guidelines “be applied to all actions in which child support is being determined including ... foster care, ... public assistance, nonpublic assistance and support decrees arising despite nonmamage of the parties.”
The Guidelines for Child Support Awards were designed by the Legislature to ensure uniformity in child support awards, and to increase predictability for parents, children, and “other persons who are directly affected by child support orders” — which we interpret to include the Department of Health and Human Resources in the context of an abuse and neglect petition. It is therefore presumed that any order entered by a court in accordance with the Guidelines “is the correct amount of child support to be awarded.” W.Va.Code, 48-13-101 [2001]. The Guidelines may, however, be disregarded or adjusted to “accommodate the needs of the child or children or the circumstances of the parent or parents” only if the court makes specific findings that the use of the Guidelines is ■ inappropriate. W.Va.Code, 48-13-702 [2001].
Furthermore, “to ensure greater uniformity” and “to increase predictability” as contemplated by the Legislature in enacting the Guidelines, orders concerning child support obligations must be entered promptly. When support orders are not entered at the same time that the circuit court alters the allocation of custodial and decision-making responsibility for the child, the child’s parents and the Department are deprived of'the ability to order their affairs. If the circuit court gives custody of the child to one parent or another responsible person in the abuse or neglect action, then in the absence of a support obligation upon the non-custodial parent, the custodial parent or responsible person must fall back on the resources of the Department. If the court places the child into the sole custody of the Department, in the absence of a support obligation, taxpayers must unfairly foot the entire bill. In either case, when a court delays the calculation of a support obligation, the parents may be unfairly surprised to be forced to pay past support, education or medical expenses paid by the Department, in addition to making current, monthly support payments.
The record in this ease prompts us to raise one additional issue of concern regarding the prompt resolution of child abuse or neglect actions. In 2004, the Court — through the assistance of the Court Improvement Oversight Board — issued the Jttdicial Benchbook for Child Abuse and Neglect Proceedings and issued a series of computerized forms called the Jitvenile Abuse and Neglect Information System. The Benchbook contains a summary of the statutes, rules, caselaw and pro cedures in abuse and neglect cases, as well as checklists to ensure a thorough review of each case. Tied into the Benchbook is the Juvenile Abuse and Neglect Information System — better known by its initials “JANIS” — which is a computerized tool for judges and other practitioners to use to expedite the handling of child abuse and neglect cases. The JANIS system improves the speed and quality of judges’ and attorneys’ work product by automating the creation of case orders and motions. It is our understanding that many practitioners and judges are unaware of these two resources. We would suggest, in the future, that judges, attorneys, and the Department (and thereby children and their parents) would substantially benefit from the use of these resources in the adjudication of abuse and neglect cases.
We therefore hold that when a child is the subject of an abuse or neglect or other proceeding in a circuit court pursuant to Chapter 49 of the West Virginia Code, the circuit court, and not the family court, has jurisdiction to establish a child support obligation for that child.
When a circuit judge enters an order on an abuse or neglect petition filed pursuant to Chapter 49 of the West Virginia Code, and in so doing alters the custodial and decision-making responsibility for the child and/or commits the child to the custody of the Department of Health and Human Resources, W.Va.Code, 49-7-5 [1936] requires the circuit judge to impose a support obligation upon one or both parents for the support, maintenance and education of the child. The entry of an order establishing a support obligation is mandatory; it is not optional.
Finally, any order establishing a child support obligation in an abuse or neglect action filed pursuant to Chapter 49 of the West Virginia Code must use the Guidelines far Child Support Awards found in W.Va. Code, 48-13-101, et seq.
IV.
Conclusion
The question before the Court is this:
If a child is either the subject of an abuse or neglect proceeding in a circuit court, or the subject of a circuit court order affecting the custodial or decision-making responsibility for the child pursuant to Chapter 49 of the West Virginia Code, does the circuit court have exclusive jurisdiction to establish a child support obligation for that child?
We answer the certified question “Yes.”
Certified Question Answered.
. This Court recently received a Report on the Overlap of Child Abuse and Neglect Cases in Family and Circuit Courts from the West Virginia Court Improvement Oversight Board. The report identifies four problematic areas of overlap between circuit courts and family courts in the context of abuse and neglect actions, and suggests solutions for the Court, the Legislature, the Executive and other individuals to pursue, so as to more efficiently address the needs of abused and neglected children. One of those four areas is, coincidentally, encompassed by the questions certified in the instant case.
. The Commission recommended that
... Unified Family Court judges gain office in the same manner, and have the same status, pay, and benefits as circuit judges....
Other states with Unified Family Courts have determined that equal stature for Unified Family Court Judges and adequate additional support personnel are absolutely essential to the success of this plan.
Repon of the Commission on the Future of the West Virginia Judicial System at 35.
. As we stated in Syllabus Point 4 of State ex rel. Silver v. Wilkes:
Pursuant to Article VIII, Sections 6 and 16 of the West Virginia Constitution, W.Va.Code § 51-2-2 (1978), and the Family Court statutes, W.Va.Code §§ 51-2A-1 to 23 (2001), family courts are courts of limited jurisdiction and are inferior to circuit courts. Family courts are, therefore, subject to both the appellate jurisdiction and the original jurisdiction of the circuit courts in this State.
. W.Va.Code, 51 — 2A—2(a)(1) [2004] states:
The family court shall exercise jurisdiction over ... All actions for divorce, annulment or separate maintenance brought under the provisions of article three, four or five, chapter forty-eight of this code[J
W.Va.Code, 51-2A-2(a)(8) and (9) permit a family court judge to enter temporary orders in such proceedings, and to later modify any orders entered.
. See W.Va.Code, 51-2A-2(a)(10) [2004], giving family courts authority "to enforce an order of spousal or child support or to enforce an order for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child,” including through civil contempt proceedings. See also, W.Va.Code, 51-2A-9 [2001] (setting forth the contempt powers of a family court judge).
. See W.Va.Code, 51-2A-2(a)(2) [2004],
. See W.Va.Code, 51-2A-2(a)(3) [2004],
. W.Va.Code, 51 — 2A—2(a)(12) [2004] gives family courts jurisdiction over “[a]ll final hearings in domestic violence proceedings[.]”
. W.Va.Code, 51-2A-2(a)(17) [2004] gives family courts jurisdiction over “[a]ll proceedings relating to the appointment of guardians or curators of minor children ... exercising concurrent jurisdiction with the circuit court.”
. W.Va.Code, 51-2A-2(c) [2004] states:
If an action for divorce, annulment or separate maintenance is pending and a petition is filed pursuant to the provisions of article six, chapter forty-nine of this code alleging abuse or neglect of a child by either of the parties to the divorce, annulment or separate maintenance action, the orders of the circuit court in which the abuse or neglect petition is filed shall supercede and take precedence over an order of the family court respecting the allocation of custodial and decision-making responsibility for the child between the parents. If no order for the allocation of custodial and decision-making responsibility for the child between the parents has been entered by the family court in the pending action for divorce, annulment or separate maintenance, the family court shall stay any further proceedings concerning the allocation of custodial and decision-making responsibility for the child between the parents and defer to the orders of the circuit court in the abuse or neglect proceedings.
We note that this provision regarding the jurisdiction of the family court appears to apply only when a "divorce, annulment or separate maintenance” action has been filed between the parents of a child who is the subject of a later abuse or neglect petition. The statute is silent regarding the course of action to be taken when any other type of action — such as a paternity action or an action to establish child support between unmarried individuals — is filed between the parents of the child.
. The Department also cites to W.Va.Code, 48-14-101 [2001] as its authority to initiate a separate action in family court to establish a child support obligation when an abuse or neglect petition regarding the child is pending in circuit court. The statute states:
An action may be brought in family court to obtain an order for the support of a minor child when:
(1)The child has a parent and child relationship with an obligor;
(2) The obligor is not meeting an obligation to support the child;
(3) An enforceable order for the support of the child by the obligor has not been entered by a court of competent jurisdiction; and
(4) There is no pending action for divorce, separate maintenance or annulment in which the obligation of support owing from the obli-gor to the child is at issue.
. W.Va.Code, 48-13-701 [2001] states:
The guidelines in child support awards apply as a rebuttable presumption to all child support orders established or modified in West Virginia. The guidelines must be applied to all actions in which child support is being determined including temporary orders, interstate (URESA and UIFSA), domestic violence, foster care, divorce, nondissolution, public assistance, nonpublic assistance and support decrees arising despite nonmarriage of the parties. The guidelines must be used by the court as the basis for reviewing adequacy of child support levels in uncontested cases as well as contested hearings.
. W.Va.Code, 48-13-101 [2001] states:
This article establishes guidelines for child support award amounts so as to ensure greater uniformity by those persons who make child support recommendations and enter child support orders and to increase predictability for parents, children and other persons who are directly affected by child support orders. There is a rebuttable presumption, in any proceeding before a court for the award of child support, that the amount of the award which would result from the application of these guidelines is the correct amount of child support to be awarded.
.Both the Benchbook and JANIS are available on the Supreme Court of Appeals’ internet website, www.state.wv.us/wvsca. The Benchbook may be downloaded or reviewed at www.state.wv.us/wvsca/benchbookJ)4/cover.htm, while the JANIS system may downloaded or accessed at www.wvjanis.com. | [
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BENJAMIN, Justice:
Appellants have appealed the September 14, 2004 Order of the Circuit Court of Hancock County which affirmed, in part, and reversed, in part, the December 13, 2002 decision of the State Fire Commission to withdraw recognition of Appellants as fire departments having the powers granted in Article 3A, Chapter 29 of the West Virginia Code. Appellants argue that the circuit court erred in affirming the action of the State Fire Commission because the State Fire Commission lacked authority to withdraw such recognition. As set forth more fully below, we agree and reverse both the September 14, 2004 Order of the Circuit Court of Hancock County and the December 13, 2002 decision of the State Fire Commission.
I.
FACTS AND PROCEDURAL HISTORY
Appellants Weirton Heights Volunteer Fire Department and Weirton Volunteer Fire Department Company No. 1, Inc. are volunteer fire departments incorporated in 1942 and 1930, respectively. Their primary zones for fire fighting were in the City of Weirton, although they also fought fires outside the Weirton city limits in both Brooke and Hancock Counties. On May 13, 2002, Weirton City Council passed a resolution to re-organize fire service in the city and create a single combination fire department, consisting of both paid and volunteer fire fighters, Appellants were given the option of joining the combined department, but refused.
Thereafter, Appellants filed a declaratory judgment action in the Circuit Court of Hancock County to determine the validity of the May 13, 2002 resolution,- among other issues. By Order dated September 9, 2002, the circuit court, relying upon this Court’s decision in Mabscott Volunteer Fire Dept., Inc. v. Houck, 184 W.Va. 37, 399 S.E.2d 180 (1990), ruled that the City of Weirton has plenary authority over fire fighting activities in its city limits, including the determination of how fire protection services will be provided. Thus, the resolution was valid. However, the circuit court also ruled that because the volunteer fire departments had not been dissolved and there was no evidence that the statutory dissolution criteria had been met, the volunteer fire departments’ equipment was to remain with them “unless or until dissolved.” The circuit court, in the September 9, 2002 Order, permitted and encouraged the volunteer fire departments to continue their demonstrated practice of fighting fires outside of the City limits, noting their articles of incorporation did not limit their scope to fighting fires within the city limits. However, the volunteer departments were prohibited from responding to fires in the City of Weirton absent a request from the City to do so. The September 9, 2002 Order was not appealed to this Court.
After entry of the circuit court’s September 9, 2002 Order, the City, through former Mayor Dean Harris, sought to have the State Fire Commission withdraw Weirton Heights’ and Company No. l’s certification (or recognition). At the State Fire Com mission’s October 4, 2002 meeting, various persons, including Mayor Harris, Appellant’s counsel, and representatives of the Appellants, among others, spoke regarding the propriety of withdrawing Appellants’ certification. Appellants’ counsel argued the State Fire Commission, although statutorily authorized and required to enact a method of certification, had failed to do so and, thus, had no authority or criteria by which to withdraw certification. After hearing the positions of the various speakers, the State Fire Marshall recommended that “recognition” be revoked due to the lack of a first response zone or “first run zone” and that the Appellants be required to return their emergency vehicle permits. He also noted that the volunteer fire departments would be required to apply for new fire department status in another area if they intended to continue responding to fires.
Upon hearing the State Fire Marshall’s recommendation, the Fire Commission gave Appellants until its December 13th meeting to complete all phases of relocation, including the establishment of a new first run zone and approval of the same by the State Fire Marshall. At the December 13th meeting, Appellants, together with the Hancock County Commission, presented proposed maps of a new first run zone which would potentially take portions of first response areas away from other volunteer departments operating in Hancock County. They asked for additional time to finalize the maps and work on mutual aid agreements with the other volunteer departments in the county. This request was refused. Ultimately, the Commission voted to withdraw recognition of Weirton Heights and Company No. 1 and require return of their emergency vehicle permits. By letters dated December 13, 2002, the State Fire Commission informed each of the Appellants that the Commission had “withdrawn [its] recognition of [their] organization as a fire department for operational purposes within the State of West Virginia effective 12 noon, December 13, 2002.” The letters also required immediate return of all emergency vehicle permits in Appellants’ possession.
Appellants appealed the State Fire Commission’s decision to the Circuit Court of Hancock County. The circuit court noted the lack of an administrative record as would normally appear in an administrative appeal of a contested ease. Appellants argued the State Fire Commission did not have statutory or regulatory authority to withdraw their certification. Moreover, even if such authority existed, the absence of regulatory rules governing certification or the withdrawal thereof precluded the State Fire Commission’s actions. Additionally, Appellants ar- guecl that withdrawal of their certification and confiscation of their emergency vehicle permits crippled their ability to act and that the Fire Commission improperly shifted its obligation to establish run zones to them.
In response, the State Fire Commission argued that its authority to withdraw certification is implicit in its enabling statute. Additionally, the State Fire Commission represented that the withdrawal of certification only affected Appellants’ authority under W. Va.Code § 29-3A et seq. and that they could still respond to calls when requested by another fire department for back up.
Ultimately, after hearings on January 13, 2004, and June 11, 2004, the circuit court entered an Order on September 14, 2004 finding “under the circumstances of this case, the Fire Commission has the authority to withdraw recognition of fire departments for the purposes of controlling the exercise of the powers and authority provided under Article 3A, Chapter 29 of the West Virginia Code, §§ 29-3A-1 et seq.” where there is no fixed area in which to exercise those powers. The circuit court determined that the State Fire Commission’s authority to withdraw certification where there is no fixed run zone was implicit in the statute “within the provisions of Article 3A, Chapter 29, [because] the powers provided therein can only be exercised by one, local authority within a territorial jurisdiction.” Therefore, the circuit court affirmed the State Fire Commission’s withdrawal of Appellants’ certification, but limited the withdrawal to the ability to exercise the powers set forth in Article 3A, Chapter 29. The circuit court specifically recognized Appellants’ ability to respond to fires when requested by other departments. Additionally, the circuit court reversed the State Fire Commission’s revocation and voiding of the Appellants’ emergency vehicle permits finding the same to be arbitrary and capricious as it crippled Appellants’ ability to respond upon request.
Appellants timely appealed the circuit court’s September 14, 2004 to this Court. We granted Appellants’ petition by Order dated June 7, 2005. On appeal, Appellants reiterate their prior assignments of error regarding the State Fire Commission’s December 13, 2002 decision and assert that they are still unable to act, despite the circuit court’s September 14, 2004 partial reversal of the State Fire Commission’s decision due to liability concerns. The State Fire Commission likewise reiterates its arguments presented to the circuit court and maintains the circuit court erred by not affirming its December 13, 2002 actions. After review of the limited record below and the arguments of the parties, we reverse both the State Fire Commission’s December 13, 2002 actions and the circuit court’s September 14, 2004 Order affirming, in part, and reversing, in part, the same.
II.
STANDARD OF REVIEW
Judicial review of an action undertaken by the State Fire Commission is gov erned by the Administrative Procedures Act, W. Va.Code §§ 29A-1-1 et seq .. W. Va. Code § 29-3-18(c) (1976). Upon review, “this Court is bound by the statutory standards contained in W. Va.Code § 29A-5-4[] and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong.” Syl. Pt. 1, in part, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). W. Va.Code § 29A-5-4(g) (1998) provides:
the court may affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions, or order are:
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
See also, Syl. Pt. 2, Shepherdstown Volunteer Fire Department v. State ex rel. State of West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983). Where the circuit court has amended an administrative agency’s decision on appeal, we review the circuit court’s order and ultimate decision of the administrative appeal under an abuse of discretion standard, while continuing to review questions of law de novo. Syl. Pt. 2, Muscatell.
III.
DISCUSSION
Appellants’ primary objection to the State Fire Commission’s actions is that in the absence of established criteria for granting or withdrawing certification, the State Fire Commission did not have the authority to withdraw Appellant’s certification. Similarly, Appellants maintain that the circuit court erred in affirming, in part, the State Fire Commission’s withdrawal of certification. We agree.
For at least the past 60 years, Appellants have operated as volunteer fire departments in Brooke and Hancock Counties, including within Weirton city limits. Appellants were in existence well before the State Fire Commission was established in 1976 in an effort to improve fire protection and control throughout the State of West Virginia, and continued to operate until the State Fire Commission’s December 13, 2002 decision. See, W. Va.Code §§ 29-3-2, -3 (1976). Prior to 2002, there does not appear to have been a question regarding Appellants’ certification. Although the State Fire Commission was legislatively charged with creation of a method of certification applicable to “all” fire departments, it had not done so through the administrative process prior to December 13, 2002. Yet, the State Fire Commission revoked Appellants’ certification without published and approved guidelines to determine whether the withdrawal of certification was appropriate.
A fundamental tenet of our system of justice is that where a governmental agency, such as the State Fire Commission, seeks to take away a privilege previously granted to a citizen, such as the privilege to fight fires, notice must be provided of the criteria which will guide the agency’s determination. In the instant matter, the State Fire Commission had no express criteria for either granting or withdrawing certification of a previously recognized and operating fire department. The State Fire Commission’s actions in this matter in withdrawing Appellants’ certification without providing Appellant’s advance notice of the criteria which would guide its certification determination must therefore be deemed arbitrary, capricious and an abuse of discretion. Accordingly, we hold that the State Fire Commission’s withdrawal of certification (or recognition) of an existing volunteer fire department in the absence of duly promulgated rules or regulations setting forth the criteria used to guide the certification determination is deemed to be arbitrary, capricious and an abuse of discretion.
