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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 Mo-nongalia County entered on July 15, 2004. In that order, the circuit court denied a petition for a writ of habeas corpus filed by James M. Wensell (hereinafter “the appellant”). In this appeal, the appellant contends that the circuit court erred by refusing to grant his petition for habeas corpus relief based upon his claims of ineffective assistance of counsel as well as his contention that there was a violation of Rule 404(b) of the West Virginia Rules of Evidence. The appellant is currently serving a sentence of no less than twenty-one years and no greater than fifty-five years for his conviction of thirteen counts of sexual felonies against his stepdaughters. Based upon the parties’ briefs and arguments in this proceeding, as well as the relevant statutoiy and ease law, we are of the opinion that the circuit court did not commit reversible error and accordingly, affirm the decision below.
I.
FACTS
On January 4, 1996, the appellant was indicted on thirteen counts of sexual felonies committed against his stepdaughters, T.E. and A.E., for offenses committed between 1992 and 1995. The appellant was charged with eight counts of first degree sexual assault, three counts of first degree sexual abuse, and two counts of sexual abuse by a custodian.
The appellant was married to Bobbie Wen-sell in the summer of 1991. The victims, T.E. and A.E., were Ms. Wensell’s two daughters from a previous marriage. T.E. was bom on March 8,1987, and A.E. was born on May 16, 1988. In August 1994, the appellant was arrested and pled guilty to domestic battery. It was throughout this same time period when Ms. Wensell began to notice bruises on her children. During the appellant’s trial in the ease at bar, Ms. Wensell, T.E., and A.E., testified to specific instances of physical abuse, sexual abuse, and intimidation by the appellant.
Following a four day trial which began on July 16, 1996, a jury found the appellant guilty on all thirteen counts. He was represented by Mr. Howard Higgins during his trial. On October 30, 1996, the appellant’s motion for judgment of acquittal was granted as to one of the thirteen counts. With regard to the remaining twelve counts against him, the appellant was sentenced to no less than twenty-one years and no greater than fifty-five years in the State Penitentiary.
On October 18, 2001, the appellant filed a petition for State habeas corpus relief in the Circuit Court of Monongalia County. On July 15, 2004, following July 23, 2002, and August 23, 2002, omnibus evidentiary hearings, the circuit court denied relief. This appeal followed.
II.
STANDARD OF REVIEW
The appellant has presented assignments of error for our review surrounding the denial of his petition for a writ of habeas corpus based on his claim of ineffective assistance of counsel as well as his contention that the circuit court committed error by allowing evidence in violation of Rule 404(b) to be used against him during trial. In Syllabus Point 1 of State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975), we held that “[findings 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.” Generally applicable is our standard for conducting review of circuit court decisions, as restated in Phillips v. Fox, 193 W.Va. 657, 458 S.E.2d 327 (1995):
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.
Id. at 661, 458 S.E.2d at 331 (citing Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995)). With regard to the appellant’s claim of ineffective assistance of counsel, this Court held in Syllabus Point 1 of State ex rel. Vernatter v. Warden, 207 W.Va. 11, 528 S.E.2d 207 (1999), as follows:
An ineffective assistance of counsel claim presents a mixed question of law and fact; we review the circuit court’s findings of historical fact for clear error and its legal conclusions de novo. This means that we review the ultimate legal claim of ineffective assistance of counsel de novo and the circuit court’s findings of underlying predicate facts more deferentially.
(Quoting State ex rel. Daniel v. Legursky, 195 W.Va. 314, 320, 465 S.E.2d 416, 422 (1995)). We further held in Syllabus Point 5 of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), that:
In the West Virginia courts, claims of ineffective assistance of counsel are to be 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.
With these standards in mind, we proceed to review the trial court’s rulings on the issue of habeas corpus relief to determine if any error was committed.
III.
DISCUSSION
The appellant raises two assignments of error in his appeal to this Court. For the reasons set forth below, we do not find merit in any of the assigned errors.
A. Ineffective Assistance of Counsel.
The appellant maintains in his first assignment of error that he was denied a fair trial due to ineffective assistance of counsel during his trial. The only allegations discussed in more than a cursory manner by the appellant are his trial counsel’s failure to hire an investigator or to retain a psychological expert. The record shows that prior to the appellant’s trial, the circuit court granted his trial counsel’s motion to appoint a psychological expert as well as a private investigator. Nonetheless, the appellant’s trial counsel did not acquire the services of either in preparation of his case. The appellant maintains that hiring such individuals would have assisted his trial counsel in cross-examining the victims and the State’s witnesses. However, other than his general statements that the retention of a psychological expert and investigator would have been helpful to his defense, the appellant does not explain with particularity or give any specific instances as to how this actually harmed his defense.
The State contends that the circuit court correctly denied habeas relief based upon ineffective assistance of counsel and that the appellant simply was not able to meet the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the State contends that even if the appellant’s counsel was ineffective, “the defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
In Syllabus Point 5, of State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), this Court provided: “In the West Virginia courts, claims of ineffective assistance of counsel are to be 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.” Moreover, as stated in Syllabus Point 6 of Miller:
In reviewing counsel’s performance, courts must apply an objective standard and 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.
See Syllabus Points 1 and 2, Ronnie R. v. Trent, 194 W.Va. 364, 460 S.E.2d 499 (1995). See also State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995), holding that counsel must make a “reasonable investigation” of the case in order to provide effective assistance to an accused in a criminal proceeding.
In the July 15, 2004, order, the circuit court found that not hiring a psychologist or investigator fell below professional standards, but that such conduct could not be determined to have had any substantial effect on the appellant’s trial. After reviewing the entire record, we agree with the circuit court that the appellant’s counsel’s conduct fell below professional standards, but that the appellant has not shown how the shortcomings on the part of his trial counsel actually prejudiced him or had any substantial effect on the outcome of the trial.
With regard to his trial counsel’s failure to hire an investigator, this Court believes that while the retaining of an investigator could have been helpful, the appellant has not shown any actual new, exculpatory evidence which might have been discovered had an investigator been hired. The result is that the circuit court and this Court are left to speculate regarding what, if any, exculpatory evidence might have been discovered through the hiring of an investigator in the underlying criminal trial. Unfortunately, this does not carry the day iñ a habeas corpus proceeding and this Court is not persuaded that, but for the appellant’s failure to hire an investigator in the underlying criminal trial, there is a reasonable probability that the outcome of the trial would have been any different.
We have also carefully reviewed the appellant’s contention of trial exror with regard to his counsel’s failure to retain a psychological expert. During the appellant’s habeas corpus hearing before the circuit court he did retain Dr. David dayman, a psychological expert, who submitted an affidavit of his findings as well as providing testimony at the omnibus hearing on behalf of the appellant. Dr. dayman gave testimony regarding the areas where he believed the appellant’s trial counsel fell short in cross-examining both of the psychological experts for the State. However, having carefully reviewed the affidavit submitted by Dr. dayman, as well as the transcript of the testimony given by Dr. dayman at the omnibus hearing, this Court does not believe that the appellant’s counsel’s failure to cross-examine these expert witnesses in these areas caused the appellant any substantial prejudice at trial. This is particularly true in consideration of the fact that nowhere within the affidavit or testimony of Dr. dayman does he criticize the ultimate opinions which were rendered by the State’s expert witnesses. In fact, Dr. dayman affirmatively made it clear throughout his testimony and affidavit that he was not criticizing the ultimate opinions of either of these doctors, or the manner and procedure in which these opinions were derived. Moreover, Dr. dayman specifically stated that the evaluations of the victims performed by the State’s experts met “acceptable standards, both in procedure and content.”
This Court would likely have been more persuaded that the appellant’s trial counsel’s failure to procure a psychological expert caused the petitioner prejudice at trial if his own expert witness, Dr. dayman, had asserted any flaws with the State’s experts’ ultimate opinions; however, this clearly was not the nature of Dr. dayman’s opinion. Thus, this Court believes the appellant has not shown that the outcome of his trial would have been any different had the appellant’s trial counsel retained a psychological expert.
At the end of the appellant’s argument with regal'd to his ineffective assistance of counsel claim, he provides a laundry list of other alleged instances of ineffective assistance of counsel which amount to nothing more than general and bare allegations without any analysis, explanation, or legal citation. The appellant summarily states that his trial counsel: failed to object to hearsay evidence elicited from alleged victims’ doctors, caseworkei's, and psychologists; failed to object to statements by the victims’ mother; failed to adequately cross-examine and attack the credibility and inconsistencies of the alleged victims; failed to object to numerous instances of irrelevant evidence pertaining to prior bad acts and counseling; failed to object to the prosecution’s experts rendering opinions that were not based upon a reasonable degree of medical probability or certainty; failed to properly investigate the appellant’s case; failed to properly voir dire the jury panel; failed to properly voir dire and cross-examine the prosecution’s experts; failed to follow-up on the motion for a bill of particulars after it was granted; and failed to object to the procedure that the court followed for allowing evidence under the West Virginia Rules of Evidence 404(b).
Although the appellant makes these claims, he does not provide to this Court any examples of how the circuit court acted in an erroneous manner or in a manner that was not consistent with the laws of West Virginia. Rather, the appellant’s assertions lack reasonable specificity and particularity and are completely unsupported. In the absence of such supporting arguments or authority, we deem these assignments of error to have been waived. As we explained in State Dept. Of Health v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 883 (1995), “[a] skeletal ‘argument,’ really nothing more than an assertion, does not preserve a claim.... Judges are not like pigs, hunting for truffles buried in briefs.” (Citation omitted). Moreover, as we held in Syllabus Point 2 of WV Dept. of Health & Human Resources Employees Federal Credit Union v. Tennant, 215 W.Va. 387, 599 S.E.2d 810 (2004), “ ‘[a]n appellant must carry the burden of showing error in the judgment of which he complains. This Court will not reverse the judgment of a trial court unless error affirmatively appears from the record. Error will not be presumed, all presumptions being in favor of the correctness of the judgment.’ Syllabus Point 5, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).”
Likewise, this Court has previously adhered to the rule that, “[although we liberally construe briefs in determining issues presented for review, issues which are not raised, and those mentioned only in passing but are not supported with pertinent authority, are not considered on appeal.” State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996). Accord State v. Allen, 208 W.Va. 144, 162, 539 S.E.2d 87, 105 (1999); State v. Easton, 203 W.Va. 631, 642 n. 19, 510 S.E.2d 465, 476 n. 19 (1998); State v. Lilly, 194 W.Va. 595, 605 n. 16, 461 S.E.2d 101, 111 n. 16 (1995).
Based upon all of the above as well as our thorough review of the record, we find that there is no merit to the appellant’s allegations of ineffective assistance of counsel.
B. W.Va. R. Evid. 404(b)
Next, the appellant maintains that throughout the trial the State introduced testimony in violation of Rule 404(b) of the West Virginia Rules of Evidence. Specifically, the appellant argues that the circuit court should have excluded testimony that he punished his stepdaughters by spanking them with a paddle board; that he smacked his stepdaughter with an open hand in 1992 causing facial bruises; that he assaulted his wife in a domestic dispute in 1994; and that he disciplined his stepchildren extensively in a non-physical manner such as sending them to their room.
The State responds that there was no violation of law in admitting the evidence. It argues that the purpose of the evidence was to further demonstrate the conditions in the home which caused the children to be fearful of making disclosures to anyone while the family resided together. Moreover, the showing that the incident had actually occurred was made by the appellant’s guilty plea to a domestic battery charge in connection with that event. We agree.
We have heretofore drawn a distinction between intrinsic and extrinsic evidence. In Syllabus Point 1 of State v. Spicer, 162 W.Va. 127, 245 S.E.2d 922 (1978), we held 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.” Moreover, in State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), addressing a father’s conviction for the murder of his infant son, we explained as follows:
Evidence of the prior attacks and beatings not only demonstrated the motive and setup of the crime but also was necessary to place the child’s death in context and to complete the story of the charged crime. We hold that historical evidence of uncharged prior acts which is inextricably intertwined with the charged crime is admissible over a Rule 403 objection.
196 W.Va. at 313, 470 S.E.2d at 632. We further explained that:
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).
LaRock, 196 W.Va. at 312 n. 29, 470 S.E.2d at 631 n. 29.
We find that the evidence which the appellant challenges on this appeal was merely presented as context evidence illustrating why the appellant’s stepdaughters were terrified of him and were fearful to report the appellant’s conduct while the appellant was living under the same roof. It portrayed to the jurors the complete story of the inextricably linked events with regard to the interaction between the appellant and his stepdaughters and amounted to intrinsic evidence. Moreover, even though the State had no obligation to provide notice of Rule 404(b) evidence, it did so anyway in its initial discovery materials. The State advised of its intent to seek admission of the evidence because the excessive and harsh disciplinary measures by the appellant against his stepchildren provided the complete picture for the sexual abuse and explained the delay in reporting by the children until the time they were outside of the appellant’s care, custody, and control. The State also advised of its intention to use evidence of a domestic violence episode in the home by the appellant against his wife, which was committed in the presence of the children. Clearly, the purpose of the evidence was to further demonstrate the conditions in the home which would cause the children to be fearful of making disclosures to anyone while the family resided together. The showing that the incident had actually occurred was made by the appellant’s guilty plea to a domestic bat-tery charge in connection with that event.
Our review of this matter did not reveal any abuse of discretion by the lower court, and we do not find that the lower court acted in an arbitrary or irrational manner. We consequently affirm on this ground.
IV.
CONCLUSION
Accordingly, for the reasons stated above, the final order of the Circuit Court of Mo-nongalia County entered on July 15, 2004, is affirmed.
Affirmed.
. It is noted that counsel for the appellant in this appeal did not represent the appellant at trial.
. This Court follows its past practice in sensitive cases and shall refer to the names of certain individuals by initials only. Department of Health and Human Resources ex rel. Mills v. Billy Lee C., 199 W.Va. 541, 543 n. 1, 485 S.E.2d 710, 712 n. 1 (1997); In re Danielle T., 195 W.Va. 530, 531 n. 1, 466 S.E.2d 189, 190 n. 1 (1995).
. Rule 404(b) of the West Virginia Rules of Evidence provides:
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 he or she 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, 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. | [
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PER CURIAM:
In this appeal from the Circuit Court of Kanawha County, we are asked to examine a circuit court’s orders affirming a decision by the West Virginia Human Rights Commission (“the Commission”) that an employer engaged in unlawful race-based discrimination against two employees. The employer appeals and raises two points of error. First, the employer argues that the evidence is not sufficient to support a finding of unlawful discrimination. Second, the employer argues that the Commission and circuit court erred in their calculation of back pay damages regarding one of the two employees.
We have given careful consideration to the extensive evidentiary record developed below, the briefs and arguments of the parties, and all other matters of record. As set forth below, we affirm the Commission’s determination, and the circuit court’s orders upholding that determination, finding that the employer engaged in unlawful discrimination. However, we reverse the circuit court’s order regarding the back-pay damages awarded to one of the employees, and remand the case to the circuit court for reconsideration of the date that those damages began to accrue.
I.
In 2001, appellant Mayflower Vehicle Systems, Inc., (“Mayflower”) operated a vehicle-parts manufacturing facility in South Charleston, West Virginia. Mayflower had an attendance policy that permitted an employee to accrue eight unexcused absences in a calendar year. These absences are also referred to in the record as “no call, no show” absences.
When an employee accrued a ninth unexcused absence, the employee was generally'— but not always — terminated. Mayflower produced records indicating at least eighty-six employees had been terminated under this attendance policy. The records suggest that after Mayflower had decided to terminate an employee for excessive unexeused absences, the employee was permitted an opportunity to discuss the absences with Mayflower’s human resources director. In some cases, the employee was not terminat ed; in others, the employee was terminated, but later rehired. The record suggests that some employees with excessive absences were asked to sign what are referred to as “last chance” agreements. It further appears that some of the employees who were terminated were rehired only after pursuing a union grievance proceeding.
Appellee Vincent Cheeks is an African American who worked for Mayflower as a laborer and press operator, and had accrued eight absences by October 2001. Mr. Cheeks suffered from a back sprain, high blood pressure, and hemorrhoids so severe that he would often have blood running down his legs at work. These medical conditions caused Mi-. Cheeks to miss three days of work— October 11th, 12th, and 18th. Mr. Cheeks got a note from his doctor explaining his serious medical problems. Upon his return to work on October 19th, Mr. Cheeks tried to obtain a medical leave application from Mayflower, but did not receive one from the human resources department until October 25th. Mr. Cheeks returned the medical leave application and note from his doctor to Mayflower on October 30th, but the application was stamped by Mayflower as “Received Oct. 31, 2001.”
Mr. Cheeks’ medical conditions caused him to again miss work on November 1st and 2nd, and he again visited his doctor and procured a note excusing him from work. Mr. Cheeks returned to work on November 5, 2001, his next regularly scheduled work day, and was called into the office of Mayflower’s human resources manager. At that time, Mayflower terminated Mr. Cheeks for excessive absences due to his absences on October 11th and 12th. Mayflower asserted that the absences were unexeused, and asserted that Mr. Cheeks had never returned an application for medical leave.
The union which represented Mayflower’s employees filed a grievance challenging Mayflower’s decision to terminate Mr. Cheeks. In a March 13, 2002 memorandum denying the grievance, Mayflower took the position that at the time of his termination, “Mr. Cheeks had obtained not only his 9th occurrence, but reached his 12th occurrence.” Mayflower — for the first time — asserted that it had a policy requiring that medical leave applications be returned within fifteen days after an absence, and that otherwise the applications would be disavowed. Mayflower asserted that “Mr. Cheeks was given paperwork for his absences on October 12, 2001 and October 13, 2001,” but did not turn in the application “until his termination date of November 5, 2001,” “well after the 15 days allowed.” The memorandum makes no mention of Mr. Cheeks’ October 18th absence, and no mention that he had turned in a medical leave application on October 31st. Furthermore, Mayflower took the position that, even if the October 12th and 13th absences were excused, Mr. Cheeks presented no excuse for the November 1st and 2nd absences.
Union representatives, apparently lacking the documentation contained in Mayflower’s files to challenge Mayflower’s assertion that Mr. Cheeks had not promptly returned his medical leave application for the October 2001 absences, or any documentation to dispute Mayflower’s assertion that Mr. Cheeks had no medical excuse for the absences in November 2001, dropped the grievance did not pursue any additional relief for Mr. Cheeks.
Appellee Samuel R. Lewis is an African American who worked for appellant Mayflower as a laborer and supervisor. By late July 2001, Mr. Lewis had accrued eight absences. Mr. Lewis, however, contends that several of these absences should have been recorded as excused vacation days because he did “call in” to the plant ahead of time and inform his supervisor he would be absent.
Mr. Lewis testified that his duties as a supervisor included retrieving messages from a telephone answering machine. Employees would call the telephone number and leave a message on the answering machine explaining that they were going to be taldng a vacation day or otherwise be absent. The employee’s supervisor would then listen to the message, and record the employee’s absence as excused. However, Mr. Lewis testified that several supervisors retrieved the messages from same machine, and that many times the first supervisor to listen to the messages would delete the messages without making any record of each employee’s call. It appears that some supervisors would make a record of calls from their own employees, and would delete calls made by other supervisors’ employees. The result was that many employees’ absences would be incorrectly recorded as a “no call, no show” unexcused absence. When the error was brought to the supervisor’s attention, the supervisor could log into the employee’s computer record and properly record the absence.
Mr. Lewis testified that the call-in system for reporting absences was riddled with errors, and that he was repeatedly a victim of this system. He stated that on several occasions he had to approach the director of human resources to have his employment record changed, because although he had called the plant in advance to request a vacation day, his absence had been recorded as a “no call, no show” absence. The human resources director apparently refused to acknowledge that Mr. Lewis had called in his absences, and at some point refused to stop correcting his employment record.
Mr. Lewis was injured in a buvette altercation, and as a result missed work on August 17, 2001. Upon his return to work, Mr. Lewis brought his absence — which had apparently been overlooked — to the attention of the human resources department. The absence was then recorded in Mr. Lewis’ employment record as his ninth unexcused absence. Mr. Lewis contended that he had, as a supervisor, seen white employees receive “second-chance” agreements from the human resources director after accruing nine or ten absences, and he presumed that he would be able to make the same arrangements. The human resources director refused to meet with Mr. Lewis to discuss his absences, and he was terminated on August 22, 2001.
Mr. Lewis, through a union representative, filed a first-level grievance. The grievance was reviewed by the Mayflower human resources director and denied on September 28, 2001. As her reasoning for denying the grievance, the human resources director stated that Mr. Lewis had never approached her regarding his absences to ask for help, even though “Mr. Lewis had many opportunities to come to me before he received his 9th oecurance [sic].” Mr. Lewis asked his union representative to appeal the grievance denial, but for reasons that are not clear in the record, no appeal was filed and Mr. Lewis’ termination became final.
Mr. Cheeks and Mr. Lewis subsequently filed separate complaints with the West Virginia Human Rights Commission (“the Commission”), alleging discrimination on the basis of race by Mayflower had occurred in the termination process. Because of the similarity of the evidence and witnesses in both complaints, the Commission moved to consolidate both cases. The consolidation motion was granted.
At a public hearing on the two complaints in September 2003, the Commission and Mayflower introduced a joint exhibit consisting largely of Mayflower’s employment records. The parties agree that Mayflower’s employment records indicate that eighty-six employees had been terminated, apparently without regard to race, under Mayflower’s absence policy for excessive absences.
However, the joint exhibit also indicates that thirteen employees were rehired after violating the absence policy, and all of those employees were white. Prior to Mi'. Cheeks and Mr. Lewis filing their complaints with the Commission, no African American employee terminated by Mayflower had been so rehired.
More importantly, the joint exhibit and the testimony presented at the hearing suggest that Mr. Cheeks and Mr. Lewis were treated differently from similarly-situated white employees when rehiring decisions were being made. For instance, the joint exhibit contains several examples of white employees with medical problems who — like Mr. Cheeks — were terminated for excessive absences, but who were later rehired (and in many cases given back pay) when it was demonstrated to the human resources director that the absences were the result of a medical condition. The joint exhibit also contains examples of white employees who, unlike Mr. Cheeks or Mr. Lewis, were disciplined for serious on-the-job performance concerns, and who were terminated two and three times for accruing excessive absences, and yet were repeatedly rehired by Mayflower under “last chance” agreements.
After assessing this evidence, in a final order dated September 10, 2004, the Commission found that discrimination had occurred in appellant Mayflower’s decision not to rehire the appellees, Mr. Cheeks and Mr. Lewis. The Commission concluded, on the one hand, that Mayflower regularly discharged employees who had accrued nine unexcused absences without regard to the race of the employee. On the other hand, the Commission concluded that unlawful discrimination on the basis of race occurred when Mayflower made its decision not to rehire the appellees. Mayflower was ordered to pay incidental damages to both ap-pellees for their pain, suffering and humiliation; damages for back pay; and ordered to rehire the appellees, and until they were rehired, pay the appellees damages for front pay.
As a result of appeals and petitions for review by the parties, the case has been reviewed twice by an administrative law judge; twice by the Commission as a whole; and finally by the Circuit Court of Kanawha County.
In an order dated February 28, 2005, the circuit court refused Mayflower’s appeal of the Commission’s September 10, 2004 decision, to the extent it concerned Mr. Lewis’ case, for lack of jurisdiction. The circuit court found neither Mr. Lewis’ back pay award nor his award of other damages met the jurisdictional requirements of W.Va.Code, 5-11-11(a) [1989] (“in the following cases the appellant may prosecute the appeal in the circuit court of Kanawha County ... (1) Cases in which the commission awards damages other than back pay exceeding five thousand dollars; [or] (2) cases in which the commission awards back pay exceeding thirty thousand dollars[.]”)
In an order dated March 4, 2005, the circuit court affirmed the Commission’s decision regarding Mr. Cheeks.
Mayflower now appeals the circuit court’s orders.
II.
Mayflower’s appeal challenges two aspects of the Commission’s September 10, 2004 decision, and the circuit court’s February 28 and March 4, 2005 orders affirming that decision. First, Mayflower asserts that there is insufficient evidence to support a finding that unlawful discrimination occurred against Mr. Cheeks and Mr. Lewis. Second, Mayflower asserts that the decision improperly calculated Mr. Cheeks’ damages. Mayflower does not challenge the calculation of Mr. Lewis’ damages.
With regard to this Court’s review of the factual findings and legal conclusions made by the Commission and the circuit court, this Court is bound by the statutory standards contained in W.Va.Code, 29A-5-4(a). Questions of law are reviewed de novo; findings of fact are accorded deference unless the findings are clearly wrong. Syllabus Point 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). See also, Syllabus Point 1, West Virginia Human Rights Commission v. United Transportation Union, Local No. 655, 167 W.Va. 282, 280 S.E.2d 653 (1981)(“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.”) W.Va.Code, 29A-5-4 requires a court to
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).
With these standards in mind, we turn to the parties’ arguments.
III.
The preliminary issue we must briefly address is this Court’s jurisdiction to hear appellant Mayflower’s appeal of appellee Mr. Lewis’ case.
At the outset of this case, the Commission moved to consolidate appellee Mr. Cheeks’ complaint and appellee Mr. Lewis’ complaint for joint consideration, because the evidence, witnesses, and circumstances of both employees were closely related. The Commission’s September 10, 2004 final decision intertwines the facts and legal conclusions of both appel-lees in one order. Nowhere in the record do we see any indication that the Commission ever moved to separate these two complaints for individual consideration.
However, during Mayflower’s appeal to the circuit court, the Commission took the position that the appellees’ complaints were individual cases, and that the damages awarded to each appellee had to be considered separately by the circuit court for purposes of jurisdiction. The circuit court concluded that it did not have jurisdiction to review Mr. Lewis’ case because the damages awarded to Mr. Lewis did not exceed the monetary thresholds set forth in W.Va.Code, 5-11-11(a).
Furthermore, on appeal to this Court, the Commission asserts that since the circuit court had no jurisdiction over Mr. Lewis’ separate complaint, Mayflower should have filed any appeals from the Commission’s decision directly with this Court. By failing to do so, the Commission argues that Mayflow er’s appeal of the decision in Mr. Lewis’ case is 150 days too late.
We reject the Commission’s jurisdictional arguments outright. What the Commission joined together by its own motion, it cannot presume will suddenly be put asunder by a respondent’s filing of a petition for review or appeal. The Commission made no motion to separate the two appellees’ cases, and it is patently unfair for the Commission to play “gotcha” and assert that the cases automatically separated on appeal.
The two cases of the appellees were joined for consideration below, and the Commission’s decisions assess the two cases as one. Furthermore, the Commission has never made a motion to “un-join” the cases. Accordingly, we now turn to consider parties’ arguments as to the merits of both cases.
A.
Appellant Mayflower challenges the Commission’s and circuit court’s decision that unlawful discrimination occurred. Mayflower asserts that the factual record does not support a finding of unlawful discrimination.
The Commission concluded that the complainants, Mr. Cheeks and Mr. Lewis, were the victims of unlawful discrimination under the West Virginia Human Rights Act. W.Va. Code, 5-11-9(1) [1998] of the Act makes it unlawful “[f]or 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[.]” The term “discriminate” or “discrimination” is defined by W.Va.Code, 5-11-3(h) [1998] to mean “exclude from, or fail or refuse to extend to, a person equal opportunities because of race[.]”
Proving discrimination under the Act is a three-step inferential proof formula first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this formula, a complainant must first establish a prima facie case of discrimination; the respondent has the opportunity to articulate a legitimate nondiscriminatory reason for its action; and finally, the complainant must show that the reason proffered by the respondent was not the true reason for the decision, but rather was a pretext for discrimination. As we stated in Syllabus Point 3, in part, of Shepherdstown Volunteer Fire Dept. v. State ex rel. State of West Virginia Human Rights Com’n, 172 W.Va. 627, 309 S.E.2d 342 (1983):
In an action to redress unlawful discriminatory practices in employment ... under The West Virginia Human Rights Act, as amended, W.Va.Code, 5-11-1 et seq., the burden is upon the complainant to prove by a preponderance of the evidence a pri-ma facie case of discrimination, which burden may be carried by showing (1) that the complainant belongs to a protected group under the statute; (2) that he or she applied and was qualified for the position or opening; (3) that he or she was rejected despite his or her qualifications; and (4) that after the rejection the respondent continued to accept the applications of similarly qualified persons. If the complainant is successful in creating this rebuttable presumption of discrimination, the burden then shifts to the respondent to offer some legitimate and nondiscriminatory reason for the rejection. Should the respondent succeed in rebutting the presumption of discrimination, then the complainant has the opportunity to prove by a preponderance of the evidence that the reasons offered by the respondent were merely a pretext for the unlawful discrimination.
In order to prove a prima facie case of discrimination under the Act, the Commission must show:
(1) That the plaintiff is a member of a protected class.
(2) That the employer made an adverse decision concerning the plaintiff.
(3) But for the plaintiffs protected status, the adverse decision would not have been made.
Syllabus Point 3, Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986).
“ ‘Pretext’ means an ostensible reason or motive assigned as.a color or cover for the real reason or motive; false appearance; pretense.” W.Va. Institute of Technology v. W.Va. Human Rights Comm’n, 181 W.Va. 525, 531, 383 S.E.2d 490, 496 (1989) (quoting Black’s Law Dictionary 1069 (5th ed.1979)). A proffered reason is a pretext if it was not “the true reason for the decision[.]” Conaway v. Eastern Associated Coal Corp., 178 W.Va. at 171, 358 S.E.2d at 430. “The third step of the ... proof scheme, pretext, is a ... realization that some explanations are the product of hindsight rather than a true barometer of what occurred at the time of decision.” Taylor v. City National Bank, 642 F.Supp. 989, 995 (S.D.W.Va.1986).
Pretext may be shown through direct or circumstantial evidence of falsity or discrimination; and, where pretext is shown, discrimination may be inferred. Syllabus Point 5, Barefoot v. Sundale Nursing Home, 193 W.Va. 475, 457 S.E.2d 152 (1995). As we stated in Syllabus Point 5 of Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51, 479 S.E.2d 561 (1996):
In disparate treatment cases under the West Virginia Human Rights Act, W.Va. Code, 5-11-9 (1992), proof of pretext can by itself sustain a conclusion that the defendant engaged in unlawful discrimination. - Therefore, if the plaintiff raised an inference of discrimination through his or her prima facie case and the facbfinder disbelieves the defendant’s explanation for the adverse action taken against the plaintiff, the factfinder justifiably may conclude that the logical explanation for the action was the unlawful discrimination.
The issue in pretext cases is often whether either an illegal motive, or a legal motive (but not both), was the true motive behind the adverse decision by the employer. However, a complainant under the Human Rights Act may also show pretext through a “mixed motive” analysis. A mixed motive analysis applies where the employer articulates a legitimate nondiscriminatory reason for its decision which is not pretextual, but where the complainant demonstrates that a discriminatory motive nonetheless played a significant part in the employer’s adverse decision against the complainant. Mixed motive cases are, simply, cases involving a mixture of legitimate and illegitimate motives; there is no one single “true” motive behind the decision. Instead, the decision is a result of multiple factors, at least one of which is legitimate and at least one of which is illegitimate. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); West Virginia Institute of Technology v. West Virginia Human Rights Com’n, 181 W.Va. 525, 531-32 n. 11, 383 S.E.2d 490, 496-97 n. 11 (1989). Once the complainant shows that the complainant’s protected class membership played some part in the employer’s decision, the burden then shifts to the employer to prove by a preponderance of the evidence that the same decision would have been made in the absence of the discriminatory motive. Barefoot v. Sundale Nursing Home, 193 W.Va. at 485 n. 16, 487 n. 18, 457 S.E.2d at 162 n. 16, 164 n. 18.
Examining the record in the instant case, it is clear' that the Commission made out a prima facie case of race discrimination in respect to Mayflower’s failure to rehire Mr. Cheeks and Mr. Lewis subsequent to their terminations. Both Mr. Cheeks and Mr. Lewis are African Americans, a protected class under the Act, and by refusing to rehire either individual, Mayflower subjected the appellees to an adverse action. The Commission demonstrated that at least thirteen employees had been rehired — -some two or three times — after being terminated for accruing nine unexcused absences. However, prior to Mr. Lewis’ and Mr. Cheeks’ complaints being filed with the Commission, none of those employees who were rehired were African American. This evidence is sufficient to create an inference that unlawful discrimination on the basis of race occurred.
The Commission having established a pri-ma facie case, the burden shifted to May flower to articulate a nondiscriminatory reason for why the appellees were not rehired. Mayflower contends that the appellees were not rehired because they did not pursue the union grievance process to its final stages. Mayflower asserts that the situations of the appellees were substantially different from those of the employees who were rehired, because the employees who were rehired had successfully pursued a union grievance. Mayflower argues that the appellees were terminated for a nondiscriminatory reason— excessive absences — and that they were not rehired because the union failed to diligently pursue grievances on behalf of the appellees. Mayflower asserts that if any discrimination occurred, it was in the union’s decision to drop the appellees’ grievances, not in Mayflower’s failure to rehire. In sum, Mayflower argues that, as a matter of law, the positions of the appellees cannot be compared with the positions of the white employees who were rehired, because those rehirings were a result of the union grievance process.
The evidence of record does not support Mayflower’s position. The record indicates that many of the white employees terminated and then rehired by Mayflower never turned to the union for assistance. In their cases, Mayflower reversed its decision once it learned that its decision had been in error, or was unduly harsh, or when Mayflower simply decided to give the employee a “second chance.”
For example, Roger T. was a white employee who worked under the supervision of Mr. Lewis. Mr. Lewis testified that he repeatedly saw Roger T. violate company policy with impunity. Roger T. kept his job without union involvement. Roger T.’s employment file indicates he was many times caught sleeping on the job, and repeatedly cited for poor work performance, clocking out early, leaving the plant without permission, and arriving late to work. After receiving two “third and final warnings” for absenteeism, Roger T. accrued ten absences in a one-year period. Roger T., however, was not terminated; instead, when he was threatened with termination, Mayflower contends that Roger T. produced a subpoena showing that one of the ten days was an excused absence. There is nothing in the record showing that the union was involved in Mayflower’s decision to retain Roger T., even though he had accrued nine unexcused absences.
Another employee, Donald M., missed work for medical reasons, but when he failed to turn in a medical leave application, he was terminated for accruing ten unexcused absences. Donald M. was rehired several weeks later, also apparently without union involvement.
The record contains other examples that vitiate Mayflower’s argument. In sum, it appears that Mayflower routinely gave employees who violated company policy, including the nine-unexcused-absenee policy, a “second chance” without union involvement.
Moreover, the law does not support Mayflower’s position. An employee’s failure to participate in a union grievance proceeding does not, as a matter of law, make that employee’s situation wholly dissimilar from and uncomparable to that of another employee who did participate in a union grievance proceeding. When examining whether employees are similarly situated, it must be considered whether the employees were “engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.” Perkins v. Brigham & Women’s Hosp., 78 F.3d 747, 751 (1st Cir.1996), quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992). The test is whether a “prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated.” Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir.1989). Exact correlation between employees’ cases is not necessary; the pro ponent of the evidence must only show that the cases are “fair congeners.” Id. A union’s involvement in one employee’s situation but not in another’s does not per se make the two employees dissimilar. Rather, a finder of fact must look at all of the factors relevant to the comparison, including the reasons behind the termination and the reasons behind the union’s pursuit or non-pursuit of the employees’ grievances.
As stated previously, appellant Mayflower appears to have rehired some employees without requiring the employees to pursue the grievance process, and rehired others after considering their union grievance. But even comparing the appellees’ cases against only the situations of the rehired employees who did pursue a union grievance, it appears that Mayflower was possessed of all the evidence necessary and sufficient to rehire Mr. Cheeks and Mr. Lewis, but declined to do so — even though their situations were roughly equivalent to those of the white employees who were rehired. Mr. Cheeks presented evidence that some of his nine absences were a result of his medical condition, and Mr. Lewis presented evidence that some of his nine absences were a result of a faulty absence-reporting system. These reasons were summarily rejected, while similarly-situated white employees were rehired.
Finally, even presuming that Mayflower established a nondiscriminatory reason for refusing to hire the appellees, we find no error in the Commission’s determination that the x-eason was, in whole or in part, a pretext for discrimination.
For instance, Mayflower contended that Mr. Cheeks had failed to file his medical leave application within the fifteen-day limit. Mr. Cheeks received the medical leave application on October 25, 2001, and returned it on October 31st. A union representative testified that Mayflower supervisors were “not real sticklers” about the fifteen-day limit. However, Mayflower, during Mr. Cheeks’ grievance, falsely represented to the union that Mr. Cheeks had received his application on October 12th or 13th, and did not return the paperwork until November 5th. These false representations impelled the union, lacking any paperwork to disprove Mayflower’s representations, to drop Mr. Cheeks’ grievance.
Likewise, Mr. Lewis established that the call-in system repeatedly failed to work, and that several of his absences had mistakenly been recorded as “no call, no show” absences. The record suggests that numerous white individuals were forgiven for numerous transgressions of safety and other employment policies, but when Mr. Lewis asked that the human resources director correct his employment record to fix mistakenly-recorded absences, Mr. Lewis was told, “This is the last time I will do anything for you, Sam.” Mayflower rejected Mr. Lewis’ protests that his employment record was wrong, and now seeks to rely on the fact that the union neglected Mr. Lewis and failed to appeal the denial of his grievance.
The Commission proved pretext by showing that Mayflower knew that Mr. Cheeks had submitted his paperwork by the company’s deadline, and knew that he had not violated Mayflower’s policy, but represented to the union that he had violated company policy. The Commission proved pretext by showing that Mayflower routinely gave second and third chances to employees with records far worse than Mr. Lewis’ employment record, without union involvement, but in Mr. Lewis’ case blamed its failure to rehire him on the union’s failure to file a grievance appeal. Once it is shown that an employer’s reason for an action was pretextual, discrimination may be inferred from the employer’s actions. See supra, Syllabus Point 5, Skaggs v. Elk Run Coal Co., Inc.
We therefore find no error in the Commission’s and circuit court’s conclusion that appellant Mayflower engaged in unlawful discrimination when it failed to rehire the appellees.
B.
Appellant Mayflower’s second point of error concerns the calculation of the damages awarded to appellee Cheeks. Mr. Cheeks was terminated in November 2001, and the Commission ruled that Mr. Cheeks was entitled to damages for back pay from the date of his termination until July 31, 2004.
Mayflower argues that Mr. Cheeks is not entitled to receive any damages subsequent to June 2003. Mayflower explains that at a hearing in September 2003, an attorney for the Commission introduced into evidence a spreadsheet showing that Mr. Cheeks had lost monthly wages from November 2001 through June 2003, and no lost wages for the months of July, August or September 2003. When a decision was initially issued in February 2004, no lost wages were awarded to Mr. Cheeks for the months subsequent to June 2003.
The attorney for the Commission appealed the February 2004 decision, asserting that a clerical error had resulted in the creation of a spreadsheet that accidentally omitted ap-pellee Cheeks’ lost wages subsequent to June 2003. The Commission’s attorney was then given an opportunity to present additional evidence concerning the entirety of Mr. Cheeks’ lost wages. Mayflower apparently made no objection to the Commission attorney’s updated, complete damage calculations. In the Commission’s final order, on September 10, 2004, based upon the thorough damage calculation, Mr. Cheeks was awarded back wages from the date of his November 2001 termination up to the date of the drafting of the Commission’s final order (July 31, 2004), and front pay from that day forward until he is rehired by Mayflower.
After careful consideration of the record, we find no error in the Commission’s decision to permit the Commission’s attorney to correct the clerical error. Appellant Mayflower raised no objection to the Commission’s attorney’s revised evidence of damages, and raises no suggestion now why the revised evidence is incorrect. The Commission was within its discretion to permit the parties to clarify the factual record, and the Commission’s decision to award Mr. Cheeks back pay for the period from July 2003 until July 2004, based upon a thorough review of a complete record, was properly sustained by the circuit comb.
Mayflower’s second argument is that Mr. Cheeks should not receive any back-pay damages from November 5, 2001, until July 19, 2002, because it contends that Mr. Cheeks was not discriminated against until Mayflower failed to rehire him pursuant to union negotiations. Mayflower asserts that after Mr. Cheeks’ termination, he began a union grievance process which — Mayflower contends — ultimately ended on July 19, 2002, when his union representative dropped the grievance.
At the outset, we reject Mayflower’s assertion that damages began to accrue on July 19, 2002, for a singular reason: we cannot find any mention of that date anywhere in the record. Mayflower’s counsel does not cite to any point in the record where this date may be found, and our review of the record has not revealed any documentation or testimony showing this to be the date where Mr. Cheeks’ union grievance process came to an end. The latest documentation we can find showing the termination of the union grievance process is a memorandum dated March 13, 2002, denying Mr. Cheeks’ level three grievance.
Still, Mayflower is essentially arguing that it should not be forced to pay damages until the date of its last opportunity to rehire Mr. Cheeks.
The Commission responds by pointing out that, using Mayflower’s logic, no employer who engaged in discrimination would ever have to pay back wages because, even after union grievances had been exhausted, lawsuits filed and appeals prosecuted, the employer would still have an opportunity to rehire the employee who was a victim of discrimination. The Commission argues that the law does not require an employer to exhaust all of its opportunities to rehire an employee before back wages begin to run, and does not require an employee to exhaust the union grievance process before they are entitled to damages.
We agree, in part, with the Commission’s position. Mr. Cheeks’ damages began to accrue when discrimination occurred in Mayflower’s decision not to rehire him. The law does not require that Mayflower be permitted to exhaust all procedural niceties to delay rehiring an employee before back wages begin to accrue, and does not require an employee to exhaust a union grievance process.
The question that troubles this Court, however, is the specific date that Mr. Cheeks’ damages began to accrue. As one court stated:
The major difficulty in attempting to compute a backpay award in a case such as this one is that the subjectivity of defendant’s method of filling job vacancies renders impossible anything like a precise calculation of the pecuniary effects of discrimination. In light of the uncertainty which clouds the task before us, we must set down three general rules: (1) unrealistic exactitude is not required; (2) ambiguities in what an employee or group of employees would have earned but for discrimination should be resolved against the discriminating employer; (3) the district court, far closer to the facts of the case than we can ever be, must be granted wide discretion in resolving ambiguities.
Stewart v. General Motors Corp., 542 F.2d 445, 452 (7th Cir.1976). In accord, Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 260-61 (5th Cir.1974); United States v. United States Steel Corp., 520 F.2d 1043, 1050-55 (5th Cir.1975). See also Domingo v. New England Fish Co., 727 F.2d 1429, 1445 (9th Cir.1984) (“All uncertainties [in calculating a backpay award] should be resolved against the employer.”); U.S. v. City of Miami, 195 F.3d 1292, 1299 (11th Cir.1999) (“[W]e have observed that remedial relief does not require “‘unrealistic exactitude,’” and that “ ‘uncertainties’ ” in the relief process “ ‘should be resolved against the discriminating employer.’ ” ”).
It is axiomatic that Mr. Cheeks’ damages began to accrue when the unlawful discrimination by Mayflower occurred; the question which has not been fully resolved with clarity-by the parties, however, is the date of that discrimination. The Commission argues that when Mayflower failed to rehire Mr. Cheeks, even though it was cognizant that he had not violated the company’s policy regarding unexcused absences, discrimination occurred.
The Commission did not err in its decision that Mayflower engaged in unlawful discrimination when it refused to rehire Mr. Cheeks. What is not definitively resolved by the record, however, is the approximate or exact date upon which Mayflower engaged in that unlawful discrimination. Mayflower appears to assert that back pay damages for Mr. Cheeks began to accrue when Mayflower refused the union’s grievance, and for the last time engaged in unlawful discrimination by refusing to rehire Mr. Cheeks. The Commission asserts that Mayflower possessed the same evidence on November 5, 2001, when it fired Mr. Cheeks as when it denied the grievance on March 13, 2002. The Commission therefore takes the position that because Mayflower could have reversed its termination decision on November 5, 2001, the discrimination occurred on that date.
The record before this Court does not establish when Mayflower’s human resources department had in view all of the pieces of the puzzle, could discern that Mr. Cheeks had been improperly discharged, and failed to give Mr. Cheeks the same consideration that was given to white employees. That date might be the day Mr. Cheeks was terminated on November 5, 2001; the day Mr. Cheeks filed his initial grievance; some point in the grievance process; the day the human resources director drafted her March 13, 2002 memorandum denying the grievance after reviewing Mr. Cheeks’ employment record; or some other date.
Accordingly, we reverse, in part, the circuit court’s order regarding Mr. Cheeks, and remand this case to the circuit court for factual reconsideration of the date that unlawful discrimination by appellant Mayflower occurred, and thereby the date that Mr. Cheeks’ back pay damages began to accrue.
IV.
After careful consideration of the extensive factual record developed below, we affirm the Commission’s and circuit court’s determinations that unlawful discrimination occurred in appellant Mayflower’s decision not to rehire appellees Cheeks and Lewis.
However, we reverse the Commission’s and circuit court’s back pay award to appel-lee Cheeks, and remand the case to the circuit court for a factual determination of the proper date that unlawful discrimination against appellee Cheeks occurred, and thereby the date appellee Cheeks’ back pay award began to accrue.
Affirmed, in part, Reversed, in part, and Remanded.
. A human resources employee made a notation of the date the form was given to Mr. Cheeks— "10-25-01” — on the upper right comer of the application. The text of the application states, "This form must be returned within 15 calendar days.”
. Mayflower's attendance policy classified a medically-excused absence as "FMLA” leave, in reference to the Family Medical Leave Act. Mr. Cheeks' attendance record noted his termination with a handwritten note saying "never returned FMLA paperwork.”
. We note that, contrary to Mayflower's assertion, the application for medical leave does not slate that the application must be returned within fifteen days of an illness. The application also does not say that an illness will be recorded as unexcused if the application is returned more than fifteen days after an illness. The application instead states:
A leave request [using this form] based on an employee's serious health condition ... must be accompanied by a verifying medical certification from a physician. This form must be completed for consideration. This form must be returned within 15 calendar days. Failure to do so may result in denial of leave until such certification is provided.
.Copies of the physician's written excuses — apparently taken from Mayflower's employment records for Mr. Cheeks — for the October 12th, 13th, 18th, and November 1st and 2nd illnesses are contained in the record.
. As we discuss in greater detail later in this opinion, Mayflower asserts that the union dropped its grievance for Mr. Cheeks on July 19, 2002. Unfortunately, we can find no mention of this date anywhere in the record, and Mayflower's appellate briefs do not provide any guidance on the source of this date.
. As Mr. Lewis explained in his testimony:
The system they had was you gave them a number. Now, me, Jody ..., and I can't think of the other group leader that had the same phone number, okay. If Jody gets there before I do, and somebody calls in, and if I — if she gets there before I do, if she hears all the messages, if she don't save 'em, they're gone. If she don’t tell me, which it happened to me a couple of times, a couple of my people, she never — she erased the message and didn’t tell me, I put 'em down as a no call / no show. Because I don’t — there's nothing on the recorder so I gotta say it's no call / no show.... [T]hen I go back, and the people say no, I called in a vacation day that day, then I gotta change that. And they had — they trained us how to change that on the computers; they trained us group leaders. We had a certain number we could go into — how to go in, 'cause that's how we had to do our time ourself.
. Mayflower has apparently abandoned this call-in answering-machine system after Mr. Lewis was terminated. Employees must now call the plant and explain their absence to a person. As Mr. Lewis said:
They have a different system, now.... Now they changed it to where you gotta call into a security and they log it which they should have done in the first place; that's the way they should have done in the first place and then there wouldn’t be no dispute.
. Mr. Lewis testified:
And so there was a couple times I had to do there, and there was a couple times it happened to me after I was salaried that I had to [go to the human resource director’s] office to explain to her that I called in a vacation day; and she says "I'm not going to do this for you again.” I said, "... these are my days, it’s not my fault, it’s your system’s fault. If somebody goes in there and erase it, it’s not my fault, you know.” And I had to do that twice and she said, "This is the last time I will do anything for you, Sam.” And that was her exact words, you know; and it was not my fault, I had the vacation day, and you can call in a vacation day.
. The record suggests that the union did not pursue an appeal because Mayflower’s human resources director may have told the union representative that Mr. Lewis had been "given his days back.” Another reason may be that the union representative never gave Mr. Lewis the correct papers to file an appeal until after the appeal period had expired.
. For example, Kevin S. was a white employee terminated for excessive absences on February 4, 2000, and rehired on February 24, 2000, with the time off being treated as a "suspension” for excessive absences. Kevin S. was again terminated for excess absences on June 9, 2000, and reinstated — at a higher pay rate — with no loss of pay on July 25, 2001, when Mayflower determined that the absences were a result of being on plant medical leave.
Darren B. was a white employee who was an alcoholic, and who was repeatedly sanctioned for absenteeism in the 1990s. Darren B. was disciplined for performance-related problems in January 2000, was disciplined for five "lates” in a month in February 2000, was notified by May 2000 that he had accrued eight unexcused absences, and was later written up for leaving work early three times. Darren B. was written up again for accruing eight unexcused absences in a one year period on January 21, 2001, and again for accruing eight absences — one of which was as a result of an arrest for driving under the influence — on June 1, 2001. On June 13, 2001, Darren B. accrued a ninth absence. When he met with a Mayflower human resources employee the next day, Darren B. was not terminated but was instead asked to sign a "last chance agreement.” Mayflower also, admirably, re ferred Darren B. to a hospital for the treatment of his alcoholism.
Lisa T. was a white employee who returned to work from an illness and was terminated on June 27, 2003 for excessive unexcused absences. She was never given an opportunity to explain that her absences were the result of illnesses that were excusable under Mayflower’s medical leave policy. A union representative filed a grievance with the human resources director, explaining that Lisa T. had been terminated before ever being given an opportunity to apply for medical leave. It appears that on July 14, 2003, the human resources director reversed her decision, reinstated Lisa T. to her job and made a note in Lisa T.'s file that she had been “made whole [in] regard [to] all monies and all lost seniority.”
. For example, Todd B., a white employee, has two memos in his employment file regarding his being drunk on the job on two different occasions in 2001; one memo indicates that Todd B. was escorted from the plant and ordered not to return to work drunk. The employment file also has several "write-ups” for Todd B. repeatedly being late to work, or leaving work early. Todd B. was terminated for excessive absences on June 15, 2000, and rehired under a "last chance" agreement on July 31, 2000; was terminated and rehired under another "last chance” agreement on May 29, 2001; and was terminated for ten absences on September 4, 2001, and was rehired under a "last chance” agreement on November 26, 2001. Todd B. was finally terminated for excessive absences on September 13, 2002.
Terry S., a white employee, was terminated on May 22, 2000, for accruing ten absences between December 20, 1999 and May 13, 2000; he was rehired under a last chance agreement on July 11, 2000. On November 17, 2000, Terry S. came to the plant but was "in no shape to work.” Terry S. saw one supervisor in the parking lot and "ran to get away” from him. Another supervisor found Terry S., sent him home and Mayflower terminated Terry S. for “violation [of] company policy.” However, Terry S. was rehired — at a higher salary and with ten vacation days — in September 2001, and given another pay raise in November 2001.
. W.Va.Code, 5-11-11(a) states, in pertinent part:
From any final order of the commission, an application for review may be prosecuted by either party to the supreme court of appeals within thirty days from the receipt thereof by the filing of a petition therefor to such court against the commission and the adverse party as respondents, ... Provided, That in the following cases the appellant may prosecute the appeal in the circuit court of Kanawha County pursuant to section four, article five, chapter twenty-nine-a of this code: (1) Cases in which the commission awards damages other than back pay exceeding five thousand dollars; (2) cases in which the commission awards back pay exceeding thirty thousand dollars; and (3) cases in which the parties agree that the appeal should be prosecuted in circuit court.
Mr. Lewis was awarded $3,277.45 for humiliation, embarrassment, emotional distress and loss of personal dignity, and $18,107.92 in back pay.
. The final order of the Commission was issued on September 10, 2004, and the petition for appeal to this Court was filed on April 22, 2005.
W.Va.Code, 55-11-11(a) states that appeals from the Commission directly to the Supreme Court of Appeals must be filed within thirty days of receipt of the Commission’s order. Likewise, appeals from a circuit court order must be filed within thirty days of entry of a final order of the circuit court.
. Roger T. was finally terminated after destroying company property.
. Donald M. was terminated on June 21, 2000, and rehired July 11, 2000. He was also given two days of vacation upon his rehiring. A Mayflower representative testified that Donald M. was rehired pursuant to negotiations with the union, but there is no documentation from Donald M.'s employment file that supports this testimony.
. Mayflower does not challenge the calculation of damages awarded to Mr. Lewis.
. The final order of the Commission, dated September 10, 2004, required Mayflower to pay Mr. Cheeks incidental damages in die amount of $3,277.45 for humiliation, embarrassment, emotional distress and loss of personal dignity; net back pay in the amount of $101,754.88 through July 31, 2004; front pay of $3,347.57 per month until such time as Mayflower reinstated Mr. Cheeks to the next available full-time position; and pre-and post-judgment interest.
. Another argument is raised by appellant Mayflower, one which we find to be thoroughly baffling and difficult to summarize. This argument appears to be based upon the Commission's attorney’s use of the spreadsheet that incorrectly showed no lost wages for Mr. Cheeks from July 2003 onward.
In a preliminary February 2004 decision that discussed the incorrectly-prepared spreadsheet, the Commission expressed confusion about why the record did not show any back pay damages for Mr. Cheeks "subsequent to July 2003 " [emphasis added]. However, without objection from Mayflower, the Commission’s attorney later produced a complete summary of Mr. Cheeks' lost wages, and the Commission's final September 2004 order awarded Mr. Cheeks back pay for the period from July 2003 until July 31, 2004.
In its appellate brief, however, Mayflower quotes the Commission’s expression of confusion in the preliminary decision, and based upon that expression argues that the Commission should not have granted back pay to Mr. Cheeks from July 2002 until October 2002. Mayflower further argues that the Commission’s final decision to award back pay damages should be reversed because the Commission "realized the inherent problems in awarding back pay to Mr. Cheeks" for this time period. However, two sentences later, in the same paragraph, Mayflower decides that the Commission's decision "was not an abuse of discretion” and that the "back pay award for July 19, 2002 to the end of October 2002 was appropriate.”
As best we can determine, Mayflower appears to have spent three pages of its appellate brief arguing that the Commission's initial order of February 2004 should be adopted to the extent it was based on an incomplete evidentiary record, and that the Commission’s final order of September 2004 should be reversed to the extent it is based on a thorough review of a complete evi-dentiary record.
We decline Mayflower's invitation to reach such a result.
. As discussed in the text, supra, Mayflower's human resources director stated in the March 13, 2002 memorandum that Mr. Cheeks had violated the company’s medical leave policy by turning in a medical leave application twenty two or twenty three days after receiving the application, and not within "the 15 days allowed." This statement was made even though Mayflower's records plainly revealed that Mr. Cheeks returned the application within five or six days of receiving the application. | [
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Justice DAVIS delivered the Opinion of the Court.
DAVIS, Justice.
The appellants herein and defendants below, James P. Brown, D.D.S., and his wife, Lynn Brown [hereinafter collectively referred to as “Dr. Brown”], appeal from an order entered July 21, 2004, by the Circuit Court of Fayette County granting declaratory judgment to the appellee herein, Shelby Casualty Insurance Company [hereinafter referred to as “Shelby”]. By the terms of that order, the circuit court determined that, at the time Dr. Brown initially purchased and later renewed his policy of umbrella insurance with Shelby, W. Va.Code § 33-6-31(b) (1998) (Repl.Vol.2003) did not require Shelby to offer Dr. Brown uninsured or underin-sured motor vehicle coverage in an amount up to the liability limits of such policy. On appeal to this Court, Dr. Brown contends that the circuit court erred because, he claims, the Legislature had imposed such a duty upon Shelby prior to its 2001 enactment of W. Va.Code § 33-6-31f(a) (2001) (Repl.Vol.2003), which specifically imposes such a duty upon umbrella insurance carriers. Upon a review of the parties’ arguments, the record designated for appellate consideration, and the pertinent authorities, we find that the circuit court did not commit error in finding that Shelby did not have a duty, at the time of the events at issue herein, to offer Dr. Brown uninsured and underinsured motor vehicle coverage when he purchased his policy of umbrella insurance. Accordingly, we affirm the circuit court’s July 21, 2004, order.
I.
FACTUAL AND PROCEDURAL HISTORY
The instant proceeding has its origins in a fatal ear accident that occurred in Fayette County, West Virginia, on July 22, 2000. As a result of the accident, the minor driver and three minor passengers of the ear that pulled into the path of the vehicle Dr. Brown was driving were killed, and Dr. and Mrs. Brown sustained various injuries. Following the accident, an interpleader suit was filed by the minor driver’s insurance carrier, Newark Insurance Company, in the Circuit Court of Fayette County, against Dr. and Mrs. Brown and the estates of the minors involved in the accident. Dr. Brown also filed a declaratory judgment action against his own insurer, Shelby Casualty Insurance Company, on October 24, 2001, to recover additional underin-sured motorist benefits for the injuries he and his wife sustained in the accident.
At the time of the subject accident, Dr. Brown carried a motor vehicle liability insurance policy with Shelby that had limits of $100,000/$300,000, with identical amounts of uninsured and underinsured motor vehicle coverage. In addition, Dr. Brown had a $1,000,000 personal liability umbrella insurance policy also with Shelby that was in force and effect at the relevant time. Central to the issues Dr. Brown raised in his litigation against Shelby are the dates on which he purchased the aforementioned policy of umbrella insurance. He initially purchased said policy on April 15, 1994, and has subsequently renewed this policy on an annual basis. At the time relevant to the underlying automobile accident, Dr. Brown had renewed his umbrella insurance policy with Shelby on April 15, 2000, and the policy covered the period from April 15, 2000, to April 15, 2001.
Before the circuit court, Dr. Brown asserted that he was entitled to recover underin-sured motorist benefits from his policy of umbrella insurance because, he alleged, W. Va.Code § 33-6-31(b) (1998) (Repl.Vol. 2003) specifically requires that an insurer who sells a policy providing motor vehicle insurance coverage is required to offer the insured the opportunity to purchase uninsured and underinsured motor vehicle coverage in an amount equal to the liability limits of said umbrella liability policy, in this case, $1,000,000. Because, Dr. Brown claimed, Shelby never offered him the opportunity to purchase such coverage, it will be read into his umbrella insurance policy as a matter of public policy and he is entitled to collect the additional underinsured motorist benefits that would have been provided thereby.
By contrast, Shelby contended that W. Va. Code § 33-6-31 (b) did not require it to offer Dr. Brown an opportunity to purchase such uninsured and underinsured motor vehicle coverage when he purchased or renewed his umbrella insurance policy because this duty was not specifically imposed by the Legislature until it enacted W. Va.Code § 33-6-31f(a) (2001) (Repl.Vol.2003) in 2001. Furthermore, Dr. Brown’s policy of umbrella insurance expressly did “not provide Uninsured Motorists coverage, Underinsured Motorists coverage, or any similar coverage unless the policy is endorsed to provide such coverage.” Insofar as the underinsured motorist benefits which Dr. Brown sought to recover from his umbrella insurance policy were specifically excluded thereby, Shelby asserted that he was not entitled to such a recovery.
Upon Dr. Brown’s complaint requesting declaratory relief, the circuit court, by order entered July 21, 2004, found in favor of Shelby, concluding that, at the times relevant to this case, Shelby did not have a duty to offer Dr. Brown the option to purchase uninsured or underinsured motor vehicle coverage in an amount up to the liability limits of his umbrella insurance policy in conjunction with his purchase thereof. In so ruling, the circuit court explained that
[I]t appears to the Court that the intention of the legislature during the period from April, 1994 through July, 2000, was to require the offer of uninsured and un-derinsured motor vehicle coverage only to automobile liability insurance policies or contracts. It appears to the Court that if the legislature had intended to include excess liability and umbrella type policies or any other general liability policies prior to July of 2001, as it did in 2001, it would have done so.
From this adverse ruling, Dr. Brown appeals to this Court.'
II.
STANDARD OF REVIEW
The sole issue presented for our determination and decision by the instant appeal concerns the circuit court’s interpretation- and application of two statutory provisions: W. Va.Code § 33 — 6—31(b) and W. Va.Code § 33-6-31f(a). When we are called upon to review an order of a lower court rendering a declaratory judgment, we apply a plenary review to the circuit court’s ruling. “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). Accord Syl. pt. 2, Carvey v. West Virginia State Bd. of Educ., 206 W.Va. 720, 527 S.E.2d 831 (1999).
Likewise, with respect to the circuit court's rulings interpreting and applying the two statutory provisions at issue herein, we also apply a de novo standard of review. “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) (“Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.”).
Having determined the standards of review applicable to the case sub judice, we will now consider the parties’ arguments.
III.
DISCUSSION
In this appeal we are asked to determine whether W. Va.Code § 33-6-31(b) requires insurers to offer their insureds uninsured and underinsured motor vehicle coverage in conjunction with the insured’s purchase of a policy of umbrella insurance or whether such a duty is imposed solely by W. Va.Code § 33-6-31f(a). During the proceedings underlying this appeal, the circuit court determined that the requirements of W. Va.Code § 33 — 6—31 (b) do not apply to umbrella insurance policies. Dr. Brown contends that the circuit court erred and that W. Va.Code § 33-6-31(b) does extend the duty to offer such coverage to policies of umbrella insurance. Shelby, however, suggests that the circuit court correctly ruled and that no such duty existed until the Legislature enacted W. Va.Code § 33-6-31f(a) in 2001.
The statutes at issue in this proceeding are W. Va.Code § 33-6-31(b) and W. Va.Code § 33-6-31f(a). In relevant part, W. Va.Code § 33-6-31 (b) (1998) (Repl.Vol.2003) directs
[t]hat such policy or contract shall provide an option to the insured with appropriately adjusted premiums to pay the insured all sums which he shall legally be entitled to recover as damages from the owner or operator of an uninsured or un-derinsured 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.
(Footnote added). Additionally, the pertinent language of W. Va.Code § 33-6-31f(a) (2001) (Repl.Vol.2003) provides that,
[notwithstanding any other provisions of this article, insurers issuing or providing liability policies that are of an excess or umbrella type and which are written to cover automobile liability shall offer uninsured and underinsured motor vehicle coverage on such policies in an amount not less than the amount of liability insurance purchased by the named insured[.]
Before addressing the issue directly before the Court, however, it is helpful to review general principles of statutory construction.
Traditionally, when this Court is asked to resolve a question regarding a matter of statutory construction, we first consider the intent of the Legislature in enacting the subject provision. “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). Then, “[o]nce 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). When the language chosen by the Legislature is plain, we apply, rather than construe, such legislative language. “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)).
In the case sub judice, we are faced with two statutory provisions, both of which, by their express terms, impose upon insurers the duty to offer uninsured and underinsured motor vehicle coverage to an insured purchasing a policy of insurance in an amount not less than the liability limits of such policy. However, these statutes differ insofar as W. Va.Code § 33-6-31f(a) specifically states that it applies to policies of umbrella insurance coverage whereas W. Va.Code § 33-6-31(b) is silent as to whether it applies to umbrella policies. When faced with a choice between two statutes, one of which is couched in general terms and the other of which specifically speaks to the matter at hand, preference generally is accorded to the specific statute. “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.” Syl. pt. 1, UMWA by Trumka v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984). Accord Syl. pt. 6, Carvey v. West Virginia State Bd. of Educ., 206 W.Va. 720, 527 S.E.2d 831 (1999). See also Bowers v. Wurzburg, 205 W.Va. 450, 462, 519 S.E.2d 148, 160 (1999) (“Typically, when two statutes govern a particular scenario, one being specific and one being general, the specific provision prevails.” (citation omitted)); 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)).
Applying this rule of statutory construction to the statutes at issue, it is apparent that W. Va.Code § 38-6-31f(a), as the statute specifically governing the obligations of insurers who issue policies of umbrella insurance, should prevail over the more general provisions of W. Va.Code § 33-6-31(b). That said, it is apparent that the Legislature imposed upon insurers a duty to offer uninsured and underinsured motor vehicle coverage to insureds in conjunction with their purchase of umbrella coverage when it enacted W. Va.Code § 33-6-31f(a) in 2001.
Moreover, the Legislature’s act of promulgating W. Va.Code § 33-6-31f(a) strongly suggests that the requirements of W. Va.Code § 33 — 6—31(b) do not, and were not intended to, apply to umbrella policies. If W. Va.Code § 33-6-31(b) had been intended to apply to policies of umbrella insurance, the Legislature’s subsequent enactment of W. Va.Code § 33-6-31f(a) would have been an unnecessary, redundant, and futile act, which we presume the Legislature would not have done. “ ‘It is always presumed that the legislature will not enact a meaningless or useless statute.’ Syllabus Point 4, State ex rel. Hardesty v. Aracoma-Chief Logan No. 4.523, Veterans of Foreign Wars of the United States, Inc., 147 W.Va. 645, 129 S.E.2d 921 (1963).” Syl. pt. 1, Richards v. Harman, 217 W.Va. 206, 617 S.E.2d 556 (2005).
Additionally,
“[t]he Legislature must be presumed to know the language employed in former acts, and, if in a subsequent statute on the same subject it uses different language in the same connection, the court must presume that a change in the law was intended.” Syl. pt. 2, Hall v. Baylous, 109 W.Va. 1, 153 S.E. 293 (1930).
Syl. pt. 2, Butler v. Rutledge, 174 W.Va. 752, 329 S.E.2d 118 (1985). See also Syl. pt. 11, Rice v. Underwood, 205 W.Va. 274, 517 S.E.2d 751 (1998) (“ ‘ “ ‘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. 1, State ex rel. Simpkins v. Harvey, 172 W.Va. 312, 305 S.E.2d 268 (1983), 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. 2, State ex rel. Hall v. Schlaegel, 202 W.Va. 93, 502 S.E.2d 190 (1998).” (emphasis added)); Banker v. Banker, 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996) (“It 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 purposefully omitted.” (emphasis added) (citations omitted)).
It is apparent, then, that the Legislature’s decision to promulgate W. Va.Code § 33-6-31f(a) signifies that it did not intend W. Va.Code § 33-6-31(b) to apply to policies of umbrella insurance and, thus, that W. Va. Code § 33-6-31(b) does not impose a duty upon insurers to offer insureds uninsured and underinsured motor vehicle coverage in connection with their purchase of umbrella coverage. Therefore, we hold that W. Va. Code § 33-6-31(b) (1998) (Repl.Vol.2003) does not require insurers to offer an insured uninsured and underinsured motor vehicle coverage in an amount not less than the policy’s liability limits when an insured purchases a policy of umbrella insurance.
Finally, having ascertained that W. Va.Code § 33 — 6—31f(a) is dispositive of an insurer’s obligation to offer uninsured and underinsured motor vehicle coverage upon an insured’s purchase of an umbrella policy, we must consider the language employed by the Legislature to determine the nature of such a duty. In pertinent part, W. Va.Code § 33-6-31f(a) directs that “insurers issuing or providing liability policies that are of an excess or umbrella type and which are written to cover automobile liability shall offer uninsured and underinsured motor vehicle coverage on such policies in an amount not less than the amount of liability insurance purchased by the named insured[.]” (Emphasis added). Prominent in this mandate to insurers is the Legislature’s use of the word “shall”. We repeatedly have held that “[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.” Syl. pt. 1, Nelson v. West Virginia Pub. Employees Ins. Bd., 171 W.Va. 445, 300 S.E.2d 86 (1982). Accord Syl. pt. 6, State v. Myers, 216 W.Va. 120, 602 S.E.2d 796 (2004), cert. denied, 543 U.S. 1075, 125 S.Ct. 925, 160 L.Ed.2d 813 (2005). See also State ex rel. Brooks v. Zakaib, 214 W.Va. 253, 264-65, 588 S.E.2d 418, 429-30 (2003) (“Ordinarily, the word ‘shall’ has a mandatory, directory connotation.” (citations omitted)); State v. Allen, 208 W.Va. 144, 153, 539 S.E.2d 87, 96 (1999) (“Generally, ‘shall’ commands a mandatory connotation and denotes that the described behavior is directory, rather than discretionary.” (citations omitted)).
We noted above that statutory language that is plain should be applied as written and not construed. See, e.g., Syl. pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488. That said, we find the language of W. Va.Code § 33-6-31f(a) to be plain and to impose a mandatory duty upon insurers to offer their insureds uninsured and underinsured motor vehicle coverage when the insureds purchase policies of umbrella insurance that provide coverage for automobile liability. Accordingly, we hold that W. Va.Code § 33-6-31f(a) (2001) (Repl.Vol.2003) specifically requires that insurers “shall offer uninsured and un-derinsured motor vehicle coverage on ... policies [that are of an excess or umbrella type and which are written to cover automobile liability] in an amount not less than the amount of liability insurance purchased by the named insured.”
Despite this statutory duty imposed upon insurers vis-a-vis umbrella insurance policies, we nevertheless agree with the circuit court’s decision finding that Shelby did not, under the facts of this case, have an obligation to offer Dr. Brown uninsured and underinsured motor vehicle coverage when he purchased or renewed his Shelby umbrella policy because the Legislature did not create this duty until 2001, nearly one year after the events giving rise to Dr. Brown’s underinsurance claim. Insofar as there existed no statutory duty for insurers to make such an offer in connection with policies of umbrella insurance prior to this date, we affirm the circuit courts ruling awarding declaratory judgment to Shelby.
IV.
CONCLUSION
For the foregoing reasons, the July 21, 2004, order of the Circuit Court of Fayette County is hereby affirmed.
Affirmed.
. Although Newark Insurance Company is the named appellee in this appeal, the actual party appellee before the Court is Shelby Casualty Insurance Company. As a result of the underlying automobile accident, various parties have brought causes of action seeking to recover against numerous policies of insurance alleged to be applicable to said accident. See note 6, infra. At issue in the present appeal is Dr. Brown's litigation seeking recovery from his own insurance carrier, Shelby. See Section I, infra.
. According to the police investigation following the accident, it was determined that the minor driver had failed to yield the right of way and that Dr. Brown was not at fault for the accident.
. For further details about the underlying automobile accident, see Horace Mann Insurance Co. v. Adkins, 215 W.Va. 297, 599 S.E.2d 720 (2004).
. See infra note 7.
. Shelby paid Dr. Brown the $100,000 limits of underinsured motor vehicle coverage available to him under his automobile insurance policy. Dr. Brown's third-party complaint seeks to recover additional amounts of underinsurance from his separate personal liability umbrella insurance policy. See note 8, infra, and accompanying text.
. Other litigation has been filed by at least one minor passenger's estate against his own motor vehicle insurer, Horace Mann Insurance Company. See note 3, supra.
. The Newark policy of insurance insuring the minor driver had total liability limits of $50,000/ $100,000, against which claims were made by estates of the minors involved in the accident and Dr. and Mrs. Brown.
. Umbrella insurance, also known as excess liability insurance, is defined as "[¡Insurance that is supplemental, providing coverage that exceeds the basic or usual limits of liability." Black's Law Dictionary 808 (7th ed.1999). See also Black's, at 811 (construing "umbrella policy” as "[a]n insurance policy covering losses that exceed the basic or usual limits of liability provided by other policies”).
. The coverage period for the renewal of Dr. Brown's motor vehicle insurance policy with Shelby was from July 13, 2000, to January 13, 2001.
. For the relevant text of W. Va.Code § 33-6-31(b) (1998) (Repl.Vol.2003), see Section III, infra.
. Shelby did, however, offer Dr. Brown the opportunity to purchase uninsured and underin-sured motor vehicle coverage when he renewed his motor vehicle policy, which coverage he did purchase. See supra note 5.
. See Section III, infra, for the pertinent language of W. Va.Code § 33-6-31 f(a) (2001) (Repl. Vol.2003).
. "[S]uch policy or contract” refers to a "policy or contract of bodily injury liability insurance, or of property damage liability insurance, covering liability arising from the ownership, maintenance ór use of any motor vehicle.” W. Va.Code § 33-6-31(a) (1998) (Repl.Vol.2003). | [
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WORKMAN, Chief Justice:
Philadelphia Life Insurance (“PLI”) appeals from the Circuit Court of Upshur County’s decision prohibiting it from asserting a cross-claim against co-defendant Professional Benefits Consultants (“PBC”) and a third-party complaint against non-party Rudolph Pellegrini under principles of implied indemnity. PLI also challenges the circuit court’s decision not to dismiss this case, arguing that federal jurisdiction is preemptive given the references to an ERISA plan in the underlying case. After a thorough review of the record and the law in this area, we affirm the lower court’s finding that preemption was not required and we affirm the lower court’s decision prohibiting PLI from amending its pleadings.
In 1972, Martin Oil, the plaintiff in the underlying case, decided to establish a retirement plan for its employees. Martin Oil used the services of PLI to set up its ERISA plan. PLI’s status was that of a third-party administrator with reference to the Martin Oil pension plan. It appears that PLI’s employee, Rudolph Pellegrini, was the individual who actually handled the third-party administration of the Martin Oil plan. In June 1988 when it decided that it wanted to get out of the business of pension plan administration, PLI purportedly mailed letters to its clients informing them of its decision and recommending that they retain Mr. Pellegri-ni to handle their accounts. In August 1983, Mr. Pellegrini left PLI and incorporated PBC, naming himself as president. The parties agree that Mr. Pellegrini took the Martin Oil file with him when he started PBC.
In 1985, Martin Oil decided to terminate its pension plan, which was now being serviced by PBC. When Martin Oil informed PBC of its desire to terminate the plan, PBC recommended that Martin Oil hire an accountant to terminate the plan. In attempting to terminate the plan, Martin Oil’s accountant discovered that he did not have sufficient financial information to effect the termination. After incurring substantial expense, Martin Oil ultimately terminated its pension plan in October 1991.
On July 31, 1992, Martin Oil filed a complaint in circuit court against PLI and PBC to recover the costs associated with the plan’s termination. In the complaint, Martin Oil alleged that PLI and PBC are liable to it for breach of contract. Martin Oil entered into a settlement agreement with PBC and Mr. Pellegrini on October 27, 1995. The remaining defendant, PLI, filed a motion on November 30, 1995, seeking leave to file an amended answer and cross-claim against PBC and a third-party complaint against Mr. Pellegrini, individually. By order dated February 27, 1996, the circuit court dismissed PBC with prejudice and denied PLI’s motions to file additional pleadings. PLI seeks a reversal of that order, as well as a ruling from this Court that the state court’s jurisdiction over this matter is preempted under federal law.
I.
PREEMPTION
PLI argues that the jurisdictional lan-guage of ERISA, which provides that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan ... [,]” requires that this matter be heard in federal court. 29 U.S.C. § 1144(a) (1994). Based on the expansive judicial interpretation given to the terms “relate to,” PLI maintains that federal jurisdiction is mandated. Id. PBC takes no position with regard to the issue of preemption and Martin Oil argues that its breach of contract claims are not preempted by ERISA.
As support for its position that the terminology “relate[s] to” must be viewed expansively, PLI cites the United States Supreme Court’s observation in Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987), that this phrase conveys “ ‘its broad common-sense meaning, such that a state law “relates to” a benefit plan “in the normal sense of the phrase if it has a connection with or reference to such a plan.” ’ ” Id. at 47, 107 S.Ct. 1549 (quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985), quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). Despite the historically broad interpretation of the relevant statutory language, it has been consistently recognized that state laws or actions that affect a pension plan in “too tenuous, remote or peripheral a manner” are not preempted by ERISA. Shaw, 463 U.S. at 100, n. 21, 103 S.Ct. 2890; accord Hollingsworth Paving, Inc. v. Jefferson-Pilot Life Ins. Co., 929 F.Supp. 1097, 1100 (W.D.Tenn.1996); Ball v. Life Planning Servs., Inc., 187 W.Va. 682, 421 S.E.2d 223 (1992) (finding that state law imposing liability on unlicensed insurance brokers had too tenuous an effect on ERISA plan to require preemption).
While the seemingly ubiquitous issue of ERISA preemption has resulted in diverse rulings depending on the deciding tribunal’s application of the “relate to” jurisdictional language, certain generalizations can be made with regard to when preemption is and is not required. Where the state law claim seeks the recovery of ERISA benefits, there is no dispute that such claim affects the plan and therefore preemption is necessary. See Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991), cert. dismissed, 505 U.S. 1233, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992) (finding preemption where health care provider sued plan administrator seeking recovery of plan benefits). Similarly, those cases in which the state law claim involves “some aspect of the distribution, processing or entitlement of benefits or administration of claims or funds under a[n] [ERISA] plan[,]” typically are determined to be preempted by federal law. Hollingsworth Paving, 929 F.Supp. at 1101; see also Metropolitan Life Ins. Co. v. Pressley, 82 F.3d 126, 129 (6th Cir.1996), cert. denied sub nom. Pressley v. Pressley, 520 U.S. 1263, 117 S.Ct. 2431, 138 L.Ed.2d 193 (1997) (commenting that state laws relating to designation of beneficiaries are preempted when an ERISA plan is involved); Tri-State Mach., Inc. v. Nationwide Life Ins. Co., 33 F.3d 309 (4th Cir.1994), cert. denied, 513 U.S. 1183, 115 S.Ct. 1175, 130 L.Ed.2d 1128 (1995) (holding that ERISA preempted state law claim brought by employer against insurance company for wrongful claims processing). In addition to the nature of the claim, the identity of the parties is a critical factor when resolving the issue of preemption. In the prototypical preemption ease, as the court observed in Hollingsworth Paving, the parties involved will be “employees or former employees, who challenge some aspect of their status as beneficiaries under a plan.” 929 F.Supp. at 1101. Other parties who may be included in a case where preemption is required are the employer, the plan, and the plan fiduciaries. See Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550, 556 (6th Cir.1987); General Am. Life Ins. Co. v. Castonguay, 984 F.2d 1518, 1521 (9th Cir.1993) (stating that “the key to distinguishing between what ERISA preempts and what it does not lies ... in recognizing that the statute [ERISA] comprehensively regulates certain relationships: for instance, the relationship between plan and plan member, between plan and employer, between employer and employee (to the extent an employee benefit plan is involved), and between plan and trustee”).
PLI’s preemption argument rests entirely on the broad interpretation given to the jurisdictional terms “relate to.” 29 U.S.C. § 1144(a). According to PLI, the mere reference to the Martin Oil pension plan in the instant ease requires preemption. Yet, this is far from true, as the mere incidental reference or effect of state laws on an ERISA plan does not provide the requisite basis for preemption. See Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 146-47 (2nd Cir.), cert. denied, 493 U.S. 811, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989) (stating that “[w]hat triggers ERISA preemption is not just any indirect effect on administrative procedures but rather an effect on the primary administrative functions of benefit plans, such as determining an employee’s eligibility for a benefit and the amount of that benefit”); see also Thiokol Corp. v. Roberts, 858 F.Supp. 674, 683-84 (W.D.Mich.1994), aff'd, 76 F.3d 751 (1996), cert. denied sub nom. Thiokol Corp. v. Revenue Div’n, Dep’t of Treasury, 520 U.S. 1271, 117 S.Ct. 2448, 138 L.Ed.2d 206 (1997) (holding that preemption was not required because Michigan’s Single Business Tax had only an incidental effect on ERISA plans despite fact that tax was calculated based on plan contributions); accord Provience v. Valley Clerks Trust Fund, 509 F.Supp. 388, 391 (E.D.Cal.1981) (holding that “where the state law has only an indirect effect on the plan and where it is one of general application which pertains to an area of important state concern, the court should find there has been no preemption”).
Given the dearth of West Virginia law on this issue, we find the district court’s approach in Hollingsworth Paving instructive to the issue of preemption before us. In that case, the plan administrator sued the life insurance carrier for breach of fiduciary duty, alleging that the carrier’s salesman altered the nature of the pension plan by soliciting waivers from affected employees which increased the carrier’s commissions, increased the employer’s contributions for highly compensated employees, and barred the signing employees from registering under the plan. 929 F.Supp. at 1098. In analyzing whether preemption was required, the court adopted the following considerations previously identified by the Sixth Circuit Court of Appeals as relevant:
(1) whether the state law represents a traditional exercise of state authority; (2) whether the parties involved are principal ERISA parties such as the employer, the plan, the plan fiduciaries, and the beneficiaries, or, in contrast, whether the parties are outside parties; and (3) whether the state law’s effect on an ERISA plan is incidental.
929 F.Supp. at 1100 (quoting Firestone, 810 F.2d at 555-56). Before applying those factors to the facts of Hollingsworth Paving, the district court first determined the specific nature of the claim involved: “The present matter involves no issues of distribution, receipt, denial, or billing of benefits. Rather, it involves a contract for a service. The fact that the service is a plan is insufficient to bring it under ERISA.” 929 F.Supp. at 1102 (emphasis supplied). The court then determined “that the first [Firestone ] factor weighs against preemption, as state claims arising under contract law are traditionally resolved by state courts.” Id. As to the second Firestone factor, the district court concluded that the carrier was neither a fiduciary or any other principal ERISA entity. Id. Applying the final factor, the court found that “resolution of the contract claim will impact necessary contributions from employees, but it will not impact the nature of benefits distributed, or the process and terms of their distribution.” Id. Based on these findings, the Hollingsworth Paving court held that the contract claim against the carrier was not preempted under ERISA. Id.
In the analogous case of Cook Wholesale of Medina, Inc. v. Connecticut General Life Insurance Co., 898 F.Supp. 151 (W.D.N.Y.1995), the ERISA plan sponsors sued the plan’s insurance companies and their representatives for breach of a financial planning contract, which required the companies to provide a suitable ERISA plan. Id. at 152-53. The argument for preemption in Cook was based on the fact that “the plaintiffs’ state law claims implicate[d] the existence, structure, and design of .an ERISA plan.” Id. at 154. The Cook court reasoned:
A suit in state court by beneficiaries of a plan, based on alleged deficiencies in the benefits the plan provides, is clearly preempted by ERISA. When, however, the plan itself sues a service provider over the quality of the service, as it does in the present case, that transaction may he too remote from the purpose of the ERISA regulatory scheme to warrant preemption.
... “The key to distinguishing between what ERISA preempts and what it does not lies, we believe, in recognizing that the statute comprehensively regulates certain relationships: for instance, the relationship between plan and plan member, between plan and employer, between, employer and employee (to the extent an employer benefit plan is involved), and between plan and trustee. Because of ERISA’s explicit language and because state laws regulating these relationships (or the obligations flowing from these relationships) are particularly likely to interfere with ERISA’s scheme, these laws are presumptively preempted.
But ERISA doesn’t purport to regulate those relationships where a plan operates just like any other commercial entity — for instance, the relationship between the plan and its own employees, or the plan and its insurers or creditors, or the plan and the landlords from whom it leases office space. State law is allowed to govern these relationships because it’s much less likely to disrupt the ERISA scheme than in other situations.”
Id. at 155 (quoting Castonguay, 984 F.2d at 1521-22) (emphasis supplied). The district court concluded that the carrier’s representative “acted essentially as an insurance broker to plaintiffs ERISA plan” and that “the relationship between a plan and its insurer is not preempted by ERISA.” 898 F.Supp. at 156. Critical to this ruling was the court’s determination that “the structure of an ERISA plan [was implicated] without encroaching on the scope of ERISA.” Id.
The approaches taken by the courts in Hollingsworth Paving and Cook were validated by several recent United States Supreme Court decisions. In its most recent opinion on the issue of preemption, De Buono v. NYSA-ILA Medical and Clinical Services Fund, 520 U.S. 806, 117 S.Ct. 1747, 138 L.Ed.2d 21 (1997), the Court commented “[i]n our earlier ERISA pre-emption cases, it had not been necessary to rely on the expansive character of ERISA’s literal language in order to find pre-emption because the state laws at issue in those cases had a clear ‘connection with or reference to,’ ERISA benefit plans.” Id. at 1751, 117 S.Ct. 1747 (quoting Shaw, 463 U.S. at 96-97, 103 S.Ct. 2890) (citation omitted). Discussing its recent decision in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995), the Supreme Court referenced its “unequivoeal[ ] conclusion]” in Travelers that “ERISA’s ‘relates to’ language was [not] intended to modify ‘the starting presumption that Congress does not intend to supplant state law.’” De Buono, 520 U.S. at 813, 117 S.Ct. at 1751 (quoting, in part, Travelers, 514 U.S. at 654, 115 S.Ct. 1671) (emphasis supplied). Emphasizing that its “‘prior attempt[s] to construe the phrase “relate to,” d[o] not give us much help’ ” in solving the issue of whether New York’s state tax on gross receipts of health care facilities operated by a trust fund that administered ERISA plans was preempted, the Court stated in De Buono:
In order to evaluate whether the normal presumption against pre-emption has been overcome in a particular case, we concluded [in Travelers ] that we “must go beyond the unhelpful text and the frustrating difficulty of defining its key term, and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive.”
520 U.S. at 813, 117 S.Ct. at 1751 (quoting Travelers, 514 U.S. at 655-56, 115 S.Ct. 1671) (emphasis supplied). Continuing its preemption analysis the Supreme Court explained that because “the historic police powers of the State include the regulation of matters of health and safety[,]” “Respondents therefore bear the considerable burden of overcoming ‘the starting presumption that Congress does not intend to supplant state law.’ ” De Buono, 520 U.S. at 814, 117 S.Ct. at 1751-52 (quoting Travelers, 514 U.S. at 654, 115 S.Ct. 1671). Commenting that De Buono “is not a case in which New York has forbidden a method of calculating pension benefits that federal law permits, or required employers to provide certain benefits” or one in which “the existence of a pension plan is a critical element of a state law cause of action or one in which the state statute contains provisions that expressly refer to ERISA or ERISA plans,” the Supreme Court concluded that the New York law at issue “is one of ‘myriad state laws’ of general applicability that impose some burdens on the administration of ERISA plans but nevertheless do not ‘relate to’ them within the meaning of the governing statute.”’ 520 U.S. 806, 117 S.Ct. at 1752 (quoting Travelers, 514 U.S. at 668, 115 S.Ct. 1671 and 29 U.S.C. § 1144(a)) (footnotes omitted).
State laws of general applicability, such as tort or contract, as well as those actions that involve “garden variety” commercial disputes are frequently determined to be beyond the reach of the preemption clause. Fox, Curtis & Assocs., Inc. v. Employee Benefit Plans, Inc., No. 92 C 5828, 1993 WL 265474 at *4 (N.D.Ill.1993). In Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), the United States Supreme Court held that ERISA did not preempt Georgia’s general garnishment statute despite the statute’s use to collect judgments against plan participants. Id. at 831, 108 S.Ct. 2182. Discussing the statutory provision for suits against ERISA plans, the Court observed that claims “against ERISA plans for run-of-the-mill state-law claims such as unpaid rent, failure to pay creditors, or even torts committed by an ERISA plan ... are not pre-empted by ERISA.” Id. at 833, 108 S.Ct. 2182 (footnote omitted). In Fox, the plan fiduciary brought suit against the plan’s administrator and insurer for violating the terms of the written agreement under which the ERISA plan was to be administered. Analogizing the contractual dispute at issue to “a ‘garden variety’ commercial dispute,” the district court found no basis for preemption and observed that “[w]hile Congress intended to place the regulation of benefit plans squarely within the purview of ERISA, it did not intend tó regulate all aspects of contractual relationships tangential to an ERISA plan.” Fox, slip op. at *4, 5. In those instances where “[sjtate law govern[s] relationships in which an ERISA plan operates like ‘any other commercial entity’ as, for example, ‘the relationship between the plan and its own employees, or the plan and its insurers or creditors, or the plan and the landlords from whom it leases office space,’” the Fox court concluded that preemption should not apply. Id. at *4 (quoting Castonguay, 984 F.2d at 1522). Addressing the argument that involvement of an ERISA plan in the litigation required preemption, the Fox court opined: “The extent to which the plan documents will have to be reviewed in adjudicating the merits of EBTEK’s [plaintiff fiduciary] claims, if at all, is merely ancillary to an examination of the terms of the agreement between EBTEK and Defendants.” Fox, slip op. at *5.
The Fourth Circuit Court of Appeals determined in Pizlo v. Bethlehem Steel Corp., 884 F.2d 116 (4th Cir.1989), that state law claims for breach of contract, promissory es-toppel, and negligent misrepresentation were not preempted where the plaintiffs’ claims stemmed from an alleged wrongful termination. Id. at 120. The court observed in Pizlo that while the plaintiffs’ damages would be measured in part by the lost pension benefits, “the pension trust itself would not be liable and the administrators of the pension plan would not be burdened in any way.” Id. at 120-21. The court further noted that the claims involved would not submit the employer to “ ‘conflicting employer obligations and variable standards of recovery’, ‘determine whether any benefits are paid’ nor ‘directly affect the administration of benefits under the plan.’ ” Id. at 120 (quoting Sorosky v. Burroughs Corp., 826 F.2d 794, 800 (9th Cir.1987)).
Critical to any determination of preemption is the issue of Congressional intent. Pilot Life, 481 U.S. at 45, 107 S.Ct. 1549 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)). Much has been written about the purpose of ERISA:
Congress enacted ERISA’s comprehensive preemption provision to “eliminat[e] the threat of conflicting or inconsistent State and local regulation of employee benefit plans.” Shaw, 463 U.S. at 98, 103 S.Ct. at 2901. (quoting the comments of Senator Williams, 120 Cong.Rec. at 29933). Recognizing that it would be difficult for an employer to establish a uniform scheme to administer employee benefit plans “if ... [the] plan [was] subject to differing regulatory requirements in differing States,” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 9, 107 S.Ct. 2211, 2216, 96 L.Ed.2d 1, (1987), Congress enacted ERISA’s preemption provision “‘to minimize [state regulatory] interference with the administration of employee benefit plans,’ so that employers would not have to ‘administer their plans differently in each State in which they have employees ...’” Id. at 10, 107 S.Ct. at 2217 (quoting Shaw, 463 U.S. at 105, 103 S.Ct. at 2904). “Preemption ensures that the administrative practices of a benefit plan will be governed by only a single set of regulations.” Id. 482 U.S. at 11, 107 S.Ct. at 2217.
All Risks, Ltd. v. Equitable Life Assurance Soc’y of United States, 931 F.Supp. 409, 417 (D.Md.1996).
Applying these principles of congressional intent to the instant case, we first must examine the exact nature of the underlying ease. The complaint is styled as a breach of contract case and was clearly brought, not in connection with any failure to administer an ongoing ERISA plan, but to recoup the costs Martin Oil incurred when it encountered difficulty in accumulating the necessary information to enable it to terminate the plan. The pension plan no longer exists and did not exist at the time the underlying civil action was initiated. The parties are in agreement that all the beneficiaries under the plan have received their full benefits and accordingly, this lawsuit will in no way affect the plan’s beneficiaries. The only issue to be resolved by the underlying claim is whether Martin Oil is entitled to be reimbursed for the costs it incurred in terminating the company’s pension plan.
At the heart of Martin Oil’s ability to recover its termination costs is the contractual arrangement reached between Martin Oil and PLI. Whatever obligations PLI had to Martin Oil with regard to the pension plan are controlled by that contractual arrangement. The parties have not cited to any ERISA provision that governs what PLI’s obligations to Martin Oil were. This is because PLI’s status is that of a third-party non-fiduciary, and ERISA does not control such arrangements. It is between the company and the third-party administrator to reach their own agreement regarding who will handle the necessary financial accountings. Unfortunately for Martin Oil, it appears that this arrangement was not reduced to writing. That failure does not, however, invoke ERISA jurisdiction. Neither does the mere inclusion of reference to an ERISA plan within a civil action constitute sufficient basis for preemption. Following the United States Supreme Court’s recent pronouncements in this area, we hold that a party seeking preemption under the jurisdictional provision of ERISA, 29 U.S.C. § 1144(a), must first overcome “ ‘the starting presumption that Congress does not intend to supplant state law.’” De Buono, 520 U.S. at 813, 117 S.Ct. at 1751 (quoting Travelers, 514 U.S. at 654, 115 S.Ct. 1671). State law actions that are clearly subject to preemption include those where West Virginia law attempts to affect the manner in which pension benefits are calculated under federal law, where the pension plan’s existence is a critical element of the state law cause of action, or one in which the West Virginia statute expressly refers to ERISA or ERISA plans. See De Buono, 520 U.S. at 815, 117 S.Ct. at 1752. Those state law actions that incidentally involve or refer to ERISA plans, but do not present the risk of conflicting or inconsistent state law concerning pension plan regulation are not preempted under federal law. When, as in this case, the state law claim has only a tangential relation to ERISA law and there has been no showing of any potential for state law that will conflict with federal pension law, the presumption against preemption has not been met. See De Buono, 520 U.S. at 813, 117 S.Ct. at 1751. The circuit court properly determined that this action was not subject to preemption under 29 U.S.C. § 1144(a).
II.
IMPLIED INDEMNITY
Only after PLI received a partial dismissal order for its counsel’s signature pertaining to the dismissal of PBC from the civil action did PLI seek to file a cross-claim against PBC and to file a third-party complaint against Mr. Pellegrini under principles of implied indemnity. The civil action had been pending for well over two years before PLI sought to file these amended pleadings. At the hearing before the circuit court on this issue, the court inquired as to a reason for the lengthy delay between the suit’s origination and the request to amend the pleadings. In response, PLI stated only that the case had been in federal court before it was remanded to state court and that discovery had not begun until 1995.
Delay and the accompanying element of prejudice to the other parties are critical factors that must be considered when a party seeks to amend pleadings, especially when the party seeking the amendments has suffered an adverse ruling or finds itself in an unfavorable posture due to settlement between the parties. See Bluefield Sash and Door Co. v. Corte Constr. Co., 158 W.Va. 802, 805, 216 S.E.2d 216, 218 (1975), overruled on other grounds by Haynes v. City of Nitro, 161 W.Va. 230, 240 S.E.2d 544 (1977) (observing that “[i]mpleader under Rule 14(a) should never be allowed if there is a possibility of prejudice to the original plaintiff or the third party plaintiff’). As we stated in Mauck v. City of Martinsburg, 178 W.Va. 93, 357 S.E.2d 775 (1987), “[t]he liberality allowed in the amendment of pleadings does not entitle a party to be dilatory in asserting claims or to neglect his case for a long period of time.” Id. at 95, 357 S.E.2d at 777. We expounded in Mauck: “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 neglect and delay.” Id. Our review of the record reveals that PLI failed to offer a “valid reason for ... [its] neglect and delay” in waiting for over two years before it sought to assert a purely legal theory of recovery — implied indemnity. Id. If the predicate facts necessary for the assertion of an implied indemnity theory had not been revealed until discovery had begun in this ease, the position of PLI in seeking a reversal of the lower court’s ruling on this issue would be much improved. However, that is not the case. Moreover, since implied indemnity is a purely legal theory of recovery, not dependent on the existence of facts revealed in discovery, we are hard pressed to find any valid basis for the dilatoriness of PLI in seeking to amend its pleadings other than PLI’s discomfort at being the sole defendant for liability to be assessed against.
There can be no question that PBC and Mr. Pellegrini would be prejudiced if they were to be required to defend against claims predicated on implied indemnity when they have both entered into settlement agreements that have been approved by the court. This Court is certainly loathe to approve of such a backdoor method of circumnavigating the finality of settlement agreements. As we stated in Mauck, “[a] motion for leave to amend a complaint is addressed to the sound discretion of the trial court.” 178 W.Va. at 96, 357 S.E.2d at 778. We find no abuse of discretion in the trial court’s decision not to permit PLI to amend its pleadings.
Based on the foregoing, we affirm the decision of the Circuit Court of Upshur County.
Affirmed.
. ERISA refers to the federal Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 to 1461 (1994).
. The ERISA plan document lists Martin Oil as the plan administrator.
. Carl Martin, Martin Oil's president, claims to have been unaware of the transfer of his pension plan account from PLI to PBC.
. To accomplish the termination of an ERISA plan, financial information covering a five-year period is apparently required. When Mr. Pelle-grini left PLI to start PBC, he only took what is referred to as the "active” Martin Oil file, which contained the most recent two years of information pertaining to the account along with copies of the pension plan, any amendments to the plan, and any pertinent corporate resolutions. The "inactive” account information was ultimately destroyed when PBC moved to a new location in 1991.
. Martin Oil agrees that all of its pension plan beneficiaries received the entirety of the pension funds to which they were entitled.
. Although Martin Oil alleged in its complaint that it entered into a contract with PLI "to establish and administer” a pension plan, the company president testified during discovery that no such contract was ever prepared, according to his recollection.
. Both PLI and PBC filed motions to dismiss the state court action based on federal preemption and statute of limitations. These motions were denied by order dated January 24, 1995, but the order fails to state the bases for the denial.
. Exempted from this preemption provision are state laws that regulate insurance, banking, or securities, as well as state criminal laws. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (citing 29 U.S.C. § 1144(b)(2)(A), (b)(4)). For ERISA purposes, the term "state laws” refers to "all laws, decisions, rules, regulations, or other State action having the effect of law, of any State.” 29 U.S.C. § 1144(c)(1).
. Neither has the Fourth Circuit Court of Appeals developed a particular test or standard to apply when resolving "whether a state law or state claim 'relates to’ and ERISA plan.” All Risks, Ltd. v. Equitable Life Assurance Soc’y of United States, 931 F.Supp. 409, 417 (D.Md.1996).
. The state law claims also included negligence, negligent misrepresentation, breach of the terms of the insurance policies, fraudulent misrepresentation, and negligent supervision. 898 F.Supp. at 153.
. This refers to Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990), in which the Supreme Court determined that preemption was required because under the Texas law at issue, the plaintiff had to prove the existence of an ERISA plan combined with his/her termination being motivated by the employer's desire to reduce its pension payments. The Supreme Court also found that the Texas law conflicted with ERISA because it provided for a remedy for the violation of a right expressly addressed by ERISA.
. The complaint was filed in July 1992; the settlement agreement between Martin Oil and PBC was reached in late October 1995; and PLI first sought to amend its pleadings in late November 1995.
. Although the lower court relied primarily on PLI’s inability to be successful on an implied indemnity theory against either PBC or Mr. Pel-legrini in denying PLI’s motions to amend its pleadings, we are not limited by the lower court’s .grounds in making our review. See Copley v. Mingo County Bd. of Educ., 195 W.Va. 480, 485, 466 S.E.2d 139, 144 ("stating that lower court’s judgment may be affirmed 'when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for the judgment’ ”) (quoting Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965)). | [
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PER CURIAM:
This is an appeal by Delores L. Jones from an order of the Circuit Court of McDowell County, West Virginia, granting John L. Wolfe summary judgment in an action which the appellant had instituted. In her complaint, the appellant had alleged that Mr. Wolfe was her landlord and was legally responsible for an injury which she had sustained when she attempted to open an allegedly defective window in her leased residence. The court granted summary judgment to Mr. Wolfe after the court concluded the evidence adduced showed that Mr. Wolfe was not the owner of the premises leased by the appellant at the time of her injury. In the present proceeding, the appellant claims that the circuit court erred in granting summary judgment.
FACTUAL BACKGROUND
Before August 1994, the appellant, Delores L. Jones, rented an apartment from Rocco Johns. Mr. Johns jointly owned the building in which the apartment was located with several members of his family. It appears that in 1994, Mr. Johns and the co-owners of the building agreed to sell it to John L. Wolfe, and, as a consequence, sometime in the latter part of July, Mr. Johns informed the appellant that, beginning in August 1994, John L. Wolfe would own the building and that the appellant should make all future rent payments to him.
Approximately one week after Mr. Johns informed the appellant that rent payments should be made to Mr. Wolfe, Mr. Wolfe himself approached the appellant and informed her that she was to make the payments to him since the apartment building now belonged to him. He also told the appellant that if anything went wrong with the apartment, she should inform him of that fact. At that point, the appellant informed Mr. Wolfe that there was a defective pane of glass in the window of her kitchen, and Mr. Wolfe indicated that he would have it fixed.
In early September, 1994, as directed by Mr. Johns and Mr. Wolfe, the appellant made her rent check payable to Mr. Wolfe, and Mr. Wolfe accepted it and apparently deposited it into his checking account. Subsequently, on September 10, 1994, the appellant cut her hand as she was attempting to open the window with the defective pane of glass. The cut required extensive corrective surgery.
After the appellant injured her hand, she instituted the civil action which is the subject of this appeal against Mr. Wolfe in the Circuit Court of McDowell County. In instituting the action, she claimed that Mr. Wolfe, as her landlord, was legally responsible for the injuries which she had sustained.
Following the institution of the action, Mr. Wolfe filed an answer in which he asserted that he was not, at the time of the appellant’s injury, the owner of the apartment in which the injury occurred. Mr. Wolfe also submitted to the court a copy of a deed wherein the members of the Johns Family conveyed the apartment to him. That deed was dated August 29, 1994, but a notation on it indicated that it was not recorded until September 23, 1994, almost two weeks after the appellant’s accident.
In the subsequent proceedings in the case, it became clear that Mr. Wolfe was taking the position that he was not the owner of the property at the time of the plaintiffs injury because certain of the acknowledgments on the deed clearly were not executed until after the appellant’s injury, and because the deed itself was not recorded until after the appellant’s injury. It also appears that during the subsequent proceedings, a question was raised as to whether Mr. Wolfe might have been an agent of the Johns Family. When the agency issue was raised, the circuit judge indicated that he might entertain a theory of liability based on agency and suggested the appellant file a motion to amend her complaint and assert the agency theory.
On September 24, 1997, Mr. Wolfe filed a motion for summary judgment based on the uncontroverted and undisputed evidence that he did not own the apartment building, or any part of it, at the time of the alleged injury to the appellant. On October 9, 1997, a hearing was held on this motion for summary judgment, and at that hearing, the court ruled as a matter of law that there was no genuine issue as to the fact that Mr. Wolfe did not own the building on the date of the incident in question. The court also found that the sole basis for liability asserted was the theory of landlord liability and that the appellant had failed to amend her complaint to state a cause of action based upon agency. Although the court indicated it would entertain an oral motion on the basis of agency, the court, after reflecting, concluded that there was insufficient evidence pertaining to agency to grant relief on that basis and granted summary judgment in favor of Mr. Wolfe.
In the present proceeding, the appellant claims that the circuit court erred in granting summary judgment to Mr. Wolfe.
STANDARD OF REVIEW
We have held 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). We have also recognized 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 Casualty & Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
DISCUSSION
As previously stated, the Circuit Court of McDowell County in awarding John L. Wolfe summary judgment, concluded that Mr. Wolfe did not own the property on which the appellant was injured on the date of the injury and that, as a consequence, he could not be held liable. The court’s decision was apparently predicated on the conclusion that since the deed to Mr. Wolfe was not entirely acknowledged, and was not recorded, before the appellant’s injury, that deed could not have effectively transferred ownership of the property to Mr. Wolfe before the injury.
The law in this State is rather clear that a deed takes effect from its actual or constructive delivery. See Parrish v. Pancake, 158 W.Va. 842, 215 S.E.2d 659 (1975), and Bennett v. Neff, 130 W.Va. 121, 42 S.E.2d 793 (1947). Recording of the deed is not critical and acknowledgment is not essential to its validity. As stated in McElwain v. Wells, 174 W.Va. 61, 64, 322 S.E.2d 482, 485 (1984): “Acknowledgment is a prerequisite for recording, W .Va.Code, 39-1-2, but adds nothing to the validity of a deed as between the parties and others who know about it. A defect in acknowledgment ‘does not detract from the force of the deed in making effective the conveyance intended to be made thereby.’ State v. Armstrong, 134 W.Va. 704, 61 S.E.2d 537, 539 (1950).”
The deed involved in the present case was dated August 29, 1994, twelve days before the appellant suffered the injury which gives rise to this cause of action. The deed itself states that it was signed and sealed on August 29, 1994. Further, the signature of one grantor, Frank Johns, was acknowledged on September 1, 1994, nine days before the appellant’s injury.
From what has been filed in this case, it is unclear to this Court when the deed was delivered, and, thus, when the interests in the property were transferred to Mr. Wolfe. Since the date of delivery is the date upon which the deed took effect, and since that date is unclear from the documents filed in the case, the delivery date of the deed is still a genuine issue of material fact in the case. Where there is such a genuine issue of fact still remaining to be resolved, Syllabus Point 3, Aetna Casualty & Surety Company v. Federal Insurance Company of New York, id., indicates that entry of summary judgment is improper. In view of this, this Court believes that the trial court erred in entering summary judgment for Mr. Wolfe.
A further question presented in this case is whether Mr. Wolfe was an agent of the Johns Family at the time of the appellant’s injury and whether this issue was properly raised. An inquiry concerning this point is significant because the law of this State recognizes that an agent is personally liable for a tort committed within the scope of an agency relationship. Holstein v. Norandex, Inc., 194 W.Va. 727, 461 S.E.2d 473 (1995). Under this rule, Mr. Wolfe potentially would be liable to the appellant if the Johns Family owned the property and if he was an agent of the Johns Family at the time of the appellant’s injury, assuming Mr. Wolfe’s negligence was the proximate and actual cause of the appellant’s injury.
An agent is one who, subject to some control of another, acts on behalf of that other as a representative in the conduct of the other’s business or contractual relations with third persons. See Teter v. Old Colony Company, 190 W.Va. 711, 441 S.E.2d 728 (1994); and State ex rel. Key v. Bond, 94 W.Va. 255, 118 S.E. 276 (1923).
Certainly the evidence presented suggests that both the Johns Family and Mr. Wolfe represented to the appellant before her injury that Mr. Wolfe was entitled to collect the rent due on the property. If Mr. Wolfe did not own the property at the time he was entitled to collect the proceeds, it may be inferred that he was entitled to collect only because the Johns’ Family had authorized him to act and that he was acting pursuant to some sort of instruction from, pr control of, the Johns Family. These circumstances suggest that, if Mr. Wolfe did not own the property at the time he collected the appellant’s rent, he could be found to be an agent of the Johns Family at that time.
Although an agency relationship is not clearly established by what has been filed, this Court believes that, at the very least, further development of the facts of the case is desirable to clarify the question of whether or not the appellant’s claim of liability on the basis of agency is a valid claim. Thus, summary judgment on that issue was inappropriate.
For the reasons stated, this Court believes that the Circuit Court of McDowell County erred in entering summary judgment for John L. Wolfe. Therefore, the judgment of the circuit court is reversed and this case is remanded for further development.
Reversed and remanded.
Justice McGRAW did not participate in the decision of this case.
. The actual owners were Rocco Johns, Flora C. Johns, Frank Johns, James J. Johns, Emelia Ann Johns, Johnny Johns, Jr., and Alva Johns. They will hereafter be referred to as the "Johns Family.” | [
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Barbara L. Baxter, Esq. Assistant Attorney General, Charleston, West Virginia, Attorney for Appellee.
Per Curiam:
This is an appeal filed on behalf of Erica and Shantelle B. by Lisa White who was appointed as guardian ad litem (“GAL”) for Erica and Shantelle. The GAL contends that the Circuit Court of Cabell County erred in the court’s denial of a motion to terminate the improvement period of Daniel B., father of Erica and Shantelle B., after he failed to fulfill the requirements of a post-adjudicatory improvement period. The Department of Health and Human Services (“DHHR”) filed a brief as an appellee supporting the appellant’s position. After a review of the entire record we agree with the GAL and the DHHR and reverse the December 31, 1997 order of the circuit court and remand this matter for further proceedings.
I.
On May 7,1997, a petition was filed by the DHHR seeking the termination of the parental rights of Daniel B. and Gwendolyn B., the divorced parents of Erica and Shantelle B. The petition alleged that the children had been abandoned by their parents to foster care. DHHR sought to terminate their parental rights so that the children could be placed in a permanent situation.
At hearings on July 7 and 9, 1997, the Circuit Court of Cabell County found that the father, Daniel B., had neglected his children by failing to pursue court action to regain custody of the children. The circuit court further found that the mother of the children had both neglected and abused the children.
The father, Daniel B., immediately following the July 9,1997 ruling, filed a motion for a post-adjudication 6-month improvement period. On September 4, 1997, the circuit court granted Daniel B.’s motion for the improvement period and further provided for a review hearing on December 1, 1997. During the improvement period, Daniel B. was directed by the court to find acceptable housing, receive treatment for substance abuse, attend counseling and parenting classes, remain drug and alcohol free and to submit to random drug screens.
At the review hearing on December 1, 1997, the DHHR and the GAL asked the court to set the matter for an evidentiary hearing in anticipation of filing a motion to terminate the father’s improvement period for noncompliance. On December 9, 1997 an evidentiary hearing was conducted, and evidence was submitted to the circuit court demonstrating that Daniel B. had failed to adhere to the family case plan (terms of the improvement period). Testimony was elicited indicating that Daniel B. had failed to find adequate housing, had submitted three atypical urine samples, and had ceased attending counseling. Under oath, Daniel B. admitted to drinking alcohol to the point of intoxication and to using illegal drugs during the improvement period.
Following the testimony, and after all the evidence had been submitted, the circuit court denied the DHHR and GAL’s motions to terminate the improvement period. This appeal followed.
II.
The standard of review in abuse and neglect proceedings was set forth in In the Interest of: Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996), in which we said:
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, In the Interest of: Tiffany Marie S., supra.
Of primary concern to this Court is the protection of children. .“Although par ents 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.” Syllabus Point 1, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996).
In this matter, the father had an extensive history of alcohol and drug abuse. There were indications that there was physical abuse and even accusations of sexual abuse. “[C]ourts are not required to exhaust every speculative possibility of parental improvement before terminating parental rights where it appears that the welfare of the child will be seriously threatened ...”. Syllabus Point 1, in part, Interest of Darla B., 175 W.Va. 137, 331 S.E.2d 868 (1985).
With the history of this case and the lack of cooperation exhibited by Daniel B. during the course of his improvement period, the DHHR and the GAL acted correctly under W.Va.Code, 49-6-12(f) [1996] in asking the circuit court to terminate the father’s improvement period. This statutory requirement is to be strictly construed by the trial court. Furthermore, the action of the GAL was consistent with the standards established by this Court in In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993) for GALs in infant representation in abuse and neglect proceedings.
Although the order of the circuit court failed to make proper findings of facts, based on the record before us, we hold that the circuit court’s conclusion in denying the motions to terminate the improvement period was clearly erroneous.
III.
Therefore, the order of the Circuit Court of Cabell County dated December 31, 1997, denying the petition to terminate the improvement period is reversed, and this matter is remanded to the circuit court for an evidentiary hearing on termination of parental rights.
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).
. 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 n. 1, 435 S.E.2d 162 n. 1 (1993).
. The record reflects that the children had been placed in foster care for a period of 6 years during the hostile divorce which occurred between Daniel and Gwendolyn B.
. On September 8, 1997 the circuit court by separate order terminated the rights of Gwendolyn B., and as this order was not appealed, it is final.
.This program was the family case plan established for Daniel B. by DHHR.
. W.Va.Code, 49-6-12(f) [1996] provides:
When any respondent is granted an improvement period pursuant to the provisions of this article, the department shall monitor the progress of such person in the improvement period. When the respondent fails to participate in any service mandated by the improvement period, the state department shall initiate action to inform the court of that failure. When the department demonstrates that the respondent has failed to participate in any provision of the improvement period, the court shall forthwith terminate the improvement period. | [
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PER CURIAM :
This case is before the Court upon the petition of Clinton Salyers and Mountaineer Gas Co., defendants in a suit in the Circuit Court of Clay County. In 1995, plaintiff, Faye Nunley, had commenced a civil suit in the Circuit Court of Clay County seeking compensation from defendants for property damage resulting from slippage caused by the improper installation of a natural gas pipeline. This action resulted in a verdict for the plaintiff. While appeal of the verdict in this action was pending, plaintiff brought a second suit seeking additional damages for damage occurring to her property during the pendency of the appeal, which the circuit court desired to consolidate with the fust action. While the second case was being developed for trial, judgment was then satisfied in the first case. After being persuaded that the second suit did not allege an independent cause of action, the circuit court nevertheless ruled that a hearing in the first suit on post-judgement damages was needed. In recognition of the fact that there was no procedural or statutory authority for such a hearing, the circuit court proposed the submission of three certified questions, upon which it had ruled, for this Court’s review. For the reasons enumerated below, we answer each of the three certified questions in the negative.
I.
FACTUAL AND PROCEDURAL HISTORY
Faye D. Nunley (Nunley) is the owner of a tract of property along a bank of the Elk River in Procious, Clay County, West Virginia. In August 1993, Mountaineer Gas Co. (Mountaineer Gas) entered into a written “Dig and Backfill Agreement” to extend an existing gas line to various properties lying along the Elk River. Nunley’s neighbors had requested gas service from Mountaineer Gas and this request was the impetus behind Mountaineer Gas entering into the agreement. Nunley’s neighbors, organized under the leadership of Clinton Salyers, then extended an underground gas pipeline through Nunley’s property pursuant to a right-of-way granted by Nunley to Mountaineer Gas. This line ran parallel to Elk River at distances between ten and forty feet from the bank. Upon completion, Mountaineer Gas accepted ownership of the pipeline.
In early 1995, high water levels, followed by a precipitous drop in water levels initiated by the U.S. Army Corps of Engineers, damaged the river embankment on Nunley’s property. This was compounded by inadequate compaction of the soil by the pipeline installation crew, as water was thus able to enter the ditchline and weaken the bank, causing slippage.
On October 8, 1995, Nunley filed a complaint in the Circuit Court of Clay County alleging both contract and property damages for breach of the right-of-way agreement and of the Dig and Backfill Agreement and tort damages for intentional infliction of emotional distress and outrage. On December 14, 1995, following a jury trial, Nunley was awarded a verdict for her damages consisting of fifty thousand dollars in repair costs, thirty thousand dollars in annoyance and inconvenience costs, and pre-judgment interest. Subsequently, on March 15,1996, a judgment order was entered by the circuit court. On March 26, 1996, Mountaineer Gas filed a motion for judgment notwithstanding the verdict, for a new trial or for alteration or amendment of the judgment, which was denied August 21, 1996. However, that same August 21, the circuit court granted the motion of Mountaineer Gas to stay enforcement of the judgment.
Subsequently, on December 17, 1996, Mountaineer Gas filed a petition for appeal asserting error by the circuit court in the admission of certain expert testimony and the award of pre-judgment interest. This Court, on March 12,1997, denied this appeal petition, and on March 31,1997, Mountaineer Gas paid Nunley ninety-nine thousand three hundred nineteen dollars and forty cents in satisfaction of the judgment. This included more than eleven thousand dollars of post-judgment interest. By Agreed Order entered June 19, 1997, the circuit court released the judgment lien.
On October 7, 1996, during the pendency of the appeal of the first action, Nunley had filed a second complaint CNunley II) against Mountaineer Gas in the'Circuit Court of Clay County, this time asking relief for property damages which occurred to her property during the pendency of the appeal Mountaineer Gas had sought from the judgment in Nun-ley I. On April 28, 1997, circuit court heard oral argument on a motion to dismiss, then on May 21, 1997, ordered Nunley to provide Mountaineer Gas, by May 27, 1997, with an itemized list of damages to the property which did not exist and which were not foreseeable at the time of the verdict of December 14,1995.
Nunley submitted a damage estimate, known as the Lyle Report, after the motion deadline, containing only increased construction costs for riverbank displacement occurring during the pendency of the appeal of Mountaineer Gas from the first verdict. On June 19, 1997, the circuit court held a hearing on a renewed motion to dismiss by Mountaineer Gas at which it found that since Nunley had not complied with the disclosure deadline and had made no repairs to the property since March 31, 1997, when the judgment from Nunley I had been satisfied, Nunley’s additional damages were limited to those increased construction costs claimed in the Lyle Report.
By a motion filed on June 24,1997, Nunley sought reconsideration of the order limiting her claimed damages. On July 18, 1997, the circuit court heard argument on this motion and upon the renewed motion to dismiss by Mountaineer Gas. The circuit court determined that Nunley had failed to assert an independent cause of action in Nunley II, but was entitled to a hearing on the value of post-judgment damages in Nunley I. The circuit court made this ruling even though Nunley was not, by her filing of Nunley II, attempting to alter or amend the judgment in Nunley I and despite the fact that the judgment in Nunley I had been released.
In recognition of the fact that no authority existed for this proposed hearing, three questions were certified to this Court on September 23, 1997, by the circuit court, which are as follows:
1.For the purpose of hearing a claim for post-judgment damages in a new civil action consolidated with the original civil action after it is ended, does Rule 42(a) of the West Virginia Rules of Civil Procedure grant the court discretionary authority to consolidate a pending civil action with a civil action in which a final judgment had already been entered?
2. Based upon the allegations in Nunley I, has Nunley alleged an independent cause of action upon which she may be entitled to maintain a subsequent action for damages, following a jury verdict in Nunley I ?
3. Is Nunley entitled to a post-judgment hearing on damages in Nunley I, consolidated with Nunley II, for any subsequent damage to her property following the verdict returned on December 14, 1995, in Nunley I and prior to payment of the judgment on March 31, 1997? The circuit court held in the affirmative.
The circuit court answered questions one and three in the affirmative and question two in the negative. For the reasons enumerated below, this Court agrees with the circuit court’s answer to Certified Question Two, but disagrees with the answers of the circuit court to Certified Questions One and Three.
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
CERTIFIED QUESTION ONE
With regard to Certified Question One, the test for circuit courts to apply in deciding consolidation issues under W.Va. R.Civ.P. 42(a) has been clearly set out by this Court. “The trial court when exercising its discretion in deciding consolidation issues under W.Va.R.Civ.P. 42(a), should consider the following factors: (1) whether the risks of prejudice and possible confusion outweigh the considerations of judicial dispatch and economy; (2) what the burden would be on the parties, witnesses, and available judicial resources posed by multiple lawsuits; (3) the length of time required to conclude multiple lawsuits as compared to the time required to conclude a single lawsuit; and (4) the relative expense to conclude all of the single-trial, multiple-trial alternatives. When the trial court concludes in the exercise of its discretion whether to grant or deny consolidation, it should set forth in its order granting or denying consolidation sufficient grounds to establish for review why consolidation would or would not promote judicial economy and convenience of the parties, and avoid prejudice and confusion.” Syllabus point 2, State ex rel. Appalachian Power v. Ranson, 190 W.Va. 429, 438 S.E.2d 609 (1993). See also State ex rel. Appalachian Power v. MacQueen, 198 W.Va. 1, 479 S.E.2d 300 (1996). Applying the requirements of this test, we examine whether the lower court has abused its discretion by consolidation of these cases.
Under the guidance of this test, we arrive at the conclusion that the circuit court answered Certified Question 1 erroneously. Rule 42(a) of the West Virginia Rules of Civil Procedure states that “[w]hen actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions.” W.Va.R.Civ.P. 42(a) (emphasis added). West Virginia law recognizes that “[t]he pendency of a suit is traditionally defined as beginning when the petition or complaint is filed and concluding when a final order is entered disposing of the suit.” Syllabus Point 2, Baldwin v. Moses, 182 W.Va. 120, 386 S.E.2d 487 (1989). “Generally, an order qualifies as a final order when it ‘ends the litigation on the merits and leaves nothing for the court but the execution of the judgment.’ ” Dunn v. Heck’s Inc., 184 W.Va. 562, 566, 401 S.E.2d 908, 912 (1991) quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Since a judgment order was entered by the circuit court on March 15, 1996, in Nunley I, under the traditional understanding of the meaning of “pendency” in this state, Nunley I was not still pending before the circuit court as of July 18, 1997. As it was not still pending, it was therefore improper to consolidate it with Nunley II for any purpose whatsoever. Thus, we answer Certified Question One in the negative.
CERTIFIED QUESTION TWO
This Court, reviewing the dismissal of the Nunley II complaint for failure to allege an independent cause of action against Mountaineer Gas, finds that the dismissal is proper and, therefore, the circuit court correctly answered certified question No. 2 in the negative. We have noted that, under the doctrine of res judicata, all issues arising from a particular controversy with a particular party should be tried at one trial and not be litigated piecemeal.
This is the underlying rationale behind the consolidation provisions contained in Rule 42(a) of the West Virginia Rules of Civil Procedure. As Judge Snyder noted over a century ago, “ ‘[a]n adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata.’ Syllabus Point 1, Sayre’s Adm’r v. Harpold et al., 33 W.Va. 553, 11 S.E. 16 (1890).” Syllabus Point 2, Downing v. Ashley, 193 W.Va. 77, 454 S.E.2d 371 (1994).
In N.C. v. W.R.C., 173 W.Va. 434, 317 S.E.2d 793 (1984), this Court addressed what constituted an independent cause of action under rule 60(b) of the West Virginia Rules of Civil Procedure. The Court concluded:
The definition of an independent action, as contemplated by W.Va.R.Civ.P. 60(b), is an equitable action that does not relitigate the issues of the final judgment, order or proceeding from which relief is sought and is one that is limited to special circumstances.
Syllabus Point 2, N.C. v. WR.C., id. Although this syllabus point dealt with the Rule 60W) definition, this Court believes it contains the essence of the definition of an independent cause of action, even in a broader context, that being, whether additional litigation will require relitigation of an issue which has previously been finally adjudicated.
According to our law, "for the prosecution of a lawsuit to be barred on the basis of res judicata, three elements must be satisfied. First, there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings. Second, the two actions must involve either the same parties or persons in privity with those same parties. Third, the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved, had it been presented, in the prior action." Syllabus Point 4, Blake v. Charleston Area Medical Center, 201 W.Va. 469, 498 S.E.2d 41 (1997).
On December 14, 1995, Nunley received a verdict which was final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. Sayre's Adm'r, supra and Downing, supra. Here, the identical parties arc involved that were involved in Nunley 1. The increased construction costs for repair of the original damage to the plaintiff, as shown on the report of the plaintiffs expert, were correctly determined by the trial court to be simply a part of the original damage. Therefore, pursuant to the prior holdings of this court, it is proper to hold this action to be barred by res judicata and not a new, independent cause of action.
We therefore, answer Question Two in the negative.
CERTIFIED QUESTION THREE
This Court has long held to the doctrine that all issues arising from a particular controversy with a particular party should be tried at one trial. Moreover, this Court has set forth standards which should indicate the lengths to which it will go to hold a final judgment sacrosanct. Here, there is no question that Nwnley I was a final judgment by the time Nunley II was filed. Nunley did not even file Nunley II until October 8, 1996, fully seven months after the judgment order in Nunley I had been filed. Even were this not enough, on March 31, 1997, Mountaineer Gas paid Nunley ninety-nine thousand three hundred nineteen dollars and forty cents in satisfaction of the judgment and by Agreed Order entered June 19, 1997, the circuit court released the judgment lien. Any proceedings after that date with regard to Nun-icy I should have been clearly improper to all concerned as it has been the position of this Court for many years that "[t]he payment of a judgment by any of the judgment debtors extinguishes the judgment at law[j" Syllabus Point 1, Greenbrier Valley Bank v. Holt, 114 W.Va. 363, 171 S.E. 906 (1933) quoting Grizzle v. Fletcher, 127 Va. 663, 666, 105 S.E. 457, 458 (1920). On July 18, 1997, the circuit court determined that, although Nunley had failed to assert an independent cause of action in Nunley II, the plaintiff was entitled to a hearing on the value of post-judgment damages in Nunley I accruing between the end of trial and the payment of the verdict. This is contrary to this Court's position, as stated by Chief Justice Brotherton, that ". . . the legislature intended that post-judgement interest be available to compensate an individual for the delay between the judgment and the receipt of actual payment... ." Adams v. Nissan Motor Corp. in U.S.A., 182 W.Va. 234, 241, 387 S.E.2d 288, 295 (1989).
Therefore, we hold that no post-judgment hearing may be held for damages accruing to Nunley during the pendency of her appeal of Nunley I. Such an act violates both the doctrine of res judicata and the well-established publlc policy of this Court that a party may not relltigate a controversy which has been tried to judgment. In llght of our finding, we therefore answer Certified Question Three in the negative.
IV.
CONCLUSION
For the reasons enumerated above, we reiterate that the pendency of a suit is tradi- tionally defined as concluding when a final order is entered and an adjudication by a court having proper jurisdiction is final and conclusive as to every matter which the parties might have litigated at that trial. These factors, in combination with the legislative intent that post-judgment interest be the only compensation for an individual for the damages accruing between the time of the judgment and the receipt of actual payment thus constitute a bar to the kind of proceeding contemplated by the circuit court. Furthermore, no post-judgment hearing be should held for damages accruing during the pendency of the appeal of an action which has been adjudicated. Therefore, Questions Two and Three certified from the Circuit Court of Clay County are answered in the negative, and this matter is remanded to that Court for further proceedings in accordance herewith.
Certified Questions Answered.
. 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). | [
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DAVIS, Chief Justice:
This writ of prohibition was filed by petitioner/defendant below, Allstate Insurance Company (hereinafter “Allstate”), seeking to restrain the enforcement of two discovery orders entered by the respondent, Honorable Martin J. Gaughan, Judge of the Circuit Court of Ohio County. Allstate contends that the circuit court exceeded its authority by requiring Allstate to produce and disclose to respondent/plaintiff below, Carol J. Tho-burn (hereinafter “Ms. Thoburn”), (1) all written complaints made against Allstate nationwide from 1986 to the present and all nationwide advertising files and advertising materials shown or disseminated by Allstate from 1986 to the present, (2) all documents evidencing sanctions filed against Allstate by any regulatory agency nationwide from 1990 to present, and (3) specific claim files that Allstate asserts are protected by the attorney-client privilege. Additionally, Allstate seeks to prevent further disclosure of an alleged attorney-client document inadvertently disclosed to Ms. Thoburn. For the reasons discussed below, the writ of prohibition is granted as moulded.
I.
FACTUAL AND PROCEDURAL HISTORY
This case originates from a personal injury suit filed by Ms. Thoburn against one of Allstate’s insureds, Timothy Mirandy. In 1991, Ms. Thoburn was a passenger in a ear that was hit by a vehicle driven by Mr. Mirandy. Ms. Thoburn sustained injuries from the accident. She subsequently filed a personal injury action against Mr. Mirandy.
Allstate evaluated the claim against its insured, Mr. Mirandy. Allstate offered to settle the matter for $20,000. Ms. Thoburn rejected the offer and proposed settling the claim for the policy limit of $100,000. Allstate rejected Ms. Thoburn’s offer to settle the personal injury claim. On June 24,1995, a jury returned a verdict in favor of Ms. Thoburn, awarding her $229,500. In August, 1995, Allstate paid the judgment on behalf of its insured, Mr. Mirandy.
On May 1, 1996, Ms. Thoburn filed the instant underlying bad faith action against Allstate. Ms. Thoburn’s bad faith claims were based upon Allstate’s refusal to settle the personal injury case against Mr. Mirandy for the policy limit of $100,000, before the jury returned its verdict. The bad faith causes of action were based upon Allstate’s alleged violations of W.Va.Code § 33-11-4(9). The record presently before the Court does not identify the specific subsections of W.Va.Code § 33-11-4(9) which Ms. Thoburn asserts were violated by Allstate.
During discovery in the bad faith case against Allstate, Ms. Thoburn served Allstate with a request to produce: (1) all written complaints made in West Virginia against Allstate from 1986 to the present, (2) all advertising files and advertising materials shown or disseminated in West Virginia by Allstate from 1986 to the present, (3) all documents evidencing all sanctions filed against Allstate in West Virginia by any regulatory agency from 1990 to present, and (4) the complete investigative claim file main-tamed by Allstate relating to the action Ms. Thoburn instituted against Mr. Mirandy.
Allstate produced some of the requested documents maintained in Mr. Mirandy’s claim file. In producing those documents, Allstate inadvertently supplied a document it claimed to be protected by the attorney-client privilege. Ms. Thoburn then filed a motion to compel the production of all documents requested by her pleadings. After a hearing on the motion to compel, the circuit court entered two orders which required Allstate to produce (1) all written complaints made nationwide against Allstate from 1986 to the present, (2) all nationwide advertising files and advertising materials shown or disseminated by Allstate from 1986 to the present, (3) all documents evidencing all sanctions filed against Allstate on a nationwide basis by any regulatory agency from 1990 to present, and (4) specific claim file documents involving the personal injury action instituted by Ms. Thoburn against Mr. Mirandy. The circuit court also denied a request by Allstate for a protective order preventing further disclosure of and preventing the use of the alleged attorney-client document inadvertently provided to Ms. Thoburn. From the orders, Allstate now seeks a writ of prohibition.
II.
STANDARD OF REVIEW
This Court has held that “[a] writ of prohibition will lie where the trial court does not have jurisdiction or, having jurisdiction, exceeds its legitimate powers.” Syl. pt. 4, Pries v. Watt, 186 W.Va. 49, 410 S.E.2d 285 (1991). See also, Syl. Pt. 3, State ex rel. McCartney v. Nuzum, 161 W.Va. 740, 248 5.E.2d 818 (1978), overruled on other grounds, In re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996). We stated in syllabus point 1 of State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995) that:
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. Syl. Pt. 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).
This Court has also declared that “[a] writ of prohibition is available to correct a clear legal error resulting from a trial court’s substantial abuse of its discretion in regard to discovery orders.” Syl. Pt. 1, State Farm Mutual Automobile Insurance Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992). “When a discovery order involves the probable invasion of confidential materials that are exempted from discovery under Rule 26(b)(1) and (3) of the West Virginia Rules of Civil Procedure, the exercise of this Court’s original jurisdiction is appropriate.” Syl. pt. 3, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995).
III.
DISCUSSION
A.
Nationwide Production of Documents
The circuit court compelled the nationwide production by Allstate of all written complaints made against Allstate from 1986 to present. The circuit court also compelled the nationwide production of all regulatory sanctions filed against it from 1990 to present. Allstate contends that the requirement for the nationwide production of written complaint information and all types of regulatory sanction information is too broad, burdensome and cumulative. To support its claim that the circuit court has abused its discretion on the requirements for a nationwide production of documents, Allstate cites our decision in Stephens.
In Stephens the plaintiff requested information on all bad faith, unfair trade or settlement practices, and excess verdict claims filed against State Farm throughout the entire country for a ten year period. The Stephens plaintiffs also requested nationwide data on all complaints filed against State Farm with insurance industry regulators for the same period. The defendants objected to the request on the grounds that the requested information was too broad, burdensome, irrelevant, and cumulative. This Court held in syllabus point 2 of Stephens that “[ujnder Rule 26(b)(l)(iii) of the West Virginia Rules of Civil Procedure, a trial court may limit discovery if it finds that the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.”
It was stated in syllabus point 3 of Stephens that:
Where a claim is made that a discovery request is unduly burdensome under Rule 26(b)(l)(iii) of the West Virginia Rules of Civil Procedure, the trial court should consider several factors. First, a court should weigh the requesting party’s need to obtain the information against the burden that producing the information places on the opposing party. This requires an analysis of the issues in the case, the amount in controversy, and the resources of the parties. Secondly, the opposing party has the obligation to show why the discovery is burdensome unless, in light of the issues, the discovery request is oppressive on its face. Finally, the court must consider the relevancy and materiality of the information sought.
Ultimately, in Stephens this Court found the nationwide discovery ordered by the trial court to be an abuse of its discretion. This Court indicated that on remand the circuit court should consider statewide application of the discovery requests.
Factually and legally, Stephens is controlling on .the nationwide discovery requirements in the instant proceeding. Neither the circuit court orders, nor the record in this case, demonstrate any analysis performed by the trial court in applying the Stephens test. There are no findings of fact, nor conclusions of law, set forth in either discovery order, which illustrates that the court weighed the requesting parties need to obtain the information against the burden that producing the information places on the opposing party. There were no findings of fact, nor conclusions of law setting forth an analysis of the issues in the case, the amount in controversy, and the resources of the parties. Finally, there are no findings of fact or conclusions of law, setting forth the relevancy and materiality of the information sought. The question presented by the lack of findings on this issue, is whether findings should be clearly set forth in non-appealable interlocutory orders presented to this Court by means of an extraordinary writ. This issue is one of first impression for this Court.
To begin, it is important to note that the orders in this case were based upon discovery motions. Rule 52(a) of the West Virginia Rules of Civil Procedure states that “[fjind-ings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in subdivision (c) of this rule.” (Emphasis added.) This Court qualified Rule 52(a) with respect to Rule 56 summary judgment orders in syllabus point 3 of Fayette County Nat. Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997), wherein it was held that:
Although our standard of review for summary judgment remains de novo, a circuit court’s order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed.
In Romer v. Green Point Savings Bank, 27 F.3d 12 (2d Cir.1994) the appellate court observed that under Rule 52(a) of the federal rules of civil procedure a district court was not required to issue an order containing findings, with respect to a request for a temporary restraining order. However, the court observed that:
TROs are exempted from the requirement of express findings presumably because they are characteristically issued in haste, in emergency circumstances, to forestall irreparable harm, are of quite limited duration, and are exempt from appellate review. Nonetheless, courts should not be excessively tied to labels. In the rare instance like this one, where the TRO will dispose of all that is at stake in the litigation, it is highly useful for the district court to make findings to explain its ruling.... [Wjithout findings to explain the district court’s action, the court of appeals will have difficulty understanding the basis of the ruling and determining whether the district court applied the law correctly.
Id., 27 F.3d at 16. Similarly, in United States v. Shaheen, 445 F.2d 6 (7th Cir.1971), the court held that for appellate review purposes findings had to be made even though Rule 52(a) did not require findings for a ruling on a writ ne exeat república. See also, Bennion v. Pennzoil Co., 826 P.2d 137 (Utah 1992) (holding that in order to facilitate appellate court’s review of judgment certified as final for purposes of interlocutory appeal, trial court should henceforth enter findings supporting conclusion that such orders are final).
Our research has not uncovered a case which directly addresses the necessity of providing findings in a non-appealable interlocutory order presented to an appellate court by means of an extraordinary writ. However, we note that the general rule regarding the appeal of an appealable interlocutory order, requires the trial court to set forth its findings of fact and conclusions of law. See Geisenhoff v. Geisenhoff, 693 So.2d 489 (Ala.Civ.App.1997); Safadi v. Thompson, 226 Ga.App. 685, 487 S.E.2d 457 (Ga.App.1997); Pawlus v. Bartrug, 109 Ohio App.3d 796, 673 N.E.2d 188 (Ohio App. 9 Dist.1996); Pepe Intern. Development Co. v. Pub Brewing Co., 915 S.W.2d 925 (Tex.App.-Hous.1996); Mariello v. Giguere, 667 A.2d 588 (Me.1995); Sunset Pools of St. Louis, Inc. v. Schaefer, 869 S.W.2d 883 (Mo.App.1994); Responsible Citizens. v. Superior Court, 16 Cal.App.4th 1717, 20 Cal.Rptr.2d 756 (1993); Burns v. Alderman, 122 Idaho 749, 838 P.2d 878 (Idaho App.1992); Willie’s Const. Co., Inc. v. Baker, 596 N.E.2d 958 (Ind.App.1992); Morris v. Wilson, 600 So.2d 306 (Ala.Civ.App.1992); Skalbeck v. Agristor Leasing, 384 N.W.2d 209 (Minn.App.1986); Rowe v. Rowe, 74 N.C.App. 54, 327 S.E.2d 624 (N.C.App.1985); Garriffa v. Taylor, 675 P.2d 1284 (Wyo.1984); Westberry v. Reynolds, 134 Ariz. 29, 653 P.2d 379 (Ariz.App.1982); Lanphere v. Beede, 141 Vt. 126, 446 A.2d 340 (Vt.1982); Nottingham v. Tempel, 509 P.2d 1290 (Colo.App.1973). When a court is under no duty to make findings on an interlocutory order, courts have placed the burden on the complaining party to request the court issue an order containing adequate findings. See Conoco Inc. v. Baskin, 803 S.W.2d 416 (Tex.App.-El Paso 1991); G & S Business Services, Inc. v. Fast Fare, Inc., 94 N.C.App. 483, 380 S.E.2d 792 (N.C.App.1989); Telerent Leasing Corp. v. Equity Associates, Inc., 36 N.C.App. 713, 245 S.E.2d 229 (N.C.App.1978); Mize v. Sims, 516 S.W.2d 561 (Mo.App.1974).
The purpose of findings of fact and conclusions of law is to provide an appellate court with a clear understanding of the lower court’s decision. See Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 316, 60 S.Ct. 517, 520, 84 L.Ed. 774 (1940); Glover v. Johnson, 855 F.2d 277, 284 (6th Cir.1988); Wynn Oil Co. v. Purolator Chem. Corp., 536 F.2d 84, 85 (5th Cir.1976). It also serves the purpose of prompting the lower court “to fully and conscientiously consider the basis for [the] decision.” Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 212 n. 15 (8th Cir.1974). We believe that the general rationale for requiring findings be set out in appealable interlocutory orders, supports a requirement that findings be clearly set forth in non-appealable interlocutory orders presented to this Court through extraordinary writs. Therefore, we hold that a party seeking to petition this Court for an extraordinary writ based upon a non-appeal-able interlocutory decision of a trial court, must request the trial court set forth in its order findings of fact and conclusions of law that support and form the basis of its decision. In making the request to the trial court, counsel must inform the trial court specifically that the request is being made because counsel intends to seek an extraordinary writ to challenge the court’s ruling. When such a request is made, trial courts are obligated to enter an order containing findings of fact and conclusions of law. Absent a request by the complaining party, a trial court is under no duty to set out findings of fact and conclusions of law in non-appealable interlocutory orders.
In the instant proceeding the orders do not set out findings of fact and conclusions of law, consistent with a Stephens analysis which will inform this Court of its reasoning in requiring production of documentation of all nationwide complaints, nationwide production of all regulatory sanctions filed against Allstate and the production of nationwide advertising and advertising materials by Allstate. In view of our holding today, we remand the nationwide discovery issue for the purpose of having the trial court set out findings of fact and conclusions of law consistent with the Stephens inquiry.
B.
Claim, File Documents
The circuit court required Allstate to release 66 documents that Allstate alleged were protected by the attorney-client privilege and/or work product doctrine. “The burden of establishing the attorney-client privilege or the work product exception, in all their elements, always rests upon the person asserting it.” Syl. pt. 4, State ex rel. USF & G v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995). Moreover, we have recognized that
[a]s the attorney-client privilege and the work product exception may result in the exclusion of evidence which is otherwise relevant and material and are antagonistic to the notion of the fullest disclosure of the facts, courts are obligated to strictly limit the privilege and exception to the purpose for which they exist.
Id. at 438, 460 S.E.2d at 684. However, the importance of obtaining full disclosure of the facts must be balanced with & client’s need to speak freely with his or her attorney so that he or she may obtain quality advice. Id. at 438-39, 460 S.E.2d at 684-85 (recognizing that it is “ ‘the function of a court to mediate between [these two competing interests,] assigning, so far as possible, a proper value to each’ ” (citation omitted)). Furthermore, acknowledging the apparent tension between “the substantial deference normally accorded to” a circuit court’s discovery rulings and “the preference to bar privileged materials from discovery,” we have held that “[w]hen a circuit court’s discovery ruling with respect to privileged materials will result in the compelled disclosure of those materials, a hard and more stringent examination will be given ... to determine if the circuit court abused its discretion.” Syl. pt. 5, Id.
The facts of this particular case do not fit neatly within the analytical framework designed for traditional application of the attorney-client privilege/work product doctrine. The present issue, which is also one of first impression for this court, involves the question of whether Allstate, as the insurer, can assert the attorney-client privilege/work product doctrine in a third-party bad faith action, to prevent Ms. Thoburn from obtaining specific documents from the file of Allstate’s insured, Mr. Mirandy. Particularly noteworthy, however, is the fact that Ms. Thoburn secured a release from Mr. Mirandy which permitted Ms. Thoburn access to his file.
Our analysis begins by reviewing the decisions of other jurisdictions which have decided this issue. Generally, courts have recognized two broad categories of bad faith settlement actions against insurers: first-party bad faith actions and third-party bad faith actions. The terms “first-party” and “third-party” have distinctively different meanings in the context of bad faith settlement actions against insurers. For definitional purposes, a first-party bad .faith action is one wherein the insured sues his/her own insurer for failing to use good faith in settling a claim brought against the insured or a claim filed by the insured. A third-party bad faith action is one that is brought against an insurer by a plaintiff who prevailed in a separate action against an insured tortfea-sor. In the bad faith action against the insurance company the third-party alleges the insurer insurance company engaged in bad faith settlement in the first action against the insured tortfeasor. See Palmer by Diacon v. Fanners Ins. Exchange, 261 Mont. 91, 861 P.2d 895, 905 (Mont.1993). The principles that are discussed in this opinion with respect to the attorney-client privilege and work product rule apply exclusively to third-party bad faith settlement actions against insurers. In third-party bad faith actions against insurers, there is a split of authority among the jurisdictions addressing the issue as to the application of the attorney-client privilege/work product rule. Therefore, we shall examine and discuss each position.
1. The Minority View
The minority view, held by only one jurisdiction, addresses the attorney-client privilege and the work product rule together and concludes that they do not attach to the file of an insured in a third-party bad faith action against an insurer. Therefore, the entire file of an insured is accessible to discovery in a third-party bad faith suit against an insurer. The minority rule was clearly articulated in Dunn v. National Security Fire & Casualty Co., 631 So.2d 1103 (Fla.App. 5 Dist.1993). The trial court in Dunn denied the plaintiff access to the claim file of an insured during a third-party bad faith suit against the insured’s insurer. One of the reasons for the denial was the potential violation of the attorney-client privilege/work product rule. The appellate court observed, as an initial matter, that the communication in the insured’s claim file should be viewed in two ways: post-judgment communication and prejudgment communication.
As to post-judgment communication in a claim file, Dunn held that “memos or documents in the file after date of the judgment can be obtained with a showing of good cause.” Dunn, 631 So.2d at 1109 (emphasis in original) (citation omitted). While Dunn did not expressly hold that the attorney-client privilege/work product rule had no application to post-judgment communication, it is apparent by the “good cause” showing that neither privilege automatically attaches to post-judgment communication.
Dunn’s response to prejudgment claim file communication was unequivocal. The opinion held:
In bad faith suits against insurance companies for failure to settle within the policy limits, all materials in the insurance company’s claim file up to the date the judgment in the underlying suit are obtainable, and should be produced when sought by discovery....
Discovery of the insurer’s claim file and litigation file is allowed in a bad faith case over the objections of the insurer that production of the file would violate the work product or attorney/client privilege. The rationale is because the injured third party “stands in the shoes” of the insured party in a third party bad faith case and the insurer owed a fiduciary duty to its insured.
Dunn, 631 So.2d at 1109 (citations omitted).
We do not hesitate in rejecting the minority approach to the issue of whether an insurer has standing to invoke the attorney-client privilege and work product rule in an attempt to prevent disclosure of the contents of an insured’s file in a third-party bad faith action. The minority position is unsound. It seriously undermines the relationship between an insured and insurer. By overemphasizing a party’s right to obtain disclosure of evidence to prove a third party claim of bad faith, the minority neglects the importance of “full and frank consultation between a client and a legal advisor [without] the fear of compelled disclosure of information.” State ex rel. USF & G v. Canady, 194 W.Va. at 438, 460 S.E.2d at 684.
2. The Majority View
While the majority of courts have developed separate standards regarding the application of attorney-client privilege and the work product rule in third-party bad faith actions, they have generally concluded that an insurer has standing to assert the attorney-client privilege or the work product rule in an effort to prevent disclosure of the contents of the file of its insured in a third-party bad faith action against the insurer. This view opines that “[i]t is well established that the attorney hired by the insurer to represent its insured, actually is representing both the insurer and the insured.” State ex rel. USF & G Company v. The Montana Second Judicial District Court, 240 Mont. 5, 783 P.2d 911, 913 (Mont.1989), citing American Mutual Liability Ins. Co. v. Superior Court, 38 Cal.App.3d 579, 113 Cal.Rptr. 561 (1974); Rogers v. Robson, 74 Ill.App.3d 467, 30 Ill.Dec. 320, 392 N.E.2d 1365 (1979); Longo v. American Policyholders’ Ins. Co., 181 N.J.Super. 87, 436 A.2d 577 (1981). In Jessen v. O’Daniel, 210 F.Supp. 317, 331-332 (D.Mont.1962) the court stated that “[u]nder an insurance contract ... the insurer initially employs the attorney to represent the interests of both the insured and the insurer.” (Emphasis in original). Having set forth the general rationale behind the majority’s conclusions regarding the application of the attorney-client privilege and the work product rule in third-party bad faith actions, we address the specific doctrines in turn, beginning with the attorney-client privilege.
a. The Attorney Client Privilege. The court in State ex rel. USF & G Company v. The Montana Second Judicial District Court, supra, stated best the position taken by the majority in attaching the attorney-client privilege to the file of an insured in a third-party bad faith action against an insured. The court stated:
Normally, all communications between attorney and client, including conversations on phone calls, are memorialized in writing. If these writings are all potentially discoverable, the impact on an attorney’s ability to fully advise a client would be devastating. An insurance company must have an honest and candid evaluation of a case, possibly including a “worst case scenario.” A concern by the attorney that communications would be discoverable in a bad faith suit would certainly chill open and honest communication. An attorney’s inability to communicate freely with the client would impede all communications and could diminish the attorney’s effectiveness. It could also impede settlements.
State ex rel. USF & G Company v. The Montana Second Judicial District Court, 783 P.2d at 916. See also Campbell v. State Farm Mut. Auto. Ins. Co., 840 P.2d 130 (Utah Ct.App.1992).
This Court is not persuaded by the majority view to the extent that it provides an insurer with all the protections of the-attorney-client privilege with respect to an insured’s claim file in third-party bad faith actions. We believe that the majority view seriously impedes a third-party’s ability to prove a bad faith claim. Thus, it does not strike the necessary balance between a client’s need to speak freely with his or her attorney and the importance of obtaining full disclosure of the facts in third-party bad faith litigation. See State ex rel. USF & G v. Canady, 194 W.Va. at 438-39, 460 S.E.2d at 684-85. Having rejected the minority view earlier in this opinion, we now find it necessary to craft a more practical approach to the discovery of documents held by an insurer in a claim file related to one of its insured. Such an approach must adequately protect the attorney/client relationship; yet, provide third parties with a reasonable opportunity to prove the elements of a claim for bad faith. To reach this more practical approach, we believe that a middle ground must be established between the minority and majority positions on this issue.
First, it must be recognized that the majority view artificially clothes an insurer with the attorney-client privilege. The majority view reasons that the insurer hires the attorney to represent both the insured and insurer. In reality, the insurer actually hires the attorney to represent the insured. Even so, we believe that an insurer should be permitted a “quasi attorney-client privilege” with respect to the claim file of an insured in a third-party bad faith action. Especially where, as here, the insured has executed a release of the claim file to a third-party suing an insurer in a bad faith action. We therefore hold that in a third-party bad faith action where an insured has signed a release of his/her claim file to a third-party litigant, an insurer may raise a quasi attorney-client privilege to communication in the insured’s claim file. The quasi attorney-client privilege belongs to the insurer, not the insured, and may be waived only by the insurer.
Second, we must carefully articulate the parameters of the quasi attorney-client privilege herein established. As an initial matter, we note that an attempt to protect from disclosure documents in a claim file that were prepared prior to the filing of a third-party’s underlying suit against the insured is properly maintained by asserting the work product rule, which will be discussed in the next section. Consequently, we hold that all communications in an insured’s claim file that were generated prior to the filing date of a third-party’s underlying complaint against the insured are not protected by the quasi attorney-client privilege. All communications in an insured’s claim file generated on and after the filing date of a third-party’s complaint against an insured, are presumptively quasi attorney-client privilege communications.
Furthermore, we note that prior to the filing of a third-party’s underlying suit against the insured, the majority of documents in the claim file would not fulfill the elements required to gain protection under the attorney-client privilege. Conversely, after the filing of the underlying suit, the number of documents subject to the attorney-client privilege radically increases. While a general request for discovery of documents prepared prior to the underlying suit against the insured may be appropriate, as most of those documents would be undisputably discoverable, we believe such a general request made with respect to documents prepared after the filing of the underlying suit would unduly burden the court by requiring it to examine a multitude of documents that would ultimately be subject to the attorney-client privilege. We therefore hold that where a third-party has obtained a release from the insured giving the third-party access to all communications in the insured’s claim file, in order for the third-party to seek discovery of communications in the claim file generated on or after the date the third-party filed his/her complaint against the insured, the third-party must provide some reasonable description of each communication he/she seeks that was generated on or after the date the third-party filed his/her complaint against the insured. In other words, the third-party may not merely request all communication in the claim file generated on or after the filing date of the complaint against the insured. Thereafter, if the insurer raises the quasi attorney-client privilege to such specifically requested communication, the insurer must prove the elements of the traditional common law attorney-client privilege for each communication it seeks to shield from discovery through assertion of the quasi attorney-client privilege. The trial court must then make an independent determination for each communication the insurer seeks to shield from discovery. If the trial court determines that some or all of the specifically requested communication has been shown to satisfy the elements of the traditional common law attorney-client privilege, then such communication is protected from disclosure by the quasi attorney-client privilege. We note, however, that if the insurer fails to establish all the elements of the traditional common law attorney-client privilege for any specifically requested communication, such communication must be produced to the third-party.
Traditional attorney-client privileged material is virtually undiscoverable under Rule 26(b) of the West Virginia Rules of Civil Procedure. However, applying such com- píete protection to documents subject to the quasi attorney-client privilege herein created for the unique situation presented by third-party bad faith suits is inequitable. Often, the plaintiff in a third-party bad faith suit has no reasonable means of proving his or her claim without the benefit of certain documents contained in the claim file. In order to temper this unduly harsh result, and to advance the balance between the competing interests of full disclosure of the facts and open attorney-client communication, we hold that a third party may, in some instances, obtain discovery of documents found to be protected by the quasi attorney-client privilege. To obtain such documents, the third-party must show a “compelling need” for each communication that has been found to be protected from disclosure by the quasi attorney-client privilege. To satisfy the quasi attorney-client privilege compelling need test, the third-party must show that (1) the specifically requested protected communication cannot reasonably be obtained elsewhere and (2) that the specifically requested protected communication could reasonably be interpreted by the fact finder as tending to prove an element of the bad faith cause of action or (3) that the specifically requested protected communication could reasonably be used to lead to the discovery of facts that tend to prove an element of the bad faith cause of action. Any protected communication for which the third-party satisfies the quasi attorney-client privilege compelling need test must be produced to the third-party.
b. The Work Product Rule. »At the outset, we note that the work product rule traditionally operates to protect documents prepared in anticipation of litigation. See, e.g., Syllabus point 7, State ex rel. United Hosp. Center, Inc. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997) (“To determine whether a document was prepared in anticipation of litigation and, is therefore, protected from disclosure under the work product doctrine, the primary motivating purpose behind the creation of the document must have been to assist in pending or probable future litigation.”). Thus, in the context of third-party bad faith litigation, the rule necessarily applies only to documents prepared prior to the initiation of the third-party’s underlying suit against the insured.
The majority of courts allow an insurer to invoke the work product rule when documents are sought from an insured’s file by a third-party in a bad faith action against the insurer. The court in Askew v. Hardman, 918 P.2d 469 (Utah 1996), succinctly outlined the majority’s guidelines for permitting the work product rule to be invoked by an insurer seeking to prevent disclosure of documents in an insured’s file to a third-party suing an insurer in a bad faith action. The Askew court stated:
... The question remains, however, to what extent documents in an insurance claim file can qualify for work-product protection.
In considering whether documents in an insurance claim file are prepared in anticipation of litigation, courts have taken one of three general positions. Some courts have held that unless a document is prepared by an attorney, the document is not subject to work-product protection. See, e.g., Thomas Organ Co. v. Jadranska Slobodna Plovidba, 54 F.R.D. 367, 372 (N.D.Ill.1972)....
Some courts have taken the position that all documents in an insurance claim file are prepared in anticipation of litigation, without regard to the facts of each ease or the particular documents at issue. See, e.g., Ashmead v. Harris, 336 N.W.2d 197, 201 (Iowa 1983); Hardman v. Maddocks, 518 A.2d 1027, 1033-34 (Me.1986)....
A growing number of courts have adopted a case-by-case approach, taking into consideration various factors to determine whether documents in an insurance claim file were prepared in anticipation of litigation. See, e.g., Spaulding v. Denton, 68 F.R.D. 342, 345-46 (D.Del.1975) (considering facts of each case to determine purpose of documents); Basinger v. Glacier Carriers, Inc., 107 F.R.D. 771, 774 (M.D.Pa.1985) (same); Haynes v. Anderson, 597 So.2d 615, 619 (Miss.1992) (“[Cjourts should consider ‘the nature of the documents, the nature of the litigation [and investigation], the relationship between the parties, and any other fact peculiar to the case.’” (alteration in original) (quoting Pete Rinaldi’s Fast Foods v. Great American Ins., 123 F.R.D. 198, 202 (M.D.N.C.1988))).
In light of ... our previous cases, we find the case-by-case approach more sound in determining whether documents in an insurance claim file were prepared in anticipation of litigation. The trial court should consider the nature of the requested documents, the reason the documents were prepared, the relationship between the preparer of the document and the party seeking its protection from discovery, the relationship between the litigating parties, and any other facts relevant to the issue.
Askew, 918 P.2d at 473-474. See, Humphreys v. Caldwell, 888 S.W.2d 469 (Tex.1994) (per curiam).
With respect to the work product rule, we believe the position taken by the Supreme court of Utah in Askew, represents a viable and fair initial approach to documents in an insured’s claim file that were generated prior to the date the third-party filing his/her underlying complaint against-the insured. We, therefore, hold that in a third-party bad faith action where an insured has signed a release of his/her claim file to a third-party litigant, documents in the insured’s claim file that were generated prior to the filing date of a third-party’s complaint against an insured are, upon a proper showing, protected by the work product rule. An insurer may raise the work product rule with respect to any document it believes is protected from disclosure by the work product rule. The work product rule belongs to the insurer and may be waived only by the insurer.
We need to now carefully set out the boundaries of the work product rule as it applies to an insurer with respect to a third-party bad faith suit. As explained above with regard to the attorney-client privilege, prior to the filing of a third-party’s underlying suit against the insured, the majority of documents in the claim file would likewise presumptively not fulfill the elements required to gain protection under the work product rule. Because the work product rule would presumptively apply to only a limited number of documents, if any, there would be little burden placed upon the court to conduct an examination of the documents for which the rule is evoked by the insurer. Thus, a general request for production of documents prepared prior to the filing of the suit against the insured is appropriate. Where a third-party has obtained a release from the insured giving the third-party access to all pre-litigation documents in the insured’s claim file, in order for the third-party to seek discovery of such documents the third-party need only make a general discovery request for such documents. If the insurer raises the work product rule with respect to any of the pre-litigation documents, the insurer must prove the elements of the work product rule for each document it seeks to shield from discovery through assertion of the work product rule.
Following the criteria set forth in Askew v. Hardman, we hold additionally that when a trial court presiding over a third-party bad faith action makes its determination of whether a document was prepared in anticipation of litigation, the trial court should consider the nature of the requested documents, the reason the documents were prepared, the relationship between the preparer of the document and the party seeking its protection from discovery, the relationship between the litigating parties, and any other facts relevant to the issue. If the trial court determines that some or all of the requested pre-litigation documents have been shown to be protected from disclosure by the work product rule, then such documents are protected from disclosure by the work product rule. Nevertheless, a third-party may obtain documents deemed protected by the work product rule only upon showing that he/she has a substantial need of the materials in the preparation of his/her. case and that he/she is unable without undue hardship to obtain the substantial equivalent of the materials by other means. To satisfy the work product rule substantial need and undue hardship tests, the third-party must show that a witness is no longer available for questioning, or is hostile and refuses to give a statement, or a witness has faulty memory. Any protected document for which the third-party satisfies the work product rule substantial need and undue hardship tests must be produced to the third-party.
3. Application of the Quasi Attorney-Client Privilege and the Work Product Rule to This Case
We have determined that an insurer has standing to raise a quasi attorney-client privilege and the work product rule in an attempt to prevent disclosure of the contents of a claim file of an insured who has executed a release of the claim file to a third-party litigating a bad faith action against the insurer. Therefore, in the instant proceeding Allstate has standing to raise the quasi attorney-client privilege and work product rule in an attempt to prevent disclosure of 66 documents found in its insured’s claim file. In view of the tests announced in this opinion, we prohibit the circuit court from releasing any of the 66 claim file documents until the circuit court has applied the appropriate tests set out in this opinion. On remand, the trial court must initially divide the documents into two categories: (1) documents generated before the date Ms. Thoburn filed her complaint against Mr. Mirandy, and (2) documents generated on and after the date Ms. Thoburn filed her complaint against Mr. Mirandy. Next, all pre-litigation claim file documents must go through the work product rule analysis; while all of the other claim file documents must go through the quasi attorney-client privilege analysis.
c.
Inadvertently Produced Document
Allstate inadvertently provided a two page document to Ms. Thoburn during discovery. Allstate seeks to bar further dissemination and use of that specific document on the grounds of attorney-client privilege. The circuit court denied Allstate’s request for a protective order prohibiting further dissemination and use of the document. This issue appears to be one of first impression for this Court.
Three approaches are used by courts to determine whether or not inadvertently disclosed attorney-client communication constitutes a waiver of the attorney-client privilege. The court in Gray v. Bicknell, 86 F.3d 1472 (8th Cir.1996) explained the three approaches as follows:
As noted by this Court in Pavlik v. Cargill, Inc., 9 F.3d 710, 713 (8th Cir.1993), courts have generally followed one of three distinct approaches to attorney-client privilege waiver based on inadvertent disclosures: (1) the lenient approach, (2) the “middle of the road” approach ... and (3) the strict approach.
Under the lenient approach, attorney-client privilege must be knowingly waived. Here, the determination of inadvertence is the end of the analysis. The attorney-client privilege exists for the benefit of the client and cannot be waived except by an intentional and knowing relinquishment. Georgetown Manor, Inc. v. Ethan Allen, Inc., 753 F.Supp. 936, 938 (S.D.Fla.1991); see also Mendenhall v. Barber-Greene Co., 531 F.Supp. 951, 954 (N.D.Ill.1982) (holding that the better rule is that mere inadvertent production does not waive attorney-client privilege).... The lenient test creates little incentive for lawyers to maintain tight control over privileged material. While the lenient test remains true to the core principle of attorney-client privilege, which is that it exists to protect the client and must be waived by the client, it ignores the importance of confidentiality....
The second approach is known as the strict test. [The plaintiff] urges the Court to adopt such a test and refers to In re Sealed Case, 877 F.2d 976 (D.C.Cir.1989), a case describing the D.C. Circuit’s strict test.... Under the strict test, any document produced, either intentionally or otherwise, loses its privileged status with the possible exception of situations where all precautions were taken. Once waiver has occurred, it extends “ ‘to all other communications relating to the same subject matter.’” Id. at 981 (quoting In Re Sealed Case, 676 F.2d 793, 809 (D.C.Cir.1982)); Texaco Puerto Rico v. Dep’t of Consumer Affairs, 60 F.3d 867 (1st Cir.1995).
While the strict test has some appeal in that it makes attorneys and clients accountable for their carelessness in handling privileged matters, [it should be rejected] because of its pronounced lack of flexibility and its significant intrusion on the attorney-client relationship.... There is an important societal need for people to be able to employ and fully consult with those trained in the law for advice and guidance. The strict test would likely impede the ability of attorneys to fill this need by chilling communications between attorneys and clients. If, when a document stamped “attorney-client privileged” is inadvertently released, it and all related documents lose their privileged status, then clients will have much greater hesitancy to fully inform their attorney.
Finally, there is the middle test, sometimes called the Hydraflow test. . . . Hydraflow, Inc. v. Enidine Inc., 145 F.R.D. 626, 637 (W.D.N.Y.1993). Under the Hy-draflow test, the court undertakes a five-step analysis of the unintentionally disclosed document to determine the proper range of privilege to extend. These considerations are (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the extent of the disclosures, (4) the promptness of measures taken to rectify the disclosure, and (5) whether the overriding interest of justice would be served by relieving the party of its error. Id.-, see also Alldread v. City of Grenada, 988 F.2d 1425, 1433 (5th Cir.1993). If, after completing this analysis, the court determines that waiver occurred, then those documents are no longer privileged. At the court’s discretion, the privilege may also be determined to have been waived for related, but-as-yet undisclosed, documents.
[The middle] test strikes the appropriate balance between protecting attorney-client privilege and allowing, in certain situations, the unintended release of privileged documents to waive that privilege. The middle test is best suited to achieving a fair result. It accounts for the errors that inevitably occur in modern, document-intensive litigation, but treats carelessness with privileged material as an indication of waiver. The middle test provides the most thoughtful approach, leaving the trial court broad discretion as to whether waiver occurred and, if so, the scope of that waiver. It requires a detailed court inquiry into the document practices of the party who inadvertently released the document.
Gray, 86 F.3d at 1483-84. Most courts apply the Hydraflow test.
We, too, believe that the Hydraflow test or “middle test” strikes the proper balance in determining on a case-by-case basis whether or not the inadvertent disclosure of attorney-client privileged communication constitutes a waiver of the privilege. Therefore, we hold that when attorney-client privileged documents are inadvertently disclosed during discovery, such disclosure does not in and of itself constitute a waiver of the privilege. In order to determine whether to apply the waiver doctrine to such disclosure trial courts must consider the following factors: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the extent of the disclosures, (4) the promptness of measures taken to rectify the disclosure, (5) whether the overriding interest of justice would be served by relieving the party of its error and (6) any other factors found to be relevant. We further hold that the party inadvertently disclosing attorney-client privileged communication bears the burden of showing by a preponderance of evidence that the communication should retain its privileged status. The trial court’s determination of this issue will not be reversed absent an abuse of discretion.
In the instant proceeding the trial court did not have the benefit of the Hydraflow test when it denied Allstate’s motion for a protective order on the inadvertently disclosed document. We therefore set aside the trial court’s order denying a protective order. On remand the trial court must hold a hearing on the motion for a protective order and apply the Hydraflow test in determining whether to issue a protective order on the inadvertently disclosed document.
IV.
CONCLUSION
In view of the foregoing we find as follows: (1) the circuit court’s orders requiring production of documentation of all nationwide complaints, nationwide production of all regulatory sanctions filed against Allstate and the production of nationwide advertising and advertising materials by Allstate failed to set out findings of fact and conclusions of law consistent with a Stephens analysis, therefore on remand the trial court must clearly articulate in its order the Stephens analysis for this specific discovery; (2) the circuit court is prohibited from requiring disclosure of any of the 66 documents from the claim file of Allstate’s insured until it has engaged in the quasi attorney-client privilege and work product rule analysis set out in this opinion; and (3) the circuit court’s denial of Allstate’s motion for an order of protection for the document inadvertently disclosed is set aside and on remand the circuit court must apply the Hydraflow test adopted in this opinion to determine whether the waiver doctrine applies to the inadvertently disclosed document.
Writ Granted as Moulded.
. According to the brief of Ms. Thoburn, prejudgment interest increased the verdict to $251, 726.05.
. Ms. Thoburn was not insured by Allstate.
. Allstate removed the case to federal court. The case was remanded to Ohio County circuit court as Allstate was unable to prove that Ms. Thoburn fraudulently joined other defendants to defeat diversity of jurisdiction. Ms. Thoburn named several employees of Allstate as additional defendants.
. The relevant sections in W.Va.Code § 33 — 11— 4(9) provide as follows:
(9) Unfair claim settlement practices. — No person shall commit or perform with such frequency as to indicate a general business practice any of the following:
(a) Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue;
(b) Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies;
(c) Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies;
(d) Refusing to pay claims without conducting a reasonable investigation based upon all available information;
(e) Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed;
(f) Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear;
(g) Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds, when such insureds have made claims for amounts reasonably similar to the amounts ultimately recovered;
(h)Attempting to settle a claim for less than, the amount to which a reasonable man would have believed Ke was entitled by reference to written or printed advertising material accompanying or made part of an application;
(m) Failing to promptly settle claims, where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage.
. Both parties agree that Ms. Thoburn requested only statewide complaints. The circuit court ordered a nationwide production.
. Apparently, Ms. Thoburn requested locally disseminated advertisements. The circuit court ordered the production of advertisements of both a local and national origin.
. Both parties agree that Ms. Thoburn requested all sanctions imposed against Allstate throughout the State of West Virginia. The circuit court ordered the production of sanctions against Allstate on a nationwide basis.
. Allstate retained 137 documents from Mr. Mir-andy's claim file. After an in camera review of the privilege logs on each of the documents retained, the circuit court ordered Allstate to produce 66 of the documents.
. See also, Syl. pt. 4, 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.”).
. Ms. Thoburn’s brief asserts that she "withdraws” the requirement for a nationwide production of documents. Ms. Thoburn originally requested only a statewide production of documents from the circuit court. However, the orders entered by the circuit court compel a nationwide production of documents. "Under Rule 37(b)(2)(D) of the West Virginia Rules of Civil Procedure, a court has the power to find a party in contempt for failure to obey a discovery order[.]” Syl. Pt. 5, Stephens. Ms. Thoburn did not motion the circuit court to rescind or amend that part of its orders requiring the nationwide production of written complaints filed against Allstate. Ms. Thoburn cannot negate the circuit court’s orders compelling the nationwide production of documents. Therefore, this Court will analyze the issue based upon the actual contents of the circuit court orders.
. Allstate submitted an affidavit stating the cost of compiling only the complaint information from West Virginia to be approximately $2 million dollars.
. Counsel for Ms. Thoburn indicated during oral argument that we should not give insurers standing to raise the attorney-client privilege/work product rule to protect disclosure of the files of insureds who have consented to the release of such files. Ms. Thoburn argues that because the State Insurance Commissioner has access to such files by statutory authorization the same is not privileged information. The argument is without merit for two reasons. First, W.Va.Code § 33-2-9 (1957) authorizes general access to the records of insurance companies by the Insurance Commissioner. This Court has not previously ruled upon the issue of what, if any, privilege attaches to the records of insurance companies vis-a-vis the Insurance Commissioner’s general statutory right to inspect such records. Ms. Thoburn contends the attorney-client privilege/work product rule do not bar the statutory right of inspection of the Insurance Commissioner. This issue is not properly before this Court, insofar as Allstate has not sought a writ of prohibition against the Insurance Commissioner in this proceeding. Therefore, we decline to rule upon what, if any, privileges attach to records of insurance companies that would prevent the Insurance Commissioner from having access to such records. Second, while the Insurance Commissioner has been granted statutory access to the records of insurance companies, Ms. Thoburn has cited no statute that would give her access to Mr. Mirandy's claim file. The legislature undoubtedly saw a need to grant the Insurance Commissioner general access to insurance company records. We discern no legislative intent, by way of a statute, which gives the general public access to all records kept by insurance companies.
.We pointed out in Light v. Allstate Insurance Co., 203 W.Va. 27, 30 n. 5, 506 S.E.2d 64, 67 n. 5 (1998) that "[t]he phrase ’bad faith' is used to refer to the state's ‘unfair settlement practices’ statute. However, there is actually a technical distinction between a 'bad faith' claim and an 'unfair settlement practices' claim. The phrase 'bad faith’ was developed to describe the common law action against an insurer. The phrase 'unfair settlement practices' was developed to describe the statutory action against an insurer. Because the statutory claim actually includes the elements of a cause of action for the common law claim, our cases use the two phrases interchangeably. See e.g., State ex rel. West Virginia Fire & Cos. Co. v. Karl, 199 W.Va. 678, 487 S.E.2d 336 (1997); Dodrill v. Nationwide Mut. Ins. Co., 201 W.Va. 1, 491 S.E.2d 1 (1996); McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996); State ex rel. Motorists Mut. Ins. Co. v. Broadwater, 192 W.Va. 608, 453 S.E.2d 591 (1994); Berry v. Nationwide Mut. Fire Ins. Co., 181 W.Va. 168, 381 S.E.2d 367 (1989). As a result of the historical lack of distinction between the two phrases ... we see no need to deviate from our traditional practice of using the two phrases interchangeably.”
. Examples of first-party insurance bad faith settlement cases decided by this Court include: Light v. Allstate Insurance Co., 203 W.Va. 27, 506 S.E.2d 64 (1998); Miller v. Fluharty, 201 W.Va. 685, 500 S.E.2d 310 (1997); State ex rel. West Virginia Fire & Cas. Co. v. Karl, 199 W.Va. 678, 487 S.E.2d 336 (1997) (not clear from opinion but appears to be two consolidated first party bad faith actions); McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996); Marshall v. Saseen, 192 W.Va. 94, 450 S.E.2d 791 (1994); Morrison v. Haynes, 192 W.Va. 303, 452 S.E.2d 394 (1994); State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992); Ball v. Life Planning Services, Inc., 187 W.Va. 682, 421 S.E.2d 223 (1992); Thompson v. West Virginia Essential Property Ins. Ass’n, 186 W.Va. 84, 411 S.E.2d 27 (1991); Robinson v. Fidelity & Deposit Co., 181 W.Va. 463, 383 S.E.2d 95 (1989); Berry v. Nationwide Mut. Fire Ins. Co., 181 W.Va. 168, 381 S.E.2d 367 (1989); Romano v. New England Mut. Life Ins. Co., 178 W.Va. 523, 362 S.E.2d 334 (1987); Hayseeds, Inc. v. State Farm Fire & Cas., 177 W.Va. 323, 352 S.E.2d 73 (1986); Mutafis v. Erie Ins. Exchange, 174 W.Va. 660, 328 S.E.2d 675 (1985).
. Most courts which have considered a third-party bad faith action have not allowed such a third-party claim against a tortfeasor’s insurer. See Messina v. Nationwide Mutual Ins. Co., 998 F.2d 2 (D.C.Cir.1993); McFadden v. Liberty Mutual Ins. Co., 803 F.Supp. 1178 (N.D.Miss.1992), aff'd, 988 F.2d 1210 (5th Cir.1993); Earth Scientists v. United States Fidelity & Guar., 619 F.Supp. 1465 (D.Kan.1985); Wilson v. Wilson, 121 N.C.App. 662, 468 S.E.2d 495 (N.C.App.1996); Dvorak v. American Family Mutual Ins. Co., 508 N.W.2d 329 (N.D.1993); Herrig v. Herrig, 844 P.2d 487 (Wy.1992); Gunny v. Allstate Ins. Co., 108 Nev. 344, 830 P.2d 1335 (1992); Bates v. Allied Mutual Ins. Co., 467 N.W.2d 255 (Iowa 1991); City of Farmington v. L.R. Foy Const. Co., 112 N.M. 404, 816 P.2d 473 (1991); O.K. Lumber Co., Inc. v. Providence Washington Ins. Co., 759 P.2d 523 (Alaska 1988); Moradi-Shalal v. Fireman's Fund Ins. Cos., 46 Cal.3d 287, 250 Cal.Rptr. 116, 758 P.2d 58 (1988); Morris v. American Family Mutual Ins. Co., 386 N.W.2d 233 (Minn.1986); Tank v. State Farm Fire & Casualty Co., 105 Wash.2d 381, 715 P.2d 1133 (1986); Wilder v. Aetna Life & Casualty Ins. Co., 140 Vt. 16, 433 A.2d 309 (1981); Kranzush v. Badger State Mutual Casualty Co., 103 Wis.2d 56, 307 N.W.2d 256 (1981); Scroggins v. Allstate Ins. Co., 74 Ill.App.3d 1027, 30 Ill.Dec. 682, 393 N.E.2d 718 (1979); Lawton v. Great Southwest Fire Ins. Co., 118 N.H. 607, 392 A.2d 576 (1978); Farris v. U.S. Fidelity and Guaranty Co., 284 Or. 453, 587 P.2d 1015 (1978).
. Examples of third-party insurance bad faith settlement cases decided by this Court include: Dodrill v. Nationwide Mut. Ins. Co., 201 W.Va. 1, 491 S.E.2d 1 (1996); State ex rel. State Farm Fire & Casualty v. Madden, 192 W.Va. 155, 451 S.E.2d 721 (1994); Poling v. Motorists Mut. Ins. Co., 192 W.Va. 46, 450 S.E.2d 635 (1994); Russell v. Amerisure Ins. Co., 189 W.Va. 594, 433 S.E.2d 532 (1993), overruled on other grounds, Madden; Robinson v. Continental Cas. Co., 185 W.Va. 244, 406 S.E.2d 470 (1991), overruled on other grounds, Madden; Grove By and Through Grove v. Myers, 181 W.Va. 342, 382 S.E.2d 536 (1989); Jenkins v. J.C. Penney Casualty Ins. Co., 167 W.Va. 597, 280 S.E.2d 252 (1981), overruled on other grounds, Madden.
. In the context of first-party bad faith actions against insurers, courts generally agree that the attorney-client privilege/work product rules do not attach to an insured's file because the insurer created the file primarily on behalf of the insured. Therefore, in a first-party bad faith action against an insurer, the insured generally has access to all documents in his/her file. See DiCenzo v. Izawa, 68 Haw. 528, 723 P.2d 171 (Haw.1986); Longs Drug Stores v. Howe, 134 Ariz. 424, 657 P.2d 412 (Ariz.1983); Alseike v. Miller, 196 Kan. 547, 412 P.2d 1007 (Kan.1966); Jacobi v. Podevels, 23 Wis.2d 152, 127 N.W.2d 73 (Wis.1964); Rogers v. Aetna Casualty & Surety, 601 F.2d 840 (5th Cir.1979); Baker v. CNA Ins. Co., 123 F.R.D. 322, 326 (D.Mont.1988); Jackson v. Kroblin Refrigerated Xpress, 49 F.R.D. 134 (N.D.W.Va.1970). This opinion does not address the extent to which an insured has access to documents in his/her claim file in a first-party bad faith action against an insurer. There are two types of first-party bad faith actions against an insurer. One such action may arise when the insurer fails to use good faith in settling a claim by someone the insured harmed or injured. In this context, the interests of the insured and insurer are presumptively mutual. However, the second type of first-party bad faith action against an insurer concerns a claim brought by the insured against the insurer, e.g., house burned down. In this second type of first-party bad faith action, the interest of the insured and insurer are actually presumptively in conflict. Because the interests of the insured and insured may in fact be inconsistent in a first-party bad faith action, we decline to decide the extent to which the attorney-client privilege/work product rules apply to the claim file of an insured in a first-party bad faith action against an insured. See State ex rel. West Virginia Fire & Cas. Co. v. Karl, 199 W.Va. 678, 683 n. 6, 487 S.E.2d 336, 343 n. 6 (1997) (a first-party bad faith settlement case in which this Court declined to address the issue of whether the plaintiffs in that case could pursue discovery of claim files of other similarly situated insureds).
.The unfair trade practices statute in Florida requires showing a general business practice in a bad faith claim against an insurer. See Fla. Stat. Ann. § 626.9541(l)(i)(3) (1996).
. Montana's unfair trade practices statute is similar to West Virginia's in requiring a showing of a "general business” practice to establish a bad faith claim. See Mont.Code Ann. § 33 — 18— 201 (1997).
.This Court held in syllabus point 5 of Kirchner v. Smith, 61 W.Va. 434, 58 S.E. 614 (1907) that:
An attorney employed by two or more persons to give professional advice or assistance in a matter in which they are mutually interested can, on litigation subsequently arising between such persons or their representatives, be examined as a witness, at the instance of either, as to communications made when he was acting as attorney for all, although he could not disclose such communications in a controversy between his clients or either of them, and third persons.
. The attorney-client privilege belongs to the client. " 'A client ... cannot be compelled, and a legal adviser ... will not be allowed without the express consent of his client, to disclose oral or documentary communications passing between them in professional confidence.' ” Franklin D. Cleckley, A Modest Proposal: A Psychotherapist-Patient Privilege for West Virginia, 93 W.Va. L.Rev. 1, 12 n. 39 (1990), quoting, S. Phipson, Phipson on the Law of Evidence 203 (9th ed.1952). "When the privilege is applicable ... it is absolute.” Franklin D. Cleckley, 1 Handbook on Evidence for West Virginia Lawyers, § 5-4(E)(3) (3d ed.1994).
. This opinion does not address the issue of a third-party seeking the claim file of an insured who has not executed such a release.
. A third-party may make a general request for all communication in the insured's claim file generated before the filing date of the complaint against the insured. See the discussion on work product in § 2(b), infra.
. We held in syllabus point 2 of State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979) that "[i]n order to assert an attorney-client privilege, three main elements must be present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from that attorney in his capacity as a legal advisor; (3) the communication between the attorney and client must be identified to be confidential.”
. In its appellate brief, Allstate distinguishes between documents prepared in connection with the representation of their insured in the suit against him, and documents prepared in connection with an investigation of a possible underin-sured motorist claim. We do not find such a distinction to be relevant. Thus, it does not change the status of the documents with regard to the attorney-client privilege.
. There are certain limited circumstances when documents covered by the attorney-client privilege are discoverable. See 1 Franklin D. Cleck-ley, Handbook on Evidence for West Virginia Lawyers § 5-4(E)(6)(a)-(f), at 578-582 (3d ed.1994).
. The distinction between the traditional common law attorney-client privilege and the quasi attorney-client privilege resides in the ability to obtain quasi attorney-client privilege communication through a showing of compelling need; such a showing cannot pierce the traditional common law attorney-client privilege. For a discussion of the traditional common law attorney-client privilege see, Note, The Attorney-Client Privilege in West Virginia, 54 W.Va. L.Rev. 297 (1952).
. In a few of our third-party bad faith actions against insurers, the facts of those cases revealed disclosure during trial of attorney-client and work product information. See Dodrill v. Nationwide Mut. Ins. Co., 201 W.Va. 1, 491 S.E.2d 1 (1996). However, none of our previous cases required this Court to determine whether such communications were discoverable. Where a party does not assign a matter as error this Court generally will not address matters that may have in fact been error.
. As previously noted, the attorney-client privilege may be raised to protect documents created after a lawsuit has been filed.
. A third-party bad faith action in Utah was created by and is governed by case law, not statute. See Beck v. Farmers Ins. Exch., 701 P.2d 795 (Utah 1985); Campbell v. State Farm Mutual Automobile Insurance Company, 840 P.2d 130 (Utah App.1992).
. The bad faith settlement statute in Texas does not require showing a general business practice. See Tex. Ins.Code Ann., art. 21.21 § 4(10) (Supp. 1998).
. This opinion does not address the issue of a third-party seeking the claim file of an insured, when the insured has not executed a release of his/her claim file to a third-party suing an insurer in a bad faith action.
.“Unlike the attorney-client privilege, ... the work product doctrine is designed for the attorney’s sake.” Franklin D. Cleckley, 1 Handbook on Evidence for West Virginia Lawyers, § 5-4(E)(3) (3d ed.1994). That is, the attorney has the exclusive authority to invoke the work product rule. The decision in this opinion places that authority with the insurer.
. While we require the insurer to prove the elements of the work product rule for each document, we note that the trial court has the discretion to group together similar documents, and to allow the insurer to present proof of work product as to an entire group so designated, rather than its individual parts.
. If the insurer fails to establish all the elements of the work product rule for any requested pre-litigation document, then such document must be produced to the third-party.
. See Rule 26(b)(3) of the West Virginia Rules of Civil Procedure.
. See State ex rel. Chaparro v. Wilkes, 190 W.Va. 395, 438 S.E.2d 575 (1993); In re Markle, 174 W.Va. 550, 328 S.E.2d 157 (1984).
. The record does not inform this Court whether any or all of the post-litigation claim file documents have been specifically or descriptively requested by Ms. Thoburn. The trial court is instructed to apply the quasi attorney-client privilege analysis only to those post-litigation claim file documents that have been specifically requested.
. This Court held in syllabus point 12 of Marano v. Holland, 179 W.Va. 156, 366 S.E.2d 117 (1988) "that the attorney-client privilege may be waived if disclosure of privileged communications is made to third parties.”