IV.
CONCLUSION
The State Fire Commission may not withdraw certification (or recognition) of an existing volunteer fire department in the absence of published rules or regulations setting forth the criteria governing its determination. Therefore, the State Fire Commission’s December 13, 2002 decision withdrawing certification (or recognition) of Weirton Heights Volunteer Fire Department and Weirton Volunteer Fire Department Company No. 1 and requiring return of their emergency vehicle permits is reversed. Likewise, the Circuit Court of Hancock County’s September 14, 2004 Order affirming, in part, and reversing, in part, the State Fire Commission’s December 13, 2002 Orders is reversed.
REVERSED
Justice DAVIS concurs and reserves the right to file a concurring opinion.
. Our decision in Mabscott Volunteer Fire Department, relied significantly upon W. Va.Code § 8-15-1 (1969), which provides, in pertinent part:
“The governing body of every municipality shall have plenary power and authority for the prevention and extinguishment of fires, and, for this purpose, it may, among other things ... provide for the organization, equipment and government of volunteer fire companies or of a paid fire department[.]“
. W. Va.Code § 8-15-6 (1971) governs the dissolution of volunteer fire departments and provides:
Whenever the governing body shall ascertain that such company has failed, for three months successively, to consist of twenty effective members, or shall ascertain that it has failed for a like period of time to have and keep in good, serviceable condition an engine, hose or other proper equipment, such governing body shall declare such failure and by order dissolve the company.
.The terms certification and recognition have been used interchangeably by the parties throughout the relevant proceedings. Although, the relevant statutes refer to certification, see note 4, infra, both the Slate Fire Marshall and the State Fire Commission used the term "recognition'' in their respective recommendation and decision.
. W. Va.Code § 29-3-9(e) (2003) gives the State Fire Commission the power, duty and authority to concur in the formation of any new fire department, including volunteer fire departments. This statutory provision also provides "the state fire commission shall develop a method of certification which can be applied to all fire departments and volunteer fire departments.” W. Va. Code § 29-3-9(e) (2003). Although this statute was amended in 2003 to add subsection (i), subsection (e) was unchanged from the language in effect in 2002.
. A "first run zone” is an area in which a particular fire department is deemed to be the first responder, primarily responsible for the extin-guishment of fires within the zone.
. The Hancock County Commission had forwarded the proposed maps to the State Fire Marshall by letter dated December 6, 2002. The letter informed the State Fire Marshall of the Hancock County Commission's efforts to re-district fire service in Hancock County and requested Appellants' recognition be extended for one year pending finalization of the re-districting efforts.
. No evidentiary record was created before the State Fire Commission. Pursuant to W. Va.Code § 29-3-18(c) (1976), a "party aggrieved by a final decision of the [S]tate [F]ire [C]ommission is entitled to judicial review as provided in the Administrative Procedures Act,” W. Va.Code §§ 29A-1-1 et seq.
. It is undisputed that, despite the mandates of W. Va.Code § 29-3-9(e) (2003), the State Fire Commission had not, prior to December 31, 2002, developed and enacted a method of certification which would provide fire departments notice for the criteria for certification or, arguably, the withdrawal thereof. It appears that such criteria have subsequently been developed and are in the process of regulatory approval. At the time of the State Fire Commission's withdrawal of Appellants' recognition, it had on its website a list of thirteen (13) guidelines for certification, none of which involved “first run zones.”
. W. Va.Code § 29 — 3—9(f) (2003), provides, in pertinent part, "[t]he state fire commission shall develop a plan for fire prevention and control which shall include, but not be limited to, the following areas: Manpower needs; ... location of fire prevention and control units; ...; firefighting facilities; ...; location of public safety agencies; ... [.]” Likewise, W. Va.Code § 29-3-9(g) (2003) provides, in pertinent part, "[t]he state fire commission shall establish fire protection areas [.]”
. This statute, entitled "Authority of Local Fire Departments” gives fire departments their authority to control a fire scene, including entering and evacuating buildings, blocking public roads, and otherwise respond to emergency situations.
.The circuit court orally announced its rulings at the January 13, 2004 hearing. A dispute arose between Appellants and the State Fire Commission over the wording of the written order, resulting in motions for clarification before the circuit court. Prior to the June 11, 2004 hearing, the City of Weirton submitted an amicus brief to the circuit court requesting that the State Fire Commission’s decision be reversed as the City now sought the assistance of the Appellants in fighting fires within city limits. At the June 11, 2004 hearing, the circuit court recognized the City's interest in this matter, and reiterated its January 13, 2004 ruling. The September 14, 2004 Order is the memorialization of the circuit court’s oral rulings.
. Appellee agrees that Appellants were, in essence, grandfathered in and were not required to apply for certification as a “new” fire department upon its creation.
. Since its December 13, 2002 decision herein, the State Fire Commission has proposed rules governing the certification of fire departments, including criteria for the grant, renewal and withdrawal of certification. The proposed rules are currently involved in the administrative rule approval process.
. The State Fire Commission was required to create a method of certification pursuant to W. Va.Code § 29-3-9(e). Where such statutory authorization and mandate exists, an expectation is created for persons seeking to establish or retain such certification that the criteria applicable to certification will be made known before action adverse to their interests is taken by the administrative agency. Thus, the administrative agency must go through the statutorily mandated rule-making process and make known the applicable criteria before taking action adverse to a previously certified entity. | [
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PER CURIAM:
This matter was brought pursuant to the original jurisdiction of this Court as a habeas corpus and prohibition proceeding. The relator, Steven Michael M. (hereinafter referred to as “Steven M.”), seeks a writ of habeas corpus against the West Virginia Department of Health and Human Resources (DHHR) and New Hope Treatment Center (NHTC) on the ground that he is being illegally detained. Additionally, Steven M. filed a writ of prohibition against the Honorable Rodney B. Merrifield challenging prior juvenile proceedings. Upon a review of the parties’ arguments, the record and the pertinent authorities, the writ of habeas corpus issue is dismissed as improvidently granted and we deny the writ of prohibition.
I.
FACTUAL BACKGROUND
A delinquency petition was filed against Steven M. by his mother on July 18, 1996. The petition charged Steven M. with truancy, false pretenses, and possession of obscene materials. On July 24, 1996, a hearing was held. The court was presented with a plea agreement between the state and Steven M. Counsel for Steven M. made the following statements regarding the plea agreement:
My understanding of the plea agreement is that my client would enter an admission to Count II of the petition. The State would dismiss Counts I and III. Based upon some information that I have from my client and his mother and that I’ve related to the Prosecutor, I understand that the State would not object to a request on behalf of my client that he be placed at a facility such as, which is at the discretion of the Court, either New Hope or Kids Peace or something of that nature because of his problems. That’s the plea agreement as I understand it, Your Honor.
The juvenile court accepted the plea agreement. Pursuant to a dispositional order entered on July 24, 1996, Steven M. was sentenced to one year at an appropriate group home. It appears that Steven M. was initially sent to NHTC, located in South Carolina, for a sixty-day evaluation. At the end of the evaluation, Steven M. was returned to West Virginia and placed at Pressley Ridge’s White Oak School, a community-based residential treatment program. By dispositional order entered on February 27, 1997, Steven M. was released from Pressley Ridge White Oak School, placed on probation and returned to his mother.
On March 26, 1997, Steven M.’s mother filed a second juvenile petition against him. The second petition charged Steven M. with four counts of fraudulent use of a. telephone. A probation revocation hearing and a hearing on the new charges were held jointly on April 4, 1997. At the hearing, the court was presented with a plea agreement involving disposition of the probation revocation charge along with the new charges relating to the fraudulent use of a telephone. The parties agreed to a modification of the disposition of the 1996 case, and additionally agreed to a one year improvement period on the 1997 charges. The parties further agreed that Steven M. would be placed at NHTC to complete its program. The court accepted the plea agreement. Accordingly, the joint dispositional order sentenced Steven M. to one year at the Industrial Home for Youth, suspended his industrial home sentence and placed him on probation for two years on the condition that he complete the program at NHTC.
On June 30, 1998, Steven M. invoked the original jurisdiction of this Court seeking a writ of habeas corpus against DHHR and NHTC, challenging his confinement at NHTC. Steven M. further sought a writ of prohibition against Judge Merrifield. On July 1, 1998, this Court ordered Steven M. released from NHTC and returned to his mother.
II.
DISCUSSION
A. Habeas Corpus
Steven M. alleges that he was held unlawfully at NHTC for a period of nineteen months for the 1996 charge, when the actual crime carried a period of confinement of only one year. This Court has held that “if a sentence of [confinement] under which a person is confined is void, in whole or in part, it may be reached and controlled in a habeas corpus proceeding.” Syl. pt. 1, in part, State ex rel. Nicholson v. Boles, 148 W.Va. 229, 134 S.E.2d 576 (1964). We further held in syllabus point 2, in part, of State ex rel. Johnson v. Boles, 151 W.Va. 224, 151 S.E.2d 213 (1966), that “[a] petitioner in a habeas corpus .proceeding upon whom [confinement] for an invalid additional period has been improperly imposed ... may be relieved of the void portion of the [confinement] but will not be discharged from serving the maximum term provided by statute for the principal offense[.]” A careful review of the record reflects that this Court’s issuance of the habeas was improvidently granted. Judge Merri-field’s brief correctly indicates that Steven M. was confined for a total of sixteen months. The disposition of both cases did not exceed the maximum period available under the 1996 change and the 1997 improvement period. Steven M. was given a one year pre-adjudica-tory improvement period under the 1997 charges on the condition that he complete the program at NHTC. The record clearly reveals that the pre-adjudicatory improvement period on the 1997 charges was combined with the original sentence of one year confinement on the 1996 charge. Combining these two periods equates to twenty-four months at NHTC. It is clear to this Court that the parties contemplated dismissing the 1997 charges upon completion of the program at NHTC. Given that Steven M. has only served sixteen months of the twenty-four months, the circuit court still has jurisdiction over Steven M. with regard to the 1997 charges, as he has completed the one year sentence involving the 1996 charge. Thus, the Court still has authority to place the juvenile in a treatment facility for the remainder of the available period.
B. Prohibition
The habeas portion of the petition succinctly outlines the basis and nature of the relief sought. The petition for a writ of prohibition, however, fails to state what exactly Steven M. is seeking to prohibit the lower court from doing. “A writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction exceeds its legitimate powers.” Syl. pt. 1, State ex rel. UMWA Intern. Union v. Maynard, 176 W.Va. 131, 342 S.E.2d 96 (1985). The petition outlines numerous allegations challenging the nature of the pri- or juvenile proceedings against Steven M. However, these allegations are not properly presented and developed for a prohibition proceeding. For example, it is alleged that Steven M.’s prior counsel in the two juvenile cases did not have adequate preparation time and that the juvenile court did not properly consider placement options. Judge Merrifield has responded to these allegations to some extent. However, as suggested by Judge Merrifield, the record on these issues is not properly before this Court for a definitive resolution. The allegations present appellate issues that require a more adequate record than that provided in this original jurisdiction proceeding. We held in syllabus point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996),
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Insofar as Steven M. has not presented an issue that comes within the narrow parameters of a writ of prohibition, we must deny the request. To the extent that Steven M. believes his prior counsel did not have adequate trial preparation time or that proper placement options were not considered by the court, these issues should have been presented as an appeal.
III.
CONCLUSION
In view of the foregoing, the writ of habeas corpus is dismissed as improvidently granted. Additionally, because of the appellate nature of the remaining issues raised by Steven M., the writ of prohibition is denied.
Writ Denied.
Justice McGRAW did not participate in the decision of this case.
. DHHR filed a response.
. NHTC did not file a response.
. A response was filed by Judge Merrifield through the attorney general's office.
. The record indicates that Steven M. was then fifteen years old.
. Count II of the petition charged Steven M. with the offense of false pretenses under W.Va.Code § 61-3-24a. Under this charge, Steven M. admitted to accessing on-line computer services to download pornographic material, without the consent of his mother, which resulted in a bill of about $650. The offense was a misdemeanor if committed by an adult and carried a penalty of incarceration for up to one year.
. Legal custody of Steven M. was placed with DHHR.
. Steven M. was discharged from NHTC on November 26, 1996. He was admitted to Pressley Ridge White Oak School on or about December 2, 1996.
. Steven M. placed calls to pornographic hot lines, carrying the "1-900” dialing prefix, from his mother's phone using her credit card. The offenses were misdemeanors. Each charge, if committed by an adult, carried a penalty of up to one year incarceration.
. We are unable to decipher the meaning of the dispositional order, insofar as it could be interpreted as actually sentencing Steven M. on the four charges (without a finding of guilt) or resen-tencing Steven M. on the 1996 charge. However, by reading the transcript from the hearing of April 4, 1997, the record indicates that Steven M. was merely granted an improvement period on the 1997 charges. In fact, the transcript states:
THE COURT: Case of State in the matter of Stephen M. 96-J-177 and 97-JD-90, let the record reflect ...
At this point in time I believe there’s an agreed upon modification in 177. I believe there’s going to be a motion for an improvement period and the terms and conditions will be the same as modification in 177 and that is that the infant will be placed in the New Hope facility for successful completion of their program. Is that your understanding of the plea agreement, Mr. Curry?
MR. CURRY: Correct.
THE COURT: Young Man?
INFANT RESPONDENT: Yes.
THE COURT? Mom?
MS. M.: Yes.
THE COURT: State?
MS. DEMASI: Yes, Your Honor.
THE COURT: Probation?
MS. CAMPBELL: Yes. Your Honor.
THE COURT: Department?
MR. KINCAID: Yes, Your Honor.
THE COURT: Also let the record reflect that this is also being logged as a multiple disciplinary team meeting and should so be indicated.
. Judge Merrifield had scheduled a hearing on July 13, 1997. The hearing was continued as a result of this Court’s issuance of the writ of habeas corpus on July 1, 1997. Both the record and oral argument reflect that the multi-disci-plinary team was investigating a further placement to recommend to the Court. | [
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PER CURIAM:
This original proceeding arises from a first-party insurance action pending in the Circuit Court of Harrison County. Allstate Insurance Company, Allstate Indemnity Company, Larry G. Verbosky, and Jeffrey Lawrentz (hereinafter collectively “Allstate”) seek a writ of prohibition from this Court directing the circuit judge to refrain from enforcing two orders entered December 4, 1997. The orders in question denied Allstate’s motion to bifurcate, into separate trials, the bad faith and breach of contract claims of Geraldine B. Riley, d/b/a The Wholesale Auto Outlet (hereinafter “Wholesale Auto”), and required Allstate to respond to discovery requests relating to the bad faith claims. The issues presented are as follows: In a first-party action against an insurance carrier, where an insured asserts both an insurance contract claim and a “bad faith” claim for unfair settlement practices under W.Va.Code § 33-11-4(9) [1985], must the trial court (1) bifurcate the claims, (2) stay the trial of the bad faith claim, and (3) stay all discovery on the bad faith claim pending resolution of the contract claim? We answered each of these questions in the negative in Light v. Allstate Insurance Company, 203 W. Va. 27, 506 S.E.2d 64 (1998). Accordingly, pursuant to our holding in Light, the writ of prohibition is denied.
I.
FACTUAL BACKGROUND
On or about June 23, 1995, Matthew McKinney was involved in a motor vehicle accident while driving an automobile that he had purchased from Wholesale Auto. McKinney’s vehicle was insured by Allstate. Wholesale Auto had partially financed McKinney’s purchase of the car and was named as an additional insured in the insurance policy.
Following the accident, McKinney and Wholesale Auto’s employees contacted Allstate agent Larry Verbosky and made claims for the damage to McKinney’s vehicle, which was a total loss. Allstate advised them that the policy covering the vehicle had been terminated due to McKinney’s failure to furnish a copy of his driver’s license. Allstate denied coverage on that basis.
For nearly two years after the accident, Wholesale Auto tried to obtain compensation from Allstate for its loss. Allstate remained unwilling to pay the claim. Having failed to procure payment under the policy, Wholesale Auto filed a complaint against Allstate in the Circuit Court of Harrison County. In its complaint, Wholesale Auto alleges breach of the insurance contract and fraud (Counts I & III). Wholesale Auto also alleges that Allstate violated the Unfair Trade Practices Act, W. Va.Code § 33-11-4, and handled Wholesale Auto’s claim in bad faith under the common law and the Unfair Claim Settlement Practices Act, W. Va.Code § 33-11^4(9) (Count II).
On July 17, 1997, Wholesale Auto served a set of First Combined Discovery Requests on Allstate. Allstate answered the requests but objected to certain requests relating to the bad faith claims. Allstate then filed a Motion to Bifurcate and Stay, seeking bifurcation of the bad faith claims and a stay of discovery on the bad faith claims pending resolution of the contract claim. Wholesale Auto filed a written response to Allstate’s motion, as well as a Motion to Compel Discovery and Request for Sanctions.
A combined hearing on the parties’ motions was held on October 15, 1997. Subsequently, on December 4, 1997, the circuit judge entered a Memorandum, Opinion and Order, denying Allstate’s Motion to Bifurcate and Stay and permitting discovery on the bad faith claims to proceed. On the same date, the circuit judge also entered an Agreed Order, which stayed discovery with regard to the bad faith claims in order to allow for the disposition of a petition for writ of prohibition, should Allstate choose to file one. Allstate then instituted the present prohibition proceeding, seeking to have this Court prohibit enforcement of the circuit court’s December 4,1997 orders.
II.
STANDARD OF REVIEW
The appropriate standard of review upon a petition for writ of prohibition was recently recited by this Court in State ex rel. W.Va. Fire & Cas. v. Karl, 199 W.Va. 678, 487 S.E.2d 336 (W.Va.1997):
“ ‘ “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 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.” Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).’ Syllabus Point 12, Glover v. Narick, 184 W.Va. 381, 400 S.E.2d 816 (1990).” Syllabus Point 1, State ex rel. Doe v. Troisi, 194 W.Va. 28, 459 S.E.2d 139 (1995).
Karl, 487 S.E.2d at 341 & Syl. Pt. 1; see also Syl. Pt. 1, State ex rel. U.S. Fidelity and Guar. Co. v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995). In addition, we give questions of law and statutory interpretations a de novo review. Karl, 487 S.E.2d at 341 (citing Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995)).