. See U.S. v. United Technologies Corp., 979 F.Supp. 108 (D.Conn.1997); In re Southeast Banking Corp. Securities and Loan Loss Reserves Litigation, 212 B.R. 386 (S.D.Fla.1997); Draus v. Healthtrust, Inc., 172 F.R.D. 384 (S.D.Ind.1997); Aramony v. United Way of America, 969 F.Supp. 226 (S.D.N.Y.1997); Fidelity and Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516 (E.D.Pa.1996); Harmony Gold U.S.A., Inc. v. FASA Corp., 169 F.R.D. 113 (N.D.Ill.1996); In re Grand Jury Subpoena, 925 F.Supp. 849 (D.Mass.1995); Ciba-Geigy Corp. v. Sandoz Ltd., 916 F.Supp. 404 (D.N.J.1995); Berg Electronics, Inc. v. Molex, Inc., 875 F.Supp. 261 (D.Del.1995); U.S. v. Keystone Sanitation Co., Inc., 885 F.Supp. 672 (M.D.Pa.1994); Edwards v. Whitaker, 868 F.Supp. 226 (M.D.Tenn.1994); Cunningham v. Connecticut Mut. Life Ins., 845 F.Supp. 1403 (S.D.Cal.1994); Apex Mun. Fund v. N-Group Securities, 841 F.Supp. 1423 (S.D.Tex.1993); Shiver v. Baskin-Robbins Ice Cream Co., Inc., 145 F.R.D. 112 (D.Colo.1992); In re Grand Jury Investigation, 142 F.R.D. 276 (M.D.N.C.1992); Federal Deposit Ins. Corp. v. Ernst & Whinney, 137 F.R.D. 14 (E.D.Tenn.1991); Georgetown Manor, Inc. v. Ethan Allen, Inc., 753 F.Supp. 936 (S.D.Fla.1991); Monarch Cement Co. v. Lone Star Industries, Inc., 132 F.R.D. 558 (D.Kan.1990); Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., Inc., 132 F.R.D. 204 (N.D.Ind.1990); Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 116 F.R.D. 46 (M.D.N.C.1987); Abamar Housing and Development, Inc. v. Lisa Daly Lady Decor, Inc., 698 So.2d 276 (Fla.App. 3 Dist.1997); Hebert v. Anderson, 681 So.2d 29 (La.App. 4 Cir.1996); GPL Treatment, Ltd. v. Louisiana-Pacific Corp., 133 Or.App. 633, 894 P.2d 470 (Or.App.1995); Trilogy Communications, Inc. v. Excom Realty, Inc., 279 N.J.Super. 442, 652 A.2d 1273 (N.J.Super.1994); PacifiCorp v. Department of Revenue of State of Montana, 254 Mont. 387, 838 P.2d 914 (Mont.1992); John Blair Communications, Inc. v. Reliance Capital Group, L.P., 182 A.D.2d 578, 582 N.Y.S.2d 720 (1992); Hartman v. El Paso Natural Gas Co., 107 N.M. 679, 7.63 P.2d 1144 (N.M.1988); Sterling v. Keidan, 162 Mich. App. 88, 412 N.W.2d 255 (Mich.App.1987). For other cases applying the strict test see, Wichita Land & Cattle Co. v. American Federal Bank, F.S.B., 148 F.R.D. 456 (D.D.C.1992); F.D.I.C. v. Singh, 140 F.R.D. 252 (D.Me.1992). For other cases applying the lenient test see, Farm Credit Bank of St. Paul v. Huether, 454 N.W.2d 710 (N.D.1990); In re Sealed Case, 120 F.R.D. 66 (N.D.Ill.1988).
. The inadvertently disclosed document was not tendered to this Court. During oral argument Allstate indicated one copy of the document was enclosed in one of the nine sealed privilege log packets. The Court is unable to locate the document in the record before the Court. If the document did not come from the claim file of Mr. Mirandy, then the trial court need not go beyond the Hydraflow test in disposing of the issue. However, if the document came from Mr. Mirandy's claim file the trial court must proceed as follows. First, Ms. Thoburn knows what the document is and is requesting to keep it. Therefore, the trial court must initially perform a quasi attorney-client privilege analysis. Second, if the document is found to be protected by the quasi attorney-client privilege and Ms. Thoburn fails to show a substantial need for the document, then the trial court must perform the Hydraflow test. On the other hand, if the document is found to be protected by the quasi attorney-client privilege and Ms. Thoburn establishes a substantial need for the document, then the trial court need not perform the Hydraflow test. | [
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PER CURIAM:
This case is before this Court upon a petition for writ of prohibition filed by the petitioner, Melinda Conforti, against the respondents, the Honorable Ronald Wilson, Judge of the Circuit Court of Hancock County, and Satish K. Tandon. The petitioner seeks to prohibit the respondent judge from enforcing his January 12, 1998 order finding that West Virginia is the appropriate jurisdictional forum to consider a petition for modification of custody filed by Mr. Tandon. We issued a rule to show cause and now grant the writ.
I
The petitioner and Mr. Tandon were divorced on December 14, 1994, pursuant to a divorce decree issued by the Court of Common Pleas of Jefferson County, Ohio. The petitioner was awarded custody of the parties’ son and Mr. Tandon, was granted supervised visitation.
On May 15, 1997, Mr. Tandon filed a petition to modify jurisdiction and child custody in the Circuit Court of Hancock County, West Virginia. At that time, the petitioner and child were living in Hancock County. On July 15, 1997, the family law master for the Circuit Court of Hancock County issued a recommended order declaring that the State of West Virginia declined to exercise jurisdiction pursuant to W.Va.Code § 48-10-7 (1981). The family law master found that the Court of Common Pleas in Jefferson County, Ohio, was the more appropriate forum due to the past extensive record and evidence which resulted in the current Ohio custody order.
A timely petition for review of the recommended order was filed by Mr. Tandon. As a result, Judge Wilson issued an opinion and order on August 11, 1997, remanding the matter to the family law master for consideration pursuant to W.Va.Code § 48-10-7(c)(3) and a determination of whether West Virginia residents would be the primary witnesses regarding the future care, custody, and control of the minor child. In September 1997, the petitioner and child moved back to Ohio.
Thereafter, the family law master issued a second recommended order concluding that West Virginia was the more appropriate jurisdiction and convenient forum for litigation of Mr. Tandon’s petition to modify custody. On January 12, 1998, Judge Wilson adopted the family law master’s recommended order. In response, the Honorable John J. Mascio, Judge of the Court of Common Pleas of Jefferson County, Ohio, issued an order on January 23, 1998, concluding that West Virginia was the most appropriate forum. Subsequently, by order dated March 20, 1998, Judge Mascio vacated his January 23, 1998 order and held the same for naught pending a hearing on the issues.
On March 26, 1998, the petitioner filed a petition for writ of prohibition with this Court seeking to prohibit the Circuit Court of Hancock County from exercising jurisdiction in this matter.
II
The general rule with respect to the propriety of the extraordinary remedy of prohibition is set forth in Syllabus Point 1 of Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953): “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.” See also W.Va.Code § 53-1-1 (1923).
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.
Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
Once again, we are confronted with an interstate custody dispute and are essentially asked to determine whether West Virginia is the appropriate jurisdictional forum for consideration of a petition to modify custody where the original custody decree was issued by the State of Ohio. On previous occasions, we have recognized that such disputes are governed by the Parental Kidnapping Prevention Act of 1980 [hereinafter' “PKPA”], 28 U.S.C. 1738A (1980), and the Uniform Child Custody Jurisdiction Act [hereinafter “UCCJA”], codified- in W.Va. Code § 48-10-1 et seq. Because this case involves mixed questions of law and fact that require consideration of legal concepts and statutory construction, our review is plenary. See Burnside v. Burnside, 194 W.Va. 263, 265, 460 S.E.2d 264, 266 (1995).
In Syllabus Point 1 of Arbogast v. Arbogast, 174 W.Va. 498, 327 S.E.2d 675 (1984) we explained that “[t]he [PKPA] extends full faith and credit principles to child custody decrees and requires every state to enforce sister state custody determinations that are consistent with the act.” Similarly, we indicated that the UCCJA “provides that foreign states’ custody decrees are to be recognized and enforced by West Virginia courts if they accord with statutory provisions substantially similar to those of the UCCJA or meet UC-CJA jurisdictional standards.” Arbogast, 174 W.Va. at 502, 327 S.E.2d at 679. Although both acts attempt to establish definite rules about which state has jurisdiction of custody disputes, the PKPA is “more rigid, allows less' judicial discretion, and has attempted to provide more certainty as to the jurisdiction of courts.” Id. Nonetheless, in this case, the petitioner contends that under both the PKPA and UCCJA, West Virginia does not have jurisdiction in this matter.
Naturally, as a federal jurisdictional statute, the PKPA preempts the UCCJA by virtue of the Supremacy Clause. Id. See also Sheila L. on Behalf of Ronald M.M. v. Ronald P.M., 195 W.Va. 210, 218, 465 S.E.2d 210, 218 (1995). Accordingly, we begin our analysis by consulting the PKPA. The petitioner asserts that because the PKPA favors continuing jurisdiction in the state which issued the valid, initial decree, Ohio is the appropriate forum for consideration of Mr. Tandon’s petition to modify custody. In Syllabus Point 2 of Ronald P.M., we recognized that:
Under the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A(d), a court may continue its jurisdiction if it has made a child custody determination consistent with the provisions of this section, if it maintains jurisdiction under its law, and if either the child or a contestant continues to reside in the state. A custody determination is defined in 28 U.S.C. § 1738A(b)(3) as a judgement, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications.
In this case, there is no contention that the original Ohio custody order was not valid. Likewise, it is undisputed that Mr. Tandon has continued to reside in Ohio since the parties divorced. In addition, Rule 75 of the Ohio Rules of Civil Procedure which applies to divorce, annulment, and legal separation actions, provides, in pertinent part:
(I) Continuing jurisdiction. The continuing jurisdiction of the court shall be invoked by motion filed in the original action, notice of which shall be served in the manner provided for the service of process under Civ.R. 4 to 4.6. When the continuing jurisdiction of the court is invoked pursuant to this division, the discov ery procedures set forth in Civ.R. 26 to 37 shall apply.
(Emphasis in original). Thus, under the PKPA, Ohio continued to have jurisdiction in this matter at the time the proceedings were commenced in West Virginia.
Despite the preference for continuing jurisdiction in the State that issued the initial decree, the PKPA permits another state to modify a determination of custody if:
(i) it has jurisdiction to make such a child custody determination; and
(ii) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
28 U.S.C. § 1738A(f). Based upon this provision, Mr. Tandon contends that West Virginia has jurisdiction because West Virginia was the “home state” of the child at the time the modification petition was filed and the State of Ohio declined to exercise jurisdiction in this matter.
The UCCJA, specifically, W.Va.Code § 48-10-3(a)(l) (1981), provides that a court of this State has jurisdiction to make a modification of child custody if “[t]his State ... is the home state of the child at the time of commencement of the proceeding!!]” W.Va.Code § 48-10-2(5) (1981) defines “home state” as “the state in which the child immediately preceding the time involved lived with his parents, a parent or person acting as a parent for at least six consecutive months[.]” Unquestionably, the petitioner and child were living in West Virginia at the time Mr. Tandon filed his petition to modify custody. Thus, West Virginia would have jurisdiction pursuant to both UCCJA and the PKPA.
However, W.Va.Code § 48-10-7(a) (1981) provides that a court which has jurisdiction under the UCCJA “may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state'is a more appropriate forum.” In this regard, we have held that:
The Uniform Child Custody Jurisdiction Act, W.Va.Code §§ 48-10-1 to -26 (1986), is premised on the theory that the best interests of a child are served by limiting jurisdiction to modify a child custody decree to the court which has the maximum amount of evidence regarding the child’s present and future welfare.'
Syllabus Point 1, In the Interest of Brandon L.E., 183 W.Va. 113, 394 S.E.2d 515 (1990).
As discussed above, the family law master originally determined that Ohio was the proper forum for considering modification of custody in this ease because the original custody decree was issued in that State. However, the circuit court refused the family law master’s recommendation declining jurisdiction. On remand, the family law master determined that West Virginia was the appropriate jurisdictional forum primarily because most of the witnesses that would be involved in the proceedings resided in West Virginia. Interestingly, the family law master (and the circuit court) attached little significance to the fact that the petitioner and child had already moved back to Ohio, merely noting that they had lived there less than the requisite six months needed to reconfer jurisdiction on that State.
Upon review, we find it very significant that the petitioner and child have moved back to Ohio. Simply put, no party to this custody dispute presently resides in West Virginia. The child and both parents now live in Ohio. The UCCJA provides that one factor for a court to consider in determining whether it is an inconvenient forum is whether “another state is or recently was the child’s home state.” W.Va.Code § 48-10-7(c)(1). Obviously, evidence concerning the present and future welfare of the child is now in Ohio. Given this fact, we can conceive of no reason for the State of West Virginia to make a custody determination that will affect persons who no longer live in this State. Under the UCCJA and the PKPA, the best interests of the child would be served by the State of Ohio making the decision regarding custody modification. Therefore, we find that a writ of prohibition is appropriate, not because the circuit court had no jurisdiction, but because the circuit court exceeded its legitimate powers by exercising its jurisdiction.
Accordingly, for the reasons set forth above, we grant the writ and prohibit the Circuit Court of Hancock County from enforcing its January 12,1998 order.
Writ granted.
. 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 child was bom on August 1, 1991, and is now six years old.
. According to the petitioner, supervised visitation was ordered because Mr. Tandon, a native of India, was deemed a risk to flee the country with the child. In addition, Mr. Tandon was diagnosed with a narcissistic personality disorder.
. The petitioner and the child had moved to Hancock County before the divorce in June 1994. Hancock County is approximately a ten-minute drive from Jefferson County, Ohio.
. Apparently, Judge Wilson served Judge Mascio with a copy of his January 12, 1998 order.
. While this petition was pending, a third order was entered by Judge Mascio. By order dated June 5, 1998, the Court of Common Pleas of Jefferson County, Ohio, again declined jurisdiction in favor of West Virginia.
. The UCCJA, specifically, W.Va.Code § 48-10-15(a) (1981), also provides:
If a court of another state has made a custody decree, a court of this State shall not modify that decree unless (1) it appears to the court of this State that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially' in accordance with this article or has declined to assume jurisdiction to modify the decree and (2) the court of this State has jurisdiction.
. We do acknowledge that the State of Ohio has declined to exercise jurisdiction in favor of West Virginia because of Judge Wilson’s January 12, 1998 order. In its June 5, 1998 order, the Ohio court stated that if it were to assume jurisdiction. it would be tantamount to overruling a court of another state. The Ohio court is aware of this proceeding in prohibition and we believe that it will act in accordance with our decision herein. | [
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PER CURIAM:
The relator in this original prohibition proceeding, Federal Kemper Insurance Company, prays that this Court prohibit the respondent Judge of the Circuit Court of Kanawha County from proceeding further against it in an action styled Ricky B. Campbell, etc., et al. v. AC & S Incorporated, etc., et al., Kanawha County Civil Action No. 95-C-813. The relator claims that the grounds asserted against it in that civil action have been previously adjudicated in the Circuit Court of Fayette County and that the judgment of the Circuit Court of Fayette County is res ctdju-dicata as to those matters. The relator also claims that the Circuit Court of Kanawha County is collaterally estopped from entertaining the action. After reviewing the issues raised and the documents filed, this Court agrees and concludes that Federal Kemper Insurance Company is entitled to the writ of prohibition which it seeks.
I.
FACTUAL BACKGROUND.
This case grows out of the refusal of Federal Kemper Insurance Company to settle a fire insurance claim to the satisfaction of its insureds, Ricky B. Campbell and his wife. The claim was filed after a fire destroyed the Campbell home in Fayette County on November 17,1992.
Because of Federal Kemper’s refusal to settle, the Campbells filed a civil action in Fayette County on March 3, 1993. In their complaint they sought damages for breach of them insurance contract, and they also sought damages for Federal Kemper’s failure to settle in good faith.
After the filing of the complaint, the Campbells and Federal Kemper Insurance Company engaged in negotiations, and oh December 15, 1993, they reached an agreement as to the fire damage claim. Under that agreement, Federal Kemper paid the Campbells $183,135.72 for their fire loss. The parties, however, left open the Camp-bells’ bad faith settlement practices claim. The agreement specifically provided:
It is expressly agreed and understood that the above payments for dwelling coverage, other structures coverage, personal property coverage and loss of use coverage fully discharge the obligations of Federal Kemper Insurance Company, Debra L. Hood and the agents, employees and successors in interest of either, to make said payments pursuant to the insurance policy, by reason of the November 17, 1992 fire loss and/or the above referenced civil litigation. Acceptance of the payments specified above shall not prejudice the rights of the undersigned to make claims for any other expenses, coverages or damages to which they may be entitled.
As the case developed, it came to the attention of Federal Kemper that the Camp-bells might attempt to introduce, in the forthcoming trial on the bad faith settlement practices claim, evidence of the actions that a former attorney for Federal Kemper had taken after March 3, 1993, the date of filing of the Campbells’ complaint, to defeat their claim. Upon learning of this, Federal Kem-per filed a motion in limine to bar the introduction of evidence of conduct occurring after March 3, 1993, the date of the filing of the Campbells’ complaint. A hearing was held on this motion on October 25, 1994, and during this hearing an issue arose as to whether the actions of Federal Kemper, after the filing of the complaint, were within the scope of the bad faith practices alleged in the complaint. In response to this, the attorney for the Campbells orally moved to amend their complaint.
After taking the questions under consideration, the Circuit Court of Fayette County, by order dated November 14, 1994, granted the motion in limine and specifically excluded the introduction of evidence of Federal Kemper’s conduct after March 3, 1993. The court also denied the Campbells’ motion to amend their complaint.
After the Circuit Court of Fayette County granted Federal Kemper’s motion in limine, the case proceeded to trial and, at the conclusion of the trial on November 5, 1994, a jury returned a verdict for $110,200.00 for the Campbells on their bad faith settlement claim. A judgment was rendered on the verdict, and Federal Kemper later satisfied the judgment by paying the damages awarded by the jury.
Neither party appealed from the judgment rendered by the Circuit Court of Fayette County.
After the Fayette County action was concluded, the Campbells, on March 3, 1995, instituted a second civil action against Federal Kemper Insurance Company in the Circuit Court of Kanawha County. That action, styled Civil Action No. 95-C-813, is the action which Federal Kemper now seeks to prohibit. In that action, the Campbells sought bad faith settlement damages for Federal Kemper’s actions after March 3, 1993, the date on which they filed their original civil action in the Circuit Court of Fay-ette County. Interestingly, their children, who were not parties to the Fayette County action, and who, insofar as this Court can determine, were not privy to the insurance contract entered into by Federal Kemper, were added as parties plaintiff and represented by Ricky B. Campbell as their next friend.
Following the filing of the Kanawha County action, Federal Kemper moved to dismiss the Kanawha County claims on the ground that the Campbells’ assertion of the claims was barred by the principles res judicata and collateral estoppel. The Circuit Court of Ka-nawha County denied that motion.
In the present proceeding, the relator, Federal Kemper Insurance Company, again asserts that the Kanawha County claims are barred by collateral estoppel and res judica-ta and argues that, under the circumstance, this Court should prohibit the Circuit Court of Kanawha County from proceeding further against it in Civil Action No. 95-C-813.
II.
STANDARD FOR DETERMINING WHETHER A WRIT OF PROHIBITION SHOULD ISSUE
As a general proposition, this Court has indicated that a writ of prohibition will issue where a trial court does not have jurisdiction over an action or, where having such jurisdiction, it exceeds its legitimate powers. State ex rel. McCartney v. Nuzum, 161 W.Va. 740, 248 S.E.2d 318 (1978). In considering whether prohibition is appropriate in cases in which the lower tribunal has allegedly exceeded its legitimate powers, this Court has indicated that it would give substantial weight to the question of whether the lower tribunal’s order was clearly erroneous as a matter of law. State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
III.
DISCUSSION
Recently, in Blake v. Charleston Area Medical Center, Inc., 201 W.Va. 469, 498 S.E.2d 41 (1997), this Court discussed the doctrine of res judicata in some depth. In Syllabus Point 4, the Court stated:
Before the prosecution of a lawsuit may be barred on the basis of res judicata, three elements must be satisfied. First, there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings. Second, the two actions must involve either the same parties or persons in privity with those same parties. Third, the cause of action identified for resolution in the subsequent proceeding either must be identir cal to the cause of action determined in the prior action or must be such that it could have been resolved, had it been presented, in the prior action.
In Syllabus Point 1 of the prior case of State ex rel. Division of Human Services by Mary C.M. v. Benjamin P.B., 183 W.Va. 220, 395 S.E.2d 220 (1990), this Court further recognized that:
“ ‘An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata.’ Point 1, Syllabus, Sayre’s Adm’r v. Harpold et al., 33 W.Va. 553 [11 S.E. 16 (1890) ].” Syl. pt. 1, In Re Estate of McIntosh, 144 W.Va. 583, 109 S.E.2d 153 (1959) (emphasis in original).
Collateral estoppel, on the other hand, is broader than res judicata since it does not always require that the same parties be involved. With regard to collateral estoppel, we stated in Syllabus Point 1 of State v. Miller, 194 W.Va. 8, 459 S.E.2d 114 (1995):
Collateral 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.
In the present case, it appears that the Fayette County Circuit Court had jurisdiction over Federal Kemper Insurance Company and Ricky B. Campbell and his wife and that the court also had jurisdiction over the issues arising out of Federal Kemper’s refusal to settle the Campbells’ insurance claim. It is further clear that the question of whether Federal Kemper Insurance Company engaged in bad faith settlement practices after March 3, 1993, that is, after the institution of the Fayette County lawsuit, could have been, and was, in fact, raised by the Campbells in the Fayette County civil action. The circuit court, however, after the filing of Federal Kemper’s motion in limine, for evidentiary reasons, granted the motion and excluded evidence which the Campbells wished to introduce relating to the bad faith actions of Federal Kemper Insurance Company after the institution of the arson. The court also refused to allow the Campbells to amend their complaint. The Campbell’s might have appealed and challenged these rulings on appeal, but they chose not to do so.
As between Federal Kemper Insurance Company and Ricky B. Campbell and his wife, this Court believes that all the necessary preconditions for the application of the doctrine of res judicata in the Circuit Court of Kanawha County were established in the actions which occurred in the Circuit Court of Fayette County. Specifically, there was an identity of the parties. The cause of action, bad faith settlement practices, including bad faith settlement practices after the institution of the Fayette County action, was raised in each action. There was the identity of the thing sued for, that is, damages for the bad faith settlement practices. Although it might be argued that the Campbells were not allowed to pursue their claim for bad faith settlement practices which occurred after March 3, 1993, State ex rel. Division of Human Services by Mary C.M. v. Benjamin P.B., id., and the cases cited in it, indicate that it is not essential that such matters actually be determined, and it is also recognized that an erroneous ruling by the trial court will not prevent the matter from being res judicata. In view of all this, this Court believes that the Circuit Court of Kanawha County erred in failing to apply the principles of res judicata and to grant Federal Kemper Insurance Company’s motion to dismiss the Kanawha County action insofar as Ricky B. Campbell and his wife were concerned.
The addition of the Campbells’ children as parties plaintiff to the Kanawha County action complicates the question of whether a writ of prohibition should issue as to them here. The children were not parties to the Fayette County action; thus, under the principles cited above, res judicata cannot apply to them.
However, as previously noted, in State v. Miller, supra, it was recognized that collateral estoppel does not always require that the parties be the same in two actions for the doctrine to apply to the second action. It is sufficient that a party in the second action was in privity with the party in the prior action and/or-that that party had a full and fair opportunity to be involved in the prior action. Rather clearly, the Campbells’ children in the Kanawha County action were the Campbells’ children at the time of the Fayette County action, and this Court believes that Ricky B. Campbell could have joined them and represented them in Fayette County, as he is doing in Kanawha County. In effect, the Court believes that the conditions precedent for the application of the doctrine of collateral estoppel as to the children are present.
As previously stated, that prohibition will lie where a lower court has exceeded its legitimate powers, and in the present case, the Court believes that the Circuit Court of Kanawha County exceeded its legitimate powers when it refused to grant Federal Kemper Insurance Company’s motion to dismiss Civil Action No. 95-C-813. The Court also believes that the Circuit Court of Kanawha County exceeded its legitimate jurisdiction when it refused to grant Federal Kemper Insurance Company’s motion to dismiss and that under the overall circumstances, the issuance of the writ of prohibition, which Federal Kemper Insurance Company seeks in this case, is appropriate.
It is therefore -adjudged that a writ of prohibition should be granted prohibiting the Circuit Court of Kanawha County from entertaining further Civil Action No. 95-C-813 against Federal Kemper Insurance Company.
Writ granted.
McCUSKEY, J., deeming himself disqualified, did not participate in the decision of this case.
. 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).
. In claiming that Federal Kemper had refused to settle in good faith, the Campbell’s alleged:
"34. That the said defendants acted willfully, maliciously, fraudulently, and intentionally in refusing to consider the nature and extent of the plaintiffs' loss and in refusing to pay plaintiffs’ claims for various coverages, without valid cause; and that this was done knowingly, intentionally and with the purpose of discouraging, avoiding or reducing the payment due plaintiffs under the terms of the policy.
35. That said defendants' intentional refusal to pay plaintiffs’ valid claim was a breach of the implied in-law duty of good faith and fair dealing and operated to unreasonably deprive plaintiffs of the benefits of the insurance policy; and that Federal Kemper’s intentional refusal to pay plaintiffs’ valid claim was in conspiracy and concert with, and at the direction of the defendant, Debra L. Hood, and the conduct of each of said defendants in intentionally refusing to pay plaintiffs’ valid claim was malicious, fraudulent, oppressive and otherwise reflected a conscious disregard of plaintiffs' rights.
36. That the action of the defendants, jointly and severally, in refusing to pay under said policy, and in denying plaintiffs’ coverage and in doing the things herein and hereafter complained of, and in otherwise repudiating and breaching said insurance contract and, more specifically, the implied covenants of good faith and fair dealing embodied therein, have been negligent, reckless, tortious, fraudulent, deceptive, defiant, intentional, willful, wanton and deliberate.”
. In its order, the Circuit Court of Fayette County essentially concluded that it was inappropriate for the Campbells to introduce evidence of Federal Kemper’s actions after the institution of the action for the reasons set forth in Palmer by Diacon v. Farmers Insurance Exchange, 261 Mont. 91, 861 P.2d 895 (Mont. 1993). In the Palmer case, the Supreme Court of Montana stated:
The Rules of Civil Procedure control the litigation process and, in most instances, provide adequate remedies for improper conduct during the litigation process. Once the parties have assumed adversarial roles, it is generally for the judge in the underlying case and not a jury to determine whether a party should be penalized for bad faith tactics. [Palmer v.] Ted Stevens Honda, [193 Cal.App.3d 530] 238 Cal. Rptr. 363, 369 (citing White, 221 Cal.Rptr. at 525, 710 P.2d at 325 (Lucas, J., concurring and dissenting)).
"An attorney in litigation is ethically bound to represent the client zealously within the frame work provided by statutes and the Rules of Civil Procedure. These procedural rules define clear boundaries of litigation conduct. If a defense attorney exceeds the boundaries, the judge can strike the answer and enter judgment for the plaintiff, enter summary judgment for the plaintiff, or impose sanctions on the attorney ... There is no need to penalize insurers when their attorneys represent them zealously within the bounds of litigation conduct. To allow a jury to find that an insurer acted in bad faith by zealously defending itself is to impose such a penalty.”
861 P.2d at 914 (Mont.1993).
The Montana court went on to recognize that admitting evidence during trial of an insurer's conduct after the institution of litigation would have a chilling effect upon an insurer’s zealous defense of a claim against it and would even have an affect on its right of access to the courts. The court also indicated that in some instances evidence of an insurer’s post-filing conduct could bear on the reasonableness of the insurers pre-litigation decisions and its state of mind when it evaluated the denial of the underlying claim. It stated that when there was a question of the relevancy of post-filing conduct, in terms of establishing the insurer's state of mind when it evaluated and denied the underlying claim, it was incumbent upon the trial court to weigh the relevance and the probative value of the evidence against the high potential prejudicial effect of such evidence. The court concluded that where such evidence was highly relevant to the underlying claim, and its relevance exceeded its prejudicial impact, introduction of evidence of post-filing conduct was appropriate.
In the present case, this Court is not presented with the question of whether the rulings of the Circuit Court of Fayette County were correct or erroneous. | [
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Justice BENJAMIN delivered the opinion of the Court.
BENJAMIN, Justice:
This matter is presented to us upon certified questions presented by the Circuit Court of Cabell County pursuant to W. Va.Code § 58-5-2 (1998). The underlying tort action arises from claims asserted by a physician against the attorneys who brought a medical malpractice action against the physician on behalf of a former patient of the physician. The certified questions presented relate to the duty of care, if any, an opposing counsel owes a party and the scope of the litigation privilege in West Virginia. Having determined that “there is a sufficiently precise and undisputed factual record on which the legal issues can be determined” and that those issues substantially control the case, we will address the issues presented. Syl. Pt. 5, in part, Bass v. Coltelli, 192 W.Va. 516, 453 S.E.2d 350 (1994).
I.
FACTS AND PROCEDURAL HISTORY
On December 5, 2002, Carolyn Clark, M.D. [“Dr. Clark”] filed a complaint in the Circuit Court of Cabell County, West Virginia, being civil action number 02-C-1002, against William S. Druekman, Salsbery and Druekman, a West Virginia partnership, Richard Lindsay, Tabor Lindsay & Associates, a West Virginia partnership, and Frederick L. Delp. Druekman and Lindsay are the former counsel for Amy and Roy Dempsey. Druck-man and Lindsay filed a medical professional negligence action against Dr. Clark on behalf of the Dempseys in the Circuit Court of Kanawha County, West Virginia in November 1999 arising from an alleged failure to timely diagnose an aggressive form of breast cancer in Mrs. Dempsey. Frederick L. Delp replaced Druekman and Lindsay as counsel for the Estate of Amy Dempsey after Druekman and Lindsay were permitted to withdraw as counsel in February 2001. Thereafter, the Dempsey action was voluntarily dismissed, with prejudice, on December 7, 2001. Nearly one year later, Dr. Clark filed her complaint against Druekman, Lindsay and Delp asserting claims of negligence, intentional infliction of emotional distress, tortious interference with Dr. Clark’s business relationship with her insurance carrier and malicious prosecution. Dr. Clark sought compensatory and punitive damages arising from the filing and prosecution of the Dempsey action.
Having conceded that probable cause existed to initially file the action against her, Dr. Clark focuses her claims on the disclosure of expert witnesses regarding causation and the applicable standard of care in the Dempsey action. In September 2000, Drack-man filed Plaintiffs Initial Disclosure of Expert Witnesses in the Dempsey action, disclosing David M. Burkons, M.D., and Melvin Ravitz, M.D., as experts “regarding the negligence of the defendants” and Barry Singer, M.D. and Lee Levitt, M.D. as experts regarding causation and damages. The disclosure noted that these witnesses “may be used at the trial of [the Dempsey ] matter.” It does not appear from the record before this Court that Dr. Clark made any attempt to depose these experts or otherwise discover their opinions prior to the withdrawal of Druckman and Lindsay in February 2001. At a July 6, 2001 hearing, Mr. Delp appeared as replacement counsel for the Estate of Amy Dempsey. At that hearing, the court, on its own initiative, scheduled a statutory status conference for August 31, 2001. Pri- or to the mandatory status conference, Mr. Delp re-disclosed the experts previously disclosed by Druckman and Lindsay on August 24, 2001. Dr. Clark claims that neither Druckman and Lindsay nor Mr. Delp actually contacted these experts prior to their disclosure.
After certain discovery, Druckman and Lindsay filed motions for summary judgment on September 15, 2004 and September 20, 2004 respectively. In their motions, Druck-man and Lindsay argued the litigation privilege bars civil actions against lawyers for damages arising from- litigation conduct. In response, Dr. Clark argued that the litigation privilege is restricted to claims of defamation, relating solely to communications and not conduct. During an October 6, 2004, hearing on the motions, the circuit court and counsel for the parties decided to certify certain questions of law governing resolution of Dr. Clark’s claims to this Court. A second hearing was held on October 20, 2004, during which counsel presented oral arguments regarding the issues to be certified. By Order dated November 15, 2004, the circuit court certified the following questions to this Court:
1. Whether an attorney for a party in a lawsuit owes a duty of care to that party’s adversary in the lawsuit such that the adversary may assert a cause of action for negligence against the opposing attorney? Answer of the Circuit Court: No.
2. Is a party to a civil action barred, by virtue of the litigation privilege, from bringing any type of claim for civil damages against the opposing party’s attorney if the alleged act of the attorney in the course of the attorney’s representation of the opposing party is conduct and not a written or oral statement which arose in the civil action and which has some relationship to the civil action?
Answer of the Circuit Court: Yes.
On January 15, 2005, Dr. Clark filed her Petition to Certify Questions with this Court. Druckman and Lindsay likewise filed their Petition for Certified Questions on February 4, 2005. By Orders dated March 24, 2005, we granted both Petitions and consolidated the matters for purposes of oral argument, consideration and opinion. Upon due consideration of the parties’ arguments, the designated record before this Court and the pertinent legal authorities, we now address the certified questions presented.
II.
STANDARD OF REVIEW
We begin by recognizing that “[t]he 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).
III.
DISCUSSION
A. First Certified Question
Initially, we are asked to determine “[wjhether an attorney for a party in a lawsuit owes a duty of care to that party’s adversary in the lawsuit such that the adversary may assert a cause of action for negligence against the opposing attorney!.]” The question of whether a duty of care exists is a question of law. Syl. Pt. 5, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000). Dr. Clark urges this Court to recognize that counsel for a party in a lawsuit owes the opposing party a duty of care, the breach of which would subject counsel to a claim for negligence. Dr. Clark argues recognizing such a duty may aid in preventing frivolous lawsuits. Conversely, Druckman and Lindsay argue that counsel’s duty is to zealously advocate and promote the interests of his or her client and that the recognition of a competing duty to an opposing party would compromise counsel’s duty to his or her own client. The circuit court indicated its belief that a duty to an opposing party does not exist in its answer to the fust certified question. We agree.
We have previously stated that
[t]his Court holds each and every attorney to the inflexible requirement that he “diligently, faithfully and legitimately perform every act necessary to protect, conserve and advance the interests of his client.” Bank of Mill Creek v. Elk Horn Coal Corp., 133 W.Va. 639, 657, 57 S.E.2d 736, 748 (1950). An attorney who deviates from this duty is subject to disciplinary action, see Rules of Professional Conduct, and/or civil liability, the latter of which may be pursued only by the client injured by his counsel’s negligence.
Delaware CWC Liquidation Corp. v. Martin, 213 W.Va. 617, 623, 584 S.E.2d 473, 479 (2003) (refusing to permit the assignment of a legal malpractice claim)(emphasis added). See also Norton v. Hines, 49 Cal.App.3d 917, 922, 123 Cal.Rptr. 237 (Cal.Ct.App.1975) (noting an attorney’s duty is to his client to vigorously pursue the client’s case within the bounds of law and the rules of professional conduct). Similarly, the court in McKenna Long & Aldridge, LLP v. Keller, 267 Ga.App. 171, 598 S.E.2d 892, 894 (2004), reviewing a number of Georgia cases discussing duty in the context of attorneys’ relationships with non-clients, noted that:
[a] defendant attorney owe[s] no duty to the plaintiff ... the attorney’s paramount duty [is] to the trial court, as a licensed attorney and officer of the court, and to his client[.] ... [N]o cause of action in negligence [can] lie because the overriding public policy guarding free access to the courts and the fact that the attorney’s legal duty is to his own client demand[s] a finding that the attorney owe[s] no duty to an adverse party that would give rise to a claim in negligence, whether to investigate fully the client’s claim prior to filing suit or to avoid filing a suit which he knew or should have known was frivolous.
(Internal quotations and citations omitted). An attorney’s general duty to the judicial system does not translate into liability in negligence to an opposing party. Tappen v. Ager, 599 F.2d 376, 379 (10th Cir.1979); Bickel v. Mackie, 447 F.Supp. 1376, 1381 (N.D.Iowa 1978).
Dr. Clark has not cited a single decision from any court in the United States which supports her position and our own research has not uncovered such a decision. To the contrary, courts which have addressed the issue have uniformly found that an attorney does not have a duty to a third party, including an opposing party, the breach of which would subject the attorney to liability. See, e.g., Tappen, 599 F.2d at 379; James v. Chase Manhattan Bank, 173 F.Supp.2d 544, 550 (N.D.Miss.2001); Taco Bell Corp. v. Cracken, 939 F.Supp. 528, 532 (N.D.Texas 1996); Bickel, 447 F.Supp. at 1381; Norton, 49 Cal.App.3d at 922, 123 Cal.Rptr. 237; Krawczyk v. Stingle, 208 Conn. 239, 543 A.2d 733, 735 (1988); McKenna, 598 S.E.2d at 894; Brody v. Ruby, 267 N.W.2d 902, 906-7 (Iowa 1978); Friedman v. Dozorc, 412 Mich. 1, 312 N.W.2d 585, 591-2 (1981); Eustis v. David Agency, Inc., 417 N.W.2d 295, 298 (Minn.Ct.App.1987); Rhode v. Adams, 288 Mont. 278, 957 P.2d 1124, 1127-28 (1998); Garcia v. Rodey, Dickason, Sloan, Akin & Robb, PA, 106 N.M. 757, 750 P.2d 118, 122 (1988); Aetna Electroplating Co. v. Jenkins, 335 Pa.Super. 283, 484 A.2d 134, 136-7 (1984); Bradt v. West, 892 S.W.2d 56, 71-72 (Tex.Ct.App.1994). As aptly stated by the Michigan Supreme Court in Friedman, the
creation of a duty in favor of an adversary of the attorney’s client would create an unacceptable conflict of interest which would seriously hamper an attorney’s effectiveness as counsel for his client. Not only would the adversary’s interests interfere with the client’s interests, the attorney’s justifiable concern with being sued for negligence would detrimentally interfere with the attorney-client relationship.
Friedman, 312 N.W.2d at 591-92 (footnotes omitted).
This Court can find no justification for imposing a duty of care in favor of an opposing party upon counsel. Imposition of such a duty can only work to the detriment of counsel’s own client and would adversely impact counsel’s duty of zealous advocacy for his or her own client and would create an impossible and unjustified conflict of interest. Accordingly, we hold that an attorney for a party in a civil lawsuit does not owe a duty of care to that party’s adversary in the lawsuit such that the adversary may assert a cause of action for negligence against the opposing attorney.
B. Second Certified Question
In the second certified question, we are asked to determine whether the so-called “litigation privilege” extends beyond communications and provides immunity for civil damages for claims arising from conduct occurring during a civil action. Dr. Clark argues that our discussion of the litigation privilege in Collins v. Red Roof Inns, Inc., 211 W.Va. 458, 566 S.E.2d 595 (2002) limits recognition of the same to defamatory communications made during the litigation process. Dr. Clark is, to an extent, correct. We did not discuss application of the litigation privilege to conduct occurring during the litigation process in Collins. However, we were not presented with the question of whether the litigation privilege applied to litigation conduct in Collins as Collins involved a certified question regarding the application of the litigation privilege to an alleged pre-suit defamatory statement. This Court, prior to today, has not addressed the issue. However, the circuit court, in its answer to the second certified question indicated its belief that the litigation privilege does apply to litigation conduct. Again, we agree.
In her concurring opinion in Barefield v. DPIC Companies, Inc., 215 W.Va. 544, 600 S.E.2d 256 (2004), Justice Davis discussed the policies underlying the litigation privilege. Therein she stated:
[t]he public policies associated with the litigation privilege include: (1) promoting the candid, objective and undistorted disclosure of evidence; (2) placing the burden of testing the evidence upon the litigants dui’ing trial; (3) avoiding the chilling effect resulting from the threat of subsequent litigation; (4) reinforcing the finality of judgments; (5) limiting collateral attacks upon judgments; (6) promoting zealous advocacy; (7) discouraging abusive litigation practices; and (8) encouraging settlement. Matsuura v. E.I. du Pont de Nemours & Co., 102 Hawaii 149, 73 P.3d 687, 693 (2003).
Barefield, 215 W.Va. at 560, 600 S.E.2d at 272 (Davis, J., concurring). In light of these policies, we see no reason to distinguish between communications made during the litigation process and conduct occurring during the litigation process. As recognized by the Florida Supreme Court:
absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding. The rationale behind the immunity afforded to defamatory statements is equally applicable to other misconduct occurring during the course of a judicial proceeding. Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.
Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., v. United States Fire Insurance Company, 639 So.2d 606, 608 (Fla.1994). See also Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1274 (11th Cir.2004) (quoting Levin).
In Collins, we recognized that absolute privileges, such as the litigation privilege, should only be permitted in limited circumstances. Collins, 211 W.Va. at 461, 566 S.E.2d at 598. Thus, we do not believe that a litigation privilege should apply to bar liability of an attorney in all circumstances. In Mehaffy, Rider, Windholz & Wilson v. Central Bank Denver, N.A., 892 P.2d. 230, 235 (Colo.1995), the Colorado Supreme court noted that “an attorney is not liable to a non-client absent a finding of fraud or malicious conduct by the attorney.” See also Baglini v. Lauletta, 338 N.J.Super. 282, 768 A.2d 825, 833-34 (2001) (“The one tort excepted from the reach of the litigation privilege is malicious prosecution, or malicious use of process.”). We believe such exceptions to an absolute litigation privilege arising from conduct occurring during the litigation process are reasonable accommodations which preserve an attorney’s duty of zealous advocacy while providing a deterrent to intentional conduct which is unrelated to legitimate litigation tactics and which harms an opposing party. As recently noted by a California court:
[a] fraud claim against a lawyer is no different from a fraud claim against anyone else. If an attorney commits actual fraud in his dealings with a third party, the fact he did so in the capacity of attorney for a client does not relieve him of liability. While an attorney’s professional duty of care extends only to his own client and intended beneficiaries of his legal work, the limitations on liability for negligence do not apply to liability for fraud.
Vega v. Jones, Day, Reavis & Pogue, 121 Cal.App.4th 282, 291, 17 Cal.Rptr.3d 26, 31-2 (Cal.Ct.App.2004)(internal citations and quotations omitted).
In order “[t]o maintain an action for malicious prosecution it is essential to prove: (1) That the prosecution was malicious; (2) that it was without reasonable or probable cause; and (3) that it terminated favorably to plaintiff.” Syl. Pt. 1, Lyons v. Davy-Pocahontas Coal Co., 75 W.Va. 739, 84 S.E. 744 (1915). The term malicious is defined as “[s]ubstantially certain to cause injury” and “without just cause or excuse.” Black’s Law Dictionary 977 (8th Ed.2004). This definition implies an improper or evil intent or motive or the intent to do harm. Where an attorney files suit without reasonable or probable cause with the intent to harm a defendant, we do not believe the litigation privilege should insulate him or her from liability for malicious prosecution.
As noted above, we can find no reasonable justification for distinguishing conduct from communications for the purposes of the litigation privilege. However, we also recognize the need for limited exceptions from application of the absolute litigation privilege for certain intentional actions. Accordingly, we now hold that the litigation privilege is generally applicable to bar a civil litigant’s claim for civil damages against an opposing party’s attorney if the alleged act of the attorney occurs in the course of the attorney’s representation of an opposing party and is conduct related to the civil action.
The second question certified to this Court did not provide for the above recognized exceptions to the litigation privilege. Therefore, we invoke the power recognized in Syllabus Point 3 of Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993), to reformulate the question certified so as to fully address the issues presented and reformulate the question presented to read: '
2. Is a party to a civil action barred, by virtue of the litigation privilege, from bringing claims for civil damages against the opposing party’s attorney if the alleged act of the attorney in the course of the attorney’s representation of the opposing party is conduct and not a written or oral statement which arose in the civil action and which has some relationship to the civil action?
Answer: Yes.
Thus, we likewise find the circuit court’s answer to the second question certified was substantially correct.
Our ruling today does not permit attorneys or their clients to act without consequence during the litigation process. However, we believe our Rules of Civil Procediere, our Rules of Professional Conduct, and the court’s inherent authority provide adequate safeguards to protect against abusive and frivolous litigation tactics.
For example, Rule 11(b) of our Rules of Civil Procedure, provides:
By presenting to the court (whether by signing, filing, submitting or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information and belief formed after an inquiry reasonable under the circumstances, (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; ....
Rule 11(c) provides for the imposition of sanctions, including, but not limited to, monetary sanctions for violations of Rule 11(b). Rule 37 provides additional sanctions for discovery violations. In the instant matter, Dr. Clark may have been able to move for sanctions relating to a misrepresentation of expert testimony had Druckman and Lindsay represented that the disclosed experts “would” testify, as opposed to simply stating that the disclosed experts “may be used.” However, the record does not indicate that Dr. Clark ever moved for sanctions in the Dempsey action.
Our Rules of Professional Conduct also provide duties governing an attorney’s conduct. For example, Rules 3.1 through 3.5 are rules governing an attorney’s conduct toward the tribunal, opposing counsel and the opposing party. These rules provide guidelines prohibiting frivolous actions and imposing duties of candor, impartiality and decorum. Where a party or opposing counsel believes an attorney is acting in violation of the Rules of Professional Conduct, disciplinary action may be sought. In the instant action, the record does not reveal that Dr. Clark ever sought disciplinary action against any of the defendant attorneys for their alleged misconduct.
Notwithstanding the availability of sanctions under the Rules of Civil Procedure and the availability of disciplinary action for violations of the Rules of Professional Condtict, a trial court always has inherent authority to regulate and control the proceedings before it and to protect the integrity of the judicial system. As noted by the Florida Supreme Court in Levin:
[c]leariy, a trial judge has the inherent power to do those things necessary to enforce its orders, to conduct its business in a proper manner, and to protect the court from acts obstructing the administration of justice. In particular, a trial court would have the ability to use its contempt powers to vindicate its authority and protect its integrity by imposing a compensatory fine as punishment for contempt.
Levin, 639 So.2d at 608-9. Where an attorney’s misconduct so offends the integrity of the judicial system and a party’s right to a fair trial, the trial court has inherent authority to impose corrective sanctions.
Finally, we note that the conduct of which Dr. Clark complains, the filing and prosecution of a medical malpractice action allegedly without supporting expert testimony,' has been statutorily remedied. W. Va.Code § 55-7B-6 was amended by the Legislature in 2001 to require, in most instances, the disclosure of relevant expert opinions by the time suit is filed. See footnote 7, supra. Even prior to the 2001 statutory amendments, W. Va.Code § 55-7B-6 (b) (1986), which was in effect at the time the Dempsey action was initiated, provided for the recovery of reasonable litigation expenses incurred if the action was dismissed upon a finding that it was frivolous. It appears Dr. Clark did not avail herself of these statutory remedies in the Dempsey matter. Instead, she instituted the instant action against the Dempsey’s counsel.
IV.
CONCLUSION
In the instant matter, we find that an attorney does not owe an opposing party a duty of care, the breach of which would subject the attorney to negligence liability. Further, the litigation privilege generally operates to preclude actions for civil damages arising from an attorney’s conduct in the litigation process. However, the litigation privilege does not apply to claims of malicious prosecution and fraud.
CERTIFIED QUESTIONS ANSWERED
.W. Va.Code § 58-5-2 provides:
Any question of law, including, but not limited to, questions arising upon the sufficiency of a summons or return of service, upon a challenge of the sufficiency of a pleading or the venue of the circuit court, upon the sufficiency of a motion for summary judgment where such motion is denied, or a motion for judgment on the pleadings, upon the jurisdiction of the circuit court of a person or subject matter, or upon failure to join an indispensable party, may, in the discretion of the circuit court in which it arises, be certified by it to the supreme court of appeals for its decision, and further proceedings in the case stayed until such question shall have been decided and the decision thereof certified back. The procedure for processing questions certified pursuant to this section shall be governed by rules of appellate procedure promulgated by the supreme court of appeals.
. Hereinafter, William S. Druekman and Sals-bery and Druekman, a West Virginia partnership shall be collectively referred to as "Druekman.”
. Richard Lindsay and Tabor Lindsay & Associates, a West Virginia partnership, shall, hereinafter, be collectively referred to as “Lindsay.”
. Mr. Delp has not made an appearance before this Court.
. Amy Dempsey succumbed to breast cancer on November 25, 2000. Her mother, Linda Smith, continued the action against Dr. Clark in her capacity as Executrix of the Estate of Amy Dempsey.
. Pursuant to W. Va.Code § 55-7B-6(a) (1986), which was in effect at the time the Dempsey action was filed, a status conference to determine the status of discovery and the need for expert witnesses regarding the applicable standard of care was required. Specifically, W. Va.Code § 55-7B-6 (a) (1986), provided:
In each medical professional liability action against a health care provider, not less than nine months nor more than twelve months following the filing of answer by all defendants, a mandatory status conference shall be held at which, in addition to any matters otherwise required, the parties shall:
(1) Inform the court as to the status of the action, particularly as to the identification of contested facts and issues and the progress of discovery and the period of time for, and nature of, anticipated discovery; and
(2) On behalf of the plaintiff, certify to the court that either an expert witness has or will be retained to testify on behalf of the plaintiff as to the applicable standard of care or that under the alleged facts of the action, no expert witness will be required. If the court determines that expert testimony will be required, the court shall provide a reasonable period of time for obtaining an expert witness and the action shall not be scheduled for trial, unless the defendant agrees otherwise, until such period has concluded. It shall be the duty of the defendant to schedule such conference with the court upon proper notice to the plaintiff.
In Syllabus Points 4 and 5 of State ex rel. Weirton Medical Center v. Mazzone, 214 W.Va. 146, 587 S.E.2d 122 (2002), we held that the necessity of expert witnesses must be resolved during the mandatory status conference required by W. Va. Code § 55-7B-6 (1986) and that neither party shall be required to disclose experts witnesses before the mandatory status conference is held, notwithstanding contrary expert witness disclosure dates contained within an initial scheduling order entered pursuant to W. Va.R.Civ.P. 16. W. Va.Code § 55-7B-6 was rewritten in 2001. See, footnote 7, infra. We further held in Syllabus Point 4 of Daniel v. Charleston Area Medical Center, Inc., 209 W.Va. 203, 544 S.E.2d 905 (2001), that "[u]pon a trial court's determination that an expert witness is required to prove standard of care or proximate cause in an action brought under the West Virginia Medical Professional Liability Act, West Virginia Code §§ 55-7B-1 to -11 (1986) (Repl.Vol.2000), a reasonable period of time must be provided for retention of an expert witness.”
. Druckman and Lindsay also filed a motion for partial summary judgment regarding the probable cause issue on August 11, 2003. In this motion, Druckman and Lindsay argued that Dr. Clark's malicious prosecution claims should be dismissed as she had admitted that probable cause existed to file the Dempsey action and at the time the Dempsey action was filed, the law did not require expert opinions prior to the institution of a medical professional negligence action. W. Va.Code § 55-7B-6(b) was entirely rewritten in 2001 to require a notice of claim be served upon a health care provider 30 days prior to the filing of a medical professional liability action. According to the statute, a certificate of merit executed by a qualified expert is also to be provided in most circumstances. The certificate of merit "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.” W. Va.Code 55-7B-6 (2001). This statute was amended again in 2003. Those amendments do not effect and are not relevant to the discussion herein.
. We also recognize the contribution of amicus curiae Debra Sams, D.O. to the arguments presented.
. We pause to clarify that, contrary to Dr. Clark’s assertion, the litigation privilege would not operate to preclude a negligence action against opposing counsel if the parties were involved in a traffic accident on the way to some litigation-related proceeding. Negligence in the operation of a motor vehicle is not sufficiently "related to” the underlying civil action to justify invocation of the litigation privilege.
. W. Va.Code § 55-7B-6(b) (1986) provided:
In the even that the court determines prior to trial that either party is presenting or relying upon a frivolous or dilatory claim or defense, for which there is no reasonable basis in fact or at law, the court may direct in any final judgment the payment to the prevailing party of reasonable litigation expenses, including deposition and subpoena expenses, travel expenses incurred by the party, and such other expenses necessary to the maintenance of the action, excluding attorney's fees and expenses. | [
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PER CURIAM:
In the instant case, the Circuit Court of Berkeley County granted summary judgment for the appellees and defendants below, Quad Graphics, Inc. and Robert Knighten, a Quad Graphics supervisor. The circuit court ruled that the appellant and plaintiff below, James Arnazzi, did not establish the existence of a material issue of fact on the element of proximate cause in a case brought under present W.Va.Code, 23 — 4—2(d)(2)(ii) [2003]; and that the appellant therefore had not made out a pnma facie case that would allow a jury to find for the appellant. Finding that the evidence before the circuit court did establish the existence of a material issue of fact with respect to probable cause, we reverse the circuit court’s decision.
I.
“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). “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 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (citations omitted). “The circuit court’s function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial.” Syllabus Point 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). “Summary judgment is appropriate where the record taken as a whole 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 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)
W.Va.Code, 23-4-2(2) [2003] authorizes suits for damages against employers by employees who are injured on the job — -in certain narrow, statutorily-defined circumstances. The statutory circumstance at issue in the instant case requires that the employee, to prevail in such a suit, prove:
(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 the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition;
(C) That the 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 the 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), inclusive, of this paragraph, the employer nevertheless thereafter exposed an employee to the specific unsafe working condition intentionally; and
(E) That the employee exposed suffered serious injury or death as a direct and proximate result of the specific unsafe working condition.
W.Va.Code, 23-4-2(d)(2)(ii) [2003].
The specific unsafe working condition at issue before the circuit court in the instant case was the lack of legally-required training of the appellant on the safe use of a forklift. The evidence showing this lack of training— and that the lack of training qualified as a specific unsafe working condition and met the standards set forth in the statute — was substantial.
For purposes of their motion for summary judgment, the appellees conceded that there was sufficient evidence, taken in the light most favorable to the appellant, to establish the existence of a triable issue of material fact with respect to the first four “elements” of a cause of action under W.Va.Code, 23-4-2(d)(2)(ii) [2003] (“A” through “D” above) — so as to withstand a motion for summary judgment on those elements. It was also conceded by the appellees for purposes of their motion that the appellant had suffered a serious injury.
However, the appellees argued that on the fifth or “proximate cause” element, there was no evidence presented or pointed to by the appellant tending to show that the appellant’s injury was proximately caused by a lack of required safety training., (The fifth element, set out in section (E) above, requires proof that the employee “... suffered serious injury or death as a direct and proximate result of the specific unsafe working condition.”) (emphasis added). The circuit court agreed with the appellees’ argument, and granted summary judgment for the appellees.
II.
It is well established in West Virginia that ordinarily the issue of proximate cause is a jury question to be decided based upon the totality of the evidence: ■
Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them.
Syllabus Point 7, Stewart v. George, 216 W.Va. 288, 607 S.E.2d 394 (2004) (citations omitted).
The appellees argue that the appellant failed to establish a triable issue of material fact on the issue of proximate cause because the appellant did not in his deposition point to any specific fashion in which the required forklift safety training would have tended to avert the accident in question.
In his deposition, the appellant said that he did not personally know what information or other content would have been in the required forklift safety training. The appellant said that he would not speculate on how the training might have averted his injury, other than by possibly maldng him more careful— perhaps so careful that he would have refused to go into the narrow aisle where the accident occurred.
The appellant also stated in his deposition that he had no recollection of ever engaging in or being reprimanded for any improper conduct while driving the forklift, and that he did not know with any certainty how the accident had occurred. He speculated that a piece of cardboard or wood extending from a pallet in the narrow aisle might have stuck into the forklift operator’s “cab” area and caught the appellant’s foot. The appellant denied ever driving his forklift while having his foot outside the confines of the forklift’s cab.
Based on the appellant’s failure to acknowledge any actual or potentially unsafe conduct on his part, and on his inability to point specifically to how the safety training (that he did not receive) might have averted the accident and injury, the appellees argue that no proximately causal connection can be established between the specific unsafe workplace condition of a lack of mandatory forklift safety training and the accident and injury to the appellant. Therefore, argue the appel-lees, summary judgment was appropriate.
However, the appellant’s failure at his deposition to acknowledge or admit to potentially unsafe conduct was not the only evidence on this issue. An accident report on the incident that was prepared by an employee of the appellee Quad/Graphics listed .the cause of the accident as being a violation of a safety rule, and stated that the appellant had his foot outside the cab.
Additionally, the appellees’ designated corporate deposition witness testified that the appellant had been observed driving with his foot outside the cab. Another of the appel- lee’s employees so testified, and there was other evidence suggesting that the appellant had not always operated his forklift with proper caution, attention, care, etc.
The appellant’s uncertain deposition statements about how the accident occurred may diminish his credibility or otherwise impair the force of his case before the finder of fact, but they do not erase or nullify the effect of the evidence from the appellees, nor the fair inferences from all of the circumstances of the accident itself. This evidence permits the conclusion that the accident arose as a result of risks and conduct that the omitted training specifically sought to reduce and avert.
Thus there was evidence before the court that would tend to show that the specific unsafe working condition of a lack of forklift safety training was a proximate cause of the accident in question. The issue of proximate cause was one to be decided by the trier of fact upon all of the evidence and argument presented by both parties.
III.
Nothing in this opinion expands or amplifies the narrow statutory circumstances that permit the bringing of a suit against an employer on a claim that the employer had knowledge of a specific unsafe working condition and did nothing to correct the problem. For purposes of the instant case, that knowledge and inaction was conceded. The narrow issue before this Court is whether a specific unsafe working condition could be fairly determined by a trier of fact as having been a direct and proximate cause of the appellant’s injury. Upon all of the evidence before the court considering the appellees’ motion for summary judgment, it could be so determined. Accordingly, the circuit court’s grant of summary judgment is reversed and this case is remanded for further proceedings consistent with this opinion.
Reversed and Remanded.
Chief Justice ALBRIGHT concurs and reserves the right to file a concurring opinion.
Justice MAYNARD dissents and reserves the right to file a dissenting opinion.
Justice BENJAMIN dissents and reserves the right to file a dissenting opinion.
. We note that the employer's failure in this case to provide statutorily-mandated job-specific safety training was not a mere breach of a general safety statute. Compare Kizer v. Harper, 211 W.Va. 47, 58, 561 S.E.2d 368, 379 (2001) (Davis, J., dissenting).
. Looked at in the light most favorable to the appellant, there was evidence before the circuit court tending to show the following: The appellant had no experience operating a forklift, no prior training in forklift operation, and was not certified as a forklift operator. Appellant was put to work operating a forklift on his first day of work. By permitting the appellant to operate a forklift without completing a specific training program and passing an examination, appellees acted contrary to the requirements of an Occupational Heath and Safety Administration regulation, 29 C.F.R.1910.178(1), which requires forklift operators to successfully complete formal classroom instruction, practical training, and a performance evaluation by an instructor before being allowed to operate a forklift.
The regulation in question required specific training in: (1) operating instructions, warnings, and precautions for the types of truck the operator would be authorized to operate; (2) truck controls and instrumentation: where they are located, what they do, and how they work; (3) steering and maneuvering; (4) visibility (including restrictions due to loading); (5) operating limitations; (6) any other operating instructions, warnings, or precautions listed in the operator’s manual for the types of vehicle that the employee is being trained to operate. The regulation also required appellees to provide specific training on the particular conditions encountered in the workplace, including: (1) surface conditions where the vehicle will be operated; and (2) narrow aisles and other restricted places where the vehicle will be operated. The OSHA-mandated training included an obstacle course of pallets through which appellant should have been required to maneuver a forklift to demonstrate his proficiency. If appellant had knocked any of the pallets over, he would not have passed the course arid would not have been certified until he had demonstrated his ability to successfully complete the obstacle course.
The record contains information on the mandatory forklift safety training sufficient to establish that it is job-specific and designed to avert accidents and injuries of the type experienced by the appellant. The appellant was permitted to work as a forklift operator from his first day of employment until he was injured three weeks later. The appellees were aware at the time appellant was hired that federal law required forklift operators to be properly trained and certified.
Despite this awareness, appellees did not begin training and certifying forklift operators in compliance with federal law until after appellant’s injury. The appellant was seriously injured three weeks after he began operating a forklift. Prior to his injury, several times during each of his shifts, the appellant would knock over pallets while operating his forklift. The appellant’s supervisors observed him operating his forklift in an unsafe manner. Despite knowledge of appellant's lack of mandated safety training and unsafe practices, appellees permitted him to continue operating a forklift until he was injured. On the date of his injury, the appellant's supervisor instructed him to maneuver a forklift down a narrow passageway between two, rows of stacked, loaded pallets. The appellant reported to his supervisor that he was concerned about his ability to safely operate the forklift in the confined space created by the stacked pallets. (There was no evidence that the closeness of stacking was a per se an unsafe work condition.) While proceeding down the passageway, appellant’s left foot became pinned between the forklift and a wall of pallets. He sustained a severe crush injury and multiple fractures of his left foot and internal derangement of his knee, which required surgery.
We recognize that many of these factual contentions based on the appellant's evidence are vigorously disputed by the appellees, and that there is substantial evidence in the record contradicting a number of them. But at the summary judgment stage, the issue is not what the facts are, but whether there are triable issues of material fact that are based upon conflicting evidence or inferences.
. The appellees argue that the appellant cannot point to the evidence and contentions of the appellees and their witnesses to support his argument that a material issue of fact exists with respect to proximate cause. They cite to Prosser v. Ross, 70 F.3d 1005 (8th Cir.1995) and Kiser v. Caudill, 215 W.Va. 403, 599 S.E.2d 826 (2004), which address the issue of a plaintiff "creating an issue" by contradicting the plaintiff's own evidence to show that there is an issue of material fact. Neither of those cases involved a plaintiff pointing to the defendant's evidence to show that such an issue exists. In such an instance, an issue of material fact cannot be said to have been "unilaterally induced” by the plaintiff. Kiser, supra, 215 W.Va. at 411, 599 S.E.2d at 833, quoting Williams v. Precision Coil, 194 W.Va. 52, 60 n. 12, 459 S.E.2d 329, 337 n. 12 (1995).
. The circuit court stated in its order that
Even if it is assumed that [the appellee] ... should have provided its employees with the mandatory OSHA forklift training because it knew that such lack of training would cause more accidents, there is still no guarantee that the OSHA training would have provided the employees, including the Plaintiff [appellant], with information that would enable them to avoid a workplace injuiy such as the Plaintiff's.
(Emphasis added.)
This reasoning misapprehends the nature and purpose of safety training. No safety training can guarantee the absence of injury. That fact does not make such training any less valuable, nor make its omission any less relevant to issues of causation. •
.At oral argument, the appellees suggested that the appellant was at the least required to have an expert give an opinion that the lack of required forklift safety training was a proximate cause of the accident. The appellees do not provide any authority for this proposition. We are not inclined to adopt a rule that expert testimony is necessary as a matter of law in all cases to prove that a lack of required safety training proximately caused or contributed to an accident or injury. In such cases, the finder of fact must look at the nature of the training and the accident or injury and determine if there is a proximately causal connection. Cf. Lewis v. State, 73 S.W.3d 88, 93 (Tenn.App.2001) (inadequate training was a proximate cause of workplace injury); cf. also Wald-Tinkle v. Pinok, — S.W.3d-(Tex.App.2004), No. 01-02-01100-CV, Dec. 23, 2004, Slip Op. at 7, 2004 WL 2966293. An expert could certainly assist the finder of fact in this determination. Industrial safety training is an advanced discipline, and experts can show how accidents are reduced and averted by formal, mandatory training programs. Likewise, experts might explain how a safety training program would not have made any difference in a given case. But in the instant case, neither the appellant nor the appellees proffered such an expert; nor were they required to do so. | [
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ALBRIGHT, Chief Justice:
Appellant REM Community Options, Inc. (“Options”) appeals from the August 24, 2004, order of the Circuit Court of Kanawha County, which reversed a decision by the West Virginia Office of Tax Appeals that had significantly reduced the amount of privilege taxes owed by Options and reinstated the full tax assessment. In challenging the decision reached by the circuit court, Options argues that statutory amendments pertaining to the subject privilege taxes were wrongly applied in a retroactive fashion. Upon our full and-careful review of this matter, we find no eiTor and, accordingly, affirm the decision of the lower court.
I. Factual and Procedural Background
On May 1, 2002, Appellee State Tax Commissioner (“Commissioner”) issued an assessment of $2,000,616 against Options for unpaid privilege taxes in connection with its operation of a licensed behavioral health services center. The assessment covered the period of January 1, 1998, through December 31, 2001. As the result of an audit, it was determined that Options had not been paying a privilege tax pursuant to West Virginia Code § 11-13A-3 (1997) (Repl.Vol.2003) on various services that it provided to mentally retarded individuals living in regular community settings. Options takes the position that the services at issue in the assessment were not subject to the privilege tax based on statutory language requiring that behavioral health services be “health care related.” See W.Va.Code § 11-13A-2(d) (1995) (Repl.Vol. 2003).
Options filed a timely petition for reassessment on June 27, 2002, and following a hearing on the matter, the Office of Tax Appeals issued its decision on November 3, 2003. Based on a determination by the Office of Tax Appeals that only the provision of nursing services, physical examinations, and psychological examinations by Options were subject to the provider tax, the amount of the assessment was substantially reduced to $134,816.27. The Tax Commissioner appealed this ruling to the circuit court and, by decision dated August 24, 2004, the circuit court reversed the Office of Tax Appeals and reinstated the original tax assessment. Through this appeal, Options seeks a reversal of the circuit court’s decision.
II. Standard of Review
Our reviewing standard for administrative decisions such as the one before us was set forth in syllabus point two of Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996), in which we explained: “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." Because this appeal presents issues involving statutory construction, our reviéw is plenary. See Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t, 195 W.Va. 573, 466 S.E.2d 424 (1995) (holding that “[i]nterpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review”). With these principles in mind, we proceed to determine whether the lower court committed error by reinstating the entirety of the Tax Commissioner’s privilege tax assessment in connection with the various services Options provides.
III. Discussion
Necessary to our review of this matter is an examination of the subject services at issue with respect to the privilege tax assessment, as well as careful scrutiny of the applicable statutory and regulatory language governing the issue of this tax. We begin with the statute that authorizes the collection of a privilege tax. Under West Virginia Code § 11-13A-3, “an annual privilege tax” is imposed upon various persons or entities, including those engaged “in the business of furnishing certain health care services.” Id. During the period relevant to the assessment, the definition provided for “persons providing health care items or services” was as follows:
(1) “Behavioral health services” means health care related services provided by a behavioral health center as defined in section one [§ 27-2A-1], article two-a, chapter twenty-seven of this code or section one [§ 27-9-1], article nine of said chapter. (2) “Community care services” means home and community care services furnished by a provider pursuant to an individual plan of care, which also includes senior citizens groups that provide such services, but does not include services of home health agencies.
W.Va.Code § 11-13A-2(d) (1995) (emphasis supplied).
At the core of its challenge to the tax assessment at issue is the argument that the bulk of the taxed services Options provides are not “health care related,” as required by the definition of “behavioral health services” that was in effect during the period covering the assessment at issue. See W.Va.Code § 11-13A-2(d)(l) (1995). Other than the medical and psychological seivices that it periodically provides, Options maintains that the other services it provides cannot come within the definition of “behavioral health services.” Id. Options contends that the remainder of its services — those that are not provided by licensed medical providers — are outside the realm of traditional health care services. Likening the bulk of its services to “babysitting” in nature, Options argues that such seivices, while necessary to enable its clients to live outside an institutional setting, are not within the reach of the privilege tax at issue.
While this case was on appeal to the circuit court, the Legislature amended the definition of “behavioral health seivices” to mean:
services provided for the care and treatment of persons with mental illness, mental retardation, developmental disabilities or alcohol or drug abuse problems in an inpatient, residential or outpatient setting, including, but not limited to, habilitative or rehabilitative interventions or services and cooking, cleaning, laundry and personal hygiene services provided jfor such care: Provided, That gross receipts derived from providing behavioral health services that are included in the provider’s measure of tax under article twenty-seven [§§ 11-27-1 et seq.] of this chapter shall not be include[d] in that provider’s measure of tax under this article. The amendment to this definition in the year two thousand four is intended to clarify the intent of the Legislature as to the activities that qualify as behavioral health services, and this clarification shall be applied retrospectively to the effective date of the amendment to this section in which the definition of “behavioral health services” was originally provided as enacted during the first extraordinary session of the Legislature in the year one thousand nine hundred ninety-three.
W.Va.Code § 11-13A-2(d) (2004) (emphasis supplied).
Based on the express retroactive reach of the amended statutory definition of “behavioral services” back to the enactment of the privilege tax in 1993, the circuit court determined that “not only do REM’s [Option’s] nursing services and physical and psychological examinations fall within behavioral health services, but by definition and current clarification REM’s ‘at issue services’ fall within behavioral health services.” In the circuit court’s opinion, the 2004 amendment resolved any lingering issue as to whether those services that Options provides that are not traditional health care services fall within the ambit of the behavioral services intended to be taxed by the Legislature.
Options argues strenuously against relying on a retroactive application of the 2004 amendment for resolving the issue of whether the privilege tax can be assessed against the non-traditional health care services it provided during the assessed tax period. Options maintains that by making the statutory amendment effective as of when the statute was first enacted in 1993, the Legislature has clearly exceeded what is deemed acceptable in terms of retroactive application. Rather than being asked to sanction an eleven-year clarification by the Legislature, we note initially that the retroactive reach at issue is only six years. Due to the statute of limitation that governs tax matters, the effective reach of the statutory amendment in the case sub judice is 1998 — the first year of the assessment at issue.
In considering the issue of retroactivity, we must acknowledge the impact that this Court’s decision in Coordinating Council for Independent Living v. Palmer, 209 W.Va. 274, 546 S.E.2d 454 (2001), had on the statutory amendment at issue. In Coordinating Council, we were asked to determine whether homemaker or case management services were included within the definition provided for “community care services” with regard to imposing the privilege tax on “certain health care services.” W.Va.Code §§ 11-13A-2(d); -13A-3. Finding a noticeable “lack of clarity as to the precise nature of ‘community care services’ ” and applying the principle of statutory construction which recognizes that the inclusion of one is the exclusion of the others, we held that the privilege tax levied upon “certain health care services” did not apply to homemaker or case management services. 209 W.Va. at 282-83, 546 S.E.2d at 462-63. Given this ruling, we expressly prohibited further taxation of such services until “further clarification by the Legislature.” Id. at 283, 546 S.E.2d at 463. Following our holding in Coordinating Council, the Legislature removed the term “community care services” from those “health care services” subject to the privilege tax at issue. See W.Va.Code § 11-13A-3 (2002). Importantly, the services at issue provided by Options were taxed based on their inclusion within the definitional ambit of “behavioral health services,” rather than “community care services.”
Before discussing the issue of retroactivity, however, we wish to examine whether the privilege tax, as the Tax Commissioner asserts, was properly assessed pri- or to the statutory amendment in 2004. As with all matters of statutory construction, our objective is to “afford the statute a construction that is consistent with the Legislature’s intent.” Coordinating Council, 209 W.Va. at 281, 546 S.E.2d at 461. As we recognized in syllabus point one of Smith v. State Workmen’s Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975): “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Consequently, our analysis of the legislative intent underlying the privilege tax at issue requires a careful examination of the statutory language authorizing the imposition of the tax, as well as the basis for the enactment under consideration.
As previously set forth, the authorizing statute provides for the imposition of the privilege tax on businesses “furnishing certain health care services.” W.Va.Code § 11-13A-3(a). During the period pertinent to the assessment, the authorizing statute in effect defined “certain health care services” to mean “behavioral health services and community care services.” W.Va.Code § 11-13A-3(c) (1997). In authorizing this privilege tax, the Legislature was clear that only those “health care services” that fell within the fields of “behavioral health” and “community care” were subject to this tax. As specified above, the Legislature further defined “persons providing health care items or services” in West Virginia Code § 11-13A-2(d) (1995) to include “behavioral health services.” The pertinent definition of “behavioral health services” is “health care related services provided by a behavioral health center as defined in section one [§ 27-2A-1], article two-a, chapter twenty-seven of this code or section one [§ 27-9-1], article nine of said chapter.” W.Va.Code § 11-13A-2(d) (1995).
Under the original legislative enactment, the Legislature only defined “behavioral health services” in terms of the entities providing qualifying mental health services. The Legislature expressly tied the statutory definition of “behavioral health services” to those centers that are licensed by the state to provide services to the mentally retarded under either West Virginia Code §§ 27-2A-1 (1977) (Repl.Vol.2004) or 27-9-1 (1977) (Repl. Vol.2004). West Virginia Code § 27-2A-lad-dresses the operation of comprehensive community mental health-mental retardation centers and West Virginia Code § 27-9-1 requires that a license be obtained by any “hospital, center or institution ... to provide inpatient, outpatient or other service designed to contribute to the care and treatment of the mentally ill or mentally retard-ed_” The parties do not dispute that Options operates as a behavioral health center pursuant to licensure under authority of West Virginia Code § 27-9-1.
Notwithstanding its status as a behavioral health center, Options suggests that because the Legislature failed to define the term “health care related services” in defining the “behavioral health services” subject to the privilege tax, the statute is too ambiguous to be applied. Conversely, the Tax Commissioner adopts the same approach this Court took when faced with an undefined statutory term in Coordinating Council. See 209 W.Va. at 281-82, 546 S.E.2d at 461-62. Rather than denying any meaning to the enactment at issue, rules of statutory construction require that undefined terms be construed based on the commonly accepted usage of such terms. See Syl. Pt. 1, Miners in General Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941) (holding that “[i]n the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used”) (overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W.Va. 162, 291 S.E.2d 477 (1982)).
Before reaching its decision below, the administrative law judge opined that “[tjhere is nothing in the statute to indicate that the health care related services are intended to be limited to benefitting the physical health of the clients.” Following this observation, the administrative law judge proceeded to conclude that the statutory terms “health care related” connoted only the provision of medical services by licensed medical personnel. This conclusion, however, is not supported by the ordinary and accepted meaning of the terminology at issue. The phrase “health care” is defined as “1. the field concerned with the maintenance or restoration of the health of the body or mind; 2. any of the procedures or methods employed in this field.” Random House Webster’s Unabridged Dictionary 882 (2nd ed., 1998). In turn, the term “health” is defined as “the general condition of the body or mind with reference to soundness and vigor.” Id.
A narrow interpretation of “health care” that limits the meaning of this statutory term to only traditional medical services supplied by licensed medical personnel does not withstand scrutiny. By definition, the concept of “health care” expansively encompasses both physical and mental health, as well as the various procedures or methods employed for the purpose of restoring or maintaining both physical and mental health. See id. To conclude, as the administrative law judge did, that only traditional medical services provided by licensed medical personnel were subject to the privilege tax at issue belies both the nature of behavioral health and the basis for the enactment of the privilege tax on such services.
By regulations adopted pursuant to the act which addresses mental illness, West Virginia Code §§ 27-1-1 to 27-17-4, and the licensing statute pertaining to mental health treatment centers, West Virginia Code § 27-9-1, the term “behavioral health services” was initially defined during the period of time relevant to this matter as:
Those services intended to help individuals gain or retain the capacity to function adaptively in their environment, to care for themselves and their families, and to be accepted by society. This includes individuals with emotional or mental disorders, alcohol or drug abuse problems, and mental retardation or other developmental disabilities.
W.Va. R. Division of Health 64 § 11-4.4 (1990). We fully recognize that rather than being adopted pursuant to the specific enforcement powers of the Tax Department, this regulation was promulgated pursuant to the Department of Health’s authority to govern the licensure and operation of centers providing mental health services. Consequently, we look to this regulatory definition solely for purposes of gaining an understanding of the nature of the services that Options is licensed to provide.
When the term “health care related” is properly viewed in its accepted usage as encompassing both physical and mental health, then the various services that Options provides that enable the recipients of those services to maintain a level of mental health which permits them to reside within the community rather than in an institutional setting are clearly “health care related” services. To conclude otherwise is to deny the necessity and significance of the behavioral health services provided by centers such as Options to the continued viability of non-institutionalized residential life for the recipients of such services. While many of the services that Options provides may initially seem unrelated to the health and well-being of its recipients, there is little question that without these vital services, the affected individuals could not continue to maintain the level of mental health that permits them to reside outside an institutional setting.
An examination of the basis for the privilege tax being imposed on behavioral health centers supports the position that the broad range of services provided by such centers were intended to be subject to the tax, rather than the limited scope of only those services provided by licensed medical personnel as maintained by Options. The Legislature expressly dedicated the funds collected from the imposition of the privilege tax on health care items or services to “the special revenue fund created in the state treasurer’s office and known as the medicaid state share fund.” W.Va.Code § 11-13A-20a(a) (1994) (Repl.Vol.2003). These funds, like those collected pursuant to the health care provider taxes enacted during the same extraordinary legislative session in 2004, are generated for the distinct purpose of generating federal matching funds to draw down Medicaid funds. See W.Va.Code §§ 11-27-1 to -37 (1993) (Repl.Vol.2005) (West Virginia Health Care Provider Tax Act of 1993).
The services at issue that Options provides are pursuant to Title XIX of the Social Security Act, also known as the Mental Retardation Developmental Disability Waiver Program. See 42 U.S.C. § 1396 (2000). As the Legislature has recognized:
“While participation by a state in the medicaid program created by Title XIX of the Social Security Act is voluntary, the reality is that states, and particularly this state, have no choice but to participate. The alternative is to deprive indigent citizens and particularly the children of indigent families of basic medical services.”
W.Va.Code § 11-27-l(d). Once a state decides to participate in the medicaid program, it is required to comply with the full panoply of federal requirements set forth in Title XIX. An individual’s eligibility for the services provided by Options under Title XIX is determined based upon whether that person is eligible to be institutionalized in an intermediate care facility for the mentally retarded.
Under federal law, individuals who are eligible for the Mental Retardation Developmental Disability Waiver Program must receive active treatment. Active treatment is defined as:
(a) Standard: Active Treatment. (1) Each client must receive a continuous active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services described in this subpart, that is directed toward -
(i) The acquisition of behaviors necessary for the client to function with as much self determination and independence as possible; and
(ii) The prevention or deceleration of regression or loss of current optimal functional status.
42 C.F.R. § 483.440 (2004). In its amicus brief, the DHHR argues that absent this active treatment component attached to the federal monies, “individuals would regress and lose any abilities they have to function in an independent manner.”
While Options argues against looking to federal law for guidance in determining the meaning of the statutory language at issue, federal law is instructive on two levels. First, it provides an explanation for the origin of the tax at issue. Second, it proves useful in understanding that the variety of services that are offered by Options pursuant to the requirements of Title XIX have as their object the acquisition and maintenance of “behaviors necessary for the client to function with as much ... independence as possible.” 42 C.F.R. § 483.440. It stands to reason that the multiplicity of services provided by Options in its capacity as a behavioral health center are aimed at maintaining the mental health of the recipients of such services for the purpose of allowing such individuals to live outside the restricting confines of an institutional setting.
After careful examination of both the statutory language and the legislative purpose underlying its enactment, we are compelled to conclude that the term “health care related,” as it pertains to the provision of behavioral health services within the meaning of West Virginia Code § 11-13A-2(d) (1995) for purposes of levying the privilege tax upon certain health care providers, broadly encompasses both physical and mental health and all the various services related to maintaining or restoring an individual’s physical and/or mental health. Moreover, our review of the legislation at issue further requires the conclusion that the privilege tax imposed under West Virginia Code § 11-13A-3 (1997) upon certain health care providers is not limited in application to behavioral health care services that are provided by licensed medical providers. Accordingly, we conclude that because “health care related” encompasses mental as well as physical health, the broad range of services that are required pursuant to Title XIX by a behavioral health center, such as Options, are properly within the category of services intended to be taxed by the Legislature for the express purpose of generating funding for draw-down purposes of medicaid funding.
Based on our determination that the statutory provision under consideration, as originally enacted in 1993, permitted the assessment of the privilege tax on the services provided by Options, we find it unnecessary to further address whether principles governing retroactive statutory application prevent application of the clarifying language included in the 2004 amendment to West Virginia Code § 11-13A-2(d). Our decision in this case is reached entirely without reference to the 2004 amendment to West Virginia Code § 11-13A-2(d).
Having determined, for reasons differing from the circuit court, that the privilege tax assessment at issue was sustainable, the decision of the Circuit Court of Kanawha County is hereby affirmed.
Affirmed.
Chief Justice ALBRIGHT delivered the Opinion of the Court.
. Options trains, supports, and supervises staff who provide support services to mentally retarded individuals who live in regular community settings, but require a certain level of assistance to reside in a non-institutional environment.
. The services at issue that Options provides are governed by Title XIX of the Social Security Act, known as the Mental Retardation Developmental Disability Waiver Program. See 42 U.S.C. § 1396 (2000). A state wishing to participate in the Medicaid program is required to comply with Title XIX. Pursuant to the cooperative federal-state program known as Medicaid, funding for such services is obtained based on a formula that authorizes a draw from federal funds, as needed, to pay for the federal share of such services. See infra note 11.
. The types of services administered by Options include transportation; adult companion services; pre-authorized nursing services; day ha-bilitation; community residential habilitation; qualified mental retardation professional services; annual medical exams; comprehensive psychological evaluations; pre-vocational training; in-home oversight, supervision, and monitoring; non-healthcare special projects; service coordination; case management; non-healthcare respite services; and pass-through billing for independent contractors providing non-healthcare respite services.
." 'Behavioral health services' means health care related services provided by a behavioral health center as defined in section one [§ 27-2A-1], article two-a, chapter twenty-seven of this code or section one [§ 27-9-1], article nine of said chapter.” W.Va.Codei 1X — 13A—2(d)(l).
. The inclusion of the "certain health care services" portion of the Severance and Privilege Tax Act, enacted in 1993, was expressly dedicated to fund the Medicaid State Share Fund. W.Va.Code § 11-13A-3; see W.Va.Code § 11-13A-20a(a) (1994) (Repl.Vol.2003) (stating that "[t]he amount of taxes collected under this article from providers of health care items or services ... shall be deposited into the special revenue fund created in the state treasurer’s office and known as the medicaid state share fund”).
. Although Options argues that the services at issue are not "health care related,” Options acknowledged during oral argument of this case that they bill Medicaid and receive Medicaid reimbursement for the provision of these services.
.Note, however, that this definition was substantially amended by the Legislature in 2004. The amendment, which took effect on March 13, 2004, expressly made the statutory revision retroactive to 1993 when the definition of "behavioral health services” was first set forth in this section. See W.Va.Code § 11-13A-2(d)(2004).
. When the Legislature amended West Virginia Code § 11-13A-2(d) in 2004 and clarified the definition of "behavioral health services,” the definition for "community care services” was deleted.
. Effective June 5, 2002, the Legislature amended the statute to remove "and community care services” from the definitional language of West Virginia Code § 11 — 13A—3(c), presumably in response to this Court’s decision in Coordinating Council. See 209 W.Va. at 282-83, 546 S.E.2d at 462-63 (finding statutory term "community care services” to be vague and undefined).
. This definition was revised in 2000 and currently defines "behavioral health services” as "an inpatient, residential or outpatient service for the care and treatment of persons with mental illness, developmental disabilities or substance abuse.” W.Va. R. Division of Health 64 § 11-3.5 (2000).
. See supra note 3.
. For a state to draw down federal dollars under the Medicaid program, a state must have its own share of funds which is determined based on a comparison of a state's per capita income to the national average per capita income. Currently, the state’s share in connection with operating our state medicaid program is 27.1%.
. One of the sixteen specified health care provider taxes is imposed on intermediate care facilities for the mentally retarded. See W.Va.Code § 11-27-11.
. Those licensed medical providers are taxed pursuant to express provider taxes set forth in West Virginia Code §§ 11-27-1 to -37 (1993) (Repl.Vol.2005).
. Having resolved this matter without relying on the 2004 statutory amendments, we do not address the constitutional arguments raised by Options in connection with the retroactive application of the amended statutory language.
.See Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965) (recognizing that lower court’s judgment may be affirmed “when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment”). | [
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The Opinion of the Court was delivered PER CURIAM.
PER CURIAM:
This is an appeal by Michelle L. McCracken (hereinafter “Appellant”) from her conviction in the Circuit Court of Marshall County of three counts of first degree murder with the recommendation of mercy. The Appellant contends that the lower court erred in permitting a demonstration of the combustibility of gasoline by the State’s expert; in admitting the Appellant’s pre-trial statements made to police officers; in allowing the State to recite a child’s prayer in closing argument; and in denying the Appellant’s motions for judgment of acquittal at the close of the State’s case, the close of all evidence, and post-trial. Upon thorough review of the record, arguments, and applicable precedent, this Court affirms the Appellant’s conviction.
I. Factual and Procedural History
During the early morning hours of January 15, 2003, the home of Eugene and Ruth Evans was destroyed by fire. Mr. and Mrs. Evans, as well as their seven-year-old granddaughter, Breanna Evans, were killed in that fire. Greg Evans, the son of Mr. and Mrs. Evans and the father of Breanna, was dating the Appellant at the time of the fire. On February 25, 2003, police interviewed the Appellant when she voluntarily went to the police station. She originally explained that she had learned of the fire on a scanner at the home of a friend. She later admitted that the friend did not own a scanner and that she was present at the Evans residence during the fire. She explained that she had visited the home prior to the time of the fire; had tripped over something on the porch, possibly a gasoline can; had thrown her cigarette on the porch; and had heard a whooshing sound. She thereafter left the Evans home and retened later to find it in flames. Upon her return, she heard Ruth Evans scream. Because she did not want her boyfriend, Greg Evans, to know that she had been at the Evans home at the time of the fire, she fabricated the story about learning of the fire through a friend’s scanner.
The Appellant was indicted for one count of arson and three counts of murder. At trial, testimony was introduced indicating that although the rear porch of the home was excavated, the presence of an accelerant was never conclusively determined. Fire expert David Campbell explained that the ghosting patterns and run-down patterns found on the rear porch of the Evans home could be signs of the use of an accelerant. He also presented the jury with a demonstration in which Mr. Campbell attempted to prove that the Appellant’s cigarette was not likely to have ignited any gasoline present on the porch. In this demonstration, Mr. Campbell explained that a temperature of 880 degrees Fahrenheit is required to ignite gasoline and that a cigarette bums at no more than 350 degrees. He then poured gasoline into a container partially filled with water and dropped a lighted cigarette into it. The gasoline did not ignite. The defense objected to the demonstration because the courtroom conditions did not replicate the conditions of the actual event. The court instructed the jury that the demonstration was not intended to precisely repeat the conditions in existence at the time of the fire.
During the trial testimony of Greg Evans, the prosecutor asked whether he had taught his daughter, Breanna, any bedtime prayers. Mr. Evans said that he had, but further questioning on the matter of prayer was halted by a defense objection sustained by the court. However, during closing argument, the prosecutor readdressed the prayer issue by arguing that it was time for the jurors to “do your job” and to “think about this: Now I lay me down to sleep. I pray the Lord.... ” Defense counsel objected, but the lower court overruled the objection. The prosecutor resumed: “Now I lay me down to sleep. I pray the Lord my soul to keep. If I die before I wake, pray the Lord my soul to take. She never woke up. They never woke up. Hopefully, they’re in God’s hands. They are. Justice is in yours.”
The jury convicted the Appellant on three counts of murder and one count of first degree arson. The jury also recommended mercy. The lower court sentenced the Appellant to three life sentences for murder and two to twenty years for arson, to run consecutively. Two days later, the court found that the arson sentence had been improperly imposed because arson was a lesser included offense and would violate double jeopardy. The court therefore resentenced the Appellant to three consecutive life sentences with mercy on the murder counts.
II. Standard of Review
Based upon the existence of express standards of review applicable to each of the issues raised by the Appellant, those standards of review will be discussed as each assignment of error is analyzed.
III. Discussion
A. Demonstration By State’s Witness
The Appellant contends that the demonstration of the combustible qualities of gasoline should have been excluded under Rule 702 of the West Virginia Rules of Evidence as not helpful and prejudicial. Rule 702 provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”
In Short v. Appalachian OH-9, Inc., 203 W.Va. 246, 507 S.E.2d 124 (1998), this Court explained that “the essence of Rule 702 is that of assisting the fact finder’s comprehension through expert testimony.” 203 W.Va. at 253, 507 S.E.2d at 131; see also Tanner v. Rite Aid of West Virginia, Inc., 194 W.Va. 643, 654 n. 17, 461 S.E.2d 149, 160 n. 17 (1995) (“Helpfulness to the jury ... is the touchstone of Rule 702.”). Moreover, in Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995), this Court recognized that the Rules of Evidence are liberal and that a trial court should “err on the side of admissibility.” 195 W.Va. at 525, 466 S.E.2d at 184.
In addressing the admissibility of expert testimony under Rule 702, the following explanation was provided in syllabus point two of Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994):
In analyzing the admissibility of expert testimony under Rule 702 of the West Virginia Rules' of Evidence, the trial court’s initial inquiry must consider whether the testimony is based on an assertion or inference derived from the scientific methodology. Moreover, the testimony must be relevant to a fact at issue. Further assessment should then be made in regard to the expert testimony’s reliability by considering its underlying scientific methodology and reasoning. This includes an assessment of (a) whether the scientific theory and its conclusion can be and have been tested; (b) whether the scientific theory has been subjected to peer review and publication; (c) whether the scientific theory’s actual or potential rate of error is known; and (d) whether the scientific theory is generally accepted within the scientific community.
See also Syl. Pt. 3, Mayhorn v. Logan Med. Found., 193 W.Va. 42, 454 S.E.2d 87 (1994). The discretion of the lower court was recognized in syllabus point six of Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991), cert. denied, 502 U.S. 908, 112 S.Ct. 301, 116 L.Ed.2d 244 (1991), as follows: “The admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court’s decision will not be reversed unless it is clearly wrong.”
With regard to the demonstration of the combustibility of gasoline by Mr. Campbell in the present case, application of the standards of review applicable to this issue leads this Court to conclude that the discretion of the trial court was exercised reasonably and that court’s decision was not cleai'ly wrong. The record reveals that Mr. Campbell has been a firefighter for over forty years and is a retired lead fire investigator from the North Carolina State Bureau of Investigation. He also serves as a consultant in fire and arson investigations'. His testimony and concomitant demonstration were of assistance to the jury in determining whether the Appellant’s representations concerning the origins of the fire were truthful. Further, the lower court provided a limiting instruction in which the jury was informed that the demonstration was intended to show the combustible qualities of gasoline rather than to reconstruct the conditions present on the date of the fire. The defense was provided with ample opportunity to cross-examine the witness regarding any issues raised. We therefore conclude that the lower court did not abuse its discretion in admitting the expert testimony and demonstration conducted by Mr. Campbell.
B. Appellant’s Statements to Police
The Appellant contends that the lower court erred in admitting statements the Appellant made to the police because she was not given her Miranda warnings until approximately five hours after providing a written statement. With regard to the Appellant’s assertion that the lower court erred in admitting evidence, this Court stated as follows in syllabus point ten of State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994): “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.” See also Syl. Pt. 4, Riggle v. Allied Chem. Corp., 180 W.Va. 561, 378 S.E.2d 282 (1989).
This Court’s review of the record reveals that the Appellant was not in custody or under arrest when she arrived at the police station at 9:30 or 9:45 a.m. on February 25, 2003. She was free to leave. She provided her written statement to the police at approximately 11:30 a.m. and was given her Miranda rights at 4:23 p.m. In State v. Potter, 197 W.Va. 734, 478 S.E.2d 742 (1996), this Court examined the responsibilities regarding the provision of Miranda warnings and explained that “Miranda rights must be given and honored ‘only where there has been such a restriction on a person’s freedom as to render him “in custody.” ’ ” 197 W.Va. at 744, 478 S.E.2d at 752 (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)).
Whether the individual was “in custody” is determined by an objective test and asking whether, viewing the totality of the circumstances, a reasonable person in that individual’s position would have considered his freedom of action restricted to the degree associated with a formal arrest. 197 W.Va. at 744, 478 S.E.2d at 752; see also Thompson v. Keohane, 516 U.S. 99, 113-14 n. 13, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995); State v. Honaker, 193 W.Va. 51, 60-61, 454 S.E.2d 96, 105-06 (1994) (utilizing “objective circumstances” test to determine whether the defendant was in custody). In State v. Bradshaw, 193 W.Va. 519, 457 S.E.2d 456 (1995), this Court explained' that “[t]he ‘inherent compulsion’ that is brought about by the combination of custody and interrogation is crucial for the attachment of Miranda rights.” 193 W.Va. at 530, 457 S.E.2d at 467 (citation omitted).
Analyzing the record in this case, we conclude that the lower court correctly found that the Appellant’s statement was voluntary. We find that no reasonable person in the Appellant’s position at the time of interviewing by the police would have considered his or her freedom to have been curtailed. The Appellant was told that she was free to leave at any time because she was not under arrest. She visited the police station voluntarily. We find that the Appellant’s statement was properly admitted as a voluntary statement.
C. Closing Argument Recitation of Prayer-
The Appellant contends that the lower court erred in permitting the State to twice recite the “Now I lay me down to sleep” prayer in closing argument. The Appellant also emphasizes that the prosecutor told the jury that the Appellant was “guilty as charged” during the recitation of evidence against the Appellant. In response, the State contends that the prosecutor was not stating a personal opinion, but rather was making reference to the substantial evidence pointing to the Appellant as the perpetrator. The State further maintains that prosecutorial statements, even if in error, will not be sufficient to reverse a conviction unless they clearly prejudice the accused or result in manifest injustice.
In syllabus point six of State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995) this Court explained the factors used in analyzing an allegedly improper prosecutorial remark, as follows:
Four factors are taken into account in determining whether improper prosecuto-rial comment is so damaging as to require reversal: (1) the degree to which the prosecutor’s remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters.
Syllabus point five of Sugg elucidated that not every improper prosecutorial statement will result in the reversal of a defendant’s conviction: “A judgment of conviction will not be set aside because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.” In State v. Graham, 208 W.Va. 463, 541 S.E.2d 341 (2000), this Court also addressed the principles utilized in evaluating prosecutorial comments and stated as follows:
In reviewing allegedly improper comments made by a prosecutor during closing argument, we are mindful that “[cjounsel necessarily have great latitude in the argument of a case,” State v. Clifford, 58 W.Va. 681, 687, 52 S.E. 864, 866 (1906) (citation omitted), and that “[u]ndue restriction should not be placed on a prosecuting attorney in his argument to the jury.” State v. Davis, 139 W.Va. 645, 653, 81 S.E.2d 95, 101 (1954), overruled, in part, on other grounds, State v. Bragg, 140 W.Va. 585, 87 S.E.2d 689 (1955). Accordingly, “[t]he discretion of the trial court in ruling on the propriety of argument by counsel before the jury will not be interfered with by the appellate court, unless it appears that the rights of the complaining party have been prejudiced, or that manifest injustice resulted therefrom.” Syllabus Point 3, State v. Boggs, 103 W.Va. 641, 138 S.E. 321 (1927).
208 W.Va. at 468, 541 S.E.2d at 346.
In the present case, the prosecutor’s recitation of the “Now I Lay Me Down To Sleep” prayer was improper and was not based upon properly introduced evidence. The prosecutor was inappropriately appealing to the sympathy and emotions of the jury and referencing a prayer which had already resulted in a defense counsel objection and the court’s sustaining of that objection.
However, as the State correctly identifies, not all improper prosecutorial statements will lead to reversal of a defendant’s conviction. This Court concludes that within the particular circumstances of the present case, no clear prejudice or manifest injustice resulted from the prosecutor’s remarks. An examination of the factors identified in Sugg reveals that the conviction in the case should not be reversed. The remarks were of limited duration and were somewhat isolated within the context of the prosecutor’s attempt to summarize the evidence against the Appellant. Most importantly, syllabus point five of Sugg, quoted above, instructs that remarks “which do not clearly prejudice the accused or result in manifest injustice” will not trigger reversal of a conviction. 193 W.Va. at 393, 456 S.E.2d at 474. Examining all evidence presented in this case, we find no manifest injustice or clear prejudice. While the prosecutor’s statements regarding the child’s prayer were improper, they do not justify a reversal of the Appellant’s conviction in these circumstances.
D. Sufficiency of the Evidence
Finally, the Appellant contends that the lower court erred in denying her motions for judgment of acquittal. The Appellant maintains that the State did not present enough evidence to justify the conviction. With regard to the standard of review of challenges to the sufficiency of evidence to uphold a conviction, we summarized as follows in syllabus point three of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995):
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 evi dence, 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. To the extent that our prior cases are inconsistent, they are expressly overruled.”
The State presented extensive evidence against the accused in this case. The Appellant’s vehicle was observed by three different witnesses at the fire scene. She attempted to fabricate an alibi by asserting that she had learned of the fire on a scanner. Testimony was also introduced regarding the Appellant’s jealousy of her boyfriend’s family members, her lack of emotion after the deaths of these family members, and her threats against Breanna’s mother to the effect that she would beat her up if she did not have Breanna cremated. In addition, the State emphasized the lack of credibility in the Appellant’s statement that she tripped over what might have been a gasoline can, flicked her lighted cigarette onto the porch, and left the residence. Viewing that evidence in a light most favorable to the prosecution and crediting all inferences and credibility assessments the jury might have made in favor of the prosecution, as required by Guthrie, we find that the evidence was sufficient to support the jury’s verdict of guilty.
IV. Conclusion
Based upon the foregoing analysis, this Court finds that the Appellant’s conviction and lower court’s findings should be affirmed. We find no abuse of discretion or clear error in any of the lower court’s findings.
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PER CURIAM:
This case is before the Court upon the appeal of the appellant, David M. Reed. On March 11, 2003, the appellant was convicted by a jury in the Circuit Court of Cabell County of third offense domestic battery and thereafter received an enhanced sentence pursuant to the habitual criminal statute. The appellant argues that the circuit court erred in denying his motion for bifurcation to contest the validity of his prior convictions in accordance with State v. McCraine, 214 W.Va. 188, 588 S.E.2d 177 (2003), an opinion released by this Court shortly after the appellant’s trial. By order dated April 23, 2003, the appellant was sentenced to two-to-five years in the State penitentiary. Based upon the parties’ briefs and arguments in this proceeding, as well as the relevant statutory and case law, we are of the opinion that the circuit court did not commit reversible error and accordingly, affirm the decision below.
I.
FACTS
On January 9, 2003, a Cabell County Grand Jury returned a six-count indictment against the appellant for three counts of third offense domestic battery in violation of West Virginia Code § 61 — 2—28(d), and three counts of second offense violation of a domestic violence protective order in violation of West Virginia Code § 48-27-903(b). The appellant made a motion to sever the counts against him and the circuit court granted the motion. The appellant also moved to bifurcate the trial with regal'd to his two previous domestic battery convictions which occurred in 1996 and 1999 involving his wife. The State argued that the appellant had the burden to show he was not the person involved in the prior convictions and if he could not do so he had to stipulate to those convictions. The circuit court then denied the appellant’s motion to bifurcate and the appellant stipulated to the two prior convictions. The appellant did not object to the circuit court’s denial of bifurcation nor did he request a hearing to present evidence on the issue.
On March 13, 2003, the jury found the appellant guilty of the third offense domestic battery charges. On April 17, 2003, the State filed a recidivist information alleging that the appellant had previously been convicted of a felony. After the appellant admitted being the same person named in the recidivist information, the circuit court found him guilty under the recidivist statute. The circuit court then sentenced the appellant to two-to-five years imprisonment. This appeal followed.
II.
STANDARD OF REVIEW
In Syllabus Point 1 of State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999), we held, ‘“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.’ Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).” We have further indicated that a circuit court’s final order and ultimate disposition are reviewed under the abuse of discretion standard. State ex rel. Heckler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997).
III.
DISCUSSION
The appellant maintains that following this Court’s decision in State v. McCraine, 214 W.Va. 188, 588 S.E.2d 177 (2003), he is entitled to reversal and a remand for a new bifurcated trial. Specifically, the appellant points out that in Syllabus Point 11 of McCraine, this Court held:
A trial court must grant bifurcation in all cases tried before a jury in which a criminal defendant seeks to contest the validity of any alleged prior conviction as a status element and timely requests that the jury consider the issue of prior conviction separately from the issue of the underlying charge. To the extent that our decision in State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999), conflicts with this holding it is hereby modified.
While McCraine was decided after the appellant was convicted and sentenced, he argues that his case falls within the boundaries for retroactive application of that case. In Syllabus Point 3 of State v. Gangwer, 168 W.Va. 190, 283 S.E.2d 839 (1981), this Court held, “[i]n the absence of any substantial countervailing factors, where a new rule of criminal law is made of a nonconstitutional nature, it will be applied retroactively only to those cases in litigation or on appeal where the same legal point has been preserved.” In addition, footnote 21 from McCraine provides:
Since our decision regarding bifurcation is a procedural requirement and ‘prophylactic standard[ ] designed to safeguard the right of every [similarly situated] criminal defendant to’ a fair trial, it has limited retroactive effect. State v. Blake, 197 W.Va. 700, 712, 478 S.E.2d 550, 562 (1996). The application of our decision today, therefore, is limited to the retrial of Appellant and to eases in litigation or on appeal during the pendency of this appeal in which the issue has been properly preserved. Syl. Pt. 3, State v. Gangwer, infra.
The appellant’s counsel moved for bifurcation on February 19, 2003, and his motion was denied on March 6, 2003. Based upon that denial the appellant stipulated to the two prior domestic battery convictions. The appellant maintains that since McCraine was decided after his March 13, 2003, conviction, and after his April 23, 2003, sentencing, but before his September 1, 2004, petition for appeal was filed, that retroactively applies to his ease. Conversely, the State contends that the appellant should not receive the benefit of the new procedural rule because the appellant had not yet filed his petition for appeal by the time McCraine was actually decided by this Court on May 16, 2003.
The State’s assertion that retroactivity is inapplicable in this ease simply because the appellant’s petition for appeal was not yet filed at the time of our decision in McCraine is inconsistent with our prior holdings. In fact, in State v. Blake, 197 W.Va. 700, 711-12, 478 S.E.2d 550, 561-62 (1996), we explained that, “[a] conviction and sentence becomes final for purposes of retroactivity analysis when the availability of direct appeal to this Court is exhausted or the time period for such expires.” While our review of the record leads us to conclude that the appellant’s case was “in litigation or on appeal” for purposes of retroactivity, our analysis does not stop there.
We now turn to the requirement as set forth in Syllabus Point 3 of Gangwer, supra, that the application of retroactivity is limited to cases in litigation or on appeal “in which the issue has been properly preserved.” It is the State’s contention that the appellant did not timely preserve his objection as required by Gangwer. We agree.
When the circuit court refused the appellant’s motion to bifurcate, the appellant stipulated to his two prior domestic violence convictions without any argument or presentation to the contrary. The appellant simply stood silent and did not exercise his right under then-existing law to request a pretrial hearing on the bifurcation issue. See Syllabus Point 4, State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999). Thus, the appellant is not similarly situated with individuals who were denied bifurcation by a circuit court, who then requested a hearing on the issue of bifurcation, and whose cases were in litigation or pending on appeal when this Court decided McCraine.
The appellant raised the issue of bifurcation for the first time on appeal based solely upon our decision in McCraine. Applying McCraine retroactively to this case would undermine the principles of limited retroac-tivity and defeat the fundamental rule that similarly situated defendants should be treated the same. We believe that those whose appeals were pending at the time of this Court’s decision in MeCraine, who properly preserved the issue below, should benefit from that decision; however, the-appellant is not in that category. Consequently, the appellant is not entitled to the benefit of our holding in MeCraine.
We must also point out that even if we had applied MeCraine retroactively to the appellant’s case, he still would not have survived a harmless error analysis. In footnote 21 of MeCraine, we explained that our new requirement of bifurcation was “a procedural requirement and ‘prophylactic standard! ] designed to safeguard the right of every [similarly situated] criminal defendant to’ a fair trial [and that] it has limited retroactive effect.” (Citation omitted.). With that in mind, it is well settled that, “[m]ost errors, including constitutional ones are subject to harmless error analysis.” Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). In State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), we explained that, “[a]s to error not involving the erroneous admission of evidence, we have, held that nonconstitutional error is harmless when it is highly probable the error did not contribute to the judgment.” (Citations omitted.).
Likewise, 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.) In Syllabus Point 5 of Blair, we further held, “[fjailure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt.” Id.
Equally important, as we said in State v. Salmons, 203 W.Va. 561, 582, 509 S.E.2d 842, 863 (1998), “[i]t 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 nonconstitutional 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. Young, 185 W.Va. 327, 406 S.E.2d 758 (1991); State v. Ferrell, 184 W.Va. 123, 399 S.E.2d 834 (1990). See also West Virginia Rule of Criminal Procedure 52(a) (“Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.”).
In this case, there is simply no evidence suggesting that the appellant’s stipulation to his prior crimes contributed to the judgment against him. Moreover, based upon the appellant’s stipulation, the State did not disclose the appellant’s prior convictions to the jury during the guilt phase of his trial even though there was substantial evidence proving those prior convictions. This is confirmed by the record before us which contains a certified copy of a criminal complaint and disposition sheet from April 18, 1996, stating that an individual named David Reed, with the same birth date and other identifying information as the appellant, pled guilty to domestic battery and served two days incarceration. The record also contains an indictment charging David Reed with third offense domestic battery and malicious wounding.
It is difficult for this Court to understand how the appellant was prejudiced by his admission to his prior offenses and the circuit court’s denial of bifurcation. The appellant did not object to the circuit court’s denial of his motion, he did not request a hearing or present any evidence on the issue, and he did not raise it in his post-trial motions. Moreover, the appellant actually benefited from his stipulation to his prior offences because the State agreed not to introduce West Virgi nia Rule of Evidence 404(b) evidence in return for his stipulation, which included his two prior convictions for domestic battery. Thus, even if the appellant had been able to use our holding in McCraine retroactively, any violation would have been deemed harmless under these circumstances.
Our review of this matter does not indicate any error by the lower court, and we do not find that the lower court acted in an arbitrary or irrational manner. We consequently affirm the circuit court’s decision.
IV.
CONCLUSION
Accordingly, for the reasons stated above, the final order of the Circuit Court of Cabell County entered on April 23, 2003, is affirmed.
Affirmed.
Justice DAVIS concurs and files a concurring opinion.
. West Virginia Code § 61 — 2—28(d), in part, provides:
Any person who has been convicted of a third or subsequent violation of the provisions of subsection (a) or (b) of this section, a third or subsequent violation of the provisions of section nine of this article where the victim was a current or former spouse, ... is guilty of a felony if the offense occurs within ten years of a prior conviction of any of these offenses and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than five years or fined not more than two thousand five hundred dollars, or both.
. West Virginia Code § 48-27-903(b), provides:
A respondent who is convicted of a second or subsequent offense under subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than three months nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and fined not less than five hundred dollars nor more than three thousand dollars, or both.
. Rule 404(b) of the West Virginia Rules of Evidence provides:
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 he or she 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, 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.
. The appellant argues that if his underlying conviction is reversed by this Court then the sentencing enhancement of one-to-five years in the penitentiary to two-to-five years in the penitentiary should be void. Since we have affirmed the appellant's underlying conviction this issue is moot. | [
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PER CURIAM:
This case is before this Court upon appeal of -a final order of the Circuit Court of Kana-wha County entered on January 31, 2005. In that order, the circuit court refused to consider an appeal of an order of the Family Court of Kanawha County filed by the appellant and respondent below, William Jack Stuck (hereinafter “Mr. Stuck”), which granted him a divorce from the appellee and petitioner below Anna Jean Duncan Stuck (hereinafter “Ms. Duncan” ). In addition to granting the parties a divorce, the family court order contained a finding that the parcel of real estate where the parties resided during their marriage was marital property and, therefore, subject to equitable distribution. In this appeal, Mr. Stuck contends that the residential real estate was not marital property since he owned it prior to the marriage, and thus, he seeks a reversal of that portion of the order which granted Ms. Duncan a one-half interest in the property.
This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is reversed, and this ease is remanded to the circuit court with directions to enter an order remanding the case to the family court for further proceedings consistent with this opinion.
I.
FACTS
Mr. Stuck and Ms. Duncan were married on August 19, 2000. At the time of their marriage, Mr. Stuck, a widower, was 78 year's old, and Ms. Duncan, a widow, was 70 years old. Both had children from then-previous marriages. The day prior to their marriage, the par-ties executed two prenuptial agreements. Each party’s attorney prepared an agreement and both agreements were signed.
After six months of marriage, Mr. Stuck conveyed by deed his premarital residence into the names of both parties as joint tenants with the right of survivorship. The parties had lived at this residence since they were married. On April 1, 2003, the parties separated. Shortly thereafter, Ms. Duncan filed for divorce. The primary issue raised during the divorce proceedings concerned the ownership of the property where the parties resided during their marriage and which was owned prior to the marriage by Mr. Stuck.
On August 4, 2004, a hearing was held in the Family Court of Kanawha County, and the parties presented evidence with regard to the disposition of the subject property. On November 17, 2004, the family court entered an order with the following findings of fact and conclusions of law:
There were two prenuptial agreements prepared prior to the marriage but the transfer of the residence and the automobile were some time after the marriage and the Court finds that as to these two items the prenuptial agreements have no effect as both agreements contemplate owning and transferring property after the marriage.
The Court does find that the residential real estate is owned by the parties as joint tenants. The court orders that the surviv-orship relationship be terminated effective with this order. The respondent and petitioner are ordered to effectuate a new deed or deeds in conformity with this order.
(Footnote added).
Subsequently, Mr. Stuck filed an appeal with the circuit court. On January 31, 2005, the circuit court refused the petition for appeal. Mr. Stuck then filed an appeal with this Court.
II.
STANDARD OF REVIEW
Recently, in Carr v. Hancock, 216 W.Va. 474, 476, 607 S.E.2d 803, 805 (2004), we explained that,
This Court’s standard of review for an appeal from a circuit court that reviewed a family court’s final order, or refused to consider a petition for appeal to review a family court’s final order, is the same. 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.
See W.Va.Code § 51-2A-15(b) (2001). With these standards in mind, we now consider the issues presented in this case.
III.
DISCUSSION
Mr. Stuck first asserts that the circuit court erred by finding that his separate property became marital property when he executed a deed placing the real estate in both his and Ms. Duncan’s names as joint tenants with the right of survivorship. Mr. Stuck maintains that in executing the deed he did not intend to make the pi’operty a gift to the marital estate. Rather, the deed was only intended as a probate instrument in the event that he died while married to Ms. Duncan. He wanted her to have a place to live if he passed away first, and he believed Ms. Duncan would provide that upon her death, the property would be inherited by his daughters. Mr. Stuck says that given the existence of the prenuptial agreements, it is clear that he did not intend for the property to be part of the marital estate.
In Syllabus Point 4 of the seminal case of Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990), this Court held that:
Where, during the course of the marriage, one spouse transfers title to his or her separate property into the joint names of both spouses, a presumption that the transferring spouse intended to make a gift of the property to the marital estate is consistent with the principles underlying our equitable distribution statute.
We stressed in Whiting, however, that “the joint titling of the separate property gives rise only to a rebuttable presumption of gift to the marital estate.” 183 W.Va. at 459, 396 S.E.2d at 421. We further noted that, “The presumption may be overcome by a showing that the transferring spouse did not intend to transfer the property to joint ownership or was induced to do so by fraud, coercion, duress, or deception.” Id. (Footnote omitted).
In Burnside v. Burnside, 194 W.Va. 263, 270, 460 S.E.2d 264, 271 (1995), this Court expanded upon Whiting by providing an extensive analysis regarding the type of evidence that is sufficient to rebut the presumption. In Burnside, this Court was asked to determine whether the family law master and circuit court erred by finding that Mrs. Burnside had made a contribution to the marital estate when she used separate funds she had inherited to payoff the parties’ mortgage on the marital home. This Court concluded that while both the family law master and circuit court had made a finding that Mrs. Burnside did not prove she was under “coercion, duress, or deception” when she paid off the mortgage, they failed to make a specific finding regarding Mrs. Burnside’s “intent” to make a gift. Accordingly, the case was remanded for further consideration of the intent aspect of the presumption with guidance as to what type of evidence would be sufficient to rebut the presumption that a gift had been made to the martial estate.
In the case szib judice, the family court, like the family law master and circuit court in Burnside, found that Mr. Stuck had not proved that he was under “coercion, duress and deception” when he transferred the property. The family court further concluded that even if Mr. Stuck had intended to only transfer the property so that Ms. Duncan would have a place to live should he pass away first, that absent some limitation to that effect in the deed, the real estate had to be deemed marital property. In other words, regardless of Mr. Stack’s intent, the property was part of the marital estate because the deed specified that the property was owned by the parties jointly with the right of survivorship. Clearly, the family court misapplied the law and erred by not considering Mr. Stack’s intent.
Pursuant to Whiting and Burnside, if Mr. Stuck is able to prove that he never intended to make a gift to the marital estate, then the real estate at issue must be deemed his separate property and not be subject to equitable distribution. Therefore, we reverse the final order and remand this case for consideration of the “intent” aspect of the presumption. The family court is directed to make sufficient findings of fact with regard to whether Mr. Stuck intended to make a gift of his separate property to the marital estate. In doing so, the family court should be mindful of the examples set forth in Bum-side with regard to the type of evidence that is sufficient to overcome the presumption.
As his second assignment of error, Mr. Stuck claims that the family court erred by failing to apply the third step in the equitable distribution analysis. We agree. In Syllabus Point 1 of Whiting, this Court held that,
Equitable distribution ... is a three-step process. The first step is to classify the par-ties’ property as marital or nonmar-ital. The second step is to value the marital assets. The third step is to divide the marital estate between the parties in accordance with the principles contained in [former] W.Va.Code, 48-2-32 [now W.Va. Code § 48-7-103 (2001) ].
(Footnote added). In this case, it is clear that the family court did not complete the third step of the equitable distribution process. In fact, the family court’s order states, “This court, under the circumstances and controlling law stated, does specifically not rule on the equitable aspects of the transfer.” The family court order then concludes that “the residential real estate is owned by the parties as joint tenants.”
In Syllabus Point 2, in part, of Whiting, this Court held that,
Unless the parties have made a joint stipulation or property settlement agreement, under Rule 52(a) of the West Virginia Rules of Civil Procedure the circuit court [and family court] is required to make findings of fact and conclusions of law in its final order which reflect each step of the equitable distribution procedure.
(Footnote added). Moreover, Syllabus Point 5 of Burnside mandates:
“In any order making a division of marital property, the trial court ... must set out in detail its findings of fact and conclusions of law, and the reasons for dividing the property in the manner adopted. [Former] W.Va.Code § 48 — 2—32(f) (1986) [now W.Va.Code § 48-7-106 (2001).].” Syllabus Point 2, Somerville v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988).
Accordingly, upon remand, should the family court determine that the subject property is part of the marital estate, then the court must complete the remaining steps of the equitable distribution process and set forth adequate findings of fact and conclusions of law which explain the reasons for dividing the property in the manner adopted.
IV.
CONCLUSION
Accordingly, for the reasons set forth above, the final order dated January 31, 2005, is reversed, and this ease is remanded to the Circuit Court of Kanawha County with directions to enter an order remanding this case to the Family Court of Kanawha County for further proceedings consistent with this opinion.
Reversed and remanded with directions.
Justices DAVIS and STARCHER dissent and reserve the right to file dissenting opinions.
. The family court order restored Anna Jean Duncan Stuck her former name of Anna Jean Duncan.
. The real estate which is located in Kanawha County was inherited by Mr. Stuck. He began building a house on the property in May 1999. The home was completed approximately nine months before the parties married. According to Mr. Stuck, he paid for the construction of the house with life savings and proceeds from the sale of a house he inherited in California.
. The automobile referred to by the court was sold by Mr. Stuck after the parties separated. The court determined that the automobile was not a gift after marriage to Ms. Duncan and that Mr. Stuck did not improperly sell the vehicle. Ms. Duncan did not appeal this finding.
. The family law master system ceased to operate on January 1, 2002, and was replaced by a system of family court judges. See W.Va.Code § 51-2A-23 (2001).
. We note that W.Va.Code § 48-5-609 (2001) provides:
Upon ordering a divorce, the court has the power to award to either of the parties whatever of his or her property, real or personal, may be in the possession, or under the control, or in the name, of the other, and to compel a transfer or conveyance.
. In 2001, the West Virginia Legislature recodi-fied the West Virginia Domestic Relations Act. See W.Va.Code § 48-1-101 (2001).
. Obviously, the parties made no stipulation or property settlement agreement with regard to the real estate at issue.
. According to Mr. Stuck, the second step, which concerns the valuation of the martial property, is not an issue in this case.
.We note that:
In the absence of a valid agreement, the trial court in a divorce case shall presume that all marital property is to be divided equally between the parties, but may alter this distribution, without regard to fault, based on consideration of certain statutorily enumerated factors, including: (1) monetary contributions to marital property such as employment income, other earnings, and funds which were separate property; (2) non-monetary contributions to marital property, such as homemaker services, child care services, labor performed without compensation, labor performed in the actual maintenance or improvement of tangible marital property, or labor performed in the management or investment of assets which are marital property; (3) the effect of the marriage on the income-earning abilities of the parties, such as contributions by either party to the education or training of the other party, or foregoing by either party of employment or education; or (4) conduct by either party that lessened the value of marital property. [Former] W.Va.Code § 48-2-32(c) (1986) [now W.Va.Code § 48-7-103 (2001)].
Syllabus Point 1, Somerville v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988). | [
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PER CURIAM.
Herbert J. Thomas Memorial Hospital (hereinafter “Thomas” or “the hospital”), appeals from an order entered March 18, 2004, by the Circuit Court of Kanawha County. By that order, the circuit court affirmed the decision of the Board of Review of the West Virginia Bureau of Employment Programs (hereinafter “Board”), finding that the misconduct committed by Thomas’ former employee, James Kirk (hereinafter “Mr. Kirk”), did not rise to the level of gross misconduct. Accordingly, the Board found, and the circuit court affirmed, that Mr. Kirk was entitled to receive unemployment compensation benefits pursuant to the guidelines set forth in W. Va.Code § 21A-6-3(2) (1990) (Repl.Vol.2002). On appeal, Thomas argues that theft is gross misconduct; therefore, Mr. Kirk should not receive unemployment benefits for his termination from Thomas for stealing food from the cafeteria. Based upon the parties’ arguments, the record designated for our consideration, and the pertinent authorities, we reverse the decision of the circuit court.
I.
FACTUAL AND PROCEDURAL HISTORY
Mr. Kirk was employed by Thomas on January 5, 1995, as a maintenance person on the night shift. Mr. Kirk admitted that, during his employment, he removed food items from the .hospital cafeteria without paying for them. He stated that he was allowed by the cashier to take food from the cafeteria without paying for it, an allegation that is denied by the cafeteria’s cashier. Mr. Kirk further admitted that he would unlock the cafeteria during its nonbusiness hours and take food without anyone’s knowledge. The hospital was alerted to the situation in April 2003.
During this time, Mr. Kirk was also having work performance-related problems. A meeting was held between Mr. Kirk and hospital personnel regarding his performance-related troubles, and, during this meeting, Mr. Kirk admitted he had been taking food from the cafeteria without paying for it. Mr. Kirk, however, claimed that he always returned to the cafeteria at a later time to pay for the food. Thomas then spoke with a witness identified by Mr. Kirk and learned that Mr. Kirk had approached this witness and asked her to lie on his behalf. The witness declined to lie for Mr. Kirk and stated that Mr. Kirk did not return at later dates to pay for food he had previously removed from the premises. When Thomas investigated and confirmed that Mr. Kirk had removed food without paying for it, the hospital terminated Mr. Kirk’s employment effective April 27, 2003.
Mr. Kirk filed for unemployment compensation benefits. On May 13, 2003, the Deputy Commissioner ruled that Mr. Kirk was not entitled to receive unemployment benefits because he had committed theft, which is a form of gross misconduct under W. Va.Code § 21A-6-3(2). Mr. Kirk appealed, and a hearing was held before an administrative law judge. All parties were present and submitted evidence, and the administrative law judge affirmed the findings and rulings of the Deputy Commissioner.
Mr. Kirk then appealed to the Board, which issued an opinion on August 11, 2003, that reversed the decision of the administrative law judge. The Board found that while Mi'. Kirk committed an act of misconduct when he removed items from the cafeteria without paying for them, he committed acts of simple misconduct as opposed to gross misconduct. The Board’s opinion was based on its assumption that other hospital employees also had removed food from the hospital without paying for the items. Thomas appealed to the Circuit Court of Kanawha County, claiming that the Board’s decision was erroneous and arguing that theft automatically equals gross misconduct. The circuit court affirmed the Board, finding that Mr. Kirk’s conduct was not willful, wanton, or deliberate in nature and, therefore, did not constitute gross misconduct. Thomas asserts on appeal to this Court that Mr. Kirk committed theft, and further, that theft is automatically gross misconduct.
II.
STANDARD OF REVIEW
This case is before this Court on appeal from the circuit court’s order affirming the decision of the Board. We have held:
The findings of fact of the Board of Review of the West Virginia [Bureau of Employment Programs] are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong. If the question on review is one purely of law, no deference is given and the standard of judicial review by the court is de novo.
Syl. pt. 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994). Therefore, we examine the factual determination that Mr. Kirk took food without paying for it under a clearly wrong standard, and we examine the legal determination that theft is not gross misconduct under a de novo standard of review.
Further guidance is provided in our recognition that “Unemployment compensation statutes, being remedial in nature, should be liberally construed to achieve the benign purposes intended to the full extent thereof.” Syl. pt. 6, Davis v. Hix, 140 W.Va. 398, 84 S.E.2d 404 (1954). Accord Mercer County Bd. of Educ. v. Gatson, 186 W.Va. 251, 412 S.E.2d 249 (1991) (per curiam); London v. Board of Review of Dep’t of Employment, 161 W.Va. 575, 244 S.E.2d 331 (1978). “Disqualifying provisions of the Unemployment Compensation Law are to be narrowly construed.” Syl. pt. 1, Peery v. Rutledge, 177 W.Va. 548, 355 S.E.2d 41 (1987). Moreover, “the burden of persuasion is upon the former employer to demonstrate by the preponderance of the evidence that the claimant’s conduct falls within a disqualifying provision of the unemployment compensation statute.” Peery, 177 W.Va. at 552, 355 S.E.2d at 45 (internal citations omitted). Mindful of these applicable standards, we now consider the parties’ arguments.
III.
DISCUSSION
West Virginia Code § 21A-6-3 provides for an individual’s disqualification from unemployment compensation benefits for misconduct. Thomas argues that Mr. Kirk committed acts of gross misconduct; whereas, the circuit court found that Mr. Kirk’s actions arose only to the level of simple misconduct. The level of misconduct determines the level of unemployment compensation benefits available to a claimant. Individuals are disqualified from obtaining unemployment benefits for six weeks if the termination of their employment was due to misconduct and are disqualified indefinitely if the termination was due to gross misconduct. W. Va.Code § 21A-6-3(2).
For purposes of determining the level of disqualification for unemployment compensation benefits under West Virginia Code § 21A-6-3, simple misconduct is conduct evincing such willful and wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards' of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.
Syl. pt. 7, Dailey v. Board of Review, W. Va. Bureau of Employment Programs, 214 W.Va. 419, 589 S.E.2d 797 (2003). Moreover,
[f]or pmposes of determining the level of disqualification for unemployment compensation benefits under West Virginia Code § 21A-6-3, an act of misconduct shall be considered gross misconduct where the underlying misconduct consists of (1) willful destruction of the employer’s property; (2) assault upon the employer or another employee in certain circumstances; (3) certain instances of use of alcohol or controlled substances as delineated in West Virginia Code § 21A-6-3; (4) arson, theft, larceny, fraud, or embezzlement in connection with employment; or (5) any other gross misconduct which shall include but not be limited to instances where the employee has received prior written notice that his continued acts of misconduct may result in termination of employment!!]
Syl. pt. 4, in part, Dailey, id.
We must therefore decide whether the action that prompted Thomas’ termination of Mr. Kirk constituted simple misconduct or gross misconduct. It is undisputed that Mr. Kirk removed food from the cafeteria without paying for it. We have previously held that “[t]o support a conviction for larceny at common law, it must be shown that the defendant took and carried away the personal property of another against his will and with the intent to permanently deprive him of the ownership thereof.” Syl. pt. 3, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), overruled on other grounds by Syl. pt. 6, State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994). In another unemployment compensation case, we applied this holding to determine that a claimant did not commit theft or larceny when he took property that had been abandoned, finding that the claimant did not take property against the will of the owner with the intent to permanently deprive the owner of ownership of the property. See Syl. pt. 4, Summers v. Gatson, 205 W.Va. 198, 517 S.E.2d 295 (1999) (per curiam). The record in the instant case is clear that Mr. Kirk took items from the cafeteria without permission from a supervisor and without paying for them. Mr. Kirk justifies his behavior by stating that the cashier allowed him to take food without paying for it. However, even if true, that excuse does not apply to the situations where Mr. Kirk used a master key to unlock the cafeteria when it was closed and proceeded to take food. Therefore, we find that Mr. Kirk committed theft when he took items from the cafeteria without paying for them.
Mr. Kirk argued before the administrative law judge that the items he stole were of little value; therefore, he did not commit gross misconduct. We have previously held that a cashier’s failure to give a patron an amount of $21.50 owed on a winning racetrack ticket constituted theft and gross misconduct. Shively v. Gatson, 185 W.Va. 660, 664, 408 S.E.2d 610, 614 (1991) (per curiam). Therefore, for the purposes of applying the unemployment compensation statute and based on the particular facts of this case, the value of the item stolen is inconsequential in determining whether a theft has occurred. Further, Mr. Kirk argues that his behavior is excused because other hospital employees also removed food from the cafeteria without paying for it. Mr. Kirk’s reliance on this unproven statement is misplaced as we are aware of no authority that exempts criminal behavior simply because other people are guilty of the same crime. The hospital personnel stated that they investigate and take action in every circumstance where they receive knowledge of possible misconduct. There is nothing in the record to refute this statement.
After correctly finding that Mr. Kirk took food without paying for it, the Board and the circuit court misapplied the law when they held that such conduct amounted to simple misconduct. An examination of the applicable statutory language reveals that in cases of “theft, larceny, ... in connection with [the claimant’s] work; or any other gross misconduct; [the claimant] shall be and remain disqualified for benefits until he has thereafter worked for at least thirty days in covered employment^]” W. Va.Code § 21A-6-3. The plain statutory language mandates that theft be considered gross misconduct. Where a statute is unambiguous, the incorporation of additional words, terms, or provisions is not the domain of the courts, and the statute will be applied as written. See Mallamo v. Town of Rivesville, 197 W.Va. 616, 477 S.E.2d 525 (1996); Peyton v. City Council of Lewisburg, 182 W.Va. 297, 387 S.E.2d 532 (1989); State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968). The statute includes theft as a form of gross misconduct such that unemployment compensation benefits are withheld indefinitely. Accordingly, Thomas met, by a preponderance of the evidence, its burden of persuasion that Mr. Kirk’s conduct falls within a disqualifying provision of the unemployment compensation statutes.
IV.
CONCLUSION
Accordingly, we conclude that Mr. Kirk stole food from the hospital cafeteria and that his actions amounted to theft. We further determine that Mr. Kirk’s theft of food items constituted gross misconduct and was the basis for Mr. Kirk’s termination. Therefore, unemployment compensation benefits are denied. For the foregoing reasons, we reverse the March 18, 2004, order of the Circuit Court of Kanawha County.
Reversed.
.If an individual has been discharged for gross misconduct, W. Va.Code § 21A-6-3(2) provides that an individual shall be disqualified from receiving unemployment compensation benefits and shall remain disqualified for benefits until he has worked for at least thirty days in covered employment.
. We note that only Thomas filed a brief before this Court. No appellee filed any responsive brief for our consideration; therefore, we rely on the designated record for our review of the ap-pellees’ arguments.
. The cause of termination was theft, and was not related to any work performance issues.
. W. Va.Code § 21A-6-3(2) (1990) (Repl.Vol. 2002) provides, in pertinent part:
Upon the determination of the facts by the commissioner, an individual shall be disqualified for benefits:
(2) For the week in which he was discharged from his most recent work for misconduct and the six weeks immediately following such week; or for the week in which he was discharged from his last thirty-day employing unit for misconduct and the six weeks immediately following such week. Such disqualification shall carry a reduction in the maximum benefit amount equal to six times the individual's weekly benefit. However, if the claimant returns to work in covered employment for thirty days during his benefit year, whether or not such days are consecutive, the maximum benefit amount shall be increased by the amount of the decrease imposed under the disqualification; except that:
If he were discharged from his most recent work for one of the following reasons, or if he were discharged from his last thirty days employing unit for one of the following reasons: Misconduct consisting of willful destruction of his employer’s property; assault upon the person of his employer or any employee of his employer; if such assault is committed at such individual’s place of employment or in the course of employment; reporting to work in an intoxicated condition, or being intoxicated while at work; reporting to work under the influence of any controlled substance, or being under the influence of any controlled substance while at work; arson, theft, larceny, fraud or embezzlement in connection with his work; or any other gross misconduct; he shall be and remain disqualified for benefits until he has thereafter worked for at least thirty days in covered employment: Provided, That for the purpose of this subdivision the words "any other gross misconduct” shall include, but not be limited to, any act or acts of misconduct where the individual has received prior written warning that termination of employment may result from such act or acts[.] | [
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PER CURIAM:
The West Virginia Department of Health and Human Resources (hereinafter referred to as “DHHR” or the “Department”) appeals from the January 26, 2005, order entered by the Circuit Court of Berkeley County holding it in contempt due to its failure to provide sufficient staff resources to enable the Child Protective Services unit of the Martinsburg, West Virginia, DHHR office to fulfill its mandatory responsibilities. The entry of the circuit court’s order was stayed for sixty days to permit DHHR to purge itself of the contempt ruling. Upon our review of the record in this matter, DHHR has implemented the necessary measures to purge itself of the contempt ruling.
I. Factual and Procedural Background
The contempt order that is the subject of this action arose out of an abuse and neglect proceeding that evidenced specific staffing problems that the Child Protective Services unit was experiencing in the Eastern Panhandle counties of this state. The abuse and neglect proceeding was initiated following the positive testing of infant Brandon Lee H.S. for traces of cocaine, marijuana, and amphetamines upon his premature birth on October 22, 2004. As a result of this testing, an immediate referral was made to Child Protective Services. The circuit court awarded DHHR emergency temporary custody of Brandon on October 26, 2004, and Brandon was placed in foster care upon his discharge from the hospital.
A preliminary hearing was scheduled for November 5, 2004, to address whether there was probable cause for continuing the award of emergency custody to DHHR. When both of Brandon’s parents waived their rights to this preliminary hearing, the circuit court confirmed the actions of DHHR in acquiring legal custody of Brandon. Through its order entered on November 5, 2004, the trial court ordered that Brandon’s parents be subjected to random drug screens and directed that visitation with Brandon be arranged at the discretion of DHHR. In this same order, the circuit court included the following language:
In reviewing this case, the Court finds that D.H.H.R. located in the Eastern Panhandle of West Virginia is dangerously understaffed, with as many as 12 unfilled staff positions. The Court finds that this may be putting infants in the Eastern Panhandle at risk. Further, the Court finds that this interferes with the proper oversight that D.H.H.R. should be giving to this case, including proper visitation and considerations of placement.
The trial court set this matter for adjudication on December 6, 2004.
On November 30, 2004, the Child Protective Services supervisor learned that Brandon’s case had not yet been assigned within the Department. Brandon’s father and the guardian ad litem appointed to represent Brandon’s interests filed a petition for contempt in which they alleged that the Departs ment failed to properly staff this case and complained of the resulting delay in scheduling visitation, as well as in initiating drug-related services. Brandon’s father raised an additional complaint concerning the Department’s failure to conduct a home visit to determine if placement with him would be appropriate.
On December 15, 2004, the hearing on the contempt petition began. With respect to the underlying allegations of contempt pertaining to the failure of the Martinsburg Child Protective Services unit to staff Brandon’s case, the trial court found that these failures were “not the result of any Villful, intentional, or contumacious act’ on the part” of the local DHHR employees. However, based upon testimony offered by several DHHR workers regarding the status of conditions at the Martinsburg Child Protective Services office, the circuit court ruled that
the Secretary of the Bureau for Children and Families and the Commissioner and Deputy Interim Commissioner of the West Virginia Department of Health and Human Resources are in contempt of their obligation under West Virginia law to provide sufficient resources so that the Martins-burg CPS Unit of D.H.H.R. can fulfill its obligations in the present case, as well as to assure the “safety and guidance” of other children in its custody and in the Eastern Panhandle of West Virginia.
The trial court expressly concluded that the ongoing failure to provide sufficient staffing was “willful, intentional, and contumacious” in light of the fact that “the Secretary has known of the problem at the CPS unit at D.H.H.R. in Martinsburg since 2000, and more particularly since, the beginning of 2004, but has taken no action to remedy the situation.”
In fashioning the conduct required by the Department to purge the contempt finding, the trial court identified specific directives all aimed at solving the staffing crisis at the Martinsburg Child Protective Services office. The dictates required by the circuit court included the immediate hiring of workers to fill the numerous office vacancies and various measures designed to expedite the training of new hires, as well as certain salary incentives, including the use of geographic pay differentials designed to forestall the heavy attrition rate purportedly due to workers leaving to work in contiguous states. The trial court provided for a sixty-day stay of its order to provide the Department with sufficient time to implement the necessary measures to purge itself of the contempt finding. Arguing that it timely effectuated the actions required of it to be purged from the contempt order, DHHR seeks relief from this Court.
II. Standard of Review
The- standard pursuant to which we review civil contempt orders was identified in syllabus point one of Carter v. Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996):
In reviewing the findings of fact and conclusions of law of a circuit court supporting a civil contempt order, we apply a three-pronged standard of review. We review the contempt order 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.
Accordingly, we proceed to determine whether error was committed by the trial court in entering the contempt order that is the subject of this proceeding or in refusing to purge the Department of the contempt order.
III. Discussion
In challenging the entry of the contempt order that is the subject of this appeal, DHHR maintains that it had corrected the inaction relative to Brandon’s case concerning both visitation and services and had complied, to the extent possible, with the trial court’s directives concerning staff-related issues by the time of the hearing on the contempt petition. As a result, DHHR maintains the trial court erred in refusing to enter an order finding that the Department purged itself of the contempt rulings set forth in the January 26, 2005, order. In addition, the Department contends that certain procedural infirmities exist with regard to the contempt ruling due to the lack of service of process that was effectuated on the agency directors who were held in contempt individually.
We begin our analysis of this matter with a review of civil contempt. In State ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812 (1981), we explored the distinction between civil and criminal contempt, and found that “whether a contempt is civil or criminal depends upon the purpose to be served by imposing a sanction for the contempt and such purpose also determines the type of sanction which is appropriate.” Id. at 660, 276 S.E.2d at 813, syl. pt. 1, in part. We further instructed that
[wjhere the purpose to be served by imposing a sanction for contempt is to compel compliance with a court order by the contemner so as to benefit the party bringing the contempt action by enforcing, protecting, or assuring the right of that party under the order, the contempt is civil.
Id. at 660, 276 S.E.2d at 813, syl. pt. 2.
The Department argues that the court order necessary to serve as the predicate for a civil contempt ruling is the November 5, 2004, order. Maintaining that the terms of that order solely control the issue of whether it has purged itself of non-compliant conduct, the Department argues that the November 5, 2004, order contained only two specific directives with regard to Brandon’s ease. Those directives were:
(1) “It is further Ordered that the Respondents shall cooperate with ASI evaluations and with random drug screens, all to be paid for by D.H.H.R.”; and
(2) “It is further Ordered that the Respondents’ visitation with the Infant, and placement of the Infant, is [sic] in the discretion of the D.H.H.R.”
Emphasizing that the petition for contempt and the rule to show cause rely entirely on the November 5, 2004, order as the basis for the alleged contempt, the Department maintains that at the time of the hearing on the petition for contempt it had resolved, to the extent of its capabilities, each of the actions related to Brandon’s case that were complained of in the petition.
DHHR contends that the tidal court’s contempt order exceeded the permissible scope of the November 5, 2004, order by mandating extensive staffing directives that are unrelated to Brandon’s case. The Department objects to the trial court’s use of the contempt order to compel conduct on its behalf with regard to staffing issues that have no application to the Brandon ease and are beyond the authority of the judicial branch of government to address.
While the Department is correct in stating that the November 5, 2004, order only contained two specific directives with regard to the action required in connection with Brandon’s case, the order does contain language finding that the current staff shortage of twelve unfilled positions directly impacts on “the proper oversight that D.H.H.R. should be giving to this case, including proper visitation and considerations of placement.” Given the trial court’s recognition in the November 5, 2004, ruling of how the staff shortage was contributing to the attention that the Department could necessarily give all easés, not just Brandon’s case, we do not find the inclusion of staffing directives in the contempt order to be beyond the scope of the predicate order. Clearly, the staffing concerns were not being raised for the first time in the contempt order and, as a constitutional officer charged with upholding the numerous statutory enactments that govern the protection of this state’s children from abuse and neglect, the trial court had the authority, subject to the limitations required in this opinion, to compel the Department to act to remedy the serious effects of the significant staff shortage at issue, specifically, in this case and, generally, in other abuse and neglect proceedings before that court.
Numerous statutes evidence the paramount importance that we attach to protecting and safeguarding this state’s children from abusive and neglectful environs. In chapter forty-nine of the West Virginia Code, a body of statutory law devoted exclusively to child welfare, it is recognized that “[t]he purpose of this chapter is to provide a coordinated system of child welfare and juvenile justice for the children of this state that has goals to: (1) Assure each child care, safety and guidance[.]” W.Va.Code § 49-1-1(a)(1) (1999) (Repl.Vol.2004). Included in this chapter of the Code is an article expressly devoted to handling reports of children suspected of abuse or neglect. See W.Va.Code § 49-6A-1 to -10 (1977) (Repl.Vol.2004). That the state is serious about its creation of “a comprehensive system of child welfare” such that “no child subjected to abuse or neglect shall be left without assistance” is abundantly clear from our laws in this area. W.Va.Code §§ 49-6D-2(a), (b)(2) (1984) (Repl.Vol.2004). Inherent in the enactment of the multiple provisions addressing the protection of this state’s children is recognition “of the State’s responsibility to assist the family in a manner consonant with the purposes of this article [6D — Child Protective Services Act]” which includes as one of its stated purposes the goal of “securing] to a child removed from the family a degree of custody, care and control consistent with the child’s best interests.” W.Va.Code §§ 49-6D-2(a), -2(b)(6). Included in the statement of intent for article 6D of chapter 49 is the express recognition that the “legislature enacted] this article to provide for the protection of the children of this State from abuse and neglect and to provide direction to responsible state officers.” W.Va.Code § 49-6D-2(a)(emphasis supplied).
Given the critical nature of the issues presented by abuse and neglect proceedings, as well as the clear legislative recognition of the duties incumbent on the state and its officers to act in the best interests of the child “while recognizing ... the fundamental rights of parenthood,” we cannot fault the trial court for addressing the issue of unfilled Child Protective Services positions in the contempt order. W.Va.Code § 49-6D-2(a). That the unfilled positions played a part in the delayed assignment of Brandon’s case to a Child Protective Services worker cannot be doubted. Thus, in directing that the vacant positions be immediately filled, the trial court was acting in furtherance of the legislatively recognized need to “provide direction to responsible state officers” in the interest of securing the full and proper implementation of specific abuse and neglect statutes. W.Va. Code § 49-6D-2(a). Accordingly, we do not find the inclusion of directives that pertain generally to the issue of hiring additional personnel to fill the vacant positions within DHHR to render the contempt order unenforceable. That is not to say, however, that all of the hiring-related directives are enforceable.
While we agree in principle with the circuit court’s directives aimed at hiring and expediting the training process so that the new Child Protective Services workers could be actively handling cases as quickly as possible, we cannot uphold the specific mandate that requires the implementation of geographic pay differentials for DHHR employees located in the Eastern Panhandle of this State. As support for such pay differentials, the trial court and the guardian ad litem both look to legislation that allows the “transfer [of] funds between all general revenue accounts under the [DHHR] secretary’s authority.” W.Va.Code § 49-6-1a (1994) (Repl.Vol.2004). In addition, they rely upon a Division of Personnel regulation that authorizes the State Personnel Board to “approve the establishment of pay differentials to address circumstances such as class-wide recruitment and retention problems, [and] regionally specific geographic pay disparities....” W.Va. R. Personnel 143 § 1-5.4(f)4 (2003). Appellees maintain that these provisions, combined with the legislative mandate to “provide to the local child protective service such assistance [upon request].. i as will enable it to fulfill its responsibilities,” require the use of geographic pay differentials. W.Va.Code § 49-6A-9(e).
The Department correctly recognizes that the directives in the contempt order which compel DHHR to establish and implement geographic pay differentials for the Child Protective Services unit in the Eastern Panhandle District run afoul of the Separation of Powers doctrine. See W.Va. Const. art. V, § 1. We recognized in syllabus point one of State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981), that article V, section one of the West Virginia Constitution is part of the fundamental law of the state and must be strictly construed and closely followed. The separation of powers doctrine requires that the specific functions of the legislative, executive, and judicial branches of government are to be kept distinct. See State ex rel. State Bldg. Comm’n v. Bailey, 151 W.Va. 79, 87, 150 S.E.2d 449, 454 (1966).
Although this Court has recognized that the realities of modern governance sometimes require an overlapping of functions between the three branches, the implemen tation of geographic pay differentials does not fall into that permissible ambit of branch overlap that would allow the judicial branch to invade the executive branch’s jurisdiction over the salaries of its employees. As the Department observes, while it certainly may submit a request to the Division of Personnel, whether a geographic pay differential should be implemented is a decision that lies within the discretion of the Personnel Board. By statute, an agency first recommends a pay differential to the Personnel Board, and if the Personnel Board agrees with the recommendation, the issue must then be referred to the Governor for final approval before a pay differential may be implemented. See W.Va. R. 143 Personnel § 1-5.4(f)4; W.Va.Code § 29-6-10(2) (1999) (Repl.Vol. 2004). In concluding that a geographic pay differential is mandatory, both the guardian ad litem and the trial court overlook the critical element of discretion that is involved. Circumventing both the separation of powers issue and the discretionary nature of such a decision, the circuit court and guardian ad litem suggest that the issue of pay differentials is compelled based on the inclusion of mandatory statutory language directing that all state “departments, boards, bureaus and other agencies” are to provide assistance to the local child protective service, upon request, to “enable it [DHHR] to fulfill its responsibilities.” W.Va.Code § 49-6A-9(e).
In syllogistic fashion, the trial court and the guardian ad litem attempt to convince us that pay differentials are mandatory based on statutory language that (a) compels DHHR to assure the “care, safety and guidance” of children in its custody; and (b) charges all agencies, bureaus, and boards to assist DHHR with the fulfillment of its responsibilities. See W.Va.Code §§ 49 — 1—1(a)(1), 49-6A-9(e). This argument — that the geographic pay deferential is mandatory — is simply indefensible. While the Division of Personnel has the discretionary authority, by regulation, to act upon an agency’s request for a geographic pay deferential, there is no statutory language that requires the implementation of such salary enhancements. Moreover, as the Department explains, the issue of geographic pay differentials is one that néces-sarily must be made solely by the executive branch. This is because such a decision must take into consideration a host of other factors that necessarily includes issues such as how a differential affects pay grades, classifications, and budgetary constraints, as well as the potential for grievance filing by employees outside the geographic area selected to receive a pay differential.
While we do not wish to downplay the unacceptable situation that the trial court found itself presented with in regularly presiding over abuse and neglect cases during a period when DHHR staff vacancies reached crisis proportions, the extreme nature of those facts does not justify an invasion of the executive branch’s province to set the salaries of its employees. Notwithstanding the legislative recognition of a need to increase the number of child protective services workers and investigators and the granting of authority to the DHHR Secretary to “transfer funds between all general revenue accounts under the secretary’s authority,” these acts do not constitute a legislative invitation to encroach upon the separation of powers between the three governmental branches that is constitutionally mandated. W.Va.Code § 49-6-1a. Quite simply, the trial court was without power to require the use of geographic pay differentials in its desire, álbeit laudatory, to immediately fill those vacant Child Protective Services positions. See State ex rel. Canterbury v. County Court, 151 W.Va. 1013, 1019, 158 S.E.2d 151, 156 (1967) (recognizing that separation of powers provision precludes courts from exercising administrative duties relating to executive branch in refusing to use judicial power of mandamus to control fiscal affairs of county court); cf. State ex rel. Lambert v. Cortellessi, 182 W.Va. 142, 148, 386 S.E.2d 640, 646 (1989) (issuing writ of mandamus directing county commission to give due consideration to duties and responsibilities of employees of county clerk’s offices to provide “reasonable and proper” funds for performance of statutory duties of office).
In contrast to those cases where this Court has exercised judicial power when the budgets of county officers were arbitrarily reduced and the performance of statutory duties thereby affected, this case does not present a situation where the wrongful denial of funds to constitutional officers required judicial intervention to mandate adequate funding for the fulfillment of specific job duties. See Cortellessi 182 W.Va. at 148 n. 6, 386 S.E.2d at 646 n. 6 (directing that respective county commissions could not “act arbitrarily by providing clearly inadequate funds for the performance of the statutory duties of the county officers”); State ex rel. Ginsberg v. Naum, 173 W.Va. 510, 318 S.E.2d 454 (1984) (holding that county commission has fiscal responsibility to provide prosecuting attorney with sufficient staff for duties of office). While we are convinced that the trial judge, in inserting staff-related directives in the contempt order, was acting solely out of concern for the best interests of the children placed in the state’s custody pursuant to our abuse and neglect laws, and that his actions were certainly driven by the lack of action taken by the previous administration’s DHHR officers, we simply lack the authority to address the employment terms of the Department’s staff — issues that are unquestionably administrative in nature. Those functions are solely in the realm of the executive branch of government.
With regard to the issue raised by the Department concerning the lack of service of process effected on the individual agency officials who were named in the contempt order, we find this argument less than compelling. The crux of the contempt order was to resolve the immediate issues of visitation and drug testing in the Brandon case and to remedy the unfilled Child Protective Services positions. In not providing the individually named agency heads with separate service of process of the contempt proceedings, DHHR suggests that due process standards of notice and an opportunity to be heard were violated. See generally, In Re Yoho, 171 W.Va. 625, 629-30, 301 S.E.2d 581, 586 (1983).
Critically, as the guardian ad litem notes, these officials were never subject to any sanctions in connection with the contempt finding. Moreover, there is no question that they were aware of the staff shortage situation at the Martinsburg office. The circuit court merely named these individuals in recognition of the fact that an organization such as DHHR can only act through its officials. We presume that the circuit court’s naming of these individuals in the contempt order was intended solely for the purpose of resolving the staff shortage in an expedited fashion. Rather than seeking to impose any form of individualized sanctions against these agency officials, the trial court was attempting to get the necessary players — those with hiring powers — on board immediately.
While the better practice is always to adhere to procedural requirements which necessarily include due process protections, in this case the lack of any sanctions against the agency heads combined with the fact that the agency itself was clearly a party to this proceeding who received full notice and an opportunity to be heard, suggest that the lack of individual service does not render the contempt order fatally defective. Because these individuals were named in their professional capacities, they did not incur any expenses for legal representation. In short, we can find no prejudice to have been sustained as a result of the inclusion of the individual DHHR officers in the contempt order.
We are similarly unpersuaded by the Department’s argument that the trial court violated the notice provisions included in West Virginia Code § 55-17-1 (2002). That chapter was enacted to codify the procedures to be used “in certain civil actions filed against state government agencies and their officials.” W.Va.Code § 55 — 17—1(b). Consequently, chapter 55 is inapplicable to the case sub judice as the contempt proceeding arose out of an abuse and neglect matter — a proceeding initiated by a government agency. Given the inapposite nature of that chapter of the Code to the matter before us, we do not further address this issue.
Based on the foregoing, we determine that DHHR has fully complied with the portions of the contempt ruling issued by the Circuit Court of Berkeley County that are properly within its power and authority to act. Accordingly, we remand this matter to the circuit court for entry of an order finding that the Department has purged itself of the contempt rulings contained in the January 26 and February 7, 2005, orders and dismissing this contempt action from the docket of the trial court.
Remanded.
.While there is a second contempt order that was entered on February 7, 2005, DHHR notes that "[b]oth orders basically make the same findings of fact and conclusions of law, and order the Department to undertake various actions concerning the operations of its Child Protective ... unit in the Eastern Panhandle District comprised of Berkeley, Jefferson and Morgan Counties.” Consequently, we will refer collectively to both orders as the “contempt order."
. As is this Court's longstanding practice, we identify this individual by initials only based upon the sensitive nature of the matter. See In re Jonathan P., 182 W.Va. 302, 303 n. 1, 387 S.E.2d 537, 538 n. 1 (1989).
. He remained in the legal custody of DHHR at the time of his foster care placement.
. While the order indicated that the hearing was to occur on December 6, 2003, the designation of the year was clearly a typographical error.
. This error resulted based on alleged miscom-munication within the unit when the investigative worker originally assigned to the case left the Department's employ on the same date as the preliminary hearing. While Department policy apparently required that the vacated position should have resulted in the staffing of the case by either a long-term or an ongoing Child Protective Services worker, this assignment did not occur and was not discovered until November 30, 2004.
. The Department notes that there is no directive contained in the November 5, 2004, order, providing for such a home visit. In addition, the Department maintains that a home visit could not have been performed due to the fact that the father was adamant that his parents, with whom he resided, were not to be informed about the fact that Brandon tested positive for having drugs in his system at birth.
. The hearing was continued and completed on December 17, 2004.
. See supra note 1.
. The Abuse Severity Index involves an evaluation performed to determine the level, if any, of an individual's addiction.
. Those four items were that: (1) DHHR had Failed to staff this CPS case to the ongoing CPS unit; (2) DHHR had failed to exercise discretion regarding visitation and/or failed to arrange visitation with the parents; (3) DHHR had failed to exercise discretion with regard to possible placement of the child with the father; and (4) DHHR had failed to contact the parents regarding implementation of services, visitation, and placement.
. The guardian ad litem notes that language similar to that which the trial court inserted in the November 5, 2004, order regarding the DHHR staffing crisis in the Eastern Panhandle was included in orders entered by Judge Sanders in other abuse and neglect cases in the Fall of 2004. She opined that these "slatement[s] reflected the Circuit Court’s deepening concern about the deteriorating staff situation at DHHR in Martinsburg.”
.See generally W.Va.Code § 49-1-1 to 49-9-17 (Repl.Vol.2004).
. In its order, the trial court alludes to the Department's use of an antiquated and protracted training program for newly hired employees.
. These regulatory provisions were adopted pursuant to West Virginia Code § 29-6-10(2) (1999) (Repl.Vol.2004). Any such pay plan that incorporates geographic pay differentials "shall become effective only after it has been approved by the governor after submission to him by the [State Personnel] board." Id.
.See, e.g., Appalachian Power Co. v. Public Serv. Comm’n, 170 W.Va. 757, 759, 296 S.E.2d 887, 889 (1982) (recognizing that "in order to make government workable and economical, it must lend itself to practical considerations" that may include "some overlapping of judicial and administrative duties)” (quoting Chapman v. Hunt ington W.Va. Housing Auth., 121 W.Va. 319, 336, 3 S.E.2d 502, 510 (1939)); Crain v. Bordenkircher, 180 W.Va. 246, 376 S.E.2d 140 (1988) (holding by judicial branch directing executive branch to construct new correctional facility because of unconstitutional penitentiary conditions).
. The guardian ad litem suggests that this Court recognized in Hewitt v. State DHHR, 212 W.Va. 698, 575 S.E.2d 308 (2002) (Hewitt I), that a state court has the power to order state officials to fulfill mandatory duties including the expenditure of executive agency funds. Hewitt I acknowledged that due to the “necessary inter-workings of the judicial branch and the executive branch in instances of cases involving children who require the services of this state,” that the judicial branch may properly be involved in setting expert fees that may be charged in such cases. 212 W.Va. at 703 n. 9, 575 S.E.2d at 313 n. 9. That limited observation, which pertains solely to expert fee setting, cannot be extrapolated to support the guardian ad litem's contention that the judicial branch has the power to encroach upon tile salary setting jurisdiction of the' executive branch based on its statutory duty to protect children. Hewitt I simply does not support such a wholesale incursion on the executive branch's domain.
. We wish to acknowledge the huge improvements that the Department has made under the leadership of the current DHHR Secretary, Martha H. Walker, who upon taking office, immediately proposed sweeping changes to improve the employment conditions of Child Protective Service workers throughout the state. We suspect that the actions taken by Secretary Walker were impelled, at least in part, by the continuing interest and careful monitoring of the DHHR staff vacancies by Judge Sanders.
. While the trial court framed the contempt order in terms of "whether the CPS unit at the D.H.H.R. office serving the Eastern Panhandle of West Virginia has sufficient resources to fulfill its obligations,” the issue of adequate funds was never raised by DHHR. In fact, the guardian ad litem notes that plenty of funds were available for staff hiring purposes due to the unfilled positions. We are certainly cognizant of the fact that the starting salary figure for the Child Protective Services worker may have contributed to the staff vacancies; however, the funds available for such salaries had not been arbitrarily reduced by the Department. Absent arbitrary conduct by the executive branch that placed job performance in jeopardy, this Court has no power to compel action with regard to fiscal issues under the Department's control. See Canterbury, 151 W.Va. at 1019, 158 S.E.2d at 156.
.The Secretary of the Bureau for Children and Families, which is part of DHHR; and the Commissioner and Deputy Commissioner for DHHR, were named individually by the trial court in the contempt order.
. Although we conclude in this particular case that the lack of compliance with service of process requirements on the individual agency heads is not a fatal defect given the specific factual and legal parameters of this case, we do not suggest that due process requirements can be disregarded when individuals outside the jurisdiction of the trial court are determined to be necessary parties to the proceedings. The protections guaranteed to all citizens by the due process provisions of the state constitution are fundamental to our system of jurisprudence and are vital to securing the implementation of proceedings in a manner that fully comports with principles of fundamental fairness. While those due process protections were not observed with regard to the individual agency heads found by the lower court to be in contempt, we cannot find a consequent violation of the precepts of fundamental fairness to have resulted in this case. The practically immediate purging of any contempt — resulting from the prompt action of those agency heads to address the concerns of the lower court (other than geographical salary differentials) — has led inexorably to our decision today finding a purging of any contempt and, in practical effect, mooting the due process issues. In another case, however, the failure to effect personal service on necessary parties may cause a similar action to be rendered fatally defective for noncompliance with constitutionally significant procedural requirements. | [
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Justice DAVIS delivered the Opinion of the Court.
DAVIS, Justice.
In this action to set aside a tax deed, the holders of the tax deed appeal summary judgment in favor of the landowner. In granting summary judgment and setting-aside the tax deed as void, the circuit court found that, based upon the undisputed facts, there was no question that after the purchase of the tax lien, the tax lienholder failed to exercise due diligence in obtaining the landowners correct address in order to provide notice to the landowner of its right to redeem the property. After reviewing the parties’ arguments, the record submitted on appeal and; the relevant authority, we find that, because the tax lienholder held the position of sheriff, he is prohibited from purchasing the tax lien or receiving the tax deed. Accordingly, we affirm the circuit court’s order granting summary judgment and setting-aside the tax deed as void.
I.
FACTUAL AND PROCEDURAL HISTORY
In November 1996, Subcarrier Communications, Inc., Plaintiff below and Appellee (hereinafter referred to as “Subcarrier”), purchased a 9.23-acre tract of real estate from Skyline Communications, Ltd. The deed commemorating the sale was duly recorded in the office of the Preston County Clerk and correctly identified Subcarrier’s corporate address as 101 Eisenhower Parkway, Roseland, New Jersey.
In September of 1997, Subcarrier relocated its office to 139 White Oak Lane, Old Bridge, New Jersey. By correspondence dated November 25, 1997, Subcarrier notified the Preston County Clerk of its change in address and current phone number. Nevertheless, in May 1998, when the 1997 property tax for the realty had not been paid, the Sheriff of Preston County mailed a notice of delinquency to Subcarrier at its former, Roseland, New Jersey, address. A postal forwarding order was in effect at that time, so Subcarrier received the notice at its new address. Subearrier responded to the notice by tendering a check in the proper amount and enclosing a letter with the check again advising the sheriff of Subcarrier’s new address. Additionally, the check tendered in payment of the delinquent taxes bore Sub-carrier’s new address.
Nevertheless, when property tax statements were issued for the 1998 tax year, the sheriff once again mailed Subcarrier’s statement to its old Roseland, New Jersey, address. Thereafter, in September 1998, the sheriff mailed a notice of delinquency due to Subcarrier’s failure to pay the 1998 property tax. As before, the sheriff mailed the notice to Subearrier’s old Roseland, New Jersey, address. By this time the postal forwarding-order had expired and the statement was returned to the sheriffs office with a stamp stating “[ujndeliverable, [fjorwarding order expired.”
On November 15, 1999, a tax lien sale was conducted by the Preston County Sheriff. Mr. Patrick Nield, Sheriff of Mineral County, West Virginia, a Defendant below and one of the Appellants (hereinafter referred to as “Sheriff Nield”), purchased the tax lien for the property for the amount of $436.38. Thereafter, in late 2000, Sheriff Nield engaged attorney Neil Reed, a third-party defendant below, to research the title to the property and to otherwise assist Sheriff Nield in obtaining a tax deed to the property. One of the requirements for obtaining a tax deed is to provide notice of the right to redeem pursuant to W. Va.Code §§ 11A-3-19 (1998) (Repl.Vol.2005), 11A-3-21 (1998) (Repl.Vol.2005), and 11A-3-22 (1995) (Repl.Vol.2005). To facilitate proper notice to Sub-earrier, Sheriff Nield contacted the West Virginia Secretary of State’s office to obtain Subcarrier’s current mailing address. The only address on record for Subearrier was the old, Roseland, New Jersey, address. Therefore, the county clerk mailed the notice to Subcarrier’s old, Roseland, New Jersey, address. As expected, the notice of the right to redeem sent to Subcarrier was returned stamped “[u]ndeliverable, [fjorward-ing order expired.” Thereafter, in January 2001, the notice of right to redeem was published in the Preston County News and the Preston County Journal, pursuant to W. Va. Code § 11A-3-22, the statute that provides, inter alia, for serving notice on an out-of-state landowner whose address “cannot be discovered by due diligence.”
On or about April 12, 2001, Sheriff Nield assigned his tax lien to himself, his son Ronald Nield, and John B. Lusk, defendants below and appellants. On the same date, the county clerk issued a tax deed for the subject property naming Sheriff Nield, Ronald Nield and John Lusk as the grantees. Also on that day, Sheriff Nield went to the property and observed a sign attached to a fence surrounding the telecommunications tower which displayed Subcarrier’s name, current address and phone number. The circuit court found that it was undisputed that this sign had been present on the property since at least August 1999. Sheriff Nield then called Sub-carrier and informed it that he possessed a tax deed to the property.
In July 2001, Sheriff Nield, Ronald Nield and John Lusk conveyed the property to LN & N Investments, LLC. Sheriff Nield, Ronald Nield and John Lusk are the sole principals of LN & N (hereinafter collectively referred to as “the defendants”).
Then, on September 3, 2002, Subcarrier filed suit to set aside the tax deed. The defendants filed an answer and counterclaim seeking recovery of damages equal to the amount of income Subcarrier had received from contracts involving the use of the telecommunications tower.
Subearrier filed a motion for summary judgment on June 26, 2003, claiming that there was no question of fact that the defendants had failed to exercise due diligence in obtaining Subcarrier’s correct address for providing notice of the right to redeem, and further asserting that the tax deed was voidable as a matter of law pursuant to W. Va.Code § 11A-3-6(a) (1994) (Repl.Vol.2005), which prohibits sheriffs from purchasing tax liens. The circuit court denied the motion by order entered October 15, 2003, finding there was a genuine question of material fact on the issue of whether the defendants had exercised due diligence. The circuit court additionally found that the issue of whether Sheriff Nield was prohibited from purchasing the tax lien was a question of first impression in West Virginia, and held “in abeyance its ruling regarding whether the tax lien purchased by Defendant Patrick Nield, and the tax deed issued to Defendants pursuant thereto, are voidable pursuant to West Virginia Code § 11A-3-6(a).”
The case was further developed over the next year and Subcarrier renewed its motion for summary judgment on July 26, 2004. By order entered October 25, 2004, the Circuit Court of Preston County granted summary judgment to Subearrier based upon its finding that there was no question that defendants had failed to make a reasonable inquiry that could and would have revealed the correct mailing address for the notice requirements set forth in W. Va.Code § 11A-3-22. It is from this order that the defendants now appeal.
II.
STANDARD OF REVIEW
This case is before us on appeal from an order granting summary judgment. “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). When undertaking our plenary review, we apply the same standard for granting summary judgment as would be applied by a circuit court. Specifically,
“ ‘[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 Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).
Syl. pt. 2, Painter. We further observe that “[t]he circuit court’s function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial.” Syl. pt. 3, Painter.
Finally, because we herein address the proper application of a statute, we note 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.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). With these various principals in mind, we proceed to our discussion of the issues raised in this appeal.
III.
DISCUSSION
In this case, notice to Subearrier of its right to redeem the property at issue was provided by publication after the mailed notices were returned as undeliverable. In granting summary judgment in favor of Sub-carrier, the circuit court noted that under W. Va.Code § 11A-3-22, a nonresident may be served via notice by publication only “as a substitute for actual notice where a current, valid address for the nonresident ‘cannot be discovered by due diligence.’ ” (Citation omitted). The circuit court concluded that “a reasonable inquiry by the individual Defendants could and would have revealed the correct mailing address of the Plaintiff at which Plaintiff would have received the notice of its right to redeem the subject property as is required by West Virginia law.”
On appeal, the defendants argue that the sole issue before this Court is whether the circuit court erred in granting summary judgment in favor of Subearrier based upon its determination that the defendants failed to make a reasonable inquiry to discover Subcarrier’s correct mailing address for the notice requirements set forth in W. Va.Code § 11A-3-22. The defendants assert that they satisfied the § 11A-3-22 requirement for “due diligence.”
We need not reach the issue raised by the defendants, however, as we find that summary judgment was proper on grounds other than those asserted by the circuit court.
In Williams v. Precision Coil, Inc., [194 W.Va. 52, 459 S.E.2d 329 (1995) ], we acknowledged that a grant of summary judgment may be sustained on any basis supported by the record. Thus, it is permissible for us to affirm the granting of summary judgment on bases different or grounds other than those relied upon by the circuit court.
Gentry v. Mangum, 195 W.Va. 512, 519, 466 S.E.2d 171, 178 (1995) (footnote omitted).
The dispositive issue in this case is the question of whether Sheriff Nield is prohibited by W. Va.Code § 11A-3-6(a) from purchasing a tax lien or receiving a tax deed. To answer this question, we look to the relevant statute, while mindful that, “[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).
W. Va.Code § 11A-3-6(a) states:
No sheriff, clerk of the county commission or circuit court, assessor, nor deputy of any of them, shall directly or indirectly become the purchaser, or be interested in the purchase, of any tax lien on any real estate at the tax sale or receive any tax deed conveying such real estate. Any such officer so purchasing shall forfeit one thousand dollars for each offense. The sale of any tax lien on any real estate, or the conveyance of'such real estate by tax deed, to one of the officers named in this section shall be voidable, at the instance of any person having the right to redeem, until such real estate reaches the hands of a bona fide purchaser.
(Emphasis added). We find nothing ambiguous about this statute’s prohibition against sheriffs purchasing tax liens or receiving tax deeds. Therefore, we may not construe its language. “A statute is open to construction only where the language used requires interpretation because of ambiguity which renders it susceptible of two or more constructions or of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.” Sizemore v. State Farm Gen. Ins. Co., 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal quotations and citation omitted). Stated otherwise, “[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, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970). See also Syl. pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968) (“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.”); 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) (“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.”); 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.”). Under the plain language of W. Va.Code § 11A-3-6(a), “[n]o sheriff,” may purchase a tax lien or receive a tax deed.
The defendants argue, however, that when W. Va.Code § 11A-3-6(a) is read in the context of the other sections of the West Virginia Code that make up Article 3 of Chapter 11A, it becomes clear that the Legislature intended to prohibit from purchasing a tax lien or receiving a tax deed only the sheriff of the county in which the tax sale is being conducted. The defendants are correct that a statute must be read in the context of other sections of the code pertaining to the same subject matter. “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.” Syl. pt. 3, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975). See also Syl. pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907 (1975) (“Statutes which relate to the same persons or things, or to the same class of persons or things, or statutes which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent. Accordingly, a court should not limit its consideration to any single part, provision, section, sentence, phrase or word, but rather review the act or statute in its entirety to ascertain legislative intent properly.”). However, “ ‘a related statute cannot be utilized to create doubt in an otherwise clear statute.’ ” Berkeley County Pub. Serv. Sewer Dist. v. West Virginia Pub. Serv. Comm’n, 204 W.Va. 279, 287, 512 S.E.2d 201, 209 (1998) (citations omitted). While we agree that in this instance it is proper to consider W. Va.Code § 11A-3-6(a) in light of its surrounding statutes, we disagree with the defendant’s position that such a reading leads to the conclusion that “[n]o sheriff,” as used in W. Va.Code § 11A-3-6(a), is actually a reference to only the sheriff of a particular county.
A thorough examination of Article 3 of Chapter 11A of the West Virginia Code plainly reveals that the Legislature refers to “sheriff’ in both specific and general forms. When a provision applies to a specific sheriff, e.g., the sheriff conducting a tax sale, the Legislature indicates as much by utilizing the phrase “the sheriff.” See, e.g., W. Va.Code § 11A-3-2(a)(2000) (Repl.Vol.2005) (“On or before the tenth day of September of each year, the sheriff shall prepare a second list of delinquent lands, which shall include all real estate in his county remaining delinquent as of the first day of September, together with a notice of sale,....”) (emphasis added); W. Va.Code § 11A-3-2(b) (“no less than thirty days prior to the sale the sheriff shall send a notice of the delinquency ....”) (emphasis added); W. Va.Code § 11A-3-3(a) (1995) (Repl.Vol.2005) (“unless he shall have filed a statement declaring such interest with the sheriff”) (emphasis added); W. Va.Code § 11A-3-5(a) (2000) (Repl.Vol.2005) (“The tax lien on each unredeemed tract or lot, or each unredeemed part thereof or undivided interest therein shall be sold by the sheriff. ...’’) (emphasis added); W. Va.Code § 11A-3-7(a) (1994) (Repl.Vol.2005) (‘Whenever it shall appear to the sheriff that any real estate included in the list has been previously conveyed by deed and no tax thereon is currently delinquent, ,...”) (emphasis added); W. Va.Code § 11A-3-20 (2005) (Repl.Vol.2005) (“Upon receipt of the abstract or certificate, the sheriff shall cause the moneys so paid to be refunded. Upon refund, the sheriff shall inform the assessor of the erroneous assessment for the purpose of having the assessor correct the error.”) (emphasis added); W. Va.Code § 11A-3-24(b) (1998) (Repl.Vol.2005) (“following the sheriffs sale as provided in section twenty-three [§ 11A-3-23] of this article, the sheriff shall deposit the money received in the sale of tax lien surplus fund provided by section ten of this article.”) (emphasis added); W. Va.Code § 11A-3-32(a) (1994) (Repl.Vol. 2005) (“The sheriff shall keep in a separate fund the proceeds of all redemptions and sales paid to him under the provisions of this chapter-”) (emphasis added).
However, when a reference is to sheriffs generally, terms such as “a sheriff,” “each sheriff,” “any sheriff,” or, of significance to the instant case, “no sheriff,” are used. See e.g., W. Va.Code § 11A-3-5(b) (“Each sheriff is immune from liability if a loss or claim results from the sale of a tax lien conducted pursuant to the provisions of this article _”) (emphasis added); W. Va.Code § 11A-3-11(b) (1994) (Repl.Vol.2005) (“Any sheriff who fails to prepare and return the list of sales, suspensions, redemptions and certifications within the time required by this section shall forfeit not less than fifty nor more than five hundred dollars,_”) (emphasis added); W. Va.Code § 11A-3-18(a) (2000) (Repl.Vol.2005) (“No lien upon real property evidenced by a tax certificate of sale issued by a sheriff on account of any delinquent property taxes may remain a lien thereon for a period longer than eighteen months after the original issuance thereof.”) (emphasis added).
Thus, Article 3 itself demonstrates that if the Legislature had intended W. Va. Code § 11A-3-6(a) to apply so as to prohibit only the sheriff conducing the sale from buying a tax lien, then it would have made a specific reference to the sheriff. Instead, the Legislature proclaimed that “[no] sheriff’ shall purchase a lien or receive a tax deed. We are bound to presume that by plainly stating “[n]o sheriff,” the Legislature meant no sheriff. “ ‘[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.’ ” Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 312, 465 S.E.2d 399, 414 (1995) (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391, 397 (1992)).
While a statute that applies to prohibit only the sheriff of the county in which the tax sale is being conducted from purchasing a tax lien or receiving a tax deed might be perfectly reasonable, such a limitation is simply not included in W. Va.Code § 11A-3-6(a), and this Court is not authorized to place it there.
“ ‘[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)). ([E]mphasis 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).
Based upon the foregoing, we hold that W. Va.Code § 11A-3-6(a) (1994) (Repl. Vol.2005) is plain in stating that “No sheriff, ... shall directly or indirectly become the purchaser, or be interested in the purchase, of any tax lien on any real estate at the tax sale or receive any tax deed conveying such real estate.” There is nothing in this statute to limit its prohibition to only the sheriff conducting the tax sale.
It is not disputed that Sheriff Nield is the sheriff of Mineral County, thus he is prohibited from being a purchaser of a tax lien or receiving a tax deed conveying such real estate. The defendants further assert, however, that because the property has been sold to LN & N Investments, LLC, the deed is no longer voidable. In support of this argument, the defendants direct our attention to the last provision of W. Va.Code § 11A-3-6(a), which states:
The sale of any tax lien on any real estate, or the conveyance of such real estate by tax deed, to one of the officers named in this section shall be voidable, at the instance of any person having the right to redeem, until such real estate reaches the hands of a bona fide purchaser.
(Emphasis added). The defendants contend that LN & N Investments, LLC, is a bona fide purchaser. We disagree. The statute does not define the term bona fide purchaser, we therefore afford the term its common, ordinary meaning. “In the absence of any definition of the intended meaning of words or terns used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used.” Syl. pt. 1, Miners in Gen. Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W.Va. 162, 291 S.E.2d 477 (1982).
This Court long ago held that “[a] bona fide purchaser is one who actually purchases in good faith.” Syl. pt. 1, Kyger v. Depue, 6 W.Va. 288 (1873). We have also described a bona fide purchaser of land as “ ‘one who purchases for a valuable consideration, paid or parted with, without notice of any suspicious circumstances to put him upon inquiry.’ ” Stickley v. Thorn, 87 W.Va. 673, 678, 106 S.E. 240, 242 (1921) (quoting Carpenter Paper Co. v. Wilcox, 50 Neb. 659, 70 N.W. 228 (1897)). See also Simpson v. Edmiston, 23 W.Va. 675, 680 (1884) (“[A] bona fide purchaser is one who buys an apparently good title without notice of anything calculated to impair or affect it.”); Black’s Law Dictionary 1249 (7th ed.1999) (defining a bona fide purchaser as “[o]ne who buys something for value without notice of another’s claim to the item or of any defects in the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.”).
In the instant ease, we are presented with the unusual circumstance of a person who, by virtue of his position as sheriff, is prohibited by law from purchasing tax liens or receiving tax deeds. The question we must answer is whether a corporation may hold such a deed as a bona fide purchaser when the sheriff is a principal of the corporation. Given the foregoing definitions of a bona fide purchaser, we find that such a corporation may not enjoy bona fide purchaser status. It would defy logic and justice to allow a sheriff to own, as the principal of a corporation, that which he is prohibited by law from owning. Moreover, this Court has recognized that one who purchases real estate from a tax-purchaser can never be a bona fide purchaser. In Simpson v. Edmiston, the Court explained
A tax sale is the culmination of proceedings which are matters of record; and it is a reasonable presumption of law, where one acquires rights which depend upon matters of record, he first makes search of the record in order to ascertain whether anything shown thereby would diminish the value of such rights, or tend in any contingency to defeat them. A tax-purchaser, consequently, cannot be in any strict technical sense a bona fide purchaser, as that term is understood in the law. And for the same reason his vendee cannot be such purchaser; because a bona fide purchaser is one who buys an apparently good title without notice of anything calculated to impair or affect it; but the tax-purchaser and his vendees are always deemed to have such notice when the record shoivs defects. They cannot shut their eyes to what has been recorded for the information of all concerned, and relying implicitly on the action of the officers, assume what they have done is legal because they did it.
23 W.Va. 675, 680 (emphasis added). Accordingly, we now hold that where a sheriff is among the principals of a corporation, the corporation cannot, for purposes of W. Va. Code § 11A-3-6(a) (1994) (Repl.Vol.2005), be deemed a bona fide purchaser of real estate that has been acquired by virtue of a tax deed.
The record is clear that Sheriff Nield is one of three principals of LN & N Investments, LLC. Therefore, LN & N Investments, who purchased the property from the defendants, cannot be deemed a bona fide purchaser of the real estate at issue herein. In the absence of a bona fide purchaser, the deed is “voidable at the instance of’ Subcar-rier. W. Va.Code § 11A-3-6(a). Accordingly, the circuit court did not err in granting summary judgment to Subcarrier, and setting aside the tax deed as void.
IV.
CONCLUSION
For the reasons set out in the body of this opinion, the order of the Circuit Court of Preston County, entered on October 25, 2004, is affirmed.
Affirmed.
. A telecommunications tower and a building housing equipment for the operation of the tower were located on the property.
. In July 1997, the Preston County Clerk had mailed the 1997 real estate tax ticket for the subject property. Because the deed transferring the realty was recorded after July 1996, the tax ticket was sent to the former owner of the realty, Skyline Communications, Ltd.
. The circuit court noted in its order that in his deposition of June 21, 2004, Patrick Nield “estimated the value of the subject property at between $100,000.00 and $300,000.00 and probably at the $150,000.00 level.”
. Notices were also sent to Skyline Communications, Ltd., who had sold the property to Subcar-rier, and to the trustees under a deed of trust on-the property. The trustees apparently received the notices, but did not discuss the same with Subcarrier.
.Subcarrier initially named as defendants Sheriff Nield, Ronald Nield and John Lusk. LN & N, LLC, was later added as a defendant by amended complaint.
. The defendants also filed a third-party complaint against attorney Neil Reed with respect to his services in obtaining the tax deed. No issues regarding this third-party suit are presently before this Court.
. The circuit court did not address the issue it had previously held in abeyance, i.e., whether the tax deed was voidable pursuant to W. Va.Code § 11A-3-6(a).
. Subcarrier has raised this issue in its cross assignment of error challenging the circuit court’s denial of its first motion for summary judgment. Due to the manner in which we resolve this case, it not necessary to address Sub-carrier’s cross-assignment of error involving the denial of that motion.
. We have also cautioned that,
"to say that because several statutes relate to the same subject, they must always be read in pari materia is an oversimplification of the rule. First, it is apparent that what is meant by statutes relating to the same subject matter is an inquiry that is answered by how broadly one defines the phrase ‘same subject matter.' Second, the application of the rule of in pari materia may vary depending on how integral the statutes are to each other. The rule is most applicable to those statutes relating to the same subject matter which are passed at the same time or refer to each other or amend each other. A diminished applicability may be found where statutes are self-contained and have been enacted at different periods of time. See generally 2A Sutherland Statutory Construction § 51.01 (4th ed. 1973)....”
Leary v. McDowell County Nat'l Bank, 210 W.Va. 44, 50, 552 S.E.2d 420, 426 (2001) (quoting Berkeley County Pub. Serv. Sewer Dist. v. West Virginia Pub. Serv. Comm’n, 204 W.Va. 279, 287, 512 S.E.2d 201, 209).
. Likewise, " '[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.' ” State ex rel. Blankenship v. Richardson, 196 W.Va. 726, 735, 474 S.E.2d 906, 915 (1996) (quoting Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 692, 408 S.E.2d 634, 642 (1991)). Indeed, " '[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[.]’ ” State v. Richards, 206 W.Va. 573, 577, 526 S.E.2d 539, 543 (1999) (quoting State v. General Daniel Morgan Post No. 548, 144 W.Va. 137, 145, 107 S.E.2d 353, 358 (1959)). | [
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PER CURIAM:
The West Virginia Division of Corrections and Huttonsville Correctional Center (collectively referred to herein as “Corrections”) appeal from a January 14, 2005 order of the Circuit Court of Randolph County, which reversed an April 3, 2003, decision of the West Virginia Education and State Employees Grievance Board (herein referred to as “Board”). In its April 3, 2003, decision, the Board held that the Appellee correctional officers at the Huttonsville Correctional Center had not met their burden of proving a prima facie case of discrimination. Appel-lees had filed a grievance against corrections claiming discrimination because they did not receive a five-percent salary increase that certain other correctional officers had received solely for completion of the mandatory Officers Apprenticeship Program (“OAP”). The Board found the Appellees were not similarly situated to the other correctional officers. The Board had found that the other correctional officers were entitled to the five-percent salary increase based upon the Board’s decision in Whorton v. Division of Corrections, Docket No. 96-CORR-078 (June 25,1996).
Appellees appealed the Board’s decision to the Circuit Court of Randolph County. The circuit court reversed the Board’s decision finding a prima facie case of discrimination had been established, that Whorton had not obligated Corrections to award a five-percent salary increase solely for completion of the OAP to any correctional officer, and that Corrections’ reliance upon Whorton was a pretext for discrimination. Finding discrimination had been established, the circuit court held that Appellees were entitled to a five-percent salary increase retroactive to their completion of the OAP, with interest. Corrections timely appealed the circuit court’s January 14, 2005, order to this Court. On September 8, 2005, we accepted Corrections’ appeal for further review. Upon consideration of the record created below, the parties’ written and oral arguments and pertinent legal authorities, we reverse the circuit court’s January 14, 2005, order and remand this matter for further proceedings as set forth herein.
I.
FACTUAL AND PROCEDURAL HISTORY
In 1994, the State of West Virginia undertook a process of reclassifying state employees, including correctional officers. During this reclassification process, Corrections made the previously voluntary OAP a re quirement for all correctional officers. At the time this requirement became effective on April 1, 1994, a number of correctional officers had completed the program voluntarily or were about to complete it. Persons classified as a Correctional Officer — I (“COI”) who had voluntarily completed the OAP were reclassified to a Correctional Officer— II (“CO-II”) and given a salary increase to the entry level CO-II salary unless the person’s salary exceeded that level, in which case no increase was initially provided. No consideration/salary adjustment was given to correctional officers classified at CO-II or higher who had completed OAP voluntarily. In response to complaints, Corrections thereafter provided an overall five-percent salary increase to all reclassified CO-II’s retroactive to April 1, 1994. Correctional officers who had attained a rank of CO-II or higher at the time of the reclassification and who had voluntarily completed the OAP, or were about to complete the same, filed a grievance in 1995 arising from the decision to award a five-percent salary increase to CO-I’s who had voluntarily completed the OAP prior to the new policy. Upon consideration of the grievants’ arguments, Corrections awarded them a prospective merit five-percent salary increase, effective September 1,1995.
Those grievants in the case known as Wharton pursued them claim to a Level IV hearing before the Board alleging discrimination because the reclassified CO-Is received a retroactive increase, while grievants’ increase was prospective only. The Board agreed with the grievants and held, in Whor-ton, that Corrections had no legal duty to award the reclassified CO-I’s a higher salary than that required by Division of Personnel regulations or to make the same retroactive to April 1, 1994. The Board likewise found that Corrections had no legal duty to grant grievants a salary increase for completion of the OAP. However, the Board went on to hold that once Corrections decided to grant a salary increase solely for the voluntary completion of the OAP, it was required to do so evenly among all those entitled to the increase. Therefore, Corrections’ decision to award the raise retroactively to one group and prospectively to another similarly situated group discriminated against the latter. Thus, pursuant to Whorton, the five-percent salary increase for correctional officers ranked higher than CO-I on April 1, 1994, who had voluntarily completed or were about to complete the OAP was made retroactive to April 1,1994.
The decision in Whorton was followed by Livesay v. Division of Corrections, 96-CORR-459 (November 4, 1997), which found discrimination arising from the failure to grant the grievants therein a five-percent salary increase for completion of the OAP. The Board rejected Corrections’ alleged nondiscriminatory reason that the OAP was required to be completed by all CO-I’s and upon completion, the CO-I would automatically be reallocated to CO-II (with additional salary) as pretextual. According to the Board, the reclassification therein was based upon a change in duties, not simply by completing the OAP. Citing Whorton, the Board found the grievants in Livesay entitled to a five-percent salary increase for completion of OAP.
Subsequent to the Whorton and Livesay decisions, Corrections implemented Policy Directive 442, effective April 1, 1998, specifically setting forth the salary adjustment for reclassification from a CO-I to a CO-II, including the prerequisite completion of the OAP. Policy Directive 442 was amended and reenacted as Policy Directive 145, effective December 1, 1999. Policy Directive 145 states, in pertinent part:
3. The Director of Training, Corrections Academy, shall request a certificate of completion of apprenticeship from the Bureau of Apprenticeship and Training upon the officer’s completion of the program.
c. The Certificate of Completion shall be the basis for initiating the process to reallocate the correctional officer to the appropriate classification in accordance with Section 4.07 of the WV Division of Personnel Administrative Rule.
d. Each incumb'ent shall be compensated as specified in Section 5.05 of such rule.
e. Additional pay or promotion shall not be effective until final approval of a WV Personnel Action Form WV-11.
The Division of Personnel rules cited in the policy directive govern position reallocation and pay on promotion.
Cecil Pritt was hired by Corrections sometime after 1994. He completed the OAP on June 23, 1998 after Corrections implemented Policy Directive 442, and was reallocated to CO-II on September 16, 1998, receiving a five-percent salary increase. Joseph Daniels began employment with Corrections in April 2000, completed the OAP on May 23, 2002, after Corrections amended Policy Directive 442 and reenacted it as Policy Directive 145, and was reallocated to CO-II on June 15, 2002, receiving a five-percent salary increase. On January 21, 2002, over three years after his reallocation to CO-II, Mr. Pritt, together with 22 other correctional officers, filed a grievance alleging discrimination because certain other employees had received an additional five-percent salary increase solely for completion of the OAP while they had not. Mr. Daniels filed a similar grievance on July 22, 2002, one month after his reallocation to CO-II. These grievances were denied at Levels I, II, and III. Prior to the Level IV Hearing, numerous other correctional officers at the Huttonsville Correctional Center joined the grievances, which were consolidated for Level IV hearing.
At the Level IV hearing, the correctional officers presented evidence that nine other correctional officers had received a five-percent salary increase solely for completion of the OAP since 1998. Each of those nine correctional officers were employed as correctional officers in April 1994 at a rank higher than CO-I and completed the OAP after it became a mandatory requirement. Corrections argued, and the Board found, as a matter of fact, the raises were given to those nine correctional officers pursuant to the Whorton decision. The Board also found that correctional officers who have been hired and who have completed the OAP after implementation of the 1998 policy directive have not received a separate salary increase solely for completion of the OAP. It appears from the record before this Court that no evidence was presented to the Board to demonstrate the date of hire of any grievant other than Mr. Pritt and Mr. Daniels, their rank, or the date they completed the OAP. Ultimately, the Board held the grievants had not established a prima facie case of discrimination in that they are not similarly situated to the class of employees entitled to a five-percent increase under Whorton.
The grievant correctional officers appealed to the Circuit Court of Randolph County arguing the Board’s decision was (1) contrary to law' or lawfully adopted rule or written policy of employer; (2) clearly wrong in light in view of the evidence on the record; and (3) arbitrary, capricious and an abuse of discretion. While conceding the applicable policy directive and administrative rules did not expressly authorize a five-percent salary increase for completion of the OAP, the griev-ants argued such an increase was likewise not expressly precluded. The circuit court accepted this argument and found a prima facie case of discrimination had been established. The circuit court further found Correction’s reliance on Whorton to be mere pretext for discrimination. In its conclusions of law, the circuit court found Corrections’ proffered legitimate, non-discriminatory reason for not awarding a five-percent salary increase for completion of the OAP to the grievants to be “pretextual” because (1) Policy Directive 145 and Rules 4.7 and 5.5 do not prohibit such an increase; and (2) even if they did prohibit it, Corrections should not have awarded such an increase to any employee regardless of hire date. The circuit court concluded neither Whorton nor Live-say obligate Corrections to award a five-percent salary increase solely for completion of the OAP to any employee. Therefore, the circuit court found that Corrections engaged in discrimination by awarding such an increase to some, but not all, correctional officers. Finding the correctional officers were entitled to a five-percent salary increase solely for completion of the now mandatory OAP, the circuit court remanded the matter to the Board for additional findings necessary to calculate the amount each was due and owing.
II.
STANDARD OF REVIEW
The instant matter involves the circuit court’s reversal of the Board’s decision, a decision made after a full evidentiary hearing and briefing by the parties. An appeal of a final Board decision to the circuit court is permitted on the grounds that the decision:
(1) Is contrary to law or a lawfully adopted rule or written policy of the employer;
(2) Exceeds the hearing examiner’s statutory authority;
(3) Is the result of fraud or deceit;
(4) Is clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(5) Is arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted abuse of discretion.
W. Va.Code § 29-6A-7(b) (1998). In light of the statutory standard, this Court held in Syllabus Point 1 of Cahill v. Mercer County Board of Education, 208 W.Va. 177, 539 S.E.2d 437 (2000), that:
[grievance rulings involve a combination of both deferential and plenary review. Since a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference. Plenary review is conducted as to the conclusions of law and application of law to the facts, which are reviewed de novo.
Further, we have concluded that:
[a] final order of the hearing examiner for the West Virginia Education and State Employees Grievance Board, made pursuant to W. Va.Code, 29-6A-1, et seq. [1988], and based upon findings of fact, should not be reversed unless clearly wrong.
Syllabus, Quinn v. W. Va. Northern Community College, 197 W.Va. 313, 475 S.E.2d 405 (1996). In reviewing a circuit court decision, this Court is bound by the same standards which the circuit court was obligated to follow in reviewing the Board’s decision. Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995); Cahill, 208 W.Va. at 180, 539 S.E.2d at 440. Thus, to the extent the Board’s decision is based upon a factual determination, it may not be reversed unless such determination is clearly wrong.
III.
DISCUSSION
In reversing the Board’s decision, the circuit court determined that the correctional officers had established a prima facie case of discrimination. Our statutes governing state employee grievances define discrimination as “any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing by the employees.” W. Va.Code § 29-6A-2(d) (1988). When discussing an identical definition of discrimination contained within the statutes governing educational employees, this Court recently noted:
the policy underlying uniformity and discrimination claims under the education statutes is to prevent discrimination against similarly situated education employees regardless of the basis for discrimination. The crux of such claims is that the complainant was treated differently than similarly situated employees!.]
Board of Education of the County of Tyler v. White, 216 W.Va. 242, 246, 605 S.E.2d 814, 818 (2004). Accordingly, a critical component of any discrimination claim is the determination that the person or persons alleging improper discrimination are similarly situated to those allegedly receiving preferential treatment.
A similarly situated determination is necessarily factual in nature. See, Graham v. Long Island R.R., 230 F.3d 34, 39 (2nd Cir.2000) (“Whether two employees are similarly situated ordinarily presents a question of fact for the jury.”); George v. Leavitt, 407 F.3d 405, 414-15 (D.C.Cir.2005) (quoting Graham); Mandell v. County of Suffolk, 316 F.3d 368, 379 (2nd Cir.2003). In the instant matter, the Board specifically found the evidence on the record did not demonstrate that any grievant was similarly situated to the correctional officers who received a five-percent raise solely for completion of the OAP. In order to reverse the Board’s finding that grievants failed to establish a prima facie case, the circuit court must find the Board’s finding that the grievants were not similarly situated to those allegedly receiving preferential treatment to be clearly wrong. The circuit court did not make such a finding.
Absent the circuit court finding that the factual determination by the Board was clearly wrong in light of the evidence on the record, the circuit court erred in finding that the grievants had established a prima facie ease of discrimination. This Court’s independent review of the record before the Board and the circuit court does not support a determination that the Board’s finding that grievants were not similarly situated to those receiving a five-percent increase for completion of the OAP was clearly wrong.
The evidence on the record indicates that the only correctional officers who received a five-percent salary increase solely for completion of the OAP after implementation of the 1998 policy directive were employed as correctional officers in 1994 at a rank higher than CO-I and that they completed the OAP after it became a mandatory requirement. The Board found that those officers were entitled to such an increase pursuant to prior Board decisions. The circuit court disagreed, finding that prior Board decisions did not mandate the increase and that Corrections’ reliance upon the same to award salary increases to certain correctional officers was a mere pretext for discrimination. The question of pretext, however, only arises once a prima facie case of discrimination has been established. Having found that the circuit court erred in reversing the Board’s finding that a prima facie case of discrimination had not been established because grievants were not similarly situated to those allegedly receiving preferential treatment, we likewise find that the circuit court erred in deeming Corrections’ reliance upon prior Board decisions, the policy directive and administrative rules to be mere pretexts for discrimination. The question of pretext was not properly before the circuit court.
We, thus, reverse the decision of the Circuit Court of Randolph County and reinstate the Board’s April 7, 2003 Decision. However, we note from our review of the record in this matter that evidence regarding rank, dates of employment and completion of the OAP appears to have been presented to the Board only on behalf of Mr. Pritt and Mr. Daniels. To the extent the remaining seventy-eight (78) correctional officers who joined this grievance can establish that they were employed as correctional officers at a rank higher than CO-I in 1994, that they completed the OAP after it became a mandatory requirement and that they have not received a five-percent salary increase for completion of the OAP, such individuals may be able to establish that they are similarly situated to those receiving such an increase and establish a prima facie case of discrimination. We, therefore, remand this matter to the circuit court with directions that this case be remanded to the Board for the taking of evidence and the entry of a determination as to whether the remaining 78 grievants are similarly situated to those receiving a five-percent salary increase for completion of the OAP and are entitled to a similar salary increase.
IV.
CONCLUSION
Accordingly, the Circuit Court of Randolph County’s January 14, 2005, order is reversed and the West Virginia Education and State Employees Grievance Board’s April 7, 2003, decision is reinstated, with the caveat that the Board must determine whether any of the remaining 78 grievants can satisfy the similarly situated requirement and establish a prima facie case of discrimination. This matter is remanded to the circuit court with directions that this case be remanded to the West Virginia Education and State Employees Grievance Board for further proceedings consistent with this opinion.
Reversed and Remanded
. Effective April 1, 1994, all newly hired correctional officers were required to enroll in the OAP and complete it within two years of enrollment. Current correctional officers who had not previously enrolled in the program voluntarily were required to do so pursuant to the new policy.
. Of the four levels of correctional officer classifications CO-I is the entry level correctional officer classification.
.Under Policy Directive 442, reallocation or promotion could not take effect without a certificate of completion of the OAP. Salary increases were to be governed by applicable Division of Personnel rules.
. The policy directive refers to Division of Personnel administrative rules 4.07 and 5.05. These rules are currently codified as 143 W. Va.C.S.R. 1-4.7 (2005) and 143 W. Va.C.S.R. 1-5.5 (2005).
. It appears from the record before this Court that 78 correctional officers, in addition to Mr. Pritt and Mr. Daniels, are currently parties to this grievance proceeding.
. W. Va.Code § 18-29-2(m) (1992), contained within the Article governing grievance proce dures for education employees, defines "discrimination” as "any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing by the employees.”
. We pause to note that we are making no determination as to whether the prior Board decisions require Corrections to continue to provide five-percent salary increases solely for completion of the OAP to correctional officers employed in 1994 at a rank higher than CO-I and who completed the OAP after it became a mandatory requirement. The Board found, as a matter of fact, that Corrections continued to give such increases only to those meeting that criteria. Even if Corrections is mistaken as to its legal duties under the prior Board decisions, this Court will not institutionalize such a mistake. We will only require Corrections to act consistently with respect to those fulfilling the applicable criteria regarding date of hire, rank and OAP completion. | [
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DAVIS, Chief Justice:
In three appeals consolidated for purposes of rendering this opinion, Pennsylvania Blue Shield [hereinafter “PBS”], Blue Cross of Western Pennsylvania [hereinafter “BCWP”] and the United States of America [hereinafter “the United States”] challenge orders entered by the Circuit Court of Kanawha County in liquidation proceedings involving Blue Cross Blue Shield of West Virginia [hereinafter “BCBSWV”]. PBS and BCWP raise various issues, however, each complain that it did not receive adequate notice of the recommended decision of the court-appointed Referee regarding its respective claim, which decisions were adopted by the circuit court without a hearing. We find this issue is dispositive of the appeals of these two companies. Based upon our conclusion that the lower court failed to follow the mandatory directives of W. Va.Code § 33-24-25 (1990) (Repl.Vol.1996), we remand these two cases for additional proceedings consistent with that governing statute. In the third appeal herein consolidated, the United States first argues that the Receiver improperly applied state law and classified its late-filed proofs of claim in Class VII for purposes of distributing the BCBSWV liquidated estate. We find that the West Virginia priority scheme for late-filed claims, as expressed in W. Va.Code §§ 33-24-27(g) (1996) (Supp.1998) and 33-24-37(b) (1990) (Repl.Vol.1996), does not exceed state power, and furthermore, under the McCarran-Ferguson Act, 15 U.S.C. §§ 1011 et seq., W. Va.Code § 33-24-27 reverse preempts the federal priority statute asserted by the United States. Therefore, the classification assigned by the Receiver to the late-filed claims of the United States, which was subsequently adopted by the circuit court, was correct. Finally, the United States contends that the circuit court erred in finding that BCBSWV was not party to a contract entered between the Office of Personnel Management and the Blue Cross Blue Shield Association. We find that the Blue Cross Blue Shield Association acted as an agent for BCBSWV when it entered the contract. Therefore, the order appealed by the United States is affirmed in part, reversed in part, and remanded for further proceedings.
I.
STATEMENT OF FACTS
This case pertains to liquidation proceedings involving BCBSWV. By an “ORDER OF'LIQUIDATION AND INJUNCTION” entered in the Circuit Court of Kanawha County on October 26, 1990, BCBSWV was placed into receivership. Hanley C. Clark, Insurance Commissioner of the State of West Virginia, was named as Receiver.
Three separate appeals have been filed in this Court challenging certain aspects of the BCBSWV liquidation proceedings below. The three parties appealing are PBS, BCWP and the United States. Because these appeals all relate to the BCBSWV liquidation proceedings, we have consolidated them for the purpose of rendering this opinion. However, the facts relevant to the appeals of PBS and BCWP differ from those relevant to the appeal of the United States. Therefore, we first relate the facts relevant to the appeals of PBS and BCWP. The facts pertaining to the appeal of the United States are reviewed thereafter.
A
Pennsylvania Blue Shield and Blue Cross of Western Pennsylvania
The facts relevant to the appeals of PBS and BCWP are similar, and are described together in this section of the opinion. Appellants PBS and BCWP, and the appellee BCBSWV, are all members of the Blue Cross and Blue Shield Association [hereinafter “the Association”], a national organization to which all Blue Cross and Blue Shield plans belong.
The Association oversees the national system of Blue Cross Blue Shield plans. According to the parties, regional “Blue” plans interact with each other to provide, inter alia, health insurance coverage and claims servicing across state lines. This interaction is necessary to accommodate employer-subscribers having employees in two or more states. These employer-subscribers, who must interact with two or more “Blue” plans in order to provide health insurance for their employees, are referred to as “National Accounts.”
At the time liquidation of BCBSWV was ordered, agreements were in place between BCBSWV and PBS, and between BCBSWV and BCWP, to administer health claim benefits for various National Accounts. In connection with these agreements, PBS and BCWP made certain payments, referred to as “advance deposits,” to BCBSWV.
After BCBSWV was placed into receivership, the Receiver took control of its assets and liabilities (the liquidation estate) pursuant to W. Va.Code § 33-24-1 et seq. In accordance with the statutory requirements, and after consultation with certain potential claimants, the Receiver filed a liquidation plan in the circuit court. The court approved the plan, which included a procedure whereby parties holding claims against the liquidated estate could assert them by filing proofs of claim. Pursuant to the court-approved plan, proofs of claim would be reviewed by. the Receiver, who would then issue notices of determination to each claimant. Thereafter, the claimants could submit objections for resolution by a court-appointed referee.
In accordance with the court-approved procedure, PBS and BCWP each filed a proof of claim in which they sought to recover the amount of their advance deposits. In addition, PBS’s proof of claim sought $77,-224.02 for payments made to Pennsylvania health care providers for the satisfaction of obligations incurred by BCBSWV, and $47,-153.70 as reimbursement for funds made available by PBS to cover dishonored health care claims payment checks issued by BCBSWV.
The Receiver made his determinations regarding the proofs of claim filed by PBS and BCWP, and sent each company a notice of determination. The notices revealed that the Receiver had effectively categorized PBS’s and BCWP’s claims as Priority Class V, under W. Va.Code § 33-24-27 (1996) (Supp. 1998), for purposes of payment. The two companies timely filed objections to the Receiver’s determinations. The disputed claims were then referred to a court-appointed Referee.
Presumably to assist in the management of the numerous disputed claims to be addressed by the Referee, the circuit judge, by order entered June 16,1993, adopted specific rules to guide the proceedings before the Referee. These rules were titled “CLAIMANTS’ RULES OF PROCEDURE BEFORE REFEREE” [hereinafter “Claimants’ Rules”]. The circuit court order adopting the Claimants’ Rules stated that they “shall govern all proceedings and hearings to be held before the Court appointed Referee pursuant to the Amended Reference Order entered by the Court on March 12,1993.”
Pursuant to the Claimants’ Rules, the Referee conducted hearings regarding the disputed claims of PBS and BCWP and, sometime thereafter, rendered a recommended order in each case. Each recommended order advised the circuit court to reject the objections to the Receiver’s determinations made by PBS and BCWP.
The Claimants’ Rules required notice to the “parties of record” when the Referee’s recommended order was filed in the circuit court. The relevant portion of the rules states: “The original of the Recommended Order will be filed with the Circuit Clerk, and notice of the filing will be made to the parties of record.” (Emphasis added).
A certificate of service attached to the Referee’s recommended order issued in response to the objections filed by PBS indicated that the Referee served copies of his recommended order by U.S. Mail on various local counsel for the interested parties on December 23, 1996. The certificate of service further indicates that copies of the order were not served upon PBS individually or its out-of-state counsel. No objections to the recommended order were subsequently filed in the circuit court. Therefore, the court adopted, in full, the recommended order and entered the same as its final order on January 21, 1997.
A similar course of events occurred with regard to BCWP. The certificate of service attached to the Referee’s recommended order issued in response to the objections filed by BCWP revealed that, also on December 23, 1996, the Referee served copies of this recommended order by U.S. Mail on various local counsel for the interested parties. As with the PBS recommended order, no copies were served upon BCWP individually or its out-of-state counsel. In the absence of any objections to the recommended order, the circuit court adopted the order and entered the same as its final order on January 13, 1997.
PBS and BCWP both claim that they did not receive notice or have knowledge that the Referee had made his recommendations regarding their objections until January 20,
1998. Thus, PBS received notice one day prior to the circuit court’s January 21, 1997, entry of its final order denying PBS’s objections, and BCWP received notice seven days following the court’s January 13, 1997, entry of its final order rejecting BCWP’s objections.
As evidenced by the aforementioned certificates of service that were attached to the Referee’s recommended decisions, notice regarding the recommended decisions and their submission to the circuit court had been sent to James McKowen, local counsel for PBS and BCWP, at a law firm with which he no longer associated. However, evidence contained in the record indicated that formal notice of McKowen’s change of address was not attempted until January 21,1997, the day after McKowen received notice of the Referee’s recommended decisions.
It is from the circuit court’s final orders of January 21, 1997, and January 13, 1997, respectively, that PBS and BCWP now appeal to this Court.
B.
The United States of America
The appeal of the United States involves claims against the BCBSWV liquidated estate made by three separate agencies of the United States government. While some of the United States’ claims involve more than one of the various agencies, the facts with respect to each agency are different. Consequently, the relevant facts are provided separately for each agency. Following the separate statements of fact, we briefly review the procedural history that brought the United States’ claims before us. Each of the three issues raised by the United States will be addressed following a discussion of the issues raised by PBS and BCWP.
The following background information pertaining to each of the federal agencies filing claims against the BCBSWV liquidated estate was provided by the United States, and was not disputed by the Receiver.
1. Claim of the Department of Veterans Affairs
A number of medical centers operated under the Department of Veterans Affairs [hereinafter “VA”] submitted proofs of claim prior to the deadline for timely filing such claims. Other VA medical centers did not meet the deadline, but filed their proofs of claim after that date. Notices of determination subsequently issued by the Receiver placed timely-filed VA claims into priority Class II under W. Va.Code § 33-24-27, as amended. Late-filed claims were placed into priority Class VII of the amended statute. The dollar amounts of the claims have not yet been quantified.
2. Claim of the Health Care Financing Administration
The Health Care Financing Administration [hereinafter “HCFA”] is an agency within the Department of Health and Human Services. The HCFA administers the Medicare program, which provides health insurance for the elderly, disabled and those suffering from end-stage renal disease. In connection with the BCBSWV liquidation proceedings, HCFA filed a proof of claim related to its administration of the Medicare program. The claim submitted by HCFA had two components.
The first component of HCFA’s claim arose from its contract with BCBSWV as an intermediary to process Medicare claims. The United States submits that from 1985 through 1991, BCBSWV contracted with HCFA to act as an intermediary to process and pay Part A Medicare claims, which provide insurance for inpatient institutional services, home health services, and other post-hospital services. During this time, HCFA reimbursed BCBSWV for its administrative costs pursuant to the contract. However, upon completion of its audit, HCFA disallowed a total of $12,962.00 in administrative costs. According to the United States, the Medicare statute and regulations authorize recovery of these overpayments.
Under the Medicare intermediary contract, BCBSWV is also obliged to refund pension assets in excess of actuarial liability when its contract with HCFA is terminated. Medicare made excess pension contributions in the amount of $617,644.00 to cover its pension liability for BCBSWV employees. In addition, $76,799.00 of claimed pension expenses were disallowed by HCFA auditors. Consequently, the United States asserts that the total overpayments, including disallowed administrative payments, excess pension contributions, and disallowed pension expenses, must be refunded to Medicare in full. However, the Receiver’s notice of determination gave no separate class determination to this portion of HCFA’s claim, nor was the disputed claim submitted to the Referee for adjudication.
The second component of the HCFA’s claim arose under the Medicare Secondary Payer [hereinafter “MSP”] statute. See 42 U.S.C. § 1395y(b) (1994) (1994 ed.). According to the United States, The MSP statute applies to Medicare beneficiaries who have alternative sources of payment for health care services, including those provided through private insurers like BCBSWV. Where an alternative source of payment exists, the MSP statute mandates that the alternative source act as the primary insurer, with Medicare acting as the secondary insurer. Under the MSP statute, when Medicare erroneously pays a claim that should have been paid by a primary insurer, it has the right to recover such payments from the primary insurer. Moreover, the United States contends that it is subrogated to the rights of the individual or entity entitled to payment from the third-party payer.
The HCFA claims that BCBSWV is an entity responsible for payment under the MSP statute, both in its capacity as a private primary insurer and as a third-party administrator of group health insurance plans. The amount of the MSP portion of the HCFA’s claim is approximately $570,000. The BCBSWV liquidation Receiver placed this portion of the HCFA’s claim into the equivalent of priority Class V under W. Va. Code § 33-24-27, as amended, with claims of general creditors.
3. Claim of Office of Personnel Management
A contract, designated Contract No. C.S. 1039, was executed between the Office of Personnel Management [hereinafter “OPM”] and the Blue Cross and Blue Shield Association [hereinafter “the Association”] for provision of health care services for federal employees. The United States submits that the Association executed the agreement as an agent for BCBSWV. In addition, the Association entered a “Participation Agreement” with BCBSWV, which set forth the obligations of the Association and BCBSWV regarding the OPM contract. After BCBSWV was placed into liquidation, the OPM filed a proof of claim arising out of the aforementioned contract it executed with the Association. However, on the recommendation of the Referee, the OPM’s claim was disallowed in full by the circuit court based upon its ruling that OPM’s contract was with the Association, and not with BCBSWV, and that BCBSWV was merely a third-party administrator of the contract between the Association and OPM.
4. Procedural History of United States’ Claims
The United States of America, acting on behalf of the above-named agencies, timely filed objections to the provisional plan of distribution proposed by the Receiver, and to the Receiver’s notices of determination regarding the above-described federal claims. The objections were directed to the court-appointed Referee, who conducted a hearing on several preliminary legal issues. The Referee subsequently tendered a recommended order rejecting the United States’ arguments on each of the preliminary legal issues raised. Because it addressed only preliminary issues, the recommended order did not conclusively resolve all of the United States’ claims. By final order entered on January 21, 1997, the Circuit Court of Kana-wha County adopted, in full, the recommended order of the Referee resolving the preliminary issues. It is from this January 21, 1997, order that the United States now appeals.
II.
APPELLATE JURISDICTION AND STANDARD OF REVIEW
A.
Appellate Jurisdiction
Before we address the substantive issues raised by the parties, we must first explore the threshold question of our jurisdiction to consider these appeals. PBS and BCWP complain that the circuit court erred by entering its final orders when they did not receive proper notice of the Referee’s recommended orders and an opportunity to object to the same. In this particular instance, the errors complained of were not known, in one case, until one day prior to the circiiit court’s entry of its final order, and, in the other case, until seven days after the entry of the circuit court’s final order. Thus, PBS and BCWP could not reasonably have complained of these errors to the circuit court before it entered its final orders. After the circuit court’s entry of its final orders in these two cases, the parties did not challenge their lack of notice before that court. Instead, they appealed to this Court. Because PBS and BCWP did not challenge the lack of notice in the lower court, we are presented with an issue that has not been determined by the circuit court.
Similarly, the appeal of the United States is before us under rather unique procedural circumstances. As previously mentioned, the issues resolved in the order appealed by the United States were preliminary legal issues. While the order, titled “FINAL ORDER” by the circuit court, conclusively resolved the issues that were before the court, it did not finally terminate the litigation between the United States and BCBSWV.
Typically, we have steadfastly held to the rule that we will not address a nonjurisdic-tional issue that has not been determined by the lower court. See Hartwell v. Marquez, 201 W.Va. 433, 442, 498 S.E.2d 1, 10 (1997) (“ ‘It is a well established principle that this Court will not decide nonjurisdietional questions which have not been raised in the court below.’ ” (quoting Stonebraker v. Zinn, 169 W.Va. 259, 266, 286 S.E.2d 911, 915 (1982) (additional citations omitted))); 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 nonjurisdietional 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 Const. Co., Inc., 158 W.Va. 314, 210 S.E.2d 918 (1975).”); Syl. pt. 3, Voelker v. Frederick Business Properties Co., 195 W.Va. 246, 465 S.E.2d 246 (1995) (“ ‘ “In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdietional questions which were not considered and decided by the court from which the appeal has been taken.” Syllabus Point 1, Mowery v. Hitt, 155 W.Va. 103[, 181 S.E.2d 334] (1971).’ Syl. pt. 1, Shackleford v. Catlett, 161 W.Va. 568, 244 S.E.2d 327 (1978)”).
The mere fact that an issue has been decided by the lower court, however, does not automatically render the issue appeal-able. We have also generally declined to accept the appeal of a decision of a circuit court that does not finally terminate the litigation between parties:
Under W. Va.Code, 58-5-1 (1925),[ ] appeals only may be taken from final decisions of a circuit court. A case is final only when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.
Syl. pt. 3, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995) (footnote added). We have further explained that
The purpose of the “rule of finality,” as it is known, is “to prohibit ‘piecemeal appellate review of trial court decisions which do not terminate the litigation[.]’ United States v. Hollywood Motor Car Co., Inc., 458 U.S. 263, 265, 102 S.Ct. 3081, 3082, 73 L.Ed.2d 754, 756 (1982).” [James M.B. v. Carolyn M.] 193 W.Va. at 292, 456 S.E.2d at 19.
Gooch v. W.Va. Dep’t of Pub. Safety, 195 W.Va. 357, 362, 465 S.E.2d 628, 633 (1995). As with many rules, the “rule of finality” is subject to exceptions. See, e.g., W. Va. R. Civ. P., Rule 54(b) (permitting, under certain circumstances in cases involving multiple claims or multiple parties, appeal of final judgment “as to one or more but fewer than all of the claims or parties”).
Notwithstanding our general refusal to address nonjurisdietional issues^ not decided below, and our adherence to the rule of finality, we find the issues raised by PBS, BCWP and the United States are properly before us. With regard to the underlying liquidation proceedings, the West Virginia Legislature has provided a statutory exception to the two appellate principles discussed above. See W. Va.Code § 33-24-25 (1990) (Repl.Vol.1996). W. Va.Code § 33-24-25 establishes procedures to be followed in liquidation proceedings involving hospital service corporations, medical service corporations, dental service corporations or health service corporations. Included in the liquidation procedures of W. Va.Code § 33-24-25 are directions for resolving objections to the Receiver’s determinations in such proceedings. W. Va.Code § 33-24-25 states, in part:
(c) When a claim is denied in whole or in part by the liquidator ... the claimant may file his objections with the liquidator ....
(d) Whenever objections are filed with the liquidator and the liquidator does not alter his denial of the claim as a result of the objections, the liquidator shall ask the court for a hearing.... The matter may be heard by the court or by a court-appointed referee who shall submit findings of fact along with his recommendation. Upon receipt of such report, the court shall fix a time for hearing the claim....
(e) At the hearing, all persons interested shall be entitled to appear and the court shall enter an order allowing, allowing in part, or disallowing the claim. Any such order shall be deemed to be an appealable order.
(Emphasis added).
By virtue of W. Va.Code § 33-24-25, the West Virginia Legislature has removed, in the context of liquidation proceedings involving a hospital service corporation, medical service corporation, dental service corporation or health service corporation, any requirement that parties challenge final orders in the circuit court before pursuing appeals. The omission of a requirement that parties challenge a final order in the circuit court prior to appealing the order to this Court does not, under normal circumstances, require us to consider issues not addressed in the first instance by the circuit court. However, the error presently raised by PBS and BCWP was not known to the parties at a time when it could reasonably have been presented to the circuit court prior to the entry of that court’s final order. Thus, our refusal to consider this issue would forever bar PBS and BCWP from raising this error.
Similarly, through W. Va.Code § 33-24-25, the West Virginia Legislature has removed the requirement that a final order must completely and finally resolve a cause of action or terminate litigation between parties to a law suit before such order may be appealed. However, this Court must not be burdened with hearing appeals of every interlocutory order entered by a circuit court in a liquidation proceeding. Thus, we will consider on appeal an order that does not completely and finally resolve a cause of action or terminate litigation between parties to a law suit only when the order purports to dispense with interlocutory issues that may impact the ultimate disposition of the litigation.
Consequently, we hold that when the procedures set forth in W. Va.Code § 33-24-25 (1990) (Repl.Vol.1996) have been followed and the circuit court has entered a final order, that order may be appealed even though it does not completely and finally resolve a cause of action arising in the liquidation proceedings or terminate litigation between parties to the liquidation proceedings, so long as the issue appealed may impact the ultimate disposition of the litigation. Moreover, because Section 33-24-25 permits a party to appeal the circuit court’s final order directly to this Court, a party is not required to challenge the final order in the circuit court before pursuing its appeal. Any error by the circuit court in connection with the entry of its Section 33-24-25 final order, of which the party could not have reasonably known or which the party could not have reasonably brought to the circuit court’s attention prior to the court’s entry of its final order, may be raised on an appeal of that final order to this Court.
B.
Standard of Review
Having determined our jurisdiction to consider the issues raised by PBS, BCWP and the United States, we must now consider the appropriate standard for our review of the issues. As explained below, we conclude the appropriate standard of review for the appeals of PBS and BCWP is de novo. We have previously recognized that "[t]he term `de novo' means `"{a]new; afresh; a second time."'" West Virginia Div. of Envtl. Protection v. Kingwood Coal Co., 200 W.Va. 734, 745, 490 S.E.2d 823, 834 (1997) (quoting Frymier-Halloran v. Paige, 193 W.Va. 687, 693, 458 S.E.2d 780, 786 (1995) (quoting Black's Law Dictionary 435 (6th ed.1990))).
We have often used the term "de nOvO"in connection with the term "plenary." See, e.g., Matter of Starcher, 202 W.Va. 55, 60, 501 S.E.2d 772, 777 (1998) (describing the Court's independent evaluation as "de novo or plenary review"); Syl. pt. 3, in part, Matter of Steven William T., 201 W.Va. 654, 499 S.E.2d 876 (1997) (indicating the applicable review by this Court is "`plenary, independent, and de novo `"(citation omitted)); Tolliver v. Kroger Co., 201 W.Va. 509, 513, 498 S.E.2d 702, 706 (1997) (identifying appropriate review as "plenary," and citing for support a case utilizing the term "`de novo'" (citing Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994))); Blake v. John Skidmore Truck Stop, Inc., 201 W.Va. 126, 129, 493 S.E.2d 887, 890 (1997) (characterizing proper review as "de novo and plenary"). Perhaps more instructive for our present purposes is the definition of the term "plenary," which means "[f]ul1~ entire, complete, absolute, perfect, unqualified." Black's Law Dictionary 1154 (6th ed.1990) (citation omitted).
Common sense dictates that when this Court addresses a previously undecided issue, our review must necessarily be anew and afresh, and it must be full, entire and complete. Therefore, we hold that on the rare occasion that this Court must decide an issue that has not been raised before a lower court, our consideration will be plenary, and we will apply a de novo standard of review.
The errors assigned by the, United States in this appeal challenge the findings, of fact and conclusions of law made by the circuit court:
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).
III.
DISCUSSION
A.
Discussion of Issues Raised by Pennsylvania Blue Shield and Blue Cross of Western Pennsylvania
PBS and BCWP argue that the circuit court erred by entering its final orders adopting the recommended orders of the court-appointed Referee when the Referee's recommended orders were not actually served upon PBS and BCWP, individually, or their Pennsylvania counsel, and had not been adequately served upon their West Virginia counsel. This lack of notice, PBS and BCWP argue, effectively denied them of their opportunity to object to the recommended orders.
In response, the Receiver argues that PBS and BCWP have failed to demonstrate that their local counsel provided any notice of a change of address, written or otherwise, to the Referee or the circuit court prior to the issuance of the recommended final order. The Receiver asserts that notice was properly sent to West Virginia counsel at his last-known address. See W. Va. R. Civ. P. Rule 5(b). Furthermore, the Receiver argues, throughout the proceedings service was made only on local counsel for PBS and BCWP, and neither company ever complained that their Pennsylvania counsel was not receiving sufficient service of pleadings and orders.
To address this issue, we must resolve whether PBS and BCWP were given adequate notice of, and an opportunity to assert their objections to, the recommended orders submitted to the circuit court by the Referee. We have considered the arguments of the parties and looked to the relevant law. We conclude that adequate service was not made pursuant to the governing statute.
The parties note that the court-adopted Claimants’ Rules, which were intended to govern, procedurally, the proceedings before the court-appointed Referee, contained a provision regarding notice of the Referee’s recommended order. Pursuant to a provision contained in § IV of the Claimants’ Rules: “The original of the Recommended Order will be filed with the Circuit Clerk, and notice of the filing will be made to the parties of record.”
We find this rule to be enigmatic. It fails to specify the individual or entity required to provide notice and further fails to define the phrase “parties of record.” Because “parties of record” is not defined, we cannot ascertain whether notice to a party’s lawyer is sufficient to comply with the rule, or whether notice to the actual party, individually, is required. Fortunately, our resolution of this issue does not depend upon an interpretation of this rule.
The BCBSWV liquidation proceedings are. governed by W. Va.Code §§ 33-24-14 to -44. Among this series of statutes governing the liquidation of health service corporations is W. Va.Code § 33-24-25(d) (1990) (Repl.Vol. 1996). W. Va.Code § 33-24-25(d) specifically states, in relevant part regarding the resolution of disputes over the Receiver’s determination of proofs of claims:
The matter may be heard by the court or by a court-appointed referee who shall submit findings of fact along with his recommendation. Upon receipt of such report, the court shall fix a time for hearing the claim and shall direct that the claimant or the receiver, as the court shall specify, shall give such notice as the court shall determine to such persons as shall appear to the court to be interested therein. All such notices shall specify the time and place of the hearing and shall concisely state the amount and nature of the claim, the priorities asserted, if any, and the recommendation of the receiver with reference thereto.
(Emphasis added).
The above-quoted statute repeatedly utilizes the word “shall.” In this regard, we have previously held that “ ‘ “[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.” Point 2 Syllabus, Terry v. Sencindiver, 153 W.Va. 651[, 171 S.E.2d 480 (1969)].’ Syl. pt. 3, Bounds v. State Workmen’s Compensation Comm’r, 153 W.Va. 670, 172 S.E.2d 379 (1970).” Syl. pt. 9, State ex rel. Goff v. Merrifield, 191 W.Va. 473, 446 S.E.2d 695 (1994) (citation alteration in original). Thus, W. Va.Code § 33-24-25(d) imposes a mandatory duty upon the circuit court to schedule a hearing and to dictate the specifics of notification, including naming the individual who will be responsible for providing notice and the parties to receive notice. In addition, the statute specifically details the information to be contained in such notice.
There is nothing in the record before this Court indicating that the mandatory procedures outlined in W. Va.Code § 33-24-25(d) were followed by the circuit court. Furthermore, the form of notice ventured by the Referee, by virtue of his attempt to serve local counsel with copies of the recommended orders, was inadequate in that it failed to provide information regarding the scheduled time and place of a hearing on each claim, which would have been impossible to include in these two instances since the court failed to schedule such hearings.
With regard to the statutory procedures for liquidating a health service corporation, we have held, in an earlier case involving the liquidation of BCBSWV, that “[s]trict adherence must be given to the express legislative procedures governing the liquidation of health service corporations found in West Virginia Code §§ 33-24-14 to -44 (1992 & Supp.1995).” Syl. pt. 1, in part, State ex rel. Clark v. Blue Cross Blue Shield of West Virginia, Inc., 195 W.Va. 537, 466 S.E.2d 388 (1995). Because the circuit court failed to adhere to the mandatory provisions contained in W. Va.Code § 33-24-25(d), requiring the court to schedule a hearing and to dictate the specifics of notification, including naming the individual responsible for providing notice and the parties to re ceive such notice, we conclude that PBS and BCWP did not receive proper notice of the Referee’s recommended orders. Consequently, as the interested parties did not receive proper notice of, and an opportunity to express their objections to, the respective recommended orders, we find that the circuit court erred in entering its final orders adopting the same. In accordance with this conclusion, we remand the two cases involving PBS and BCWP for hearings in compliance with W. Va.Code § 33-24-25(d).
B.
The United States of America
The United States has raised two issues that are within our appellate jurisdiction, the lower court’s resolution of the classification of the United States’ late-filed claims and the lower court’s finding that OPM was not a party to a contract with BCBSWV. First, while the lower court’s resolution of the classification of the late-filed claims did not completely and finally resolve a cause of action arising in the liquidation proceedings, leaving this issue unresolved until a later time may have a substantial impact on the ultimate disposition of the litigation by further delaying the already overdue distribution of funds to claim holders. Second, the lower court’s finding that the OPM could not pursue its claim against the liquidated estate of BCBSWV, as there was no contract between the OPM and BCBSWV, conclusively terminated the litigation as to the OPM.
1. Late-Filed Claims
The law of this State requires that, in liquidation proceedings conducted under W. Va.Code §§ 33-24-14 through -44, proofs of claim must be filed within four months of the circuit court’s order declaring the corporation to be insolvent, unless a longer time is prescribed upon certification by the Insurance Commissioner that such additional time is necessary. W. Va.Code § 33-24-37(a) (1990) (Repl.Vol.1996). This deadline for filing proofs of claim is commonly referred to as the “bar” date. In West Virginia, claims filed after the bar date do not share in the distribution of assets of a company in liquidation until all allowed, timely-filed claims have been paid in full with interest. W. Va.Code § 33-24-37(b) (1990) (Repl.Vol. 1996). See also W. Va.Code § 33-24-27(g) (1996) (Supp.1998) (assigning Class VII to late-filed claims for purposes of distribution). Thus, the West Virginia bar date does not serve to absolutely prohibit late-filed claims. Rather, it simply assigns late-filed claims to a distribution classification that is subordinate to all timely-filed claims. W. Va.Code § 33-24-27(g). Because the commonly used term “bar” date is somewhat misleading in the context of the West Virginia law in question, since it implies that claims may not be filed after that date, we will heretofore refer to this date as the “timely-claim” date.
During the proceedings underlying this appeal, claims of the United States that were filed after the timely-claim date were delegated by the Receiver to Class VII in the order of distribution, in accordance with W. Va.Code §§ 33-24-37(b) and 33-24-27(g). The United States objected to this classification, and the dispute was referred to the court-appointed Referee. The Referee issued a recommended order affirming the classification assigned by the Receiver. Thereafter, the circuit court affirmed the conclusion of the Referee on this issue.
The United States presents this Court with two arguments urging us to reverse the lower court’s disposition of the federal government’s late-filed claims. We address these two arguments in turn.
a. State-Imposed Statute of Limitation. Before this Court, the United States first argues that the imposition of any limitation date on federal claims is prohibited by the principle that the United States is not bound by state statutes of limitation in actions in which it seeks to enforce its rights as sovereign. See United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940).
In response to the United States’ argument that it is not subject to a state-imposed statute of limitation, the Receiver replies that United States v. Summerlin, the case primarily relied upon by the United States, is distinguishable from the case at hand because Summerlin did not involve an insurance liquidation proceeding. Moreover, the Receiver argues that West Virginia law regarding the priority of late-filed federal claims is enforceable because it does not invalidate, void and make totally unenforceable the federal claims. Next, the Receiver argues that this issue involves the business of insurance and, thus, falls within the McCar- ran-Ferguson Act, 15 U.S.C. § 1011 et seq. (1994 ed.).
We have reviewed the arguments presented by the parties, and the statutory and decisional law relevant to their arguments. For the reasons that follow, we conclude that a state may impose a limitation date on federal claims against an insolvent insurance company or health service corporation when that date merely subordinates the priority of late-filed federal claims rather than causing them to be absolutely invalidated.
We begin by analyzing United States v. Summerlin, the only United States Supreme Court case cited by the United States in support of its argument. Summerlin involved a United States claim against the estate of a deceased individual. The United States filed its claim in a county court in the state of Florida, after the eight-month state-established period for filing such claims had expired. A judge of the county court wherein the claim was filed disallowed the late-filed claim of the United States. On appeal to the county circuit court, the claim was declared void. The Supreme Court of Florida affirmed the circuit court judgment, and the case was appealed to the United States Supreme Court. The Supreme Court stated “[i]t is well settled that the United States is not bound by state statutes of limitation or subject to the defense of laches in enforcing its rights.” Summerlin, at 416, 60 S.Ct. at 1020, 84 L.Ed. at 1285. The high court went on to explain:
If this were a statute merely determining the limits of the jurisdiction of a probate court and thus providing that the County Judge should have no jurisdiction to receive or pass upon claims not filed within the eight months, while leaving an oportunity [sic] to the United States otherwise to enforce its claim, the authority of the State to impose such a limitation upon its probate court might be conceded. But if the statute, as sustained by the state court, undertakes to invalidate the claim of the United States, so that it cannot be enforced at all, because not filed within eight months, we think the statute in that sense transgressed the limits of state power.
Summerlin, at 417, 60 S.Ct. at 1021, 84 L.Ed. at 1286 (emphasis added) (citation omitted). Unlike the Florida statute at issue in Summerlin, the West Virginia statute does not invalidate late-filed claims of the United States. It merely provides them a subordinate classification so that the liquidation proceeding may advance.
In addition to Summerlin, the United States cites a federal circuit court of appeals case and a federal district court case on the topic of the applicability of state statutes of limitation to suits filed by the United States. However, as with Summerlin, these two eases involved a state law that completely abrogated the government’s claim or suit. The United States has cited no ease rendered by the Supreme Court of the United States, or by any other court, involving a time limitation that merely subordinated the interests of the United States.
Absent specific authority on this issue, we believe a review of the definition of the term “statute of limitation” aids our determination. Generally, statutes of limitation are recognized as
[statutes of the federal government and various states setting maximum time periods during which certain actions can be brought or rights enforced. After the time period set out in the applicable statute of limitations has run, no legal action can be brought regardless of whether any cause of action ever existed.
A statute prescribing limitations to the right of action on certain described causes of action or criminal prosecutions; that is, declaring that no suit shall be maintained on such causes of action, nor any criminal charge be made, unless brought within a specified period of. time after the right accinied.
Black’s Law Dictionary 927 (6th ed.1990) (emphasis added) (citation omitted). Unlike a statute of limitation, the time limitation and claim subordination imposed by W. Va.Code §§ 33-24-37(b) and 33-24-27(g) do not prohibit the United States from bringing its claim. These two statutes merely diminish the priority of any late-filed claim in favor of timely-filed claims. Thus, these provisions do not create a statute of limitation as that term is generally understood.
Another important concern in liquidation proceedings is that available assets be timely distributed. Imposing a limit on the timely filing of proofs of claim in liquidation proceedings promotes an expedient distribution of assets to those with valid claims against the liquidated estate:
The assets of an insolvent insurer should be distributed as soon as practicable, at the same time that the insurer’s policyholders have a strong interest in stating their claims against the insurer’s assets. In attempting to balance these interests, a reasonable time may be prescribed within which claims must be filed; and, when a time limit is specified in the relevant statutory scheme, the court has only such authority to allow late claims as may be granted by the statute.
1 Lee R. Russ and Thomas F. Segalla, Couch on Insurance 3d § 6:5 (1997). See also 43 Am.Jur.2d Insurance § 98, at 178 (1982) (“When an insurance company becomes insolvent, its funds are to be distributed among its creditors as their claims then exist, and the distribution of such assets at an early date is important because it prevents postponing the settlement to await the determination of every contingency on which its policy engagements may be suspended. Accordingly, a court having charge of the affairs of an insolvent insurance company may fix a reasonable time within which claims must be filed in order to participate in the distribution of assets, and may ñx a date beyond which no claims shall be presented or allowed, with the consequence that claims not so presented and allowed are barred [or, as in West Virginia, subordinated], unless the court sees fit, as it has power to do, to extend the time for good cause shown.” (footnotes omitted)).
The West Virginia statutory scheme for liquidating an insolvent insurance company plainly attempts to accomplish this timely resolution of claims against the liquidated estate of the company in receivership, while at the same time assuring that all claims, even those filed late, will be paid where the liquidated estate is large enough to fulfill lower classified claims. Under the operation of W. Va.Code §§ 33-24-37(b) and 33-24-37(a), no proofs of claim are rendered void or invalid due to their untimely filing. Consequently, we hold that W. Va.Code § 33-24-37(b) (1990) (Repl.Vol.1996), which directs that proofs of claim filed after the time prescribed by the circuit court pursuant to W. Va.Code § 33-24-37(a) (1990) (Repl.Vol.1996) shall not share in the distribution of assets of the company in liquidation until all allowed claims that were timely filed have been paid in full with interest, and W. Va.Code § 33-24-27(g) (1996) (Supp.1998), which assigns late-filed proofs of claim to Class VII for purposes of distribution, do not violate the principle that the United States is not bound by state statutes of limitation when enforcing its rights as sovereign.
b. Federal Preemption. We turn now to the United States’ argument that W. Va.Code § 33-24-27 (1996) (Supp.1998), which specifies the order of distribution for claims against the liquidated estate of an insolvent company, is preempted by the federal priority statute found at 31 U.S.C. § 3713 (1982) (1994 ed.).
The United States acknowledges that there is an exception to federal preemption of a state law in circumstances where the state law regulates the business of insurance. See McCarran-Ferguson Act, 15 U.S.C. §§ 1011 and 1012. Furthermore, the United States concedes that the question of whether state laws pertaining to insurance liquidation regulate the business of insurance has been addressed by the United States Supreme Court. See United States Dep’t of the Treasury v. Fabe, 508 U.S. 491, 113 S.Ct. 2202, 124 L.Ed.2d 449. The United States explains, however, that the Fabe Court concluded that state laws governing the liquidation of an insurance company regulate the business of insurance only to the extent that such laws protect policyholders. The United States argues that, because West Virginia law permits priority diminution of late-filed federal claims to place the interests of general creditors ahead of the federal government, it does not sufficiently protect policyholders and, thus, is subject to federal preemption. See Garcia v. Island Program Designer, Inc., 4 F.3d 57 (1st Cir.1993) (applying Fabe and concluding state priority law was preempted).
To the contrary, the Receiver contends that, under Fabe and the McCarran-Fergu-son Act, the West Virginia priority statute is not preempted. The Receiver submits that Garcia has been twice rejected as reading Fabe too narrowly. See Boozell v. United States, 979 F.Supp. 670 (N.D.Ill.1997); Stephens v. American Int’l Ins. Co., 66 F.3d 41, 45 (2d Cir.1995). Moreover, the Receiver explains that without an enforceable timely-claim date, payment of policyholders’ claims cannot occur. According to the Receiver, the position advanced by the United States, if followed, would convert the liquidation proceeding into a proceeding of uncertainty. The Receiver, who is personally liable to the United States for satisfaction of government claims having priority over claims already paid, would be unable to distribute assets to policyholders without fear of the existence of a significant, but unfiled, claim of the United States that would have priority over claims already paid. Thus, the priority statute regulates the business of insurance by protecting policyholders and is not preempted by federal law. For the reasons explained below, we agree with the Receiver’s conclusion.
We begin our analysis with a brief review of the history of the McCarran — Ferguson Act. Prior to 1944, “ ‘the States enjoyed a virtually exclusive domain over the insurance industry.’ ” United States Dep’t of the Treasury v. Fabe, 508 U.S. 491, 499, 113 S.Ct. 2202, 2207, 124 L.Ed.2d 449, 458 (quoting St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 539, 98 S.Ct. 2923, 2928, 57 L.Ed.2d 932, 939 (1978)). In 1944, this nearly exclusive domain was called into question by a decision of the United States Supreme Court rendered in United States v. South-Eastern Underwriters Association, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944). The Court has since explained:
South-Eastern Underwriters ... held that an insurance company that conduced a substantial part of its business across state lines was engaged in interstate commerce and thereby was subject to the antitrust laws. This result, naturally, was widely perceived as a threat to state power to tax and regulate the insurance industry. To allay those fears, Congress moved quickly to restore the supremacy of the States in the realm of insurance regulation. It enacted the McCarran-Ferguson Act within a year of the decision in South-Eastern Underwriters.
Fabe, at 499-500, 113 S.Ct. at 2207, 124 L.Ed.2d at 458.
The McCarran-Ferguson Act, codified at 15 U.S.C. § 1011 et seq., states in relevant part:
§ 1011. Declaration of policy
Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States.
§ 1012. Regulation by State law; Federal law relating specifically to insurance....
(a) State regulation
The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.
(b) Federal regulation
No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance ....
(Emphasis added).
While the United States argues that West Virginia law is preempted by 31 U.S.C. § 3713, there is nothing in that provision specifically relating to the business of insurance. Thus, as the above quote demonstrates, if W. Ya.Code § 33-24-27 (1996) (Supp.1998) was enacted “for the purpose of regulating the business of insurance,” then it reverse preempts 31 U.S.C. § 3713. 15 U.S.C. § 1012(b).
In determining whether W. Ya.Code § 33-24-27 was enacted to regulate the business of insurance, we find much guidance in United States Department of the Treasury v. Fabe, 508 U.S. 491, 113 S.Ct. 2202, 124 L.Ed.2d 449. In Fabe, the United States Supreme Court considered whether an Ohio statute assigning priorities for claims against an insolvent insurance company qualified as a statute that regulated the business of insurance. The Fabe Court first noted its previous decision in Securities and Exch. Comm’n v. National Securities, Inc., 393 U.S. 453, 460, 89 S.Ct. 564, 568, 21 L.Ed.2d 668, 676 (1969), wherein it construed the phrase “ ‘for the purpose of regulating the business of insurance.’ ” Fabe, at 501, 113 S.Ct. at 2208, 124 L.Ed.2d at 459. The Court noted that the National Securities opinion “emphasized that the focus of McCarran-Ferguson is upon the relationship between the insurance company and its policyholders.” Id. The Fabe Court then explained that'“ ‘[statutes aimed at protecting or regulating this relationship [between insurer and insured], directly or indirectly, are laws regulating the “business of insurance” ’ within the meaning of the phrase.” Id. (quoting Securities and Exch. Comm’n v. National Sec., Inc., at 460, 89 S.Ct. at 568, 21 L.Ed.2d at 676).
Further considering the insurance company/policyholder relationship and its correlation to the concept of “regulating the business of insurance,” the Fabe Court analyzed its decisions in Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982), and Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979), and concluded that “[t]here can be no doubt that the actual performance of an insurance contract falls within the ‘business of insurance,’ as we understood that phrase in Pireno and Royal Drug.” Fabe, at 503, 113 S.Ct. at 2209, 124 L.Ed.2d at 461 (emphasis added). The Court then reasoned that the Ohio priority statute was “designed to carry out the enforcement of insurance contracts by ensuring the payment of policyholders’ claims despite the insurance company’s intervening bankruptcy. Because it is integrally related to the performance of insurance contracts after bankruptcy, Ohio’s law is one ‘enacted by any State for the purpose of regulating the business of insurance.’ 15 U.S.C. § 1012(b).” Id. at 504, 113 S.Ct. at 2209, 124 L.Ed.2d at 461. The Court stated further
[t]he broad category of laws enacted “for the purpose of regulating the business of insurance” consists of laws that possess the “end, intention, or aim” of adjusting, managing, or controlling the business of insurance. Black’s Law Dic tionary 1236, 1286 (6th ed.1990). This category necessarily encompasses more than just the “business of insurance.” [W]e believe that the actual performance of an insurance contract is an essential part of the “business of insurance.” Because the Ohio statute is “aimed at protecting or regulating” the performance of an insurance contract, ... it follows that it is a law “enacted for the purpose of regulating the business of insurance,” within the meaning of the first clause of [15 U.S.C. § 1012(b) ].
Id. at 505, 113 S.Ct. at 2210, 124 L.Ed.2d at 462 (internal citation omitted).
However, the Court did not end its analysis here, but continued to explain that “[t]he primary purpose of a statute that distributes the insolvent insurer’s assets to policyholders in preference to other creditors is identical to the primary purpose of the insurance company itself: the payment of claims made against policies.” Id. at 505-06, 113 S.Ct. at 2210, 124 L.Ed.2d at 462.
The Fabe Court held that
the Ohio priority statute, to the extent that it regulated policyholders, is a law enacted for the purpose of regulating the business of insurance. To the extent that it is designed to further the interests of other creditors, however, it is not a law enacted for the purpose of regulating the business of insurance.
Id. at 508, 113 S.Ct. at 2212, 124 L.Ed.2d at 464.
Observing that “every preference accorded to the creditors of an insolvent insurer ultimately may redound to the benefit of policyholders by enhancing the reliability of the insurance company,” the Court noted “Royal Drug rejected the notion that such indirect effects are sufficient for a state law to avoid pre-emption under the McCarran-Ferguson Act.” Id. at 508-09, 113 S.Ct. at 2212, 124 L.Ed.2d at 464 (citing Royal Drug, 440 U.S. at 217, 99 S.Ct. at 1076, 59 L.Ed.2d at 271-72). Finally, the Fabe Court applied its earlier holding to the Ohio statute, and further held that:
[T]he preference accorded by Ohio to the expenses of administering the insolvency proceeding is reasonably necessary to further the goal of protecting policyholders. Without the payment of administrative costs, liquidation could not even commence. The preferences conferred upon employees and other general creditors, however, do not escape pre-emption because their connection to the ultimate aim of insurance is too tenuous.
Id. at 509, 113 S.Ct. at 2212, 124 L.Ed.2d at 465 (citation omitted).
Based upon the foregoing, it is clear that in order to settle whether the priorities imposed by W. Va.Code § 33-24~27(g) on late-filed claims of the United States are enforceable in the face of conflicting federal law that is not specifically directed toward regulating insurance, we must ascertain whether W. Va.Code § 33-24-27(g) regulates the business of insurance. In making this determination, we must consider whether W. Va. Code § 33-24-27(g) protects or regulates policyholders either directly or indirectly so long as the connection to the regulation of insurance is not too tenuous. We believe that it does.
West Virginia’s timely-claim date and associated priority diminution protect policyholders by assuring their claims will be handled in a timely and orderly fashion and by reducing the administrative costs of liquidation, thereby preserving more of the assets of the liquidated estate for distribution to claimants, particularly policyholders as they must be fully compensated before distributions are made to lower classified claimants. The timely-claim date and associated priority diminution are thus integral to the administration of liquidation proceedings. Without a set date by which all timely claims must be filed, there could be no timely and orderly distribution of assets. In addition to the difficulty created by the possibility of additional claims that might be filed at any time, the Receiver has the added concern that, under 31 U.S.C. § 3713(b), the federal priority statute, “[a] representative of a person or an estate ... paying any part of a debt of the person or estate before paying a claim of the Government is liable to the extent of the payment for unpaid claims of the Government.” Moreover, the unnecessary delays and complications to the liquidation process that would be caused by the absence of an enforceable timely-claim date would increase the amount of administrative expenses. Because administrative expenses must be paid prior to compensating the claims of policyholders, increases in administrative costs directly harm policyholders by reducing the amount they are likely to recover on their claims. Due to the substantial benefit of timely and orderly distribution of assets to policyholders, the fact that claim holders other than policyholders may also benefit from the enforcement of the timely-claim date and associated claim diminution is immaterial.
We are aware of only one case where the issue of the subordination of late-filed claims of the United States in insurance liquidation proceedings has been addressed directly. In Garcia v. Island Program Designer, Inc., 4 F.3d 57 (1st Cir.1993), the United States Court of Appeals for the First Circuit considered whether a Puerto Rico statute that subordinated the priority of late-filed claims in insurance liquidation proceedings was preempted by federal law insofar as it applied to claims of the federal government. The Garcia Court applied Fabe and concluded that the Puerto Rico statute did not regulate the business of insurance, and, therefore, the MeCarran-Ferguson Act did not apply. In reaching this conclusion, the Garcia Court reasoned:
The filing deadline (with its penalty of subordination for late claims) cannot be said to directly “regulate[ ] policyholders,” for it is neither directed at, nor necessary for, the protection of policyholders, as the [Fabe ] Court required. The provision helps policyholders only to the extent that (and in the same way as) it helps all creditors. That is to say, by penalizing late-filers, the Commonwealth provision may bring about more speedy, orderly liquidation proceedings, thereby (perhaps) reducing the risks (and costs) of extending credit to the company.
Nor can one say that the Commonwealth’s filing deadline provision is necessary for the protection of policyholders.... The Commonwealth’s filing deadline at issue here ... is not necessary for a liquidation. Without it, liquidation would still prove manageable. At worst, the trustee’s job would become slightly more difficult. He would have to provide, for example, the United States with a first priority as long as he had, say, actual notice (or “constructive” notice through recording) of the claim, even if he did not have formal notice through a “proof of claim” filed directly in the liquidation proceedings.
Garcia, 4 F.3d at 62.
The decision of the Garcia Court with respect to the application of Fabe on the issue of federal preemption has not been followed by any other court. In fact, the decision has been criticized as interpreting Fabe too narrowly. See Boozell v. United States, 979 F.Supp. 670 (N.D.Ill.1997).
In Boozell, the United States District Court for the Northern District of Illinois was asked to determine whether an Illinois insurance liquidation priority statute violated Fabe by requiring policyholders to “compete on an equal basis with state guaranty funds for payment of claims.” 979 F.Supp. at 678. The Boozell Court expressly rejected Garcia as interpreting Fabe too narrowly, and commented:
The Fabe holding, as appropriately noted in Stephens [v. American International Insurance Co., 66 F.3d 41 (1995)], is a broader interpretation of the Supreme Court’s prior holding in SEC v. National Securities, Inc. Thus, the Fabe holding attempts to give meaning to the plain wording of the MeCarran-Ferguson Act by exempting any state law which directly or indirectly assists policyholders from federal preemption.
Id. In reaching the conclusion that the Illinois statute was not preempted, the Boozell Court reasoned that the guaranty association was designed to protect policyholders of an insolvent insurer by continuing coverage and paying claims to any policyholders of an insolvent insurer in exchange for “a limited priority recovery of assets from the insolvent insurer.” Id. Moreover, the Court noted that “[p]olieyholders who receive payments on other benefits from a guaranty association are deemed to have assigned their rights under the covered policies to the association to the extent of the benefits provided,” and, thus, the guaranty association was “entitled to the same priority as the policyholders would have had with respect to the assigned claims.” Id.
While other courts have not expressly criticized Garcia, they have afforded Fabe a much broader interpretation than did the Garcia court. See Stephens v. American Int’l Ins. Co., 66 F.3d 41 (2d Cir.1995).
In Stephens v. American International Insurance Co., the United States Court of Appeals for the Second Circuit considered whether an anti-arbitration clause contained in a Kentucky statute governing liquidation of insurers was preempted by the Federal Arbitration Act. The Court of Appeals reasoned that the anti-arbitration clause “regulate[d] the performance of insurance contracts once an insurance company ... is declared insolvent and enters liquidation. It is crucial to the ‘relationship between [an] insurance company and [a] policyholder’ that both parties know that in the case of insolvency, the insurance company will be liquidated in an organized fashion.” Stephens at 44-45 (citation omitted). Relying on Fabe, the Court concluded that the statute in question was protected from preemption by the McCarran-Ferguson Act, and stated:
The Kentucky Liquidation Act has the “end, intention, or aim of adjusting, managing or controlling the business of insurance,” in that it regulates the winding up of an insolvent insurance company. The Liquidation Act “protects” policyholders ... by assuring that an insolvent insurer will be liquidated in an orderly and predictable manner and the anti-arbitration provision is simply one piece of that mechanism.
Id. at 45 (citation omitted). See also Munich Am. Reinsurance Co. v. Crawford, 141 F.3d 585, 592-94 (5th Cir.1998) (addressing whether an Oklahoma state court had the authority, under state law governing insurance delinquency proceedings, to enjoin an action in federal court to enforce the Federal Arbitration Act, where such action violated an earlier entered state court injunction prohibiting any actions against the insolvent insurance company or the Receiver; observing that while Fabe suggested “that a statute may require parsing to determine the extent of its pre-emptive power under the McCarran-Ferguson Act,” the Court did not preclude, in some circumstances, the determination that a state insurance liquidation act, as a whole, was enacted to regulate insurance and, thus, reverse preempts federal law; commenting further that “it is crucial to the relationship between the insurance company and its policyholders for both parties to know that, in the event of insolvency, the insurance company will be liquidated in an organized fashion” (citing Stephens v. American Int’l Ins. Co.); and concluding that Oklahoma state laws were “reasonably necessary to further the goal of protecting policyholders, even though they may also benefit other creditors”); Murff v. Professional Med. Ins. Co., 97 F.3d 289, 291 (8th Cir.1996) (conducting Fabe analysis and deciding, in part, that the portion of a Missouri insurers’ insolvency act instituting a stay of all actions against an insolvent insurer inverse preempted the Federal Age Discrimination in Employment Act, as state statute is “‘a law regulating the business of insurance,’ ” which “protects policyholders because it preserves the assets of the insolvent insurer’s estate, thereby enhancing the ability of an insolvent insurance company to perform its contractual obligations” (footnote omitted)).
We believe that the courts affording a broader interpretation of Fabe have chosen the better course. Similarly, we find that the claim priority diminution of W. Va.Code § 33-24-27 sufficiently protects policyholders so that, under the McCarran-Ferguson Act, it reverse preempts the federal priority statute found at 31 U.S.C. § 3713. Accordingly, for the foregoing reasons, we hold that W. Va.Code § 33-24-27 (1996) (Supp.1998), which specifies the order of distribution for claims against the liquidated estate of certain insolvent insurance companies and assigns late-filed claims to distribution priority VII, is a law that was enacted for the purpose of regulating the business of insurance in that it operates to protect the claims of policyholders. Thus, under the operation of the McCarran-Ferguson Act, 15 U.S.C. §§ 1011, 1012 (1994 ed.), W. Va.Code § 33-24-27 reverse preempts the federal priority statute found at 31 U.S.C. § 3713 (1982) (1994 ed.).
2. OPM Contract
The United States also argues that the circuit court erred in concluding that Contract No. C.S. 1039 was not a contract between OPM and BCBSWV. Specifically, the United States contends that the circuit court ignored uncontradicted documentary evidence that BCBSWV authorized the Association to act on its behalf, as its agent, in entering the contract. Although BCBSWV did not individually execute the contract, the United States asserts that BCBSWV is bound thereto by operation of the law of agency as though it had executed the contract.
The Receiver responds that there was no privity of contract between OPM and BCBSWV, as there is no contract that OPM and BCBSWV entered into together. Additionally, the Receiver contends that the OPM and the Association were the only parties to the contract in question, and that BCBSWV simply acted as a third-party administrator of that contract.
After considering the parties’ arguments, and examining the relevant contractual agreements, we find that the Association was, in fact, acting as an agent for BCBSWV when it executed Contract No. C.S. 1039 with the OPM. Contract No. C.S. 1039 expressly states: “This Contract ... is now by and between the United States Office of Personnel Management ... and the following party: (1) Blue Cross and Blue Shield Association, an Illinois not-for-profit Corporation, acting pursuant to authority specified in Exhibit A for and in behalf of the organization specified in Exhibit A .... ” (Emphasis added). Exhibit A, as referred to in Contract No. C.S. 1039, is an agreement between the Association and BCBSWV. “ARTICLE I” of Exhibit A provides:
The Association is hereby authorized and directed by the undersigned Plan to execute on behalf of the Plan the necessary documents, including any amendments thereof, with the United States Office of Personnel Management ... to furnish health benefits through the undersigned Plan and other similar Plans as provided by the Government-wide Service Benefit Plan, to those employees and annuitants, including their dependents, if any, enrolled under the Contract between the Association and the Agency.
(Emphasis added). Finally, a plan participation agreement entered between the Association and BCBSWV to set forth their respective obligations under Contract No. C.S. 1039 begins by stating:
WHEREAS, the undersigned Plan has executed an agreement authorizing the Blue Cross and Blue Shield Association ... to obligate the Plan to provide benefits under Title 5, Chapter 89, United States Code (hereinafter referred to as the “Federal Employee Program” or “FEP”); and
WHEREAS, the Association and the U.S. Office of Personnel Management have entered into a Contract for the Provision of health care benefits under FEP ...
(Emphasis added).
When considering questions of contract, we have frequently held that:
“‘It is not the right or province of a court to alter, pervert or destroy the clear meaning and intent of the parties as expressed in unambiguous language in their written contract or to make a new or different contract for them.’ Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962), Syllabus Point 3.” Syllabus Point 2, Bennett v. Dove, 166 W.Va. 772, 277 S.E.2d 617 (1981).
Syl. pt. 1, Fraternal Order of Police, Lodge No. 69 v. City of Fairmont, 196 W.Va. 97, 468 S.E.2d 712 (1996). See also Syl. pt. 1, Bennett v. Dove, 166 W.Va. 772, 277 S.E.2d 617 (1981) (“ ‘A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent.’ Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962), Syllabus Point 1.”).
The above-quoted language from the various contracts is clear and unambiguous, and expresses that the Association was authorized and directed by BCBSWV to execute Contract No. C.S. 1039 with OPM on behalf of BCBSWV. When a person or entity is authorized and directed to act on behalf of another, that person or entity is generally recognized as acting in the capacity of an agent. We have held that “ ‘ “[a]n agent in the restricted and proper sense is a representative of his principal in business or contractual relations with third persons .... ” Syllabus Point 3, [in part,] State ex rel. Key v. Bond, 94 W.Va. 255, 118 S.E. 276 (1923).’ Syl. Pt. 2, [in part,] Teter v. Old Colony Co., 190 W.Va. 711, 441 S.E.2d 728 (1994).” Syl. pt. 3, in part, Thomson v. McGinnis, 195 W.Va. 465, 465 S.E.2d 922 (1995). See generally 3 Am.Jur.2d Agency § 1, at 509-10 (1986) (“The term ‘agency’ means a fiduciary relationship by which a party confides to another the management of some business to be transacted in the former’s name or on his account, and by which such other assumes to do the business and render an account of it. It has also been defined as the fiduciary relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. Thus, the term ‘agency,’ in its legal sense, always imports commercial or contractual dealings between two parties by and through the medium of another. In an agency relationship, ... the one who acts for and represents the principal, and acquires his authority from him, is known and referred to as an ‘agent.’ ” (footnotes omitted)); 2A C.J.S. Agency § 4, at 552, 554-55 (1972) (stating that “[a]geney is succinctly defined as a relation created by an agreement between the parties; relationship between a principal and his agent; the representation of one called the principal by another called the agent in dealing with third persons; the relation resulting where one person authorizes another to act for him in business dealings with others,” and defining agent as “one who acts for or in the place of another by authority from him; a person having express or implied authority to represent or act on behalf of another person who is called his principal; a person employed or authorized by another to act for him, or to transact business for him....” (footnotes omitted)); 1A Michie’s Jurisprudence Agency § 2, at 666 (1993) (“An agent is one who represents another, called the principal, in dealings with third persons. He is one who undertakes some business or to manage some affair for another by authority of or on account of the latter and to render an account of it.” (footnotes omitted)).
Because the Association was acting as an agent for BCBSWV, with express authority to enter a contract obligating BCBSWV to furnish health benefits to certain federal employees, BCBSWV is bound by the contract as if it had executed the contract on its own behalf rather than through the Association. See Syl. pt. 1, Bank of White Sulphur Springs v. Lynch, 93 W.Va. 382, 116 S.E. 685 (1923) (“A principal is liable for the contract of his agent made within the scope of his Authority.”). See also 3 Am.Jur.2d Agency § 270, at 771-72 (1986) (“[A] principal is bound by, and is liable upon, a contract executed properly as to form by his agent, within the actual or apparent authority of the agent, and with the understanding that the agent is contracting on behalf of the principal.”); 3 C.J.S. Agency § 406, at 245 (1973) (“Since an agent acts for his principal in a representative capacity, the principal, rather than the agent, is ordinarily bound by contracts entered into on his behalf by his agent when the making of such contracts is within the scope of the agent’s actual or apparent authority.”); 1A Michie’s Jurisprudence Agency § 81, at 734 (1993) (“Where an agent’s authority is proved, no question of privity can arise. The doctrine of principal and agent, whether disclosed or undisclosed, recognizes that privity of contract exists between the principal and one dealing with the agent. The act of the agent is the act of the principal.”) (footnote omitted).
For the foregoing reasons, we conclude that BCBSWV was a party to Contract No. C.S. 1039. Therefore, OPM, as a party to a contract with BCBSWV, is entitled to assert any claims it may have arising from that contract. Consequently, we remand this case for further consideration of OPM’s claims.
3. Classification of the United States’ Claims
Lastly, the United States asserts that the circuit court erred in finding that:
21. The claims of the USA relating to the treatment of veterans, and of the Health and Human Services, are claims which arise out of the USA’s providing of medical services either directly or through third parties, and not through policies of insurance issued to such beneficiaries by Blue Cross Blue Shield West Virginia.
In this regard, the United States first argues that the circuit court misinterpreted the basis for the VA’s and HCFA’s claims. These claims, the United States asserts, represent payment by a federal agency of costs that should have been paid by BCBSWV under policies held by individual veterans, Medicare beneficiaries or military dependents. Thus, they are derivative of policyholder claims because the agencies are sub-rogated to the right of the policyholders to be paid.
Next, the United States contends that the circuit court erred by excluding the United States’ subrogation claims from Class II when the Receiver’s Plan of Distribution places the subrogation claims of private providers in that class. The United States also complains that the Plan of Distribution proposed a two-tiered scheme of distribution, which impermissibly elevates individual subscribers’ claims above the claims of the United States and violates the West Virginia priority statute, which prohibits creating any subclass within any class.
Finally, the United States argues in the alternative that the circuit court erred in entering Finding 21 as that finding exceeded the limited scope of the issues presented to the court in preliminary briefs.
The Receiver responds that the complained of finding of the circuit court is simply a correct factual statement that the claims of the VA and HCFA are not claims of policyholders of BCBSWV. Furthermore, the Receiver asserts, the finding does not assign a particular priority class to the claims of the VA or HCFA. Thus, the Receiver is uncertain as to how this finding adversely affects the VA, since timely filed VA claims have been assigned Class II priority. The Receiver also states that the facts surrounding this issue have yet to be developed in the circuit court. Thus, the Receiver suggests, the United States is premature in asserting that Finding 21 adversely affects the claims of the VA or HCFA. Finally, the Receiver submits that the United States failed to complain of a two-tiered scheme of distribution in its objections to the Receiver’s proposed plan of distribution.
On its face, Finding 21 appears to state simply that the claims of the VA and HCFA are not policyholder claims. As the Receiver notes, there is nothing in the finding that assigns a classification to those claims. Moreover, the Receiver’s assertion that the facts must be further developed in the circuit court before this issue can be resolved is undisputed, and finally, we note that the United States failed to complain of a two-tiered scheme of distribution before the court below. Thus, because the issues herein raised by the United States have not been decided by the lower court, we adhere to our general practice and decline to address them on appeal. See Hartwell v. Marquez, 201 W.Va. 433, 442, 498 S.E.2d 1, 10 (1997) (“ ‘It is a well established principle that this Court will not decide nonjurisdietional questions which have not been raised in the court below.’ ” (quoting Stonebraker v. Zinn, 169 W.Va. 259, 266, 286 S.E.2d 911, 915 (1982) (additional citations omitted))); 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 nonjurisdietional errors to a consideration of those matters passed upon by the court below and fairly arising upon the por tions of the record designated for appellate review.’ Syl. Pt. 6, in part, Parker v. Knowlton Const. Co., Inc., 158 W.Va. 314, 210 S.E.2d 918 (1975).”); Syl. pt. 3, Voelker v. Frederick Bus. Properties Co., 195 W.Va. 246, 465 S.E.2d 246 (1995) (“ ‘ “In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken.” Syllabus Point 1, Mowery v. Hitt, 155 W.Va. 103[, 181 S.E.2d 334] (1971).’ Syl. pt. 1, Shackleford v. Catlett, 161 W.Va. 568, 244 S.E.2d 327 (1978)”).
IV.
CONCLUSION
For the reasons set forth in this opinion, the two final orders of the Circuit Court of Kanawha County, entered on January 13, 1997, and January 21, 1997, pertaining to Blue Cross of Western Pennsylvania and Pennsylvania Blue Shield respectively, are reversed and remanded for further proceedings consistent with this opinion. The final order entered by the circuit court on January 21, 1997, concerning the United States of America, is affirmed in part, reversed in part and is also remanded for further proceedings consistent with this opinion.
Affirmed in part, Reversed in part and Remanded.
. Highmark, Inc., appears before this Court as successor-in-interest to Pennsylvania Blue Shield. However, for clarity and ease of reference, we will refer to this appellant as Pennsylvania Blue Shield or PBS.
. Highmark, Inc., also appears before this Court as successor-in-interest to Blue Cross of Western Pennsylvania. For clarity and ease of reference, we will similarly refer to this appellant as Blue Cross of Western Pennsylvania or BCWP.
. The parties dispute the nature of these advance deposits and the priority classification assigned to them by the Receiver for purposes of liquidation.
. See W. Va.Code § 33-24-25 (1990) (Repl.VoI. 1996) for the statutory requirements for processing proofs of claims.
. The Receiver actually, and properly, applied the statute in effect at the time of his decision, W. Va.Code § 33-24-27 (1990) (Repl.VoI. 1996). Under this version of the statute, the category assigned to the claims of PBS and BCWP was Priority Class IV. However, following the issu-anee of the Receiver’s notices of determination to PBS and BCWP, W. Va.Code § 33-24-27 was amended. The amended statute became effective on March 9, 1996, and was made to apply retrospectively to "all claims filed in any proceeding to liquidate a corporation which [were] pending on the effective date of this section .For the sake of clarity and to avoid confusion, throughout this opinion all references to classifications assigned by the Receiver are translated into the associated classification under the revised version of W. Va.Code § 33-24-27, unless otherwise noted.
. By letter dated January 21, 1997, McKowen sent notices of his new address to lawyers for the various parties, including counsel for the Receiver. However, the letter does not indicate that it was sent to the circuit court or to the Referee.
. In its appellate brief, the United States indicated that it was also appealing a claim against the BCBSWV liquidated estate asserted by the Office of Civilian Health and Medical Program of the Uniformed Services [hereinafter CHAMPUS]. However, the United States has failed to present an argument describing any alleged error involving the circuit court’s disposition of the CHAM-PUS claim. Moreover, the United States has acknowledged that the Receiver's notice of determination placed the CHAMPUS claim into the equivalent of priority Class II under W. Va.Code § 33-24-27, as amended. See supra note 5. As this is the highest class that may be assigned to any claimant, priority Class I being reserved for administrative expenses, we conclude that the United States has failed to designate an error in connection with the CHAMPUS claim.
.See supra note 5.
. See supra note 5.
. Presumably, the contract between BCBSWV and HCFA was terminated when BCBSWV was placed into receivership.
. See supra note 5.
. W. Va.Code § 58-5-1 was amended in 1998; however, the earlier version of the statute was in effect at the time relevant to this appeal. The current version of W. Va.Code § 58-5-1 adopts language similar to that contained in W. Va. R. Civ. P„ Rule 54(b).
.Although the circuit court's failure to follow mandatory statutory procedures requires the remand of this case, we note that the notice problem experienced in this instance could easily have been avoided without the necessity of appeal if McKowen had promptly corrected his address on the court pleadings. It is a lawyer’s responsibility to assure that his correct address appears on pleadings. See W. Va. R. Civ. P., Rule 11 ("Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated." (emphasis added)). Moreover, parties giving notice have the right to rely on addresses provided on pleadings, and are not required to search for the correct address. See W. Va. R. Civ. P., Rule 5(b) ("Whenever under these rules service is required or permitted to be made upon a party represented by an attorney of record the service shall be made upon the attorney unless service upon the party himself or herself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or her, or by mailing it to him or her at his or her last-known address ...(emphasis added)). Additionally, we note that Rule 18 of the Local Rules for Kanawha County Civil Courts requires that:
All proposed orders shall be submitted to opposing counsel, if known, before the presentation thereof to the court for entry, or reasonable written notice of intention to present a particular order or decree shall be given to opposing counsel, if known, and the court shall be fully advised in the premises contemporaneously with the motion for the entry of any such order or decree.
At the bottom of the order space shall be provided for each attorney to whom the order is presented to sign his name to evidence the fact that such attorney has inspected the order, but such signature shall not constitute approval of the order unless so stated in writing by the attorney signing. Each attorney to whom any order is presented for inspection shall sign the same at the bottom to evidence the fact that such attorney has had notice of such order and inspected the same.
(Emphasis added). The necessity for appeal in this case may also have been avoided had this local rule been followed.
. PBS and BCWP raise other issues on appeal. However, because we remand these cases for hearings in the circuit court, the additional issues are not ripe for appeal, and should be first addressed by the circuit court. See supra Section II.A. at 772-74.
. See supra pages 770-72 for a discussion of the facts relevant to the appeal of the United States.
. For the reasons explained in Section III.B.3. infra, we decline to address a third issue raised by the United States.
. See supra Section II.A. for a discussion of our jurisdiction to consider the appeal of the United States.
. The order of liquidation entered by the circuit court on October 26, 1990, directed the Receiver to notify all persons who may have claims against BCBSWV to file their proofs of claim "within four months from the entry of [the] order.” Thereafter, by order entered February 22, 1991, the circuit court extended the deadline for timely filing proofs of claim by an additional four months at the request of the Insurance Commissioner/Receiver.
. Following are the particular findings and conclusions of the circuit court that the United States contends are erroneous:
46. The West Virginia Legislature, in amending West Virginia Code, § 33-24-27, to specifically address the clash of priorities addressed in [United States Dep’t of the Treasury v. Fabe, 508 U.S. 491, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993)], elevated the priority of federal claims so long as they otherwise complied with the procedural requirements of the statutory scheme. However, the Legislature adhered to existing law which allows for a diminishment in priority, but not elimination of the claim, if the procedural requirements of the statute were not met.
48. "Where a proof of claim complies with the statutory requirements of West Virginia Code § 33-24-25 (1992)[,] but is filed after the claims bar date provided for by statute [or any court-ordered extensions thereof] has elapsed, the proof of claim is properly classified as a Class [VII] late-filed claim as directed by West Virginia Code § 33-24-27© (1992)”. [Syl. pt. 2, State ex rel. Clark v. Blue Cross Blue Shield of West Virginia, Inc., 195 W.Va. 537, 466 S.E.2d 388 (1995)].
49. The priority statute does not operate to void or invalidate the claims of die [United Stales of America] so that they cannot be enforced at all because of being filed after the bar date [timely-claim date], but simply assigns the late-filed claims to a lower class in the order of distribution. Therefore, the statute does not exceed the limits of state powers.
.Contrary to the Receiver's contention that this portion of the United States’ argument is disposed of by operation of the McCarran-Ferguson Act, 15 U.S.C. § 1011 et. seq., we find it necessary to address the state-imposed statute of limitation issue independently of the Act. McCarran-Ferguson states, in relevant part, "[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance.” (Emphasis added). Because the principle relied upon by the United States in this portion of its argument does not arise from an Act of Congress, we believe that the McCarran-Ferguson Act does not operate to prevent its application. For further discussion of the McCarran-Ferguson Act, see text infra, Section IILB.l.b.
. See United States v. Morgan, 298 F.2d 255 (4th Cir.1962) (affirming district court decision that rejected defendant lessees' assertion of state statute of limitation as a defense to an action by the United States to recover rent); United States v. Polan Indus., Inc., 196 F.Supp. 333 (S.D.W.Va.1961) (rejecting defendant's attempt to assert state statute of limitation as defense against suit filed by United States to collect tax assessment from third-party debtor of the taxpayer).
. Our research has revealed one case decided by the United States Supreme Court, United States v. John Hancock Mut. Life Ins. Co., 364 U.S. 301, 81 S.Ct. 1, 5 L.Ed.2d 1 (1960), wherein the Supreme Court was faced with an issue somewhat similar to the question before us. John Hancock involved foreclosure proceedings. A note, which was secured by a mortgage on real estate, and which was held by John Hancock Mutual Life Insurance Company, was in default. The United States held a second note secured by a mortgage on the same real estate. The United States' note was junior to the note held by John Hancock. At a foreclosure sale, John Hancock bought the real estate for an amount equal to the amount of the note it held. Under the relevant state law, the debtor/property owner had the exclusive right to redeem the foreclosed property for a period of twelve months. If the debt- or/property owner failed to redeem during the twelve-month period, the lien creditors then had a three-month period within which to redeem. Under the applicable federal law, the United States had one year from the date of sale within which to redeem the property. Thus, there was a conflict between the state and federal law. The United States attempted to redeem the property pursuant to federal law, and the attempt was rejected by the state courts. Thereafter, the debt- or/property owner redeemed the property as permitted by state law. On appeal to the Supreme Court of the United States, the conflict was resolved in favor of the United States on grounds not involving the federal government's immunity to state-imposed statutes of limitation. After reaching its conclusion, however, the Court noted that John Hancock advanced several other arguments, one being that "the United States, by seeking affirmative relief in a state court, subjects itself to all the incidents of state law which govern other suitors.” John Hancock, at 308, 81 S.Ct. at 6, 5 L.Ed.2d at 6. The Court explained that this contention was easily resolved by one of "the several special rules which favor the United States in preference to other plaintiffs — the rule that the United States is not subject to local statutes of limitations.” Id. (citing United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940)). Because the debtor/property owner in John Hancock redeemed the foreclosed property, the application of state law would have forever barred the United States’ right to redeem the real estate, and thus, its right to recover any of the funds due it. Contrariwise, the West Virginia statute in question merely subordinates the United States' claims, and does not operate as a total bar. Consequently, we find the John Hancock case, like those mentioned above, is factually and legally distinguishable from the issue before us.
. As the BCBSWV liquidation proceedings demonstrate, speedy resolution is not always possible or practicable in complex liquidations involving large numbers of claimants and complicated legal issues. However, we do not believe that time-consuming complex cases should be further delayed through the abandonment of administrative aids such as West Virginia's imposition of a timely-claim date.
. But see United States v. Middle States Oil Corp., 18 F.2d 231 (8th Cir.1927) (concluding that priority of late-filed claims of United States in bankruptcy proceeding could be subordinated only when the assets of the bankruptcy estate were sufficient to satisfy all claims against the estate, including those of the United States); United States v. Vellalos, 780 F.Supp. 705, 707 (D.Haw.1992) (stating in dicta that a "state may not limit the federal government’s general common law right to collect debts owed to it”).
. 31 U.S.C. § 3713 (1982) (1994 ed.) states:
(a)(1) A claim of the United States Government shall be paid first when—
(A) a person indebted to the Government is insolvent and—
(1) the debtor without enough property to pay all debts makes a voluntary assignment of property;
(ii) property of the debtor, if absent, is attached; or
(iii) an act of bankruptcy is committed; or
(B) the estate of a deceased debtor, in the custody of the executor or administrator, is not enough to pay all debts of the debtor.
(2) This subsection does not apply to a case under title 11.
(b) A representative of a person or an estate (except a trustee acting under title 11) paying any part of a debt of the person or estate before paying a claim of the Government is liable to the extent of the payment for unpaid claims of the Government.
. See supra note-25 for the text of 31 U.S.C. § 3713.
. By the term "reverse preempt” we mean that, under the McCarran-Ferguson Act, state law regulating the business of insurance will be enforced over conflicting federal law that does not specifically relate to the business of insurance. In other words, the normal course of preemption is reversed in that state law will preempt federal law. See, e.g., Munich Am. Reinsurance Co. v. Crawford, 141 F.3d 585, 592-94 (5th Cir.1998) ("Ordinarily, federal law pre-empts conflicting state law by virtue of the Supremacy Clause. See U.S. Const, art. VI, cl. 2. The McCarran-Fergu-son Act reverses that effect in the narrow range of cases involving state regulation of the insurance industry. By its terms, the Act permits a state law to reverse pre-empt a federal statute ....”)
.In Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982), and Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979), the United States Supreme Court identified three factors to be considered in determining what constitutes the "business of insurance.” Those three factors are: "first, whether the practice has the effect of transferring or spreading a policyholder’s risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry.” Pireno, at 129, 102 S.Ct. at 3009, 73 L.Ed.2d at 656.
. The following findings of fact and conclusions of law are identified by OPM as erroneous:
20. The USA asserts that the Office of Personnel Management claims arise on behalf of subscribers to the USA’s own health care program, while the Receiver asserts [and the Referee agrees] that Blue Cross Blue Shield West Virginia was a third party administrator
27.The USA's claim, including that asserted on behalf of the Office of Personnel Management, is not the claim of a policyholder of Blue Cross Blue Shield West Virginia within the meaning of West Virginia Code § 33-24-27(b).
28. The USA’s claim is not a claim for refund of unearned premiums or of a policyholder within the meaning of West Virginia Code § 33-24-27(b).
29. The claims of the USA are not losses incurred as a policyholder within the meaning of West Virginia Code § 33-24-27(b). | [
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PER CURIAM:
The Office of Disciplinary Counsel (“ODC”) has filed objections with this Court to the findings and recommendations of a Hearing Panel Subcommittee (“Panel”) of the Lawyer Disciplinary Board, a body created by the Supreme Court of Appeals to govern the professional conduct of lawyers within West Virginia. The Panel concluded that C. Crady Swisher (“Swisher”) did not violate the Rules of Professional Conduct.
The ODC asks this Court to find that Swisher violated Rules 8.1 and 8.4(d) of the Rules of Professional Conduct, to suspend Swisher’s law license for an appropriate period of time, and to require him to practice under the supervision of a mentor if and when he is reinstated.
We conclude that Swisher violated the .Rules of Professional Conduct, and we impose appropriate sanctions.
I.
Swisher was admitted to practice law in the State of West Virginia in 1988. His practice is located in Allegheny County, Pennsylvania, where he is a member of both the West Virginia Bar and the Pennsylvania Bar.
Sometime after 1987, Robert Barton retained Swisher and his firm to represent Mr. Barton in a lawsuit for injuries that Mr. Barton sustained in an accident in Martins-burg, West Virginia. Mr. Barton became dissatisfied with Swisher’s representation and filed a legal malpractice action against Swisher and others in the United States District Court for the Western District of Virginia. A settlement was reached prior to trial in May 1994 with Swisher agreeing to pay Mr. Barton a total of $25,000.00. Swisher paid Mr. Barton $10,000.00 at that time. Swisher also agreed to sign, a note, promising to pay the balance of $15,000.00 in two payments, both to be paid within 1 year of the date of the note.
Relying on this agreement, Mr. Barton dismissed Swisher from the legal malpractice case. Swisher failed to pay the $15,000.00. Mr. Barton then filed a motion to enforce the settlement before the district court. The district court entered a judgment order against Swisher in the amount of $15,000.00, plus interest until paid in full.
In 1996, Mr. Barton also filed an ethics complaint with the West Virginia Office of Disciplinary Counsel. After many delays, the matter was heard before the Panel. Swisher was charged with violating Rule 8.4(d) [1995] of the Rules of Professional Conduct for the representations he had made regarding the payment of the settlement and for his failure to meet those obligations. Swisher was also charged with violating Rule 8.1 [1989] of the Rules of Professional Conduct for his failure to respond to the ethics complaint. At the hearing before the Panel, Swisher stipulated to the conduct set forth in the ethics complaint. He attributed his misconduct to psychological, mental, financial, and marital problems. Because Swisher stipulated to the conduct that was charged in the ethics complaint, the ODC did not call any other witnesses.
The Panel made a recommended finding that, despite Swisher’s stipulation, Swisher had not violated either Rule 8.4(d) [1995] or Rule 8.1 [1989]. The Panel therefore recommended no sanctions. The Panel’s reasoning, in short, was that the ODC had failed to prove that Swisher knowingly entered into the settlement agreement with the intent not to pay Mr. Barton. The Panel also believed that the ODC did not prove that Swisher knowingly failed to respond to the ODC. The ODC filed with this Court objections to the Panel’s recommended findings and recommended decision.
II.
We have held that:
A de novo standard applies to a review of the adjudicatory record made before the Committee on Legal Ethics of the West Virginia State Bar 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 Committee’s recommendations while ultimately exercising its own independent judgement. On the other hand, substantial deference is given to the Committee’s findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.
Syllabus Point 3, Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).
The ODC contends that Swisher violated Rule 8.4(d) [1995] of the Rules of Professional Conduct by failing to comply with the settlement agreement that he had reached with Mr. Barton. At the hearing before the, Panel, Swisher admitted that he had not made the agreed-upon payments, nor had he paid the judgment entered against him in the federal district court.
Rule 8.4(d) [1995] of the Rules of Professional Conduct provides that misconduct of an attorney includes conduct that is prejudicial to the administration of justice. We applied this Rule in Committee on Legal Ethics v. Taylor, 187 W.Va. 39, 415 S.E.2d 280 (1992) where an attorney had written a bad check and had failed to make agreed-upon restitution for 2 years. We stated in Taylor that an attorney who knowingly issued a bad check or delayed making restitution for a bad check for a significant amount of time “indulges in conduct that dishonors the practice of law.” 187 W.Va. at 42, 415 S.E.2d at 283.
Similarly, we find that Swisher’s failure to make any payment on the amount owed by Swisher, during the 5 years following the agreement, dishonors the practice of law. Because this misconduct is prejudicial to the administration of justice, it is a violation of Rule 8.4(d) [1995].
Just as troubling to this Court as the lack of payment is Swisher’s lack of cooperation during the investigation of this matter by the Lawyer Disciplinary Board. West Virginia Rules of Professional Conduct 8.1(b) [1989] provides that a lawyer, in connection with a disciplinary matter, shall not:
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6 [attorney-client privilege].
Between February 1996 and April 7, 1997, Swisher was sent a copy of the ethics complaint by the ODC twice — once by mail and once by facsimile. On both of those occasions, and once by a separate letter, the ODC requested that Swisher respond to the charges in the complaint. It was not until March of 1998, more than 2 years after the ODC first sent Swisher a copy of the complaint, that Swisher responded to the charges.
This Court has stated:
An attorney violates West Virginia Rule of Professional Conduct 8.1(b) by failing to respond to requests of the West Virginia State Bar concerning allegations in a disciplinary complaint. Such a violation is not contingent upon the issuance of a subpoena for the attorney, but can result from the mere failure to respond to a request for information by the Bar in connection with an investigation of an ethics complaint.
Syllabus Point 1, Committee on Legal Ethics v. Martin, 187 W.Va. 340, 419 S.E.2d 4 (1992).
We find that Swisher’s failure to respond violated Rule 8.1(b) [1989] of the Rules of Professional Conduct. We are mindful that:
[i]n deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the ... attorney, 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).
In light of the approach set forth in Walker, this Court suspends C. Crady Swisher’s license to practice law in West Virginia until he satisfies the following sanctions:
1. Mr. Swisher demonstrates to the satisfaction of the West Virginia ODC that he has satisfied in total the judgment and interest thereon entered against him in the United States District Court;
2. Mr. Swisher successfully completes the Multistate Professional Responsibility Examination; and
3. Mr. Swisher pays all costs incurred in the investigation and hearing of this matter.
Suspension of License with Conditions.
. The ODC sent a copy of the complaint to Swisher on February 27, 1996. He failed to respond to the complaint as requested or acknowledge receipt of the complaint. The ODC sent a letter to Swisher on June 4, 1996 requesting that he respond to the complaint. Again he failed to file a response or acknowledge receipt of the complaint. On October 25, 1996, the ODC sent a copy to Swisher via facsimile, again without any response by Swisher. Finally on April 7, 1997, Swisher accepted service and acknowledged receipt of the ODC complaint. Swisher did not formally respond to the complaint until March of 1998.
. Rule 8.4(d) of the Rules of Professional Conduct [1995] provides in part:
It is professional misconduct for a lawyer to:
(d) engage in conduct that is prejudicial to the administration of justice;
Subsection (d) of this rule was not affected by the 1995 change.
. Rule 8.1 of the Rules of Professional Conduct [1989] provides in part:
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement if material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
. The Comment to Rule 8.4 of the Rules of Professional Conduct provides in part:
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
. The ODC, in their recommended penalty to this Court, requested that Swisher be required to work under a mentor until the underlying debt to Mr. Barton was paid in full. However, as we have decided to suspend Swisher’s license until that event occurs, we do not believe a mentor-ship would be appropriate. | [
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STARCHER, Justice:
This petition for a writ of prohibition arises from a lawsuit in which the petitioner, Robert Frazier, alleged he was injured on the job through the negligence of his employer, a company (or possibly two companies) that had been declared in default of the employer’s obligations under the West Virginia Workers’ Compensation Act (“the Act”). Under the Act, if an employer fails to abide by certain statutory requirements, then the employer forfeits any protections provided by the Act, may be subjected to common-law liability, and is prohibited from relying on any common-law defenses.
The petition raises the following question: may a trial court submit to a jury the question of whether an employer is in default of its obligations under the West Virginia Workers’ Compensation Act in a personal injury lawsuit, when the West Virginia Workers’ Compensation Commissioner has previously issued an order finding the employer to be in default? We hold that when an employer is declared to be in default of its workers’ compensation obligations by the Commissioner, the Commissioner’s ruling cannot be collaterally attacked and is binding in subsequent proceedings considering the same issue.
As set forth below, we grant the petitioner a writ of prohibition to prevent the trial court from submitting the question of the petitioner’s employer’s default to the jury.
I.
Facts and Background
The respondents in this case are Pioneer Fuel Corporation (“Pioneer”) and Top Flite Coal Company, Inc. (“Top Flite”). The petitioner argues that in February 1989, both companies were owned by, and under the direction and control of, Chris Cline. The respondents contend that Pioneer leased coal mining rights at the Edna Ruth Mine # 1 in Wyoming County, West Virginia, and that Pioneer then contracted with Top Flite to perform the work of extracting the coal.
The petitioner alleges in his petition that in February 1989 he was employed by both Pioneer and Top Flite. On February 22, 1989, the petitioner was operating a bulldozer at the Edna Ruth Mine # 1 — at night in rainy, foggy conditions, and next to a high-wall. An earth slide occurred. Rocks, mud, and debris fell off the highwall and onto the cab of the bulldozer. The petitioner was severely injured and incurred over $28,000 in medical bills.
Shortly after the accident, the petitioner filed a claim for workers’ compensation benefits. The claim form submitted by the petitioner contains a section that was “to be completed by the employer.” That section indicates that Pioneer was the petitioner’s employer. On March 3,1989, the petitioner’s claim was ruled compensable by the Commissioner, and the ruling notes that Pioneer was the petitioner’s employer. Pioneer did not appeal the Commissioner’s ruling.
On January 8, 1990, a representative for Pioneer mailed a letter to the Commissioner saying that the petitioner “entered the wrong employer on his original” claim form and that the incorrect information was accidentally duplicated by the employer’s representative who completed the employer’s portion of the form, and asked that the Commissioner note that the “correct employer is Top Flite Coal Company, Inc.” The Commissioner subsequently entered an order finding that respondent Top Flite was the correct employer. Top Flite similarly did not appeal this ruling.
In February 1991, the petitioner filed a complaint in the Circuit Court of Wyoming County seeking damages from respondents Pioneer and Top Flite (and from numerous other defendants that have since settled). The complaint alleged various theories in tort. In the complaint, the petitioner alleged that he was only employed by Top Flite, and that he was injured through the deliberate intent of his employer. See W.Va. Code, 23^1-2 [1994], infra at note 4. Pioneer and Top Flite filed a consolidated answer to the complaint, and asserted that Top Flite was entitled to the immunity from liability provided to employers who contribute to the Workers’ Compensation Fund. See W.Va. Code, 23-2-6 [1991], infra section III.
The petitioner alleges that Pioneer and Top Flite failed to respond to discovery requests concerning whether they were in “good standing” with the Workers’ Compensation Fund. Shortly before the May 11,1998 trial date, in response to a Freedom of Information Act request, the petitioner received documents from the Workers’ Compensation Division indicating that Top Flite was in default of its obligations under the West Virginia Workers’ Compensation Act at the time of the petitioner’s work-related injury.
Upon receiving the documents, on May 7, 1998 (4 days before trial) the petitioner filed a motion for summary judgment on two issues. First, the petitioner sought an order declaring that because Top Flite was default of its statutory obligations under the Act, Top Flite was not entitled to assert the immunity provided by the Act. Second, the plaintiff sought an order, pursuant to W.Va. Code, 23-2-8 [1991] that would prohibit Top Flite from asserting three common-law defenses at trial: comparative negligence, assumption of the risk, and the fellow-servant doctrine.
On the fh’st day of trial, the petitioner advised the trial court that the Commissioner had issued orders declaring that both Top Flite and Pioneer were in default to the Workers’ Compensation Fund on the date the petitioner was injured, and presented the court with evidence from the Workers’ Compensation Division supporting this contention. The petitioner argued that he intended to present a “simple” negligence case against both Pioneer and Top Flite, and argued that he would not present any evidence that either company acted with the statutorily-defined “deliberate intent” in causing his injuries. The petitioner asked that the trial court grant a partial summary judgment against both Pioneer and Top Flite and prohibit both companies from relying upon the workers’ compensation immunity provision and from asserting the aforementioned common-law defenses.
The petitioner asserted that whether the respondents were in default of their obligations under the Act was a question of law. The petitioner also asserted that the issue of default should not be presented to the jury because to do so would place upon the petitioner the burden of proving both a negligence action and a deliberate intent action at the same time.
The trial court denied the motion for partial summary judgment and required the petitioner to prove workers’ compensation default to the jury as a question of fact.
The petitioner then sought the instant writ of prohibition from this Court.
II.
Standard of Review
We must first determine whether prohibition is appropriate in the instant case. “The 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.
Syllabus Point 1, in part, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).
There are five factors that this Court will consider in determining whether to issue a writ of prohibition:
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.
Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (W.Va.1996).
Applying these factors, we find that the petitioner has no plain, speedy, and adequate remedy in the ordinary course of law. Petitioner Frazier contends that the trial court’s ruling is clearly erroneous as a matter of law. As a result of the trial court’s ruling, both parties would be compelled to go through an expensive, complex trial and appeal from a final judgment, and we determine there is a high likelihood of reversal on appeal. The unreasonableness of the delay and expense is apparent. The petitioner also contends the trial court’s ruling interferes with the Commissioner’s authority to administer the Workers’ Compensation Fund. The remedy of appeal is usually deemed inadequate in these situations, and prohibition is allowed.
III.
Discussion
We are asked in this case to determine a straightforward issue: in a personal injury lawsuit, may a trial court submit to a jury the question of whether an employer is in default of its statutory obligations under the Workers’ Compensation Act? Before addressing this question, we must first address what appears to be a misconception by the trial court concerning our workers’ compensation statutes.
The petitioner in this case presented evidence indicating that both respondents had been declared to be in default at the time of the petitioner’s injury. However, the trial court apparently.believed that a question of fact existed because the petitioner received workers’ compensation benefits for his injury. This position by the trial court, while understandable, is incorrect.
Under the Act, to be entitled to benefits from the Workers’ Compensation Fund, a claimant need only show he or she has sustained a personal injury in the course of and resulting from his or her employment for a West Virginia employer. W.Va.Code, 23-4-1 [1989]. A claimant is entitled to recover benefits from the Fund regardless of the employer’s status with the Fund. The 1986 version of W.Va.Code, 23-2-5(g) [1986], in effect at the time of the petitioner’s 1989 injury, specifically provided 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 fact that the petitioner in this case received benefits from the Fund is therefore irrelevant to a determination of whether the respondents were in default under the Act.
Determining whether an employer is in default of its obligations under the Workers’ Compensation Act is an issue that requires an examination of several statutes. W.Va. Code, 23-2-l(a) [1986] required certain employers “to subscribe to and pay premiums into” the Fund, and to comply with “all requirements of this chapter and all rules and regulations prescribed by the commission-er_” When an employer subscribes to and pays premiums into the Fund, and complies with all other requirements 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] ,
Conversely, when an employer is in default and has not “complied fully with all other provisions of this chapter,” under W.Va.Code, 23-2-6 [1991] the employer is not entitled to immunity in an action by an injured employee. As an additional incentive to encourage compliance with the Act, W.Va.Code, 23-2-8 [1991] holds that an employer in default of its obligations under the Act may not only be held liable for damages resulting from the employer’s negligence, but is also prohibited from exercising certain common-law defenses. This section states, in pertinent part:
All employers required by this chapter to subscribe to and pay premiums into the workers’ compensation fund, ... and who do not subscribe to and pay premiums into the workers’ compensation fund as required by this chapter, ... or having so subscribed and elected, shall be in default in the payment of same, or not having otherwise fully complied with the provisions of section five [W.Va.Code, 23-2-5 [1995] ] ... of this article, shall be liable to their employees ... for all damages suffered by reason of personal injuries sustained in the course of employment caused by the wrongful act, neglect or default of the employer ... and in any action by any such employee or personal representative thereof, such defendant shall not avail himself of the following common-law defenses: The defense of the fellow-servant rule; the defense of the assumption of risk; or the defense of contributory negligence; and further shall not avail himself of any defense that the negligence in question was that of someone whose duties are prescribed by statute
W.Va.Code, 23-2-8 [1991].
W.Va.Code, 23-2-8 [1991] indicates that an employer may be subject to civil liability if the employer fails to comply with the numerous requirements contained in W.Va.Code, 23-2-5. W.Va.Code, 23-2-5(a) [1986] in effect at the time of the petitioner’s injury, specifically required employers to pay premiums into the Fund quarterly, and “[a]t the time each premium is paid, every subscribing employer shall make a payroll report to the commissioner for the preceding quarter.” W.Va.Code, 23-2-5(a) [1986].
In this case, the petitioner alleges that respondents Pioneer and Top Flite were in default under the Act, as a matter of law, for failing to file payroll reports as required by W.Va.Code, 23-2-5(a) [1986]. The Act stated that the “[flailure of an employer ... to timely file a payroll report ... shall cause the employer’s account to become delinquent.” W.Va.Code, 23-2-5(b) [1986]. W.Va.Code, 23-2-5(d) [1986] went on to state that “[flailure by the employer ... to resolve his or her delinquency within [thirty days] shall place the account in default and shall deprive such defaulting employer of the benefits and protection afforded by this chapter, including [W.Va.Code, 23-2-6], and he or she shall be liable as provided in [W.Va.Code, 23-2-8]... .”
We believe that, under W.Va.Code, 23 — 2—5(d) [1986], when an employer fails to file payroll reports, and in the absence of any rulings by the Commissioner concerning such failure, an employer may be held to be in default as a matter of law if no questions of material fact exist. A trial court may submit the question to a jury if the Commissioner has made no determination of an employer’s default and the material facts are in dispute.
However, in this case, the petitioner presented the trial court with an additional, and conclusive, fact: the Workers’ Compensation Commissioner had issued final, unappealed orders declaring that both Pioneer and Top Flite were in default of their obligations at the time of the petitioner’s work-related injury.
The petitioner presented to the trial court a June 1, 1987 order from the Commissioner to Top Flite, wherein the Commissioner notified Top Flite that its “workers’ compensation account has become delinquent because you have not filed your quarterly payroll report for the quarter ending 03/31/87.” Pioneer Fuel Corporation received two similar orders from the Commissioner dated August 25, 1988 and February 21, 1989, holding that its account “has become delinquent because you have not filed your quarterly payroll report for the quarters] ending” on June 30, 1988, and December 31, 1988. In all three orders, the respondents were given notice that if the payroll reports were not filed within 30 days, the respondents would lose their immunity from civil liability and be required to pay other penalties before being returned to “good standing.”
The petitioner proffered evidence to the trial court that both respondents were in default on the date of the petitioner’s injury, February 22, 1989. Top Flite went into default effective May 1, 1987, and attempted to cure its default by filing an “application for reinstatement to good standing” on April 5, 1989 — -shortly after the petitioner’s injury. However, on October 2, 1989, the Commissioner voided the application for reinstatement because Top Flite again failed to file the required payroll reports and pay the premiums due on June 30, 1989. Top Flite did not return to good standing until October 1, 1997. The petitioner also proffered evidence showing that Pioneer was in default from August 1, 1988 until July 31, 1990.
The Act makes clear that the Workers’ Compensation Commissioner “has the sole responsibility for the administration of this chapter.” W.Va.Code, 23-1-1 [1984], In this case, the Commissioner acted in accord with his statutory duties and issued orders declaring both of the respondents in default for failing to file payroll reports. The Act sets forth the procedure an employer must follow in order to challenge such a determination:
[I]n any situation where an employer objects to a decision or action of the commissioner made under the provisions of this article, then such employer shall be entitled to file a petition demanding a hearing upon such decision or action which petition must be filed within thirty days of the employer’s receipt of notice of the disputed commissioner’s decision ... such time limitations being hereby declared to be a condition of the right to litigate such decision or action and hence jurisdictional. The employer’s petition shall clearly identify the decision or action disputed and the bases upon which the employer disputes the decision or action. Upon receipt of such a petition, the commissioner shall schedule a hearing which shall be conducted in accordance with the provisions of article five, chapter twenty-nine-a of this code. An appeal from a final decision of the commissioner shall be taken in accord with the provisions of articles five and six of said chapter: Provided, That all such appeals shall be taken to the circuit court of Kanawha county.
W.Va.Code, 23-2-17 [1990].
In this case, the Commissioner issued valid orders declaring that Top Flite was in default under the Act effective May 1, 1987, and that Pioneer was in default effective August 1, 1988. Neither order was appealed. The proper remedy for the respondents under W.Va.Code, 23-2-17 [1990] would have been to file objections to the Commissioner’s decision with the Commissioner, and if dissatisfied with the Commissioner’s ruling,'to appeal the decision to the Circuit Court of Kanawha County. When the Commissioner addresses the merits of a particular matter and issues a final order, “and there is no objection or appeal therefrom, the case cannot again be considered upon the same facts.” Igo v. State Compensation Comm’r, 128 W.Va. 402, 407, 36 S.E.2d 690, 693 (1946). Because the orders of the Commissioner were not properly appealed, they are final and binding upon the trial court on the issue of whether Pioneer and Top Flite were in default to the Fund on the date of the petitioner’s injury.
It is generally held that an administrative decision by a workers’ compensation tribunal cannot be collaterally attacked in another tribunal. See Matters Concluded, in Action at Law to Recover For the Same Injury, By Decision Or Finding Made In Workmen’s Compensation Proceeding, 84 A.L.R.2d 1036 [1962], See also, Rymer v. Hagler, 211 Cal.App.3d 1171, 260 Cal.Rptr. 76 (Ct.App.1989) (workers’ compensation judge ruled that employer had secured workers’ compensation insurance coverage; employee was collaterally estopped from challenging ruling in a civil action for damages, and employer could assert statutory immunity from suit). We believe such a rule should be adopted in West Virginia concerning final orders relating to default and in-good-standing issues by the Workers’ Compensation Commissioner.
We hold that under W.Va.Code, 23-2-5(d) [1986], in the absence of a final rul ing by the Workers’ Compensation Commissioner, a trial court may find an employer in default under the Workers’ Compensation Act. However, if the Commissioner has made a final ruling that an employer is in default, then the Commissioner’s ruling is binding upon a trial court. The Commissioner’s ruling may not be collaterally attacked in a subsequent proceeding considering the same issue, and the employer’s proper remedy is to seek review of the ruling through the appellate process established by W.Va.Code, 23-2-17 [1990].
We believe that the trial court in this case exceeded its legitimate powers and impinged on the jurisdiction of the Commissioner by failing to accept the Commissioner’s determination that Pioneer and Top Flite were in default of their workers’ compensation obligations. To the extent that Pioneer and Top Flite employed the petitioner, they may not collaterally challenge in a jury trial the Commissioner’s order finding them to be in default. We therefore grant the requested writ of prohibition.
IV.
Conclusion
Because the Commissioner has previously issued a final, unappealed order that Pioneer and Top Flite were in default of their workers’ compensation obligations, Pioneer and Top Flite cannot collaterally attack the Commissioner’s ruling in the trial court below. As a matter of law, both companies were in default of their statutory obligations under the Act, and this question may not be submitted to a jury.
As a matter of law, to the extent both companies were employers of the petitioner, under W.Va.Code, 23-2-8 [1991] both companies may be liable for all damages for personal injuries sustained by the petitioner in the course of his employment caused by any wrongful act, neglect or default of the employers.
Furthermore, neither employer may assert the immunity from suit provided by W.Va. Code, 23-2-6 [1991], nor assert the common-law defenses of the fellow-servant rule, the assumption of the risk, and comparative negligence.
Based upon the foregoing, we grant the writ of prohibition.
Writ Granted.
Chief Justice DAVIS and Justices WORKMAN, MAYNARD and McCUSKEY joined in the Opinion of the Court.
Justice McGRAW did not participate.
. Mr. Cline was originally a defendant in this action, but appears to have settled and been dismissed.
. The petitioner also filed loss of consortium claims on behalf of his infant daughter, Lindy Lee Frazier.
. Over 9 years have passed since the petitioner’s 1989 injury, and in that time period the Legislature has made many substantial amendments and revisions to the statutes contained within the Workers’ Compensation Act. For the sake of consistency, unless otherwise noted, this opinion will refer to the most recently enacted versions of the statutes.
. The West Virginia Freedom of Information Act, W.Va.Code, 29B-1-1 to -7.
. The petitioner subpoenaed the records custodian of the Workers’ Compensation Legal Division, requiring the custodian to bring the records of Top Flite and Pioneer to the court on the first day of trial. The trial court refused to hear the custodian’s testimony and evidence, but allowed the petitioner to vouch the evidence into the record.
. A negligence action requires the plaintiff prove that a defendant had a duty, breached the duty, that the plaintiff suffered some injury, and that the breach of the duty by the defendant proximately caused the plaintiff’s injury. A deliberate intent action arises under W.Va.Code, 23-4-2 [1994], and requires a worker to either prove that his employer “consciously, subjectively and deliberately formed” an intent to cause a specific injury to the worker, or prove the following five factors:
(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.
W.Va.Code, 23 — 4—2(c)(2)(i) and (ii) [1994]. See generally, Bell v. Vecellio & Grogan, Inc., 197 W.Va. 138, 475 S.E.2d 138 (1996) (holding, at Syllabus Point 2, that "W.Va.Code 23-4-2(c) (1991) represents the wholesale abandonment of the common law tort concept of a deliberate intention cause of action by an employee against an employer, to be replaced by a statutory direct cause of action by an employee against an employer expressed within the workers' compensation system.”)
. In denying the petitioner's motion -for summary judgment, the trial court stated:
THE COURT: I’m going to deny your motion. I’ll let you prove that to the Jury.... Let them make a decision. We’ll give an instruction on it. If it’s the law, that’s what the instructions are for. We’ll give them the instruction on it and let them decide
MR. WILSON [counsel for petitioner]: May I just briefly? I think its just a matter of law. If you’re in default, you cannot assert a statutory defense.
THE COURT: Everything is a matter of law that I read to the Jury as an instruction It’s a matter of law, and let them make the determination.
. The transcript of the proceedings before the trial court demonstrates the court’s, as well as counsel for Top Flite’s, misunderstanding of the Act:
MR. ANDREWS [counsel for Top Flite]: Well, first of all, your Honor, Mr. Frazier has received Workers’ Compensation benefits. It’s my understanding that he’s been awarded a lifetime award. I think that they’re precluded from arguing that Top Flite was not in good standing and try to strip Top Flite of its Workers’ Compensation immunity when in fact Mr. Frazier received all of his benefits.
Second, I obtained a copy of a letter from Workers' Compensation which was sent to Mr. Frazier.... This letter states ... "Your claim has been ruled compensable....” [The letter] raises no issues about whether or not Top Flite was in good standing or not ...
THE COURT: You want to — you want to present evidence to the jury that this is just a simple negligence case, or want me to stop them from presenting any evidence beyond a simple negligence case.... Because Top Flite was in default and he wasn’t paid benefits.
MR. CALWELL [counsel for petitioner]: He was paid benefits.
THE COURT: Oh, he wasn’t — well, he wasn’t paid benefits under the name of Top Flite. Originally, he was paid under Pioneer Fuel.
MR. CALWELL: But payment is irrelevant, Judge....
THE COURT: I’ll tell you what I’m going to do. I’m going to deny the motion. I’ll.let you prove that to the Jury.... In good standing cases are for when somebody doesn’t receive money from Workmen’s Compensation.
. W.Va.Code, 23-2-5(g) was amended in 1995. No changes were made affecting this opinion.
. W.Va.Code, 23-2-1 was amended in 1995. No changes were made affecting this opinion.
. 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 and resulting from his or her covered employment.
. We have repeatedly held that, while the defendant-employer may be stripped of its common-law defenses, the plaintiff-employee still bears the burden of proving his or her injuries were the result of the employer's negligence. For example, in Zinnv. Cabot, 88 W.Va. 118, 121-22, 106 S.E. 427, 428 (1921) we said:
It appears that the defendant did not avail himself of the benefits of the Workmen’s Compensation Act, and is, therefore, deprived of certain defenses of which he could have taken advantage prior to the passage of that act. However, even since the passage of that act, one who does not take advantage of it is not liable in damages for every injury sustained by his employes. The basis of such an action is negligence, and unless some negligence is traced to the employer there is no cause of action. This negligence may be some defect in the working place, or may be some improper method of doing the work by some of the injured employé’s fellow servants, but unless there is some failure upon the part of the employer to do something which he should do for the employé's safety, or the commission of some act by him or his servants which results in the injury, there can be no recovery.
. This Code section is now codified at W.Va. Code, 23 — 2—5(a)(2) [1995].
. W.Va.Code, 23-2-5(d)[l986] stated:
Failure by the employer, who is required to subscribe to the fund and who fails to resolve his delinquency within the prescribed period, shall place the account in default and shall deprive such defaulting employer of the benefits and protection afforded by this chapter, including section six of this article, and he shall be liable as provided in section eight of this article. The defaulting employer’s liability under section eight of this article shall be retroactive to twelve o’clock p.m., of the last day of the month following the end of the quarter for which the delinquency occurs. The commissioner shall notify the defaulting employer of the method by which the employer may be reinstated with the fund. The commissioner shall also notify the employees of such employer by written notice as hereinafter provided for in this section.
This Code section was amended in 1991, 1993, and 1995; no changes were made affecting this opinion.
.For example, in this case the petitioner alleges that the respondents are in default for failing to file payroll reports. The respondents have introduced no evidence showing that payroll reports were filed with the Commissioner, and that the Commissioner misplaced those reports. Instead, Pioneer and Top Flite contend that a question of fact exists because there is evidence in the record that the companies paid their workers' compensation premiums. We disagree because no question of material fact exists regarding the respondents’ failure to file payroll reports! The Workers’ Compensation Act requires that an employer timely file payroll reports, and the failure to do so in and of itself renders the employer in default. We therefore believe that summary judgment for the petitioner would have been proper on this record.
. A final order is one that " leaves nothing to be done hut to enforce by execution what has been determined.’ " James M.B. v. Carolyn M., 193 W.Va. 289, 292, 456 S.E.2d 16, 19 (1995) (citations omitted).
. In this case, Top Flite admits it was the petitioner's employer on the date the petitioner was injured, while Pioneer disputes that it ever employed the petitioner. The petitioner asserts both companies were in the position of being his employer.
We do not resolve this factual dispute concerning Pioneer’s employer status, and leave it to be addressed by the trial court. We stress, however, that our ruling today is applicable to Pioneer only to the extent it acted as the petitioner’s employer.
.Our ruling today is limited to employer default rulings by the Commissioner. We decline to consider the impact on trial court proceedings of rulings by the Commissioner concerning other issues (such as whether a claimant was an employee, or whether an injury occurred in the course of employment or was otherwise compen-sable). | [
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PER CURIAM:
This case is before the Court upon an appeal of the Appellant, Roberta Taylor Roth, from the December 4, 1997, order of the Circuit Court of Kanawha County denying the Appellant’s post-trial motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. The Appellant .argues that the lower court committed the following errors: 1) instructed the jury improperly that the defense of a sudden emergency was available to the Appellee, Steven Connolly, when there was no evidence of a sudden emergency; 2) gave an erroneous sudden emergency instruction, because the instruction did not state the existence of an emergency requiring a rapid decision is but one factor in the total comparative fault analysis; 3) refused to instruct the jury as to the law of comparative negligence where said instruction was properly requested by a party and the testimony clearly raised questions of comparative fault; 4) failed to place the doctrine of sudden emergency within the context of comparative fault; and 5) confused the jury, hopelessly and prejudicially, as to the law governing the issues in the case by including an erroneous sudden emergency instruction combined with the omission of an instruction and special interrogatory regarding comparative negligence. Having reviewed the record, the parties’ briefs and arguments, as well as all other matters submitted before this Court, we reverse and remand this case for a new trial, because the lower court erred in giving a sudden emergency instruction and refusing to give a comparative negligence instruction.
I. FACTS
On June 22, 1993, a collision occurred involving the Appellant’s vehicle and the Ap-pellee’s vehicle at the intersection of Big Tyler Road and Cross Lanes Drive in Cross Lanes, West Virginia. According to the testimony of both parties, the Appellee’s vehicle was directly behind the Appellant’s vehicle at the above-mentioned intersection. Both vehicles were attempting to merge from Cross Lanes Drive into traffic on Big Tyler Road.
The Appellant testified that she looked in her rear’ view mirror and saw the Appellee’s truck approaching. She stated that she “assumed” the driver of the truck was slowing down. She further testified that “[t]hen I turned my neck to the left, and I saw a white car coming. I was waiting for the white car to come, and then it would be clear. Then I felt a huge bump[,]” when the Appellee’s vehicle struck her vehicle.
The Appellee testified that he had observed the Appellant’s stopped vehicle as it was waiting to attempt to merge onto Big Tyler Road. The Appellee stated:
I proceeded up to the intersection. Ms. Roth’s vehicle was in front of me. She was stopped. There’s a slight incline there that you merge onto the [Big Tyler] road. I saw that she had started to go because there was a break in traffic. I let my foot off the break. I looked to the left to make sure there was still enough of a period for me to go through, and two to three seconds after I took my foot off the brake I felt my truck stop. I looked, and I had rolled into the back of her car.
At trial, the Appellant argued that the Appellee was negligent because he: 1) failed to keep a lookout in that he was driving forward while his eyes were fixed over his shoulder to his left and, therefore, he failed to see the Appellant’s vehicle; 2) failed to maintain a safe distance between his vehicle and the Appellant’s vehicle; and 3) failed to maintain control of his vehicle. Conversely, the Appellee argued that he was confronted with a sudden emergency caused by his belief that the Appellant had sufficient space in which to merge onto Big Tyler Road and that she stopped her vehicle without good reason.
The trial court, over the Appellant’s objection, gave the following sudden emergency instruction:
A person who is suddenly and unexpectedly confronted with a danger to himself or others, not caused by his own negligence, is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation. Accordingly, if you find from the circumstances that the defendant, Steven Connolly, was confronted with a sudden emergency, not created by his actions, then you may consider such circumstances in determining whether defendant, Steven Connolly, was negligent in causing the accident at issue herein.
The Appellant also requested that the trial court instruct the jury regarding comparative fault. The trial court refused to give the Appellant’s proposed instruction concerning comparative fault, stating in its December 4, 1997, order:
That there existed no basis from the evidence to instruction [sic] the jury as to comparative negligence, and it was not error for the Court to refuse a comparative negligence instruction when the same was requested by Plaintiff, inasmuch as the comparative negligence instruction was requested by Plaintiff so as to relate to the Plaintiff herself, rather than to the Defendant.
At the close of the presentation of all the evidence, the jury returned a verdict in favor of the Appellee.
II. ISSUES
A.
The first issue is whether the lower court erred in instructing the jury regarding the sudden emergency doctrine in light of the evidence presented. At the outset, we note that the standard of review utilized in determining whether the trial court properly instructed the jury is set forth as follows:
‘A trial court ... has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law.’ Syllabus Point 4, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). ‘Whether facts are sufficient to justify the delivery of a particular instruction is reviewed by this Court under an abuse of discretion standard.’ Syllabus Point 12, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994). Upon review, *[i]t will be presumed that a trial court acted correctly in giving or in refusing to give instructions to the jury, unless it appears from the record in the case that the instructions given were prejudicially erroneous or that the instructions refused were correct and should have been given.’ Syllabus Point 1, State v. Tuner, 137 W.Va. 122, 70 S.E.2d 249 (1952). This Court has recognized, however, that ‘[a]n instruction should not be given when there is no evidence tending to prove the theory upon which the instruction is based.’ Syllabus Point 4, Hovermale v. Berkeley Springs Moose Lodge No. 1483, 165 W.Va. 689, 271 S.E.2d 335 (1980).
Moran v. Atha Trucking, Inc., Nos. 24012, 24081, — W.Va. —, — S.E.2d —, 1997 WL 751960, at *3 (W.Va. December 5, 1997).
At the crux of this appeal is whether the evidence presented below supports the trial court instructing the jury regarding the sudden emergency doctrine. The sudden emergency doctrine is set forth in syllabus point three of Poe v. Pittman, 150 W.Va. 179, 144 S.E.2d 671 (1965):
A person in a sudden emergency, not created in whole or in part by his own negligence, who acts according to his best judgment or who, because of insufficient time for reflection, fails to act in the most judicious manner, is not guilty of negligence if he exercises the degree of care which would be exercised by a reasonably prudent person in like circumstances.
Id. at 179-80, 144 S.E.2d at 673, Syl. Pt. 3. We analyzed the applicability of the sudden emergency doctrine in Reilley v. Byard, 146 W.Va. 292, 119 S.E.2d 650 (1961) as follows:
The application of the sudden emergency doctrine ordinarily involves a judicial determination by the trier of fact of three factual propositions: (1) Whether the defendant was confronted with a sudden emergency; (2) if so, whether the emergency was created by the defendant; and (3) if the defendant was confronted with a sudden emergency not created in whole or in part by his own negligence, whether in the circumstances of such emergency he acted as a reasonably prudent person would have acted in like circumstances.
Id. at 299-300, 119 S.E.2d at 654-55.
As previously indicated, the first thing that must be determined in order to invoke the sudden emergency doctrine is whether the Appellee was confronted with a sudden emergency. This Court has previously discussed sudden emergency in terms of “[t]he law mak[ing] allowance[s] for the natural alarm of one thus endangered and requires of him merely the care of the average person similarly imperiled.” O’Dell v. Universal Credit Co., 118 W.Va. 678, 684, 191 S.E. 568, 571 (1937) (Emphasis added). Other emergency situations in which this Court has upheld instructing the jury regarding sudden emergency include:
where a motorist failed to back his vehicle off a negligently maintained railroad crossing when he was unable to move forward and was hit by a train, Harrison Engineering [& Construction Co. v. Director General of Railroads, 86 W.Va. 271, 103 S.E. 355 (1920) ] ...; motorists suddenly confronted with an oncoming automobile in then lane of traffic, Lawson [v. Dye, 106 W.Va. 494, 145 S.E. 817 (1928)] ...; Gilbert v. Lewisburg Ice Cream Co., 117 W.Va. 107, 184 S.E. 244 (1936); Schade v. Smith, 117 W.Va. 703, 188 S.E. 114 (1936); States v. Riss & Co., 139 W.Va. 1, 80 S.E.2d 9 (1953); Mulroy v. Co-operative Transit Company, 142 W.Va. 165, 95 S.E.2d 63 (1956); pedestrian darted in front of motorist’s vehicle, Meadows v. Stickler, 144 W.Va. 644, 110 S.E.2d 380 (1959); automobile brakes failed, Spurlin v. Nardo, 145 W.Va. 408, 114 S.E.2d 913 (1960); motorist’s vehicle slid uncontrollably due to ice on the roadway, White v. Lock, 175 W.Va. 227, 332 S.E.2d 240 (1985); and accelerator spring on tractor broke causing the engine to accelerate and pick up speed, Snyder v. Keckler, 175 W.Va. 268, 332 S.E.2d 281 (1985) (but see Henthorn v. Long, 146 W.Va. 636, 122 S.E.2d 186 (1961) where sudden emergency instruction was improperly given when a motorist knew his brakes were defective).
Moran, — W.Va. at —, — S.E.2d at —, 1997 WL 751960, at *5.
In the instant case, the Appellee testified that “it was my fault that I rolled into the back of her [the Appellant’s] car.” Additionally, the Appellee admitted that “normally when I merge into traffic, I don’t watch the car in front of me the whole time.” Not once did the Appellee testify that he had reacted the way he did out of some natural alarm of being endangered or being presented with a sudden emergency. Additionally, the Appellee admitted that the accident was his fault. As previously mentioned, the sudden emergency doctrine may only be invoked when the emergency is “not created in whole or in part by [the] ... negligence [of the party invoking the doctrine].” See Poe, 150 W.Va. at 179, 144 S.E.2d at 673, Syl. Pt. 3, in part.
As we have previously stated “[a]n instruction should not be given when there is no evidence tending to prove the theory upon which the instruction is based.” Syl. Pt. 4, Hovermale, 165 W.Va. at 689, 271 S.E.2d at 337. From a review of the evidence in this case, it is clear that the sudden emergency instruction should not have been given because there was “no evidence tending to prove the theory upon which the [sudden emergency] instruction is based.” Id. Thus, the trial court abused its discretion in instructing the jury concerning the sudden emergency doctrine.
B.
The next issue is whether it was error for the lower court to decline to give a comparative negligence instruction. The Appellant asserts that the trial court was under a mistaken belief that a comparative negligence instruction may only be requested by a defendant. The Appellee argues that the circuit properly refused to give a jury instruction on comparative negligence, where the Appellee offered no defense of comparative negligence.
This Court has previously held that
‘[i]f there be evidence tending in some appreciable degree to support the theory of proposed instructions, it is not error to give such instructions to the jury, though the evidence be slight, or even insufficient to support a verdict based entirely on such theory.’ Syllabus Point 4, Snedeker v. Rulong, 69 W.Va. 223, 71 S.E. 180 (1911).
Syl. Pt. 2, Moran, — W.Va. at —, — S.E.2d at —, 1997 WL 751960, at *1.
From a review of the evidence, the jury should have been instructed with regard to comparative negligence. While the Appellee states that it presented no evidence of the Appellant’s negligence, our review, of the evidence suggests otherwise. While the Appel-lee’s testimony indicates that he was at fault, the Appellee’s evidence before the jury was that it was the Appellant’s “sudden[ ], unexpected[ ] and unneeessary[ ]” stopping of her vehicle that caused the accident. While the Appellee attempted to use such evidence to put this into the sudden emergency category, it is obviously more of a garden variety negligence allegation. Further, the Appellant’s evidence indicated that it was the Appellee’s failure to keep observing the Appellant’s vehicle, instead of looking away from the Appellant’s vehicle to ascertain whether he could merge into oncoming traffic immediately after the Appellant, that caused the accident. Thus, there appears to have been sufficient evidence of fault on both sides to support the giving of a comparative negligence instruction. Accordingly, it was an abuse of the trial court’s discretion in failing to give a comparative negligence instruction.
III. CONCLUSION
Based on the forgoing, the decision of the Circuit Court of Kanawha County is reversed and remanded for a new trial.
Reversed and remanded.
Justice McGRAW did not participate in the decision of this case.
. Both of the Appellant's assignments of error numbered one and two essentially concern the sudden emergency instruction which was given and are combined and addressed by this Court as a single issue.
Further, assignments of error numbered 2, 4 and 5 all concern whether the sudden emergency instruction should have been placed in the context of comparative negligence. We recently held in syllabus point four of Moran v. Atha Trucking, Inc., Nos. 24012, 24081, — W.Va. —, — S.E.2d —, 1997 WL 751960 (W.Va. December 5, 1997), that
A jury instruction concerning a sudden emergency must state that the existence of an emergency requiring a rapid decision is one factor in the total comparative fault analysis. Such an instruction should be included in the instruction on determining the comparative negligence of the parties and should not be a separate instruction.
We further stated in Moran, however, that "the above guidelines [referring to the new syllabus points] are to be utilized in the future by trial courts in those rare cases in which a sudden emergency instruction is necessary.” Id. at —, — S.E.2d at —, 1997 WL 751960, at *12. Thus, the law enunciated in Moran has prospective application only and does not effect the outcome of the present case, although it offers guidance in our decision. It is, therefore, clear that prior to Moran, this Court had not addressed whether the sudden emergency doctrine had to be given in the context of comparative negligence. To the extent that the Appellant argues that Moran governs the instant case, that is incorrect. We only address the issue of whether the comparative negligence instruction should be given based upon the evidence presented to the trial court.
. For purposes of this appeal, the Appellant only designated the following portions of the record:
1) the trial testimony of the Appellee, Steven Connolly, Eric Daniel Taylor and the Appellant, Roberta Taylor Roth; 2) the April 3, 1997, judgment order; 3) the Appellant's motion for judgment notwithstanding the verdict and, in the alternative, for a new trial; 4) the Appellee's memorandum in opposition to the Appellant's motion for judgment notwithstanding the verdict and, in the alternative, for a new trial; and 5) the December 4, 1997, order denying the Appellant's motion. While the Appellee designated the entire record on appeal, the entire trial transcript was never made a part of that record and, therefore, we only have before us those portions designated by the Appellant.
. In the December 4, 1997, order dealing with post-trial motions, the trial court affirmed its decision to give the sudden emergency instruction, stating:
The instruction as to sudden emergency was properly given in connection with the facts of the case at hand and, furthermore, the instruction included within it the parameters by which the doctrine of sudden emergency would not apply. That is, the jury was specifically instructed that the doctrine would only apply in instances where the Defendant was suddenly and unexpectedly confronted with a danger to himself or others, not caused by his own negligence.
. Pursuant to the clarification of the law regarding the sudden emergency doctrine enunciated by this Court in Moran, if this case is retried, it is now clear that the sudden emergency doctrine would be inapplicable. In Moran, we held that
A sudden emergency instruction is to be given rarely, in instances of truly unanticipated emergencies which leave a party little or no time for reflection and deliberation, and not in cases involving everyday traffic accidents arising from sudden situations which, nevertheless, reasonably prudent motorists should expect.
— W.Va. at —, — S.E.2d at-, 1997 WL 751960 at *1, Syl. Pt. 5 (Emphasis added).
. Actually, the lower court concluded that the evidence did not support giving the jury a comparative negligence instruction. | [
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PER CURIAM:
The West Virginia Department of Health and Human Resources (hereinafter “DHHR”) seeks writs of prohibition to prevent enforcement of denials of summary judgment in personal injury and wrongful death matters in which DHHR contends that it is immune from suit based upon (1) statutory immunity; (2) quasi-judicial immunity; (3) common-law doctrine of qualified immunity and no violation of a clearly established right; and (4) absence of duty based upon the public duty doctrine. We grant the requested writs as moulded and remand for additional evaluation by the lower courts and compliance with this Court’s directives in Fayette County National Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997).
This appeal consolidates similar immunity matters arising from civil actions in the Circuit Court of Kanawha County and the Circuit Court of Jefferson County. In the Ka-nawha County case, an abused child was killed by the abuser after DHHR had placed the child back into the home. In the Jefferson County case, a twenty-nine day old child had been taken to the hospital with a broken arm, and the DHHR caseworker failed to inform supervisors that she had a personal friendship with the father of the child. The child was permitted to remain in the home with his parents. Approximately one week later, his parents took him to the hospital where he was diagnosed as suffering from permanent brain damage, blindness, physical deformity, and mental retardation as a result of a severe beating. The parental rights were subsequently terminated, and the child was adopted.
The DHHR was sued in both matters, and the lower courts denied DHHR’s motions for summary judgement despite DHHR’s assertion of immunity from suit based upon (1) statutory immunity; (2) the exercise of quasi-judicial discretion; (3) common-law doctrine of qualified immunity and no violation of a clearly established right; and (4) absence of duty based upon the public duty doctrine. The DHHR now seeks writs of prohibition preventing the application of the orders denying summary judgment. The DHHR maintains that the lower courts erred in failing to identify any genuine issues of fact regarding the immunities asserted by DHHR, thereby denying this Court a meaningful opportunity for appellate review. The DHHR further contends that the courts’ failure to grant summary judgment and concurrent failure to render any' decision regarding the application of the alleged immunities, in effect delays a determination of whether the immunities apply until an appeal is taken from a judgment on a jury verdict.
The standard properly employed by a circuit court in the determination of whether to grant summary judgment was explained as follows in syllabus point one of Lilly, “ ‘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.’ Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).” 199 W.Va. at 350, 484 S.E.2d at 233.
In the cases sub judice, the lower courts denied DHHR’s motions for summary judgment without addressing the myriad of immunity allegations raised by DHHR. Statutory immunity pursuant to West Virginia Code § 49-6A-6, for instance, provides that “[a]ny person, official or institution participating in good faith in any act permitted or required by this article shall be immune from any civil or criminal liability that otherwise might result by reason of such actions.” DHHR maintained that the only reasonable interpretation of the Legislature’s language is the intent that DHHR be immune from suit. The DHHR also sought to have the court apply the doctrines of quasi-judicial immunity and the common-law doctrine of qualified immunity. The DHHR raised the allegation that no liability attached due to the absence of duty to the injured parties, pursuant to the public duty doctrine, a concept independent of the doctrine of governmental immunity.
Despite the specific enunciation of immunity allegations, the lower courts denied the motions for summary judgment without discussion of the specific immunities, providing no indication of the basis for the denial. As DHHR emphasizes, only one of the multiple immunities claimed would have to apply to shield DHHR from liability.
In syllabus point three of Lilly, we explained that “[although our standard of review for summary judgment remains de novo, a circuit court’s order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed.” 199 W.Va. at 350, 484 S.E.2d at 233. We further reasoned that “the circuit court’s order must provide clear notice to all parties and the reviewing court as to the rationale applied in granting or denying summary judgment.” 199 W.Va. at 354, 484 S.E.2d at 237. “This Court’s function, as a reviewing court is to determine whether the stated reasons for the granting of summary judgment by the lower court are supported by the record.” Id. at 353, 484 S.E.2d at 236. This Court cannot perform its designated function if the lower court’s rationale is not provided.
We conclude that the lower courts inadequately articulated the bases for the denials of summary judgment on the multiple grounds alleged by DHHR. The lower courts failed to address the separately designated immunities raised and thereby failed to provide an adequate basis for judicial review of these immunity issues. We consequently remand these cases for thorough evaluation of each of the immunities alleged by DHHR and the fashioning of lower court orders specifying the rationale for the decisions in each separate allegation of immunity and containing sufficient findings of fact and conclusions of law to permit meaningful review by 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 Kanawha County order denying summary judgment, for instance, stated only that "the Court finds that genuine issues of material fact remain to be determined in this matter and, rather than to invite error at this stage of the litigation, this matter should proceed to jury trial.” The Jefferson County order similarly denied the summary judgment motion indicating only "that there are genuine issues of material fact and that the motion for summary judgment should be denied.” | [
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MAYNARD, Justice:
Linda Miller and Justin Miller, plaintiffs in a personal injury case, appeal the final order of the Circuit Court of Clay County entered April 4, 1997. The appellants raise three issues on appeal in support of their prayer for a new trial. The appellants also raise as error the circuit court’s remittitur of Justin Miller’s award, and the ordered splitting of court costs between Linda Miller and Charles Triplett. We affirm the judgment of the circuit court.
Upon reviewing the record, briefs, and arguments of counsel, this Court finds the appellants waived all errors which would support the award of a new trial by failing to comply with Rules 59(b) and 59(f) of the West Virginia Rules of Civil Procedure. We, therefore, decline to consider the plaintiffs’ assignments of error in support of their prayer for a new trial. Also, we find that the circuit 'court did not abuse its discretion in ordering remittitur and splitting court costs. Accordingly, we affirm the final order of the Circuit Court of Clay County.
I.
FACTS
On July 14, 1993, Linda K. Miller was driving a vehicle on Route 19 in Clay County, West Virginia. Linda Miller’s son, Justin Miller, was a passenger in the vehicle. The Millers’ vehicle was struck from behind by a car being driven by Charles H. Triplett. On July 13, 1995, the Millers sued Mr. Triplett for injuries and other expenses arising out of the collision.
A trial was held on January 8 and 9, 1997. The jury found in favor of the plaintiffs and awarded Linda Miller $9,000 and Justin Miller $5,000. Following the verdict, the court invited the parties to make post-trial motions. The appellants failed to make a motion for a new trial, despite being given ample opportunity to do so. On April 4, 1997, judgment was entered on the verdict. Thereafter, the appellants neglected to serve a written motion for a new trial within ten days from the entry of judgment in accordance with Rule 59(b) of the West Virginia Rules of Civil Procedure. In fact, the appellants completely failed to make a motion for a new trial before the circuit court. Instead, the appellants attempted to raise errors in support of their prayer for a new trial for the first time with this Court.
II.
DISCUSSION
On appeal, the appellants pray that this Court will grant them a new trial citing three errors by the circuit court. First, the appellants assert the circuit court erred in giving the jury a “missing witness” instruction pertaining to certain medical personnel. The circuit court gave an instruction which essentially stated that if the jury believed the plaintiffs received treatment from medical providers for injuries sustained in the accident, then the failure of the plaintiffs to call the medical providers as witnesses or to otherwise explain their absence gives rise to an inference that the witnesses would have testified adversely to the interest of the plaintiffs. The appellants argue that the court should not have given a missing witness instruction because the witnesses were equally available to both parties, the testimony would not be materia], and the testimony would be cumulative of other evidence offered at trial. Second, the appellants contend the circuit court refused to permit their chiropractor, Stephen Wolford, to testify to a reasonable degree of medical certainty about the plaintiffs’ future injuries. Due to the appellants’ failure to file a motion for a new trial and the waiver which resulted, this Court declines to consider the issue at this time. Finally, the appellants argue the circuit court improperly prevented one of their witnesses from testifying about an out-of-court statement made by a witness for the defendant.
Upon review of the record, we decline to consider the issues presented because they were not properly preserved with the trial court. In Syllabus Point 2 of State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996), this Court stated, “To preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.” The Court further explained that “[t]he rule in West Virginia is that parties [seeking to preserve an issue for appellate review] 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.” Cooper, 196 W.Va. at 216, 470 S.E.2d at 170.
In the instant case, the appellants waived the errors which occurred during the trial by failing to make a .motion for a new trial before the circuit court. Under our common law, it was axiomatic that,
[i]f errors or supposed errors are committed by a court in its rulings during the trial of a case by a jury, the appellate court can not review these rulings, unless, first, they were objected to when made and the point saved and a bill of exceptions taken showing these rulings during the term of the court, and unless, second, a new trial was asked of the court below and refused, and such refusal objected to in the court below, and this appears of record. If either of these essentials is omitted, the appellate court can not review the rulings.
Syllabus Point 1, in part, Danks v. Rodeheaver, 26 W.Va. 274 (1885). This requirement of moving for a new trial in order to preserve certain errors occurring during the trial was retained with the adoption of West Virginia Rule of Civil Procedure 59(f) which states:
If a party fails to make a timely motion for a new trial, after a trial by jury wherein a verdict is returned without a direction thereof by the court, the party is deemed to have waived all errors occurring during the trial which he might have assigned as grounds in support of such motion; provided that if a party has made a motion under Rule 50(b) for judgment in accordance with his motion for a directed verdict and such motion is denied, his failure to move for a new trial is not a waiver of error in the court’s denying or failing to grant such motion for a directed verdict. (Emphasis added.)
The continued operation of our common law requirement was confirmed in Taylor v. Miller, 162 W.Va. 265, 249 S.E.2d 191 (1978), a decision rendered after the adoption of the Rules of Civil Procedure. Taylor concerned an eminent domain proceeding. There, it was recognized that Rule 72 of the West Virginia Rules of Civil Procedure, which triggers the beginning of the appeal time upon the trial court’s “granting or denying a motion for a new trial under Rule 59,” was not applicable since eminent domain proceedings are excluded from the operation of the Rules. The appellant contended that “no similar requirement exists outside the Rules of Civil Procedure mandating that a party file a motion for a new trial in order to have an appeal.” Taylor, 162 W.Va. at 269, 249 S.E.2d at 194 (emphasis added). Justice Miller stated, however:
The landowner acknowledges that W.Va. Code, 56-6-28, governs the procedure to be followed in granting a new trial in “any civil case or proceeding,” but insists this statute is not mandatory. This Court has held, however, that in order for appellate review of an alleged trial error to be had, the party asserting error not only must object when it is made and file a bill of exceptions, but must also request a new trial, have it refused by the trial court, and object on the record to the refusal.
Taylor, 162 W.Va. at 269-270, 249 S.E.2d at 194 (footnote and citations omitted). The Court concluded in Syllabus Point 3 that “[i]n an eminent domain ease, a motion for new trial must be filed and overruled in order to preserve trial errors for purposes of appellate review.”
Rule 59(f) has recently been amended. The 1997 Advisory Committee Note to that amendment states in part:
As in the federal system, the making of post-trial motions under Rule 50 or Rule 59 is not a jurisdictional prerequisite for appeal. But while our subdivision (f) does not make a Rule 59 motion jurisdictional, it does impose a penalty on the party who fails to make such a motion, that penalty being that the party is then “deemed to have waived all errors occurring during the trial which [the party] might have assigned as grounds in support of such motion.” If the motion for a new trial or to alter or amend a judgment is made, however, no such grounds are deemed to have been waived, even if they are not specifically stated in the motion. It can thus be argued that Rule 59(f) functions more as a procedural trap for the unwary or inexperienced attorney than it does as a mechanism for adding substance and meaning to the post-trial process.
On the other hand, a Rule 59 motion for a new trial or to alter or amend a judgment is the only post-trial motion that permits the trial judge to consider errors that the judge is alleged to have committed during trial (other than its “error” in refusing to grant a Rule 50(b) motion for judgment notwithstanding the verdict). It can thus also be argued that Rule 59(f) is an appropriate mechanism through which to encourage, if not require, litigants to bring such alleged errors first to the attention of the trial judge who they claim made them, thus giving the trial judge the first opportunity to address the alleged errors, decide if they actually were errors, determine if any errors need to be corrected, and, if so, decide upon the best way of doing so. This procedure also assures that the Supreme Court of Appeals has before it the most complete record possible relative to the alleged infirmities that it is being asked to remedy.
A careful reading of this commentary reveals that not every trial error has to be specifically set forth in the motion for a new trial in order to raise that error on appeal. Rather, as long as a motion for a new trial is timely filed, all errors occurring during the trial which were objected to at the trial are properly preserved even though not specifically identified in the motion for a new trial. For example, a party timely filing a motion for a new trial in which one error is asserted may proceed to raise fifty alleged errors on appeal. If no motion for a new trial is made, however, the alleged errors occurring during trial which a party might have assigned as grounds in support of the motion are waived. As stated in the commentary, a motion for a new trial on the grounds of alleged errors occurring during the trial gives the trial judge one last chance to correct any error made during the trial. The requirement of Rule 59(f) is in accord with our common law. The requirement is fair and it is logical. We find, therefore, if a party fails to make a timely motion for a new trial, Rule 59(f) of the West Virginia Rules of Civil Procedure bars consideration on appeal of alleged errors which occurred during the trial which a party might have assigned as grounds in support of a motion for a new trial.
The time period for making a motion for a new trial is found in Rule 59(b) which states, "A motion for a new trial shall be served not later than 10 days after the entry of the judgment." This Court has explained the rule by stating, "The requirement of Rule 59(b) of the Rules of Civil Procedure that a motion for a new trial shall be served not later than ten days after entry of the judgment is mandatory and jurisdictional. The time required for service of such a motion cannot be extended by the court or by the parties." Syllabus Point 1, Boggs v. Settle, 150 W.Va. 330, 145 S.E.2d 446 (1965).
Taken together, Rule 59(b) and Rule 59(f) plainly state that if a party fails to serve a motion for a new trial within ten days from the entry of judgment, the party is deemed to have waived all errors that occurred during the trial which could be assigned in support of a motion for a new trial. These rules are clear and unambiguous. As stated above, the rules were designed to allow trial courts to correct errors which occur during trial before the decisions are reviewed on appeal.
In the case before us today, the appellants failed to make a motion for a new trial at any time before the circuit court. It is incumbent upon parties to adequately preserve errors for appeal. By failing to move for a new trial, the appellants waived the three trial errors which they now attempt to raise on appeal in support of their prayer for a new trial. The appellants failed to make an oral motion for a new trial, and failed to serve or file a written motion for a new trial with the circuit court. The first time the appellants made a motion for a new trial was when their Petition for Appeal was filed with this Court on July 31, 1997, which is more than three and a half months after the entry of the judgment order. This was not only well beyond the 10-day time limit imposed by Rule 59(b), but it was also filed with the wrong court.
The appellants also raise as error the circuit court's remittitur of Justin Miller's award, and the circuit court's splitting of de minimis costs between the parties. These issues are left to the discretion of the trial court and will not be disturbed on appeal unless the court abuses its discretion. See Abdulla v. Pittsburgh & Weirton Bus Co., 158 W.Va. 592, 213 S.E.2d 810 (1975) (remit-titur is reviewed for abuse of discretion) and Perdomo v. Stevens, 197 W.Va. 552, 476 S.E.2d 223 (1996) (assessment of court costs is reviewed under an~ abuse of discretion standard). The circuit court reduced Justin Miller's award from $5,000 to $3,922.50, find ing that the jury’s award for medical expenses was greater than the amount placed into evidence at trial. W.Va.Code § 58-2-5 (1923) permits trial courts to amend jury verdicts in order to conform with the evidence presented at trial. Also, the circuit court split court costs, finding that Justin Miller’s award was more than Mr. Triplett’s offer of judgment, and Linda Miller’s award was less than Mr. Triplett’s offer of judgment. Linda Miller was ordered to pay half the court costs, and Mr. Triplett was ordered to pay half the court costs. Rule 68(c) of the West Virginia Rules of Civil Procedure states, in pertinent part, that “[i]f the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.” We find no error in the circuit court’s rulings regarding the remittitur and court costs issues.
III.
CONCLUSION
We issue this opinion today to send a forceful message to attorneys. The ramifications of failing to make a motion for a new trial after the entry of judgment, pursuant to Rule 59(b), are harsh. If such a motion is not made below, we will not consider on appeal perceived errors which would support the granting of a new trial. This is in accordance with the plain language of Rule 59(f). Accordingly, the final order of the Circuit Court of Clay County is affirmed.
Affirmed.
. The jury found that Linda Miller was 30% negligent; Linda Miller's award was reduced to a net recovery of $6,300.
. Justin Miller's award was subsequently reduced to $3,922.50, upon the defendant’s motion for remittitur.
. We recognize the brief of the amicus curiae, the West Virginia Chiropractic Society, which urges the Court to adopt the view that chiropractors are competent to give opinion testimony in personal injury cases. As we do not reach that issue at this time, we invite the West Virginia Chiropractic Society to file a brief at a later time should this issue arise in a reviewable context.
. During trial, the defendant's expert, Dr. Paul Bachwitt, testified that he could not find that Linda Miller had a continuing injury that could be attributed to the car accident, to a reasonable degree of medical certainty. Dr. Bachwitt finished testifying and was excused. Before Dr. Bachwitt testified. Deputy Randy Holcomb approached the plaintiffs’ attorney and disclosed that he spoke to Dr. Bachwitt before Dr. Ba-chwitt testified. Deputy Holcomb advised the plaintiffs' attorney that Dr. Bachwitt stated, "I don't know why I’m here, this lady is obviously not faking.” During Dr. Bachwitt’s testimony, the plaintiffs did not question him about the statement he allegedly made to Deputy Holcomb. Instead, the plaintiffs attempted to call Deputy Holcomb to the stand to testify about Dr. Ba-chwitt's out-of-court statement. The defendant objected. The court sustained the objection because the plaintiffs, having previous knowledge of the statement, failed to question Dr. Bachwitt about the remark while he was on the stand.
. We reiterate that in affirming the decision of the circuit court, we decline to comment on the merit of the issues raised on appeal because the issues were not properly preserved in the court below.
. See footnote 6, infra.
. The amendment to Rule 59(f) became effective April 6, 1998. The amendment makes no substantive changes to the rule. Specifically, the phrase "wherein a verdict is returned without a direction thereof" is changed to "in which judgment as a matter of law has not been rendered;” “a directed verdict" is changed to "judgment as a matter of law;” and the words "he” and "his” are changed to "the party” and "the party’s.”
. We strongly emphasize, however, that failure to make a motion for a new trial after the entry of judgment results only in a waiver of errors occurring during the trial which the party might have assigned as grounds in support of the motion for a new trial. It does not waive other alleged errors such as those listed in West Virginia Rule of Civil Procedure 60(b) which includes, for example, an appeal based on fraud, surprise or newly discovered evidence. Also, as noted in the language of Rule 59(1), a party's failure to file a timely motion for a new trial does not waive the right to appeal the denial of a Rule 50(b) motion for judgment notwithstanding the verdict. (We note that the designation of a Rule 50(b) motion as a "motion for judgment notwithstanding the verdict" has been changed to a "judgment as a matter of law" in the amendment of Rule 50 effective April 6, 1998.)
. At the oral presentation of this case, the appellants' counsel stated that he did not make a motion for a new trial for tactical reasons, rather than inadvertence or ignorance. We are at a loss to determine any tactical advantage which can be garnered from failing to make a motion for a new trial and strongly discourage attorneys from making such a decision in future cases. | [
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RobiNSON, Judge:
Plaintiff, the Birch River Boom and Lumber Co., by this suit in equity obtained the appointment of a receiver for certain property of defendant, the Glendon Boom and Lumber Co. The property embraced in the receivership was the personal property which plaintiff had. sold to Austin, Neib and Yarlett and which these last named parties had sold or transferred to the Glendon Boom and Lumber Company. The receivership was granted on the ground that plaintiff, when it sold the property to Austin, Neib and Yarlett, retained a vendor’s lien thereon for a largo sum of unpaid purchase money; that Austin, Neib and Yarlett and the Glendon Boom and Lumber Co. were insolvent; that the business and property of the Glendon Boom and Lumber Co. had been deserted by it and those interested in the management of its affairs; and that creditors by execution and otherwise were proceeding to subject the property to forced sale, so that plaintiff’s claim for purchase money could only be conserved and the rights of all creditors fairly protected by the interposition of a receiver. Only property which had been transferred from the plaintiff company to the defendant company through Austin, Neib and Yarlett was brought within this receivership. It embraced simply the property that related to the vendor’s ■ lien claimed by plaintiff.
Prior to the appointment of the receiver, an execution in favor of Gallaher had been levied on the property to which that appointment related. The levy of the Gallaher execution extended also to property not within the receivership. This outside property was also levied on subsequently to the Gallaher levy by other execution and attaching creditors. There was no further effort to enforce the Gallaher process as to the property not within the receivership. Perhaps Gallaher was satisfied that his levy covered property in the custody of the receiver amply sufficient for the recovery of his debt therefrom in the receivership proceedings; for undoubtedly his lien on it was prior to plaintiff’s lien since the bill admits that the latter was not recorded. But as to his reasons in the premises we need not concern ourselves. It suffices to say that the other creditors went on to sales of this outside property under their writs, without contest at the time on the part of Gallaher whose levy was also the prior one on that property.
Later, plaintiff filed an amended and supplemental bill bringing in these other creditors, the officer executing the writs, and the purchasers at the sales thereunder, seeking to make them account for their acts in the premises. One theory of this bill was that the property with which these parties had dealt belonged to the receivership; another, that, the property being subject first to the Gallaher levy, plaintiff could cause it to be applied to the Gallaher debt so as to relieve the other property to that extent and thereby enhance the security of plaintiff’s lien. On the amended and supplemental bill an injunction was obtained restraining and inhibiting Elder, Marple and Frame, who had purchased at the officer’s sale, from “removing and otherwise interfering with the logs, lumber and other personal property belonging to the defendant Glendon Boom & Lumber Co., on the 26th day of February, 1909.” The date named was that on which the receivership had been ordered by the court.
Soon thereafter the case was heard on motions to dissolve the injunction, answers and affidavits. The court entered an order dissolving the injunction “as to all property not purchased by the Glendon Boom & Lumber Co. from the Birch River Boom & Lumber Co., as to the purchasers of the property aforesaid.” From this order plaintiff has prosecuted appeal and supersedeas as to Elder, Marple and Frame.
The court did right in dissolving the injunction. The answers and affidavits show that the property purchased by Elder, Marple, and Frame did not belong to the receivership. So that phase of the case was rightly settled. It is quite clear from the verbiage of the orders awarding and dissolving the injunction that the court meant to confine its action in each particular to the property within the receivership. Then, as to the other phase. Even plaintiff’s bills made no case warranting a marshaling of the Gallaher lien. Whatever may be the efficacy of a reservation of vendor’s lien in a duly recorded writing transferring personal property, a point on which we express no opinion, certain it is that the unrecorded lien claimed by plaintiff could be no more than a mere equity, good between the parties to the vending as to which the reservation of lien related, but not good as to those having no actual notice thereof. Cole v. Smith, 24 W. Va. 287. It was good as between plaintiff and Austin, Neib, and Yarlett, but the fact does not appear that it was good as to the Glendon Boom and Lumber Company. For the lien to be good against the latter, that company must, at the least, have had notice of it when the property was taken over from Austin, Neib and Yarlett. Notice in this particular is not shown. Iiow then can plaintiff maintain that it has the right to assert such a lien by a marshaling of the Gallaher lien? The lien debtor is not a common one. To invoke the doctrine of marshaling securities both sources of payment must belong to a common debtor. 9 Enc. Digest Va. So W. Va. 599; 1 Jones on Liens, (2nd ed.) 1046. But in this case the Glendon Boom and Lumber Company, the lien debtor of Gallaher, is not the lien debtor of plaintiff; for, the Glendon Boom and Lumber Company took over the property without notice pi the lien reserved by plaintiff in the sale to Austin, Neib, and Yarlett. Thus the property of the Glendon Boom and Lumber Company is not bound for the payment of that lien. It is not a source of payment therefor. The lien does not exist as to the Glendon Boom ■and Lumber Company. Indeed it does not appear from the record that the Glendon Boom and Lumber Company ever assumed in any way to pay this purchase money debt of .Austin, Neil), and Yarlett.
But were it shown that by reason of notice the lien claimed by plaintiff continued on the property as to the Glendon Boom and Lumber Company, how could that lien be marshaled, to the detriment of the creditors holding liens on the other property? They are not shown to have had notice of plaintiff’s lien when they acquired their liens on this other property. Unless they had notice of the lien, they had no notice of any equity whereby it could be protected by a marshaling. We need not say whether notice of plaintiff’s unrecorded lien would be good as to those creditors even if they had notice of it. The fact suffices that notice does not appear. So plaintiff showed no superior equity whereby it could cause the marshaling it sought. It could not cause a shifting of the Gallaher lien from the one property to the detriment of the diligently acquired legal liens on the other property, though those liens were subsequent to that ■of Gallaher, unless it showed an equity superior to the rights of the holders of those liens. In any event, plaintiff’s equity could not be superior to the rights óf other lien holders having absolutely no notice of it when they acquired their liens. “One thing is very clear, that securities will never be marshaled to the injury of those persons over whom the party claiming the benefit of the principle has no superior equity.” Lee v. Swepson, 76 Va. 173.
Before the appeal and supersedeas was obtained, the court had entered a decree denying the relief prayed for and dismissing the bills as to Elder and Erame. No appeal was sought or granted as to this final decree. The appeal, as we have stated, was confined solely to the interlocutory order dissolving the injunction as to Elder, Marple, and Frame. It did not'bring up for review this subsequent decree settling the cause as to Elder and Frame, though that decree was entered prior to the appeal. Hopkins v. Prichard, 59 W. Va. 363. The record discloses that the'limit has expired in which there could have been appeal from the final decree as to Elder and Frame. Even if there had been error as to them in dissolving the injunction, it would have been merged in the final decree which now stands un-appealable. We would not reverse as to Elder and Frame, for that would be vain, since the final decree dismissing the suit as to them is unassailable because of lapse of time. “An appeal or writ of error may be dismissed if, pending it, an event occurs which makes a determination of it unnecessary,, or renders it impossible for the appellate court to grant effectual relief.” 3 Cyc 188; 2 Enc. U. S. Sup. Ct. Rep. 289-292; Baker v. Tappan, 56 W. Va. 349.
However, the final decree ending the cause as to Elder and Frame does not include Marple. So we must take cognizance of the appeal as to him. And we have shown that no error was committed in dissolving the "injunction by which he was restrained from removing the lumber he had purchased at the .sales made by the officer. It may be said that Marple had not answered the amended and supplemental bill — had made no defense in the cause. That does not matter. The answer and .affidavits of Elder, under whose writs he purchased, and under whom he holds, made a complete case for him.
' As to Elder and Frame the appeal will be dismissed; as to Marple the order complained of will be affirmed.
Affirmed in part. Dismissed in part. | [
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POEEENBARGER, JUDGE :
Complainant’s bill, praying alternatively for compulsory release of a deed of trust, or, permission to redeem therefrom, in ease a balance shall be found due the creditor, was dismissed as not stating a case of equitable cognizance, or not showing ground of relief.
As to jurisdiction in equity there is no doubt. The deed of trust is really a modified form of mortgage and courts of equity have always entertained bills to redeem from mortgages. Lawrence v. DuBois, 16 W. Va. 443; Clark v. Long, 4 Rand. 451. If the amount of the debt secured by a deed of trust is uncertain for any reason, there is jurisdiction in equity to determine the amount and status thereof in advance of a sale. It is the duty of the trustee, before sale, to institute a suit to remove the uncertainty as an impediment to the sale, and either the debtor or the creditor may do so. George, Trustee, v. Zinn, 57 W. Va. 15.
It remains only to say whether the pleadings and proof show any cause for resort to a court of equity. The bill claims entire satisfaction of the debt by payment, and also denies any indebtedness on account of the secured notes. As the evidence shows only cross demands, its admissibility under the allegations of the bill is denied, but we think it is admissible under the general denial of indebtedness. Such denial would be a good plea in an action of debt and the rules of equity pleading are more liberal than those applicable to common law proceedings. Columbia &c. Co. v. Fierbach, 59 W. Va. 334; Powell v. Parkersburg, 28 W. Va. 698.
The present holder of the notes is the executor of the will of a deceased assignee thereof, and the sets-offi are demands against her assignor, acquired before the assignment. The notes are non-negotiable and the complainant claims the assignor agreed, while he held them, to allow credit thereon for the amount of the cross demands. They were executed April 14, 1886, and made payable to Jasper M. Porter, who, in 1893, assigned them to James M. Porter, complainant’s alleged debtor. In 1907, the latter assigned them to his sister, Fannie Porter McBride, who has since died. Complainant is an attorney at law and was, at one time, after the execution of the notes, clerk of the county court of his county. As such attorney and clerk, as well as commissioner and trustee in divers transactions, he claims to have performed services for James M. Porter on many occasions, on account of which the latter became indebted to him in numerous small sums, which, it is claimed, he agreed to allow as credits on the notes. He swears James M. Porter obtained the notes from Jasper M. Porter, the original holder, to enable him to give credit thereon for the amount of said cross-demands. The largest credit so claimed grew out of a transaction respecting an oil lease. In the year 1889, the complainant purchased an interest in the Tope oil lease, owned by James M. Porter, and under which a productive oil well was drilled. Porter held the title to the lease and managed the business. Some years later, he sold it and all of the fixtures connected with it, but never rendered any account to the complainant. Just what it was worth or what it sold for is not disclosed, but a charge of $600.00 is made against Porter on account of complainant’s interest in it.
In the absence of an agreement to give credit on the trust debt for the amounts of these claims, they would have no connection therewith, and would amount to no more than ground for an action at law to recover them, or such of them as are well founded. But the complainant testifies substantially that Porter agreed to allow, as credits on the notes, such sums as might be found due from him. Porter makes no denial of some of the claims, dating back many years, and procured the notes, as' complainant says he promised to do, and held them from 1893 until 1907, collecting nothing on account thereof except $150.00, in December, 1895, nor demanding payment. This conduct harmonizes perfectly with the alleged agreement, and is inconsistent with any other theory. The express testimony as to the agreement is very general and indefinite and relates more directly to the oil well interest than anything else, but we think it is aided materially by the circumstances and conduct of the parties. The witness says he wanted a settlement for his interest in the oil well and kept insisting upon it and was put off; and that finally Porter said “he would lift the note himself” and they “could settle afterward.” Again he says he importuned Porter, in 1893, for a settlement as to the oil well interest, saying he wanted to use the money to pay the notes, then held by Jasper M. Porter, and this effort resulted in Porter’s promise to “lift the notes” and allow complainant to settle with him. They were evidently procured in that year. Porter makes no denial of this statement, nor, in most instances, of his indebtedness for the items of the account exhibited against him. Some of these are for money actually expended for his benefit. .To refuse credit for them at this late day would subject all of them to the bar of the statute of limitations, should it be invoked, and complainant seems clearly to have relied, in his forbearance, upon the agreement set up.
As the notes were not negotiable, they are subject to all proper credits in the hands of assignees. Hence neither the assignment to Mrs. McBride nor her subsequent death' bars complainant’s right. That the the equity here is against an as-signee, not the original creditor, is immaterial. The purchaser of a chose in action abides the case of the person from whom he buys. Darris v. Auston, 1 Ves. 249; Thomas v. Linn, 40 W. Va. 122.
Complainant may not be entitled to an allowance of all his claims, since' there seem to have been other transactions between the parties in which he may have gotten the benefit of some of them, and possibly some of them may never have been well founded. The trial court, deeming none of them allowable, seems not to have inquired as to the merits of each separate and distinct demand. As the inquiry and settlement will involve numerous inquiries of fact and extensive calculations, the cause seems to be one proper for reference to a commissioner, but that lies within the discretion of the trial court.
As it may be necessary to order a sale of the property, the trustee should be made a party by amendment.
Por the reasons stated, the decree will be reversed and the cause remanded for further and full inquiry as to the amount of the complainant’s indebtedness on account of the notes in question, if any, and for final disposition in accordance with the rules and principles of equity.
Reversed and Remanded. | [
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KobiNSON, Judge:
The Sheriff of Lincoln County proceeded under Code 1906, ch. 30, sec. 15, for the collection of taxes assessed against the Lincoln County Land Association. That officer gave notice in Writing to the Eureka Pipe Line Company to appear before the Circuit Court of the county on a day fixed, there to answer respecting oil in its possession belonging to the land association, so that the oil might be ordered sold for the payment of, the taxes. The pipe line company answered the notice, setting forth the amount of oil in its hands. At the same time, the land association appeared and filed its petition in the proceeding, alleging that the assessment was illegal and invalid and that the taxes constituted no charge on the property sought to be sold. Upon a hearing of this petition the court dismissed it. Of this dismissal the land association complains by writ of error.
The proceeding authorized by the statute named, and under which the sheriff proceeded, is no more than a summary garnishment for the collection of taxes. The statute does not require notice to the tax debtor. This.absence of notice is not unusual in ordinary garnishment proceedings. Where the debtor has had notice in the principal action, notice to the debtor is hot essential in garnishment for the collection of the judgment, unless required by statute. 14 Amer. & Eng. Enc. Law 756. In a garnishment for taxes, the notice of the assessment which the tax payer has, or with which the law charges him, is analogous to the notice in the principal action in ordinary cases. In such a case, the assessment proceeding is the principal action, and the assessment itself the judgment.
Though notice to the tax debtor is hot by the statute made essential to the garnishment proceeding, yet when the tax debtor appears and intervenes in the proceeding it would seem that, jipon a proper showing, he should be heard. The court is dealing with his property; surely it will hear him in relation to the same if he comes with a good case. Certainly he will be permitted to show that the tax sought to be recovered from his property is totally void by reason of fundamental defects which gave no jurisdiction for the assessment, provided of course that he can take his case out of the rule which requires him exclusively to complain against such invalidity in the ordinary statutory way for the correction of erroneous assessments. Under our recent decision in West Virginia National Bank v. Spencer et al., decided this term, he would have to take his case clearly out of the statute there construed and applied. Acts 1907, ch. 80, sec. 18. lie would have to exonerate himself plainly from the force of that statute, which requires every owner of property liable to assessment to apply for relief from erroneous assessment to the board of review and equalization or be precluded thereafter from questioning his assessment. Perhaps the person charged with taxes can' do this if he had absolutely no property liable to assessment, so that he had nothing to put him on notice of the assessment against him. But only a showing that he was not chargeable with notice which sho'uld have caused him to apply for relief to the board of review and equalization, or a showing of some other' equally weighty reason why he did not so apply, will excuse him from not doing so. The mere illegality of the assessment will not do. That can be tested in the proceeding before the board. He must show that which excuses him for not resorting to that proceeding.
We hold that if the person charged with taxes which are sought to be collected from his property in the hands of another, by the statutory garnishment to which we have referred, intervenes with a good case from which he is not precluded by reason of his failure to seek relief by a proceeding begun before the board of review and equalization, he may be heard. Tha garnishment proceeding is one to collect the tax. If the tax is invalid, and he comes with a sufficient showing, why should he not be permitted directly to strike at the invalidity of the tax in the very proceeding by which it is sought to be collected ?
Now, the land association, by its petition, came and said that it did not have the property which was assessed — that the property was not at all in existence at the period of assessment for the year as to which the tax was entered, 1909. It showed that the assessment was made, not by the assessor, but by the board of review and- equalization, on the initiative and motion of that board. It alleged that the assessment thus put on the books by the board was founded only on an estimate, for the year 1909, of the produce of oil royalties reserved in leases of its lands, which royalties of course had not accrued for that year at the period of the assessment therefor. It maintained that the lands were taxed; that the royalties were not taxable. Thus it claimed that the tax was illegal and invalid.
But the petition of the land association did not show that it had no notice of the assessment in time to test the same by a proceeding begun before the board of review and equalization and by appeal therein, as provided by the statute. It did not show that it had no opportunity to test the validity of the assessment in that manner. For all that appears by the petition, the board made this assessment after due notice to the land association and full opportunity for it to object to the same and to appeal therefrom. Want of notice of the assessment cannot be assumed. Again, for all that appears from the petition, the land association may have contested the making of this assessment before the board. If it did so, or had opportunity to do so, it could not be heard in this proceeding for the collection of the taxes. Its remedy was by a proceeding begun before the assessment board; and if it chose not to take advantage of that remedy, the assessment is foreclosed against it. For failure to show grounds which would excuse the land association for not testing the legality of the assessment in the manner provided by Acts 1907, ch. 80, see. 18, and sec. 129, the petition was insufficient to Avarrant any relief in the garnishment proceeding. West Virginia National Bank v. Spencer, supra.
The petition was properly dismissed. The order will be affirmed.
Affirmed. | [
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Millee, Judge:
In a suit to wind up and settle a partnership, the fact of partnership alleged in the bill and denied in the answer, is fully established by proof, as found by the commissioner and decreed by the court, and we will not further consider that question.
The commissioner’s report and supplemental report, the latter, as shown thereby, made on request of the parties, and to which exceptions of plaintiff thereto, not in the record, appear to have been sustained, show, assets not sold, credits due the firm not collected, and liabilities of the firm aggregating a large sum unprovided for.
Notwithstanding this unsettled condition of the co-partnership the court below, by the decree appealed from, on the showing of the commissioner’s original report that defendant had drawn from the partnership funds the sum of $2,425.99, in excess of the amount drawn by plaintiff, and on the assumption that defendant had also withdrawn from the firm the additional sum of $577.92, which he had used in the business of the Moore Construction Company, of which he was a member, and with which the latter company stood debited on the books of the co-partnership, as an item of assets of said firm, and being of opinion that plaintiff was entitled to half of these two sums, aggregating $1501.95, adjudged that he recover of defendant this sum with interest and costs.
As held in numerous cases in this and other courts, and laid down in many text books, it is error on a partial settlement for the court to give a personal decree in favor of one partner and against another for a balance found due him on such partial settlement. Bartlett & Stancliff v. Boyles, 66 W. Va. 327; Moore v. Wheeler, 10 W. Va. 35; 2 Bates on Part., section 971; Hyre v. Lambert, 37 W. Va. 26; Carper v. Hawkins, 8 W. Va. 291.
All that court and counsel need do in cases of this character in order to avoid error is to observe and follow the rules clearly laid down in these decisions. It' is too bad, that by neglecting them in this case so much unnecessary cost and expense has been incurred in the vain attempt to settle up the business of so small a concern. The decree below will be reversed and the cause remanded for further proceedings.
Reversed and Remanded. | [
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Williams, Judge:
H. W. Ilerold and thirty-nine other tax payers of Nicholas county, suing on behalf of themselves and all other tax payers of said count}'-, • filed a bill against the sheriff, the board of directors of the Nicholas County High School, and the county court of said county, to enjoin the collection of a certain tax which had been levied for the purpose of raising funds with which to purchase ground in the town of Summersville, or near thereto, for the erection of a county high school building thereon, pursuant 'to a special act of the legislature, passed at the regular session of 1911. A temporary injunction was awarded, but was later dissolved on motion of defendants, after due notice. From that order of dissolution, made on the 27th of November, 1911, plaintiffs have appealed.
In view of the nature of the case, it being one affecting the interest of all the citizens of a county, we thought we ought to determine it as soon as possible; and, therefore, we have taken it up for decision out of its regular order on the calendar of submitted cases.
The bill assails the act creating the Nicholas County High School on the alleged ground that it contravenes certain provisions in the Constitution; and counsel for appellants, in their brief, assign a number of reasons why they think the act should be held to be unconstitutional.
For a few years after the adoption of the United States Constitution it was a much mooted question, whether or not the court had the power and the right to declare an act of Congress to be void on the ground that it contravened some provision of the Constitution. Many able lawyers thought it was not in the power of the court to do so. Among those who held to that view was the eminent statesman, Thomas Jefferson. But the question was early set at rest by the Supreme Court which, in opinions handed down by the court in 1803, and in 1810, prepared by the distinguished Chief Justice, John Marshall, in Marbury v. Madison, 5 Cranch 49, and in Fletcher v. Peck, 6 Cranch 87, held that the court had such constitutional power. These are the leading-cases on the subject, and they have been since followed, not only by the United States courts, but bjr the state courts as well. “But," says the Chief Justice in Fletcher v. Peck, “it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility witli each other.”
Every presumption, therefore, is in favor of the validity of the legislative enactment; and, unless the court can clearly see that the act is contrary to the fundamental law, it ought not to declare it unconstitutional. If the court entertains a do-ubt that is enough to determine the question in favor of the legislative act. For the rule is, that the court must be clearly and strongly convinced of its unconstitutionality before it will be justified in declaring an act void. It is a grave responsibility for the court to sit in judgment upon the acts of a co-ordinate branch of the government, and it should approach such a task with the greatest of caution, and should alwajrs be sure of its footing before pronouncing their void.
Counsel claim that the act in question violates sec. 39, Art. VI of the Constitution, which reads as follows, viz:
“The legislature, shall not pass local or special laws in.any of the following enumerated cases; that is to say, for * * *
“Regulating or changing county or district affairs; * * *
“The opening or conducting of any election, or designating the place of voting; * * * *
“The legislature shall provide, by general laws, for. the foregoing and all other cases for which provision can be so made; and in no case shall a special act be passed, where a general law would be proper, and can be made applicable to the ease, nor in any other case in which the courts have jurisdiction, and are competent to give the relief asked for.”
The act provides for the establishment, in the town of Sum-mersville, or near thereto, of the Nicholas County High School, and creates a board of directors which is to consist of five members. It constitutes the president and commissioners of the county court and the county superintendent of free schools, ex officio, members of said board, and gives them full power to act until the fifth member is elected, whose election is to take place at the next general election after the passage of the act. The board of directors is given the power to manage and control the school, emplojr teachers and fix their salaries, prescribe courses of study, and grant diplopias of graduation. It is also empowered to levy taxes for the purposes of raising revenue to purchase the necessary grounds, erect a school building thereon and maintain the school. The funds provided for are to be collected and disbursed by the sheriff. The act also provides that, before it shall become effective, it shall be submitted to toe voters of Nicholas county for their ratification or rejection, at a special election to be ordered by the county court, notice of which is to be published for a given time before the election is had. Such special election was ordered and taken, and a majority of the votes cast in the whole county was for the high school, although a majority of the votes in some of the magisterial districts was against it.
The act does not attempt to regulate or change the county and district affairs of Nicholas county. Such county and district affairs as the legislature is inhibited from regulating or changing by a local or special act, are still carried on in that county under the general laws applicable alike to all the counties and districts of the state. The act only creates a county high school, and provides for its support by a tax to be levied on the tax payers of the whole county; it does not work a change in, or operate as a regulation of, the general county and district affairs which already existed, but it is a creation of something in addition thereto. It makes no change in the plan provided by general law for the creation of district high schools; and, under the general law, any two ox more districts of Nicholas county may still combine and establish district high schools.
It is insisted that the act violates the constitutional inhibition upon the legislature to pass a special act “where a general law would be proper and can be made applicable to the case.” But must not the legislature determine for itself, before passing the law, whether or not a general law can be made applicable to the case? We think clearly that the question is chiefly one of expediency, a matter for legislative, and not judicial, judgment. Whether of not a special act is proper, for the reason that a general law can not be made applicable to the case, often depends upon facts, circumstances and local conditions which do not appear on the face of the act; and to ascertain whether such facts and conditions exist, as will justify a special act, is a preliminary question, for jthe legislature, and the passage of the special act must be taken as an expression of the legislative opinion that they do exist. The determination of such preliminary matters by the legislature is not reviewable by the courts; they are not judicial questions. Indianapolis v. Navin, 151 Ind. 139, 47 N. E. 525, 51 N. E. 80, 41 L. R. A. 337; 36 Cyc 991. Article VI of the Constitution deals especially with matters concerning the rights, powers and duties of the legislative branch of the government; and section 39, qualifying in a manner, the legislative powers, must generally leave the matter of the propriety of a special act to the discretion of that body; and particularly must this be so with reference to such special acts as the one in question. We must, therefore, assume that the legislature ascertained such facts and conditions to exist in Nicholas county, as justified the passage of the act. We have no pewer to review that finding. Lusher v. Scites, 4 W. Va. 11; Robey v. Shepperd, 42 W. Va. 286. The wisdom or propriety of passing a general law, providing for county high, schools in all the counties of the state, in order that a county high school might be established, in pursuance thereof, to meet the needs of Nicholas county, thereby avoiding the necessity of passing the special act in question, was a matter wholly within the legislative discretion. 36 Cyc 991. The general law now in existence has no provision for the establishment of county high schools, and the expediency of passing such a general law, when perhaps only a few counties of the state stand in need of such schools, is a question determinable alone by the legislature. “The expediency or inexpediency'of 'an act is a question for the legislature and not for the courts.” Slack v. Jacobs, 8 W. Va. 612.
Numerous special acts have been passed at various times since the adoption of the present state constitution, creating independent school districts, establishing branch schools of the state normal school at Huntington, and also special acts establishing preparatory schools for the state university. These acts are similar in nature to the one in question and can claim no higher constitutional sanction. The validity of those acts has not been questioned in any of the courts, so far as we know; and to decide the present act unconstitutional would be, in effect, to hold all those schools to be unlawfully established, and might occasion great disturbance and confusion.
The fact that the legislature submitted the act to a vote of the people of the county, was not a violati-rn of the constitution prohibiting the passage of a special act “opening or continuing any election or designating the places of voting.” The act does not provide the manner of conducting the election, or name the places of voting; presumably the election was to- be conducted under the general law regulating the holding of elections, -and the voting to be had at the places theretofore determined pursuant to general law.
That the general law, in force at the time this act was passed, provided for the establishment of district high schools by two or more districts in any county, the majority of the voters of each district voting in favor thereof, does not prove the act unconstitutional by showing that no necessity therefor existed. The legislature must have determined that such general law did not meet the needs of Nicholas county. “The fact that -the preceding legislature may have considered that a general law on the subject could be made applicable is not binding upon a succeeding legislature.” 36 Cyc 991, editorial note 87. Wilburn v. Raines, 68 S. E. 993; Indianapolis v. Navin, supra.
It is urged that the act violates sec. 1, art. XII of the Oonstitutioh, which says: “The legislature shall provide, by general law, for a thorough and efficient system of free schools.” The legislature has, by general law,-provided a system of free schools throughout the state. But it will be noted that it is not prohibited from augmenting, and making more efficient, the general system of free schools, by the establishment of special high schools, and graded schools, in any locality where it may think it wise to do so. The constitution does not provide for the establishment of the state ’ university, or the state normal school at Huntington, or -their respective branch schools. These are established and maintained by special legislation; and while the people of their respective locations are in a position to receive a greater benefit from them than people in other parts of the state; yet the right and power of the legislature to- create them, and to- provide for their maintenance by taxing the people of the whole state, has not been questioned. We think the legislature can,.with equal right, tax the county as a unit to support a county high school.
True secs. 6 and 10, Art. XII of the Constitution recognize the districts, existing at the time the constitution was adopted, as the unit, for free school purposes, but those sections also recognize the inherent power vested in the legislature to change the unit, and they do not divest it of that power. There is nothing in article XII, which is the article dealing especially with the subject of public education, prohibiting the legislature from making the county, instead of the district, the unit, if it should see fit to do so-; and nothing to prevent it from retaining the district as the unit for the general or common free schools, and establishing the county as the unit for graded or high schools. The legislature could have established the high school without submitting the question to a vote of the people at all, and may have submitted it to a vote only for the reason that it thought it unwise to establish the school unless a majority of the voters of the whole county were in favor of it. Our attention is called to sec. 10, art. XII, which reads: “No independent free school district or organization shall hereafter he created, except with the consent of the school district or districts out of which the same is to be created, expressed by a majority of the voters on the question.” But the act in question does not create a school district out of any part of any school district or districts of the county. The integrity of the different districts remains intact, and the several boards of education thereof have the same territorial jurisdiction, and the same amount of property on which to lay their levy to raise revenue to run the schools of their several districts that they had before the act was passed. Hence we do' not think the act is repugnant to the sections referred to in article XII of the Constitution.
It is claimed that the act, in authorizing the board of directors to levy a county tax, violates sec. 24, art VIII, of the Constitution; and also that, in constituting the county superintendent of free schools and the members of the county court members of the board of directors for the high school, it violates sec. 8, art. VII, which prohibits the legislature from appointing or electing officers. The authority to levy taxes to support the school is a necessary incident to the management and control given to the board of directors, and while the tax may be regarded as a county tax, being leviable upon all the property in the county, it is, nevertheless, no interference with the right and power conferred upon the county court by sec. 24, art. VIII, giving to that tribunal control of the police and fiscal affairs of the county, and the power to lay and disburse the county levy. The county levies there mentioned relate to the revenues to be raised for the administration of those matters and affairs over which the county courts are given supervision and control. The public education is not under the management of the county courts. But even those powers which are given, by that section to the county courts are subject to “such regulations as may be prescribed by law.” That section does not say, nor does it mean, that the county court is the only tribunal that can be given the power to make county levies for any purpose.