III.
DISCUSSION
The issues now before this Court are whether an insured’s first-party statutory bad faith claim against his or her insurer, under W.Va.Code § 33-11-4(9) [1985], must be bifurcated from the insured’s contract claim against the insurer, and, if so, whether trial and discovery with regard to the bad faith claim must be stayed pending resolution of the contract claim. We addressed these precise issues in Light v. Allstate Insurance Company, 203 W. Va. 27, 506 S.E.2d 64 (1998), where we held in Syllabus Points 2 & 3:
2. In a first-party bad faith action against an insurer, bifurcation and stay of the bad faith claim from the underlying action are not mandatory. Under Rule 42(c) of the West Virginia Rules of Civil Procedure a trial court, in furtherance of convenience, economy, or to avoid prejudice, may bifurcate and stay a first-party bad faith cause of action against an insurer.
3. Trial courts have discretion in determining whether to stay discovery in a first-party bad faith claim against an insurer that has been bifurcated and stayed. Factors trial courts should consider in determining whether to stay discovery when bifurcation has been ordered in a bad faith action include: (1) the number of parties in the case, (2) the complexity of the underlying case against the insurer, (3) whether undue prejudice would result to the insured if discovery is stayed, (4) whether a single jury will ultimately hear both bifurcated cases, (5) whether partial discovery is feasible on the bad faith claim and (6) the burden placed on the trial court by imposing a stay on discovery. The party seeking to stay discovery on the bad faith claim has the burden of proof on the issue.
Under our holding in Light, bifurcation of Wholesale Auto’s statutory bad faith claim from its contract claim was not mandatory. Nor was the trial court constrained to stay the trial of the bad faith claim. Furthermore, since the trial court decided against bifurcating the bad faith claim, the question of staying discovery on that claim, a matter within the discretion of the trial court under Light when bifurcation has been ordered, is moot. Therefore, we find no error in the trial court’s denial of-Allstate’s Motion to Bifurcate and Stay.
IV.
CONCLUSION
For the foregoing reasons, the writ of prohibition is denied.
Writ denied.
. We point out that a per curiam opinion, is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4 (1992).
. Although we express no opinion here regarding the existence of a first-party cause of action for common law bad faith, we point out that this Court recently held in Elmore v. State Farm Mutual Automobile Insurance Company, et al., 202 W.Va. 430, 504 S.E.2d 893 (1998) (5-0 decision), that a third party has no cause of action against an insurance carrier for common law breach of the implied covenant of good faith and fair dealing or for common law breach of fiduciary duty. | [
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PER CURIAM:
This is an appeal from the September 11, 1997, final order of the Circuit Court of Logan County denying the Appellant, Charles John Yeager, habeas corpus relief, arising out of the Appellant’s September 2, 1988, jury conviction for the first degree murder of Mark Fillinger, without a recommendation of mercy. The Appellant argues that the trial court erred in refusing to set aside the Appellant’s conviction and award a new trial where the State, in the underlying trial, failed to disclose its agreement with a critical witness regarding criminal charges pending against the witness, said disclosure being material in nature. Based upon our review of the parties’ arguments, the record, and all other matters submitted to this Court, we reverse the decision of the lower court and remand this case for a new trial.
I. UNDERLYING TRIAL FACTS
On June 26, 1987, Mark Fillinger was released from the Logan County Jail on a short pass for an interview, but did not return to jail at the scheduled time. Instead, he joined a group of people at the Appellant’s house, including the Appellant, Eric Freeman, Stephen Lee Workman and Steven Todd Martin, for a night of drinking and consuming various drugs, including Quaaludes.
At some point that evening, according to Mr. Workman’s testimony, Mr. Fillinger stole a motorcycle belonging to Mr. Workman, but wrecked it after going down the road a short distance from Appellant’s house. When he confronted Mr. Fillinger about the motorcycle, Mr. Workman stated that he accused Mr. Fillinger of stealing his bike and proceeded to hit him several times with his fists. Later that evening, the group went to the local cemetery to continue drinking and consuming drugs. Mr. Workman testified that during the course of the evening, the Appellant argued with the victim for not charging anyone for the drugs. According to Mr. Workman, the Appellant called the victim a rat, and pointed to a grave, stating that that is where the victim should be. At that time, the victim struck the Appellant in his back and then the victim ran over a hill. Mr. Workman further testified that Eric Freeman ran after the victim, tackling him and then beating him with his fists. The Appellant then began stomping on the victim about eight or ten times in the chest and stomach area. He stated that when he left the area, the victim was just laying there and he assumed he was dead. Mr. Workman testified that he saw no weapon used against the victim and none of the Appellant’s blows were to the victim’s head. Finally, according to Mr. Workman, the next day he, Mr. Freeman and Mr. Martin were instructed by the Appellant to return to the cemetery to bury the victim’s body. Mr. Workman testified that he acted as a lookout, while Mr. Freeman and Mr. Martin dug a grave and placed the victim’s body into that grave.
Mr. Martin’s testimony was similar to Mr. Workman’s in that he also testified that after the victim stole Mr. Workman’s motorcycle, Mr. Workman hit the victim a couple of times. The victim and Mr. Martin then returned to the Appellant’s home. Upon their return, Mr. Martin testified that the Appellant stated to the victim “I should kill you for taking this bike.... ” Mr. Martin also testified that once they arrived at the cemetery, the victim was clearing brush. Then, the victim tried to run, but was tackled by Mr. Freeman. At that time, according to Mr. Martin, the Appellant began stomping on the victim, while Mr. Freeman held the victim down. Mr. Martin stated that the Appellant beat the victim for ten to fifteen minutes, but never used a weapon against the victim. Mr. Martin testified that he saw the victim get up after the altercation. He and the victim once again began clearing brush at the Appellant’s request. Mr. Martin then testified that he left the area. Upon his return, he saw Mr. Freeman digging a grave with a mattock. Mr. Martin testified that the Appellant was standing beside the grave and the victim was nowhere to be found. He stated that he noticed a cut on Appellant’s back. He further stated that the Appellant ordered him to dig some of the grave. Mr. Martin then helped to cover the body.
The Appellant testified that while he was clearing brush off graves in the cemetery, he was stabbed in the back with a knife by the victim. The Appellant testified that he did not know what prompted the victim to stab him. He denied making any statements that the victim was a rat; that he ought to kill the victim; or that the victim should be in a grave. He admitted to kicking the victim about ten times. The Appellant stated, however, that he stopped when he became weak from the blood loss he was experiencing because of the knife wound. He stated that he was barefooted when he kicked the victim and he denied that Mr. Freeman held the victim down while he was kicking him. He further stated that after he finished kicking the victim, the victim was conscious and talking. The Appellant testified that he then left the cemetery. At that time, Mr. Workman was on top of the victim beating him in the head, according to the Appellant’s testimony. He stated that he returned to his home where his wife helped clean his wound. Later that day, Mr. Freeman and Mr. Martin came to his home. Mr. Freeman was crying at that time and stated that he had killed the victim. When Mr. Freeman and Mr. Martin left the Appellant’s home, they stated that they were going to bury the victim, according to the Appellant’s testimony. Finally, the Appellant denied killing the victim.
Further evidence offered at the Appellant’s trial included the testimony of Dr. Irwin Sopher, who performed the autopsy on the victim. Dr. Sopher testified that the victim died from a blunt force impact to the left rear portion of his head, which resulted in an extensive fracture of the skull bone. According to Dr. Sopher, the weapon used to inflict this injury was a pipe-like object. Dr. Sopher also stated that there were other wounds to the victim’s head that were consistent with wounds inflicted by a knife. Dr. Sopher testified that he found no other significant wounds on the victim’s body.
The State offered no evidence that the Appellant used any type of a weapon in striking the victim. The State offered the testimony of Timothy Perry to support Dr. Sopher’s opinion regarding the cause of death. Mr. Perry testified that in July of 1987, about two weeks before the victim’s body was discovered, he was drinking grain alcohol at Mr. Martin’s residence when the Appellant and Mr. Freeman arrived. Mr. Perry stated that at some point during the evening, he overheard the Appellant and Mr. Martin having a conversation in the bathroom regarding the victim. Mr. Perry testified that he heard the Appellant state that he had hit the victim with a baseball bat and Mr. Freeman had stabbed the victim twice with a knife. Later in December of 1987, Mr. Perry admitted to several officers and the prosecutor that this statement was not true. Mr. Perry stated at trial, however, that his testimony was accurate.
At the close of all the evidence, the Appellant was convicted of the first degree murder without a recommendation of mercy. The Appellant is currently serving his sentence in the Mount Olive correctional complex.
II. HABEAS CORPUS FACTS
Before the Appellant’s trial, pursuant to West Virginia Rule of Criminal. Procedure 16, his defense counsel filed a motion for discovery of any plea agreements with any of the witnesses, which included Stephen Lee Workman. The State denied the existence of any such agreements with respect to this witness. On February 2, 1990, approximately one and a half years after testifying against the Appellant at his trial, the criminal charges against Mr. Workman were dismissed by the Assistant Prosecuting Attorney Thomas A. Zamow .
Prior to the testimony of Stephen Lee Workman, an in camera hearing was held where the lower court asked the State whether there was any plea bargains or agreements with Mr. Workman. The State denied the existence of any such agreements. Once again, in front of the jury on direct examination, Mr. Workman denied that any promises had been made to him with regard to the pending criminal charge in exchange for his testimony.
As part of the habeas corpus proceeding below, the deposition of the former Logan County Prosecuting Attorney, Donald C. Wandling, was taken on March 24, 1995. Mr. Wandling testified that it was his recollection that a plea agreement existed between the State and Mr. Workman. Pursuant to the agreement, Mr. Workman was to plead guilty to misdemeanor charges in magistrate court, in exchange for his testimony in the Appellant’s trial. Mr. Wandling further stated that to his recollection there would not have been anything reduced to writing when the plea agreement was reached.
The deposition of George L. Partain, who was appointed to represent Mr. Workman in the underlying criminal matter, was taken on August 3, 1994. In his deposition, Mr. Par-tain stated that he conferred with Mr. Za-mow on the magistrate court charges against Mr. Workman and conferred with Mr. Wan-dling on Mr. Workman’s involvement in the Appellant’s trial. He stated that he entered into a written agreement with the State extending the statute of limitations against Mr. Workman. Mr. Partain testified that in his experience in handling appointed criminal cases, Mr. Workman was the only client he allowed to testify without the benefit of a plea agreement of some kind. Although Mr. Partain denied any such plea agreement, he testified that it was his understanding that if his client’s testimony bore out at the Appellant’s trial, “they would drop his [Mr. Workman’s] case at some point.”
Mr. Workman testified during his deposition, that he had no understanding that the charges against him would be dropped if he testified in the Appellant’s trial. Mr. Workman testified that he knew about the continuance agreement, but he did not think it was the type of agreement that he needed to disclose during questioning by the defense. Additionally, Mr. Workman testified that he did not know that the charges against him had been dismissed until he was informed of that fact at his deposition.
By letter dated April 17, 1995, Mr. Wan-dling informed the lower court that he “may have inadvertently testified incorrectly concerning a matter in the deposition.” He went on to state in the letter that there was no plea agreement between the State and Mr. Workman prior to the Appellant’s trial. This recantation of his deposition testimony was based on the fact that “[t]he trial transcripts clearly show that I represented to the court that there was no plea agreement between Steven Workman or Todd Martin pri- or to the trial of John Yeager.”
Based upon this letter, the lower court suggested that Mr. Wandling be deposed again. At his second deposition, Mr. Wan-dling testified that he was convinced he was wrong in his first deposition when he read the part of the trial transcript where he had represented to the trial court that there were no agreements with either Mr. Workman or Mr. Martin. Mr. Wandling could not explain his confusion as to the existence or nonexistence of plea agreements in his first deposition. Further, Mr. Wandling believed that the testimony of Mr. Workman and Mr. Martin was critical to the conviction of the Appellant and that no conviction would have been obtained without their testimony. Mr. Wan-dling also testified that he did not consider the continuance of Mr. Workman’s magistrate court trial, agreed to by himself and Mr. Workman’s attorney, as something he would have had to disclose to the court.
III. LAW
The sole issue before this Court is whether the trial court erred in refusing to set aside the Appellant’s conviction and award a new trial where, during the underlying trial, the State failed to disclose an agreement with a critical witness regarding criminal charges pending against that witness. If such a failure to disclose is present, the question becomes whether the failure to disclose was material under the facts of the Appellant’s case.
The Appellant asserts that Mr. Workman was a critical witness against him at his trial. The Appellant argues that the evidence developed in the habeas corpus proceeding clearly indicates that the trial court and the jury were misled by Mr. Workman and the prosecutor with respect not only to the agreement Mr. Workman had with the State to continue his criminal charges until after he testified at the Appellant’s trial, but also with respect to a plea agreement entered into between the State and Mr. Workman in exchange for Mr. Workman’s testimony.
A. FAILURE TO DISCLOSE
In syllabus points one of State v. James, 186 W.Va. 173, 411 S.E.2d 692 (1991), this Court held that “[tjhe prosecution must disclose any and all inducements given to its witnesses in exchange for their testimony at the defendant’s trial” Id. at 174, 411 S.E.2d at 693, Syl. Pt. 2 (Emphasis added). This holding was based upon the rationale that “[s]uch deals are crucial as impeachment evidence; in some eases the jury may decide that the deal has created an incentive for the witness to lie.” Id. at 175, 411 S.E.2d at 694. We concluded in James that “[c]lear evidence of a deal directly linking leniency for ... [a witness] with testimony tending to convict ... [the defendant] that was not disclosed would be grounds for a new trial.” Id.
In the present case, it is clear that direct evidence was presented through the prosecutor’s deposition at the habeas corpus proceeding which established the existence of what clearly could be construed as a plea agreement between the State and Mr. Workman, wherein the criminal charges against Mr. Workman would be dismissed in exchange for his testimony which was favorable to the State’s case. Because the prosecutor later recanted and completely reversed his position on this issue, there is evidence on both sides of this question and thus, we cannot unequivocally state that the plea agreement existed. It is troubling that the question of whether or not a plea agreement existed is so unresolved that even the prosecuting attorney is on the record as adopting two opposite positions with respect to whether there was a plea agreement. This is, at a minimum, sloppy practice. This entire scenario illustrates why, although there is no rule requiring that plea agreements be in writing, it clearly is the better practice.
The Appellant relies more heavily on the agreement to continue, than on the alleged plea agreement. The reason for that position seems clearly to be based on the fact that the existence of the agreement to continue is clearly demonstrable. It is the existence of a plea agreement itself, however, which is of greater concern. In cases such as this, where there is doubt over the existence of an agreement between the State and a defendant, but substantial evidence, although circumstantial, is present which suggests that an agreement existed, this Court will resolve the benefit of the doubt in the defendant’s favor. See State v. Wayne, 162 W.Va. 41, 42-43, 245 S.E.2d 838, 840 (1978), overruled on other grounds, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983)(“[W]e do require substantial evidence that the bargain was, in fact, a consummated agreement, and not merely a discussion.”)
Certainly, in the instant ease, the agreement continuing the criminal charges against Mr. Workman until after he testified in the underlying criminal trial against the Appellant seems to support or at least suggest the existence of a plea agreement. Additionally, the prosecuting attorney initially testified that a plea agreement existed. Likewise, there was Mr. Workman’s attorney’s testimony that if his client’s testimony supported the State’s case against the Appellant, “they would drop his [Mr. Workman’s] case at some point.” Moreover, as further support that a plea agreement existed, the criminal charges against Mr. Workman were dismissed after he testified in the Appellant’s criminal trial. Finally, it is undisputed that neither the plea agreement, nor the ancillary agreement to continue, was disclosed to either the lower court or the Appellant during the proceeding below as requested.
B. MATERIALITY ISSUE
Having established that the State withheld evidence of a plea agreement from both the Appellant and the lower court, the inquiry becomes whether the failure to disclose was material under the facts of the Appellant’s case. The Appellant asserts that the failure to disclose was material to the Appellant’s trial and ultimate conviction.
In syllabus point two of In re an Investigation of the West Virginia State Police Crime Laboratory, Serology Division, 190 W.Va. 321, 438 S.E.2d 501 (1993), this Court held that “[although it is a violation of due process for the State to convict a defendant based on false evidence, such conviction will not be set aside unless it is shoum that the false evidence had a material effect on the jury verdict.” Id. at 322, 438 S.E.2d at 502 (Emphasis added); see Syl. Pt. 4, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989) (“ ‘A prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution.’ Syllabus Point 4, State v. Hatfield, 169 W.Va. 191, 286 5.E.2d 402 (1982).”) We elaborated on the materiality standard in Fortner as follows: “ ‘The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’ ” 182 W.Va. at 354, 387 S.E.2d at 820 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Finally, we recognized that “evidence reflecting on the credibility ‘ of a key prosecution witness may be so material to the issue of guilt as to qualify as exculpatory matter which the prosecution is constitutionally required to disclose.” Fortner, 182 W.Va. at 354, 387 S.E.2d at 821.
Based upon our review of Mr. Workman’s testimony in the underlying criminal trial, as well as the facts developed during the habeas corpus proceeding, we conclude that the failure to disclose the plea agreement between the State and Mr. Workman was material to the impeachment of a critical witness, because the witness presented testimony that was critical to the Appellant’s conviction and the witness incriminated himself in his testimony, thereby enhancing his credibility. Mr. Workman was the only witness who claimed to have heard the Appellant arguing with the victim for not charging for the Quaaludes, referring to the victim as a rat, and pointing to a grave, saying that this is where the victim ought to be. Further, the State had a need to bolster Mr. Workman’s credibility, because even though his credibility was enhanced by his incriminating testimony, he admitted to lying to the police in a statement he had given to them. Consequently, had the Appellant been informed about the plea agreement, he could have subjected Mr. Workman to extensive cross-examination that could have impacted upon the witness’ credibility. Without having the opportunity to ask these questions in front of the jury, we conclude that the Appellant was deprived of a significant opportunity to challenge Mr. Workman’s credibility.
IV.
Based on the foregoing, the final order of the Circuit Court of Logan County is hereby reversed and this case is remanded for a new trial.
Reversed and remanded.
Justice McGRAW did not participate in the decision of this case.