By constituting the president and commissioners of the county court and the county superintendent of free schools, ex officio, members of the board of directors for the high school, the legislature did not violate the Constitution, in that it thereby elected men to office. Those men had already been elected to their respective offices; and the act only places upon them additional duties, that are not inconsistent wiath those which they were elected to perform. This question, we think, has been determined by the case of Bridges v. Shallcross, 6 W. Va. 562: and wre do not think it is necessary to enter upon a discussion of it in this opinion. We approve the decision made in that ease, and think the reasons assigned in the opinion therein rendered are applicable here. We do not think their duties as members of the board of directors are at all incompatible with their duties as members of the county court. We can not see wherein their respective duties will conflict; only a small portion of their time will necessarily be occupied in the discharge of duty in either respect. And, by increasing their duties, and providing additional compensation for the extra services to be performed, the selection of persons properly fitted to discharge the duties of the office is. facilitated.
It is insisted that the act violates the constitution by increasing the salary of the members of the county court. The per diem stipend of $2.00, now allowed them by law, can scarcely be called a salary. But if it be a salary the act does not increase it, for when they meet at a board of directors, they are not then sitting as members of the county court; and the $2.00 per day allowed by the special act to each member of the board of directors for time actually employed in transacting the business of the high school, is not an. increase of the per diem compensation to the members of the county court. It is not to be supposed that they would meet as a county court, and also as a board of directors, on one and the same day, and render an account for two days’ services performed in one.
The decree appealed from is affirmed; and as that decree does not and could not make final disposition of the case, it being a vacation order, we are not authorized to enter a decree here dismissing plaintiffs’ bill, therefore the cause is remanded for final disposition by the lower court.
Affirmed. | [
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Mileee, Judge :
The decree appealed from perpetuated an injunction restraining defendant from collecting taxes assessed against the property of plaintiff and others similarly situated, for the year 1909, which, at the time of the new charter act of January, 1909, enlarging the boundaries of said City of Huntington, was located outside its old corporate limits and of the limits of Central City, comprehended in the new charter. The new charter act was passed January 26, and took effect March 1, 1909.
The first point made against the decree appealed from is that, by the ordinance of August 24, 1909, the Board of Commissioners, besides the general levy, laid an additional levy of fifteen cents on the hundred dollars, and that this ordinance, as to that levy at least, is null and void, because not passed as required by section 73 of the charter act, “by the unanimous vote of its members.”
After authorizing said board to levy and collect an annual tax on all real and personal property, and to impose certain license taxes, as therein provided, said section 73, contains this proviso: “Provided, that no greater levy shall be laid by said board of commissioners on the taxable property of said city than is now permitted, to be laid under the state law relating to municipalities, except, However, that the said board of commissioners may, by the unanimous vote of its members, by ordinance, lay an additional levy not to exceed twenty cents on the one hundred dollars of all the taxable property within said city; but said ordinance laying said additional levy shall not become effective or operative if two-fifths of all the members elected to the citizens board shall express a veto to said ordinance in the manner prescribed in article III of this act.”
The record of this board does show that the ordinance complained of was passed when but three of the four members were present. The ordinance is in the form prescribed by section 67 of the charter, “Be it ordained by the Board of Commissioners of the city of Huntington,” and so far as the general levy is concerned it cannot be affected by the fact that it was passed without the unanimous vote of all the members of the board.
However, the board of commissioners at its session held September 10, 1909, anticipating no doubt that the validity of this ordinance, as to the additional levy, might be questioned, on motion, but not by any formal ordinance, ordered “that the poll tax laid on the 24th of August, 1909, be so modified and changed, as to exclude from such levy, the citizens residing outside the corporate limits of what was the old cities, of Huntington and Central City, but in all other respects the levies laid by the Board of Commissioners on the 24th of August, 1909, are hereby ratified, approved and confirmed and the City Treasurer, is instructed to prepare his tax tickets and books accordingly.”
But it is contended vigorously that this action of the board, by mere motion, was ineffective to validate the prior invalid ordinance, first, on the ground that an ordinance can not [he amended by mere motion, nor by a proceeding of less dignity, than is required for the original act; second, because a prior invalid enactment of a majority cannot be subsequently validated by a minute or motion adopted at full meeting.
For the first proposition, that an ordinance cannot be amended by motion, but only by ordinance, counsel cite McQuillin Municipal Ord., sections 195 and 196, pages 315, 316, and cases in note, amlong them, C. & N. P. Ry. Co. v. Chicago, 174 Ill. 439, 51 N. E. 596; Galt v. Chicago, Id. 605, 51 N. E. 653. We find the general doctrine so stated by McQuillin in the sections referred to. But in section 116 the same writer lays down the general rule which this Court has recently approved, namely that: “Departure from the form prescribed for corporate action, as-in the passage of an ordinance, will not affect the validity of such action unless the charter or governing law makes such formality vital, as by declaring the action or ordinance void unless the form prescribed be followed.” City of Bluefield v. Johnson, 68 W. Va. 303, and cases cited. The new charter of Huntington contains no such declaration. We hold, therefore, with respect to an ordinance like the one in question — the laying of an annual tax levy — which is not of the same permanent character as ordinances of a more general governmental character, and which a municipal council may enact, formal requirements in their enactment should be construed as directory, and substantial compliance therewith plainly manifesting the intent thereof, answers all reasonable requirements of the statute.
On the second proposition, that an invalid enactment of a majority cannot be subsequently validated by a minute or a motion adopted at a full meeting, what has been said by way of argument on the first proposition is equally applicable. The second proposition affirms in substance, that the only way by which a prior invalid action of the board of commissioners could be cured, was by á new and formal ordinance, of the same dignity as the first, and that this could not be done, as was attempted in this case, by a mere miotion.
In support of their contention counsel cite us to 28 Cyc. 354. This authority says: “Nor will a subsequent approval of minutes by a full meeting operate to ratify the void enactment of an ordinance by a minority.” For this two California cases are cited in the note. But this is not all this authority says. Immediately following that quoted we find this: “But it seems that actual ratification of each defective action by a valid meeting will cure the defect resulting from1 passage by less than a quorum.” There was nothing defective in the prior action of council, except the passage of the ordinance without unanimous action on the subject of the additional levy. The order of correction, already quoted, says that, “in all other respects the levies laid by the Board of Commissioners on the 24th of August, 1909, are hereby ratified, approved and confirmed.” By unanimous vote at this meeting and on this motion, the prior action in that respect was certainly ratified and confirmed, and the order says that each of the several levies were ratified and confirmed. We think this a substantial compliance with the authority cited, assuming that a literal compliance therewith is required. So we think there is no substantial merit in the second proposition.
With reference to both propositions we miay inquire what is meant by the word “ordinance” in the charter act, authorizing the board of commissioners “by ordinance” to lay the additional levy complained of? The original ordinance passed by the board of commissioners observed all formiality, but was such formality really required in laying an annual tax levy? In Chandler v. Johnson City, (Tenn.) 59 S. W. 142, 143, it was held that a mere resolution was a compliance with the charter of a municipality, requiring the board, of mayor and aldermen, at its first meeting, after election and qualification to fix the salaries of officers by ordinance. In Tipton v. Norman, 72 Mo. 380, 383, it was held, that an order or resolution, adopted by the council and entered on its records, was in point of form, a valid exercise of the power, where the powers conferred were to be exercised by ordinance. We think the order or resolution of ratification and affirmance, assuming the prior ordinance to have been invalid, was a valid exercise of the powers of the council to lay the additional levy authorized by said section 73 of the charter act.
A second point made against the decree is, that the special levy laid by the samé ordinance, designated in the statute relied on as, “Special debt levy,” is also invalid, and for additional reasons. The ordinance on its face refers to section 8, chapter 9, Acts of 1908, as its source of authority. This is a section of the general law relating to the rate and manner of laying levies. As applicable to municipal corporations, it provides, in substance, that if any municipal corporation have outstanding unpaid orders on its treasury, or owes other floating indebtedness, incurred previous to January 1, 1908, of a considerable amount, and which it is impracticable to discharge out of the proceeds of the regular levy, and it deems it inadvisable to submit to the voters of the municipality the question of an additional levy, provided for in section 5, the council may lay a levy in addition to the regular levy, to be called “special debt levy,” not exceeding ten cents on each one hundred dollars of the taxable property of the municipality. And this section provides how this levy shall be collected and accounted for.
The ordinance of the council, so approved and confirmed, finding an outstanding indebtedness against the said City of Huntington, amounting (including interest) to the sum of Forty-nine Thousand and Forty-seven Dollars and Twelve Cents, as shown by the statement of its clerk, and not provided for by levy, which it was desired to liquidate, as provided by section 8, of chapter 9 of the Acts of the Legislature of 1908, further “ordered that ten cents be and the same is hereby levied on each One Hundred Dollars of the valuation of all property taxable in the said municipality, according to the last assessment thereof, for the purpose of applying the same towards the payment of said outstanding indebtedness, and the accrued interest thereon.”
Whether this part of the ordinance is a valid exercise of power conferred depends largely on the proper construction of said section 73 of the charter act. If it was intended by the Legislature that the additional levy authorized by that section, and which was laid by the ordinance, was to be in lieu of the additional levy, provided for in section 5 of the general law, and which by that statute could only be validated by a referendum to the voters of the municipality, the board of' commissioners were without authority to lay the ten cent levy, for such a levy is only authorized by said section 8, of chapter 9, of -the Acts of 1908, when in the language of the statute, the levying body deems it inadvisable to submit to the voters of the municipality the question of such additional levy. The provision of section 73, of the charter act, calling for construction is, “provided, that no greater levy shall be laid by said board of commissioners on the taxable property of said city than is now permitted to be laid under the state law, relating to municipalities, except,” etc. The ordinance in question does not recite in the language of section 8 of the general law, above quoted, that the board of commissioners deemed it inadvisable to submit to the voters the question of an additional levy, as provided in .section 5. But if by proper construction the laying of the additional levy, provided for in said section 73 of the charter act, was intended as a substitute for the additional levy to be ratified by the people, under section 5 of the general law, then having exhausted its power to lay such additional levy, the board of commissioners would not be authorized to lay the additional levy of ten cents. The construction which the board of commissioners evidently put upon the statute was that the additional levy authorized by said section 73 of the charter act was not intended as a substitute for the additional levy of twenty cents under section 5 of the general law; that the additional levy, under section 73 of the charter act is a special levy provided by that act, and in no way controlled by the provisions of the general law. While the question is a troublesome one, as many cf these tax questions arc, we are inclined to the view that the construction placed by the municipal authorities on these statutes is the correct one. The -board of commissioners did not undertake to lay a levy under section 5 of the general law and submit the question to a vote of the people. Giving literal construction, therefore, to the language of section 8, they would have the right to lay the ten cent levy arbitrarily. Our conclusion is that the levy is valid. We have not overlooked the language of section 4 of the general law, containing the limitations upon the taxing power of municipalities, nor the last provision of that section, “that such levy shall not exceed thirty-five cents-on each one hundred dollars of said valuation for the year nineteen hundred and eight, and shall not exceed thirty-five cents after that year, anything in the charter of any municipal corporation to the contrary notwithstanding.3’ The charter act was subsequent in date to this general law, and operates as a repeal of any provision of the general law in conflict with it. Provisions of the special act must be given proper construction to effectuate the meaning and intent of the legislature. We cannot say that the additional levy provided for in section 73 was intended to be in lieu of the additonal levy under section 5 of the general law. hTo words of the charter say so. To give-the charter that construction, we would have to infer that intention. Literal construction of the words used really speaks the-contrary.
The third and last point made against the decree is, that the whole levy and each part of it is illegal and void, first, upon the ground that the property of the appellees was at the beginning of the assessment year located wholly outside the corporate limits of either of the two cities, and that the county assessor, whose duty it was to assess the lands and property of the people, as of the first day of January, of each year, as provided by section 132, chapter 80, Acts of 1907, had not assessed the property of the appellee as located within the corporate limits of the City of Huntington or of the City of Central City, and that his assessment could not be made applicable for the year 1909 to the new territory brought into the corporate limits by the charter act of January 26th of that year, which did not become effective until March 1; and, second, on the ground that the municipal authorities, in laying levies for the year 1909, limited as they were to the last preceding' assessment by the county assessor, had no authority, as was done, to pick out of the assessor’s books the lands and property of persons outside of the old corporate limits of the two cities, and within the new corporate limits,, and extend and collect the municipal levies, against them.
'We see little merit in either of these propositions. True'the law does provide that the assessment of person and property shall be made as of the first day of January of each year; blit it was competent for the legislature by the charter act, after 'that date, to bring within the corporate limits of the City of Huntington the outlying property of appellee and others, and authorize the levy and1 collection of taxes thereon for municipal purposes for the same year. The charter by its terms took effect March 1, 1909. After that time all persons and property within the corporate limits as defined by the charter, became subject to the jurisdiction of the municipal authorities. We are cited to but two'decisions for the propositions relied on, Austin v. Butler, (Tex.) 40 S. W. 340, and City of Latonia v. Meyer, 86 S. W. 686. The syllabus in the first case is: “Land included within city limits after January 1st, and before the assessment of taxes for the year, is not subject to city taxes for such year, though the owner resided in'the city on January 1st.” The opinion in this case is short and without citation of authority. But it is inapplicable to the facts .in this case. While our statute requires the assessor to assess or value property as of the first day of January, the levy and the assessment of the taxes against such property is not made under the law until the fourth Tuesday in August. So that, while the assessment of the property made by the assessor is made as of January 1st, the assessment of the taxes by the levying authorities is not made until August, and the ease cited, therefore, would not, as we interpret it, deny the right to assess the tax, if the property was subject to the tax at the time the levy was made. In the Kentucky case the syllabus is: “Property annexed to a city after the time it was the duty of the assessor to return his list of taxable property cannot for that year, be taxable for the local taxes of such city.” Clearly this decision is not against the validity of the levy involved in the case at bar, for by .section 38, of chapter 29, Code Suppl. 1909, the assessor has until the 20th day of July to return his lists of property to the municipal authorities for taxation. After that date, as we have seen, the assessment and levy is authorized. By section 1, of chapter 65, Acts of 1909, the fiscal year for all counties, districts, school districts, and municipalities is made to commence on the 1st day of July, .and end on the 30th day of June of the following year. So that, according to this statute the levy for taxes complained of necessarily covered the fiscal year beginning July 1st, 1909, 'and ended in the following June, and it would be wholly • unjust to hold that the appellee and others similarly situated should be allowed to escape the payment of taxes for that fiscal year.
Our conclusion, therefore, is to hold the levies complained of valid, and this conclusion requires a reversal of the decree below and a dismissal of the plaintiff’s bill.
Reversed and Bill Dismissed. | [
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BRANNON, PRESIDENT:
The Southern Coal and Transportation Company was convicted under an indictment charging it with having thrown into a water course, known as Stewart’s run, sulphur water injurious to the propagation of fish.
The defendant points out that the indictment is defective. It charges that the defendant “Did unlawfully throw in a water course, known as Stewart’s run, sulhpur water, the said sulphur water being deleterious to the propagation of fish.” Counsel specifies as a defect in the indictment that it fails to allege that Stewart’s run is such a stream as permitted the propagation of fish. We do not sustain this motion to quash. The statute on which the indictment is based is sec. 2768 of the Code of 1906, which reads as follows: “It shall be unlawful for any person, firm or corporation, to throw in, or allow to ■enter, any stream or water course, in this State, sawdust or any ■other matter deleterious to the propagation of fish. Any person, firm or corporation violating any of the provisions of this section shall be guilty of misdemeanor, and fined not less than twenty-five dollars, nor more than one hundred dollars for each and every offense.” The statute does not say that the pollution must be of a stream in which fish are propagated. It says “any stream or water course.” Suppose the particular run is not one in which fish propagate, still it will carry down to a lower stream, wherein fish are found, the destructive matter thrown into the stream. It cannot be possible that the Legislature meant to except streams in which fish are not propagated when it has not specified the exception. One stream runs into another. The object is not only to protect fish in the little streams, but also to prevent the carriage by them of deleterious matter into streams below. There, is no such exception by the letter of the statute, and there is no reason that a court should insert such an exception; but there is reason that it should not, because it would thus deféat what must have been the design of the Legislature.
It is again contended that as the general word “sawdust” is used in the statute, other deleterious matter must be of the same' nature as sawdust, under the rule that where there are general words following particular or specific words the former must be confined to things of the same kind as the specific words. This is not applicable in the present case. It would defeat the object of the statute. It would allow the pollution of water courses by the introduction into them of many things not akin in chemical nature to sawdust, yet highly hurtful to fish. The intent of the Legislature is the thing to be looked at. It is the protection of fish. We cannot think for a moment that it was the intention to limit deleterious matter to such matter as possesses the same hurtful qualities as sawdust. That would afford small protection of fish from the many kinds of deleterious matter. Notice that the section prohibits the introduction into the stream of sawdust, “or any other matter deleterious to the propagation of fish.” Notice the word “other.” So it be matter that is deleterious to the propagation •of fish, whether of the same nature of sawdust or not, it is prohibited by the statute.
The defendant complains that the court erred in refusing the following instruction: “The court instructs the jury that if the}' believe from the evidence that defendant is operating a •coal mining plant at Berryburg in the county of Barbour, and that in operating said plant in the mining and removing of •coal, water is found, that it is then the duty of said defendant, by the laws of the State, to remove or drain such water from its mine, by such means as are reasonable and practical.” Counsel would tell us that there is another statute commanding operators of coal mines to drain them and that this would •excuse the defendant in this case; that it had a right to obey the drainage statute, and in doing so must necessarily have drained the mine water from the coal mine. That is to say that mine owners are excusable for draining mine water into streams, by reason of the statute requiring the drainage of mines. We cannot say that these statutes may not exist, and each receive a practical construction without disharmony. The Legislature has not said that the mine may be drained though it destroys the fish streams of the state. The statute on which the prosecution rests contains no such exception. The mine owner, if he carries on that business, must so drain his mine or dispose of the copperas and sulphur water so as not to destroy the fish streams of the state. That is his lookout. As he is embarked in that business, lie must take the responsibilities. This instruction would give complete justification to the mine operator, though the drainage would destroy the fish.
Complaint is made that the court refused an instruction that as the water discharged from the mine was what is commonly known as sulphur water, and that it is a product of nature, and that it is necessary to discharge such water from the mine, and that there is no known reasonable or practical way, whereby the defendant could eliminate the sulphur and other objectionable ingredients in such water before discharging the same from its mine, before letting it enter the water course, and that the water course is the natural drainage for such water to take, then the verdict must be for the defendant. We do not suppose that it is contended that the act is unconstitutional; but it does amount to the claim that the right of the owner to drain mine water into a stream is paramount to the right of the state to preserve its fish. It amounts to the claim that though the state had enacted for the preservation of fish the broad section above given, still it is subject to a paramount right in the mine owner to drain his mine in his own way, regardless of the harm which it may do the fish. Here we have the broad statute meant for the great purpose of the preservation of fish. Pish have always been regarded by the government as very valuable for sport and food. It may be said that no government fails to make provision for their propagation and preservation. As to its power to do so under its police power there can be no question. The Supreme Court of the United States has held thus: “It is within the power of a State to preserve from extinction fisheries in waters within its jurisdiction, by prohibiting exhaustive methods of fishing, or the use of such destructive instruments as are likely to result in the extermination of the young as well as the mature fish.” Lawton v. Steele, 152 U. S. R. 133. In 1 A. & E. Ann. Cases, 948, will be found the case of State of Ohio v. French, which holds that the Legislature may provide for the protection of the fish, and may declare nets used contrary to law a public nuisance, and that such statute is constitutional. The case of People v. Truckee Lumber Co., 116 Cal. 397, 58 Am. St. R. 183, holds that fish within the waters of a state constitute the most important part of that species of property commonly designated as “wild game,” the general right and ownership of which is in the people of the state. The right to protect such property for the common use and benefit is one of the recognized prerogatives of the sovereign. It also holds that the right of the state to protect fish is not confined to navigable or public waters, but extends to all waters within the state, public or private, where the animals are accustomed to resort for spawning or other purposes, and of which they have freedom of passage to or from the fishing grounds of the state. The state owns the fish in its streams and has ample power to preserve and protect them from destruction under its police power, and private right and convenience must yield to it. This right of the state is abundantly sustained by the highest authority. McCready v. Virginia, 94 U. S. R. 391; 13 Am. Ency. L. 556; 19 Cyc 987 and 1006; Greer v. Connecticut, 161 U. S. 519; Hudson County v. McCarter, 209 U. S. R. 349. If then by this instruction it is intended to assert any preferential right of a mine owner to drain his mine of mine water, though it destroys fish, we cannot assent to it. W’e have not in hand the question, the very important question, of the right of a riparian owner in an action against a coal mine operator to drain his mine to the pollution of the water and destruction of fish. It may be useful to cite authorities bearing on that question. State v. Michael, 47 W. Va. 789, contains an expression favorable to the liability of the mine owner. Trevett v. Prison Association, 98 Va. 332, 81 Am. St. R. 727, goes to sustain the ¡action of the riparian proprietor. Shoffner v. Sutherland, 111 Va. 298; Levaronia v. Miller, 91 Am. Dec. 692; Wixon v. Base River Co., 85, Am. Dec. 69; Hunter v. Taylor, 16 Ky. L. R. 159 and 190; Tenn. Coal Co. v. Hamilton, 46 Am. St. R. 48. On the other hand the defence in this case relies on the case of Pa. Coal Co. v. Sanderson, 113 Pa. St. R. 126, 57 Am. R. 445, as denying the liability of the coal operator. That case was three times decided favorably to the land owner, but when it came before the court for the fourth time the mine owner was held exempt from liability on the ground that the great coal industry called for a right superior to that of the riparian owner. This case in its last decision is strongly condemned in section 518 B. Vol. 2 of Farnhan on Water and Water Rights. It is also repudiated by cases cited in 10 A. & E. Ann. Cases 585. That case was decided with the dissent of three out pf seven judges. I have shown above that the state owns the fish and the control of the streams in which they are; that under its police power it may adopt any legislation for the preservation of fish and game. We have before us in this ease a penal statute by which the state as chief game warden has under its wide power declared that no matter deleterious to the propagation of fish shall be cast in any stream of the state. The state has settled the rights as between itself and coal mine operators. It has stamped with total prohibition such an act. It has left us no right or power to enter into a comparison of right between itself, as the preserver of fish, and coal mine operators. As I have said above all nations preserve the game. The American states have done so. Virginia and West Virginia by their statutes do so. Authorities above accord the state ownership of fish in streams, and full power of regulation outside of statute. This common law right vested in the state has been embedded in a statute enacting that “The ownership of, and title to, all wild game, wild birds, both resident and migratory, and all fishes in the state of West Virginia, are hereby declared to be in the State.” Acts of 1909, ch. 60, Supplement-Code of 1909, see. 2792 a. 1.
The state is superior to private right. By the statute on which this indictment rests the state has totally prohibited the putting into any stream of any matter deleterious to fish. If we sustain this instruction we take from the state its paramount authority and give it to the mine operator. Reflect that it is the state right that is to be subordinated. The Pennsylvania case would not go so far. It is useless to tell us that the coal mining industry of the state is vast, and may be damaged. The Virginia court in passing on the respective rights of land owners on a stream and lumber operators, in Shoffner v. Sutherland, 111 Va. 301, said: It is insisted by the appellant’s coimsel that restraining sawmill operators from casting sawdust into the streams along which they are operating will be very hurtful to the vast lumber interests of the southwestern part of the state and will hinder the development of that great source of wealth.
“It would,” as was said in Townsend v. Norfolk Ry. Co., 105 Va. at p. 49, 52 S. E. 978, 115 Am. St. Rep. 842, 4 L. R. A. (N. S.) 87, “be a source of regret if, in the administration of justice by the establishment and enforcement of sound principles the prosperity of our people should be hindered or checked, but it would not only be a source of regret, but of reproach, if material prosperity were stimulated and encouraged by a refusal to give to any citizen a remedy for wrongs he may sustain, even though inflicted by forces which constitute factors in our material development and growth. 'Courts have no policies, and cannot permit consequences to influence their judgment further than to serve as warnings and incentives to thorough investigation and careful consideration of the causes submitted to them.”
Judgment affirmed.
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Miller, Judge:
Plaintiff brought assumpsit against Bair,' maker, and Ely, payee and indorser of a note, dated April 20, 1905, at six months, for sixteen hundred dollars. Process to October rules, 1907, was directed to Monroe county, where Ely resided, and to Baleigh county, Bair’s place of residence, and duly returned accepted by Ely, and served on Bair by the sheriff of Baleigh County.
At October rules, plaintiff appeared and died its declaration, with statutory affidavit prescribed by section 46, chapter 125, Code 1906, and defendants failing to appear or plead, the common order was entered. At November rules, Ely was1 still in default, but Bair appeared, and filed two special pleas in abatement, but filed no plea to issue. We decided in Varney & Evans v. Lumber Co., 64 W. Va. 417, that a plea in abatement, though tendered at the same term of court at which the office judgment would become final, cannot be received to set aside an office judgment. This is old law. 2 Tucker’s Com. 236, citing Hunt v. Wilkinson, 2 Call. 63, 67; Bradley v. Welch, 1 Munf. 285. See, also, notes, Warren v. Saunders, 27 Grat. Anno. 259, and Smith v. Charlton, 7 Grat. 425.
At the April term, 1908, after striking out, on plaintiff’s motion, we think rightfully, Bair’s special pleas in abatement, the court refused, on plaintiff’s demand and motion, to enter judment 'for it, as per affidavit, and over its 'objection permitted Bair to file his counter affidavit with a general plea of non-assumpsit and a special plea in writing.
Upon the trial of the issue joined on these pleas,, plaintiff, after offering in evidence its affidavit filed with its declaration, again moved for judgment thereon, which motion the court again overruled, and it again excepted. The jury then heard plaintiff’s evidence, defendant offering no evidence, and thereupon, on motion of Bair, and as directed by the court, the jury returned a verdict for the defendant. Plaintiff’s motion to set aside this verdict and award it a new trial was carried over to the July term, 1908, when it was overruled and the judgment of nil capiat complained of pronounced. Is the judgment below erroneous ?
On the theory of an office judgment against Bair at November rules, 1907, and that no writ of inquiry was required, the first point of error is that the court erred at the April term, 1908, on striking out Bair’s pleas in abatement, in permitting him to file bis counter affidavit and pleas to issue. The clerk entered no office judgment against Bair. Did the law enter one on default of plea to issue at November rules, 1907? At October rules, both defendants being in default, the law, if omitted by the clerk, entered the common order, or conditional judgment against both.
Did Bair’s pleas to the jurisdiction at November rules, 1907, prevent an office judgment against him, letting him in after' the last day of the succeeding term, and after the issue on his pleas to the jurisdiction had been decided against him, to plead to issue and make defense on the merits? At first, in view of prior decisions, and the object of the statute to cut off dilatory pleas unless promptly filed, we were disposed to deny the proposition. But on more mature consideration, on rehearing and reargument, we have concluded that this case must be distinguished from Marstiller v. Ward, 52 W. Va. 74, 81; Hurlburt & Sons v. Straub, 54 W. Va. 303; Bradley v. Long, 57 W. Va. 599; Bank v. Burdette, 61 W. Va. 636; Netter-Oppenheimer & Co. v. Elfant, 63 W. Va. 99, 59 S. E. 892; Hansford v. Snyder, 63 W. Va. 198; Varney & Evans v. Lumber Co., 64 W. Va. 417. In all these cases, we believe, an office judgment had been entered at rules. In the case at bar Bair appeared at the second rule day, within the time now given by section 16, chapter 125, Code 1906, and filed his pleas in abatement. After those pleas could there be an office judgment against him? Such a plea as we have decided will not set aside an office judgment once entered; but will it when filed at rules prevent an office judgment? Section 44, chapter 125, Code 1906, says what shall be done at rules. If defendant appears at the first rule day, but fails to plead, a rule may be given against him to plead, not a conditional judgment. It is only when he fails to appear .that the plaintiff may have the conditional judgment. In this case he failed to appear at the first rules and there was a conditional judgment; but at the next rule day he did appear and filed his pleas in abatement. The statute does not say “plea to issue.” It says: “But at the next rule day after the same is entered” (a decree nisi or conditional judgment) “if the defendant continue in default, or at the expiration of any rule upon him with which he fails to comply, * * * * if it be at law, judgment shall be entered against him” — that is an office judgment. If defendant has failed to appear and suffered a conditional judgment, or has appeared and been ruled to plead, and at the second rule day continues in default of a plea, judgment in the clerk’s office — the office judgment — is then entered against him. If he does appear at the second rule day and pleads any plea authorized by law the statute would seem to cut off an office judgment.
Section 46, of chapter 125, relied on, it must be remembered deals only with proceedings in court, after default, and after an office judgment has been entered. When that is the status of the case, according to our decisions, no plea not a plea to issue will set aside the office judgment. But our statute and decisions do not cover a case where there has been no office judgment. Besides the statute, old forms of orders making-up issues on pleas in abatement filed at rules and conditional judgment, and the cases of Hinton v. Ballard, 3 W. Va. 586, and James River & Kanawha Co. v. Robinson, 16 Grat. 435, seem to imply at least, that any plea by defendant at rules, which he is permitted to file will prevent an office judgment. See Bobinson’s Forms No. 39, page 21; 4 Minors Inst., part 1, page 720; 1 Robinson’s Practice, (Old) pp. 286, 289.
It is contended on behalf of Bair, that section 20, of chapter 125, has changed the common law rule, which required final judgment if the defendant lost on his pleas in abatement; and that section 21 giving right to plead in bar and abatement at the same time does not require defendant to do so; but gives him that right if he so elects, and that though he has not pleaded in bar, he may after he has lost on his plea in abatement avail himself of that provision thereof, which says, that if the issue on his plea in abatement be found against him “he may, nevertheless, make any other defence he may have to the action.” We think the proper interpretation of that section is, that where no writ of inquiry is required, a defendant who would avail himself of other defenses, on losing on his plea in abatement or other dilatory plea, must have filed such plea or some other plea at rules in timé to prevent an office judgment; otherwise the office judgment entered at rules will become final on the last day of the next succeeding term of the court, and such other defenses thereafter cut off. This we think is in consonance with our previous decisions. It is said that this section, being remedial, must be given a liberal construction; but we must not forget that section 46, of the same chapter, in pari materia, was intended to prevent delay by dilatory pleas, and to speed the administration of justice.
Our conclusion is that as defendant’s pleas in abatement prevented an office judgment at rules there was no error in permitting him, at a subsequent term, on striking out these pleas, to file his counter affidavit and pleas to issue; and it follows that the court below committed no error in overruling plaintiff’s motion for a judgment as per affidavit, certainly as against the defendant Bair.
The next point is, that the court below, on motion of Bair, erroneously struck out plaintiff’s evidence, including the note sued upon, and directed a verdict for defendant. As appears, the ground of this motion was the alleged variance between the note declared on and that offered in evidence. The note declared on is alleged to be a negotiable note; the note introduced in evidence seems to answer the description of the note declared on, with this exception, that in the body of the instrument and immediately before the signature of the maker, Geo. W. Bair, Sr., are the words, “Credit the maker. Security on contract of April 20, 1905.” Our statute, section 7, chapter 99, Code 1906, in force when this note was made, made every promissory note payable in this State at a particular bank, and certain other ¡Races, a negotiable note. The note here in question is of that description, and it has all the other elements of negotiability necessary to cut off equitable defenses, when purchased in the usual course of business, without notice of such equities, except in respect to the words quoted. Do these words render its payment conditional and uncertain, so as to destroy its negotiability? We are of opinion that they do. By the law merchant, one of the principal elements of negotiability is, certainty of payment, and any words of the instrument rendering payment conditional or uncertain destroy it as a negotiable instrument. The words “Security on contract of April 20, 1905”, gives notice to the world that it is only a security on a contract of the same date. What that contract is or was is not disclosed, "but enough, is disclosed to put everyone dealing with the instrument on notice. The note here involved is1 different in this respect from that dealt with in Trust Co. v. Crawford, 69 W. Va. 110. In Costelo v. Crowell, 127 Mass. 293, the note in question had written on the margin “Given as collateral security with agreement,” and it was held not to be a negotiable note on which an indorsee could maintain an action. The words of the note we have here imply at least that if the cotemporaneous contract should be fulfilled, the note given as security would become void, and payment thereof conditional only. As the Massachusetts court says, the decisions cited on the subject are not uniform, but in that Commonwealth it is said to be settled by an uninterrupted series of decisions also cited, “that any language, put upon any portion of the face or back of a promissory note, which has relation to the subject-matter of the note, by the maker of it before delivery, is a part of the contract; and that if by such language payment of the amount is not necessarily to be made at all events, and of the full sum in lawful money, and at a time certain to arrive, and subject to no contingency, the note is not negotiable.” Another case even more apt is American Nat. Bank v. Sprague, 14 R. I. 410. Other illustrations of the application of the rule respecting certainty of payment to individual cases will be found in Daniel on ISTeg. Instr., section 41, and note. On consideration of which we are of opinion, with respect to the question of negotiability, and with respect also to the words of the instrument, which we hold render the note here involved non-negotiable, there is a fatal variance, and that the note was not admissible in evidence under the declaration, and that the court below committed no error in so holding.
But did the court err, as the plaintiff claims, (1) in striking out all of plaintiffs evidence; (2) in directing a verdict for defendant, without permitting it as proposed to offer evidence that Bair had not complied with the cotemporaneous contract; (3) in not setting aside the verdict of the jury and awarding the plaintiff a new trial; (4) in pronouncing the judgment of nil capiat complained of? We think not. If we are correct in holding that the note adduced in evidence is not negotiable, a joint action thereon, by section 11, chapter 99, Code 1906, against drawer and indorser, cannot be maintained. This being so no amendment of the declaration to suit the proof, nor evidence of the non-compliance by defendant Bair of the contract referred to in the note would be availing; so that plaintiff having declined permission to take a non suit the only judgment which the court could pronounpe, was the judgment complained of. This ruling is fully supported, we think, :by our case of Bank v. Hysell, 22 W. Va. 142.
The judgment below will, therefore, be affirmed.
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POEFENBARGER, JuDGE:
This appeal brings up questions determinable by the principles and rules applicable to the relation of vendor and purchaser of real estate under an executory contract.
One of the plaintiffs, W. A. Porter, having purchased of C. L. McClung of Greenbrier county, by a written contract, dated July 6, 1905, the timber 20' inches in diameter two feet from the ground and above that size, on 5,000 or 6,000 acres of land, assigned equal shares therein with himself to J. B. Moore, James Flynn and W. II. Cobb. The last named party assigned his interest to A.. D. Neill. The purchase price was $5.00 an acre and Porter was to pay, and did pay, $2,000.00 at the date of the agreement, and payment of the balance was deferred, $4,000.00 until McClung should have a survey and an abstract of the title made and execute for delivery a general warranty deed for the timber, and the residue for a period of one year. McClung bound himself to have the survey made by October 1, 1905, giving Porter notice of the time thereof, and the parties agreed to bear equally the expense of the survey, but no provision of the contract in terms placed any part of the cost of the abstract on Porter. The total expense of both, incurred by McClung, was about $600.00, of which about $150.00 was paid for the survey and the balance for the abstract, no part of either of which sums Porter ever paid.
Defects in McClung’s title obstructed and prevented performance of the contract as made. Some years prior to the making thereof, he had conveyed some or all of the lands on which the timber was to children and relatives of his or vested the equitable title in them by contracts, in view of litigation with his first wife. He claimed, however, to have reserved the timber, but as to this, the terms were not clear and there was doubt as to the legal affect of the reservation. Just what these deeds and contracts were is not clearly disclosed by the record, but MeClung’s divorced wife had never relinquished her inchoate right of dower, or a lien by decree for alimony, and he had conveyed some or all of the land to his present wife and his numerous children by his first wife. The reservation seems to have secured to Mm no more than such timber as he might need and rights of grazing and cultivation. Besides he had contracted a sale of some of the timber to one F. PI. Anschutz, from which he had not been released. Dr. B. L. Telford also held an option or contract for the purchase of timber on part, of the land, executed by O. G. McClung, a son of C. L. McClung.
The survey seems to have been made not long after the date of the contract, and the abstract is certified as of February 1, 1907. After its completion, it, together with a deed executed by McClung and wife, was sent to Porter, who refused to accept the deed or pay the balance of the purchase money, on account of the defects in the title. Later McClung procured from Anschutz a release of his contract and thus removed one of the obstacles to the consummation of the sale; but the title was still unsatisfactory to Porter.’ As to communications between McClung and Porter or McClung and Cobb, Porter’s representative, after relief from the Anschutz claim, the evidence is not specific and explicit enough to give very clear information, but McClung seems to bare insisted upon the validity ol: his title and Porter upon the seriousness ol the defects therein. In January or February, 1907, Porter and Cobb met in Charleston where the former introduced the latter to attorney IT. L. VanSickler, of Lewisburg, suggesting his suitability, in case they should need the services of an attorney, respecting their interests in the McClung land. Correspondence between Cobb and VanSickler began with a letter from the former to the latter, dated October 31, 1907, expressing a desire to employ him. VanSickler accepted the employment by a letter dated November 2, 1907. In the correspondence thus started, the defects in the title were discussed, VanSickler uniformly suggesting fatality .and incurability of the title by reason of the dower right in McClung’s first wife and the conveyances to McClung’s children and McClung’s inability to ged rid of these conveyances and incumbrances. He repeatedly expressed the opinion that Porter and his associates would do well to get their money back. He spolce deprecatingly of the character of McClung. Cobb adhered to his wish and desire to obtain, not a return of the money paid, but the timber. He seems not to have appreciated fully the import of VanSickler’s suggestion of a rescission nor to liave-apprehended VanSicklerVreal or pretended impression that-his-clients acquiesced in his assertion of the impossibility of obtaining the timber and the advisability of saving their money by means of rescission. Cobb insisted that he induce McClung to clear up the title and make it merchantable and VanSickler gave assurances of his willingness and efforts to induce McClung to do so. A praecipe was filed by J. "W. Arbuckle as solicitor for McClung in a suit styled Charles L. McClung v. Amanda McClung and numerous other persons named, in which there was-a direction to issue process returnable to September Rules, 1908. VanSickler also filed a praecipe in the suit by McClung v. An-schutz and directed issuance of process returnable to April Rules, 1908, but no bill was filed in either cause. VanSickler seems to have worked through Arbuckle to induce McCiung to institute the first one of these two suits. McClung either denied Arbuekle’s authority to institute the suit against his wife and children or refused to prosecute it. On the 23rd day of February, 1909, VanSickler instituted a suit in the name of Porter against C. L. McClung for rescission of the contract entered into by them. In the bill there was an express prayer for rescission because of McClung’s failure to make title to Porter in accordance with the terms and provisions of the contract. McClung answered the bill, insisting upon the sufficiency of his title, denying plaintiff’s right to rescission, and depositions were taken.
In the meantime J. O. and L.'15. McClung had commenced 'negotiations with C. L. McClung for the purchase of the timber included in the Porter contract and the timber of smaller dimensions on the same land not included therein and the timber on other lands of C. L. McClung, and also with the parties holding the conveyances, contracts and other evidences of title, 'except Anschutz and Telford, (who had executed releases to C. L. McClung), which had been made the basis of Porter’s refusal to accept McClung’s deed and pay him the balance of the purchase money. Just how far these negotiations had progressed the record does not disclose, but the price to be paid by J. 0. and L. E. McClung was $10.00 an acre and they were negotiating a re-sale to Eider and Stalnaker at $15.00 an acre. Eider and Stalnaker were negotiating another sale to Brewster and Bright at $20.00 an acre. Charles S. Dice was representing the McClungs as attorney and no doubt as agent. In this state of affairs, Dice and YanSiclder went to Elkins in September, 1909, without previous arrangement, for a conference with Cobb whom they met and with whom they conferred in the presence and hearing of C. •W. Maxwell. As to the purpose of this conference and what occurred, the testimony is conflicting. Dice and YanSiclder say they went there to get Cobb to induce Porter and his associates to bear one-half of the cost of the abstract, in the settlement of the suit for rescission, and that -they took with them and exhibited to Cobb the papers in that suit. Cobb and 'Maxwell deny this, saying no papers were exhibited to them and they were misinformed as to the purpose and object of that suit. Cobb insists he never gave any instruction or authority to bring the suit for rescission, but on the contrary, that he had directed a suit to perfect or quiet the title, and that YanSiclder and Dice left him and Maxwell under the impression that such a suit had been brought. lie and Maxwell both in sist that the professed object and piirpose of Dice and VanSick-ler were either to get rid of the contract of Porter and his associates by a purchase of their interest or to effect a sale to them of the interest which J. O. and L. E. McClung were said to have acquired in the timber on the land covered by Porter’s contract, but not included therein, and perhaps of the other timber J. 0. and L. E. McClung had acquired or were negotiating for. Maxwell was attorney for J. B. Moore, one of Porter’s associates, respecting some matters, but said he had no authority to act for Moore as to the McClung land. Cobb told them he had parted with his interest in the land and had no authority to concede or relinquish the rights of Porter and his associates or modify the contract. The conference resulted in an agreement on the part of Cobb to write Porter, Flynn, Moore ami Neill, apprising them of the situation and suggesting a meeting between them and the McClungs, at an early date, at Lewisburg, in an effort to bring about an adjustment or agreement. It was agreed that meantime nothing further should be done in the suit instituted by YanSickler in Porter’s name. There was subsequent correspondence between Cobb and YanSickler concerning this meeting, but they do not agree in their testimony as to the purpose of tlié contemplated conference. The meeting was never held. On the 9th day of October, 1909, just a few days after the Elkins conference, a decree was entered in the cause of Porter v. McClung, rescinding the Porter contract and providing for the repayment by McClung to Porter of the sum of $2,5-12.39, which the decree ascertained to be the amount paid by Porter to McClung under his contract, with interest from the date thereof until the date of the decree. This money was subsequently paid by some of the McClungs to YanSickler. There is controversy as to whether YanSickler notified Cobb of the entry of the decree and payment of the money, and, later, when Porter and Neill, having been informed of the entry thereof, went to Lewisburg for further information about their rights and interests, their interview with YanSickler was very unsatisfactory.
On the 10th day of November, 1909, C. L. McClung and wife executed a deed conveying the lands to j. O. and L. E. Mc-Clung. On the same day, J. 0. and L. E. McClung executed a deed to E. G. Rider and F. D. Stalnaker. On the 18th day of November, 1909, Rider and Stalnaker conveyed the timber to Amos Bright and J. FI. Brewster.
This suit was brought by Neill, Porter, Flynn and Moore against C. L. McClung, W. H. Cobb, L. E. and J. 0. McClung, Rider Stalnaker, Bright and Brewster, to annul the decree of rescission and compel specific performance of the original Porter contract of sale. The cause was transferred to the circuit court of Marion county, in which a decree dissolving injunctions against the collection and disposition of purchase money notes executed by J. 0. and L. E. McClung, Rider and Stalnaker, and Bright and Brewster, in connection with their respective purchases, pending the suit, and dismissing the bill, was entered.
Despite the conflict of testimony as to many questions of fact brought into the record, bearing upon the good faith of C. L. McClung, the McClung family and VanSickler, there are some vital matters as to which there is none. A long period of time elapsed between the date of the contract and that of the authorization of a suit, if any at all, to compel specific performance. The contract was dated July 6, 1905, and VanSickler was not directed to bring any suit of any kind until about the beginning of the year 1909. In the meantime, McClung had caused a survey and abstract of title to be made and tendered them with a deed for such right, title and interest as he had, and Porter had declined to accept the deed and pay the balance of the purchase money. McClung had also gotten rid of tho Anschutz contract as an obstacle to the consummation of the sale by the procurement of a release thereof. He had' incurred an expense of something like $600.00 for the survey and abstract in an effort to consummate the sale. Porter and his associates were unwilling to accept such title as he then had. They made their demand for specific performance upon condition that McClung should make an absolutely good title to the timber. The correspondence clearly indicates their unwillingness to accept such title as McClung had and their determination to have perfect and absolute title or none at all. As to the character of the claims of the former wife and children the record is not clear. It is certain, however, that McClung could claim nothing against them in contradiction of his deeds, if the claims were under deeds. A parol trust cauuot be asserted by a grantor against the letter of his deed. Troll v. Carter, 15 W. Va. 567 ; Poling v. Williams. 55 W. Va. 69. The meager description of these conveyances found in the record indicates that they were absolute and unconditional as to what they conveyed, but reserved certain rights to the grantor. If so, those rights were all he could claim against them. The grantees were in a position, as to all title and right conferred upon them, to sell or give it back to him or other persons, but he was utterly powerless to force them to make any disposition of it. His lack of title, legal or equitable, seems to have been accepted as a matter of fact by Porter and his associates, and made the basis of their •refusal to carry the contract into execution. If he had an equitable title, or good legal title merely beclouded by invalid conveyances, his deed would have passed it to the vendees. The deed he tendered them would have put them in his shoes and enabled them to have obtained all he had. This they were not willing to accept. They stood upon their legal rights and demanded of McClung what he could not do, except by the cooperation and consent of the holders of these outstanding interests. The vendees made no effort to get in these interests themselves. They proceeded under the impression of right in themselves to stand upon their legal contract and compel McClung to get them in.
There is a vast distinction between a vendee’s right in equity and his right at law. He may have a right of action at law on his contract for breach of its obligation and yet none to the aid of a court of equity in seeking to compel performance thereof. The vendees, on discovery of defect in the title, could eleet whether they would take such as the vendor could make, with an abatement of the purchase money on account of the defect, or, foregoing the right of specific performance, sue at law on the contract for breach of the obligation thereof. The vendees in this instance did neither. McClung had tendered performance as far as it was within his ability and it had been declined. After that, there was long delay, despite his removal of some of the obstacles to the execution of the contract. D'elay is not accurately expressive of their conduct. They never did sue, nor direct a suit to be brought, for what they were entitled to> namely, for such right, title and interest as McClung could convey. They are not even now seeking that. They never made any such election as the rules and principles of equity devolved upon them, as a condition to right to specific performance. They stood and still stand, upon their legal contract, demanding something beyond the power of a court of equity to give, because not within the power of the defendant.
In contracts positive and not conditional, the incapacity of the defendant to perform his part thereof furnishes no answer to an action for damages, but is a good ground of defense against specific performance. Fry Spec. Perf., sec. 909; Watterman Spec. Perf., sec. 125; Warvell on Vend., sec. 752; Pom. Spec. Perf., secs 292, 352; Bates v. Swiger, 40 W. Va. 420; Ellison v. Torpin, 44 W. Va. 414; McCue v. Ralston, 9 Grat. 430. “When a contract is entered into which requires the consent of a third person, and such Consent cannot be obtained, specific performance will not be decreed. If, therefore, the wife’s consent is necessary to the performance of a contract entered into by the husband, or husband and wife, and she refuses to give it, he will not be decreed to obtain his wife’s consent.” AFatterman Spec. Perl, sec. 127. The text here given is thoroughly sustained by adjudicated cases as well as reason and justice.
Clearly, therefore, the vendees wholly misapprehended their right under equitable rules and principles. They took their stand upon their contract as a court of law would view and apply it. To obtain the aid of a court of equity, they would not be required to relinquish or yield up their legal rights, it is true, since equity follows the law, but to obtain an equitable remedy, lying beyond the province and powers of a court of law, they were bound to abate from their legal right, for the purposes of the equitable remedy, so much of that right as a court of equity could not give, because not within the power of the vendor. They were therefore bound to elect, as has been stated, to take only such title as McClung could convey, and apply to a court of equity for that and no more, except the right of abatement from the purchase money, proportionate to the abatement of their legal right under the contract. When the disability in respect to the subject matter is only partial, as where the vendor does not own all the land he has contracted to sell, the vendee has a right to take so much thereof as the vendor can convey. Watterman Spec. Perf., sec. 130.
This being the measure of the equitable right of the vendees, their failure to claim it within a reasonable- time, and, secondly, their failure to claim it at all, or ever to signify their willingness to take such title as the vendor could confer, effectually precludes their right to specific performance. Their bill in this cause demands not only such title as C. L. MeClung had at the date of the contract, but also that title as perfected and completed by the acquisition of the outstanding interests in McClung’s first wife and his children. It is true the deed executed by him and his wife purported to convey complete title to J. O. and L. E. MeClung, but that deed was executed after the decree of rescission, when it was supposed the Porter interest had been extinguished and released. The answer of J. O. and L. E. MeClung avers their purchase of these outstanding interests, and J. 0. MeClung swears he obtained from the former wife by payment of about $500.00 and from about twelve children, by the payment to some of them of $100.00 and more to others, releases, and, further, that he thinks C. L. Mc-Clung could not have obtained them at all, because the feeling between them was bitter and they would have nothing to do with him. He further says C. L. MeClung had nothing to do with the purchase of these outstanding interests and never paid for them, directly or indirectly. Certainly they were not gotten in for the purposes of the Porter contract, and it does not appear that they could have been gotten in for such purposes. On the contrary, it seems they could not. The prayer of the bill is, first, for the annulment of the decree of rescission and all the subsequent conveyances and a decree for a conveyance of all the titles to the plaintiffs, or, if the court should refuse this, then a decree for all of the purchase money of the sale by C. L. MeClung to J. O. and L. E. MeClung over and above $5.00 an acre. They do not ask only for $5.00 an acre for such timber as C. L. MeClung had good title to. Hence their unwillingness even now to take a decree only for what MeClung had power to give is clear. Never having made any such election as a court of equity will permit as the basis of an application for its extraordinary remedy, they have never been in a position. to demand it.
They were bound-not only to make this election, but also to pursue their remedy with diligence. Equity aids only the' diligent. Those who seek specific performance of a contract must show themselves to have been ready, desirous, prompt and eager to perform the contract on their part. Clay v. Deskins, 36 W. Va. 350; Harrison v. Harrison, 36 W. Va. 555; Coal Co. v. Bell, 38 W. Va. 297; Dyer v. Duffy, 39 W. Va. 148.
As time was not made an essential element of the contract, inapplicability of this principle may be urged, but the rule as to time applies not on the question of remedy, but on the existence or non-existence of obligation. Jarvis v. Cowger, 41 W. Va. 268; Abbott v. L'Hommedieu, 10 W. Va. 677. If it has been made in express terms essential and not complied with, a’ court .of .equity will no more recognize the contract as valid than a court of law, except under its limited jurisdiction to relieve from forfeiture. When it has not been made essential, non-compliance therewith works no forfeiture and the contract is valid in law as well as in equity. Courts of equity, conceding the validity of the contract, still require readiness, willingness, and diligence on the part of an applicant for relief. .
Never having put themselves in a condition to call upon Mc-Clung for specific performance, within the long period of time he allowed them, the vendees were precluded from resisting his violation of the contract. Though he had no legal right to sell to other persons, the vendees, by their refusal to abate their demand for the purposes of equity interposition and their lack of diligence, lost their right to appeal to a court of equity to compel a conveyance to them. Having slept upon their rights, under a misapprehension as to what they were,' and never properly 'asserted them nor offered to do so, it was too late, at the date of the deed to J. O. and L. E. McCIung, for them to call upon McCIung in a court of equity and force him to convey. Assuming that J. O. and L. E-. McCIung, Eider and Stalnaker, Bright and Brewster, all had notice through the agency of Dice, of all the details of- the Porter contract, and the assignments thereof to Flynn, Moore and Cobb, and the assignment from Cobb to Neill, these people had a right to stand in the shoes of C. L. McClung, and, as he had the right successfully to resist specific performance, or rather the demand for more than a court of equity would give so they might do the same thing. Their rights are co-extensive with those of C. L. Mc-C'lung, despite their notice of the contract and all interests and claims held under it. Though aware of the contract, they were equally aware of the unwillingness of Porter and his associates to accept from McClung all they had a right in equity to compel him to give. They may not be innocent purchasers for value without notice, but they have nevertheless succeeded to all the rights of C. L. McClung and he could offer successful resistance to the only demand the vendees ivere willing to make upon him. All he could give lie offered to give. There ivas no occasion for a suit to get that, and it had been rejected. This, the subsequent vendees knew, and it availed them as well as their vendors. -
Though the court properly refused specific performance, it should not have dismissed the bill. One of its objects was the annulment of the decree of rescission which destroyed'the legal right of. the vendee under the contract. YanSickler was never authorized to institute a suit for rescission. In no letter from Cobb, is there a suggestion of authority for the institution of such a suit. Cobb uniformly insisted upon the institution of proceedings to quiet the title and obtain the timber. It is true he suggested in one or two of them a desire for the return of the money, if the timber could not be obtained, but there was no direction, express or implied* to institute a suit for the sole purpose of obtaining a return of the money. YanSickler’s repeated expression of opinion against the possibility of obtaining good title and of preference for proceedings to procure repayment of the money were never accepted by Cobb, and he could not thus make out authority in himself. As to his motives and the propriety of his conduct, it is wholly unnecessary to enter upon any inquiry here. He may deserve the severity of the animadversions upon his conduct, found in the briefs, and he may not. He may have honestly believed he ivas authorized to do what he did, but it takes two persons to make a contract. It suffices to say he had no authority to institute such a suit or accept such a decree, and his lack of authority so to do is ample ground for setting it aside and wholly dismissing the proceedings in that cause. State v. Cain, 64 W. Va. 578; Coal Co. v. Doolittle, 54 W. Va. 210; Hast v. Railroad Co., 52 W. Va. 409; Justice v. Lawson, 46 W. Va. 177; Robb v. Vos, 155 U. S. 13; United States v. Beebe, 180 u. S. 45; Mechem on Agency 821. The effect of the annulment of that decree, on the ground of its invalidity, will he to restore the contract, or relieve it from the cloud of that decree, for such purposes as the vendees therein may see fit to use it. They may sue on it for damages, or if they should be advised of the inexpediency of so doing, they may have the right to elect to take in lieu thereof the money in the hands of YanSiclder, but we stop here with the setting aside of all proceedings and the decree in that cause, as being utterly void, for want of authority in the attorney.
For the reasons herein stated, the decree complained of will be affirmed in so far as it dissolved the injunctions and refused specific performance of the contract set forth in the bill and proceedings , and decrees costs to the defendants except C. L. McClung and wife. In all other respects, it will be reversed and a decree will be entered here setting aside, annuling and declaring void the decree and all the proceedings in the chancery cause of W. A. Porter v. C. L. McClung, lately pending in the circuit court of Greenbrier county, a copy of the record of which is set forth in the bill and proceedings in this cause. The decree will also require 0. L. McClung and Amanda Mc-Clung to pay to the appellants their’ costs in this Court.
Affirmed in part. Reversed in part. | [
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Lynch, Judge:
This is an action of trespass on the case for damages. The declaration alleges that the plaintiff had become and was at the time of the injury a passenger in and at the defendant’s railroad station in Cincinnati, Ohio, and as such entitled to transportation therefrom to Huntington, West Virginia, and to that degree of care due from carrier to passenger; and that, while sustaining such relation, he was assaulted and injured by an officer of the defendant company.
There was a verdict and judgment in favor of the plaintiff. Though urging in its brief only two grounds for reversal, others, imperfectly and in some degree inconsistently stated, are assigned by defendant in its petition for the writ of error and otherwise appear in the record.
First. The demurrer to the declaration was overruled. The declaration sufficiently states a cause of action, which, if sustained by proof, would entitle the plaintiff to a verdict. It is clear, therefore, that the demurrer was properly overruled.
Second. The declaration avers that the plaintiff was a passenger at the time and place of the injury. The facts proven are that on June 16, 1907, the plaintiff and his mother resided in Huntington, and that on that day, desiring to visit for one week the married daughter of the mother and sister of the plaintiff, he purchased two. excursion tickets entitling them to passage from Huntington to Cincinnati and return. The coupons were good only on the day of purchase and on the return trip of the ■excursion train. Arriving in Cincinnati, the plaintiff sold the return coupons. Between ten and eleven o’clock in the mo'rning •of June 23rd the plaintiff went to the defendant’s platform near its passenger station in Cincinnati, for the purpose of purchasing from incoming excursionists two return coupons, issued that day 'by defendant at Huntington under the same limitations as the former excursion tickets, entitling him and his mother to passage on the return trip of the excursion train on that day to Huntington leaving the station at seven o’clock P. M., intending in the meantime to remain at the home of his sister in Cincinnati until the departure of the excursion train; and, while still on the platform of defendant, he was assaulted, arrested and injured. The arresting officer Remanded of plaintiff the tickets so procured, and, being refused, assaulted him in the manner stated. The validity of the tickets is conceded.
Under these conditions, this Court is of opinion, and holds, that the plaintiff was not, at the time and place of assault, a passenger within the legal meaning of the term, and therefore not entitled to that degree of care due from a carrier to á passenger. The trial evidently proceeded upon the theory that the purchase of the tickets was sufficient to constitute the plaintiff a passenger, and hence to require the carrier to afford him that degree of safety and security imposed by law in such cases. One may become a passenger without a ticket, if by some act on his part he places himself in the care or control of the carrier, intending in good faith to become a passenger, and is accepted by the carrier as such, although of necessity the existence of the relation is commonly to be implied from attending circumstances. Gardner v. New Haven Railroad Co., 51 Conn. 143, 50 Am. Rep. 12; 5 Am. & Eng. Enc. Law (2nd. ed.) 488; Strong v. Railroad Co., 116 Ill. App. 246; Riley v. Vallejo Ferry Co., 173 Fed. 331. But the purchase of a ticket was not alone sufficient to make plaintiff a passenger. 1 Elliott on Railroads, § 1579; Spanagle v. Chicago & A. Railroad Co., 31 Ill. App. 460; Schurr v Houston, 10 N. Y. S. 262; While Per. Inj. on Railroads, § 555.
In addition to these elements of the relation, the decisions also indicate that the intending passenger must come to the station, and within the implied care or control of the carrier, a reasonable time before the departure of the train by which he is to-travel. Harris v. Stevens, 31 Vt. 79, 73 Am. Dec. 337; Phillips V. Railroad Co., 124 N. C. 123, 4 L. R. A. 163; Abbott v. Railroad Co., 46 Ore. 549, 80 Pac. 1012, 114 Am. St. 885, 7 Am. & Eng. Ann. Cas. 962; Heinlin v. Railroad Co., 147 Mass. 136, 16 M. E. 698, 9 Am. St. 676. In Harris v. Stevens, supra, it is said: “The right to enter and remain at a railroad station extends only so far as is reasonably necessary to secure to the traveler the full and perfect exercise of his right to be carried upon the cars, and what is a reasonable time will dfepend upon the circumstances of each particular case”; that one’s right to remain at a railroad station depends on his intent to take a train expected soon to leave. Layne v. Railway Co., 68 W. Va. 214, and other cases, hold that a passenger has a reasonable time after reaching his destination to leave the carrier’s premises, and that the question whether he failed to depart within a reasonable time is one of fact for the jury. But what facts legally constitute one a pas-, senger is a question of law. Railroad Co. v. O’Keeffe, 168 Ill. 115, 48 N. E, 294, 61 Am. St. 68, 39 L. R. A. 148; Railroad Co. v. Jennings, 190 Ill. 378, 54 L. R. A. 826.
The case most elaborately discussing the elements constituting-the relation of carrier and passenger is Webster v. Railroad Co.,. 161 Mass. 298, 37 N. E. 165, 24 L. R. A. 251. There the contention for the plaintiff was that “inasmuch as he had previously obtained a ticket, and was on the defendant’s premises in a place designated for the use of passengers outside of the station, and was about to take a train, he .had become a passenger.” The court did not accept this view, but held that “one becomes a passenger when he iiuts himself into the care of a railroad company to be transported under a contract and is received and accepted' by the company. There is hardly ever any formal act of delivery of one’s person into the care of a carrier, or of acceptance by the carrier of one who presents himself for transportation, and-so the existence of the relation of passenger and carrier is commonly to be implied from circumstances. These circumstances must be such as to warrant an implication that one has offered, himself to be carried on a trip about to be made, and that the-other has accepted his offer and has received him to be properly cared for until the trip is begun and then to be carried over the. railroad. A railroad company holds itself out as ready to receive as passengers all persons who present themselves in a proper condition and in a proper manner at a proper place to be carried. It invites every body to come who is willing to be governed by. its rules and regulations. In a case like this, the question is whether the person has presented himself in readiness to be carried under such circumstances in reference to time, place, manner and condition that the railroad company must be deemed to have accepted him as a passenger. Was his conduct such as to-bring him within the invitation of the railroad company? In Dodge v. Boston & Bangor Steamship Co., 148 Mass. 207, it was-said: “When one has made a contract for passage upon a vehicle of a common carrier, and has presented himself at the; proper place to be transported, his right to care and protection begins/ ”
This statement of the principle has been frequently repeated by courts and textwriters. This case and many others show that the relation of carrier and passenger can be created only by contract, express or implied; that there must be an offer to become a passenger on the one part, and an acceptance of the offer on the other. Higley v. Gilmer, 3 Mont. 90, 35 Am. St. 450; Schaefer v. Railway Co., 128 Mo. 64; 5 Am. & Eng. Enc. Law (2d ed.) 488, 489; 6 Cyc. 536; While, Per. Inj. on Railroads, § § 552, 554; Van Zile on Bail. & Carr. (2d. ed.) 635 et seq.; Berry v. Railroad Co., 124 Mo. 223. They sustain the view, already announced, that the plaintiff was not, at the time of~the assault, a passenger of the defendant company.
This holding must not be construed as denying plaintiff’s right to protection, or as exonerating the defendant from liability forth e injuries for which he seeks redress. On the contrary, we hold that he was upon the premises of the defendant, at its implied invitation, at the time and place mentioned, for a lawful purpose, and therefore entitled to that degree of care due from a carrier to a licensee. The cause of action and the facts proven are variant. However, we do not, for this reason, deny the plaintiff any relief, but hold that he may amend his declaration so as to admit the proof, adduced upon the trial.
Third. The defendant urges the insufficiency of plaintiff’s evidence to establish the employment and service of the assaulting officer on behalf of the company. That employment and service was a matter for the jury, and we can not say it erroneously found in favor of the plaintiff m that respect.
Fourth. From the confused and uncertain condition of the record and the assignment of errors, it is difficult to determine what defendant relies upon for reversal. Its brief discusses two points: that plaintiff was not a passenger, and that the, assaulting officer was not employed by or in the service of the defendant. The motion to exclude the evidence and direct a verdict for defendant was made and repeated at different stages of the trial, and at the close there was a request and refusal-to give a mandatory instruction for defendant. The defendant moved to set aside the verdict and for a new trial. But none of these mo tions definitely assigned or pointed out the reasons upon -which, they were based, nor did the instruction. It is permissible to assume that each is based upon variance between the proof and the allegations. But the defendant waived the benefit of its motion to exclude plaintiff’s evidence after its introduction in chief, by proceeding with the introduction of evidence in its behalf. Carrico v. Railway Co., 35 W. Va. 389; Fuller v. Mining Co., 64 W. Va. 437, 439; Ewart v. Fuel Co., 68 W. Va. 10. Ordinarily, where reliance is had upon variance, it is usual to designate the deficiency or point of variance. That is the prevailing practice in most jurisdictions, especially where there is some proper evidence tending to support the main issues. Besides, this practice is reasonable and fair both to the court and litigants. Thus the court’s attention is directed to the divergence, and if a variance exists the opposite .party may obtain leave to amend and accordingly amend his pleading to cure the defect. It may not have been deemed necessary, and perhaps was not necessary, in this case, because of the patent defect we have found. In any event, the trial court should have permitted, and we permit, the plaintiff to amend his declaration.
Fifth. It is also urged that the verdict of the jury is excessive. That is a matter for jury determination, and its finding in that respect can not be, and is not, disturbed upon this hearing. Such findings of juries, generally, can not be disturbed unless the amount allowed is so great as to evince prejudice, partiality or corruption on the part of the jury, or to show that they were misled by some mistaken view of the merits of the case. Trice v. Railway Co., 40 W. Va. 271, 21 S. E. 1022; Stevens v. Friedman, 58 W. Va. 78, 51 S. E. 132; Nichols v. Camden, 6 W. Va. 409, 59 S. E. 968; Railway Co. v. Fortune, 107 Va. 412, 59 S. E. 1095.
■For reasons assigned, the judgment of the circuit court is reversed, the verdict set aside, and a new trial awarded, with leave’ to the plaintiff to amend his declaration.
Reversed and New Trial Granted. | [
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BRANNON, PRESIDENT:
In the year 1893 the town of St. Mary’s (now by statute a city) granted by two ordinances, one to the B'arnsdall, the other to Mallery, franchises to operate plants to furnish natural gas for consumption in that town. Bamsdall and Mallery accepted these grants and established plants or works under them, and furnished gas to the town. These grants are identical in character. By change of ownership The River Gas Company became owner of both plants and operated them until 1910, when ownership was changed to The Hope Natural Gas Company. These franchise grants fixed for different kinds of fires specific rates per fire called “flat rates.” Such rates prevailed until 1898, then the River Gas Company changed to charge by meter, mailing the rate twenty cents per 1,000 cubic feet. The town, brought in 1897 an injunction suit against the gas company to enjoin it from collecting by such meter rate, which resulted in a dcree that the town was not entitled to any relief and dismissing its bill. For about thirteen years the River Gas Company and the Hope Gas Company furnished gas by the 20 cent meter rate; but in July, 1911, it increased the meter rate from 20 to 22 cents per 1,000 cubic feet. Supposably to resist this change, on 31st August, 1911, the city council passed an ordinance providing that any person or corporation supplying gas to the city should charge 20 cents per 1,000 feet by meter, and prohibiting any greater charge. In September, 1912, the city brought suit to enjoin the Hope Gas Company from collecting gas charges at a greater rate than 20 cents per 1,000 feet. The casé was heard on bill, demurrer to it, answer and affidavits, and the court made a decree overruling a motion made by the gas company to dissolve the injunction, from which decree or order the gas company appeals.
It was assigned in the demurrer that the city cannot maintain this bill for itself and its residents, and argument is made by the city on this point. ¥e cannot say that each resident must sue for himself, making multiplicity of suits. Clearly the city as a corporate entity may sue for itself alone, or in its name in behalf of its residents, to vindicate the public right and prevent the imposition of illegal rates. St. Mary’s v. Woods, 67 W. Va. 110; Gas Co. v. Muncie, 10 Munic. Cases 137, 160 Ind. 97; Trustees v. Comar, 27 Am. Dec. 80; Pom. Eq., sec. 243.
For the Hope Gas Company it is contended that the provision in the franchise ordinances fixing fiat rates per fire is void, on the ground that without legislative grant of power to do so a municipality cannot prescribe rates for corporations performing public service. Grant this. But these franchises are not municipal statutes fixing rates generally, applicable to all, like a general law passed by the legislature; but they are special grants of franchise made by the town to Barnsdali and Mallery, at their instance; grants offered them and accepted by them. They are contracts.binding both the town and these grantees. We see no reason why a town may not make a contract to accomplish a function with which it is charged or empowered, binding it and the other party. He accepting is plainly bound, and cannot say the town’s act is void. Opinion of Judge Poffenbarger in Bluefield Water Co. v. Bluefield, p. 8 of 69 W. Va., citing Railroad Co. v. Triadelphia, 58 W. Va. 487, and Clarksburg Electric Co. v. Clarksburg, 47 W. Va. 739. Having accepted the grant the grantee accepted all its terms, and cannot deny the town’s power to fix rates by contract.
Code ch. 147 gives a town the power “to erect or authorize or prohibit the erection of gas works, electric light or water works.” It would seem to require no argument to sustain the proposition that in exercising its function under this statute the council may impose conditions and rates in the franchise. Zanesville v. Gaslight Co., 47 Ohio St. 1; Muncie v. Gas Co., 160 Ind. 97; Beerth v. Detroit, 152 Mich. 654. So we hold that the provision in the franchise limiting rates of charge per fire is valid.
Do the specific or flat rates of so much per fire yet prevail? They do not. The gas company does not so claim, does not propose to go by them, is not doing so. Nor does the city seek to enforce these rates. The company has been charging by meter rates at twenty cents per 1,000 cubic feet of gas consumed. It proposes to increase to twenty-two cents per 1,000 feet, and the city opposes such increase and seeks to compel the gas company to adhere to the meter system at twenty cents. So, I do not see that the clause of the franchise fixing specific or flat rates per fire is material.
After the grantees of said franchise and their alienees or assignees had for years been operating by the fiat rates fixed the franchise ordinances, The River Company proposed to abandon that flat rate, and charge by meter at twenty cents per 1,000 feet consumed, and in December, 1897, the town brought a suit against The River Gas Company to'enjoin it from collecting by meter rate and compel it to collect by the flat rates per fire fixed by the franchise. This suit ended in a decree declaring that the town was not entitled to the relief which it sought, and dismissing its bill. Thus it was decreed and established that the gas company had not without right abandoned the flat rate fixed by the ordinances; that it was not binding, and that the gas company could lawfully charge by the meter system. Por some thirteen years after this decree the River Gas Company, the Mountain State Gas Co., its assignee, and its assignee, the Hope Natural Gas Company furnished gas by the meter at twenty cents, when the Hope Gas Company increased its meter rate to twenty-two cents per 1,000 feet; and to prevent the increase the council of St. Mary’s, August 31, 1911, passed an ordinance fixing a rate of twenty cents per 1,000 feet chargeable by any person or corporation furnishing gas, prohibiting any greater charge under penalty of fine or imprisonment. After the passage of this ordinance the city of St. Mary’s filed this bill to enforce, against the Hope Natural Gas Company the twenty cent rate, and enjoin it from charging the meter charge of twenty-two cents, and it was so decréed by overruling a motion to dissolve the injunction.
Here we have the question, Is the ordinance valid? It is useless to give authority for the proposition that a municipal corporation can do no act not granted power expressly or by necessary implication. Judy v. Lashley, 50 W. Va. 628. It is a branch of government exercising such power as the Legislature lias conferred upon it; it can make laws by municipal statute to effectuate its functions, only if the legislature has given it that power. Fixing rates of charge by public service corporations is essentially legislative action and as held in Bluefield Water Co. v. City of Bluefield, 69 W. Va. 1: “In the absence of a delegation thereof by the législaturc, express or necessarily implied, a municipal corporation has no power to regulate or control.rates for public service, such as furnishing water, gas, electricity, or the terms and conditions of contracts thereof, otherwise than by contract with the corporation or person rendering such service.” Counsel in this case argues that that point is obiter. . The question was whether an ordinance fixing rates was valid in law, and this involved whether a town could lawfully pass it; that question was squarely involved. Why is it obiter ? The point is moreover said not to be sound law, and we are asked to disregard it at the behest of a necessity, in these latter days especially, of giving municipalities power to regulate such rates. The legislature alone can do this. This Court cannot disregard a former holding conformable to legal principle and upheld by-plentiful authority. City of St. Louis v. Bell Tel Co., 9 Am. St. R. 370; Griffin v. Goldsbere, 41 L. R. A., p. 242. A statute giving cities power to provide for lighting streets, “subject to such regulations as airy such city or village may b3r orddnaance impose,” does not delegate to cities or villages power to regulate prices which a gas company may charge- Mills v. Chicago, 127 Fed. 731. The price at which natural gas shall be furnished cannot be regulated by ordinance under a general power to provide reasonable regulations for the, safe supply,, distribution and consumption of gas. Louisville v. State, 21 L. R. A., p. 734. So holds Noble v. Nobleville Gas Co., 157 Ind. 162, 60 N. E. 1032, and Richmond v. Richmond, 168 Ind. 82. See In re Fryer, 29 L. R. A. 398; Knoxville v. Water Co., 212 U. S., p. 8; Tacoma Co. v. Tacoma, 44 Pacific 55; Wisconson Co. v. Sheboygan, N. W. 86; South Mo Alster Tel. Co. v. State, 106 Pac. 962. The power to provide for general welfare does not give power to fix rates. Shrieder v. Scranton Co., 29 Pa. Sup. Ct. 255. There is no statute giving the power. The statute authorizing a town to erect or authorizes gas works does not by mere implication, give this great law making power. See Knoxville v. Water Co., 212 U. S., p. 8.. “Grant of such power is never to be implied.” Interstate Com. v. Railway Co., 167 U. S., pages 494, 495. So, we conclude that the ordinance of the city of 31st of August, 1911, does not per se forbid the increase of the meter rate.
The original grants of franchise do not give the city power to regulate rates, since they only provide a maximum limitation on the grantees. They cannot warrant the ordinance of 31st August, 1911.
But while that ordinance of 1911 cannot, of its own mere-force, fix rates, it does not stand alone; that consideration does-not decide the ease. We must look at other things. I was inclined to think that the decree in the first suit was res judicata fixing right in favor of the company to change from fixed to meter rates, and did not fix the twenty cent rate, and that the company could charge more, if so doing would not increase in burden the charge of the flat rate. But a majority of the Court hold that as the company, of its will, changed from fiat rate to meter, and fixed a rate of twenty cents per 1,000 feet, the right to change and that rate were involved, and the decree is to be held as fixing that rate as a substitute for the fiat rate, especially as in its answer tire company said it was practically equivalent in extent of charge to the flat rate fixed by the original ordinance. That it was claimed! by the company to be the equivalent substitute for the former charge. Furthermore, a majority of the Court hold that as the gas company itself substituted the twenty cent meter rate for the flat rate, and charged that rate for thirteen years, and it was silently acquiesced in by the city for that time, and finally accepted and' insisted upon by the council ordinance of 1911, all this operated to modify the original franchise, and fix the twenty cent rate as a new contract. A strong view, I must confess. Our conclusion is, the gas company cannot increase the meter rate over twenty cents per 1,000 cubic, feet.
We affirm the decree overruling the motion to dissolve the injunction and we remand the cause to the circuit court.
Affirmed. | [
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Robinson, Judge:
The trial court properly set aside the verdict and granted defendant a new trial. The assignments of error must be overruled and the case remanded.
The action is assumpsit for recovery on a warranty. The warranty was to the effect that certain stock in a corporation, which defendant transferred to plaintiff as part payment for real estate conveyed to the former by the latter, was worth the face value of the shares.
The jury found a verdict in favor of plaintiff for the face value of the shares, with interest. On the question of the actual value of the stock at the time of the transaction, the evidence is conflicting. We do not presume to pass on the weight of the evidence in this particular, yet it would seem to be a most reasonable inference from the evidence that thé stock had some value. From the facts proved a jury would scarcely be warranted in finding that the stock was absolutely without value. But, by reason of an erroneous theory that was followed at the trial, we can not say that the jury made a finding that the stock was so worthless that the breach of the warranty injured plaintiff to the full- amount for which he had taken the shares. The erroneous theory on which the case was submitted to the jury may have caused them to find the verdict for the full amount though they believed the stock worth something below par. And it was this misdirection of the jury that fully justified the trial court in setting aside the verdict.
The appropriate action for recovery, under the facts and circumstances presented, was that which plaintiff adopted — as-sumpsit on the express warranty. If fraudulent misrepresentation had been made to plaintiff in the transaction, he could have done all that the law required of him toward a full rescission of the contract whereby he took over the stock as part payment for real estate, and then sued for damages if defendant did not accept his offer to rescind. However, the two forms of recovery are quite distinct. Principles applicable to the one are wholly inapplicable to the other. The following text is in point: “There is a clear distinction between an action for a breach of warranty and one for fraudulent representation; in the one the cause of action is ex contractu purely, while in the other it is ex delicto. In actions of the latter character a wilful intent to mislead or deceive is an éssential element of the right to recover, while in the former no such element is necessary and the good faith of the warrantor is immaterial; indeed, it seems that evidence of fraud is incompetent, as being immaterial, in an action for a breach of warranty.” 30 Am. & Eng. Enc. Law 131.
Though plaintiff chose the appropriate action, he failed to observe at the trial the distinction between the case pleaded and the other recovery he might have pursued; and, in submitting his evidence and in asking instructions to the jury, he seems to have had in mind a recovery on the theory that he had rescinded for fraudulent misrepresentation the contract whereby he took the stock as part payment for real estate. Yet, he neither proved a complete rescission, nor anything establishing fraudulent misrepresentation, notwithstanding all this, the trial court adopted plaintiff’s erroneous theory of the action that was being tried and gave instructions to the jury embodying the same.
The jury were told that they should find for plaintiff the full amount of the face value of the shares, if they believed that plaintiff had been induced to trade for the stock by fraudulent misrepresentation of defendant, and had tendered the stock back to defendant within a reasonable time. This instruction had no proper place in the case. Among other objections, it did not submit the measure of damages applicable to the action and the case made by the evidence. The case presented only a breach of the warranty. Therefore, the proper measure of the damages was the difference between the warranted value and the value that the stock' actually had. 2 Sutherland on Damages, sec. 670: Thornton v. Thompson, 4 Grat. 121.
It is true, as is argued, the record shows no direct objection by defendant to the giving of this instruction. But we find the point saved by defendant’s objection to a modification which the court made to an instruction asked by defendant. That modification embraced this same erroneous principle that the court announced to the jury in the instruction for plaintiff. Defendant asked that the jury be instructed that the measure of damages in the suit on the warranty was the difference between the face value of the stock, which was guaranteed, and the actual value of the stock at the time of the transaction. The court gave such instruction, but, over the objection of defendant, modified it with these words: “unless they find that the representations as to the value of the stock were fraudulently made.” So it appears indeed that defendant at the trial did protest by the record against the direction to the jury that they might find a verdict for the full amount of the face value on the theory of a rescission for fraudulent misrepresentation.
From wliat we have stated, it will be observed that the court directed the jury that the case might be suscéptible of the application of one measure of damages or the other. In this direction, the court was clearly wrong. But one measure of damages was properly applicable. That measure was correctly stated in the instruction asked by defendant, before the court modified it. As originally framed, it fitted the ease. The modification introduced also a measure not applicable. It clearly tended to mislead the jury. For all that we can see, it caused the jury to find the amount of the face value of the stock, as they did in the verdict. Since the court gave an instruction that erroneously recognized that which did not properly have place in the case, we may well believe that the jury also were thereby influenced to recognize it erroneously. An instruction should not be given unless relevant. 7 Enc. Dig. Va. & W. Va. 717. Such direction of the jury as that given by the modified instruction must be presumed .to have prejudiced defendant, since we do not see the contrary from the record. Ward v. Ward, 47 W. Va. 766, and other cases.
Affirmed. | [
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Robinson, Judge:
The jury found a verdict for plaintiff, the court set aside the' verdict and awarded a new trial, and plaintiff thereupon prosecuted this writ of error. He demands that the order disturbing the verdict be reversed and that judgment in his favor bes here entered.
The action is one seeking damages for injuries to a wagon,, harness, and horse belonging to plaintiff. Plaintiff’s- team, in charge of a driver, started from McMechen to Moundsville on a dark, foggy night in October. On one side of the public road where the injury occurred is the track of the defendant’s interurban electric railway line. The team was traveling so near to-the track that a car traveling in the same direction struck the-, hub of the front wheel of the wagon and the side of the- off horse.. The ribs and the spine of the horse were broken so that it died.. The evidence shows that the horse was not directly on the track; but so near that the car could not pass without striking it. It. also conclusively appears that the roadway was of ample widths for the team to have been kept clear of the railway. Ehrther, it; conclusively appears that the car, lighted inside and carrying an ordinary head light, could have been seen for such a distance-that there was ample time for the driver to avoid all proximity-to the railway as the car was approaching.
We do not hesitate to hold from the facts and circumstances, of the ease, that the person in charge of the team was so negligent in not avoiding proximity to the car line on this dark night-as to warrant a setting aside of the verdict. Indeed as to whether the driver of the team at the time of the accident was at all’ with it, the evidence is conflicting. But, assuming that the-driver was on the wagon as he says he was, we find in the case-that which denies a verdict for plaintiff. The driver, as the-representative of plaintiff, could not put all the obligation to- protect the team on those in charge of the ear. Upon the whole, they seem to have exercised reasonable care under all the circumstances. Plaintiff does not even undertake to show that they could have stopped after discovering the team in time to avoid the injury. It conclusively appears that the driver was negligent — that reasonable care on his part would have prevented the injury.
This case is not the ordinary one of a street ear overtaking a team in broad daylight or in the blaze of street lights. All the relative circumstances must be considered. The night was dark ■and foggy. Cars were wont to run along this highway at intervals of twenty minutes. The driver knew these things. He eould not anticipate that the motorman would be certain to see the team in the darkness and so approach it as to be able to stop before striking it. In the darkness it may not always be possible to do so, even in the exercise of the highest care. While the ■driver had the right to assume that the motorman would look ■out for persons on the track, still the motorman had the same right to assume that the driver would keep away from the track where there was room to do so. The operation of interurban lines through long stretches of country not crowded with travel can not be held down to the slow speed necessary to guard absolutely against the - carelessness or caprice of travelers. It is ■enough to enjoin on the operators the exercise of reasonable and ■ordinary care. And that reasonable and ordinary care must be judged in a measure by what they reasonably have the right to ■anticipate from others. Surely the motorman could reasonably make speed at a place where he naturally had the right to anticipate that travelers, because of the width of the road and out of greater prudence on account of the darkness and dangers of the night, would not come on the track. All that which the driver knew, or must have known from the facts and circumstances proved, forbade him in prudence from driving near the car track when it was not absolutely' necessary to do so and when he might reasonably expect cars to approach him in the darkness and fail to see him in time to stop. The circumstances were such ■as to enjoin on him at least as much prudence to keep out of the way of the car as those circumstances enjoined on the motorman prudence to look out for persons on the track. True, the team had the right to be on the highway; so had the car. And because the ear had the right to run there in the darkness and its speed and purposes were superior to the team, the relative duty of the driver was to look out for the car and prepare as well as he could for its approach. No prudent man would have carelessly and unnecessarily driven along in proximity to the car track, and taken chances on the motorman finding him there in the darkness and by some manipulation of the heavy car protecting his team from harm. Since both the team and the car had rights on the highway, relative duties devolved on each of them, to be judged by the circumstances of the case and the difference in the modes and the purposes of the travel of each. The duty of the driver of the team was to keep away from the track at this point, to anticipate the coming of the car, and to be prepared for the car to approach rapidly and hasten on before him as it had the right to do. The undeniable circumstances prove that he was so derelict in the matter of this duty as to have caused the injury himself.
' It may be said that the motorman should anticipate that persons traveling the highway in the darkness will not be able to know whether they are near the track and that he should therefore provide against injury to such persons. But in view of the character and purposes of interurban car travel, it would be going far to say that the motorman must observe a higher duty to such travelers than we would require of themselves. Consistent with the situation of the motorman and the character of the travel he is engaged in, it is his duty to look out for persons who have strayed on the track. At the same time such persons must be charged with the reciprocal duty to guard themselves by not getting on the track where it is unnecessary to do so. Indeed, it would seem that their duty to keep clear of the track is a stricter -one than the duty of the motorman on the other hand; for they ■can more safely protect themselves by simply keeping away than he can protect them by the management of a rapid, ponderous instrument when they do not keep away. Reason demands that travelers keep away from the risk of a swiftly moving and dangerous car when it is easier and certainly safer for them to do so than it is easy and certain for the motorman to protect them. Besides, the consideration that travel on interurban cars is that of the general public must weigh in a comparison of the relative rights and duties of the ear company with those of the individual traveler. Certainly the public should not be held up to af ford that protection from injury to an individual which he can readily and more surely give himself merely by the exercise of ordinary prudence. Why should we not require the traveler to know when he himself is on the track as well as require the motorman to know when the traveler is there ? If the motorman must have a head light, why should not the traveler be required to have a lantern?
It is submitted that there is a jury question as .to whether the motorman was giving warning of the coming of the car. We can not in reason hold that the motorman of an interurban car running in the darkness must continually sound the gong or blow the whistle. He must certainly do that at crossings, in narrow places, and when he observes persons in danger. But he can not do that all the time. It is not reasonable to require warning at places where it is not to be anticipated that travelers will risk danger. In such places, if a traveler tempts danger, he must look out and warn himself. He can ordinarily see a lighted car coming in the darkness for. a greater distance than the motorman can see him by the head light. In this case it is undeniably shown that the driver could have seen the car a long distance if he had looked, and that the motorman could not see him until it was too late.
Though it might be found that defendant was negligent, still under the evidence as presented at the trial plaintiff could not in law recover. “One who, through the mere negligence of another, suffers an injury which would not have happened but for his own or his agent’s wrongful act or want of ordinary care proximately contributing thereto, cannot recover at common law any compensation for such injury, unless its more proximate cause is the omission of the other party, after having notice of the danger to use due care to prevent injury.” 1 Sherman & Red-field on Negligence, sec. 61. In other words: “The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligene of his opponent, is considered solely responsible.” Quarterly Law Review, Vol. II., page 507.
The court did not err in setting aside the verdict. The order in that behalf will be affirmed and the action remanded.
Affirmed. | [
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Millee, Judge :
This is an action by plaintiff, as administrator, under sections 5 and 6, chapter 103, Code 1906, — our Lord Campbell’s Act — for wrongfully causing the death of Dallas E. Love, a boy under twelve years of age, employed in defendant’s coal mine, the result of an explosion on January 29, 1907.
On the trial, after plaintiff had introduced all his evidence and rested, the court below, on motion of defendant, struck out all the evidence, directed a verdict for defendant, and thereon pronounced the judgment of ■nil capiat, now complained of.
The declaration contains thirteen counts, charging defendant with negligence in the performance or non-performance of many statutory and common law duties; but no attempt was made to establish by evidence negligence of omission or commission, except, (a) failure to provide a second opening as provided by section 405, chapter 15H, Code 1906; (b) failure to provide a proper system of ventilation; (e) stopping or slowing down of the fan by the superintendent on the day of the explosion; (d). employment of decedent, a boy under the age of twelve years contrary to section 412, of chapter 15H, Code 1906. It is claimed that the evidence of these facts admitted, or erroneously rejected, at the least, make a prima facie-case of negligence, entitling plaintiff to have the case go to the jury, and to a recovery if the jury so found.
We cannot, however, accede to this proposition. 'The fact is admitted and proven that the mine had but the- one opening; it was cojmparatively a new mine, and a second opening in process had not yet been completed; but there was absolutely no evidence showing or tending to show that the want of a second opening was the proximate or even, remote cause of the explosion or injury. Moreover, witnesses for plaintiff admit that the system of ventilation was ample and sufficient to have properly ventilated the mine, that this fan was of the best and most improved inventions, and that properly operated it would have furnished ample ventilation to all parts of the mine, considering the nature and character of the mine for generating noxious and dangerous gases. Complaint is made of the rejection of the evidence of expert witnesses on the question, of the safety of the mine without a second opening, and of other assumed defects in construction; but the questions propounded were very indefinite, and no showing was made as to what the evidence would be, and if material, we cannot say there was error in the rulings of the court thereon.
Next, as to the stopping or slowing down of the fan by the superintendent. Evidence admitted, and rejected, showed or tended to show that on the day, and a short time before the explosion, the superintendent, while necessary repairs were being made in the shaft, and on complaint of the men at work there of cold air going down the shaft, slowed down the fan from seventy-five to twenty-five revolutions per minute. Assuming this to be the act of a vice principal, and violative of section 409, chapter 15H, Code 1906, as claimed, there is not a particle of evidence showing or tending to show that twenty-five revolutions would not furnish sufficient air to ventilate the mine, or that this act of the superintendent was the proximate cause of the explosion and of the consequential injury to the deceased. The fact is, however, that the section of the statute referred to permits the shutting down of the fan when repairing the machinery or doing other work in the mine which may make’it necessary. But it is not claimed the fan was wholly shut down, but Only that the speed was reduced, not a violation of the statute unless a higher speed was required to properly ventilate the mine during the time required to repair the shaft. The slowing down of the fan to make repairs, not shown to have proximately 'caused the explosion, was therefore simply" one of the dangers necessarily incident to the operation of the mine, and for which no actionable negligence can be imputed to defendant, though ordered or done by the vice principal, the superintendent.
The fact of the explosion is not, as plaintiff’s counsel affirm, even prima facie evidence of negligence, calling for explanation. In other words the rule res ipsa loquitur does not apply. We take judicial notice that explosions occur in the best equipped, best regulated and perfectly ventilated mines. Moreover, the owner or operator is not liable when the explosion is the result of negligence of a fellow servant, and not of its neglect to furnish a reasonably safe place in the first instance, or to employ a competent mine boss or fire boss, or to perform some other statutory or common law duty imposed. Squilache v. Coal & Coke Co., 64 W. Va. 337; Williams v. Thacker Coal & Coke Co., 44 W. Va. 599; McMillan v. Coal Co., 61 W. Va. 531; Helliel v. Piney Coal & Coke Co., 70 W. Va. 45, 73 S. E. 289; Bralley v. Coal & Coke Co., 66 W. Va. 278. High, authority says that violation of a statute or ordinance is not even prima facie actionable negligence, except when the court can say as matter of law that the consequences against which the statute was intended to .provide have actually ensued from its violation. 4 Thompson, Law Neg., section 3827; 21 Am. & Eng. Ency. Law, 480, quoted in Norman v. Coal Co., 68 W. Va. 405, 408.
But was the employment of the boy in violation of the statute, actionable negligence? We decided in Norman v. Coal Co., supra, with reference to a boy under the age of fourteen years, that his employment in a coal mine in violation of the statute does constitute actionable negligence whenever that violation is the natural and proximate cause of the injury. And this is so according to the rule enunciated in the Norman Case, although the boy may have negligently contributed to his injury, if such contributory negligence was of that character which the statute was intended, with respect to youths of that age, to provide against. And it is also held that such youths are not to be regarded as having assumed the risks of injuries due to the negligence of fellow servants, as the statute was intended to protect them against all such injuries which might result from the ordinary operations of the mine or plant where employed.
But the foremost and controlling question we have presented here, and the one mainly relied on in defense, is whether the act ■of the father, who under our law would be the beneficiary of any recovery, in consenting to the employment of the boy, and who in fact was the real party to the contract of employment, and received the wages of his infant son, will defeat a recovery, upon the principle of estoppel or negligence contributing to the death of his child ? Of course, if his death resulted from some positive violation of the statute or other fault, for which defendant was responsible, and shown to have been the proximate cause, the contributory negligence of the father in consenting to the employment could not be regarded as the proximate cause, for in that event the employment would not have been the last or causing cause.
But on the evidence we have determined that there was no negligence of the defendant other than the unlawful employ ment to which the father contributed, precluding recovery. The -expression of the Court in the opinion in Daniel v. Coal Co., 68 W. Va. 490; and in Burke v. Big Sandy Coal & Coke Co., Id. 421, is not to be regarded as laying down a different rule. It is argued that the statute to not employ infants is directed against the employer, and not to the parent or guardian. Section 412, chapter 15H, Code 1906, may perhaps be so construed; but section 456 of the same chapter, in pari materia, imposes a penalty on the parent or guardian for allowing an infant of the inhibited age to be so employed in a mine or factory.
The point was not distinctly decided, but Gunn v. Ohio River Railroad Co., 42 W. Va. 676 and Bias v. C. & O. Ry. Co., 46 W. Va. 349, practically commit us to the rule, supported by reason and by the great weight of authority, that where the child is living the negligence of the father cannot be imputed to it, to •effect its right of action and recovery; but where the child is dead, and the father is by law, the sole distributee of the child, •and would be the beneficiary of any recovery, his negligence m consenting to and in becoming a party to the contract of unlawful employment, will bar recovery, regardless of who may be the administrator siring, unless the injury or death of the child was the result of defendant’s willful or wanton act as the proximate cause. The Yirginia case of N. W. Ry. Co. v. Groseclose, 88 Va. 267, 13 S. E. 454, 29 Am. St. Rep. 718, said to hold the contrary doctrine, was distinctly overruled in the later case of Richmond F. & P. R. Co. v. Martins Adm’r. (Va.) 45 S. E. 894, where the Iowa case of Wymore v. Mahaska County, 78 Iowa 396, 43 N. W. 264, is criticised and disapproved. In Iowa the statute gives right of recovery to the estate of the minor and also to one of the next of kin. It will serve no good purpose to review or criticise the many cases laying down the rule to which we have declared our allegiance. Some of these are cited by Judge Beaniton' in the two decisions referred to. Others will be found collated in other judicial decisions and text books on negligence. In the recent case of Davis, Adm’r. v. Seaboard Air Line Ry., (N. C.) 48 S. E. 591, reported, with note, in 1 Am. & Eng. Anno. Cases, 214, some of these cases and text books are cited for the proposition to which we have given our approval, and applicable to this case, namely, that ‘‘While the negligence of parents, or others in loco parentis, cannot be imputed to a child to support the plea of contributory negligence, when the action is for his benefit, • yet when the action is by the parent, or the parent is the real beneficiary of the action, as distributee of the deceased child, the contributory negligence of the parent can be shown in evidence in bar of the action.” This doctrine, as declared in the North Carolina case and other cases, is founded on the wholesome doctrine that one shall not be permitted to profit by his own wrong.
The many other points raised and argued in briefs of counsel become unimportant, because uncontrolling and immaterial.
The judgment below is therefore affirmed.
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Williams, Judge:
The circuit court ’of Marion county perpetually enjoinéd defendant from erecting a building on his lot, within ten feet of the line of plaintiff's lot, holding" that plaintiff had an easement upon said strip of ground; and defendant has appealed.
In the year 1857, James Burns, being the owner of a lot of ground in the town of Fairmont, conveyed to certain named trustees of the Methodist Episcopal Church 40x70 feet of it, fronting on Adams street; and covenanted with said trustees, “and their successors in office that no building shall be erected on any part of the land surrounding the above described granted church lot, within ten feet of said church lot.”
■ proper proceedings had in court a decree was made authorizing said trustees to sell and convey the church lot and building; and, pursuant thereto, they sold and conveyed it to plaintiff by deed dated February 10, 1911. They also expressly conveyed “all such rights franchises or easements, vested in said first parties (the grantors) in and to that certain space of ten feet situate immediately adjacent to the said church lot.” A few months after he had granted the church lot, Burns granted to the “Fairmont Male and Female Seminary,” a corporation, the adjacent lot, and excepted from the latter deed “that part of said lot and the privileges thereto annexed which the said James Burns and wife have this day conveyed to the trastees of the M. E. Church of the U. S. A.” By a number of mesne conveyances, that lot has passed to the defendant, the immediate deed to him being made in 1895.
Did the covenant by Burns with the trustees of the church create an easement in the ten foot strip of land adjacent to the church lot, which became appurtenant to it; in other words, was the covenant real, or only in gross? Defendant’s counsel contend that it is personal with the 'trustees, and their successors in office, and is limited in duration to such time only as the lot is used for church purposes. But there is no such limitation in the language of the covenant, nor are there any words in any other part of the deed indicating a purpose to so limit it; and the well established rule is, that if the covenant benefits the land to which it relates, and enhances its value, the easement created by it becomes appurtenant to the land, and passes with it. Lydick v. Railroad Co., 17 W. Va. 427; Washburn on Real Property, sec. 1205.
If the language of a covenant is unambiguous, and its meaning is not restricted by any other terms or provisions in the deed, its character, i. whether real and running with the land, or only in gross, is to be determined from the language of the covenant alone. It is only when the intention is doubtful that the courts can resort to technical rules of construction to ascertain it. Killian v. Harshaw, 7 Ired. L. 497 (29 N. C.). The words of the covenant are the primary source from which the intention must be gathered. 8 A. & E. E. L. (2nd ed.) 86. There is nothing in the language of Burns’ deed to the trustees of the church which, in the slightest degree, indicates a purpose to limit the duration of the easement. The covenant was intended to give light and air, not only to the church building then on the lot, but also to any other building needing light and air that might be erected in its place. Phoenix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400. It created an easement in ten feet of the adjoining lot for the benefit of the church lot; it is an incorporeal hereditament, appurtenant to the church lot and passed by the deed of the trustees to plaintiff. But, to make assurance doubly sure, plaintiff had an express assignment of the easement inserted in the deed. Notwithstanding it is entitled to little, if any, weight, in determining the legal ■question involved, yet it is proper to mention the fact, as showing want of equity in defendant’s contention, and that is, that in every one of the numerous deeds forming defendant’s chain of title, from Burns down to himself, and there were eight or ten of them, it is expressly stated that “no building shall be erected on any part of said land hereby conveyed within ten feet of the lot of the Methodist Episcopal Church, without the consent of the legally constituted authorities of the said’ Church.” The last clause of this restriction does not signify anj> purpose to make the covenant a personal one, because an owner of the dominant estate may at any time release any right appurtenant thereto.
Presumably defendant paid no more for his lot than it was worth, subject to the easement. He can, therefore, claim no equities in aid of his legal right. The open space was evidently intended to furnish light and air, as no other use, apparently, could be made of the strip of ground by the owner of the dominant estate. Light and air are as essential to the enjoyment of a dwelling or business house, as they are for the use of a church building, and perhaps more so, for the reason that church buildings are usually occupied for a short time only, and between long intervals, while a dwelling house is occupied continuously, and a 'business house during the business hours of ■every work day.
Plaintiff alleges that he is converting the church building into a business house and “that he desires to preserve the windows in said building, in the present location and to preserve all his present rights as to light and air.” This averment, which is admitted in the defendant’s answer, shows clearly that the space for light and air is beneficial to plaintiff’s lot. If it appeared that the open space was no longer useful to the dominant lot, or that the owner of it had abandoned his right to the easement, as for instance by erecting a building without any openings in the wall toward the open space, equity would, no doubt, refuse to enforce the covenant. But the very reverse ■of an intention to abandon is here shown; and it appears that the easement is still beneficial to the lot, notwithstanding the change of its use. There is no doubt of plaintiff’s right to compel defendant to obey the covenant.
A similar case to this is Salisbury y. Andrews, 128 Mass. 336. There two tenants in common of a large lot laid it out into building lots with an open court between them; later, íd deed of release and partition between them, it was agreed that the court should always be left open for a passage way, or court, for the common use and benefit of the lots. Many years thereafter, a subsequent owner of some of the lots commenced to build a bridge, or passage way, across the court about seventeen feet above the ground, connecting two of the buildings. The owners of the other lots, fronting on the court, brought a suit to enjoin him from erecting the bridge and prayed for the removal of so much of it as had already been built. The defendant answered and denied that plaintiffs had any right to the court, except the right of way over it, and denied that this right of way was or would be obstructed by the bridge. But the court held that the easement was intended as well for light and air for the benefit of each and all of the lots, as for right of way, although the former purpose was not expressly named. It also held that such right was an appurtenant which passed with the respective lots, and that the erection of the bridge was an infringement of such right and constituted a private nuisaanee, giving plaintiffs the right to have it abated.
Phoenix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400, is another case in point, supporting the view which we have herein expressed. There, one Howland was the common source of title. He conveyed a lot, adjoining one retained by himself on which had been erected a building. His grantee covenanted not to erect any building on a strip of ground, 8x35 feet, adjoining the line of the lot retained by grantor, and also agreed that if he should violate the covenant, he would pay the grantor, his heirs, executors and assigns a sum of $1,500'as liquidated damages. By successive conveyances, titles to the two lots passed, respectively, to the parties litigant; and the question presented in the case was, whether the owner of the servient lot had the right to discharge the covenant by paying the $1,500. The court held that the option, to discharge the covenant, belonged only to the owner of the dominant estate, and that he, not agreeing to accept it and release the easement, had a right to enforce the covenant against- the owner of the servient lot. In its opinion, at page 407, the court says: “But passing from the consideration of the language, of the covenant alone, and construing it, in connection with the circumstances, the conclusion is we think irresistible, that the prime motive of the covenant, was to secure the space in question, in .perpetuity, as an open area, for supplying light and air to Montague Hall (then standing on the unconveyed land of the grantor), or to' any subsequent building, which might be erected in its place. The building known as Montague Hall, was four stories high on Court street, and three stories high in rear. The northerly wall, abutted on the strip of land in question, and in the part of the wall adjacent to the strip, were windows, which supplied light and air to the three rear stories of the building, and for which there was no other provision. The- premises were valuable, and likely to become more so. The court was clearly justified in finding that it was the intention of the parties by the covenant in question, to secure in permanence, the very condition of things covenanted for, viz.: an open space adjoining, and for the benefit of, the unconveyed premises of the grantor. It is not reasonable to suppose that it was intended that the covenantor might at his election break the covenant, on payment of the stipulated damages.”
Brew v. VanDeman, 53 Tenn. 433, is also a case very similar to the one,in hand. In that case, it appears that one Kaylor had conveyed to plaintiff a lot on Market street in Chattanooga, one line of which lot ran from Market street, eighty feet, to the post office building, and paralleled the line of grantor’s lot leaving a strip of ten feet between them. The grantor covenanted “to leave open forever, for the public convenience and the use of the adjoining lots, the walk, ten feet in width leading from said street to the entrance of the post office building.” Plaintiff had erected a large, brick building upon his lot, having doors and windows opening upon this walk, or passage way to the post office building. VanDeman and Dowling purchased of Kaylor the other lot, erected a building along the line of it, bordering on said passage way, and were about to erect a balcony in front of their building, overhanging the passage way, and were also about to erect a stairway on the outside of their building, leading to the balcony. The court held that plaintiff, and the public, had a right to the unobstructed use of said passage way, for its entire width, length and height; and enjoined defendant from erecting the balcony and stairway.
In Herrick v. Marshall, 66 Me. 435, the same question was decided. There, it appears, one Murray owned two lots. He had built a house and lived on one of them, and in March 1873 he conveyed it to the plaintiff. In 1864 he had conveyed to one Smith the adjoining lot, and put in the deed to Smith the restriction, "that no building hereafter erected on the above lot shall be erected within ten feet of the easterly line of the said Murray’s house lot.” The Smith lot came to be the property of defendant. It also appears that neither the plaintiff nor the defendant had any actual knowledge of the restriction put upon the use of the Smith lot, until after defendant had partly completed a building upon his lot, which came within two feet of plaintiff’s line, notwithstanding the restriction was noted in the various deeds by which they had acquired title. That was an action on the ease to recover damages for the infringement of an easement, and the court held that he was entitled to recover. The agreement was held to create an easement .on the lot which Murray first granted, in favor of the lot which he retained, and the benefit to the one, as well as the burden to the other, passed with the respective lots.
We find no error in the decree appealed from and it will be affirmed.
Affirmed. | [
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POEEENBARGER, JUDGE :
In these three consolidated causes, having for their purpose the enforcement of mechanics liens for materials furnished and labor performed at the instances of a principal contractor, the decree must be reversed for failure to make the principal contractor a party. Augir v. Warder, 68 W. Va. 752.
Each of the three bills discloses on its face the relation of the parties and the omission stated. Farley was the owner of the property on which the house in which the materials were used and upon which labor was bestowed was built, and Caldwell had the contract for building it. General demurrers to the bills, assigning no grounds other than insufficiency thereof in law or equity, were overruled,-as shown by the decree, referring to the answers, containing the demurrers, and reciting failure to assign any ground or cause beyond that stated in them. Section 29 of chapter 125 of the Code does not bar reversal of a decree founded upon an insufficient bill, for failure to allege anything in support of the demurrer. The clause thereof relied upon here does not apply to equity pleadings at all. Hays v. Heatherly, 36 W. Va. 613. Anything in Cook v. Dorsey, 38 W. Va. 196, seemingly in conflict with this view is an obiter dictum and not matter of actual decision. If that clause were applicable, however, it would not preclude reversal, for the order fails to say no ground of demurrer was assigned.
As, in the absence of necessary parties, nothing can be de cided, tlie decree will be reversed and the causes remanded, with leave to amend.
Reversed and Remanded. | [
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POEEENBARGER, JUDGE:'
Divers criticisms of the declaration in this case, filed against a street railway company and a natural gas company, as joint tortfeasors, by a lady, for personal injuries occasioned by a wrongful act alleged to have been done by their servants acting jointly, are made, in the effort to sustain the action of the trial court in sustaining the demurrer thereto, and dismissing the action, on her refusal to amend.
The assertion of the relation of passenger and carrier, in the statement of the attendant facts, whether with or without in tention to rely upon it in the trial, as measuring and defining the duties of the railway company, does not vitiate the declaration, either because two defendants under different obligations or duties cannot be sued jointly for a wrong, or because such a relation is inconsistent with the subsequent allegation of injury to the defendant as a pedestrian'on the street. Aside from the motive or purpose of that allegation, it charges no injury or wrongful act, while the plaintiff was on the car as a passenger, ‘nor is she alleged to have been a passenger at the time of her injury after having gotten off of the car. It is no more than an unnecessary, yet natural, relation of a fact as a part of the history of the occurrence.
After the narration of plaintiff’s trip on the railway company’s car, as a passenger, from a station called Rosemar, to a certain point in the city3- of Parkersburg, at which she left it, and the carriage by the same car to the same point of a number of servants of the gas company, together with a lot of heavy tools used by them in the business of their employer, and then in their possession and control, the declaration charges, in substance, that the agents, servants and employes of both defendants, while jointly engaged in removing the tools from the car, an,d in furtherance of the business of the defendants, respectively, negligently, recklessly and without care for the plaintiff and other persons on the street, threw the same from the car to the street where the plaintiff was passing from the car to the sidewalk, and struck her and injured her leg between the knee and ankle and also her foot and both anides.
Our rules of pleading require no particular form of allegation, and, in actions of trespass on the case for injury by negligence, it suffices to set forth in general terms the injury, the instrumentality or means thereof, when it was occasioned by an affirmative act, or the particular omission of duty, when it resulted from a mere omission, and then aver that the act or omission was negligent. Bralley v. Railway Co., 66 W. Va. 462; Veith v. Salt. Co., 51 W. Va. 96.
Though possibly informal and untechnical, the allegation as to the relation of the servants to the defendants and the business of the latter, is sufficient. It says the agents, servants and employes, while jointly engaged in removing the tools from the ■car and in furtherance of the business of the defendants, respectively, did the wrongful act resulting in injury to the plaintiff. Of course the agent or servant, in doing a wrongful act so as to impose liability on his master, must act within the scope of his authority, and the declaration must charge the relation of master and servant existed at the time and as a part of the transaction, but no rule requires an allegation of the relation in any particular form. The declaration need not say in so many words the servant acted within the scope of his authority. It suffices to say that in the infliction of the injury he acted as servant of the master. This sufficiently avers action within the scope of his authority. To require a specification in the declaration of the name of the servant, the class to which he belongs and the particular duties with which he is charged, would impose upon the plaintiff more than is necessary for the accomplishment of the office and purpose of the declaration and duty to allege matter lying péculiarly within the knowledge of the defendant and often beyond that of the plaintiff. It is not necessary to the protection of the defendant, since he knows who his servants are, their classification and respective duties. A. statement that the act was done by his servant suffices to apprise him of this element of the ground of action. Pie cannot demand 'specification in the declaration of mere evidential facts. In Bralley v. Railway Co., 66 W. Va. 462, 465, speaking of the sufficiency of the declaration as regards particularity in a somewhat different, but similar respect, we said: “The declaration must give notice of the nature of the cause of action, specifying in general terms the means or instrumentality of the injury, but it need not go beyond this and indicate what evidence is to be introduced or relied upon as to matters of detail. Such a requirement in the rules of pleading would place undue restrictions upon the plaintiff and hamper him in the presentation and trial of his case, and this, without any corresponding advantage to the defendant, other than the disadvantage thrown in the way of the plaintiff. If the plaintiff were bound to indicate, in some count in the declaration, the particular ground of negligence; or point out the nature and character of the evidence to be introduced, he would be precluded from recovery in many instances, by a slight variance of the proof from the declaration, in cases,- so plain upon the evidence, and so clearly within the general scope of the declaration, as to make it perfectly obvious that the defendant was not in the least embarrassed or injured by the generality of the charge, and that the plaintiff had an undoubted right to a verdict. This would be needlessly sacrificing substantial right to mere technicality and form.” In that case, we refused to follow decisions requiring, in our opinion, unnecessary and burdensome particularity of statement.
The court cannot do away with the force and effect of the general charge of relation of master and servant in the act or omission complained of, upon the assumption of a classification of servants or division of ivork. among them. Under our practice, this is matter of proof. The court cannot say as matter of law or judicial cognizance that the servants of a street railway company acted beyond the scope of their duty in assisting in the removal, from one of its cars, of tools and appliances carried on it, together with servants of another company in charge of them, no matter whether they are baggage or freight, or either, nor that the servants of the other company, in assisting in the removal of the same tools and appliances acted beyond the scope of their authority. Under some sort of relation between the defendants, no matter what, tools were in the car of the railway company used in its business, and the necessity of their removal therefrom to prevent interruption of such use was obvious. At the same time, they were owned by the gas company, wherefore it had right to take them and its servants engaged in the act of removal. Whether there was necessity for joint action, or any rules or instructions were violated by any servant of either defendant in taking part in that work, or the lack of authority or justification, if any, absolved the master from liability, are all matters of law and fact for disposition in the course of the trial. To require anticipation thereof in the declaration would impose vast labor upon the plaintiff and expose her to great hazard, without any corresponding advantage to the defendants other than that resulting from useless weight of procedure placed upon her by the court The declaration charges as matter of fact that the servants of both undertook jointly to re move the tools and in doing so negligently injured the plaintiff. Sufficing to give the defendants notice of the nature and grounds of the demand, this accomplishes the purposes of a declaration as defined by this Court in the light of the rules and principles of pleading.
The argument in support of the objection of misjoinder of parties, based upon the inequality of duty, treating the plaintiff as suing in the character of a passenger, has already been disposed of. Her action is for injury while a pedestrian in the street. There the duties of the defendants were equal. Each was bound to abstain from negligent acts working injury to her.
As such duty is imposed by law, averment thereof in terms is unnecessary. It arises from the relation and situation of the parties, and the mere statement thereof in proper connection makes the declaration good.
As the declaration is clearly good, the judgment will be reversed, the demurrers overruled and the case remanded.
Reversed and Remanded. | [
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PoFEENRARGER, PRESIDENT:
Abuse of the discretion of the court, respecting a motion for a continuance, is the principal charge made against the correctness of the decree of divorce in this cause. Plaintiff filed his bill at June Rules, 1910, alleging desertion, in February, 1907, as ground for divorce. Eo answer was filed until the second day of the October Term, 1910. In the meantime, the plaintiff had taken the depositions of himself and two other witnesses. The answer denied wilful desertion and averred the respondent had been driven from her home by the cruelty of her husband and fear for the safety of her infant child and had no means with which t-o employ counsel; and prayed suppression of the depositions taken, an allowance of proper counsel fees, a continuance of the cause to permit her to make defense an,d a divorce from her husband by way of cross relief. She also excepted to the depositions, charging insufficiency of the return endorsed on the notice to take the same. The return was amended and excepted to again on the ground of insufficiency. In support of the prayer for a continuance and an allowance of counsel fees, an affidavit was filed showing an assessment of real estate in the county in the name of the plaintiff, worth from $800.00' to $900.00, and an income from a pension and also from labor as a carpenter. The exceptions to the depositions and a formal motion for a continuance were overruled and a decree entered, dissolving the marriage.
Though a period of four months elapsed between the commencement of the suit and the entry of the decree, no evidence was taken by the plaintiff until the middle of September, 1910, slightly more than two weeks before the decree was asked for. As the defendant had no occasion to move in the matter of proof until after the taking of plaintiff’s depositions, her demand for suit money and time for taking her proof would have caused no serious delay, had-it been granted. It might have been made earlier, hut there was no occasion for it while the plaintiff voluntarily allowed his suit to rest. Moreover, a penniless-woman may have had difficulty in procuring an attorney to prepare her answer and make the demand for her, though this is not affirmatively shown.
The belated filing of an answer will not delay the hearing of the cause in the absence of disclosure of good cause for delay. Hence, if the matters averred in the answer and the state of the case as shown by the record constituted meritorious cause for a continuance, the court should have granted it. On this subject, the rule is more liberal in divorce suits than in others. Bish. Mar. Div. & Sep. sec. 673. In such causes, the state has an interest. Hall v. Hall, 69 W. Va. 175, 179; Bacon v. Bacon, 68 W. Va. 747; Wass v. Woss, 41 W. Va. 126. A-divorce by agreement of the parties, express or implied, is inhibited by law. Maintenance of the policy of the law enjoins allowance of opportunity to each party for full presentation of his side of the controversy. Out of it arises power in the courts to compel the plaintiff to pay an impecunious defendant money with which to defray the cost of full defense. The law accords to the parties equal facilities for presenting their cases and the courts enforce the right thereto. Bish. Mar. Div. & Sep. sec. 976. Delay incidental to the enforcement thereof is, therefore, contemplated and authorized by law. Application of these principles discloses a clear right to a continuance, which the court could not properly disregard or deny.
The same principles and considerations call for suppression of the depositions taken by the plaintiff, unless he will again produce the witness for cross-examination by the defendant. Having been without means to employ counsel at the date of the taking thereof, she has as yet had no opportunity to avail herself of this legal right, even though duly served with notice. Whether the return of service of the. notice, as amended is sufficient thus becomes an immaterial question.
The decree complained of will be reversed and the cause remanded.
Reversed and Remanded. | [
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Milled, Judge:
These are cross suits. The original bill was filed by the plain,tiff in RTo. 1880, and a preliminary injunction was awarded, which was dissolved on motion of the defendants, on the bill, answer and ex parte affidavits filed; but the bill was not dismissed. Prom that decree plaintiff appealed. On the answer -and cross bill of plaintiffs in cause No. 1916, filed after dissolution of the injunction in No. 1880, a preliminary injunction was awarded, which on bill, answer and ex parte affidavits filed, was likewise dissolved, and from that decree plaintiffs therein have appealed. Both causes are now before us upon the cross appeals of appellants in each case.
The bills in each case are purely injunction bills; no other relief is s'ought. The relief sought in the first'cause is predicated on the theory of good title in plaintiff to the timber of certain dimensions, alleged to have been purchased by it, by contract in writing, from the Gauley Coal Land Company, covering a tract of 4,516.8 acres of land in Mcholas county; and on the theory that defendants, without any right or title] had entered -on a portion of this land unlawfully, and were attempting to interfere with plaintiff in the removal of the timber, by stretching wires from tree to tree to prevent access to the land, and by obstructing roads and roadways used for removing the timber, and had built a house across one of the roads, and had threatened violence to plaintiffs employees, which, owing to the great force of men employed, and the necessity for supplying the mills with timber, would result in great and irreparable loss and injury, that could not be compensated in damages. The bill contains no charge of cutting timber by defendants, or of other injury or damage to the land.
The answer of defendants denies title in plaintiff, and asserts title in themselves by right of inheritance and by deeds, referred to or exhibited with the answer and cross bill.
Plaintiffs in their cross bill, so-called, who were not parties defendant to the original bill, but were represented only, if at all, by eo-parceners, who were parties, alleging and deraigning title in themselves, by deeds and otherwise, further allege as grounds for affirmative relief, that the Pardee & Curtin Lumber Company, defendant, had entered upon one hundred and fifty odd acres, the land actually in controversy, and-belonging to them, and their co-heirs, without right or title thereto, and were engaged in cutting and removing the timber therefrom, to the great injury and damage of plaintiffs, and against which they sought the injunction prayed for.
We are of opinion that the decrees below in each case, appealed from, are clearly right, and should be affirmed. Counsel for the appellant in the first cause, in their brief, without citation of authority, seek to support the bill upon the theory of repeated trespasses, and a necessity for the resort to equity to avoid a multiplicity of suits, and of course upon the theory of alleged good title to the timber in the plaintiff, and no title in the defendants. But the answer of defendants puts in issue-every material fact alleged, and asserts title in themselves, not only by deeds of inheritance, but by actual possession by themselves and their ancestors for more than thirty years, by residence and enclosed fields, of the land in dispute; but actual occupancy of the forest land, except as aforesaid, is not averred, except to prevent trespass by the plaintiff.
It is claimed that the deeds relied on do not cover the land: in dispute; that the tax deed, from Hamilton, clerk, to John B. Odell, the ancestor, particularly relied upon, is so indefinite and uncertain in description, as to render it void and of no effect to confer title on the grantee or his heirs. But it is conceded that the outside boundaries of one of the two large surveys described in the deed do cover the land in controversy. The contention of counsel for plaintiff in the original bill, however, is that nothing would be left after excluding the excepted, boundaries. Whether this is so or not, it is impossible for us on this record to say. All we can say is, that it appears possible by a survey of the outside boundaries, and of the boundaries of the excepted grants and conveyances, to locate the land claimed by the defendants, if any land remains, as they stoutly contend is the fact.
It is well settled in this State that equity will not take jurisdiction for the sole purpose of enjoining trespass to real estate, where the title is in dispute. Cox v. Douglas, 20 W. Va. 175, and cases cited; Lazzell v. Garlow, 44 W. Va. 466; Freer v. Davis, 52 W. Va. 1, 9. But if the title be undisputed, or it is made clearly to- appear that the defendant has in fact no title, legal or equitable, equity will at the suit of a party in possession, or out of possession, but with right of possession, enjoin the cutting of timber or other waste thereon, amounting to a destruction of the substance of the inheritance. Electro Metallurgical Co. v. Montgomery, 70 W. Va. 754, 74 S. E. 994. But the original bill presents no ease covered by these decisions, and clearly there was no jurisdiction to enjoin defendants.
Hext as to the cross bill. This bill, while alleging good titles in the plaintiffs and want of title in defendant, also alleges-, the cutting of timber; But it concedes that the defendant has-, entered upon the lands and has at least occupied a portion of" the forest land with its men and roadways for cutting and re-moving the timber, and to that extent worked an ouster of' plaintiffs. Moreover, defendant by its answer alleges not only possession, but title in itself. The cross bill does not allege-that a suit has been or is about to be brought by plaintiffs to try the title. Without such allegation and proof of the fact alleged equity will not enjoin the defendant from cutting timber.. This rule'is well established not only by some of the decisions already cited, but particularly by the recent cases of Pardee v. Camden Lumber Co., 70 W. Va. 68, 73 S. E. 83; Waldron v. W. M. Ritter Lumber Co., 70 W. Va. 470, 74 S. E. 687. See, also, Callaway v. Webster, 98 Va. 790.
Other questions argued and presented by the briefs of counsel become immaterial. The decrees appealed from in both cases are affirmed, with costs to the appellees in each case.
Affirmed. | [
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PORRENRARGER, PRESIDENT:
A. J. Caroway obtained a verdict in an action of detinue against L. S. Cochran for a saw mill, valued at $300.00, and $5.00 damages, which the court set aside. On his writ of error, he complains of the action of the court in permitting the defendant to file a special plea and the introduction of evidence thereunder, in giving defendant’s instructions Nos. 1 and 2, and setting'aside the verdict.
The defense was a right of detention in the defendant as a bailee or custodian of the mill for a claim for compensation for his trouble and labor in the care thereof, amounting to $100.00. An effort is made here to get rid of the writ of error on the theory of lack of appellate jurisdiction. The amount in controversy, however, was the value of the property sued for. Although the defendant disclaimed any title to the mill and asserted his claim for compensation only as ground of defense, the subject matter of the litigation was the possession of the mill. There could be no cross action in this suit for compensation for its care. At most that claim gave a mere right of detention and the recovery thereon was enforcible only by judgment and execution. The $100.00 claim was in the case as a ground of resistance of the plaintiff’s right to the mill, not as the basis of a recovery of a money demand. Hence, clearly it was not the matter in controversy.
The píea, if sustained by proof, constitutes a good defense. A bailee, without an express agreement for compensation, may undoubtedly retain possession of the subject of the bailment for his reasonable charges, in the absence of circumstances proving the service to have been gratuitous..
The mill had been placed on Cochran’s land for the purpose of manufacturing lumber on an adjacent tract belonging to other parties, under a verbal license from him, in consideration of which some of his timber was to be sawed by the licensees. It was placed there by the Ehttanning Lumber Company, a copartnership, composed, it seems, of J. Ml Straight and J. H. Painter. This firm did not own the mill. They had leased or hired it from Painter, one of the members of the firm. Before completion of their contract for sawing the timber on the adjacent land, the firm became insolvent and quit work, leaving the mill on Cochran’s land. Subsequently Caroway bought it of Bainter and demanded possession thereof which Cochran refused'. Assuming power in this firm to bind Painter for the expense of earing for the mill, after they had ceased to use it, on account of insolvency and discontinuance of work under their contract, there is sufficient evidence to establish a right to compensation in Cochran for its care. Letters to him from Straight, requesting him to see that nobody carried off any parts of the mill and also to recover some that had been taken away, were introduced. But Cochran set up other claims, damages for failure to saw his timber, loss of the mill shed which he says he was to have on the removal of the mill and the rental of a house standing in such close proximity to the mill and the debris around it that he could not rent it, on account of danger of fire. He had also expended some time and money in efforts to locate and recover certain parts of the mill which had been carried away. In his itemization of his claim in his testimony, he puts in $5(X00> value of lumber lost by allowing its use as a shed to protect the mill, $24.00> loss of rental of the house, and a considerable amount for time and money spent in seeking recovery of the stolen property. He says his claim set up against the demand for possession of the mill did not include said last item, but asserts positively that he made a claim for compensation for taking care of the mill as the basis of his refusal to yield possession thereof. The value of his lumber and lost rental may not have been the true measure of his compensation, but it nevertheless remains that he testifies to his having claimed it. In this he was flatly contradicted and an issue for jury determination was thus made.
Whether the hirers of the mill for use for their own benefit could bind the owner by their subsequent contract of bailment to the defendant for care and preservation was, under the circumstances, a question for the jury. Painter was a member of the firm by whom this subsequent contract was made. Presumptively he knew where the mill was and the conditions. As owner and also a member of the firm leasing it, he must have had knowledge of the abandonment of the contract and insolvency of the firm and consequent necessity of some arrangement for tire preservation of the property. The jury could infer from these circumstances his assent to the subsequent contract of bailment with the defendant for his benefit.
The court gave two erroneous instructions at the instance of the plaintiff and this action was no doubt., the ground on which it sustained the motion to set aside the verdict. The first one submitted to.the jury questions of law as well as fact. It told them they should find for the plaintiff if they believed the defendant unlawfully withheld the property. The error in giving this instruction may not have been sufficient ground for the court’s action, since it propounds no false, inapplicable or misleading direction as to the law. But the other one was prejudicial as well as erroneous. It told the jury they must find for the plaintiff if they believed the five year statute of limitations did not apply. Tfie issue made on that statute, if any, was not the only issue, but the court treated it as if it were. If it applied, the jury might nevertheless find there was a right of retention for compensation in the defendant. The giving of this instruction undoubtedly justified the setting aside of the verdict.
Seeing no error in the judgment complained of, we affirm it.
Affirmed. | [
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Bmusnsrojsr, Peesideht :
Charleston was incorporated in 1794 as a town. In 1831 Daniel Ruffner made a deed to the president, recorder and trustees of Charleston forever “for use of said town as a graveyard or a place of interment for said town,” a lot of one acre of ground. The deed contained a covenant that if at any time the said corporate body should cease to exist, or become incapable of holding said lot of ground, then said Ruffner and his heirs should “stand seized to the use of said town of Charleston or the inhabitants thereof.” The deed contained the covenant that the “parties of the second part for themselves or successors do covenant with said Daniel, his heirs and assigns,. to keep the said lot of ground, suitably enclosed, and separate from the other land of the said Daniel.” The deed reserved to Ruffner a small part of the lot as a private cemetery “and as containing the bones of his parents.”
The town took possession under the deed, and enclosed the lot, and allowed its use for a graveyard for the public from 1831 to 1872. It made no sales of lots, nor written permits for burial. The public used it for burial by license from the town. It was the only public burial place owned by the municipality until 1870, when the town established a cemetery in a different location, called Spring Hill Cemetery. In 1872 the old graveyard ceased to be used for burial. Hundreds of bodies in the long space of forty years had been buried in the old graveyard. Some fifty were removed to the new cemetery; but there remained hundreds in the old cemetery, and sleep there yet. Until 1865 most of the dead of Charleston were buried there. The city took no steps to remove them. Ho one did. It passed no order forbidding burial there. In it were many monuments and tombstones, and. some iron railings enclosing some of the graves. After establishing the new cemetery the city still controlled the old cemetery by fencing and cleaning it up; but it suffered it to grow up in briers and brush, and it became in bad condition in appearance.
In 1898 George S. Couch made a proposal to the city council to buy this acre for $1,000.00.
On the 20th January, 1898, the council of Charleston passed an order reciting that the said lot “is not now nor has been for many years nor ever will be again used as a burial ground and is therefore no longer of any use to the said city; and whereas said lot is at constant expense to maintain in presentable condition, and is moreover made a rendezvous for immoral purposes,” and reciting the offer of Couch to purchase. The order accepted the proposition of Couch, and directed a deed to him; on the next day a deed was made to him and he paid the $1,-000.00 consideration. In April, 1898, George Ritter, James E. Lewis, Julia E. Petty and Dulce Rowena Laidley brought the present suit against Couch, the city of Charleston and heirs of Daniel Ruffner, for the purpose of annulling the deed from the city of Charleston to Couch, and to declare void the action of the council selling the lot to Couch, and to enjoin them from attempting to remove, transfer or obliterate in any way the graves of the relatives of the plaintiffs. The plaintiffs had for many years been residents of Charleston, and had buried in the said graveyard many blood relatives, fathers, mothers, sisters; and brothers. The case ended in the circuit court of Kanawha county in a decree holding as illegal the sale of the lot to. Couch, and vacating the deed from the city to Couch, and enjoining the defendants from removing or attempting to remove- or interfere with, or obliterate the graves of the relatives of the; plaintiffs, or the stones or monuments marking them.
The right of the plaintiffs to maintain this suit is questioned - It is said that the plaintiffs or their families never purchased, any lots in the graveyard, or had any other right beyond a naked license. It is very certain that the city acquired the lot for burial purposes; that it took possession of the lot and enclosed it and controlled it as a burial ground; that it permitted through many years the burial of the dead in it; and thus it is clear that it received this lot and dedicated it to public use for the-burial of the dead. Nothing is wanting on the part of the city to show that it consecrated and dedicated the lot for the burial of the dead. The kindred dead of the plaintiffs lie in that old pioneer graveyard under this dedication and consecration. The-municipality of Charleston acquired this property for public use, and devoted it to this use, a legitimate public use, as the burial of the dead is indispensable. Land so acquired by a municipality for such purpose and dedicated, is a dedication to a pious and charitable use. Hopkins v. Grimshaw, 165 U. S. 342; Evergreen Cemetery v. City of New Haven, 21 Am. R. 643. In the last named case the court said: “All must be regarded alike as consecrated to a public and sacred use. The idea of running-a public street regardless of graves, monuments and the feelings, of the living, through one of our public cemeteries, would be shocking to the moral sense of the community, and would not be tolerated except upon the direst necessity.” These authorities. say that the dedication is irrevocable no matter that there is no purchase of lots or grave places. The city allowed entrance to-the dead without let or hinderance. It is said, furthermore, as an argument against the right of the plaintiffs to sue, that Couch does not propose to disturb the graves of the dead. Perhaps not now; but he was careful to insert in the deed from the city to him a provision limiting the right of the city or any person to four months from the date of the deed to enter the- lot for the purpose of removing the dead, and declaring that such entry could not be made afterwards. Couch claims that under his deed lie has absolute title in fee to the lot unencumbered of any trust, and the right to dispose of it. What is to prevent him or his heirs or alienees at any time in the future from removing the dead? Couch has dry legal title, and if that be not charged with the trust, there is no guaranty that the dead will not be removed, and of the kindred of the dead may not call upon a court to save their last resting places from invasion, Couch cannot be stopped from so doing by any mere declaration of Couch, based on no consideration, the deed containing no covenant not to invade the graves. This commercial age betokens that trade will at some future time forget the dead reposing there. It has been debated in this case as to the character* of the deed from Rúffner to Charleston. It has been questioned whether it is a deed with a subsequent condition, or an absolute conveyance of the fee simple without such condition. Does the fact that the lot has ceased to be used for interment, or its transfer by the town, forfeit the estate of the town and revert the land to Ruffner heirs? I cannot see that this question is material. If the town has lost its title, and the lot has reverted, I do not see that it would help the plaintiffs. They would not get title thereby. But it may be material as showing, against Couch, that it is not his power to remove the dead. I do not think that the deed from Ruffner conveys the estate upon condition. I think it conveys an absolute legal title. It mentions no condition of forfeiture. It mentions no forfeiture as long as Charleston is capable of holding. Forfeitures are not favored by equity. It takes very plain language to create a forfeiture in courts of equity. Equity does not enforce forfeiture. I think the principles stated in Brown v. Caldwell, 23 W. Va. 187, will sustain me in saying that Couch took an absolute fee simple estate, without forfeiture condition. And, therefore, unless that estate, be charged with a trust, Couch could at any time remove these dead.
Can the kindred of the dead interfere for their protection?' Can they call upon equity to do so? In Beatty v. Kurtz, 2 Peters 566, Justice Story said: "This is not the case of a mere private trespass, but a public nuisance going to the irreparable injury of the Georgetown congregation of Lutherans; and the property consecrated to their use by a perpetual servitude or easement, is to bp taken from them; the sepulchres of the dead are to be violated; the feelings of religion and the sentiments of natural affection of the kindred and friends of the deceased are to be wounded; and the memorials erected by piety or love to the memory of the good, are to be removed so as to leave no trace of the last home of their ancestry to those who may visit the spot in the future generations. It cannot be that such acts are to be redressed by the ordinary process of law. The remedy must be sought, if at all, in the protecting power of a court of chancery operating by its injunction to preserve the repose of the ashes of the dead, and the religious sensibilities of the living.” The old common law did not recognize the rights of relatives.
In Wynkoop v. Wynkoop, 82 Am. Dec. 513, we find this note reflective of the law: “By the old English law, the body was not recognized as property, but the charge of it belonged exclusively to the church and the ecclesiastical courts, as did also the administration of estates. So while there was property in the burial lots, in the monuments, and in the ornaments and decorations of the deceased or his grave, there was none in the remains themselves: 2 Bla. Com. 429; note to Pierce v. Proprietors, etc., 10 R. I. 237; S. C. 14 Am. Rep. 667; and there are some decisions to the same effect in the United States: Snyder v. Snyder, 60 How. Pr. 368; Meagher v. Driscoll, 99 Mass. 284; In the matter of the Bride Presbyterian Church, 3 Edw. Ch. 155; for it said that after burial the body becomes a part of the ground to which it has been committed; “earth to earth, ashes to ashes, dust to dust”: Meagher v. Driscoll, 99 Mass. 284. These notions, however, may possibly be borrowed from the ecclesiastical law, and arise from a false and needless assumption in holding that nothing is property that has not a pecuniary value. “The real question is not of the disposable, marketable value of a corpse or its remains, as an article of traffic, but it is of the sacred and inherent right to its custody, in order to decently bury it, and secure its undisturbed repose. The dogma of the English ecclesiastical law, that a child has no such claim, no such exclusive power, no peculiar interest in the dead body of its parent, is so utterly inconsistent with every enlightened perception of personal right, so inexpressibly repulsive to every proper moral sense, that its adoption would be an eternal disgrace to American jurisprudence. The establishment of a right so sacred and precious ought not to need any judicial precedent. Our courts of justice should place it, at once, where it would fundamentally rest forever, on the deepest and most unerring instincts of human nature; and hold it to be a self-evident right of humanity, entitled to legal protection by every consideration of feeling, decency and Christian duty. The world does not contain a tribunal that would punish a son who should resist, even to death, any attempt to mutilate his father’s corpse or tear it from the grave for sale or dissection; but where would he find the legal right to resist except in his peculiar and exclusive interest in the body?” Per Euggles, referee, in Law of Burial, 4 Bradf. appendix, 529. Accordingly, it has been held that, it is a quasi property, over which the relatives of the deceased have rights which our courts of equity will protect: Weld v. Walker, 130 Mass. 523; Pierce v. Proprietors, etc., 10 R. I. 227. And in Indiana, a court of law has cut loose all ecclesiastical ties, and held that the bodies of the dead belong to the surviving relations, in the order of inheritance, as property, and to be disposed of as they may deem fit, but subject to such burial regulations as are reasonable and proper for the public health and advantage. The burial, however, cannot be taken out of their hands, they being able and willing to perform it: Bogert v. City of Indianapolis, 13 Ind. 134, 140. And further, a sort of right of custody over the interest in the dead body, in the relatives of the deceased, is recognized in the statutes of many of our states: See Pierce v. Proprietors, etc., 10 R. I. 239; S. C. 14 Am. Rep. 667, and statutes there cited. The subject of property in dead human bodies is discussed at length in 4 Alb. L. J. 56, 57; 6 Id. 151-154.”
If relatives of blood may not defend the graves of their departed who may? Always the human heart has rebelled against the invasion of the cemetery precincts; always has tbfe human mind contemplated the grave as the last and enduring resting place after the struggles and sorrows of this world. When the patriarch Jacob was dying in Egypt he spake unto the Israelites and said: “I am to be gathered unto my people; bury me with my fathers in the cave that is in the field of Ephron, the Hittite, in the cave that is in the field of Machpelah, which is before Mamre, in the land of Canaan, which Abraham bought with the field of Ephron the Hittite for possession of a burying place. There they buried Abraham and Sarah his wife; there they buried Isaac and Rebekah his wife; and there I buried Leah/'’ Genesis 49, 29. Jacob regarded the grave as the never ending resting place of his kindred. Ever since those distant days so has felt the human heart. Everything else has changed, but that sentiment remains steadfast today. Eor the proposition that relatives may invoke the arm of equity against desecration of graves in dedicated burial places it may be useful for future use t ocite also Boyce v. Kalbough, 28 Am. R. 464; Davidson v. Reed, 168 Ill.; Mitchel v. Thorn, 30 Am. St. R. 699; roussear v. City, 49 How. Pr. 492; 1 Spelling Ext. R., sec. 347; 3 Am. Eng. Ency. of Law 53. Tracy v. Bittle, 213 Mo. 302, 15 Ann. Cases, 167, is a notable case for this purpose. Mary, the mother of Washington, was buried by her son-in-law upon his property. Her grave was neglected for forty years, then a monument was erected over it. In 1888 parties attempted to sell her grave. The court held that its sale was void. Colbert v. Sheppard, 16 S. E. 246; 89 Va. 401.
When once property has been dedicated for a special purpose, as for a burial ground, or where a city has dedicated it for that purpose, and persons have acted upon the faith of such dedication by burying their loved ones there, the city, cannot devote the property to any other purpose. Tiedeman on Munic. Corp., sec. 229. See sec. 222. “It is manifest that a municipal corporation has no implied authority to dispose of lands which have been dedicated to it for public benefit; nor would such property be subject to sale for the payment of debts of the municipal corporation. Lands which are dedicated to the public use, are not even alienable, when on account of surrounding circumstances they become unsuitable for the use for which they were dedicated.” Only the legislature can authorize municipalities to dispose of them. Think of a lot conveyed to a town for the purpose in the minds of grantor and grantee both of its use as a burial place. The grantor having already buried the bones of Ms ancestors, the lot used for so many years for burial, and practically filled up with hundreds of graves, intended by both grantor and grantee to be so used; dedicated by the municipality for this purpose to the public and used by the public; then think of the municipality selling it to a private individual by a deed conferring upon him right to remove the dead; for he claims absolute property, as the record shows. It strikes us at once that the city has no power to pervert the ground to another use than that contemplated by the grantor and city. It defeats the intent of both. This is shown by the clause in the deed providing that if the town should become incapable of holding the lot, it should go back to Ruffner, but still be subject to graveyard purposes. In Pence v. Bryant, 54 W. Va. 263, we held that when land has been dedicated to public use and accepted by the public by long use, as the street, the town cannot divert it to another use without legislative authority. See Warren v. Lyons, 22 Iowa 351; Mount Hope v. Boston, 158 Mass. 509; Board v. Winchester, 84 Va. 467; Benn v. Hatcher, 81 Va. 25. McQuillin on Munic. Corp., sec. 1141, says: “Property devoted to a public use cannot be sold without special statutory authority, although property which has ceased to be used, or is not used, by the public, may be sold or leased as the public welfare may demand. Por instance, property dedicated for public use as a common, or property conveyed to be used as an ornamental park only, except where authorized by statute, cannot be sold. In this sense all property is public which has been dedicated to public use, or which may be affected by a public trust, either general or special. Municipal corporations hold all property in which the public is interested, such as streets, alleys, public squares, commons, parks and wharves, in trust for the use of the public, and on principle, such trust property' can no more be disposed of by the municipality than can any other trust property held by an individual.” In a note found there we find this: “It may be seriously questioned, whether, after land has been appropriated to public uses it can be transferred unconditionally to another for private use.” The authorities are against such right. The power of sale is not incident to the ownership of property held as a public trust. Roper v. McWhorter, 77 Va. 214; Smith v. Cornelius, 41 W. Va. 59. Authorities above show that when the purpose for which land is conveyed or dedicated has been accomplished, or that the use intended can no further call for it, the property may be sold. But that doctrine can have no possible application in this case; for who can say that a graveyard filled with dead bodies, so that there is no room for any more, or where it is disused, is no longer a graveyard? It is just as plainly continued a graveyard for the repose of the dead that lie in it through centuries ahead. Its purpose will never cease to call for such use. For this I cite Tracy v. Bittle, 213 Mo. 302, reported in that valuable late work 15 Ann Cases, 167, 173. In the latter volume will be found much valuable law upon the subject of dedication of land for cemetery purposes. We find law to show that there has been no abandonment in this case. The city has never forbidden interment therein, and has continued to care for it as a cemetery to an extent.
The act of the city in selling this lot to Couch cannot be justified on the ground that the lot was a public nuisance. There is no evidence of this, and it is to be remembered that the city never declared it to be a nuisance, or ordered or forbade its use for burial, or ordered disinterment of the bodies therein. That a cemetery per se is not a nuisance is supported by many authorities. Kingsbury v. Flowers, 39 Am. R. 14; Lake View v. Rose Hill Cemetery, 22 Am. R. 71; Dunn v. Austin, 77 Texas 139. The briers and weeds grew up in it. What of that? The blackberry’s flower is as sweet to the dead as any. The weed, though so. called, spreads “its perfume on the desert air.” They too are nature’s- tributes to the dead.
“Above the graves the blackberry hung
In bloom and green its wreath,
And harebells swung as if they sung,
The chimes of peace beneath.”
So sings Whittier in “The Old .Burial Ground.” As to its use for immoral purposes. A fence and locked gate would obviate that. And where the police?
In what I have said above I have assumed that the town held the lot charged with a public trust. The authorities above go to establish this. It is well established that a town can accept a dedication of land for public purposes. Boughner v. Clarksburg, 15 W. Va. 394; Sturmer v. County Court, 42 W. Va. 724. The Code, ch. 47, sec. 28, gives a town power to provide places for ¿he burial of the dead. Certainly such power is essential. But it is said that this trust, whether arising from the Ruifner deed to the town, or from dedication by the town, is a void trust, because of uncertainty in the beneficiary, it being without specifications of the persons to receive its benefits, except to the general public of Charleston and its vicinity. We do not deny the proposition that in a private trust there must be a definite beneficiary; but how as to the trusts for the general public ? It is impossible to name those who might in future be buried in the lot. Is the trust to fail for that cause ? In Beach on Trusts, sec. 322, we find this: “In distinction from an express private trust, which, by the definition, is designed for the benefit of one or more individuals, the trust for charitable purposes is a public trust, and from the nature of the case the beneficiaries are, to a greater or less extent, unknown or indefinite. Ordinarily the trust is designed for the benefit of a class, the individuals of which can be designated only in general terms. In a private trust, if the beneficiary or beneficiaries are not definitely and positively named, the trust fails on the ground of indefiniteness. But in a charitable trust the beneficiaries need not be definitely named, and even where there is no adequate designation of a cestui que trust, the trust will be enforced in equity if the intention of the settlor can be ascertained beyond a reasonable doubt. Trusts for charitable purposes are regarded by courts of equity with special favor, and a much more liberal construction will be put upon an instrument creating such a trust than upon one creating a trust for individuals.” That seems to me to be a reasonable proposition. Hero is a town owing duties to the public, organized to advance the public interest; it receives a conveyance for a burial place.- Is it possible that it can fail for want of specification of those who may come to be buried in it? The town can take property to hold in trust, as street or park or a city hall. Does its deed have to name thousands that are to be beneficiaries, those composing ■ the general public? Why cannot the town, on like principles, receive in trust ground for cemetery purposes?
Great reliance is placed by the defendants on the case of Brown v. Caldwell, 23 W. Va. 187, holding void for want of certainty in the beneficiaries a deed for land to a trustee upon trust that the trustee should at all times permit all the white religious societies of Christians, and members of such societies to use the land as a common burying ground, and for no other purpose. That case would seem to have been inspired by such cases as Carshadon v. Torryson, 17 W. Va. 43. I draw distinction between the Brown-Caldwell case and our case. There the trust was for only members of certain religious societies, and of one race, and was impossible to ascertain' them; but in our case the trust is for the general public. The trustee is a town charged with the duty of holding for the general public impossible to be further specified. We have a statute making good a conveyance to trustees for churches and burial ground purposes, though no names be given, because impossible, and we ought to uphold a conveyance to a town upon trust to use for burial purposes. Both by the Ruffner deed to the town and its dedication for burial purposes the town held the land subject to the trust. It seems to me that the conveyance was to the town as a corporation and for its own corporate purposes, because a cemetery devoted by it to public use is just as much for corporate or public purposes as the. ground for a street or park. It seems to me that there are not both a trustee and another person as cestui que trust, but that the town is both. The case of Jordan v. Universalist Trustees, 107 Va. 69, holds that: “While the courts of chancery of this State will not undertake to enforce indefinite charities, a devise to a corporation for the general purposes of its incorporation cannot be said to be uncertain in any respect, and will be upheld.” It seems to me that is a sound proposition. The statute of charitable trusts, in the reign of Elizabeth, is not a statute law in this state, as I admit. That statute was passed to make good conveyances to pious uses, not otherwise good, and that statute was repealed by Yirginia in 1792. Many of our states hold good conveyances by analogy to that statute, treating it as common law. If we consider that the public in this case is not the same as the municipality, the trust ought to be held good on the ground that the use is for the public — a grant to the corporation for public purposes. I understand the law to be that a grant to a corporation, which is capable of taking, which grant is for public purposes, is good though individual beneficiaries are not named. “In charitable trusts the beneficiaries are not and need not be capable of taking the title, as when property is given in trust for the poor of the parish, or the education of youth, or for pious' uses, or for any charitable purpose, the beneficiaries are generally unknown, uncertain, changing and incapable of taking or dealing with the legal title; but such trusts are valid in equity, and courts of equity will administer them and protect the rights of the cestui que trust.” Perry on Trusts, sec. 66. I know that this text may be said to be based on the statute of charitable trusts, not enforced in Virginia; but I repeat that a public corporation, like a town, may take property for public use without designating the thousands composing the public now and hereafter. Is it possible that such a trust is void Now, it has been a serious question in the English courts, and in the American courts, whether, before or without the statute of Elizabeth, charitable trusts would be enforced in equity. A discussion of this subject will be found in Perry on Trusts, sec. 693. It was gravely considered in the Supreme Court of the United States in Vidal v Girard, 2 Howard 196; the conclusion seeming to be that equity exercised this jurisdiction before and outside of the statute in many eases. But I do not rest the case on that consideration. I am here asserting that a public corporation like a town may take land to execute public purposes, declared in the deed or dedication to be held for public purposes, without specification of the members of the public. I say that a town incorporated can take land upon a trust to hold for the general public, as for instance, for a street, park, a burial place. Indeed, as above suggested, I do not know that we can say there is an indefinite beneficiary in this case. I regard it as a conveyance to the incorporated town for its own public use, needing no names of those constituting the public.
So we do not think the town had capacity to sell this graveyard ground. Charged by the deed from RufEner with the duty of holding for burial, charged by its own act of dedication to that use for many, many years, by its sale to Couch it disowned and abdicated its trust for the use of a private individual, which we said it could not do in Pence v. Bryant, 54 W. Va. 263. By this sale it was not furthering public weal but private interest. The deed to Couch contemplated the appropriation of the ground to purposes other than burial, because it provided for removal of the dead in short order, giving a license to do so of only four months. It is useless to cite authorities for the rule that a municipal corporation must have legislative authority for such acts as this. Certainly it cannot be justified by any implied authority. Dillon on Munic. Gorp., sec. 1102, says: “A municipal corporation has no implied or incidental authority to alien, or dispose of for its own benefit, property dedicated to or held by it in trust for the public use or to extinguish the public uses in such property.” It will there be seen that there has been serious question whether even the legislature can authorize a town to dispose of property held for an important public use. We need not decide 'that question as there has been no special act. I think, speaking only for myself, that the Legislature has such power. 14 Ann. Cases, 1080. We hold that without such authority the city of Charleston could not abdicate its public function as to this old pioneer graveyard, this “God’s Acre.”
These views lead us to affirm the decree. .
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The Opinion of the Court was delivered PER CURIAM.
Justice BENJAMIN concurs and reserves the right to file a concurring opinion.
Justice STARCHER concurs and reserves, the right to file a concurring opinion.
PER CURIAM.
This case is before this Court upon appeal of a final order of the Circuit Court of Kana-wha County entered on June 28, 2004. In that order, the circuit court upheld an ordinance adopted by the City of Charleston, the appellee and defendant below, which authorized and established a city “user fee” on each individual who works within the corporate limits of the City ■ of Charleston. In this appeal, Thornton Cooper, the appellant and plaintiff below, contends that the ordinance was not enacted in accordance with West Virginia Code § 8-13-13 (1971). The appellant also asserts that the ordinance improperly imposes an unconstitutional tax in violation of the West Virginia Constitution; was not a reasonable fee as prescribed by the West Virginia Code; and violated numerous other statutory, substantive, and procedural requirements. After reviewing the facts of the case, the issues presented, and the relevant statutory and ease law, this Court affirms the decision of the circuit court insofar as it determines that the “user fee” is a fee and not a tax and concludes that the City of Charleston had the authority to enact such a fee. We do, however, reverse the circuit court order to the extent that it upheld the City’s failure to properly follow the notice and publication requirements of W.Va.Code § 8-13-13, and direct the circuit court to order the City of Charleston to hold an election wherein City voters shall have the opportunity to ratify or strike down the City’s user fee ordinance.
I.
FACTS
On September 15, 2003, the Charleston City Council passed an ordinance imposing a $1.00 per calendar week “City Service Fee” (hereinafter “user fee” or “fee”) on each individual who works within the corporate limits of the City of Charleston (hereinafter “the City”). The ordinance provides that all revenues generated by the fee “are hereby dedicated to and shall be exclusively utilized for police protection and street maintenance and public works related thereto, and any costs related to the imposition and processing of this fee.” Char.Code § 6-214, now recodi-fied at § 2-745. The City enacted the ordinance under W.Va.Code § 8-13-13.
As of January 1, 2004, employers within the corporate limits of the City of Charleston were required to withhold and remit the fee. City officials estimate that this fee will generate $2.5 million per year, while it costs the City a total of $19 million per year to provide police protection and street maintenance.
This ordinance was first introduced during a City Council meeting on August 18, 2003, as Bill 7002. Notices containing the full text of the proposed ordinance were published in a local newspaper on August 28, 2003, and September 4, 2003. These notices provided that the proposed ordinance would be discussed at a Council meeting on September 2, 2003. The proposal was not discussed on September 2, 2003. Instead,- it was discussed and adopted during a September 15, 2003, Council meeting. During that September 15, 2003, meeting, Bill 7002 was discussed, changes were made, and substitute Bill 7002 was adopted.
In early 2004, the West Virginia State Auditor and appellant Cooper filed separate lawsuits challenging the validity of the fee and seeking declaratory and injunctive relief. The lawsuits were consolidated and an evi-dentiary record was stipulated. The appellant, who resides and votes in the City of South Charleston, works for a State agency located in Charleston and is therefore required to pay the $1.00 per week fee. Due to his employment, the appellant spends an average of twenty-five percent of his time in Charleston, but does not own or lease property there.
Soon after the lawsuits were consolidated, the City Council introduced Bill 7070. The substance of Bill 7070 was the same as Bill 7002 which passed in 2003, except Bill 7070 made the fee retroactively effective on January 1, 2004. Notices were published on May 21, 2004, and May 28, 2004, and the fee ordinance was re-passed and re-enacted on June 7, 2004. Both notices included a provision that if thirty percent of the qualified voters of the City opposed the ordinance by signing and filing a petition by June 14, 2004, then the ordinance would not become effective until ratified by an election.
On June 28,, 2004, the circuit court entered an order upholding almost all aspects of the ordinance. The court found that: allegations pertaining to improper passage of the 2003 ordinance are now moot in light of the republication and re-passage of the ordinance; the City has authority under W.Va.Code § 8-13-13 to impose this fee upon users of the municipal services of police protection and street maintenance; and this is a fee, not a tax, because it is a charge for services rendered. The circuit court did, however, find that portions of the ordinance and supporting regulations which could cause the State to become liable for the debts of its employees to be unconstitutional, but did not invalidate the remainder of the ordinance.
This Court refused the appellant’s motions for stay pending appeal and this appeal followed. At present, the City of Charleston continues to collect and spend the user fee money. The State Auditor did not appeal the circuit court's decision.
II.
STANDARD OF REVIEW
The appellant contends that the circuit court erred in upholding the user fee adopted by the City of Charleston. In Syllabus Point 1 of State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999), we held, “ ‘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.’ Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).” We have further indicated that a circuit court’s final order and ultimate disposition are reviewed under the abuse of discretion standard. State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997).
III.
DISCUSSION
A. City of Charleston Service Fee is a User Fee.
As noted above, appellant Cooper argues that the City of Charleston has enacted a tax in violation of the West Virginia Constitution. The appellant states that the City’s ordinance is void because it imposes an unlawful municipal capitation tax, because it imposes an unlawful municipal income tax, and because it violates the statutory cap on the municipal business and occupation (B & 0) tax.
The appellant states that between 1933 and 1971, a State capitation tax was imposed, while between 1937 and 1971, a municipal capitation tax was imposed in West Virginia. However, in 1970, State legislators decided to abolish all capitation taxes (also known as “head taxes” and “poll taxes”) in West Virginia. Then, on November 3, 1970, the voters of West Virginia, by a vote of 253,638 to 117,660, overwhelmingly ratified a constitutional amendment that repealed Article X § 2, of the West Virginia Constitution which provided for the capitation tax. The appellant believes that the City’s user fee is a capitation tax and thus unconstitutional. The City, however, maintains that the user fee it enacted is a fee and not a tax.
We have addressed the issue of what separates a permissible “fee” from an impermissible “tax” on several occasions and have found fees similar to the one at issue in this case to be permissible under our Constitution. See, e.g., Dean v. Town of Addison, 207 W.Va. 538, 534 S.E.2d 403 (2000) (ordinance imposing a fee to collect a fire service fee from its residents and pay that fee to a local volunteer fire department, even though that volunteer fire department also furnishes fire protection to non-residents; was a permissible fee reasonably reflecting the cost of protecting the municipality from fire); City of Huntington v. Bacon, 196 W.Va. 457, 473 S.E.2d 743 (1996) (ordinance imposing fee for the sole purpose of defraying the cost of fire and flood protection services is a user fee rather than a tax and, therefore, is not in violation of the Tax Limitation Amendment found in W. Va. Const. Art. X § 1); City of Princeton v. Stamper, 195 W.Va. 685, 466 S.E.2d 536 (1995) (ordinance imposing fee on the collection and removal of residential refuse regardless of actual use is a reasonable and valid exercise of the police powers granted to the City of Princeton under W.Va. Code § 8-13-13 (1971)); Ellison v. City of Parkersburg, 168 W.Va. 468, 284 S.E.2d 903 (1981) (ordinance imposing fee for solid waste collection and disposal service per residential unit does not exceed the grant of authority given to municipalities by W.Va.Code § 8-13-13 (1971)).
We have held that, “[t]he primary purpose of a tax is to obtain revenue for the government, while the primary purpose of a fee is to cover the expense of providing a service or of regulation and supervision of certain activities.” City of Huntington v. Bacon, 196 W.Va. 457, 467, 473 S.E.2d 743, 753 (1996) (Citation omitted.). In Bacon, we also said that, “this Court has generally operated on the premise that charges for services rendered by a municipality are user fees and not taxes.” Id. We have further held that, “[t]he character of a tax is determined not by its label but by analyzing its operation and effect.” Syllabus Point 2, City of Fairmont v. Pitrolo Pontiac-Cadillac, 172 W.Va. 505, 308 S.E.2d 527 (1983). See City of Charleston v. Board of Education, 158 W.Va. 141, 145, 209 S.E.2d 55, 57 (1974) (the charge for fire protection is a fee and not a tax); City of Moundsville v. Steele, 152 W.Va. 465, 164 S.E.2d 430 (1968) (charge of $0.25 per front foot for street improvement is a fee and not a tax); and Duling Bros. Co. v. City of Huntington, 120 W.Va. 85, 89-90, 196 S.E. 552, 554-55 (1938) (charges for a flood control program are not subject to ordinary taxing regulations).
The City declares that the proceeds of the user fee are used to pay a portion of the expenses of providing police protection and street maintenance and do not go into the general revenue fund. The City also maintains that the user fee is paid by users of the City services and is not a capitation tax. We find the City’s argument reasonable and persuasive.
In this case, all of the proceeds from the user fee are used to pay a portion of the expenses of providing police protection and street repairs and maintenance services to individuals who work in Charleston, enjoy police protection and use city streets and roads, and therefore the proceeds fall within the definition of a user fee and not a capitation tax, municipal income tax, or a B & O Tax. The capitation tax discussed by the appellant was imposed upon all male residents of the State who had attained the age of twenty-one years of age and was collected to support the public schools. There are clear differences between the capitation tax of years past and the current user fee enacted by the City. While the capitation tax was collected to support the public schools from people who were no longer using those schools, the user fee in question in the City of Charleston is imposed upon individuals based upon their usage of City services. The user fee is not based upon the fact such users are male, live in the State, and have reached the age of twenty-one. We believe the differences between the capitation tax and the user fee are clear and unambiguous.
The appellant further argues that the ordinance should be declared null and void because it provides that the revenues be used for “police protection and street maintenance and public works related thereto_” He points out that this Court held in Huntington v. Bacon, supra, that the “operation and effect of using the proceeds to improve streets and municipal infrastructure makes the municipal service fee a tax.” Conversely, the City maintains that the circuit court correctly upheld the ordinance because the fee does not fund anything other than police protection services and street maintenance as specifically provided by the ordinance, and therefore is an entirely appropriate municipal fee. The City also states that the appellant takes the quote from Bacon out of context because the fee charged in that situation was enacted for fire and flood protection only and not street maintenance and therefore any use of such money otherwise was inappropriate.
We have reviewed the City ordinance in question and the plain language of the ordinance demonstrates that the fee will be exclusively used to provide police services and street maintenance related thereto. There is no allegation before this Court that the City’s fee is being used in any manner other than that specified by the enacted ordinance. Since the money collected in this case has been used specifically for the purposes prescribed by the City ordinance and not in violation of the State Constitution or State statutes, we find no error in the circuit court’s finding on this issue.
B. The City of Charleston User Fee Reasonably Serves its purpose.
Having established the service charge in this ease to be a fee, we must now determine whether the City has properly used the authority granted to it by the legislature in W.Va.Code § 8-13-13 (1971). In Syllabus Point 3 of Huntington v. Bacon, supra, we explained that, “ ‘ “[mjunicipalities have no inherent power with regard to the exercise of the functions of their government. Such power depends solely upon grants of power by Acts of Legislature, and the Legislature may at any time modify, change or withdraw any power so granted by general law in conformance with the provisions of the Constitution, Article VI, Section 39(a).” Point 2, Syllabus, State ex rel. Alexander v. The County Court of Kanawha County, et al., 147 W.Va. 693[, 130 S.E.2d 200 (1963)].’ Syl. pt. 1, State ex rel. Plymale v. City of Huntington, 147 W.Va. 728, 131 S.E.2d 160 (1963).” We have also stated that,
[t]he standard of review of an ordinance exercising such power as that granted by W.Va.Code, 8-13-13 (1971) is the reasonableness of the ordinance. See Haney v. Elkins, 65 W.Va. 305, 64 S.E. 247 (1909). The determination of whether an ordinance reasonably serves the purpose for which it was enacted is initially made by the municipal authorities. Their passage of the ordinance gives it a presumptive validity and a court should not hold the ordinance to be invalid unless it is clear that the ordinance is unreasonable. Henderson v. Bluefield, 98 W.Va. 640, 127 S.E. 492 (1925).
Ellison v. City of Parkersburg, 168 W.Va. 468, 472, 284 S.E.2d 903, 906 (1981).
The appellant argues that W.Va.Code § 8-13-13 refers to “reasonable” regulations upon “users” and the imposition of “reasonable” rates. The appellant states that this Court has on eight occasions upheld the imposition by a municipality, of involuntary “fees” upon individuals and other legal entities that reside within, or own or lease real estate within the corporate limits of that municipality, as “users” of the services provided by that municipality. He contends that the common thread which ties all eight of those decisions together is W.Va.Code § 8-13-13 authorizing a municipality to impose reasonable fees upon the owners or lessees of houses, stores, places of worship, school buildings, and other buildings on improved real estate located within the corporate limits of that municipality. In the present ease, however, the appellant states that none of those cases dealt with individuals who neither reside within, nor own or lease real estate within, the corporate limits of the city imposing the tax.
The City maintains that W.Va.Code § 8-13-13 gives municipalities the “plenary power and authority to provide by ordinance for the installation, continuance, maintenance or improvement of such service, to make reasonable regulations with respect thereto, and to impose by ordinance upon the users of such service reasonable rates, fees and charges to be collected in the manner specified in the ordinance....” The City believes the fee is consistent with this broad grant of power. The City further states that the standard is not whether the fee is “ideal” or even “prudent.” Rather, this Court has found that ordinances enacted under W.Va. Code § 8-13-13 are presumptively valid unless they are clearly unreasonable.
We agree with the City that ordinances enacted pursuant to a municipality’s powers under W.Va.Code § 8-13-13 are presumptively valid and a court should not invalidate such an ordinance unless it is clearly unreasonable. See Ellison, 168 W.Va. at 472, 284 S.E.2d at 906. The burden of proof lies with the appellant to prove that the user fee is clearly unreasonable and that it clearly fails to reasonably serve the purpose for which it was enacted. We believe that the appellant has failed to meet that burden.
We have “reeognize[d] that perfect equity is impossible to achieve in any tax scheme, but perfect equity is not the test.” Clay County Citizens for Fair Taxation v. Clay County Commission, 192 W.Va. 408, 411, 452 S.E.2d 724, 727 (1994). We further have explained that “[t]his Court has, thus, recognized that charges for services provided by municipalities cannot always be equally achieved upon all users. This Court will uphold the fee if it is sufficiently related to the use of the special service for which the fee is imposed.” Id. With that in mind, we will not invalidate a fee merely because a litigant is able to suggest other possible ways of taxation and opine that such examples are more equitable. The appellant had the burden of proving that the City’s ordinance clearly failed to reasonably serve the purpose for which it was enacted. As we discussed in the previous issue, the City of Charleston enacted this fee to pay for a portion of the expenses of providing police protection and street maintenance and repairs to those who work in the City and who use those roads and services. Accordingly, the circuit court properly concluded that the appellant did not show that the ordinance failed to reasonably serve the purpose of funding a reasonable portion of the City of Charleston’s police protection and street maintenance related thereto.
The appellant warns that once this fee is approved the City may attempt to increase it, possibly even double or triple the fee amount and there would be no restraint on the City. Should the City of Charleston or other cities attempt to artificially inflate this fee and gouge the public by increasing the fee to exorbitant amounts, there is a remedy for such action. We must point out that a fee can be struck down in light of W.Va.Code § 8-13-13, if that fee is unreasonable or excessive. While there is no evidence that the $1.00 fee in this case is an unreasonable amount, we hereby further hold that a reasonableness determination with regard to the question of excessiveness of an enacted fee is clearly an issue within the scope of review by a circuit court or by this Court on appeal.
As we have discussed throughout this Opinion, W.Va.Code § 8-13-13 allows municipalities “to make reasonable regulations ... and to impose by ordinance upon the users of such service reasonable rates, fees and charges to be collected in the manner specified in the ordinance.” (Emphasis added). Thus, the amount of fees imposed by any city must bear a direct and reasonable relationship to the actual services provided in exchange for the fee. Moreover, any fee that does not meet those standards will be struck down by a circuit court or by this Court as unreasonable and in violation of W.Va.Code § 8-13-13. If cities are tempted to inflate such fees and adopt immediate or unwarranted increases thereby gouging and imposing burdensome and unfair collections they should be mindful of this admonishment and wary of imposing excessive fees.
C. Procedural Questions Surrounding the Enacted User Fee.
The appellant argues that the City failed to provide timely and accurate pre-adoption notice as prescribed by W.Va.Code § 8-11-4(a)(2), which requires a munieipali ty to publish notice of the proposed adoption of an ordinance at least five days before the meeting where it will be voted upon. The City’s newspaper notices stated that the date on which the final vote would take place was September 2, 2003, when in actuality the vote was held on September 15, 2003. The appellant also argues that the City violated W.Va. Code § 8-11-1(a)(3), by amending the proposed bill and changing language on more than 100 lines and then passing the bill during the same meeting. Finally, the appellant argues that the City was in violation of W.Va. Code § 8-13-13 by not providing post-adoption notice of its enactment.
Conversely, the City maintains that any issues surrounding the 2003 passage of the ordinance are now moot in light of the republication and re-enactment in 2004. Moreover, the City contends that W.Va.Code § 8-ll-4(a)(2) does not apply to this ordinance with regard to pre-adoption notice. The City also states that the Bill passed on September 15, 2003, was not “substantially amended” from the Bill published in the newspaper and thus not in violation of law.
We have held that, “ ‘[c]ourts will not ordinarily decide a moot question.’ Pt. 1, syllabus, Tynes v. Shore, 117 W.Va. 355 [185 S.E. 845] [(1936)].” Syllabus Point 1, State ex rel. Hedrick v. Board of Comm’rs of County of Ohio, 146 W.Va. 79, 118 S.E.2d 73 (1961). In Syllabus Point 1 of State ex rel. Durkin v. Neely, 166 W.Va. 553, 276 S.E.2d 311 (1981), this Court held that:
“Moot questions or abstract propositions, the decision of which would avail nothing-in the determination of controverted rights of persons or 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 this case, the substance of Bill 7070, which was enacted on June 7, 2004, was the same as Bill 7002, which was enacted in September of 2003, except for the fact that Bill 7070 made the fee retroactively effective on January 1, 2004. Having considered the parties’ arguments and having thoroughly reviewed the record in this case, we find that questions surrounding the adoption of Bill 7002 were rendered moot by the City’s reenactment of Bill 7070. Consequently, it would be an exercise in futility for this Court to undertake an analysis of Bill 7002 as originally enacted. If we were to find that the 2003 ordinance was invalid either on substantive or procedural grounds, that finding would be of little to no consequence inasmuch as the City amended and re-enacted the ordinance on June 7, 2004.
We do, however, recognize a defect with the enactment of Bill 7070 which we believe the City can remedy by holding an election on the issue of the passage of that ordinance. Our problem is not with the fact that the City only provided pre-adoption notice with regard to the adoption of the ordinance as opposed to post-adoption notice with regard to the protest provisions of W.Va.Code § 8-13-13. As we said in Syllabus Point 1 of Nine v. Grant Town, 190 W.Va. 86, 87, 437 S.E.2d 250, 251 (1993), “Because W.Va.Code, 8-13-13 (1971), is silent as to when publication should be made with regal'd to the adoption of an ordinance, the general rule is that publication should be done in advance of the passage of the ordinance.” Our issue with the enactment of the June 2004 ordinance surrounds the requirement as prescribed by W.Va.Code § 8-13-13 that:
In the event thirty percent of the qualified voters of the municipality by petition duly signed by them in their own handwriting and filed with the recorder of the municipality within fifteen days after the expiration of such publication protest against such ordinance as enacted or amended, the ordinance shall not become effective until it shall be ratified by a majority of the legal votes east thereon by the qualified voters of such municipality at a regular municipal election or special municipal election, as the governing body shall direct.
(Emphasis added).
In the case at hand, notices were published on May 21, 2004, and May 28, 2004, and the fee ordinance was re-passed and reenacted by the City on June 7, 2004. Both notices included a provision that if thirty percent of the qualified voters of the City opposed the ordinance by signing and filing a petition by June 14, 2004, then the ordinance would not become effective until ratified at an election. Thus, by the City’s own publication it cut in half the fifteen day allotment provided by statute which allows for thirty percent of qualified voters to sign petitions of protest to force the City to hold an election on the issue of the ordinance. We believe that the City was in substantial compliance with the publication requirements of W.Va. Code § 8-13-13. Nonetheless, it may have prevented qualified voters from exercising their right to challenge the enactment of the ordinance by including an incorrect date for gathering signatures in protest.
Initially, it is clear to us that W.Va. Code § 8-13-13 necessarily intended for qualified voters to have fifteen days from publication notice for the opportunity to protest an enacted ordinance if such notice was published after the adoption of the ordinance. We further believe that W.Va.Code § 8-13-13 stands for the position that a qualified voter necessarily has fifteen days from the adoption of an ordinance even if a city has chosen to comply with the notice requirements by providing adequate pre-adoption notice as the City did in this case. To hold otherwise would make the ability to challenge an ordinance enacted by a city council completely non-existent as no reasonable person would gather signatures against the enactment of an ordinance before they knew whether or not the particular ordinance was actually enacted by a city council. Likewise, ordinances can be-and often are-amended substantially from the original bill submitted to a city council which further makes it impossible for a potential protestor to gather signatures against a bill of which he or she is without reasonable certainty with regard to its specific provisions and requirements.
Thus, the City’s two notices published prior to the June 7, 2004, passage of the ordinance did not provide enough time for qualified voters to exercise their statutorily prescribed right to protest. This mistake, however, will not defeat the City’s ordinance as a matter of law. Nonetheless, the City must remedy this defect by holding an election to allow registered voters from the City of Charleston the opportunity to vote on the adoption of the ordinance. Therefore, we direct the Circuit Court of Kanawha County to order the City of Charleston to conduct an election in full compliance with W.Va.Code § 8-13-13 and all other applicable statutes. We also strongly suggest that the City of Charleston comply with all statutorily prescribed notice requirements surrounding such an election.
D. Remaining Issues Surrounding the City User Fee.
The appellant raises several additional assignments of error. However, we find none of them merit any extended discussion or constitute reversible error.
Fust, the appellant asserts that the ordinance’s requirement that employers withhold the fee from each employee’s pay violates W.Va.Code § 21-5-3, which requires employers to make full payment to employees minus authorized deductions and authorized wage assessments. He further maintains that since the City is a legal entity that is subordinate to the State of West Virginia, that the City may not lawfully require State agencies, as employers, to do anything with respect to their employees. The City states that W.Va.Code § 8-13-13 grants municipalities plenary power to charge for services “and also to make reasonable regulations with respect thereto” and that such administrative procedures are clearly within those powers.
In this case, the procedures required by the ordinance in question are reasonable and logical in utilizing employers to assist in the facilitation and collection of the fee through their existing employer payroll withholding procedures. We do not see how the requirements of the ordinance create a substantial or unique burden as employers are already regularly withholding sums from employees’ periodic paychecks. Moreover, with regard to the collection of fees from the State, the circuit court correctly held, “that such portions of the ordinance and regulations issued pursuant thereto which would require the State to become liable for the debts of its employees are invalid and void as unconstitutional.” While that is a correct ruling by the circuit court, we believe that the principles of comity and mutual respect should govern the operation of the relationship between the City and the State in a situation such as the one before us. Thus, we believe that under the principles of comity the State can agree to collect the fee on behalf of the City.
The appellant next asserts that the ordinance’s requirement of employers and employees to disclose and release employee Social Security numbers to officials and agents of the City as well as the requirement of self-employed individuals to disclose and release their Social Security numbers is in violation of State and federal laws. He also contends that the fee is not a uniform tax and that the unfairness and lack of uniformity violates the West Virginia and United States Due Process and Equal Protection clauses, as well as the tax uniformity provision of W.Va. Const. Art. X § 9.
Although the appellant makes these claims, he does not provide to this Court any examples of how the circuit court acted in an erroneous manner or in a manner that was not consistent with the laws of West Virginia or of the United States Constitution. Rather, the appellant’s assertions lack specificity and particularity and are unsupported by his brief. In the absence of such supporting arguments or authority, we deem these assignments of error to have been waived. As we explained in State Dept. Of Health v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995), “[a] skeletal ‘argument,’ really nothing more than an assertion, does not preserve a claim.... Judges are not like pigs, hunting for truffles buried in briefs.” (Citation omitted). Moreover, as we held in Syllabus Point 2 of WV Dept. of Health & Human Resources Employees Federal Credit Union v. Tennant, 215 W.Va. 387, 599 S.E.2d 810 (2004), “ ‘An appellant must carry the burden of showing error in the judgment of which he complains. This Court will not reverse the judgment of a trial court unless error affirmatively appears from the record. Error will not be presumed, all presumptions being in favor of the correctness of the judgment.’ Syllabus Point 5, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).”
Likewise, this Court has previously adhered to the rule that, “[ajlthough we liberally construe briefs in determining issues presented for review, issues which are not raised, and those mentioned only in passing but are not supported with pertinent authority, are not considered on appeal.” State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996). Accord State v. Allen, 208 W.Va. 144, 162, 539 S.E.2d 87, 105 (1999); State v. Easton, 203 W.Va. 631, 642 n. 19, 510 S.E.2d 465, 476 n. 19 (1998); State v. Lilly, 194 W.Va. 595, 605 n. 16, 461 S.E.2d 101, 111 n. 16 (1995). Based upon all of the above as well as our thorough review of the record, we find that there is no merit to the appellant’s allegations with regard to these issues.
In summary, this Court affirms the decision of the circuit court insofar- as it upheld the “user fee” as a fee and not a tax and concluded that the City of Charleston had the authority to enact such a fee under applicable State statutes. We do, however, reverse the circuit court’s decision to the extent that it upheld the City’s failure to properly follow the notice and publication requirements of W.Va.Code § 8-13-13. While the City’s mistake will not defeat the City’s ordinance as a matter of law due to its substantial compliance with statutory notice and publication requirements, we do, however, direct the circuit court to order the City of Charleston to hold an election forthwith wherein City voters shall have the opportunity to ratify or strike down the City’s user fee ordinance.
IV.
CONCLUSION
Accordingly, for the reasons set forth above, the final order of the Circuit Court of Kanawha County entered on June 28, 2004, is affirmed in part and reversed in part, and remanded with directions for the Circuit Court of Kanawha County to order the City of Charleston to provide for an election on the issue of the user fee ordinance enacted by the City of Charleston on June 7, 2004.
Affirmed in part, Reversed in part, and Remanded with directions.
. The cities of Huntington and Weirton also have user fee ordinances.
. We wish to acknowledge the contribution of the West Virginia Municipal League, Inc., which filed an amicus curiae brief in support of the City of Charleston.
.W.Va.Code# 8-13-13, in part, provides,
Notwithstanding any charter provisions to the contrary, every municipality which furnishes any essential or special municipal service, including, but not limited to, police and fire protection, parking facilities on the streets or otherwise, parks and recreational facilities, street cleaning, street lighting, street maintenance and improvement, sewerage and sewage disposal, and the collection and disposal of garbage, refuse, waste, ashes, trash and any other similar matter, shall have plenary power and authority to provide by ordinance for the installation, continuance, maintenance or improvement of such service, to make reasonable regulations with respect thereto, and to impose by ordinance upon the users of such service reasonable rates, fees and charges to be collected in the manner specified in , the ordinance.... Notwithstanding the provisions of section four, article eleven of this chapter, any ordinance enacted or substantially amended under the provisions of this section shall be published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be such municipality. In the event thirty percent of the qualified voters of the municipality by petition duly signed by them in their own handwriting and filed with the recorder of the municipality within fifteen days after the expiration of such publication protest against such ordinance as enacted or amended, the ordinance shall not become effective until it shall be ratified by a majority of the legal votes cast thereon by the qualified voters of such municipality at a regular municipal election or special municipal election, as the governing body shall direct....
.See McCoy v. Sistersville, 120 W.Va. 471, 199 S.E. 260 (1938); City of Moundsville v. Steele, 152 W.Va. 465, 164 S.E.2d 430 (1968); City of Charleston v. Board of Education, 158 W.Va. 141, 209 S.E.2d 55 (1974); Ellison v. City of Parkersburg, 168 W.Va. 468, 284 S.E.2d 903 (1981); City of Princeton v. Stamper, 195 W.Va. 685, 466 S.E.2d 536 (1995); City of Huntington v. Bacon, 196 W.Va. 457, 473 S.E.2d 743 (1996); City of Clarksburg v. Grandeotto, Inc., 204 W.Va. 404, 513 S.E.2d 177 (1998); and Dean v. Town of Addison, 207 W.Va. 538, 534 S.E.2d 403 (2000).
. W.Va.Code § 8-1 1-4(a)(2), provides:
At least five days before the meeting at which a proposed ordinance, the principal ob- jecl of which is the raising of revenue for the municipality, is to be finally adopted, the governing body shall cause notice of the proposed adoption of said proposed ordinance to be published as a Class 1-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the municipality. The notice shall state the subject matter and general title or titles of such proposed ordinance, the date, time and place of the proposed final vote on adoption, and the place or places within the municipality where such proposed ordinance may be inspected by the public. A reasonable number of copies of the proposed ordinance shall be kept at such place or places and be made available for public inspection. Said notice shall also advise that interested parties may appear at the meeting and be heard with respect to the proposed ordinance.
. W.Va.Code § 8-11 — 4(a)(3), provides that, "[a] proposed ordinance shall not be materially amended at the same meeting at which finally adopted.”
. W.Va.Code § 21-5-3, in part, provides:
Eveiy person, firm or corporation doing business in this State ... shall settle with its employees at least once in every two weeks, unless otherwise provided by special agreement, and pay them the wages due, less authorized deductions and authorized wage assignments, for their work or services_ | [
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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.
This action is before this Court upon the appeal of the appellant, Lyndall Sarah Fer nandez, from the December 1, 2004, order of the Circuit Court of Fayette County, West Virginia, refusing her appeal from an order of the Family Court entered on October 20, 2004. Pursuant to the Family Court order, the appellant’s motion seeldng relief under Rule 60(b) of the West Virginia Rules of Civil Procedure from a divorce decree previously entered in the Family Court was denied. The decree directed that the appellant and the appellee, Fredrick Men Fernandez, be divorced and that the Settlement Agreement signed by the parties be incorporated therein.
According to the appellant, the entry of the divorce decree by the Family Court was improper because it followed a final divorce hearing conducted without notice to her and in her absence. The appellant contends that, as a result, the Family Court and the Circuit Court should have invalidated the decree pursuant to Rule 60(b). The appellee, on the other hand, who filed the divorce action, asserts that, the lack of notice notwithstanding, the appellant knew of the final hearing but chose not to attend. According to the appel-lee, the Circuit Court and the Family Court, therefore, correctly determined that the appellant was not entitled to relief under Rule 60(b).
This Court has before it the petition for appeal, the record herein and the briefs and argument of counsel. Central to this matter is Rule 21 of the West Virginia Rules of Practice and Procedure for Family Court which provides that, except for “good cause shown and placed on the record,” a final hearing in a divorce action before a Family Court shall not be conducted prior to the expiration of the time in which the respondent is required to serve an answer. Here, the parties executed a written Consent to hold the final hearing prior to the expiration of the 20 day period in which the appellant was required to serve her answer to the petition for divorce. Importantly, however, neither the Consent nor any other matter of record indicated when the final hearing would actually take place before the Family Court. The hearing was, in fact, conducted within one hour of the filing of the petition for divorce.
For the reasons stated below, this Court is of the opinion that the failure to provide the appellant with written notice of the final divorce hearing warranted relief under Rule 60(b). Consequently, the Circuit Court committed error in upholding the Family Court’s denial of the appellant’s motion in that regard. The December 1, 2004, order of the Circuit Court of Fayette County is, therefore, reversed, and this action is remanded to that Court with directions that the divorce decree be set aside and that further proceedings be conducted in conformity with this opinion.
I.
Factual and Procedural Background
On October 6, 2003, the appellant, Lyndall Sarah Fernandez, and the appellee, Fredrick Men Fernandez, went to the law office of James W. Keenan in Fayetteville, West Virginia, to discuss filing for divorce. The parties had been married for approximately fifteen year’s and had one child, age fourteen. The appellant and the appellee indicated to Keenan that the divorce was uncontested and that they wanted to finalize the proceedings in an expeditious manner. Nevertheless, Keenan, who had previously consulted with the appellee concerning the divorce and was the appellee’s attorney, explained to the appellant that he would not be representing her and that she should consider obtaining independent legal advice. The appellant, howev er, remained pro se until after the entry of the divorce decree.
While in Keenan’s office, a Joint Financial Statement, Settlement Agreement and Joint Parenting Plan were prepared and signed by the parties. At 1:49 p.m. that day, October 6, 2003, the appellee’s petition for divorce, based upon the ground of irreconcilable differences, was filed in the office of the Fayette County Circuit Clerk. Shortly thereafter, the Joint Financial Statement, Settlement Agreement and Joint Parenting Plan were also filed. The appellant accepted service of process and, utilizing a form obtained from the Circuit Clerk, filed an answer admitting the allegations set forth in the petition. Finally, the parties filed a document entitled Consent to Final Hearing Before Expiration of Time to Answer. Citing Rule 21 of the Rules of Practice and Procedure for Family Court, the Consent indicated that the parties agreed to the Family Court holding a final hearing in the action prior to the expiration of the 20 day period in which the appellant was required to serve her answer to the petition for divorce.
Soon after, at 2:45 p.m. that day, the Family Court conducted a final hearing in the action. The appellant, aware that a hearing was taking place, chose to wait outside in the parking lot in the appellee’s motor vehicle. The appellant was never formally notified in advance of the hearing. Nor does the evidence demonstrate that she knew that the hearing then occurring constituted a “final” hearing in the action. Following the hearing, the Family Court, on October 6, 2003, entered the final divorce decree. The decree, which incorporated the Settlement Agreement, provided: (1) that the parties were divorced, (2) that alimony was waived, (3) that each party waived any claim to the other’s pension rights, (4) that the parties would share custody of their minor child, (5) that the appellant and the child would have possession and use of the marital residence until the child graduates from high school, reaches the age of 18 or is otherwise emancipated and (6) that the appellee would pay child support in the amount of $500.00 per month.
Neither the appellant nor the appellee appealed the entry of the final divorce decree to the Circuit Court of Fayette County.
Thereafter, the appellant obtained counsel and, on April 5, 2004, filed a motion before the Family Court to set aside the October 6, 2003, final divorce decree. The motion, filed under Rule 60(b), alleged, inter alia, that the decree resulted from the holding of an unscheduled hearing in the appellant’s absence and, in addition, that the Settlement Agreement incorporated in the decree was inequitable. Following an evidentiary hearing, the Family Court entered the order of October 20, 2004, denying the appellant’s requested relief. The Family Court determined that the Consent signed by the parties had authorized it to hold the final hearing on October 6, 2003, prior to the expiration of the 20 day period in which the appellant was required to serve her answer. Moreover, the Family Court held that, although the appellant “did not waive notice of the final hearing,” her awareness of the hearing and her voluntary absence therefrom precluded relief under Rule 60(b). Finally, the Family Court concluded that the Settlement Agreement was fair and equitable to both sides.
On December 1, 2004, the Circuit Court of Fayette County refused the appellant’s appeal from the Family Court’s denial of her Rule 60(b) motion. Thereafter, the appeal to this Court was granted.
II.
Standard of Review
Under Rule 60(b), a court may relieve a party from a final judgment upon a number of grounds including mistake, the judgment is void or any other reason justifying relief from the operation of the judgment. In syllabus point 5 of Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974), this Court observed: “A motion to vacate a judgment made pursuant to Rule 60(b), W.Va.R.C.P., is addressed to the sound discretion of the court and the court’s ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion.” That principle has been cited often by this Court. See, syl. pt. 1, Jividen v. Jividen, 212 W.Va. 478, 575 S.E.2d 88 (2002); syl. pt. 2, Wolford v. Landmark American Insurance Company, 196 W.Va. 528, 474 S.E.2d 458 (1996); syl. pt. 1, Nancy Darlene M. v. James Lee M., 195 W.Va. 153, 464 S.E.2d 795 (1995); syl. pt. 1, Jackson General Hospital v. Davis, 195 W.Va. 74, 464 S.E.2d 593 (1995); syl. pt. 1, Blair v. Ford Motor Credit Company, 193 W.Va. 250, 455 S.E.2d 809 (1995); As this Court stated in Intercity Realty Company v. Gibson, 154 W.Va. 369, 377, 175 S.E.2d 452, 457 (1970), overruled on other grounds in Cales v. Wills, 212 W.Va. 232, 569 S.E.2d 479 (2002): “[IJt has been widely held that a motion to vacate a judgment under Rule 60(b) is addressed to the sound discretion of the court and that an abuse of such discretion must be shown before denial of the motion will be overturned on appeal.” See also, Lugar & Silverstein, West Virginia Rules of Civil Procedure, p. 466 (Michie 1960), stating that the granting of motions under Rule 60(b) “rests within the sound discretion of the trial court and may be upon such terms as the court finds just.”
In that context, this Court, in syllabus point 6 of Toler, said as follows:
A court, in the exercise of discretion given it by the remedial provisions of Rule 60(b), W.Va. R.C.P., should recognize that the rule is to be liberally construed for the purpose of accomplishing justice and that it was designed to facilitate the desirable legal objective that cases are to be decided on the merits.
Syl. pt. 4, Delapp v. Delapp, 213 W.Va. 757, 584 S.E.2d 899 (2003); syl. pt. 7, Law v. Monongahela Power Company, 210 W.Va. 549, 558 S.E.2d 349 (2001).
III.
Discussion
As long recognized, “[t]he due process of law guaranteed by the State and Federal Constitutions, when applied to procedure in the courts of the land, requires both notice and the right to be heard.” Syl. pt. 2, Simpson v. Stanton, 119 W.Va. 235, 193 S.E. 64 (1937). See also, syl. pt. 3, State ex rel. Chris Richard S. v. McCarty, 200 W.Va. 346, 489 S.E.2d 503 (1997); syl. pt. 1, Clay v. City of Huntington, 184 W.Va. 708, 403 S.E.2d 725 (1991); syl, Crone v. Crone, 180 W.Va. 184, 375 S.E.2d 816 (1988).
By signing the Consent under Rule 21 of the Rules of Practice and Procedure for Family Court, the appellant herein agreed to the holding of a final divorce hearing prior to the expiration of the 20 day period in which she was required to serve her answer. Neither the Consent nor any other matter of record indicated when, within the 20 day period, the final hearing would actually take place. In fact, the final hearing was spontaneously scheduled and was conducted by the Family Court within one hour of the filing of the petition for divorce. In neither the Consent nor in her answer did the appellant waive formal, written notice of the final divorce hearing. As stated above, the appellant did not check the box on her form answer which stated: “The Respondent waives notice of the final hearing [.]” Moreover, in subsequently considering the appellant’s motion under Rule 60(b), the Family Court acknowledged that the appellant “did not waive notice of the final hearing.”
The fact that the appellant was, nevertheless, aware on October 6, 2003, that a hearing was occurring, but chose not to attend, is deprived of its compelling quality by the competing circumstances envisioned under Rule 21. Section (a) thereof states that “any hearing may be converted, to a final hearing.” (emphasis added) See, n. 3, supra. Thus, it is of importance to note that there is nothing in the record to show that the appellant had any indication that the hearing then occurring was the final divorce hearing in the action. Even so, no inquiry was made during the hearing concerning the appellant’s whereabouts. Nor was the discrepancy concerning whether the appellee’s monthly income was $4,500.00 or $7,000.00 ever resolved. See, n. 5, supra.
In Preece v. Preece, 195 W.Va. 460, 465 S.E.2d 917 (1995), a final divorce hearing was conducted with only the appellee-husband in attendance. His wife, the appellant, who allegedly chose not to attend the hearing, asserted that, inasmuch as she had never received written notice of the time and date thereof, the divorce decree was invalid. This Court held, in Preece, that, although such an irregularity did not “necessarily render the order unenforceable per se,” the action should be remanded for further inquiry concerning whether the separation agreement was fair and reasonable and to assure that all financial disclosure requirements had been observed. 195 W.Va. at 465, 465 S.E.2d at 922.
Here, a review of the video recording of the October 6, 2003, final divorce hearing reveals that a rather perfunctory proceeding took place, lasting no more than ten minutes. It is undisputed that the appellant never received written notice of the hearing. Nor does the record indicate that she had any awareness of the nature of the hearing, even though she knew that a proceeding of some kind was occurring while she waited in the parldng lot. Under those circumstances, this Court is of the opinion that the failure to provide the appellant with written notice of the final divorce hearing warranted relief pursuant to Rule 60(b). Consequently, the Circuit Court committed error in upholding the Family Court’s denial of the appellant’s motion in that regard. Such error constitutes an abuse of discretion under the standard of review discussed above.
IV.
Conclusion
The December 1, 2004, order of the Circuit Court of Fayette County is, therefore, reversed, and this action is remanded to that Court with directions that the divorce decree be set aside and that further proceedings be conducted in conformity with this opinion.
Reversed and Remanded
. Keenan’s admonition to the appellant was, thus, in accord with this Court's opinion in Walden v. Hoke, 189 W.Va. 222, 429 S.E.2d 504 (1993), syllabus point 4 of which holds:
It is improper for a lawyer to represent both the husband and the wife at any stage of the separation and divorce proceeding, even with full disclosure and informed consent. The likelihood of prejudice is so great with dual representation so as to make adequate representation of both spouses impossible, even where the separation is “friendly" and the divorce uncontested. The provisions of W.Va. Code § 48 — 2—4(a)(l 0) (1992) [now W.Va.Code, 48-5-201 (2001)], which allow a divorce for irreconcilable differences, do not alter the impropriety of dual representation.
Mitchell v. Mitchell, 205 W.Va. 203, 210, 517 S.E.2d 300, 307 (1999). See also, Rule 1.7.(a) of the West Virginia Rules of Professional Conduct which states, generally, that a lawyer shall not represent a client, "if the representation of that client will be directly adverse to another client [■]"
. A review of the record demonstrates that Keenan neither supplied the form nor prepared the appellant's answer to the petition for divorce. Syllabus point 5 of Walden, supra, states: “A plaintiff’s lawyer should not prepare an answer for the defendant in any divorce, regardless of whether tire divorce is uncontested and simple." Mitchell, supra, 205 W.Va. at 210, 517 S.E.2d at 307; syl. pt. 2, Lawyer Disciplinary Board v. Frame, 198 W.Va. 166, 479 S.E.2d 676 (1996).
. Inasmuch as Rule 21 constitutes a "restriction on time” with regard to the holding of a final divorce hearing, it does not matter that, as in this action, the answer was filed on the same day as the petition for divorce. Rule 21 states in its entirety:
(a) Conversion of hearing to final hearing.— By agreement of all parties placed on record, any hearing may be converted to a final hearing if sufficient evidence is presented to sustain the cause of action and resolve all issues.
(b) Restriction on time for final hearing.— Except for good cause shown and placed on the record, a final hearing shall not be conducted prior to expiration of the time in which the respondent is required to serve an answer.
In any event, although the Consent signed by the parties in this action authorized the Family Court to hold the final hearing prior to the 20 day period in which the appellant was required to serve her answer, it did not speak to the actual scheduling of the hearing. In that regard, it should be noted that the appellant did not check the box on her form answer which stated: "The Respondent waives notice of the final hearing and waives the right to appeal the Final Divorce Decree.”
. The provision of the decree concerning pension rights primarily concerned the appellee’s 40IK pension account valued at $58,000.00.
. According to the Joint Financial Statement filed by the parties, the appellee worked as a supervisor for Elk Run Coal Company and had a gross monthly income of $4,500.00. The appellant states, however, that the Child Support Formula indicated that the appellee’s gross monthly income was $7,000.00. That discrepancy was never resolved by the Family Court. The Joint Financial Statement reveals that the appellant, who worked as a home care provider, had a monthly income of $650.00.
. It should be noted that the language found in Rule 60(b) is comparable to that found in W.Va. Code, 51-2A-10 (2001). Subsection (a) of that statute provides:
Any party may file a motion for reconsideration of a temporary or final order of the family court 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 available at the time the matter was submitted to the court for decision; (3) fraud, misrepresentation or other misconduct of an adverse party; (4) clerical or other technical deficiencies contained in the order; or (5) any other reason justifying relief from the operation of the order.
See also, Rule 25 of the Rules of Practice and Procedure for Family Court which states: "Any party may file a motion for reconsideration of a family court order as provided in W.Va.Code, 51-2A-10.”
In view of the comparable language found in Rule 60(b) and of the standard of review applicable thereto, this Court, for purposes of convenience, will adopt the appellant’s designation of the motion filed before the Family Court as a request for relief under Rule 60(b). See, Ray v. Ray, 216 W.Va. 11, 602 S.E.2d 454 (2004), indicating, however, that, inasmuch as W.Va.Code, 51-2A-10 (2001), specifically applies to Family Courts, its use is more appropriate than Rule 60(b).
. West Virginia Rule of Civil Procedure 60(b) states in part:
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.
In this action, the motion for relief under Rule 60(b) was filed in April 2004, thus within one year of the entry of the final divorce decree on October 6, 2003.
. It must be recognized, however, that the liberal construction afforded Rule 60(b) is somewhat mitigated by the additional principle expressed in syllabus point 3 of Toler that '‘[a]n appeal of the denial of a Rule 60(b) motion brings to consideration for review only the order of denial itself and not the substance supporting the underlying judgment nor the final judgment order.” Syl. pt. 3, Jividen, supra. Accordingly, the scope and reach of Rule 60(b) is not designed to render the pursuit of justice, as stated by Justice Jackson of the Supreme Court of the United States concerning habeas corpus, "an endurance contest” between the parties. Brown v. Allen, 344 U.S. 443, 542, 73 S.Ct. 397, 97 L.Ed. 469 (1953) (Jackson, J., concurring).
Thus, this Court acknowledges that the following standard of review set forth in the syllabus of Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004), though helpful, is not directly relevant under the circumstances herein where there was no direct appeal from the final divorce decree but, instead, a challenge to the denial of a Rule 60(b) motion:
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.
Syl. pt. 1, Miller v. Miller, 216 W.Va. 720, 613 S.E.2d 87 (2005). See also, W.Va.Code, 51-2A-14(c) (2005); W.Va.Code, 51-2A-15(a) (2001); syl. pt. 2, Lucas v. Lucas, 215 W.Va. 1, 592 S.E.2d 646 (2003); syl. pt. 1, May v. May, 214 W.Va. 394, 589 S.E.2d 536 (2003). | [
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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 Kana-wha County entered on November 22, 2004. In that order, the circuit court granted, in part, a motion to dismiss filed by the appellee and defendant below, the City of Charleston (hereinafter “the City”), in this action instituted by the appellants and plaintiffs below, Standard Distributing, Inc., Associated Wine and Spirits, Inc., and Robert Person (hereinafter collectively referred to as “the appellants”), to recover liquor licensing fees which were paid annually from 1982 to 2002. In this appeal, the appellants contend that the circuit court erred by finding that the fees were paid voluntarily; that the City had provided predeprivation relief; and that the City was immune from liability pursuant to the Governmental Tort Claims and Insurance Reform Act.
This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is affirmed.
I.
FACTS
Robert Person is the owner of Associated Wine and Spirits, Inc., and Standard Distributing, Inc. Both corporations have been in the business of wine distribution in Charleston, West Virginia. From 1982 until 2002, the corporations paid a liquor license fee to the City in the amount of $2,500.00 per year. The businesses completed reporting forms they received from the City and returned them along with the requisite fee.
Sometime prior to June 3, 2004, Mr. Person learned of this Court’s decision in Rite Aid. of West Virginia, Inc. v. The City of Charleston, 189 W.Va. 707, 434 S.E.2d 379 (1993). In that case, this Court found that the City’s municipal ordinance which imposed a license fee on businesses selling liquor was invalid because W.Va.Code § 60-4-18 (1935) prohibited a municipal corporation from imposing a fee or special tax as a condition upon the exercise of a state-issued liquor license. 189 W.Va. at 709, 434 S.E.2d at 381. Based upon the decision in Rite Aid, Mr. Person sought reimbursement for the liquor license fees he had paid to the City through his businesses from 1982 through 2002. However, the City refused to refund the fees, and the parties were unable to reach a settlement. Consequently, Standard Distributing, Inc., Associated Wine and Spirits, Inc., and Mr. Person, the sole shareholder of both corporations, filed suit on June 3, 2004, against the City seeking a refund of the licensing fees paid from 1982 through 2002. In response, the City filed a motion to dismiss.
On November 18, 2004, the circuit court granted the City’s motion to dismiss, in part, finding that the appellants had paid the licensing fees voluntarily and that the City had provided predeprivation relief. The court further found that the City had statutory immunity as to the appellants’ negligence claim. However, the court also determined that the City was liable for three years of overpayments pursuant to Charleston City Code § 6-137. Thus, the Court ordered the City to refund the appellants’ last three years of license overpayments pursuant to that city ordinance. The final order was entered on November 22, 2004, and this.appeal followed.
II.
STANDARD OF REVIEW
As noted above, the appellants appeal from an order granting, in part, the City’s motion to dismiss. This Court has held that “[a]ppellate 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). Accordingly, with this standard in mind, we consider the parties’ arguments.
III.
DISCUSSION
The appellants sought a refund of the licensing fees they paid to the City from 1982 to 2002 asserting two grounds for recovery. First, the appellants alleged that they had been deprived of property without due process of law in violation of the due process clause of the 14th Amendment of the United States Constitution. Secondly, the appellants alleged that the City was negligent by collecting fees which were barred by W.Va. Code § 60-4-18 (1935). We will address each issue below.
A. The Deprivation of Property Claim
In their complaint, the appellants first alleged that they were deprived of prop erty without due process of law in violation of the due process clause of the 14th Amendment of the United States Constitution, and therefore, were entitled to a refund of the fees they paid. “Ordinarily, in the absence of any statutory right permitting recovery, a voluntary payment of a tax made under a statute which is later declared unconstitutional cannot be recovered.” Syllabus Point 7, City of Fairmont v. Pitrolo Pontiac-Cadillac Co., 172 W.Va. 505, 308 S.E.2d 527 (1983). As was noted in Pitrolo, “We are aware of no statute in this State authorizing recovery for payment of municipal taxes under an unconstitutional ordinance.” 172 W.Va. at 512 n. 16, 308 S.E.2d at 534 n. 16.
In this case, the appellants claim that they did not pay the licensing fees voluntarily but rather, were required to do so in order to stay in business. Generally, payment of a tax is deemed to be voluntary if there are opportunities for predeprivation relief. In McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Florida, 496 U.S. 18, 38 n. 21, 110 S.Ct. 2238, 2251 n. 21, 110 L.Ed.2d 17, 37 n. 21 (1990), the Supreme Court of the United States explained that:
[W]hen a tax is paid in order to avoid financial sanctions or a seizure of real or personal property, the tax is paid under “duress” in the sense that the State has not provided a fair and meaningful prede-privation procedure....
In contrast, if a State chooses not to secure payments under duress and instead offers a meaningful opportunity for taxpayers to withhold contested tax assessments and to challenge their validity in a prede-privation hearing, payments tendered may be deemed “voluntary.” The availability of a predeprivation hearing constitutes a procedural safeguard against unlawful deprivations sufficient by itself to satisfy the Due Process Clause, and taxpayers cannot complain if they fail to avail themselves of this procedure. ■
(Citations omitted).
The appellants argue that the City’s ordinances do not afford any predeprivation relief. While acknowledging that the ordinances do provide a hearing for a business that forfeits its license, the appellants contend that the business would be unable to operate for at least a month or longer if it chose to challenge the fee. Therefore, the appellants reason that the City has not actually provided any predeprivation relief.
A close examination of the applicable city ordinances shows that contrary to the appellants’ assertions, there are provisions for meaningful predeprivation relief including the opportunity to assert objections to the fee in an enforcement proceeding and the right to appeal that decision. Moreover, the appellants’ claim that they would have to stop doing business while they challenged the fee is without merit. Rather than shutting down a business for nonpayment of the fee, the applicable city ordinance provides that the city collector may levy a penalty against the business in the amount of 5% of the license tax for each month during which the failure to pay continues. The ordinance further states that such penalties shall be waived if the failure to pay the tax is due to reasonable cause and not due to willful neglect.
Clearly, the Charleston City Code provides a fair and meaningful predeprivation procedure sufficient to satisfy the due process clause. Pursuant to the ordinances, the appellants could have refused to pay the fee and instituted a challenge to the license requirement with a request for waiver of the penalties for nonpayment. However, they did not do so. The appellants simply did not take advantage of the predeprivation relief, nor did they even register a complaint with the City regarding the fee. Instead, the appellants completed the self-reporting form identifying themselves as a “wine distributor” and paid the fee voluntarily without protest. Consequently, the appellants’ claim that they did not pay the fee voluntarily and were deprived of property without due process is without merit.
B. The Negligence Claim
The appellants also asserted in their complaint that the City was negligent because it knew or should have known that the municipal liquor license fee was invalid and that by continuing to collect the fees, the City’s actions amounted to a “continuing tort.” The appellants contend that, contrary to the findings of the circuit court, the City is not immune from liability for its negligence pursuant to the Governmental Tort Claims and Insurance Reform Act, W.Va.Code §§ 29-12A-1 to 29-12-18 (hereinafter “Tort Claims Act”). We disagree.
The Tort Claims Act “was enacted by the legislature in 1986 ‘to limit liability of political subdivisions and provide immunity to political subdivisions in certain instanc-es_’” Walker v. Meadows, 206 W.Va. 78, 82, 521 S.E.2d 801, 805 (1999). It was “the result of legislative findings that political subdivisions of the State were unable to obtain affordable tort liability insurance coverage without reducing the quantity and quality of traditional governmental services. W.Va.Code, 29-12A-2.” O’Dell v. Town of Gauley Bridge, 188 W.Va. 596, 600, 425 S.E.2d 551, 555 (1992). Accordingly, “to remedy this situation, the legislature specified seventeen instances in which political subdivisions would have immunity from tort liability. W.Va.Code, 29-12A-5(a).” Id. Of those seventeen exceptions, at least two are applicable in the case sub judice.
W.Va.Code § 29-12A-5(a) provides that:
A political subdivision is immune from liability if a loss or claim results from:
(1) Legislative or quasi-legislative functions;
(9) Licensing powers or functions including, but not limited to, the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certifícate, approval, order or similar authority!!.]
At issue here is an ordinance enacted by the City imposing a licensing requirement and fee upon businesses selling and distributing liquor. The appellants argue that the City does not have immunity under either subsection because it never had the power to require a municipal liquor license pursuant to W.Va.Code § 60-4-18. In other words, the appellants assert that the City was not performing a legislative or licensing function but rather an illegal one when it continued to collect the licensing fees following the Rite Aid decision. Thus, the appellants reason that the immunity provisions are not applicable. Again, we disagree.
As discussed above, the stated piupose of the Tort Claims Act is to limit the liability of political subdivisions. To that end,
The plain language of W.Va.Code, 29-12A-4(c)(2) [1986] expressly provides that the liability of a political subdivision for injury to property allegedly caused by the negligent performance of acts by their employees is U[s]ubject to sections five and six [§§ 29-12A-5 and 29-12A-6] of this article.”
Hose v. Berkeley County Planning Commission, 194 W.Va. 515, 521, 460 S.E.2d 761, 767 (1995). Accordingly, this Court held in Syllabus Point 4 of Hose that,
Pursuant to W.Va.Code, 29-12A-4(e)(2) [1986] and W.Va.Code, 29-12A-5(a)(9) [1986], a political subdivision is immune from liability if a loss or claim results from licensing powers or functions such as the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority, regardless of whether such loss or claim is caused by the negligent performance of acts by the political subdivision’s employees while acting within the scope of employment.
Likewise, W.Va.Code § 29-12A-4(c)(2) and W.Va.Code § 29-12A-5(a)(l) provide immunity to a political subdivision if a loss or claim results from legislative or quasi-legislative functions regardless of whether the loss or claim is caused by negligence on the part of the subdivision’s employees while acting within the scope of employment.
The appellants’ contention that the Tort Claims Act has no application here because a municipal liquor license was barred by W.Va.Code § 60-4-18 would render the statute meaningless. Clearly, that was not the intention of the Legislature. As we explained in Hose, our traditional principle of statutory analysis requires us to accept the plain meaning of statutes which are clear and unambiguous. 194 W.Va. at 521, 460 S.E.2d at 767. The plain language of the Tori Claims Act provides political subdivisions immunity for a loss or claim resulting from “legislative functions” and “licensing powers or functions.” Furthermore, as we noted in Hose, the statute clearly states that the immunity is not lost even if the loss or claim is the result of a negligent act. Therefore, the City is clearly immune from liability for any negligence arising out its enactment of the ordinance requiring a liquor license fee and the administration and enforcement of that ordinance.
The appellants further claim that the Tort Claims Act does not apply in this case because they have a special relationship with the City. However, in Syllabus Point 5 of Hose this Court specifically found that,
W.Va.Code, 29-12A-5(a)(9) [1986] clearly contemplates immunity for political subdivisions from tort liability for any loss or claim resulting from licensing powers or functions such as the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authority, regardless of the existence of a special duty relationship.
Thus, the appellants’ claim is without merit.
We also find no merit to the appellants’ argument that the City engaged in wanton and reckless conduct by continuing to try to collect the liquor license fee not only after the Rite Aid decision, but also after suit was filed in this case, and therefore, the immunity statute does not apply. In Holsten v. Massey, 200 W.Va. 775, 788, 490 S.E.2d 864, 877 (1997), this Court explained that:
The usual meaning assigned to “willful,” “wanton” or “reckless,” according to taste as to the word used, 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 conscious indifference to the consequences, amounting almost to willingness that they shall follow; and it has been said that this is indispensable.
(Citations omitted.) Upon review of the record, we find no evidence that the City engaged in wanton and reckless conduct.
In summary, we are unable to find that the circuit court erred by dismissing the appellants’ negligence claim against the City. The City is clearly immune from liability pursuant to the Tort Claims Act.
IV.
CONCLUSION
Accordingly, for the reasons set forth above, the final order of the Circuit Court of Kanawha County entered on November 22, 2004, is affirmed.
Affirmed.
. According to the complaint, Mr. Person began paying the licensing fees in the name of Associated Wine and Spirits, Inc., and then subsequently, in the name of Standard Distributing, Inc.
. W.Va.Code § 60-4-18 (1935) states:
A municipal corporation shall not impose a fee or a special tax as a condition upon the exercise of a license issued under the provisions of this chapter.
. In 1999, the Legislature amended W.Va.Code § 60-3A-12 and added the following provision:
(e) Notwithstanding any provision of section eighteen [§ 60-4-18], article four of this chapter to the contrary, a municipality may invoke the authority granted by section four [§ 8-13-4], article thirteen, chapter eight of this code to require an annual license from each retail licensee and require payment for the license in amounts not to exceed the amounts provided in subsection (a) of this section.
Thus, municipalities now have the authority to require an annual retail liquor license and to charge a fee for that license.
.Charleston City Code § 6-137 was amended and reenacted as Charleston City Code § 110-33 on January 22, 2002.
. Charleston City Code § 18-41 (1975) provides, in pertinent part:
(c) The city collector shall refuse to renew an annual license on any business which has failed to file any tax return or permit application as required by any provision of this chapter or which has failed to pay any delinquent taxes or fees or any interest or penalty due and owed the city by reason of operating a business within the city’s jurisdiction. Any business which has been adversely affected by an order or decision of the city collector or his representative relating to the granting of a renewal certificate may appeal such determination by requesting a hearing from the city collector or his examiner within 30 days from receipt of such order or decision.
(d) The city collector shall issue a ruling within a reasonable time from date of the hearing. An appeal may be taken by the business to the circuit court of the county within 30 days after he shall have received notice from the city collector of his determination as provided in this section.
. Charleston City Code § 18-44 (1975) states:
If any person engages in or prosecutes any business, activity, trade or employment without obtaining a license before commencing the business, activity, trade or employment or continues the business, activity, trade or employ ment after the termination of the effective period of any such license, there shall be added to the amount of the license tax required by the provisions of this chapter a penally equal to five percent of the amount of such license tax if the failure to pay the required license tax is for not more than one month, with an additional five percent for each additional month or fraction during which failure continues, such penalty not to exceed 50 percent of the required license tax. Such penalties shall be waived if the failure to pay the required license tax was due to reasonable cause and not due to willful neglect.
. The appellants also contend that at the vety least they should be reimbursed for the fees they paid after the Rite Aid decision was issued by this Court because at that time, the City was on notice that the license fee was invalid. In support of this argument, the appellants rely upon Tyler County Court v. Long, 72 W.Va. 8, 13-14, 77 S.E. 328, 330 (1913), a case wherein this Court stated that “the general rule seems to be that voluntary payment, made by mistake or ignorance of law, but with full knowledge of all the facts, and not induced by fraud or improper conduct on the part of the payee, cannot be recovered back.” The appellants argue that in this case the payments were in fact induced by improper conduct on the part of the payee-the City. However, the appellants never presented any evidence of fraud or other improper conduct on the part of the City with regard to its collection of the licensing fee. Thus, we find no merit to the appellants’ argument.
. "It is always presumed that the legislature will not enact a meaningless or useless statute.” Syllabus Point 4, State ex rel. Hardesty v. Aracoma-Chief Logan No. 4523, Veterans of Foreign Wars of the United States, Inc., 147 W.Va. 645, 129 S.E.2d 921 (1963).
. W.Va.Code § 29-12A-5(b) provides, in pertinent part:
An employee of a political subdivision is immune from liability unless one of the following applies:
(2) His or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless mannerf.]
. Having affirmed the final order, we need not address the City's argument that this appeal should have been dismissed because of the appellants’ acceptance of a refund check tendered by the City for three years of overpayments of the license fee as ordered by the circuit court. | [
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McCUSKEY, Justice:
In this original proceeding in prohibition, the petitioner, Stan Farley, Sheriff of Putnam County, petitions this Court to issue a writ of prohibition preventing the Honorable O.C. Spaulding, Chief Judge of the Circuit Court of Putnam County, from enforcing two administrative orders which he entered on August 26, 1997. Pursuant to the judge’s orders, nine individuals, who had been hired by the Putnam County Commission to perform court security functions for the county’s judiciary, were designated as court marshals and granted certain powers and duties.
Sheriff Farley attacks the administrative orders as unconstitutional and an impermissible usurpation of his statutory power under W.Va.Code § 51-3-5 (1923). On the other hand, the respondents, Judge Spaulding and the Putnam County Commission, assert that the challenged orders are constitutionally valid and, further, that W.Va.Code § 51-3-5 (1923) does not preclude the respondent county commission’s employment of court security officers, whose responsibilities go beyond merely attending court proceedings. In addition, the respondents contend that the West Virginia Constitution has vested in circuit judges, and particularly in chief circuit judges, the power to regulate courthouse security and to employ the necessary personnel to perform court security functions. For reasons explained below, we find that the West Virginia Constitution and laws of this State support both sides. Accordingly, we grant, in part, and deny, in part, the writ of prohibition.
I.
FACTUAL BACKGROUND
The new Putnam County Judicial Building opened in August of 1997. The facility was constructed by the Putnam County Commission and equipped by the commission with state-of-the-art security devices, including a metal detector, x-ray machine, video monitoring equipment, and remote-controlled electronic door locks. The building houses the Putnam County judiciary, including two circuit judges, three magistrates, and the family law master, as well as the circuit clerk, the magistrate clerk, the probation department, and the prosecuting attorney.
The planning of the new judicial building included the consideration of adequate court security personnel requirements. Discussions transpired regarding the court security personnel necessary to ensure the security needs of the facility. Among the participants in these discussions were representatives of the county judiciary, the county commission, and the sheriffs office. Their evaluation of security needs took place against the backdrop that in fiscal year 1996-1997, Sheriff Farley had assigned only one full-time deputy sheriff to serve as bailiff for the county’s six judicial officers and family law master.
In order to provide efficient and effective court security services for the new facility, the county commission and the county judiciary undertook a collaborative effort to staff the building with properly trained civilian security officers. Sheriff Farley was informed of the court security program that was being developed by the commission and county judiciary. While there is some dispute as to whether Sheriff Farley endorsed the use of civilian security officers, affidavits of the respondent judge and Linda K. MeCla-nahan, administrative assistant to the county commission, indicate that the sheriff did express support for an aspect of the overall plan which involved returning to law enforcement activities the one deputy sheriff who had been assigned to bailiff services. It also appears from the record that the county commission met with Sheriff Farley on May 21,1997, to discuss the selection of the Court Marshal; that the sheriff was told of the three individuals under consideration for the position; and that he expressed his preference for Douglas Ratliff, who was eventually selected for the job.
On June 18, 1997, the county commission entered an order adding Douglas Ratliff to the county payroll, effective June 30, 1997. On August 20, 1997, the commission entered an order placing eight persons, selected by Mr. Ratliff to serve as Deputy Court Marshals on the county payroll, effective that day.
On August 26, 1997, Judge Spaulding issued the two administrative orders which are now in dispute. The first order provided as follows:
WHEREAS, Article VIII of the Constitution of West Virginia provides for the Supreme Court and its Circuit Courts to appoint their officers and employees; and
WHEREAS, adequate security is necessary to assure the safe, secure and peaceful conduct of a circuit court’s business; and
WHEREAS, the Circuit Court of Putnam County, West Virginia, has determined that a full-time position for a qualified Court Marshal is necessary for adequate security in the conduct of the court’s business; and
WHEREAS, the Putnam County Commission has employed Douglas M. Ratliff to assist this Court in its responsibility of providing the public and employees a safe, secure and peaceful environment in the Putnam County Judicial Building; and
WHEREAS, the Chief Judge of the Circuit Court of Putnam County, West Virginia, has determined that Douglas M. Ratliff is qualified by training and experience to be the Court’s Marshal;
NOW, THEREFORE, IT IS ORDERED, that Douglas M. Ratliff, an employee of the Putnam County Commission, is hereby designated by the Chief Judge of the Twenty-Ninth Judicial Circuit as Court Marshal for the Circuit Court of Putnam County, to serve at the will and pleasure of the Chief Judge thereof;
IT IS FURTHER ORDERED that the Court Marshal may utilize Deputy Court Marshals employed by the Putnam County Commission to assist the Court Marshal and that said Deputy Court Marshals shall have the same powers and authority as the Court Marshal in carrying out their duties; Provided, that said Deputy Court Marshals shall be properly trained, qualified, approved and appointed by this Court to serve at the will and pleasure of the Chief Judge thereof.
IT IS FURTHER ORDERED that the Court Marshal and Deputy Court Marshals are authorized to:
1. perform the services of court bailiff including assuring the security for all court proceedings;
2. escort prisoners to and from court proceedings;
3. make arrests in and around the Putnam County Judicial Building and the Putnam County Courthouse for offenses committed in their presence or in the presence of the Court;
4. carry a concealed firearm or other deadly weapon upon their person in the Putnam County Judicial Building and the Putnam County Courthouse; and
5. use reasonable and necessary force, including deadly force, in the exercise of their responsibilities and duties.
The second order designated eight individuals to serve as Deputy Court Marshals for the Circuit Court of Putnam County. As of March 4, 1998, a Court Marshal, two full-time Deputy Court Marshals, and six part-time Deputy Court Marshals were employed by the county commission to serve the county judiciary.
In connection with this litigation, the respondent judge conducted a survey of the other judicial circuits in West Virginia in order to ascertain whether any of them use “civilian bailiffs.” This survey revealed that circuit courts in eleven counties use civilian bailiffs to some degree. In some of these counties, the civilian bailiffs are employees of the sheriff. In other counties, they are employees of the county commission.
II.
STANDARD OF REVIEW
The standard of review upon a petition for writ of prohibition was articulated by this Court in Syllabus Point 1 of State ex rel. W.Va. Fire & Casualty Co. v. Karl, 199 W.Va. 678, 487 S.E.2d 336 (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).
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 review questions of law and statutory interpretations de novo. Syl. Pt. 1, Chrystal R.M. v. Charlie A L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
III.
DISCUSSION
The issue before this Court is two-fold: Does a county commission have the authority to employ individuals to perform court security functions for the county’s judiciary, and, if so, does a circuit court judge have the power to authorize those persons to provide security in the conduct of the court’s business, including the performance of the duties of court bailiff? In order to resolve these questions, we must examine the pertinent constitutional and statutory provisions which give rise to the various duties and powers in this case.
A. The Powers and Duties of the Circuit Court
Article VIII, Section 6 of the West Virginia Constitution provides, in relevant part:
Circuit courts shall also have such other jurisdiction, authority or power, original or appellate or concurrent, as may be prescribed by law. Subject to the approval of the supreme court of appeals, each circuit court shall have the authority and power to establish local rules to govern the court. Subject to the supervisory control of the supreme court of appeals, each circuit court shall have general supervisory control over all magistrate courts in the circuit. Under the direction of the chief justice of the supreme court of appeals, the judge of the circuit court, or the chief judge thereof if there be more than one judge of the circuit court, shall be the administrative head of the circuit court and all magistrate courts in the circuit.
The language contained in Article VIII, Section 6 is a part of the 1974 Judicial Reorganization Amendment to the West Virginia Constitution, which rewrote the constitutional powers and duties of our state’s judicial branch of government. “The overriding purpose behind the passage of the Reorganization Amendment was to provide a unified court system in West Virginia to facilitate the prompt and efficient administration of justice.” State ex rel. Lambert v. Stephens, 200 W.Va. 802, 807-08, 490 S.E.2d 891, 896-97 (1997) (citing State ex rel. Bagley v. Blankenship, 161 W.Va. 630, 634, 246 S.E.2d 99,102 (1978)). To that end, the Reorganization Amendment vested the judicial power of the State “solely” in this Court and its inferi- or courts and created “a hierarchy to be used in resolving administrative conflicts and problems.” State ex rel. Frazier v. Meadows, 193 W.Va. 20, 28, 454 S.E.2d 65, 73 (1994); see W.Va. Const, art. VIII, § 1.
The administrative structure established by the Reorganization Amendment has been analyzed by this Court. In Frazier, supra, we noted that “[t]he Reorganization Amendment essentially made the Chief Justice of the Supreme Court the administrative head of all courts. Significantly, the administrative power vested in the Chief Justice of the Supreme Court also flows to the lower court judges.” 193 W.Va. at 28, 454 S.E.2d at 73; see W.Va. Const, art. VIII, § 3. We elaborated upon this structure in Lambert, supra, where we discussed the provisions of the Amendment which vest administrative power in the circuit courts. We stated in Lambert, supra, that
[t]he drafters of the Reorganization Amendment implicitly recognized, however, that this Court can neither make nor micro-manage every administrative decision that needs to be made at the local level. Thus, Article VIII, Section 6 of the West Virginia Constitution provides that, subject to control by this Court, a circuit court judge, or a chief circuit judge in a multi-judge circuit, is given the power to control local affairs. See Rutledge, 175 W.Va. at 381, 332 S.E.2d at 837; Syl. Pt. 2, Carter v. Taylor [180 W.Va. 570, 378 S.E.2d 291 (1989)]. In addition, this section also gives the circuit court judge, or the chief judge thereof, the “general supervisory control over all magistrate courts.... ” W. Va. Const, art. VIII, § 6.
200 W.Va. at 808, 490 S.E.2d at 897 (footnotes omitted).
In State ex rel. Skinner v. Dostert, 166 W.Va. 743, 278 S.E.2d 624 (1981), we interpreted Article VIII, Section 6, together with relevant language contained in Article VIII, Section 10, as follows:
The plain and apparent meaning of these sections is that the circuit court may exercise the administrative powers necessary to “secure the convenient and expeditious transaction of ... business”. The operative phrases are “supervisory control”, “administrative head”, “division of business”, and “convenient and expeditious transaction of such business”. These operative phrases describe functions executive in nature. In essence, the language of article 8, sections 6 and 10 are the grants of executive power within the judiciary.
Id. at 759, 278 S.E.2d at 635.
Recently, in Lambert, supra, this Court made a fundamental inquiry concerning the separation of powers doctrine and the scope of a court’s inherent authority to require sufficient resources for it to perform its functions. With regard to the separation of powers doctrine, we stated:
As part of our constitutional democracy on both the national and state level, we ascribe to the principle that there shall be three equal branches of government — legislative, executive, and judicial. Article V, Section 1 of the West Virginia Constitution states, in part: “The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others.... ” W.Va. Const, art. V, § 1. These “separate and distinct” branches of government fulfill the essential function of “checks and balances.”
Lambert, 200 W.Va. at 809, 490 S.E.2d at 898. As we held in Syllabus Point 2 of Lambert, supra, “[n]ot only does our Constitution explicitly vest the judiciary with the control over its own administrative business, but it is a fortiori that the judiciary must have such control in order to maintain its independence.” Moreover, regarding a court’s inherent power to require resources for the performance of its responsibilities, we held in Syllabus Point 3 of Lambert, supra:
3. Courts have inherent authority to require necessary resources, such as sufficient funds for operating expenses, work space, parking space, supplies, and other material items. In order for a court to invoke use of its inherent power to require resources, the court must demonstrate that such resources are reasonably necessary for the performance of its responsibilities in the administration of justice. Although courts must be cautious not to reach beyond the power of the judicial branch, it is crucial for the judiciary to be able to invoke such power as is reasonably necessary to maintain itself as an independent and equal branch of our government.
Ancillary to this inherent administrative power, we recognized a court’s right to utilize legal resources in aid of its administrative functions whenever a conflict arises between the judiciary and another branch of government and an amicable solution cannot be found. Lambert, 200 W.Va. at 811, 490 S.E.2d at 900. In Syllabus Point 5 of Lambert, supra, we held that “[a] court may use the legal resources available to it to defend those interests it is constitutionally bound to protect, including, but not limited to, ex parte orders in necessary circumstances in administrative matters within the court’s inherent authority.”
More specifically, with regard to the issue now before us, this Court has emphasized “[t]he inherent power that courts possess to provide for necessary attendants in order to perform their constitutional duties.” In re Pauley, 173 W.Va. 228, 233, 314 S.E.2d 391, 396 (1983) (citing relevant cases from other jurisdictions). While this Court has not previously addressed the validity of a court’s use of its inherent administrative power in order to ensure adequate security for a courthouse, this issue was decided by the Supreme Court of Colorado in Board of County Comm’rs. v. Nineteenth Judicial Dist., 895 P.2d 545 (Colo.1995). In that case, in response to threats of courthouse violence, the chief judge of a judicial district met with the board of county commissioners and the county sheriff to discuss methods for providing a safe and secure courthouse environment. Id. at 547. After several discussions among these parties, the chief judge entered an order requiring that the sheriff provide security for the courthouse and specifying that the board pay the costs of the security equipment and personnel. Id. The Colorado court upheld that part of the chief judge’s order which required the sheriff to provide security under the “inherent powers doctrine.” Ultimately finding that the directive was a proper exercise of the court’s inherent authority, the court reasoned:
[T]he Chief Judge properly ordered security to ensure the continuing viability of the courts. Without security the public’s confidence in the integrity of the judicial system is threatened. The proper administration of justice requires that courts op erate in a safe and secure environment. When society views the security of the court system with skepticism, the authority of the judicial branch is diminished. A weak judicial branch prevents a proper functioning of the tripartite scheme of government. The Chief Judge properly ordered security so the courts may continue to fulfill their constitutional mandate and administer justice in an orderly and dignified atmosphere.
Id. at 548^9.
B. The Powers and Duties of the Sheriff
West Virginia Code § 51-3-5 (1923) provides that
[t]he supreme court of appeals shall not be attended by any sheriff, but every circuit court, county court, and other court of record of any county shall be attended by the sheriff of the county in which it is held, who shall act as the officer thereof.
In addition, Rule VII of the West Virginia Trial Court Rules (1960) mandates:
The sheriff, or a deputy, shall be present at all times while the court is in session. The sheriff shall provide a sufficient number of deputies to maintain order in the courtroom at all times. The rules and orders of the court pertaining to conduct in the courtroom shall be enforced by him or them.
The provisions of W.Va.Code § 51-3-5 and Rule VII of the Trial Court Rules, set forth above, were interpreted by this Court in Frazier v. Meadows, supra. We concluded in Frazier that § 51-3-5 and Rule VII charge the sheriff of a county with the duty of providing bailiffs for the county circuit court. In addition, we found that § 51-3-5 confers authority on the sheriff to select and assign one or more deputy sheriffs to serve as court bailiff. 193 W.Va. at 26-28, 454 S.E.2d at 71-73. As a necessary corollary to this duty and authority, we recognized that under § 51-3-5 and Rule VII, the sheriff has the further responsibility of “maintaining a sufficient number of deputies for the court.” 193 W.Va. at 24, 454 S.E.2d at 69.
“We have defined a bailiff as “[a] court officer or attendant who has charge of a court session in the matter of keeping order, custody of the jury, and custody of prisoners while in the court.” ” Frazier, 193 W.Va. at 28, 454 S.E.2d at 73 (quoting Pauley, 173 W.Va. at 233, 314 S.E.2d at 396). Additionally, in Syllabus Point 2 of Pauley, supra, we held that “[a] bailiff is an officer of the court to which he or she is assigned, subject to its control and supervision, and responsible for preserving order and decorum, taking charge of the jury, guarding prisoners, and other services which are reasonably necessary for the court’s proper functioning.” Moreover, in Frazier, supra, we stated:
The bailiff, as an officer of the court, nevertheless, falls within the administrative hierarchy set up by the Reorganization Amendment. We underscore the point that ministerial attendants such as clerks and bailiffs, regardless of the method of their selection, fall within the administrative control of the court system. Judges are ultimately responsible for any action or inaction of their employees and only a judge can determine whether his assistants are suitable and sufficient for his needs.
193 W.Va. at 29, 454 S.E.2d at 74.
C. The Powers and Duties of the County Commission
Article IX, Section 11 of the West Virginia Constitution provides, in pertinent part:
The county commissions.... shall ... under such regulations as may be prescribed by law, have the superintendence and administration of the internal police and fiscal affairs of their counties....
This Court has interpreted this provision, formerly contained in Article VIII, Section 24, as vesting the county commissions of this State with “a wide discretion in the superintendence and administration of the internal police and fiscal affairs of their counties.” Syl. Pt. 1, Meador v. County Court, 141 W.Va. 96, 87 S.E.2d 725 (1955). Under the relevant language of Article IX, Section 11, we stated in Hockman v. Tucker County Court, 138 W.Va. 132, 137, 75 S.E.2d 82, 85 (1953):
The sheriff, though an important law enforcement officer, does not have the complete or the exclusive control of the internal police affairs of the county. By virtue of the quoted constitutional provision the county court has the authority to superintend and administer, subject to such regulations as may be prescribed by law, the police affairs of the county.
Additionally, W.Va.Code § 7-3-2 (1989) mandates that
[t]he county commission of every county, at the expense of the county, shall provide at the county seat thereof a suitable courthouse ... together with suitable offices for the judge of the circuit court and judges of courts of limited jurisdiction, clerks of circuit courts, courts of limited jurisdiction and of the county commission, assessor, sheriff, prosecuting attorney, county superintendent of schools, and surveyor, and all other offices as are or may be required by law.... The county commission shall keep the courthouse, jail and other offices in constant and adequate repair, and supplied with the necessary heat, light, furniture, record books, and janitor service, ... and other things as shall be necessary....
Moreover, under W. Va.Code § 7-l-3m (1974), the county commission is “empowered to employ, fix compensation for and discharge such ... personnel ... as may from time to time be necessary to aid such courts in exercising their powers or discharging their duties as provided by law.”
In State ex rel. County Court v. Arthur, 150 W.Va. 293, 297, 145 S.E.2d 34, 37 (1965), this Court noted that
[w]hen a statute imposes upon a county court the duty to perform a particular function, it has the power to so act, together with such powers as are reasonably necessary to perform that function. For example, under the provisions of Code, 1931, 7-3-2, as amended, the county court of each county is charged with the duty to provide and maintain, at the county seat, a courthouse. While no statute expressly authorizes the court to purchase mops and brooms, such authority is implied as a necessary and reasonable incident to the proper maintenance of the courthouse.
D. The Proper Balance of Powers in This Case
As indicated above, the facts in the action before this Court are that the county commission hired nine civilians to serve as security officers at the new Putnam County Judicial Building. Thereafter, the respondent chief judge entered a pair of administrative orders designating one of those persons as Court Marshal and the other eight as Deputy Court Marshals and authorizing all nine civilians to (1) perform the services of court bailiff including assuring the security for all court proceedings; (2) escort prisoners to and from court proceedings; (3) make arrests in and around the Putnam County Judicial Building and the Putnam County Courthouse for offenses committed in their presence or in the presence of the Court; (4) carry a concealed firearm or other deadly weapon upon their person in the Putnam County Judicial Building and the Putnam County Courthouse; and (5) use reasonable and necessary force, including deadly force, in the exercise of their responsibilities and duties. In one of the two orders, which were entered simultaneously, the respondent judge found that “adequate security is necessary to assure the safe, secure and peaceful conduct of a circuit court’s business” and that “a full-time position for a qualified Court Marshal is necessary for adequate security in the conduct of the court’s business.” It is also apparent from the orders that the Deputy Court Marshals were intended to assist the Court Marshal in providing adequate security for the judicial building and its occupants.
Under the circumstances of this ease, we find that the county commission’s hiring of court security personnel was within its constitutional power to superintend and administer the internal police and fiscal affairs of the county. See W.Va. Const, art. IX, § 11; Meador, supra; Hockman, supra. We also believe that the court security officers in question are necessary to the efficient operation of the Putnam County judicial facility with its state-of-the-art security equipment, and, therefore, that the commission had the implied authority to employ them. See Ar thur, supra; W.Va.Code § 7-3-2; W.Va.Code § 7-l-3m. We do not find that the commission’s employment of these personnel in any way impaired or supplanted the power and duty of the county sheriff under W.Va.Code § 51-3-5 and Rule VII of the West Virginia Trial Court Rules.
In addition, we find that properly trained security officers, whose duties include operating the new facility’s security devices, are reasonably necessary in order to ensure adequate security for not just the courtroom but the entire judicial building and its occupants. See Lambert, supra. As in Board of County Comm’rs, supra, we find that Judge Spaulding had the inherent power to provide adequate court security, which is essential to the safe and orderly administration of justice. However, because the sheriff is both empowered and obligated, under § 51-3-5 and Rule VII, to provide deputies to serve as court bailiffs for all levels of the county judiciary, we find that the respondent judge improperly entered the sheriffs bailiwick to the extent that he authorized the court marshals to perform the courtroom services of bailiff and to escort prisoners to and from court proceedings. See Frazier, supra; Pauley, supra. Under the separation of powers doctrine, this Court cannot permit these usurpatory portions of the respondent judge’s order to stand.
Accordingly, under the facts of this case and the foregoing legal principles, we hold that a county commission has the authority to employ individuals to perform security functions for the county judiciary, but this authority is limited insofar as it cannot properly be exercised in a manner which impairs or supplants the power and duty of the county sheriff, under W.Va.Code § 51-3-5 (1923) and Rule VII of the West Virginia Trial Court Rules (1960), to select one or more deputy sheriffs to serve as court bailiff and to provide a sufficient number of bailiffs for every court of record in the county. We further hold that the judge of the circuit court, or the chief judge thereof if there is more than one judge of the circuit court, has the inherent administrative power to designate and authorize persons to perform security services necessary to the safe and efficient operation of the county judiciary, provided that such administrative action does not impair or supplant the power and responsibility of the county sheriff to furnish deputy sheriffs to serve as court bailiffs for the county’s courts.
Therefore, we grant the writ of prohibition, in part, and prohibit the enforcement of the first two grants of authority contained in the respondent judge’s order on the grounds that they are usurpatory of the sheriffs power and duty under § 51-3-5 and Rule VII. Conversely, we conclude that the remainder of the respondent judge’s orders constitutes a valid exercise of his inherent administrative powers and, consequently, we deny the writ of prohibition to the extent that it would bar enforcement of those provisions. For example, under our ruling, the court marshals can make arrests in and around the new judicial building and the county courthouse for offenses committed in their presence or in the presence of the circuit court.
IV.
CONCLUSION
Upon all of the foregoing, this Court hereby orders that the writ of prohibition is granted, in part, and denied, in part.
Writ granted, in part, and denied, in part.
. The Reorganization Amendment rewrote Article VIII, substituting Secs. 1 to 15 for former Secs. 1 to 30, amended Sec. 13 of Article III, and added Secs. 9 to 13 to Article IX. | [
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DAVIS, Chief Justice:
Defendants below, George A. Easton and Kevin True, appeal from sentencing orders entered September 11, 1997, by the Circuit Court of Hampshire County. Both defendants previously had been convicted of the felony offense of the willful creation, by a custodian, of an emergency situation for an incapacitated adult and misdemeanor battery, which crimes were committed when the defendants were called upon to restrain a patient residing in a personal care home where they were employed. As a result of these convictions, the circuit court sentenced each defendant to a term of confinement of not less than two years nor more than ten years in the West Virginia State Penitentiary for their felony offense and a term of one year in the Hampshire County Jail for their misdemeanor crime, to be served concurrently with the indeterminate term for the felony offense. Upon a review of the parties’ arguments on appeal, the record established in this case, and the pertinent authorities, we affirm the decision of the Circuit Court of Hampshire County. In rendering this decision, we find the penal statute under which defendants Easton and True were convicted of willfully creating an emergency situation for an incapacitated adult, former W. Va. Code § 9-6-15(b) (1984) (Repl.Vol.1990), to be constitutional. We also determine that the circuit court did not err in upholding the defendants’ convictions or imposing sentences thereon as the record evidence sufficiently supported their convictions; that their sentences, which were imposed in accordance with a repealed penal statute, were authorized by law; and that their multiple convictions did not violate double jeopardy considerations.
I.
FACTUAL AND PROCEDURAL HISTORY
The evidence presented to the jury suggests the following facts. At the center of the events giving rise to the defendants’ crimes and their resultant sentences at issue in this appeal is a young man with mental impairments [hereinafter “the patient”] who had been placed in a residential personal care facility. The patient’s medical history included mild mental retardation, schizophrenia, and self-injurious behavior. Having been determined to constitute a safety threat to himself and others, he was placed in one care home and then transferred to the Concord home in Hampshire County, West Virginia. On the day of his arrival at Concord, September 5, 1996, the patient attempted to leave the facility, wearing no shoes or shirt, and was found walking in the middle of a state highway. Upon his return to Concord, the patient engaged in self-injurious behavior, including repeatedly banging his head on the floor and hitting himself. As a result of the patient’s proclivities, Concord assigned a house counselor, Harry Eugene Hutts, Jr. [hereinafter “Hutts”], to monitor his behavior. More specifically, Hutts was directed to monitor the patient’s bedroom to ensure that he did not again attempt to leave Concord or engage in self-injurious behavior.
Mr. Hutts testified that, on September 8, 1996, in spite of his supervision, the patient’s aggression again manifested itself. Having obtained permission from Hutts to leave his room to go to the restroom, the patient, instead of returning to his room, attempted to leave the group home. In an effort to prevent the patient’s unauthorized departure, Hutts blocked the door. Responding to Hutts’ actions, the patient hit Hutts with a large potted plant and threw a medicine box at him. Hutts, who was a relatively new employee at Concord and who had not yet been trained to restrain physically aggressive patients, testified that he called for help. Three other house counselors assigned to the patient’s home responded: defendants Ea-ston and True, and a third individual. Ea-ston reportedly instructed Hutts to “move to the kitchen and stay out of the way,” and the three house counselors, Easton, True, and the third person, performed a “take down” maneuver, whereby an uncontrollable patient is held by the arms’ and lowered to the ground in an attempt to calm the individual and minimize the risk of harm to the patient and others. Hutts then observed, for the next two and one-half hours, the three house counselors repeatedly strike the patient with their fists and open hands, kick him, and curse him. Following this incident, defendant True transported the patient to a nearby medical center where he was noted to have had numerous contusions to his eyes, face, lips,- shoulders, and back, but no lacerations or broken bones. The patient was released after being prescribed an over-the-counter analgesic. On September 10, 1996, the patient’s family withdrew him from the Concord facility and sought additional medical evaluations of his medical condition resulting from the Concord incident of two days previous.
Thereafter, Easton and True were each charged with two criminal offenses arising from their actions on September 8, 1996, involving the patient : malicious or unlawful assault, a felony pursuant to W. Va.Code § 61-2-9(a) (1978) (Repl.Vol.1997), and willful creation, by a custodian or caretaker, of an emergency situation involving an incapacitated adult, a felony under W. Va.Code § 9-6 — 15(b) (1984) (Repl.Vol.1990) . On January 7, 1997, both defendants were indicted on these charges, and, on March 18 and 21, 1997, a Hampshire County jury found defendants Easton and True, respectively, guilty of misdemeanor battery, as defined in W. Va.Code § 61-2-9(e) (1978) (Repl.Vol.1997), and willfully creating an emergency situation for an incapacitated adult. Following the defendants’ jury convictions, the West Virginia Legislature, in April, 1997, repealed W. Va.Code § 9-6-15, see W. Va.Code § 9-6-15 (1997) (Repl.Vol.1998), and enacted a similar statute, W. Va.Code § 61-2-29 (1997) (Repl. Vol.1997), which contained the same penalties as the repealed statute, but which redefined the illegal behaviors, omitting the crime of “willfully creating] an emergency situation for an incapacitated adult.” Subsequently, on August 27,1997, the circuit court held a sentencing hearing during which it imposed upon each defendant a twelve-month term of confinement in the Hampshire County Jail for his battery conviction and an indeterminate term of incarceration in the West Virginia State Penitentiary of not less than two years nor more than ten years for his conviction of willfully creating an emer-geney situation for an incapacitated adult. The court ordered each defendant’s one-year county jail sentence to run concurrently with his indeterminate term of penitentiary incarceration. On September 11, 1997, orders were entered in both defendant Easton’s and defendant True’s criminal cases reflecting the sentences imposed during the sentencing hearing.
From these convictions and sentences, the defendants appeal to this Court. Because of the identity of the circumstances underlying the crimes with which the defendants were charged, the offenses of which they were convicted, and the sentences which they ultimately received, this Court, by order dated August 31, 1998, consolidated the individual appeals of defendants Easton and True for review and decisional purposes.
II.
DISCUSSION
On appeal to this Court, defendants Ea-ston and True complain first that W. Va.Code § 9-6-15(b) (1984) (Repl.Vol.1990), under which they were convicted of willfully creat ing an emergency situation for an incapacitated adult, is unconstitutional. They also suggest that their convictions of battery and willful creation of an emergency situation and resultant sentences were improper based upon the insufficient evidence supporting such convictions. Furthermore, Easton and True maintain that the circuit court was not authorized to sentence them for the crime of willful creation of an emergency situation since the portion of W. Va.Code § 9-6-15 defining this offense and its punishment was repealed prior to the circuit court’s imposition of sentence therefor. Lastly, they challenge the ability of the circuit court to convict and sentence them for battery and willfully creating an emergency situation in consideration of the principles of double jeopardy. Following a brief examination of the applicable standard of review, we will address each of these contentions in turn.
A. Standard of Review
In deciding the instant appeal, we refer generally to the standard of review applicable to jury verdicts. Typically, when a case that has been tried before and decided by a jury is appealed to this Court, we afford great deference to the jury’s decision. “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.” Syl. pt. 3, State v. Sprigg, 103 W.Va. 404, 137 S.E. 746 (1927). See also IB Michie’s Jurisprudence Appeal and Error § 267, at 480-81 (Repl.Vol.1995) (1996) (“It has ... been repeatedly held that a verdict fairly rendered ought not to be interfered with by the court, unless manifest wrong and injustice have been done, or unless the verdict is plainly not warranted by the evidence.” (footnote omitted)). This deferential standard stems from the supreme importance accorded the jury’s fact-finding role. “ ‘The jury is the trier of the facts and in performing that duty it is the sole judge as to the weight of the evidence and the credibility of the witnesses.’ Point 2, Syllabus, State v. Bailey, 151 W.Va. 796[, 155 S.E.2d 850 (1967)].” Syl. pt. 3, State v. Knotts, 156 W.Va. 748, 197 S.E.2d 93 (1973). Thus, “[w]here the evidence presents issues of fact for jury determination and the jury has been fully and correctly instructed as to the law applicable to the case, its verdict is conclusive and will not be disturbed, there being otherwise no prejudicial error.” Syl. pt. 5, State v. Shaffer, 138 W.Va. 197, 75 S.E.2d 217 (1953). Guided by these principles, we now consider the defendants’ assignments of error.
B. Constitutionality of Former W. Va.Code § 9-6-15(b) (198k.) (Repl.Vol.1990)
The defendants first argue that W. Va.Code § 9-6-15(b) (1984) (Repl.Vol.1990) is unconstitutional, and, thus, that their convictions under this statute are invalid. They suggest that this statutory provision is unconstitutionally vague because a person “of common intelligence must necessarily guess at its meaning and differ as to its application,” essentially asserting a violation of their rights to due process. Defendants Easton and True further note that the appropriate inquiry is not what the Legislature intended when enacting the challenged penal statute, but what an ordinary person, reading the enactment’s plain language, would under stand the statute to proscribe. Citing State v. Ball, 164 W.Va. 588, 594, 264 S.E.2d 844, 847 (1980). In this regard, the defendants urge that, under the factual circumstances constituting their alleged criminal offenses, they reasonably believed that the victim, himself, had created an emergency situation and that they were acting solely to protect him from further self-inflicted harm.
The State responds that the defendants failed to assert their constitutionality challenge during the lower court proceedings and that they are therefore precluded from raising this issue for the first time on appeal. Citing Syl. pt. 7, in part, State v. Garrett, 195 W.Va. 630, 466 S.E.2d 481 (1995) (“This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.” (internal quotations and citations omitted)). In the alternative, addressing the merits of the defendants’ argument, the State replies that W. Va.Code § 9-6-15(b) is not unconstitutional because it provides adequate notice of the conduct proscribed by its terms. Contrary to the view espoused by the defendants, the State suggests that § 9-6-15(b) is not unconstitutionally vague because it is “set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication.” Syl. pt. 1, in part, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974). The State urges that this statutory provision, while requiring reference to W. Va.Code § 9-6-1 (1984) (Repl.Vol.1998) for definitions of terms of art contained therein, is sufficiently clear to place a person of ordinary intelligence on notice of the conduct prohibited by W. Va.Code § 9 — 6—15(b) and the resultant penalties to be imposed for such a violation.
Generally, “the question of constitutionality must be raised in the trial court.” IB Michie’s Jurisprudence Appeal and Error § 83, at 244 (footnote omitted). See also 4 C.J.S. Appeal and Error § 208, at 286-87 (1993) (same). In evaluating the merits of this assignment of error, we have reviewed the evidentiary record developed below and can locate nothing to indicate that the defendants presented the constitutionality of W. Va.Code § 9-6-15(b) (1984) (Repl.Vol.1990) for consideration by the trial court. Despite the defendants’ failure to properly preserve their constitutionality challenge, we never theless are authorized to examine such an issue for the first time on appeal.
[T]o be adjudged the right to invoke this [Court’s] jurisdiction [to determine causes involving the constitutionality of a law], it must appear with reasonable certainty ... that a correct interpretation and construction of the challenged statute is vital to a just determination of the litigation.... Not every charge of infirmity in an enactment, however, will so operate. A mere factitious or spurious assertion of constitutional invalidity will not suffice. “The court will examine and determine for itself whether such claim is well founded; and, in order for jurisdiction to attach, it must affirmatively appear that a fairly debatable constitutional question was and is [necessarily] involved.”
Baer v. Gore, 79 W.Va. 50, 53, 90 S.E. 530, 531-32 (1916) (quoting 3 C.J. Appeal and Error § 175, at 391 (1915) (footnotes omitted)) (additional internal quotations and citations omitted), superseded by statute on other grounds as stated in Reynolds v. Board of Canvassers of Harrison County, 117 W.Va. 770, 773, 188 S.E. 229, 230 (1936). See also Syl. pt. 1, Price v. City of Moundsville, 43 W.Va. 523, 27 S.E. 218 (1897) (“This Court is in duty bound to inquire into the constitutionality of an act of the legislature, when the question is properly presented for its consideration.”); IB Michie’s Jurisprudence Appeal and Error § 83, at 244 (“[I]t has ... been held in certain cases that the unconstitutionality of a law need not be specially pleaded and may be raised for the first time in the appellate court. Thus, any proceeding which necessarily raises the issue of constitutionality ... is sufficient to give ... the supreme court of appeals jurisdiction .... ” (footnotes omitted)). In this regard, not only must an interested party raise the constitutional challenge, but determination of the constitutional issue must be necessary and vital to the resolution of the appeal. State v. Huber, 129 W.Va. 198, 206, 40 S.E.2d 11, 17 (1946). Cf. Syl. pt. 2, State v. Michael, 141 W.Va. 1, 87 S.E.2d 595 (1955) (“Where a constitutional question, not involving the jurisdiction of the trial court or this Court, was not raised specifically in the trial court or in this Court, and the decision of the question is not necessary to the decision of the case, this Court will not ex mero motu consider the question.” (emphasis added)).
With respect to the case sub judice, we conclude that a determination of the constitutionality of W. Va.Code § 9 — 6—15(b) is necessary and vital, indeed essential, to the determination of the cause before us. “An unconstitutional law is void and is as no law. An offense created by it is .not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.” 17 Michie’s Jurisprudence Statutes § 27, at 343-44 (footnote omitted). See also Syl. pt. 2, in part, Committee on Legal Ethics of the West Virginia State Bar v. Triplett, 180 W.Va. 533, 378 S.E.2d 82 (1988) (“An unconstitutional law is void .... ”), cert. granted sub nom., United States Dep’t of Labor v. Triplett, 493 U.S. 807, 110 S.Ct. 48, 107 L.Ed.2d 17 (1989), rev’d on other grounds, 494 U.S. 715, 110 S.Ct. 1428, 108 L.Ed.2d 701 (1990). Thus, an integral part of our evaluation of the defendants’ assignments of error regarding their criminal convictions and consequent sentences is a determination of whether W. Va.Code § 9 — 6—15(b), the violation of which they were convicted and for which they were sentenced, is, in fact, a valid and enforceable penal statute. For the reasons explained below, we find that § 9-6-15(b) is constitutional.
The crux of the defendants’ constitutionality argument is that W. Va.Code § 9-6 — 15(b) is “void for vagueness” because it does not satisfy the due process requirement that a penal statute be reasonably intelligible to those individuals who are required to conduct themselves in accordance therewith. “ ‘Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to- punishment[,] but also of the severity of the penalty that a State may impose.’ ” State v. Miller, 197 W.Va. 588, 599, 476 S.E.2d 535, 546 (1996) (quoting BMW of North America, Inc. v. Gore, 517 U.S. 559, 574, 116 S.Ct. 1589, 1598, 134 L.Ed.2d 809, 826 (1996) (footnote omitted)). Accord State ex rel. Morgan v. Trent, 195 W.Va. 257, 263, 465 S.E.2d 257, 263 (1995) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227 (1972)). For this reason, then, “[a] criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication.” Syl. pt. 1, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974). While
[tjhere is no satisfactory formula to decide if a statute is so vague as to violate the due process clauses of the State and Federal Constitutions[,] [t]he basic requirements are that such a statute must be couched in such language so as to notify a potential offender of a criminal provision as to what he should avoid doing in order to ascertain if he has violated the offense provided and it may be couched in general language.
Syl. pt. 1, State ex rel. Myers v. Wood, 154 W.Va. 431, 175 S.E.2d 637 (1970).
Reviewing the text of W. Va.Code § 9-6-15(b), we are convinced that 'the statutory language sufficiently satisfies the requirements of notice of both the proscribed conduct and the possible penalties that may be imposed therefor. W. Va.Code § 9 — 6—15(b) (1984) (Repl.Vol.1990) states:
Any person having actual care, custody or control of an incapacitated adult who with the intent to abuse or neglect such adult willfully creates an emergency situation for an incapacitated adult, is guilty of a felony, and, upon conviction thereof, shall, in the discretion of the court, be confined in the penitentiary for not less than two nor more than ten years or be confined in the county jail for not more than twelve months and fined not more than fifteen hundred dollars.
First, as aptly noted by the State, the various terms describing the conduct prohibited by W. Va.Code § 9-6-15(b) are defined in the definitional section of this article. See W. Va.Code § 9-6-1 (1984) (Repl.Vol.1998). The first such term, “incapacitated adult,” is defined in W. Va.Code § 9-6-l(4) as “any person who by reason of physical, mental or other infirmity is unable to independently carry on the daily activities of life necessary to sustaining life and reasonable health.” Next follow the definitions for “abuse” or “neglect,” to describe the nature of the “intent” that is criminalized by § 9-6-15(b). “Abuse” signifies “the infliction or threat to inflict physical pain or injury on or the imprisonment of any incapacitated adult.” W. Va.Code § 9 — 6—1(2). Similarly, “neglect” contemplates either “(i) the failure to provide the necessities of life to an incapacitated adult with intent to coerce or physically harm such incapacitated adult” or “(ii) the unlawful expenditure or willful dissipation of the funds or other assets owned or paid to or for the benefit of an incapacitated adult.” W. Va. Code § 9-6-l(3). Lastly, an “emergency situation” is described as “a situation or set of circumstances which presents a substantial and immediate risk of death or serious injury to an incapacitated adult.” W. Va.Code § 9-6-1(5).
Second, the statute plainly and clearly establishes the possible criminal penalties that may* be imposed for the commission of conduct prohibited by § 9-6-15(b). In plain and clear language the statute admonishes that one who willfully creates an emergency situation for an incapacitated adult
is guilty of a felony, and, upon conviction thereof, shall, in the discretion of the court, be confined in the penitentiary for not less than two nor more than ten years or be confined in the county jail for not more than twelve months and fined not more than fifteen hundred dollars.
W. Va.Code § 9-6-15(b).
In light of the satisfaction of the dual notice requirements, we conclude that W. Va.Code § 9-6-15(b) (1984) (Repl.Vol.1990) is constitutional and, thus, that the defendants’ convictions and sentences in accordance therewith were legally valid.
C. Sufficiency of the Evidence
The defendants additionally challenge the sufficiency of the evidence upon which their convictions for willful creation of an emergency situation are based. With regard to these convictions, the defendants claim that the trial evidence failed to establish that they intended to abuse the patient or that they had created an emergency situation for him. First, they argue that, rather than intending to abuse the patient, they employed the “take down” maneuver in an effort to prevent the patient from inflicting further harm upon himself or others.
Additionally, they contend that they did not create the emergency situation with which the patient was faced. Instead, they suggest that the patient, himself, by his actions of attempting to flee the Concord facility and becoming increasingly violent and aggressive towards house counselor Hutts, created the emergency situation with which he was faced on September 8, 1996. In support of this contention, the defendants state that after Hutts thwarted the patient’s attempt to flee, the patient hit Hutts with a large potted plant and threw a medicine box at him. Moreover, the defendants bolster their contention that the patient created the emergency situation by pointing to the fact that Hutts, himself, was unable to control the patient’s violent outburst and required the assistance of three additional house counselors to calm the patient’s rage. Thus, they claim that they did nothing more than respond to Hutts’ calls for assistance in suppressing the emergency situation created by the patient.
By contrast, the State contends that the trial evidence adequately established that the defendants intended to abuse the patient and that they willfully created the emergency situation into which the patient was placed. In support of its contention that the evidence sufficiently established the defendants’ intent to abuse the patient, the State notes that upon coming to Hutts’ aid, Easton directed Hutts to “move to the kitchen and stay out of the way,” rather than permitting his new coworker to assist with the “take down” or observe how the maneuver should be performed. In addition, Hutts testified that, during the beating of the patient, he heard the three house counselors call the patient names, curse him, and chastise him for not being on better behavior, further evincing the presence of an intent to abuse the patient in order to obtain his compliance with Concord house policies.
The State further rejects the defendants’ position that it was the patient who created the emergency situation of September eighth. While the State agrees that the patient could have created an emergency situation upon his flight attempt and violent retaliation towards Hutts, the State urges that this emergency situation ended and a new emergency situation arose from the defendants’ intent to abuse the patient. The second emergency situation then escalated when the defendants, having regained control of the patient, nevertheless continued to restrain him, tore his clothes, and repeatedly cursed, kicked, pushed, and otherwise hit him for approximately two and one-half hours.
In presenting their arguments of evidentiary insufficiency, the defendants present two main theories. First, the defendants assert that the evidence does not demonstrate that they intended to abuse the patient. Second, the defendants contend that the evidence does not prove that they, as opposed to the patient, created the emergency situation with which the patient was faced. Despite these articulated theories of insufficient evidence, though,
criminal defendant[s] challenging the sufficiency of the evidence to support a conviction take[ ] 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, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). See also State v. LaRock, 196 W.Va. 294, 303, 470 S.E.2d 613, 622 (1996) (“A convicted defendant who presses a claim of evidentiary insufficiency faces an uphill climb. The defendant fails if the evidence presented, taken in the light most agreeable to the prosecution, is adequate to permit a rational jury to find the essential elements of the offense of conviction beyond a reasonable doubt. Phrased another way, as long as the aggregate evidence justifies a judgment of conviction, other hypotheses more congenial to a finding of innocence need not be ruled out. We reverse only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”). Accordingly, in evaluating the defendants’ claims of insufficiency, this Court’s
function ... 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.
Syl. pt. 1, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163. See also Syl. pt. 2, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (“When a criminal defendant undertakes a sufficiency challenge, all the evidence, direct and circumstantial, must be viewed from the prosecutor’s coign of vantage, and the viewer must accept all reasonable inferences from it that are consistent with the verdict. This rule requires the trial court judge to resolve all evidentiary conflicts and credibility questions in the prosecution’s favor; moreover, as among competing inferences of which two or more are plausible, the judge must choose the inference that best fits the prosecution’s theory of guilt.”).
With respect to the defendants’ first contention, we conclude that the evidence was sufficient to establish that the defendants possessed an intent to abuse the patient. To be found guilty of having willfully created an emergency situation for an incapacitated adult, the defendant must have had “the intent to abuse or neglect such adult.” W. Va.Code § 9-6-15(b) (1984) (Repl.Vol.1990) (emphasis added). “We have customarily stated that where the disjunctive ‘or’ is used, it ordinarily connotes an alternative between the two clauses it connects.” State v. Rummer, 189 W.Va. 369, 377, 432 S.E.2d 39, 47 (1993) (internal quotations and citations omitted). Thus, either an intent to abuse or an intent to neglect satisfies the statutory criteria.
W.Va.Code § 9-6-l(2) (1984) (Repl.Vol. 1998) defines “abuse” as “the infliction or threat to inflict physical pain or injury on or the imprisonment of any incapacitated adult.” From the evidence presented at trial, “any rational trier of fact could have found the essential elements of [‘abuse’] proved beyond a reasonable doubt.” Syl. pt. 1, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163. The evidence adduced at trial indicated that Easton and True responded to Hutts’ call for assistance and performed a “take down” ma- newer in order to calm the patient and regain supervisory control over him. In fact, the evidence suggested that such a “take down” was necessary given Hutts’ inability to control the patient’s violent and aggressive outburst by himself. However, the remainder of the evidence presented at trial does not support the defendants’ theory that they intended no harm to befall the patient and that they merely were attempting to protect the patient and others from further harm as a result of the patient’s actions. Not only did the defendants not stop their activities at simple physical restraint, but they proceeded to beat the patient, by striking him in the face and back, continuously for two and one-half hours. Furthermore, a reasonable person could have concluded that the defendants’ actions in cursing the patient and calling him names were not in furtherance of a purported attempt to guard him from further harm but were more likely an additional form of abuse by verbal means. Therefore, we find the evidence to have been sufficient “to convince a reasonable person of the defendant[s’] guilt beyond a reasonable doubt” of having an intent to abuse the patient, an incapacitated adult. See Syl. pt. 1, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163.
Similarly, in response to the defendants’ second contention that the patient, and not they, created the emergency situation into which the patient was placed on September 8, 1996, we find sufficient evidence from which the jury could have found that the defendants, themselves, were responsible for the creation of the emergency situation. W. Va.Code § 9 — 6—15(b) enjoins the willful creation of an emergency situation as follows: “[a]ny person having actual care, custody or control of an incapacitated adult who with the intent to abuse or neglect such adult willfully creates an emergency situation for an incapacitated adult, is guilty of a felony .... ” An “emergency situation” is “a situation or set of circumstances which presents a substantial and immediate risk of death or serious injury to an incapacitated adult.” W. Va.Code § 9-6-l(5). Therefore, the deliberate or intentional creation of circumstances posing a substantial and immediate risk of serious injury or death to an incapacitated adult fulfills the requisite elements of the applicable penal statute, § 9-6-15(b).
The trial evidence was sufficient to have permitted a “rational trier of fact [to] have found the essential elements of [‘willful creation of an emergency situation’] proved beyond a reasonable doubt.” Syl. pt. 1, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163. Viewing, as we must, the evidence in the light most favorable to the prosecution, ie., the State, we take pause at the State’s suggestion that there existed two emergency situations: one created by the patient upon his attempted flight and a second one created by the defendants in response to Hutts’ requests for assistance. While the jury arguably could have found that the patient created an emergency situation for himself by way of self-inflicted injuries, it is clear that there was created only one emergency situation as contemplated by the statute proscribing such conduct, W. Va.Code § 9-6-15(b), and that this emergency situation was created by the defendants.
The definition of the criminalized conduct contemplates the willful creation of an emergency situation for an incapacitated adult by a person who has the care, control, or custody of such adult and who has an intent to abuse or neglect said adult. Under the facts presented to the jury, a reasonable person could have found that the defendants, who were charged with the patient’s care, control, and physical custody, deliberately placed the patient in a position of substantial and immediate risk of serious injury or death. The continuous physical abuse of the patient, involving hitting and pummeling, which endured for two and one-half hours, severely threatened the patient’s health and welfare. Thus, because we find that the record contained sufficient evidence upon which a jury could have based them conclusions that the defendants willfully created an emergency situation for the patient, we conclude that the evidence was sufficient to support their convictions under W. Va.Code § 9-6-15(b).
D. Imposition of Sentence for Crimes Committed under Foimer W. Va.Code § 9-6-15(b) (198U) (Repl.Vol.1990)
Next, the defendants assert that because W. Va.Code § 9-6-15(b) (1984) (Repl. Vol.1990) was repealed before the circuit court sentenced them for their convictions under this statute, the circuit court lacked the authority to punish them for a crime that no longer existed in the law of this State. Although the Legislature re-enacted a portion of former W. Va.Code § 9-6-15 in the new criminal statute, W. Va.Code § 61-2-29 (1997) (Eepl.Vol.1997), it failed to include in the new enactment the crime of willful creation of an emergency situation for an incapacitated adult. As the re-enactment of the remainder of former § 9-6-15 does not contain a savings clause, the defendants contend that the general savings clause contained in W. Va.Code § 2-2-8 (1923) (Repl.Vol.1994) governs the propriety of their sentences:
The repeal of a law, or its expiration by virtue of any provision contained therein, shall not affect any offense committed, or penalty or punishment incurred, before the repeal took effect, or the law expired, save only that the proceedings thereafter had shall conform as far as practicable to the laws in force at the time such proceedings take place, unless otherwise specially provided; and that if any penalty or punishment be mitigated by the new law, such new law may, with the consent of the party affected thereby, be applied to any judgment pronounced after it has taken effect.
(Emphasis added).
Since the defendants were not punished “before the repeal took effect,” referencing the general savings clause in W. Va.Code § 2-2-8, they argue that they cannot now be sentenced under a repealed statute, W. Va. Code § 9-6-15(b), that no longer has any force or effect. Furthermore, they urge that if the penalty for their crimes had been reduced, as opposed to the governing statute having been completely repealed, they would have received the benefit of the lesser penalties. Thus, they suggest that the complete repeal of § 9 — 6—15(b), the result of which is to establish no crime and no penalty for the defendants’ behavior, is the equivalent of a legislative reduction or mitigation of sentence for a crime continuing in existence, of which they should receive the benefit of commensurate sentencing. Finally, the defendants maintain that the Legislature’s decision to decriminalize the act of willfully creating an emergency situation for an incapacitated adult signifies that the Legislature no longer deems this conduct to be offensive. To now punish the defendants for behavior that is no longer intended to be criminal in nature, they insist, would, in essence, be contrary to the legislative intent to abrogate the penalties for such conduct.
Responding to the defendants’ assertions, the State maintains that W. Va.Code § 9-6-15(b) has not been absolutely repealed but that it has merely been amended and recodi-fied at W. Va.Code § 61-2-29. In this manner, the State claims that the language of § 61-2-29(c) is virtually identical to the terminology of former § 9-6-15(b) and contains the same penalties for the felony offense described therein. Substantively, the new statute requires the actual abuse or neglect of an incapacitated person as opposed to formerly requiring only the intent to do so. In addition, the new statute omits the requirement that an emergency situation have been created for the incapacitated adult, which, the State argues, primarily had the effect of increasing the scope of punishable conduct since an emergency situation, consisting of a “substantial and immediate risk of death or serious injury,” is no longer a prerequisite to a finding of criminal activity.
Lastly, the State represents that even if W. Va.Code § 9-6-15(b) is deemed to have been absolutely repealed, such a repeal would not insulate the defendants from sentencing for the crimes they committed under this statute when it was a part of the criminal law of this State. “The rule in West Virginia is that the statute in force at the time of the commission of an offense governs the character of the offense and, generally, the punishment prescribed thereby.” State ex rel. Arbogast v. Mohn, 164 W.Va. 6, 9, 260 S.E.2d 820, 822 (1979) (citations omitted). Citing also W. Va.Code § 2-2-8. As the defendants both committed the crime described in § 9-6-15(b) and were convicted of this offense prior to the repeal of this statute, the State maintains that it is evident from the law of this State announced in Arbogast and W. Va.Code § 2-2-8 that the defendants have not been relieved of their criminal liability for their § 9-6-15(b) offenses and that they may properly be punished in accordance with this former statute.
Reviewing the parties’ arguments on this matter, we conclude that the resolution of this issue is rather facile. The defendants are correct in their assertions that the general savings statute, W. Va.Code § 2-2-8 (1923) (Repl.Vol.1994), governs this situation because the repeal and re-enactment of former W. Va.Code § 9-6-15 (1984) (Repl.Vol. 1990) achieved- by current W. Va.Code § 61-2-29 (1997) (Repl.Vol.1997) does not contain a specific savings clause applicable to the offense of willful creation of an emergency situation for an incapacitated adult. To this end, W. Va.Code § 2-2-8 provides, in relevant part:
The repeal of a law ... shall not affect any offense committed, or penalty or punishment incurred, before the repeal took effect ... save only that the proceedings thereafter had shall conform as far as practicable to the laws in force at the time such proceedings take place, unless otherwise specially provided ....
Thus, W. Va.Code § 2-2-8 “operates to preserve prosecution of offenses committed under a repealed statute which have not reached final judgment[ ].” State ex rel. Arbogast v. Mohn, 164 W.Va. 6, 10, 260 S.E.2d 820, 823 (1979) (footnote added).
This Court has variously explained the function of W. Va.Code § 2-2-8 under circumstances involving the commission of a criminal offense proscribed by a penal statute that is later repealed or amended and reenacted before the case has reached final judgment. Governing our interpretation of the general savings clause is the recognition of the longstanding rule in this State that “[t]he statute in. force at the time of the commission of an offense governs the character of the offense, and generally the punishment prescribed thereby, unless, as provided by our statute, the defendant elects to be punished as provided in an amendment thereof.” Syl. pt. 4, State v. Wright, 91 W.Va. 500, 113 S.E. 764 (1922) (referencing Sec. 9, Chap. 13, W. Va.Code (Code 1913, sec. 338) (Main Vol.1914) ). Accord Arbogast, 164 W.Va. at 9, 260 S.E.2d at 822. See also State v. Wright, 91 W.Va. at 504, 113 S.E. at 766 (“The old law governs eases arising before an amended statute takes effect, unless otherwise ordered.” (citations omitted)). This Court has thus held that the general savings statute
declares the repeal or expiration of the law shall not affect the offense committed, nor the penalty or punishment imposed therefor, beyond variation of the procedure. The saving clause is not an exception of any offense, penalty or punishment from the operation of the act. None of them are to-be affected by the repeal or expiration. They all survive. But there is an exception or variation as to the procedure. In other words, the repeal or expiration affects nothing but the procedure ....
Carlton v. Herndon, 81 W.Va. 219, 220, 94 S.E. 131, 132 (1917) (interpreting Sec. 9, Chap. 13, W. Va.Code (Code 1913, sec. 338)). See also State v. Sanney, 91 W.Va. 477, 481, 113 S.E. 762, 764 (1922) (“[T]he offense if committed before the repeal is kept alive and also the penalty. The procedure alone is affected; it must conform to the new law as far as practicable.... It is the change in the procedure and not the elements of the offense which is affected by this section [Sec. 9, Chap. 13, W. Va.Code (Code 1913, sec. 338)].” (citation omitted)). More recently, we have reiterated this holding by stating that “[a]n amendment to a penal statute which redefines the offense does not affect the character of the offense under the former law when the offense was committed prior to the effective date of the amendment. W. Va.Code § 2-2-8.” Syl. pt. 1, State ex rel. Arbogast v. Mohn, 164 W.Va. 6, 260 S.E.2d 820.
In addition to having determined that the repeal or amendment of a penal statute does not change the nature or character of an offense committed before such repeal or amendment became effective, we also have announced that W. Va.Code § 2-2-8 specifically preserves the right of the State to prosecute an individual whose conduct was criminally prohibited at the time he/she engaged therein, even if the applicable penal statute is subsequently amended or repealed. “Insofar as the new law repeals the old, W. Va.Code § 2-2-8 preserves the right of prosecution and the characterization of the offense under the former law. This is the effect of the statute and the clear intent of the Legislature.” Arbogast, 164 W.Va. at 11, 260 S.E.2d at 823. “The penal part of the statute is clear. It maintains and keeps alive the old offense and penalty.” Carlton v. Herndon, 81 W.Va. at 221, 94 S.E. at 132 (explaining Sec. 9, Chap. 13, W. Va.Code (Code 1913, sec. 338)). Accordingly, if a criminal statute “ha[s] been repealed, an offense committed under it, before repeal thereof, would not be condoned nor forgiven.” State v. Tippens, 91 W.Va. 504, 506, 113 S.E. 751, 751 (1922) (citations omitted). Rather, the savings clause upholds “the right to punish for offenses committed under a repealed or expired law, before the repeal or expiration thereof.” Syl. pt. 1, in part, Carlton v. Herndon, 81 W.Va. 219, 94 S.E. 131.
Furthermore, our jurisprudence in this realm has declared that, where a criminal statute is amended or repealed after the commission of a violation thereof but before final judgment has been rendered, the penalties proscribed for the previously prohibited conduct remain viable guidelines for punishment. In this regard we have held that
[a] change in the definition and penalty of [a] crime is not a change in the procedure for the punishment thereof as is contemplated in See. 9, Chap. 13, Code, which provides that where a law is repealed, the offense committed or penalty or punishment incurred before the repeal took effect shall not be affected, save only that the proceedings thereafter had shall conform as far as practicable to the laws in force at the time such proceedings take place.
Syl. pt. 2, in part, State v. Sanney, 91 W.Va. 477, 113 S.E. 762. In other words, “[t]he penalties prescribed under the former law remain intact.” Arbogast, 164 W.Va. at 12, 260 S.E.2d at 824. Therefore,
[t]he offense would be punishable under the statute which was in force at the time it was committed. Even if it was held that the old law has been repealed by the new and latest act, the crime, if committed while the old law was in effect, would be punishable under the provisions of the old act, except that, with the consent of the accused, the punishment or penalty, in case mitigated by the later act may be applied.
State v. Sanney, 91 W.Va. at 479, 113 S.E. at 763 (applying Sec. 9, Chap. 13, W. Va.Code (Code 1913, sec. 338)).
This principle of preserving the punishment authorized at the time a penal statute has been violated is altered only insofar as the amended statute provides lesser or mitigated penalties for the same offense as that committed by the defendant. Under such circumstances, W. Va.Code § 2-2-8 contemplates “that if any penalty or punishment be mitigated by the new law, such new law may, with the consent of the party affected thereby, be applied to any judgment pronounced after it has taken effect.” Consistent with this statutory directive we have held that “[w]hen a general savings statute specifically provides for the application of mitigated penalties upon the election of the affected party, he is entitled to choose the law under which he wishes to be sentenced. W. Va.Code § 2-2-8.” Syl. pt. 2, State ex rel. Arbogast v. Mohn, 164 W.Va. 6, 260 S.E.2d 820.
In keeping with and clarifying our prior decisions, we therefore hold that when a criminal defendant is convicted of a crime and the penal statute defining the elements of the crime and prescribing the punishment therefor is repealed or amended after his/her conviction of the crime but before he/she has been sentenced therefor, the sentencing court shall apply the penalties imposed by the statute in effect at the time of the offense, except where the amended penal statute provides for lesser penalties. If the amended penal statute provides lesser penalties for the same conduct proscribed by the statute in effect at the time of the offense, the defendant shall have an opportunity to elect under which statute he/she wishes to be sentenced, consistent with the statutory mandate contained in W. Va.Code § 2-2-8 (1923) (Repl.Vol.1994) and our prior directive set forth in Syllabus point 2 of State ex rel. Arbogast v. Mohn, 164 W.Va. 6, 260 S.E.2d 820 (1979).
Applying these axioms to the facts of the instant appeal, we note that the portion of W. Va.Code § 9-6~15(b) that criminalized the willful creation of an emergency situation for an incapacitated adult was expressly repealed by the amendment and re-enactment of the remainder of § 9-6-15 in W. Va.Code § 61-2-29. See I Journal of House of Delegates of West Virginia, Seventy-third Legislature, Regular Session 1279, 1281 (1997) (characterizing alterations of W. Va.Code § 9-6-15 as a repeal of that section). See also W. Va.Code § 9-6-15 (1997) (Repl.Vol. 1998) (indicating repeal of W. Va.Code § 9-6-15); 1997 Acts of the Legislature of West Virginia, Regular Session, ch. 72, at 484 (same). As “[t]he criminality of [the defendants’] actions attached at the time they were performed, under the statute then in effect,” Arbogast, 164 W.Va. at 11, 260 S.E.2d at 823, the then-applicable criminal statute, W. Va.Code § 9-6-15(b) (1984) (Repl.Vol. 1990), governs the nature of the defendants’ convictions and punishments for their prohibited conduct of September 8,1996.
The defendants do not specifically complain of the propriety of their convictions under this section, so this matter requires no further discussion other than an acknowledgment that they were properly convicted pursuant to the statute in effect at the time they committed their criminal transgressions. However, the defendants do argue that their sentences pursuant to W. Va.Code § 9-6-15(b) are improper given the Legislature’s repeal of this penal statute prior to the imposition of such sentences. These arguments, though, are without merit and completely ignore our jurisprudential history which recognizes that not only may an individual be convicted of a crime in accordance with the criminal statute in effect at the time of his/ her offense, but he/she may also be sentenced in conformity with the same criminal statute found to be applicable. Consistent with our holding and our prior precedents in this field, we find that the circuit court properly imposed upon the defendants those sentences authorized by W. Va.Code § 9-6-15(b) (1984) (Repl.Vol.1990) for the willful creation of an emergency situation for an incapacitated adult as this penal statute was in effect and governed the defendants’ behavior at the time of their commission of the crimes of which they have been convicted.
E. Double Jeopardy
Finally, the defendants complain that their convictions for battery and willful creation of an emergency situation, where both offenses arose from the same incident and involved the same victim, constituted a violation of their double jeopardy rights since they received two punishments for a single offense. “The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution_prohibits multiple punishments for the same offense.” Syl. pt. 1, in part, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977) (emphasis added by the defendants). Citing also U.S. Const, amend. V (“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb_”).
In determining whether multiple punishments have, in fact, been unjustifiably imposed, the defendants claim it is necessary to determine whether the Legislature intended the forbidden conduct to be punishable under the several applicable statutes or if it was intended that only one statute would determine the punishment for the prohibited conduct. Citing Garrett v. United States, 471 U.S. 773, 778-79, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764, 771 (1985). “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.” Syl. pt. 8, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 (1983). Where, however, the legislative intent is clear, the defendants suggest the foregoing test need not be applied. Citing generally Syl. pt. 5, in part, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996) (“[I]f two statutes contain identical elements of proof, the presumption is that double jeopardy principles have been violated unless there is a clear and definite statement of intent by the Legislature that cumulative punishment is permissible.”). Under the facts of this case, the defendants argue that, in the absence of a “clear and definite statement of intent,” the Legislature intended but one punishment for the conduct which it prohibited via multiple statutory enactments, i.e., W. Va.Code § 9-6-15(b) (1984) (Repl.Vol.1990), willful creation of an emergency situation, and W. Va.Code § 61-2-9(e) (1978) (Repl.Vol. 1997), battery.
Contrariwise, the State maintains that the multiple convictions and consequent sentences imposed upon each defendant did not violate their double jeopardy rights because battery is not a lesser included offense of willful creation of an emergency situation and because each of these offenses have elements which the other does not. The State claims that the primary focus when determining whether multiple punishments for the same offense offend double jeopardy principles is to ascertain the legislative intent regarding the intended punishment(s) for the crime. Syl. pt. 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).
In ascertaining legislative intent, a court should look initially at the language of the involved statutes and, if necessary, the legislative history to determine if the legislature has made a clear expression of its intention to aggregate sentences for related crimes. If no such clear legislative intent can be discerned, then the court should analyze the statutes under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether each offense requires an element of proof the other does not. If there is an element of proof that is different, then the presumption is that the legislature intended to create separate offenses.
Syl. pt. 8, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253. Citing also State v. Sears, 196 W.Va. at 82, 468 S.E.2d at 335 (“Absent evidence to the contrary, it is presumed the Legislature did not intend to punish the same offense under two statutes.” (citation omitted)).
In this regard, the State contends that battery is not a lesser included offense of willful creation of an emergency situation because the difference in the requisite elements of these two offenses makes it possible to willfully create an emergency situation without having committed battery. “Battery,” as defined in W. Va.Code § 61-2-9(c) (1978) (Repl.Vol.1997), prohibits “any person [from] unlawfully and intentionally mak[ing] physical contact of an insulting or provoking nature with the person of another or unlawfully and intentionally eaus[ing] physical harm to another person .... ” By contrast, “willful[ ] creation of] an emergency situation for an incapacitated adult,” the crime delineated by W. Va.Code § 9-6-15(b) (1984) (Repl.Vol.1990), proscribes “[a]ny person having actual care, custody or control of an incapacitated adult who [has] the intent to abuse or neglect such adult [from] willfully creating] an emergency situation for [the] incapacitated adult.” In other words, the elements of proof for battery are separate and distinct from the elements of proof for willful creation of an emergency situation.
Moreover, the State indicates that the clear legislative intent authorizes multiple punishments to be imposed for the same offense given the differing elements of proof required for battery and willful creation of an emergency situation. Fust, battery requires actual physical contact or harm, whereas willful creation of an emergency situation requires neither physical contact nor physical harm, but does require the intent to threaten or to inflict such harm and the placement of the incapacitated adult in a situation posing a substantial risk of such harm. Additionally, willful creation of an emergency situation contains elements of proof not found in the definition of battery: the perpetrator must be the custodian of an incapacitated adult, the victim must be said incapacitated adult, and the perpetrator must create an emergency situation for the victim, thereby engendering “a substantial risk of death or serious injury” to the victim. Given the differing components of each of the crimes of which the defendants were convicted and for which they were sentenced, the State urges that there was no violation of their double jeopardy rights.
Typically, we review de novo assignments of error which raise double jeopardy considerations. Syl. pt. 1, in part, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324 (1996). Applying this standard to the contentions of the defendants, we are unable to discern any legal or factual support for their assertions that they have twice been placed in jeopardy for the same offense by virtue of their simultaneous convictions of and concurrent sentences for willful creation of an emergency situation and battery.
The Double Jeopardy Clause is contained in the Fifth Amendment to the United States Constitution and provides that no “person [shall] be subject for the same offense to be twice put in jeopardy of life or limb .... ” U.S. Const, amend. V. A key function of this Clause is to protect criminal defendants from receiving multiple punishments for the same offense. See Syl. pt. 1, in part, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992) (“The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution .... protects against multiple punishments for the same offense.”). In Syllabus point 3 of State v. Gill, we acknowledged that this federal mandate is imposed upon the states through the operation of the Fourteenth Amendment to the United States Constitution : “In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the United States Supreme Court held that the Fifth Amendment constitutional guarantee against double jeopardy was binding on the states through the Fourteenth Amendment to the United States Constitution.” 187 W.Va. 136, 416 S.E.2d 253. Notwithstanding these federal protections, the Constitution of this State also protects a criminal defendant from twice being placed in jeopardy for the same offense. See W. Va. Const, art. Ill, § 5 (“[N]or shall any person, in any criminal case, ... be twice put in jeopardy of life or liberty for the same offence.”); Syl. pt. 1, in part, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977) (“The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution .... prohibits multiple punishments for the same offense.”).
Primarily, “[t]he purpose of the Double Jeopardy Clause is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments.” Syl. pt. 3, State v. Sears, 196 W.Va. 71, 468 S.E.2d 324. In other words, “[t]he double jeopardy bar against multiple punishments is to prohibit judges from imposing more penalty than the legislature has sanctioned.” State v. Myers, 171 W.Va. 277, 280, 298 S.E.2d 813, 816 (1982) (citation omitted). See also State v. Gill, 187 W.Va. at 141, 416 S.E.2d at 258 (“ With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.’ ” (quoting Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535, 542 (1983))).
Consequently, “ ‘[[t]]he question of what punishments are constitutionally permissible is not different from the question of what punishment[s] the Legislative Branch intended to be imposed. Where ... [the Legislature] intended ... to impose multiple punishments, imposition of such sentences does not violate ... [double jeopardy].’ ” State v. Sears, 196 W.Va. at 80, 468 S.E.2d at 333 (quoting Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275, 285 (1981) (footnote omitted)) (brackets in original). Thus, “[a] claim that double jeopardy has been violated based on multiple punishments imposed after a single trial is resolved by determining the legislative intent as to punishment.” Syl. pt. 7, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253.
The discernment of this legislative intent is a multi-faceted process.
In ascertaining legislative intent, a court should look initially at the language of the involved statutes and, if necessary, the legislative history to determine if the legislature has made a clear expression of its intention to aggregate sentences for related crimes. If no such clear legislative intent can be discerned, then the court should analyze the statutes under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether each offense requires an element of proof the other does not. If there is an element of proof that is different, then the presumption is that the legislature intended to create separate offenses.
Syl. pt. 8, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253. See also Syl. pt. 4, State v. Gill, id. (“ ‘[WJhere 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 a fact which the other does not.’ Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932) [ (citation omitted) ].”); Syl. pt. 8, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 (1983) (same). “Once the determination is made that statutory offenses are separate under the Blockburger test by virtue of the fact that each provision requires proof of an additional fact which the other does not, then multiple punishments are appropriate.” State v. Zaccagnini, 172 W.Va. at 502, 308 S.E.2d at 142.
With respect to the criminal statutes at issue in this appeal, we cannot ascertain a clear legislative intent to permit multiple sentences for the same offense from either W. Va.Code § 61-2-9(c), defining battery, or W. Va.Code § 9-6-15(b), establishing the crime of willful creation of an emergency situation for an incapacitated adult. Thus, pursuant to Syllabus point 8 of State v. Gill, 187 W.Va. 136, 416 S.E.2d 253, we must scrutinize the individual penal statutes involved to determine whether multiple punishments are indeed appropriate. The inquiry here relevant is “whether each offense requires an element of proof the other does not.” Id. Examining this statutory language, we agree with the arguments advanced by the State in this regard and find that the crimes of battery and willful creation of an emergency situation are indeed separate and distinct offenses as evidenced by their different elements of proof.
For example, the crime of battery requires direct physical contact with or actual physical harm to another individual. See W. Va.Code § 61-2-9(c). By contrast, such physical contact or physical harm are not elements of the crime of willful creation of an emergency situation. See W. Va.Code § 9 — 6—15(b). Moreover, willful creation of an emergency situation requires the involvement of particular actors to constitute this specific offense: the perpetrator must be “[a]ny person having actual care, custody or control of an incapacitated adult” and the victim must be said “incapacitated adult.” § 9 — 6—15(b). Contrariwise, battery requires no special individuals to satisfy the elements of its offense. § 61-2-9(c). Therefore, the plain language of the two relevant penal statutes clearly indicates that the defendants were convicted of and sentenced for two distinct criminal offenses. While both crimes arose from the same factual context, the elements of the crimes are so different as to compel the conclusion that they are separate and distinct offenses.
III.
CONCLUSION
“ ‘A verdict of guilty in a criminal case consistent with a reasonable interpretation of the evidence and circumstances proved will not be disturbed by this Court.’ Point 6, Syllabus, State v. Bailey, 151 W.Va. 796[, 155 S.E.2d 850 (1967)].” Syl. pt. 2, State v. Knotts, 156 W.Va. 748, 197 S.E.2d 93 (1973). Having found no factual or legal errors warranting the reversal of these cases, we affirm the September 11, 1997, sentencing orders of the Circuit Court of Hampshire County upholding the defendants’ convictions of and sentences for battery and willful creation of an emergency situation for an incapacitated adult.
Affirmed.
. Defendant True is defendant Easton’s step-son.
. Throughout his stays at both Concord and the predecessor home, the patient received various medications, in varying amounts, in an attempt to control or temper his anger and violent tendencies. However, it appears that, at Concord, the patient was not heavily sedated as he had been at the prior care facility. It also has been reported that, upon his arrival at Concord, the patient exhibited a black eye and various bruises, which he had sustained while housed at the prior facility.
. The Concord facility is comprised of an administration building, classroom facilities, and four group homes. Each group home houses approximately ten patients. Several house counselors are assigned to each home to assist the residents with their care and activities of daily living.
. Concord, not being a secured facility, does not permit the use of chemical restraints, mechanical restraints, or "lock-downs” (isolating an uncontrollable patient in a locked room) to handle excessively aggressive patients. Thus, despite the patient's alleged repeated requests for medication to control his outburst, none of the house counselors was authorized to administer additional medications, above the patient's prescribed daily doses, to control his violent behavior.
. It appears from the record evidence that the third house counselor also was criminally charged for his involvement in inflicting the patient’s injuries during the incident of September 8, 1996. He pled no contest to the offense of willful creation of an emergency situation for an incapacitated adult and was sentenced for this crime. See infra note 7 defining crime of willful creation of an emergency situation.
. W. Va.Code § 61-2-9(a) (1978) (Repl.Vol. 1997), describing malicious or unlawful assault, directs:
If any person maliciously shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disfigure, disable or kill, he shall, except where it is otherwise provided, be guilty of a felony, and, upon conviction, shall be punished by confinement in the penitentiary not less than two nor more than ten years. If such act be done unlawfully, but not maliciously, with the intent aforesaid, the offender shall be guilty of a felony, and, upon conviction, shall, in the discretion of the court, either be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding twelve months and fined not exceeding five hundred dollars.
. The crime of willfully creating an emergency situation for an incapacitated adult, set forth in W. Va.Code § 9-6-15(b) (1984) (Repl.Vol.1990), provides:
Any person having actual care, custody or control of an incapacitated adult who with the intent to abuse or neglect such adult willfully creates an emergency situation for an incapacitated adult, is guilty of a felony, and, upon conviction thereof, shall, in the discretion of the court, be confined in the penitentiary for not less than two nor more than ten years or be confined in the county jail for not more than twelve months and fined not more than fifteen hundred dollars.
. W. Va.Code § 61-2-9(c) (1978) (Repl.Vol. 1997), which defines the crime of misdemeanor battery, states:
If any person unlawfully and intentionally makes physical contact of an insulting or provoking nature with the person of another or unlawfully and intentionally causes physical harm to another person, he shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail for not more than twelve months, or fined not more than five hundred dollars, or both such fine and imprisonment.
The defendants’ convictions of battery under § 61-2-9(c), as opposed to the indictment charges of § 61-2-9(a) malicious or unlawful assault, were permitted because battery is a lesser included offense of malicious or unlawful assault. See Syl. pt. 1, State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982) (" 'The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense. An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense.’ Syllabus Point 1, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981).”), and compare W. Va.Code § 61 — 2— 9(c) (1978) (Repl.Vol. 1997) (defining battery) with W. Va.Code § 61-2-9(a) (1978) (Repl.Vol. 1997) (defining malicious or unlawful assault). See, e.g., State v. Crabtree, 198 W.Va. 620, 625, 482 S.E.2d 605, 610 (1996) (recognizing battery as a lesser included offense of sexual assault).
. The effect of the statutory repeal of W. Va.Code § 9-6-15 upon the defendants’ convictions and consequent sentences will be discussed more fully in Section II.D., infra.
. W. Va.Code § 61-2-29 (1997) (Repl.Vol. 1997) mandates, in pertinent part:
(c) Any care giver who intentionally abuses or neglects an incapacitated adult is guilty of a felony and, upon conviction thereof, shall, in the discretion of the court, be confined in the penitentiary for not less than two nor more than ten years or be confined in the county jail for not more than twelve months and fined not more than fifteen hundred dollars.
This law went into effect ninety days from its April 8, 1997, date of passage. 1997 Acts of the Legislature of West Virginia, Regular Session, ch. 72, at 484.
. Our determination of the defendants' assignments of error challenging the sufficiency of the evidence and alleging the violation of double jeopardy principles involves substantially the same considerations as those raised by their assertions that the doctrines of lenity and specificity govern their appeals and that battery is a lesser included offense of willful creation of an emergency situation. Therefore, we decline as duplicitous further discussion of the lenity/speci-ficity and lesser included offense arguments.
. We will incorporate more specific standards of review, where appropriate, in our discussion of the defendants’ various assignments of error. See infra Sections II.C. and II.E.
.The Due Process Clause of the United States Constitution directs that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law .... ” U.S. Const, amend. V. Similarly, the West Virginia Constitution contains a Due Process Clause that provides "[n]o person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers.” W. Va. Const, art. Ill, § 10.
. In support of their argument that W. Va.Code § 9-6-15(b) (1984) (Repl.Vol.1990) is unconstitutional, the defendants also contend, without authority, that in repealing § 9-6-15, the House Judiciary Committee determined the statute to be "too ambiguous and vague.” This argument is not persuasive, however, as the determination of a statute’s constitutionality is traditionally within the province of the Court, and not the Legislature. See Kanawha County Pub. Library v. County Court of Kanawha County, 143 W.Va. 385, 391, 102 S.E.2d 712, 716 (1958) ("[T]he principle was long ago established that the determination of whether á legislative act was in conflict with a constitutional provision was a question to be determined by the judicial branch of the government.”) (citing Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803)). See also State ex rel. Armbrecht v. Thornburg, 137 W.Va. 60, 72, 70 S.E.2d 73, 80 (1952) ("[T]he Court is charged with the solemn duty of determining what acts of the Legislature are constitutional, and what acts have been passed by the Legislature in conformity with the demands of the Constitution, when such questions are properly presented to the Court.”); Price v. City of Moundsville, 43 W.Va. 523, 525, 27 S.E. 218, 219 (1897) ("The Constitution of this State ... imposes on the judiciary the duty of deciding the constitutionality of a law ...."); 17 Michie’s Jurisprudence Statutes § 27, at 345 (Repl.Vol.1994) (1994) ("The constitutionality of a statute is a question for the court.” (footnote omitted)).
. W. Va.Code § 9-6-1 (1984) (Repl.Vol.1998) defines the following terms employed by W. Va. Code § 9-6-15(b):
(2) "Abuse” shall mean the infliction or threat to inflict physical pain or injury on or the imprisonment of any incapacitated adult;
(3) "Neglect” shall mean (i) the failure to provide the necessities of life to an incapacitated adult with intent to coerce or physically harm such incapacitated adult or (ii) the unlawful expenditure or willful dissipation of the funds or other assets owned or paid to or for the benefit of an incapacitated adult;
(4) "Incapacitated adult” shall mean any person who by reason of physical, mental or other infirmity is unable to independently carry on the daily activities of life necessary to sustaining life and reasonable health;
(5) "Emergency” or "emergency situation” shall mean a situation or set of circumstances which presents a substantial and immediate risk of death or serious injury to an incapacitated adult.
. See supra note 13 quoting Due Process Clauses of United States and West Virginia Constitutions.
. We note that our finding of constitutionality with respect to W. Va.Code § 9-6-15(b) (1984) (RepI.Vol.1990) is limited to this particular statutory enactment that was in effect at the time defendants Easton and True perpetrated the crimes of which they were convicted. We render no decision as to whether subsequent amendments to or reenactments of this statute are constitutional.
. See supra note 7 for the text of W. Va.Code § 9 — 6—15(b), defining the crime of willful creation of an emergency situation for an incapacitated adult.
.The State also contends that the record evidence is replete with eyewitness testimony from which a jury could have found sufficient evidence with which to convict the defendants of battery. As the defendants do not challenge on appeal the sufficiency of the evidence supporting their battery convictions, we decline further to address this argument. See State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996) ("Although we liberally construe briefs in determining issues presented for review, issues which are not raised, and those mentioned only in passing but [which] are not supported with pertinent authority, are not considered on appeal.” (citation omitted)).
. See supra note 10 for the text of W. Va.Code § 61-2-29(c) (1997) (Repl.Vol.1997).
. See supra note 7 for the text of W. Va.Code § 9-6-15(b) (1984) (Repl.Vol.1990).
. "[A] final judgment ... is one which disposes of the whole subject, ... provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the judgment .... ” 11A Michie's Jurisprudence Judgments and Decrees § 7, at 64-65 (Repl.Vol. 1997) (footnote omitted). "All judgments ... become final at the expiration of the term in which they are entered or after entry thereof in vacation.” Syl. pt. 1, in part, Pyles v. Coiner, 152 W.Va. 473, 164 S.E.2d 435 (1968). See also State v. Ludwig, 102 W.Va. 363, 365, 135 S.E. 277, 278 (1926) ("Th[e] sentence [pronounced] becomes final at the end of the term at which it is declared.”).
. Sec. 9, Chap. 13, W. Va.Code (Code 1913, sec. 338) (Main Vol.1914) is the predecessor to this State’s current general savings statute set forth in W. Va.Code § 2-2-8 (1923) (Repl.Vol.1994). As the language of these two provisions is virtually identical, subsequent references to Sec. 9, Chap. 13, W. Va.Code (Code 1913, sec. 338) will pertain also to W. Va.Code § 2-2-8. Compare Sec. 9, Chap. 13, W. Va.Code (Code 1913, sec. 338) (Main Vol.1914) ("The repeal of a law, or its expiration by virtue of any provision contained therein, shall not affect any offense committed, or penalty or punishment incurred before the repeal took effect, or the law expired, save only, that the proceedings thereafter had, shall conform as far as practicable to the laws in force at the time such proceedings take place, unless otherwise specially provided; and that if any penalty or punishment be mitigated by the new law, such new law may, with the consent of the party affected thereby, be applied to any judgment pronounced after it has taken effect.”) with W. Va.Code § 2-2-8 (1923) (Repl.Vol. 1994) ("The repeal of a law, or its expiration by virtue of any provision contained therein, shall not affect any offense committed, or penalty or punishment incurred, before the repeal took effect, or the law expired, save only that the proceedings thereafter had shall conform as far as practicable to the laws in force at the time such proceedings take place, unless otherwise specially provided; and that if any penalty or punishment be mitigated by the new law, such new law may, with the consent of the party affected thereby, be applied to any judgment pronounced after it has taken effect.”).
. While our holding today, W. Va.Code § 2-2-8, and our prior holding in Syllabus point 2 of State ex rel. Arbogast v. Mohn, 164 W.Va. 6, 260 S.E.2d 820 (1979), permit a defendant to elect between punishments when amendments to a penal statute reduce the penalties that may be imposed, we find that no such right of election existed in the underlying proceedings. First, the applicable penal statute, W. Va.Code § 9-6-15(b) (1984) (Repl.Vol.1990), was completely repealed by the subsequently-enacted law, W. Va.Code § 61-2-29. Second, even if it could be argued that the amended and re-enacted penal statute, W. Va. Code § 6 l-2-29(c), retained an offense similar to that prohibited by W. Va.Code § 9-6-15(b), the penalties provided for both the § 9 — 6—15(b) offense and the § 61-2-29(c) offense are identical, i.e., they both provide alternative punishment by way of (1) a two to ten year indeterminate sentence in the West Virginia State Penitentiary or (2) a county jail term of not more than twelve months plus a fine of not more than fifteen hundred dollars. See W. Va.Code §§ 9 — 6—15(b) and 61-2-29(c).
. The Double Jeopardy Clause also provides two other forms of protection to criminal defendants, neither of which are pertinent to the discussion of the defendants’ assignments of error herein. See Syl. pt. 1, in part, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992) ("The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution .... protects against a second prosecution for the same offense after acquittal. It [also] protects against a second prosecution for the same offense after conviction.”).
. The Fourteenth Amendment provides, in relevant part:
All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State where they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const, amend. XIV, § 1.
. As with the federal Double Jeopardy Clause, the West Virginia counterpart also contains additional protections which are not relevant to the instant appeal. See Syl. pt. 1, in part, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977) ("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 [also] protects against a second prosecution for the same offense after conviction.”). | [
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PER CURIAM:
Charles C. Little, the appellant in this proceeding, claims that the Circuit Court of Randolph County erred in denying his motion to set aside a judgment, or in the alternative, to grant him a new trial, in an assault and battery action instituted by Bruce Wayne Vanscoy. In the motion to set aside the judgment, the appellant claimed that he had not properly been served with a copy of the summons and complaint instituting the action and that the Circuit Court of Randolph County thus lacked jurisdiction to entertain it.
FACTUAL BACKGROUND
On September 29,1995, Bruce Wayne Van-scoy filed a complaint in the Circuit Court of Randolph County in which he alleged that the appellant and three other individuals, Michael Glen Anger, Charles C. Gear, and Scott Alan Godwin had assaulted, battered, and injured him on October 9,1993.
The memorandum which was submitted with the complaint stated that the appellant’s address was Rt. 7, Box 435A, Fairmont, West Virginia. At the time the appellant did not live at that address, which was the address of his parents, but had lived out of state since March, 1995. The Sheriff, nonetheless, attempted to serve the appellant by leaving copies of the summons and complaint with the appellant’s mother.
Following the attempted service, the appellant’s attorney, by letter dated October 6, 1995, notified Mr. Vanscoy’s attorney and the Circuit Clerk of Randolph County of the appellant’s non-residency in West Virginia. In response, Mr. Vanscoy’s attorney attempted to serve the appellant by making service on his attorney. The appellant’s attorney responded by letter dated October 11, 1996, which stated: “[M]y representation of [the appellant] is limited and I am not authorized to except [sic] service of process on his behalf. I must insist that you satisfy the requirements of Rule 4 if you wish for Mr. Little to be properly served.”
Subsequently, Mr. Vanscoy’s attorney filed an affidavit with the Circuit Court of Randolph County requesting that the County Clerk of that county issue an Order of Publication. In the affidavit, the attorney indicated that the prior service in the case had “been returned without being executed .... ”
As development of the case proceeded against the other defendants, copies of the pleadings and correspondence were sent to the appellant’s attorney, and the appellant’s attorney initialed an Amended Scheduling-Order which was entered on September 30, 1996.
On February 14, 1997, Mr. Vanscoy’s attorney moved for a default judgment against the appellant and served appellant’s attorney with a copy of the motion via fax. On the same day, the circuit judge’s office contacted the appellant’s attorney’s office and indicated that a hearing on the motion for default judgment would be conducted on February 18,1997, at 8:00 a.m.
The appellant’s attorney had another hearing on February 18, 1997, and contacted the circuit court and complained that he had not had adequate notice of the hearing. Subsequently, Mr. Vanscoy’s attorney and the appellant’s attorney agreed to submit a joint motion for continuance and an agreed amended scheduling order. That motion was reduced to writing, and the appellant’s attorney signed above a signature line indicating that his status was “Counsel for Charles Little” (the appellant). The circuit court granted the motion.
In spite of this, the case was brought on for bench trial on February 18, 1997, and at the conclusion of that trial, the court rendered judgment for Mr. Vanscoy against the appellant and awarded him $100,000, plus interest and costs.
On February 26, 1997, prior to entry of a final judgment order, the appellant’s attorney appeared and moved, pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure to set aside the judgment. In the alternative, he moved for a new trial. After conducting a hearing, the trial court denied the motions.
In the present proceeding, the appellant claims that the circuit court erred in denying his motion to set aside the judgment or, in the alternative, to grant him a new trial.
BURDEN OP PROOF
This Court has recognized that:
“ ‘A motion to vacate a judgment made pursuant to Rule 60(b), W.Va.R.C.P., is addressed to the sound discretion of the court and the court’s ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion.’ Syl. pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).” Syl. pt. 1, Jackson General Hospital v. Davis, 195 W.Va. 74, 464 S.E.2d 593 (1995).
Syllabus Point 1, Nancy Darlene M. v. James Lee M., 195 W.Va. 153, 464 S.E.2d 795 (1995).
DISCUSSION
As previously indicated, the appellant claims that he was not properly served with the document instituting this action and that, as a consequence, the circuit court lacked jurisdiction to enter summary judgment for Bruce Wayne Vanscoy.
While proper service of process is ordinarily necessary to confer jurisdiction upon a circuit court, this Court has recognized that if a party who has not received proper service of process, appears generally in an action, that is, appears for any reason other than to contest the jurisdiction of the court, that party, by his general appearance, waives any claim regarding the defective service. Lemley v. Barr, 176 W.Va. 378, 343 S.E.2d 101 (1986), and Manypenny v. Graham, 149 W.Va. 56, 138 S.E.2d 724 (1964).
In the present case, it appears that the appellant appeared, by counsel, not only to contest the lack of proper service of process, but also to consent to the scheduling of certain matters and to move for a joint continuance.
In Syllabus Point 5 of Lemley v. Barr, supra, this Court stated:
“At [sic] an appearance in a suit or action for any purpose other than to question the jurisdiction of the court, or to set up a lack of process, or defective service is a general appearance.” Syl. Pt. 1, Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944).
The appellant’s attorney rather clearly did appear for matters other than to challenge the jurisdiction of the court when he agreed to the scheduling matters and jointly moved for a continuance. In so doing, he appeared generally, and through his action, the appellant, under the principles in Lemley v. Barr, supra, and Manypenny v. Graham, supra, waived his challenge to the jurisdiction of the court.
As previously stated, a motion to set aside a judgment is addressed to the sound discretion of the trial court. Here, where the circumstances indicated that the appellant’s attorney appeared generally and waived his challenge to the jurisdiction of the court, this Court does not believe that the trial judge abused his discretion by refusing to set aside the judgment and award the appellant a new trial.
The judgment of the Circuit Court of Randolph County is, therefore, affirmed.
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PER CURIAM:
The insurance coverage dispute in this case comes to the Court as a certified question from the United • States District Court for the Northern District of West Virginia. The District Court has certified a two-part question to this Court. As discussed below, based upon the factual situation presented by the District Court, we answer both parts of the question in the negative.
I.
Beginning in May 1990, the defendant below, Frank Bell began purchasing automobile insurance coverage from the plaintiff below, Westfield Insurance Company (“Westfield”). Since 1990, Mr. Bell has maintained single-limit liability coverage of $500,000.00, and underinsured motorist coverage of $100,-000.00.
This case involves W.VaCode, 33-6-31d [1993], a statute passed by the legislature and made effective on April 10, 1993. That statute required the insurance commissioner to create a form for insurance companies to follow in making offers of optional underin-sured motorist coverage to new and existing policyholders. W.Va.Code, 33-6-31d(c) [1993] required insurance companies to mail (or otherwise deliver to) all persons who were already policyholders on the effective date of the statute a copy of the insurance commissioner’s form, and the policyholder was to be allowed 30 days to complete and return the form. If the policyholder failed to return the form within 30 days, W.Va.Code, 33-6-31d [1993] creates a presumption that the policyholder received an effective offer of coverage and made a knowing and intelligent rejection of the offer.
In July 1993, pursuant to W.Va.Code, 33-6 — 31d, the West Virginia Insurance Commissioner issued “West Virginia Informational Letter No. 88,” and the parties stipulated that Westfield received this form sometime during or after July 1993. Informational Letter No. 88 specifies the form that insurance carriers are required to use in making offers of optional uninsured and underin-sured coverage.
In May 1993, between the time W.Va.Code, 33-6-31d became effective and July 1993 when the Insurance Commissioner issued Informational Letter No. 88, Westfield mailed the defendant a four-page form offer giving Mr. Bell the option to purchase underinsured motorist coverage. The form defined under-insured motorist coverage, allowed the defendant to check a box indicating the level of coverage he desired, and stated the cost of that coverage. The form indicated that the defendant could purchase $500,000.00 in un-derinsured motorist coverage for a price of $50.00 for the first car, and $49.00 for each car thereafter. The May 1993 form also states that if the defendant:
FAIL[ED] TO COMPLETE, SIGN AND RETURN THIS FORM, FAILURE WILL INDICATE TO U.S. THAT YOU HAVE MADE A KNOWING AND INFORMED DECISION TO RETAIN THE COVERAGES AND LIMITS OF COVERAGE CURRENTLY SHOWN ON YOUR DECLARATIONS PAGE FOR BOTH UNINSURED MOTORISTS COVERAGE AND UNDERINSURED MOTORISTS COVERAGE.
The defendant never completed, signed and returned this form to Westfield. Therefore, his underinsured motorist coverage remained at $100,000.00, the amount he purchased the previous years. In 1994 and again in 1995 Westfield mailed Mr. Bell additional forms suggesting that he could purchase up to $400,000.00 underinsured coverage — an amount less than his $500,000.00 liability policy. Mr. Bell failed to return the form in either year, and thereby retained his $100,-000.00 underinsured coverage.
On July 30, 1995, the defendant and his wife were involved in an automobile accident. The accident resulted in severe injuries to Mr. Bell, and the death of his wife, Betty Bell. The parties agree that the damages sustained by Mr. Bell on his own behalf and ' on behalf of his wife’s estate will exceed the available liability insurance from the tortfea-sor.
II.
On July 1, 1996, plaintiff Westfield filed a declaratory judgment action against Mr. Bell in the United States District Court for the Northern District of West Virginia. After discovery by the parties, the District Court certified the following two-part question to this Court:
When an insurer does not use a form required by West Virginia Code § 33-6-31d (April 1993), published, but not formally adopted, by the West Virginia Insurance Commissioner, to offer its insured the same underinsured motorist coverage limit as his $500,000.00 single limit of liability insurance, does the insured have $500,-000.00 of underinsured motorist coverage by operation of law or is the insurer permitted to litigate the issue of a commercially reasonable offer under the Bias decision?
As discussed below, we answer both parts of the question in the negative.
This case concerns whether the insurance company made a commercially reasonable offer of underinsured motorist coverage to its policyholder. When a consumer purchases an automobile liability insurance policy in West Virginia, W.Va.Code, 33-6-31 [1988] requires the insurance carrier to offer the consumer the option to also purchase underin-sured motorist insurance coverage up to the dollar limits of his liability insurance. In Bias v. Nationwide Mut. Ins. Co., 179 W.Va. 125, 365 S.E.2d 789 (1987), we held that the insurance carrier bears the burden of proving that a commercially reasonable offer of underinsured coverage was made to the consumer. If the insurance carrier fails to introduce sufficient proof of a commercially reasonable offer, then underinsured motorist coverage in an amount, equal to the limits of liability coverage is automatically included in the insurance policy.
We stated in Syllabus Points 1 and 2 of Bias:
1. Where an offer of optional coverage is required by statute, the insurer has the burden of proving that an effective offer was made, and that any rejection of said offer by the insured was knowing and informed.
2. When an insurer is required by statute to offer optional coverage, it is included in the policy by operation of law when the insurer fails to prove an effective offer and a knowing and intelligent rejection by the insured.
We made it clear in Bias that the “commercially reasonable offer” made by the insurance company must be made “so as to provide the insured with adequate information to make an intelligent decision. The offer must state, in definite, intelligible, and specific terms, the nature of the coverage offered, the coverage limits, and the costs involved.” 179 W.Va. at 127, 365 S.E.2d at 791 (citations omitted).
Defendant Bell argues that this case hinges on W.Va.Code, 33-6-31d [1993], and its requirement that insurance carriers make a commercially reasonable offer as required by Bias by using a form “prepared and made available by the insurance commissioner.” In this case, the insurance carrier made an offer in May 1993, one month after W.Va. Code, 33-6-31d became effective, but 2 months before the insurance commissioner prepared and made available the required form. The defendant argues that even though the insurance carrier did offer the defendant $500,000.00 in underinsured motorist coverage as required by statute, that offer is invalid because it did not follow the statutorily prescribed form.
We disagree with the defendant’s argument. Our decision in Bias only required that the offer state, “in definite, intelligible, and specific terms, the nature of the coverage offered, the coverage limits, and the costs involved.” Until July 1993, when the insurance commissioner issued Informational Letter No. 88, Bias was the only controlling guideline regarding commercially reasonable offers of coverage required by W.Va.Code, 33-6-31(b). While an offer of optional coverage had to be made by an insurance company in compliance with W.Va.Code, 33-6-31d and the insurance commissioner’s guidelines after July 1993, we believe that any offer prior to July 1993 is acceptable if within the mandate of Bias.
We therefore hold that the fact that the insurance carrier did not use the form required by W.Va.Code, 33-6-3M [1993] when that form had not yet been promulgated by the insurance commissioner does not automatically render an offer invalid and “commercially unreasonable.” If the insurance carrier in this case made a commercially reasonable offer of coverage in accord with Bias and the policyholder’s $500,000.00 limit of liability insurance, the policyholder does not have $500,000.00 of underinsured motorist coverage by operation of law. Furthermore, the failure of an insurance carrier to use the prescribed form prior to July 1993 does not automatically require that a trial be held to determine whether a commercially reasonable offer was made under Bias.
III.
As indicated above, we answer both parts of the District Court’s question in the negative.
Certified Questions Answered.
. 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, 31-6-31d [1993] states:
(a) Optional limits of uninsured motor vehicle coverage and underinsured motor vehicle coverage required by section thirty-one of this article shall be made available to the named insured at the time of initial application for liability coverage and upon any request of the named insured on a form prepared and made available by the insurance commissioner. The contents of the form shall be as prescribed by the commissioner and shall specifically inform the named insured of the coverage offered and the rate calculation therefor, including, but not limited to, all levels and amounts of such coverage available and the number of vehicles which will be subject to the coverage. The form shall be made available for use on or before the effective date of this section. The form shall allow any named insured to waive any or all of the coverage offered.
(b) Any insurer who issues a motor vehicle insurance policy in this state shall provide the form to each person who applies for the issuance of such policy by delivering the form to the applicant or by mailing the form to the applicant together with the applicant's initial premium notice. The applicant shall complete, date and sign the form and return the form to the insurer within thirty days after receipt thereof. No insurer or agent thereof is liable for payment of any damages applicable under any optional uninsured or underinsured coverage authorized by section thirty-one of this article for any incident which occurs from the date the form was mailed or delivered to the applicant until the insurer receives the form and accepts payment of the appropriate premium for the coverage requested therein from the applicant: Provided, That if prior to the insurer’s receipt of the executed form the insurer issues a policy to the applicant which provides for such optional uninsured or under-insured coverage, the insurer shall be liable for payment of claims against such optional coverage up to the limits provided therefor in such policy. The contents of a form described in this section which has been signed by an applicant shall create a presumption that such applicant and all named insureds received an effective offer of the optional coverages described in this section and that such applicant exercised a knowing and intelligent election or rejection, as the case may be, of such offer as specified in the form. Such election or rejection shall be binding on all persons insured under the policy.
(c)Any insurer who has issued a motor vehicle insurance policy in this state which is in effect on the effective date of this section shall mail or otherwise deliver the form to any person who is designated in the policy as a named insured. A named insured shall complete, date and sign the form and return the form to the insurer within thirty days after receipt thereof. No insurer or agent thereof is liable for payment of any damages in any amount greater than any limits of such coverage, if any, provided by the policy in effect on the date the form was mailed or delivered to such named insured for any incident which occurs from the date the form was mailed or delivered to such named insured until the insurer receives the form and accepts payment of the appropriate premium for the coverage requested therein from the applicant. The contents of a form described in this section which has been signed by any named insured shall create a presumption that all named insureds under the policy received an effective offer of the optional coverages described in this section and that all such named insured exercised a knowing and intelligent election or rejection, as the case may be, of such offer as specified in the form. Such election or rejection is binding on all persons insured under the policy.
(d) Failure of the applicant or a named insured to return the form described in this section to the insurer as required by this section within the time periods specified in this section creates a presumption that such person received an effective offer of the optional coverages described in this section and that such person exercised a knowing and intelligent rejection of such offer. Such rejection is binding on all persons insured under the policy.
(e) The insurer shall make such forms available to any named insured who requests different coverage limits on or after the effective date of this section. No insurer is required to make such form available or notify any person of the availability of such optional coverages authorized by this section except as required by this section.
. The pertinent information concerning underin-sured motorist coverage provided to Mr. Bell in May 1993 on Westfield’s form was:
Combined Single Limit
Limit of Coverage First Car Rate Each Add’l Car
$50,000 $5 $4
$100,000 $12 $11
$200,000 $30 $29
$300,000 $37 $36
$350,000 $44 $43
$400,000 $43
$500,000 $50 $49
$1,000,000 $73 $72
. W.Va.Code, 33 — 6—3 l(b)[l 988] stated, in pertinent part, that every automobile insurance policy:
... shall provide an option to the insured with appropriately adjusted premiums to pay the insured all sums which he shall legally be entitled to recover as damages from the owner or operator of an uninsured or 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.
W.Va.Code, 33-6-31 was revised in 1995, but no changes were made affecting this appeal.
. The defendant’s argument focuses on subsequent offers of underinsured motorist coverage made by Westfield. At some point in 1994, West-field mailed Mr. Bell another form offer of un-derinsured motorist coverage that complied with the insurance commissioner's Informational Letter No. 88 in all but one respect: the form offered only up to $400,000.00 in coverage, rather than to the full $500,000.00 in coverage required by W.Va.Code, 33-6-31(b), the amount of his liability coverage. In April 1995, Westfield again made the same offer of only up to $400,-000.00 in coverage. Mr. Bell did not return either of these forms to Westfield, thereby indicating his rejection of additional coverage. | [
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PER CURIAM:
The plaintiffs below and appellants herein, Nancy and Timothy Stephens, appeal the August 28,1997, order of the Circuit Court of Kanawha County that granted summary judgment to the defendants below and appel-lees herein, Associates in Counseling and Training, Inc.; Linda Geronilla; and Elizabeth Conrad [hereinafter collectively referred to as ACT or the defendants]. On appeal to this Court, the Stephenses raise three challenges to the circuit court’s ruling: (1) the circuit court improperly-determined that the applicable statute of limitations barred their claims when their complaint was timely filed pursuant to the discovery rule, as explained in Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997), and the continuing tort doctrine; (2) the circuit court incorrectly dismissed their claim of vicarious liability; and (3) the circuit court erroneously granted the defendants’ motion for summary judgment when there existed genuine issues of material fact. Following a review of the parties’ arguments, the record of the proceedings below, and the pertinent authorities, we affirm the decision of the Circuit Court of Kanawha County.
I.
FACTUAL BACKGROUND
The forecast of the evidence suggests the following facts. Nancy and Timothy Stephens were married in 1980. In or about January, 1991, they began attending weekly worship services and Bible study meetings at Humphreys Memorial United Methodist Church. Kenneth Jarrett also participated in Humphreys church activities. As a result of their church involvement, the Stephenses became acquainted with Kenneth Jarrett.
Kenneth Jarrett allegedly was a student at the West Virginia College of Graduate Studies in 1991. He worked, either as an actual employee or as an independent contractor, for Associates in Counseling and Training, Inc. [hereinafter ACT], from December, 1990, through June, 1991.
ACT, located in Charleston, West Virginia, “provides counseling and employee assistance services.” Linda Geronilla is the owner and director of ACT, and Elizabeth Conrad and Peggy Dent were counselors employed by ACT.
The events surrounding the underlying appeal appear to have begun in March, 1991, when Jarrett began providing counseling services to Mr. Stephens. The plaintiffs state that at some point during these sessions, Jarrett informed Mr. Stephens that he also would like to provide similar counseling to Mrs. Stephens. Mrs. Stephens went to ACT in early April, 1991, where she had numerous counseling sessions during which both Jarrett and Elizabeth Conrad were present. Mrs. Stephens states that she believed Conrad was Jarrett’s supervisor. Contrariwise, ACT represents that it was not uncommon for friends and relatives to accompany clients of ACT’s counselors to their counseling sessions and to remain present during these meetings. In this regard, ACT suggests that Jarrett was not a counselor employed by ACT, but rather accompanied Mrs. Stephens to her counseling sessions in the capacity of a supportive friend.
In late April, 1991, a counseling session for Mrs. Stephens was scheduled during which both Conrad and Jarrett were supposed to be present. Conrad recalls that she had an emergency situation to attend to and, after informing Mrs. Stephens and Jarrett of her conflicting commitment, excused herself from the room. Thereafter, Jarrett conducted a counseling session with Mrs. Stephens, during which he patted Mrs. Stephens’ leg and kissed her before she left. Mrs. Stephens testified at her deposition that Jarrett assured her that this intimacy would be helpful in better understanding her husband’s behaviors, but told her that “it was inappropriate for a counselor and a client to have that kind of relationship.” Following this incident, Mrs. Stephens again met with both Conrad and Jarrett on several occasions, but Mrs. Stephens did not discuss the personal contacts between her and Jarrett.
After the intimate session between Jarrett and Mrs. Stephens, Jarrett began counseling Mrs. Stephens privately both at the ACT offices and at other locations, including a motel, the Stephenses’ home, Jarrett’s home, Mrs. Stephens’ workplace, church Bible study meetings, and the city park. Eventually, in May, 1991, Mrs. Stephens stopped going to ACT to receive counseling from Conrad and turned exclusively to Jarrett for such therapy. Mrs. Stephens indicated that, at Jarrett’s suggestion, they began meeting at the above-described locations as these sites were closer to their residences than the ACT offices, which were located in Charleston. The parties do not dispute that during these private sessions Jarrett and Mrs. Stephens became increasingly more intimate and twice engaged in sexual relations. Respecting the increasingly personal nature of their relationship, though, it seems that Jarrett requested Mrs. Stephens not to reveal the true nature of their relationship in order to protect his professional reputation.
In early May, 1991, Mrs. Stephens was briefly hospitalized for suicidal ideation. Following her discharge, she spoke with Peggy Dent, another counselor employed by ACT, regarding her growing relationship with Jarrett, but without divulging his identity. Dent presumably understood of whom Mrs. Stephens spoke, but the parties do not indicate whether Dent commented upon the impropriety of such a relationship at that time. In June, 1991, during Jarrett’s individual counseling of Mrs. Stephens, his business relationship with ACT terminated due to his voluntary change of employment.
Jarrett continued counseling Mrs. Stephens for approximately two years. In February, 1992, Mr. Stephens began counseling at ACT with Peggy Dent as a result of his suspicions that Jarrett and Mrs. Stephens were having an affair. Dent subsequently met with both Mr. and Mrs. Stephens and with each of them separately. During the individual sessions between Dent and Mrs. Stephens, in April, 1992, Mrs. Stephens confided that she was, in fact, having an affair. It is unclear whether Mrs. Stephens disclosed Jarrett’s name to Dent, but Dent apparently knew that Mrs. Stephens’ partner was a counselor as Dent informed Mrs. Stephens that she should report her therapist because his actions were “completely unacceptable.” It seems that Dent also informed Mrs. Stephens that she would sustain long-term injury from this inappropriate relationship. Mrs. Stephens contends that she was afraid to report Jarrett because she had become quite dependent upon him and did not want the relationship to end. She further was concerned that Jarrett would have difficulties with his employment if she reported his conduct.
Dent then informed Geronilla of the inappropriate relationship between Mrs. Stephens and her therapist. Geronilla told Dent to urge Mrs. Stephens to report her therapist to the Board of Examiners in Counseling, but Mrs. Stephens refused to do so, citing the above-stated reasons. The defendants represent, though, that Mrs. Stephens expressed a desire to end her relationship with her therapist in order to ameliorate the negative effects it was having on her relationship with her husband and family. Counseling between Dent and the Stephenses ended in late April, 1992.
In November, 1992, Mrs: Stephens again sought counseling from Conrad. During these sessions, which continued until December, 1992, Mrs. Stephens discussed her affair, and Conrad acknowledged that she knew of whom Mrs. Stephens spoke.
The plaintiffs indicate that Mrs. Stephens ended her counseling sessions with Jarrett in November, 1993. Thereafter, she obtained counseling from a variety of different professionals for numerous problems, including panic attacks, eating disorders, and severe depression. Jarrett and Mrs. Stephens ended their intimate relationship in April, 1995, when Jarrett moved to the state of Washington. After Jarrett’s departure, Mrs. Stephens required extensive hospitalization for bulimia and depression.
On October 31, 1995, Mr. and Mrs. Stephens filed a complaint in the Circuit Court of Kanawha County against Jarrett and the West Virginia College of Graduate Studies [hereinafter COGS] alleging professional negligence, breach of fiduciary duty, and infliction of emotional distress. As a result of third-party pleadings and complaint amendments, ACT, Geronilla, Conrad, Dent, Hum-phreys Memorial United Methodist Church, and the chairman of the Church’s Board of Trustees also were ultimately named as defendants to the Stephenses’ action.
Moving for summary judgment, COGS, ACT, Geronilla, and Conrad asserted that the Stephenses’ claims were untimely filed pursuant to the applicable statute of limitations contained in W. Va.Code § 55 — 2—12(b) (1959) (Repl.Yol.1994). By order entered August 28,1997, the circuit court granted the defendants’ motion for summary judgment. In so ruling, the court found
that there are no genuine issues of material fact as to whether or not plaintiff [Mrs. Stephens] received reasonable notice of her potential cause of action and/or injuries when counselor Dent told plaintiff that her relationship with defendant Jarrett was improper and “wrong.” The Court finds that notice by Dent to plaintiff Ms. Stephens clearly occurred in 1992, more than two years prior to the filing of this action. This action was filed on October 31,1995.
Examining this Court’s prior holding in Syllabus point 4 of Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997), the circuit court then
conclude[d] as a matter of law that the statute of limitations is not tolled by plaintiffs failure to distinguish the casual [sic ] connection between defendant Jarrett and her alleged medical symptoms and difficulties. The record is clear that as of 1992 plaintiff Stephens was on notice that the relationship between defendant Jarrett and herself was improper and detrimental.
The court further determined that “plaintiffs’ claims are statutorily time-barred and that plaintiffs’ [sic ] have failed to establish essential elements of the vicarious liability claim.” Accordingly, the circuit court granted summary judgment to defendants ACT, Geronil-la, and Conrad. From this ruling of the circuit court, the Stephenses appeal to this Court.
II.
STANDARD OF REVIEW
The procedural posture of the case sub judice is an appeal from the circuit court’s award of summary judgment. Rule 56(c) of the West Virginia Rules of Civil Procedure permits a circuit court to grant a party’s motion for summary judgment if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” We have interpreted this directive as allowing such a disposition “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. 2, in part, Sisson v. Seneca Mental Health/Mental Retardation Council, Inc., 185 W.Va. 33, 404 S.E.2d 425 (1991) (internal quotations and citation omitted). Thus, “[sjummary 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....” Syl. pt. 2, in part, McGraw v. St. Joseph’s Hasp., 200 W.Va. 114, 488 S.E.2d 389 (1997) (internal quotations and citation omitted). Once a circuit court has determined that summary judgment is proper in a particular ease, “ ‘[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).” Syl. pt. 1, id.
III.
DISCUSSION
On appeal to this Court, the Stephenses assert three assignments of error: (1) the circuit court. erroneously granted summary judgment to the defendants when the discovery rule and the continuing tort doctrine rendered the Stephenses’ complaint timely filed; (2) the circuit court improperly dismissed the Stephenses’ claim against the defendants for vicarious liability; and (3) the circuit court incorrectly granted summary judgment to the defendants when there existed genuine issues of material fact.
A. Timeliness of Filing of Complaint
The Stephenses first contend that the circuit court improperly found their claims to be time-barred by the applicable statute of limitations. In this regard, they set forth two arguments to demonstrate the timeliness of their complaint: the Gaither decision and the continuing tort doctrine.
1. Discovery Buie
The Stephenses first argue that the circuit court erred by granting summary judgment to defendants ACT, Geronilla, and Conrad based upon its finding that their complaint was barred by the applicable statute of limitations. Rather, the Stephenses contend that their lawsuit was timely filed pursuant to the discovery rule as defined by Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901. The defendants dispute the Ste-phenses’ contention that the Gaither interpretation of the discovery rule renders timely their complaint.
In their claims against ACT, the Stephens-es seek to recover for their personal injuries resulting from Jarrett’s sexual advances towards Mrs. Stephens during his alleged counseling sessions with her. W. Va.Code § 55-2-12(b) (1959) (Repl.Vol.1994) provides a two-year statute of limitations for personal injury causes of action. Therefore, to have been timely filed, the Stephenses’ complaint must have been filed within two years of the date on which ACT tortiously injured the plaintiffs.
The Stephenses claim that, despite the two-year statute of limitations governing their causes of action against ACT, they are not bound by this limited filing period because the discovery rule operates to extend the time within which they were required to file their complaint. As defined by this Court in Syllabus point 4 of Gaither,
[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.
Pursuant to this theory, the Stephenses state that Mrs. Stephens did not realize her injuries resulting from her “counseling” with Jarrett, or appreciate their relationship to Jarrett’s actions, until April, 1995, while she was receiving counseling from a different therapist. Because them complaint was filed in October, 1995, within two years of the date on which Mrs. Stephens discovered her injuries, they maintain that their complaint was timely filed.
We reject the Stephenses’ contentions in favor of the circuit court’s ruling that Mrs. Stephens knew, long before April, 1995, of the injuries occasioned by Jarrett’s misconduct. The record evidence suggests that Jarrett was employed by ACT from December, 1990, through June, 1991. If, as the Stephenses allege, Jarrett’s misconduct began at the time he was employed by ACT and could be attributable, in some measure, to ACT, then the Stephenses would have had two years from this time, until December, 1992, through June, 1993, within which to file their claims against ACT. Facially, their failure so to file renders their complaint untimely pursuant to the two-year statute of limitations.
However, the Stephenses maintain that, because Mrs. Stephens did not discover until much later that she had been injured and that such injuries were attributable to Jarrett’s sexual advances, the discovery rule operates to toll the otherwise applicable statute of limitations. Contrary to the Stephenses’ assertions, though, the record clearly demonstrates that ACT counselors in both spring, 1992, and fall, 1992, indicated to Mrs. Stephens that the relationship she was having with her unnamed therapist (Jarrett) was harmful to her. Furthermore, defendant Dent indicated that, in spring, 1992, she informed defendant Geronilla of Mrs. Stephens’ affair with her counselor. Geronilla instructed Dent to emphasize to Mrs. Stephens the impropriety of her therapist’s behavior and to encourage Mrs. Stephens to report his unethical conduct to the appropriate professional board. Despite these warnings to Mrs. Stephens, however, she refused to file a formal complaint, explaining that she did not want to get Jarrett into any trouble. Mrs. Stephens also allegedly informed her counselors at ACT that the relationship with her therapist had ended when, in fact, it had not. Given these facts, it is apparent that if ACT’s conduct rendered it liable to Mrs. Stephens, such liability would have attached either in the spring of 1992 or the fall of 1992, and could have been the subject of a civil action no later than the spring of 1994 or the fall of 1994. Because the Stephenses did not file their complaint until October, 1995, well after the passing of either of these dates, their claims against ACT are time-barred. Hence, we affirm the decision of the Circuit Court of Kanawha County granting summary judgment to the defendants based upon the untimely filing of the Ste-phenses’ complaint.
2. Continuing Tort Doctrine
The Stephenses next claim that, even if the discovery rule does not render their complaint timely filed, their lawsuit was commenced within the applicable statutory filing period pursuant to the continuing tort doctrine. In support of this contention, they cite Harmon v. Higgins, 188 W.Va. 709, 426 S.E.2d 344 (1992), for the proposition that the statute of limitations governing personal injuries does not begin to run until the last occurrence of offensive contact or threat thereof. Further buttressing their argument, the Stephenses cite DeRocchis v. Matlack, Inc., 194 W.Va. 417, 460 S.E.2d 663 (1995), as holding that when a plaintiff Sustains several similar, but separate and distinct, injuries, each separate injury gives rise to a separate and distinct cause of action. Thus, the Stephenses submit that since the statute of limitations for a continuing tort begins to run upon the occurrence of each injury without respect to prior and subsequent injurious occurrences, they timely filed their complaint on October 31, 1995, which was within two years after Mrs. Stephens’ last sexual contact with Jarrett in November, 1993.
Rejecting the plaintiffs’ attempt to salvage their claims based upon the continuing tort doctrine, the defendants represent that the rule provides that “[wjhere a tort involves a continuing or repeated injury, the cause of action accrues at, and limitations begin to run from[,] the date of the last injury, or when the tortious overt acts cease.” Hanley v. Town of Shinnston, 169 W.Va. 617, 619, 289 S.E.2d 201, 202 (1982) (per curiam) (internal quotations and citations omitted). In this regard, “the concept of a continuing tort requires a showing of repetitious, wrongful conduct_ [A] wrongful act with consequential continuing damages is not a continuing tort.” Ricottilli v. Summersville Mem’l Hosp., 188 W.Va. 674, 677, 425 S.E.2d 629, 632 (1992). Because the Stephenses’ claims against ACT primarily aver vicarious liability and negligent supervision, ACT asserts that its alleged tortious conduct ceased when Jarrett terminated his employment with ACT in June, 1991. Thus, the defendants claim, the continuing tort doctrine does not render timely the Stephenses’ claims.
While the Stephenses have thoroughly presented their continuing tort argument for appellate review by this Court, we can find no indication in the record before us that this issue was presented to and considered by the circuit court during the underlying summary judgment proceedings. Generally, we have held that a circuit court speaks through its orders. See State v. White, 188 W.Va. 534, 536 n. 2, 425 S.E.2d 210, 212 n. 2 (1992) (“[Hjaving held that a court speaks through its orders, we are left to decide this case within the parameters of the circuit court’s order.” (citations omitted)); State ex rel. Erlewine v. Thompson, 156 W.Va. 714, 718, 207 S.E.2d 105, 107 (1973) (“A court of record speaks only through its orders[.]” (citations omitted)). We also have held that we will not address, for the first time on appeal, a matter that has not been considered by the circuit court. 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 nonjuris-dictional 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 Const. Co., Inc., 158 W.Va. 314, 210 S.E.2d 918 (1975).”); Syl. pt. 4, Wheeling Downs Racing Ass’n v. West Virginia Sportservice, Inc., 157 W.Va. 93, 199 S.E.2d 308 (1973) (“This Court will not consider questions, nonjurisdictional in their nature, which have not been acted upon by the trial court.”) See also Syl. pt. 2, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996) (“To preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.”).
The record presented to the Court in this case does not suggest that the circuit court had an opportunity to consider the Stephens-es’ argument that the continuing tort doctrine tolled the applicable statutory filing period. In its present form, the circuit court’s summary judgment order does not address the continuing tort argument, and the record does not contain a transcript of the summary judgment hearing, thereby rendering it nearly impossible to ascertain whether the Stephenses made this argument to the circuit court. A further reference to this hearing, contained in one of the Ste-phenses’ replies to the defendants’ motions for summary judgment, indicates, in fact, that the continuing tort argument was not raised during the parties’ oral arguments at the summary judgment hearing. See Plaintiffs Response to Defendant West Virginia Graduate College [sic ] Motion for Summary Judgment, at 8 (filed June 17, 1997) (“Although not mentioned during oral argument, in addition to the fact that the statute of limitations should not run until the plaintiff knows that the conduct of the defendant has a causal relation to his or her injury, another reason exists causing the ease at bar to fall within the statute of limitations. As explained in Plaintiffs Answer to Defendants^] [ACT’s] Motion for Summary Judgement filed with this Court [sic] the continuing tort doctrine tolls the statute of limitation for the duration of the treatment period.”). Because we can find no indication that the circuit court had an opportunity to rule upon this issue, we find that it s not ripe for decision by this Court and decline further to address this matter.
B. Dismissal of Vicarious Liability Claim
In addition, the Stephenses contest the circuit court’s finding that they failed to adequately establish their claim of vicarious liability. They state that, because they believed, in good faith, that Jarrett was employed by ACT as a counselor and because ACT allegedly permitted the Stephenses to continue in this belief, ACT is vicariously liable for the injuries they sustained as a result of Jarrett’s inappropriate and unethical relationship with Mrs. Stephens. Citing Syl. pt. 3, Levine v. Peoples Broadcasting Corp., 149 W.Va. 256, 140 S.E.2d 438 (1965) (holding that questions of whether there existed employer-employee relationship and whether employee was acting within scope of such relationship are factual issues to be determined by jury); Syl. pt. 1, General Elec. Credit Corp. v. Fields, 148 W.Va. 176, 133 S.E.2d 780 (1963) (describing circumstances in which one is estopped from denying existence of agency relationship); Restatement (Second) of Agency § 219(2)(d) (1958) (holding principal liable for agent’s acts committed outside scope of agent’s employment where agent’s tortious conduct was aided by existence of agency relationship).
Reviewing the Stephenses’ contentions as to this issue, we decline to address this matter as our determinations that the discovery rule does not extend the applicable filing period and that the continuing tort issue has been improperly submitted to this Court have rendered moot the Stephenses’ assignment of error regarding vicarious liability. The issue of defendant ACT’s vicarious liability for Jarrett’s actions is relevant only insofar as the discovery rule and/or the continuing tort doctrine render timely the assertion of this cause of action. Because the Ste-phenses have been unsuccessful in their attempts to persuade this Court of the timeliness of their complaint pursuant to either of these theories, they are statutorily time barred from asserting a specific cause of action, alleging vicarious liability or any other claim, against defendant ACT for injuries resulting from Jarrett’s purported counseling of Mrs. Stephens.
C. Genuine Issues of Material Fact to Preclude Grant of Summary Judgment
Lastly, the Stephenses complain that the circuit court erroneously granted summary judgment to ACT when there existed genuine issues of material fact. In this respect, they suggest that the circuit court improperly found the relationship between Jarrett and Mrs. Stephens to have been voluntary when expert witnesses for the Stephenses indicated that an intimate relationship between a therapist and his/her patient is unethical and therefore of questionable voluntariness. Citing Syl. pt. 1, Weaver v. Union Carbide Corp., 180 W.Va. 556, 378 S.E.2d 105 (1989) (recognizing cause of action for malpractice where counselor has been sexually intimate with his/her patient).
Following a de novo review, we find that the circuit court did not improperly grant summary judgment because there existed no genuine issues of material fact.
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.
Syl. pt. 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995). While the Stephenses are correct in their contention that there continue to exist disputed factual issues in both the underlying case and the instant appeal, these facts are not material to the circuit court’s decision granting summary judgment based upon the untimely filing of the Stephenses’ complaint. With this assignment of error, the Stephenses complain primarily about whether the circuit court erroneously determined the relationship between Jarrett and Mrs. Stephens to have been voluntary. As the claims against ACT are barred by the applicable statute of limitations and as this issue tends to be more determinative of the Stephenses’ claims against Jarrett, which were not dismissed by the circuit court’s summary judgment order, we find that the circuit court did not err by granting summary judgment to ACT.
IV.
CONCLUSION
For the foregoing reasons discussed in the body of this opinion, the decision of the Circuit Court of Kanawha County is affirmed.
Affirmed.
WORKMAN, J., disqualified.
REED, Judge, sitting by temporary assignment, dissents.
. 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).
. At this juncture, we wish to clarify which parties are presently before this Court as part of the instant appeal. First, the parties dispute whether the circuit court, in its order, granted summary judgment to defendant Jarrett. A review of the circuit court's order indicates that its award of summary judgment was, in fact, limited to defendants Associates in Counseling and Training, Inc.; Linda Geronilla; Elizabeth Conrad; and the West Virginia College of Graduate Studies. As the order does not specifically include defendant Jarrett within its scope, we find that he is not a proper party to the instant appeal. See W. Va.Code § 58-5-1 (a) (1925) (Repl.Vol. 1997) (permitting appeal to Supreme Court of Appeals of West Virginia from a "final judgment, decree or order” (emphasis added)); Syl. pt. 5, in part, McDaniel v. Kleiss, 198 W.Va. 282, 480 S.E.2d 170 (1996) ("Under W. Va.Code, 58-5-1 (1925), appeals only may be taken from final decisions of a circuit court. A case is final only when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.” (internal quotations and citation omitted)).
Similarly, the parties disagree as to whether the circuit court intended to include defendant Peggy Dent in its award of summary judgment to the defendants. Although the circuit courl omitted reference to Dent in its order, the Stephenses characterize this omission as an oversight and presume that the circuit court similarly granted summary judgment to Dent. For the same reason discussed above with respect to defendant Jarrett, we find that defendant Dent is not a proper party to the instant appeal as the circuit court did not specifically include her within the scope of its summary judgment order.
. The Stephenses urge that Jarrett was an actual employee of ACT who provided counseling services. The defendants intimate that Jarrett was merely an independent contractor who performed various marketing services for ACT.
. W.Va.Code § 55-2-12(b) (1959) (Repl.Vol. 1994) directs "[e]very personal action for which no limitation is otherwise prescribed shall be brought ... (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries[J”
. See infra Section III.A.l. for the relevant text of Gaither.
. The circuit court also granted the summary judgment motion of defendant West Virginia College of Graduate Studies. On appeal to this Court, though, the Stephenses do not contest the circuit court's ruling as to COGS. Furthermore, the parlies represent that third-party defendants below Humphreys Memorial United Methodist Church and Robert Sauvageot were voluntarily dismissed prior to the circuit court's summary judgment ruling. Accordingly, they are not parties to the instant appeal.
. We note that our finding that the Stephenses’ claims against ACT are barred by the applicable statute of limitations does not affect the validity of their causes of action against Jarrett, which were not addressed in the circuit court's summary judgment order. We also do not consider whether the nature of Mrs. Stephens’ psychological condition, for which she required treatment by way of counseling, prevented her from earlier recognizing or appreciating her injuries resulting from her relationship with Jarrett.
. The Stephenses also intimate that the circuit court’s decision to grant summary judgment to the defendants improperly infringed upon the ability of a jury to determine the date of commencement Of the applicable statute of limitations governing their claims. Citing Syl. pt. 3, in part, Stemple v. Dobson, 184 W.Va. 317, 400 S.E.2d 561 (1990) ("Where a cause of action is based on tort ..., 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.” (emphasis added by the Stephenses)). Nevertheless, this argument does not nullify our conclusion that the circuit court properly awarded summary judgment in this case because
[t]he mere fact that a particular cause of action contains elements which typically raise a factual issue for jury determination does not automatically immunize the case from summary judgment. The plaintiff must still discharge his or her burden under West Virginia Rule of Civil Procedure 56(c) by demonstrating that a legitimate jury question, i.e. a genuine issue of material fact, is present.
Syl. pt. 1, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995). Moreover, as we explain in Section III.C., infra, we find that the Stephenses have failed to convince this Court of the existence of a genuine issue of material fact so as to render inappropriate the disposition of this case by summary judgment.
Finally, the defendants rely upon this Court’s prior holding in Cart v. Marcum to support their contentions that the discovery rule does not render timely the Stephenses’ complaint. See Syl. pt. 3, 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.”). Because the contemplation of this case law is not necessary to our resolution of the instant appeal, we decline further to consider this argument.
. As Jarrett is not a proper party to the instant appeal, we refrain from determining whether the continuing tort doctrine would apply to the Ste-phenses’ claims against this defendant. We note further that, given our affirmance of the circuit court’s final order granting summary judgment to defendants ACT, Geronilla, and Conrad, the Stephenses essentially are prohibited from rear-guing, before the circuit court, their assertion of the continuing tort theory with respect to these defendants.
. We recognize, too, that there exist questions as to the true nature of Jarrett’s employment by ACT. See supra note 3 and text at page 338. However, since we concur with the circuit courts conclusion that the Stephenses’ claims against ACT were untimely filed and that the statute of limitations therefore precludes the maintenance of any claims against ACT, we find te resolution of this factual matter to be unnecessary to the decision of this case. | [
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MAYNARD, Justice:
This consolidated action is before this Court upon an appeal of final orders of the Circuit Court of Monongalia County entered upon May 31, 1996, November 27, 1996, and April 9, 1997. Following a coal silo fire at its Loveridge Mine in 1991 and a mine shaft explosion at its Blacksville No. 1 Mine in 1992, appellant, Consolidation Coal Company [hereinafter “CCC”], filed a declaratory judgment action against M.A. Heston, Inc. [hereinafter “Heston”] and Omni Drilling, Inc. [hereinafter “Omni”] seeking to determine its lights and obligations with respect to a policy of insurance issued by Boston Old Colony Insurance Company [hereinafter “BOC”] to Heston and Omni. Appellant now appeals the final orders of the circuit court which granted summary judgment in favor of Heston and Omni concerning claims for indemnity and contribution; granted summary judgment in favor of BOC with respect to the amount of Commercial General Liability [hereinafter “CGL”] and Special Employers Liability [hereinafter “SEL”] coverage; and denied CCC’s motion to amend its complaint to add additional claims against BOC, Heston, and Omni including claims for bad faith and unfair settlement practices against BOC.
This Court has before it the petitions for appeal, all matters of record, and the briefs and argument of counsel. For the reasons set forth below, we reverse in part and affirm in part the final orders of the circuit court.
I.
In 1991 and 1992, CCC and Heston entered into “Blanket Contracts” which estab lished and set forth the terms and conditions for work to be performed by Heston as an independent contractor for CCC in the respective years. In addition, CCC and Heston entered into “Purchase Order Contracts” which provided that all work performed under the purchase order was to be governed by and performed in accordance with the terms of the Blanket Contract. The contracts between CCC and Heston were insured pursuant to an insurance policy issued by BOC insuring Heston on the job sites. Heston subcontracted with Omni for assistance in performing its obligations under the contracts. Because of the intra-family ownership and corporate connection to Heston and its projects, Omni was added to the BOC policy as an additional insured.
On April 3, 1991, two of Heston’s employees were injured in a fire while they were performing work at the clean coal silo located at CCC’s Loveridge Mine preparation plant. Both employees filed civil actions seeking damages against CCC arising from the injuries they sustained during the silo fire.
On March 19,1992, Heston and Omni were installing a de-watering pipe into the production shaft at CCC’s Blacksville No. 1 Mine when an explosion occurred. As a result of the explosion, four people were killed, and five others were injured. A leased crane located at the work site was also damaged. Consequently, ten civil actions were filed against CCC, Heston, Omni, and others seeking compensatory damages. CCC filed cross-claims and/or third-party claims against Heston, Omni, and their insurer, BOC, demanding contractual indemnity, contribution, insurance coverage, and a defense in the underlying tort claims. Once the issues were joined, CCC, Heston, Omni, and BOC agreed that they would work together to resolve the underlying tort claims and postpone the litigation of their respective rights and obligations until the tort claims were resolved.
By March 1995, all of the underlying tort claims were settled. The parties then proceeded to litigate the declaratory judgment action which had been filed by CCC on September 27, 1993. At a hearing on March 6, 1996, the circuit court considered a motion in limine filed by Heston and Omni seeking to limit the issues in the declaratory judgment action to a determination of the parties’ rights under the insurance policy. Heston and Omni argued that the complaint filed by CCC did not set forth any claims for indemnification and contribution in amounts in excess of the policy limits. The court also considered a motion for partial summary judgment filed by BOC on behalf of Heston and Omni seeking to extinguish CCC’s claims for contribution and indemnity on the basis that the parties had previously reached a settlement agreement. BOC asserted that in exchange for its contribution of $1,000,000 toward the settlements in the ten underlying lawsuits resulting from the Blacksville explosion, CCC agreed to drop its claims for contribution and indemnity.
Finding that Heston and Omni’s motion in limine was in the nature of a motion for summary judgment, the circuit court concluded that the declaratory judgment action was filed for the purpose of determining the rights and obligations of the parties under the insurance policy only. Alternatively, the circuit court found that the parties had negotiated in good faith and reached an agreement whereby BOC contributed $1,000,000 toward the settlement of the underlying lawsuits and CCC agreed to forego its claims for contribution and indemnity. Consequently, the circuit court granted the motions, and Heston and Omni were dismissed from the case.
Subsequently, on August 19, 1996, the parties appeared for a hearing on CCC’s motion to amend its complaint. Among the claims CCC sought to add to its complaint were assertions of bad faith and unfair claims settlement practices on the part of BOC. CCC also sought to determine the applicability of the products completed operation coverage in the BOC insurance policy. The circuit court denied the motion on the basis that CCC had been dilatory in pursuing its claims and that any alleged conduct giving rise to the claims for bad faith was known or should have been known by CCC at the time the original complaint was filed. The court also found that the products completed operation coverage was not applicable because at the time of the Blacksville explosion, work was ongoing, and abandonment, which was necessary to trigger the coverage, did not occur until after the explosion.
On December 30, 1996, the parties appeared for a hearing on cross-motions for summary judgment concerning the remaining issues in the case. CCC argued that it was entitled to an additional $1,000,000 in coverage under the terms of the policy issued to Heston and Omni by BOC with respect to the settlement of the personal injury, property damage, and wrongful death claims that arose out of the Blacksville explosion. The circuit court found that the insurance policy provided a maximum limit of insurance of $1,000,000 for any one occurrence regardless of the number of insureds. The court further found that the claims related to the Blacksville explosion arose out of a single occurrence. Accordingly, the circuit court granted summary judgment in favor of BOC concluding that there was only $1,000,000 in insurance coverage available. CCC now appeals the circuit court’s orders.
II.
As its first assignment of error, CCC contends the circuit court erred in granting summary judgment in favor of Heston and Omni with respect to CCC’s claims for indemnification and contribution. In Syllabus Point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) we stated that: “A circuit court’s entry of summary judgment is reviewed de novo.” See also Syllabus Point 4, Dieter Eng’g Servs., Inc. v. Parkland Dev., Inc., 199 W.Va. 48, 483 S.E.2d 48 (1996); Syllabus Point 1, Smith v. Stacy, 198 W.Va. 498, 482 S.E.2d 115 (1996).
In this case, the circuit court was presented with a motion for partial summary judgment filed by BOC on behalf of Heston and Omni seeking to extinguish CCC’s claims for contribution and indemnity on the basis that the parties had reached a settlement agreement. CCC contends the circuit court erred in finding that the parties reached a settlement agreement because the affidavit of Robert M. Steptoe, Jr., counsel for CCC, indicates that he did not believe that the parties had ever reached an agreement. BOC contends that its contribution of $1,000,000 toward the settlement of the underlying civil actions was conditioned upon CCC’s agreement to release its claims for indemnity and contribution against Heston and Omni. BOC argues that although settlement documents memorializing the settlement agreement were not executed, a lengthy history of correspondence during the settlement negotiations and unexecuted settlement documents evidence an agreement between the parties.
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 & Sur. 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.” See also Syllabus Point 3, Evans v. Mutual Mining, 199 W.Va. 526, 485 S.E.2d 695 (1997); Syllabus Point 1, McClung Invs., Inc. v. Green Valley Community Pub. Serv. Dist., 199 W.Va. 490, 485 S.E.2d 434 (1997). We have also observed that:
Summary 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). See also Syllabus Point 2, Cottrill v. Ranson, 200 W.Va. 691, 490 S.E.2d 778 (1997); Syllabus point 2, McGraw v. St. Joseph’s Hosp., 200 W.Va. 114, 488 S.E.2d 389 (1997).
In Williams, we clarified the function of the circuit court at the summary judgment stage. We explained that the circuit court is not “‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.’ ” 194 W.Va. at 59, 459 S.E.2d at 336 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986)). We further stated that “summary judgment should be denied ‘even where there is no dispute as to the evidentia-ry facts in the case but only as to the conclusions to be drawn therefrom.’ ” Id. (quoting Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.), cert. denied, 342 U.S. 887, 72 S.Ct. 178, 96 L.Ed. 666 (1951)).
Upon review of the record, we find that disputed issues of material fact exist as to whether a settlement was, in fact, reached by the parties. As previously noted, CCC’s attorney adamantly denies that any consensus was achieved. Mr. Steptoe states in his affidavit that negotiations occurred between representatives of CCC and representatives of BOC concerning the amount of coverage BOC would make available and the issues of contribution and indemnification. While negotiations on these issues were ongoing, the underlying claims were settled. By the time that all of the underlying lawsuits were resolved, Mr. Step-toe believed that the indemnity and contribution claims were still pending and would be tried as part of the declaratory judgment action.
As discussed above, BOC has submitted various letters and other documents in an effort to show that a settlement agreement was reached. CCC contends that the documents prove just the opposite. We agree. It is undisputed that the parties never executed a formal written settlement agreement. The protracted negotiations including numerous telephone calls and correspondence between the parties clearly indicate that genuine issues of fact exist as to whether a settlement agreement was, in fact, ever reached. Accordingly, the circuit court erred in granting BOC's motion for partial summary judgment.
Likewise, we find that the circuit court erred in granting summary judgment in favor of Reston and Omni based on their motion in limine which was converted to a motion for summary judgment. Heston and Omni contended that the declaratory judgment action only sought to determine the parties' rights with respect to the insurance policy. Heston and Omni also alleged the complaint failed to set forth claims for indemnification and contribution in excess of the policy limits.
We first note that the circuit court had no procedural basis for converting the motion in limine to a motion for summary judgment. Traditionally, summary judgment motions are filed with supporting affidavits, deposition testimony, and/or other documents. See W.Va.R.Civ.P. 56. If the circuit court believed that a summary judgment motion was appropriate, the parties should have been permitted to submit briefs, exhibits, and responses thereto. See Syllabus Point 1, Kopelman and Associates, L.C. v. Collins, 196 W.Va. 489, 473 S.E.2d 910 (1996).
Notwithstanding the procedural error, we find that the complaint gave Heston and Omni fair notice of the claims against them. We have previously held that complaints are to be read liberally in accordance with the notice pleading theory underlying the West Virginia Rules of Civil Procedure. State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 776, 461 S.E.2d 516, 522 (1995). In answering the complaint, Heston and Omni asserted as their first defense: "Indemnity agreements referred to in the Complaint, if any, are not applicable, are ambiguous and contrary to the public policy and the law of the State of West Virginia." As their second defense, Heston and Omni asserted:
All work performed at the time and place of the explosion referred to in this Complaint was performed under the direct supervision and control of Consolidation Coal Company and its agent, Robert Omear, and as such Consolidation Coal Company is not entitled to any indemnification and/or contribution from defendants M.A. Heston, Inc. and/or Omni Drilling, Inc.
By asserting these defenses, it is evident that Heston and Omni were aware that CCC was seeking indemnity and contribution in amounts in excess of the policy limits. Accordingly, the circuit court erred in gi'anting summary judgment in favor of Heston and Omni on this issue.
III.
CCC next contends the circuit court erred in granting summary judgment in favor of BOC on the issue of the amount of insurance coverage owed to CCC under the applicable insurance policy. CCC asserts the policy provides an additional $1,000,000 in CGL and SEL coverage. CCC makes this argument because both Heston and Omni were separately named insureds under the BOC policy, each was rated individually, and each paid a separate and different premium as though they were separately insured.
BOC maintains that the policy expressly provides a total of only $1,000,000 in insurance coverage. BOC relies upon the following language from "Section Ill-Limits of Insurance" of the CGL portion of the policy:
The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of:
a. Insureds;
b. Claims made or `suits' brought; or
c. Persons or organizations making claims or bringing `suits.'
The same language is found in the SEL portion of the policy. BOC avers that the policy is abundantly clear in setting forth the amount of insurance available-$500,000 CGL coverage and $500,000 SEL coverage.
At the outset, we note that we are dealing here with a commercial insurance policy involving three separate commercial entities. Compared to the numerous cases relating to automobile insurance policies, which policies usually involve a consumer and a commercial entity, there has been little development of the law relating to the commercial type of insurance in this case. Generally, our cases relating to the limits of liability coverage have been decided in the framework of automobile insurance. In this case, CCC argues that additional coverage is available because of our body of automobile case law relating to “stacking”. While the reference to automobile insurance policies is interesting and shows that counsel is resourceful, the issue of the amount of coverage here should not be determined in the context of automobile insurance.
In case sub judice, which involves purely commercial insurance coverage questions, it is undisputed that CCC had an “insured contract” as defined by the BOC policy. CCC and Heston executed blanket contracts in 1991 and 1992 containing indemnity clauses and Heston was insured by BOC pursuant to the policy at issue. Omni was added to the policy as an additional named insured because of the intra-family ownership and corporate connection with Heston and its projects. Nonetheless, Omni was individually rated and paid a different premium as if it were separately insured. Consequently, a clear conflict exists between the payment of separately computed premiums for each business and the limitation of liability clause. For this reason, we find ambiguity in the policy.
“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 insured.” Syllabus Point 4, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488 (1987). In addition, when the policy language is ambiguous, the doctrine of reasonable expectation applies. “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, McMahon, supra. Moreover, “[w]here ambiguous policy provisions would largely nullify the purpose of indemnifying the insured, the application of those provisions will be severely restricted.” Syllabus Point 9, McMahon, supra.
CCC contends that because it had an “insured contact,” it stands, for coverage purposes, in the same shoes as Heston and Omni. As earlier noted, the BOC policy defines an “insured contract” as “[t]hat part of any other contract or agreement pertaining to your business ... under which you assume the tort liability of another party to pay for ‘bodily injury’ or ‘property damage’ to a third person or organization.” Therefore, if Heston and Omni were each entitled to $1,000,-000 in coverage, CCC is entitled to that aggregate, i.e. $2,000,000. Following the Blacksville explosion, there were separate liability claims against Heston and Omni, each of whom caused the accident. CCC asserts that an examination of the SEL coverage easily demonstrates that Heston and Omni were separate insureds entitled to $1,000,000 aggregate coverage each. According to CCC, it is absurd for BOC to claim that in the Blacksville No. 1 explosion, Heston’s employees and Omni’s employees were limited to $500,000 joint recovery as if they were all four employed by the same entity. We agree.
Despite BOC’s assertions to the contrary, CCC’s expectation of additional coverage in this case is not unreasonable. CCC had an insured contract with Heston and Omni. In this instance, the BOC policy is ambiguous because it suggests that by virtue of the separately paid premiums, both Heston and Omni have $1,000,000 in coverage. However, if both Heston and Omni caused accidents at the same time, the policy attempts to limit coverage to $1,000,000. If we were to apply this limitation in the policy, we would consequently nullify the meaning and purpose of the “insured contract” provisions of the policy. Therefore, we hold that in a policy for CGL insurance and SEL insurance, when a party has an “insured contract,” that party stands in the same shoes as the insured for coverage purposes. Thus, we find that the circuit court erred by finding that the insurance policy provided only $1,000,000 in coverage, instead of $2,000,000 in coverage.
IV.
As its final assignment of error, CCC contends that the circuit court should have granted its motion to amend the complaint to include, among others, causes of actions for bad faith and unfair claims settlement practices. Rule 15 of the West Virginia Rules of Civil Procedure provides that a party may amend a pleading by leave of the court and “leave shall be freely given when justice so requires.” In Syllabus Point 6 of Perdue v. S.J. Groves and Sons Co., 152 W.Va. 222, 161 S.E.2d 250 (1968), we held:
A trial court is vested with a sound discretion in granting or refusing leave to amend pleadings in civil actions. Leave to amend should be fre.ely 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.
The record indicates that CCC moved to amend the complaint three times. The first motion was denied on the basis of Jenkins v. J.C. Penney Casualty Ins. Co., 167 W.Va. 597, 280 S.E.2d 252 (1981), which precluded claims under the unfair settlement practice provisions of W.Va. 33-11-4(9) (1985) until the underlying suit was resolved. On October 28, 1994, this Court issued its decision in State ex rel. State Farm Fire & Casualty Co. v. Madden, 192 W.Va. 155, 451 S.E.2d 721 (1994), which reversed Jenkins and permitted an action against an insurer for bad faith and unfair settlement practices to be joined in the same complaint as the underlying personal injury suit against the insured. Thereafter, on February 26, 1996 and March 28, 1996, CCC filed motions to amend the complaint to add among others, claims for bad faith and unfair claims settlement practices.
In denying CCC’s. motions to amend, the circuit court found that the plaintiffs had been dilatory in pursuing the claims. We are inclined to agree. The record indicates that CCC waited approximately sixteen months following the Madden decision before it filed a motion to amend its complaint. We have previously recognized that “[t]he liberality allowed in amendment of pleadings does not entitle a party to be dilatory in asserting claims or to neglect the case for a long period of time.” Mauck v. City of Martinsburg, 178 W.Va. 93, 95, 357 S.E.2d 775, 777 (1987) (citation omitted). Consequently, we find that the trial court did not abuse its discretion in denying CCC’s motion to amend the complaint to add additional claims including claims for unfair claims settlement practices.
Accordingly, for the reasons set forth above, the May 31, 1997 and April 9, 1997 orders of the Circuit Court of Monongalia County are reversed, and the November 27, 1996 order of the Circuit Court of Mononga-lia County is affirmed. This case is remanded to the circuit court for further action consistent with this opinion.
Reversed in part, affirmed in part, and remanded.
STARCHER, J., deeming himself disqualified, did not participate in the decision in this case.
JOHN W. HATCHER, Jr., Judge, sitting by special assignment.
. Although a single declaratory judgment action was filed below, the circuit court’s order of May 31, 1996, was appealed to this Court on October 10, 1996. On August 13, 1997, the circuit court's orders of November 27, 1996 and April 9, 1997 were appealed. Both appeals were granted and consolidated by this Court on December 3, 1997.
. The Order dated April 9, 1997 was entered, by agreement of all parties, nunc pro tunc as of December 31, 1996, the last day that now Justice Larry V. Starcher served as Chief Judge of the Circuit Court of Monongalia County.
.The Honorable Lariy V. Starcher, Justice of the Supreme Court of Appeals of West Virginia, deemed himself disqualified in this proceeding. Accordingly, Chief Justice Robin Jean Davis designated the Honorable John W. Hatcher, Jr., Judge of the Circuit Court of Fayette County, to preside as a member of the Supreme Court of Appeals of West Virginia in this proceeding.
. Although separate contracts were signed for each year, both the 1991 and 1992 Blanket Contracts contained the following language:
Contractor shall protect, indemnify and defend [CCC], its shareholders, officers, directors and employees, and hold each of them harmless, from and against ... (c) any and all claims, liability, loss or expense (including reasonable attorneys’ fees, amounts paid in settlement of litigation, judgments and court costs) for or related to property damage ... and/or injury or death of any person (including, without limitation, any employee or agent of [Heston] or of any subcontractor) caused, or alleged to have been caused, in whole or in part, by any condition of any property owned or leased by [CCC], by any failure of [Heston], its employees, agents, and subcontractors, to comply with any applicable law, regulation, governmental order, or provision of this Contract, or by any other cause related to performance of work under this Contract, other than gross negligence or willful misconduct attributable to [CCC],
. As previously mentioned, the BOC policy provided both CGL and SEL coverage. Generally, CGL coverage is designed to protect the insured from losses arising out of business operations. SEL insurance is for liability associated with or arising outside the employer’s workers’ compensation protection.
. It was undisputed that the policy provided at least $1,000,000 of coverage.
. CCC also argued that it was entitled to a defense and costs thereof, under the applicable insurance policy. The circuit court granted CCC’s motion on this issue. Accordingly, BOC was ordered to pay reasonable attorneys’ fees and the costs incurred in the defense of the personal injury, property damages, and wrongful death claims arising out of the Blacksville explosion and the Loveridge silo fire. The court’s ruling on this issue was not appealed and is not before this Court.
.The affidavit of Robert M. Steptoe, Jr., provides, in pertinent part:
I spoke with Mr. Offutt with regularity concerning the status of the negotiations in each case. During this time period, I did not understand Mr. Offutt or Mr. Liotta, or anyone else, to be of the belief that CCC had released or otherwise waived its contribution and indemnity claims against Heston/Omni. I believe it was understood that the indemnity and contribution claims would be tried as part of this declaratory judgment action, where these claims were already at issue. My impression that CCC’s contribution and indemnity claims were still pending was substantiated by BOC’s amended third-party complaint in this declaratory judgment action served on July 25, 1994, where BOC avers at paragraph 19 that 'this declaratory judgment action will affect the amount of insurance coverage which will be available to all of the above-referenced parties, as well as whether CCC is entitled to indemnification from M.A. Heston, Inc., and Omni Drilling, Inc., and/or Old Boston Colony.
. "Stacking" is a concept generally used in the context of automobile insurance and refers to multiplying the amount of coverage under the policy per each vehicle covered by the policy. Payne v. Weston, 195 W.Va. 502, 505 n. 1, 466 S.E.2d 161, 164 n. 1 (1995).
. The policy defines an “insured contract” as:
That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for 'bodily injury’ or 'property damage' to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement.
. See note 4, supra.
. We further note that BOC's agent admitted during his deposition that the policy was ambiguous as to whether the limits of liability would be available for each insured if both created an accident. | [
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PER CURIAM:
This case is before this Court upon a petition for writ of prohibition filed by the petitioner, United States Fidelity & Guaranty Company [hereinafter “USF & G”], against the respondents, the Honorable Robert B. Stone, Judge of the Circuit Court of Monon-galia County, and the Honorable Andrew A. MacQueen, III, Special Judge of the Circuit Court of Monongalia County. USF & G seeks to prohibit the respondents from enforcing a February 17, 1998 order permitting the plaintiffs in the underlying asbestos action known as “Monongalia Mass II” to perfect service of process upon defendant Earl B. Beach Company [hereinafter “Beach”], by serving its insurer, USF & G. We issued a rule to show cause and now grant the writ and remand this case for reconsideration by the circuit court.
I.
The underlying case arose from personal injuries allegedly sustained by the respective plaintiffs through exposure to products containing asbestos which were allegedly manufactured, produced, sold, installed, or supplied by Beach and other defendants. Beach was incorporated in and maintained its principal place of business in the state of Pennsylvania until it was dissolved on July 2, 1987.
On August 20,, 1997, the plaintiffs in the underlying case filed a petition to enter judgment against Beach and its insurers. However, Beach, as a defunct corporation, was never served in the asbestos action,” nor had service been made on any of Beach’s former officers and directors. A hearing was held on September 5, 1997 to consider the plaintiffs’ petition. By order entered September 11, 1997, the circuit court granted the plaintiffs leave to serve the complaints upon Beach by making service upon its alleged insurance carrier, USF & G.
Thereafter, the plaintiffs attempted to perfect service upon Beach by serving USF & G via certified mail. On October 10,1997, USF & G filed a Motion to Quash Service of Process upon Beach. A hearing was held regarding the motion on November 7, 1997. Subsequently, by order entered February 17, 1998, the circuit court denied the motion finding service of process upon USF & G, as an agent of Beach, was proper. USF & G then filed this petition for writ of prohibition.
II.
Initially, we note 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). See also W.Va.Code § 53-1-1 (1923).
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.
Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). With these general rules in mind, we now consider whether a writ of prohibition should be granted.
The issue presented is whether service of process upon a defunct corporation can be effectuated by serving its liability insurance carrier. Recently, in Robinson v. Cabell Huntington Hosp. Inc., 201 W.Va. 455, 498 S.E.2d 27 (1997), we addressed the propriety of serving a defendant through its insurer. Robinson was a medical malpractice action brought by a minor who allegedly sustained brain damage at birth. The action was filed against the estate of Dr. Carmelo L. Terlizzi. Dr. Terlizzi had delivered the plaintiff in 1977 while he was practicing medicine in West Virginia. He later moved to Florida where he died before the action was filed. One of the issues raised in Robinson was whether the plaintiff could perfect service on Dr. Terlizzi’s estate by serving his insurance carrier in West Virginia.
We determined in Robinson that in order for the liability insurer to receive service on behalf of the defendant doctor’s estate, the liability insurer must have been authorized to do so pursuant to a statute or by agreement. We reached this conclusion based on provisions of Rule 4 of the West Virginia Rules of Civil Procedure pertaining to service of process on an individual when the individual cannot be personally served. Ultimately, we determined that there was no evidence that Dr. Terlizzi’s insurer had been authorized to receive service of process on his behalf. Therefore, the appellants were not permitted to serve the liability insurer in lieu of the estate.
Clearly, Robinson applies to the case sub judice. Unfortunately, Robinson was decided after the circuit court denied USF & G’s motion to quash. Therefore, we grant the writ of prohibition, but remand this case to the circuit court for further consideration in light of our decision in Robinson,
Writ granted; remanded with directions.
Chief Justice DAVIS and Justice STARCHER, deeming themselves disqualified, did not participate in the decision in this case.
Judge BERGER and Judge KIRKPATRICK, sitting by special assignment.
Justice McGRAW did not participate in the decision of this case.
. If a corporation has been dissolved, "process may be served upon the same person who might have been served before dissolution.” Lynchburg Colliery Co. v. Gauley & Eastern Railway Co., 92 W.Va. 144, 149, 114 S.E. 462, 464 (1922) (citation omitted).
. Rule 4(d)(1) provides that service of process shall be made on an individual:
(A) by delivering a copy of the summons and of the complaint to him personally; or by delivering a copy of the summons and of the complaint at his dwelling house or usual place of abode to a member of his family above the age of sixteen (16) years and giving to such person information of the purport of the summons and complaint; or by delivering a copy of the summons and of the complaint to an agent or attorney in fact authorized by appointment or statute to receive or accept service of process in his behalf [.] (emphasis added).
. Like Rule 4(d)(1)(A), Rule 4(d)(8) provides:
Foreign corporations and business trusts not qualified to do business. — Upon a foreign corporation, including a business trust, which has not qualified to do business in the State, (A) by delivering or mailing in accordance with paragraph (1) above a copy of the summons and of the complaint to any officer, director, trustee, or agent of such corporation; or (B) by delivering or mailing in accordance With paragraph (1) above copies thereof to any agent or attorney in fact authorized by appointment or by statute to receive or accept service in its behalf (emphasis added).
.We note that plaintiffs would not be prevented from attempting some other method of service of process such as service upon the Secretary of State, a designated agent, or any officer, director, trustee or agent of the corporation. See note 1, supra. | [
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WILLIAMS, JÜDGE:
E. E. Freeman died in June, 1905, leaving- a will by which he disposed of the whole of his large estate to two brothers, C. W. and W. G. Freeman, and to a cousin, E. W. Freeman. He had no children, but he left a widow, two sisters, a number of sisters of the half blood, and children of a deceased brother, also of the half blood, who are contesting his will. This suit was originally brought by the widow, Lizzie Freeman, for whom testator made no provision whatever in his will. The court below denied her right to contest the will; and, from the order of the circuit court of Mercer county dismissing her appeal from the order of probate made in the county court, she appealed to this Court. That appeal resulted in a reversal of the lower court, this Court holding that, there being no provision made for her in the will and, therefore, nothing for her to renounce, under the statute, she could contest the will. The cause was remanded. The opinion in that case is reported in volume 61 at page 82 of the West Virginia Reports. After the cause was remanded a compromise agreement was made between the widow and the proponents of the will, whereby she was paid $150,000 in consideration of her distributive share in her husband’s estate; and she ceased to prosecute' her suit further. Thereupon the heirs-at-law of R. E. Freeman were made plaintiffs, and were permitted to proceed with the contest. Upon an issue of devisavit vel non a verdict was rendered holding the will which had been probated in the county court to be the true last will and testament of R. E. Freeman. The contestants moved the court to set the verdict aside, and the court took the motion under consideration until the next term; and on the 28th of August, 1909, overruled the motion, and entered judgment of probate. From that judgment contestants have obtained this writ of error.
During the trial a number of exceptions were taken to the rulings of the court, refusing to admit certain testimony of contestants’ witnesses, and admitting, over their objection, certain testimony of proponents’ witnesses. Many witnesses were examined pro and con, and the testimony is voluminous. It relates chiefly to the question of testator’s mental capacity to make a will, and to the question whether or not it was procured to be made by undue influence.