.The petition for appeal from the denial of habe-as corpus relief was originally filed on November 3, 1997. On or about January 21, 1998, the petition was presented to this Court and was refused. On February 19, 1998, the Appellant and the Appellee, Carl E. Legursky, filed a "Joint Motion for Renewal of Petition for Appeal,” which motion was granted by the Court.
. The Appellant’s direct appeal of this conviction was denied by this Court on July 12, 1989.
. The special prosecuting attorney assigned to this case agrees that the Appellant is entitled to a new trial.
. Many of the recited facts originate from the findings of fact found in the agreed order submitted by the Appellant and the Appellee to the circuit court in December of 1996. These factual findings were adopted by the circuit court and incorporated by it in the September 11, 1997, final order.
. Eric Freeman was also indicted for Mr. Filling-er’s murder. Mr. Freeman refused to testify at the Appellant's trial by asserting his Fifth Amendment right against self-incrimination. Subsequent to the Appellant’s trial, Mr. Freeman entered into a plea bargain which required him to plead guilty to one charge of malicious assault and one charge of voluntary manslaughter relating to the victim’s death. During a January 15, 1992, hearing conducted with regard to the Appellant’s habeas corpus proceeding, Mr. Freeman testified that the Appellant did not kill Mr. Fillinger. Mr. Freeman stated that "[a]s far as ... [he] kn[e]w ... [he]” killed the victim. Additionally, Mr. Freeman stated that when the Appellant left the crime scene on the night of the murder, the victim was still alive.
. On August 21, 1987, Stephen Lee Workman " and Steven Todd Martin were charged with being accessories after the fact to Mr. Fillinger's murder.
. Mr. Workman stated that it appeared to him from the Appellant's wounds in his back that the victim must have had a knife when he struck the Appellant.
. The Appellant testified that they all engaged in clearing brush off of the graves of some of his family members.
. At trial, Mr. Martin was never asked about this conversation testified to by Mr. Perry.
. The criminal charges against Mr. Martin were also dismissed on February 2, 1990. The Appellant attempted to develop a record showing the existence of a plea agreement or some type of inducement granted by the State in exchange for Mr. Martin's testimony. Both Mr. Martin and his court-appointed attorney in the underlying matter, Mr. John C. Valentine, denied the existence of any such agreement. As a matter of fact, Mr. Valentine testified during his deposition in the Appellant’s habeas corpus proceeding, that there were no plea discussions or agreements prior to Mr. Martin's testimony. Further, the State also requested Mr. Valentine to enter into a continuance of the magistrate court case on his client's behalf. Mr. Valentine stated that he refused to agree to a continuance because he believed he had a good basis for dismissal of the case pursuant to the three-term rule.
. The prosecutor also recalled the existence of such agreement with Mr. Martin as well.
. A copy of this formal written agreement was not in the court file. The time records filed by Mr. Partain to obtain his fee as appointed counsel, however, reflected time spent preparing an agreement. Mr. Valentine also corroborated Mr. Partain’s testimony regarding the existence of a continuance agreement. Mr. Partain never produced a copy of the alleged agreement.
. Mr. Martin’s deposition testimony concerning the charges being dropped and the charges being dismissed was the same as Mr. Workman's.
. James D. Vickers testified at the Appellant's habeas corpus hearing. He had previously been incarcerated at the West Virginia Penitentiary with the Appellant and he spoke to the Appellant about his testimony. Mr. Vickers stated that he was out one night with Mr. Workman and Mr. Martin and "[t]hey said if they didn't get their story straight that the prosecutor wasn't going to break them a deal. They said the prosecutor said if they'd testify against John Yeager they wouldn't get a day out of it.”
. We have previously stated that " '[wjhile we do not require that a plea bargain agreement be written, ... that is the far better course. State v. Sharpless, 189 W.Va. 169, 172, 429 S.E.2d 56, 59 (1993) (emphasis omitted)(quoting State v. Wayne, 162 W.Va. 41, 42, 245 S.E.2d 838, 840 (1978), overruled on other grounds, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983)). While Rule 11(e) of the West Virginia Rules of Criminal Procedure does not require that a plea agreement be in writing, it mandates that “[i]f a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered.” W. Va. R.Crim. P. 11(e)(2); see United States v. Norman, 133 F.3d 930, 1997 WL 812259 (9th Cir.1997) (unpublished per cu-riam) ("Rule 11(e) of the Federal Rules of Criminal Procedure contains no requirement that the plea agreement be in writing."); United States v. Frost, 43 F.3d 1469, 1994 WL 706121, at *2 (4th Cir.1994) (unpublished per curiam) ("There is no requirement that a plea of guilty be accompanied by a written plea agreement.”); but see W. Va. R.Crim. P. 11(a)(2) (requiring that a conditional plea agreement "reserv[e] in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion.”)
. Without the continuance, the one year statute of limitations on the misdemeanor criminal charges filed against Mr. Workman on August 21, 1987, would have expired prior to the beginning of the Appellant's trial on the underlying criminal charges, which was scheduled to begin on August 30, 1988. | [
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PER CURIAM:
Inco Alloys International (hereinafter “Appellant” or “Inco”) appeals a May 23, 1996, decision of the Circuit Court of Cabell County denying Inco the right to a subrogation lien upon a settlement amount received in a civil action filed by Cecil William Cart, II, (hereinafter “Appellee”). The Appellant contends that the lower court erroneously deprived it of the right to the subrogation lien. We agree and reverse the decision of the lower court and remand for reinstatement of the subrogation lien.
I.
On August 12, 1990, the Appellee, an electrician employed by Inco at Inco’s Hot Strip Mill facility in Huntington, West Virginia, was injured in an electrical fire and explosion while cleaning a silicon control rectifier (SCR). Because the Appellee’s injuries occurred during the course and scope of his employment, his medical bills of $83,198.02 were paid by Inco, a self-insured employer under West Virginia Code § 23-2-9 (1994).
On June 17, 1992, the Appellee initiated a civil action in the Circuit Court of Cabell County against (1) General Electric Company (hereinafter “GE”), as the manufacturer of the SCR, (2) Wean, Inc., the contractor responsible for the construction of the portion of the Inco facility in which the accident occurred, and (3) Inco, as the Appellee’s employer. On July 9, 1992, the Appellee amended the complaint to include United Engineering and Wean United, two corporations related to Wean, Inc. A second amended complaint, in November 1992, named Prichard Electric, a contractor involved in the construction of the building, as a defendant.
After two years of discovery, the Appellee settled with Prichard Electric. On June 2, 1994, Inco was granted summary judgment. The lower court found that the Appellee’s action against Inco was based upon West Virginia Code § 23-2-4(c)(2)(i) and (ii) (1994), the deliberate intent statute. The lower court had previously instructed the Appellee to pursue discovery to establish the evidentiary predicates for this deliberate intent cause of action, and the lower court determined that the Appellee had been unsuccessful in establishing the statutory requirements to state a cause of action upon which relief could be granted. The lower court therefore dismissed Inco with prejudice.
On February 7, 1995, the Appellee filed a third amended complaint naming S & C Electronics, a fuse manufacturer, as a defendant. In early 1996, the Appellee settled with all remaining defendants, including GE, Wean, and S & C, for $62,500. The Appel-lee subsequently requested the lower court to relieve him of the obligation to pay Inco monetary reimbursement owed to it as a self-insured employer under West Virginia Code § 23-2A-l(c) (1994), providing as follows:
(c) In the event that an injured worker, his or her dependents or personal representative makes a claim against a third party, there shall be, and there is hereby created, a statutory subrogation lien upon such moneys received which shall exist in favor of the commissioner or self-insured employer. Any injured worker, his or her dependents or personal representative who receives moneys in settlement in any manner of a claim against a third party shall remain subject to the subrogation lien until payment in full of the amount permitted to be subrogated under subsection (b) of this section is paid.
Section (b) of that statute provides:
(b) Notwithstanding the provisions of subsection (a) of this section, if an injured worker, his or her dependents or his or her personal representative makes a claim against said third party and recovers any sum thereby, the commissioner or a self-insured employer shall be allowed subrogation with regard to medical benefits paid as of the date of the recovery: Provided, That under no circumstances shall any moneys received by the commissioner or self-insured employer as subrogation to medical benefits expended on behalf of the injured or deceased worker exceed fifty percent of the amount received from the third party as a result of the claim made by the injured worker, his or her dependents or personal representative, after payment of attorney’s fees and costs, if such exist.
During a May 17, 1996, hearing, the lower court entertained arguments of counsel and thereafter granted the Appellee’s requested relief, setting aside Inco’s subrogation lien on the settlement amount obtained by the Appellee from the other defendants. A May 23, 1996, order memorialized the ac tion of May 17, 1996, setting aside Inco’s subrogation interest. The lower court apparently treated the Appellee’s request for approval of the settlement as a request for summary judgment on the issue of Inco’s subrogation rights, and as such, this Court’s review is de novo. In syllabus point one of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), we explained that “[a] circuit court’s entry of summary judgment is reviewed de novo.”
II.
Inco contends that the lower court erred in finding that its subrogation interest was subject to eradication. Inco further contends that a self-insured employer is entitled to reimbursement of medical expenses paid on behalf of the employee, pursuant to the explicit language of West Virginia Code 23-2A-l(c), quoted above. The only limitation under the statute is a fifty percent cap on the net recovery, included in section (b) of the statute. Inco is thus entitled to receive no more than fifty percent of the net amount of the settlement after the deduction of attorney fees and costs, according to section (b) of the statute.
The Appellant also maintains that the lower court erred in predicating its decision upon the reasoning in Kittle v. Icard, 185 W.Va. 126, 405 S.E.2d 456 (1991), a matter involving subrogation rights of the Department of Health and Human Resources and outside the realm of workers compensation law. In Bush v. Richardson, 199 W.Va. 374, 484 S.E.2d 490 (1997), this Court addressed the issue of whether the equitable “made-whole rule” applies in a subrogation claim made pursuant to West Virginia Code § 23-2A-1 and determined that the right of subro-gation to the employer exists even if the plaintiff/employee has not been made whole by the settlement. In syllabus point four of Bush, this Court explained:
By the enactment of W.Va.Code, 23-2 A-1 [1990], which provides that the Commissioner of Workers’ Compensation “shall be allowed subrogation” when a workers’ compensation claimant collects moneys from a third-party tortfeasor, the legislature expressly modified the usual, ordinary meaning of subrogation as it is used in that Code section by making the made-whole rule inapplicable. Therefore, the following provisions set forth by the legislature in W.Va.Code, 23-2A-l(b) [1990] shall be followed: “[T]he commissioner or a self-insured employer shall be allowed subrogation with regard to medical benefits paid as of the date of the recovery: Provided, That under no circumstances shall any moneys received by the commissioner or self-insured employer as subrogation to medical benefits expended on behalf of the injured or deceased worker exceed fifty percent of the amount received from the third party as a result of the claim made by the injured worker, his or her dependents or personal representative, after payment of attorney’s fees and costs, if such exist.”
The Appellee concedes upon appeal that the reasoning of the lower court regarding the “made whole” theory of Kittle was determined to be incorrect in Bush. However, the Appellee forwards two alternate grounds allegedly justifying the lower court’s decision, neither of which was addressed by the lower court. First, the Appellee alleges that Inco’s negligence contributed to his injuries, basing this claim upon Inco’s alleged failure to properly draw the wiring diagram for the relay signaling a breaker to open. While this may be a compelling hypothetical argument, we are not faced with facts sufficient to support a finding of negligence on the part of this employer; nor did the Legislature include any exceptions to entitlement to subrogation based upon the employer’s alleged negligence. The lower court granted summary judgment to Ineo, and that decision was not appealed.
Moreover, we have consistently recognized that the workers compensation scheme and the immunity generated thereby are statutory creations. We have consequently deferred to the Legislature in the formulation of the intricacies of the workers compensation system. For instance, prior to the enactment of West Virginia Code § 23-2A-1 in 1990, this Court explained its refusal to recognize a subrogation claim in the absence of a specific subrogation statute, as follows: “We have traditionally stated that our workers’ compensation system is entirely a statutory creature and for this reason we feel that judicial intrusion into the statutory framework, particularly on so complex an issue, is unwarranted.” National Fruit Product Co., Inc. v. Baltimore and Ohio Railroad Co., 174 W.Va. 759, 765, 329 S.E.2d 125, 132 (1985). See generally 2A Arthur Larson, The Law of Workmen’s Compensation § 74.31(b) (1996) (Analyzes the various state workers’ compensation statutes providing for subrogation and concludes that “[reimbursement of the compensation payor according to the terms of the statute is mandatory, and cannot be modified by courts.”).
The Appellee also contends that Inco was instrumental in attempting to prevent any recovery by the Appellee and that such activity should prevent Inco from recovering funds under the subrogation hen. Again, the statute controlling the subrogation issue does not contain equitable principles of unclean hands or any other mechanism to permit the Appellee to retain funds to which Inco is statutorily entitled. We therefore are unpersuaded by the Appellee’s arguments regarding Inco’s alleged contribution to the Appellee’s injuries and Inco’s alleged attempt to prevent recovery by the Appellee.
Pursuant to West Virginia Code § 23-2A-1(c), Ineo is entitled to subrogation of fifty percent of the amount received by the Appel-lee. We reverse the lower court’s decision and remand for reinstatement of the subro-gation lien.
Reversed and remanded.
. We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n. 4, 423 S.E.2d 600, 604 n. 4. (1992).
. An SCR is apparently an electrical device that converts voltages for operation of the Hot Strip Mill. Evidence adduced during discovery indicated that Mr. Cart had inserted a paint brush between two energized 700 volt buss bars of a SCR, causing a short and a subsequent explosion. Mr. Cart denies that he placed a brush between the bars and maintains that a buildup of dust may have caused the explosion.
. The West Virginia Legislature has specified that the Workers’ Compensation Act is designed "to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee except as herein expressly provided....” W.Va.Code § 23 — 4—2(c)(1). West Virginia Code § 23-4-2(c)(2)(i)-(ii) provides:
(2) The immunity from suit provided under this section and under section six-a [§ 23-2-6a], article two of this chapter, may be lost only if the employer or person against whom liability is asserted acted with "deliberate intention." This requirement may be satisfied only if:
(i) It is proved that such employer or person against whom liability is asserted acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee. This standard requires a showing of an actual, specific intent and may not be satisfied by allegation or proof of (A) conduct which produces a result that was not specifically intended; (B) conduct which constitutes negligence, no matter how gross or aggravated; or (C) willful, wanton or reckless misconduct; or
(ii) The trier of fact determines, either through specific findings of fact made by the court in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the following facts are proven:
(A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;
(B) That the employer had a subjective realization and an appreciation of the existence of such specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by such specific unsafe working condition;
(C) That such specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of such employer, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth in subparagraphs ,(A) through (C) hereof, such employer nevertheless thereafter exposed an employee to such specific unsafe working condition intentionally; and
(E) That such employee so exposed suffered serious injury or death as a direct and proximate result of such specific unsafe working condition.
. Mr. Cart informs the Court that he received only $35,452.89 of the $62,5000 settlement due to the payment of costs and expenses incurred by Mr. Cart in litigation. Therefore, pursuant to statute, the only recovery to which Inco would arguably be entitled in 50% of the amount actually received by Mr. Cart, amounting to $17,-726.45.
. In Kittle, guardians of a minor injured in an automobile accident requested this Court to find that because the minor had not been made whole by the settlement, the Department of Human Services should not be entitled to subrogation for medical expenses it had paid on behalf of the minor. We concluded that the trial court properly applied the "made-whole" rule to deny the Department full reimbursement for medical assistance payments from proceeds of the settlement obtained by the minor. 185 W.Va. at 134, 405 S.E.2d at 464. Kittle was superseded by statute, as explained in syllabus point two of Grayam v. Department of Health and Human Resources, 201 W.Va. 444, 498 S.E.2d 12 (1997), as follows:
In both the 1993 and 1995 amendments to West Virginia Code § 9-5-11 (Supp.1993 & Supp.1995), the legislature rendered the made-whole rule inapplicable by clearly and unambiguously modifying the usual and ordinary meaning of subrogation as it is used in that statute. Pursuant to these amendments, if another person is legally liable to pay for medical assistance provided by the Department of Health and Human Resources, the Department possesses a priority right to recover full reimbursement from any settlement, compromise, judgment, or award obtained from such other person or from the recipient of such assistance if he or she has been reimbursed by the other person.
. We recognize that the lower court did not yet have the benefit of the reasoning in Bush when it made its decision in this matter.
. While we recognize the distinction between the facts necessary to support a finding of negligence and those necessary to establish deliberate intent under West Virginia Code § 23-4-2(c), there was no attempt below to separate the issues of the deliberate intent claim and simple negligence, and the record is devoid of any establishment of negligence by Inco.
. The Appellee’s brief recognizes that the "subro-gation statute is silent in determining whether the fund or self-insured employers are prevented from asserting subrogation where the employer caused or contributed to the employee’s injuries” and suggests that we expand upon the Legislative language and judicially create "standards to address this situation.” We decline to legislate from the bench, and we defer to the scheme devised by the Legislature. While the concept of judicial empiricism was addressed in 1921 by Dr. Roscoe Pound, Dean of the Harvard Law School in The Spirit of the Common Law, application of such doctrine empowering courts to create law, is particularly imprudent in addressing issues to which the Legislature has already spoken. In exercising judicial restraint, courts have reasoned that it is not the proper function of the judicial branch to supply legislative omissions from a statute in an attempt to make it conform to some presumed intention of the Legislature not expressed in the statutory language. Cemetery Board v. Telophase Society of America, 87 Cal.App.3d 847, 858, 151 Cal.Rptr. 248 (Cal.App.1978). "[J]udicial process is concerned with the interpretation and application of legislative intent, not with usurpation of the lawmaking function.” Rudley v. Tobias, 84 Cal.App.2d 454, 458, 190 P.2d 984 (Cal.App.1948).
.Inco had also discarded the fuses which were in issue prior to the initiation of the civil action. Thus, the Appellee was unable to have those available for testing to determine whether they had been manufactured improperly. | [
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DAVIS, Chief Justice:
The appellant herein, United States Fidelity and Guaranty Insurance Company [hereinafter USF & G], appeals the decision of the Circuit Court of Ohio County, entered December 2, 1996, denying USF & G’s motion for declaratory judgment. Prior to USF & G’s motion, the plaintiffs below and appellees herein, William J. Henry [hereinafter Henry] and Ruth Ann Henry, filed a civil action against the defendant below and appellee herein, James K. Benyo [hereinafter Benyo], wherein Henry sought to recover damages resulting from his motor vehicle accident with Benyo. In refusing to award USF & G declaratory judgment, the circuit court determined that, even though Henry had collected workers’ compensation benefits for his injuries resulting from his motor vehicle accident with Benyo, Henry also could seek underin-sured motorist benefits, provided his judgment against Benyo activated such coverage, from Henry’s employer’s motor vehicle insurance carrier, USF & G, which insured the vehicle Henry had been operating at the time of the accident. Upon a review of the parties’ arguments, the record evidence, and the pertinent authorities, we affirm the decision of the Circuit Court of Ohio County.
I.
FACTUAL AND PROCEDURAL HISTORY
The facts underlying this appeal are not in dispute. In October, 1995, the plaintiff below, William J. Henry, was employed by Savage Construction Company. Savage provided work-related injury coverage to its employees by subscribing to the West Virginia Workers’ Compensation fund. On October 25, 1995, Henry was operating a crane, owned by Savage, in the course of his employment. A policy of motor vehicle insurance, which Savage had purchased from USF & G, was in effect with regard to this particular crane. While driving the crane, Henry was involved in a motor vehicle accident with the defendant below, James K. Benyo. Benyo was not an employee of Savage and had no connections with this company.
As a result of the accident, Henry sustained numerous injuries for which he requested and received workers’ compensation benefits. In addition, Henry and his wife, Ruth Ann Henry, filed a lawsuit against Benyo, in the Circuit Court of Ohio County, seeking additional compensation for injuries arising from the accident. In conjunction with the lawsuit, Henry provided notice both to Savage and to the appellant herein, USF & G, that he may seek to recover underin-sured motorist benefits under his employer’s motor vehicle insurance policy with USF & G if his judgment against Benyo exceeded the limits of Benyo’s automobile insurance coverage.
USF & G then filed a motion for declaratory judgment challenging Henry’s right to receive underinsured motorist benefits from his employer’s insurance policy given his receipt of workers’ compensation benefits for the same injury. Following a hearing, the circuit court, by order entered December 2, 1996, denied USF & G’s motion and determined that Henry would be permitted to recover the disputed underinsured motorist benefits from his employer’s insurance policy. The court first noted the relevancy of Wisman v. Rhodes & Shamblin Stone, Inc., 191 W.Va. 542, 447 S.E.2d 5 (1994), to the instant case, but recognized that the precise issue before it had not been addressed in the Wisman decision. The court then explained that
[ejven though plaintiff was working within the scope and course of his employment at the time of the accident and notwithstanding W.Va.Code § 23-2-6, the Court is of the opinion that underinsured motorist benefits from plaintiffs employer’s policy of insurance may be triggered to provide coverage for the vehicle in which plaintiff was driving at the time of the subject accident because plaintiff was injured as a result of a third-party, not a fellow employee.
In conclusion, the circuit court instructed that USF & G could seek a “full and final resolution of the declaratory judgment issue” before this Court and stayed all remaining matters pending the outcome of such an appeal. From this order, USF & G appeals to this Court.
II.
STANDARD OF REVIEW
This appeal is presented to this Court following the circuit court’s denial of USF & G’s motion for declaratory judgment. Declaratory judgment actions are permitted in order “to avoid the expense and delay which might otherwise result, and [to] secur[e] in advance a detei-mination of legal questions which, if pursued, can be given the force and effect of a judgment or decree without the long and tedious delay which might accompany other types of litigation.” Imgrund v. Yarborough, 199 W.Va. 187, 189-90, 483 S.E.2d 533, 535-36 (1997) (emphasis in original) (internal quotations and citations omitted). Given the legal question context within which motions for declaratory judgment are decided, “[a] circuit court’s entry of a declaratory judgment is reviewed de novo.” Syl. pt. 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995).
III.
DISCUSSION
The sole issue presented by the parties to the instant appeal is whether an employee, who has been injured in a work-related motor vehicle accident involving a third-party nonemployee, may recover underinsured motorist benefits from his/her employer’s motor vehicle insurance policy where the employee has received workers’ compensation benefits for the same resultant injuries.
Opposing Henry’s attempts to recover un-derinsured motorist benefits under Savage’s motor vehicle insurance policy, USF & G advances two primary arguments. First, USF & G asserts that the provisions granting employers immunity from suit for injuries covered by workers’ compensation extends to shield employers from liability for underinsured motorist benefits, under their policies of motor vehicle insurance, where workers’ compensation coverage encompasses the accident activating such underinsured motorist benefits. In support of this argument, USF & G cites the immunity provisions of the workers’ compensation statutes, contained in W.Va.Code § 23-2-6 (1991) (Repl.Vol.1994). Further buttressing this contention, USF & G relies upon this Court’s prior decision in Wisman v. Rhodes & Shamblin Stone, Inc., 191 W.Va. 542, 447 S.E.2d 5 (1994), wherein we determined, in Syllabus point 2, that the immunity provided to employers and coemployees by workers’ compensation prohibits an employee, who has been injured in a work-related motor vehicle accident involving a eoemployee and who has received workers’ compensation benefits for his/her resultant injuries, from seeking additional benefits under his/her employer’s un-derinsured motorist insurance coverage. Additionally, USF & G tenders an unpublished decision from the United States District Court for the Southern District of West Virginia. In Vandall v. Dunham, the court determined that an employee, who was injured in a work-related motor vehicle accident with a third-party nonemployee and who had received workers’ compensation benefits for his injuries, could not recover underinsured .motorist benefits under his employer’s motor vehicle insurance policy. No. 5:96-0550, 1997 WL 150092 (S.D.W.Va. Mar .26,1997).
The second theory by which USF & G contends Henry’s recovery of underinsured motorist benefits from Savage’s insurance is precluded focuses upon the language contained in Savage’s motor vehicle insurance policy. In this regard, USF & G represents that, because Henry cannot maintain a cause of action against Savage in recovery for his injuries resulting from his accident with Benyo, he likewise is not “legally entitled to recover” underinsured motorist benefits under Savage’s insurance policy.
By contrast, Henry maintains that he is entitled to collect underinsured motorist benefits under Savage’s motor vehicle insurance policy. He disputes the contention of USF & G that his recovery of underinsured benefits through Savage’s insurance coverage would abrogate the workers’ compensation immunity provisions which operate to insulate Savage from liability for the underlying motor vehicle accident. Instead, Henry maintains that Benyo, not Savage, is the party liable to Henry for the injuries he sustained as a result of the accident, and, consequently, he is not seeking to hold Savage liable in this regard. Moreover, Henry suggests that, once he has obtained a judgment against Benyo sufficient to activate Savage’s underin-sured motorist coverage, his collection efforts would be pursued against USF & G and not against Savage.
Furthermore, Henry distinguishes this Court’s decision in Wisman based upon the difference between the factual scenario addressed in that case and the context within which the case sub judice has arisen. Henry interprets Wisman as precluding an employee’s recovery of underinsured motorist benefits from his/her employer’s motor vehicle insurance coverage only when the underlying accident involved the employee and his/her coemployee, based upon the immunity provisions set forth in the workers’ compensation statutes. As the accident giving rise to the instant appeal involved a nonemployee third-party, the basic rationale of Wisman has no application. Thus, Henry states that he is not precluded from seeking underinsured motorist benefits from Savage’s USF & G policy.
Finally, Henry also addresses whether he is “legally entitled to recover” the underin-sured motorist benefits in question. Contrary to USF & G’s policy language argument, Henry contends that the relevant statutory and case law entitle him to such a recovery. Citing W.Va.Code § 33 — 6—31(b) (1995) (Repl.Vol.1996); Syl. pt. 4, Marshall v. Saseen, 192 W.Va. 94, 450 S.E.2d 791 (1994). As these provisions permit one to recover underinsured motorist benefits as long as he/she is “legally entitled to recover” from the underinsured motorist, and as Henry states that he is statutorily entitled to maintain his cause of action against Benyo, citing W.Va.Code § 23-2A-l(a) (1990) (Repl.Vol.1994); Jones v. Laird Found., Inc., 156 W.Va. 479, 195 S.E.2d 821 (1973), he submits that he is “legally entitled” to collect the underinsured motorist benefits which he seeks from USF & G.
The precise issue presented by this appeal has not previously been decided by this Court: whether an employee, who is injured in a motor vehicle accident with a third-party nonemployee in the course and scope of the employee’s employment, may recover under his/her employer’s underin-sured motorist insurance coverage after having received workers’ compensation benefits for the injuries he/she sustained as a result of the accident. The employer’s insurer, USF & G, emphatically denies that Henry has any right to receive such benefits as a result of this Court’s prior decision in Wisman v. Rhodes & Shamblin Stone, Inc., 191 W.Va. 542, 447 S.E.2d 5 (1994). With this theory of the case, however, we disagree. Wisman involved a somewhat analogous, albeit distinguishable, factual scenario: may an employee, who was injured as a result of a motor vehicle accident with a coemployee in the course and scope of the employee’s employment, recover under his/her employer’s uninsured motorist insurance after having received workers’ compensation benefits for injuries resulting from the accident. In Syllabus point 2 of Wisman we held:
An employee who receives workers’ compensation benefits for injuries that result from a motor vehicle collision with a coemployee which occurs within the course and scope of employment is not entitled to assert a claim for uninsured or underin-sured motorist benefits. Because of the provisions for employer and coemployee immunity contained in W.Va.Code §§ 23-2-6 and 6a (1994), workers’ compensation is the exclusive remedy available to an injured employee, and an uninsured or un-derinsured motorist carrier has no liability.
191 W.Va. 542, 447 S.E.2d 5 (emphasis added). However, as this holding clearly articulates, the scope of the Wisman decision is limited to those motor vehicle accidents involving two employees. Wisman does not discuss the situation here at hand regarding motor vehicle accidents between an employee and a third-party nonemployee.
Finding Wisman to be inapplicable to our resolution of the case sub judice, we look for guidance to the statutory provisions governing motor vehicle insurance coverage generally. W.Va.Code § 33-6-31(h) (1995) (Repl.Vol.1996) provides that “[t]he provisions of subsections (a) and (b) of this section shall not apply to any policy of insurance to the extent that it covers the liability of an employer to his employees under any workers’ compensation law.” (Emphasis added). When the legislative intent of a statute’s terms is clear, we will apply, not construe, its plain language. In other words, “ ‘ “[a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.” Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).’ Syllabus point 1, State v. Jarvis, 199 W.Va. 635, 487 S.E.2d 293 (1997).” Syl. pt. 3, Albright v. White, 202 W.Va. 292, 503 S.E.2d 860 (1998). A review of this statutory provision suggests that the language clearly articulates the intent of the legislative drafters.
The plain language of subsection (h) prohibits an employee from collecting from his/her employer’s underinsured motorist insurance coverage if his/her injuries are already covered by workers’ compensation and if the accident is a result of the employer’s or a coemployee’s actions (i.e., “the employer’s liability”). Stated otherwise, if the employee’s injuries were caused by the employer, a coemployee, or, possibly, by some inadvertence of the employee him/herself (as compared to a third-party stranger to the employment relationship) thereby rendering the employer “liable,” or “at fault,” for the accident, the employee cannot collect workers’ compensation benefits and then seek an additional recovery from the employer just because the employer has motor vehicle insurance that coincidentally also covers the employee’s injuries. Rather, the employee is limited in his/her recovery to workers’ compensation benefits because of the immunity provided to employers and coemployees by the workers’ compensation statutes. See W.Va.Code § 23-2-6 (1991) (Repl.Vol.1994) (defining employer’s immunity); § 23-2-6a (1949) (Repl.Vol.1994) (extending employer’s immunity to coemployees of injured worker). But see W.Va.Code § 23-4-2 (1994) (Repl. Vol.1994) (nullifying employer’s liability from suit where employer’s “deliberate intention” contributed to work-related accident); Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978) (same), superseded by statute as stated in Handley v. Union Carbide Corp., 804 F.2d 265 (4th Cir.1986).
We note also that this reading of subsection (h) as it relates to motor vehicle collisions between employees is consistent with our prior decision in Wisman. See Syl. pt. 2, 191 W.Va. 542, 447 S.E.2d 5. Were we to construe the statute otherwise, where a motor vehicle accident involves an employee and his/her employer or coemployee, to permit the injured employee to collect both from workers’ compensation and from his/her employer’s motor vehicle insurance carrier, we effectively would have allowed the employee to do indirectly what he/she is specifically and statutorily precluded from doing directly, ie., asserting a claim against his/her employer in contravention of the immunity provided by the workers’ compensation statutes.
Where, however, an employee’s work-related injuries are caused by a third-party, as in the accident between Henry and Benyo at issue in this appeal, subsection (h) does not apply because the employer is not “liable” for the accident. In this scenario, it is the third-party who is technically “at fault” for the collision and resultant damages. Therefore, while the employee may recover workers’ compensation benefits for his/her injuries resulting from the accident which occurred in the course and scope of his/her employment, he/she is not statutorily barred from also pursuing his/her claims against the third-party as this individual does not enjoy the immunity afforded by the workers’ compensation statutes. In fact, the injured employee is statutorily permitted to pursue his/ her claims against the third-party tortfeasor:
[wjhere a compensable injury or death is caused, in whole or in part, by the act or omission of a third party, the injured worker, or if he or she is deceased or physically or mentally incompetent, his dependents or personal representative shall be entitled to compensation under the provisions of this chapter and shall not by having received same be precluded from making claim against said third party.
W.Va.Code § 23-2A-l(a) (1990) (Repl.Vol. 1994). Therefore, it is apparent from this permissive statute, and undisputed by the parties, that Henry can maintain his independent cause of action against Benyo.
Furthermore, this application of W.Va.Code § 33-6-31(h) complies with the language of another provision of this statute, W.Va.Code § 33-6-31(b) (1995) (Repl.Vol. 1996). In developing our jurisprudence of statutory construction, we have directed that statutes relating to the same subject matter, or subparts of the same statutory provision, should be construed consistently with one another. See Syl. pt. 5, Ewing v. Board of Educ. of County of Summers, 202 W.Va. 228, 503 S.E.2d 541 (1998) (“ ‘Statutes relating to the same subject matter, whether enacted at the same time or at different times, and regardless of whether the later statute refers to the former statute, are to be read and applied together as a single statute the parts of which had been enacted at the same time.’ Syllabus point 1, Owens-Illinois Glass Co. v. Battle, 151 W.Va. 655, 154 S.E.2d 854 (1967).”). See also Syl. pt. 12, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995). Sub-seetion (b) requires an insurer providing un-derinsured motorist coverage to
pay the insured all sums which he shall legally be entitled to recover as damages from the owner or operator of an ... underinsured motor vehicle up to an amount not less than limits of bodily injury liability insurance and property damage liability insurance purchased by the insured without setoff against the insured’s policy or any other policy.
Interpreting this language, we held in Marshall v. Saseen that:
Under W.Va.Code, 33 — 6—31(b), an insurance carrier is statutorily required to pay to its insured, who has ... underinsured motorist coverage, all sums which the insured is legally entitled to recover as damages from the owner or operator of an ... underinsured motor vehicle. W.Va.Code, 33 — 6—31(b).
Syl. pt. 4, in part, 192 W.Va. 94, 450 S.E.2d 791 (1994) (emphasis added). As discussed previously, Henry has an undisputed statutory right to seek recovery from Benyo, the third-party tortfeasor chargeable with the motor vehicle accident giving rise to Henry’s claims in this appeal. Thus, pursuant to subsection (b), Henry is “legally ... entitled to recover” underinsured motorist benefits to compensate him for damages owing to him by Benyo. Consequently, the language of subsection (b), governing the recovery of un-derinsured motorist benefits, reinforces Henry’s right to seek from USF & G those benefits arising from the motor vehicle accident for which Savage could not be held liable.
Accordingly, we find that the circuit court correctly determined that Henry may also recover from USF & G underinsured motorist benefits under his employer’s motor vehicle insurance policy, provided Henry receives a judgment in his separate action against Benyo which would activate Savage’s under-insured motorist coverage. The reasons supporting this recovery are two-fold and do not improperly infringe upon the employer’s statutory immunity for work-related injuries covered by workers’ compensation. First, the pui-pose of underinsured motorist coverage is not to satisfy a debt of the insured owner of the policy containing such coverage. Rather, by purchasing underinsured motorist coverage, the insured has attempted to protect him/herself from losses occasioned by another motorist’s insufficient motor vehicle insurance coverage, where such other driver was at fault for the accident causing the damages incurred by the insured. See Syl. pt. 4, in part, State ex rel. Allstate Ins. Co. v. Karl, 190 W.Va. 176, 437 S.E.2d 749 (1993) (“An underinsured motorist carrier occupies the position of an excess or additional insurer in regard to the tortfeasor’s liability carrier, which is deemed to have the primary coverage.”). See also Kronjaeger v. Buckeye Union Ins. Co., 200 W.Va. 570, 579, 490 S.E.2d 657, 666 (1997) (“[I]n short, underinsured motorist coverage is intended to compensate parties for injuries caused by other motorists who are underinsured.” (internal quotations and citations omitted)); Castle v. Williamson, 192 W.Va. 641, 647, 453 S.E.2d 624, 630 (1994) (“Underinsurance coverage is an optional coverage that an insure[d] may purchase and is in the nature of excess coverage. It is not intended to be liability insurance.”).
Furthermore, by paying the premiums for such coverage, the insured receives a benefit from his/her insurer that will be paid upon his/her procurement of a judgment against the other motorist sufficient to activate such coverage. See Syl. pt. 2, State ex rel. Allstate Ins. Co. v. Karl, 190 W.Va. 176, 437 S.E.2d 749 (quoting Syl. pt. 4, State Auto. Mut. Ins. Co. v. Youler, 183 W.Va. 556, 396 S.E.2d 737 (1990)). Because underinsurance is intended to benefit the insured and to supplement his/her recovery from another driver in order to “make whole” the insured, an employee’s pursuit of underinsured motorist benefits from his/her employer’s insurer cannot be said to be an abrogation of the employer’s statutory immunity. In fact, the very nature of underinsured motorist coverage recognizes the comparative innocence of the insured holding such coverage, as the insurer, as part of its provision of such coverage, often and actively undertakes the defense of the other driver against whom a judgment in excess of his/her liability coverage limits is anticipated. See Syl. pts. 8 and 9, in part, State ex rel. Allstate Ins. Co. v. Karl, 190 W.Va. 176, 437 S.E.2d 749 (Syl. pt. 8, in part: “An underinsured motorist carrier may assume control of the litigation on behalf of the tortfeasor where the tortfeasor’s liability carrier has declined to defend.”; Syl. pt. 9, in part: “A liability carrier and an underinsured motorist carrier may agree to jointly defend an action by having their respective attorneys participate together in the defense.”).