The first point made is, that the evidence does not prove the will to have been duly executed. We think the evidence is sufficient on this point. The two subscribing witnesses, R. B. Smith and E. II. Witten, both testified for the proponents. Smith says: “He (meaning testator) asked me to witness his signature .to his will.” Witten does not say that he was asked to witness his will; but says he was asked by R. E. Freeman to witness his signature, and that he did so; that he did not read the will, but did read the attestation clause, which is in the usual form and recites all the facts necessary to show the signing and witnessing of the will in the manner required by law. The reading of the attestation clause informed him that he was witnessing a will. It is not necessary that the subscribing witnesses to a will should know its contents; it was only necessary for the attesting witnesses in this case to know that they were witnessing the signature of K. E. Freeman to his will; and their testimony proves that they knew that. Their testimony also proves that they and the testator were all three together when he signed it, and they witnessed it. It, therefore, appears that all legal requirements were fully complied with, so far as the formal execution of the will is concerned. The law requires a will, not wholly written by the testator, to be attested by two subscribing witnesses; but there is no rule of evidence requiring it to be proven by the two attesting witnesses. In Webb v. Dye, 18 W. Va. 376. (syl. pt. 4) it was held: “A will must be subscribed but need not be proven by two attesting witnesses.” To the same effect also is the holding in Jesse v. Parker, Adm’r., 6 Grat. 57.
In Savage v. Bowen, 103 Va. 540, the court says: “It is not necessary that the attesting witnesses to a will should have been expressly requested by the testator to act in that capacity. The request may be implied from the surrounding facts and circumstances. Neither is it necessary that the request to attest should have been made at any time prior to the act of attestation. It may have been made at the time the will was being subscribed, as well as before, or the testator may acquiesce in and ratify the act of attestation at the time it is done.”
The court rejected the testimony of C. H. F. Scott and S. A. Toy, husbands, respectively, of Barbara Scott and Caroline Toy, two of the contestants. They were offered as non-expert witnesses, to prove the mental incapacity of the testator, and .were shown to have knowledge of sufficient facts and circumstances to entitle them to give their opinions as to the sanity, or mental capacity, of testator, if they had been otherwise competent. It was also shown that, if they had been permitted to testify, they would have stated that, in their opinions, he was not, at the date of the execution of the will, mentally capable of making a will. Counsel insist that, although the wife is excluded from testifying because of her being a party to the suit or interested in the result of it, the husband may, nevertheless, testify in respect to the matters concerning which the law forbids her to speak; and they cite the following cases to sustain the contention: Hudkins v. Crim, 64 W. Va. 225; Weese v. Yokum, 62 W. Va. 550; Hollen v. Crim, 62 W. Va. 451; and Sayre v. Woodyard, 66 W. Va. 288. But we do not so interpret sections 22 and 23 of chapter 130 of the Code (1906). Only bne of the above cases, in any measure, supports the contention of counsel. It does appear that in Hudlcins v. Onm the Court held that a husband may testify in respect to a matter as to which the wife could not have testified, because of her interest in the result of the suit. The right of the husband to testify was based upon his having no interest in the wife’s property there involved,. and which would have been saved to her in the event Hudkins had prevailed in his contention. The effect of the marital relation and the importance to be given to it in construing the statute seems not to have been called to the attention of the court, and it is not discussed in the opinion. The fact that Hudkins had been allowed to testify was not a turning point in that case, as the court held his testimony to be of little importance. If the court’s attention had been called to the case of Kilgore’s Adm’r. v. Hanley, 27 W. Va. 451, that case would no doubt have been followed, and Hudkins would have been held to be an incompetent witness; because it was clearly not the purpose of the court to overrule that case; no mention is made of it. But even if Hudkins had been held to be an incompetent witness the court’s judgment would have been the same as it was in that case.
In Kilgore’s Adm’r. v. Hanley, supra, it was expressly held that the wife of the defendant was an incompetent witness, against the administrator, to prove a personal transaction or communication had personally between herself or her husband in her presence, and the deceased. That decision was based, not upon the interest of the wife in the claim of the husband to be determined by the suit, but upon the common law doctrine of the unity of husband and wife and the identity of their interests, and upon the policy of the law to preserve this doctrine for the safeguarding of the marital relation. The following proposition is clearly deducible from the decision of that ease, viz.: That, if one consort is forbidden by section 23, chapter 130, Code, to give testimony in regard to a personal trans action or communication had with a decedent, because of his or her being a party to, or interested, in, the result of the suit* the other consort is also denied the right to testify. The denial of the right rests on two grounds, viz.: (1), if the testimony offered would be in favor of the other consort, it is excluded on the ground of identity of interest of husband and wife; and (2), if the testimony is adverse to the interest of the other consort, it is excluded on the ground of public policy. It would certainly not be conducive to domestic happiness and concord to permit one consort to testify against the interest and the will of the other.
The other cases relied on by counsel for contestants are not in point. Hollen v. Crim, supra, involved the right of a son, who was not a party to the suit, to give testimony concerning a personal transaction between his father and a deceased person. Weese v. Yokum, supra, presented the same question. Sayre v. Woodyard, supra, decided the question of the right of the maker of a note, in an action by the assignee against the administrator of assignor, to prove the assignment and payment to the assignor as agent of the payee.
The next question is, did the excluded testimony relate to a personal transaction between the witness and deceased? Was his testimony concerning the mental condition of testator, a personal transaction or communication had with him in his lifetime, within the meaning of section 23, chapter 130, Code? We think it was. In Anderson v. Cranmer, 11 W. Va. 562, which was a suit brought by the heirs of a decedent to avoid a trust deed made by him in his lifetime, on the ground of his insanity at the time of its execution, the trustee and cestui que trust were offered as witnesses, to prove that they were present at the time of the execution of the deed, and that, in their opinion, based upon the conduct and conversations of deceased at the time, he was sane; and it was held that they were incompetent witnesses, because their opinions were formed from facts which were personal transactions and communications within the meaning of the statute.
In Trowbridge v. Stone’s Adm’r., 42 W. Va. 454, a suit by M. J. Trowbridge, a person of unsound mind, brought by her next friend against the administrator of her deceased com mittee, to surcharge and falsify the settlement of said committee’s account which had been made and confirmed under chapter 87 of the Code, the children of the deceased committee were offered as witnesses to prove that they had observed and knew the physical condition of plaintiff, the amount and value of the services performed by her for her committee, and that she was too weak, both mentally and physically, to perform work of any value. Their testimony was rejected, and on appeal, this Court held that it was properly rejected on ground of incompetency of the witnesses, because, as the Court said, such testimony necessarily related to “transactions or communications of the insane plaintiff in which these witnesses were interested against her to some extent and in some way participated, within the meaning and policy of the statute excluding them.”
In construing a statute similar to our own, the court of appeals of New York, in Holcomb v. Holcomb, 95 N. Y. 316, excluded the testimony of an interested witness in relation to the conduct and actions of the deceased, tending to show his enfeebled and dependent condition, and also excluded evidence of statements made by deceased in the hearing of the witness, although not addressed to him, and made in ignorance of his presence. The court further held that: “The words Transactions or communications’ (rrsed in the statute) include every method by which one person can derive any impression or information from the conduct, condition or language of another.”
The purpose of section S3, chapter 130, Code, is to prevent a person having an interest to be affected by the suit from giving testimony concerning the words, or actions of a decedent, which he, if living, could contradict, against those who claim under the decedent. .’Death having sealed the lips of one, the law closes the mouth of the other. Therefore, the words “transactions or communications,” as used in the statute, should be given a liberal construction. To limit their meaning so as to include only individual conversations and direct personal dealings between the witness and deceased, would be too narrow a construction, and would result in defeating the purpose of the statute in many cases. The words of the statute include personal contact with, and observations of, deceased’s conduct, up on which an opinion of his mental condition could be formed. The opinion of a non-expert could be formed in no other way.
“A Transaction’ within the meaning of the statutes under discussion is an action participated in by witness and decedent, or something done in decedent’s presence, to which, if alive, he could testify of his personal knowledge, and the term embraces every variety of affairs, the subject of negotiations, actions, or contracts. It has also been said that personal Transactions’ and ‘communications’ with a person since deceased include every method by which one person can derive any impression or information from the conduct, condition, or language of another.” 40 Cyc. 2314.
The question which we here have was expressly decided by this Court in Kerr v. Lunsford, 31 W. Va. 659, wherein it was held, (syl. pt. 4), that a person who would inherit a part of testator’s property but for his will was incompetent to speak of the testator’s capacity to make the will. In Robin et al., Paupers, v. King, 2 Leigh 140, which was a^ suit by slaves for their freedom, against one who claimed them by purchase from William King, then deceased, plaintiffs offered to prove by Catherine King, widow of William King, deceased, that she had often heard him say, in the presence of the family, that the mother of the slaves was an Indian woman, and the court held her incompetent to prove the declaration.
For a full discussion of the law respecting the right of the husband or wife to testify for or against each other, see Wigmore on Evidence, Vol. 1, sec. 600, and Vol. 2, sec. 2227.
It is insisted that the court erred in allowing non-expert witnesses to give their opinions in regard to the mental capacity of the testator at the time of making his will. Their opinions were based upon facts, more or less important, acquired by observation of deceased and by long acquaintance with him, and by the opportunity thus afforded of forming an opinion of his mental condition. Opinions, thus formed, by non-expert witnesses are clearly admissible.
In Hopkins v. Wampler, 108 Va. 705, the supreme court of appeals of Yirginia says: “Non-expert witnesses may give their opinions upon the question of sanity of a testator when they state the facts and circumstances, within their personal knowl edge, upon which their opinions are based. Whether the witnesses have had sufficient opportunity of knowing and obsei*ving a testator to form a reliable opinion as to his mental condition affects the weight rather than the admissibility of their testimony.”
In Connecticut &c. Ins. Co. v. Lathrop, 111 U. S. 612, which was an action upon a life insurance policy, it became material to know whether or not the insured, who took his own life, was sane or not when he did it, and the court held that the opinion of a non-professional witness as to the mental condition of the deceased, based upon facts and circumstances within his personal knowledge, was competent evidence.
Our own Court, in Jarrett v. Jarrett, 11 W. Va. 584, impliedly holds such evidence admissible. Point 10 of the syllabus in that case reads as follows: “The mere opinions of witnesses not experts are entitled to little or no regard, unless they are supported by good reasons founded on facts which warrant them; and if the reasons and facts upon which they are founded are frivilous, the opinions of such witnesses are worth but little or nothing.”
The knowledge of facts and the opportunity which non-experts have of judging of the mental capacity or incapacity of the testator relates to the value or weight which the jury may give to their opinions, rather than to the admissibility of such evidence. Hopkins v. Wampler, supra.
In Hiett v. Shull, 36 W. Va. 563, it was held (syl. pt. 3), that: “The evidence of his neighbors of sound judgment and fair powers of observation, who have known him long and well, and who have had occasion to observe and test the vigor of his mental faculties, and who can give the facts upon which their impressions and opinions are based, is ordinarily the reliable evidence in such cases.” Non-expert witnesses, of course, should not be permitted to give their opinions based upon knowledge of facts acquired from persons other than deceased. An opinion based upon knowledge acquired from persons, other than deceased, can only be given by experts or alienists. All the witnesses in this case, who gave their opinions as to the sanity of deceased, based them upon some fact or facts acquired by personal observation of, and association with, deceased; and it was the province of the jury to give their opinions such weight as their opportunities to know deceased and to judge of his mental capacity, entitled them to. Many of them knew him intimately for many years; others knew him for a shorter time and not so well.
Testator frequently used intoxicants excessively, and also, at times, used opiates; three days before he made his will he had executed to 0. W. Freeman, his brother, a paper called a trust deed, but which is more in the nature of a power of attorney than a trust deed, whereby he placed in the hands of his brother the control and management of his entire estate; sometime after the making of his will he was taken to a sanitarium in Columbus, Ohio, to be treated for the alcohol habit, and after remaining there for sometime he took his own life; and when his will was made, some of the legatees were present in the room with him. From these facts and circumstances, it is argued by counsel for proponents' that fraud and undue influence in procuring the execution of the will is established. But, like the question of mental capacity, this was a fact which the jury had to decide. It was one of the principal questions involved in the issue of devisavit vel non. In a number of cases recently decided by this Court, deeds and wills have been assailed by similar evidence, and in all of them it was held that such evidence was not sufficient to establish fraud. See Woodville v. Woodville, 63 W. Va. 286; Teter v. Teter, 59 W. Va. 449; and Black v. Post, 67 W. Va. 286. In the latter ease it was held that: “Fraud will not be inferred from proof of the mere opportunity to commit it; there must be evidence of actual fraud; this evidence may be either direct or circumstantial, and, if circumstantial, the facts and circumstances relied on to establish fraud must be inconsistent with fair dealing.”
No fact or circumstance proven in the present case can be said to be inconsistent with fair dealing. The evidence is not of that character which necessarily establishes fraud. The only evidence on which the jury could have based their conclusion, had they found that the execution of the will was fraudulently procured, is proof of the mere opportunity to commit it, shown by the fact that testator did not usually engage in large business transactions on his own account, and by the further fact that some of his brothers were present in the room with him at the time he made his -will. The presumption of law is that testator was not coerced/or unduly influenced; and there is no evidence to overcome this presumption. Moreover, Dr. Hale, who prepared the will, says he obtained the data whereby to draft it, from testator himself, on the 21st of November, the day on which the paper was executed by testator to his brother; he further says the will was executed as he had prepared it.
Counsel complain of the ruling of the court in excluding certain evidence offered by proponents, to show the great value of testator’s estate. We do not see that this testimony was very material. We find, however, that later during the progress of the trial, certain witnesses were permitted to give’ their opinions at to the value of stocks in certain coal companies, owned by testator. This cures the error, if any, in previously ruling it out.
It is insisted that testator did not know the amount and value of his property. This must be inferred from the fact that other witnesses were unable to testify as to its value. But testator evidently knew the great bulk of his property consisted of shares of stock in certain coal companies; he laid the certificates before Dr. Hale on the 21st of November, three days before he made his will. It was not necessary that he should know the value of it. Many men of sane minds and large business capacity do not carry in their minds every item of their property, and often do not know the value of it. Sometimes the best of business men suffer financial loss in consequence of the lack of such knowledge. The jury certainly had before them sufficient evidence to warrant them in believing that testator knew the persons to whom he was leaving his large amount of property and that his will disposed of the whole of it. This is all that the law requires he should know. Testator was only twenty-six or twenty-seven years of age when he died, yet for some years previous to his death he was drawing almost a princely income from his property, and no doubt spent large portions of it in a reckless manner. Still, at the time of making his will, he had large sums of money deposited in banks to his credit.
'The case was argued and submitted to the jury at 11:00 p. m. on the 28th of June, 1909, and the jury were sent to their •room; but, not agreeing, were sent for in a few minutes, and were adjourned over until the next morning; they labored on the ease all that day and until a late hour in the night, being called into court and adjourned over for their meals. On the morning of the second day after the case had been submitted to them one of the jury said to the judge that if he would give to them “an additional instruction of his own on the question of the weight which should be given to non-expert witnesses as to the sanity or insanity of R. E. Freeman that then the jury might be able to agree.” Whereupon the court gave the following instruction, viz.: “The Court instructs the jury that where there is a controversy as to the capacity or the capability of the testator to make a Will that the evidence of his neighbors, of sound judgment and fair powers of observation who have known him long and well and who have had occasion to observe and test the vigor of his mental faculties and who can give facts upon which their impressions and opinions are based, is ordinarily the reliable evidence in such cases. And the Court instructs the jury that in this case the weight to which the opinions of such witnesses as to the mental condition of R. E. Freeman at the time of the making of his Will are entitled, must be determined from the opportunity of such witnesses to observe his conduct and demeanor and the opinions of such witnesses as neighbors and associates of said R. E. Freeman and those who had social and business intercourse with him from his boyhood, and who have observed him in conversation, his conduct, his demeanor and his appearance from his early life, is competent evidence in determining whether or not the said R. E. Freeman at the time of the execution of his Will, had sufficient capacity to do so.”
It is urged that the giving of this instruction is in violation of chapter 38, Acts 1907, and constitutes reversible error. We do not think so. There is clearly no error of law in the language of the instruction. It correctly propounds the rule in relation to the manner in which the jury must determine the value of non-expert opinion evidence, as to the capacity or incapacity of the testator. It gave the jury the correct rule by which they were to determine the value of such opinion evidence, but left the jury perfectly free to determine for themselves the weight or value which they would give to the opinion of any particular witness. It was, therefore, no encroachment upon the province of the jury in respect to their right to determine the weight of oral evidence. Ho expert witness was examined to prove mental incapacity of the testator, but a number of non-experts gave it as their opinion, based on more or less extended acquaintance with testator, that he had not the mental capacity to make a will; and the question was one of fact for the jury to decide upon the conflicting opinions of the numerous non-expert witnesses.
Should a judgment be reversed solely because an instruction was given after the case had been argued and submitted to the jury, notwithstanding it states the law correctly? Speaking for myself, I think the statute goes very far towards encroaching rrpon the constitutional prerogative of the judiciary; and it has been very mirch criticised by the bar of the state. To reverse for such cause would be to deny the court the right to correct its own mistake of law, should it discover such mistake before verdict, by giving a proper instruction to the jury after the instructions prepared by counsel and by the court had been read to them. When this Court can see that a judgment rests on a verdict rendered according to both law and evidence, I do not think it ought to reverse it, simply because an instruction, correct in law, was not given in a particular order. It would certainly entail a great hardship on a litigant who had won a meritorious suit, to reverse his judgment, solely because the court had given an instruction out of time. In my opinion, it would be to reverse the trial court in spite of the fact .that this Court could see clearly that the error complained of worked no prejudice.
We all agree, however, that the statute was not meant to deny to the court the right to instruct the jury, when asked to do so by the jury themselves. Section 5 of the act concludes with the following language: “no instruction shall be read twice, unless it be necessary to read them after being changed as provided in section 1 of this chapter, or upon special request by the jury.” This provision impliedly authorizes the court to give to the jury an instruction not previously read to them, after the case has been submitted, if the jury so request, The request by one juror, the others not objecting, may very properly be considered a. request by the jury.
A number of other assignments are made, but what we have already said sufficiently answers them; and it is not necessary to point them out specifically in this opinion. Our conclusion is to affirm the judgment.
Affirmed. | [
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BRANNON, PRESIDENT :
W. A. Simpson and Isaac T. Mann made a written contract by which Simpson contracted with Mann to build a Presbyterian church in Bramwell. Simpson performed his work in large part, and claiming that the character and cutting of the stone entering into the building was changed from the written contract, rendering the work very .much more costly than it would have been according to the contract. Simpson brought an action of assumpsit for the recovery of compensation for the work be-jond the provisions of the contract, and on the trial the court took the case from the jury and directed a verdict for the defendant.
Counsel for Mann make a strenuous effort to dismiss the writ of error on the ground that the bill of exceptions does not so identify the oral evidence so as to make it a part of the record. IJpon examination of the bill of exceptions we are clearly of the opinion that it very clearly and safely identifies the oral evidence and brings it into the record. This question involves nothing new which "would call for a further reference to this matter.
The written contract, not under seal, provided: “That no alterations or additions shall be allowed or paid for unless the same and the cost be agreed to in writing in advance and no change or modification of this contract shall be recognized unless evidenced by an agreement in writing.” Oral evidence was given for the purpose of showing that change in-the character of the work was ordered in behalf of Mann, and that he agreed to pay for it additional compensation. A brief in the case states that the clause just quoted from the contract constitutes the reason why the court took the case from the jury. 'We do not think that the clause justifies that ruling. I quote from Page on Contracts, sec. 1349: “If the written contract contains an express provision that no change or modification thereof can be made, except by writing to be signed by one or both parties, the parties to such contract may, nevertheless, modify or abrogate it by subsequent oral agreement, since the oral agreement will operate as a waiver of the terms of the contract inconsistent therewith, including that term which requires subsequent modification to be in writing. Questions of this sort are often presented in building contracts, where it is provided that modifications of contracts for extra work must be in writing, and subsequent oral agreements for extra work or modifications are held valid.”. Bishop on Contracts, sec. 7066', asserts this proposition broadly. “When he has agreed that he will only contract in writing in a certain way does not thereby ¡Jreclude himself from making' a parol contract to change it. Thgre can be no more force in an agreement in writing not to agree by parol than in a parol agreement not to agree in writing, and every such agreement is ended by the new one which contradicts it.” Morrison v. Insurance Co., 5 Am. St. R. 63. Shepherd v. Wysong, 3 W. Va. 46. A written contract is of no higher dignity except under the Statute of Frauds, than an oral contract, and the party cannot tie his hands from its modification by prohibiting it unless in writing. Everywhere we find the law to be that a new or changed contract will take the place of or modify a former written contract not under seal. Clarke on Contracts, 610; 9 Cyc., 597. Though brief of counsel for Simpson argue this question, counsel for Mann do not present the want of such written modification as a defence of the action.
Counsel for Mann rests their defence chiefly on the want of a bill of particulars, claiming that under the Code the plaintiff could not offer evidence without it. We see no call made for such bill on the trial. The proper way in which to take advantage of its want is by objection to evidence or a call for it. But really a bill of particulars was used on the trial, and upon certiorari an original declaration and minute bill of particulars were sent up, so that we see nothing in this point.
We think that the court erred in taking the case from the jury and directing a verdict. The oral evidence was in the highest degree conflicting upon the material point whether or not Mann directed the change in the character of the work, and whether the superintending architect was agent of Mann in directing the change, and whether Mann promised to pay for the changed work, and moreover the chief witnesses swear exactly opposite to each other, and their credit is directly involved, and these considerations under well established principles forbade the court directing a Verdict. We express no opinion upon the evidence whatever.. On the evidence the case was one plainly for the jury.
We therefore reverse the judgment, set aside the verdict and remand the case for a new trial.
Reversed. | [
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B'RANNON, PRESIDENT:
The school district of Clarksburg by vote authorized the in-currence of a debt and the issue of bonds for its payment, for the purpose of building one high school and two graded schools. The bonds were sold and their proceeds are in the treasury. The board of education refused to build the high school and one graded school out of such money, on the ground that to do so would call for the purchase of ground for their erection, and the board doubted its power to use any of the money coining from said bonds in acquiring such ground. Howard Post asks of this Court a mandamus to compel the board to build said high school and graded school, and to acquire sites for them, and use such bond money in doing so.
The act of 1908, ch. 27, sec. 13, says that the board of education of every district shall provide by purchase or condemnation “suitable school houses and grounds.” ■
The act of 1911, ch. 70, allows the board to “borrow money and issue bonds for the' purpose of building, completing, enlarging, repairing or furnishing school houses.”
Do the words “school house,” used in the statute, mean land, include necessary land? In Hawkins v. Wilson, 1 W. Va. 117, a summons in unlawful detainer demanded a house and appurtenances. On authority there cited, it was held that the word “house” imported land. “A grant of a house includes land under it.” Devlin on Deeds, sec. 863, citing 32 Am. D. 238 and 45 Id. 220. Devlin on Deeds, see. 1200, says, “Courts have frequently decided that a conveyance of a building or barn, used as a term of description, will convey the land on which the building or structure is erected.” Note 1 in 6 Cyc 115 will support this position. Also Bouvier Law Diet. 963. When the statute says that the money may be used to build houses, it moans that it may be used to acquire land for school houses. Necessarily so. It is a necessary implication, if the words do not per se mean land, as here used. Commanded to build school houses, it is an incidental power because indispensable to attain the end. You cannot build a school house without land on which to build it.
In view of the law above stated, and in view of the purpose which must have been in the minds of the legislators who enacted the bond section, we hold that the words “school houses” include land, for school houses; we hold that the section in giving the board of education power to apply the money arising from the bonds “for the purpose of building, completing, enlarging, repairing or furnishing school houses,” meant to give the board power to acquire land on which to build school houses. We can sea that the Legislature never designed to limit the use of the money to work and material of construction, and deny its use in acquiring the ground indispensable and preliminary to work of construction. This ground is the first thing requisite in carrying out the purpose of the statute — a sine qua non. Otherwise the statute might be abortive.. Certainly it cannot be doubted that such bond money may be used “in completing, enlarging, or repairing” existing school houses; and it would be unreasonable to say this could be done, but a site could not be acquired. Where the reason for this distinction ? I assert that the Legislature meant to give the people of a district, where ordinary levy proves inadequate, power to vote bonds, as well to acquire a site, where necessary, as to construct a school house. Think of the intent and purpose, as we must do when constru ing a statute. Think of the evil to be remedied, the object to be accomplished, and give such a statute such a construction as will effectuate its purpose. We think the other construction would be cramped and technical, forgetful of the spirit, sticking to the mere letter. Brown v. Gates, 15 W. Va. 131, 165.
It is suggested that as to ground for school Douses, sec. 13, serial sec. 1571, of Supplement Code of 1909, commands the board of education to purchase or condempi sites, but that this can be done only by current levy. The section does not so limit. 1 read the two sections together, both providing school houses. Section 13 gives full power to acquire sites, and it is plausible to say that all means of providing money may be used where necessary; that where the ordinary tax levy is not adequate, the people may vote for bonds to supply funds; the bond remedy being additional or cumulative remedy.
The power to acquire land for the purpose is necessarily implied, because the board could not furnish school houses without it. We have seen that the statute commands the board of education to provide by purchase or condemnation suitable school houses and lands. The power to buy land is plainly implied. In the well considered case of Supervisors v. Gorrell, 20 Grat. 505, the court said: “No express power is given them to acquire land for any purpose. But power is expressly given them To build and keep in repair county buildings / * * * * How can they discharge these express powers and duties, without the power to acquire land? Suppose a county is without a courthouse, clerk’s office or jail, and without land on which to build them: how are the board of supervisors to perform their express power and duty in such a case, To build and keep in repair county buildings/ without first acquiring the ground on which to erect these necessary building? The implied power to acquire the ground is as plainly given as the express power to erect the buildings. In the construction of the most naked powers, to which the strictest rules of construction are applied, there is no better settled rule than this, that every power necessary to the execution of an express power is plainly implied.” All the authorities assert such necessary implied power. In 3 Dill. Mun: Corp. (5 ed.) see. 976, it is laid down., DeWtitt v. San Fran cisco, 2 Cal. 289; Territory v. Baxter, 83 Pac. 709; Shiedley v. Lynch, 95 Mo. 487, 8 S. W. 434.
Being of the opinion that the board has ample power under these statutes to apply the money arising from said bonds for the acquisition of land, we award the mandamus.
Mandamus Awarded. | [
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Millbe, Judge1:
In all action for trespass upon land, not involving title, the court below, on motion, struck out plaintiffs’ evidence, directed a verdict lor defendant, and pronounced the judgment of nil capial, to which the present writ of error applies.
The ground of the court’s action, as disclosed by the record, was that, as plaintiffs in their declaration had described the land as a tract in Cove District, Barbour County, containing 16 acres and 60 poles and known as the James Q, Colebank Tract, and also by reference to the deed, as a tract calling for 11 31-160 acres, and also by distinct metes and bounds giving courses and distances, they were bound, as a condition of recovery, to locate the land on the ground by the metes and bounds called for substantially as alleged, which the court was of opinion had not been done. The two descriptive boundaries in the deed referred to are substantially the same, but the first calls for 16 acres and 60 poles, the other 11 31-160 a'cres. It was conceded by the court below that in an action like this it is wholly unnecessary to describe the land with the accuracy and particularity observed in this case, but only so as to give defendant notice of its locality and to enable him to properly plead to the action; but it is contended that having gone beyond the actual requirements and in addition undertaken to describe the land by different and distinct courses and distances, plaintiffs were bound to locate the land on the ground by reference to those courses and distances as alleged.
The proposition which the court below conceded is fully supported by prior decisions of this and other courts- Railway Co. v. Railway Co., 47 W. Va. 726, (syl. 4); Goodwin v. Jack, 62 Me. 414. And it is equally well settled that facts not necessary to maintain the action or defense need not be alleged, and if alleged will be treated as surplusage and need not be proven. Wilson v. Phoenix Powder Mfg. Co., 40 W. Va. 413, (syl. 2); Hogg’s Pleading and Forms, section 137; 31 Cyc. 68, 69-70, 675, 676. An action quare clausum fregit is not a controversy concerning title or boundary to land. Dickinson v. Mankin, 61 W. Va. 429.
But it is attempted to support the judgment below on the theory that neither court nor jury could have determined, upon the evidence, which of the several tracts of land described in the contract and deed relied .on was the one on which the trespass was committed. There is nothing of merit in this proposition. The land on which the trespass is alleged to have been committed was one of the tracts called for in the deed, for which two descriptions are given, substantially the same, except that in the one 16 acres and 60 poles are called for, in the other 11 31-160 acres. Besides it was fully proven that this tract is the same as that recovered by Isaac J. Lohr, plaintiffs’ grantor, in a suit by him against William T. George and others, heard in this court on appeal, and as shown by the record of that cause adduced in evidence, and the same which by substantially the same metes and bounds was conveyed by the Clerk of the County Court of Barbour County to S. L. Reger, Trustee, assignee of W. T. George, the purchaser thereof at a sale of forfeited and delinquent lands, and according to the report of the surveyor who surveyed the same land at the instance of said George. There is no lack of proof of the identity of the land.
The judgment below is reversed and the plaintiff awarded a new trial.
Reversed. | [
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Williams, Judge:
On the 27th of April, 1911, J. W. Guthrie recovered a judgment, in an action of assumpsit, against the Huntington Chair Company, a corporation, for $906; and said company obtained this writ of error.
The record discloses the following facts: The Tucker Chair Company, an Ohio corporation doing business in Manchester, Ohio, owed J. W'. Guthrie $2,000 for which he held its note. The Huntington Chair Company, a West Virginia corporation having its place of business in the city of Huntington, owed the Tucker Chair Company a like sum evidenced by three notes payable at different time, one for $500 and two for $750 each, all dated November 10, 1905. In November 1907, after the Tucker Chair Company’s note to Guthrie had become due, it was settled by payment of interest and $500 of the principal, and two notes were executed to Guthrie, one for $500 payable in six months, and one for $1,000 payable in twelve months, each bearing interest; and the two $.750 notes which the Huntington Chair Company held against the Tucker Chair Company were assigned to him as collateral. This suit is upon one of those notes which became payable on the 10th November, 1909. Defendant pleaded the general issue, and also filed a statement of sets-off and payment, and offered evidence tending to prove that, at the time the notes were assigned to Guthrie, the Tucker Chair Company owed the Huntington Chair Company a balance on account in excess of the note sued on. After the evidence had been introduced the court, on motion of plaintiff, excluded the statement of sets-off. and payment, and struck put all the evidence in relation thereto; and this action of the court is assigned as error.
J. A. Tucker was secretary and treasurer of both companies, and acted in that dual relation to each in effecting the settlement with Guthrie. As secretary of the Tucker Chair Company he executed the new notes to Guthrie and assigned the notes as collateral, in its name. He also made the cash payment to Guthrie by check upon the funds of the Huntington Chair Company, as its secretary. There is no proof of his authority to act in the capacity of dual agent for both the debtor and creditor company, unless it can be inferred from his official relation to each. A corporation acts through its board of directors, and there is no proof that the directors of the Huntington Chair Company ever constituted him its general manager, or invested him with authority to dispose of its assets. It is not even shown that he had authority to execute to plaintiff the notes of the Tucker Chair Company, but the extent of his authority from that company is not material, as the notes he executed to plaintiff for it are not questioned, and are only offered to prove the existence of his debt and the consideration for the assignment of the note sued on. The officer’s authority to dispose of the assets, and to waive the rights of his company can not be inferred from his act. The authority must be first shown to make his act binding on his company. It is not shown that the board of directors of the Huntington Chair Company knew of the assignment of its notes to Guthrie. Its defense, or right of sets-oif to said notes, conld not be taken from it without its knowledge and assent. Neither is it shown that it knew that Tucker was the agent of the Tucker Chair Company; and the policy of the law does not permit an agent to act for two-principals in relation to a matter wherein their interests are antagonistic, without the assent of both with full knowledge of all that affects their respective interests. A principal is entitled to his agent’s best skill and judgment in the performance of his. duties, and he can not render such services to two principals-whose interests conflict. That a man can not serve two masters,, is a principle as true in law as it is in morals. J. A. Tucker acted as agent for two companies that stood in the relation of debtor and creditor, and of course they had opposing interests; to be served. The dual agent could not, without the knewledge and assent of the Huntington Chair Company assign its notes in such a way as to prevent it from using its sets-off against the Tucker Chair Company, as a defense to a suit on the note which the former owed the latter. The principle is well •illustrated by the case of New York Central Insurance Co. v. National Protection Insurance Co., 14 N. Y. 85. There the Etna Insurance Company insured Smith & Son against loss by fire, in the sum of $5,000'; the plaintiff company insured $2,000» of the Etna Company’s risk, and the National Protection Insurance Company reinsured the plaintiff’s risk. There was a» loss, and suit was brought upon the policy of reinsurance. It: provided that it was not to be binding until countersigned by-George E. Stevens, agent of the company, and was so countersigned. George E. Stevens was the local agent of the defendant, company, and secretary and director of the plaintiff company. He was also a member of the executive committee of the board of' directors of the plaintiff company, and as such, together witht the other members of the committee, selected the risk in question as one of those to be reinsured. At his request he was; furnished with blank policies by the secretary of the defendant: company to be used by him, as its agent, in writing reinsurance' on risks which the plaintiff company had taken. On the trial the court instructed a verdict for plaintiff and defendant appealed to the supreme court, and the judgment was affirmed. Defendant then appealed to the court of appeals and that court reversed the judgment. In discussing the effect of a contract made by an agent acting for the two contracting principals, the court, in its opinion at page 91, says: “It is not necessary for a party seeking to avoid a contract on this ground to show that an improper advantage has been gained over him. It is at his option to repudiate or to affirm the contract irrespective of any proof of actual fraud. The principle has been most frequently applied to executed contracts and to sales of land or goods, but in its nature it is equally applicable to executory agreements and to other subjects. The parties to the contract in this case are both corporations, and must of course transact their business through the instrumentality of agents; and Mr. Stevens was the agent of both parties. The plaintiffs were entitled to all his skill and ability, and the defendants had the like claims upon him. Neither required the services of an indifferent person, whose object might be to'secure equal advantages to both the contractors. No one will contend that he, as the defendants’ agent, could have. made a contract to insure himself; but his duty to the plaintiffs required that he should act in their behalf with all the sagacity and discretion which a fair man would have exercised in his own business. There was therefore a mainfest inconsistency in his attempting to negotiate this insurance as the agent for the insurers and the assured.”
The principle was declared and applied in the following cases: Sumners v. Railroad Co., 78 N. C. 289; Hinckley v. Arey, 27 Me. 362. In the last case one point of the syllabus reads as follows: “In making a contract for,the composition of a debt, the same man cannot be the agent of both parties; but when the composition is agreed upon with the creditor by the agent of the debtor, he .can be the agent of the creditor for another and distinct purpose.”
In the following cases, which were suits by the agent to recover compensation for his services, the courts applied the same principle, viz.: Rice v. Wood, 113 Mass. 133; Bell v. McConnell, 37 Ohio St. 396, 41 Am. Rep. 528; Mechem’s Agency, sec. 67.
There is no proof of -any official action by the board of directors of either company authorizing J. A. Tucker to assign the note sued on. A contract made by a dual agent may be avoided by either principal -without showing any special injury resulting from the contract. The law avoids it on the ground of public policy. But it is clear, in the present case, that the Huntington Chair Company is injured, if it is not allowed to file its sets-off.
The fact that the offsets filed antedate the assignment of the note to Guthrie can make no difference. The ease turns upon the failure to prove knowledge and acquiescence by the two companies in his dual agency; and the doctrine of equitable estoppel, as denying to the Huntington Chair Company the right to claim the benefit of its pre-eiisting offsets, has no application.
It follows that the court erred in striking out defendant’s statement of sets-off and the testimony offered in proof of them. The judgment must be reversed, the verdict set aside and a new trial ordered.
Reversed and Remanded. | [
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MillbR, Judge:
In an action of unlawful entry and detainer, begun before a justice, the verdict of the jury, and the judgment of the intermediate court of Marion County, upon appeal, was for plaintiff, for the land sued for. That judgment was, upon appeal to the circuit court, affirmed there, and the case is here upon a writ of error to the judgment of affirmance.
Plaintiff purchased the land sued for at a sale by a trustee to whom the defendant had conveyed it as security for a debt, and had obtained from the trustee a deed for the property, April 11, 1908, which describes the land by metes and bounds, and by reference to prior deeds, exactly as described in the summons.
The first point made is that section 311, chapter 50, Code 1906, does not authorize unlawful entry and detainer by such purchaser against the grantor in the deed of trust. It is contended that that statute, which limits the jurisdiction of a justice, applies only to two classes of cases: First, where there has been forcible or unlawful entry on land; second, when a tenant let into possession by his landlord detains possession after his right has expired, and that the statute gives no right to a purchaser at a trustee’s sale to maintain such suit, the contention being that the language of the statute “the party so turned out of the possession, no matter what right or title he had thereto, or the party against whom such possession is unlawfully detained, may commence suit to obtain possession of the land and damages for its detention, within two years after the cause of action accrues,” is limited to the two classes of cases referred to, and can not be enlarged by construction to include others.
Speaking for ’myself, if uncontrolled by prior decisions, I would be strongly inclined to this construction of the statute. Text books and judicial decisions from other states having similar statutes, hold, that the remedy of a mortgagee or trustee is ejectment, not unlawful entry and detainer. Jones on Landlord and Tenant, §563, citing Arkansas cases and a New York case. These cases hold that a mortgagor is not a tenant within the meaning of the unlawful detainer act. In Tennessee, Griffith v. Brackman, 97 Tenn. 387, 49 L. R. A. 435, holds with decisions from other states, that mortgages and deeds of trust may by specific provisions provide that after breach the mortgagor or grantor in the trust shall become tenants of the mortgagee or purchaser under the mortgage or deed of trust, and the latter be thereby clothed with the rights of a landlord under the unlawful entry and detainer statute. See, also, valuable note to this case, particularly paragraph IY, relating to rights of purchasers under trust deed, referring to cases from other states, including Missouri.. In Colorado, a broad statute, not susceptible of a different construction, gives the right of unlawful detainer in any case where ejectment would lie. Colo. Code, chapter 23, section 1; Smith v. Soper, 12 Colo. Court Appeals Rep. 264.
But the other members of the Court, with whom I am not disposed to disagree, are of opinion that our statute, section 211, chapter 50, and section 1, chapter 89, Code 1906, remedial statutes, should be given a broader and more liberal construction. The statute of Virginia, of 1814, covering the subject, was so construed in the early case of Allen v. Gibson, 4 Rand. 468, Anno. 195. That statute was as of doubtful construction as the present statute of Virginia, 2 Va. Code, 1904, serial section 2716, -which is practically the same as the corresponding sections of our Code. The point of the syllabus of that case, applicable here, is: “Tinder this act, a mortgagee may obtain possession of the mortgaged premises after forfeiture, by the mode of proceeding therein pointed out.” In Hawkins v. Wilson, 1 W. Va. 124, Judge Berkshire, President, in a concurring opinion, referring to this case, says: “As the question of title is not involved in this proceeding, but only the question of possession, and as according to the authority of Allen v. Gibson, 4 Rand. 468, a party who is entitled to the possession as against the defendant, no matter how, or in what manner or mode he may have acquired such right, or whether he has ever been in possession or not, is entitled to this remedy for the recovery of the possession; and as the statute gives this remedy in some cases where ejectment will not lie, to-wit, in the cases of forcible or unlawful entry, I had supposed that a fair construction of the first section of chapter 134 of the Code of 1860, as a remedial statute, would embrace tlie case of a vendee who, as in the present case, had expressly contracted with the vendor for the possession of the premises.”
And coming down to the present, and as showing the construction in Virginia of the present statute we find the case of Wilson v. Wall, 99 Va. 353, holding that the court below rightfully dissolved an injunction enjoining the prosecution of a suit of unlawful detainer by a purchaser at a deed of trust sale against the grantor in the deed of trust, thereby in effect giving the contraction to the statute contended for here. See, also, our case of Brumbaugh v. Sterringer, 48 W. Va. 121, 125, and cases cited.
' But it is insisted that the justice was ousted of jurisdiction by the affidavit of defendant, filed, claiming that the title to the property would come in question,, the facts alleged therein not having been denied by counter affidavit of plaintiff, as provided by section 50, chapter 50, of the Code 1906; and that the duty of the justice was to dismiss the action; and that the filing of such counter affidavit on the trial in the intermediate court, on appeal, did not supply the omission, or give jurisdiction to the appellate court. This proposition' is sustained by Watson v. Watson, 45 W. Va. 290, 296; Richmond v. Henderson, 48 W. Va. 389, and Todd v. Gates, 20 W. Va. 464, cited and relied on, provided the facts alleged in defendant’s affidavit if proven were sufficient to show that the title would in fact be involved in the trial. Brumbaugh v. Sterringer, supra, 125. As in the cases just cited, the facts alleged, if true, and susceptible of proof, were not sufficient to show that the legal title would come in question before the justice. There was no denial of the facts recited in the summons, that defendant made the deed of trust under which the trustee sold, and the plaintiff purchased the property; nor was it denied that the trustee, by his deed to plaintiff, had passed the legal title to the property. The allegation that the deed of trust was not properly executed, because not properly read and' explained to grantors, that their signatures were obtained by misrepresentation and fraud, rendering the trust fraudulent and void; that the precedent conditions to a valid sale had not been performed; that due and legal notice of said sale had not been given as required by law and the terms of the trust; and that the description in the deed was so indefinite and uncertain as to pass no title, &c., we think amounted to nothing more, if anything, than an equitable right to go into a court of equity and by properly pleading the facts avoid the deeds — a mere equitable right, in no way affecting the legal title, nor the rights of the plaintiff in a court of law to maintain unlawful detainer. The facts alleged, if true, showing equitable right or title, were not such as to bring in question the title as contemplated by clause 11, section 50, chapter 50, Code. Brumbaugh v. Sterringer, supra. The record shows that defendant, by suit in equity and injunction sought to defeat plaintiff’s action, but failed.
We see no error, of which defendant can complain in a court of law, and are of opinion to affirm the judgment.
Affirmed. | [
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Lynch, Judge :
This action was brought to recover damages for the negligent killing of Samuel Canterbury, plaintiffs intestate. A verdict and judgment in favor of the plaintiff were obtained in the circuit court. The case is now before us on writ of error. Three grounds of error are relied on in the defendant’s brief: first, that improper testimony was allowed to go to the jury; second, that the jury was improperly instructed; third, “that upon the merits there should have been a verdict for the defendant”.
Canterbury was killed in Marmet, a village of eight hundred inhabitants. His mangled body was found on defendant’s track, ten feet from a crossing, a short time after one of its freight trains had passed. Competent proof sufficiently attributes the cause of his death to a collision with defendant’s train. This fact the defendant only formally denies.
The evidence of which the defendant complains relates to the character of the crossing. It is true, no highway established under the forms prescribed by law crossed the right of way at that point. But the proof shows a long-continued use .of the place where the accident occurred as a crossing. The railroad runs through and divides the town. The residents of the village used the crossing from fifteen to twenty years, in all respects as if it were in fact a public crossing. True, a fence was maintained by the defendant along its track; but it also constructed and maintained a gateway through the fence to the crossing. A driveway extended from different parts of the village direct to the gateway. For years prior to and at'the time of the accident, it had been and was adopted by the public and in constant use as a ready means of access to and from the county road. The defendant placed heavy planks on each side of the outside rails, filled up with ballast the space between the ties, and kept the crossing in repair. Canterbury was killed some time about seven o’clock in the evening. He left his brother at Well’s store, located two hundred feet east of the crossing, about an hour before his death, and was last seen, .immediately after he left the store, approaching the crossing, where he had arranged to meet his brother after going to the post office. The night was dark. Ho one saw the 'accident. The engine was mid-train. It carried a head-light, but other cars preceding the engine obstructed the light. His body was found between seven and eight o’clock. His toes, fragments of clothing, and bloodstains were found on the crossing. The proof is abundant to show that his death was caused by the defendant’s train; and it is liable for the injury, provided the public character of the crossing was such as to require ordinary diligence and care by its agents in order to avoid injury to persons and property using it as a public crossing.
We think the evidence is affirmatively sufficient to support the finding of the jury, as virtually it did find, that the place of in jury was to the extent public that it became and was the duty of the defendant in the operation of its trains to exercise a reasonable degree of care and diligence for the safety of the persons using it as a crossing, and that it was negligence on the part of the defendant to approach the crossing in the manner we have stated, in darkness and without signal or warning of any kind. In Bowles v. Railway Co., 61 W. Va. 272, it‘is said: “The precaution must suit the circumstances, and be adequate under the circumstances.” Bowles was killed at a public crossing; but the defendant sought to avoid liability because he had approached the crossing by walking thereto on the track. This it urged was negligence on his part; but the Court decided otherwise.
In Ray v. Railway Co., 57 W. Va. 333, 338, Judge Beannon, quoting from Elliott on Railroads, says: “In order to impose upon the company the duty to treat a place as a public crossing, those who use the place as a crossing must either have a legal right to so use it, or must use it at the invitation of the company; and 'neither sufferance nor permission nor passive acquiescence is equivalent to an invitation’. If however, the traveler uses a place as a crossing by invitation of the company, it must use ordinary care to prevent injury to him, as where the company constructs a grade crossing and holds it out to the public as a suitable place to cross. Where by fencing off a foot-way over its tracks it induces the public to so use it, by building to the track plank bridges for foot passengers, or by constructing gates in the railroad fence for the use of pedes^-trians who habitually cross'the track, it thereby holds out the place as proper for them to use. Such invitation as imposes on the company the duty of ordinary care is implied, where by some act or designation of the company persons are led to believe that a way was intended to be used by travelers or others having lawful occasion to go that way, and the company is under obligation to use ordinary care to keep it free from danger.”
In Railroad Co. v. Carver, 88 Va. 63, it is held that if “the tracks where plaintiff’s intestate whs killed had long been used by the public with defendant’s knowledge and acquiescence, then deceased was not on the track as a trespasser, but as a licensee”. The same case is authority, if such be necessary, that a railroad company running- its trains through a town must use greater care and diligence to prevent injury to persons and property than is required in less frequented localities or populous districts, and “the fact that pedestrians were accustomed to travel on the track at a particular place, in the knowledge of the company, made it its duty to use greater care in operating its road at that place.” The opinion states that “the track of the railroad lies through the town, and from lots fronting on the railroad, the company had constructed plank bridges for foot passengers, leading from the lot to the track, over and across the usual ditch found there, as in other railroads; and there were three tracks — main, south and north — along in that part of the line; and between the two first named a good wide walkway had been constructed, upon-which persons might safely walk between moving trains. If these things are true, was not the public invited to walk there? and if so invited, were they trespassers? Clearly not.” So, in Railroad Co. v. Burge, 84 Va. 63, it is said that a company running its trains on city streets must use greater care than in less frequented localities, and “it is required of them to resort to special precautions, depending upon the particular locality and the circumstances, to avoid accidents, and any neglect of such precautions as are proper under the peculiar surroundings and circumstances of the locality constitutes negligence.”
Greater care and prudence is required of a railroad company in the operation of its road at places where pedestrians are accustomed to travel on or across its railroad at any particular place than is required at places where the tracks are not so used. A difference exists between the degree of care due from a railroad company under ordinary circumstances to a trespasser and licensee; yet if the company through its agents knows that its right of way at a certain point is constantly in use as a foot-way in a village, town or city, and that people pass over it daily and at all hours, the railroad company can not rvithout fault proceed in a manner which must necessarily be dangerous to such persons, whether trespassers or licensees. II Encyc. Dig. 582, and cases cited.
The doctrine laid down in Huff v. Railway Co., 48 W. Va. 45, does not militate against the views above expressed and the authorities cited. In that case the accident occurred in defendant’s yards and upon its switch tracks — a place to which persons resort at their peril, the company being liable to them only for reckless and wanton injury.
We think the character of this crossing was such as to require the defendant to use a higher degree of care than it did use on the night of the accident. No signals or warning, statutory or otherwise, were given of the approach of the train. There was no light at or -near the front car, nor proof of any except the statement of the brakeman that he was walking on the ground with a lantern, but he did not see the deceased. Hone of the trainmen saw him, nor did they know he had been struck and killed until after the discovery of his body. We are of the opinion, therefore, that the evidence of which the defendant complains was proper, and that no error was committed in permitting it to go to the jury.
Nor do we think the jury was improperly instructed. The first instruction on the plaintiff’s behalf is sufficiently disposed of by the discussion of the evidence relating to the character of the crossing. It was not limited to statutory warnings. It employed the word “warnings” in a general sense; and we think it was the duty of the defendant not only to exercise care and caution, but to exercise the further precaution of having a light at the front of the advancing car and to give some warning of its approach. In the language of the instruction, “the failure to give such signals or warnings was,” in our view, “the proximate cause of the death” of decedent. The giving of the second instruction for plaintiff was also free from error. '“Where the plaintiff has shown negligence on the part of the defendant, if the defendant relies on contributory negligence of the plaintiff, the burden is on the defendant to prove it, unless it is disclosed by the plaintiff’s evidence, or may be fairly inferred from all the circumstances; and, in the absence of such proof, the person injured must be presumed to be without fault.” Railway Co. v. Bryant, 95 Va. 212; Kimball v. Friend, 95 Va. 125; Railroad Co. v. Gilman, 88 Va. 239; Beyel v. Railroad Co., 34 W. Va. 538, 545. The language of these cases is practically identical with that of the instruction itself.
Plaintiff’s third instruction is supported by the case of McVey v. Railroad Co., 46 W. Va. 111. Its propriety is also supported by Beach on Contributory Negligence 3182, where it is said that “where there is no evidence that the party injured stopped and listened the court will not presume he did not stop and adjudge him guilty of negligence, but will leave the question to the jury.” Also McBride v. Railroad Co., 19 Ore. 64, 23 Pac. 814, holds that in the absence of evidence the presumption is that the traveler looked and listened. To the same effect are Railroad Co. v. Weber, 18 Am. Rep. 407, cited in Young v. Railroad Co., 44 W. Va. 218; Railway Co. v. Bryant, supra; Same v. Hansbrough, 107 Va. 733; Railroad Co. v. Griffith, 159 U. S. 603, 611; Roberts v. Managers of Canal, 177 Pa. 183. The proof in this case does not disclose any circumstances upon which this Court can impute to Canterbury any negligence, or, in other words, say that he did not look and listen for an approaching train before going upon the crossing where the injury occurred. There is also absence of any evidence tending to show that he could have seen or heard the train if he had looked or listened. True, Wells, says there were lights burning in his store, about two hundred feet east of the crossing in the direction of the moving train, and the brakeman that he was walking beside the train with lantern in hand; but the jury have virtually passed upon the question whether Canterbury could see the train by means of the light from the store or lantern. One witness for the plaintiff says that while standing on the platform at the depot only a few feet from the track the train partially passed him before he observed it.
Defendant’s instructions refused are either not warranted by the proof or incorrectly state the law. The first instruction was mandatory, and was properly refused, because there was sufficient evidence to carry the case to the jury. The impropriety of the fourth and fifth instructions sufficiently appears from previous discussion. The ninth was defective in its conclusion — “the railroad company would not be liable for his death unless the jury find that the agents for defendant did discover him on track in time to have avoided accident.” It should have contained the qualification, “or by the exercise of reasonable diligence could have discovered him on 'the track in time to have avoided injury.” The authorities are in accord in holding this qualification essential to the validity of such instruction.
We are unable to find error in the record, and therefore affirm the judgment.
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PoREENB.4 RGER, J EDGE :
One branch of this cause has been disposed of by a decision rendered at the present term of this Court. Some of the facts and proceedings and the general character of the suit may be gathered from the opinion then filed.
The Birch River Boom & Lumber Company filed its bill to restrain L. C. Gallaher, special receiver of the Big Tree Lumber Company, from selling certain property of the Glendon Boom & Lumber Company, under an execution which had been levied thereon, and to obtain the appointment of a special receiver to take charge of the. mills and other property of the Glendon company and also the property of Austin, Neib and Yarlett, and operate the plant and convert the products into money. Said Birch River company asserted, as the basis of its right an alleged vendor’s lien on the property and also set up the insolvency of the Glendon company, and obtained both the injunction and the appointment of a receiver.
Later the Bank of Gassaway, J. 1ST. Elder, and Burk Elder recovered judgments against the Glendon company on which executions issued and were levied on some of its property, and that property was sold in parcels to Erame, Marple, Elder, McLaughlin, Given and Mollohan.
James E. Pierson and E. PI. Pierson, suing in assumpsit, attached certain property of the Glendon company, and caused the same to be sold, and purchased it themselves at the sale. In view of these proceedings, the Birch River company filed an amended and supplemental bill for injunctions against further proceedings in said actions at law, for an accounting from Marple and Frame and Sergeant, constable, respecting the property sold under the executions. This injunction was dissolved as to all of the property not included in the order on the original bill, appointing the receiver, and as to all property not purchased from the Birch River company and in so far as it inhibited the prosecution of the actions at law. Later the amended and supplemental bill was dismissed. These are the decrees passed upon in the former decision of this Court to which reference has been made.
A subsequent decree, entered September 28, 1909, authorized the special receiver to sell to the plaintiff, the Birch River Boom & Lumber Company, for the sum of $18,000.00, of which 40% was to be paid in hand and the residue in three equal annual installments with interest, "all the property and franchises, both real, personal and mixed, of whatever description, including the leasehold estates, the mills, booms, dams, splash dams, lumber, timber and logs, franchises and all property whatsoever of the Glendon Boom & Lumber Company,” which sale seems to have been made and confirmed on said date. A decree entered November 30, 1909, referred the cause to a commissioner to ascertain the liens and debts of the Glendon company, their amounts apd priorities, to whom owing, the real estate of the defendant, with the liens thereon, stated in the order of their respective priorities, and the personal and other estate of the defendant, and to state the account of the special receiver, with the amount of property administered and the amount remaining unadministered, if any, and his disbursements in detail. The commissioner, in his report, gave the Birch River company the first lien, D. C. Gallaher, special receiver, the second, one Cowl the third and all the other creditors were given the fourth place to share ratably. There were three exceptions to this report, challenging the soundness of the preferences given. The exception to the allowance of a preference to Cowl was sustained and the others overruled. Thereupon the court entered a decree ascertaining the amount due the Birch River company to be $18,355.31, and the debt due Gallaher, special receiver, to be $898.39, which sums it adjudged to be liens, in the order named, “on all the property and assets real and personal of the said defendant Glendon Boom & Lumber Company, which came into the hands of the receiver”, or to which such receiver was entitled. The same decree recom mitted the cause to a commissioner to ascertain and report what property and money had come into the hands of the receiver or should have done so and the disposition thereof made by the receiver. This appeal is from the decree of sale and the later decree determining questions of priority.
Whether the plaintiff has a vendor’s lien upon the property sold mediately to the Glendon company, through Austin, ISTeib and Yarlett, is a basic question, as to most of the conflicting contentions. Subsidiary ones involve interpretation of the decrees and the relation of the appellants, E, H. Pierson, J. N. Elder, J. W. Given, J. R. Given and B. S. Given, to the cause and the property.
The receiver was authorized by the order appointing him to take charge of the property on which the vendor’s lien was claimed only. By the order made on the amended and supplemental bill, April 26, 1909, he was ordered to take possession of the prop-ertjr of the Glendon Boom & Lumber Company and the logs in the river sold by the constable, and also the lumber sold by constable and not removed.” This was the property purchased at execution sales by Frame, Marple, Elder, McLaughlin, Given and Mollohan, and, under the attachment sale, by James F. and E. IT. Pierson. The injunction awarded against the purchasers, the constables and the execution and attachment creditors was dissolved, as to all the property except that first put into the possession of the receiver, and the amended and supplemental bill, on which the subsequent order extending the powers of the received stood, as well as the original bill, was dismissed, as to James F. Pierson, E. H. Pierson, J. N. Elder, Leslie Frame, R. A. Given, and James R. Sergeant, cqnstable; but there was no express discharge of the receiver as to the property placed in his custody by the order made on the amended and supplemental bill, the property sold under execution and the attachment. Of course these decrees terminated his authority, if they became effective. The dissolution order was entered June 11, 1909, and suspended for 60 days for the purpose of an application for an appeal, but the appeal was not allowed until December 21,1909, four months after the expiration of the stay. The appeal suspended the order and put the injunction back in force, but the record fails to show what became of the property in that four months period. Likely it went back into the possession of the purchasers. As to that the commissioner reports nothing, except the non-appearance of the receiver before him. The stay had expired when the sale by the receiver was authorized, made and confirmed, September 28, 1909, and also when the decree fixing the liens was entered, March 26, 1910. The order of sale is equivocal as to what was sold. .After reciting the ability of the receiver to sell the property, “purchased from the plaintiff” for $18,000.00, it orders and confirms a sale of all the property, franchise, &c., of the Glendon Boom & Lumber Company. Fixing the liens “on all the property and assets real and personal of the said defendant Glendon Boom & Lumber Company, which came into the hands of the receiver herein, or to which said receiver was or is entitled”, the other decree is like unto it as regards certainty. The judgments, executions and attachments relied upon in defense to the amended and supplemental bill were not proved before the commissioner: They may have been satisfied out of the property sold for that purpose and dismissed out of this suit, but this record does not show they were. What became of them is mere matter of inference and conjecture. Thus we are called upon to deal with a case resting largely in the personal knowledge of counsel and not disclosed by the record.
The decrees are presumptively correct, but the presumption is rebutted by inferences arising from the proceedings. The terms of the decree of sale, read in the light of the suspension of the de-' cree of dissolution by the order of the court below and the appeal and supersedeas allowed here, include all the property, but that sold under executions and the attachment may have been released by the receiver as a matter of fact. Likewise the terms of the other decree are broad enough to include all of it. That neither should have included it is placed beyond question by the decision on the former appeal, affirming the decree of dissolution, and the dismissal of the original and amended and supplemental bills as to that property and the claimants thereof. On the face thereof, these decrees are, therefore, erroneous and must be reversed.
The deed reserving the vendor’s lien was never recorded, but it is nevertheless good between the parties. Cole v. Smith, 24 W. va. 287. It is also good as to everybody else except purchasers for value and without notice and lien creditors. As to these two classes, it falls under the condemnation of sections 3 and 5 of chapter 74 of the Code. The property involved seems to be personal property, although the terms of some of the pleadings and decrees are broad enough to cover real estate. As described, however, the property is all personal. If not a statutory vendor’s lien, because applicable to personal property, tlie reservation is in substance and effect an equitable mortgage, ancl falls within the scope of sec. 5 of chapter 74. The creditors protected by that statute are lien creditors, having right to charge the property directly by execution, attachment or otherwise, not holders of mere personal demands or claims. The section applies to both real and personal property. As applied to real estate, it protects only lien creditors. Moore v. Tearney, 62 W. Va. 72. It refers to both classes of property in the same' terms, and there is no reason for according to it broader scope in its application to personal property than it has in the case of real estate. Owing to the mobility of personal property and the rapidity of its changes of ownership and possession, the reason or philosophy underlying the statute opposes extension rather than favors it, for it works restraint upon commerce, necessitating more frequent mutations of title and possession of personal property than of real estate on account of its nature and commercial requirements.
Recognition and enforcement of the vendor’s lien were excepted to for want of proof. The deed is not in evidence, but there was oral proof of such a reservation therein as is claimed. The ven-dees seem to have carried the deed beyond the jurisdiction of the court and insufficiency of this as an excuse for its non-production is asserted. Austin, Neib and Yarlett, the immediate vendees,. apparently promoters of the Glendon company, a,re non-residents and made no appearance, nor did the Glendon company, as u> which the bill was taken for confessed. It, as well as Austin, Neib and Yarlett, is charged with insolvency and abandonment of the property. Search for the deed and other writings, relating to the alleged lien, fails to reveal them. They are neither in the possession of the plaintiff nor under its control. We think these circumstances justified the admission of secondary evidence of the contents of the deed.
According to the report of the commissioner, the appellants are mere general creditors. Nothing is reported in their favor except open accounts. As has already been stated, the record does, not disclose what became of the judgments, proceedings on which were enjoined on the amended and supplemental bill. Hence, as-. to the debts reported by the commissioner and dealt with in the decree, the plaintiffs debt was properly allowed priority.
The priority accorded the lien of Gallaher, special receiver, is also complained of. His execution was issued January 2, 1909, and on January 28, 1909, the sheriff, proceeding under it, actually levied upon'a large amount of the property of the Glendon Boom & Lumber Company. It was returnable to February Rules, 1909. After the return thereof, showing the levy, a writ of venditioni exponas was sued out on February 4, 1909, and placed in the hands of the sheriff. The receiver was appointed on February 26, 1909, before this last writ was executed, although after the property was advertised for sale under it. As-to whether the exeution was levied upon all of the property of the-Glendon Compaq, other than that subsequently levied on and sold to the appellants and others under executions and the attachment, we are unable to ascertain from the record. Gallaher filed an answer, claiming a lien under his fieri facias upon the-property sold by Sergeant, Constable. His rights as to that property, if any he had, have been extinguished by the decree of July 21, 1909, dismissing the. original and amended and supplemental bills as to the claimants by purchase under the sales made by the-constables. But whether his execution was actually levied upon all other property of the Glendon company, the record does not disclose. He clearly has a lien by virtue of the levy of the execution upon the property upon which' it was levied, for it was-levied before the return day and proceedings to enforce the lien-acquired by that levy were in process when the receiver took charge. It only remains to say whether he had a lien upon other-leviable property of the execution debtor upon which no levy was made, other than that as to which the rights of the appellants have been adjudicated to be superior. As to such property, they are not purchasers for value and without notice. Their purpose is to charge it as general creditors of the Glendon Company. If they were such purchasers, the terms of the statute would protect them, the execution not having been docketed. It was a lien upon all the leviable property as against everybody except purchasers for value and without notice from the date of the issuance thereof, though not actually levied. Huling &c. Co. v. Cabell, 9 W. Va. 522; Swann v. Summers, 19 W. Va. 115; Wyant v. Hayes, 38 W. Va. 681. The provisions of chapter 140 of the Code do not give that lien nor -would they continue it beyond the return day, but section 2 of chapter 141 of the Code’ gives the -fieri facias additional force, making it a lien from the time it is delivered to the sheriff or other officer upon all the personal estate of which the judgment debtor is possessed, or to which he was entitled and upon all which he may acquire on or before the return day thereof, with certain exceptions, and then says “and as to all property upon which a lien is hereby given, the said lien shall continue after the return day of the execution.” This broad provision is then qualified so as to protect purchasers for value and without notice, after the return day, by requiring the execution to be docketed. From the time of the docketing thereof, it makes the lien good as against such purchaser upon the property owned by the judgment debtor in the county at the time the execution was placed in the hands of the officer and acquired by him on or before the return day thereof. Hence, Gal-laher has a lien upon not only the property actually levied upon, but upon all other leviable property the Glendon Boom & Lumber Company owned at the date of the delivery of the execution to the sheriff, and all it acquired thereafter and before the return day of the writ, notwithstanding the failure to docket his execution, passage of the return day and actual return of the writ. Puryear v. Taylor, 12 Grat. 410; Charron v. Boswell, 18 Grat. 216; Evans v. Greenhow, 15 Grat. 153.
For reasons already stated, the decrees of sale entered on September 28, 1909, and March 29, 1910, must be reversed and the cause remanded for further proceedings in accordance with principles and conclusions here stated, and the rules and principles governing courts of equity.
Reversed and Remanded. | [
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Williams, Judge :
Farmers National Bank of Claysville recovered a judgment for $4,000.15 against John A. Howard, William C. Handlan and Samuel W. Harper, three several indorsers upon a negotiable note made by the National Telephone Company of West Virginia, payable to. its own order and indorsed by it to said Howard ; and defendants have brought the case here on writ of error.
It is insisted that the demurrer to the declaration should have been sustained for the reasons that, (1) the declaration does not aver non-payment by the maker of the note, and (2) because it does not show title in plaintiff. But we do not think these objections are valid. The maker of the note, who is also payee and first indorser, is not a party to the action; it is against the three several indorsers only. The making of a negotiable note, and each subsequent indorsement and transfer thereof constitute separate promises, or undertakings; and formerly the holder’s remedy was against the maker and indorsers separately. He could bring several suits at the same time, but, of course, was entitled to but one satisfaction. 3 Min. Inst. 4.41: 2 Dan. Neg. Inst. (5th ed.) sec. 1203. But by virtue of statute, sec. 11, eb. 99, Code 1906, he is now permitted to sue the maker and the several indorsers, or any intermediate numbers of them, jointly. The giving of the right thus to sue and obtain a joint judgment, however, does not create joint promises of the several undertakings of the maker and indorsers; the nature .of such undertakings remains tire same as at the common law. The Statute, which relates to the remedy only, simply permits a joint action to be brought on separate and distinct promises.
In the present case the maker of the note is not sued; its promise to pay is only the inducement to the promises declared on, and hence it was not necessary to aver non-payment by the maker; the breach of its promise was not a material matter. It was only necessary to aver a breach of the promise, or promises, sued on, which are the implied promises of the several in-dorsers. Reynolds v. Hurst, 18 W. Va. 648; 14 Enc. Pl. & Pr. 545; Page v. Snow, 18 Mo. 126; Perkins v. Conley. 4 Blackford (Ind.) 187. The breach, constituting the cause of action in the present case, consists in the failure of the three several indorsers who are sued, to pay; and that is sufficiently averred. The promise of the maker is not sued on and, therefore, its breach need not be averred. 1 Chitty Pl. 332-333.
In an action upon a negotiable note it is essential that the declaration show that the plaintiff has title, and, therefore, a right to maintain his action. Bank v. Hysell, 22 W. Va. 142. Counsel for defendants say that the declaration does not show plaintiff’s title. We think it does. It avers that the National Telephone Company of West Virginia made its note on the 22nd of April, 1910, payable to its own order, in sixty days, at the Farmers National Bank of Claysville, Pennsylvania; that on the same day it indorsed and delivered the note to John A. Howard; that he indorsed and delivered it to Samuel W. Harper; that said Harper likewise indorsed and delivered it to William C. Handlan; and that said Handlan “indorsed and delivered” it to the plaintiff, all on the day of its date. Does not this show plaintiff to be the owner of the note? What more is needed to pass title to negotiable paper than the in-dorsement by the holder and delivery of possession? Having been indorsed in blank by the payee, the note might thereafter have been transferred by delivery, even without further in-dorsement; because it then became, in effect, a note payable to bearer, title to which would pass by mere delivery. 1 Dan. Neg. Inst. (5th ed.) secs. 663 and 729. The averment is not only sufficient to show title in plaintiff, but is a complete deraignment of its title from the maker down through all the different holders.
It is likewise urged that plaintiff’s ownership of the note was not proven. The action was tried by the court, in lieu of a jury, upon the general issue of non-assumpsit; the note and certificate of protest were produced by plaintiff’s counsel and identified by witness W. H. McDaid, the notary who protested it. Possession by plaintiff’s attorney was, in law, plaintiff’s possession; and possession of a note, indorsed in blank, is prima, facie proof of ownership. Bank v. Simmons, 43 W. Va. 79; 1 Dan. Neg. Inst. (5th ed.) sec. 812, and numerous cases cited in note. Defendant offered no evidence, -and such prima facie proof was sufficient to establish plaintiff’s title.
It is claimed that no notice of protest was given to Samuel W. Harper. But the record establishes the contrary. It was proven that the notary enclosed notice in an envelope, addressed to “Sam. W. Harper, Treas.” at Wheeling, West Virginia, and placed it in the post office at Claysville, Pennsylvania, on the evening of t)ie da)' on which the note was protested. That was all the law required. Sec. 104,, eh. 81, Acts 1907. He is presumed to have received it in due course of mail. Sec. 105, ch. SI, Acts 1907.
That the notice was addressed to him as treasurer, is immaterial. The purpose of the address is to insure delivery to the proper person by the post master; and the addressee was as likely to receive the notice, addressed to him in that manner as if it had been addressed to him by name only. The certificate of protest shows that it was against the maker and all of the in-dorsers, in their individual capacity. By reading it Mr. Harper was advised that his personal indorsement of the note in question had been protested. A question bearing some analogy to this was decided in Bank v. Wetzel, 58 W. Va. 1, in which it was held that: “A notarial notice of protest of non-payment of a note addressed to an endorser as if living, when the endorser is dead, if actually received by his administrator, is good to charge such endorser’s estate.”
Counsel for plaintiff cross assigns error, in that he says' there is a mistake in the amount of the judgment, that ii is seventy dollars less than it should have been. The mistake is clearly shown by the record, for the amount of the court’s finding is $4,070.15, while judgment is rendered for $4,000.15. Sec. 6, ch. 134, Code 1906, authorizes the correction of such a mistake by this court although no motion to have it corrected has been made in the court below. That' the mistake is less than the amount necessary to give right of appeal to this Court is not material. The case being here on other assignments of error which are jurisdictional, gives right to correct an error involving less than the appealable amount. Jenkins v. Montgomery, 69 W. Va. 795, 72 S. E. 1087; James v. Piggott, 70 W. Va., 435, 74 S. E. 667. The judgment will be corrected so as to read four thousand and seventy and 15/100 dollars, instead of four thousand and 15/100 dollars; and. as thus corrected, it will be affirmed.
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Robinson, Judge:
Plaintiff, forty-two years old and no doubt comely, sued defendant, seventy-six years old and well-to-do, for forty thousand dollars damages because he did not keep his promise to marry her. She recovered, through the verdict of a jury, a judgment against him for $2,408.33. A reversal and new trial are sought.
The verdict is by no means contrary to the evidence. The promise is admitted by defendant in his testimony; the breach is proved by the testimony of plaintiff and by facts and circumstances which corroborate her testimony in that regard. The jury were fully warranted in finding that defendant broke his promise to marry plaintiff. They were the judges of the amount of compensation that she should have for the injury. The damages found are not excessive.
The brief on behalf of defendant is devoted wholly to complaint in regard to instructions. No other points are relied on in the argument. A review of the objections lead us to say that they are not well taken. Let us now, as briefly as may be, notice these objections.
In plaintiff's first instruction the jury were told that if they found from the evidence that a contract was made between the parties whereby defendant promised to marry plaintiff, and that defendant broke the contract and refused to comply with his promise, then the plaintiff was entitled to recover, and they might so find. The instruction then proceeds: “In ascertaining, determining and assessing plaintiff’s damages, not to exceed the amount sued for, the jury should take into consideration the financial circumstances of the defendant; his social position, and all the rights and privileges the plaintiff would have acquired pe-cuniarily and socially if the defendant had performed his con tract; the worldly advantage of a marriage which would have given her a permanent home and an advantageous establishment; the injuries and wounds to plaintiff’s feelings, affection and pride, the disappointment, humiliation, mortification, contempt, pain and distress of mind she suffered at the loss of the marriage, and the station in life plaintiff would have occupied as a result of her marriage; injury to her future prospects of marriage; injury to her reputation, moral or physical, resulting from the defendant’s refusal to perform his promise.” It is submitted that this instruction is wrong — that in assessing the damages the jury could take into consideration only “injured feelings, anxiety of mind, wounded pride, or blighted affections.” But under the facts and circumstances proved in this case and the reasonable inferences arising -therefrom, this instruction was a proper one except in a particular of mere surplusage as to which we shall speak. The case called for a consideration of the elements of damages named in the instruction, except in that one particular. The law warrants a consideration of such elements in a case like this one. 2 Sedgwick on Damages, (Ninth Edition), secs. 638, 638a, 638b, 639a, 641; 3 Sutherland on Damages, (Third Edition), secs. 986-988.
Our attention is directed to the use of the phrase “injury to her reputation, moral or physical.” This phrase has been before used in a breach of promise case. Goddard v. Westcross, 82 Mich. 180. However, in that case there was evidence on which to base injury to the plaintiff’s physical reputation. There it was claimed the defendant, as an excuse for the breach, had circulated statements accusing the plaintiff of physical disease. It is not so in this case; for the only injury to plaintiff’s reputation which the jury could find is that which they might say naturally arose from the notoriety of the broken engagement. The words “or physical” were not in place. As trial judges, we would not have used them, but it would be going far to reverse the judgment merely because the instruction contained them, when the facts and circumstances in evidence did justify a consideration of injury to her moral reputation. The instruction did not bind the jury to a consideration of injury to physical reputation, for in that regard it is in the disjunctive. The words used “or physical”, are quite different from “and physical.” We shall not assume that they carried weight to the jury in the face of the fact that no injury to physical reputation was proved or could be inferred from the evidence. In the ordinary reasoning of intelligent jurors, these words as applied in this case would be considered as mere surplusage. On the whole case, we clearly see that the use of these words of surplusage did not mislead the jury. We must not be prone to reverse on slight grounds.
Another objection urged as to the instruction is that it precludes the consideration of anything mitigative of the damages. It does not do so. Besides, if the evidence warranted a theory of mitigation, defendant could have asked an instruction on that subject. He asked none on that score. But the court did deal with the subject of mitigation, as we shall presently show, in such a way that defendant’s rights in that particular were by no means prejudiced.
For a clear disposition of the objections made to another of the instructions given at plaintiff’s instance, we must set out the whole of it as follows: “The court instructs the jury that if they believe from the evidence in this case, that plaintiff Mattie B. Kendall and the defendant L. B. Dunn entered into a contract whereby the said defendant 'L. B. Dunn contracted with and promised to marry the plaintiff, Mattie B. Kendall, as alleged by her, and that said defendant refused to marry plaintiff prior to the institution of this action, it was an absolute repudiation of the contract; and that plaintiff was justified in treating it as having been violated and suing for damages for the breach thereof. That plaintiff was no longer bound to perform the contract after refusal of performance, by the defendant, and that a subsequent offer of performance, by the defendant, after the plaintiff, (the injured party) had signified her intention to terminate it, constitutes no defence to this action "for the breach of said contract. That said offer after this action was brought, is not ground for' mitigation of damages. And the jury should find for the plaintiff such damages as they adjudge right not exceeding the amount sued for.”
This instruction is objected to because it told the jury that an offer by defendant to perform, made after defendant broke the contract and after plaintiff, because of the breach, had signified her intention to terminate the contract, was no defense to the action. It is said that this statement of the law is contrary to tlie holding in Connolly v. Bollinger, 67 W. Va. 30, which asserts that such a subsequent offer of performance “does not bar recovery.” It is argued that there is a great difference between “constitutes no defense to the action” and “does not bar recovery” —that the former phrase precludes mitigation of damages. Certain it is, however, the phrase complained of is the language of the text writers and courts in this connection generally. The word “defense” is used in the sense of “bar.” 5 Cyc 1004; 2 Parsons on Contracts, (Eighth Edition), 68; Holloway v. Griffith, 32 Iowa 409; Kurtz v. Frank, 76 Ind. 594; Southard v. Rexford, 6 Cow. (N. Y.) 254. The use of the word “defense” instead of the word “bar” in the instruction before us could not be understood to eliminate from the consideration of the jury any question of mitigating the damages because of a renewed offer to marry before the suit was instituted. In the very next sentence, the jury were told that an offer to renew and perform would not mitigate the damages if made after the suit was brought. Were not the jury thereby virtually told that mitigation could be considered as to an offer made before the suit was brought? The instruction in effect told them that mitigation of damages on account of an offer to renew and perform was limited to such an offer made before the suit was instituted. It did not totally bar a consideration of mitigation of damages on account of such an offer, as is contended.
We have had doubt as to whether the instruction left to the jury a question as to which the evidence was conflicting. Did it allow the jury to find whether the offer to renew and perform was made before or after the suit was brought? Or, did it assume and tell the jury that the subsequent offer was made after the institution of the suit? After mature reflection we are of opinion that the instruction sufficiently submitted to the jury this controverted question. The evidence plainly proved an offer to perform made subsequent to the breach. The only controversy in relation to that offer was whether it was made before or after suit was brought. The instruction did, we think, contemplate a determination of this question by the jury. It did not directly assert that the offer was made at any particular time. It did say “that said offer after this suit was brought is not ground for mitigation of 'damages.” But this is only one way of saying “that said offer if made after this suit was brought is not ground for mitigation, of damages.” In the light of the case before them, the jury could not reasonably have interpreted it otherwise.
Then was the instruction sound in law ? We may readily approve it in that regard except as to the proposition that an offer to marry subsequent to the breach but after suit is brought is not ground to mitigate the damages. As we have stated, this indirectly asserts that damages may be mitigated by an offer before suit is brought. May the damages be mitigated by an offer to renew and perform? And if so, is mitigation on this score limited to such an offer made before the bringing of the suit ?
An eminent authority says: “An offer of the defendant, after breach, to marry the plaintiff may be shown as bearing on the amount of damages. This is perhaps not properly mitigation of damages. * * * Dnder certain circumstances the offer will not mitigate the damages; as where the defendant by his misconduct has made an acceptance-of the offer impossible.” 2 Sedgwick on Damages, sec. 6'41e. Another says: “It is doubtful if any hard-and-fast rule can be laid down on this proposition. The facts and circumstances of the whole case will determine whether su,ch evidence is to be received or rejected.” 3 Sutherland on Damages, (Third Edition), sec. 990. That which the Indiana court has written is quite pertinent: “The fact and circumstances of the refusal or breach may often-be such as to bar the possibility, or at least the probability, of any happy results from marriage, between the parties, and the defendant, in such a case, should not escape the consequences of his willful breach of the engagement’ by offering to consummate a marriage whose auspices were already beclouded by his bad faith and deceit. * * * How far such an offer to renew and perform the broken engagement may go in mitigation of damages, must be left in each case to the jury, or to the court trying the case.” Kurtz v. Frank, supra. The decision from which we have just quoted deals with a case in which the offer to renew and perform was made before suit brought. Indeed the only case we have observed that sanctions mitigation for such an offer after suit is Kelly v. Renfro, 9 Ala. 441. Strong reasons against permitting proof of such an offer after suit is brought are found in Bennett v. Beam, 42 Mich. 346.
We conclude that the jury may, when the circumstances war rant, take into consideration in assessing the damages proof of an offer to renew and perforin made prior to the beginning of a suit on the breach. But we can not sanction the mitigating of damages by an offer to renew and perform after suit brought. It is clearly against the well established general principle that evidence of facts occurring after the beginning of suit can not be given in aggravation or mitigation of damages. Greenleaf v. McColley, 14 N. H. 303; Miller v. Hayes, 34 Iowa 496. In a breach of promise case, Judge Lucas referred to this principle, saying: “The general rule, however, in all such cases, is that no evidence can be given of any fact having a tendency to aggravate or diminish the damages, which has occurred after the commencement of the suit.” Dent v. Pickens, 34 W. Va. 240.
The instruction propounded correct principle wherein it forbade a mitigating of the damages because of any offer to renew and perform made after the beginning of the suit. Under this instruction, if the jury believed from the evidence that the offer was made prior to the bringing of the suit, they could give the fact such weight in assessing the damages as they thought it deserved in the light of all the proof attending it. Thus the instruction did not deny any right in this connection to which defendant was entitled.
The two instructions given for defendant quite fairly presented about the only theory of the case on which he could rely under the evidence. One of those refused, predicated on the jury’s believing that no day for the marriage had been agreed upon, was clearly not warranted by the evidence, for both plaintiff and defendant testified that a day had been fixed. Two others were properly refused, since they would have narrowed a consideration of the damages solely to those arising from “injured feelings, anxiety of mind, wounded pride and blighted affections.” The evidence justified a consideration of other elements of damages also. Of the remaining two, neither was good. They were bad because they omitted a most important condition — the jury’s believing that at no time did defendant break the contract to marry. It will serve no great purpose more definitely to explain. Counsel will understand. The point is not important.
Finding no error to the prejudice of defendant, we affirm the judgment.
Affirmed. | [
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MilleR, Judge:
Proceeding according to chapter 105, Code 1906, the State in November, 1909, filed its bill in the circuit court of Tucker County to sell for the benefit of the School Fund, a tract reported by the Commissioner of School Lands as waste and un appropriated land, lying partly in Tucker and partly in Randolph Counties, and described by metes and bounds as containing 610 acres, more or less. This bill made C. AY. Maxwell, John H. Moore, Haymond Hansford, and Christian Felty, trustee, claimants of the land, defendants thereto.
The sufficiency of the bill, which we think good, was challenged by demurrer, and defendants also answered. On filing their answers defendants moved an immediate submission of the cause for final hearing; but without formal action on this motion, the court below, without objection, deeming it a proper case, referred the cause to a commissioner, with direction to report upon the several subjects of inquiry required in the order.
It is- contended here, on behalf of defendants, appellants, and as ground for reversal, that it was error to have so referred the cause, before proof by plaintiff of the allegations of its bill, and a decree adjudging it entitled to the relief prayed for. We think there is nothing of merit in this contention. In the first place the denials in the answer are not of that specific and unequivocal character to show clearly that plaintiff was not entitled to relief. For instance, the bill charges that the deed from Stark L. Baker, Commissioner, December 3, 1900, on which defendants rely as source of title to the main body of the land, does not cover any part of the land in controversy, but describes land located in a different locality than that proceeded against. As the case was presented by the pleadings and exhibits it was utterly impossible for the court, without a reference to a commissioner, and a survey and location of the lands provided for, to adjudicate the rights of the parties. Lines and boundaries are uncertain. The true location of the line between Randolph and Tucker Counties, and whether any of the land proceeded against was located in Tucker County, so as to give the court jurisdiction, was controverted, and a survey was necessary to settle that fact. So a reference was proper for this as well as other reasons, according to general rules governing courts of equity. State v. King, 64 W. Va. 546, point 6; State v. Jackson, 56 W. Va. 558. Morever, section 8, chapter 105, Code, and sections 9 and 10 of the same chapter, seem to contemplate an order of reference in all proceedings under this chapter, not only to enable the court to determine whether the State has land subject to sale, but that the notice provided therein may be published and posted, so as to bind all parties and all unknown owners or claimants of any tract or part of a tract proceeded against. See Yokum v. Snyder, 42 W. Va. 357, 358. Defendants, without objection, appeared before the commissioner, took testimony in support of their defenses, and cross examined plaintiff’s witnesses, and by exception to the commissioner’s report, for the first time made the point that the reference was premature and erroneous.
Of the 610 acres, more or less, proceeded against, the commissioner found, and the court decreed, that after deducting lands owned by defendants and others, to which good title had been acquired, there remained subject to sale as waste and unappropriated land belonging to the State, 308.61 acres, which should be sold for the benefit of the school fund. Defendants, Moore, Maxwell and Deity, trustee, have appealed.
In 'their answer to the bill defendants rely solely, as source and color of title, first, on a deed from Valentine, special commissioner, made June 22, 1901, pursuant to a decree of confirmation of prior date, alleged to cover 79 95/160 acres ; second, a deed from Stark L. Baker, commissioner of school lands, to J. H. Moore, December 3, 1900, describing by metes and bounds a tract containing 1,000 acres; and third, two deeds, one made by said Moore to defendant Maxwell and H. A. Moore, jointly, about January, 1902; the other by said N. A. Moore, reeonveying to his grantor, his interest in the land described in the first deed, both deeds describing the land purporting to be conveyed by identically the same boundaries as those recited in the bill describing the tract proceeded against. Respondents Moore and Maxwell allege in their answer that on July 20, 1907, they conveyed all their interest in said land to Christian Deity, trustee, and thát they have no interest therein except as vendors for the lien retained for the purchase money.
The decree of sale, following the commissioner’s report, eliminates the 79 acre tract, claimed by the defendants, and no part of that tract is decreed to be sold. It is clearly shown by the evidence before the commissioner, and the report of the surveyor filed therewith, that the deed from Stark L. Baker, commissioner, to Moore, covers no part of the land decreed to be sold. According to the evidence taken before the commissioner the land described in that deed is situated in Dry Pork District, more than ten miles from the land proceeded against, and it is not seriously contended here by counsel for appellants that that deed gives color or claim of title to the land decreed to be sold. On this appeal counsel for appellants rely mainly, on the deed from John Ii. Moore to Maxwell and N. A. Moore, of January, 1902, and the reconveyance of N. A. Moore to J. H. Moore. But neither the originals nor copies of these deeds, inter partes, were exhibited with the bill or answer, or before the commissioner. The general replication of the plaintiff put in issue the fact of the existence of such deeds and the land purporting to be conveyed thereby.
To defeat the State’s suit, defendants rely upon color and claim of title, possession, and payment of taxes for a period of five years, and transfer of the State’s title, by virtue of section 3, Article 13, of the Constitution, and section 6, of chapter 105, Code 1906. Of the three classes of persons favored by the constitution and statute, it is clear from the record that appellants do not fall within the first class, for they do not show color and claim of title for ten years. We think the evidence does show that they paid taxes for five consecutive years, as contemplated by the statute; but they do not show, as they must to bring themselves within that class, that they had actual continuous possession of the property under color or claim of title for the period of ten years. The deed from Baker, commissioner, would not do for time, as that deed was made December 3, 19001, and this suit was brought in November, 1909; and ten years possession is not proven or claimed. Besides, this deed does not cover the land in controversy. Nor, for the same reason, will the alleged deeds, inter partes, of January, 1902. give color or claim for the requisite period.
It is substantially conceded also that defendants do not fall under the second class covered by the constitution and statute, for they showed no title regularly derived mediately or immediately, from or under a grant from the Commonwealth or of this State. Conceding that the Baker deed would amount to a grant of State’s title, a fact not conceded, it does not cover the land, and of course would not amount to a grant of the Commonwealth’s title to the land in controversy.
The strongest case made by appellants is under the third, or last class of favored persons. All that was required to put them under that class was that they should have had claim to and actual continuous possession of the land, under color of title, for any five successive years, after the year 1865, and have paid all the taxes charged and chargeable thereon for that period. We are of opinion that the, deed from J. H. Moore to Maxwell and N. A. Moore, and by the latter to J. H. Moore,, furnished color of title for the requisite period; but actual continuous possession thereunder for five successive years was a pre-requisite condition to the transfer of the State’s title. Was such possession shown? This is the pivotal point in the case. The constitution and statute require actual continuous possession. Such possession is denied by the bill. In reply to this charge, defendants in their answer say: “That during the year 1902 that a man by the name of Summerville lived on these lands and during the years 1903 and 1904 that D. P. Hansford lived on them and since that time up until the present date, Haymond Hansford has had actual, open, notorious and exclusive possession of the same. That ever since they have owned these lands, respondents have had a party living on the same and have had parts of the same under cultivation. Respondents, however, say that no part of the 79 acres, which is all the land they own in Tucker County or have any claim to, has ever been under possession, except that they have had a tenant to look after the same and keep away trespassers.”' Here is an admission of no actual possession upon the 79 acre' tract. Moreover, the alleged possession of Summerville, in-. 1902, and of Hansford, during 1903 and 1904, is not alleged to-have been under appellants. The allegation that Hansford had actual, open, notorious and exclusive possession after the-year 1904, falls short of the requisite elements. But what are-the facts about the possession? ’ The commissioner on the-evidence before him found against the appellants. They have-excepted to his report. The evidence of the witnesses before the-commissioner, including appellants themselves, is quite indefinite and uncertain. Appellants seem to have relied mainly on the alleged possession of II. L. Hansford. When asked about this alleged possession, John II. Moore testified, that II. L. Hansford had general charge of all the property; that Byer Johnson had a written contract as to a part of it to cleay some land; and that one C. N. Summerfield had a contract and lived on the property, had a garden on it; that both had written contracts; that Johnson died, but he did not know that he had ever lived on the property. The time and place of the alleged possession by Summerfield is left uncertain. He also refers to some possession by one Rennix, which the evidence shows or tends to show was at or near the mouth of Nail Run, but the actual time and place of this possession is not clearly shown. The evidence tends to show that Johnson, who died, had bought from a school board, an old log school house, located at ■some point on the land, and that through Hansford, perhaps, .Moore had bought out Johnson; but no land was purchased, •simply the old school house; and there was some attempt to •show possession by Hansford by having him lock up the school 'house, but there was no other actual possession of the school house shown, except that Hansford swears that at some time, not definitely stated, he admitted some pulp wood people to ■occupy the school house, but for how long it is not shown. Hans-ford never lived on the land in controversy. Sometime after the year 1903, the testimony shows, or tends to show, Hansford •and appellant had some sort of transaction by which, for a right of way over his land, appellants conveyed to Hansford a ■certain boundary extending over on to the land in controversy, •but the deed, if one was made, is not produced. The boundaries are not defined, and Hansford swears that outside of his .alleged possession of the school house, and the cutting of some brush, and general oversight, he had no other possession. Ref•erence is made by Maxwell and Moore to purchases of certain boundaries from other persons, adjoining or near to the land in controversy, but not within its boundaries. They swear that after the purchase of these lands they had a survey made in 1903, and had them all included within one boundary, but no survey or deed is produced. The tax receipts produced show payment of taxes for 1903 and 1903, on 815 95/100 acres on the waters of Shaver’s Rork; for 1904 and 1906, on 650 acres on the waters of Shaver’s Fork, and 130 acres on Clifton Run. The tax receipt for 1905 was not produced. Reduction in acreage on the waters of Shaver’s Fork is explained by appellants by the fact that in the survey of 1903 they disclaimed and cut out certain undesirable lands.
Is this character of evidence of possession sufficient to overthrow the finding of a commissioner and the decree appealed from? We think not. Before the State can lose its land the claimant must at least show a clear right by the actual continuous possession and payment of taxes for the required period. Support of appellants’ contention is sought in State v. Harman, 57 W. Va. 447, point 11 of the syllabus. That point of the syllabus is: “Actual possession within one of two or more adjoining tracts of land of the same owner is possession of all of them.” But the trouble about this position is, that the evidence does not clearly show actual continuous possession for the required time of any adjoining tract or tracts. There was no survey of the adjoining tracts of which possession is claimed, nor .is the point and time of possession definitely located and fixed. The burden was certainly upon the appellants. Besides, it may be questioned whether the principles in the Harman Case had application here. The facts are different. But we do not decide this point. It is unnecessary. Clear proof of such possession has failed.
What is meant by actual continuous possession, within the meaning of the constitution and statute? Does the uncertain desultory kind of possession proven in this case answer the requirement? We think not. Our decisions say that surveys, cutting wood, occasional occupancy, with payment of taxes will not do. Core v. Faupel, 24 W. Va. 246; Oney v. Clendenin, 28 W. Va. 35. In Wilson v. Braden, 56 W. Va. 372, 49 S. E. 409, it was said: “A mere claim to possession accompanied by occasional cutting of timber, the prevention of trespasses, the payment of taxes and the assertion of title is not sufficient, but it must be such occupation, use or holding of the property or change in its character, as will make such claimant during such statutory period continuously subject to be- treated as a trespasser.”
We do not think appellants have brought themselves within the rule of these cases, as to actual and continuous possession, and our opinion is to affirm the decree.
Affirmed. | [
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Williams, Judge :
The Tygarts Valley Brewing Company was convicted of making an unlawful sale of beer, in wholesale quantity, without a state license therefor, in September, 1909, in the city of Grafton, Taylor county, and brings error.
The state established a prima facie case by proving that defendant made a sale of eight gallons of beer, at its brewery, in the city of Grafton. It was then incumbent upon defendant to prove that the sale was lawful by proving that it had a license which authorized the sale. This is an exception to the general rule of evidence which requires the state to prove every material allegation of the indictment, and is founded on the inconvenience of proving a negative. If defendant wishes to justify the sale, it is easy for him to produce his license, if he has it; it is a matter peculiarly within his own knowledge. The exception to the rule rests on the convenience with which defendant can produce his evidence, and the inconvenience of requiring the state to prove that defendant did not have a license. 1 Greenl. Ev. (16th ed.), sec. 29; 4 Wigmore Ev„, sec. 2512, and note 4; 2 Woolen & Thornton on Intoxicating Liquors, sec. 947.
The charter of the city of Grafton confers upon its council the power to grant or refuse license to sell intoxicating liquors in the city; and, if it grants a city license to sell intoxicating liquors, the county court is also obliged, by the statute, to grant a state license for the sale thereof within the city. But the authority of the city council to grant the license is subject to the following qualification: The sense of the voters must be taken at every alternate city election respecting the granting of license; and, unless a majority of the votes for and against the same be cast in favor of license, the council shall -not grant license. See. 28, eli. 44, Acts 1899. At the city election next preceding the indictment a majority of the votes were cast against license. Hence the city council had no power to grant license to sell intoxicating liquof within the license year beginning July 1, 1909, the year in which the sale in this case was made.
The council not having granted license to sell intoxicating liquors, and, in fact, having no power to do so if it had so desired, the county court could not grant a state license to sell within the city. .Sec. 10, ch. 82, Acts 1907, amending and reenacting sec. 10, ch. 32, Code 1906.
But defendant had a license from both the city council and the county court of Taylor county, to carry on the business of a brewer in the city of G-rafton, and the case presents this question : Did such brewer’s license confer upon defendant the right to sell beer, in wholesale quantities, at its brewery? The answer to the question depends upon the construction of sec. 74, eh. 32, Code 1906, as modified by ch. 82, Acts 1907. As so modified, that section reads as follows, viz:
“The license for earning on a distillery shall authorize the holder thereof to sell the product of such distillery at wholesale at the distillery, but shall not authorize any such holder to sell such product at retail at any place; and the shipment or delivery of any such product from any place of storage other than the distillery shall be deemed a sale without license at the place of such shipment, or delivery, unless a license to sell at wholesale at that place has been obtained under this chapter and shall be in force; but a license to carry on a brewery shall authorize the holder thereof to’ solicit and receive orders for, sell, offer and expose for sale the product .of such brewery at wholesale only, in any and all of the counties and cities, towns and villages of this state without additional lax; provided, the county court first authorize such a sale by a certifícale duly entered of record which shall designate the places of said sales; except in those counties where the county court or other license tribunal does not grant license 'to sell intoxicating liquors, and except also in cities, towns and villages where the council or other license tribunal' does not grant license to sell intoxicating liquors; no city, town or village shall impose on the holder of a state license to carry on a brewery ány municipal license tax, unless, he maintains a store house or place of business therein, and such municipal license tax shall not exceed two and one-half cents per barrel on the sales made at such store house or place of business; this, notwithstanding the provisions of chapter forty-seven of the code or of the charter of any city, town or village.” The change made in the law by the act passed in 1907, is indicated by the words in italics. These words were first inserted in the act of 1907.
Prior to the passage of eh. 36, Acts of 1905, amending and re-enacting the whole chapter 32, on the subject-of licenses, a license to carry on a brewery did not confer the right to sell the product, even at the brewery, without an additional license therefor. State v. Schmulbach Brewing Co., 56 W. Va. 333. And section 74 of that act amended the law, as it had been interpreted by that decision, so as to confer the right to sell at wholesale, at the brewery, by virtue of the license to brew. The modification of the law was evidently intended to relieve a brewer from the necessity of obtaining two licenses, one to manufacture and another to sell his product at wholesale at the place of manufacture, and to confer the right to sell not only at the place of manufacture but also in all the wet counties and towns of the state, without an additional license therefor. But this act was construed in City of Charleston v. Brewing Co., 61 W. Va. 34, not to relieve the brewer from the payment of a city license tax, notwithstanding it maintained in the city no other wholesale business place thpn its brewery; and the legislature shortly thereafter again amended the statute to read as above quoted.
Section 74, ch. 32, Code 1906, as modified by ch. 82,-Acts 1907, gives a licensed brewer the right to sell at wholesale, not only at the brewery, but in all other counties, without additional license, or license tax, except in counties and cities where licenses to sell are not expressly granted. The exception defeats defendant’s right to sell at the brewery in this particular case, for the reason that neither the county court of T'aylor county nor the city council of Grafton had the power to grant license to sell intoxicating liquors in the city within the license year beginning July 1, 1909. The last amendment of section 74 was clearly intended to relieve a brewer from the payment of more than one license tax, that of a brewer, unless he maintains a store house in a city. It also continued the right, previously given by the act of 1905, to sell in all the wet counties and towns of the state. But the right to sell in counties, other than the one in which the brewery is located, is so qualified by the Act of 1907 that he must first obtain permission of the county court, by certificate entered of record, designating the place of sale.
The statute does not expressly authorize a brewer to sell at his brewery; but it does so by necessary implication, subject to the restriction presently to be pointed out. It first expressly authorizes a licensed distiller to sell his product at wholesale at the distillery, without regard to whether it is located in wet or dry territory, and then proceeds as follows: “But a license to carry on a brewery shall authorize the holder thereof to solicit and receive orders for, sell, offer and expose for sale the products of such brewery at wholesale only, in any and all of the counties and cities, towns and villages of this state without additional tax.” Clearly, the legislative purpose was, not to give a brewer an equal right with the distiller in respect to selling his product at the place of manufacture, because the right of the latter seems not to be restricted, but to make his license to embrace a wider range of territory. A brewer’s license authorizes him, without additional license or license tax, to sell at wholesale in all the wet counties, wherein the county courts give him permission and designate the places of sale; provided that, if a store house for selling the product is maintained in a city, town or village, he may be required to pay a municipal license tax,
But it was not intended that a brewer’s license should confer the right to sell at the brewery, if it happened to be located in a place where no license to sell could be lawfully granted. Neither the county court of Taylor county, nor the city council had the power to grant license to sell intoxicating liquors in Grafton where defendant’s brewery w^as located, at the time when the sale in question was made. The city had been made dry territory by a vote of the citizens at the last preceding city election. If a license to sell could not be granted, it necessarily follows that a brewer’s license could not confer the right to sell; that would be to accomplish by indirection what could not be done directly. Counties, cities, towns and villages, wherein the county courts and municipal authorities do not grant license to sell, are expressly excepted from the territory in which a brewer is given a right to sell by virtue of his brewer’s license. The excepted territory necessarily includes the place of the brewery, if it happens to be in- a dry county or municipality. To construe the statute otherwise would, in this case, defeat the expressed will of the voters of the city of Grafton, the amended charter of which makes it optional with them, whether liquor shall be sold in the city or not; and when they have declared that it shall not be sold in the city, tlieir will on the subject is the law for the time being. Hence, defendant’s license to carry on the business of a brewer in Grafton did not authorize it to sell beer at its brewery.
Defendant’s instruction Ho. 1, was properly refused. While it may be true, generally, that a brewer’s license authorizes him to sell his product at the brewery, at wholesale, it is not so in this case for the reasons above stated. The judgment will be affirmed.
Affirmed. | [
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Milled, Judge:
.The primary object of the bill was two-fold, first to set aside a deed for breach of covenant of defendant, grantee, to support and maintain plaintiffs; second, to set aside a subsequent contract relating to certain personal property, alleged to have been obtained by fraud and duress, and for non-performance of agreements on the part of defendant.
The court below denied the prayer to set aside the deed, but did set aside the contract; and the bill being broad enough it was treated as a bill to enforce the lien reserved in the deed to secure performance of the covenant for support and maintenance, as for purchase money, and for an accounting for the property obtained under the contract set aside. The cause was referred to a commissioner to ascertain and report on the matters referred, and on this appeal the questions presented are mainly questions of law, raised by exceptions to the commissioner’s report.
Pending the proceedings before the commissioner the sole defendant died, and shortly after him one of the two plaintiffs also died. After the report of the commissioner the death of both these parties being for the first time suggested on the record, the cause was on motion revived in the name of the administrator of the deceased co-plaintiff and, on scire facias, against the administrators and heirs at daw of the deceased defendant. The answers of these administrators for the first time disclosed on the record that defendant also left surviving him a widow, dowable of his lands, and a necessary party to the suit to sell decedent’s lands, for his debts, if there be a deficiency of personal estate,, which has not yet been shown in the record.
The absence of the widow is covered by one of the exceptions, to the commissioner’s report and other errors assigned. But if the question had not been thus presented it would be the duty of' this Court to note the absence of necessary party and to reverse the decree, in so far at least as it affects his interest, and to remand the cause with directions to have him brought in. 1/ Cyc. Dig. Va. & W. Va. Rep. 760, and many cases cited.
That a widow is a necessary party to a suit to enforce a vendor’s lien, and who, on the death of her husband pendente' lite,, must be brought in before final decree, is well settled in this-State. The statute, section 7, chapter 86, Code 1906, malms the-widow a necessary party to any suit to sell her husband’s lands to pay his debts. But the precise question we have here was presented and decided in Morris’ Admr. v. Peytons Admr., 10 W. Va. 1, and authorities cited. In that case, as in this; tho court below undertook to adjudicate the merits of the cause, not ready for hearing for the want of necessary and proper parties; and the decree was reversed as and for the same reason that the decree here complained of must be reversed.
In the absence of necessary parties, it would not be proper ta enter upon any further consideration of the points of error relied on. Beckwith v. Laing, 66 W. Va. 247. It is proper we think,, however, that we should warn counsel not to overlook other important rules of practice enunciated in Bierne v. Brown’s Admr, 10 W. Va. 748, and Sommerville v. Sommerville, 26 W. Va. 482, approved in Schilb v. Moon, 65 W. Va. 564, 566.
Decree reversed and cause remanded.
Reversed and Remanded1 | [
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Williams, Judge:
This is an attachment suit in equity to collect a debt of $883.04 for an alleged sale of logs, brought on the ground that defendant is a non-resident. Prom a decree pronounced on the 35th of May, 1907, dismissing his bill, plaintiff has appealed.
The decision of the case turns upon the question whether or not title to the logs had passed to defendant. They were carried off by a flood in the Little Kanawha river in January, 1905, and lost, hence this suit.
■ On the 15th of December, 1906, the cause was referred to a master commissioner to take, state and report whether or not there was an executed contract of sale between the parties, and also all matters in difference between them. The commissioner reported that there had been, in fact, no sale of the logs in question, but reported a balance of $16.38 was due plaintiff from defendant for channeling other logs purchased at another time, the sale of which is not' involved in this suit. Both plaintiff and defendant excepted to the report, and the court, on final hearing, made a decree overruling plaintiffs exceptions, sustaining defendant’s exception to the item of $16.38, confirming the report in all other respects, and denied plaintiff relief and dismissed his bill.
The alleged contract of sale is oral, and the testimony respecting it is conflicting and voluminous. We are asked to reverse the decree of the lower court on a question of fact, supported by the finding of a commissioner based upon conflicting testimony. According to the well established rule, we should not reverse such decree unless we are satisfied that it is against a clear preponderance of evidence; we must see that it is clearly wrong.
‘‘Where questions purely of fact are referred to a commissioner, his finding will be given great weight, though not as conclusive as the verdict of a jury, and should be sustained, unless plainly not warranted by any reasonable view of the evidence. This rule operates with peculiar force in an appellate court, when the findings of a commissioner have been approved by the court below.” Reger v. O’Neal, 33 W. Va. 159. This rule has been re-announced, in varying phraseology, many times since that decision. Wolfe v. Banlc, 54 W. Va. 689; Baker v. Jackson, 65 W. Va. 282. Even when the question of fact found.by the lower court has not been reported by a commissioner, this Court will not reverse its decree, upon conflicting testimony, unless it is satisfied that the finding is decidedly against the weight of evidence. Kennewig Co. v. Moore, 49 W. Va. 323; Naughton v. Taylor, 50 W. Va. 233. Much less, then, is the appellate court disposed to do so when the finding of the court is supported by the previous finding of a commissioner. .Such a decree, although not entitled to so much consideration as the verdict of a jury, found on conflicting testimony, is nevertheless entitled to great respect.
The evidence in this case fills more than six hundred pages of the record; to review it in this opinion would be a waste of time, and would encumber the reports with useless matter. It suffices to say that we have carefully read and considered it,' and we do not think the court erred in holding that plaintiff’s proof was not sufficient to entitle him to relief. The following facts will suffice to show the character of the case.
Defendant had a boom in the Little Kanawha river near Burnsville, operated a veneering mill at that point, and bought logs to be manufactured at his mill, but not for the general market. His agent, C. L. Sample, had bought logs from plaintiff which were delivered at various points along the river, above Burnsville, on a number of previous occasions, at the price of fourteen, fifteen and sixteen cents per cubic foot, according to the points of delivery. The logs were then measured and branded and paid for. A number of different purchases were made in this way, and'in every instance, except the first, the logs were measured and branded by the purchaser before any payment was made. The first purchase was made and the price paid, upon estimate only; the estimate proved to be more than the actual quantity, and plaintiff returned the difference in cost as soon as the correct amount was ascertained by actual measurement. The measuring and branding of the logs, before paying for them, is a very potent circumstance tending to prove that the parties did not regard the sale complete until that was done; measurement was necessary to ascertain the amount of money to be paid.
Plaintiff testified that there were about 200 logs included in the particular sale in question; that they aggregated about 5,60ñ cubic feet; that he was to receive sixteen cents per cubic foot and that the sale was consummated on the 20th of January, 1905. A. D. Shock, plaintiff’s cousin, was present when the alleged sale took place, and testifies to the oral contract between the parties. But neither plaintiff nor Shock says that any price per cubic foot was agreed on. They both testify, however, that Mr. Sample addressed a letter to Mr. Tory, defendant’s measurer, directing him to measure the logs, and delivered it to plaintiff to be carried to Mr. Tory; and plaintiff says he delivered it. The letter is made evidence, and Mr. Sample admits writing it; but he says no price for the timber was then agreed on, and that the arrangement was not different from other agreements for the purchase of timber, made on previous occasions; that is, that defendant was not bound' for any- logs until they were measured and branded with his brand. Sample’s letter to Tory is perfectly consistent with such an understanding. None of the logs in question were ever measured or branded by defendant or his agent. Several witnesses testify that many of the logs, at the date of the alleged contract, were gorged in the river with other logs, and could not then have been measured. Plaintiff says he made two or three trips to Mr. Tory’s camp, after the 20th of January, to get him to measure them. Plaintiff’s anxiety, to procure the measurement, would seem to corroborate defendant, because it tends to prove that plaintiff, as well as defendant, understood that measurement and branding were necessary to complete the purchase. Moreover, defendant being engaged in the manufacture of veneering at Burnsville, and not buying logs for the market generally, would not likely purchase timber in the river below his boom, if he knew it. A number of witnesses testify that, from 125 to 150 of plaintiff’s logs were carried through defendant’s boom on a rise which occurred in the Little Kanawha river, on January 11th, 12 and 13th, 1905; that they were engaged in catching logs in the river during that rise and saw plaintiff’s logs pass down the river; that they knew them to be his logs by the brand “W. P.'” This testimony tends to prove that most of the logs in controversy had passed beyond defendant’s place of manufacture, seven or eight days before the alleged sale, and were not at the place plaintiff represented them to be at the time he claims to have sold them. Furthermore, A. D. Shock, who -was interested with plaintiff in some previous logging contracts, and who testified in his behalf, admits that about fifteen of the logs in question were caught in the river and rafted by Ed. Clifford, for witness and plaintiff, and were disposed of by them to the Mcollette Lumber Company. Without specifically pointing out more of the evidence, it is sufficient to say that we find abundance of testimony to warrant the finding by the commissioner and by the chancellor that both parties to the contract understood that a measurement and branding were necessary to pass title to defendant.
“The question, whether a sale of personal property is complete or is only executory, is to be determined from the intent of the parties as gathered from the contract, the situation of the thing sold and the circumstances surrounding the sale.” Morgan v. King, 28 W. Va. 1.
After a careful consideration of the testimony to which we have been cited in briefs of counsel, to sustain their respective contentions, we see no reason to disturb the decree of the lower court. We, therefore, affirm it..
Affirmed. | [
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The Opinion was delivered PER CURIAM.
• PER CURIAM.
This case arises from a dispute over the installation of a waterline in rural Putnam County. After a three and one-half week jury trial, a verdict was rendered in favor of Pipemasters, Inc., plaintiff below/appellee. The West Virginia-American Water Company and the Putnam County Building Commission appeal the decision of the trial court in denying post trial motions. For the reasons stated herein we affirm.
I.
In the late 1990s the Putnam County Building Commission (“Commission”) began working on a project to extend water service in rural Putnam County. In total there were seven Putnam County waterline projects; the waterline extension in dispute in this case was one of those projects.
The Commission selected West Virginia-American Water Company (“Water Company”) to serve as project engineer. The Water Company hired HNTB Corporation (“HNTB”) to design the lines and to work as project inspector. The Commission hired Pipemasters, Inc. (“Pipemasters”) to install the lines in accordance with a written contract. Mid-State Surety (“Mid-State”) issued a performance bond to secure Pipemas-ters’ installation of the lines.
The Commission and the Water Company entered into an operation and maintenance agreement wherein the Water Company would be responsible for the operation, maintenance, repair and replacement of the waterlines, and the Water Company would be paid for the water supplied to customers.
A critical part of the contract in dispute involves the construction of the waterline longitudinally along a Department of Highways (“DOH”) right-of-way. The Commission, as owner of the project, applied to the DOH for a permit to enter upon, under, over or across relevant state roads and rights-of-way. The DOH permit included the condition that “[ujtility installation shall be in accordance with the current manual, Accommodation of Utilities on Highway Rights-of-Way.’” The contract required Pipemasters to install the waterline according to the DOH manual, and with a minimum of forty-two inches of cover unless otherwise authorized.
Pipemasters worked from February to May 2000 installing the waterline. Inspections were regularly made by HNTB and the DOH. The right-of-way restoration was apparently completed to the satisfaction of the DOH as of May 2000. None of the parties objected to the quality of work performed by Pipemasters as of May 2000. Additionally, during this period Pipemasters submitted seven periodic pay estimates which, before payment could be made, had to be approved by both the Water Company and HNTB. All seven periodic pay estimates contained certifications by the Water Company and HNTB that the work had been performed in accordance with the contract. All pay estimates were paid. Pipemasters was paid for all of the contract bid price, except for $33,659.78 retainage.
In May 2000, after the installation had been completed and service to some customers had commenced, Pipemasters was required to perform some reditching on the DOH right-of-way. The reditching was required by a DOH supervisor who had not been previously involved with the project. In late 2000, the Water Company discovered that some sections of the waterlines had less than the required forty-two inches of cover. At the request of the Water Company, HNTB reviewed the matter and HNTB recommended that test holes be dug to determine to what extent any waterlines had less than forty-two inches of cover. The test holes confirmed that in a number of locations the waterline did have less than the specified forty-two inches.
The Water Company then requested Pipe-masters to re-lay those sections of the waterline with less than the required cover. Pipe-masters began re-laying the waterlines and submitted invoices for its work. On March 4, 2002, Pipemasters was paid $37,753.52, and on March 5, 2002, appellants terminated the contract with Pipemasters — before the relaying of the waterline was completed. The Commission then authorized the Water Company to undertake the completion of re-laying waterlines that had inadequate cover.
On September 11, 2002, Pipemasters filed a lawsuit against the Commission in the circuit court of Putnam County, alleging breach of contract and an implied contract for the additional work Pipemasters had performed. Pipemasters’ complaint also included a claim against the Water Company for negligence. The Commission filed an answer to the complaint and countersued Pipemasters. The Commission also filed a third-party complaint against HNTB and Mid-State alleging breach of contract, negligence, and breach of duties under a performance bond. The Water Company filed a third-party complaint against HNTB for alleged breach of duties owed to the Water Company relating to inspections. HNTB filed its answers, and also filed a third-party counterclaim against the Water Company for failing and refusing to pay HNTB’s invoices for work performed. Mid-State responded to the litigation with claims against Pipemasters and Pipemasters’ guarantors. Before trial, the Commission assigned its claims to the Water Company and the Water Company agreed to hold the Commission harmless beyond remaining project funds.
A three and one-half week jury trial begain on January 28, 2004. The jury found that Pipemasters satisfactorily completed its obligation under the contract, and that Pipemas-ters was entitled to be compensated for work performed beyond its obligation under the original contract. The jury awarded Pipe-masters $390,446.29. The juiy also rejected the Commission’s and the Water Company’s counterclaims against Pipemasters as well as their third party claims.
Following the jury verdict, a joint motion for judgment as a matter of law and for a new trial was filed by the Commission and the Water Company. The joint motion was denied by the trial court. It is from this order that the appellants appeal to this Court for relief.
II.
The appellants assign as error: (1) the trial court erred in denying the joint motions for judgment as a matter of law and for a new trial as to the claims of Pipemasters; (2) the trial court erroneously instructed the jury on the law of suretyship; and (3) the tidal court erred in denying the motion of the Water Company for a new trial as to the Water Company’s counter-claims and third-party claims (including those claims assigned to it by Commission).
Appellants brought their motion for judgment as a matter of law and for a new trial under Rules 50(b) and 59(a) of the West Virginia Rules of Civil Procedure.
We are first asked to review the circuit court’s order denying a post-verdict motion for judgment as a matter of law. In Syllabus Point 3 of Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996), this Court stated:
The appellate standard of review for the granting of a motion for [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 [judgment as a matter of law] will be reversed.
In Syllabus Point 3 of Alkire v. First National Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1996) we held:
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-
Finally, in Syllabus Point 1 of Alkire we also held, in part, that:
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.
In this proceeding we are also asked to review the circuit court’s order with respect to the denial of appellants’ motion for a new trial. In Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995), this Court addressed the standard of review of a trial court’s ruling on a motion for a new trial. In Tennant the Court stated:
We review the rulings of the circuit court concerning a new trial and its conclusions 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 de novo review.
Tennant, 194 W.Va. at 104, 459 S.E.2d at 381. Further, in addressing a motion for a new trial, we said in Syllabus Point 5 of 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), 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.
We also said in Syllabus Point 3 of In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994), cert. denied, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995) that:
A motion for a new trial is governed by a different standard than a motion for a directed verdict. When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority to weigh the evidence and consider the credibility of the witnesses. If the trial judge finds the verdict is against the clear weight of the evidence, is based on false evidence or will result in a miscarriage of justice, the trial judge may set aside the verdict, even if supported by substantial evidence, and grant a new trial. A trial judge’s decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion-.
This Court has historically favored supporting jury verdicts and will affirm a verdict, short of compelling reasons to set a verdict aside. In Syllabus Point 2 of Stephens v. Bartlett, 118 W.Va. 421, 191 S.E. 550 (1937) we held:
An appellate court will not set aside the verdict of a jury, founded on conflicting testimony and approved by the trial court, unless the verdict is against the plain preponderance of the evidence.
And, we have stated, as recently as 2004 in In re Tobacco Litigation, 215 W.Va. 476, 480, 600 S.E.2d 188, 192 (2004) (per curiam), that “Mypically, when a. case has been determined by a jury, the questions of fact resolved by the jury will be accorded great deference.”.
With these principles in mind we review the assignments of error.
Appellants first contend that the trial court erred in denying the joint motions of the Commission and the Water Company for judgment as a matter of law and for a new trial as to the claims of Pipemasters. From a review of the record we find this assignment of error to be without merit. A substantial part of appellants’ argument centers around various correspondence exchanged between the parties. Appellants argue, in part, that the correspondence constituted a new contract which, in essence, resulted in a compromise and settlement of alleged deficiencies in Pipemasters’ performance under the original contract.
In support of their position, appellants cite Toppings v. Rainbow Homes, Inc., 200 W.Va. 728, 490 S.E.2d 817 (1997) (per curiam) and Kesari v. Simon, 182 W.Va. 795, 392 S.E.2d 511 (1990). We believe appellants’ reliance on Toppings and Kesari and the principles for which they are cited is misplaced. For instance, appellants correctly refer to Toppings for the proposition that “[i]t is the province of the court, and not a jury, to interpret a written contract.” Syllabus Point 1, Toppings, citing Syllabus Point 1, Orteza v. Monongalia County General Hospital, 173 W.Va. 461, 318 S.E.2d 40 (1984), citing Syllabus Point 1, Stephens v. Bartlett, 118 W.Va. 421, 191 S.E. 550 (1937). Kesari is cited for the proposition that the law favors contracts of compromise and settlement. Appellants, however, fail to acknowledge a corollary principle stated in Toppings:
While the determination of what constitutes a contract under our relevant cases is a question of law, the determination of whether particular circumstances fit within the legal definition of a contract under our cases is a question of fact.
Toppings, 200 W.Va. at 732-33, 490 S.E.2d 817 and 490 S.E.2d at 821-22. We held in Syllabus Point 4 of Cook v. Heck’s Inc., 176 W.Va. 368, 342 S.E.2d 453(1986) that “[generally, the existence of a contract is a question of fact for the jury.”
In the instant ease we believe that the trial court correctly instructed the jury on the law of contracts, and allowed the jury to resolve the issues as to whether there was a second contract. We conclude that no error was committed by the trial court as to this issue.
Also, with respect to appellants’ first assignment of error, we cannot say that the evidence is legally insufficient to sustain the verdict; we find the contrary to be true. After reviewing the record with an Orr v. Crowder analysis, we find that the trial court properly denied appellants’ motion for judgment as a matter of law and new trial.
We next turn to appellants’ second assignment of error, namely, that the trial court erroneously instructed the juiy on the law of suretyship. Because of our holding that the jury verdict in favor of Pipepasters should be affirmed, we find it unnecessary to address this issue.
Finally, we address the third assignment of error that the trial court erred in denying the motion of the Water Company for a new trial as to the claims of the Water Company (including those claims assigned to it by the Commission) against Pipemasters, HNTB, and Mid-State. We believe that there was sufficient evidence to find that the verdict in favor of Pipemasters was supported by the clear’ weight of the evidence, that Pipemas-ters properly performed its contract, and that Pipemasters is entitled to be paid for the additional work performed at the request of appellants; therefore, the counterclaims and third-party claims are without merit.
We conclude that the trial court did not abuse its discretion in denying appellants’ post-trial motions.
III.
Based upon the foregoing we affirm the judgment of the trial court.
Affirmed.
. The record suggests that this payment was for the installation of customer service taps, and not for the re-laying of the waterline to the proper depth.
. HNTB's claim for unpaid invoices was settled before trial and is not at issue in this appeal.
. The claim against the guarantors was bifurcated and is not at issue in this appeal.
. Based on the record of this appeal, this verdict appears to represent $19,500.00 for test hole work, $265,286.51 for re-laying waterlines, and $33,659.78 retainage.
. The trial court provided the jury a comprehensive verdict form to assist the jury in making its findings. The completed verdict form was as follows:
PART ONE
Pipemasters’ Claims Against the Putnam County Building Commission and West Virginia American Water Company
1. Do you find by a preponderance of the evidence that Pipemasters satisfactorily completed its obligations under the PC4 contract with the Putnam County Building Commission?
Yes [x] No
2. Do you find by a preponderance of die evidence that the West Virginia American Water Company acted negligently in the administration of the PC4 contract and in its supervision of the PC4 contract and that such negligence prevented Pipemasters from performing its duties under the contract?
Yes No [x]
3. Do you find by a preponderance of the evidence that Pipemasters was required'to perform additional work beyond its obligations under the PC4 contract and for which it should receive reasonable compensation from the Putnam County Building Commission and the West Virginia American Water Company?
Yes [x] No
If you answered "Yes" to question three, then you should proceed to Part Two. If you have answered "No" to question three, then proceed to part Three.
PART TWO
Pipemasters’ Damages
We, the jury, find that Pipemasters is entitle to recover from West Virginia American Water Company and the Putnam County Building Commission the total sum of
$ 390,446.29
Proceed to Part Three.
PART THREE
Claims Against Pipemasters by West Virginia American Water Company including assigned claims of Putnam County Building Commission
Do you find by a preponderance of the evidence that Pipemasters breached its duties under the PC4 contract and that such breach was a proximate cause of the damages sought by the West Virginia American Water Company?
Yes No [x]
Proceed to Part Four.
PART FOUR
Claims Against HNTB Corporation by West Virginia American Water Company including claims assigned by the Putnam County Building Commission
Do you find by a preponderance of the evidence that HNTB Corporation breached its contract with the West Virginia American Water Company to provide inspection and certification services of Pipemasters’ work on the contract and that such breach was a proximate cause of the damages sought by the West Virginia American Water Company?
Yes No [x]
If you answered "Yes" to both or either of the previous questions in Part Three or Part Four, then you should proceed to Part Five. If you answered “No" to both of the previous questions in Part Three and Part Four, then you should sign and date the verdict form and tell the bailiff you have reached a verdict.
PART FIVE
West Virginia American Water Company's Damages
Without regard as to whom is at fault,
We, the jury, find that West Virginia American Water Company is entitled to receive as its total amount of damages the sum of $-
Proceed to Pan Six.
PART SIX
Apportionment of Damages as to claims of West Virginia American Water Company against Pipemasters and HNTB Corporation
If you answered "Yes” to the questions in both Part Three and Part Four, then state the specific amount of damages proximately caused by Pipemasters and the specific amount of damages proximately caused by HNTB in the blank opposite their names. The total amount of damages attributed to these defendants may not exceed the total amount of damages you awarded in Part Five.
Pipemasters $
HNTB Corporation $
Total Damages $
Proceed to Pan Seven
PART SEVEN
Claims against Mid-State Surety Corporation by West Virginia American Water Company including claims assigned by the Putnam County Building Commission
Do you find by a preponderance of the evidence that Mid-State Surety Corporation had the responsibility under its performance bond for the completion of Pipemasters' work and that it is obligated to indemnify West Virginia American Water Company for any damages against Pipemasters as a result of Pipemasters’ breach of the PC4 contract with the Putnam County Building Commission?
Yes No [x]
Proceed to Pan Eight
PART EIGHT
Do you find by clear and convincing evidence that Pipemasters fraudulently informed the Putnam County Building Commission that its work under the PC4 contract had been in complete compliance with the contract documents and received payment for that work?
Yes No [x] | [
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PER CURIAM.
Linda and Clinton Farley (hereinafter referred to as “the Farleys”) appeal from an order entered September 27, 2004, by the Circuit Court of Cabell County. By that order, the circuit court granted summary judgment in favor of the remaining defendants, podiatrists Jeffrey Shook, D.P.M., and Kirt Miller, D.P.M. (hereinafter “Dr. Shook” and “Dr. Miller,” respectively), and dismissed the case. Gabriel C. Fornari, M.D. (hereinafter “Dr. Fornari”), an emergency room physician, and St. Mary’s Hospital of Huntington (hereinafter “St. Mary’s”) had already been dismissed by way of summary judgment by order entered March 30, 2004. On appeal, this Court is asked to review both summary judgment awards. Based upon the parties’ arguments, the record designated for our consideration, and the pertinent authorities, we affirm the circuit court’s award of summary judgment to Dr. Fornari and St. Mary’s; we reverse the circuit court’s award of summary judgment to Dr. Shook and Dr. Miller; and we remand the case to the circuit court for further proceedings consistent with this opinion.
I.
FACTUAL AND PROCEDURAL HISTORY
The case before us follows the circuit court’s final order that granted summary judgment to Doctors Shook and Miller. The factual background of this case is straightforward. On February 21, 2000, Mrs. Farley had outpatient surgery performed by Dr. Shook and assisted by Dr. Miller, both podiatrists, at the facility of St. Mary’s. A benign soft tissue mass was excised on Mrs. Farley’s right foot near her anide. The surgery proceeded uneventfully, and Mrs. Farley was discharged that same day.
The next day, Mrs. Farley called Dr. Shook’s office on several occasions with complaints of pain. She was instructed to come to the office; however, she was unable to find transportation. Later that night, the pain became unbearable, and Mrs. Farley called for an ambulance and was taken to the emergency department at St. Mary’s. Upon arrival, she was seen by Dr. Fornari, an emergency room physician. Dr. Fornari contacted Dr. Shook’s office to inform him that one of his recent surgical patients was in the emergency room. Dr. Fornari spoke with Dr. Miller, a resident working with Dr. Shook who had assisted during the subject surgery. Dr. Miller indicated to Dr. Fornari that there was no need to remove the surgical dressing because, during a previous conversation with Dr. Shook’s office, Mrs. Farley had informed the office employees that she had already loosened her dressing. Mrs. Farley had no fever and had stable vital signs, as well as good color in her leg and toes; therefore, the plan was to medicate Mrs. Farley for pain, discharge her from the emergency room to home, and for her to be seen the next day in Dr. Shook’s office.
Mrs. Farley went to Dr. Shook’s office the next morning, February 23, 2000. It was noted that Mrs. Farley’s ankle and foot were discolored and that blisters were present near the wound site. Mrs. Farley was sent to the hospital where it was confirmed that she was suffering from necrotizing fasciitis caused by bacteria, Clostridium septicum. In lay terms, Mrs. Farley was suffering from gas gangrene, which can occur after surgery or trauma. Her condition was characterized by tissue death requiring removal of the dead tissue to prevent the infection from spreading and to save her life. This condition is rare and life-threatening and resulted in an emergent, above-the-knee amputation of her leg.
A lawsuit was filed on January 10, 2002, alleging that all of the defendants committed malpractice in the medical care provided to Mrs. Farley. An agreed order was entered on March 14, 2002, signed by all counsel, wherein it was recognized that expert testimony would be required on the issues of standard of care and causation. A scheduling order was entered on July 1, 2002, setting December 2, 2002, as the Farleys’ expert disclosure deadline. When the Farleys failed to meet this deadline, Dr. Fornari and St. Mary’s filed a motion to compel disclosure of the Farleys’ expert witness. On December 9, 2002, the Farleys disclosed Dr. Albert Weihl, an emergency medicine doctor, as their expert witness.
The defendant doctors and St. Mary’s disclosed expert witnesses on April 7, 2003, after asking for and receiving a stipulation from counsel for the Farleys as to an extension of time in which to disclose their experts. Thereafter, the Farleys’ only expert, Dr. Weihl, was deposed. He testified as to deviations from the standard of care as it related to Dr. Fornari and St. Mary’s; however, he was unable to testify regarding causation as to Dr. Fornari and St. Mary’s. Moreover, because his area of expertise is emergency medicine, he did not testify as to any deviation of the standard of care as it would apply to podiatrists such as Dr. Shook and Dr. Miller. Thus, Dr. Fornari and St. Mary’s filed motions for summary judgment based on the lack of any expert who could opine as to a causal link in the care provided to Mrs. Farley and her alleged injuries. The Farleys filed no responsive pleading or affidavits. The circuit court granted Dr. For-nari’s and St. Mary’s joint motion for summary judgment. In so doing, the circuit court found that “plaintiffs failed to produce evidence, to a reasonable degree of medical probability from expert or treating physicians, or a causal link between the breaches of the standard of care testified to by Dr. Weihl and the amputation.”
Subsequently, Dr. Shook and Dr. Miller moved for summary judgment on the ground that the Farleys failed to put forth any requisite expert testimony as to any alleged deviations from the standard of care from the perspective of a doctor of podiatry. In response, the Farleys filed a motion to reconsider the court’s previous granting of summary judgment in favor of Dr. Fornari and St. Mary’s. The trial court denied the motion for reconsideration, and further granted summary judgment in favor of Dr. Shook and Dr. Miller. In so ruling, the circuit court found that “Dr. Weihl admitted at his deposition that he lacked the competency to testify as to any alleged deviations from the standard of care by either Dr. Shook or Di\ Miller, both of whom are Doctors of Podiatric Medicine[.]” Further, the trial court found that “[t]here are no genuine issues of material fact as to the alleged deviations from the standard of care by Dr. Shook and Dr. Miller as the [pjlaintiffs have failed to establish the same via the testimony of a competent expert witness.” The case was dismissed from the circuit court’s docket. It is from the combination of the circuit court’s decisions rendered on March 30, 2004, and September 27, 2004, that the Farleys now appeal.
II.
STANDARD OF REVIEW
The case before this Court on appeal follows the circuit court’s ultimate order granting summary judgment in favor of Dr. Shook and Dr. Miller; however, it also involves a previous summary judgment awarded to Dr. Fornari and St. Mary’s. In regard to the motions for summary judgment, we have stated 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). Thus, in undertaking our de novo review, we apply the same standard for granting summary judgment that is applied by the circuit court:
“ ‘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 Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).
Syl. pt. 2, Painter, 192 W.Va. 189, 451 S.E.2d 755. Moreover,
[sjummary judgment is appropriate where the record taken as a whole 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.
Syl. pt. 4, Painter, id. We are also mindful that “[t]he circuit court’s function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial.” Syl. pt. 3, Painter, id. Mindful of these applicable standards, we now consider the substantive issues herein raised.
III.
DISCUSSION
On appeal to this Court, the Farleys assign error to the circuit court’s grant of summary judgment to first Dr. Fomari and St. Mary’s, and the subsequent summary judgment granted to Dr. Shook and Dr. Miller. Both summary judgments followed the Farleys’ inability to produce expert witnesses to testify against the defendants. The Farleys intimate that they should have had more time in which to identify experts. The defendants below/appellees herein contend that the summary judgment awards were proper. After briefly discussing the need for expert testimony, we will examine separately each summary judgment award: first, the award of summary judgment to Dr. Fornari and St. Mary’s; then, the summary judgment award to Dr. Shook and Dr. Miller.
This case alleges medical malpractice. Therefore, it falls under the realm of the Medical Professional Liability Act, which states in pertinent part: “The applicable standard of care and a defendant’s failure to meet said standard, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court.” W. Va.Code § 55-7B-7 (1986) (Repl.Vol. 2000). It has been explained further that “ “ ‘[i]t is the general rule that in medical malpractice cases negligence or want of professional skill can be proved only by expert witnesses.” Syl. Pt. 2, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964).’ Syl. pt. 1, Farley v. Meadows, 185 W.Va. 48, 404 S.E.2d 537 (1991).” Syl. pt. 1, Neary v. Charleston Area Med. Ctr., 194 W.Va. 329, 460 S.E.2d 464 (1995) (per curiam). Thus, expert testimony is required for the Farleys to meet their burden of proving negligence and lack of skill on the part of the physician and the causal connection of that negligence to their injuries.
We pause briefly to note that some exceptions exist to the requirement of expert witness testimony. For example, in medical malpractice cases where lack of care or want of skill is so gross as to be apparent, or the alleged breach relates to noncomplex matters of diagnosis and treatment within the understanding of lay jurors by resort to common knowledge and experience, failure to present expert testimony on the accepted standard of care and degree of skill under such circumstances is not fatal to a plaintiffs prima facie showing of negligence. See Banfi v. American Hosp. for Rehabilitation, 207 W.Va. 135, 529 S.E.2d 600 (2000). However, this exception does not apply to this matter.
In the present case pending before this Court, the Farleys alleged malpractice against Dr. Fomari, the emergency room doctor, and contended that he negligently failed to remove Mrs. Farley’s surgical dressing when she presented to his department on February 22, 2000. The Farleys also averred that St. Mary’s was negligent in that its nurses failed to repeat Mrs. Farley’s vital signs during her emergency room visit on February 22, 2000. As to the claims against the podiatric defendants, the Farleys asserted that Dr. Shook and Dr. Miller negligently performed her cyst removal surgery, and that they mismanaged her care postopera-tively, including failure to evaluate her while she was a patient in the emergency room. These medical issues and alleged breaches relate to complex matters of diagnosis and treatment that are not within the understanding of lay jurors by resort to common knowledge and experience. Therefore, expert witness testimony was required to establish any breach of the standard of care and any causal connection to Mrs. Farley’s injuries.
Significantly, the parties recognized that medical experts would be required. By order entered March 14, 2002, and signed by all counsel, the parties acknowledged that “expert medical testimony as to standard of care and causation will be necessary in this case.” Moreover, we recognize that “ ‘a trial court is vested with discretion under W. Va. Code § 55-7B-7 (1986) to require expert testimony in medical professional liability cases, and absent an abuse of that discretion, a trial court’s decision will not be disturbed on appeal.’ Syl. Pt. 8, McGraw v. St. Joseph’s Hosp., 200 W.Va. 114, 488 S.E.2d 389 (1997).” Syl. pt. 3, Daniel v. Charleston Area Med. Ctr., 209 W.Va. 203, 544 S.E.2d 905 (2001). Thus, it is clear that the nature of the ease required expert testimony, and the trial court did not abuse its discretion in requiring expert testimony to prove both breaches of the applicable standards of care and to prove causation.
Having set forth the requirements for maintaining a medical malpractice cause of action, we now are able to consider the summary judgment awarded to Dr. Fornari and St. Mary’s. The circuit court awarded summary judgment to Dr. Fornari and St. Mary’s on the basis that “plaintiffs failed to produce evidence, to a reasonable degree of medical probability from expert or treating physicians, or a causal link between the breaches of the standard of care testified to by Dr. Weihl and the amputation.” Thus, our analysis must include an examination of the nature of the Farleys’ expert disclosure. The Farleys identified one expert witness, Dr. Albert Weihl, who is a highly-credentialed emergency room physician. The Farleys anticipated that Dr. Weihl would provide testimony regarding Dr. Fornari’s and St. Mary’s deviations from the applicable standards of care, as well as testimony regarding a causal link to Mrs. Farley’s injuries. During his deposition, Dr. Weihl testified regarding breaches in the standard of care provided to Mrs. Farley. He testified that Dr. For-nari failed to perform a complete examination, and failed to remove the surgical dressing and visualize the surgical wound. Dr. Weihl further stated that the emergency room nurses deviated from the standard of care in failing to retake Mrs. Farley’s vital signs during her course in the emergency room, thereby implying their deviation to St. Mary’s. However, Dr. Weihl was unable to link any of these alleged breaches in care to the ultimate outcome in Mrs. Farley’s case. As to any questions regarding causation, Dr. Weihl stated that he would have to defer to another specialty, and he specifically mentioned an infectious disease expert would be the appropriate type of practitioner to answer those questions. Thus, Dr. Weihl was unable to provide any testimony regarding causation as it relates to Dr. Fornari or St. Mary’s.
The Farleys bear the burden of proving negligence and lack of skill on the part of the physician proximately caused the injuries suffered. Hicks v. Chevy, 178 W.Va. 118, 121, 358 S.E.2d 202, 205 (1987); Syl. pt. 2, Totten v. Adongay, 175 W.Va. 634, 337 S.E.2d 2 (1985); Syl. pt. 1, Hinkle v. Martin, 163 W.Va. 482, 256 S.E.2d 768 (1979); Syl. pt. 4, Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967); Syl. pt. 1, Schroeder v. Adkins, 149 W.Va. 400, 141 S.E.2d 352 (1965); Syl. pt. 1, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964); Syl., White v. Moore, 134 W.Va. 806, 62 S.E.2d 122 (1950). See W. Va.Code § 55-7B-7 (1986) (Repl.Vol. 2000) (“The applicable standard of care and a defendant’s failure to meet said standard, if at issue, shall be established in medical professional liability cases by the plaintiff[.]”). Thus, because Dr. Weihl was the only expert designated to provide standard of care and causation testimony against the emergency room physician and the hospital, and because he was unable to provide the necessary causal links, the Farleys were unable to prove their case against these two appellees. The circuit court was correct in awarding summary judgment to Dr. Fornari and St. Mary’s, and we accordingly affirm the circuit court’s ruling.
Having determined that the first summary judgment award to Dr. Fornari and St. Mary’s was appropriate, we now turn to a discussion of the propriety of the second summary judgment that was awarded to Dr. Shook and Dr. Miller. In awarding summary judgment to Dr. Shook and Dr. Miller, the circuit court found “Dr. Weihl admitted at his deposition that he lacked the competency to testify as to any alleged deviations from the standard of care by either Dr. Shook or Dr. Miller, both of whom are Doctors of Podiatrie Medicine[.]” Further, the trial court found that “[tjhere are no genuine issues of material fact as to the alleged deviations from the standard of care by Dr. Shook and Dr. Miller as the [p]laintiffs have failed to establish the same via the testimony of a competent expert witness.”
The circuit court’s ruling recognized that if an expert is going to be required by the Court or proffered by a party, the expert must be competent to testify. See W. Va. Code § 55-7B-7 (“The applicable standard of care and a defendant’s failure to meet said standard, if at issue, shall be established in medical professional liability eases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court.”). “Rule 702 of the West Virginia Rides of Evidence is the paramount authority for determining whether or not an expert is qualified to give an opinion.” Syl. pt. 6, in part, Mayhorn v. Logan Med. Found., 193 W.Va. 42, 454 S.E.2d 87 (1994). Rule 702 of the West Virginia Rules of Evidence provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
While a physician does not have to be board certified in a specialty to qualify to render an expert opinion, the physician must have some experience or knowledge on which to base his or her opinion. See Fortney v. Al-Hajj, 188 W.Va. 588, 425 S.E.2d 264 (1992) (stating that experience may qualify physician to render an expert opinion and that a physician does not necessarily need to be “board certified” in a medical field to work in that medical field for purposes of physician’s qualification to testify as expert). In the present case, Dr. Weihl was the only expert designated by the Farleys. During his deposition, he was clear that he did not have the knowledge or skill to testify as to the applicable standard of care as it would apply to a physician in the field of podiatry. Consequently, he had no ability to opine whether Dr. Shook or Dr. Miller breached the standard of care. Based on the lack of any expert rendering an opinion as to whether the podiatrie defendants breached the standard of care, the circuit court granted summary judgment. While we agree with the circuit court that Dr. Weihl was not a competent expert witness based on his lack of familiarity with the field of podiatry to testify against Dr. Shook and Dr. Miller, the particular facts of this case require scrutiny beyond Dr. Weihl’s competence to testify about podiatry practices.
We are cognizant of the particular procedural history of this case, and are aware that the summary judgment awarded to Dr. Shook and Dr. Miller was a direct result of the Farleys’ failure to identify appropriate expert witnesses. We are also aware that the Farleys filed a motion to extend their expert disclosure deadline, and their request was denied by the circuit court. The Farleys maintain that the circuit court’s improper denial of their earlier motion for an extension of their expert disclosure deadline was the sole reason allowing summary judgment to be granted to Dr. Shook and Dr. Miller. Accordingly, to determine the appropriateness of the summary judgment awarded, we must look to the circuit court’s denial of the Farleys’ motion to enlarge the time in which they could identify expert witnesses.
The applicable standard of review in regards to the denial of the motion to extend the Farleys’ expert disclosure time frame is an abuse of discretion standard. West Virginia Rule of Civil Procedure, Rule 16(e) provides:
Pretrial orders. After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.
This proposition has been further recognized in our case law. See McCoy v. CAMC, Inc., 210 W.Va. 324, 328, 557 S.E.2d 378, 382 (2001) (per curiam) (reiterating that Rule 16 vests in trial courts the discretion to modify scheduling orders); State ex rel. Crafton v. Burnside, 207 W.Va. 74, 528 S.E.2d 768 (2000) (reviewing the circuit court’s decision not to amend the case management order under an abuse of discretion standard); State ex rel. State Farm Fire & Cas. Co. v. Madden, 192 W.Va. 155, 161, 451 S.E.2d 721, 727 (1994) (recognizing that it is within the trial court’s discretion to refuse to allow a party to designate or substitute an expert witness after the expiration of the deadline set forth in the scheduling order); Roark v. Dempsey, 159 W.Va. 24, 217 S.E.2d 913 (1975) (discussing discretion of trial court in utilization of Rule 16 of the West Virginia Rules of Civil Procedure). Thus, we apply an abuse of discretion standard to the trial court’s denial of the Farleys’ motion to enlarge their expert disclosure deadline.
The Farleys sought additional time to find and disclose expert witnesses because they had not yet been able to depose the defendant doctors. Moreover, the Farleys suggested that they could not disclose expert witnesses until such time as they could depose the experts identified by Dr. Shook and Dr. Miller. Even more compelling than the timing of depositions and the rendering of expert opinions, we place great significance on an agreement that was reached between the parties. The record reveals that on two separate occasions, the defendant doctors requested an extension of their expert disclosure deadline. Counsel for the Farleys agreed to the request, without hesitation, as a matter of professional courtesy. During the hearing on the motion, counsel for the Farleys conceded that, when the defendants sought enlargement of their expert disclosure deadlines, no reciprocal request was made on behalf of the Farleys. Because counsel for the Farleys had agreed to allow the defendant doctors an extension of time to identify their experts, he stated to the trial court that he anticipated no opposition to his own request for an extension of time. However, he was not treated with the same civility as he had demonstrated, and the defendant doctors did oppose the Farleys’ motion for an extension of time. The trial court ruled that the Farleys were not entitled to an extension of time in which to identify experts. Therefore, because Dr. Weihl was the only expert identified by the Farleys and he was deemed incompetent to testify against the podiatric physicians, the circuit court granted summary judgment to Dr. Shook and Dr. Miller.
We have previously recognized that “[u]pon a trial court’s determination that an expert witness is required to prove standard of care or proximate cause in an action brought under the West Virginia Medical Professional Liability Act, West Virginia Code §§ 55-7B-1 to -11 (1986) (Repl.Vol. 2000), a reasonable period of time must be provided for retention of an expert witness.” Syl. pt. 4, Daniel, 209 W.Va. 203, 544 S.E.2d 905. In the instant case, because of the impediments to the Farleys’ ability to identify a podiatric expert, the trial court abused its discretion in denying their motion to enlarge the time within which to identify such an expert. The situation against Dr. Shook and Dr. Miller is very different than the case against Dr. Fornari and St. Mary’s. As against Dr. Fornari and St. Mary’s, the Far-leys were able to identify an expert; however, while competent to testify, that expert was not able to tie any breaches of the standard of care by Dr. Fornari or St. Mary’s to the Farleys’ injuries. Nonetheless, as against Dr. Shook and Dr. Miller, the Farleys were not afforded adequate time to identify experts in light of the impediments with which they were faced. Therefore, it follows that the summary judgment awarded to Dr. Shook and Dr. Miller, on the basis that no expert existed to testify against them, must be reversed.
IV.
CONCLUSION
For the foregoing reasons, we affirm the March 30, 2004, order awarding summary judgment to Dr. Fornari and St. Mary’s. Further, we reverse the September 27, 2004, order awarding summary judgment to Dr. Shook and Dr. Miller, and remand this matter for proceedings consistent with this opinion.
Affirmed, in part; Reversed, in part; and Remanded.
. Huntington Podiatry Associates was also dismissed, without challenge, as reflected in the March 30, 2004, order. The defendants designated as DOES 1-10 represent possible defendants who were employed by the hospital. No further action was taken to identify such individuals.
. Both summary judgment orders are ripe for our consideration. Pursuant to Rule 54(b) of the West Virginia Rules of Civil Procedure,
when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
We have explained that "[a]n otherwise interlocutory order that is not expressly certified as final by using the language required by Rule 54(b) of the West Virginia Rules of Civil Procedure remains interlocutory so long as the affected party does not seek an appeal." Syl. pt. 3, in part, Hubbard v. State Farm Indem. Co., 213 W.Va. 542, 584 S.E.2d 176 (2003). Moreover, "[a]s long as a circuit court has jurisdiction over the case, then it possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient." Syl. pt. 4, id. Thus, both orders awarding summary judgment are proper for our consideration.
. We lake this opportunity to point out that this case emphasizes the importance of complying with the West Virginia Rules of Civil Procedure when parties request alterations to scheduling orders, and further prescribes the necessity of reducing parties’ agreements to writing. In this case, the defendant doctors and St. Mary's had requested extensions of their expert disclosure deadlines, which were memorialized in stipulations signed by all counsel. These written stipulations were filed with the circuit court on January 13, 2003, and again on March 14, 2003. When counsel for the Farleys realized the need for an extension, a similar practice should have been employed instead of relying on a professional courtesy that never materialized. The particular facts of this case, including the obstacles the defendant doctors and St. Mary’s placed before the Farleys, and the inequity in not allowing the Farleys an opportunity to develop an expert witness against Dr. Shook and Dr. Miller, allow this Court to remedy the injustice on the Farleys. Finally, to the extent that parties do agree to alter a scheduling order, even if the agreement is in writing, the parties must also be aware that such agreement ultimately requires approval by the circuit court. | [
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MAYNARD, Justice:
Appellant, Chesdon James Haught, appeals his March 12, 2004, conviction for domestic battery and kidnapping in the Circuit Court of Monongalia County. Appellant Haught argues that his sentencing under W.Va.Code § 61-2-14a (1999) violated his right to due process and trial by jury under the United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the trial judge made a finding of fact that enhanced his punishment beyond the maximum amount allowed by the kidnaping statute. After careful consideration of this matter, we affirm Appellant’s convictions.
I.
FACTS
Appellant, Chesdon James Haught, was convicted of the domestic battery and kidnapping of his girlfriend, Stephanie Hilton. Evidence introduced at trial indicated that after enjoying a late night out with a female friend, Ms. Hilton’s car tire went flat. The two women drove a short distance to a nearby friend’s house to have Ms. Hilton’s tire repaired and spend the evening. After arriving at the friend’s home, Ms. Hilton called the American Automobile Association and requested that a tow truck be dispatched to repair her tire.
While Ms. Hilton was waiting for the driver to arrive, Appellant called her cell phone several times to ascertain her location. Although Ms. Hilton refused to divulge her whereabouts, Appellant determined her location from background noises and drove to see her. After Appellant arrived, he repeatedly asked Ms. Hilton to leave with him. She refused and threatened to call the police when he became more insistent. Appellant left only to return a short time later. He parked his car1 close to Ms. Hilton’s car and left the engine running. ■ At that point, Appellant demanded that Ms. Hilton leave with him, and she refused. While Ms. Hilton was sitting in her ear, Appellant took Ms. Hilton’s money from inside her vehicle, grabbed her by the arms, picked her up out of the car, and carried her over his shoulder to his car. Ms. Hilton resisted to no avail. Appellant assured Ms. Hilton that he would return her to her friend’s house and return her money if she would only ride around the block with him. Ms. Hilton stated at trial that she did not ask for help because she was afraid that Appellant would harm her or anyone who tried to help her.
Shortly after Ms. Hilton left with Appellant, she jumped from the moving vehicle in an attempt to escape. Appellant got out of his car and chased her. When he caught Ms. Hilton, he forced her back into the vehicle with verbal threats and his physical strength. While trying to compel him to stop the ear and release her, Ms. Hilton once again tried to escape by kicking, punching, and biting Appellant. At that point, Appellant stopped the car and attempted to strangle Ms. Hilton. In her struggle to escape, Ms. Hilton kicked out the Appellant’s windshield.
In a final attempt to flee from Appellant, Ms. Hilton grabbed his steering wheel causing him to drive into a ditch.- When Appellant and Ms. Hilton exited the vehicle to push it out of the ditch, she stopped a passing vehicle to get help. As she was explaining her situation to the passing motorist, Appellant took more money from her, and obscenely gestured to her. The driver of the vehicle took her to a local convenient store where she called the police.
Appellant was subsequently indicted on charges of kidnapping, first-degree robbery, and domestic battery. On March 12, 2004, a jury found Appellant guilty of kidnapping and domestic battery. Pursuant to W.Va. Code § 61-2-14a(a), our kidnaping statute, a person found guilty shall receive a sentence of life without the possibility of parole. However, the statute also provides that the jury may, in its discretion, recommend mercy. In the instant case, the jury recommended mercy. Further, according to W.Va. Code § 61-2-14a(a)(3),
in all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him, but after ransom, money or other thing, or any concession or advantage of any sort has been paid or yielded, the punishment shall be confinement by the division of corrections for a definite terms of years of not less than twenty nor more than fifty.
Finally, W.Va.Code § 61-2-14a(a)(4) provides that,
in all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him or her, but without ransom, money or other thing, or any concession or advantage of any sort having been paid or yielded, the punishment shall be confinement by the division of corrections for a definite term of years not less than ten nor more than thirty.
The trial judge found that Appellant did not return Ms. Hilton unharmed and thus did not qualify for the sentences provided for in W.Va.Code § 61-2-14a(3) and (4). Therefore, the circuit sentenced Appellant to life with mercy as recommended by the jury. Appellant now appeals.
II.
STANDARD OF REVIEW
We are asked in this case to determine the constitutionality of a statute. Such an issue is a question of law. “ ‘Where the issue on 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).” Syllabus Point 1 of State v. Paynter, 206 W.Va. 521, 526 S.E.2d 43 (1999). Accordingly, we will review the question before us de novo.
III.
DISCUSSION
As noted above, Appellant challenges the constitutionality of the kidnaping statute, W.Va.Code § 61-2-14a, under the Supreme Court’s holding in Blakely v. Washington, supra. Specifically, Appellant contends that the statute improperly permits the circuit court, rather than the jury, to make findings of fact that enhance a defendant’s sentence.
In Blakely, the Supreme Court applied its previous ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi involved a defendant who was charged under New Jersey law with second-degree possession of a firearm for an unlawful purpose, which carried a prison term of 5 to 10 years. After the defendant pleaded guilty, the prosecutor filed a motion to enhance the sentence pursuant to a separate state hate crime statute. The statute allowed the defendant’s sentence to be extended if the court found, by a preponderance of the evidence, that “ ‘[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.’” Apprendi, 530 U.S. at 468-69, 120 S.Ct. at 2351, quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 1999-2000). The trial court found that the shooting was racially motivated and sentenced the defendant to a 12 year term, which was two years more than the maximum sentence provided in the statute under which the defendant was convicted.
The defendant appealed his conviction arguing that the federal due process clause requires the jury, not the trial judge, to find beyond a reasonable doubt the bias upon which his hate crime sentence was based. A New Jersey appellate court upheld the increased sentence reasoning that the hate crime enhancement was a sentencing factor and not an essential element of the underlying offense. The New Jersey Supreme Court subsequently affirmed the appellate court’s decision. The court reasoned that the statute was constitutional because it did not allow “impermissible burden shifting and did not ‘create a separate offense calling for a separate penalty.’ ” Apprendi, 530 U.S. at 473, 120 S.Ct. at 2353. The court further explained that the statute was a result of the legislature giving weight to a factor that sentencing courts have used to affect punishment.
The United States Supreme Court reversed the New Jersey Supreme Court’s decision. The Supreme Court explained:
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.... [w]e endorse the statement of the rule ... [that] it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.
The New Jersey statutory scheme that Apprendi asks us to invalidate allows a jury to convict a defendant of a second-degree offense based on its finding beyond a reasonable doubt that he unlawfully possessed a prohibited weapon; after a subsequent and separate proceeding, it then allows a judge to impose punishment identical to that New Jersey provides for crimes of the first degree.. .based upon the judge’s finding, by a preponderance of the evidence, that the defendant’s “purpose” for unlawfully possessing the weapon was “to intimidate” his victim on the basis bf a particular characteristic the victim possessed. In light of the constitutional rule explained above, and all of the cases supporting it, this practice cannot stand.
Apprendi, 530 U.S. at 490-492, 120 S.Ct. at 2362-2363 (citations and internal quotation marks omitted).
In Blakely, the Court explained further its holding in Apprendi. The defendant in Blakely pled guilty to second-degree kidnapping. Under Washington’s sentencing statute, the facts that Blakely admitted qualified him for a standard sentence of 53 months. However, pursuant to the statute, the trial court could increase the defendant’s sentence if it found “ ‘substantial and compelling rea sons justifying an exceptional sentence.’” Blakely, 542 U.S. at 299, 124 S.Ct. at 2535, 159 L.Ed.2d 403, quoting Wash.Code § 9.94A.120(2). The statute also provided an illustrative list of various aggravating factors for the court to consider when increasing a sentence. Pursuant to the plea agreement, the state recommended a sentence within the standard range of 49-53 months. However, the court increased Blakely’s sentence to 90 months after it found facts supporting deliberate cruelty, a statutorily enumerated ground for departure. The defendant appealed arguing that the sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence. The state appellate court affirmed the defendant’s sentence based on state precedent. The Washington Supreme Court denied discretionary review of the case.
The United States Supreme Court reversed after finding that the trial court’s sentencing of the defendant to more than three years above the 53-month statutory maximum of the standard range for his offense, based on the trial judge’s finding that the defendant acted with deliberate cruelty, violated the defendant’s Sixth Amendment right to trial by jury. In reaching this decision, the Court reiterated its finding in Ap-prendi that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. The Court then defined the term “statutory maximum” as used in the Apprendi case, explaining that “[o]ur precedents make clear ... that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S.Ct. at 2537 (emphasis in the original). The court added “the relevant ‘statutory maximum’ is not the maximum sentence a judge ■ may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, 542 U.S. at 303-304, 124 S.Ct. 2531.
In the instant case, Appellant argues that his sentence under W.Va.Code § 61-2-14a violated his right to a trial by juiy because the trial judge made findings of fact that enhanced his punishment. Specifically, says Appellant, the trial judge found that Ms. Hilton suffered, bodily injury and used this finding to enhance Appellant’s sentence. The State, on the other hand, counters that W.Va.Code § 61-2-14a permits the trial judge to reduce a defendant’s sentence after making certain findings, such as occurred in this case, and that such a reduction is not violative of Blakely.
According to Appellant, to consider W.Va. Code § 61-2-14a, a sentence reduction statute, as urged by the State, is to elevate form over substance. This is clearly illustrated, says Appellant, by simply changing the structure of the statute to indicate that a defendant is to receive a sentence of 10 to 30 years for kidnapping unless the trial court finds that (1) the victim was not returned involuntarily, (2) the victim was harmed, and (3) a ransom was paid. Appellant avers that if the statute were constructed in this way, it would clearly be a sentence enhancement statute in violation of Blakely. Yet, this is exactly how the statute operates despite its form. In support of this argument, Appellant points to the fact that the so-called exceptions to a life sentence without the possibility of parole in subsections (3) and (4) of the statute are mandatory if the trial judge finds the presence of the enumerated facts. For example, if the trial judge finds that the victim is ' permitted to return alive and without bodily harm, but after ransom has been paid, the statute says that “punishment shall be confinement ... for a definite term of years not less than twenty nor more than fifty.” Also, if the victim is permitted to return alive, without bodily harm, and with no ransom paid, “punishment shall be confinement ... for a definite term of years not less than ten nor more than thirty.” Thus, Appellant contends, the maximum sentence actually provided in the statute is 10 to 30 years unless the trial judge’s findings of fact enhance that sentence. According to Appellant, the enhancement from 10 to 30 years to life with mercy in his case was based on the trial judge’s finding that Ms. Hilton was not returned unharmed. Appellant concludes that such an enhancement based on a judicial finding clearly violates Blakely.
After careful consideration of this issue, we reject Appellant’s argument This Court believes that Blakely is clearly distinguishable from the instant ease. Blakely stands for the principle that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In Blakely, the facts admitted by Blakely qualified him for a standard sentence of 53 months. This sentence, however, was impermissibly enhanced to 90 months after the trial judge made additional findings of fact. In contrast, the statutory maximum in this case, or, in other words, the maximum sentence that Appellant could receive based on the jury’s findings, was life with mercy which is the sentence Appellant received. Thus, Appellant received no greater sentence than the statutory maximum. In sum, it is clear to this Court that, pursuant to the statute, any additional findings of fact made by the trial judge can only operate under the statute to reduce and not enhance a defendant’s sentence.
This Court has held,
[i]n considering the constitutionality of a legislative enactment, courts must exercise due restrain, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond a reasonable doubt.
Syllabus Point 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965). We believe it is perfectly reasonable to construe W.Va.Code § 61-2-14a as a statute that provides for the possible reduction of a defendant’s sentence based on any additional findings by the tidal judge and not one that permits the enhancement of a defendant’s sentence. In fact, if trial judges were not constitutionally permitted to reduce sentences as provided for in W.Va.Code § 61-2-14a, they would be precluded from ever granting probation in criminal cases. Prior to granting probation, trial judges are required to make factual findings just as they are permitted to do under the statute at issue. Therefore, we hold that our kidnaping statute, W.Va.Code § 61-2-14a (1999), does not provide for the enhancement of a defendant’s sentence beyond the statutory, maximum based on additional facts found by the trial judge in violation of the constitutional right to a trial by jury as interpreted by the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Accordingly, finding no constitutional error in Appellant’s sentence, we affirm.
IV
CONCLUSION
For the reasons set forth above, we affirm Appellant’s March 12, 2004, conviction for kidnaping and domestic battery.
Affirmed.
Justice STARCHER dissents and reserves the right to file a dissenting opinion.
. W.Va.Code § 61-2-14a(a) provides,
Any person who, by force, threat, duress, fraud or enticement take, confine, conceal, or decoy, inveigle or entice away, or transport into or out of this state or within this state, or otherwise kidnap any other person, or hold hostage any other person for the purpose of with the intent of taking, receiving, demanding or extorting from such person, or from any other person or persons, any ransom, money or other thing, or any concession or advantage of any sort, or for the purpose or with the intent of shielding or protecting himself, herself or others from bodily harm or of evading capture or arrest after he or she or they have committed a crime shall be guilty of a felony and, upon conviction, shall be punished by confinement by the division of corrections for life, and, notwithstanding the provisions of article twelve, chapter sixty-two of this code, shall not be eligible for parole: Provided, That the following exceptions shall apply: (1) A jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such person shall be eligible for parole in accordance with the provisions of said article twelve; (2) If such person pleads guilty, the court may, in its discretion, provide that such person shall be eligible for parole in accordance with the provisions of said article twelve, and, if the court so provides, such person shall be eligible for parole in accordance with the provisions of said article twelve in the same manner and with like effect as if such person had been found guilty by the verdict of a jury and the jury had recommended mercy; (3) in all cases where the person against whom the offense is committed is returned, or is permitted to return alive, without bodily harm having been inflicted upon him, but after ransom, money or other thing, or any concession or advantage of any sort has been paid or yielded, the punishment shall be confinement by the division of corrections for a definite term of years not less than twenty nor more than fifty; (4) in all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him or her, but without ransom, money or other thing, or any concession or advantage or any sort having been paid or yielded, the punishment shall be confinement by the division of corrections for a definite term of years not less than ten nor more than thirty. | [
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PER CURIAM:
In the instant case we uphold a jury’s verdict for the defendant employer in an employment discrimination case.
I.
The appellants, Wayman R. Fravel and W. Keith Wyckoff, are two former employees of the appellee Soles Electric Company, Inc. (“Soles”). Both appellants were laid off by Soles in 2000 — Mr. Wyckoff in March, and Mi-. Fravel in September. Both appellants had previously filed workers’ compensation claims while working for Soles — Mr. Wyck-off in 1997, and Mr. Fravel in 1999.
In March of 2002, the appellants filed an employment discrimination lawsuit against Soles in the Circuit Court of Marion County, alleging workers’ compensation discrimination and age discrimination. Prior to trial, the circuit court granted partial summary judgment for Soles on Mr. Wyckoffs workers’ compensation claim, and Mr. Fravel withdrew his age discrimination claim. The appellants’ case was tried to a jury in November of 2003, which found for Soles.
The appellants appeal to this Court from the jury’s verdict and the circuit court’s denial of their motion for a new trial, arguing that the circuit court’s grant of summary judgment for Soles on Mr. Wyckoffs work-' ers’ compensation claim was erroneous and that the circuit court’s instructions to the jury were erroneous.
II.
This Court’s standard of review for the granting of motions for summary judgment is de novo. Syllabus Point 1, Painter v. Peary, 192 W.Va. 189, 451 S.E.2d 755 (1994). “The formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court’s giving of an instruction is reviewed under an abuse of discretion standard.” Syllabus Point 6, in part, Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995).
III.
A.
Syllabus Point 1, Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717 (1991) states:
In 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.
This Court went on to state:
In determining whether there is a nexus between the filing of the workers’ compensation claim and the discharge, we take heed of this warning by the New York Court of Appeals in Axel v. Duffy-Mott Co., 47 N.Y.2d at 6, 416 N.Y.S.2d at 556, 389 N.E.2d at 1077:
“[I]n a case premised on an alleged violation of a statute purposed to counter retaliation or other discrimination, we must keep in mind that those engaged in such conduct rarely broadcast their intentions to the world. Rather, employers who practice retaliation may be expected to seek to avoid detection, and it is hardly to be supposed that they will not try to accomplish their aims by subtle rather than obvious methods.... Moreover, employers are vested with considerable discretion in the hiring and firing of their employees so as to maintain an efficient and productive work force, and the visible manifestations of even a most improperly motivated discharge may be difficult to sort out from a nonretaliatory exercise of this discretion.” (Citations omitted).
Because of the usual lack of direct evidence, courts have looked to a variety of factors. 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. E.g., Axel v. Duffy-Mott Co., supra (immediately after claimant filed for workers’ compensation benefits, adverse comments began to appear in her personnel file about her work performance and appearance); Elzey v. Forrest, 739 P.2d 999 (Okla.1987) (supervisor told employee that he was jeopardizing job by seeking treatment from doctors whose practices were associated with workers’ compensation claimants). Cf. Milner v. Stepan Chem. Co., 599 F.Supp. 358 (D.Mass.1984) (following a work-related accident, the employee’s supervisor repeatedly harassed him about not reporting the injury so as not to spoil the company’s safety record).
Id., 184 W.Va. at 704, 403 S.E.2d at 721.
Mr. Wyckóff was off work due to his workers’ compensation injury from May 1997 until August 1997 and returned to work thereafter, but he was not laid off from work by Soles until September, 2000. In ruling on Soles’ motion for summary judgment prior to trial, the circuit court found that Mr. Wyck-off s layoff was “simply too far removed temporally from his workers’ compensation claim ... to support a jury finding of a causal connection.” The circuit court also noted that there was no evidence of harassing conduct, and there was substantial evidence of a nondiscriminatory reason for the layoff. Soles submitted evidence that nearly forty percent of its non-exempt employees had filed some type of workers’ compensation claim.
Upon our review of the record, the trial court did not grant summary judgment on the sole basis of the passage of time, but on the basis that there was insufficient other evidence offered or pointed to by Wyckoff that would permit a jury to infer a likely illegal discriminatory motive, given the very lengthy time period (more than three years) that had passed since the workers’ compensation event.
We conclude that the trial court did not err in granting partial summary judgment on Mr. Wyckoffs workers’ compensation discrimination claim.
B.
On the issue pf jury instructions, the appellants claim that the circuit court erred in refusing to give the jury several proffered instructions containing language from West Virginia employment law cases. An example of the appellants’ refused instructional language is:
Because discrimination is essentially an element of the mind, there probably will be very little direct proof available. Gone are the days, if, indeed, they ever existed, when an employer freely will admit to taking adverse action against an employee for illegal reasons.
It is neither customary nor ordinarily appropriate for this sort of discursive language that is used in opinions to explain the court’s reasoning to be included in jury instructions.
The formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court’s giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties.
Syllabus Point 6, Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995).
We conclude that the appellants’ assignment of error based upon the circuit court’s instructions to the jury is without merit.
III.
For the foregoing reasons, we affirm the ruling of the Circuit Court of Marion County.
Affirmed.
. This language is taken from footnote 21 of Skaggs v. Elk Run Coal Co., Inc., 198 W.Va. 51, 72, 479 S.E.2d 561, 582 (1996).
. Appellants also argue that the circuit court erred in giving an instruction proffered by the appellee that stated:
Whether the defendant’s decision seemed fair or wise to you is not a basis upon which you may rely in finding that the defendant unlawfully discriminated against the plaintiff.
This instruction is consistent with language in Skaggs, supra; 198 W.Va. at 79, 479 S.E.2d at 589. Taken in the context of the entire charge to the jury, giving this instruction was not reversible error. | [
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PETITION FOR A WRIT OF PROHIBITION
ALBRIGHT, Chief Justice.
Plaintiffs below, Belinda Billups, individually and as guardian and best friend of Jacob Billups, and Randy Billups (hereinafter referred to collectively as “Petitioners”), seek a writ prohibiting the Circuit Court of Monon-galia County from enforcing an order which would permit the defendants below to retain as an expert witness a doctor whom Petitioners previously had engaged in the same action. Raleigh General Hospital (hereinafter referred to individually as “Raleigh General”), Saraswathi Mohan, M.D. and Petaiah Mohan, M.D., being three of the defendants below, argue against issuance of the writ. Upon completion of our review of the law, arguments of the parties and relevant record, we decline to provide the relief requested for the reasons explained herein.
I. Factual and Procedural Background
Investigating the possibility of filing a malpractice lawsuit, Petitioners’ counsel contacted Dr. Stanford Schulman, an expert in the field of Kawasaki Disease, on May 7, 2003, to request that the doctor review the medical records of Jacob Billups. According to Petitioners’ counsel, a summary of the medical treatment received by Jacob Billups was sent to Dr. Schulman after he agreed to conduct the review, and phone conversations were held on May 9 and May 12, 2003, with Petitioners’ counsel and a nurse paralegal employed by the same law firm. Petitioners contend that the exchanges of information between the doctor and their legal advisors involved privileged communications. On May 12, 2003, Dr. Schulman informed Petitioners’ counsel that his review did not support the issuance of a medical screening certificate of merit pursuant to the provisions of West Virginia Code § 55-7B-6 (2003) (Supp. 2004). This certificate was later procured by Petitioners from a Dr. Leonard Steinfeld on May 20, 2003. The certificate of merit along with the statutorily required notice of claim were mailed on May 27, 2003, to the health care providers named in the suit and the case was first filed on June 25, 2003. We are advised that the initial suit was dismissed upon defense motion, but virtually the same action was refiled on January 8, 2004, aecom-panied by the same notice of claim and eertif-icate of merit used in the first instance.
Raleigh General Hospital, one of the health care providers named as a defendant in this suit, independently located Dr. Schulman as a Kawasaki Disease expert and retained the doctor in February 2004 to review the medical records in the ease. Shortly after receiving the records, Dr. Schulman telephoned Raleigh General’s counsel to inform counsel that he had previously reviewed the same medical records for a plaintiffs law firm in West Virginia and that the doctor had given them a negative review. Raleigh General’s counsel terminated the consultation with Dr. Schulman and has had no further contact with the doctor except to advise the doctor that the matter of his continued participation was a court determination.
Concurrently, counsel for Raleigh General notified Petitioners’ counsel about the contact with Dr. Schulman and of Raleigh General’s desire to retain the doctor as an expert. Petitioners objected and Raleigh General filed a motion with the lower court in order to determine whether it would be proper under the circumstances for Raleigh General to retain Dr. Schulman as its expert.
A hearing on the motion was held before the lower court on May 20, 2004. On June 7, 2004, Petitioners disclosed under Rule 26(b)(4)(B) of the West Virginia Rules of Civil Procedure that Dr. Steinfeld would be their trial expert and Dr. Schulman was their “non-testifying expert.” The disclosure was followed by the filing on June 11, 2004, of Petitioners’ “Motion to Prohibit Defendant’s Retention of Dr. Stanford Schulman as an Expert Witness.” In support of their motion, Petitioners argued that their counsel and a nurse paralegal working for the same law firm had disclosed to Dr. Schulman a confidential summary of the medical treatment at issue and discussed the theory of the case in great detail. Affidavits, created by petitioners’ counsel and paralegal a year after the consultation with Dr. Schulman, were submitted to the court below with Petitioners’ motion and placed under seal for in camera review.
The lower court issued an order on August 20, 2004. Observing that the issue before it was a new question of law, the court below first adopted the test proposed by the parties which other jurisdictions have used to decide similar disqualification questions. After applying the test, the court below concluded in its August 20, 2004, order that although the court had “the inherent power to disqualify Dr. Schulman, the Plaintiffs have not met the high standard of proof necessary to overcome the Court’s reluctance to disqualify Dr. Schulman.” Accordingly, the motion to prohibit the retention by the defense of Dr. Schulman as an expert witness was denied. In an effort to bar implementation of the adverse order, the plaintiffs below filed a writ of prohibition with this Court on December 16, 2004, from which we issued a rule to show cause on January 19, 2005.
II. Standard of Review
We approach the issues presented in this case mindful 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 writ of error, appeal or certiorari.” Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953). Elaborating on this standard of review in syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), we said:
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
Typically, the decision regarding disqualification of an expert witness rests within the sound discretion of the trial court. State v. LaRock, 196 W.Va. 294, 306, 470 S.E.2d 613, 625 (1996). Thus our review in most instances is restrained and the lower court’s decision will stand unless there is an abuse of discretion. Id. However, as the lower court observed, this Court through its opinions, the West Virginia Rules of Evidence or Rules of Civil Procedure has not directly addressed the issue of under what circumstances disqualification of an expert witness is warranted where the parties disagree about whether confidential information was communicated when that expert previously conferred with an opposing party in the same or related suit. As such, we proceed initially with a de novo review of the question of law raised in the petition. Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
The parties mutually urge us to uphold the lower court’s adoption of the two-part test employed by the majority of courts who have examined the issue of expert witness disqualification in this context. These courts have rejected a rigid solution to the expert disqualification problem and instead have opted to apply a two-prong test which balances the interests at stake. Observing that the principal aim of trial courts in reviewing expert witness disqualification motions is the protection and preservation of the integrity and fairness of judicial proceedings, the court in Great Lakes Dredge & Dock Co. v. Harnischfeger Corporation, 734 F.Supp. 334 (N.D.Ill.1990), summarized the interests that the courts must weigh:
On the one side is the party’s interest in protection of confidential communications or other privileged matter. On the other side is the opposing party’s right to retain those persons it feels are needed to prosecute its case. Also, at issue is the interest of experts to seek employment.
Id. at 336-37. The Great Lakes court thereafter adopted the balancing-of-interests approach set forth in Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271 (S.D.Ohio 1988), and later framed by the court in Wang Laboratories, Inc. v. Toshiba Corporation, 762 F.Supp. 1246 (E.D.Va.1991), as the following two-part inquiry:
First, was it objectively reasonable for the first party who claims to have retained the consultant [previously] ... to conclude that a confidential relationship existed?
Second, was any confidential or privileged information disclosed by the first party to the consultant?
Id. at 1248 (citations omitted).
Courts adopting the balancing-of-interests approach have placed the burden of proving the test elements on the party seeking disqualification. Additionally, the majority of courts hold that disqualification of an expert witness is indicated only when both questions are answered in the affirmative. As explained by the court in Wang:
[Disqualification is likely inappropriate if either inquiry yields a negative response. Thus, even if counsel reasonably assumed the existence of a confidential relationship, disqualification does not seem warranted where no privileged or confidential information passed. Were this not so, lawyers could then disable potentially troublesome experts merely by retaining them, without intending to use them as consultants. Lawyers using this ploy are not seeking expert help with their ease; instead, they are attempting only to prevent opposing lawyers from obtaining an expert. This is not a legitimate use of experts, and courts should not countenance it by employing the disqualification sanction in aid of it.
Similarly, disqualification should not occur in the absence of a confidential relationship even though some confidential information may be disclosed. In this event, the disclosure is essentially a waiver of any existing privilege. Lawyers bear a burden to make clear to consultants that retention and a confidential relationship are desired and intended.
Wang, 762 F.Supp. at 1248 (internal citations and footnotes omitted). We find this reasoning persuasive and accordingly hold that in eases where disqualification of an expert witness is sought, the party moving for disqualification bears the burden of proving that at the time the moving party consulted with the expert: (1) it was objectively reasonable for the moving party to have concluded that a confidential relationship existed with the expert; and (2) confidential or privileged information was disclosed to the expert by the moving party. Disqualification is warranted only when the evidence satisfactorily demonstrates the presence of both of these conditions.
Finding no error in the law employed by the lower court, we next examine the lower court’s application of the law to the facts in this case to determine if there was an abuse of discretion. As to the first inquiry, we observe that Petitioners’ counsel reached agreement with Dr. Sehulman to evaluate the medical records of Petitioners’ son for the purpose of assisting with a medical malpractice claim against Respondents and other health care providers. Dr. Sehulman reviewed the medical records forwarded to him by Petitioners’ counsel. Dr. Sehulman spoke with both a lawyer and paralegal from the law firm representing Petitioners before he finally concluded that the record showed that the proper standard of care was provided. We agree with the lower court’s findings that these facts and actions demonstrate that it was objectively reasonable for Petitioners to conclude that a confidential relationship had existed with the doctor during the consultation period.
We turn now to consider whether the lower court correctly reviewed the evidence involving the second prong of the test. Petitioners claim that the lower court was incorrect in finding that no confidential information was disclosed to Dr. Sehulman because sealed documents in the record reveal that Dr. Sehulman was privy to such details as Petitioners’ theory of the ease, the weaknesses of each side’s case and other mental impressions of their legal advisors. While we obviously are not at liberty to reveal the contents of the sealed documents, upon completion of our review of the documents we are in agreement with the lower court’s conclusion that “[m]ost, if not all, of the information contained in those submissions, is contained in the medical records of the infant Plaintiff, the notice of claim, the screening certificate of merit, Plaintiffs’ Complaint and other pleadings ... or would be discoverable under the Rules of Civil Procedure.” This being the case, the second condition of the test herein announced is not satisfied. Consequently, we find no abuse of discretion by the lower court in applying the law to the facts of this case, as well as no basis to issue a writ of prohibition in order to force the disqualification of Dr. Sehulman as an expert witness for Respondents.
IV. Conclusion
Finding that the Circuit Court of Monon-galia County did not exceed its legitimate powers in this matter, we deny the relief in prohibition requested.
Writ denied.
. Collectively referred to hereinafter as "Respondents.”
. "Kawasaki disease is a rare condition in children that involves inflammation of the blood vessels ... [and] is usually accompanied by a fever ...." U.S. National Library of Medicine and the National Institutes of Health, Medline-Plus Medical Encyclopedia <http://www.nlm.nih.g ov/medlineplus/ency/ article/000989.htm> (April 22, 2005).
. The relevant portion of West Virginia Code § 55-7B-6 reads 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.
. This designated portion of Rule 26 provides that:
A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
. As a scheduling order was not entered until September 28, 2004, Petitioners’ experts were prematurely disclosed.
. See e.g. Koch Refining Co. v. Jennifer L. Boudreau MV, 85 F.3d 1178 (5th Cir.1996); English Feedlot, Inc. v. Norden Laboratories, Inc., 833 F.Supp. 1498 (D.Colo.1993); Mayer v. Dell, 139 F.R.D. 1 (D.D.C.1991); Great Lakes Dredge & Dock Co. v. Harnischfeger Corp., 734 F.Supp. 334 (N.D.Ill.1990); Palmer v. Ozbek, 144 F.R.D. 66 (D.Md.1992); Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271 (S.D.Ohio 1988); Wang Laboratories, Inc. v. Toshiba Corp., 762 F.Supp. 1246 (E.D.Va.1991); Grant Thornton, LLP v. F.D.I.C., 297 F.Supp.2d 880 (S.D.W.Va.2004); Mitchell v. Wilmore, 981 P.2d 172 (Colo.1999); Nelson v. McCreary, 694 A.2d 897 (D.C.1997); Roundpoint v. V.N.A. Inc., 207 A.D.2d 123, 621 N.Y.S.2d 161 (1995); Ambrosia Coal and Construction Co. v. People's Bank of Western Pennsylvania, 2002 WL 31097927 (Pa.2002); Formosa Plastics Corp., USA v. Kajima Intern., Inc., 2004 WL 2534207 (Tex.App.2004); Turner v. Thiel, 262 Va. 597, 553 S.E.2d 765 (2001).
. We have found two jurisdictions employing a minority rule which does not require an affirmative response to both questions. In these jurisdictions, the analysis used is similar to the standards governing conflict of interest involving attorneys, that is, once it is established that it was objectively reasonable to conclude a confidential relationship existed then there is a re-buttable presumption that confidential or privileged information was disclosed. See Marvin Lumber & Cedar Co. v. Norton Co., 113 F.R.D. 588, 591 (D.Minn.1986); Conforti & Eisele, Inc. v. Division of Bldg. & Const., 170 N.J.Super. 64, 405 A.2d 487, 490 (1979). Thus, in those jurisdictions only the first part of the test requires an affirmative response and once that is obtained then the burden of proof shifts to the party opposing disqualification. The majority view, with which we agree, is that the distinctly different roles performed or purposes satisfied by experts and attorneys in litigation justify the different disqualification standards. See e.g. English Feedlot, Inc. v. Norden Laboratories, Inc., 833 F.Supp. 1498, 1501 (D.Colo.1993); Wang Laboratories, Inc. v. Toshiba Corp., 762 F.Supp. 1246, 1250 (E.D.Va.1991); Mitchell v. Wilmore, 981 P.2d 172, 175 (Colo.1999) (overruling adoption of minority view in City of Westminster v. MOA, Inc., 867 P.2d 137 (Colo.App.1993)).
. This opinion has no effect on the confidentiality inherent in medical records and protected patient health information.
. We pause briefly to express concern with the prejudicial effect which may result when experts not disqualified from serving as witnesses under circumstances similar to those presented in this case are asked to reveal or are questioned at trial about the prior consultation with the adverse party. Trial courts in these circumstances would be well served to expressly caution against making inappropriate reference to the prior consultation. | [
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PER CURIAM:
Appellant, Terri Lynn Singleton, appeals a jury verdict finding her guilty of conspiracy to possess a controlled substance with intent to distribute, alleging error by the trial court in admitting into evidence statements made by the appellant to a police officer prior to arrest. Appellant also appeals on the grounds that she was in custody during the interrogation without first being properly Mirandized. The judgment of the trial court is affirmed.
I.
On September 18, 2001, the Raleigh County drug task force received information from San Diego, California law enforcement authorities that a large amount of marijuana had been shipped to Beckley, West Virginia. After executing a search warrant, West Virginia officers found approximately ten pounds of marijuana shipped from San Diego to Beckley.
Based upon the shipping label, officers went to the residence of Ronald Rhodes, co-defendant of appellant Terri Lynn Singleton. Rhodes told the officers that he had been approached by the appellant and that he agreed to pick up the package for her. Rhodes further told the officers that appellant was to pay him $100.00 for picking up the package. At the suggestion of the officers, Mr. Rhodes called the appellant, consenting to have the conversation taped. In the telephone conversation, the appellant asked Rhodes, “Is it there?”, thus implicating her in the conspiracy.
Based upon the officers’ interview with Mr. Rhodes, Detectives R.L. Booker and Dustin Joynes went to the residence of the appellant. Appellant was not at home, but appeared at her residence at approximately 1:00 p.m. The officers then proceeded to interview the appellant. Detective Booker took the lead.
The interview took place in an unmarked police ear with the appellant seated in the front passenger seat with the door open. Appellant was told that she was not under arrest and that she was free to go. Initially Detectives Booker and Joynes were in the car; Booker was in the front seat, Joynes was in the back. The appellant 'was not restrained. The officers were joined by two additional officers at different times during the interview. The interview took approximately forty minutes and was recorded.
Initially the appellant denied any criminal wrongdoing, but approximately ten minutes into the interview, the appellant confirmed her participation by admitting that she was to pay Mr. Rhodes $100.00 for his participation and that she was to receive $500.00 for routing the marijuana to other individuals.
During the interview, and before her admission, Detective Booker made a number of statements to the appellant relating to the seriousness of the matter and the implications that it had for her family and her eligibility for HUD-supported housing. Additionally, during the early part of the interview, and before the appellant’s admission, Booker confronted appellant with the fact that they had her voice on tape with Mr. Rhodes.
The officers concluded the interview and permitted the appellant to return to her house. The officers then left appellant’s residence. Later the same day, after the officers decided that the appellant had provided misleading information regarding those higher up in the conspiracy, the appellant was arrested.
The appellant was charged with possession of a controlled substance with intent to deliver and conspiracy to possess with intent to distribute.
A suppression hearing was held regarding the statements the appellant made to the officers prior to her arrest. The trial court found that the statements were voluntary and were not the product of psychological coercion. The appellant did not testify or offer any evidence at the suppression hearing. The trial court also found that the appellant was not in custody at the time she made her voluntary statements to the law enforcement officials.
At trial the jury was permitted to hear a redacted CD audio of the appellant’s statement and the jury was provided with an edited transcript of the CD. The jury was read a Hardesty instruction prior to listening to the CD. After hearing the testimony of the officers involved in the investigation and the appellant’s mother, the jury returned a verdict of guilty to the conspiracy charge. The appellant did not testify.
II.
The appellant asserts that the trial court committed reversible error in admitting into evidence the recording of the police interrogation and her statements made to police officers for the following reasons: (1) Because the statements were obtained through coercion and that the appellant did not knowingly, willingly and voluntarily waive her constitutional rights, and (2) Because the statements were obtained while the appellant was in custody and without the benefit of her right to counsel, or having been appraised of her Miranda warnings.
In Syllabus Point 1 of State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996), we set forth our standard of review for motion to suppress:
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.
In Syllabus Point 3 of State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978), we held that:
A trial court’s decision regarding the voluntariness of a confession will not be disturbed unless it is plainly wrong or clearly against the weight of the evidence.
In accord, Syllabus Point 7, State v. Hickman, 175 W.Va. 709, 338 S.E.2d 188 (1985); Syllabus Point 2, State v. Stewart, 180 W.Va. 173, 375 S.E.2d 805 (1988). In Syllabus Point 2 of State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994), we also held:
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 the 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.
In Syllabus Point 2 of State v. Bradshaw, 193 W.Va. 519, 457 S.E.2d 456 (1995), we held:
Whether an extrajudicial inculpatory statement is voluntary or the result of coercive police activity is a legal question to be determined from a review of the totality of the circumstances.
In accord, Syllabus Point 5, State v. Milburn, 204 W.Va. 203, 511 S.E.2d 828 (1998).
It is axiomatic in our jurisprudence that in order for an extra-judicial confession of an accused made to one in authority to be admissible in evidence, it must appear that the confession was freely and voluntarily made, without threats or intimidation, or some promise or benefit held out to the accused. State v. Zaccario, 100 W.Va. 36, 129 S.E. 763 (1925).