Second, equity, fairness, and justice require that an employee, who is involved in a motor vehicle accident with a third-party during the course and scope of the employee’s employment, be permitted to recover, in addition to workers’ compensation benefits, underinsured motorist benefits under his/her employer’s motor vehicle insurance policy to compensate him/her for those losses that are not covered by workers’ compensation (e.g., pain and suffering, loss of enjoyment of life, loss of consortium, etc.). In order to protect and maintain the safety and well-being of his/her employees, an employer is required either to subscribe to the workers’ compensation fund or to self-insure for potential work-related injuries incurred by the employer’s employees. See W.Va.Code §§ 23-2-1, 23-2-9 (1995) (Supp.1997). An employer may also elect to obtain motor vehicle coverage for losses occasioned by underinsured motorists. Both of these insurances conceivably could provide benefits to the employer’s employees if they sustained damages or injuries covered by these policies. Under the facts of this appeal, Henry has undisputedly collected workers’ compensation benefits for his resultant injuries. Thus, the employee received the benefits occasioned by his employer’s subscription to the workers’ compensation fund. Likewise, Henry should be able to receive underinsured motorist benefits under Savage’s motor vehicle insurance policy if the judgment he obtains against Benyo would permit such a recovery. Otherwise, the employer essentially would have paid for motor vehicle insurance from which its employees could never obtain a benefit.
For these reasons, then, we hold that an employee who receives workers’ compensation benefits for injuries that result from a motor vehicle collision with a third-party which occurs within the course and scope of the employee’s employment is entitled to also assert, against his/her employer’s motor vehicle insurance carrier, a claim for underinsured motorist benefits, where the employee’s employer has in effect motor vehicle insurance providing underinsured motorist coverage and where the employee’s recovery against the third-party activates such underinsurance coverage.
Despite Henry’s ability to maintain his independent cause of action against Benyo to seek compensation for the injuries he occasioned as a result of this motor vehicle accident and to seek further remuneration, if warranted, from his employer’s un'derinsured motorist coverage, we note that the State Workers’ Compensation Commissioner is entitled to receive a portion of Henry’s recoveries, if any, in satisfaction of moneys it paid to Henry as workers’ compensation benefits for these injuries.
By the enactment of W.Va.Code, 23-2A-1 [1990], which provides that the Commissioner of Workers’ Compensation “shall be allowed subrogation” when a workers’ compensation claimant collects moneys from a third-party tortfeasor, the legislature expressly modified the usual, ordinary meaning of subrogation as it is used in that Code section by making the made-whole rule inapplicable. Therefore, the following provisions set forth by the legislature in W.Va.Code, 23-2A-l(b) [1990] shall be followed: “[T]he commissioner or a self-insured employer shall be allowed subrogation with regard to medical benefits paid as of the date of the recovery: Provided, That under no circumstances shall any moneys received by the commissioner or self-insured employer as subrogation to medical benefits expended on behalf of the injured or deceased worker exceed fifty percent of the amount received from the third party as a result of the claim made by the injured worker, his or her dependents or personal representative, after payment of attorney’s fees and costs, if such exist.” (emphasis added).
Syl. pt. 4, Bush v. Richardson, 199 W.Va. 374, 484 S.E.2d 490 (1997).
We note also that, regardless of the decision we have rendered or could have rendered in this case, the result of the Commissioner’s subrogation rights would be the same: the State workers’ compensation system would be entitled to recover, in subrogation, an amount not to exceed fifty percent of any sums recovered by Henry, from third-parties, as remuneration for medical benefits it has paid on his behalf. While this result seems to be patently unfair and to contravene simple logic, this outcome is indeed the one prescribed by the Legislature. Though equity dictates an injured employee should be permitted to obtain recoveries from varying sources to be “made whole” after his/her work-related accident, the Legislature has determined the right of the Commissioner to recover sums it has expended as workers’ compensation benefits to be greater. As a Court charged with reviewing and interpreting the will of the Legislature, we are constrained to abide by its mandates and to refrain from creating “judicial legislation.” Thus, the most appropriate tribunal to address and rectify these inequities is not the Supreme Court of Appeals of West Virginia but the Legislature of this Great State.
IV.
CONCLUSION
In sum, we conclude that an employee may recover underinsured motorist benefits under his/her employer’s motor vehicle insurance policy, where such policy provides underin-sured motorist coverage, as a result of a motor vehicle accident between the employee and a third-party nonemployee, even though the employee has received workers’ compensation benefits for his/her injuries resulting from the accident. Therefore, the decision of the Circuit Court of Ohio County is affirmed.
Affirmed.
. See infra text at page 619 for the complete text of Syllabus point 2 of Wisman v. Rhodes & Shamblin Stone, Inc., 191 W.Va. 542, 447 S.E.2d 5 (1994).
. In our examination and resolution of the issue presented by this appeal, we decline USF & G's invitation to rely upon the case of Vandall v. Dunham, No. 5:96-0550, 1997 WL 150092 (S.D.W.Va. Mar.26, 1997), as authority for our decision. Our reluctance stems from our previously articulated hesitation to rely upon decisions which the issuing court has not deemed suitable for official publication. See, e.g., Syl. pt. 3, Pugh v. Workers' Compensation Comm’r, 188 W.Va. 414, 424 S.E.2d 759 (1992) ("Unpublished opinions of this Court are of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of res judicata, collateral estoppel, or law of the case.”).
. Subsections (a) and (b) of W.Va.Code § 33-6-31 (1995) (RepI.Vol.1996) pertain to motor vehicle liability coverage generally, and uninsured and underinsured motorist coverages specifically-
. It should be noted, though, that where a person’s injuries might be covered by an employer’s underinsured motorist coverage but not by workers’ compensation (e.g., a nonemployee spouse or family member of the employer; a nonemployee guest of the employer; an employee who is not injured in the course or scope of his/her employment or as a result of such employment (i.e., an employee using a company vehicle for personal business); or an employee sustaining a work-related injury but who is not covered by workers’ compensation (i.e., an accident arising from an employer’s "deliberate intention”)), the language of subsection (h) does not appear to preclude the injured party from recovering such benefits under the employer’s insurance policy.
. As the issue is not presently before us, we decline to address whether Henry may also attempt to recover underinsured motorist benefits from his own motor vehicle insurance carrier.
. In reaching this decision, we note that other jurisdictions also have permitted an employee to recover underinsured motorist benefits from his/ her employer’s insurance policy for injuries resulting from a motor vehicle accident with a third-party nonemployee and for which the employee has received workers’ compensation benefits. See, e.g., Muller v. Tri-State Ins. Co. of Minnesota, 252 Neb. 1, 560 N.W.2d 130 (1997); Warner v. Continental/CNA Ins. Cos., 455 Pa.Super. 295, 688 A.2d 177 (1996). But see, e.g., Bouley v. City of Norwich, 222 Conn. 744, 610 A.2d 1245 (1992), superseded by statute as stated in Conzo v. Aetna Ins. Co., 243 Conn. 677, 705 A.2d 1020 (1998); National Union Fire Ins. Co. v. Figaratto, 423 Mass. 346, 667 N.E.2d 877 (1996).
. We stress that, by our holding today, we do not seek to require employers to provide underin-sured motorist coverage in their policies of motor vehicle insurance which cover their business vehicles. This is so because "underinsured motorist coverage is optional and not legally required.” Imgrund v. Yarborough, 199 W.Va. 187, 192-93, 483 S.E.2d 533, 538-39 (1997) (citations omitted). See also W.Va.Code §§ 17D-4-2 (1979) (Repl.Vol.1996) (establishing minimum limits of financial responsibility); 33-6-31(b) (1995) (Repl.Vol.1996) (requiring motorists to have uninsured motorist coverage in minimum amounts established by W.Va.Code § 17D-4-2, but not mandating underinsured motorist coverage); Deel v. Sweeney, 181 W.Va. 460, 463, 383 S.E.2d 92, 95 (1989) (same).
. We do not, by our decision today, consider whether the same result would obtain where the employer’s motor vehicle insurance policy, in whole or in part, specifically precludes recovery of underinsured motorist benefits by the injured employee if he/she has received workers’ compensation benefits for injuries resulting from the same accident. As the circuit court has not considered this issue in its decision of this case and as the parties have not raised this matter on appeal, we need not address further this hypothetical situation. See Syl. pt. 2, Trent v. Cook, 198 W.Va. 601, 482 S.E.2d 218 (1996) ("'[T]he Supreme Court of Appeals is limited in its authority to resolve assignments of nonjurisdictional errors to a consideration of those matters passed upon by the court below and fairly arising upon the portions of the record designated for appellate review.’ Syl. Pt. 6, in part, Parker v. Knowlton Constr. Co., Inc., 158 W.Va. 314, 210 S.E.2d 918 (1975).’’); Syl. pt. 2, Young v. Young, 158 W.Va. 521, 212 S.E.2d 310 (1975) (same).
. We note that the motor vehicle insurance statutes also preclude Henry from receiving a windfall recovery by granting to insurers the right to subrogation. See W.Va.Code § 33-6-31(0(1995) (Repl.Vol.1996). However, an insurer's right to subrogation resulting from underinsured motorist benefits it has paid does not become operative until the insured, to whom the underinsurance benefits were paid, has been fully compensated for his/her injuries and consequent damages. See Syl. pt. 11, State ex rel. Allstate Ins. Co. v. Karl, 190 W.Va. 176, 437 S.E.2d 749 ("The right of subrogation in W.Va.Code, 33-6-31(0 (1988), is not available where the policyholder has not been fully compensated for the injuries received and still has the right to recover from other sources. Subrogation is permitted only to the extent necessary to avoid a double recovery by such policyholder.” (no substantial changes to 1988 version of § 33-6-31(0 by 1995 amendment of this statute)). | [
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MAYNARD, Justice:
The cross appellants in this case, Dr. Thomas S. Clark and the West Virginia Board of Medicine (Board), appeal from the May 31, 1995 order of the Circuit Court of Monongalia County, West Virginia. The circuit court’s order modified the Board’s order revoking Dr. Clark’s license to practice medicine and surgery in the State of West Virginia and instead ordered that Dr. Clark’s medical license be suspended for six months and that Dr. Clark receive a public reprimand. Dr. Clark requests that the lower court’s order mandating suspension be reversed. The Board requests that its order mandating revocation be reinstated. These cases have been consolidated on appeal. We believe the circuit court correctly decided the issues but erred in concluding that only statutory sanctions could be considered when the administrative order was appealed. We are remanding this case for the circuit judge to impose community service as a sanction, as the judge originally desired. Accordingly, we affirm in part, reverse in part, and remand this case to the circuit court to enter an order consistent with this opinion.
I.
FACTS
Dr. Clark was a member of the West Virginia Board of Medicine from 1987 to 1992. In January 1992, the Executive Director of the Board (Director), Ronald Walton, received an anonymous letter which alleged Dr. Thomas S. Clark had abused drugs and had received treatment for the abuse. In February 1992, Walton, along with an investigator from the United States Drug Enforcement Administration (DEA) and a Board investigator, met with Dr. Clark and his attorney. At the meeting, the participants discussed the January 1992 letter, a 1990 DEA report showing Dr. Clark had been ordering Demerol, a Schedule II controlled substance, and information obtained from a Ripley pharmacy showing that Dr. Clark obtained Demerol in 1990.
At the meeting, Dr. Clark voluntarily disclosed that he had received treatment for the abuse of Demerol in 1987 at the Mayo Clinic in Rochester, Minnesota. However, Dr. Clark refused to consent to the release of his treatment records which were maintained by the Mayo Clinic. Dr. Clark explained he had provided the Demerol to a patient, but that he had no records of the patient’s visits or injections. He also explained that the Demerol he had obtained in Ripley was for use at the Ravenswood Aluminum Company clinic, that the Demerol had not been used, rather, it had been flushed down the toilet with no witnesses present. Following the meeting, Dr. Clark resigned as a member of the Board.
The Board served subpoenas upon Dr. Clark, requesting copies of documents. Some of the subpoenaed items were located and sent to the Board. However, Dr. Clark did not have a daily record or log of dispensed Schedule II controlled substances. The subpoenas were not signed by a member of the Board, as is authorized by W.Va.Code § 30 — 3—7(a) (2); rather, Walton’s secretary signed the name of the President of the Board.
Dr. Clark was invited to appear before the Board’s complaint committee four times, once in June, July, August, and September 1993. He declined to appear each time due to the unavailability of his attorney. Finally, a hearing was held before a hearing examiner in the Board offices on April 12-14, 1994, pursuant to a complaint filed in October 1993 by the Board.
Of the charges levied against Dr. Clark, the hearing examiner found that Dr. Clark had committed fraud on both the 1987 and 1989 renewal applications; that Dr. Clark failed to keep adequate medical records for one patient; that as the result of his failure to keep adequate medical records, Dr. Clark prescribed Demerol other than in good faith and in a therapeutic manner; that Dr. Clark failed to keep a log of dispensed Schedule II controlled substances as well as order forms and destruction forms for controlled substances; that Dr. Clark engaged in unprofessional, dishonorable, and unethical conduct to the extent he was found to have committed the above violations; and that Dr. Clark violated the public trust. The hearing examiner stated that “[t]he other allegations [excluding fraud] would not themselves be sufficient to justify the revocation of the respondent’s medical license.” Based on the finding of fraud, the hearing examiner recommended that Dr. Clark’s license to practice medicine and surgery be revoked.
On September 16, 1994, the Board issued its final order, which approved the recommendations of the hearing examiner with the following modifications and enhancements. The Board agreed Dr. Clark failed to maintain any record or log of dispensed Schedule II controlled substances, but found this was not a violation of federal law because Dr. Clark did not regularly engage in the dispensing of controlled substances or charge for his services or for the substances dispensed. The Board agreed Dr. Clark failed to keep written records justifying the course of treatment of a patient, but added the word “complete” before “written records.” The Board found contrary to the hearing examiner with regard to the issue of whether Dr. Clark knew or should have known he was violating federal laws; the Board found it was under no obligation to prove knowledge on the part of Dr. Clark and that Dr. Clark violated state law regardless of his knowledge of federal law. The Board also found that Dr. Clark violated federal record keeping regulations. The Board’s order revoked Dr. Clark’s medical license.
Dr. Clark obtained a stay of the Board’s order in September 1994 and appealed the order to circuit court. Following a review of the administrative decision, the circuit court issued a well-reasoned, fair and persuasive memorandum opinion. A copy of the court’s memorandum opinion is attached as an Appendix to this opinion.
After carefully reviewing the record and considering the arguments and briefs submitted by both sides, the circuit court ordered that the Board’s order be modified to provide for suspension of Dr. Clark’s license to practice medicine and surgery for six months and a public reprimand. It is from this order that both Dr. Clark and the Board appeal to this Court.
II.
STANDARDS OF REVIEW
W.Va.Code § 30-3-14(k) (1989) provides for judicial review of an administrative ruling, by stating in pertinent part: “Any person against whom disciplinary action is taken pursuant to the provisions of this article has the right to judicial review as provided in articles five and six [§§ 29A-5-1 et seq. and 29A-6-1 et seq.], chapter twenty-nine-a of this code.” When an administrative ruling is appealed to the circuit court, the standard of review is stated in Syllabus Point 1, HCCRA v. Boone Memorial Hospital, 196 W.Va. 326, 472 S.E.2d 411 (1996), as follows:
“‘Upon judicial review of a contested case under the West Virginia Administrative Procedurefs] Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the case for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are “(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” ’ Syl. Pt. 2, Shepherdstown Volunteer Fire Department v. Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).” Syllabus Point 1, St. Mary’s Hospital v. State Health Planning and Development Agency, 178 W.Va. 792, 364 S.E.2d 805 (1987).
This Court further explained in Boone Memorial Hospital, 196 W.Va. at 335, 472 S.E.2d at 420, that “[u]nder the Administrative Procedures Act, ‘the task of the circuit court is to determine “whether the [agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ ” Frymier-Halloran v. Paige, 193 W.Va. 687, 695, 458 S.E.2d 780, 788 (1995) quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136, 153 (1971).”
The right to appeal an adverse decision of the circuit court to this Court is provided in W.Va.Code § 29A-6-1 (1964), which states:
Any party adversely affected by the final judgment of the circuit court under this chapter may seek review thereof by appeal to the supreme court of appeals of this state, and jurisdiction is hereby conferred upon such court to hear and entertain such appeals upon application made therefor in the manner and within the time provided by law for civil appeals generally.
This Court articulated the standard of review on appeal by stating, “In cases where the circuit court has amended the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of discretion standard and reviews questions of law de novo.” Syllabus Point 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
These standards were summarized by this Court in Martin v. Randolph County Board of Education, 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995), which states, “This Court reviews decisions of the circuit under the same standard as that by which the circuit [court] reviews the decision of the ALJ.... We review de novo the conclusions of law and application of law to the facts.”
III.
DISCUSSION
On appeal, both sides, the Board and Dr. Clark, assign numerous errors. We find that the two central assignments of error that determine the outcome of this case are the two issues with which the trial court dealt, that is, the fraud issue and the medical records issue. We believe the circuit court reached the correct decision as to each of these issues; therefore, we affirm the court’s ruling on these issues. As we believe the other errors assigned by the parties have no merit, we do not consider them.