In the instant case the appellant alleges that the law enforcement officials used the “family approach” to extract a confession from the appellant. Appellant places substantial reliance upon State v. Stotler, 168 W.Va. 8, 282 S.E.2d 255 (1981) (per curiam) and Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963). We consider these and other cases cited by appellant distinguishable from this case and not controlling.
In Stotler the appellant was placed under arrest and held incommunicado for fourteen hours following his arrest. Additionally, appellant’s wife was placed under arrest. The law enforcement officer allegedly told the appellant that if he didn’t cooperate his children would be placed in a foster home, but that his wife would be released if he confessed. Both the appellant and his wife testified at the suppression hearing. Finally, unlike the instant case, the trial court made no findings of fact on whether the confession was procured by improper inducement.
In Lynwmn the appellant was also placed under arrest. Appellant was encircled in her apartment by three police officers and the person who purportedly “set her up.” The appellant testified at' trial. The State conceded, at least for the purpose of arguing that receiving the confession into evidence was harmless error, that the totality of the circumstances disclosed by the record must be deemed to have combined to produce an impelling coercive effect upon the petitioner. Also, the ease was tried by the trial court-without a jury.
It is clear that Stotler and Lynwmn are comparable primarily with respect to the statements made by the police officers to the appellant, but differ in other respects. In the instant case we have the benefit of the trial court’s detailed seven-page order which sets forth specific findings of fact and conclusions of law.
In Syllabus Point 7 of State v. Farley, 192 W.Va. 247, 452 S.E.2d 50 (1994) we held, in part:
Representations or promises made to a defendant by one in authority do not necessarily invalidate a subsequent confession. In determining the voluntariness of a confession, the trial court must assess the totality of all the surrounding circumstances. No one factor is determinative.
The record in this case clearly demonstrates that the trial court did precisely that which our jurisprudence requires in evaluating the admissibility of a confession, namely to apply the correct legal standard, a “totality of the circumstances” analysis. In doing so, the court found that there was no evidence that demonstrated that law enforcement officials placed any undue pressure on the appellant, nor did the police threaten or improperly induce the appellant to extract a confession. Further, the trial court concluded that from the totality of the circumstances the appellant’s statements were voluntary and not the product of psychological coercion from law enforcement agents. From our review of the record and the recorded interview it appears likely that the appellant made her admission primarily due to the disclosure of the recording of the taped conversation between the appellant and Mr. Rhodes — not due to law enforcement’s statements relating to the appellant’s family.
We therefore find that the trial court’s factual findings are supported by the record, and the findings of fact are not clearly erroneous. Accordingly, we affirm the trial court’s rulings with respect to the issue of the voluntariness of the appellant’s statements to law enforcement officials.
We now ton to the appellant’s second assignment of error — whether the appellant’s statements should not have been admitted into evidence because the appellant was in custody and had not been appraised of her Miranda warnings. We also find this assignment of error without merit.
We have held that:
An arrest is the detaining of the person of another by any act or speech that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest.
Syllabus Point 1, State v. Muegge, 178 W.Va. 439, 360 S.E.2d 216 (1987), overruled on other grounds, State v. Honaker, 193 W.Va. 51, 454 S.E.2d 96 (1994).
We discussed in State v. Preece, 181 W.Va. 633, 383 S.E.2d 815 (1989) overruled on other grounds, Syllabus Point 8, State v. Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999), that the factors to be considered by a trial court when making a custodial determination, while not inclusive, include: the location and length of questioning; the nature of questioning as it relates to the suspect offense; the number of police officers present; the use or absence of force or physical restraints by the police officers; the suspect’s verbal and non-verbal responses to the police officers; and the length of time between questioning and formal arrest. Preece, 181 W.Va. at 642, 383 S.E.2d at 823-24.
In this case, the trial court found that the appellant was not subjected to a lengthy interview, that the appellant was not handcuffed, detained or otherwise restrained by the officers, that the officers cut short the interview to allow the appellant to leave for work, and that clearly the appellant was not in custody, detained, or otherwise in the control of the officers at any time during the interview. Additionally, the appellant was advised before the interview that she was not under arrest and that she was free to go, and during the interview the appellant was seated in the front passenger seat of the officer’s vehicle with the passenger door open.
We conclude from the record that a reasonable person being interviewed by the police under the same circumstances as the appellant in this case could have considered his or her freedom of action to not have been curtailed to a degree associated with a formal arrest. Accordingly, the trial court’s decision with respect to the custody issue is not clearly wrong or against the weight of the evidence. We therefore affirm the trial court decisions with respect to the appellant’s second assignment of error.
III.
Based on the foregoing, we affirm the Circuit Court of Raleigh County.
Affirmed.
.Following are excerpts from the interview taken from the transcript wherein Detective Booker pointed to the implications that her participation in the conspiracy might have on her family. The statements were made at various times during the first part of the interview and before the appellant made her admission.
Booker: ... Now, if you want to play hard ball, we'll just arrest you and .. you got to worry about your children. You’re still public housing isn't it?
Booker: And you got to worry about your "HUD” certificate and everything.
Booker: And ... now you got a lot to loose [sic]. Now you ... you can be a defendant or you can be a witness. Now we know and I’m sure that we'll be able to prove this.... ok? We know about that. Now, I don't want you to play hard ball Terri. You got your man there and more importantly you got your child. I’m talkin' to you man to woman like 2 adults. Don't get caught up in this game ... loose [sic] your kid, go to the penitentiary and all that. We want to know the whole stray about that package. We got ya!
Booker: You know we aint’ [sic] gonna fool with you cause we’ll just come back there and arrest all of you. Like a thief in the night. We’ll just come back and get ya. We thought maybe you wanted an opportunity to help yourself. If you don’t, it don’t make a difference to me.
Booker: You ... you're just another citizen to go to jail. We don’t care. Throw your name out in the paper. Kick you out of your house.
Booker: You got a lot to loose [sic], I mean-we don’t care.
. The judge entered a seven-page order which describes in detail his findings of fact and conclusions of law. The judge concluded that based upon the totality of the circumstances, the appellant’s statements were voluntaty and not the product of psychological coercion from law enforcement agents.
. The only person who testified at the suppression hearing was Detective Booker.
. Syllabus Point 3 of State v. Hardesty, 194 W.Va. 732, 461 S.E.2d 478 (W.Va.1995), requires:
Audio and video tape recording transcripts provided to a jury as an aid while the actual tapes are being seen or heard are not themselves evidence, should not be admitted into evidence, and should not be furnished to the jury during deliberations. Audio and video tape recording transcripts are demonstrative aids for the understanding of evidence; they should be so marked and identified; and the court should instruct the jury regarding the purpose and limited use of the transcripts.
. Prior to trial the State dismissed the possession charge.
.We take this opportunity to state that we are troubled by some of the comments made by the law enforcement officers during the interview with the appellant. It is clear from a review of the record in this case that the officers are well-schooled in matters relating to interrogation techniques; however, standing alone and absent other relevant factors, we believe that such statements by police officers could well contaminate valuable evidence. The law enforcement officers in this case came perilously close to crossing the line.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. In Syllabus Point 4 of State v. Honaker, 193 W.Va. 51, 454 S.E.2d 96 (1994), we overruled a portion of our holding in Muegge, stating:
Police involvement must be evident before a statement is considered involuntary under the West Virginia Due Process Clause. To the extent that State v. Sanders, 161 W.Va. 399, 242 S.E.2d 554 (1978), and State v. Muegge, 178 W.Va. 439, 360 S.E.2d 216 (1987), hold otherwise, they are expressly overruled.
.Syllabus Point 8 of State v. Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999) overruled a portion of our holding in Preece, stating:
The special safeguards outlined in Miranda are not required where a suspect is simply taken into custody, but rather only where a suspect in custody is subjected to interrogation. To the extent that language in State v. Preece, 181 W.Va. 633, 383 S.E.2d 815 (1989), and its progeny, may be read to hold differently, such language is expressly overruled.
. The appellant was not formally arrested until approximately 9:30 p.m. She left the officers at approximately 1:40 p.m. on that same day.
. The record reflects that the interview took approximately forty minutes. | [
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Justice STARCHER delivered the Opinion of the Court.
STARCHER, J.
In the instant case we adopt the recommendations of a special master appointed by this Court and hold that double-bunking in correctional facilities is not barred by State regulations; and that the decision whether an inmate should or should not be housed in a single cell must be made pursuant to enforceable standards, policies, and procedures that are based on pertinent medical and other relevant criteria.
I.
Facts & Background
This matter is before this Court upon James William Berry’s petition asserting that the respondent warden of the Mount Olive Correctional Complex (“MOCC”) in the past has required (and in the future may require) the petitioner Mr. Berry to share a cell at the MOCC with another inmate. (We will refer to this practice as “double-bunking”)
The petitioner began the instant case by filing a petition pro se invoking the original jurisdiction of this Court, to which the respondent replied; and the case was thereafter submitted for decision. This Court subsequently issued an opinion finding most of the grounds for the petitioner’s claim to be entitled to be housed in a single cell to be without merit. State ex rel. Berry v. McBride, No. 30696, 2002 WL 31681823 (November 27, 2002) (opinion withdrawn upon grant of rehearing, January 16, 2003).
However, this Court’s now-withdrawn opinion did conclude that West Virginia Code of State Regulations, Title 95-2-8.7 prohibited the respondent from housing more than one inmate in a correctional facility (as opposed to an inmate in a jail) in a cell designed for single occupancy. On that basis, the withdrawn opinion granted the petitioner’s requested writ.
Title 95-2, “Minimum Standards for Construction, Operation, and Maintenance of Correctional Facilities,” was promulgated in 1996 and states in pertinent part that:
8.7. Single Occupancy. Only one inmate shall occupy a room or cell designed for single occupancy....
However, in 1998 the Legislature added language at W.Va.Code, 31-20-9(a)(2) [1998] to state in pertinent part:
Provided, That rules filed by the jail and correctional facilities standards commission and authorized by the Legislature to be promulgated before the amendment to this section enacted in the regular session of the Legislature in the year one thousand nine hundred ninety-eight remain in force except that such previously promulgated rules no longer apply to: (i) Carrec-tional facilities; ... [emphasis added].
After this Court issued its original opinion in the instant case, the respondent requested that this Court rehear the instant case and reconsider our decision in light of the foregoing-quoted 1998 amendment. We granted the respondent’s request, withdrew our original opinion, and appointed counsel to represent the petitioner.
Upon the parties’ request, this Court thereafter referred this matter to Judge Derek C. Swope to serve as special master for the purposes of supervising the taking of depositions and facilitating discovery. This Court further ordered that at the conclusion of discovery, the special master should make such findings of fact and conclusions of law as are necessary to address the issues presented by the parties and to permit adequate review by this Court.
The special master received the memoran-da of both parties and issued an Interim Report requesting additional discovery. The additional discovery matters having been concluded, the special master then submitted recommended findings of fact and conclusions of law to this Court, which we largely adopt and incorporate herein. We appreciate the special master’s thorough and reasoned approach to the matters that were before him. Upon oral argument and a review of the briefs on rehearing, we issue this opinion, replacing our previously-issued opinion in the instant ease.
A.
Special Master’s Findings
The Mount Olive Correctional Complex where the petitioner is housed by the respondent is a correctional facility that currently houses approximately 980 inmates, and originally did not place more than one person in each cell. According to the special master’s report, the cells at MOCC were originally designed so that they could be modified to house two inmates, but the architect deleted that design feature before the construction of the MOCC. However, when the MOCC popu lation exceeded bed and cell space, the respondent began double-bunking inmates. The increase in population assertedly occurred when a large number of prisoners held in county or regional jails were ordered to be transferred to West Virginia Division of Corrections facilities. See State ex rel Sams v. Kirby, 208 W.Va. 726, 542 S.E.2d 889 (2000).
The petitioner has been incarcerated at the MOCC since May 17, 1997, and is serving a life sentence. The petitioner asserts that the physicians at the Veterans Administration Hospitals in Huntington and Beeldey have determined that he is seventy-five percent disabled. The petitioner is required to move about in a wheelchair as a result of being struck by an automobile. The petitioner contends that he suffers from nerve damage and degenerative arthritis.
The petitioner was first double-bunked for approximately four months during his classification period at MOCC. From 1997 until approximately December 2001, the petitioner occupied a single cell by himself.
In December 2001, the petitioner was sent to “lockup” for ninety days. Upon returning from lockup, the petitioner was placed in a single cell, but over a period of approximately six months, four other inmates were moved into and out of the petitioner’s single cell. The petitioner asserts that he had no personal problems with the first three inmates, but that the fourth inmate consistently abused the petitioner, and preyed upon him based on his disability. The petitioner contends that even when he is alone, his cell is difficult to move around in; and when another inmate is housed in his cell, it is extremely difficult, painful, and awkward for him to move about in his cell. It appears that currently the petitioner is not double-bunked.
Upon reviewing the documentary record before him, the special master found no mention of the petitioner’s having received a medical assessment related to the issue of his suitability for single- or double-bunking, or of any objective medical or other criteria being used by MOCC in determining whether the petitioner should be housed in a single cell. The special master requested additional submissions from the parties on this issue.
In response, the petitioner asserted that MOCC has no objective criteria to evaluate an inmate’s physical and/or psychiatric need for a single cell. The petitioner contended that there are no general standards and that all inmates are evaluated, if at all, on an ad hoc and standardless basis.
The respondent asserted that medical professionals at MOCC assess individuals similarly situated to petitioner “based upon their individual medical needs.” According to the special master’s report, the respondent asserts that medical protocols or criteria “would be” based upon an accepted standard of care, and that the medical unit will order special accommodations to inmates “as needed;” and that should the medical unit find a condition which would permit an inmate to reside within the general population but require single housing, it would be the “desire” of corrections to adhere to the clinical judgment of its medical professionals.
The special master requested information concerning whether Mr. Berry was in fact medically assessed for his condition and for his suitability for double bunking. The petitioner asserted that the respondent admitted that the medical unit did not specifically evaluate Mr. Berry in order to determine if he needed a single cell.
The special master inquired of the parties as to whether MOCC’s determination of Mr. Berry’s medical disability was based upon the assessment of medical professionals using any objective criteria, and, if so, whether such a determination might play a role in his being double-bunked in the future. The petitioner asserted that since Mr. Berry was never assessed, the respondent’s determination could not have been made based upon objective criteria. The petitioner contends that it is impossible to determine what criteria the respondent will use to make housing decisions for Mr. Berry in the future.
The respondent states that “consideration” is given to inmates with severe medical disabilities, inmates with mental illness, sexual predators, inmates likely to be exploited, or inmates who have other special needs. The respondent contends that medical assessments and decisions are made by a physician, nurses and physician assistant, and the staff at MOCC does not “second guess” the clinical judgment of the physicians.
II.
Standard of Review
This Court’s standard for issuing a writ of mandamus is well-established: “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). The pertinent factual matters in the instant ease are undisputed and our ruling in this original jurisdiction case is, with the assistance of the special master’s report, de novo.
III.
Discussion
The respondent argues that in our earlier and now-withdrawn opinion in the instant case, this Court improvidenüy applied the standard set forth in West Virginia Code of State Regulations, Title 95-2-8.7 to the Division of Corrections, because of Legislative action relating to that regulation in 1998. As further discussed infra, we agree with this contention.
The respondent also contends that language in this Court’s decision in State ex rel. White v. Parsons, 199 W.Va. 1, 483 S.E.2d 1 (1996) constituted a ruling that all of the regulations in Title 95, Series 1 and 2 (the regulations at Series 1 cover standards for jails, those at Series 2 cover standards for correctional facilities) are generally unenforceable.
The language in question from White v. Parsons is found at the end of the opinion and was used by this Court in granting the requested writ of prohibition in that case:
Regulations 95 C.S.R. 1 and 95 C.S.R. 2 may not be enforced. Appropriate replacement regulations may be proposed and adopted as provided by law.
199 W.Va. at 11, 483 S.E.2d at 11.
However, despite the facial breadth of the foregoing-quoted language (which' is not the language that-was used in the syllabus point of the opinion), White v. Parsons in fact involved only the narrow issue of smoking regulations in jails and correctional facilities.
No reasonable reading of the White v. Parsons opinion supports the conclusion that its ruling was intended to invalidate the entire range of provisions in Title 95, Series 1 and 2 that are unrelated to the issue of smoking in jails and correctional facilities. Consequently, we hold that State ex rel. White v. Parsons, 199 W.Va. 1, 483 S.E.2d 1 (1996) did not invalidate the entire range of regulatory provisions in Title 95, Series 1 and 2.
As previously noted, we agree with the special master’s conclusion that the Legislature’s action in 1998 was intended to remove the statutory authority for West Virginia Code of State Regulations, 95-2-8.7, as it applies to correctional facilities; and assuming the constitutional validity of the Legislature’s action, this regulation no longer operates to prohibit double-bunking in cells designed for single occupancy at correctional facilities.
The petitioner argues, however, that the 1998 amendment to W.Va.Code, 31-20-9 is invalid with respect to West Virginia Code of State Regulations, 95-2-8.7 because the amendment violates the petitioner’s constitutional due process and equal protection rights by creating an arbitrary and capricious distinction between inmates in jails and inmates in correctional facilities with respect to double-bunking that is not rationally related to any legitimate governmental interest. (The record is unclear as to exactly what policy or practice differences exist with respect to double-bunking between jails and correctional facilities.)
When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment.
Syllabus Point 3, Willis v. O’Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967).
In State ex rel Sams v. Kirby, 208 W.Va. 726, 542 S.E.2d 889 (2000), this Court recognized that regional and county jails serve a different purpose, as compared to State correctional facilities. The conditions of shorter-term housing in jails and longer-term housing in correctional facilities make the management of institutional populations in jails and correctional facilities somewhat different matters, and presumptively justify the existence of some degree of difference in policies with respect to double-bunking. Upon our review of the record, we conclude that this separate and distinct purpose for the two types of facilities means that the existence of different legislatively-created policies for double-bunking in jails and correctional facilities is not per se arbitrary and capricious and meets the “rational relationship” test in the instant case.
We therefore conclude and hold that the Legislature acted constitutionally in amending W.Va.Code, 31-20-9 [1998] insofar as that amendment requires that West Virginia Code of State Regulations, Title 95-2-8.7 relating to double-bunking in cells designed for single occupancy does not apply to correctional facilities.
Based on the special master’s extensive discussion as recited supra regarding the current lack of any objective standards or criteria or established procedures at the MOCC to evaluate individuals for possible single-bunking, the special master concluded that objective standards for assessing an individual’s medical or other unsuitability for double-bunking should be developed, and that Mr. Berry should be assessed under those standards, if the MOCC intends to possibly double-bunk him in the future.
The special master further concluded that although the medical assessment of inmates must be based upon an acceptable standard of care, the determination of an inmate’s housing needs should be based upon some objective criteria and in consideration of the inmate’s medical assessment and other pertinent factors, including, but not limited to mobility/ability to ambulate, flexibility, strength, bowel function, etc.; and that the current internal institutional appeal procedure could easily be adopted to handle any complaints of improper/arbitrary evaluation and housing. The special master also recommended that a process of review internal to the division of corrections similar to that in place for other housing grievances filed by inmates be implemented for the single-bunking issue.
Additionally, the special master recommended that the respondent be required to evaluate and assess the petitioner according to said objective criteria in order to determine the suitability of his housing in light of his physical condition and individual circumstances. And in briefing submitted to this Court, respondent’s counsel did not contest the feasibility (or even the reasonableness) of implementing such criteria, standards, and procedures.
The special master’s recommendation is consistent with our discussion in White v. Parsons regarding the issue of standardless discretion, see discussion at note 3 supra. The special master’s recommendation is also consistent with this Court’s recent holding in Weirton Heights VFD v. State Fire Comm’n., 218 W. Va. 668, 628 S.E.2d 98, 2005 WL 3093204, No. 32721 (November 17, 2005) (the absence of duly promulgated standards and criteria for governmental decision-making supports a finding that the decision in question is arbitrary and capricious and an abuse of discretion).
The special master’s report further discusses the issue of criteria and standards for evaluating an inmate for single-bunking by calling attention to the respondent’s Policy Directive 101.00, which states (according to the report):
In addition, all policies and procedures set forth by the Policy Directives, Operational Procedures, Post Orders, and other written documents of the Division of Corrections are solely for the guidance of officers, employees, and agents of the Division of Corrections. These Policy Directives, Operational Procedures, Post Orders, and other written documentation are not intended to and cannot be relied upon to create rights, substantive or procedural, enforceable by any party [in] ... any litigation, grievance, or other matter with the Division of Corrections, or any officer, employee, agent or servant.
The petitioner asserts that the respondent, relying on this language, claims to be free to choose which of his institution’s written policies he will apply and follow and which ones he will not; and that the respondent claims to be unaccountable in any forum to any person, inmate or otherwise, for any failure or refusal to follow the prescription of the institution’s own written policies. The petitioner contends that such a position, if upheld, would impermissibly render any written procedures, policies, or standards relating to double-bunking without practical or legal effect.
Addressing this issue, the special master’s report cites to Williams v. Precision Coil, Inc., 194 W.Va. 52, 65, 459 S.E.2d 329, 342 (1995), where this Court stated:
It is ... a basic notion of due process of law that a governmental agency must abide by its own stated procedures even though it is under no constitutional obligation to provide the procedures in the first place and even though it can change the procedures at any time; so long as the procedures are in place, the agency must follow them.
This Court has consistently held that the basic due process guarantees of the West Virginia Constitution apply to incarcerated individuals. Watson v. Whyte, 162 W.Va. 26, 245 S.E.2d 916 (1978). In Rowe v. Whyte, 167 W.Va. 668, 280 S.E.2d 301 (1981), this Court examined a situation where the parole board allegedly violated a prisoner’s reasonable expectation of release upon parole, by the failure of the parole board to follow the requirements of W.Va.Code, 62-12-13 [1979] concerning release upon parole. This Court determined in Rowe v. Whyte that the West Virginia Board of Probation and Parole abused its discretion within the meaning of W.Va.Code, 62-12-13 [1979] and held that the board acted in an arbitrary and capricious fashion in the manner in which it denied the petitioner release upon parole.
The special master concluded that the foregoing “caveat” or “disclaimer” in Policy Directive 101.00, if applied literally, would conflict with the rule of law stated in Williams v. Precision Coil, Inc., supra, that a governmental agency must abide by its own stated procedures. We agree. If officials are free to ignore the written procedures and standards that they have created, then we have a government of individual persons and their “whims” — and not one of laws.
Based on the foregoing reasoning and in accord with the recommendations of the special master, we hold that the constitutional principles of equal protection and due process of law, W.Va. Const. art. 3, § 10, require that decisions regarding whether an inmate in a State correctional facility should be housed in a single cell must be made pursuant to enforceable standards, policies, and procedures that are based on pertinent medical and other relevant criteria.
IV.
Conclusion
Enforceable standards, policies, and procedures related to single- and double-bunking that are based on pertinent medical and other relevant criteria are hereby ordered to be developed and implemented by the respondent in a timely fashion and to be applied to the petitioner in the event that he is again considered for double-bunking. The writ of mandamus is granted as moulded.
Writ Granted as Moulded.
. We do not find it necessary to address these grounds in this opinion other than to state that we reaffirm our previously-stated conclusion that they are without merit.
. 95-2-8.7 was referenced in this Court's original opinion in the instant case as “95-2-8.6.”
. State ex rel. White v. Parsons did, however, consider the issue of whether the chief executive officer of each jail or correctional facility could validly be granted unguided and unfettered personal discretion to permit or prohibit the use and possession of tobacco in designated areas at the facility under his control. The Court's analysis of that issue in White v. Parsons is relevant to the instant case. Looking back to this Court's decision in State ex rel. Kincaid v. Parsons, 191 W.Va. 608, 609, 447 S.E.2d 543, 544 (1994), where this Court stated that tobacco use regulation "cannot be left to the sole discretion of the administrator ... [,]” this Court in White v. Parsons noted that the decision of whether to permit tobacco use and where tobacco use may occur, must be controlled by written guidelines or other standards for the exercise of suitable discretion — either from the standards commission or by policy directives of the division of corrections — in order to avoid the proscription of Kincaid that such issues cannot be left to the sole discretion or whim of the institution's chief executive officer. White v. Parsons, supra, 199 W.Va. at 11, 483 S.E.2d at 11.
. We also do not think that the concerns that were discussed in SER White v. Parsons are implicated by the 1998 amendment to W.Va.Code, 31-20-9 — because the differing treatment of prisoners in jails and correctional facilities with respect to single- and double-bunking at issue in the instant case is established by legislative action, and not by an administrator's ad hoc decision-making using unguided and standardless discretion.
. The respondent replies to this assertion by stating that “[C]orrections does not write policies with the intent of ignoring them[;],” but the respondent does not challenge or contradict petitioner's characterization of respondent's position disclaiming any legally enforceable effect or significance of the respondent's own written policy directives, etc.
. The respondent's brief suggests that to recognize the principle that public officials must comply with their own written policies, etc., would "give a weapon to inmates.” Such a statement, while understandable in the context of zealous advocacy, is incorrect. Of course it is true that prison officials, who operate with enormous responsibilities and clearly inadequate resources under strongly competing and conflicting pressures, must have large amounts of discretion in controlling many aspects of inmates' lives — for the soundest of reasons. But when written policies and procedures are put into place to define and guide the exercise of that discretion, they must be followed — or changed in accordance with the law. Williams v. Precision Coil, Inc., supra.
' In a system directed at the custody, manage- . ment, and rehabilitation of persons who have broken the rules, what kind of "double standard” message would it send to say that prisoners must follow the rules — but prison officials need not? Prison rules, regulations, policies, and procedures are not violent "weapons” like clubs, tear gas, pepper spray, TASERS, or rifles — that can be legitimately wielded only by prison officials when necessary. Prison rales, regulations, policies, and procedures are nonviolent standards of conduct that must be followed by — and may be called upon by — everyone.
. The petitioner’s case may be technically moot at this time; but the important issues involved in the instant case are readily capable of repetition, while easily escaping review. As such, it is appropriate that this Court address these issues. See State ex rel. Shifflet v. Rudloff, 213 W.Va. 404, 407, 582 S.E.2d 851, 854 (2003). | [
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The Opinion of the Court was delivered PER CURIAM.
Justice STARCHER dissents and reserves the right to file a dissenting opinion.
PER CURIAM.
This appeal was filed by Cindy L. Adkins, Cynthia S. Cooper and Billie J. Gill (hereinafter referred to collectively as the “Appellants”) from an order of the Circuit Court of Kanawha County. The circuit court order reversed a decision of the Board of Review, West Virginia Bureau of Employment Programs (hereinafter referred to as the “Board”). The circuit court reversed the Board’s decision to award unemployment compensation benefits to the Appellants. The circuit court found that the Appellants were disqualified from receiving unemployment benefits because they left their employment without good cause involving fault on the part of their employer, the City of Hinton and the City of Hinton Sanitary Board (hereinafter referred to collectively as the “City”). Here, the Appellants assign error to the circuit court’s treatment of the City’s appeal as a writ of certiorari, allowing new evidence to be introduced, and in the circuit court’s determination that good cause for resigning was not shown. After listening to the arguments of the parties and carefully reviewing the record, we affirm the circuit court’s order.
I.
FACTUAL AND PROCEDURAL HISTORY
On September 5, 2002, a fight broke out at City Hall between a special police officer hired by the City, Melvin Cyphers, and a City Councilman, Bobby Wheeler. Ms. Cooper and Ms. Gill witnessed the fight, but Ms. Adkins did not. Ms. Gill unsuccessfully at tempted to break up the fight. Local police officers were summoned and after a brief scuffle with Mr. Cyphers, they placed him under arrest.
As a result of the fight, the Appellants were told by City Council President Larry Meador to not return to work until the altercation matter was resolved. The Appellants were informed that they would be provided police protection when they returned to work. The Appellants returned to work on September 11, 2002, and police protection was provided. On October 1, 2002, the Appellants sent a jointly signed memo to the City’s Mayor and Council, seeking to learn the status of Mr. Cyphers and their police protection. The memo stated, in part, the following:
The working environment at City Hall continues to be extremely uncomfortable. The City Hall staff, Billie Gill, Cindy Adkins and myself, has found ourselves [sic] in a situation where we are forced to work in a daily atmosphere of fear due to the September 5, 2002 altercation.
We have not been advised as to what is the current status of Mr. Cyphers. Is he still employed by the City of Hinton? Is he our supervisor? Will he attack again? These are just a few of the questions we have. Yet, no one, not the Mayor or members of Council has taken the time to discuss this situation with us, with the exception of Councilor Wheeler. We are just wondering what will happen next.
This situation is not only detrimental to our well-being, but it is not conducive to a work environment. Are we going to remain under police protection? We feel that the situation has gone beyond reason for any person to have to endure.
As employees of the City of Hinton and as tax paying citizens, we feel we have the right to work under a nonviolent work atmosphere; without fear of being harassed or attacked.
The Appellants received no direct response to their memo. Instead, on October 2, 2002, the City’s Mayor sent a memo to the police chief stating:
I am asking to remove the police officers from their City Hall duty as of today. Mr. Cyphers was injured on September 5 and will not return for at least three months. He has not been at City Hall for more than two weeks. Continuing with extra police duty at City Hall is not necessary.
Subsequent to the Mayor’s memo, Ms. Gill and Ms. Cooper resigned on October 8, 2002; Ms. Adkins resigned on October 9, 2002.
Each Appellant filed for unemployment compensation after resigning. In a signed statement, given for unemployment benefits, Ms. Gill gave the following reasons for resigning:
I quit my job on 10-8-02, because of harassment. The Mayor took office in 7-2001 and since then it has been a constant battle to work, she has hired a consultant to straighten out problems in [the] Department and he attacked a person in the office after he was there one hour. We have had police security there and she has changed job duties that we have not been trained for, then she is upset and puts false information in the newspapers.
In a signed statement, given for unemployment benefits, Ms. Cooper gave the following reasons for resigning:
I quit my job on 10/08/02, due to violence at the work place and the constant harassment by the Mayor of Hinton. On 09/05/02, an altercation took place at work where a City Councilman was attacked. .The attack was by an individual that the Mayor had appointed. This individual was arrested for two counts of battery against two police officers and one count of battery against the Councilman. After this incident, President of the Council, Larry Mea-dor assigned a policeman to guard the employees 8 hours a day. On 10/02/02 the Mayor removed this policeman stating that the individual who had [the] altercation had not been in the City Hall for more than two weeks and would not return for at least 3 months. The City employees had been told by the Councilman Jordan that this individual would not return to the City Hall, however, the Mayor stated he would in 3 months. Prior to the altercation the Mayor would harass the City employees by accusing us of doing things that were not true.
In a signed statement, given for unemployment benefits, Ms. Adkins gave the following reasons for resigning:
I quit my job on October 9, 2002, because of violence and harassment in the workplace. The Mayor of Hinton hired a male individual on September 5, 2002. This person initially was called the administrator. Subsequently his title changed 3 more times. He was called a special police officer at last. On his first date of employment within 2 hours he was involved in a physical altercation with a Council member. This incident required the police to be called. This altercation occurred in the same location of my office. He was arrested for the offense and placed in handcuffs. He was later removed from the building and taken to the hospital.
He returned to work the following day, however I did not because I knew he was coming to work. The City employees were told by the Council not to return to work until the matter was resolved. I returned to work on the following Wednesday and he was there also. He stayed about 4 hours and returned the following day for the same. We were instructed by the Council to have a uniformed police officefr] at the office for the entire shift while we were worldng. The police was there even if the man was not. The officer escorted us in and out of the building, to other rooms etc. We feared for our safety. The officer was there approximately a month until the Mayor said we could no longer have him there with us.
There were discrepancies in what the May- or was saying. She told Council that he would not be back but she told the police department that he would not be back for 3 months.
This person was very intimidating. There was an occasion he entered my office and told me that I had to tell him where my husband was. (My husband i[s] the chief of police). When I informed him he was on vacation and had serious family matters to take care of, he pointed his finger and said he would be back to talk to me.
The claims for unemployment compensation were initially heard by a Deputy Commissioner for' the Board. In three separate orders the Deputy Commissioner found that each Appellant “was subjected to violence and harassment in the workplace and the employer failed to correct the situation.” Consequently, the Deputy Commissioner held that for each Appellant “no disqualification can be imposed.”
The City appealed the Deputy Commissioner’s decisions. All three appeals were consolidated for hearing before an administrative law judge. At the conclusion of the hearing, the administrative law judge issued three separate orders affirming the decisions of the Deputy Commissioner. The City appealed the decisions of the administrative law judge to the Board. In three separate orders, the Board adopted the findings of the administrative law judge and affirmed each decision. The City appealed the Board’s orders to the circuit court. The circuit court, by order entered April 27, 2004, reversed the orders of the Board and found the Appellants were disqualified from receiving unemployment compensation benefits. The Appellants thereafter jointly appealed to this Court.
II.
STANDARD OP REVIEW
This Court set out the applicable standard of review syllabus point 3 of Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994), as follows:
The findings of fact of the Board of Review of the [West Virginia Bureau of Employment Programs] are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong. If the question on review is one purely of law, no deference is given and the standard of judicial review by the court is de novo.
Our review of this matter is also guided by our consistent recognition that “[unemployment compensation statutes, being remedial in nature, should be liberally construed to achieve the benign purposes intended to the full extent thereof.” Syl. pt. 6, Davis v. Hix, 140 W.Va. 398, 84 S.E.2d 404 (1954). Moreover, “the burden of persuasion is upon the former employer to demonstrate by the preponderance of the evidence that the claimant’s conduct falls within a disqualifying provision of the unemployment compensation statute.” Peery v. Rutledge, 177 W.Va. 548, 552, 355 S.E.2d 41, 45 (1987). Mindful of these applicable standards, we will now consider the arguments of the parties.
III.
DISCUSSION
A. Treating the City’s Appeal as a Writ of Certiorari and Allowing New Evidence
The circuit court’s order treated the City’s appeal as a writ of certiorari. Therefore, the circuit court conducted an independent review of both the law and the facts as found by the Board. In so doing, the circuit court considered three affidavits that were not submitted to the administrative tribunals.
This Court has recognized that “[o]n cer-tiorari 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.” Syl. pt. 3, Harrison v. Ginsberg, 169 W.Va. 162, 286 S.E.2d 276 (1982). We have also indicated that “[u]pon the hearing of [a] writ of certiorari, the circuit court is authorized to take ■ evidence, independent of that contained in the record of the lower tribunal[.]” Syl. pt. 4, in part, North v. West Virginia Bd. of Regents, 160 W.Va. 248, 233 S.E.2d 411 (1977). However, it has been correctly noted that “[t]he writ of certiorari may only be used when no mechanism for review of a judicial or quasi-judicial proceeding is provided for by law.” Scott v. Stewart, 211 W.Va. 1, 6, 560 S.E.2d 260, 265 (2001) (Davis, J., dissenting). Consequently, the circuit court could treat the appeal as a writ of certiorari only if no other source of law provided for an appeal.
A mechanism for appealing the Board’s decision is provided by law. Pursuant to W. Va.Code § 21A-7-17 (1967) (Repl.Vol. 2002), a decision of the Board is deemed final unless a “party appeals to the circuit court of Kanawha county within thirty days after mailing of notification of the board’s decision.” See also Kisamore v. Rutledge, 166 W.Va. 675, 678, 276 S.E.2d 821, 823 (1981) (“Pursuant to W. Va.Code, 21A-7-17, all unemployment compensation appeals from the Board of Review must be made to the Circuit Court of Kanawha County.”). Insofar as W. Va.Code § 21A-7-17 is the vehicle for appealing a decision of the Board to the circuit court, it was error for the court to treat the appeal as a writ of certiorari.
In addition to improperly characterizing the appeal as a writ of certiorari, the circuit court considered three affidavits that were not presented to the lower tribunals. The Appellants contend that this was error. We agree.
The circuit court was sitting as an appellate court in it’s review of the City’s appeal. In the case of Maxwell v. Maxwell, 67 W.Va. 119, 67 S.E. 379 (1910), this Court addressed the issue of an appellate court’s authority to review evidence not submitted to a lower tribunal:
[WJhat is appellate jurisdiction? Does it include the power to do other than to review upon the record made below? Does it not relate wholly to the consideration of that which has been acted upon by the court from whence comes the appeal? May [an appellate] court do an original thing, act upon something that has never been heard in the court below, and call that the exercise of appellate jurisdiction? We do not think so. It is not in reason so to hold....
... [An appellate] court cannot hear evidence other than that brought up for review, except in the exercise of original jurisdiction.... [This] means that [an appellate court] shall deal only with evidence taken below and brought up for the purpose of a review of an order or decree made upon it below. It means that in using our appellate powers we shall consider no other evidenee[.]
Maxwell, 67 W.Va. at 122-123, 67 S.E. at 380-381. “Accordingly, it is the parties’ duty to make sure that evidence relevant to a judicial determination be placed in the record before the lower [tribunal] so that [it] may properly [be] considered] ... on appeal.” Wesi Virginia Dep’t. of Health and Human Res. ex rel. Wright v. Doris S., 197 W.Va. 489, 494 n. 6, 475 S.E.2d 865, 870 n. 6 (1996). See also Pearson v. Pearson, 200 W.Va. 139, 145 n. 4, 488 S.E.2d 414, 420 n. 4 (1997) (“This Court will not consider evidence which was not in the record before the circuit court.”); Powderidge Unit Owners Assoc. v. Highland Props., Ltd., 196 W.Va. 692, 700, 474 S.E.2d 872, 880 (1996) (“[T]his Court for obvious reasons, will not consider evidence or arguments that were not presented to the circuit court for its consideration!.]”). But see Hall v. Rutledge, 174 W.Va. 816, 819, 329 S.E.2d 890, 892 (1985) (“The Board has the authority under its own rules and regulations to consider additional evidence not presented to the administrative law judge[.]”).
Although we found the circuit court committed error in treating the City’s appeal as a writ of certiorari and considering additional evidence, we do not find that these errors warrant reversal. We have long held that “[t]his Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment.” Syl. pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965). As we will show below, the circuit court’s decision should be affirmed for reasons different than those upon which it relied.
B. The Appellants Are Disqualified from Receiving Unemployment Compensation Benefits
Pursuant to W. Va.Code § 21A-6-3(1) (1990) (Repl.Vol.2002), an individual is disqualified from receiving unemployment compensation benefits if “he or she left his or her most recent work voluntarily without good cause involving fault on the part of the employer!.]” The Appellants contend that they voluntarily resigned from their employment for good cause involving fault on the part of the City. The Board concluded that the City failed to take adequate steps to reassure the Appellants that a safe working environment would be maintained. Further, the Board found that such failure constituted a showing of good cause to resign that involved fault on the part of the City. Specifically, the Board reached the following conclusion as to each Appellant:
Mayor Mathews apparently was unaware of Mr. Cyphers’ reputation of violence, and she is not directly responsible for his outrageous conduct. Nevertheless, the Mayor did nothing to rectify the situation or address the [Appellants’] legitimate safety concerns. To the contrary, she deliberately avoided the issue. She did not attend the emergency meeting scheduled for September 9 and 10th, and would not discuss the matter.
In the memo of October 1, 2002, the [Appellants] explained their fear and apprehension. They specifically requested information regarding Mr. Cyphers’ status, and wondered if he would return to work again. The [Appellants] expressed [their] concern that [they] believed the situation had gone beyond reason for any person to have to endure.
The Mayor testified that she did not discuss this situation, and she believed the office staff were working with a group that wanted her impeached from office. However, the employer should have taken steps to reassure the workers that a safe working environment would be maintained. Failure to adequately address these concerns would constitute fault on the part of the employer which caused the [Appellants] to quit [their] job.
In support of the Board’s decision, Appellants contend “that workplace violence fears may form a legitimate basis for resigning one’s employment[.]” The Appellants attempt to support this proposition by citing several cases from other jurisdictions. However, the cases relied upon by the Appellants are not dispositive. They address the issue of violence, attempted violence or threats against the employee who resigned, not others. See Condo v. Board of Review, Dep’t of Labor and Indus., 158 N.J.Super. 172, 385 A.2d 920, 922 (1978) (“The -record establishes and the Appeals Examiner found that claimant complained to the manager of the threats of violence made by his coworker. The manager held a meeting with the employees to straighten out the problem and told the coworker that ‘he was not allowed to threaten anybody or hurt anybody.’ Notwithstanding this, claimant testified that he was threatened by the coworker as they left the meeting. Again, he was threatened the night that he left work. Under the circumstances, claimant was clearly justified in leaving work.”); Taylor v. Board of Review, 20 Ohio App.3d 297, 485 N.E.2d 827, 829 (1984) (“The record clearly shows that Elias previously beat appellant, and that Elias subsequently threatened [appellant] with another physical confrontation. While the employer assured [appellant] that Elias would not bother him, [appellant] was also told that the employer could do nothing about Elias_ The evidence clearly shows that appellant had reason to fear that Elias would harm him.”); Coleman v. Employment Sec. Dep’t, 25 Wash.App. 405, 607 P.2d 1231, 1232 (1980) (“Among the reasons that the appellant gave for quitting her job was a serious physical threat made against her by a male coworker.... [T]he man became upset over a fancied grievance, stormed into the room where ... the appellant ... was ... and said, ‘you know what I’d like to do, I’d like to punch your cheek right down your throat.’ ... The appellant testified: T just sat there with my mouth shut. I didn’t move. He was too close to me. I was afraid. He’s a strong man and I didn’t feel like losing my front teeth. And he wasn’t in any state where you could have talked him down either. He was in a blind rage.” ’); Hat Six Homes, Inc. v. State Dep’t of Employment, Unemployment Ins. Comm’n, 6 P.3d 1287, 1294 (Wy.2000) (“The evidence demonstrated that the president consistently touched Welch with his hands in an inappropriate manner for a person in a position of power. The record also encompasses episodes of the vice-president throwing staplers, cellular phones, and drive way alarms about the office requiring Welch to duck to avoid being struck.”).
The Board’s findings of fact fail to show that any of the Appellants were physically assaulted or threatened by Mr. Cyphers. Although there was testimony that Ms. Gill placed her hands on Mr. Cyphers when attempting to breakup the fight with the Councilman, there was no evidence that Mr. Cyphers assaulted or attempted to as sault her or threatened her safety with physical violence. Further, Ms. Cooper merely observed the fight from a distance while Ms. Adkins was not even present in the building. There was no evidence that Mr. Cyphers physically assaulted or threatened the Appellants during the few times that he returned to City Hall after his fight with Mr. Wheeler.
The Board found that the evidence revealed that, with regard to Mr. Cyphers’ violent outburst, the City “did nothing to rectify the situation or address the [Appellants’] legitimate safety concerns.” The evidence presented at the hearing does not support such a finding.
After Mr. Cyphers was removed by police officers, the City permitted the Appellants to remain at home for three days until safety concerns could be addressed. The City ultimately decided to have a police officer remain at City Hall to protect the Appellants and others from any potential harm by Mr. Cyphers. The police officer remained at City Hall for approximately one month. Moreover, a subsequent memo by the Mayor clearly stated that the police officer was going to be removed because Mr. Cyphers would not be returning to work for at least three months.
In view of the foregoing, we believe the record adequately demonstrated that the City took reasonable measures to assure the Appellants’ safety in light of Mr. Cyphers’ behavior. Consequently, the Appellants’ decision to resign was without good cause involving fault on the part of the City.
IV.
CONCLUSION
The circuit court’s order is affirmed.
Affirmed.
. The Board filed a brief supporting reversal of the circuit court’s order.
. The City of Hinton filed a brief on behalf of itself and the City of Hinton Sanitary Board.
. Ms. Cooper and Ms. Gill were employed by the City of Hinton. Ms. Adkins was employed by the City of Hinton Sanitary Board.
. Mr. Cyphers was a retired State Trooper. The City hired Mr. Cyphers to resolve problems in the police department. Mr. Cyphers was permitted to carry a handgun. He had a handgun on at the time of the altercation with Mr. Wheeler.
. It is not clear as to who started the fight. However, the fight appears to have been related to conduct by Mr. Cyphers in questioning City employees, including the Appellants, concerning the whereabouts of the police chief. It appears that the police chief, who was the husband of Ms. Adkins, was out of the office visiting his terminally ill brother.
. Although Ms. Adkins worked at City hall, she was not in the building at the time of the fight.
. Ms. Gill grabbed Mr. Cyphers in an effort to stop the fight. Mr. Cyphers yelled an obscenity at her and told her that she was under arrest.
. At the time of the proceedings before the administrative law judge, criminal charges were pending against Mr. Cyphers for his role in the fight. The charges appear to have eventually been dropped.
. Insofar as the Board adopted the findings of the administrative law judge, we will refer to them as the Board’s findings,
. The affidavits were submitted by Mr. Cyphers, the Mayor and a Councilman.
. The circuit court applied the wrong standard of review to the Board’s findings of fact. The circuit court conducted a de novo review of the facts. The standard of review of findings of fact by the Board is found in W. Va.Code § 21A-7-21 (1943) (Repl.Vol.2002). That statute states that "[i]n a judicial proceeding to review a decision of the board [in an unemployment compensation case], the findings of fact of the board shall have like weight to that accorded to the findings of fact of a trial chancellor or a judge in equity procedure.” This Court addressed the statutory standard of review in syllabus point 2 of Copen v. Hix, 130 W.Va. 343, 43 S.E.2d 382 (1947), as follows:
Under [W. Va.Code § 21A-7-21], the findings of fact by the Board of Review ... on appeal are entitled to the same weight as those of a trial chancellor and therefore are to be set aside only when plainly wrong.
See also Belt v. Rutledge, 175 W.Va. 28, 30, 330 S.E.2d 837, 839 (1985) ("The circuit court’s authority to review a decision of the Board of Review was stated in Syllabus point 1 of Kisamore v. Rutledge, 166 W.Va. 675, 276 S.E.2d 821 (1981): ‘Findings of fact by the Board of Review ..., in an unemployment compensation case, should not be set aside unless such findings are plainly wrong; however, the plainly wrong doctrine does not apply to conclusions of law by the Board of Review.’ ”).
Under the “plainly wrong” standard of review the circuit court was not permitted to conduct a de novo review of the findings of fact. However, because of our disposition of this case, we do not find this issue to be reversible error.
. W. Va.Code § 21A-6-3 was amended by the West Virginia Legislature in 2005. The language herein quoted was not changed in those amendments.
. The Appellants also cited to two other cases that are distinguishable. See Stark v. Ross, 66 A.D.2d 942, 411 N.Y.S.2d 433, 435 (1978) (remanding the case to the administrative board to determine whether an unsafe working condition existed); In re Gardiner, 272 A.D.2d 709, 707 N.Y.S.2d 533, 534 (2000) (claimant’s fear for her life as a result of a conflict she had with coworker did not establish good cause for voluntarily leaving her employment).
. There was also evidence by Ms. Adkins that when she was a teenager, 17 or 18, she met Mr. Cyphers while working at a Pizza Hut and that he "sexually harassed her.” To the extent that this assertion may be true, there was no evidence that Mr. Cyphers "sexually harassed” Ms. Adkins when he was employed by the City.
. In fact, the Board found that the "at least three months” language contained in the May- or’s memo was slightly inaccurate. Specifically, the Board found:
The [Appellants] interpreted this memo to indicate that Mr. Cyphers would eventually return to work. However, the Mayor was trying to convey the message that Cyphers, a temporary employee, would not be able to return to work within his 3-month assignment. The [Appellants were] not aware that Mr. Cyphers was hired as a temporary employee.
In other words, the evidence revealed that the City did not remove the police officer from City Hall until it was learned that Mr. Cyphers was no longer returning to City Hall. | [
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Justice DAVIS delivered the Opinion of the Court.
Justice BENJAMIN, deeming himself disqualified, did not participate in the decision of this case.
Judge ARTHUR M. RECHT sitting by temporary assignment.
DAVIS, Justice.
This appeal arises from a declaratory judgment action involving a certain trust that was established by Dr. Albert M. Price, deceased. In this appeal, distant relatives of Dr. Price, Kenneth N. Dickens and Richard R. Lambert, Jr. (hereinafter referred to as “Dickens and Lambert”), defendants below, and appellants herein, challenge various decisions made by the Circuit Court of Wood County. Most significantly, Dickens and Lambert challenge the circuit court’s decisions that venue was proper in Wood County, and that the trustee of Dr. Price’s trust had acted properly in removing a family preference from the trust. After considering the parties’ briefs and oral arguments, the record submitted on appeal, and the pertinent authorities, we conclude that, because the record contains evidence supporting venue in Wood County, and no evidence to the contrary, the circuit court’s ruling in this respect will be affirmed. Furthermore, we find that the trustee properly removed the family preference from the trust.
I.
FACTUAL AND PROCEDURAL HISTORY
Dr. Albert M. Price was an optometrist who practiced for many years in Boone County, West Virginia. In 1957, Dr. Price, who was never married and had no children, established a revocable trust to first benefit his sisters, and to later provide college scholarships. According to the 1957 Trust document, the income generated by the Trust was to be distributed to Dr. Price’s sisters during their lifetimes and, upon the death of the last surviving sister, the Trust was to be held and administered for charitable and educational purposes. Specifically, section JV(2) of the Trust expressly directed that
[i]f there are no sisters surviving Grant- or or upon the later death of the last surviving sister of Grantor, Trustee shall hold and administer the Trust Estate as a charitable trust for exclusively charitable and educational purposes. Trustee shall use and distribute the net income from the Trust Estate within its sole discretion for scholarship purposes, and it is Grantor’s wish that the Trustee will grant scholarships to or otherwise aid needy and worthy boys and girls who wish to attend Wilson Junior College at Swannanoa, North Carolina (formerly known as Asheville Farm School). Grantor hopes that students residing in West Virginia will be given preference ....
The Trust document further stated, at section IV(4), that “[t]his trust shall be a perpetual charitable trust....” Kanawha Banking and Trust (hereinafter referred to as “KB & T”) was named as trustee.
In January, 1969, Dr. Price and KB & T entered a “SUPPLEMENTAL AGREEMENT OF TRUST,” wherein certain provisions of the 1957 Trust were amended. Relevant to the instant action, Section IV(2) of the Trust was amended to state, in pertinent part:
If there are no sisters surviving Grantor or upon the later death of the last surviving sister of Grantor, the Trustee shall use and distribute the net income in the form of annual scholarships to worthy boys and girls who are keenly interested in and capable of taking advantage of an opportunity for a college education. Said scholarships shall be awarded under reasonable rules and regulations to be prescribed by the Trustee, except that first priority and consideration shall be given to qualified blood relatives of the Grantor, regardless of the place of their residence, second consideration shall be given to qualified boys and girls residing in Boone County, West Virginia, and third consideration shall be given to qualified boys and girls residing in the other fifty-four counties of West Virginia. ...
Dr. Price died in November, 1976. Prior to his death, Dr. Price had executed a pour-over will whereby his residuary estate, which was comprised of the bulk of his estate, would pass into the 1957 Trust, as amended in 1969 (hereinafter referred to as the 1957 Amended Trust). KB & T was named executor of Dr. Price’s estate. Due to the Tax Reform Act of 1969, the portion of Dr. Price’s estate that was designated to pour-over into the 1957 Amended Trust would not qualify for the federal estate tax charitable deduction as the Trust no longer qualified as a charitable trust, in part, because of the provision giving preference to Dr. Price’s relatives in the award of scholarships. Accordingly, in December, 1977, KB & T, as executor of Dr. Price’s estate, filed a declaratory judgment action in the Circuit Court of Boone County seeking to determine whether Dr. Price’s will could be reformed so his estate would qualify for the federal estate tax charitable deduction. In it’s complaint, KB & T proposed that the tax results sought by Dr. Price could be obtained without sacrificing his other testamentary purposes by creating a second trust “similar in all respects to the 1957 [Amended] trust except for those changes which are needed to qualify the second trust as a charitable unitrust under applicable provisions of the Internal Revenue Code.” The second Trust would differ from the 1957 Amended Trust in that it would not contain a preference for Dr. Price’s blood relatives. KB & T explained in it’s complaint, however, that Dr. Price’s blood relatives could be favored in the awarding of scholarships from the 1957 [Amended] Trust. The Circuit Court of Boone County granted the relief sought by KB & T. In addition to approving the creation of a second trust, the Circuit Court of Boone County commented:
Under the terms of the 1957 [Amended] trust, the trustee is directed to make a preference in the awarding of scholarships to the blood relatives of Albert M. Price. Under the terms of the 1969 Tax Reform Act, a settlor of a qualified charitable uni-trust cannot provide for the awarding of preferential treatment to his descendants. Accordingly, plaintiffs proposed second trust does not provide for a preference for the blood relatives of Albert M. Price but rather requires that they compete equally with all other candidates for the scholarships. As was stated earlier, the 1957 [Amended] trust will not be changed if the plaintiffs prayer for relief is granted, and accordingly, the trustee of the 1957 trust is free to make such preferential awarding of scholarships from the 1957 trust to the blood relatives of Albert M. Price as the trustee shall deem appropriate.
In 1986, United Bank, Inc., plaintiff below, Appellee (hereinafter referred to as “United Bank”), acquired KB & T and became trustee of both the 1957 Amended Trust and the second Trust (hereinafter referred to as “the 1978 Trust”). Thereafter, in August 1988, Dr. Price’s last surviving sister died and the scholarship phases of the 1957 Amended Trust and the 1978 Trust began. The 1957 Amended Trust did not qualify as a charitable trust due to the preference for blood relatives contained therein. Accordingly, United Bank cleansed the 1957 Amended Trust pursuant to W. Va.Code § 35-2-9 (1971) (Repl.Vol.2005), thereby removing the preference for blood relatives by deeming it a charitable trust and altering it accordingly. Because the 1957 Amended Trust, as cleansed in 1988, was now substantially the same as the 1978 Trust, United Bank combined the corpus of the two trusts (the combined trust will hereinafter be referred to as “the Price Trust”).
In 2003, distant relatives of Dr. Price questioned United Bank regarding its administration of the 1957 Amended Trust, particularly its removal of the preference for blood relatives of Dr. Price in the award of scholarships. Thereafter, in July 2003, United Bank filed a Petition and an Amended Petition for Declaratory Judgment in the Circuit Court of Wood County, seeking a declaration that it had properly construed and administered the 1957 Amended Trust. United Bank named as defendants in the' declaratory judgment action various relatives of Dr. Price, including appellants Dickens and Lambert. United Bank filed the action in Wood County based upon its claim that it administers the Trust from its Wood County headquarters, and that it also maintains the trust res from that location.
In September, 2003, Dickens and Lambert, along with other of the respondents to the Wood Count action, filed a motion to dismiss on grounds of improper venue in Wood County. Dickens and Lambert then filed their own complaint in the Circuit Court of Boone County, in October 2003, on behalf of themselves and those similarly situated. The complaint alleged various torts, including claims for breach of fiduciary duty, conversion, mismanagement, contempt, and a request for removal of trustee, with regard to United Bank’s administration of the 1957 Amended Trust and its removal of the scholarship preference for blood relatives.
A hearing on the motion to dismiss the Wood County action was held on October 20, 2003. Following,the hearing, by order entered December 2, 2003, the Circuit Court of Wood County denied the motion, finding venue in Wood County was proper under both W. Va.Code § 35-2-2 (1931) (Repl.Vol.2005) and W. Va.Code § 56-1-1 (2003) (Repl.Vol. 2005). The Circuit Court of Wood County also ordered, pursuant to Rule 42(b) of the West Virginia Rules of Civil Procedure, that, the action filed by Dickens and Lambert in the Circuit Court of Boone County be transferred to Wood County, and ultimately ordered that the Boone County action be consolidated with United Bank’s declaratory judgment action and treated as a counterclaim.
Finally, in February 2004, United Bank filed a motion seeking summary judgment with respect to its declaratory judgment action, and further seeking dismissal of Dickens and Lambert’s counter claim. By order entered on July 21, 2004, the Circuit Court of Wood County granted summary judgment in favor of United Bank, and dismissed Dickens and Lambert’s counter-claim. In granting summary judgment to United Bank, the Circuit Court of Wood County commented:
This Court agrees with Petitioner [United Bank] that the term “blood relatives” is not ambiguous, but instead has an established legal meaning, which is restricted to those individuals who would have taken under the statutes of dissent and distribution in effect at the time of the grantor’s death. This construction is required, as a matter of law. First, legal terms should be given their legal meanings, particularly legal terms in a document prepared by an attorney, as in this case. Second, if the term “blood relatives” is not given its legal meaning, the conveyance would be void from its very inception as violating the rule against perpetuities. Third, if the term “blood relatives” is not given its legal meaning, the conveyance at issue would be void for indefiniteness.
With respect to its dismissal of Dickens and Lambert’s counter-claim against United Bank, the Circuit Court expressly found that Dr. Price’s Trust, as cleansed by United Bank in 1988, is a public charitable trust. The Circuit Court then concluded that
Regardless of whether Dickens and Lambert could successfully make allega tions concerning the administration of the trust, Dickens and Lambert (and any other person claiming to be a potential beneficiary of the Price trust) lack legal standing to assert a cause of action against the trustee of a charitable trust based upon such theories as breach of fiduciary duty, conversion, misrepresentation, contempt, or removal of trustee. First, they do not meet this Court’s definition of “blood relative” for purposes of the Price trust’s stated scholarship preference. Second, when a trust is a charitable trust, as the Price trust is, the right to monitor its proper enforcement is reserved at common law to a public official, such as the state attorney general.
Dickens and Lambert now appeal two orders from the Circuit Court of Wood County. First, they appeal the December 2, 2003 order denying their motion to dismiss for improper venue. In addition, they appeal the July 21, 2004, order granting summary judgment in favor of United Bank and dismissing their counter-claim against United Bank.
II.
STANDARD OF REVIEW
Dickens and Lambert herein appeal two separate orders rendered below. First, they appeal the circuit court’s order denying them motion to dismiss for improper venue. Heretofore, this Court has not established the proper standard for our review of such a ruling. It has been recognized, however, that “[rjeview of a trial court’s decision on a motion to dismiss for improper venue is for abuse of discretion.” Franklin D. Cleckley, Robin J. Davis & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(3)[2], at 281 (2002) (footnote omitted) (citing Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996); Milwaukee Concrete Studios, Ltd. v. Fjeld Mfg. Co., 8 F.3d 441 (7th Cir.1993); In re Cuyahoga Equip. Corp., 980 F.2d 110 (2d Cir.1992); Howell v. Tanner, 650 F.2d 610 (5th Cir.1981)). See also Palmer v. Braun 376 F.3d 1254, 1257 (11th Cir.2004) (“We review for abuse of discretion a district court’s denial of a motion to transfer or dismiss for lack of venue.” (citation omitted)); In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir.2004) (“We review all questions concerning venue under the abuse of discretion standard.” (citation omitted)); Waeltz v. Delta Pilots Retirement Plan, 301 F.3d 804, 806 (7th Cir.2002) (“This court ordinarily defers to a district court’s venue determinations unless the district court has abused its discretion.” (citation omitted)). Accordingly,. we now expressly hold that this Court’s review of a trial court’s decision on a motion to dismiss for improper venue is for abuse of discretion.
Dickens and Lambert also challenge the circuit comb’s order granting summary judgment in favor of United Bank. Our standards for summary judgment are well established. “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). Accordingly, in undertaking our plenary review, we apply the same standard for granting summary judgment as a circuit court would. That standard holds 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 Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).
Syl. pt. 2, Painter. Finally, we note that “[t]he circuit court’s function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial.” Syl. pt. 3, Painter. Mindful of these principles, we address the issues raised on appeal.
III.
DISCUSSION
A. Venue
As a threshold issue, we address Dickens and Lambert’s claim that the circuit court erred in denying their motion to dismiss for improper venue in Wood County. Dickens and Lambert assert that the evidence did not support a finding that venue was proper in Wood County, we disagree.
In addressing a question of venue in a civil action, we begin with W. Va.Code § 56-1-1, West Virginia’s general venue stab ute. Pertinent to the instant action, W. Va. Code § 56-1-1 states, in part,
(a) Any civil action or other proceeding, except where it is otherwise specially provided, may hereafter be brought in the circuit court of any county:
(1) Wherein any of the defendants may reside or the cause of action arose, except that an action of ejectment or unlawful detainer must be brought in the county wherein the land sought to be recovered, or some part thereof, is; -
(Emphasis added). Subsection (a) of W. Va. Code § 56-1-1 contains a plainly worded exception to the general venue provisions “where it is otherwise specially provided.” “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). The circuit court of Wood County found that venue in this matter was “otherwise specially provided” in W. Va.Code § 35-2-2. W. Va.Code § 35-2-2 states in relevant part that
whenever the objects of any such trust shall be undefined, or be so uncertain as not to admit of specific enforcement, or literal execution, ... a suit in chancery may be instituted, by any party interested, in the circuit court of the county where the trust subject, or any part thereof is, ...
A primaiy issue in the litigation before the Circuit Court of Wood County was the meaning of the term “blood relatives” as that term is used to identify those potential beneficiaries of Dr. Price’s 1957 Amended Trust who are to receive a preference. Accordingly, we find that this is an action under W. Va.Code § 35-2-2 and, therefore, venue is proper “in the circuit court of the county where the trust subject, or any part thereof is.” W. Va.Code § 35-2-2.
Dickens and Lambert complain that the circuit court merely accepted United Bank’s assertion, without supporting evidence, that the trust subject is located in Wood County. On the contrary, however, following the hearing on Dickens and Lambert’s motion to dismiss for improper venue, but before the circuit court rendered it’s order on this issue, United Bank filed an affidavit by Jane Sargent, Vice President and Trust Division Manager of United Bank. Ms. Sargent’s affidavit, which is included in the record submitted on appeal, stated that the Price Trust “is assigned to and administered by Tracy Wharton, Assistant Vice President and Trust Officer at United Bank’s Parkersburg, Wood County, West Virginia location; and ... the assets of the Albert M. Price Trust are located at United Bank’s Parkersburg, Wood County, West Virginia facility.” Thus, there is evidence in the record, which was before the circuit court prior to its rendering of a decision as to venue, establishing that the assets of the Trust are located in Wood County. Furthermore, we note that Dickens and Lambert provided no evidence on the record to dispute this fact. “Courts of record can speak only by their records, and what does not so appear does not exist in law.” Syl. pt. 3, Hudgins v. Crowder & Freeman, Inc., 156 W.Va. 111, 191 S.E.2d 443 (1972). Accord Syl. pt. 4, State ex rel. Mynes v. Kessel, 152 W.Va. 37, 158 S.E.2d 896 (1968). See also Syl. pt. 5, in part, Parkway Fuel Serv., Inc. v. Pauley, 159 W.Va. 216, 220 S.E.2d 439 (1975) (“A court of record speaks only through its records!.]”). In this case, there is simply nothing in the record upon which we can conclude that the circuit court’s denial of Dickens and Lambert’s motion to dismiss was improper.
B. Summary Judgment
Dickens and Lambert contend that the circuit court erred in granting summary judgment in favor of United Bank. They argue that this case turns on the interpretation of the term “blood relatives.” The Circuit Court of Wood County gave three grounds for ruling in favor of United Bank on this issue and granting summary judgment in United Bank’s favor in the declarato ry judgment action: (1) “legal terms should be given their legal meanings, particularly legal terms in a document prepared by an attorney, as in this case”; (2) “if the term “blood relatives’ is not given its legal meaning, the conveyance would be void from its very inception as violating the rule against perpetuities”; and (3) “if the term ‘blood relatives’ is not given its legal meaning, the conveyance at issue would be void for indefiniteness.”
If the circuit court is correct that affording the term “blood relatives” its popular meaning would cause the conveyance to be void as violating the rule against perpetuities, then an analysis of the meaning that should be given the term would, for the purposes of this ease, be merely an academic exercise that would not result in Dickens and Lambert obtaining the relief they seek. Dickens and Lambert argue, however, that according to the case of Gallaher v. Gallaher, 106 W.Va. 588, 146 S.E. 623 (1929), Dr. Price’s trust may contain a preference for family members without violating the rule against perpetuities. We agree.
The Gallaher Court was asked to determine the validity of a bequest for a scholarship for “educating young men in Lafayette College at Easton, Pennsylvania.” 106 W.Va. at 589, 146 S.E. at 623. The trust was to generally benefit disadvantaged young men from Marshall and Ohio Counties, West Virginia, and, and Belmont County, Ohio, but further provided that sons and descendants of certain identified members of the grantor’s family “shall have first opportunity to receive such education.” Id. It was argued before the Court that the trust was a mixed trust, with that portion benefitting sons and descendants of certain of the grantor’s relatives creating a private trust, while that portion benefitting disadvantaged young men from Marshall and Ohio Counties, West Virginia, and Belmont County, Ohio, created a public trust. It was further argued that the two trusts were inseparable; and that because the private portion of the trust violated the rule against perpetuities, the entire trust was unenforceable. This Court disagreed. It looked to “Section 3, Chapter 57 of the Code, as amended by Chapter 46, Acts of 1923.” Gallaher, 106 W.Va. at 590, 146 S.E. at 624. The Gallaher Court observed that the statute provided, in relevant part, that:
“Where any conveyance of land has been or shall be made to trustees for the use of any college, academy, high school, or other seminary of learning, or for the use of any society of free masons, odd fellows, sons of temperance or good templars, or for any orphans asylum, children’s home, or other benevolent association or purpose; or if, without the intervention of trustees, such conveyance has been made since the thirty-first day of March, one thousand eight hundred and forty-eight, or shall be hereafter made for such use or purpose, the same shall be valid, and the land shall be held for such use or purpose only.”
106 W.Va. at 590, 146 S.E. at 624. Considering this statute, along with various cases from other jurisdictions upholding educational trusts that included familial preferences, the Gallaher Court held:
A devise or bequest for the founding of scholarships at Lafayette College, Easton, Pennsylvania, in favor of young men of poor parents residing in Marshall and Ohio [C]ounties, West Virginia, and Belmont [C]ounty, Ohio, qualified by a provision in the will giving preference of admission to sons and descendants of certain relatives of the testator, is a valid charitable or benevolent trust, under chapter 57, Code.
Syl., 106 W.Va. 588, 146 S.E. 623. The statute relied upon in Gallaher has been modified only slightly, and is now found at W. Va.Code § 35-2-1 (1923) (Repl.Vol.2005), which states:
When any conveyance, dedication or devise of land, or transfer, gift or bequest of personal property, has been made or shall be made to trustees for the use of any university, college, academy, high school, seminary, or other institution of learning; or for the use of any benevolent, fraternal, patriotic, literary, temperance, or charitable society, order, lodge or association, or labor union or similar association or brotherhood of craftsmen or employees, or any local branch thereof, or for the use of any orphan asylum, children’s home, house of refuge, hospital, or home or asylum for the aged or incurables, or the afflicted in mind or body, or for the use of any other benevolent or charitable institution, association or purpose; or if, without the intervention of trustees, such conveyance, dedication or devise of land, or transfer, gift or bequest of personal property, has been made and has not been declared void in any suit or action, or has not been treated and acted upon as void under the law heretofore existing, or shall be hereafter made for any such use or purpose, the same shall be valid and such land or property, as well as any subsequently acquired by purchase or otherwise in furtherance of such use or purpose, shall be held for such use or purpose only.
Following the analysis in Gallaher and, applying W. Va.Code § 35-2-1, we now hold that a trust that is created to provide educational scholarships to an indefinite class of beneficiaries, but which also contains a preference for certain family members of the grantor, is a valid charitable trust pursuant to W. Va.Code § 35-2-1 (1923) (Repl.Vol. 2005), and is exempt from the application of the rule against perpetuities. Accordingly, notwithstanding the inclusion of a family preference, Dr. Price’s 1957 Amended Trust is a charitable trust that is exempt from the Rule Against Perpetuities.
This does not end our analysis, however. The fundamental issue in this case is whether United Bank acted properly when it altered Dr. Price’s 1957 Amended Trust to conform with the provisions of W. Va.Code § 35-2-9(a) (1971) (Repl.Vol.2005). Because we have determined that Dr. Price’s 1957 Amended Trust is a charitable trust, we now find ourselves squarely within that statute, which states:
(a) Distribution of income by trust which is deemed a private foundation; prohibitions as to such private foundation.— Every trust, receiving a gift, grant, devise or bequest, which is deemed to be a private foundation as defined in section 509 of the Internal Revenue Code of 1954, tmless its governing instrument expressly includes specific provisions to the contrary, shall distribute its income for each taxable year at such time and in such manner as not to subject such trust to tax under section 4942 of the Internal Revenue Code, and such trust shall not engage in any act of self-dealing as defined in section 4941(d) of the Internal Revenue Code, retain any excess business holdings as defined in section 4943(e) of the Internal Revenue Code, make any investments in such manner as to subject the trust to tax under section 4944 of the Internal Revenue Code, or make any taxable expenditures as defined in section 1915(d) of the Internal Revenue C.ode.
W. Va.Code § 35-2-9(a) (Emphasis added). Under the plain language of the foregoing statute, Dr. Price’s 1957 Amended Trust must be administered in accordance with certain provisions of the Internal Revenue Code, unless the trust’s “governing instrument expressly includes specific provisions” stating that it is not a private foundation. Id. Such is not the case here. Dr. Price’s 1957 Amended Trust expressly states, at paragraph IV(4):
This Trust shall be a perpetual charitable trust, but in the event it becomes necessary for any reason to terminate the trust, the assets shall at the direction of the Circuit Court of Kanawha County, West Virginia, be applied towards carrying out the purposes of the trust and for the use of such charities qualifying for tax exemption under the Internal Revenue laws of the Untied States.
The foregoing statement clearly reflects that Dr. Price intended his trust to exist for charitable purposes and desired to avoid unfavorable tax consequences, and there is nothing in the record before this Court to indicate otherwise. Because Dr. Price’s 1957 Amended Trust does not contain provisions stating it is not to be managed as a private foundation, we look to the remaining provisions W. Va. Code § 35-2-9(a) to determine if United Bank acted properly in removing the preference for certain family members. We find that they did.
Pertinent to this inquiry is the directive in W. Va.Code § 35-2-9(a), stating that the trust “shall not ... make any taxable expenditures as defined in section 4945(d) of the Internal Revenue Code.” Because this directive utilizes the term “shall,” it is mandatory. “ ‘It 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.’” Retail Designs, Inc. v. West Virginia Div. of Highways, 213 W.Va. 494, 500, 583 S.E.2d 449, 455 (2003) (quoting Syl. pt. 1, Nelson v. West Virginia Pub. Employees Ins. Bd., 171 W.Va. 445, 300 S.E.2d 86 (1982)). Accordingly, we look next to section 4945(d) of the Internal Revenue Code, to ascertain what “taxable expenditures” are prohibited. Internal Revenue Code § 4945(d) states in relevant part that
For purposes of this section, the term “taxable expenditure” means any amount paid or incurred by a private foundation -
(3) as a grant to an individual for travel, study, or other similar1 purposes by such individual, unless such grant satisfies the requirements of subsection (g),
26 U.S.C. § 4945(d) (1988) (2000 ed.) (emphasis added). In turn, subsection (g) of section 4945 states, in relevant part, that “[s]ubsection (d)(3) shall not apply to an individual grant awarded on an objective and non-discriminatory basis pursuant to a procedure approved in advance by the Secretary....” 26 U.S.C. § 4845(g). Under the foregoing statutory scheme, the question to be answered is whether the family member preference contained in Dr. Price’s 1957 Amended Trust violates the prohibition against taxable expenditures as defined above. This question has been resolved.
The IRS has issued a revenue ruling holding that “[s]cholarship grants awarded under a procedure giving preference to family members or relatives of the trust’s grantor are not awarded on an objective and nondiscriminatory basis as required by section 4945(g) of the [Internal Revenue] Code.” Rev. Rul. 85-175, 1985-2 C.B. 276, 1985-43 I.R.B. 12, 1985 WL 287239 (1985). Because such an expenditure would not satisfy the requirements of section 4945(g), it would be a “taxable expenditure” pursuant to section 4945(d) and would, thus, violate W. Va.Code § 35-2-9. Accordingly, any expenditure from Dr. Price’s 1957 Amended Trust in the form of a scholarship giving a preference to one of his “blood relatives,” regardless of how that term is defined, would be a “taxable expenditure” violative of W. Va.Code § 35-2-9. For this reason, we find that, not only was it proper and in accordance with Dr. Price’s wishes that the tax offending family preference be removed from his 1957 Amended Trust, it was statutorily required. As there are no questions of fact related to this dispositive issue, the circuit court’s grant of summary judgment in favor of United Bank was appropriate.
IV.
CONCLUSION
For the reasons explained in the body of this opinion, the orders of the Circuit Court of Wood County dated December 2, 2003, denying Dickens and Lambert’s motion to dismiss for improper venue, and July 21, 2004, granting summary judgment in favor of United Bank and dismissing their complaint against United Bank, are affirmed.
Affirmed.
. While numerous members of Dr. Price's extended family were among the parties to the action below, Dickens and Lambert are the only appellants.
. The 1957 Amended Trust and Dr. Price’s will were executed prior to the effective date of the Tax Reform Act of 1969.
. In it’s final order in the 1977 declaratory judgment action, the Circuit Court of Boone County acknowledge that
[a]t the time Albert Price executed these trust instruments, the remainder interest in the trust being dedicated to educational purposes would have been deductible for federal estate tax purposes as a charitable bequest.... Because of massive changes in federal tax law occasioned by the 1969 Tax Reform Act, a remainder following a life estate is no longer a qualified charitable contribution deductible for federal estate tax purposes. Int. Rev. Code 2055(c).
. There are a few other tax related differences between the two trusts, but those differences are not relevant to this appeal.
. At the time United Bank acquired KB & T it was known as United National Bank.
. Accord, Syl. pt. 4, Charter Communications VI, PLLC v. Community Antenna Serv., Inc., 211 W.Va. 71, 561 S.E.2d 793 (2002); Syl. pt 4, Syncor Int’l Corp. v. Palmer, 208 W.Va. 658, 542 S.E.2d 479 (2001).
. In 1992, West Virginia adopted the Uniform Statutory Rule Against Perpetuities. See W. Va. Code § 36-1 A-l etseq.
. "One of the essential elements of a charitable or benevolent trust is that it be certain in its object and as to the class of persons, but indefinite as to the individuals to be benefitted.” Syl. pt. 1, Mercantile Banking & Trust Co. v. Showacre, 102 W.Va. 260, 135 S.E. 9 (1926).
. It is important to note, however, that this holding clearly has no impact on the question of whether a trust qualifies for tax exempt status under the Internal Revenue Code.
. See, e.g., In re Teubert's Estate, 171 W.Va. 226, 234 n. 4, 298 S.E.2d 456, 464 n. 4 (1982) ("[T]he charitable portion [of the trust] is exempt from the rule [against perpetuities].” citing Mercantile Banking & Trust Co. v. Showacre, 102 W.Va. 260, 135 S.E. 9 (1926)). See also 15 Am.Jur.2d Chanties § 19, at 26 (2000) ("A gift for charitable purposes of permanent interest and benefit to the public may be perpetual in its duration and is not within the rule against perpetuities.”); Restatement (Second) of Trusts § 365 (1959) (“A charitable trust is not invalid although by the terms of the trust it is to continue for an indefinite or an unlimited period.”). Furthermore, under the West Virginia Uniform Statutory Rule Against Perpetuities, the statutory rule does not apply to "[a] property interest, power of appointment, or arrangement that was not subject to the common-law rule against perpetuities.” W. Va.Code § 36-1A-4(7) (1992) (Repl.Vol.2005).
.Pursuant to its express terms, this statute applies to Dr. Price's 1957 Amended Trust for the taxable years beginning on and after January 1, 1972. W. Va.Code § 35-2-9(a) ("This subsection shall apply to ... any charitable trust established before January one, one thousand nine hundred seventy, only for its taxable years beginning on and after January one, one thousand nine hundred seventy-two.”).
. "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). Accord, Syl. pt. 4, Charter Communications VI, PLLC v. Community Antenna Serv., Inc., 211 W.Va. 71, 561 S.E.2d 793 (2002); Syl. pt 4, Syncor Int’l Corp. v. Palmer, 208 W.Va. 658, 542 S.E.2d 479 (2001).
. Stated in its simplest terms, a "private foundation" is "[a] foundation that is supported privately rather than publicly, and that exists to advance charitable or educational projects. A private foundation is generally exempt from taxation. IRC (26 USCA) § 509." Blacks Law Dictionary 666 (17th ed 1999).
. Although we have approved the removal of the family preference from Dr. Price’s 1957 Amended Trust, we note that there is absolutely nothing prohibiting his family members from applying for scholarships under the trust.
. "In Williams v. Precision Coil, Inc., [194 W.Va. 52, 459 S.E.2d 329 (1995)], we acknowledged that a grant of summary judgment may be sustained on any basis supported by the record. Thus, it is permissible for us to affirm the granting of summary judgment on bases different or grounds other than those relied upon by the circuit court.” Gentry v. Mangum, 195 W.Va. 512, 519-520, 466 S.E.2d 171, 178 (1995) (footnote omitted).
. Dickens and Lambert raise additional errors that we do not reach. They assert that the circuit court erred in dismissing their counterclaims asserting various torts against United Bank arising from it’s removal of the family preference from Dr. Price’s 1957 Amended Trust. However, our determination that United Bank properly removed the family preference from the 1957 Amended Trust renders those issues moot. Furthermore, because our resolution of this matter did not require an interpretation of the term "blood relative,” we need not address the claim of Dickens and Lambert that the doctrines of Judicial Estoppel and Collateral Estoppel operated to prevent the circuit court from interpreting that term, or that the circuit court improperly determined that Patricia Milam was the sole surviving "blood relative” of Dr. Price. | [
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ALBRIGHT, Chief Justice:
As the defendant below, Erie Insurance Property & Casualty Company (hereinafter referred to as “Erie”), invokes the original jurisdiction of this Court in order to prohibit enforcement of the March 30, 2005, order of the Ohio County Circuit Court directing disclosure of claims file documents in an underlying third-party bad faith action brought by Elizabeth Murfitt, plaintiff below. The particular Erie documents at issue pertain to reserve information detailing amounts and dates on which those amounts were set. Erie claims that the reserve information represents opinion work product which warrants heightened protection from disclosure. In consideration of the argument of the parties and applicable legal authorities, we grant the requested writ of prohibition on a ground other than the reason asserted.
I. Factual and Procedural Background
Ms. Murfitt initiated the underlying third-party bad faith action against Erie based on Erie’s handling of a claim arising out of a motor vehicle accident involving Ms. Murfitt and Erie’s insured. Within the context of the third-party bad faith suit, Ms. Murfitt served a request for production of documents upon Erie, seeking a copy of the Erie claims file relative to the accident. Erie produced a redacted version of its entire claims file and provided a detailed privilege log which identified each document withheld or redacted as well as noting whether the attorney-client privilege and work product doctrine warranted the reservation or redaction. As to its reason for objecting to disclosing reserve information within the claims file, Erie maintained that such information was protected-as opinion work product.
On February 24, 2004, Ms. Murfitt filed a motion to compel disclosure of the reserve information. In response, the lower court conducted an in camera review of the documents in question, examined Erie’s privilege log and heard oral argument on the motion. The court below then issued an order on March 30, 2005, wherein the court detailed which documents were subject to disclosure in whole or in part. Additionally, with respect to those documents to be produced in their entirety or in redacted version, the order stated that any information contained in the discoverable documents bearing on reserves was subject to disclosure.
On June 24, 2005, Erie filed aii original jurisdiction petition in this Court seeking to prohibit the circuit court from enforcing its order. By order dated July 5, 2005, this Court granted review.
II. Standard of Review
The original jurisdiction of this Court in matters of extraordinary writs derives from Article VIII, § 3 of the West Virginia Constitution and is codified in West Virginia Code § 51-1-3 (1923) (Repl. Vol. 2000). With specific regard to cases of prohibition, West Virginia Code § 53-1-1 (1923) (Repl. Vol. 2000) provides that “[t]he 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.”
The order being challenged in this ease involves a ruling granting discovery. While such orders are interlocutory in nature and generally only renewable on appeal, “[wjhen a discovery order involves the probable invasion of confidential materials that are exempted from discovery under Rule 26(b)(1) and (3) of the West Virginia Rules of Civil Procedure, the exercise of this Court’s original jurisdiction is appropriate.” Syl. Pt. 3, State ex rel. United States Fid. and Guar. Co. v. Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995). This is so because the harm resulting from the disclosure of such information is often not correctable on appeal. State ex rel. Brison v. Kaufman, 213 W.Va. 624, 629, 584 S.E.2d 480, 485 (2003). Accordingly, the matter in the instant case is properly before us for review.
We will proceed in our examination of the issues raised by adhering to the standard of review put forth in syllabus point five of State ex rel. Medical Assurance of West Virginia v. Recht, 213 W.Va. 457, 583 S.E.2d 80 (2003):
A circuit court's ruling on discovery requests is reviewed for an abuse of discretion standard; but, where a circuit court’s ruling turns on a misinterpretation of the West Virginia Rules of Civil Procedure, our review is plenary. The discretion that is normally given to a trial court’s procedural decisions does not apply where the trial court makes no findings or applies the wrong legal standard.
III. Discussion
Erie claims that the lower court exceeded its jurisdiction or legitimate powers by requiring that portions of the company’s claims file pertaining to reserve information be disclosed in the underlying third-party bad faith action because reserve information constitutes non-discoverable opinion work product. We do not reach the matter of work product because our examination reveals a more fundamental weakness in the lower court’s treatment of the discovery request.
The general test for determining whether information is discoverable is stated in Rule 26 of the West Virginia Rules of Civil Procedure (hereinafter referred to as “Ride 26”), which provides that:'
[pjarties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible tilings and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
W.Va. R. Civ. P. 26(b)(1). It is clear from the face of Rule 26 that disclosure decisions involve relevancy and privilege determinations.
A threshold issue regarding all discovery requests is relevancy. This is so because “[t]he question of the relevancy of the information sought through discovery essentially involves a determination of how substantively the information requested bears on the issues to be tried.” Syl. Pt. 4, in part, State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992). It is only after information is determined to be relevant that consideration is given to whether the information is subject to exclusion based upon the absolute or conditional privilege of attorney-client communications or work-product information respectively.
In the case at hand, Erie objected to disclosing reserve information in response to Ms. Murfitt’s request for production of documents. Ms. Murfitt’s attorneys filed a motion to compel disclosure of a complete, unre-dacted copy of the claims file which included the reserve information. In considering Ms. Murfitt’s motion to compel, the lower court conducted an in camera review of the documents, examined Erie’s privilege log and heard oral argument before it issued its order on March 30, 2005. We have only the lower court’s order before us which contains no findings of fact or conclusions of law setting forth the relevancy and materiality of the reserve information sought.
Ms. Murfitt asserts in her brief that information concerning the amount of reserves set with regard to her claim is “obviously relevant” to her bad faith claim, explaining by footnote that the data is “relevant in establishing Erie’s evaluation of the claim ... [and] in establishing when Erie became aware of the tortfeasor’s umbrella coverage.” While the relevancy of some types of information may be unmistakable, we are not convinced that reserve information merits such distinction and our research has not revealed that other jurisdictions follow such a cavalier approach to disclosure of reserve information. To the contrary, we observe that courts in other jurisdictions have found reserve information to neither be subject to automatic disclosure nor automatic protection from discovery. The Supreme Court of Colorado expressly stated that “[r]eserves are subject to the same relevancy standard for discovery as other information.” Silva v. Basin Western, Inc., 47 P.3d 1184, 1189 (Colo.2002). See also Lipton v. Stiperior Court, 48 Cal.App.4th 1599, 56 Cal.Rptr.2d 341, 343 (1996) (reserves cannot automatically be deemed irrelevant to an insured’s bad-faith claim against an insurer). This is no doubt due to the very nature of how insurance companies go about setting reserves.
Generally speaking, reserves are value approximations made by an insurance company regarding what will be sufficient “to pay all obligations for which the insurer may be responsible under the policy with respect to a particular claim.” Lipton at 348-49. In Maryland Casualty Company v. United States, 251 U.S. 342, 40 S.Ct. 155, 64 L.Ed. 297 (1920), the United Supreme Court explained that:
The term “reserve” or “reserves” has a special meaning in the law of insurance. While its scope varies under different laws, in general it means a sum of money, variously computed or estimated, which with accretions from interest, is set aside, “reserved,” as a fund with which to mature or liquidate, either by payment or reinsurance with other companies, future unae-crued and contingent claims, and claims accrued, but contingent and indefinite as to amount or time of payment.
Id. at 350, 40 S.Ct. 155. It has been said as well that “setting of reserves ... is merely a preliminary estimate of potential liability that does not necessarily take into account all of the factual and legal components that make up a particular case - [H]ow insurers calculate reserves and what they represent depend greatly upon which insurer or surety makes the computation.” Timothy M. Sukel & Mike F. Pipkin, Discovery and Admissibility of Reserves, 34 Tort & Ins. L.J. 191, 193 (1998).
Insurance companies operating in this state set reserves for each claim in compliance with statutory requirements. See e.g. W.Va.Code § 33-2-9 (2005) (Supp.2005) (examination of insurers by insurance commissioner); § 33-7-5 (1957) (Repl. Vol. 2003) (liabilities chargeable against assets to determine insurer’s financial condition); § 33-8-22 (2004) (Supp. 2005) (how the amounts set aside as reserves should be maintained). While insurance statutes demand that reserves be set, the manner in which each company arrives at the figure depends on a variety of factors. One source has identified four commonly used methods to set reserves as: (1) worst-case scenario; (2) average of paid losses over a given time; (3) paid loss development; and (4) incurred loss development. See 34 Tort & Ins. L.J. 191,194. The worst-case scenario method is described as setting “an amount of money that reflects a settlement or verdict value in the event all decisions fall against the insurer,” whereas the paid loss development method predicts ultimate losses on open claims based on similarity of characteristics with resolved claims. Id. The paid loss development and incurred loss development methods involve actuarial expertise. Id. This same authority further notes that additional facts considered in employing these methods for setting reserves include an assessment of the expertise of counsel on both sides of the case, consideration of whether plaintiffs’ verdicts predominate in the venue, the seriousness of the allegations and an evaluation of the particular parties involved. Id. It becomes apparent then that the methods by which an insurance company sets a reserve in a particular claim has a direct bearing on whether reserve amounts are relevant in a case like the one before us.
Relevance in the context of discovery means that the information sought is admissible evidence or is “reasonably calculated to lead to the discovery of admissible evidence.” W.Va. R.Civ.P. 26(b)(1); see also Syl. Pt. 4., in part, Keplinger v. Virginia Elec. and Power Co., 208 W.Va. 11, 537 S.E.2d 632 (2000); Syl. Pt. 4, in part, State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992). It seems clear that unless the court thoroughly considers the specific way the particular insurance company in a particular case determines reserves for a particular claim, the court can not make a decision as to whether the reserve information is relevant. Take, for example, the method for calculating reserves described earlier as “average of paid losses over a given time.” Serious doubt is raised regarding whether reserves developed using this approach would be relevant, that is admissible or likely lead to admissible evidence, when heavy reliance is placed on past experience rather than the particular facts in the individual open claim.
Additionally, while the method an insurance company employs to set reserves is critical to a relevancy determination, that information can not be considered in a vacuum. We have found that other jurisdictions while examining this question have looked not only at the method by which loss re serves for individual claims are set by a’ given insurer but also at the nature of the underlying litigation and the purpose for which the information is sought. 34 Tort & Ins. L.J. at 194-95. In other words, it is widely recognized that relevancy of reserve information turns on the unique factors presented in each case. See e.g. Signature Dev. Cos., Inc. v. Royal Ins. Co. of America, 230 F.3d 1215 (10th Cir.2000); Indep. Petrochemical Corp. v. Aetna Cas. & Sur. Co., 117 F.R.D. 283 (D.D.C.1986); Leksi, Inc. v. Fed. Ins. Co., 129 F.R.D. 99 (D.N.J.1989); Champion Int’l Corp. v. Liberty Mut. Ins. Co., 128 F.R.D. 608 (S.D.N.Y.1989); Fid. & Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516 (E.D.Pa.1996); Samson v. Transamerica Ins. Co., 30 Cal.3d 220, 178 Cal.Rptr. 343, 636 P.2d 32 (1981); In re Couch, 80 B.R. 512 (S.D.Cal.1987); Silva v. Basin Western, Inc., 47 P.3d 1184 (Colo.2002); Hoechst Celanese Corp. v. Nat’l Union Fire Ins. Co., 623 A.2d 1099 (Del.Super.Ct.1991); Groben v. Travelers Indem. Co., 49 Misc.2d 14, 266 N.Y.S.2d 616 (N.Y.Sup.Ct.1965); Fretz v. Mut. Benefit Ins. Co., 1998 WL 1005133 (Pa.Com.Pl.1998).
Based upon all of the above considerations, we hold that when presented with a challenge to discovery of insurance reserves information, the trial court is required under the provisions of Rule 26(b)(1) of the West Virginia Rules of Civil Procedure to make a preliminary determination of whether the requested information is relevant in that it is admissible or is reasonably calculated to lead to the discovery of admissible evidence. In making a determination in the context of discovery about the relevancy of insurance reserves information, the trial court should take into account the nature of the case, the methods used by the insurer to set the reserves and the purpose for which the information is sought, and only grant requests for disclosure when its findings of fact and conclusions of law support a determination that the specific facts of the claim in the case before it directly and primarily influenced the setting of the reseives in question.
The case at hand has not proceeded to the point where we have the information necessary to meaningfully consider whether the reserve information is relevant. We observe from our research that courts in other jurisdictions generally do not find that reserve information is relevant in cases involving insurance coverage, but have sometimes found relevancy in bad faith cases. See e.g. Lipton v. Superior Court, 48 Cal.App.4th 1599, 56 Cal.Rptr.2d 341 (1996); Tackett v. State Farm Fire & Cas., 558 A.2d 1098 (Del.Super.Ct.1988); Groben v. Travelers Indem. Co., 49 Misc.2d 14, 266 N.Y.S.2d 616, 619 (N.Y.Sup.Ct.1965) (finding “[b]ad faith is a state of mind which must be established by circumstantial evidence” and to this extent “[t]he actions of the ... [insurance company regarding reseives] are relevant.”). But see Fid. & Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516, 525 (E.D.Pa.1996) (concluding that reserve information was irrelevant because “such data would merely suggest what [the plaintiff] can already demonstrate ..., namely, that the cost of defending the ...' claims increased over time”).. These cases make it clear that a case-by-case examination of the factors we have previously identified is necessary for a court to be able to conclude that information involving reseives is admissible or “reasonably calculated to lead to the discovery of admissible evidence” and, as a result, is subject to disclosure. W.Va. R.Civ.P. 26(b)(1). Since the lower court neglected to address the key issue of relevancy in the instant case, we grant the writ of prohibition as requested. The issuance of this writ as to the order in question does not prohibit a subsequent proper application for disclosure of reserves supported by the required showings of the parties, analyzed by the trial court through its findings and conclusions, as indicated in this opinion.
IV. Conclusion
Based upon the foregoing, the relief in prohibition is granted to bar the enforcement of the March 30, 2005, discovery order of the Ohio County Circuit Court directing disclosure of reseive information.
Writ granted.
Justice DAVIS concurs and files a concurring opinion. | [
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Justice DAVIS delivered the Opinion of the Court.
DAVIS, J.
This case involves two consolidated appeals filed by Thomas J. Aluise and Jacqueline B. Aluise, appellants/plaintiffs below (hereinafter referred to as “the Abuses”), from two adverse summary judgment orders entered by the Circuit Court of Kanawha County. The two orders granted summary judgment to Nationwide Mutual Fire Insurance Company and two of its employees, Betsy A. Ross and Terry Ridenour, appellees/defendants below (hereinafter collectively referred to as “Nationwide”). Here, the Abuses contend the circuit court erred in granting Nationwide summary judgment, denying their motions for summary judgment, and erred in adopting the recommendations of a discovery commissioner. Based upon the arguments of the parties and a careful review of the record, we affirm the circuit court’s order.
I.
FACTUAL AND PROCEDURAL HISTORY
This litigation grew out of problems the Abuses encountered after they purchased their home. In October 1994, the Abuses purchased a home in Charleston, West Virginia, from Christer and Natalie Forssenius (hereinafter referred to as “the Forssenius-es”). Prior to the sale, the Forsseniuses gave the Abuses a Seller’s Property Disclosure. The disclosure stated that (1) there were no structural problems with the home, (2) no substantial alterations had been made to the home, and (3) no moisture or water problem existed in the basement or crawl space of the home.
Over the course of several years the Abuses began noticing cracks and moisture buildup in parts of their home. In June of 2002, the Abuses hfred a contractor to repair a crack in the garage portion of the basement. The contractor advised the Abuses that there were indications that the garage crack had been previously repaired. In July, 2002 an engineer inspected the home. The engineer found that structural movement had taken place on the front and side foundational walls. In November of 2002, a contractor discovered that a “false wall” had been built in the basement, approximately five inches from the concrete block. Additionally, there were signs that previous efforts had been made to repair the concrete block.
As a consequence of discovering the concealed structural problems in the home, the Abuses filed an action on December 23, 2002, against the Forsseniuses and others. Nationwide, who had issued a homeowner’s policy to the Forsseniuses when they owned the home, issued a denial of coverage letter on January 3, 2003, stating that the allegations in the complaint did not fall within the Fors-seniuses’ homeowner’s policy.
In April of 2003, the Forsseniuses allowed judgment to be entered against them in the amount of $34,000.00. Also, the Forssenius-es assigned the Aluises any first-party bad faith claim they may have had against Nationwide. In exchange for the assignment, the Aluises entered into a covenant not to execute the judgment against the Forsseni-uses.
On July 18, 2003, the Aluises filed an action against Nationwide .in the Circuit Court of Kanawha County. The complaint asserted causes of action for first-party breach of contract, first-party bad faith settlement, and third-party bad faith settlement. After answering the complaint, Nationwide filed a motion for summary judgment on December 24, 2003.
On January 5, 2004, while the case was still pending in Kanawha County, the Aluises filed a separate action in the Circuit Court of Cabell County against Nationwide, its adjuster Betsy A. Ross, and its claims legal counsel, Terry Ridenour. The Cabell County complaint asserted twelve causes of action that included three breach of contract claims involving homeowner’s policies allegedly issued to the Forsseniuses in West Virginia, Indiana and Virginia; four first-party bad faith claims; and five third-party bad faith claims.
On April 28, 2004, the Circuit Court of Kanawha County entered an order consolidating the two actions. This order also bifurcated the contract coverage and duty to defend issues from the bad faith claims, and stayed discovery on the bad faith claims.
On March 31, 2004, the Aluises filed nine motions for partial summary judgment. On June 16, 2004, the circuit court heard oral arguments on five of the Aluises’ motions for partial summary judgment, and on Nationwide’s previously filed motion for summary judgment relating to the issues of coverage and the duty to defend. By order entered July 22, 2004, the circuit court granted Nationwide’s motion for summary judgment concluding there was no coverage or duty to defend. The order also denied the Aluises’ motions for partial summary judgment.
Nationwide filed a motion for summary judgment on the remaining bad faith claims on August 9, 2004. The Aluises responded to the motion by arguing that the July 22 summary judgment order involved only the West Virginia policy, and that issues related to coverage and the duty to defend under the Virginia and Indiana policies remained. The Aluises also asked the court to rule upon its previously filed partial summary judgment motions involving the bad faith claims. Nationwide replied to the Aluises’ response by pointing out that the controlling language of the Virginia policy was identical to the West Virginia policy. Nationwide also alleged that the Aluises failed to show that an Indiana policy was issued to the Forssenius-es. By order entered December 16, 2004, the circuit court granted Nationwide’s motion for summary judgment on all remaining issues and denied the Aluises remaining motions for partial summary judgment. Thereafter, the Aluises filed separate appeals to this Court for the summary judgment orders entered on July 22 and December 16, 2004. We consolidated the two appeals for purposes of our review.
II.
STANDARD OF REVIEW
This case involves two orders by the circuit court granting summary judgment to Nationwide. The standard of review of 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). It is equally well-established that, as here, “ ‘[t]he interpretation of an insurance contract ... is a legal determination which, like the court’s summary judgment, is reviewed de novo on appeal.’ ” Murray v. State Farm Fire & Cas. Co., 203 W.Va. 477, 482, 509 S.E.2d 1, 6 (1998) (quoting Payne v. Weston, 195 W.Va. 502, 506-07, 466 S.E.2d 161, 165-66 (1995)). 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 Casualty & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
III.
DISCUSSION
The Aluises have made numerous separate assignments of errors from the summary judgment orders entered on July 22 and December 16. They have also assigned error to a discovery order entered by the circuit court on February 25, 2004. We will examine separately the issues presented for each order.
A. The July 22nd Summary Judyment Order
The July 22 summary judgment order involved the initial complaint filed by the Aluis-es in the Circuit Court of Kanawha County. That summary judgment order disposed of allegations involving the West Virginia homeowner’s policy issued to the Forsseniuses. The Aluises have raised numerous issues concerning the July 22 order. However, we need address only three of those issues: the evidence considered by the circuit court, the coverage extended by the policy, and the duty to defend.
1. The evidence considered by the circuit court. The Aluises first contend that summary judgment should be reversed because the circuit court relied on evidence that was outside the parameters of Rule 56. According to the Aluises, the only type of evidence a circuit court may consider on a motion for summary judgment are pleadings, depositions, answers to interrogatories, admissions and affidavits. ■ Further, the Aluises argue that Nationwide did not present this type of evidence and, instead, relied upon “extraneous” evidence not contemplated by Rule 56.
Rule 56(c) states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” The Aluises have taken this language for the proposition that no other type of evidence may be considered on a motion for summary judgment. The Aluises’ are wrong to so narrowly construe the rule.
This Court has long held that “ ‘[a] motion for summary judgment should be granted if the pleadings, affidavits or other evidence show 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.’ ” Syl. pt. 2, Harrison v. Town of Eleanor, 191 W.Va. 611, 447 S.E.2d 546, (W.Va.1994) (emphasis added) (quoting Syllabus, Hanks v. Beckley Newspapers Corp., 153 W.Va. 834, 172 S.E.2d 816 (1970)). See also Trafalgar House Const., Inc. v. ZMM, Inc., 211 W.Va. 578, 586 n. 2, 567 S.E.2d 294, 302 n. 2 (2002) (per curiam) (“ ‘Upon motion for a summary judgment under Rule 56, R.C.P. all exhibits and affidavits and other matters submitted by both parties should be considered by the court, and such motion can be granted only when it is clear that no genuine issue of material fact is involved.’ ”) (quoting Syl. pt. 3, Haga v. King Coal Chevrolet Co., 151 W.Va. 125, 150 S.E.2d 599 (1966)). In other .words, “Rule 56(c) does not contain an exhaustive list of materials that may be submitted in support of summary judgment. In addition to those listed, [a court] ‘may consider any material that would be admissible or usable at trial.’ ” Williams v. Vasquez, 2002 WL 799854, *1 (N.D.Ill.2002) (quoting Aguilera v. Cook County Police & Corrections Merit Bd., 760 F.2d 844, 849 (7th Cir.1985)). See also Bramlage v. Wells Fargo Home Mortgage, Inc., 144 Fed.Appx. 489, 494 (6th Cir.2005) (“Legal commentators have recognized that ‘[documents are routinely considered in Rule 56 motions and the omission of them in Rule 56(c)’s listing of summary judgment evidence must be considered nothing more than an oversight. The inclusion of documentary evidence as a legitimate form of summary judgment input should be seen as uncontroversial.” ’ (quoting Edwai’d Brunet, Summary Judgment Materials, Federal Rules Decisions (May 1993)); Franklin D. Cleckley, Robin J. Davis & Louis J. Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure, § 56(c), at 937 (2002) (“A motion for summaiy judgment should be granted if the pleadings, exhibits, depositions, interrogatories, affidavits or other evidence show ... that the moving party is entitled to judgment as a matter of law.” (emphasis added)).
Consequently, we hold that Rule 56(c) of the West Virginia Rules of Civil Procedure does not contain an exhaustive list of materials that may be submitted in support of summary judgment. In addition to the material listed by that rule, a trial court may consider any material that would be admissible or usable at trial.
The “extraneous” evidence that the Aluises contend was impermissible under Rule 56(c) was a “Property Disclosure Statement” that was submitted by the Forsseniuses when they sold their home to the Aluises. In view of the above cited authorities and our holding, we do not find that the “Property Disclosure Statement” was outside the parameters of Rule 56(e) simply because it was not listed under that rule..
The Aluises also contend that the “Property Disclosure Statement” was inadmissible hearsay and therefore outside the scope of Rule 56. We note that “in deciding a motion for summary judgment, a court may rely only on material that would be admissible at trial.” Rubens v. Mason, 387 F.3d 183, 188 (2nd Cir.2004) (citation omitted). It has also been recognized that “[hjearsay evidence is not admissible ... for summary judgment purposes, unless it falls within one of the exceptions specified in the ... Rules of Evidence.” Ramirez Rodriguez v. Boehringer Ingelheim Pharmaceuticals, Inc., 425 F.3d 67, 76 (1st Cir.2005) (citations omitted). Nationwide contends that the “Property Disclosure Statement” was made an exhibit that was attached to the Aluises’ complaint. Therefore, the disclosure statement was admissible. Nationwide’s assertion is not altogether correct. In our review of the record we find that the specific language in the “Property Disclosure Statement” that was relied upon by the circuit court in rendering summaiy judgment, was also reprinted in two exhibits that the Aluises attached to their complaint. Insofar as the specific language relied on by the circuit court in rendering summary judgment existed in two exhibits attached to the complaint, we will address the Aluises’ hearsay argument in the context of an exhibit attached to a complaint. See Gentry v. Mangum, 195 W.Va. 512, 519, 466 S.E.2d 171, 178 (1995) (“[I]t is permissible for us to affirm the granting of summary judgment on bases different or grounds other than those relied upon by the circuit court.”).
The general rule is that “[i]n considering a motion for summary judgment a court may consider the pleadings, including attachments to the complaint, affidavits, depositions, answers to interrogatories or answers to requests for admissions.” Brasure v. Optimum Choice Ins. Co., 37 F.Supp.2d 340, 344-345 (D.Del.1999) (emphasis added). Additionally, it has been noted and we now hold that “Rule 10(c) [of the West Virginia Rules of Civil Procedure] makes a copy of any written instrument that is an exhibit to a pleading a part thereof for all purposes. The contents of such exhibits may be considered as evidence for dispositive motions.” Cleckley, Davis and Palmer, Litigation Handbook, § 10(c), at 237. Further, “[f]actual assertions in pleadings ..., unless amended, are considered judicial admissions conclusively binding on the party who made them.” American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir.1988). See also Wheeling-Pittsburgh Steel Corp. v. Rowing, 205 W.Va. 286, 302, 517 S.E.2d 763, 779 (1999) (‘“Judicial admissions are formal concessions in the pleadings, or stipulations by a party or its counsel, that are binding upon the party making them.’”) (quoting Keller v. United States, 58 F.3d 1194, 1198 n. 8 (7th Cir.1995)). Moreover, “an admission by a party-opponent is a statement which is not hearsay and thus, is admissible as substantive evidence.” McCloud v. Salt Rock Water Pub. Serv. Dist., 207 W.Va. 453, 456, 533 S.E.2d 679, 682 (2000) (per curiam). Insofar as the dispositive language in the “Property Disclosure Statement” was contained in’ two exhibits attached to the Aluises’ complaint, the circuit court properly considered that language in rendering summary judgment.
2. Coverage extended by the policy. The Aluises next contend that the West Virginia homeowner’s policy issued by Nationwide to the Forsseniuses provided coverage for the claims they made against the Forsseniuses in the underlying suit. The circuit court found that there was no coverage because “[a] homeowners policy is not intended to be a warranty upon sale.” We agree.
The relevant language in the policy provided that Nationwide “will pay damages which the insured is legally obligated to pay due to an occurrence[.]” The policy defined an “occurrence” as follows:
Occurrence means bodily injury or property damage resulting from an accident, including continuous or repeated exposure to the same general conditions. The occurrence must be during the policy period.
(Footnotes added).
This Court has long held that “[[language in an insurance policy should be given its plain, ordinary meaning.” Syl. pt. 1, Soliva v. Shand, Morahan & Co., 176 W.Va. 430, 345 S.E.2d 33 (1986). See also Syl. pt. 2, American States Ins. Co. v. Tanner, 211 W.Va. 160, 563 S.E.2d 825 (2002). Further, “[w]here the provisions in an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but foil 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). See also Syl. pt. 1, Russell v. State Auto. Mut. Ins. Co., 188 W.Va. 81, 422 S.E.2d 803 (1992).
The complaint filed by the Aluises against the Forsseniuses in the underlying action, essentially alleged that the Aluises sustained damages as a result of the failure of the Forsseniuses to disclose a structural and water seepage problems in the home. Nationwide contends that such a claim against the Forsseniuses is clearly not an occurrence within the meaning of the policy. We agree.
The coverage issue presented in this case was addressed in St. Paul Fire & Marine Ins. Co. v. Lippincott, 287 F.3d 703 (8th Cir.2002). In that case, a couple, Steve and Bonnie Thompson (hereinafter referred to as “the Thompsons”), filed an action against Charles and Barbara Lippincott (hereinafter referred to as “the Lippincotts”) alleging fraud in the sale of a home they purchased from the Lippincotts. . Specifically, the Thompsons alleged the Lippincotts intentionally and negligently concealed structural damage to a house they sold to the Thomp-sons. It was determined that before listing the house for sale, the Lippincotts patched a structural crack with spackling, covered a crack with carpet, and then filled a room with boxes, making it difficult to discover the cracks. In selling the home to the Thomp-sons, the Lippincotts completed a property disclosure statement falsely representing that they were unaware of any past or present cracks or flaws in the walls or foundations. A judgment was eventually entered awarding the Thompsons $75,000. Subsequent to the judgment, the Lippincotts’ insurer filed a declaratory judgment action seeking a determination that judgment entered against its insureds was not covered under their basic insurance and umbrella policies. The district court granted summary judgment to the insurer upon finding the policies did not cover the claim against the Lippincotts. The Eighth Circuit Court of Appeals agreed with the district court for the following reasons:
The Lippincotts’ negligent misrepresentations did not cause any property damage to the house. Neither did the Lippincotts’ actions to conceal the cracks in the house cause any property damage to the house. The structural flaws in the house constitute tangible property damage, but these flaws predate the occurrence of conceal-, ments and misrepresentations by which the Lippincotts incurred liability. The Thompsons’ judgment covered the intangible losses incurred when the Thompsons relied to their economic detriment upon the Lippincotts’ misrepresentations. These damages are pecuniary in nature and are not property damage within the meaning of the St. Paul insurance policies.
St. Paul, 287 F.3d at 706. The decision in St. Paul is not isolated. It has been recognized that courts “are virtually unanimous in their holdings that damages flowing from misrepresentation and/or fraud have no basis [as] property damage; rather, the only cognizable damages from such torts are economic and contractual in nature and as such do not fall within the scope of coverage afforded by [homeowners] policies[.]” State Farm Fire and Cas. Co. v. Brewer, 914 F.Supp. 140, 142 (S.D.Miss.1996) (citing Safeco Ins. Co. of America v. Andrews, 915 F.2d 500 (9th Cir.1990)). Accord Allstate Ins. Co. v. Morgan, 806 F.Supp. 1460 (N.D.Cal.1992); Allstate Ins. Co. v. Chaney, 804 F.Supp. 1219 (N.D.Cal.1992); Allstate Ins. Co. v. Hansten, 765 F.Supp. 614 (N.D.Cal.1991); State Farm Fire and Cas. Co. v. Gunn, 658 So.2d 426 (Ala.1995); Devin v. United Servs. Auto. Assoc., 6 Cal.App.4th 1149, 8 Cal.Rptr.2d 263 (1992); Dixon v. National Am. Ins. Co., 411 N.W.2d 32 (Minn.App.1987); Qualman v. Bruckmoser, 163 Wis.2d 361, 471 N.W.2d 282 (1991).
Based upon the overwhelming authorities, we now hold that, absent policy language to the contrary, a homeowner’s policy defining “occurrence” as “bodily injury or property damage resulting from an accident” does not provide coverage for an insured homeowner who is sued by a home buyer for economic losses caused because the insured negligently or intentionally failed to disclose defects in the home.
Applying our holding to the facts of this case, it is clear that no language in the policy provided coverage for the type of action the Aluises brought against the Forsseniuses. The policy provided coverage for property damage or bodily injury sustained at the Forsseniuses home. The Aluises sought damages for economic losses they sustained as a result of the negligent or intentional failure of the Forsseniuses to disclose defects in the home at the time of the sale. The claims asserted by the Aluises simply do not trigger an occurrence as defined under the policy. As one court appropriately noted, “[t]o find coverage existed in this case would be to find that based on an act of sale, a homeowner’s insurer becomes the warrantor of the condition of the insured property. This is not the type of coverage which is contemplated by ... homeowner’s policies[.]” Lawyer v. Kountz, 716 So.2d 493, 498 (La.Ct.App.1998). See Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 577 (6th Cir.2001); Shelter Mut. Ins. Co. v. Brown, 345 F.Supp.2d 645 (S.D.Miss.2004) (same); Allstate Ins. Co. v. Morgan, 806 F.Supp. 1460 (N.D.Cal.1992) (same); Miller v. Western Gen. Agency, Inc., 41 Cal.App.4th 1144, 49 Cal.Rptr.2d 55 (1996) (homeowners policy did not provide coverage for problems arising from sale of home); Fisher v. Fitchburg Mut. Ins. Co., 131 N.H. 769, 560 A.2d 630 (1989) (same); Syvertsen v. Great Am. Ins. Co., 267 A.D.2d 854, 700 N.Y.S.2d 289 (1999) (same); Cincinnati Ins. Co. v. Anders, 99 Ohio St.3d 156, 789 N.E.2d 1094 (2003) (same); Sclabassi v. Nationwide Mut. Fire Ins. Co., 789 A.2d 699 (Pa.Super.2001) (same); Huffhines v. State Farm Lloyds, 167 S.W.3d 493 (Tex.Ct.App.2005) (same).
3. Duty to defend. The Aluises also contend that the circuit court erred in finding that Nationwide did not have a duty to defend the Forsseniuses in the underlying suit. To support their contention that a duty to defend existed, the Aluises argue that “[t]he allegations in the underlying tort case clearly allege property damage as a result of negligent repair and negligent failure to disclose.” This Court has held that, “[a]s a general rule, an insurer’s duty to defend is tested by whether the allegations in the plaintiffs complaint are reasonably susceptible of an interpretation that the claim may be covered by the terms of the insurance policy.” Aetna Cas. & Sur. Co. v. Pitrolo, 176 W.Va. 190, 194, 342 S.E.2d 156, 160 (1986) (citations omitted).
The allegations in the underlying complaint simply do not rise to the requirement of Aetna, that the allegations be “reasonably susceptible” to an interpretation that the claims may be covered. A case that helps illustrate this conclusion is Qualman v. Bruckmoser, 163 Wis.2d 361, 471 N.W.2d 282 (1991).
The decision in Qualman involved undisclosed defects in a home that was sold by the insureds. The buyers alleged negligent and intentional misrepresentation and breach of contract in the sale of the house. Specifically, the buyers alleged that the house had cracked basement walls and defective kitchen pipes, and that the insureds misrepresented these known conditions and breached the contract. The insureds tendered their defense to the insurer; but, the insurer declined to defend. The buyers subsequently filed an amended complaint and named the insurer as a defendant. The insureds thereafter filed a cross-claim against the insurer seeking indemnification pursuant to the terms of their homeowner’s policy in the event they were required to pay any damages, and for recovery of costs incurred in the defense of the claims. The trial court granted summary judgment in favor of the insurer and entered a judgment dismissing the buyers’ claims and the insureds’ cross-claim. The insureds appealed. The appellate court affirmed. In addressing the duty to defend issue, the appellate court reasoned as follows:
An insurance company’s duty to defend is dependent solely on the allegations of the complaint. These allegations must state or claim a cause of action for the liability insured against or for which indemnity is paid in order for the suit to come within any defense coverage of the policy. Thus, for there to be a duty to defend, there must be allegations in the complaint which would fall within coverage afforded under the policy....
The pertinent language of the policy issued to the Bruckmosers provides the following:
... “Property damage” is defined in the policy as “injury to or destruction of tangible property, including the loss of its use.”
The causes of action against the [insureds] relate to breach of contract and misrepresentation of significant structural defects. The damages for such claims, if proven, would be the difference between the market value of the property at the time of purchase and the amount actually paid. Therefore, the damages alleged by the [buyers] are pecuniary in nature and do not constitute property damage as defined by the insurance policy. Property damage within the meaning of the policy is not alleged. There is no coverage in the policy for the pecuniary loss the [buyers] do allege. Thus, [the insurer] has no duty to defend.
Qualman, 471 N.W.2d at 284-285 (internal quotation marks and citations omitted). See also Safeco Ins. Co. of America v. Andrews, 915 F.2d 500 (9th Cir.1990) (no duty to defend under homeowner policy for claims arising from sale of home); Allstate Ins. Co. v. Miller, 743 F.Supp. 723 (N.D.Cal.1990) (same).
In the instant proceeding, the complaint filed by the Aluises alleged “property damage as a result of negligent repair and negligent failure to disclose.” These allegations simply do not fall within the scope of the policy and therefore did not trigger a duty to defend.
B. The December 16th Summary Judgment Order
The Aluises have assigned error to several issues regarding the circuit court’s summary judgment order of December 16, wherein the circuit court dismissed the remaining claims. Those issues involve the Virginia policy, the Indiana policy, and the bad faith claims. We will address each issue separately.
(1) The Virginia policy. Nationwide issued a homeowners policy to the Forssenius-es for a Virginia residence they maintained. The Aluises contended that coverage and a duty to defend existed by virtue of this policy. The circuit court’s order addressed this issue as follows:
Having now reviewed the Virginia policy issued by Nationwide to Mr. and Mrs. Forssenius, the Court finds that the definitions of “occurrence” and the coverages set forth in the Virginia policy are identical to the West Virginia policy and therefore the Court finds that summary judgment is appropriate regarding coverage under the Virginia policy, incorporating herein the findings of July 22, 2004.
The Aluises do not contest the circuit court’s determination that the Virginia policy was identical to the West Virginia policy. Instead, in this appeal they simply assert that “to the extent that this Court reverses as to the West Virginia policy, Appellants ask that you also reverse as to the Virginia policy.” This is the sum total of the grounds for reversing the order with respect to the Virginia policy. Insofar as we have determined that no coverage or duty to defend existed under the Wets Virginia policy, we find no error with the circuit court’s ruling on the Virginia policy.
(2) The Indiana policy. The Aluises also asserted that Nationwide issued the Forssen-iuses a homeowners policy for an alleged home they owned in Indiana. The circuit court granted summary judgment on this issue because the Aluises failed to produce any evidence that such a policy was in fact issued.
In their brief, the Aluises contend that no evidence was forthcoming on the Indiana policy because the circuit court “ruled on Nationwide’s motion as to all remaining counts before any discovery was taken as to the newly added counts ... Therefore, to the extent that this Court finds that discovery should have been allowed, Appellants ask that the summary judgment as to the Indiana policy be reversed as well.”
As an initial matter, we will note that when the circuit court consolidated the Cabell County action with the Kanawha County action, the order stayed discovery only as to the bad faith claims. Consequently, discovery was available for all other claims. The Aluises apparently did not avail themselves of the right to conduct discovery on the issue of the existence of the Indiana policy. Now, the Aluises would have this Court afford them such an opportunity. We respectfully decline to do so.
Our rules of civil procedure are quite clear as to what a party must do if he/she feels that discovery is needed before he/she can defend against a motion for summary judgment. We addressed this issue in syllabus point 3 of Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995), as follows:
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 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 explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procediire.
(Emphasis added).
Under Williams, the Aluises were required to submit an affidavit explaining the need for discovery in order to resist summary judgment as to the Indiana policy. This was not done. Consequently, the Aluis-es cannot complain to this Court about the need for discovery on that issue.
(3) Bad faith claims. The Aluises argue that even if the circuit court was correct in dismissing the substantive claims under the policies, it erred in dismissing the bad faith claims alleged under the West Virginia Unfair Claims Settlement Practices Act, W. Va. Code § 33-11-4(9) (2003). The Aluises point out that under the Act “there is no requirement that one substantially prevail” with respect to the underlying coverage and/or duty to defend claim(s). McCormick v. Allstate Ins. Co., 197 W.Va. 415, 427, 475 S.E.2d 507, 519 (1996).
Here, the Aluises have briefed only one issue as the basis for keeping their bad faith claims alive. The Aluises allege that an issue exists as to whether Nationwide promptly responded when the Forsseniuses notified them of the lawsuit. Under the regulations promulgated pursuant to the Act, Nationwide had to respond within 15 working days. See 114 CSR 14-5.3.
Nationwide was informed of the lawsuit by the Forsseniuses on December 16, 2002. Nationwide investigated the matter and issued a denial of coverage letter to the Fors-seniuses on January 3, 2003. Excluding nonworking days, it is clear that Nationwide responded within 15 working days. Further, after the lawsuit was actually filed, a request was made for Nationwide to provide a defense on January 8, 2003. On January 20, 2003, Nationwide issued a letter denying a defense. This response was also within the 15 day requirement. Insofar as the Aluises have not asserted any other reasons why their bad faith claims should not have been dismissed, we will not disturb the circuit court’s ruling on the issue.
C. Discovery Order
On December 8, 2003, the circuit court referred certain discovery matters to a Special Commissioner. A hearing was conducted by the Special Commissioner and on January 30, 2004, the Special Commissioner issued a report. By order entered February 25, 2004, the circuit court adopted the report of the Special Commissioner. In this, appeal, the Aluises have assigned a number of issues as error regarding the discovery order. In their brief, the Aluises indicate that if this Court affirmed the summary judgment orders the issues raised involving the discovery order are moot. We agree. However, we believe that one of the discovery order issues raised by the Aluises should be addressed even though the issue is moot in this case.
This Court set out the standard for determining whether to address a moot issue in syllabus point one of Israel by Israel v. West Virginia Secondary Schools Activities Commission, 182 W.Va. 454, 388 S.E.2d 480 (1989):
Three factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.
The moot issue presented in this case involves a request by the Aluises to record the discovery proceedings held before the Special Commissioner. The Aluises contend that on the day the proceeding was actually held they asked the Special Commissioner to allow a court reporter to record the proceedings. The Special Commissioner refused the request. The Aluises contend that they should have been permitted to have the proceedings recorded. We believe that the issue of utilizing a court reporter at a proceeding before a Special Commissioner raises a legal matter of vital public interest which is subject to repetition and requires guidance from this Court for future actions. Consequently, we will address this matter though it is moot for the purposes of the Aluises’ appeal.
We have previously noted that “there is the time-honored use of special commissioners by courts for certain purposes[.]” Nagy v. Oakley, 172 W.Va. 569, 571, 309 S.E.2d 68, 70 (1983). See also State of West Virginia ex rel. Allstate Ins. Co. v. Madden, 215 W.Va. 705, 720, 601 S.E.2d 25, 40 (2004) (“In conducting in camera examinations of the purportedly privileged communications, the circuit court may conduct such inquiries itself or may, in the interests of judicial economy, appoint a special master for this purpose.”). Although no specific statute or rule authorizes trial courts to appoint commissioners to preside over discovery matters, it has been correctly noted that,
Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate in struments required for the performance of their duties_ This power includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties as they may arise in the progress of a cause.
In re Peterson, 253 U.S. 300, 312, 40 S.Ct. 543, 547, 64 L.Ed. 919 (1920). See also United Steelworkers of Am., AFL-CIO, CLC v. Tri-State Greyhound Park, 178 W.Va. 729, 735, 364 S.E.2d 257, 263 (1987) (“ ‘The general rule applicable in equitable actions is that even in the absence of a statute authorizing it, a court of equity has inherent power to enter an order [appointing a commissioner]’ 66 Am.Jur.2d References § 13, at 489 (1973).”); People v. Superior Court, 25 Cal.4th 703, 107 Cal.Rptr.2d 323, 328, 23 P.3d 563 (2001) (“[T]he superior court nonetheless possesses inherent authority to appoint a special master to assist it in examining such documents and ruling upon the claims of privilege.”); State v. Doe, 93 N.M. 621, 603 P.2d 731, 734 (1979) (“[I]t is generally recognized that the district court has inherent power to appoint special masters. This is an inherent power of the judiciary.”). In the instant proceeding, the trial court relied upon its inherent authority to appoint the Special Commissioner to hold a hearing and make recommendations regarding specific discovery issues.
The general guidelines for commissioners appointed by trial courts to address specific matters has been summarized as follows:
An order referring a case to a commissioner is the source and limit of the commissioner’s duties and powers. If an order is silent on the manner in which a commissioner must conduct a proceeding, the commissioner has substantial discretion to determine the kind of evidence the parties must submit and the manner in which it may be presented. Further, the commissioner has discretion, absent a trial court’s order to the contrary, to permit discovery or hold an evidentiary hearing in a particular case.
Cleckley, Davis and Palmer, Litigation Handbook, § 53, at 131 (Supp.2005). In the instant proceeding, the order appointing the Special Commissioner did not address the issue of recording the proceedings. However, the Special Commissioner had discretionary authority to allow the Aluises to record the hearing. In an effort to resolve the issue of recording proceedings heard by commissioners appointed by trial courts, we now hold that, in a proceeding heard by a Special Commissioner appointed by a trial court, a party is entitled to have the proceeding recorded if a timely request is made. The costs incurred in recording the proceeding shall be borne by the party making the request, if the parties have not made other arrangements for paying such costs.
Under the facts of this case and in view of our holding, we do not believe the Special Commissioner abused his discretion in not permitting the proceedings to be recorded. During oral argument it was indicated that the request to have the proceeding recorded was made at the hearing before the Special Commissioner. There was no indication that the means for recording the proceeding were immediately available when the request was made, i.e., the hearing would have been delayed for some unspecified time in order to provide a method of recording the proceeding. Under these facts, we believe the request was simply untimely made.
IV.
CONCLUSION
In view of the foregoing, the circuit court’s summary judgment orders of July 22, 2004, and December 16, 2004, are affirmed.
Affirmed.
. The real estate agent and home inspector were also named as defendants.
. A subsequent letter .was issued regarding the denial of a defense for the Forsseniuses.
.Five of the motions dealt with coverage claims and four concerned bad faith claims. The circuit court permitted argument only on the coverage claims, because the bad faith claims had been bifurcated and stayed.
.The Virginia policy was attached as an exhibit.
. Our Rule 56 is patterned after Rule 56 of the Federal Rules of Civil Procedure. Therefore, we look to Federal law for guidance. See, e.g., State ex rel. Paige v. Canady, 197 W.Va. 154, 160, 475 S.E.2d 154, 160 (1996) ("Because the language contained in Rule 26(c) of the West Virginia Rules of Civil Procedure is nearly identical to Rule 26(c) as contained in the Federal Rules of Civil Procedure, we look to federal case law for guidance.”).
. The Property Disclosure Statement indicated, among other things, that there was no moisture or water problems in the basement or crawl space.
. The Aluises attached twenty-two exhibits to their complaint.
. The circuit court's order made the following finding: "At the closing, the [Forsseniuses] produced a ‘Property Disclosure Statement' ... which stated that there were no structural problems with the home, no substantial alterations had been made, and there was no moisture or water problem in the basement crawl space.” This finding is set out in the Property Disclosure Statement as follows:
k. Are there any structural problems with the Improvements?
YES _X_NO DO NOT KNOW
l. Have any substantial additions or alterations been made without a required building permit?
YES NO DO NOT KNOW
m. Are there moisture and/or water problems in basement or crawl space?
YES X NO DO NOT KNOW
In the two exhibits attached to the Aluises’ complaint, the following was reprinted in connection with the "Property Disclosure Statement”:
k. Are there any structural problems with the improvements?
YES _X_ NO DO NOT KNOW
l. Have substantial additions or alterations been made without a required building permit?
YES X NO DO NOT KNOW
m. Are there moisture and/or water problems in basement or crawl space?
YES _X_ NO DO NOT KNOW
.See W. Va. Rules of Civil Procedure, Rule 10(c) ("Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” (emphasis added)).
. See W. Va. Rules of Evidence, Rule 801(d)(2)(B) ("A statement is not hearsay if — (2) Admission by party-opponent. — The statement is offered against a party and is ... (B) a statement of which the party has manifested an adoption or belief in its truth[.]”).
. Bodily injury was defined in the policy as:
"Bodily injury” means bodily harm, sickness or disease, including resulting care, loss of services and death.
. Property damage was defined in the policy as:
"Properly damage” means physical injury to or destruction of tangible property. This includes resulting loss of its use.
. The Aluises made other assignments of error arising out of the July 22 summary judgment order. Insofar as we have determined that no coverage existed and there was no duty to defend, we need not address those additional assignments of error.
. The lawsuit was not actually filed until December 23, 2002.
. The Aluises have also argued that the circuit court erred in denying their additional motions for partial summary judgment and failing to set out separate findings of fact thereon. This argument has no merit. Insofar as the circuit court granted Nationwide's motion for summary judgment, there was no need for the court to set out separate findings in denying the Aluises’ additional motions for partial summary judgment.
. Unlike its federal counterpart. Rule 53 of the West Virginia Rules of Civil Procedure does not authorize the appointment of a commissioner. Rule 53 simply provides that the manner in which commissioners were appointed in the past shall continue. See Rule 53 ("Commissioners in Chancery shall henceforth be known as 'Commissioners.' The practice respecting the appointment of such commissioners and references to them, and respecting their powers and duties, and the powers and duties of courts to hold ' hearings upon their reports, shall be in accordance with the practice heretofore followed in this State. In all other respects, the action in which a commissioner is appointed, is governed by these rules.”). There are several statutes providing for appointment of commissioners for specific matters. See, e.g., W. Va.Code § 19-21A-10 (2004) ("If it shall appear to the court that testimony is necessary for the proper disposition of [a land use] matter, it may take evidence, or appoint a special commissioner to take such evidence as it may direct, and report the same to the court with his or her findings of fact and conclusions of law which shall constitute a part of the proceedings upon which the determination of the court shall be made."); W. Va.Code § 51-5-1 (2005) ("Each circuit court ... may from time to time appoint not more than four commissioners in chancery or for stating accounts ... with power to take depositions and to swear and examine witnesses and to certify their testimony."); W. Va.Code § 54-2-18 (2000) ("To aid in properly disposing of [eminent domain] money, the court or judge may appoint a commissioner to take evidence of the conflicting claims.”); W. Va.Code § 56-7-10 (2005) ("At law, in any case in which it may be deemed necessary, the court may direct [a] commissioner or other competent person, either before or at the time of trial, to take and state an account between the parties, which account, when thus stated, shall be deemed prima facie correct, and may be given in evidence to the court or jury trying the case.'').
. Had the Aluises brought a court reporter, or some other method of recording, to the proceeding, we believe the Special Commissioner would have abused his discretion in denying the request. See Lowe v. City of Arlington, 470 S.W.2d 206, 207 (Tex.App.1971) ("It was an abuse of discretion on the part of the trial court to refuse permission ... to provide a court reporter to transcribe the proceedings.''). | [
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Justice MAYNARD delivered the Opinion of the Court.
Chief Justice ALBRIGHT and Justice STARCHER concur, in part, and dissent, in part and reserve the right to file separate opinions.
MAYNARD, Justice.
Appellant F. Douglas Stump, Commissioner of the West Virginia Division of Motor Vehicles, appeals the November 17, 2004 order of the Circuit Court of Raleigh County that reversed an administrative driver’s license revocation. For the reasons that follow, we reverse the circuit court’s order.
I.
FACTS
Scott A. McKinney, Appellee herein, was convicted of driving under the influence (hereafter “DUI”) on October 2, 1997. As a result of that conviction, the Commissioner of the Division of Motor Vehicles (hereafter “the Commissioner”) revoked McKinney’s driver’s license.
On February 24, 2002, while McKinney’s driver’s license remained revoked, he was arrested for speeding and for driving while revoked for DUI in violation of W.Va.Code § 17B-4-3(b) (2004). McKinney subsequently pled guilty to a lesser speeding offense and to the lesser crime of driving while suspended or revoked for administrative reasons in violation of W.Va.Code § 17B-4-3(a).
The Division of Motor Vehicles (hereafter “the Division”) thereafter issued an order, dated March 11, 2003, that advised McKinney that his privilege to drive was suspended for one year pursuant to W.Va.Code § 17B-3-6(a)(l) (1997). The order advised McKinney that “the Division records and/or other evidence shows that you drove on 02/24/02 while your license was suspended for driving under the influence of alcohol.”
After a February 23, 2004, hearing, the Commissioner of the Division of Motor Vehicles upheld the suspension, concluding that McKinney “operated a motor vehicle on February 24, 2002, while his license was revoked for driving under the influence.” Additionally, the Commissioner found that “Pursuant to West Virginia Code § 17B-3-6(a), the Division is authorized to suspend the driver’s license of any person without preliminary hearing upon showing by its records or other sufficient evidence that the licensee has committed an offense in which mandatory revocation of a driver’s license is required upon conviction.” McKinney appealed to the Circuit Court of Raleigh County.
By order entered November 17, 2004, the circuit court reversed the administrative license suspension. The circuit court reasoned that because McKinney was convicted of driving while suspended for administrative reasons pursuant to W.Va.Code § 17B-4-3(a), which does not require suspension for a first offense under W.Va.Code § 17B-4-3(c), the Commissioner was precluded from suspending McKinney’s license for an additional year. The Commissioner now appeals the circuit court’s order.
II.
STANDARD OF REVIEW
Concerning the standard of review in cases like the one before us, we have indicated that “[t]his Court applies the same standard of review that the circuit court applied to the Commissioner’s administrative decision — giving deference to the Commissioner’s purely factual determinations; and giving de novo review to legal determinations.” Choma v. West Virginia DMV, 210 W.Va. 256, 258, 557 S.E.2d 310, 312 (2001). Because the instant appeal involves a question of statutory interpretation, we apply a de novo standard.
III.
DISCUSSION
This case concerns the construction and application of two statutes. First, W.Va. Code § 17B-3-6(a)(1) (1997), relied upon by the Division in suspending McKinney’s driv-' er’s license, provides,
(a) The division is hereby authorized to suspend the driver’s license of any person without preliminary hearing upon a showing by its records or other sufficient evidence that the licensee:
(1) Has committed an offense for which mandatory revocation of a driver’s license is required upon conviction[.]
Plainly, this statute indicates that the Division is authorized to suspend a person’s driver’s license when it has sufficient evidence that the person committed an offense for which mandatory revocation of a driver’s license is required upon conviction.
The second statute is W.Va.Code § 17B-4-3 (2004), relied upon by the circuit court in reversing McKinney’s license revocation for driving while revoked for DUI, which provides in part,
(a) Except as otherwise provided in subsection (b) or (d) of this section, any person who drives a motor vehicle on any public highway of this state at a time when his or her privilege to do so has been lawfully suspended or revoked by this state or any other jurisdiction is, for the first offense, guilty of a misdemeanor....
(b) Any person who drives a motor vehicle on any public highway of this-state at a time when his or her privilege to do so has been lawfully revoked for driving under the influence of alcohol, controlled substances or other drags, or for driving while having an alcoholic concentration in his or her blood of eight hundredths of one percent or more, by weight, or for refusing to take a secondary chemical test of blood alcohol content, is, for the first offense, guilty of a misdemeanor....
(c) Upon receiving a record of the first or subsequent conviction of any person under subsection (b) of this section upon a charge of driving a vehicle while the license of such person was lawfully suspended or revoked, the division shall extend the period of such suspension or revocation for an additional period of one year and after the date such person would otherwise have been entitled to apply for a new license. Upon receiving a record of the second or subsequent conviction of any person under subsection (a) of this section upon a charge of driving a vehicle while the license of such person was lawfully suspended or revoked, the division shall extend the period of such suspension or revocation for an additional period of one year from and after the date such person would otherwise have been entitled to apply for a new license.
Subsection (c) of this statute indicates that license revocation is mandated only upon a second or subsequent conviction for driving while revoked for administrative reasons. The question before this Court is which of these two statutes applies to McKinney.
The Commissioner argues that W.Va.Code § 17B-3-6(a)(l) applies. According to the Commissioner, this code section authorizes the Division to suspend a person’s driver’s license upon a showing of sufficient evidence that the person has committed an offense for which mandatory revocation of a driver’s license is required upon conviction. According to the Commissioner, McKinney’s driver’s license was not suspended for driving while revoked for administrative reasons. Rather, the Division had sufficient evidence in its records that McKinney drove a vehicle while his license was revoked for DUI. Further, asserts the Commissioner, aceoi’ding to W.Va.Code § 17B-4-3(c), a first conviction for driving while revoked for DUI requires extending the license suspension for an additional year. Therefore, the Commissioner concludes that the Division had the authority, pursuant to W.Va.Code § 17B-3-6(a)(l), to suspend McKinney’s license.
This Court agrees with the Commissioner that the Division had the authority to suspend McKinney’s driver’s license after it received evidence that he drove a vehicle while his driver’s license was revoked for DUI, even though McKinney was not actually convicted of driving while revoked for DUI. When this Court is called upon to determine the meaning of a statute, we are guided by the principle that “[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 a case it is the duty of the courts not to construe but to apply the statute.” Syllabus Point 1, State ex rel. Fox v. Board of Trustees of Policemen’s Pension, 148 W.Va. 369, 135 S.E.2d 262 (1964), ovemcled on other grounds, Booth v. Sims, 193 W.Va. 323, 456 S.E.2d 167 (1995). Applying this principle to W.Va.Code § 17B-3-6(a)(1) leads us to conclude that this code section is clear and unambiguous, and the Legislature’s intent when it enacted the statute is plain. Therefore, we hold that pursuant to W.Va.Code § 17B-3- 6(a)(1) (1997), the West Virginia Division of Motor Vehicles is authorized to suspend the driver’s license of any person without preliminary healing upon a showing by its records or other sufficient evidence that the licensee committed an offense for which mandatory revocation of a driver’s license is required upon conviction, regardless of whether the licensee is convicted of the offense. We see no reason why the clear language of W.Va. Code § 17B-3-6(a)(l) should not be applied in this case.
The facts below show that the Division had sufficient evidence that McKinney drove while his driver’s license remained revoked for DUI. Also, pursuant to W.Va.Code § 17B-4-3(c), driving while revoked for DUI is an offense for which mandatory revocation of a driver’s license is required upon conviction. Accordingly, pursuant to W.Va.Code § 17B-3-6(a)(l), the Division was authorized to suspend McKinney’s license for driving while revoked for DUI.
McKinney posits several arguments to support his contention that W.Va.Code § 17B-3-6(a)(l) does not apply to him. First, he reads § 17B-3-6(a)(l) to authorize suspension only upon actual conviction of an offense for which mandatory revocation of a driver’s license is required. He points out that he was convicted of driving while suspended or revoked for administrative reasons, an offense for which mandatory revocation is not required under W.Va.Code § 17B-4-3(c). We believe that McKinney plainly misreads § 17B-3-6(a)(l). This code section requires only that the Division have sufficient evidence that the licensee committed an offense “for which mandatory revocation of a driver’s license is required upon conviction.” It does not require sufficient evidence that the licensee actually was convicted of such an offense before license revocation is authorized.
Also, “[i]t is a cardinal rule of statutory construction that a statute should be construed as a whole, so as to give effect, if possible, to every word, phrase, paragraph and provision thereof[.]” Syllabus Point 9, in part, Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953). To give effect to W.Va.Code § 17B-3-6(a)(1), it must be read to provide for something other than mandatory revocation for a first conviction for driving while revoked for DUI because this is clearly provided for in W.Va.Code § 17B-4-3(c). In other words, to read W.Va.Code § 17B-3-6(a)(1) as urged by McKinney would be to find that the Legislature enacted a completely redundant statutory provision. This we decline to do.
McKinney next avers that W.Va.Code § 17B-4-3(c) shows a legislative intent to authorize a license suspension only upon the second or subsequent conviction for driving while revoked for administrative reasons. Although this may be true, McKinney ignores the fact that his license was not suspended because of his conviction for driving while suspended or revoked for administrative reasons but because the Division had sufficient evidence that he drove while revoked for DUI. For this same reason, we reject McKinney’s argument that it would be irrational to presume that the Legislature intended to lessen the penalty for driving while suspended for administrative reasons under § 17B-4-3(c) while retaining the more severe penalty for the same offense in § 17B-3-6(a)(l). Again, McKinney received a “more severe” penalty under § 17B-3-6(a)(1) for driving while revoked for DUI and not for driving while revoked for administrative reasons.
In addition, McKinney contends that to apply § 17B-3-6(a)(l), as the Division did herein, renders the code section inconsistent with § 17B-4-3(c). This is incorrect. West Virginia Code § 17B-4-3(c) applies in cases where a person is convicted of driving while suspended or revoked for administrative reasons and the Division does not have sufficient evidence that he or she committed an offense for which mandatory revocation of a driver’s license is required upon conviction. On the other hand, W.Va.Code § 17B-3-6(a)(1) applies where there is sufficient evidence that a person committed an offense for which mandatory revocation of a driver’s license is required upon conviction regardless of the offense for which that person is actually convicted. There simply is no conflict between the two code sections.
Finally, we are confident that our holding in this case is consistent not only with the clear statutory language of W.Va. Code § 17B-3-6(a)(l) but also with the Legislature’s intention in enacting the license revocation statutes. The purpose of this State’s administrative driver’s license revocation procedures is to protect innocent persons by removing intoxicated drivers from the public roadways as quickly as possible. This Court recently reiterated in State ex rel. Stump v. Johnson, 217 W.Va. 733, 743, 619 S.E.2d 246, 256 (2005) the fact that'“the administrative driver’s license revocation procedures of the Commissioner are meant to protect the public from persons who drive under the influence of alcohol.” Citing Stalnaker v. Roberts, 168 W.Va. 593, 599, 287 S.E.2d 166, 169 (1981) (finding “[t]he.intent of the West Virginia traffic laws which provide that the commissioner of motor vehicles revoke the licenses of dangerous drivers is protection for the innocent public”); State ex rel. Ruddlesden v. Roberts, 175 W.Va. 161, 164, 332 S.E.2d 122, 126 (1985) (recognizing “[t]he drunk driving laws of this State are hardly remedial in nature. They are regulatory and protective, designed to remove violat[or]s from the public highways as quickly as possible”); Shell v. Bechtold, 175 W.Va. 792, 796, 338 S.E.2d 393, 396 (1985) (stating “[t]he purpose of the administrative sanction of license revocation is the removal of persons under the influence of alcohol and. other intoxicants from our highways ... The revocation provisions are not penal in nature ... and should be read in accord with the general intent of our traffic laws to protect the innocent public”) (internal citations omitted); Johnson v. Commissioner, 178 W.Va. 675, 677, 363 S.E.2d 752, 754 (1987) (indicating that “[t]he administrative sanction of license revocation is intended to protect the public from persons who drive under the influence of alcohol”); and State ex rel. Hall v. Schlaegel, 202 W.Va. 93, 97, 502 S.E.2d 190, 194 (1998) (opining that “[t]he purpose of the administrative sanction of license revocation, as we stated in Shell v. Bechtold, 175 W.Va. 792, 338 S.E.2d 393 (1985), ‘is the removal of persons who drive under the influence of alcohol and other intoxicants from our highways.’ Id. at 796, 338 S.E.2d at 396. This objective of removing substance-affected drivers from our. roads in the interest of promoting safety and saving lives is consistent. ‘with the general intent of our traffic laws to protect the innocent public’ ”).
We believe that the purpose of speedily removing intoxicated drivers from our public roadways would be greatly frustrated if the Division’s revocation powers were totally dependent on the discretion of local prosecutors in choosing how to charge drunk drivers and whether to accept pleas to lesser charges — a discretion based primarily on the exigencies of the criminal justice system, not the protection of innocent drivers. While this Court understands the concern that our holding herein will interfere with the ability of prosecutors to dispose of drunk driving cases with plea bargains, thus potentially overloading trial court dockets, we deem this concern subordinate to our duty to apply statutory law as the Legislature plainly intended. We also believe this concern to be subordinate to the substantial legislative policy of protecting innocent persons from dangerous drunk drivers.
IV.
CONCLUSION
For the reasons set forth above, we conclude that the Division had the authority, under W.Va.Code § 17B-3-6(a)(l), to revoke McKinney’s driver’s license for driving while revoked for DUI. Accordingly, the November 17, 2004, order of the Circuit Court of Raleigh County reversing the Division’s administrative driver’s license revocation is reversed.
Reversed.
. When McKinney was charged with driving while revoked for DUI, the 1999 version of W.Va. Code § 17B-4-3 was in effect. The 2004 amendment to this code section did not alter the language relevant to this appeal. Therefore, we cite to the 2004 version.
. Specifically, the Division had received McKinney’s uniform traffic citation and the abstract of judgment for driving while revoked for administrative reasons.
. We also find no merit in McKinney's contention that W.Va.Code § 17B-4-3(c), which McKinney alleges is the "more specific statute," should control over W.Va.Code § 17B-3-6(a)(1), which he alleges is the "more general” statute. As we discussed above, the code sections are not in conflict.
. In State ex rel. Stump v. Johnson, this Court held in Syllabus Point 3,
Neither a prosecuting attorney, law eriforcement officer nor any other person has the authority to enter into an agreement that would prevent the Commissioner of the West Virginia Department of Motor Vehicles from carrying out his or her legislative responsibilities or to prevent or impede a law enforcement officer from presenting evidence of the arrest in the Commissioner's license revocation administrative hearing. | [
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PER CURIAM:
These consolidated cases are before this Court upon appeal from final orders of the Circuit Court of Mineral County entered on September 12, 1995, and October 4, 1995. The appellants, Darnell A. Allen, Jr., and Charlton A. Horton, Jr., were convicted in separate trials of the offense of murder in the first degree without a recommendation of mercy. On appeal, the appellants challenge the circuit court’s denial of their motions to suppress certain evidence and motions for a change of venue. The appellants also contend that the circuit court erred when it admitted into evidence a video of the crime scene. Finally, appellants assign several errors to their individual trials.
This court has before it the petitions for appeal, all matters of record, and the briefs and argument of counsel. For the reasons discussed below, appellants’ convictions are affirmed.
I.
Arthur Samuel Smith, Jr., was beaten to death with a blunt instrument during the early morning hours of January 8, 1994, in Keyser, West Virginia. The police were called to the crime scene around 2:20 a.m. by Robert Martin who witnessed the crime when he looked out the upstairs window of his apartment. Mr. Martin saw two black men in dark bulky coats striking something on the ground with a stick or club near the Lighthouse Assembly of God Church on Virginia Street. When the police arrived, they discovered Mr. Smith’s body.
The appellants were taken to the police station for questioning shortly after the crime occurred. They were spotted in the area where the crime had been reported, and they matched the description of the suspects given by the eyewitness. At the station, the appellants gave conflicting statements about where they had been that evening just prior to the crime. After the police found a small piece of body tissue on appellant Allen’s cap and a blood stain on appellant Horton’s boots, they were arrested and charged with murder.
The appellants were tried separately in August 1995. At both trials, Aaron Delsig-nore testified that appellant Allen had asked him on the night of January 7, 1994, to borrow a baseball bat that Mr. Delsignore kept in his car. Mr. Delsignore told appellant Allen he could use the bat, and he noticed it was missing the next day. The evidence also revealed that a few months prior to the crime, appellant Allen had made threats against Mr. Smith because Mr. Smith had kissed appellant Allen’s teenage sister on the cheek giving her a rash. Appellant Allen was convicted on August 10,1995, and appellant Horton was convicted on August 25, 1995. The appellants were given life sentences without mercy as reflected in the final orders.
II.
We begin our review by considering those assignments of error raised by both appellants. As their primary assignment of error, both appellants contend that the circuit court should have suppressed as evidence their clothing, the results of the DNA blood tests therefrom, and the oral statements they made to the police officers because their rights under the Fourth and Fifth Amendments of the United States Constitution and Sections 5, 6, and 10 of Article III, of the West Virginia Constitution were violated. The appellants essentially argue that then-prolonged detention constituted an illegal seizure thereby rendering the evidence obtained during that time inadmissable. Appellants also contend that the evidence was inadmissable because their clothing was taken without their consent and their oral statements to the police were not voluntary.
We first note our standard of review relating to a motion to suppress. In Syllabus Point 1 of State v. Lacy, 196 W.Va. 104, 468 S.E.2d 719 (1996), we stated:
When reviewing a ruling on a motion to suppress, an appellant 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.
In Syllabus Point 2 of Lacy, we further advised:
In contrast to a review of the circuit court’s factual findings, the ultimate determination as to whether a search or seizure was reasonable under the Fourth Amendment to the United States Constitution and Section 6 of Article III of the West Virgi nia Constitution is a question of law that is reviewed de novo. Similarly, an appellate court reviews de novo whether a search warrant was too broad. Thus, a circuit court’s denial of a motion to suppress evidence will be affirmed unless it is unsupported by substantial evidence, based on an erroneous interpretation of law, or, based on the entire record, it is clear that a mistake has been made.
We begin our analysis by reviewing the events as they unfolded on the night of January 8, 1994. Initially, the appellants were stopped by Lieutenant William Roy of the Keyser city police as he was on his way to the crime scene. The officer noticed the appellants walking away from the area where the crime had been reported. Because the appellants matched the description of the suspects related by the radio dispatcher, Lieutenant Roy stopped them and asked them where they had been. The appellants told the officer that they had been at appellant Horton’s father’s house, and they were going to a friend’s house on Main Street. With this explanation, Lieutenant Roy told the appellants to go ahead, and he returned to his car. A few minutes later, Lieutenant Roy received a message from one of the officers at the crime scene requesting him to find the appellants for questioning. According to Lieutenant Roy, he found the appellants the second time on Main Street and asked them to come to the station for questioning regarding an altercation. According to Lieutenant Roy, the appellants voluntarily agreed to come to the station, and they got in the backseat of his police car. Upon arrival at the police station, Lieutenant Roy placed the appellants in separate rooms and read them their Miranda rights. Each signed a waiver form at that time. The appellants then waited approximately three hours for the investigating officers to return from the crime scene.
As support for their contention that they were illegally seized, appellants rely upon our holding in Syllabus Point 2 of State v. Jones, 193 W.Va. 378, 456 S.E.2d 459 (1995), wherein, we stated:
If the police merely question a suspect on the street without detaining him against his will, Section 6 of Article III of the West Virginia Constitution is not implicated and no justification for the officer’s conduct need be shown. At the point where a reasonable person believes he is being detained and is not free to leave, then a stop has occurred and Section 6 of Article III is triggered, requiring that the officer have reasonable suspicion that criminal activity is afoot. If the nature and duration of the detention arises to the level of a full-scale arrest or its equivalent, probable cause must be shown. Thus, the police cannot seize an individual, take him involuntarily to a police station, and detain him for interrogation purposes while lacking probable cause to make an arrest.
Appellants assert that similar to the defendant in Jones, they were taken into custody without probable cause.
Clearly, Lieutenant Roy’s initial stop of the appellants was permissible. Thus, our focus is on the subsequent alleged detention of the appellants at the police station. In order for the police to take a suspect to the station for questioning, they must have either probable cause or consent. Jones, 193 W.Va. at 385, 456 S.E.2d at 466. The pivotal factor in Jones was the fact that the defendant was transported to the police station without his consent. Id. That factor is absent in this case. Here, the appellants voluntarily agreed to go to the police station with Lieutenant Roy. Moreover, unlike the defendant in Jones, the appellants were read their Miranda rights once they arrived at the station. In addition, the appellants were not interrogated during the time that they were waiting for the investigative officers to return, nor were they restrained. Instead, they merely waited for the officers to return. Accordingly, we do not find that a seizure occurred in this case.
Having determined that no impermissible seizure occurred, we next consider whether appellants’ clothing was obtained without their consent. We have held that:
Whether a consent to search is in fact voluntary or is the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.
Syllabus Point 8, State v. Craft, 165 W.Va. 741, 272 S.E.2d 46 (1980). See also Syllabus Point 2, State v. Buzzard, 194 W.Va. 544, 461 S.E.2d 50, (1995); Syllabus Point 4, State v. Worley, 179 W.Va. 403, 369 S.E.2d 706 (1988), cert. denied, 488 U.S. 895, 109 S.Ct. 236,102 L.Ed.2d 226 (1988).
Lieutenant Roy related how he obtained the appellants’ clothing at the appellant’s joint suppression hearing. He testified, “I told them I need to take their clothes, the officers needed them for evidence, did they have any objections to that ... I requested [the clothes] and got them with no, no problem.” Apparently, the appellants had been at the police station for approximately forty-five minutes when the investigating officers at the crime scene radioed the station and asked Lieutenant Roy to see if he could obtain their clothing. Lieutenant Roy explained that when he made the request, the appellants were concerned about what they would wear if they gave up their clothes. He told them that he would bring them some orange jumpsuits from the detention center. Lieutenant Roy testified that it took about another forty-five minutes to get the uniforms. He then went back into the rooms where the appellants were, and the clothing exchange was made. Lieutenant Roy stated that neither appellant indicated in any way that he did not want to give up his clothing. In fact, one of the appellant’s was wearing a necklace or bracelet, and he asked if it was needed too. Lieutenant Roy advised that he needed that item also because it was a part of the clothing. He said the appellant expressed no problem with giving up his necklace or bracelet.
Appellants contend that this is not a case of consent, but an instance where the accused merely submitted or acquiesced to the authority of the police officer. In such instances, the results of the search would be suppressed. See Syllabus Point 1, State v. Williams, 162 W.Va. 309, 249 S.E.2d 758 (1978). We disagree with appellants’ characterization of the situation. Unlike the defendant in Williams , the appellants in this case were not subjected to any interrogation prior to the request for their clothing or during the time they, waited on the jumpsuits. According to the record, a period of at least forty-five minutes elapsed between the time that Lieutenant Roy initially requested their clothing and the time he obtained the jumpsuits and the appellants changed clothes. The appellants had considerable time to think about whether they wanted to give the officer their clothing. Yet, neither expressed any unwillingness to do so. In fact, one of them asked whether he needed to take off his necklace too. Based upon these facts and considering the totality of the circumstances, we find that the appellants voluntarily relinquished their clothing to Lieutenant Roy.
We next consider the admissibility of the appellants’ oral statements. Appellants contend that their statements were involuntary because they were not informed that the officers were investigating a homicide. Thus, the issue here is not whether the defendants waived their Miranda rights, but whether their statements were the product of mental coercion. In Syllabus Point 2 of State v. Goff, 169 W.Va. 778, 289 S.E.2d 473 (1982), we held: “A confession that has been found to be involuntary in the sense that it was not the product of the freewill of the defendant cannot be used by the State for any purpose at trial.” In order to determine the voluntariness of the confession, we consider the totality of the circumstances surrounding the statement including the background, experience, and conduct of the accused. State v. Persinger, 169 W.Va. 121, 129, 286 S.E.2d 261, 267 (1982). We have also stated that in some instances, failure to inform an accused of the nature of the charge against him may be one factor to consider when determining whether a statement is voluntary. Goff, 169 W. Va. at 784, 289 S.E.2d at 477.
At the suppression hearing, it was undisputed that the officers did not inform the appellants that the victim was deceased. However, the appellants were told that the officers were investigating an assault. The appellants also knew from conversations with Lieutenant Roy that the assault had happened recently on Virginia Street. Prior to talking with the officers, the appellants went voluntarily to the police station and willingly gave their clothing to Lieutenant Roy. The appellants had also been read their Miranda rights, and they signed waivers. Additionally, the record suggests that this was not the first time appellants had been subject to police questioning. After considering the totality of the circumstances, we cannot find the fact that appellants were not informed of the exact charge against them sufficient to render their statements involuntary. Accordingly, the circuit court did not err in denying appellants’ motions to suppress.
Appellants next cite as error the circuit court’s refusal to grant their requests for a change of venue. Both appellants asserted pre-trial publicity as the grounds for their motions. On appeal, appellant Horton claims his case is unique because his trial began just eleven days after appellant Allen’s trial concluded. He contends that appellant Allen’s conviction was highly publicized in Mineral County, and at least fifteen of the potential jurors were aware of the Allen trial and its outcome.
We review motions for a change of venue under an abuse of discretion standard considering both the pre-trial showing and the actual voir dire of the jury. State v. Derr, 192 W.Va. 165, 171, 451 S.E.2d 731, 737 (1994). We have long since held that:
To warrant a change of venue in a criminal case, there be must a showing of good cause therefor, the burden of which rests upon defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused.
Syllabus Point 2, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946). See also Syllabus Point 6, State v. Satterfield, 193 W.Va. 503, 457 S.E.2d 440 (1995); Syllabus Point 5, State v. Plumley, 181 W.Va. 685, 384 S.E.2d 130 (1989). Additionally, in Syllabus Point 3 of Derr, we stated: “One of the inquiries on a motion for a change of venue should not be whether the community remembered or heard the facts of the case, but whether the jurors had such fixed opinion that they could not judge impartially the guilt or innocence of the defendant.”
The record indicates that the appellants’ motions for change of venue were first considered by the circuit court in a joint pretrial hearing. At that time, the appellants presented several newspaper articles detailing the crime. The appellants also offered the results of a change of venue study completed by a research group on behalf of appellant Horton. The study was completed by calling three hundred residents of Mineral County and requesting that they complete a telephone survey which included questions to determine whether the individuals knew about the crime and exhibited biases against appellant Horton. Although the research group recommended moving the trial, the study’s results did indicate that out of the three hundred persons polled, one hundred forty-four persons (forty-eight percent) were potentially unbiased jurors. Based on these facts, the circuit court denied the motions, but did suggest that sixty to seventy-five prospective jurors be called.
The jury voir dire from appellant Horton’s trial indicates that several potential jurors were aware of the crime and the outcome of appellant Allen’s trial. The court conducted individual voir dire of each prospective juror to ascertain exactly what each person knew about the case. In the instances where a prospective juror was aware of appellant Allen’s trial and/or conviction, the individual was asked whether that knowledge would prevent him or her from being objective in considering appellant Horton’s case.
Based on the record, we find that the trial court did not abuse its discretion in denying appellants a change of venue. Although the results of the venue study indicated that some members of the community may have already formed opinions about the appellants’ guilt, the results also projected that almost half the county’s population remained unbiased. Moreover, the jury voir dire from appellant Horton’s trial revealed that although some of the prospective jurors had heard or read about appellant Allen’s case, they did not have fixed opinions which would prevent them from being impartial. Accordingly, the circuit court did not err in denying appellants a change of venue.
Appellants also contend that the circuit court erred in admitting a video of the crime scene which was taken by the police shortly after the victim’s body was discovered. Appellants assert that the video should have been excluded pursuant to Rule 403 of the West Virginia Rules of Evidence because of its “gruesome” content. The video showed the area where the homicide occurred as well as footage of the victim’s body. The record indicates that the video was edited by the trial judge at the request of both the State and counsel for the appellants. The edited version was objected to on the grounds that footage of the victim’s body that remained in the edited version would inflame the jury.
In Syllabus Point 8 of Derr, we held that “[t]he admissibility of photographs over a gruesome objection must be determined on a case by case basis pursuant to Rules 401 through 403 of the West Virginia Rules of Evidence.” In Syllabus Point 10 of Derr, we stated:
Rule 401 of the West Virginia Rules of Evidence requires the trial court to determine the relevancy of the exhibit on the basis of whether the photograph is proba-tivé as to a fact of consequence in the case. The trial court then must consider whether the probative value of the exhibit is substantially outweighed by the counterfactors listed in Rule 403 of the West Virginia Rules of Evidence. As to the balancing under Rule 403, the trial court enjoys broad discretion. The Rule 403 balancing test is essentially a matter of trial conduct, and the trial court’s discretion will not be overturned absent a showing of clear abuse.
The record indicates that after appellant Allen objected to the edited version of the videotape, the trial court then performed the requisite Rule 403 balancing test. The trial court found that the video was relevant because it showed what the lighting was like on the night of the crime. The video was probative to the extent that it allowed the jury to evaluate the ability of the sole eyewitness to view the crime. The court noted that although the jurors were taken to view the scene in person, the video allowed them to see the area as it was on that night of the crime. The court further noted that it excised much of the footage showing the victim’s body. After viewing the tape, we find that the trial court did not abuse its discretion and therefore, did not err in admitting the video.
We now consider those assignments of error that relate to the individual trials of each appellant. Appellant Allen assigns as error the circuit court’s admission of testimony under Rule 404(b) of the West Virginia Rules of Evidence to show plan, premeditation, and motive. At trial, Rebecca Blacks, a neighbor of the victim, testified that sometime during the fall of 1993, she observed appellant Allen standing near the victim’s back porch with something hidden under his coat. Ms. Blacks stated that approximately a month later, she observed appellant Allen in the same area and this time she could see a baseball bat under his coat. Ms. Blacks also testified that she spoke with appellant Allen after the incident, and he stated he was looking for Mr. Smith. According to Ms. Blacks, appellant Alien was upset because Mr. Smith had kissed his sister and given her a rash.
David Harrison testified that he was at Ms. Blacks’ apartment the second time that she observed appellant Allen outside of Mr. Smith’s apartment. Mr. Harrison stated that he watched as appellant left the area and removed a baseball bat from under his coat before getting into a ear. Mr. Harrison also testified that he was at a party where appellant Allen said he was “going to get” Mr. Smith.
Appellant Allen contends that the offered testimony should have been excluded because its probative value was suspect, the alleged events were too remote in time, and undue prejudice resulted. In addition, no cautionary instructions were offered to the jury to limit its consideration of the evidence. In State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994), we set forth the parameters of Rule 404(b) . In syllabus point 1, of McGinnis, we held:
When offered evidence under Rule 404(b) of the West Virginia Rules of Evidence, the prosecution is required to identify the specific purpose for which the evidence is being offered and the jury must be instructed to limit its consideration of the evidence to only that purpose. It is not sufficient for the prosecution or the trial court merely to cite or mention the litany of possible uses listed in 404(b). The specific and precise purpose for which the evidence is offered must clearly be shown from the record and the purpose alone must be told to the jury in the trial court’s instruction.
In syllabus point 2, we further held:
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.
The record shows that the trial court held an in camera hearing prior to appellant’s trial at which time it considered the admissibility of the testimony of Ms. Blacks and Mr. Harrison. The court determined that the events were not too remote in time to be considered as the witnesses testified that they probably occurred in November or December 1993, and the victim was killed in January 1994. The court also found by a preponderance of the evidence that the appellant committed the acts observed by Ms. Blacks and Mr. Harrison. Thus, we find no error with the court’s determination that the evidence was admissible under Rule 404(b). Although the trial court failed to give the jury cautionary instructions, that omission does not warrant reversible error in this case. The record indicates that the appellant never requested cautionary instructions on this issue at any time during the trial. Additionally, it appears that the prosecution argued in its closing statement that the testimony of Ms. Blacks and Mr. Harrison showed premeditation, plan and motive on the part of the appellant. Accordingly, we find that the circuit court did not err in admitting the testimony.
We now consider those assignments of error relating to appellant Horton’s trial. Appellant Horton contends that the circuit court erred in admitting appellant Allen’s statement into evidence and allowing appellant Allen to appear before the jury and invoke his Fifth Amendment right to remain silent. Initially, the circuit court ruled that appellant Allen’s statement to the police would not be admissible at appellant Horton’s trial. However, during his opening statement, appellant Horton’s counsel informed the jury that appellant Horton had given an oral statement to the police which was “profoundly different” than the statement given by appellant Allen. Subsequently, the circuit court granted the State’s renewed motion to admit appellant Allen’s statement.
Appellant Horton argues that pursuant to our decision in State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995), appellant Allen’s statement should not have been admitted because the Sixth Amendment of the United States Constitution and Section 14 of Article III of the West Virginia Constitution guarantees an accused the right to confront and cross-examine witnesses. In this case, appellant Allen’s statement was introduced to show that the appellants gave conflicting stories to the police officers about their whereabouts around the time the crime was committed. Clearly, the statement was not offered for the truth of the matter asserted. In Mason, we recognized that statements presented in this context do not implicate the Confrontation Clause. 194 W.Va. at 228 n. 8, 460 S.E.2d at 43 n. 8.
With regard to the circuit court permitting appellant Allen to assert his right to remain silent on the witness stand, the record indicates that defense counsel did not object to him appearing before the jury. Moreover, when the court informed the parties that it was going to instruct the-jury that Mr. Allen’s exercise of his constitutional rights was not evidence and no inferences as to the guilt or innocence of the defendant could be drawn therefrom, appellant Horton objected. Appellant Horton told the court that he wanted the jury to draw some inferences from Mr. Allen’s failure to testify. Despite appellant’s objection, the court gave the instruction to the jury. Accordingly, we find no merit to either of these assignments of error.
Finally, appellant Horton cites as error: (1) comments made by the prosecutor during his opening statement and closing argument; (2) the admission of testimony indicating that he was seen prior to the crime throwing snowballs at a policeman; and (3) the failure of the circuit court to ensure a proper “elements” instruction on the offense charged and a proper “inference” instruction regarding a deadly weapon. Upon review of the record, we find that these assignments of error are not properly before this Court because of appellant’s failure to properly and timely object. In Syllabus Point 7 of State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526 (1956), we held: “Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court.” See also Syllabus Point 4, State v. Justice, 191 W.Va. 261, 445 S.E.2d 202 (1994). Because these assertions do not rise to the level of plain error, we decline to consider them. See Syllabus Point 4, State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988).
Based upon all of the above, the final orders of the Circuit Court of Mineral County are 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).
. These cases were originally presented to this Court as separate appeals. On October 9, 1997, we consolidated the cases for purposes of oral argument and decision.
. The murder weapon was never found.
. Lieutenant Roy was unaware that a homicide had occurred. In fact, it appears that Lieutenant Roy never learned that the officers at the scene were investigating a homicide until they returned to the station around 5:30 a.m.
. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
.Lieutenant Roy testified that he never even got out of the car when he approached the appellants the second time. He said that after he asked the appellants, to answer some questions at the station, they agreed, and opened the car doors and got in the back seat.
.As previously noted. Lieutenant Roy was not aware that the officers at the crime scene were investigating a homicide. He had only been told about an assault. As discussed in more detail below, the appellants did have at least two conversations with Lieutenant Roy while they were waiting for the investigating officers. These conversations related to the appellants’ clothing. At the suppression hearing, Lieutenant Roy testified that the appellants were cooperative with him the entire time that he was involved in the case. The appellants did not testify at the suppression hearing, nor did they present any. evidence to contradict Lieutenant Roy’s testimony.
. Appellants place great emphasis on the fact that Lieutenant Roy testified that he would not have allowed the appellants to leave the station that night. We find this fact irrelevant because the record indicates that appellants never attempted to leave, nor were they told that they could not leave. See Jones, 193 W.Va. at 383 n. 8, 456 S.E.2d at 464 n. 8.
. In Williams, five police officers went to the defendant's home in the middle of the night and questioned him. The defendant then went to the station with the officers where he was treated as if he was under arrest and was asked to empty his pockets. 162 W.Va. at 316, 249 S.E.2d at 763 (1978).
. After completing their investigation at the crime scene. Officers Forrest Ellifritz and Karen Shoemaker returned to the police station. Appellants were read their Miranda rights again. The officers questioned the appellants separately going back and forth between the rooms. Appellant Allen told the officers that they had been at appellant Horton’s father’s house, and they had just left when they were stopped by Lieutenant Roy. Appellant Horton said they were not at his dad's house. He then said, "I didn’t kill no man and that’s all I’ve got to say.”
. We do note that appellant Horton refused to a sign a waiver after he was read his Miranda rights the second time. Nonetheless, he agreed to answer some questions for the officers.
. The following is an example of the individual jury voir dire conducted in appellant Horton’s case:
[Question by appellant’s counsel]: Have you read, or seen, or heard anything abouL this matter either from T. V., radio, or a newspaper?
[Answer by prospective juror]: That I have.
[Q]: And what form of media have you—
[A]: The newspaper. Cumberland paper.
[Q]: Okay. So you are aware that Mr. Allen was also charged with this same offense. Is that correct?
[A]: Yes.
[Q]: Are you are aware of the verdict that the jury rendered in that case?
[A]: I think I remember it. Yes.
[Q]: What is that?
[A]: I think it was first degree murder and it was with no mercy—
[Q]: Okay.
[A]: — I think.
[Q]: All right. Now the fact that a jury came back with that verdict in that case, you understand this case is a separate and different case altogether?
[A]: Yes sir.
[Q]: The evidence I tend to believe is different and the State may choose to believe it is otherwise. But nonetheless the evidence in this case will show, you are to base your verdict solely on the evidence that you hear in this particular case alone, nothing else?
[A]: Yes.
[Q]: Can you disregard the verdict in that case or do you think just because Mr. Allen has been convicted of first degree murder without mercy that Mr. Horton should also be convicted with, of that particular offense?
[A]: No.
[Q]: Okay. So you don’t, you wouldn’t feel compelled as a juror because of maybe the public sentiment here in Mineral County that because one was convicted of first degree murder without mercy that the other one should also be convicted of the same thing?
[A]: No.
[Q]: Okay. Do you think you could set aside everything you have read and heard about this case, and be a fair and impartial juror in this case, and base your verdict in this case solely upon the evidence that you will hear in this case?
[A]: Yes.
. W. Va. R. Evid. 1001(2) treats videotapes like photographs for evidentiary purposes. See also State v. Walker, 188 W.Va. 661, 670, 425 S.E.2d 616, 625 (1992).
. Ms. Blacks was unable to recall the specific date that she made these observations. She was certain that the events happened during the pro-football season, and she believed they occurred during November and December 1993.
. Rule 404(b) provides, in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she 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[.]
. Ms. Blacks and Mr. Harrison were defense witnesses at appellant Horton’s trial.
. Appellant Horton's counsel further stated, "Mr. Allen’s statement was, it wouldn’t matter if I told you the truth anyway. Mr. Horton’s statement was, I didn’t murder no man.” | [
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PER CURIAM:
Appellant Linda Mink (hereinafter “Appellant”) appeals an order of the Circuit Court of Nicholas County reducing the rehabilitative alimony granted by the family law master. The family law master had recommended that the Appellant’s former husband, James Mink (hereinafter “Appellee”), pay rehabilitative alimony of $1200 monthly for seven years, and the lower court reduced that amount to $1000 monthly for five years. The Appellant contends that the lower court erred in reducing the rehabilitative alimony without making findings necessary to modify the family law master’s recommendation. We reverse and remand for reinstatement of the rehabilitative alimony award previously granted.
I.
On May 5, 1995, the Appellee sought a divorce on the .grounds of irreconcilable differences after twenty-two years of marriage. The parties had one child, Brian, presently age fifteen. At the time of the divorce, the Appellee was forty-two years of age and earned approximately $50,000 to $60,000, including salary and commission, in his position with Auxier Welding. The Appellant was forty-three years of age and had worked outside the home for only brief periods of time. She was pursuing a behavioral science degree and was enrolled in two college classes at the time of the final hearing.
The family law master determined that an award of rehabilitative alimony was necessary to assist the Appellant in obtaining additional education and awarded the Appellant $1200 monthly in rehabilitative alimony for seven years. That award was based upon the family law master’s calculation of the additional income necessary for the educational advancement of the Appellant, and those considerations were specified in the family law master’s recommendation.
Upon review of the family law master’s decision, the lower court remarked that the award of alimony was unfair and reduced the award from $1200 monthly for seven years to $1000 monthly for five years. In the February 27, 1997, final order, the lower court failed to include findings of fact supporting that alteration or to articulate any of the grounds enumerated by statute setting forth the bases upon which a circuit court can modify a family law master’s recommendation. The Appellant appeals the reduction of rehabilitative alimony.
II.
The standard of review to be utilized by a circuit court in reviewing a family law master decision is founded upon the statutory guidance of West Virginia Code § 48A-4-20(c) (1993) and was explained as follows in syllabus point two of Pearson v. Pearson, 200 W.Va. 139, 488 S.E.2d 414 (1997): “ ‘A circuit court should review findings of fact made by a family law master only under a clearly erroneous standard, and it should review the application of law to the facts under an abuse of discretion standard.’ Syl. Pt. 1, Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995).” In syllabus point three of Pearson, we stated as follows:
“Under the clearly erroneous standard, if the findings of fact and the inferences drawn by a family law master are supported by substantial evidence, such findings and inferences may not be overturned even if a circuit court may be inclined to make different findings or draw contrary inferences.” Syl. Pt. 1, Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995).
In the syllabus of Feaster v. Feaster, 192 W.Va. 337, 452 S.E.2d 428 (1994), we noted:
“W.Va.Code, 48A-4-10(c) (1990), [now 48A-4-20(c) (1993) ] limits a circuit judge’s ability to overturn a family law master’s findings and conclusions unless they fall within one of the six enumerated statutory criteria contained in this section. Moreover, Rule 52(a) of the West Virginia Rules of Civil Procedure requires a circuit court which changes a family law master’s recommendation to make known its factual findings and conclusions of law.” Syllabus Point 1, Higginbotham v. Higginbotham, 189 W.Va. 519, 432 S.E.2d 789 (1993).
In syllabus point three of Molnar v. Molnar, 173 W.Va. 200, 314 S.E.2d 73 (1984) we explained:
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.
In syllabus point one of Molnar we observed that 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.”
We find that the lower court’s modification of the family law master’s recommended decision was improper and failed to satisfy the requirements of West Virginia Code § 48A-4-20(c). The lower court failed to enumerate sufficient evidence to support the reduction in rehabilitative alimony and failed to articulate adequate reasons for departure from the family law master’s order. We therefore reverse that decision and reinstate the rehabilitative alimony award designated in the family law master’s recommended decision.
Reversed and remanded with directions.
. Educational advancement is one of the sixteen factors enumerated in West Virginia Code § 48-2-16(b) (1993) which the court may consider when awarding alimony.
. During an October 4, 1996, hearing before the lower court, the court commented as follows: "I just think that the award of alimony was unfair.”
.West Virginia Code § 48A-4-20(c) was amended subsequent to the decision rendered by the lower court in this matter, and significant alterations in the standard of review were effected through that amendment. Based upon the time of the lower court's decision, however, those amendments are not applicable to this case. Pursuant to West Virginia Code § 48A-4-20(c) (1993), in effect at the time of the decision in the case sub judice, a circuit court could modify a family law master’s recommendation in the following manner:
(c) The circuit court shall examine the recommended order of the master, along with the findings and conclusions of the master, and may enter the recommended order, may recommit the case, with instructions, for further hearing before the master or may, in its discretion, enter an order upon different terms, as the ends of justice may require. The circuit court shall not follow the recommendation, findings and conclusions of a master found to be:
(1)Arbitrary, capricious, an abuse of discretion or otherwise not in conformance with the law;
(2) Contrary to constitutional right, power, privilege or immunity;
(3) In excess of statutory jurisdiction, authority or limitations or short of statutory right;
(4) Without observance of procedure required by law;
(5) Unsupported by substantial evidence; or
(6) Unwarranted by the facts. | [
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PER CURIAM:
This action is before this Court upon an appeal from the final order of the Circuit Court of Kanawha County, West Virginia, entered on April 25, 1997. Pursuant to that order, the circuit court granted summary judgment in favor of the appellee, the State of West Virginia by and through Attorney General Darrell V. McGraw, and against the appellant, Suarez Corporation Industries. Concluding that various direct mail marketing solicitations sent by Suarez to West Virginia consumers violated the West Virginia Consumer Credit and Protection Act and, particularly, the Prizes and Gifts Act (contained within the Consumer Credit and Protection Act), the circuit court ordered (1) that Suarez be permanently enjoined from committing such violations, (2) that a $500,000 civil penalty be assessed in the event Suarez fails to abide by the injunction order and (3) that Suarez engage in a consumer refund program under the supervision of a special commissioner.
This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. It should be noted that an earlier, temporary injunction in this matter was upheld by this Court in State By and Through Darrell V. McGraw, Jr., Attorney General, v. Imperial Marketing, 196 W.Va. 346, 472 S.E.2d 792, cert. denied, 519 U.S. 966, 117 S.Ct. 391, 136 L.Ed.2d 307 (1996). Upon a careful review of the record and for the reasons expressed herein, we now affirm the permanent injunction. However, this Court reverses the final order with regard to the $500,000 civil penalty. Furthermore, we direct the circuit court to enter an order modifying the consumer refund program.
I.
PROCEDURAL HISTORY
Suarez Corporation Industries, located in Canton, Ohio, and its affiliated enterprises are in the business of selling consumer goods, such as simulated jewelry, through the use of direct mail marketing solicitations. Many solicitations were sent by Suarez to West Virginia residents prior to the institution of this action in 1994. The litigation surrounding the solicitations has been tem pestuous to say the least and has resulted in the amassing of hundreds of pages of pleadings, exhibits and transcripts. The limited record currently before this Court, as designated by the parties, is quite voluminous.
Specifically, the Attorney General instituted this action in the Circuit Court of Kana-wha County against numerous defendants, including Suarez, alleging that the solicitation activities of the defendants constituted multiple transgressions of the West Virginia Consumer Credit and Protection Act and, particularly, the Prizes and Gifts Act contained therein. W.Va.Code, 46A-1-101 [1974], et seq. W.VcuCode, 46A-6D-1 [1992], et seq. As indicated in Imperial Marketing, supra, the mailings of Suarez were selected by the Attorney General as representative of the solicitations in question of all of the defendants. Ultimately, the litigation focused upon three specific marketing efforts of Suarez involving several thousand West Virginia consumers. The three solicitations, discussed below, included (1) the awarding to consumers of a 1-carat cubic zirconia diamond simulant and the related sale of a mounting for the stone, (2) the awarding of a cash prize to consumers and the related sale of a five-piece clutch purse ensemble and (3) the sale to consumers of a pair of crystal candle holders and a related bonus gift of a crystal heart-shaped dish.
On November 3, 1994, the circuit court awarded the Attorney General a temporary injunction restraining Suarez from violating the West Virginia Consumer Credit and Protection Act and the Prizes and Gifts Act. In particular, the circuit court enjoined Suarez from, inter alia, soliciting consumers in West Virginia with an offer “which denominates an item as a prize, gift, award, premium, or similar term that implies the item is free whether stated or represented in any way, when the intended recipient is required to spend any sum of money to make meaningful use of it.” In March 1996, this Court, in Imperial Marketing, upheld the temporary injunction.
The facts relating to the three solicitations in question are more specifically set forth in the Imperial Marketing opinion. With regard to the first solicitation, potential consumers were notified by Suarez that they had been awarded a free 1-carat cubic zirco-nia diamond simulant. The consumers were also told, however, that the stone had already been mounted in a necklace or ring which could be purchased for $19. If consumers desired the stone without purchasing the mounting, consumers were required to follow a convoluted claim procedure. With regard to the second solicitation, consumers were notified that they had been awarded a cash prize of “as much as $1,000.” The consumers were also told, however, that the prize had been placed in a five-piece clutch purse ensemble which could be purchased for $12, plus $2 for special packaging and insurance. The solicitation indicated that “priority handling” would be afforded to consumers purchasing the purse ensemble. If consumers desired the cash prize without purchasing the purse ensemble, consumers were required to follow a claim procedure similar to that concerning the diamond simulant. The third solicitation involved an offer to sell to consumers a pair of crystal candle holders for $19. As a bonus for the purchase, consumers were told that they would receive, as a gift, a crystal heart-shaped dish “worth over $15.” Enclosed with the solicitation was a check for a nominal amount to be returned by the consumer to Suarez to help cover the cost of shipping and handling with regard to the dish. Problematic, as to this third solicitation, was the ambiguity surrounding both the value of the bonus gift and the nature of the enclosed cheek.
In considering those solicitations, and in affirming the circuit court’s award of a temporary injunction, this Court, in Imperial Marketing, observed that the evidentiary standard for such relief in consumer protection cases is rather minimal. Focusing upon the Prizes and Gifts Act, this Court, in Imperial Marketing, stated that, in seeking temporary relief, “the Attorney General need not prove the respondent has in fact violated the [Prizes and Gifts Act], but only needs to make a minimal evidentiary showing of good reason to believe that the essential elements of a violation of the Act are in view.” 196 W.Va. at 352, 472 S.E.2d at 798. Suarez appealed this Court’s decision in Imperial Marketing to the United States Supreme Court. That Court, however, denied certio-rari in November 1996.
In the meantime, the Attorney General moved for summary judgment against Suarez. In the motion, the Attorney General indicated that a permanent injunction was warranted because the “undisputed conduct” of Suarez, as demonstrated by the solicitations, constituted violations of West Virginia law. In response, Suarez alleged that, inasmuch as discovery in the action was “not complete,” the motion of the Attorney General for summary judgment was premature. In addition, Suarez responded by filing a number of affidavits of its officers describing Suarez’s business practices concerning its direct mail marketing efforts and denying that any violations of West Virginia law occurred. Moreover, Suarez asserted that various dissatisfied consumers brought to the attention of the circuit court by the Attorney General had simply “misinterpreted the plain meaning of promotions they received.”
On December 13, 1996, the circuit court conducted a hearing upon the motion for summary judgment. Subsequently, on April 25, 1997, the circuit court entered the final order permanently enjoining Suarez from violating the West Virginia Consumer Credit and Protection Act and the Prizes and Gifts Act. In particular, the circuit court reaffirmed its previous findings concerning Suarez’s solicitations (with regard to the temporary injunction) and concluded that “the only reasonable inference” that could be drawn from Suarez’s practices was that deception constituted a material factor in consumer decisions to purchase the company’s offers. As the final order stated, the evidence established that the solicitations “were actually misleading by virtue of material misrepresentations made, and that they exceed acceptable standards and practices allowing a certain degree of puffing in respect to sales transactions.”
As reflected in the final order, in addition to the award of a permanent injunction, the circuit court assessed a $500,000 civil penalty against Suarez payable in the event Suarez were to fail to abide by the injunction order. See n. 8, supra. Moreover, as more specifically described below, the circuit court directed Suarez to engage in a consumer refund program under the supervision of a special commissioner.
This appeal followed.
II.
STANDARDS OF REVIEW
In Imperial Marketing, the issue before this Court was whether the circuit court had justification to conclude that the Attorney General had made the “minimal evidentiary showing” necessary for a temporary injunction. As we indicated in that decision, a temporary injunction could be awarded upon “reasonable cause.” 196 W.Va. at 352, 472 S.E.2d at 798. Since then, however, a permanent injunction has been awarded by the circuit court by way of summary judgment. Thus, in contrast to the “reasonable cause” standard, Rule 56 of the West Virginia Rules of Civil Procedure states that summary judgment is warranted where the record demon- states “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.” See generally, Lugar & Silverstein, West Virginia Rules of Civil Procedure, p. 426-42 (Michie I960).
Our standards of review concerning summary judgment are well settled. As this Court stated in syllabus point 3 of Aetna Casualty and Surety Co. v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963): “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.” See also, syl. pt. 1, Burdette v. Columbia Gas Transmission Corporation, 198 W.Va. 356, 480 S.E.2d 565 (1996); syl. pt. 2, Rose v. Oneida Coal Co., 195 W.Va. 726, 466 S.E.2d 794 (1995); Payne v. Weston, 195 W.Va. 502, 506, 466 S.E.2d 161, 165 (1995); syl. pt. 2, Graham v. Graham, 195 W.Va. 343, 465 S.E.2d 614 (1995). Moreover, we note that, upon appeal, the entry of a summary judgment is reviewed by this Court de novo. Syl. pt. 1, Koffler v. City of Huntington, 196 W.Va. 202, 469 S.E.2d 645 (1996); syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
In Weaver v. Ritchie, 197 W.Va. 690, 693, 478 S.E.2d 363, 366 (1996), this Court set forth the following a priori standard of review with regard to permanent injunctions: “In reviewing challenges to the findings and conclusions of the trial court, we apply a two-pronged deferential standard of review with the final order and ultimate disposition (granting of the permanent injunction) reviewed under an abuse of discretion standard, and the underlying factual findings under a clearly erroneous standard.”. See also, syl. pt. 1, G Corp, Inc. v. MackJo, Inc., 195 W.Va. 752, 466 S.E.2d 820 (1995). Here, as the final order indicates, the circuit court found as a matter of fact and law that the solicitations mailed by Suarez to West Virginia consumers violated the West Virginia Consumer Credit and Protection Act and the Prizes and Gifts Act. We review that order pursuant to the above standards.
III.