We pause here because we wish to comment on one issue. We note that the practice of allowing the secretary of the Executive Director of the Board to sign subpoenas is not the practice contemplated by statute. W.Va.Code § 30-3-7(a)(2) (1980) states in pertinent part, “The board may ... subpoena witnesses and documents]!]” 11 C.S.R. § 3.16.1 (1989) provides, “The president or his or her designee shall have the power to issue subpoenas or subpoenas duces tecum pursuant to the provisions set forth in West Virginia Code subsection (b), section one, article five, chapter twenty-nine-a.” The President of the Board is limited as to whom he or she may designate to issue subpoenas when he or she chooses not to sign the subpoenas. W.Va.Code § 29A-5-l(b) (1964) provides guidance and states in pertinent part:
For the purpose of conducting a hearing in any contested case, any agency which now has or may be hereafter expressly granted by statute the power to issue subpoenas or subpoenas duces tecum or any member of the body which comprises such agency may exercise such power in the name of the agency. Any such agency or any member of the body which comprises any such agency may exercise such power in the name of the agency for any party upon request. Under no circumstances shall this chapter be construed as granting the power to issue subpoenas or subpoenas duces tecum to any agency or to any member of the body of any agency which does not now by statute expressly have such power.
As the Board is granted statutory authority to issue subpoenas, clearly the preferred practice is for the President to personally sign all subpoenas, and when that is not possible or practicable, then the better practice is to designate a member of the Board rather than the investigator’s secretary to sign subpoenas.
The Fraud Issue
The Board charged Dr. Clark with fraudulently completing the 1987 and 1989 Applications for Biennial Registration of License to Practice Medicine and Surgery in the State of West Virginia because Dr. Clark failed to report that he had entered a drug treatment program. In fact, Dr. Clark answered “no” on both applications when asked, “During the last registration period, have you been addicted to or received treatment for narcotic or alcohol dependency?” The first application in question covered the time period from July 1, 1985 to June 30, 1987. On June 1,1987, Dr. Clark signed and dated the second application which covered the time period of July 1, 1987 to June 30, 1989. The Board stated that the failure by Dr. Clark to report drug treatment on the application forms “eonstitute[d] a violation of West Virginia Code § 30-3-14(c)(l), (17), and 11 CSR 1A 12.1(a), renewing a license to practice medicine by fraudulent misrepresentation, for which violation the Respondent may be disciplined by the Petitioner.” The hearing examiner agreed with the Board that Dr. Clark “renewed his license to practice medicine by fraudulent misrepresentation!.]” The Board adopted this finding.
Dr. Clark appealed to the circuit court, which found “the West Virginia Board of Medicine (“Board”) was in error when it found that Dr. Thomas Clark (“Dr. Clark”) renewed his license to practice medicine by fraudulent misrepresentation in 1987 and 1989.” The court concluded Dr. Clark was not compelled by law to report his drug treatment on the applications. The court reasoned that the hearing examiner focused on the drug treatment Dr. Clark received in the spring or summer of 1987, which oc curred after the application for biennial registration had been filed, and that Dr. Clark did not falsely answer the question on either application. In reversing the administrative decision, the trial court stated:
[T]he Board was in error when it found that Dr. Clark renewed his license to practice medicine by fraudulent misrepresentation in 1987 and 1989.... The Court also holds that the revocation of Dr. Clark’s medical license is clearly unwarranted based upon a proper application of the law to the facts of this case.
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By choosing to receive drug treatment during the month of June, 1987, Dr. Clark may have been incredibly lucky, because that was the only time period outside the scope of his answers on the 1987 application for license renewal, or he may have received some very good legal advice. Or, as most of us suspect, he premeditatedly planned to be treated in June, 1987 — after submitting his application on June 1, 1987, to avoid disclosing his disease. Obliqueness, however, is not fraud.
While we do not condone Dr. Clark’s “obliqueness” and certainly the better practice would have been full disclosure, we also recognize that Dr. Clark self-reported his problem and sought treatment on his own. This is the type of conduct we wish to encourage. We have no desire to place a chilling effect upon professionals who wish to self-report and seek help when they realize they have a problem. We also note that Dr. Clark has been practicing medicine for more than ten years since he voluntarily sought treatment and he has had no other reported complaints or problems during that entire period to .date.
The hearing examiner wrongly determined that Dr. Clark had a duty to supplement his answers on the application forms. The hearing examiner failed to cite any law to justify this conclusion. Simply put, there did not exist in the law at that time a duty to supplement. The trial court stated that perhaps Dr. Clark had a moral duty to supplement, but the court was not sitting as a moral court. The trial court correctly ruled on this de novo question of law that Dr. Clark did not have a duty to supplement. We affirm this ruling.
The Medical Records Issue
The Board charged Dr. Clark with failing to maintain medical records as to his care and treatment of a patient he regularly injected with Demerol, thereby violating W.Va. Code §§ 30 — 3—14(c)(ll) and (17) and 11 C.S.R. § lA.12.1(u). The hearing examiner found that the documents submitted by Dr. Clark contained inconsistencies and inaccuracies and that no records were submitted “which showed a consistent chronology justifying his course of treatment of the patient and setting forth a record of examinations and treatments rendered.”
The Board also charged Dr. Clark with ordering Demerol and Dexedrene from various suppliers without maintaining any record or log of dispensed Schedule II substances, thereby violating W.Va.Code § 30-3-14(c)(17) and 11 C.S.R. §§ lA.12.1(e), (j), 12.2(h), and 11 C.S.R. §§ 5.9.3 and 11. The Board charged Dr. Clark with disposing and destroying Demerol in such a way that he violated 21 C.F.R. § 1307.21(a)(2), W.Va. Code § 30-3-14(c)(17), and 11 C.S.R. §§ lA.12.1(o) and (bb). The hearing examiner concluded that the record supported the allegation that the respondent prescribed and injected Demerol without keeping written records and that the respondent failed to maintain any record or log of dispensed Schedule II controlled substances. The Board found Dr. Clark failed to maintain proper and adequate medical records. When appealed to the circuit court, the court concluded “that the Board properly found that Dr. Clark failed to maintain proper and adequate medical records.” There is no showing this conclusion was clearly wrong. The trial court properly affirmed the Board’s order on this issue; therefore, we affirm the ruling of the trial court.
Sanctions
As stated earlier, we believe the circuit court erred in determining it could not sanction Dr. Clark by requiring that he perform community service. The court stated it best in its memorandum opinion when it said:
A more difficult issue is what is the appropriate punishment for Dr. Clark_ If I had the right to do so, considering society’s needs, Dr. Clark would be ordered to give a generous amount of his time providing free medical care for the downtrodden. That he should devote his knowledge and talents to service public needs in atonement for his indiscretions and refusal to follow the rules seems to be fair and to fit the conduct condemned by the Board.
Unfortunately, the court determined that option was not available. As we will discuss below, we believe the option of community service was available to the court. We are, therefore, reversing and remanding this case to the circuit court to impose community service as a sanction upon Dr. Clark. Of course, of necessity the length and type of community service to be performed by Dr. Clark will be determined by the Board of Medicine.
We agree with the circuit court that the disciplinary measures listed in W.Va.Code § 30-3-14(i) (1989), to which the court referred, do not provide for community service. However, the Board’s legislative rules grant the Board authority to require a doctor to provide free public or charitable service when the Board finds a doctor should be disciplined. The sanctions the Board may impose are found in 11 C.S.R. § 1A.12.3 (1994), which states:
12.3. When the Board finds that any applicant is unqualified to be granted a license or finds that any licensee should be disciplined pursuant to the West Virginia Medical Practice Act or rules of the Board, the Board may take any one or more of the following actions:
a. Refuse to grant a license to an applicant;
b. Administer a public reprimand;
e.Suspend, limit or restrict any license for a definite period, not to exceed five (5) years;
d. Require any licensee to participate in a program of education prescribed by the Board;
e. Revoke any license;
f. Require the licensee to submit to care, counseling or treatment by physicians or other professional persons;
g. Assess a civil fine of between $1,000 and $10,000 and/or assess cost of the Board’s investigation and administrative proceedings against the licensee;
h. Require him or her to practice under the direction or supervision of another practitioner or
i. Require the licensee to provide a period of free public or charitable service.
In addition to and in conjunction with these actions, the Board may make a finding adverse to the licensee or applicant, but withhold imposition of judgment and penalty, or it may impose the judgement [sic] and penalty but suspend enforcement of penalty and place the physician or podiatrist on probation, which probation may be vacated upon noncompliance with such reasonable terms as the Board may impose. In its discretion, the Board may restore and reissue a license to practice medicine or podiatry issued under the West Virginia Medical Practice Act or any antecedent law, and as a condition thereof, it may impose any disciplinary or corrective measure provided for in this Rule or in the West Virginia Medical Practice Act. (Emphasis added).
W.Va.Code § 29A-l-2(d) (1982) states, in pertinent part, “Legislative rule includes every rule which, when promulgated after or pursuant to authorization of the legislature, has ... the force of law[.]” This Court has previously said that rules adopted pursuant to the State Administrative Procedures Act, W.Va.Code §§ 29A-1-1 to 29A-7-4, “have the force and effect of law.” State ex rel. Kincaid v. Parsons, 191 W.Va. 608, 610, 447 S.E.2d 543, 545 (1994); State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981); Reed v. Hansbarger, 173 W.Va. 258, 314 S.E.2d 616 (1984); Appalachian Power Co. v. State Tax Dept. of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995). See also Syllabus Point 2, HCCRA v. Boone Memorial Hospital, 196 W.Va. 326, 472 S.E.2d 411 (1996).
Neither party in the case sub judice questions whether the rules adopted by the West Virginia Board of Medicine and approved by the Legislature were properly formulated. Both sides seem to take for granted that the rules were properly adopted and ratified. Therefore, these legislative rules have the force and effect of law. When the case was reviewed by the circuit court, the judge determined he could not impose community service as a disciplinary measure. Because legislative rules have the force and effect of law, we believe any disciplinary sanction the Board is authorized to levy by rule is also available to the circuit court. Therefore, we hold that when the circuit court finds the rights of a petitioner have been prejudiced because of one of the six reasons set forth in W.Va.Code § 29A-5-4(g) and the court exercises its discretion to reverse, modify or vacate the ruling of the West Virginia Board of Medicine, then any disciplinary sanction the Board of Medicine is authorized to levy pursuant to legislative rule or statute is also available to the circuit court. In lieu of the license suspension, the circuit court had the power to consider and impose the sanctions included in 11 C.S.R. § 1A.12.3 (1994), including community service which involves free public or charitable service, along with the sanctions included in W.Va.Code § 30-3-14(i) (1989).
In conclusion, we find the circuit court correctly decided each issue with which it was confronted but erred in determining it could only impose statutory sanctions upon Dr. Clark. Therefore, we affirm in part, reverse in part, and remand this case to the circuit court to impose, in lieu of suspension, the sanction of community service which is provided for in the legislative rules and the public reprimand. The court is directed to enter an order consistent with this opinion.
Affirmed in part, reversed in part, and remanded with directions.
STARCHER, J., deeming himself disqualified, did not participate in the decision in this case.
THOMAS W. STEPTOE, Jr., Judge, sitting by special assignment.
APPENDIX
IN THE CIRCUIT COURT OF MONONGALIA COUNTY, WEST VIRGINIA
THOMAS S. CLARK, M.D., PETITIONER V. WEST VIRGINIA BOARD OF MEDICINE, RESPONDENT
CIVIL ACTION NO. 94-C-AP-72
MEMORANDUM OPINION
Dr. Thomas S. Clark (Dr. Clark) has appealed a Final Order of the West Virginia Board of Medicine (Board) dated the 12th day of September 1994. The Board’s Order revoked Dr. Clark’s license to practice medicine and surgery in the State of West Virginia.
This opinion concludes that the Board was in error when it found that Dr. Clark renewed his license to practice medicine by fraudulent misrepresentation in 1987 and 1989. The Court finds that the Board properly found that Dr. Clark failed to maintain proper and adequate medical records. The Court also holds that the revocation of Dr. Clark’s medical license is clearly unwarranted based upon a proper application of the law to the facts of this case.
The Procedures for Appeals of Decisions by Administrative Agencies are governed by the State Administrative Procedures Act, W.Va.Code, 29A-1-1 et seq. [1964].
Upon judicial review of a contested case under the Administrative Procedure Act, a circuit court may affirm the order or decision of the agency, or remand the case for further proceedings. W.Va.Code, 29A-5^4(g). This Court can only reverse, vacate or modify the order or decision of the Board if substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are:
(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. W.Va.Code, 29A-5^t(g). See Syl. pt. 2 Shepardstown [sic] Volunteer Fire Department v. State ex rel. State Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).
A circuit court reviewing an administrative decision or order under W. Va.Code, 29A-5-4(g)(5) [1964], is permitted an “extremely limited scope of review.” Gino’s Pizza of W. Hamlin v. WVHRC, 187 W.Va. 312, 317, 418 S.E.2d 758 (1992). On this point, the Court said in Frank’s Shoe Store v. W.Va. Human Rights Commission, 179 W.Va. 53, 56, 365 S.E.2d 251, 254 [1986]:
[A] reviewing court must evaluate the record of the agency’s proceeding to determine whether there is evidence on the record as a whole to support the agency’s decision. The evaluation is conducted pursuant to the administrative body’s findings of fact, regardless of whether the court would have reached a different conclusion on the same set of facts. Anderson v. City of Bessemer, 470 U.S. 564, 574-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518, 528 (1985).
Since this is just a trial court opinion and enough trees have already been devoured for the mountains of paper filed in this matter, I will not repeat the charges in the Complaint or all of the recommended decisions of the Hearing Examiner as modified and adopted by the Board, or all of the arguments of counsel. If an issue raised on appeal is not discussed in this Opinion, counsel is to conclude (however disappointing this may be), that I have found the argument to be without merit.
In light of this Court’s limited power of review and the record reviewed by the Court, this appeal turns on the Board’s Findings and Conclusions on these two issues:
(1) Did Dr. Clark commit fraud on his renewal applications?
and
(2) Were proper and adequate medical records maintained by Dr. Clark?
The answer to question (1) is “no”; the answer to question (2) is “no”.
I.
THE FRAUD ISSUE
The Board based its decision on a mistake of law and was clearly wrong when it concluded that:
It has been clearly and convincingly demonstrated that the respondent renewed his license to practice medicine by fraudulent misrepresentation in 1987 and in 1989 as charged in the Board’s complaint in violation of West Virginia Code sec. 30-3-14(c)(1), (17) and 11 CSR 1A 12.1(a).
It is the conclusion of this Court that:
Dr. Clark was not compelled by law to report his June 1987 drug treatment on his 1987 and 1989 applications for biennial registration of license to practice medicine and surgery in the State of West Virginia and he did not renew his license to practice medicine by fraudulent misrepresentation.
DISCUSSION
On June 1, 1987, Dr. Clark signed and dated an application for biennial registration of license to practice medicine and surgery for the period of July 1, 1987, to June 30, 1989. The Board had the right to deny Dr. Clark’s license to practice medicine if he was guilty of fraudulent misrepresentation. W.Va.Code 30-3-14(e)(l), (17). The heart of the Board’s fraudulent misrepresentation finding against Dr. Clark is found in his “no” answer to question 6, “During the last registration period have you ... been addicted to or received treatment for narcotic or alcohol dependency.” The last registration period referred to in the question was July 1, 1985 to June 30,1987.
Although the Hearing Examiner found that Dr. Clark became addicted to Demerol in 1987, there was no finding that Dr. Clark had been addicted to narcotic or alcohol dependency from July 1, 1985 to June 30, 1987. Instead, the Hearing Examiner focused on the treatment Dr. Clark received in the spring-summer of 1987 and the Hearing Examiner’s contention that Dr. Clark had a responsibility to report his drug treatment even though the Hearing Examiner found that the treatment occurred after the application for biennial registration had been filed-
It is critical in the consideration of this issue to remember that we are not asking whether Dr. Clark’s actions were reprehensible. It is fraud that is being charged here— not reprehensible behavior. Dr. Clark did not lie in answer to any of the questions on his 1987 Renewal Application. That fact is not disputed. But, according to the Hearing Examiner’s mistaken view of the law, which was adopted by the Board, Dr. Clark had a legal duty to supplement his answers on the 1987 Application. Most people would agree that Dr. Clark had a moral duty to do that. I have no doubt about that. He also had a duty to his patients and to the medical community to educate them about his disease. That he did not do so is a negative reflection on his strength of soul. But the Board does not sit a board of morality — legal precepts must govern the Board’s conclusions of law. There was no law in 1987 — no statute — no regulation — no case law — requiring Dr. Clark to bring the Board up to date on his personal problem.
The law must be followed. The Board cannot end a medical career by the spinning of words into theories which are then called facts. If loopholes in the law are used and abused, legislative bodies change the law. And that is what the Board did (or tried to do) in 1991 when it changed its application form to require practitioners to supplement application forms.
The Hearing Examiner and the Board also found that when Dr. Clark, on his application for biennial registration for the period July 1, 1989 to June 30, 1991, answered “No” to question No. 8, “During the last registration period [July 1, 1987 to June 30, 1989], have you been addicted to or received treatment for any chemical substance or alcohol dependency,” he gave a false answer.
To reach this conclusion, the Hearing Examiner relied upon the testimony of Ellen Starkey, a licensed clinical social worker, who formerly worked with Dr. Clark. Ms. Starkey testified that Dr. Clark returned from treatment on July 3rd. However, on cross examination, Ms. Starkey said that the reason she testified that Dr. Clark returned from a drug treatment on July 3, 1987, was because that was the day he got off the plane and came to the office. But, Ms. Starkey then admitted that she did not know the date Dr. Clark terminated his treatment. It is not easy to define exactly what is meant by the burden of proof standard “clear and convincing evidence” — but I do know that the Hearing Examiner clearly didn’t have clear and convincing evidence on this determinative fact.
By choosing to receive drug treatment during the month of June, 1987, Dr. Clark may have been incredibly lucky, because that was the only time period outside the scope of his answers on the 1987 application for li cense renewal, or he may have received some very good legal advice. Or, as most of us suspect, he premeditatedly planned to be treated in June, 1987 — after submitting his application on June 1, 1987, to avoid disclosing his disease. Obliqueness, however, is not fraud.
Dr. Clark’s actions were not right — because he, at the very least, violated the spirit of the law. Pair enough. But, the charge is fraud — not right or wrong — not candor or obliqueness — and fraud was not proven by clear and convincing evidence.
II.
WHAT DR. CLARK DID AND DID NOT DO
There is clear and convincing evidence that Dr. Clark was undeniably wrong in several respects.
Dr. Clark:
1. Failed to keep a separate daily log or record of dispensed Schedule II controlled substances as required by State statute and regulations;
2. Failed to comply with Federal and State law as to the procedure to be followed for the disposing and destruction of Schedule II controlled substances;
3. Failed to complete fully DEA Form 222 giving the names and addresses of suppliers and the amounts and dates of scheduled controlled substances received;
4. Failed to keep complete medical records on one patient who was treated with Demerol prescriptions and injections over a four year period;
5. Failed to live up to the standards of a public official in a position of public trust as a member of the West Virginia Board of Medicine from August, 1987 through February 1992.
III.
JUST PUNISHMENT
In the Complaint against Dr. Clark, allegations are made that his violations of West Virginia Statutory and Regulatory Law, rise to the level of unprofessional, dishonorable and unethical conduct, and that his conduct is of a character likely to deceive, defraud or harm the public.
Based upon the Findings of Fact and Conclusions of Law made by the Board, Dr. Clark is to lose his license to practice medicine. I have found that the most damning allegations against Dr. Clark were not proved by clear and convincing evidence and cannot, therefore, be used to revoke his medical license. Thus, the focus of the issue of just punishment for Dr. Clark turns on whether Dr. Clark’s violations of statutory and regulatory law, supported by the record in this case, justify his removal from the practice of medicine.
In revoking Dr. Clark’s license, the finding that he falsely and fraudulently submitted license renewal applications was given great weight by the Board. The Hearing Examiner conceded that all the other allegations, other than the issue of fraud, “... would not themselves be sufficient to justify the revocation of the respondent’s medical license.” Recommended decision of the Hearing Examiner at 52.
The Board also agreed that the record did not support the allegation that Dr. Clark prescribed controlled substances for himself in August and September, 1989. Furthermore, the Board found that the record did not support the allegation that Dr. Clark is unable to practice medicine with reasonable skill and safety for patients by reason' of excessive use and abuse of drugs.
Based upon the record in this case, there is no basis for the finding of the Board that Dr. Clark is not qualified to practice medicine and surgery in West Virginia. To conclude, as the Board did, that Dr. Clark is unqualified to practice medicine for failing to maintain any medical records on one patient is unjustified in fact and in law. The sin addressed in Code 30 — 3—14(c)(ll), and West Virginia Board of Medicine Regulation 11 CSR 1A 12, l(u), is the failure to keep written records “justifying the course of treat ment of a patient” — not, simply, the failure to keep “complete” medical records. In a similar vein, the Board’s conclusion that Dr. Clark prescribed and dispensed Demerol to a patient other than in good faith and in a therapeutic manner, which conclusion was also based upon a finding that Dr. Clark failed to keep “complete” medical records, is, for that reason, also a flawed conclusion.
Based upon the Findings of Fact supported by clear and convincing evidence, it is not proper and in the public interest, health, welfare and safety, to revoke Dr. Clark’s license to practice medicine and surgery in the State of West Virginia.
The decision of the Board to revoke is now clearly wrong in view of the whole record and is an unwarranted exercise of discretion.
A more difficult issue is what is the appropriate punishment for Dr. Clark. The options are limited by statute. If I had the right to do so, considering society’s needs, Dr. Clark would be ordered to give a generous amount of his time providing free medical care for the downtrodden. That he should devote his knowledge and talents to service public needs in atonement for his indiscretions and refusal to follow the rules seems to be fair and to fit the conduct condemned by the Board. Unfortunately, this option is not available to the Court.
That Dr. Clark should be forbidden from practicing medicine, perhaps forever, is undoubtedly wrong. The right to practice medicine is not the private property of the Board. It is a punishment which should be assigned only to those who commit really putrid violations. There is no reason, grounded upon what Dr. Clark did and did not do in this case, to sentence him to that uncertain abyss for him of living with the interminable revocation of his medical license.
Justice must see the human element in any case. It is critical to keep in mind that Dr. Clark confronted his own affliction. His treatment in 1987 was not a malevolent act— it was a good one. That he should have dealt with the problem differently cannot be contested, even by his most ardent supporters. But, this is 1995. Eight years have passed since Dr. Clark obtained drug treatment. The opportunity for fresh or even timely justice has long passed. The issue is not whether he deserves a place in William Bennett’s The Book of Virtues, but the justness of his banishment from medicine. What purpose is served by destroying Dr. Clark’s life?
It is not only an overkill, but it is foolish for the Board to end this man’s medical career. Without question, he made mistakes — some of them serious. But, surely those mistakes do not justify the use of the guillotine on Dr. Clark’s career.
I am of the opinion that the Board’s Order must be modified. Upon the facts proved by clear and convincing evidence, the Board may impose upon Dr. Clark:
1. A public reprimand.
2. A suspension of his license to practice medicine and surgery for a period of six months.
/S/ Ronald E. Wilson JUDGE
. The trial judge stated in his memorandum opinion that community service was an appropriate sanction for Dr. Clark's "indiscretions and refusal to follow the rules,” but the judge also stated that option was not available to the court as a possible penalty.
. The Board filed a lawsuit in the federal district court in Minnesota seeking the release of Dr. Clark's treatment records. The court granted Dr. Clark summary judgment. The Board's appeal to the Eighth Circuit Court of Appeals was eventually dropped.
. The biennial registration form was modified in 1991 to expressly state that a duty to supplement exists. The warning that was then added to the form states:
REMEMBER, REGARDLESS OF THE DATE OF YOUR SIGNATURE, YOUR STATEMENTS ABOVE RELATE TO THE ENTIRE PERIOD JULY 1, 1989, TO JUNE 30, 1991. IF, AFTER YOU SIGN AND DATE THIS FORM, AND PRIOR TO JULY 1, 1991, ANY ANSWER SHOULD CHANGE FOR ANY REASON, YOU HAVE A DUTY TO NOTIFY THE BOARD AND AMEND YOUR FORM.
. W.Va.Code § 30-3-14(1) (1989) states:
(i)Whenever it finds any person unqualified because of any of the grounds set forth in subsection (c) of this section, the board may enter an order imposing one or more of the following:
(1) Deny his application for a license or other authorization to practice medicine and surgery or podiatry;
(2) Administer a public reprimand;
(3) Suspend, limit or restrict his license or other authorization to practice medicine and surgery or podiatry for not more than five years, including limiting the practice of such person to, or by the exclusion of, one or more areas of practice, including limitations on practice privileges;
(4) Revoke his license or other authorization to practice medicine and surgery or podiatry or to prescribe or dispense controlled substances;
(5) Require him to submit to care, counseling or treatment designated by the board as a condition for initial or continued licensure or renewal of licensure or other authorization to practice medicine and surgery or podiatry;
(6) Require him to participate in a program of education prescribed by the board;
(7) Require him to practice under the direction of a physician or podiatrist designated by the board for a specified period of time; and
(8) Assess a civil fine of not less than one thousand dollars nor more than ten thousand dollars. | [
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McCUSKEY, Justice:
This certified question comes before the Court upon the petition of Norfolk & Western Railway Co., defendants in a suit in the Circuit Court of Jefferson County. Respondent had commenced a civil suit in the Circuit Court of Jefferson County seeking declaratory judgement that it had obtained a prescriptive easement across active railroad trackage owned in fee simple by the Petitioner, thereby creating a private railroad grade crossing. The circuit court allowed Petitioner’s motion to dismiss, in which Petitioner averred, that, as a matter of law, prescriptive easement could not lie against the trackway of a railroad. Respondents filed a motion to alter or amend the judgement, or in the alternative to certify the question. In response to this motion the circuit court altered its answer, allowing prescriptive easement to lie against the trackway of a railroad and certified the question to this Court. For the reasons enumerated below, we answer the certified question in the negative.
I.
FACTUAL AND PROCEDURAL HISTORY
A & M Properties, Inc. (A & M) is the owner of a tract of property in Shepherds-town District, Jefferson County, West Virginia. The Norfolk & Western Railway Co., (N & W) a subsidiary of Norfolk Southern Railway Co., owns a sixty-six foot wide strip of real property running through Shepherds-town District, upon which is laid the trackbed of the Norfolk & Western Railway and which is, for a segment of its length, adjacent to the tract owned by A & M. A & M purchased the aforementioned tract on May 14, 1990, and for a period after that time, along with its various invitees and licensees, made use of a dirt road which extended across the tracks of the Norfolk & Western Railway Co.
A & M claimed that it made use of the crossing over N & W’s tracks as a matter of right. A & M also claimed that the railroad had notice of its use from the existence of the crossing and the position of certain buildings on the tract. As N & W had never ordered A & M to desist, A & M’s belief was that it had implicit permission from N & W to continue to use the crossing.
In April of 1995, the events which gave rise to this suit transpired. N & W prevented the further use of the grade crossing by A & M by placing a gate across the road on either side of the tracks. Later, the entire portion of the crossing which was on N & W’s property was removed by N & W personnel.
Subsequently, A & M brought suit against N & W in the Circuit Court of Jefferson County. A & M alleged that the use of the grade crossing was open and notorious, continuous and uninterrupted for a period of five years on its part, and for more than ten years when the use of the crossing by its predecessors in title was tacked; thus, A & M had established a valid prescriptive easement to cross the track of the Norfolk & Western Railway Co. in the location of the grade crossing. A & M also asked for $10,-000.00 in damages as compensation for its inconvenience, deprivation of access, property damage, and additional costs resulting from the destruction of the grade crossing.
N & W made a motion to dismiss alleging that a prescriptive easement would not lie against a railroad trackway, due to the functional equivalence of a railroad to a public highway. The Circuit Court of Jefferson County granted N & W’s motion to dismiss. However, the Circuit Court of Jefferson County then granted A & M’s motion to alter or amend the judgment and certified the following question to this Court: “Whether West Virginia law provides a cause of action for prescriptive easement against property owned in fee simple by a railroad.” The facts of this case, however, show that the easement sought by plaintiff was made not merely against property owned in fee simple by a railroad, but upon the actual trackway of the railroad. Therefore, answering this question in the context of these particular facts, it is the opinion of this Court that it does not.
II.
STANDARD OF REVIEW
The standard of review to be applied in reviewing a certified question was recently set forth in Syllabus Point One of Gallapoo v. Wal-Mart Stores, Inc. 197 W.Va. 172, 475 S.E.2d 172 (1996), wherein we held that “[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo.”
III.
DISCUSSION
It is axiomatic to state that the Constitution of West Virginia is the supreme law of this State. In that august document we find language to the effect that “[rjailroads heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways....” Constitution of West Virginia) Art. XI, § 9. This was no innovation by our founders, for, as Lord Chief Justice Hale noted more than three hundred years ago in the legal treatise “De Portibus Maris”, “if a man set out a street in or near a building on his own land, it is no longer bare private interest, but is affected by a public interest.” Lord Chief Justice Hale, “De Portibus Maris”, 2 Hargrave’s Law Tracts, 78 (Hargrave, ed.) quoted in Laurel Fork & Sand Hill Railroad Co. v. West Virginia Transportation Co., 25 W.Va. 324, 336 (1884). This ancient doctrine regarding construction of private thoroughfares for public use, no less relevant now than when it was first enunciated, is the hinge upon which the issue presented by this case turns.
Railroads in West Virginia have traditionally been recognized as uniquely situated corporations. No less than five sections of Article XI of the Constitution of this state deal with railroads. The special status of railroads as quasi-public corporations was foremost in the minds of the framers of our Constitution. Only twelve years after the adoption of our current Constitution, this Court addressed its provisions concerning railroads and found that the result of the combination of these provisions was that railroads had the status of a quasi-public corporation. Laurel Fork & Sand Hill Railroad Co. v. West Virginia Transportation Co., 25 W.Va. 324 (1884).
As recently as 1982, this Court continued to state that railroads have a dual public-private status. In that year, Justice Neely provided a clear exposition of the traditional current of thought regarding the status of railroads when he stated that despite the fact that they were private corporations “railroads are not viewed strictly as private corporations since they are publicly regulated common carriers. Essentially, a railroad is a highway dedicated to the public use. This dedication imparts to the railroad the status of a quasi-public corporation.” Marthens v. B & O Railroad Co., 170 W.Va. 33, 37, 289 S.E.2d 706, 711 (1982) citing Eckington & Soldiers’ Home R. Co. v. McDevitt, 191 U.S. 103, 24 S.Ct. 36, 48 L.Ed. 112 (1903); United States v. Trans-Missouri Freight Assoc., 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897).
It is the opinion of this Court that a departure from the plain and unambiguous language of our Constitution and from over a century of precedent is not advisable. Therefore, this Court finds that a railroad is, as the Constitution says, a “public highway.” Constitution of West Virginia, Art. XI, § 9. Having acknowledged this to be true, application to the case at bar is clear. It has been settled law in this State for almost a century that “[t]he public easement in the public highways ... dedicated to the use of the public by individuals ... cannot be lost to the people by ... the acts of individuals.” Syllabus point 4, Ralston v. Town of Weston, 46 W.Va. 544, 33 S.E. 326 (1899). Here, despite A & M’s prior use of the crossing, they are not entitled to have continued rights to use it as they, may not appropriate the property of a quasi-public corporation which is used in the public interest by “prescription, adverse possession under the statute of limitations, or equitable estoppel, as the people cannot be deprived of their sovereign rights in any of these ways.” Bauer Enterprises v. City of Elkins, 173 W.Va. 438, 317 S.E.2d 798 (1984); Huddleston v. Deans, 124 W.Va. 313, 21 S.E.2d 352 (1942); Syllabus Point 5, Ralston v. Town of Weston, 46 W.Va. 544, 33 S.E. 326 (1899).
Respondent cites Dulin v. Ohio River Railroad Co., 73 W.Va. 166, 80 S.E. 145 (1913), as controlling authority for the proposition that a prescriptive easement may be created within a railroad right-of-way. There are major factual distinctions between this case and Dulin. Dulin, for example, involved a mere easement to the railroad to cross the land of a dominant estate, not, as in this case, a trackway owned in fee simple by the railroad. The successors in interest of the grantor of the easement to the railroad subsequently claimed they had cultivated a small strip within the granted easement for the requisite number of years to establish title by adverse possession. This Court in Dulin found against these plaintiffs, and ex plicitly noted that they had not adversely possessed the land in question as their “cultivation of a portion of the right-of-way land was not necessarily hostile or adverse to the railroad company’s right.” Dulin, 73 W.Va. 166, 172, 80 S.E. 145, 147. Judge Williams, writing for the majority in Dulin, noted parenthetically that “Judge Miller and myself think that the doctrine of adversary possession does not apply to a railroad company’s right of way, and the other members of the court hold that it does” Dulin, 73 W.Va. at 170, 80 S.E. 145. Adverse possession against the trackway of a railroad might be said to exist under this ambiguous language. However, this hypothetical language was mere dicta in Dulin and will not stand as precedent under our policy that “[o fbiter dicta or strong expression in the Court’s opinion, where such language was not necessary to the decision of the case, will not establish a precedent.” In re Kanawha Valley Bank, 144 W.Va. 346, 382, 109 S.E.2d 649, 669 (1959), quoting Chesapeake & Ohio R. Co. v. Martin, 154 Va. 1, 152 S.E. 335 (1930). Therefore, in light of this policy and to put an end to any latent ambiguity remaining as a result of Dulin, this Court feels compelled to set forth an unambiguous standard in the light of the unambiguous language found in our Constitution.
While this Court has not been presented with this issue for many years, the Supreme Court of Virginia has seen it quite recently in the case of Norfolk & Western Railway Company v. Waselchalk, 244 Va. 329, 421 S.E.2d 424 (1992). In that ease the Supreme Court of Virginia cited the principle established in City of Lynchburg v. Chesapeake and Ohio Ry., 170 Va. 108, 195 S.E. 510 (1938), that “no prescriptive right can be acquired in property affected with a public interest or dedicated to a public use.” City of Lynchburg v. Chesapeake and Ohio Ry., 170 Va. at 116, 195 S.E. at 514. The Supreme Court of Virginia then added that “[tjhere can be little doubt that this railroad property is affected with a public interest” as numerous trains passed over the crossing each day, exactly as they do through the grade crossing in Shepherdstown which is of particular concern in this case. Waselchalk, 244 Va. at 330, 421 S.E.2d at 425.
We approve of this stance of the Supreme Court of Virginia. As under Article XI, Section 9 of the Constitution of West Virginia, the track of a railroad is to be considered a public highway. As neither adverse possession, prescriptive easement, nor equitable estoppel may lie against a public highway, no party may establish an interest in the trackway of a railroad through any of these methods. This is, of course, subject to the limitation implied by Marthens, supra, and supported by Waselchalk, supra, that the trackway must be in use for railroad purposes.
To those who claim that this standard grants too much protection to railroads, it must be remembered that it is founded in our Constitution and also, that in exchange for such special protection as our Constitution gives to the trackway of a railroad, there are equal and opposite responsibilities enjoined upon these quasi-public corporations. This principle is not an innovation, but is as old as our nation. Lord Ellenborough noted that if a landowner or corporation would take the benefit of providing a public service, “he must as an equivalent perform the duty attached to it on reasonable terms.” Aldnutt v. Ingels, 104 Eng.Rep. 206, 211, 12 East 527, 537 (K.B.1810). Railroads are not free to act in numerous intimate functions of their business in which normal corporations are at liberty to act as they please without any restraint save that of the market; rather, they are governed by the state as to the rates which they charge and in the employment of their property which is devoted to a public use. Syllabus Point 3, Laurel Fork & Sand Hill Railroad Co. v. West Virginia Transportation Co., 25 W.Va. 324 (1884).
Not only are the fundamental principles of our law engaged here, but there are sound policy reasons for this stance as well. This Court does not wish to encourage the creation of impromptu, unmarked, grade crossings by every property owner who wants to create a shortcut across the trackway of a railroad. The dangers to public safety of such a practice, especially when continued for such an amount of time as to establish adverse possession or a prescriptive easement in a grade crossing, are all too high. It is equally true that the inconvenience to railroads of being forced to maintain grade crossings created at any place a hostile party chose would unnecessarily burden the flow of goods and services to consumers.
IV.
CONCLUSION
We reiterate that, for the reasons explained above, under Article XI, Section 9, of the Constitution of West Virginia, the track of a railroad is to be considered a public highway; as neither adverse possession, prescriptive easement, nor equitable estoppel may lie against a public highway, no party may establish an interest in the trackway of a railroad through any of these methods, so long as the trackway continues to be used for railroad purposes. Therefore, the amended question certified from the Circuit Court of Jefferson County is answered in the negative, and this matter is remanded to that Court for further proceedings.
Certified Question Answered. | [
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