THE PERMANENT INJUNCTION
The West Virginia Consumer Credit and Protection Act is found in chapter 46A of the West Virginia Code. That Act includes the Prizes and Gifts Act found in W.Va.Code, 46A-6D-1 [1992], et seq. The award of the permanent injunction in this action was based upon the conclusion of the circuit court that Suarez’s solicitations violated the provisions of the Consumer Credit and Protection Act, generally, and the Prizes and Gifts Act, specifically. With regard to the latter Act, this Court observed in syllabus point 3 of Imperial Marketing: “The West Virginia Prizes and Gifts Act, W.Va.Code 46A-6D-1 to -10 (1992) was designed by the West Virginia Legislature to assist in protecting West Virginia citizens from being victimized by misleading and deceptive practices when a seller is attempting to market a product using a prize or gift as an inducement.”
The principal sections of the Prizes and Gifts Act involved in this action are W.Va. Code, 46A-6D-3 [1992], concerning the representation of having won a prize or gift, and W.Va.Code, 46A-6D-4 [1992], concerning the representation of eligibility to receive a prize or gift. As W.Va.Code, 46A-6D-3(a) [1992], concerning having won a prize or gift, provides in part:
[A] person may not, in connection with the sale or lease or solicitation for the sale or lease of goods, property or service, represent that another person has won anything of value or is the winner of a contest, unless all of the following conditions are met:
(1) The recipient of the prize, gift or item of value is given the prize, gift or item of value without obligation; and
(2) The prize, gift or item of value is delivered to the recipient at no expense to him or her, within ten days of the representation.
Moreover, as W.Va.Code, 46A-6D-4(a) [1992], concerning eligibility to receive a prize or gift, provides:
A person may not represent that another person is eligible or has a chance to win or to receive a prize, gift or item of value without clearly and conspicuously disclosing on whose behalf the contest or promotion is conducted, as well as all material conditions which a participant must satisfy. In an oral solicitation all material conditions shall be disclosed prior to requesting the consumer to enter into the sale or lease. Additionally, in any written material covered by this section, each of the following shall be clearly and prominently disclosed:
(1) Immediately adjacent to the first identification of the prize, gift or item of value to which it relates; or
(2) In a separate section entitled “Consumer Disclosure” which title shall be printed in no less than ten-point bold-face type and which section shall contain only a description of the prize, gift or item of value and the disclosures outlined in paragraphs (i), (ii) and (iii) of this subdivision:
(i) The true retail value of each item or prize;
(ii) The actual number of each item, gift or prize to be awarded; and
(iii) The odds of receiving each item, gift or prize.
As indicated above, the permanent injunction herein was awarded by way of summary judgment. Suarez contends that, because discovery in this action was incomplete, the circuit court acted precipitously in concluding that the solicitations violated the Prizes and Gifts Act. Thus, Suarez asserts that the circuit court committed error in not granting its request, made pursuant to Rule 56(f) of the West Virginia Rules of Civil Procedure, for further discovery. Moreover, Suarez asserts that the circuit court committed error in not concluding that the evidence of various officers of Suarez and consumers created a question of fact concerning whether the solicitations violated West Virginia law. Thus, according to Suarez, the circuit court committed error in granting the summary judgment. As discussed below, however, the assertions of Suarez in that regard are without merit.
As to Rule 56(f), this Court, in syllabus point 1 of Powderidge Unit Owners Association v. Highland Properties, Ltd., 196 W.Va. 692, 474 S.E.2d 872 (1996), held as follows:
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. When a departure from the rule occurs, it should be made in written form and in a timely manner. The statement must be made, if not by affidavit, in some authoritative manner by the party under penalty of perjury or by written representations of counsel. 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.
(emphasis added)
Here, with regard to discovery, the record indicates that, prior to the entry of summary judgment, the Attorney General permitted Suarez to extensively examine and copy the State’s files concerning the solicitations. Moreover, the individuals Suarez asserts it should have been allowed to depose prior to the entry of that judgment consisted largely of West Virginia consumers who testified and were cross-examined about the solicitations during the temporary injunction stage of the litigation. Thus, as the State asserts concerning those consumers, “the substance of their potential testimony [was] already known” by Suarez before the summary judgment was entered.
In addition, the affidavits of corporate officers submitted by Suarez in response to the motion for summary judgment indicated that, pursuant to Suarez’s marketing strategy, the solicitations sent to West Virginia consumers offering a free gift always provided the following alternatives: “[E]ither the recipient may request the free gift, without obligation, or, alternatively, the recipient may pay a fee for an enhanced product.” In that regard, we note that the affidavits simply emphasized the language actually employed in the solicitations, rather than extrinsic evidence.
More importantly, the discovery issue and the affidavits filed by Suarez notwithstanding, this Court is of the opinion, as we suggested in Imperial Marketing, that, in the circumstances of this action, the question of whether Suarez violated this State’s consumer protection law, and, particularly, the provisions of the Prizes and Gifts Act set forth above, depends upon the language of the solicitations themselves and not upon extrinsic evidence. Here, the circuit court properly determined that violations occurred, and the circuit court acted within its discretion in awarding the permanent injunction.
Although ostensibly requiring no purchase or obligation, the solicitations under consideration, while suggesting a certain mutability on the surface, possess a persistent deceptive quality beneath. As stated above, with regard to the first solicitation, West Virginia consumers were notified by Suarez that they had been awarded a free 1-carat cubic zireo-nia diamond simulant. The consumers were also told, however, that the stone had already been mounted in a necklace or ring which could be purchased for $19. If consumers desired the stone without purchasing the mounting, consumers were required to follow a convoluted claim procedure. See n. 5, supra. Thus, the violation of W.Va.Code, 46A-6D-3(a) [1992], i.e., that the recipient of a prize or gift must be given the prize or gift “without obligation” and that it be delivered to the recipient “at no expense,” is evidenced by the following language of the solicitation:
[T]his office can only award the 1-carat Lindenwold CZ Diamond, not the mounting. If you do not select a mounting, it may take up to 60 days to ship your prize. So, in order to patch up this confusion we are able to make this special arrangement for you: (this offer cannot be transferred):
1. First you need to look through the enclosed Showroom Selections and choose the beautiful mounting you like best.
2. Since the 1-carat Lindenwold CZ Diamond is already mounted it will cost the jeweler too much to remove the CZ Jewel. Therefore, they have agreed to allow you to select any showroom mounting and ship it to you. All they ask is that you cover the standard $19 Transfer Deposit.
Similarly, with regard to the second solicitation, consumers were notified that they had been awarded a cash prize of “as much as $1,000.” The consumers were also told, however, that the prize had been placed in a five-piece clutch purse ensemble which could be purchased for $12, plus $2 for special packaging and insurance. The solicitation indicated that “priority handling” would be afforded to consumers purchasing the purse ensemble. If consumers desired the cash prize without purchasing the purse ensemble, consumers were required to follow a claim procedure similar to that concerning the diamond simu-lant. See n. 6, supra. Thus, the violation of W.VaCode, 46A-6D-3(a) [1992], i.e., that the recipient of a prize or gift must be given the prize or gift “without obligation” and that it be delivered to the recipient “at no expense,” is evidenced by the following language of the clutch purse solicitation:
As a guaranteed cash prize winner, the 5 piece Givone Clutch Purse Ensemble holding your check will be transferred to you when you cover the sponsor’s special publicity discount fee of just $12, plus $2 for special packaging and insurance. * * * Remember, since the checks will already be in the purses, we are required by the sponsor’s rules to give priority handling to those who are able to accept entitlement to their purse by submitting the minimum fee.
Finally, as stated above, the third solicitation involved an offer to sell to consumers a pair of crystal candle holders for $19. As a bonus for the purchase, consumers were told that they would receive, as a gift, a crystal heart-shaped dish “worth over $15.” Enclosed with the solicitation was a check for a nominal amount to be returned by the consumer to Suarez to help cover the cost of shipping and handling with regard to the dish. The consumer’s eligibility to receive the heart-shaped dish as a bonus gift therefore brings into play the above provisions of W.Va.Code, 46A-6D-4(a) [1992], which require disclosure of “[t]he true retail value of each item or prize[.]” The statement in the solicitation that the dish was “worth over $15” did not comply with that statutory admonition. Moreover, whether the enclosed check for the nominal amount was a negotiable instrument or simply a simulated check was rendered ambiguous by the fact that the check was attached to an “Entitlement Form” which stated: “Do not detach [the check] — Return with order for free crystal heart box.” See, W.Va.Code, 46A-6D-6(a) [1992], which provides that, in connection with a consumer transaction, no person may issue any writing which simulates or resembles a check, unless the writing clearly and conspicuously discloses “its true value and purpose.”
During the course of this litigation, both the Attorney General and Suarez elicited the testimony of various consumers before the circuit court concerning the solicitations. Whereas the witnesses for the State indicated that the true import of the solicitations was difficult to grasp and that they had experienced a certain degree of bureaucratic hubris in their communications with Suarez, the witnesses called by Suarez suggested that the solicitations were quite clear and that their dealings with Suarez were satisfactory. The futility of that type of extrinsic evidence in cases of this nature, however, is evidenced by the fact that, during a one year period only, more than 17,000 West Virginia consumers received solicitations from Suarez or its affiliated enterprises. Rather, under the circumstances of this action, and in view of the solicitations described above, this Court is of the opinion that the testimony of the consumers failed to establish a genuine issue of material fact within the meaning of Rule 56. As the final order of April 25, 1997, stated: “It is irrelevant, however, that there are some West Virginia consumers who are satisfied with their merchandise. The issue is: whether defendant, in its solicitation efforts in West Virginia ... engaged in conduct which is calculated to or likely to, deceive and misrepresent the offer, and thereby violate [West Virginia law].” Indeed, in awarding the permanent injunction, the circuit court concluded that “the only reasonable inference” that could be drawn from Suarez’s practices was that deception constituted a material factor in consumer decisions to purchase the company’s offers. As the opinion in Imperial Marketing observes: “It is clear from this record that [Suarez’s] solicitations induce a consumer to purchase a product not necessarily with direct misrepresentations about a product, but with other misleading and deceptive practices which affect the consumer’s decision to buy.” 196 W.Va. at 357, 472 S.E.2d at 803. Thus, as syllabus point 7 of Imperial Marketing holds:
Under the West Virginia Prizes and Gifts Act, W.Va.Code, 46A-6D-1 to -10 (1992), once the circuit court makes a finding that deceptive practices are used to affect a consumer’s decision to purchase a product, then the circuit court is authorized, within the bounds of reason, to infer that the deception will constitute a material factor in a consumer’s decision to purchase the product.
Accordingly, upon all of the above, this Court holds that pursuant to the West Virginia Consumer Credit and Protection Act, W.Va.Code, 46A-1-101 [1974], et seq., and the Prizes and Gifts Act included therein, W.Va.Code, 46A-6D-1 [1992], et seq., the validity of direct mail marketing solicitations to West Virginia consumers must be resolved upon a ease by case basis; however, where the language of such a solicitation is, on its face, misleading, deceptive and calculated to unfairly induce consumers to purchase a product, then such solicitation is in contravention of those statutes as a matter of law, and a circuit court is authorized to determine, without resort to extrinsic evidence, that the West Virginia Consumer Credit and Protection Act and the Prizes and Gifts Act have been violated, and a circuit court is further authorized to award injunctive relief in order to restrain such misconduct.
Here, the nature of the solicitations in question and the determination by the circuit court that deception was “the only reasonable inference” arising therefrom lead this Court to the inexorable conclusion that summary judgment was proper. See Imperial Marketing, 196 W.Va. at 358, 472 S.E.2d at 804, citing Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), to the effect that “where the possibility of deception is self-evident, extrinsic evidence is not necessary for a finding that materials are misleading.” See also, Double Eagle Lubricants v. Federal Trade Commission, 360 F.2d 268, 270 (10th Cir.1965), indicating that evidence of actual deception is not necessary “where the exhibits themselves sufficiently demonstrate their capacity to deceive.”
Therefore, upon all of the above, the circuit court’s award of the permanent injunction was “protected by the parameters of sound discretion.” Parker v. Knowlton Construction Company, 158 W.Va. 314, 329, 210 S.E.2d 918, 927 (1975).
IV.
REMAINING ISSUES
As indicated above, the final order of April 25, 1997, enumerated a number of findings and conclusions with regard to the award of the permanent injunction. Those findings and conclusions were certainly sufficient for the circuit court to have based its determination upon that Suarez engaged in a course of repeated and willful violations pursuant to W.Va.Code, 46A-7-lll(2) [1974], However, the statute, upon such findings, provides for a civil penalty of no more than $5,000.
The reference to the penalty in the final order stated in its entirety: “A civil penalty of $500,000 pursuant to W.Va.Code, 46A-1-101, et seq. and W.Va.Code, 46A-6D-1, et seq. shall be imposed, and shall be suspended upon compliance with [the] terms of paragraphs A through I.” Paragraphs A through I of the final order listed the actions from which Suarez and its affiliated enterprises were permanently enjoined. See n. 8, supra. Although, as stated, payment of the penalty was contingent upon Suarez’s failure to abide by the permanent injunction order, nothing in the final order indicated by what manner the $500,000 amount was determined.
Consequently, the silence of the final order (and indeed of the record before us) with respect to how the amount of $500,000 was determined, particularly in light of the statutory limitation of $5,000, precludes any meaningful review of the penalty by this Court. In other words, the absence of any reasoning with respect to how the Court arrived at the $500,000 amount necessarily renders that amount arbitrary. Syl. pt. 4, Poole v. Berkeley County Planning Commission, 200 W.Va. 74, 488 S.E.2d 349 (1997); syl. pt. 2, Farm Family Mutual Insurance Company v. Bobo, 199 W.Va. 598, 486 S.E.2d 582 (1997); syl. pt. 3, Fayette County National Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997). Therefore, the $500,000 civil penalty against Suarez must be set aside.
The Attorney General argues persuasively that a maximum penalty of $5,000 in an action such as this one serves as very little deterrent to repeated violations of the West Virginia Consumer Credit and Protection Act and the Prizes and Gifts Act. While this Court must agree with that contention, we recognize that the amount of the civil penalty under W.Va.Code, 46A-7-lll(2) [1974] is more appropriately a matter to be addressed by the Legislature. As indicated above, under the circumstances of this action, we simply set the penalty aside.
The attorney general may bring a civil action against a creditor or other person to recover a civil penalty for willfully violating this chapter, and if the court finds that the defendant has engaged in a course of repeated and willful violations of this chapter, it may assess a civil penalty of no more than five thousand dollars.
Finally, the final order entered by the circuit court directed Suarez to engage in a consumer refund program under the supervision of a special commissioner. As the final order stated:
The Suarez Corporation shall offer refunds to consumers identified in the list within 30 days of the signing of this decree which shall inform consumers of the availability of the refunds and shall identify the amount spent by the consumer and shall identify the product purchased by the consumer.
a. The defendant shall not condition the refund on a return of the product.
b. Defendant shall send the consumer a check for the full amount of the refund within 30 days of receipt of the request for the refund.
Defendants shall bear all costs of the program herein, including mailing, printing and administration.
This Court shall appoint a proper and discreet attorney at law to serve as Special Commissioner to certify the entire process.
In September 1997, the special commissioner filed a report with the circuit court indicating that he had met with counsel for the parties and that certain notices to consumers concerning refunds and time-frames for the payment thereof were recommended. A review of the report remains pending in the circuit court.
According to Suarez, the refund program is unfair because it allows West Virginia consumers to request and obtain refunds without having to return the product purchased. In that regard, Suarez relies upon the provisions of W.Va.Code, 46A-7-111 [1974], which authorizes refunds to consumers for “excess charges.” The Attorney General, on the other hand, relies upon W.Va. Code, 46A-7-108 [1974], which states: “The attorney general may bring a civil action to restrain a person from violating this chapter and for other appropriate relief.” (emphasis added)
Upon a careful review of this matter, this Court is of the opinion that the assertion of unfairness by Suarez is without merit. Rather, we find compelling the reasoning of the Attorney General that the use of the phrase “other appropriate relief’ in W.Va. Code, 46A-7-108 [1974], “indicates that the legislature meant the full array of equitable relief to be available in suits brought by the Attorney General.” That principle is particularly persuasive where, as demonstrated by the record in this action, the value of the products remains ambiguous. The assertion of Suarez is further deprived of significance by the distinction that W.Va.Code, 46A-7-111(1) [1974], is primarily concerned with the excessive charging of consumers for products, whereas the Prizes and Gifts Act, W.Va. Code, 46A-6D-1 [1992], et seq, so central to this action, concerns the protection of consumers from “misleading and deceptive practices when a seller is attempting to market a product using a prize or gift as an inducement.” Syl. pt. 3, Imperial Marketing, supra.
On a final note, the refund program set forth in the order of April 25, 1997, states that Suarez shall offer refunds to consumers “identified in the list.” Presumably, as indicated by the special commissioner, the list referred to is the list generated pursuant to the September 1, 1994, order of the circuit court. The final order, however, is unclear in that respect and, upon remand of this action, should be modified to more particularly identify those West Virginia consumers entitled to request a refund.
Upon all of the above, the final order of the Circuit Court of Kanawha County, entered on April 25, 1997, is affirmed with regard to the award of the permanent injunction. The refund program set forth in the final order is also affirmed, subject to the modification described above. The final order is reversed, however, as to the $500,000 civil penalty, and the penalty is hereby set aside. Accordingly, this action is remanded to the circuit court for further proceedings.
Affirmed, in part, reversed, in part, and remanded with directions.
McCUSKEY, J., deeming himself disqualified, did not participate in the decision in this case.
POX, Judge, sitting by temporary assignment.
. 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 amicus curiae brief has been received by this Court from the American Association of Retired Persons. In addition, an amicus curiae brief has been received from the North Central West Virginia Legal Aid Society.
. The action instituted by the Attorney General primarily sought injunctive relief against the defendants to restrain them from violating the Consumer Credit and Protection Act and the Prizes and Gifts Act. As W.Va.Code, 46A-7-108 [1974], provides: "The attorney general may bring a civil action to restrain a person from violating this chapter and for other appropriate relief.” In addition, however, the Attorney General sought (1) civil penalties, (2) restitution on behalf of West Virginia consumers, (3) damages on behalf of West Virginia consumers, including punitive damages, (4) litigation costs and (5) attorney fees. Moreover, the Attorney General alleged: "The relevant time period for the causes of action alleged in this Complaint is from at least four years prior to the filing of this Complaint, and includes the present and fulure[.]” As W.Va. Code, 46A-7-lll(2) [1974], for example, states in part: "No civil penalty pursuant to this subsection may be imposed for violations of this chapter occurring more than four years before the action is brought.”
4. The authority of the Attorney General to seek temporary relief in the context of consumer protection is found in W.Va.Code, 46A-7-110 [1974], which states: "With respect to an action brought to enjoin violations of this chapter or unconscionable agreements or fraudulent or unconscionable conduct, the attorney general may apply to the court for appropriate temporary relief against a respondent, pending final determination of the proceedings."
.Exhibit no. 3, submitted to the circuit court by Suarez, included the following instructions for claiming the diamond simulant without the $19 mounting:
If you are not ordering: to only claim your unmounted CZ Diamond Simulant prize from the Finalist Drawing and confirm your entry in the Winners and Final Drawing, affix the Security Insurance Shipping Label from the Winners Certification Claim Form over your name and address on the Official Prize Claim Notice. Write in "PRJ78A” below the label to insure the proper prize is shipped to you. Completely fill out the Official Prizewinners Release Form (Form 201) and sign it where indicated. (Grace period: an additional 23 days is allotted for receipt of prize claims and/or mounting selections.) Mail your completed Official Prizewinners Release in a plain white #10 envel ope (Do not use the enclosed return envelope.) to: Sweepstakes Claims Processing Center.... Improperly completed entries will be disqualified.
As this Court observed in Imperial Marketing, this cumbersome process was in contrast to the simplified method of purchasing a mounted stone. 196 W.Va. at 353 n. 11, 472 S.E.2d at 799 n. 11.
. The record contains the following instructions for claiming the cash prize without purchasing the five-piece clutch purse ensemble:
If not ordering and to claim your cash prize only, cut out and affix the prize confirmation code located on the front [of] the Declaration of Cash Prize form to a 3-1/2 x 5-1/2 inch index card with your name, address and phone number and insert all into your own #10 white envelope. Failure to follow these instructions will cause forfeiture of your cash prize. Mail to Bulk-Sort Center ... to claim your cash prize. Do not use the enclosed envelope that is for ordering only, or your cash prize and status as an eligible finalist will be waived. Since we will be required to remove your check from the purse if not ordering, we are required to give priority handling to those who accept the purse.
The record indicates that in almost no circumstances did the cash prize exceed a nominal amount.
. As the parties suggest, the motion filed by the Attorney General may more accurately be described as a motion for partial summary judgment. Specifically, the final order of April 25, 1997, granting the motion concerned the award of a permanent injunction, the $500,000 civil penalty and the consumer refund program. The order did not resolve questions concerning consumer- damages (including punitive damages), litigation costs and attorney fees. See n. 3, supra. We observe, nevertheless, that the order of April 25, 1997, is appealable to this Court because it "approximates a final order in its nature and effect.” Syl. pt. 2, Durm v. Heck’s, Inc., 184 W.Va. 562, 401 S.E.2d 908 (1991).
. The final order slated that Suarez and its affiliated enterprises were permanently enjoined from the following:
A. Soliciting consumers in West Virginia with an offer which denominates an item as a prize, gift, award, premium, or similar term that implies the item is free, whether stated or represented in any way, when the intended recipient is required to spend any sum of money to make meaningful use of it.
B. Representing to consumers in West Virginia that the prize, gifts, award, premium, or similarly denominated item or any good or service offered to consumers has a value in excess of the fair market value.
C. Representing to consumers that the consumer has specific odds or chances of winning a prize, contest, sweepstakes or similar promotion unless the specific odds or chance of winning has been numerically determined and can be substantiated prior to transmittal of the solicitation in accordance with the West Virginia Consumer Credit and Protection Act.
D. Sending to potential customers in West Virginia solicitations which use language such as "You have won,” "Declaration of Cash Prize,” "You are entitled "Certified Winner,” and making representations to solicited persons in West Virginia of having won a prize, gift or other item of value, unless the solicited person is in fact given the prize, gift or item of value, without obligation, and unless all of the conditions of the West Virginia Consumer Credit and Protection Act, W.Va.Code, 46A-6D-3 are met.
E. Sending solicitations to persons in West Virginia which use official sounding language and seals such as: "Judges Seal,” “Office of the Treasurer,” "Claim Processing Division,” that may lead a reasonable person to believe that he or she has won something of value; or sending solicitations that represent that the recipient has been specially selected, when in fact the solicitation is part of a mass mailing.
F. The defendant shall not send material to persons in West Virginia which includes writing which simulates a check, or resembles a check or invoice, in violation of the West Virginia Consumer Credit and Protection Act.
G. The defendant shall not solicit by sending to persons in West Virginia material referencing fake jewelry ratings or prize appraisals, bogus jewelers or agents who are holding prizes for the benefit of solicited customers in West Virginia.
H. The defendant is enjoined from conducting any business in the State of West Virginia that is in violation of [the] West Virginia Consumer Credit and Protection Act. W.Va.Code, 46A-6D-3 et seq.
I. The defendant is enjoined from conducting any business in the State of West Virginia that is in violation of [the] West Virginia Prizes and Gifts Act, W.Va.Code, 46A-6D-1, et seq\_i\
. It should be noted that, where appropriate, injunctive relief may be awarded by summary judgment. Arch Mineral Coiporation v. Babbitt, 104 F.3d 660 (4th Cir.1997); IOTA XI Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir.1993).
. Rule 56(f) provides:
Should it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
As syllabus point 3 of Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995), states:
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 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 explaining why further discovery is necessary as provided in Rule 56(0 of the West Virginia Rules of Civil Procedure.
. The individuals sought to be deposed by Suarez included, inter alia, Janice Estep, Minnie Johnson, Woodrow Nieman, William Knighton and Eleanor Jones. Those individuals were West Virginia consumers who testified at various hearings before the circuit court prior to the final award of temporary injunctive relief.
. Manifestly, the required disclosure of W.Va. Code, 46A-6D-4(a) [1992], constitutes a recognition by the West Virginia Legislature that consumers may be influenced in their purchase of the underlying product by the value of the bonus gift. As this Court observed in Imperial Marketing with regard to the heart-shaped dish, consumers were not provided "a clear and meaningful representation as to the true retail value of the bonus.” 196 W.Va. at 356 n. 29, 472 S.E.2d at 802 n. 29.
. Suarez asserts that, pursuant to the provisions of -W.Va.Code, 46A-6D-4(d) [1992], and W.Va. Code, 46A-6D-10 [1992], it is exempt from the Prizes and Gifts Act. It should be noted, however, that by their express terms, neither of those provisions applies to W.Va.Code, 46A-6D-3 [1992], which requires that the recipient of a prize or gift must be given the prize or gift "without obligation” and that it be delivered to the recipient "at no expense.” As the exemption found in W.Va.Code, 46A-6D-4(d) [1992], states:
The provisions of this section do not apply where to be eligible:
(1) Participants are asked only to complete and mail, or deposit at a local retail commercial establishment, an entry blank obtainable locally or by mail, or to call in their entry toll free by telephoning or other free or local calling option; or
(2) Participants are never required to listen to a sales presentation and never requested or required to pay any sum of money for any merchandise, service or item of value.
As stated, that exemption does not apply to W.Va.Code, 46A-6D-3 [1992], and would, therefore, not affect the discussion herein concerning the cubic zirconia diamond simulant or the clutch purse ensemble. Moreover, the heart-shaped dish, although implicating W.Va.Code, 46A-6D-4 [1992], simply concerns the disclosure of "the true retail value” thereof, which was found lacking by the circuit court. The assertion that W.Va.Code, 46A-6D-4(d) [1992], exempts Suarez from the Prizes and Gifts Act is, under the circumstances of this action, unconvincing.
Furthermore, the exemption found in W.Va. Code, 46A-6D-10 [1992], is clearly limited in its application. That section provides:
The provisions of sections four through seven of this article do not apply to the sale or purchase, or solicitation or representation in connection therewith, of goods from a catalog or of books, recordings, videocassettes, periodicals and similar goods through a membership group or club which is regulated by the federal trade commission trade regulation rule concerning use of negative option plans by sellers in commerce or through a contractual plan or arrangement such as a continuity plan, subscription arrangement or a single .sale or purchase series arrangement under which the seller ships goods to a consumer who has consented in advance to receive such goods and the recipient of such goods is given the opportunity, after examination of the goods, to receive a full refund of charges for the goods, or unused portion thereof, upon return of the goods, or unused portion thereof, undamaged.
As reflected in the final order, the circuit court concluded that W.Va.Code, 46A-6D-10 [1992], did not exempt Suarez in this action. As in the case of the previous exemption, the provisions of W.Va.Code, 46A-6D-10 [1992], to not apply to W.Va.Code, 46A-6D-3 [1992], In any event, the W.Va.Code, 46A-6D-10 [1992], exemption is not relevant to this action.
. As stated in the brief filed by Suarez: "The West Virginia Prizes and Gifts Act does not prohibit the sale of products through direct mail marketing and promotion. Nor does it prohibit the use of sweepstakes or contests as part of the promotion of a product.” That statement is consistent with this Court’s opinion in Imperial Marketing which acknowledges: "There is nothing within the four corners of the temporary injunction which prevents [Suarez] from engaging in mail solicitation in a manner which does not violate the Act." 196 W.Va. at 364, 472 S.E.2d at 810.
Nevertheless, although this opinion focuses solely upon three solicitations, i.e., those relating to the cubic zirconia diamond simulant, the clutch purse ensemble and the crystal candle holders, a number of additional solicitations mailed by Suarez to West Virginia consumers were brought into question before the circuit court. Those additional solicitations, upon the limited record before this Court, remain somewhat undefined, and this Court is not in a position to "expiscate or 'fish out’ from the record the details and circumstances” surrounding those solicitations. See, Maxey v. Maxey, 195 W.Va. 158, 159, 464 S.E.2d 800, 801 (1995). However, to the extent that those solicitations are substantially similar to the three solicitations discussed herein, Suarez engages in them at its peril.
. W.Va.Code, 46A-7-lll(2) [1974], states in part:
. As indicated above, the penalty attempted to be imposed herein was suspended, pending compliance by Suarez with the terms of the permanent injunction. Thus, under the terms of the final order, Suarez would have to pay nothing so long as it obeyed the permanent injunction. The amount imposed, therefore, is somewhat in the nature of a “performance bond,” rather than a penalty in its strictest sense. As the brief filed by the Attorney General stated: "[The penalty] is more akin to a requirement that [Suarez] post a performance bond.” See, by analogy, Campbell v. Point Pleasant & Ohio River R.R., 23 W.Va. 448 (1884); 10A M.J. Injunctions § 109 [1990]; 43A C.J.S. Injunctions § 238(c) [1978], indicating that courts may substitute a defendant's bond of indemnity for an injunction. Here, however, the performance bond issue is not before this Court and is more appropriately subject to consideration by the circuit court upon the remand of this action.
In addition, we are not unmindful of the decisions of this Court concerning prospective monetary sanctions in Vincent v. Preiser, 175 W.Va. 797, 338 S.E.2d 398 (1985), and State ex rel. UMWA International Union v. Maynard, 176 W.Va. 131, 342 S.E.2d 96 (1985). Those cases, however, are not dispositive of the penalty issue herein concerning the West Virginia Consumer Credit and Protection Act and the Prizes and Gifts Act because, under the circumstances of this action, (1) a specific penalty statute relating to consumer protection, i.e., W.Va.Code, 46A-7-111(2) [1974], is relied upon, and (2) that statute expressly states that the penalty set forth therein is civil, whereas in Vincent and in UMWA International Union, this Court considered there to be criminal or quasi-criminal aspects of the sanctions. See, State ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812 (1981). See also, State Farm Mutual Automobile Insurance Company v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992), stating that "courts have recognized that the imposition of a per diem fine is an appropriate sanction for civil contempt of a discovery order when the purpose of the monetary sanction is remedial rather than punitive.” 188 W.Va. at 631, 425 S.E.2d at 586.
.The number of individual violations of the Act may actually be higher. The record suggests that Suarez sent several different solicitations to some of the consumers identified by the Attorney General, and some of these consumers responded to those additional solicitations. Hence, 17,722 transactions occurred with 17,563 consumers.
An amicus brief filed by the American Association of Retired Persons suggests that it is common for fraudulent telephone and direct-mail marketers to repeatedly send solicitations to past victims, because "dishonest promoters know that consumers who have been tricked once are likely to be tricked again.” Federal Trade Commission, Reloading Scams: Double Trouble for Consumers (May 1998). The Federal Trade Commission refers to this practice of retargeting consumers who have lost money as "reloading" or “double-scamming:”
If you've taken the bait and lost money to a telemarketer, expect that the same or another telemarketer will try to hook you again. Consumers who have been victimized often are placed on what is known in the trade as "sucker lists” and then victimized again.... These lists, which are created, bought, and sold by some telemarketers, are invaluable because unscrupulous promoters know that consumers who have been tracked once are vulnerable to additional scams. These telemarketers hope that consumers believe that “this time” they will win the "grand prize.” Most often, however, these consumers simply lose more money.
Federal Trade Commission, Telemarketing: Reloading & DoubleScamming Frauds (March 1994). | [
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PER CURIAM:
This is an appeal by John L. Ash and Fast Lube America, Inc., appellants/defendants (hereinafter collectively referred to as “F.L.A.”), from an order by the Circuit Court of Kanawha County denying their post-trial motion for a new trial. Roy Young & Sons Paving, Inc., appellee/plaintiff (hereinafter referred to as “Young & Sons Paving”), brought this action alleging that F.L.A. breached a contract by failing to pay for work performed by Young & Sons Paving. A jury trial was held on July 7, 1997, and a verdict was returned in favor of Young & Sons Paving. Thereafter, F.L.A. filed a post-trial motion seeking a new trial on the ground that the trial court erroneously permitted Young & Sons Paving to call the court bailiff as a rebuttal witness. The sole issue presented in this appeal is whether the court bailiff was properly permitted to testify as a rebuttal witness. Upon a review of the parties’ arguments, the record evidence, and the pertinent authorities, we affirm the decision of the Circuit Court of Kanawha County.
I.
FACTUAL BACKGROUND
In October of 1995, Young & Sons Paving and F.L.A. entered into a contract requiring Young & Sons Paving to pave a parking area owned by F.L.A. Young & Sons Paving completed the work on December 4, 1995. Thereafter, F.L.A. refused to pay Young & Sons Paving. On July 11, 1996, Young & Sons Paving instituted an action seeking payment under the contract. F.L.A. filed an answer and counterclaim. In its counterclaim, F.L.A. sought to recover for alleged damage that was done to its property by Young & Sons Paving.
The case went to trial before a jury on July 7, 1997. Before the trial started, the trial court ordered sequestration of all witnesses. During the course of F.L.A. Inc.’s case-in-chief, Mr. Ash testified. While testifying, Mr. Ash recounted an unsolicited event involving Charles Young, a principal owner of Young & Sons Paving. Mr. Ash testified that Mr. Young visited his residence while in an intoxicated state and attempted to collect the debt. Mr. Ash further testified that Mr. Young’s unruliness forced him to call the police.
After each side rested its case-in-chief, the court bailiff, Deputy Keith L. Washburn, approached Young & Sons Paving’s counsel. Deputy Washburn informed counsel that he had responded to the call Mr. Ash made to the police. The deputy additionally advised counsel that Mr. Ash had testified inaccurately about the events. Young & Sons Paving thereafter sought to call Deputy Wash-burn as a rebuttal witness. The trial court held an in camera hearing and permitted Young & Sons Paving to call Deputy Wash-burn as a rebuttal witness.
Deputy Washburn testified on rebuttal that Mr. Young was not present when he responded to Mr. Ash’s call. The deputy described Mr. Ash as being intoxicated, loud and boisterous. After Deputy Washburn’s testimony, the jury retired to deliberate. The jury returned a verdict for Young & Sons Paving in the amount of $11,912.50. F.L.A. filed a post-trial motion for a new trial on the sole ground that the trial court erred in permitting Deputy Washburn to testify as a rebuttal witness. The court denied the motion and this appeal followed.
II.
STANDARD OF REVIEW
This Court has previously 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 court’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.” Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). See also Syl. pt. 1, Andrews v. Reynolds Memorial Hosp., Inc., 201 W.Va. 624, 499 S.E.2d 846 (1997). We noted recently in Gum v. Dudley, 202 W.Va. 477, 482, 505 S.E.2d 391, 396 (1997), that in reviewing an order denying a new trial, we review “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.” Accord Syl. pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).
III.
DISCUSSION
The record is clear. The trial court ordered sequestration of all witnesses. However, Deputy Washburn, who testified as a rebuttal witness, was not sequestered. Thus, F.L.A. argues that it is entitled to a new trial because the sequestration order was violated when Deputy Washburn was permitted to testify as a rebuttal witness.
We begin our analysis of this issue by addressing the basics. Rule 615 of the West Virginia Rules of Evidence states:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause.
We explained in syllabus point 2 of State v. Omechinski, 196 W.Va. 41, 468 S.E.2d 173 (1996), that
[t]he purpose of Rule 615 of the West Virginia Rules of Evidence is to prevent the shaping of testimony by one witness to match that of another and to discourage fabrication and collusion. The rule applies to rebuttal witnesses as well, and it is not significant whether the rebuttal witness has testified earlier in the ease-in-chief.
Obviously, a strict application of Rule 615 to rebuttal witnesses presupposes that a party knows in advance that he/she will call a specific rebuttal witness. That is, the sequestration rule, as a matter of law, does not apply to unknown rebuttal witnesses. See United States v. Hargrove, 929 F.2d 316 (7th Cir.1991); People v. Caulley, 197 Mich.App. 177, 494 N.W.2d 853 (Mich.App.1992); State v. Shoemaker, 488 So.2d 1084 (La.App. 2d Cir.1986); Belachheb v. State, 699 S.W.2d 709 (Tex.App.-Fort Worth 1985); State v. Edwards, 209 Kan. 696, 498 P.2d 53 (Kan.1972); Stephens v. State, 250 Ala. 123, 33 So.2d 245 (Ala.1947). Without such a principal of law, the general public could not sit in the courtroom to observe trial proceedings because of the remote possibility of being called as rebuttal witnesses once Rule 615 invoked. Although this Court in Omechinski, developed a test for determining whether to exclude the testimony of a previously-known rebuttal witness under Rule 615, the test is not applicable to a rebuttal witness whose existence is not known until after the opponent’s witness has testified.
The factual circumstances of the sequestration issue in this case were addressed in the context of a criminal case in Williams v. State, 11 Ark.App. 11, 665 S.W.2d 299 (Ark.Ct.App.1984). The defendant in Williams was convicted of robbery and appealed. During the trial of the case, the defendant called a witness who testified that he (the witness) always went peacefully when arrested. The prosecutor was permitted to call the court’s bailiff as a rebuttal witness to contest the veracity of the witness’ statement that he always went peacefully when arrested. The defendant contended on appeal that it was error to allow the bailiff to testify on rebuttal because he was present during the entire trial in violation of the sequestration order. The appellate court disagreed. The court in Williams held that “ ‘[t]he rule consistently applied by this court is that a violation by a witness of the rule of sequestration of witnesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness.’ ” Williams, 665 S.W.2d at 300, (quoting Williams v. State, 258 Ark. 207, 523 5.W.2d 377 (1975)). The conviction was affirmed. Accord Burks v. Oklahoma Pub. Co., 81 F.3d 975 (10th Cir.1996); United States v. Shurn, 849 F.2d 1090 (8th Cir.1988); Mestiza v. State, 923 S.W.2d 720 (Tex.App.Corpus Christi 1996); State v. Byerley, 658 S.W.2d 134 (Tenn.Crim.App.1983); Wiseman v. State, 168 Ga.App. 749, 310 S.E.2d 295 (Ga.App.1983); People v. Miller, 30 Ill.2d 110, 195 N.E.2d 694 (Ill.1964).
In the instant proceeding, Young & Sons Paving did not list Deputy Washburn as a fact witness or a rebuttal witness. It is undisputed that Young & Sons Paving was unaware of Deputy Washburn’s information. In fact, nothing in the record reveals that Young & Sons Paving should have reasonably known it might call Deputy Washburn as a rebuttal witness. Thus, the sequestration order was not violated because of Deputy Washburn’s rebuttal testimony. Therefore, the trial court did not err in denying F.L.A.’s motion for a new trial based upon the failure to sequester rebuttal witness Deputy Washburn.
IV.
CONCLUSION
In view of the foregoing, we affirm the circuit court’s order denying F.L.A.’s post-trial motion for a new trial.
Affirmed.
. Mr. Ash is the owner of Fast Lube America, Inc.
. It appears that the contract was modified at some point. The modification called for a reduction in the amount of area paved and the additional task of installing drains and drop-inlets. Under the original contract, F.L.A. agreed to pay $16,250 for the work. Pursuant to the modified contract, it appears that F.L.A. was obligated to pay $11,912.50.
.Deputy Washburn was not the regular court bailiff. He was serving in this capacity on temporary assignment.
. "There is a paucity of decisions on the subject in civil cases and courts seek enlightenment from cases developed in the criminal sphere.” Henderson v. Eastman Whipstock Pilot, Inc., 524 So.2d 850, 851 (La.Ct.App.3d Cir.1988).
. This test is enunciated in syllabus point 7 of Omechinski as follows:
In making a ruling whether to exclude a rebuttal witness’ testimony under Rule 615 of the West Virginia Rules of Evidence, a trial court should consider several factors including: (1) how critical the testimony in question is — that is, whether it involved controverted and material facts; (2) whether the information ordinarily is subject to tailoring such that cross-examination or other evidence could bring to light any deficiencies; (3) to what extent the testimony of the witness is likely to encompass the same issues as other witnesses’; (4) in what order the witness would testify; and (5) if any potential for bias exists which may motivate the witness to tailor his or her testimony.
196 W.Va. 41, 468 S.E.2d 173.
. Obviously, if a party learns of a rebuttal witness for the first time before both sides conclude their cases-in-chief, and the rebuttal witness is in the courtroom, an obligation exists under the sequestration order to immediately remove the rebuttal witness from the courtroom. Otherwise, the test outlined by Omechinski would have to be applied to determine whether the rebuttal witness should be allowed to testify. In the instant proceeding, counsel for Young & Sons Paving did not learn of Deputy Washburn’s rebuttal information until after both sides had concluded their cases-in-chief. Therefore, Deputy Wash-burn’s testimony was not governed under the sequestration order. | [
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STARCHER, Justice:
In the instant case we uphold in part and reverse in part a decision of the Circuit Court of Kanawha County. We determine that the West Virginia State Board of Medicine can go forward with one disciplinary proceeding against a psychiatrist charging him with having a sexual relationship with a patient; in another proceeding, charging the doctor with the same conduct with another patient, we determine that a complainant’s delay in making a complaint bars further proceedings.
I.
Facts and Background
The appellant, the West Virginia Board of Medicine (“the Board”), established pursuant to W.Va.Code, 30-3-1, et seg., filed charges against the appellee, Dr. Deleno H. Webb (“Dr. Webb”), a Huntington, West Virginia psychiatrist, in two separate complaints — one filed in November 1993, the other in August 1994.
The first complaint alleged that Dr. Webb engaged in sexual intercourse with his patient, Ms. D. , beginning in 1975, when Ms. D. was 17, and continuing through 1985. The second complaint alleged that on one occasion in 1979, Dr. Webb engaged in sexual intercourse with a second patient, Ms. M.
Dr. Webb applied for a writ of prohibition against the Board in the Circuit Court of Kanawha County in both matters. On September 16,1994, the circuit court ordered the Board to consider “what, if any, impact the doctrine of laches will have on the allegations” against Dr. Webb. The circuit court also ordered that “the Board shall assume that the doctrine of laches applies and make initial determinations in both cases as to what prejudice, if any, has occurred and whether these proceedings should be barred as a result.” The circuit court’s order further declared that any misconduct in which Dr. Webb engaged prior to the 1980 enactment of W.Va.Code, 30-3-1 et seq. should be governed by the disciplinary provisions of the law in place at the time of the alleged misconduct.
Accordingly, the Board excised its complaints and notices to meet the circuit court’s directive. By order dated January 18, 1995, the Board scheduled a hearing before a Board-designated hearing examiner so the Board could “consider the evidence and make initial determinations as to what prejudice, if any, has occurred, and whether further proceedings should be barred as a result.”
At this “laches” hearing, Webb presented one witness, an investigator, who testified as to difficulties in gaining access to witnesses and other information. The Board presented as witnesses its executive director, Ronald D. Walton; Nancy Hill, Ms. D.’s attorney; and John Adams, M.D., Ms. D.’s then-current treating psychiatrist. The Board also had testimony and evidence from a related civil proceeding against Dr. Webb filed by Ms. D.
After the filing of legal memoranda, the Board’s hearing examiner, applying the doctrine of laches, recommended that the Board should be permitted to go forward in the D. matter, and that the Board should not be permitted tq go forward in the M. matter.
In May 1995, the Board entered an order accepting the hearing examiner’s recommendation as to the D. matter, and modifying the recommendation in the M. matter. The Board asserted in the order that it had carried out the circuit court’s directive, even though the Board believed that the circuit court’s direction to' assume that the doctrine of laches applied constituted an error of law.
The Board next scheduled a hearing on the merits of the two complaints. Dr. Webb again applied to the Circuit Court of Kana-wha County for a writ of prohibition against the Board’s holding a hearing on the merits of the charges. With no ruling forthcoming from the circuit court, in August 1996, the Board applied to this Court for the issuance of a writ of mandamus requiring the circuit court to rule on Dr. Webb’s request for a writ of prohibition. We issued the writ. In April 1997, the circuit court ruled that the Board was not permitted to hold a hearing on the merits of the complaints against Dr. Webb.
From this ruling by the Circuit Court of Kanawha County, the Board appeals.
II.
Standard of Review
“The standard of appellate review of a circuit court’s order granting relief through the extraordinary writ of prohibition is de novo.” Syllabus Point 1, Martin v. West Virginia Div. of Labor Contractor Licensing Bd., 199 W.Va. 613, 486 S.E.2d 782 (W.Va.1997).
III.
Discussion
A.
Is the Doctrine of Laches Applicable in Board of Medicine Proceedings?
This Court’s customary brief formulation of the doctrine of laches was stated in Province v. Province, 196 W.Va. 473, 483, 473 S.E.2d 894, 904 (1996): “The elements of laches consist of (1) unreasonable delay and (2) prejudice.”
We have also stated:
Laches is an equitable defense, and its application depends upon the particular facts of each case. There are some general principles, however, which a court should be mindful of when determining whether the doctrine of laches is applicable. For instance, “[m]ere delay will not bar relief in equity on the ground of laches. ‘Laches is a delay in the assertion of a known right which works to the disadvantage of another, or such delay as will warrant the presumption that the party has waived his right.’ ”
State ex rel. West Virginia Dept. of Health and Human Resources, Child Advocate Office, on Behalf of Jason Gavin S. by Diann E.S. v. Carl Lee H., 196 W.Va. 369, 374, 472 S.E.2d 815, 820 (1996) (citations omitted).
A substantial number of jurisdictions have held or assumed for decisional purposes that some form of the doctrine of laches may be applicable in disciplinary proceedings against physicians. Annotation, Applicability of statute of limitations or doctrine of laches to revoke or suspend license to practice medicine, 51 A.L.R.4th 1147.
The argument that there should be a place for the doctrine of laches in physician discipline cases rests on fundamental fairness. The privilege (W.Va.Code, 30-3-1 [1980]) to practice medicine is a valuable one. To have that privilege threatened in a proceeding where one is severely prejudiced by an unreasonable delay not of one’s own making could be very unfair.
However, it is also important to recognize that physician discipline proceedings are not the sort of traditional, common-law adversarial civil proceedings in which doctrines like laches evolved, to balance the rights and interests of purely private parties. In a physician discipline proceeding, the interests of the state, the general public and the medical profession are the primary concern.
Thus, there may be circumstances in a physician discipline proceeding when even a substantial degree of prejudice to a physician that is caused by an unreasonable delay not of the physician’s making might nevertheless be outweighed by the strong interests of the state, the public and the profession in fully addressing allegations of serious professional misconduct — so as to tip the equitable balance in favor of continuing with a proceeding.
For the foregoing reasons, we hold that the doctrine of laches may be applicable in proceedings by and before the West Virginia Board of Medicine pursuant to W.Va. Code, 30-3-1, et seq. However, in applying the doctrine of laches in such proceedings, the interests of the state, the public and the medical profession must be given substantial consideration, and the doctrine should be applied narrowly and conservatively and in such a fashion as to not unfairly impair the Board’s duty and responsibility to supervise and regulate the medical profession for the protection of the profession and the public.
To the extent that the holding in Syllabus Point 7 of State v. Sponaugle, 45 W.Va. 415, 32 S.E. 283 (W.Va.1898) (laches is not imputable to the state) suggests that as a state-sponsored entity, the Board is not subject to laches, the holding of that case is hereby modified.
B.
The Application of the Doctrine of Laches in the Instant Case
As previously stated, the circuit court’s first order instructed the Board to consider the application of the doctrine of laches to the proceedings involving Dr. Webb. While the circuit court’s second order prohibiting further proceedings questioned whether the Board had applied the doctrine in good faith, the record shows that the Board and its hearing examiner both applied the doctrine— although the Board did so under protest.
Both the examiner and the Board concluded that laches should not bar proceeding on the D. matter. However, the examiner and the Board differed on the M. matter. The examiner recommended that laches should bar proceedings on the M. matter; the Board disagreed and ruled that laches should not be a bar.
The circuit court concluded that the Board had erred as a matter of law in its application of laches to both matters, and granted a writ of prohibition barring further proceedings on both. It is this determination by the circuit court that we review, de novo.
The hearing examiner’s recommendation in the D. matter was based, inter alia, upon the examiner’s findings, adopted by the Board, that (1) any delay had been proven to be at least in part Dr. Webb’s responsibility and therefore was not unreasonable; and (2) that Dr. Webb had not proven that he had been prejudiced by any delay.
If upheld, these findings are dispositive on the laches issue in the D. matter. Our review of the record as a whole shows that there was substantial — indeed overwhelming-evidence that supported these findings.
The Board thus permissibly found that laches did not bar going forward with the D. matter, and the circuit court erred in effectively reversing that finding by granting a writ of prohibition against further proceedings in that matter.
In the M. matter, the hearing examiner found that Dr. Webb had shown that (1) there was an unexplained and unreasonable delay; and (2) that there was prejudice to Dr. Webb from such a delay.
If these findings by the examiner control, then laches might bar going forward in the M. matter, as the essential prerequisites of unreasonable delay and prejudice are present. However, the Board modified these recommended findings by the ALJ, as it is entitled to do. “Although the Board is not required to accept automatically the recommendations of a hearing examiner, the Board must present ‘a reasoned, articulate decision [ for not doing so].’ ” Berlow v. West Virginia Bd. of Medicine, 193 W.Va. 666, 670, 458 S.E.2d 469, 473 (1995).
In the instant case, we cannot accept the Board’s generic conclusion that there was no delay-related prejudice to Dr. Webb in the M. matter. As the hearing examiner said, “[a] single alleged incident, said to occur some 13 years ago, is much more difficult to prove in the negative. The recall of events does blur over time.”
Additionally, the examiner recommended that laches should bar further proceedings in the M. matter, not just because of prejudice, but also because the Board did not present any reason or explanation, other than speculation, for the delay by M. in making a complaint to the Board. That is, there was no evidence showing that the complainant’s unexplained delay in the M. matter was reasonable.
The Board was thus acting without support in the record in modifying the examiner’s finding of prejudice resulting from an unexplained delay of over 13 years in the M. matter. We conclude therefore that the examiner’s findings should not have been modified by the Board in the M. matter.
It follows that if significant prejudice and unreasonable delay in bringing a complaint to the Board were established in the M. matter, laches could be applicable. However, that is not the end of the inquiry. Neither the hearing examiner or the Board explicitly balanced the public and the profession’s interests against the prejudice to Dr. Webb resulting from an unexplained and unreasonable delay in the M. matter.
We understand the Board’s reluctance to allow delay in the presentation of a complaint to bar the Board from performing its duties to the public and the profession. And as we have noted, the mere existence of prejudice to a physician from such an unreasonable delay, while enough to invoke the possible application of the doctrine of laches, does not end the inquiry. A further balancing must occur, involving the interests of the public and the profession as well as those of the physician.
Although this Court could remand this issue to the Board for such a balancing, this case has clearly been too long already in getting to a hearing on the merits. We conclude that the hearing examiner implicitly performed such a balancing in determining that laches should bar further proceedings in the M. matter. The Board, having failed to offer any reason for the complainant’s delay in the M. matter, is in a poor position to challenge the equity of the examiner’s recommendation.
Consequently, we uphold the examiner’s determination, ratified by the circuit court, that laches prohibits further Board proceedings on the M. matter.
IV.
Conclusion
The circuit court erred in granting a* writ of prohibition that effectively reversed the Board’s ruling that laches did not bar going forward with the D. matter and prohibited further proceedings in that matter. The circuit court did not err in granting a writ of prohibition preventing further proceedings in the M. matter. This case must be remanded to the Board for full proceedings before the Board on the merits of the D. matter.
Affirmed, in part; reversed, in part; and remanded.
WORKMAN, J., dissents, in part, and concurs, in part.
MAYNARD, J., deeming himself disqualified, did not participate in the decision in this case.
GARY JOHNSON, Judge, siting by special assignment.
. In the circuit court’s order in the proceedings below, Dr. Webb's first name was apparently misspelled "Delano.”
. Because this case involves sensitive matters, we use the initials of the last names of the two women who made complaints to the Board of Medicine.
. In Board of Medicine proceedings, there are at least two junctures where we perceive that lach-es may be applicable: (1) when there is an issue of the timeliness of the making of a complaint to the Board; and (2) where there is an issue of the timeliness of actions taken by the Board.
. The record contains Dr. Webb’s deposition testimony in a civil suit brought by Ms. D. Dr. Webb admitted to having sex with Ms. D. for over 6 years, beginning when she was a depressed teenager with severe psychiatric problems requiring medication and hospitalization, and an apparent history of familial abuse.
Dr. Webb claimed that he began having sex with Ms. D., not in 1975 when she first became his patient, but in 1977, after he "transferred” her to another doctor in the same practice group. However, the record shows that over a several-year-long period after the alleged transfer, Dr. Webb prescribed medicine for Ms. D., gave orders at hospitals regarding her care, and otherwise took responsibility for her medical care. During this period of time, Dr. Webb admitted to having sex with Ms. D.
Given this strong prima facie evidence of misconduct, in the form of an admission by Dr. Webb, the examiner was clearly justified in finding that any prejudice from delay in the D. case was de minimis. See generally, Pons v. Ohio State Medical Board, 66 Ohio St.3d 619, 614 N.E.2d 748 (1993), for a case involving similar alleged physician misconduct.
As to Dr. Webb’s role in causing any delay, Dr. Adams, Ms. D.'s treating physician in 1992 (when Ms. D. made her complaint to the Board about Dr. Webb), testified how Dr. Webb used his physician status to exercise psychological dominance in his relationship with Ms. D., and explained how this dominance precluded Ms. D. from fully appreciating both the wrongfulness of Dr. Webb’s conduct and the need to report Dr. Webb’s conduct to protect other vulnerable patients.
. We add that further judicial intervention in and delay of the proceedings before the Board would be particularly inappropriate, given the substantial amount of time that the proceedings we review in the instant opinion have consumed. | [
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MAYNARD, Justice:
In this original mandamus proceeding, the relator, the West Virginia Regional Jail and Correctional Facility Authority, requests that this Court evaluate the constitutionality of House Bill 4702 (1998), a recent enactment of the West Virginia Legislature. This bill directs the respondent, the West Virginia Investment Management Board, the group charged with investing the funds of the Public Employees Pension System, to invest $150,000,000 of the pension system funds in the West Virginia Jail and Correctional Facility Authority to enable it to complete the construction or renovation of certain jails and correctional facilities in West Virginia. The issues before us are, inter alia, whether House Bill 4702 constitutes an unconstitutional impairment of the contract existing between the State of West Virginia and the participants and beneficiaries of the Public Retirement System and whether House Bill 4702 violates Article X, Section 4 of the West Virginia Constitution which places limitations on the contracting of State debt.
I.
FACTS
The relator, the West Virginia Regional Jail and Correctional Facility Authority (“Jail Authority”), is a body corporate and governmental instrumentality created by the West Virginia Legislature. It is charged with the financing and construction of jails and correctional facilities in the State and is governed by the provisions of W.Va.Code § 31-20-1 to 31-20-28 as well as various constitutional provisions and decisions of this Court.
The respondent, the West Virginia Investment Management Board (“Board”), is also a body corporate and government instrumentality. It was created by the West Virginia Legislature to manage and invest the funds of West Virginia’s various public employee pension systems. Its authority and powers to make investments are governed by the West Virginia Investment Management Act, W.Va.Code § 12-6-1 to 12-6-19, as well as by various constitutional provisions and decisions of this Court.
During the 1998 Legislative Session, the West Virginia Legislature passed House Bill 4702. The stated purpose of the bill is to finance the ongoing construction and renovation of jails and correctional facilities in West Virginia. The bill directs the Board, the body charged with managing the funds of the Public Employees Retirement System (“PERS”), to invest $150,000,000 of those funds in the Jail Authority for its on-going construction and renovation projects. The purpose of the investment is to enable the completion and construction of jail and correctional facilities. House Bill 4702 prescribes the source of the investment funds, establishes a method for repayment of the investment, and sets a market rate of interest.
Specifically, under the provisions of the bill, any PERS funds invested by the Investment Management Board with the Regional Jail Authority must earn an annual return equal to the five year average annualized rate of return earned by the core fixed-income portfolio of PERS, plus one tenth of one percent, and such rate of return shall not be less than five percent. The bill creates a “regional jail and correctional facility investment fund” in the State treasury that is dedicated to the payment of investment earnings and the return of PERS capital invested by the Board in .the Jail Authority. The regional jail and correctional facility investment fund will receive insurance taxes deposited in the “insurance tax fund,” a special revenue fund made up of insurance taxes already established by W.Va.Code §§ 33-3-14 (1983) and 33-3-15 (1957). The bill further provides that monthly payments representing investment earnings and the return of PERS capital invested in the Jail Authority by the Board shall commence six months after funds are invested and cease within twenty-five years when all PERS capital is returned.
The Board has refused transfer of the $150,000,000 to the Jail Authority on the grounds that House Bill 4702 violates constitutional prohibitions against State impairment of contracts and the incurring of State debt. The Board also asserts that the bill raises other legal problems.
II.
STANDARD FOR GRANTING MANDAMUS
It is well-settled that,
[a] writ of mandamus will not issue unless three elements co-exist — (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). With this in mind, we now review the issues before us.
III.
DISCUSSION
A.
Issue No. 1: Impairment of Contracts
The Board claims, first, that House Bill 4702 unconstitutionally impairs the contract between the State of West Virginia and the members and beneficiaries of the Public Employees Retirement System. According to the Board, House Bill 4702 results in the use of Public Employees Retirement System funds for purposes other than the sole benefit of the Public Employees Retirement System. We disagree.
Article III, Section 4 of the West Virginia Constitution states in part that “[n]o ... law impairing the obligation of a contract, shall be passed.” This is consistent with Article I, Section 10 of the United States Constitution which provides that “[n]o State shall ... pass any ... Law impairing the Obligation of Contracts.” To determine whether legislation impairs a contractual obligation in violation of the federal and state constitutions, this Court has stated the following three-pronged test:
The initial inquiry is whether the statute has substantially impaired the contractual rights of the parties. If a substantial impairment is shown, the second step of the test is to determine whether there is a significant and legitimate public purpose behind the legislation. Finally, if a legitimate public purpose is demonstrated, the court must determine whether the adjustment of the rights and responsibilities of contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation’s adoption.
Syllabus Point 4, in part, Shell v. Metropolitan Life Ins. Co., 181 W.Va. 16, 380 S.E.2d 183 (1989). Further, “[t]he severity of the impairment measures the height of the hurdle the state legislation must clear. Minimal alteration of contractual obligations may end the inquiry at its first stage.” Shell, 181 W.Va. at 21, 380 S.E.2d at 188, quoting Allied Structural Steel Co., 438 U.S. at 245, 98 S.Ct. at 2722-23, 57 L.Ed.2d at 736-37.
There is no doubt that a contract exists between PERS members and beneficiaries and the State. The Public Employees Retirement System was created by W.Va. Code §§ 5-10-1 et seq. in 1961 to provide a general retirement system for public employees. “A review of the statute reveals a classic example of a ‘statutory’ trust.” Dadisman v. Moore, 181 W.Va. 779, 784, 384 S.E.2d 816, 821 (1988). Further, “[a] statute is treated as a contract when the language and circumstances evince a legislative intent to create private rights of a contractual nature.” Id., 181 W.Va. at 789, 384 S.E.2d at 826, citing United States Trust Co. v. New Jersey, 431 U.S. 1, 17 n. 24, 97 S.Ct. 1505, 1519 n. 24, 52 L.Ed.2d 92 (1977). This Court has held that “[r]etired and active PERS plan participants have contractually vested property rights created by the pension statute, and such property rights are enforceable and cannot be impaired or diminished by the State.” Syllabus Point 16, Dadisman. In order to ensure that the property rights of PERS participants are not impaired or diminished, this Court has stated, “The PERS Board, as trustee of retirement funds, must dispose of them according to the law. The board has a fiduciary duty to protect the fund and the interests of all beneficiaries thereof, and it must exercise due care, diligence, and skill in administering the trust.” Syllabus Point 14, Dadisman. The essence of the contract between the State and PERS members and beneficiaries is that upon a member’s retirement, he or she “shall receive a straight life annuity equal to two percent of his final average salary multiplied by the number of years, and fraction of a year, of his credited service in force at the time of his retirement.” W.Va.Code § 5-10-22 (1971). Also, this Court has stated that “[t]he cynosure of an employee’s W.Va. Const, art. Ill, § 4 contract right to a pension is not the employee’s or even the government’s contribution to the fund; rather, it is the government’s promise to pay.” Syllabus Point 12, Booth v. Sims, 193 W.Va. 323, 456 S.E.2d 167 (1995).
It is obvious, therefore, that not every modification to the State’s existing contract with PERS members is a substantial impairment.
The realization and protection of public employees’ pension property rights is a constitutional obligation of the State. The State cannot divest the plan participants of their rights except by due process, although prospective modifications which do not run afoul of the federal or State impairment clauses are possible.
Syllabus Point 18, Dadisman. Further, this Court has stated:
While the law recognizes that states retain some reserve power to modify by statute existing contractual pension relationships when the public interest so requires, such modifications must be reasonable and necessary to serve important public purposes. Legislative modifications to a pension plan must be reasonable, and the test for reasonableness is whether the alteration to the pension scheme serves to keep the system sound and flexible.
Syllabus Point 17, Dadisman. Legislative modifications have traditionally included amendments and additions to the list of investment vehicles available to PERS funds. See W.Va.Code § 5-10-38 (1961) and W.Va. Code § 12-6-9c (1997).
On September 27, 1997, the citizens of the State ratified the Modern Investment Management Amendment which amended Article X, § 6 of the West Virginia Constitution to read:
The credit of the state shall not be granted to, or in aid of any county, city, township, corporation or person; nor shall the state ever assume, or become responsible for the debts or liabilities of any county, city, township, corporation or person. The investment of state or public funds shall be subject to procedures and guidelines heretofore or hereafter established by the Legislature for the prudent investment of such funds.
This amendment is consistent with the Legislature’s historical power to determine which body manages the investment of PERS funds and how these funds are to be invested. It also appears to be a significant expansion of the Legislature’s power to establish the procedures and guidelines for the investment of State monies, with the sole caveat being that these monies must be invested prudently.
The history of the management of PERS funds reveals that the Modern Investment Management Amendment is simply an expansion of the authority already exercised by the Legislature in this area. This history also reveals the regularity with which modifications and amendments have been made to the system without violating the constitutional prohibition on the impairment of contracts. Over the years, the Legislature has passed legislation transferring investment duties for PERS funds from one State body to another and changing the types of investment vehicles available for PERS funds.
When PERS was initially created, the Board of Public Works was charged with investing the system’s funds “in any securities or investments in which the sinking funds of the state may be legally invested, or in any securities or investments in which the deposits in savings banks and participation deposits in banks and trust companies may be legally invested.” W.Va.Code § 5-10-38 (1961); see Dadisman, supra. W.Va.Code § 13-3-4 (1941) provided that sinking funds were to be invested in the following order: in the political division’s own bonds; bonds issued by other political divisions of the State; bonds or treasury certificates of the United States government; or bonds of this State. Further, W.Va.Code § 5-10-38 provided that every state department or institution issuing any bonds was to make a written offer of these bonds to the Board of Public Works prior to advertising them for sale. The management of PERS funds was subsequently transferred to the Board of Investments which was authorized to invest, inter alia, in the direct and general obligations of the State. See W.Va.Code § 12-6-9(e) (1990). Now, the Investment Management Board manages PERS monies. The Modern Investment Management Amendment further modified the management of PERS funds by expanding the Legislature s power to establish investment guidelines and by increasing the kinds of permissible investments to include common stocks and corporate equities. Finally, in House Bill 4702, the Legislature has exercised its power to authorize the investment of PERS funds in the Jail Authority. This brief history indicates that technical or housekeeping alterations in the management of PERS funds, such as changes in the manager of the funds or an expansion in permissible investments, do not implicate the constitutional provision prohibiting the impairment of contracts. The contract between the State and PERS beneficiaries simply does not extend to such modifications.
The vital parts of the contract between PERS members and the State, rather, is not implicated so long as sufficient funds are provided and the promised pensions are paid. See Syllabus Point 12 of Booth, supra. To ensure that these obligations are met, the Legislature has provided numerous limitations and safeguards governing the investment of PERS funds. See W.Va.Code §§ 12-6-10 (1996) and 12-6-12 (1997). Upon considering the arguments before us, we are not persuaded that House Bill 4702 violates either of the terms mentioned above. The respondent here is challenging the Legislature’s authority to expand the types of investments available to the respondent in its management of PERS funds. This challenge is couched in terms alleging an impairment of a contract. However, the contract between the State and PERS beneficiaries does not include an implied provision that the Legislature will not expand the number or kinds of investments available to the respondent, as long as the vital terms of the contract continue to be met.
The respondent would have this Court assume the role of financial prognosticator and micro-manager of the PERS funds. This we decline to do. It is simply not our task to assess the financial worthiness of the provisions of House Bill 4702. Rather, such assessment belongs to the Legislature, and the Legislature has spoken. We presume that the Legislature has spoken in a constitutionally permissible manner.
In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.
Syllabus Point 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965). See also Syllabus Point 1, West Virginia Trust Fund, Inc. v. Bailey, 199 W.Va. 463, 485 S.E.2d 407 (1997). The respondent also argues that this investment in the Jail Authority is not permissible because it is not for the sole benefit of PERS. If we accepted this argument in this instance, however, it would effectively bar all investment of PERS funds. PERS funds have always been invested in various ways without running afoul of the contractual provisions between the State and PERS beneficiaries. We conclude therefore, that House Bill 4702 does not constitute a substantial impairment to the contractual obligation of the State. The investment is of a limited amount, for a limited time, and to be repaid at an interest rate essentially equal to the rate on other already authorized investments. Accordingly, we find, for the above reasons, that House Bill 4702 (1998), which authorizes the investment of PERS monies in the Regional Jail and Correctional Facility Authority, does not substantially impair the contract rights of PERS beneficiaries. We now proceed to the second issue.
B.
Issue No. 2: Contractual Limitation on the Contracting of State Debt
Second, the respondents claim that House Bill 4702 violates Article X, Section 4 of the West Virginia Constitution which states:
No debt shall be contracted by this State, except to meet casual deficits in the revenue, to redeem a previous liability of the State, to suppress insurrection, repel invasion or defend the State in time of war; but the payment of any liability other than that for the ordinary expenses of the State, shall be equally distributed over a period of at least twenty years.
In Winkler v. State School Bldg. Authority, 189 W.Va. 748, 434 S.E.2d 420 (1993), this Court indicated that Article X, Section 4 does not preclude the State from issuing revenue bonds which are to be redeemed from a special fund under what is called the “special fund doctrine.” In Syllabus Point 2 of State ex rel. Marockie v. Wagoner, 190 W.Va. 467, 438 S.E.2d 810 (1993), this Court explained the special fund doctrine as follows:
The Legislature may not designate funds that will be used to liquidate a revenue bond issue out of a current tax source that flows into the general revenue fund. If this practice were permitted, then a debt would be created that would burden the existing general revenue fund in violation of Section 4 of Article X of the West Virginia Constitution.
Although the relator argues that the provisions of House Bill 4702 fall under the special fund doctrine, we do not agree. As noted above, to repay the capital and to pay the earnings on the investment mandated by House Bill 4702, the insurance taxes already established by statute will be deposited in the insurance tax fund and ultimately trans ferred to the regional jail and correction facility investment fund. Previously, however, these same insurance taxes were paid into the State treasury for the benefit of the State fund. Therefore, according to Marock-ie, the Legislature has impermissibly designated funds to repay the capital and the earnings on the investment in the Jail Authority out of a current tax source that flows into the general revenue fund. Because this tax revenue is no longer available to the general fund, a debt is created that burdens the existing revenue fund in violation of Article X, Section 4. We do not believe, however, that this disposes of the issue before us.
This Court has defined the basic intent and purpose of Article X, Section 4 as prohibiting legislative, acts which would bind subsequent legislatures to appropriate money in subsequent fiscal years. See State ex rel. Hall v. Taylor, 154 W.Va. 659, 178 S.E.2d 48 (1970), overruled on other grounds, State ex rel. West Virginia Resource Recovery-Solid Waste Disposal Authority v. Gill, 174 W.Va. 109, 323 S.E.2d 590 (1984). This purpose grew out of “ ‘the experience of the mother state with debts contracted by her,’ of which the framers of our 1872 Constitution were aware and therefore ‘provided that this state should not contract indebtedness, except in specified instances.’ ” Winkler v. State School Bldg. Authority, 189 W.Va. 748, 755-756, 434 S.E.2d 420, 427-428 (1993), quoting Bates v. State Bridge Commission, 109 W.Va. 186, 188, 189, 153 S.E. 305, 306-07 (1930) (footnote omitted). In Syllabus Point 5 of State ex rel. Dyer v. Sims, 134 W.Va. 278, 58 S.E.2d 766 (1950), rev’d on other grounds, 341 U.S. 22, 71 S.Ct. 557, 95 L.Ed. 713 (1951), this Court stated:
Under Section 4, Article X, of the Constitution of this State, the Legislature is without power to create an obligation to appropriate funds, for a purpose not mentioned in said section, by future Legislatures. Such legislation, if otherwise valid, would be void under said section, as creating a debt inhibited thereby.
As the Court later stated in Winkler, 189 W.Va. at 756, 434 S.E.2d at 428, however, “it seems clear that the Court did not literally mean that any contract entered into by a state agency that extended over more than one year was constitutionally infirm,” and noted that “Dyer recognized that by creating state agencies, the Legislature was obligating itself, in a constitutionally permissible manner, to pay‘funds necessary for those agencies’ operational expenses from future general revenue funds.” Likewise, as noted in Winkler, this Court has approved lease payments used to retire revenue bonds issued for building construction in State ex rel. State Bldg. Comm’n v. Moore, 155 W.Va. 212, 184 S.E.2d 94 (1971); an energy supply contract entered into by West Virginia University in State ex rel. West Virginia Resource Recovery-Solid Waste Disposal Authority v. Gill, 174 W.Va. 109, 323 S.E.2d 590 (1984), overruled on other grounds, Winkler, supra; the issuance of industrial and commercial revenue bonds under W.Va.Code § 13-2C-1 such as in State ex rel. Ohio County Comm’n v. Samol, 165 W.Va. 714, 275 S.E.2d 2 (1980); and, finally, those debts allowed under the recently articulated special fund doctrine.
In the present case, the Legislature designated a specific source of revenue as a funding mechanism and limited the amount dedicated and transferred annually from that fund to the Jail Authority. This is in accord with its authority under the new investment amendment to establish guidelines and procedures for the prudent investment of State or public funds. Considering the great importance of constructing, renovating, and repairing jails and correctional centers so as to meet constitutional requirements for the housing of prisoners, we believe the built-in limitations contained in House Bill 4702 are in sufficient conformity with the requirements of Article X, Section 4, and override the narrow strictures of the special fund doctrine as articulated in Marockie. There fore, we find that Syllabus Point 2 of State ex rel. Marockie v. Wagoner, 190 W.Va. 467, 438 S.E.2d 810 (1993), which holds the Legislature may not designate funds that will be used to liquidate a revenue bond issue out of a current tax source which flows into the general revenue fund, is overruled to the extent that it prevents the Legislature from exercising its power to prudently invest State or public funds pursuant to Article X, Section 6 of the West Virginia Constitution, the Modem Investment Management Amendment. Also, we find that House Bill 4702 does not violate the limitation on the contracting of State debt in Article X, Section 4 of the West Virginia Constitution.
C.
Issue No. 3: Deprivation of Property Rights Without Due Process
Third, the respondent claims that House Bill 4702 deprives PERS participants of their property rights in the PERS fund without due process of law.
The Fourteenth Amendment is not an independent source of property rights. The due process clause protects only those property interests already acquired as a result of “existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”
Gotkin v. Miller, 514 F.2d 125, 128 (2nd Cir.1975), quoting, in part, Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 5.Ct. 2701, 33 L.Ed.2d 548 (1972) (citation omitted). It is undisputed that PERS participants have contractually vested property rights created by the pension statute. See Syllabus Point 16, Dadisman. In other words, beneficiaries have a vested right in receiving their pension benefits. They do not, however, have a vested right in controlling the investment policies of the respondent. This task, rather, is set by the Legislature and the Investment Management Board. Also, “[u]ntil funds are withdrawn and paid out to individual members of the Public Employees Retirement System, the state has a beneficial ownership interest in such funds[.]” Syllabus Point 3, in part, State ex rel. Gainer v. West Virginia Bd. of Invest., 194 W.Va. 143, 459 S.E.2d 531 (1995). We find, therefore, that House Bill 4702 does not implicate the constitutional due process guarantees of PERS beneficiaries as long- as the State continues to pay PERS beneficiaries.
D.
Additional Issues
The respondent also avers that House Bill 4702 violates W.Va.Code § 12-6-11 concerning the fiduciary duty of the Board in making investments. We believe, however, that W.Va.Code § 12-6-11 must be read in light of the Modern Investment Amend ment to Article X, Section 6 of the West Virginia Constitution. When this is done, we find no conflict between House Bill 4702 and W.Va.Code § 12-6-11. Therefore, we find that this argument of the respondent is without merit. Concerning the respondent’s other arguments, for the reasons stated above, we find that House Bill 4702 does not, on its face, mandate the violation of the West Virginia Management Board’s fiduciary duty to PERS beneficiaries. Also, because we find that the expansion of investment vehicles to include investment in the Jail Authority does not constitute a substantial impairment of the PERS contract, we believe that the involvement of PERS beneficiaries is not necessary for the adjudication of this action. Finally, because we believe the investment and transfer of funds by the Board to the Jail Authority is a non-discretionary ministerial duty established by the Legislature in its enactment of House Bill 4702, we find that mandamus lies to compel the action sought by the relator.
We find, therefore, for the reasons stated above, that there is no legal prohibition on the operation of House Bill 4702. Consequently, we believe the three elements necessary for the issuance of a writ of mandamus are present here. Accordingly, we grant the writ of mandamus sought by the relator.
Further, we deem it important to state the following. First, we grant the writ sought herein because we believe House Bill 4702 is simply another modification made by the Legislature to the statutorily prescribed investment vehicles available to the Investment Management Board in its management of PERS funds, and that nothing in our constitution prohibits this action. We believe that our holding is consistent, for the most part, with the history of the management of PERS funds, Legislative modifications governing this management, and this Court’s previous holdings.
Second, absolutely nothing in this decision should be seen as a retreat from this Court’s holdings in Dadisman. We believe that our decision here in no way conflicts with Dadis-man. Rather, we wish to reiterate specifically the vested property rights in PERS plan participants created by the pension statute, the constitutional obligation of the State to protect these property rights, and the duty of the Investment Management Board to manage the PERS fund according to the highest fiduciary standards.
Third, the presence of the funding mechanism contained in House Bill 4702 is integral to our finding that the bill meets constitutional standards. It is imperative to the continued actuarial soundness of PERS funds that this funding mechanism operate as provided.
Finally, as stated above, it is vital that PERS remain on a sound actuarial basis and that the State continue to meet its obligation to pay beneficiaries. If either of these conditions are threatened, there is nothing to prevent the parties to the statutory contract created in PERS from bringing a cause of action for breach of fiduciary duty.
IV.
CONCLUSION
Accordingly, we grant the writ of mandamus sought by the relator.
Writ granted.
. House Bill 4702 (1998) was passed by the ' Legislature on March 21, 1998 and was effective from passage.
. House Bill 4702 amends and adds to Chapter 12, Article 6 of the West Virginia Code which deals with the West Virginia Investment Management Board. It amends and adds to Chapter 31, Article 20, the article dealing with the West Virginia Regional Jail and Correctional Facility Authority. Finally, it amends Chapter 33, Article 3, Sections 14, 15 and 17 of the W.Va.Code which deal with Licensing, Fees and Taxation of Insurers.
. The purpose of the Modern Investment Management Amendment, as stated by the Legislature, is "[t]o authorize the investment of state or public funds in common stocks and other equity investments and to further require the Legislature to establish guidelines and procedures for the prudent investment of such funds."
. We note that there is nothing in our existing law to prevent the Investment Management Board from investing PERS monies in the New York stock and bond markets where jail construction bonds from other states are sold. Accepting the respondent's argument would produce the anomalous result of leaving this state's jail facilities unfunded and neglected while PERS funds were used to build new jails in Texas, Indiana or any other state. Regardless of what we do in the instant case, PERS monies will be invested out of slate.
. In Syllabus Point 2 of Hickson v. Kellison, 170 W.Va. 732, 296 S.E.2d 855 (1982), this Court stated, "Certain 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 and Article III, Section 5 of the West Virginia Constitution." See also Syllabus Point 2, Crain v. Bordenkircher, 176 W.Va. 338, 342 S.E.2d 422 (1986); and Syllabus Point 2, Facility Review Panel v. Holden, 177 W.Va. 703, 356 S.E.2d 457 (1987). Further, "[i]ndependent of any constitutional considerations there are statutory provisions in our State which reflect a legislative mandate that county jails be operated at certain minimal standards." Syllabus Point 3, Hickson, supra. This Court has recognized that "[o]nce a state legitimately deprives a person of his liberty, it is required to shoulder the economic burden necessary to preserve the constitutional rights retained by the person within the walls of the jail or prison.” Facility Review Panel, 177 W.Va. at 709-710, 356 S.E.2d at 463-464, quoting Dawson v. Kendrick, 527 F.Supp. 1252, 1283 (S.D.W.Va.1981).
In addition, we note that one of the purposes of House Bill 4702 is also the renovation and improvement of existing facilities and the construction of new facilities for detained juveniles. In the recent case of State ex rel. West Virginia Department of Health and Human Resources v. Frazier, 198 W.Va. 678, 482 S.E.2d 663 (1996), this Court recognized the problems of limited funding and restricted space for specified types of juvenile housing, talcing special note of the ever-present problem of no positions for status offenders.
. We believe also that the provisions of House Bill 4702 do not violate the spirit of Article X, Section 4 of our Constitution. As noted above, the basic intent and purpose of Article X, Section 4 is to prohibit any legislative act which would bind subsequent legislatures to make appropriations from the general revenue fund in subsequent fiscal years. By creating a special fund in the form of the insurance tax fund from which to pay the return of PERS capital and investment earnings, subsequent legislatures are not bound to appropriate monies from the general revenue fund for this purpose. Therefore, the funding mechanism in House Bill 4702 accords with the purpose of Article X, Section 4.
. We note that the Investment Management Board fulfilled its fiduciary duty in this case by refusing to make the investment mandated by House Bill 4702 in order to ascertain by judicial determination the legality of the investment. | [
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PER CURIAM:
This criminal appeal was filed by the defendant, Daniel William Goff (hereinafter Goff), from an order of the Circuit Court of Jefferson County denying his motion for reconsideration of the court’s sentencing order. Goff was sentenced to 15 to 35 years in the penitentiary after a jury conviction for sexual assault in the first degree. The motion for reconsideration of sentence requested the placement of Goff, as a youthful offender, at the Anthony Center. Upon a review of the parties’ arguments and the record, we affirm the circuit court.
I.
FACTUAL BACKGROUND
On March 6, 1996, Goff met the victim in this case, A.A., while playing basketball at a junior high school in Jefferson County. After being told they had to leave the area, Goff and A.A. agreed to go to a nearby elementary school playground to continue playing basketball. Goff asked A.A. to ride with him in his car to the elementary school. A.A. refused. A.A. indicated that he would walk to the school. Goff drove his car to the school. He parked his car in the yard of a nearby residence. Goff and A.A. played basketball for a brief period. They then sat down on a bench to talk. No one other than Goff and A.A. were in the area at the time.
After a brief conversation A.A. stated he was going home. Goff attempted to trip A.A. as he was leaving. A.A. did not fall. Goff then grabbed A.A. and dragged him to a grassy area near the basketball court. Goff forced A.A. to the ground and pulled down A.A.’s pants. A.A. pleaded with Goff to release him. Goff responded “shut up or else I will kill you.” Goff took off a sock and placed it in A.A.’s mouth to silence him. Goff then began performing oral sex on A.A. Goff released A.A., and the child ran. A.A. knocked on the door of several homes in the area and eventually found a couple at home. The couple contacted A.A.’s mother by phone, and subsequently drove him home.
Shortly after A.A. was taken home, Trooper D.D. Forman arrived at A.A.’s home in response to a 911 call that a child had been sexually assaulted. Trooper Forman obtained a statement from A.A., which included Goffs first name, a description of him, as well as a description of his car. Trooper Forman investigated the crime scene and found the white sock that had been stuffed in A.A’s mouth by Goff. Further investigation led Trooper Forman to Goffs home. Goff voluntarily accompanied Trooper Forman to the state police detachment, and Goff gave Trooper Forman a statement admitting to the sexual assault of A.A. Subsequently, Goff was indicted for committing the offense of sexual assault in the first degree.
Goffs trial occurred on March 13, 1997. The State called two witnesses, A.A. and Trooper Forman. Goff testified. He was the only witness called by the defense. Goff denied having any type of sexual contact with A.A. Goff argued that his confession to Trooper Forman was false and was a product of law enforcement intimidation. The jury returned a verdict finding Goff guilty of sexual assault in the first degree.
Goff was sentenced on May 5, 1997. At the sentencing hearing, Goff chose to exercise his right of allocution. Goff spoke at length denying he was guilty of any offense against A.A. In sentencing Goff to 15 to 35 years of imprisonment, the trial court stated:
I’m rejecting any motion of probation. I’m further rejecting any other matters concerning a lesser sentence or referral to the youthful offenders facility.... You, sir, will not admit the crime you have been convicted of. Therefore there is no rehabilitation.
On August 4, 1997, Goff filed a motion for reconsideration of the sentence. The motion requested the trial court suspend the sentence of imprisonment and commit Goff to the Anthony Center for youth offenders. Goff “fully admitted] to his offense unlike his appearance at his Sentencing Hearing where he continued to deny his involvement and protest the evidence.”' An evidentiary hearing was held on November 19, 1997. Goff proffered the testimony of Dr. Allan Scott Muller, a clinical psychologist. Dr. Muller opined that confinement and treatment at the Anthony Center was appropriate. By order filed December 2, 1997, the circuit court denied the motion for reconsideration. The following reasons were given by the court in denying the motion:
1. The defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution.
2. The record in this matter establishes that there is a substantial risk that the defendant would commit another crime during any period of probation or conditional discharge.
3. Release, reduction, probation, or conditional discharge or suspension in placing the defendant at the Anthony Center would unduly depreciate the seriousness of the defendant’s crime.
4.The Court looking at the age of the victim and the defendant’s refusal to admit his crime and show remorse during the trial, at sentencing, and only reversing his posture for purposes of the hearing for reconsideration leads the Court to believe that the original sentence imposed is appropriate.
Goff appeals the order denying his motion for reconsideration. In this appeal Goff alleges the following: (1) the circuit court’s findings of fact were clearly erroneous, (2) the circuit abused its discretion in denying the motion, and (3) the sentence imposed was constitutionally impermissible.
II.
STANDARD OF REVIEW
Goffs motion for reconsideration was made pursuant to Rule 35(b) of the West Virginia Rules of Criminal Procedure. This Court set out the standard of review for a trial court’s decision on a Rule 35 motion in syllabus point 1 of State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996):
In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under Rule 35 of the West Virginia Rules of Criminal Procedure, we apply a three-pronged standard of review. We review the decision on the Rule 35 motion under an abuse of discretion standard; the underlying facts are reviewed under a clearly erroneous standard; and questions of law and interpretations of statutes and rules are subject to a de novo review.
As a general matter, a Rule 35 motion is not reviewable by this Court absent an abuse of discretion. Head, 198 W.Va. at 301, 480 S.E.2d at 510. We crystallized this principle in syllabus point 4 of State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982), wherein we held “[sjentences imposed by the trial court, if within statutory limits and if not based on some [imjpermissible factor, are not subject to appellate review.” See Syl. pt. 12, State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996); Syl. pt. 9, State v. Hays, 185 W.Va. 664, 408 S.E.2d 614 (1991).
III.
DISCUSSION
A. The Circuit Court’s Findings of Fact
The circuit court’s order set out four specific findings, each of which Goff challenges. First, the circuit court determined that Goff needed correctional treatment most effectively provided by his commitment to a correctional institution. Goff argues that his placement at the Anthony Center is appropriate as he will not receive rehabilitative treatment while incarcerated in prison. Also, Goff asserts that upon release he will be “more prone to violence than he presently is” if he remains in the prison system. The State takes the position that rehabilitative services are provided by the prison system to all inmates. This Court noted in syllabus point 2 of Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981), that “[i]nmates incarcerated in West Virginia State prisons have a right to rehabilitation established by W.Va.Code Secs. 62-13-1 and 62-13-4 [1997], and enforceable through the substantive due process mandate of article 3, section 10 of the West Virginia Constitution.” Goffs argument is flawed. No evidence was presented to the trial court, (nor proffered to this Court), to demonstrate that rehabilitative services are not being provided to prison inmates. The State correctly argues that Goff failed to show that the Anthony Center offers some unique sexual oriented rehabilitative service not being offered by the prison system. In fact, during the hearing on the reconsideration motion, Dr. Muller was unable to inform the court of any unique services that the Anthony Center would provide to Goff:
Q. I wanted to ask the doctor if he’s aware of what services Anthony provides? A. As far as I know that they do provide counseling, social skills, there’s vocational training as well. All of these training and treatments play into what is needed for somebody who suffers—
Q. Have you talked with the Anthony Center specifically about what they might have that would be appropriate?
A. No, I have not.
The second finding made by the circuit court was that the record in the case established that there is a substantial risk that Goff would commit another crime during any period of probation or conditional discharge. Goff asserts there was no evidence suggesting he would commit another crime. However, Dr. Muller testified, in response to questioning by the circuit court, that if Goff “doesn’t learn any other ways of dealing with what’s going on inside of him and his unstable personality ... I think its [sic] just as likely that he will act out again.” Dr. Mul ler’s report characterized Goff as “impulsive, unpredictable and nonconformist.” Dr. Muller wrote that “[although [Goff] does not appear to be a fixated pedophile, he does have the obsessive fantasy and masturbation cycle which is often characteristic of the disorder.” Dr. Muller opined when Goff is released from confinement, Goff should not be allowed unsupervised contact with children of any age or be in a position of authority over or have responsibility for children of any age.
The third finding made by the circuit court was that placing Goff at the Anthony Center would unduly depreciate the seriousness of Goffs crime. Goffs brief argues that this finding is erroneous because “[t]he facts of this case do not bear out overly tragic circumstances. This was one lick on an 11 year old boy’s penis.” The State counters that the “[d]efense completely ignores the fact that an eleven-year-old boy was forcefully subjected to an emotionally disturbing homosexual act.” There can be little debate that sexual assault of a minor is profoundly tragic. “Children are the most vulnerable of victims, suffering traumatic and frequently life-long physical and emotional damage.” Commentators have suggested that an alarmingly large number of male children are victims of sexual assault. However, because of under-reporting, a true picture of this class of victims is not known. Researchers have found that it is a “common clinical experience for boys to feel that because they responded [to the sexual assault], it must mean that whoever victimized them knew they would react and had therefore picked them out because of some ‘sign’ of homosexuality.” Moreover, “[s]exually abused boys experience sexual identity confusion and fears about homosexuality ..., as well as fears that they may become child sexual abusers themselves.”
The fourth finding made by the circuit court was that the original sentence imposed was appropriate in view of the age of the victim, and Goffs refusal to admit his crime and show remorse during the trial and at sentencing. The order further observed that Goff again admitted his crime for the sole purpose of the reconsideration hearing. Goff challenges this finding with an argument that the trial court penalized him for refusing to give up his right against self-incrimination during the trial. Goff contends that this finding presents a due process violation under Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978). Bordenkircher held that “[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort[.]” The State correctly points out that the sound principle announced in Bordenkircher is inapplicable to this case. Bordenkircher was concerned with prosecutorial misconduct by threatening a defendant with reindictment on a more serious charge should the defendant not plead guilty to the charge presented. Moreover, in syllabus point 2 of State v. Finley, 177 W.Va. 554, 355 S.E.2d 47 (1987), Justice McHugh clearly announced that “[a] sentencing judge, in evaluating a defendant’s potential for rehabilitation and in determining the defendant’s sentence, may consider the defendant’s false testimony observed during the trial.” In United States v. Grayson, 438 U.S. 41, 54, 98 S.Ct. 2610, 2617, 57 L.Ed.2d 582 (1978), the court held that “[t]here is no protected right to commit perjury.” Gray-son also indicated that “[a] defendant’s truthfulness or mendacity while testifying on his own behalf, almost without exception, has been deemed probative of his attitudes toward society and prospects for rehabilitation and hence relevant to sentencing.” Id., 438 U.S. at 50, 98 S.Ct. at 2616.
Goff confessed to Trooper Forman that he sexually assaulted A.A. Goff then recanted his confession. Then, while under oath, Goff told the jury and court that he did not sexually assault A.A. During sentencing Goff again denied sexually assaulting A.A. Only after sentencing did Goff once again admit to sexually assaulting A.A. Goff now asks this Court to find erroneous the trial court’s consideration of his pattern of deception and lies during the hearing for reconsideration of sentencing. We find no merit in Goffs first assignment of error.
B. The Sentence Imposed
Goffs final argument is that the sentence imposed was constitutionally impermissible. This Court held in syllabus point 8 of State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980), that “Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: ‘Penalties shall be proportioned to the character and degree of the offence.’ ” In syllabus point 5 of State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983), we indicated that
[pjunishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity, thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a penalty that is not proportionate to the character and degree of an offense.
Two tests are applied to determine whether a sentence is so disproportionate to a crime that it violates the State Constitution. Under the first test this Court must determine whether the sentence for the particular crime shocks the conscience of the Court and society. If a sentence is so offensive that it is found to shock the conscience, the inquiry need not further proceed. Such a sentence must be vacated. See Cooper, 172 W.Va. at 272, 304 S.E.2d at 857. However, when it cannot be said that a sentence shocks the conscience, the second test is triggered. The second test was established in syllabus point 5 of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981):
In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction.
Goff contends that his sentence shocks the conscience. Among the allegations Goff offers to support his position, is that he and A.A. “had a chance meeting on a basketball court which resulted in the [defendant] pushing the victim on the ground and licking his penis once[.]” Goff noted that no weapon was used and no physical injury resulted. Ultimately, Goffs rendition of the surrounding circumstances of his offense omits the fact that the psychological injuries sustained by A.A. are quite severe. Without hesitation, this Court concludes that the act of using a child to gratify one’s perverse sexual appetite “shocks the conscience.” Therefore, we conclude that the trial court’s sentence for such a crime does not shock the conscience.
The second part of our analysis requires this Court to consider the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within our same jurisdiction. As to the nature of the offense, Goff argues that it “is serious and emotionally violent, though not physically violent.” The State counters, correctly so, that this offense involved physical force on the part of Goff against a child of tender years. “This compounded by the fact that it involved a homosexual act.” As to the legislative purpose, Goff contends that while the legislature intended to be tough on sexual offenders, a door for probation was left open, as well as treatment under the youth offender statute. The point missing in Goffs argument is that lesser punishment for sexual assault is not to be indiscriminately awarded. A defendant receiving probation or Anthony Center treatment for sexual assault in the first degree must, at a minimum, display honest remorse.
With respect to a comparison of the punishment with what would be inflicted in other jurisdictions, Goff has cited law from Pennsylvania, Maryland and Virginia. We are not persuaded by Goffs arguments. Goff concedes that all three jurisdictions have sexual offense statutes that distinguish sexual conduct, for punishment purposes, differently than West Virginia. All three jurisdictions provide optional statutes that have lesser charges and punishments. The State points to Nevada, Georgia, Utah and Washington as representative of jurisdictions with tough penalties for sexual assault like West Virginia. In the final analysis, the State is correct in noting that jurisdictions vary widely in their classification and punishment for the type of assault occurring in the instant case. West Virginia is not alone in the severity of its punishment. The final consideration requires comparison of the challenged sentence with the punishment for other offenses within the State. Goff, unconvincingly, has attempted to compare his punishment with the punishment for first degree murder. Goff notes that if a jury convicts a defendant for first degree murder with mercy, such a defendant is eligible for parole in 15 years. Nevertheless, Goffs punishment does not make him eligible for parole until after 15 years. The State points out that eligibility for parole and obtaining parole are different. That is, the murderer may not be released from prison. In contrast, Goffs sentence automatically terminates after 35 years. As such, we find that the sentence in this case does not violate the proportionality principle found in Article III, Section 5 of the State Constitution.
IV.
CONCLUSION
In view of the foregoing, we affirm the circuit court’s sentencing order of 15 to 35 years in the penitentiary.
Affirmed.
. At the time of the incident Goff was 18 years old.
. Consistent with our prior practice, we identify the infant by initials due to the sensitive nature of this case. See In re Jonathan P., 182 W.Va. 302, 303 n. 1, 387 S.E.2d 537, 538 n. 1 (1989). At the time of the incident A.A. was 11 years old.
.A.A. testified: "He put his tongue on my penis and I felt his teeth touching.... He licked it twice. I kept begging him to let me go.... He licked it again and let me go.”
. The owner of the residence near the elementary school, where Goff had earlier parked his car, contacted the police complaining about the vehicle parked at the residence. The resident gave police the license plate number and description of the car. The police matched the description of the car given by the resident with A.A.'s description of the car driven by Goff. Using the license plate number, the police were able to obtain Goffs address.
. Goff was informed of his Miranda rights, which he waived, prior to being questioned.
. The statute Goff was indicted under was W.Va. Code § 61-8B-3 (1991), which reads:
(a) A person is guilty of sexual assault in the first degree when:
(1) Such person engages in sexual intercourse or sexual intrusion with another person and, in so doing:
(1) Inflicts serious bodily injury upon anyone; or
(ii) Employs a deadly weapon in the commission of the act; or
(2) Such person, being fourteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is eleven years old or less.
(b) Any person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than fifteen nor more than thirty-five years, or fined not less than one thousand dollars nor more than ten thousand dollars and imprisoned in the penitentiary not less than fifteen nor more than thirty-five years.
(Italics added).
. Goff also filed a petition for appeal of his conviction. His petition was denied by this Court on November 14, 1997.
.The youth offender treatment sought by Goff is governed by W.Va.Code § 25-4-6 (1975), which provides:
The judge of any court with original criminal jurisdiction may suspend the imposition of sentence of any male youth convicted of or pleading guilty to a criminal offense, other than an offense punishable by life imprisonment, who has attained his sixteenth birthday but has not reached his twenty-first birthday at the time of the commission of the crime, and commit him to the custody of the West Virginia commissioner of public institutions to be assigned to a center. The period of confinement in the center shall be for a period of six months, or longer if it is deemed advisable by the center superintendent, but in any event such period of confinement shall not exceed two years. If, in the opinion of the superintendent, such male offender proves to be an unfit person to remain in such a center, he shall be returned to the court which committed him to be dealt with further according to law. In such event, the court may place him on probation or sentence him for the crime for which he has been convicted. In his discretion, the judge may allow the defendant credit on his sentence for time he has spent in the center.
When, in the opinion of the superintendent, any boy has satisfactorily completed the center training program, such male offender shall be returned to the jurisdiction of the court which originally committed him. He shall be eligible for probation for the offense with which he is charged, and the judge of the court shall immediately place him on probation. In the event his probation is subsequently revoked by the judge, he shall be given the sentence he would have originally received had he not been committed to the center and subsequently placed on probation. The court shall, however, give the defendant credit on his sentence for the time he spent in the center.
Any male youth between the ages of ten and eighteen committed by the judge of any court of competent jurisdiction for any of the causes, and in the manner prescribed in article five, chapter forty-nine of this code, may, if such youth is or has attained the age of sixteen, be placed in a center or transferred from the industrial school or like facility to a center and back to such facility by the commissioner of public institutions, if he deems it proper for the youth’s detention and rehabilitation.
(Italics added)
. Dr. Muller generated a report based, in part, upon two interviews with Goff. The report was introduced into evidence at the reconsideration hearing. In the report Dr. Muller indicated the following:
I endorse the Anthony Center for youthful offenders as an appropriate placement for Mr. Goff, with the understanding that while at the program and/or upon release, he be ordered to seek treatment services from an appropriately credentialed provider. Hopefully, this would occur as a condition of probation/parole. Additionally, in order to protect the community and family members, it is recommended that when released from confinement:
1)Mr. Goff should refrain from all behaviors with his family and in the community which could be interpreted as or could lead to molestation. These include but are not limited to, wrestling, tickling, holding on his lap, bathing, dressing, putting to bed, attending to bathroom or hygiene functions, or taking photographs of children or adolescents.
2) Mr. Goff should not be allowed unsupervised contact with children of any age, of either gender or sexual orientation. Supervision should consist of eye contact whenever he is in physical proximity to a child or adolescent. The supervisor should be an adult.
3) Mr. Goff should not be in a position of authority over or have responsibility for children of any age or either gender. This includes, but is not limited to, work, recreational, or social settings.
. Rule 35(b) provides:
(b) Reduction of Sentence — A motion to reduce a sentence may be made, or the court may reduce a sentence without motion within 120 days after the sentence is imposed or probation is revoked, or within 120 days after the entry of a mandate by the supreme court of appeals upon affirmance of a judgment of a conviction or probation revocation or the entry of an order by the supreme court of appeals dismissing or rejecting a petition for appeal of a judgment of a conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.
. The most troubling fact noted by the State is that: "The Anthony Center’s population consists of boys as young as sixteen years of age. This becomes significant when considering that Dr. Muller reported that [Goff] possessed characteristics of a pedophile. Dr. Muller also reported that [Goff] is subject to '[s]elf-defeating asocial actions ... which can include sexual and homosexual assault.’ ”
. William Winslade, T. Howard Stone, Michele Smith-Bell & Denise M. Webb, “Castrating Pedophiles Convicted of Sex Offenses Against Children: New Treatment or Old Punishment?” 51 SMU L.Rev. 349, 351 (1998).
. Id., at 358.
. Bill Watkins & Arnon Bentovim, The Sexual Abuse of Male Children and Adolescents: A Review of Current Research, 33 J. Child Psychol. & Psychiatry 197, 202 (1992).
. Winslade, Stone, Smith-Bell & Webb, supra note 12, at 355 n. 20. The authors observed that "[s]ome differences between sexually abused boys and girls have been noted, the most apparent being that girls tend to exhibit sexually reactive behavior that may place them at further risk of sexual abuse, while boys have a greater tendency towards sexual aggression and engaging in coercive sexual behavior with other children[.]” Id.
. Goff’s second assignment of error is equally without merit. It essentially repeats previous contentions and argues that the circuit court failed to consider the rehabilitation goal of the criminal justice system. The initial finding by the trial court clearly recognized the goal of rehabilitation. The trial court's first finding stated without ambiguity that "[t]he defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution.”
. Additionally, Goff argued that he had no prior criminal record. He believes he is a good candidate for rehabilitation. He now has empathy for the victim. Goff also argues that the presentence report recommended that he be committed to the Anthony Center. Finally, Goff argues that if he had been five weeks younger, the matter would have been governed by the juvenile laws. | [
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PER CURIAM:
Gladys Jeanette Courtless, individually and as guardian and next friend of Bobby Thomas Courtless (hereinafter “Appellant”) appeals the Circuit Court of Kanawha County’s stay of discovery and grant of summary judgment in favor of Appellee Princess Beverly Coal Company (hereinafter “Princess”). The Appellant contends that Princess was properly included in the Appellant’s theory of liability through the doctrine of respondeat superior and that the lower court erred in dismissing Princess on summary judgment. We reverse and remand.
I. FACTS
On May 16, 1995, Bobby Courtless, while riding his bicycle, was struck by a vehicle driven by David Clyde Jolliffe. Bobby was rendered permanently disabled due to the injuries sustained in that accident and is now a paraplegic. Mr. Jolliffe was employed by Princess and was en route to work at the time of the accident. While traveling from his home to the Princess mine site, Mr. Jol-liffe had stopped to buy shocks for his vehicle.
On August 31, 1995, the Appellants filed a civil action against both Mr. Jolliffe and Princess, alleging that Princess was liable under the doctrine of respondeat superior. Discovery was initiated, and it was confirmed that although Mr. Jolliffe owned the vehicle, Princess paid Mr. Jolliffe $400 monthly, the amount of the monthly payment on the truck. Princess also paid maintenance and repair costs on Mr. Jolliffe’s truck, and Mr. Jolliffe had free use of gasoline from the Princess gas tanks. In exchange, Mr. Jolliffe used the vehicle at the Princess sites on a daily basis.
On December 4, 1995, Princess filed a motion for summary judgment, alleging that Mr. Jolliffe was not acting within the scope of his employment at the time of the accident. On April 25, 1996, the lower court stayed additional discovery regarding Princess pending Mr. Jolliffe’s deposition. On October 2, 1996, the lower court ruled as follows, by letter:
This Court does not find that the deposition testimony and/or interrogatory responses support an exception to the “coming and going” rule. In other words, although Mr. Jolliffe stopped to get shock absorbers, which were ultimately paid for by his employer, and although he used his vehicle on the job, it is my finding that no genuine issue of material fact exists as to whether or not Mr. Jolliffe was acting in the scope of his employment at the time of this accident.
On November 12, 1996, the lower court entered summary judgment in favor of Princess, incorporating the October 2, 1996, letter by reference.
II. ASSIGNMENTS
The Appellant appeals the judgment of the lower court, contending that the court erred in granting summary judgment where sufficient evidence existed to raise a jury question regarding whether Mr. Jolliffe was acting within the scope of his employment at the time of the accident. The Appellant further contends that the lower court erred in preventing additional discovery regarding Princess and that such action prevented the development of additional facts, such as the tax treatment of the vehicle, which could have potentially supported a finding of vicarious liability.
We review this summary judgment issue under the standard of syllabus point one of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), as follows: “A circuit court’s entry of summary judgment is reviewed de novo.” We also remain cognizant of the fact that “[t]he question to be decided on a motion for summary judgment is whether there is a genuine issue of fact and not how that issue should be determined.” Syl. Pt. 5, Aetna Casualty & Surety Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). In syllabus point six of Aetna, we explained: “A party who moves for summary judgment has the burden of showing that there is no genuine issue of fact and any doubt as to the existence of such issue is resolved against the movant for such judgment.” Syl. Pt. 6, Aetna Casualty & Surety Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). “ “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 Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).’ Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).” Syl. Pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).
III. RESPONDEAT SUPERIOR AND SCOPE OF EMPLOYMENT
The Appellants instituted their action against Princess under the doctrine of respondeat superior. As we have recognized, “[t]he fundamental rule in West Virginia is that if it can be shown that an individual is an agent and if he is acting within the scope of his employment when he commits a tort, then the principal is liable for the tort as well as the agent.” Barath v. Performance Trucking Co., Inc., 188 W.Va. 367, 370, 424 S.E.2d 602, 605 (1992). As we stated in syllabus point three of Musgrove v. Hickory Inn, Inc., 168 W.Va. 65, 281 S.E.2d 499 (1981):
An agent or employee can be held personally liable for his own torts against third parties and this personal liability is independent of his agency or employee relationship. Of course, if he is acting within the scope of his employment, then his principal or employer may also be held liable.
In Griffith v. George Transfer & Rigging, Inc. 157 W.Va. 316, 201 S.E.2d 281 (1973), we explained:
The universally recognized rule is that an employer is liable to a third person for any injury to his person or property which results proximately from tortious conduct of an employee acting within the scope of his employment. The negligent or tortious act may be imputed to the employer if the act of the employee was done in accordance with the expressed or implied authority of the employer.
157 W.Va. at 324-25, 201 S.E.2d at 287. In Griffith, we discussed this Court’s judgment in Cochran v. Michaels, 110 W.Va. 127, 157 S.E. 173 (1931), and noted the following language from Mechem on Agency, Second Edition, 1879:
[A] servant is acting within the course of his employment when he is engaged in doing, for his master, either the act consciously and specifically directed or any act which can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of that act or a natural, direct and logical result of it. If in doing such an act, the servant acts negligently, that is negligence within the course of the employment.
In Cochran, this Court emphasized the need to examine the relation which the act bears to the employment and, in the syllabus, explained that “[a]n act specifically or impliedly directed by the master, or any conduct which is an ordinary and natural incident or result of that act, is within the scope of the employment.”
As we noted in Griffith, “ ‘[sjcope of employment’ is a relative term and requires a consideration of surrounding circumstances including the character of the employment, the nature of the wrongful deed, the time and place of its commission and the purpose of the act.” 157 W.Va. at 326, 201 S.E.2d at 288. In Barath, for instance, we reversed the lower court’s summary judgment determination and remanded for the accumulation of additional facts where the victim of a beating brought an action against the tortfea-sor’s father’s trucking company. 188 W.Va. at 371, 424 S.E.2d at 606. We found that the evidence raised a genuine issue of material facts regarding whether the tortfeasor was acting within the scope of his employment when he committed the battery and explained as follows:
While the evidence on this point was exceedingly indirect, this Court believes that it did suggest that union unrest might have caused financial losses to Performance Trucking Co., Inc., that David Cook, Sr., as manager of the company, was aware of and felt the losses and had developed animosity toward the appellant, and as a consequence had directed his son to “beat” the appellant. Overall, it is suggested, but certainly not proven, that David Cook, Jr., who might have been an employee of Performance Trucking Co., Inc., at the time of the battery in this case, might have been acting within the scope of his employment at the time of the battery.
As previously stated, this Court has held that summary judgment should be granted only when inquiry concerning the facts is not desirable to clarify the application of the law. In this case, the facts were not sufficiently developed for the Court to determine what the situation was. Accordingly, this Court believes that the summary judgment entered by the circuit court should be set aside, and this case should be remanded for additional development.
Id.
In the syllabus of Cremeans v. Maynard, 162 W.Va. 74, 246 S.E.2d 253 (1978), we stated that “ ‘[w]hen the evidence is conflicting the questions of whether the relation of principal and agent existed and, if so, whether the agent acted within the scope of his authority and in behalf of his principal are questions for the jury.’ Syl. pt. 2, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894 (1958).”
IV. GOING AND COMING RULE AND SPECIAL ERRAND EXCEPTION
In the case sub judice, Princess contends that the lower court was accurate in basing its determination upon the “going and coming rule,” which essentially declares that the doctrine of respondeat superior is not typically applicable while the employee is coming or going to work. The “going and coming rule” has its foundations in workers compensation law and is articulated as follows in syllabus point two of De Constantin v. Public Service Commission, 75 W.Va. 32, 83 S.E. 88 (1914):
An 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 (Workmen’s Compensation) fund, unless 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.
As the Appellants emphasize, however, the “going and coming rule” traditionally applies where the only evidence linking the employer to the accident was the fact that the employee was coming or going to work. Various nuances of the rule may serve to alter its application where additional evidence exists linking the employer to the accident. For instance, in Harris v. State Workmen’s Compensation Commissioner, 158 W.Va. 66, 208 S.E.2d 291 (1974), we noted the general rule that injuries incurred through the ordinary use of streets and highways while going or coming to work are not considered within the scope of employment “ ‘[ujnless such use is required of the employee in the performance of his duties for the employer.’ ” 158 W.Va. at 70, 208 S.E.2d at 293, quoting Buckland v. State Compensation Commissioner, 115 W.Va. 323, 326, 175 S.E. 785, 787 (1934). That exception was designated as the “special errand” exception to the “going and coming rule” and was held inapplicable in Harris due to the absence of any requirement that the employee return home to retrieve tools while en route between job sites. Id.
Professor Larson, in Larson’s Workmen’s Compensation Law, addresses the special errand rule, as follows:
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.
1 Larson’s Workmen’s Compensation Law s 16.10 (1972).
In Standley v. Johnson, 276 So.2d 77 (Fl. App.1973), a case addressing the “going and coming” rule within the context of a respon-deat superior claim, an employee had traveled to a drugstore to purchase medicine for his wife on his way to work. 276 So.2d at 78.
After getting the medicine, he went to a gas station across the street from the drugstore and purchased a gallon can of gas for use in the lawn mower at the nursery. Johnson then dropped the medicine off at his home and proceeded to work, stopping at another service station to purchase gas for his truck. As Johnson pulled out of this second service station, he turned into the oncoming traffic, striking Mrs. Standley’s car. Part of Johnson’s work at the nursery was keeping the lawn mower filled with gas and his truck was used in his work for hauling dirt and fertilizer. At the time of the accident, Johnson also had some of Mr. White’s tools in his truck which he had carried home that weekend.
Id.
The plaintiff in Standley maintained that the lower court erred in “determining as a matter of law that no material issue of fact exists as to whether employee Johnson was within the scope of his employment at the time the accident occurred, thereby rendering employer White vicariously liable for Johnson’s negligence,” and the court in Standley agreed. Id. The Standley court reasoned as follows:
It is the well recognized rule that an employee driving to or from work is not within the scope of employment so as to impose liability on the employer. This is true even though the car driven by the employee is used in his work and partly maintained by the employer, Foremost Dairies, Inc. of the South v. Godwin, 158 Fla. 245, 26 So.2d 773 (1946).
However, in the case at bar, Johnson was doing more than merely driving to work. He adduced evidence that he had been instructed to keep the lawn mower filled with gas and was in fact transporting gas to the nursery as part of his job and for the benefit of his employer.
Id.
In Skinner v. Braum’s Ice Cream Store, 890 P.2d 922 (Okl.App.1995), the Oklahoma Supreme Court acknowledged exceptions to the “going and coming rule.” “Liability is imposed upon the employer if the employee is rendering a service, either express or implied, to the employer with his/her consent. An exception also exists if the trip involves an incidental benefit to the employer not common to ordinary commuting trips of the work force.” Id. at 924.
The issue on the motion for summary judgment in the present case concerned the presence or absence of a genuine issue of material fact regarding whether Mr. Jolliffe was acting within the scope of his employment at the time of the collision that caused Bobbie Courtless’ injuries. That inquiry necessarily involved a determination of the scope of employment, leading to evaluation of the coming and going rule and its application to the facts of this case. To develop a complete and exhaustive determination of that application, all facts surrounding Princess’ connection to the truck involved in the accident and the purposes for the travel undertaken by Mr. Jolliffe on the day of the accident must be discovered. The granting of summary judgment prematurely discontinued that gathering process.
We have not previously had occasion to wander extensively through the vicissitudes of the “going and coming rule,” nor to delineate whether the rule as it has been interpreted in the workers compensations context is equally applicable to the tort context. Without a more complete factual record, we decline to render any judgments on these issues at this juncture. As we explained in syllabus point three of Fayette County National Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997), “[a]lthough our standard of review for summary judgment remains de novo, a circuit court’s order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed.” While the lower court’s order included a finding regarding the perceived absence of a genuine issue of material fact as to whether Mr. Jolliffe was acting within the scope of his employment, we conclude that additional discovery regarding potential application of the “going and coming” rule within the scope of employment and respondeat superior should have been permitted prior to a determination on the motion for summary judgment. Particularly where this Court may be compelled to render judgment on an evolving area of law in this state, complete development of an underlying factual record must be undertaken. Further proceedings will improve upon the record, facilitating appropriate resolution and clarification of this area of law which potentially affects significant employer/employee issues. In Atchison, Topeka & Santa Fe Railway Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987), wherein summary judgment had been granted for the employer, the United States Supreme Court determined that the record was insufficient to determine whether particular damages were available. Id. at 567, 107 S.Ct. 1410. The Court, recognizing the necessity for complete factual development prior to pronouncements of legal principles, explained:
[The issue to be decided] is not necessarily an abstract point of law or a pure question of statutory construction that might be answerable without exacting scrutiny of the facts of the case.... [and] might rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activi-ty_ In short, the question ... may not be susceptible to an all-inclusive “yes” or “no” answer. As in other areas of law, broad pronouncements in this area may have to bow to the precise application of developing legal principles to the particular facts at hand.
Buell, 480 U.S. at 568-70, 107 S.Ct. 1410.
Resolving any doubt as to the existence of a genuine issue of material fact against Princess as the movant for summary judgment, we find that the lower court erred in granting summary judgment and we remand for further proceedings. In so doing, we express no opinion regarding the appropriate ultimate resolution of this matter. We find only that a genuine issue of material fact exists and inquiry concerning the facts is desirable to clarify the application of the law.
Reversed and remanded.
. The Appellant maintains that the primary remaining issue of material fact, precluding summary judgment, is whether Mr. Jolliffe was acting within the scope of his employment at the time of the collision. The facts and circumstances necessary to arrive at a conclusion regarding that issue of material fact, the Appellant contends, have not yet been fully developed. Further, the Appellant argues that once those facts and circumstances are discovered, the weighing of that evidence is for the jury and is not a question properly resolved by the court. The outstanding issues for development, according to the Appellant, include the tax treatment of the vehicle; depositions of Mr. Jolliffe’s supervisors regarding the company policy on issues relating to use of private vehicles for company purposes; compensation for wear and tear on personal vehicles used for company business; and whether Mr. Jolliffe's monthly truck allowance and the cost of gasoline, maintenance, and repairs were deducted as business expenses.
. Commentators have cautioned against unbridled application of the same "going and coming" principles to workers compensation cases and tort matters. “Workers' compensation law takes a different approach to exceptions to the going-and-coming rule.... [Workers’ compensation cases are not controlling with respect to exceptions to the going-and-coming rule in cases involving respondeat superior.... Workers’ compensation and respondeat superior law are driven in opposite directions based on differing policy considerations. Workers’ compensation has been defined as a type of social insurance designed to protect employees from occupational hazards, while respondeat superior imputes liability to an employer based on an employee's fault because of the special relationship.... Further, courts heed statutory admonitions for a liberal construction favoring coverage in workers’ compensation cases which are not present in respondeat superior law.” Blackman v. Great American First Savings Bank, 233 Cal.App.3d 598, 604-605, 284 Cal.Rptr. 491 (1991) (citations omitted). | [
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WORKMAN, Justice:
The petitioner, Gregory Burdette, seeks an original jurisdiction writ of mandamus directing the respondent, the Honorable Paul Zakaib, Jr., Kanawha County Circuit Court Judge, to grant his motion for post-conviction DNA Testing that he filed as a part of an underlying habeas corpus action, SER Burdette v. Haynes, Warden, Civil Action No. 07-MISC-139. The evidence the petitioner wants tested is a cigarette butt that was submitted into evidence at his April 11,1986, trial wherein a Kanawha County jury found him guilty of six counts of forgery, six counts of uttering, one count of kidnaping, and one count of first-degree murder for felony murder based upon the underlying crime of robbery. On February 27, 2009, the circuit court denied the petitioner’s motion for post-conviction DNA testing. Thereafter, pursuant to W. Va.Code § 15-2B-14Q) (2004), the petitioner filed the present writ of mandamus with this Court. After reviewing the facts of the ease, the issues presented, and the relevant statutory and case law, this Court finds that mandamus does not lie and therefore the petitioner’s request for a writ of mandamus is denied.
I.
FACTUAL AND PROCEDURAL HISTORY
Vincent Tyree (hereinafter, the “victim”) was a teacher and coach at Sissonville Junior High School. On November 17,1983, he left the school around 3:00 p.m. and disappeared. On November 18, 1983, a hunter found the victim’s body on a hill near a gas pipeline at Second Creek in Kanawha County, West Virginia. According to evidence presented at the petitioner’s trial, the victim had been shot twice in the back of the head and his body had been dragged down a hill. The victim was shot once in the back of the head as he walked up the hill and was shot a second time while lying face down on the ground. The police recovered one .38 caliber bullet from the ground and a second one from the victim’s head. They further found the victim’s checkbook stuffed in a pocket of his jacket. The checkbook had a bloody fingerprint on it, later identified as that of the petitioner’s left middle finger. A cigarette lighter with drywall compound on it was also found near the victim’s body along with a cigarette butt with teeth marks on the filter.
Prior to his disappearance, the victim was in the process of building a three-unit apartment building in Sissonville, West Virginia. He paid for labor and materials by cheek and often kept his checkbook in the glove compartment of his jeep. The victim hired the petitioner to do drywall work for him at the apartment building. It was later determined that the material on the lighter that was found near the victim’s body was consistent with the drywall compound used by the petitioner at the victim’s apartment building.
During their initial investigation, the police spoke with the petitioner to inquire if the victim had been to the construction site on the day of his disappearance. The petitioner stated that he had not been there that day. At a later point, however, the police spoke with the petitioner again as they had ascertained that checks had been stolen from the victim and cashed by the petitioner. In fact, a handwriting expert, a fingerprint expert, and two clerks from the Big H Store connected the petitioner to some, if not all, of the forged checks.
At trial, State Police Serologist Lynn In-man testified regarding her tests of a cigarette butt found at the crime scene. This evidence is also the subject of the petitioner’s current petition for a writ of mandamus in this Court. Ms. Inman explained that the cigarette butt contained the genetic marker ABO Type 0. She further testified that she tested known cigarette butts from the petitioner that were retrieved from his car and house, and determined from saliva found on them that the petitioner was also ABO Type 0. The petitioner did not dispute that this was his blood type. Notwithstanding such testimony, during cross-examination by the petitioner’s attorney, Ms. Inman acknowledged that the cigarette butt in question may not have belonged to the petitioner, and that indeed it could have been used by almost half the people in this country, thus, reducing its believability as evidence against him. Some of her testimony is as follows:
Q. Oh, goodness, does that mean that the cigarette that was found at the scene is my client’s cigarette?
A. No, sir I can only say that the blood types are consistent.
Q. Well, how many — what percentage of the population has 0 type blood?
A. Forty-three percent would be type 0, but eighty percent are’ seeretors, so thirty-four percent would secrete a type 0, on that cigarette butt. •
Q. Thirty-four percent, one-third of the people in this country have type 0 blood then?
A. Thirty-four percent are type 0 secretors.
Q. 0 seeretors?
A. Yes, sir.
Q. And what percent are type 0, forty-three percent?
A Yes, sir.
Q. So, almost half the people in this country have type 0 blood?
A Yes, sir.
Q. Now is the only genetic marker that your laboratory is capable of doing on a saliva examination is that just to determine whether a person’s blood is type A, B, AB, ABO or 0?
A. Yes, sir.
Q. That’s all you can do?
A ' Yes, sir.
Q. You can’t check saliva any further than that?
A. No sir.
Q. [0]h, by the way, did you ever check Greg Burdette’s blood?
A No, sir.
Q. You don’t know what his type is, do you?
A From the known cigarette butts, yes, sir, he is an 0.
Q. But you never checked his blood?
A No, sir.
With regard to the victim’s stolen checkbook, the petitioner admitted at trial that he deceptively filled out and uttered at least six checks that had been stolen from the victim. He further acknowledged that he had obtained approximately $2,300.00 of the victim’s money as a result of stealing and cashing the victim’s checks. He cashed them at the Big H Store using the alias “Dale Burdette.” He also placed his sister’s telephone number on the cheeks.
The petitioner also admitted that he used money from the forged checks to purchase a handgun and ammunition on November 10, 1983, just one week prior to the victim’s murder. He purchased the .38 caliber pistol and bullets using a fraudulent driver’s license with his photograph, but with his brother’s identifying information. While the murder weapon was never found, the bullets recovered from the murder scene were the same caliber as the bullets the petitioner purchased on November 10,1983. The petitioner, however, claimed that he had thrown the gun and the bullets into the river three days after the victim was murdered because he feared the police would find them and charge him with the victim’s murder. He claimed that he threw the gun into the Kanawha River near Patrick Street, but later said he threw it into the river from a bridge on Poca River Road.
The petitioner also gave the police a series of inconsistent and conflicting statements regarding the stolen cheeks and the victim’s murder. In fact, he testified at trial that none of the five statements he gave to the police were true, but that some were only partially true. For instance, the petitioner initially denied any involvement in the underlying crimes except to state that he signed the victim’s name to the checks. Thereafter, upon providing handwriting samples to the State Police, the petitioner then acknowledged that in addition to signing the victim’s name, that he had, in fact, filled out the checks in their entirety and cashed them. He argued, however, that the checks were actually stolen by a Kenneth “Butch” Mitchell, with whom he stated he split the stolen money.
The petitioner next claimed that Mr. Mitchell had killed the victim to cover up the crimes relating to the stolen checks and that he knew nothing about the killing until Mr. Mitchell took him to see the victim’s body. He then asserted that his alleged partner in crime was actually a person named Billy Eads. The petitioner later changed that person’s name to Billy Edens and then to Billy Helmick. In each of the above scenarios, the petitioner claimed that his alleged partner in the forgery and uttering crimes had been caught by the victim in the school parking lot attempting to steal additional cheeks from the glove compartment of the victim’s vehicle. He then stated that this alleged person pulled a gun and made the victim drive the three of them to the remote location at Second Creek where the victim was shot and killed.
The petitioner acknowledged in his statements that the victim’s shoes did not have any fingerprints on them stating that they had been held by a coat. He further stated in one of the statements that he had wiped the victim’s vehicle of any fingerprints. The petitioner also admitted that he had the victim’s blood on his hands. Each of these statements were made before any of the forensic testing had been performed on the items in question and before the information surrounding the victim’s death became public knowledge.
On April 11, 1986, a Kanawha County jury found the petitioner guilty of six counts of forgery, six counts of uttering, one count of kidnaping, and one count of first-degree murder for felony murder based upon the underlying crime of robbery. The jury recommended mercy on the first-degree murder, but did not recommend mercy on the kidnaping conviction. On June 2,1986, the petitioner was sentenced to concurrent sentences— resulting in a life sentence with no possibility of parole.
On August 3, 1989, the petitioner filed a petition for appeal with this Court, but that petition was refused by order entered on November 7, 1989. In 1993, the petitioner filed a petition for writ of habeas corpus in the circuit court of Kanawha County. On July 25, 2003, an evidentiary hearing was held, and on January 26, 2004, the circuit court denied the petitioner’s habeas petition in a detailed sixteen-page opinion that addressed each of the claims on the merits. The petitioner then filed a petition for appeal with this Court, and on January 19, 2005, said petition was refused. On March 28, 2007, the petitioner filed a pro se habeas petition founded upon the alleged false reports by the West Virginia State Police Forensic Laboratory taken during the time that former State Police Serologist Fred Zain was working at the laboratory. Thereafter, the petitioner was appointed counsel who filed a motion for post-conviction DNA testing. A hearing on that motion was held on October 27, 2008, and the circuit court denied the motion on February 27, 2009. The petitioner then filed his present writ of mandamus with this Court as per the requirements of W. Va.Code § 15-2B-14(j).
II.
STANDARD OF REVIEW
As set forth above, the petitioner seeks a writ of mandamus directing the Kanawha County Circuit Court Judge to grant his motion for post-conviction DNA Testing. We have explained that “ ‘ “[m]andamus lies to require the discharge by a public officer of a nondiseretionary duty.” Point 3 Syllabus, State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W.Va. 479 [, 153 S.E.2d 284 (1967) ].’ Syllabus point 1, State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W.Va. 636, 171 S.E.2d 545 (1969).” Syllabus Point 1, State ex rel. Williams v. Department of Mil. Aff., 212 W.Va. 407, 573 S.E.2d 1 (2002). Our standard of review for proceedings in mandamus has long established that:
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). Accord, Syllabus Point 5, Phillip Leon M. v. Greenbrier County Board of Education, 199 W.Va. 400, 484 S.E.2d 909 (1996), modified in part, Cathe A. v. Doddridge County Bd. of Educ., 200 W.Va. 521, 490 S.E.2d 340 (1997); Syllabus Point 2, State ex rel. Blankenship v. Richardson, 196 W.Va. 726, 474 S.E.2d 906 (1996); Syllabus Point 1, Hickman v. Epstein, 192 W.Va. 42, 450 S.E.2d 406 (1994); Syllabus Point 1, State ex rel. McGraw v. West Virginia Ethics Com’n, 200 W.Va. 723, 490 S.E.2d 812 (1997). Likewise, we have stated that a de novo standard of review applies to a circuit court’s decision to grant or deny a writ of mandamus. McComas v. Board of Educ. of Fayette County, 197 W.Va. 188, 193, 475 S.E.2d 280, 285 (1996). Furthermore, “the burden of proof as to all the elements necessary to obtain mandamus is upon the party seeking the relief[,]” 52 Am. Jur. 2d Mandamus § 3 at 271 (2000) (footnote omitted), a failure to meet any one of them is fatal.
With these standards in mind, the assigned error will be considered.
III.
DISCUSSION
As noted above, the petitioner seeks a writ of mandamus under W. Va.Code § 15-2B-14 (2004), claiming that he has a right to post-conviction DNA testing of a cigarette butt that was used as evidence in his underlying trial. He also maintains that he has a right to such testing pursuant to this Court’s decision in In the Matter of Renewed Investigation of the State Police Crime Laboratory, 219 W.Va. 408, 633 S.E.2d 762 (2006) (hereinafter, “Zain III ”) because his conviction falls within the time period of 1979 and 1999, and since a serologist other than Fred Zain offered evidence against him.
The petitioner declares that current DNA testing is more accurate than it was at the time of his trial and that such testing is necessary for him to establish that he was not the secretor of saliva on the cigarette butt found at the crime scene. He argues that this will raise a reasonable probability that the verdict would have been more favorable to him and contends that a DNA test will provide solid evidence that he was not at the murder scene as it will establish that the cigarette butt was not his. Accordingly, the petitioner asserts that he is entitled to DNA testing of the cigarette butt under Zain III, as well as by the fact that he has satisfied the statutory elements for requesting DNA testing relief under W. Va.Code § 15-2B-14.
Conversely, the State maintains that the petitioner failed to fulfill the necessary requirements of both Zain III and W. Va.Code § 15-2B-14 and that this Court should deny his petition for a writ of mandamus. In particular, the State asserts that the evidence the petitioner wants to be tested would not likely produce an opposite result. The State further argues that in Zain III, this Court held that convictions based on false evidence will not be set aside unless it is shown that the false evidence had a material effect on the verdict. The State contends that the petitioner in the case at hand is unable to meet that burden.
In Syllabus Point 1 of Zain III, this Court reiterated 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 shown that the false evidence had a material effect on the jury verdict.’ Syllabus Point 2, Matter of W.Va. State Police Crime Lab., 190 W.Va. 321, 438 S.E.2d 501 (1993) [Zain /].” In Syllabus Point 2 of Zain III, this Court explained that: “‘Serology reports prepared by employees of the Serology Division of the West Virginia State Police Crime Laboratory, other than Trooper Fred S. Zain, are not subject to the invalidation and other strictures contained in In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division, 190 W.Va. 321, 438 S.E.2d 501 (1993) [Zain I].’ Syllabus Point 3, Matter of W.Va. State Police Crime Lab., 191 W.Va. 224, 445 S.E.2d 165 (1994) [Zain II].” Moreover, in Syllabus Point 3 of Zain III, this Court relied on long-standing precedent that a petitioner must show the following:
“ ‘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 [defendant] 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.’ Syllabus Point 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).” Syllabus, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).
The clear import of Zain III is that the evidence sought to be tested must likely produce an opposite result if a new trial were to occur. A defendant simply cannot make unsupported and blanket allegations and expect a circuit court to grant him a new trial. A conclusion to the contrary defies any sense of judicial efficiency and economy and would lead to needless multiple trials. Therefore, we now hold that this Court’s ruling in In the Matter of Renewed Investigation of the State Police Crime Laboratory, 219 W.Va. 408, 633 S.E.2d 762 (2006), does not afford every petitioner with alleged serology issues the right to additional DNA testing. In order to have the right to additional DNA testing, the evidence sought to be tested must likely produce an opposite result if a new trial were to occur, and the evidence cannot be such that its purpose is merely to impeach or discredit a State’s witness.
In this case, the cigarette butt that the petitioner seeks to have tested was merely one piece of the evidence used at his trial. A thorough review of the record reveals that even without the cigarette butt, the State still had overwhelming evidence to convict the petitioner. For instance, the State introduced evidence that a bloody fingerprint that matched the petitioner’s fingerprint was found on the victim’s checkbook; it provided the petitioner’s admission that he forged the victim’s name on several cheeks and cashed those checks; and outlined the petitioner’s ever-changing and inconsistent statements regarding his alleged partner in crime who he claimed actually murdered the victim.
With regard to the petitioner’s numerous statements provided to law enforcement officers, each painted the picture that the petitioner had intimate knowledge of what occurred at the time of the victim’s murder. Furthermore, the fact that the petitioner could not produce his weapon or ammunition, purchased just one week prior to the victim’s murder, and with money obtained by forging the victim’s checks, amounted to even more damaging evidence against him. Likewise, the petitioner’s claim that he had thrown the weapon and ammunition in the river three days after the victim’s death, coupled with the conflicting statements on the location in which he supposedly disposed of them, was all evidence presented to the jury. Moreover, the State presented evidence at trial that the petitioner’s weapon and ammunition were the same caliber as were used in the victim’s murder.
It is clear to this Court that retesting the cigarette butt would be an exercise in futility as the petitioner’s numerous statements put him at the crime scene. While the petitioner denied killing the victim, he stated he was at the crime scene because another person forced him to go there at gunpoint. As such, any subsequent DNA test proving that the cigarette butt was not the petitioner’s would not have altered the result of his trial in any way as there was plenty of other evidence placing him at the crime scene. Furthermore, the jury heard the petitioner’s counsel’s effective cross-examination of Serologist Inman regarding the results of her testing of the cigarette butt wherein she acknowledged that thirty-four percent of the entire country had ABO Type 0 blood, yet it chose to convict him anyway. Thus, in consideration of all of the above, the evidence of the cigarette butt was not “such as ought to produce an opposite result at a second trial on the merits.” Syllabus Point 3, Zain III. Accordingly, the petitioner is not entitled to a writ of mandamus on this issue as he has failed to satisfy the elements of Syllabus Point 2 of Kucera, supra.
This Court also recognizes that the petitioner’s reliance on W. Va.Code § 15-2B-14 is misplaced. As is the case with Zain III, W. Va.Code § 15-2B-14 does not mandate testing in every criminal ease and states that: “A person convicted of a felony currently serving a term of imprisonment may make a written motion before the trial court that entered the judgment of conviction for performance (DNA) testing.” W. Va.Code § 15-2B-14(a). It further explains that “the right to file a motion for post-conviction DNA testing ... is absolute and may not be waived.” W. Va.Code § 15-2B-14(m). Thus, in accordance with West Virginia Code § 15-2B-14 (2004), the West Virginia Legislature provides a defendant the absolute right to ask for DNA testing; however, it does not provide a defendant the absolute right to have DNA testing conducted. A petitioner seeking DNA testing must do more than make an unsupported allegation that he or she is entitled to such testing.
W. Va.Code § 15-2B-14(e)(l) also explains that “[t]he motion [by a petitioner seeking DNA testing] shall be verified by the convicted person under penalty of perjury and must do the following:
(A) Explain why the identity of the perpetrator was, or should have been, a significant issue in the case.
(B) Explain, in light of all the evidence, how the requested DNA testing would raise a reasonable probability the convicted person’s verdict or sentence would be more favorable if the results of DNA testing had been available at the time of conviction.
(C) Make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing sought.
(D) Reveal the results of any DNA or other biological testing previously conduct ed by either the prosecution or defense, if known.
(E) State whether any motion for testing under this section has been filed previously and the results of that motion, if known.
Likewise, W. Va.Code § 15-2B-14(f) provides:
The court shall grant the motion for DNA testing if it determines all of the following have been established: '
(1) The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion;
(2) The evidence to be tested has been subject to a chain of custody sufficient to establish it has hot been substituted, tampered with, replaced or altered in any material aspect;
(3) The identity of the perpetrator of the crime was, or should have been, a significant issue in the ease;
(4) The convicted person has made a prima facie showing that the evidence sought for testing is material to the issue of the convicted person’s identity as the perpetrator of or accomplice to, the crime, special circumstance, or enhancement allegation resulting in the conviction or sentence;
(5) The requested DNA testing results would raise a reasonable probability that, in light of all the evidence, the convicted person’s verdict or sentence would have been more favorable if DNA testing results had been available at the time of conviction. The court in its discretion may consider any evidence regardless of whether it was introduced at trial;
(6) The evidence sought for testing meets either of the following conditions:
(A) The evidence was not previously tested;
(B) The evidence was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results;
(7) The testing requested employs a method generally accepted within the relevant scientific community;
(8) The' evidence or the presently desired method of testing DNA were not available to the defendant at the time of trial or a court has found ineffective assistance of counsel at the trial court level;
(9) The motion is not made solely for the purpose of delay.
In his brief before this Court, the petitioner failed to comply with, or even address in his argument, many of the provisions of W. Va.Code § 15-2B-14(c)(l) or the nine mandatory requirements of W. Va.Code § 15-2B-14(f) that are required for his petition for a writ of mandamus to be granted. Instead, the petitioner makes unsupported blanket assertions that are not based in law or fact. After carefully reviewing all of the information before this Court, it is clear that the cigarette butt the petitioner seeks to have tested was not a material piece of evidence used in his conviction. And, as previously discussed, even if the cigarette butt evidence were removed from his trial in its entirety, there was overwhelming evidence introduced against him at trial that “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.” Syllabus Point 1, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Moreover, the importance of the cigarette butt to the State’s case against the petitioner was significantly diminished by the strong cross-examination by the petitioner’s counsel which left jurors with the information that thirty-four percent of the population of this country had ABO Type 0 blood, and that anyone with that blood type could have left the cigarette butt at the crime scene. Furthermore, the cigarette butt was found in an open wooded area that was frequented by other people. In spite of this, the jury convicted the petitioner on all counts.
Equally important, the petitioner’s own statements put him at the crime scene, which directly conflicts with the petitioner’s argument that proving that the cigarette butt was not his would in some way exonerate him. The following are the petitioner’s answers during cross-examination at trial with regard to his various pre-trial statements placing him at the scene of the crime where the cigarette butt was found:
Q. Who said there was a blood spot up there on the ridge?
A. I did.
Q. Who said that the body was on its face?
A. I did.
Q. Who said it had been shot twice?
A. I did.
Q. Who said that he was shot once while walking up the hill?
A. I did.
Q. And who said that that shot was to the back of the head?
A. I did.
Q. Who said he was shot once while he was facedown on the ground?
A. I did.
Q. Who said the body was turned over?
A. I did.
Q. Who said he was dragged over the hill?
A. I did.
Q. Who said that they had a cigarette in them hand going up the hill?
A. I did.
Q. Who said the Jeep was parked up there close to where Mr. Tyree was shot?
A. I did.
Q. Who said he was pulled by his feet?
A. I did.
Q. Who said his shoes were jerked off?
A. I did.
Q. Who said you drove back down off the hill?
A. I did.
Q. Who said the wallet was taken?
A. I did.
Q. Who said the keys were taken?
A. I did.
Q. Who said a card was taken from Mr. Tyree’s wallet?
A. I did.
Q. Who said that there was a checkbook handled on the scene?
A. I did.
Q. Who said that there was — had blood on their finger?
A. I did.
Q. Who said that the shoes were thrown out in the hollow?
A. I did.
Q. Who said the shoes were thrown to the left?
A. I did.
Q. Who said the Jeep was parked at the church?
A. I did.
Q. Who said it’s their handwriting on them checks?
A. I did.
Q. Who said there was a gas line on the hill?
A. I guess I did. I don’t remember.
Q. I will show you in a minute. Who said he pulled over the hill?
A. I did.
Q. Who said they’d bite their cigarettes?
A. I did.
Q. Who said there was a logging road up there?
A. I did.
Thus, the petitioner fails to demonstrate that “[t]he requested DNA testing results would raise a reasonable probability that, in light of all the evidence, [that his] verdict or sentence would have been more favorable if DNA testing results had been available at the time of conviction.” W. Va.Code § 15-2B-14(f)(5). Likewise, the petitioner has failed to make “a prima facie showing that the evidence sought for testing is material to the issue of [his] identity as the perpetrator of or accomplice to, the crime, special circumstance, or enhancement allegation resulting in the conviction or sentence^]” W. Va.Code § 15-2B-14(f)(4). In consideration of all of the evidence introduced- at the petitioner’s trial, it is clear that the cigarette butt was not material in his conviction. After thoroughly reviewing the record and considering all of the petitioner’s arguments, we believe that the petitioner has failed to meet the required elements as outlined in Syllabus Point 2 of Kucera, supra, for issuance of a writ of mandamus. Accordingly, we deny his petition for a writ of mandamus.
IV.
CONCLUSION
For the foregoing reasons, the petitioner’s petition for a writ of mandamus is denied.
Writ denied.
. W. Va.Code § 15-2B-14Q), provides:
An order granting or denying a motion for DNA testing under this section is not to be appealable and is subject to review only through a petition for writ of mandamus or prohibition filed with the supreme court of appeals by the person seeking DNA testing or the prosecuting attorney. The petition shall be filed within twenty days of the court’s order granting or denying the motion for DNA testing. The court shall expedite its review of a petition for writ of mandamus or prohibition filed under this subsection.
. His petition alleged the following errors: (a) denial of due process and fair trial as a result of the introduction tainted serological evidence; (b) denial of due process because the first-degree murder conviction was based upon insufficient evidence to support the underlying felony of robbery as the predicate for the felony-murder conviction; (c) denial of due process due to an improper kidnaping instruction; (d) denial of due process based on an improper aggravated robbery instruction; (e) prosecutorial misconduct pertaining to comments about the petitioner’s failure to call a specific alibi witness; (f) prosecutorial misconduct for commenting on the pre-trial silence of alibi witnesses; (g) prosecutorial misconduct for attempting to improperly influence the jury; and (h) prosecutorial misconduct for appealing to the passion or prejudice of the jury.
. As we explained in State ex rel. McLaurin v. McBride, 220 W.Va. 141, 145, 640 S.E.2d 204, 208 (2006):
In In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, 190 W.Va. 321, 438 S.E.2d 501 (1993) ["Zain I ”], this Court noted that former State Police Officer Fred Zain had engaged in the systemic falsification of evidence relating to serology in criminal prosecutions. As a result, this Court held, inter alia, (1) that a prisoner would be entitled to habeas relief, if, absent the forensic evidence presented by Trooper Zain, the evidence was insufficient "to support the verdict” and (2) that a prisoner seeking such relief could be subject to DNA testing.
This Court further explained that a "special judge found that Zain intentionally and systematically gave inaccurate, invalid, or false testimony or reports. The special judge concluded that Zain’s misconduct was so egregious that it should be considered newly discovered evidence in any criminal prosecutions in which Zain offered evidence.” In the Matter of: Renewed Investigation of the State Police Crime Laboratory, Serology Division [‘‘Zain III"], 219 W.Va. 408, 410, 633 S.E.2d 762, 764 (2006).
Subsequent to the misconduct of Trooper Zain, this Court was confronted with the question of whether serologists employed by the State Police Crime Lab, other than Trooper Zain, had also falsified evidence in criminal prosecutions. This Court ordered another investigation in 1994, and upon a finding of some occasional but relatively minor errors which did not significantly compromise the criminal prosecutions in which the evidence was offered, the matter was closed. See In the Matter of the West Virginia State Police Crime Laboratory, Serology Division [“Zain II"], 191 W.Va. 224, 445 S.E.2d 165 (1994). In 1999, however, more allegations arose involving another serologist other than Trooper Zain resulting in yet another investigation and this Court's decision in In the Matter of: Renewed Investigation of the State Police Crime Laboratory, Serology Division ["Zain III"], 219 W.Va. 408, 633 S.E.2d 762 (2006), which, in part, is the basis for the petitioner’s argument herein.
. See footnote 1, supra.
. Syllabus Point 6 of Zain III, supra, provides that:
A prisoner who was convicted between 1979 and 1999 and against whom a West Virginia State Police Crime Laboratory serologist, other than Fred Zain, offered evidence may bring a petition for a writ of habeas corpus based on the serology evidence despite the fact that the prisoner brought a prior habeas corpus challenge to the same serology evidence, and the challenge was finally adjudicated. | [
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PER CURIAM:
This appeal is brought by the defendants below, the West Virginia Department of Transportation, Division of Highways, and Paul A. Mattox in his capacity as Commissioner of Highways (hereinafter collectively referred to as “DoH”) from the judgment entered March 19, 2008, by the Circuit Court of Brooke County after a trial by jury resulting in a verdict in favor of plaintiffs below, Keith West and Susan West, (hereinafter jointly referred to as “Wests”) in an amount of over $8 million. Although DoH raises numerous questions in this appeal, the dis-positive issue is whether the applicable State liability insurance policy provides coverage under the circumstances presented in this case. Based upon our consideration of the issues raised in the briefs and oral arguments in light of the relevant documents and legal precedents, we reverse the judgment of the lower court and remand the ease for further proceedings in order to determine the threshold issue of whether a properly executed State liability insurance policy was in place at the time the West accident occurred.
I. Factual and Procedural Background
The case on which this appeal is based was filed by the Wests following a motor vehicle accident on January 20, 2005. Mr. West was a passenger in a truck his father was driving on Route 7, near Morgantown, West Virginia. There was slush on the road and the father lost control of the vehicle while entering a sharp curve. Although he regained control of the vehicle, the father was unable to bring the truck to a stop and steered the vehicle between a guardrail and telephone pole believing that the truck would come to rest in a meadow. Unfortunately, what the father conceived to be a meadow was actually a hillside. The track rolled over while proceeding down the hill. The father was not injured, but Mr. West was ejected from the vehicle and sustained fractures to an upper arm and hip socket. No DoH employees were present at the site when the West accident occurred.
The subject guardrail had been damaged during a previous accident, which by all accounts occurred on February 1, 2004. A shortening of the guardrail resulted from this prior incident due to the impact causing the guardrail to buckle and bend backward toward itself. DoH maintains it requested Penn Line to repair the guardrail on November 8, 2004, but the repair did not occur until February 7, 2005, or eighteen days after Mr. West was injured at the site.
On April 19, 2006, the Wests filed suit against DoH and Penn Line, the company which eventually repaired the guardrail in question through its contract with DoH. The negligence claims the Wests levied against DoH involved negligent selection of Penn Line as a contractor, and failure to post a warning at the site of the damaged guardrail. The Wests’ complaint also alleged that Penn Line was negligent in failing to install, repair, erect and/or replace the damaged section of guardrail, and for not engaging another entity to complete the repair in a more timely manner.
With regard to the State’s liability insurance policy, the complaint asserted that the Wests were seeking recovery from DoH pursuant to the State’s National Union Fire Insurance Company policy number RMGL 480-62-96 “under and up to the limit of said liability insurance coverage.” The complaint goes on to state: “In the event that the defendants DoH and Mattox invoke the exclusion contained under ‘Endorsement #7’ [of the State liability insurance policy], plaintiffs seek a determination by the Court, and for the Court to enter a declaratory judgment, declaring that the same is null and void as being[] vague, ambiguous, unconscionable and against public policy.”
In Penn Line’s answer to the complaint, it raised a cross-claim against DoH seeking indemnification. In answer ,to Penn Line’s cross-claim, DoH invoked immunity pursuant to Article VI, Section 35 of the West Virginia Constitution, and sought indemnification against Penn Line should DoH nonetheless be found liable based on the acts or omissions of Penn Line.
Penn Line also filed a third-party complaint against the driver of the truck which the driver countered with a motion to dismiss. The trial court signed an agreed order on May 4, 2007, dismissing the third-party complaint against the driver with prejudice “based on the good faith settlement heretofore entered into between plaintiffs and ... [the father].”
On February 4, 2008, Penn Line filed a “Motion for Summary Judgment for,Affirmative Finding of Insurance Coverage.” Four days later the Wests filed a “Motion for Summary Judgment on Declaratory Judgment Action” regarding coverage under the State’s liability insurance policy. Arguments were heard on these motions on February 20, 2008; the lower court’s rulings on the motions appeared in an order signed on February 26, 2008. The order conveys the trial court’s initial finding that a declaratory judgment action was the proper course to decide the controversies. Thereafter, the order reflects the circuit court’s conclusion that the policy issued by the National Union Fire Insurance Company was in place during the time of the accident and that the policy, without modification by endorsement, provided coverage for the accident. The lower court specifically found that Endorsement No. 7, delineating circumstances in which coverage is excluded, was not part of the insurance contract because it was not signed. Finding that the lack of signature created an inherent ambiguity as to whether the insurance contract was modified by the provisions of Endorsement No. 7, the lower court concluded that the ambiguity had to be strictly construed against the insurance company in favor of providing coverage. The order further reflects the lower court’s finding that even if the terms of Endorsement No. 7 were applicable, DoH had a duty to inspect guardrails and inspection was not an activity specifically excluded from coverage by the terms of Endorsement No. 7. Based upon these findings, the lower court granted both the Wests’ motion for summary judgment on the declaratory judgment action and Penn Line’s motion for summary judgment for an affirmative finding of insurance coverage. However, the lower court denied Penn Line’s motion for summary judgment with respect to liability because the court concluded that issues of material fact remained in dispute.
On February 27, 2008, the trial court entered an order captioned “Stipulation and Agreed Order of of [sic] Dismissal of Defendant Penn Line Service, Inc.” As related in this order, the Wests’ claims against Penn Line were dismissed with prejudice due to a settlement between the parties. The order also reflects that the dismissal with prejudice included “all cross-claims filed against Penn Line by defendant West Virginia Department of Transportation, Division of Highways, for any indemnification and/or contribution.”
The jury trial began on March 4, 2008, and concluded on March 7, 2008. DoH claims that the trial court made various flawed rulings before and during the trial which left the agency virtually defenseless, and it was because of these errors that the jury returned a verdict in favor of the Wests for over $8 million.
DoH thereafter filed motions for a new trial, entry of judgment as a matter of law and entry of an order modifying or altering judgment. By order dated June 24, 2008, the lower court denied the post-trial motions for judgment as a matter of law or a new trial. The order further reflects that a ruling on the motion to modify judgment was deferred. Rather than remitting the judgment by the amount which exceeded the $1 million limit of the State liability insurance policy as requested in DoH’s motion to modify, the lower court ordered discovery “to determine the full extent of insurance which may apply to the payment of any and/or all of the Judgment in this case.” The matter regarding other sources of insurance proceeds is pending before the lower court.
DoH filed its petition for appeal with this Court on January 23, 2009, with review being granted by order dated March 12, 2009.
II. Standard of Review
This ease is before us from an order denying a renewed motion for entry of a judgment as a matter of law and a motion for a new trial. The standards we follow in conducting our review of such matters is settled. This Court recently 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.” Syl. Pt. 1, Fredeking v. Tyler, 224 W.Va. 1, 680 S.E.2d 16 (2009). As for our review of rulings on motions for new trials, we explained in syllabus point four of Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976), 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 court’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.”
III. Discussion
DoH raises numerous issues in this appeal which fall within three general categories: (1) whether DoH’s constitutional immunity from suit is excepted under the facts of the West accident because the claims are covered under the terms of a State liability insurance policy, (2) whether satisfaction of the judgment against DoH is limited to proceeds from any applicable State liability insurance policy; and (3) whether the trial court committed reversible error (a) by finding as a matter of law that DoH was negligent, (b) by excluding the driver of the vehicle from the verdict form, (c) by not allowing evidence that Mr. West was not wearing a seatbelt when the accident occurred, and (d) by not informing the jury of a settlement reached with another defendant during the course of the trial. For the reasons detailed below, only the first issue needs to be considered in order to dispose of this appeal.
DoH focusing on the language of Endorsement No. 7 maintains that the lower court was incorrect in deciding the threshold question of whether the applicable State liability insurance policy extended coverage for injuries resulting from the West accident. If the claims are not covered by the policy, DoH maintains it is immune from suit pursuant to Article VI, § 35 of the West Virginia Constitution. Indeed, as we most recently observed in Wrenn v. West Virginia Department of Transportation, “the State is still constitutionally immune from claims arising out of any activity or responsibility that is not covered under ... [any insurance] policy [purchased or contracted for by the Board of Risk and Insurance Management (BRIM) ]. W.Va.Code § 29-12-5(a)(4).” 686 S.E.2d at 79.
Hence, we turn our focus to the State liability policy purportedly in effect at the time of the accident in light of the lower court’s determinations. As earlier noted in this opinion, the lower court found that National Union Fire Insurance Company policy RMGL 480-62-96 was in effect at the time the West accident occurred in January 2005, and provided coverage for the accident if no endorsement would otherwise alter its terms. DoH argued below as it does here that Endorsement No. 7 to the policy provides such modification because no DoH employees were present at the scene when the accident occurred. However, the court below concluded that the exclusionary language of Endorsement No. 7 was inapplicable to the situation at hand for two reasons: (1) the signature line on the certified copy of Endorsement No. 7 examined by the lower court was not signed; and (2) even if Endorsement No. 7 had been signed, inspection is not specified among the exclusionary acts listed in the endorsement. The precise ruling of the trial court with regard to the availability of State insurance to cover this accident appears in the trial court’s February 26, 2008, order as follows:
It is undisputed, and the Court FINDS and CONCLUDES that policy RMGL 480-62-96 issued by the National Union Fire Insurance Company was in place for the period covering July 1, 2004, to July 1, 2005. This policy was in place at the time the West accident occurred in January 2005. The Court further FINDS and CONCLUDES that the policy’s Comprehensive Liability Coverage, if unmodified by any applicable endorsements, clearly provides coverage for the accident at issue.
Emphasis in original. The February 26, 2008, order also indicates that in order to arrive at this decision the lower court relied on a certified copy of the State insurance policy attached as an exhibit to Penn Line’s brief in support of its motion for an affirmative finding of State insurance coverage. The referenced exhibit was not physically attached to the copy of the Penn Line brief in the record certified to this Court. Based upon both our need to review the document relied upon by the lower court and the lower court’s incorporation of the document into the record by reference in the February 26, 2008, oi’der, we instructed the Clerk of this Court to obtain a copy of the document.
Review of the policy relied upon by the lower court disclosed that not only was Endorsement No. 7 of the policy unsigned, but no signature appeared on any part of the policy, including the declarations page. The lack of signature on the contract for insurance is legally significant because at the time Policy RMGL 480-62-96 was issued, there was a statutory requirement that all contracts of insurance be signed. W. Va.Code § 83-12-11 (2002).
DoH had indicated in its brief that it would be able to supply a signed copy of the State insurance policy, which we directed the Clerk to obtain. Comparison of the policy relied upon by the lower court and the policy submitted by DoH revealed differences between the documents going beyond the appearance of a signature on the declarations page. Although the policy supplied by DoH was not part of the appellate record and could not be relied upon for any substantive purpose in this appeal, its existence does bring into sharper focus an oversight of the trial court. In light of Pittsburgh Elevator v. West Virginia Bd. of Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983), the fundamental issue that needs to be determined in this case is whether a valid insurance policy exists which would cover the Wests’ claims. Under these circumstances, it would be premature for this Court to address any issues regarding the effect Endorsement No. 7 cotdd have on the insurance coverage that may be available. See Syl. Pt. 2, in part, Harshbarger v. Gainer, 184 W.Va. 656, 403 S.E.2d 399 (W.Va.1991) (“ ‘Courts are not constituted for the purpose of making advisory decrees or resolving academic disputes.’ Mainellq v. Board of Trustees of Policemen’s Pension or Relief Fund of City of Fairmont, 126 W.Va. 183, 185-86, 27 S.E.2d 486, 487-88 (1943).”).
The February 26, 2008, order simply provides no legal basis for the eonelusory ruling that a State liability policy was in place at the time the accident occurred. The order reveals careful examination of the blank signature line on Endorsement No. 7, without mention of the omission of the statutorily required signature on the insurance contract. Based upon the above, we reverse the judgment in this case and remand the matter for further proceedings to address the threshold legal determination of whether a properly executed State insurance policy was in effect at the time the West accident occurred. After making this determination, the trial court should consider what effect, it any, the decision regarding the status of State insurance coverage has on the previously entered judgment relating to Endorsement No. 7 so that an appealable order regarding the same may be entered.
IV. Conclusion
In keeping with the foregoing, the judgment of the Circuit Court of Brooke County is hereby reversed and the case is remanded for further proceedings consistent with this opinion.
Reversed and Remanded.
Justice DAVIS concurs in part and dissents in part and reserves the right to file a concurring and/or dissenting opinion(s).
. Penn Line Service, Inc. (hereinafter "Penn Line”) was originally named as another defendant in the complaint, but the claims against the company were dismissed as part of a settlement agreement.
. The order from which appeal is taken is dated June 24, 2008, which reflects inter alia the trial court’s denial of DoH’s motions for entry of a judgment as a matter of law and a new trial.
.The public policy argument is not related to the appealed trial court rulings before us. However, we decided most recently in syllabus point six of Wrenn v. West Virginia Department of Transportation, 224 W.Va. 424, 686 S.E.2d 75 (2009), that upon consideration of "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 exclusions contained in Endorsement No. 7 to the State’s liability insurance policy ... do[ ] not violate the laws and public policy of West Virginia.”
. The text of Endorsement No. 7 to Policy No. RMGL 480-62-96 reads as follows:
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 maintenance or use of sidewalks which abut buildings covered by the policy.
Emphasis in original.
. The particular trial court decisions to which DoH assigns error include; not allowing evidence that Mr. West was not wearing a seatbelt for impeachment purposes; excluding the driver of the vehicle from the verdict form; failing to inform the jury of Penn Line’s settlement; and finding DoH negligent as a matter of law.
. The verdict for Mr. West was $7,030,298.33, which included past and future medical damages and future diminished earnings; the verdict for Mrs. West was $1 million for loss of consortium.
. It is our understanding that the potential source of other insurance proceeds involves liability policies Penn Line maintained in relation to its contract with DoH. It is unclear what issue would remain to discuss in this regard since Penn Line was dismissed as party and all indemnification or contribution claims DoH had against Penn Line were likewise dismissed. In any event, this concern is not material to the matter now before us.
. DoH assigns error to the lower court's not granting the agency’s motion to alter or amend the judgment to the limit of the State’s liability insurance policy, however, the lower court has deferred ruling on that motion in that it relates to other potential insurance proceeds. See n. 7, supra. As such, the question is not ripe for appellate consideration. Syl. Pt. 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958).
. West Virginia Constitution Art. VI, § 35 states in relevant part: "The State of West Virginia shall never be made defendant in any court of law or equity____”
. Although we do not reach the issues relating to Endorsement No. 7 because this case is being remanded on other grounds, any determination of the lower court upon remand regarding the significance of specific reference to inspection as an excluded activity in Endorsement No. 7 has to be made in light of our recently filed decision in Wrenn v. West Virginia Department of Transportation. We concluded in Wrenn that inspection is an inherent part of the list of activities excluded from coverage of the State liability insurance policy when DoH employees are not present at the time an accident occurs. 686 S.E.2d at 81. This conclusion was reached by reasoning that
[t]he State ... cannot reasonably be expected to list [in Endorsement No. 7] 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---- 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.
Id. The consequences of Endorsement No. 7 being unsigned was not before the Court in Wrenn.
. Despite the steps that were taken in this case, appellate counsel should be reminded and advised that it is their responsibility to assure that all essential documents related to issues raised on appeal are actually in the record submitted with the appeal. Rule 8, W. Va. R.App. P. This Court is under no obligation to determine the existence or locate any portion of a record certified on appeal. It is the duty of counsel and not this Court to fill such voids.
. At the time the State insurance policy in this case was issued, West Virginia Code § 33-12-11 required that:
No contract of insurance covering a subject of insurance, resident, located or to be performed in this state, shall be executed, issued or delivered by any insurer unless the contract or, in the case of an interstate risk, a countersignature endorsement carrying full information as to the West Virginia risk, is signed or countersigned in writing by a licensed resident agent of the insurer, except that excess line insurance shall be countersigned by a duly licensed excess line broker.
2002 W.Va. Acts ch. 180.
The signature requirement was eliminated for insurance policies issued after December 31, 2004, by the following proviso inserted into the statute that same year:
Provided, That the countersignature requirements of this section shall no longer be required for any contract of insurance executed, issued or delivered on or after the thirty-first day of December, two thousand four.
W.Va.Code § 33-12-11 (2004) (Repl. Vol. 2006).
. Syl. Pt. 4, Morrison v. Smith-Pocahontas Coal Co., 88 W.Va. 158, 106 S.E. 448 (1921) ("A question not fairly presented or arising upon the record, though made a point of error in this [supreme] court, will not be considered or regarded as ground for reversal.”). | [
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WORKMAN, Justice:
This case is before the-Court upon .the appeal of an Order denying the Appellant’s, Charles Crihfield’s, Renewed Motion for Summary Judgment entered by the Circuit Court of Kanawha County, West Virginia, on April 15, 2008. In the Order, the circuit court directed that the parties “within thirty (30) days of entry of this Order, mutually agree on an arbitrator to hear the dispute in question[,]” and that .
[i]n the event no appeal petition is filed by Plaintiff with the West Virginia Supreme Court of Appeals within the applicable time period of four (4) months after the date of entry of this Order, then the final arbitration hearing shall be held, pursuant to the Court’s prior Order dated November 27, 2006, which Order shall continue in effect unchanged, except for the substitution of the arbitrator. Such final hearing shall be scheduled within a reasonable time following expiration of such appeal period, but in no event later than sixty (60) days thereafter.
Mr. Crihfield maintains that the circuit court erred in denying the Renewed Motion for Summary Judgment because: 1) the arbitration unilaterally terminated by the Appellees, Steven Brown and The Home Show, LLC, was final, as a matter of law, and the claims could not be pursued in subsequent arbitrations; 2) Mr. Brown and The Home Show, LLC, were not entitled to reinstate arbitration following an improper termination and withdrawal; 3) the effect of the circuit court’s ruling was, in essence, granting summary judgment to Mr. Brown and The Home Show, LLC, and disposing of the matter in their favor without básis in law or evidence; and 4) the circuit court’s Order failed to include any findings of fact or conclusions of law. In contrast, Mr. Brown and The Home Show, LLC, argue that there has been no dismissal of the 2003 arbitration either with or without prejudice. They assert that they have done nothing more than attempt to proceed with a hearing in the arbitration that was cancelled due to Mr. Brown’s decision to pursue an appeal to the West Virginia Supreme Court of the lower court’s order that dismissed the action and required that the parties arbitrate the matter. Based upon the Court’s review of the record, the parties’ briefs and arguments, as well as all other matters before the Court, the Court reverses the decision of the circuit court.
I. Procedural and Factual History
This matter arises from a lawsuit filed in 2003 alleging a breach of contract in connection with a stock purchase agreement entered into in 2001 between Steven Brown and Charles Crihfield. Mr. Brown alleged violations by Mr. Crihfield of a restrictive covenant provision contained in the purchase agreement involving solicitation of various employees of The Home Show, LLC.
Following commencement of the 2003 action, Mr. Crihfield moved for dismissal on the grounds that the purchase agreement required binding arbitration of all disputes. Specifically, the purchase agreement contained the following provision:
11.4 Arbitration. Any disputes between Purchaser and Sellers that arise under or relate to this Agreement and that they cannot resolve between themselves shall be resolved exclusively and finally by binding arbitration. In the event of any such arbitration:
(i) The procedural rules (including discovery rules) governing the arbitration shall be those of the American Arbitration Association (“AAA”) as then in effect.
(ii) The site of the arbitration shall be Charleston, West Virginia.
(iii) Purchaser and Seller shall agree upon and choose the arbitrator.
(iv) If Purchaser and Seller are unable to agree on the choice of the arbitrator, the arbitrator shall be assigned by the AAA, from its panel for Charleston, West Virginia.
(v) The decision or award of any arbitration shall be final and binding on the parties, and the arbitrator may determine an allocation of attorneys’ fees and costs between the parties.
Based upon the foregoing arbitration provision in the purchase agreement, the circuit court granted Mr. Crihfield’s motion to dismiss by order dated October 3, 2003, which necessarily required that the matter be ai’bitrated.
Shortly thereafter, in October of 2003, Mr. Brown instituted an arbitration proceeding alleging the same restrictive covenant violations originally asserted in his complaint against Mr. Crihfield. The arbitration proceeded through discovery and preliminary hearing before the arbitrator, Judge James O. Holliday. The final hearing was scheduled for December 23, 2003.
On December 22, 2003, the eve of the final arbitration hearing, Mr. Brown, through his counsel, sent a letter by facsimile to the arbitrator stating that Mr. Brown was “withdrawing” from the arbitration in order to pursue the filing of a petition for appeal of the order dismissing his action in state court. Counsel for Mr. Crihfield also sent a letter to the arbitrator, dated December 22, 2003, responding to Mr. Brown’s attempt to withdraw from the final arbitration hearing. Mr. Crihfield objected to the attempted withdrawal, taking the position that “similar to Rule 41 of the West Virginia Rules of Civil Procedure, Plaintiff is not entitled to voluntary dismissal without approval of Court or approval of all parties, following joinder of issues in the action.” Mr. Crihfield requested that the arbitrator deny Mr. Brown’s request to withdraw “or terminate the arbitration and proceed with the final arbitration hearing, so that this matter can finally be resolved.” Alternatively, Mr. Crihfield asked the arbitrator to dismiss the arbitration with prejudice in the event the arbitrator allowed Mr. Brown to withdraw.
Needless to say, no final arbitration hearing was held on December 23, 2003. Mr. Brown filed a petition for appeal with this Court on February 3, 2004, regarding the October 3, 2003, order, which required the matter be arbitrated. By order dated May 6, 2004, Mr. Brown’s petition for appeal was denied.
Thereafter, Mr. Brown attempted to reinstate the arbitration. Mr. Brown and a new party, The Home Show, LLC, filed a Demand for Arbitration through the American Arbitration Association (sometimes referred to as the “AAA”) seeking arbitration between The Home Show, LLC and Mr. Crihfield. Mr. Crihfield refers to this as the “Second Arbitration.” Mr. Crihfield asserted The Home Show LLC, which is identified as the party seeking the Second Arbitration, was not a party to the purchase agreement containing the arbitration provision, and because the demand failed to state any specific grounds to support the demanded arbitration, the American Arbitration Association dismissed the arbitration.
Mr. Brown then made an “Amended Demand for Arbitration” with the American Arbitration Association, seeking an arbitration between Mr. Brown and Mr. Crihfield, who were the actual parties to the purchase agreement. The Home Show, LLC, was not named as a party to this arbitration. This is referred to by Mr. Crihfield as the “Third Arbitration.” On February 23, 2006, Melanie Rutherford, Case Manager with the American Arbitration Association, issued a letter to counsel for Mr. Brown and The Home Show LLC, as well as Mr. Crihfield, indicating the AAA’s decision to “reopen its file” in the entire matter. Ms. Rutherford noted in the letter that upon selection of an arbitrator by the parties, a preliminary hearing would be set. Mr. Crihfield asserts that “by letter dated May 22, 2006, AAA appointed Michael Spiker ... as arbitrator with regard to the Third Arbitration Demand.” A preliminary hearing and scheduled conference occurred on August 17, 2006, and both parties participated.
Also on August 17, 2006, Mr. Crihfield filed the instant action in the Circuit Court of Kanawha County seeking an injunction against the renewed arbitration and a declaratory judgment that would bar Mr. Brown and The Home Show, LLC, from pursuing the new arbitration. Mr. Crihfield then filed a Motion for Summary Judgment with the Court and a hearing was scheduled for September 13, 2006. At that hearing, the Court reported that it had contacted Judge Holliday, who had acted as the arbitrator in 2003, and that Judge Holliday agreed to recommence the arbitration starting at the point where Mr. Brown had previously withdrawn. Thus, the parties entered into an Agreed Order, dated November 27, 2006, which provided that “[tjhe parties agree to recommence the arbitration originally instituted in 2003, with Judge James O. Holliday, Senior Judge, to resume activities as mediator. The aforesaid mediation will begin at the point it left off with the December 22, 2003[,] notice of withdrawal of arbitration by Steven Brown.” According to the Order, the arbitration was to be scheduled with Judge Holliday within sixty days.
Mr. Crihfield maintains that Mr. Brown and the Home Show, LLC, failed to contact Judge Holiday within the sixty-day period as specified in the Agreed Order. To the contrary, Mr. Brown and The Home Show, LLC, assert that
[fjollowing numerous unsuccessful attempts to contact Judge Holliday, Appellees received a letter from Judge Holliday on August 31, 2007, stating that he was unable to continue with the arbitration.... No reason was given in the letter explaining his statement. Appellees notified the Appellant of the Judge’s decision via letter of September 5, 2007.
(Footnote added).
Mr. Crihfield maintains that Mr. Brown and The Home Show, LLC, then unilaterally selected an entirely new arbitrator and set an arbitration hearing for January 21 and 22, 2008. Mr. Crihfield filed a Renewed Motion for Summary Judgment on January 10, 2008, arguing that a different arbitrator other than Judge Holliday would subject him to a second, new arbitration, which was not a part of the Agreed Order. Thus, as Mr. Crihfield argued, “[t]he arbitration now attempting to be imposed by Defendants is completely inconsistent with the terms of the Agreed Order.” Despite Mr. Crihfield’s position, the circuit court denied his motion. Consequently, Mr. Crihfield pursued the instant appeal seeking a ruling that the withdraw from arbitration by Mr. Brown caused Mr. Brown to waive or abandon his claims, thereby precluding Mr. Brown and The Home Show, LLC, from pursuing any claims which were the subject of the previous arbitration in a new arbitration or lawsuit.
II. Standard of Review
The alleged error presents a question of law which will be reviewed de novo. See Syl. pt. 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 a question of law or involving an interpretation of a statute, we apply a de novo standard of review.”); see also 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.”).
III. Discussion of Law
A.
The first issue which must be resolved is whether an order denying a motion for summary judgment is properly before this Court. Recently in Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009), this Court addressed whether an order such as the one presented to the Court in the instant appeal is indeed subject to this Court’s review. The Court stated that
[t]he provisions of West Virginia Code § 58-5-1 (2005) establish that appeals may be taken in civil actions from “a final judgment of any circuit court or from an order of any circuit court constituting a final judgment.” Id. Justice Cleckley elucidated in James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995), that “[t]his rale, commonly referred to as the ‘rule of finality,’ is designated to prohibit ‘piecemeal appellate review of trial court decisions which do not terminate the litigation[.]’ ” 193 W.Va. at 292, 456 S.E.2d at 19 (quoting U.S. v. Hollywood Motor Car Co., 458 U.S. 263, 265, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982)). Exceptions to the rule of finality include “interlocutory orders which are made appealable by statute or by the West Virginia Rules of Civil Procedure, or ... [which] fall within a jurisprudential exception” such as the “collateral order” doctrine. James M. B., 193 W.Va. at 292-93, 456 S.E.2d at 19-20; accord Adkins v. Capehart, 202 W.Va. 460, 463, 504 S.E.2d 923, 926 (1998) (recognizing prohibition matters, certified questions, Rule 54(b) judgment orders, and “collateral order” doctrine as exceptions to rule of finality).
The “collateral order” doctrine, as we explained in James M.B.,
was set forth by the United States Supreme Court in Cohen [v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)].... In Durm [v. Heck’s, Inc.], 184 W.Va. [562] at 566 n. 2, 401 S.E.2d [908] at 912 n. 2 [ (1991) ], we noted the doctrine as an exception to the federal interpretation of Rule 54(b), and we said that under Cohen, “[a]n interlocutory order would be subject to appeal under this doctrine if it ‘(1) conclusively determines the disputed controversy, (2) resolves an important issue completely separate from the merits of the actions, and (3) is effectively unreviewable on appeal from a final judgment.’ ”
193 W.Va. at 293 n. 4, 456 S.E.2d at 20 n. 4 (citation omitted).
Robinson, 223 W.Va. at 832, 679 S.E.2d at 664 (footnote omitted).
It is clear that the Order at issue falls within the purview of the requirements established by this Court in Robinson. The subject Order conclusively determines the disputed issue of whether the case is subject to an arbitration. Next, the resolution of whether this matter is subject to a second arbitration is an important issue completely separate from the merits of the action. Finally, the issue of whether the case is still subject to arbitration is not subject to review on appeal if said irrevocable, binding arbitration proceeds to completion.
B.
The next issue before the Court is whether a party to a binding, irrevocable arbitration can unilaterally withdraw from that arbitration without leave of the arbitrator or agreement of the remaining party or parties. It is clear, according to the terms of the purchase agreement entered into between Mr. Crihfield and Mr. Brown, that they not only agreed to binding arbitration, but they also agreed that the rules governing the arbitration would be those issued by the American Arbitration Association. It is also clear that The Home Show, LLC, was not a party to the written arbitration agreement and has no standing in this matter.
A review of the rules issued by the American Arbitration Association readily reveals that there is an absence of any rule permitting the unilateral withdrawal of a party in an arbitration. There are, however, rules that provide for a postponement of a hearing, for a modification of any period of time, or for a hearing to go forward in the absence of a párty. Specifically, American Arbitration Association Rule 28 provides that “[t]he arbitrator may postpone any hearing upon agreement of the parties, upon request of a party for good cause shown, or upon the arbitrator’s own initiative.” Id. Also, American Arbitration Association Rule 38 provides that “[t]he parties may modify any period of time by mutual agreement. The AAA or the arbitrator may for good cause extend any period of time established by these rules, except the time for making the award. The AAA shall notify the parties of any extension.” Id. Further, American Arbitration Association Rule 29 provides that
[и]nless the law provides to the contrary, the arbitration may proceed in the absence of any party or representative who, after due notice, fails to be present or fails to obtain a postponement. An award shall not be made solely on the default of a party. The arbitrator shall require the party who is present to submit such evidence as the arbitrator may require for the making of an award.
Id. It does not appear, howevex’, that Mr. Brown sought any kind of relief fi’om the final hearing, which was allowed by the American Arbitration Association nxles.
Genex’ally, where an arbitration agreement is irrevocable as in the instant action, “a party may not unilaterally withdraw an issue from arbitration.” 6 C.J.S. Arbitration § 85 (2009); see Godfrey v. Hartford Cas. Ins. Co., 142 Wash.2d 885, 16 P.3d 617, 623 (2001)(stating that under revised code of Washington px'oviding that arbitrations are only revocable under certain limited circumstances, “a party cannot unilaterally withdraw an issue from arbitration”); Knutson v. Lasher, 219 Minn. 594, 18 N.W.2d 688, 693 (1945)(stating that “[b]y withdrawing from the arbitration proceedings and refusing to proceed further thereunder, defendants waived and abandoned the right to arbitrate”); Brown v. Engstrom, 89 Cal.App.3d 513, 152 Cal.Rptr. 628, 634 (1979)(stating that “[o]nce a stipulation for judicial arbitration has been executed and filed, a party may not withdraw from the arbitration proceedings”); Juhasz v. Costanzo, 144 Ohio App.3d 756, 761 N.E.2d 679, 684 (2001)(stating that “[pjarties subject to statutory arbitration have no right to withdraw from arbitration except under general principles of contract law”).
Based upon the foregoing, the Court holds that a party to a binding, irrevocable arbitration cannot unilaterally withdraw from participation in the arbitration after it has begun. If a party to a binding, irrevocable arbitration unilaterally withdraws from the arbitration, the claims or issues raised by the withdrawing party are abandoned, thereby precluding them from being pursued in any subsequent arbitration or civil action.
In the instant matter, Mr. Brown did not have the right to unilaterally withdraw from the axbitration. While Mr. Brown eleaxiy had the right to pursue an appeal of the dismissal of his lawsuit by the circuit court, he could have done so prior to initiating the arbitration process and prior to the night before the final arbitration hearing. After the arbiti’ation began, Mr. Brown also could have used the Amexican Arbitration Association Rules and sought either a postponement of the final heaxing in the arbitration or a modification of the time frame set for the arbitration. Mr. Brown did neither. Rather, Mr. Brown unilaterally communicated to both the arbitrator and Mr. Crihfield that he was unilaterally withdrawing from the arbitration. This unilateral withdrawal by Mr. Brown with no consideration or thought given to any other recourse available was fatal to his claims. The unilateral withdraw resulted in Mr. Brown abandoning his claims, thereby precluding any further arbitration or lawsuit relative to his claims.
To hold otherwise and to give Mr. Brown yet another bite at the apple would be to place the whole system of arbitration in peril. The case law is clear that irrevocable arbitration is just that — irrevocable. To allow a party to simply walk away from a binding, irrevocable arbitration with no consequence defeats the purpose of arbitration and is unduly prejudicial to the other parties to the arbitration who are trying to get the matter resolved. There simply is no basis for allowing a party who unilaterally withdraws from a binding, irrevocable arbitration to reinitiate the process that the party voluntarily choose to abandon.
IV. Conclusion
Based upon the foregoing, the Circuit Court of Kanawha County erred in denying Mr. Crihfield’s Renewed Motion for Summary Judgment. This Court, therefore, reverses the decision of the Circuit Court of Kanawha County and grants Mr. Crihfield’s Renewed Motion for Summary Judgment. The Court further orders that the arbitration be dismissed, because Mr. Brown abandoned his claims, thereby precluding Mr. Brown from pursuing his claims in the arbitration, any subsequent arbitration, or any lawsuit.
Reversed.
. The Home Show, LLC, was not a party to the stock purchase agreement and was not a party in the 2003 action.
. The restrictive covenant at issue is Section 5.3 of the purchase agreement and provides as follows:
Following Closing Sellers shall not, without the prior written consent of Purchaser: (i) directly or indirectly, engage in the manufactured home sales business; for a term of 5 years and covering the area within a 60 mile radius of any current location of any of the Companies, directly or as an employee of any other person or entity; (ii) contact or solicit any present or future customers or employees of Companies;' or (iii) disclose or use any customer list, processes, sales techniques, sales books or information, pricing information of any kind, service information or techniques, operational processes or any other proprietary information, which constitute the sole and exclusive property of the Companies, the same being "trade secrets” under the law, and upon violation of this provision the Sellers agree that Purchaser shall be entitled to an injunction and compensatory or punitive damages, and reimbursement of reasonable attorneys fees and associated costs incurred to enforce this provision; Provided however, that this restrictive covenant shall not apply to the interest of certain of Sellers in the two (2) business locations for the business operated as the "Eden Fork Home Place”, on located in the Charles ton, West Virginia area, and the second being the proposed business location in Parkersburg, West Virginia, provided that none of Sellers shall, in connection with such excepted business locations, expand the territories beyond such excepted locations and shall not take any actions to solicit any employees of the Compa-
nies or take other actions that may damage the Companies in violation of this Section 5.3.
. The July 1, 2003, version of the American Arbitration Association rules was in effect at the time the arbitration was initiated.
. There is no evidence in the record explaining what attempts, how many attempts, and when the "unsuccessful attempts" were made by Mr. Brown and The Home Show, LLC. Neither was there any explanation offered as to why the arbitration was not set with Judge Holliday within the sixty-day period set forth in the Agreed Order.
. Mr. Crihfield agreed to the arbitration, because it would not subject him to "an entirely new arbitration with a new arbitrator.” Thus, Mr. Crihfield’s agreement, which is expressed in the November 27, 2006, Agreed Order, was limited to the arbitration being "recommenced” from the point where the arbitration was halted in 2003 before Judge Holliday as the arbitrator. When it became clear that Judge Holliday could no longer act as the arbitrator, and that the arbitration would, therefore, have to start over, Mr. Crihfield had the right to reassert the original arguments in the Renewed Motion for Summary Judgment, because the basis for the Agreed Order no longer existed. | [
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PER CURIAM:
This case is before this Court upon appeal of a final order of the Circuit Court of Lincoln County entered on October 1, 2007, dismissing a complaint filed by the appellant and plaintiff below, Terry Hill, against the appellee and defendant below, Gregory Stowers. Mr. Hill alleged that he was defeated in the 1996 general election for Circuit Clerk of Lincoln. County as a result of Mr. Stowers’s illegal vote-buying activities. Mr. Hill sought monetary damages. The circuit court dismissed Mr. Hill’s complaint pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure finding that a candidate for public office does not have a property right to win an election; that the cause of action asserted by Mr. Hill does not exist; that it would be contrary to public policy to allow a losing candidate in an election to collect monetary damages from his opponent; and that Mr. Hill’s exclusive remedy was to file an election contest.
In this appeal, Mr. Hill seeks reinstatement of his lawsuit. He also contends that the Honorable Jay M. Hoke, Judge of the Circuit Court of Lincoln County who presided over this case below, should be disqualified and that a different circuit judge should be appointed to the case. This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is affirmed.
I.
FACTS
During the 1996 general election for the Office of Circuit Clerk of Lincoln County, Mr. Hill and Mr. Stowers conducted write-in campaigns. Mr. Stowers was the incumbent because he had been appointed to fill the office several months earlier when the former circuit clerk, Shirley Mullins, retired and withdrew from the election as the Democrat nominee. Mr. Stowers was declared the winner in the 1996 election with a margin of victory of approximately 600 votes. Mr. Hill did not contest the election. Mr. Stowers was re-elected in 2000 and 2004.
On December 29, 2005, Mr. Stowers pled guilty in the United States District Court for the Southern District of West Virginia to one count of buying votes in connection with the May 2004 primary election in Lincoln County. He was sentenced to six months in prison. Thereafter, on June 5, 2006, Mr. Hill filed this lawsuit against Mr. Stowers alleging that Mr. Stowers won the 1996 election because of unlawful vote-buying. In particular, the complaint alleged that
[o]n or about May 4, 2005, defendant Gregory B. Stowers and others, were indicted by a federal grand jury pursuant to a Second Superseding Indictment alleging that defendant Gregory B. Stowers knowingly conspired and undertook actions of knowing and willfully paying and offering to pay voters in Lincoln County for voting in various elections since the Spring of 1990 including but not limited to the general election of 1996 for the office of Clerk of the Circuit Court of Lincoln County.
Mr. Hill asserted that Mr. Stowers had violated his constitutional right to run for and hold public office; that Mr. Stowers had violated statutory law in West Virginia pertaining to the administration of elections; that Mr. Stowers had been unjustly enriched and had improperly benefitted from the compensation, benefits, and emoluments of office; and that Mr. Stowers had violated substantial public policy in West Virginia pertaining to free and fair elections. Mr. Hill sought compensatory damages, punitive damages, and attorney’s fees and costs.
After the complaint was filed, Mr. Hill moved to disqualify the Honorable Jay M. Hoke as the presiding circuit court judge in this matter. Judge Hoke declined to voluntarily disqualify himself. The Chief Justice of this Court then refused the motion to disqualify on three separate occasions. Thereafter, by order entered on October 1, 2007, the circuit court dismissed Mr. Hill’s complaint pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. This appeal followed.
n.
STANDARD OF REVIEW
As set forth above, the circuit court dismissed Mr. Hill’s complaint pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. This Court has explained that “[t]he purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure is to test the sufficiency of the complaint. A trial court considering a motion to dismiss under Rule 12(b)(6) must liberally construe the complaint so as to do substantial justice.” Cantley v. Lincoln County Comm’n, 221 W.Va. 468, 470, 655 S.E.2d 490, 492 (2007). “Since the preference is to decide cases on their merits, courts presented with a motion to dismiss for failure to state a claim construe the complaint in the light most favorable to the plaintiff, taking all allegations as true.” Sedlock v. Moyle, 222 W.Va. 547, 550, 668 S.E.2d 176, 179 (2008). Therefore, “[t]he trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” Syllabus Point 3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977). This Court’s review of a circuit court’s dismissal of a complaint pursuant to Rule 12(b)(6) is plenary. In other words, “[appellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo.” Syllabus Point 2, State ex rel. McGrow v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).
III.
DISCUSSION
Mr. Hill’s complaint sets forth four separate claims against Mr. Stowers. Each claim will be discussed, in turn, below.
A. Constitutional Claim
Mr. Hill first contends that the circuit court erred by finding that he does not have a valid state constitutional claim against Mr. Stowers. Based upon this Court’s decision in State ex rel. Billings v. The City of Point Pleasant, 194 W.Va. 301, 460 S.E.2d 436 (1995), Mr. Hill argues that he had a fundamental constitutional right to run for political office in a free and unrestricted electoral process. Essentially, Mr. Hill maintains that Mr. Stowers destroyed the free, lawful, and open electoral process in Lincoln County for many years by buying votes and interfered with his right to run for the office of circuit clerk in an unfettered election. Thus, Mr. Hill reasons that Mr. Stowers’s actions give rise to a state constitutional claim which this Court must recognize and protect.
In Syllabus Point 2 of Billings, this Court held that “[t]he West Virginia Constitution confers a fundamental right to run for public office, which the State cannot restrict unless the restriction is necessary to accomplish a legitimate and compelling governmental interest.” In that case, Brian Billings brought an original mandamus proceeding in this Court challenging the constitutionality of W. Va.Code § 3-5-7(b)(6) (1991), which provided that a candidate for public office must file with a designated clerk a “certificate of announcement” that included the name of the candidate’s political party and a statement verifying that the candidate “ ‘has not been registered as a voter affiliated with any other political party for a period of sixty days before the day of filing the announcement.’ ” 194 W.Va. at 302, 460 S.E.2d at 437 (quoting W. Va.Code § 3-5-7(b)(6)). Mr. Billings sought to become a candidate for the office of councilman-at-large in the City of Point Pleasant. During the same month that he filed his certificate of announcement, Mr. Billings changed his party affiliation from Republican to Democrat and, thus, failed to comply with W. Va.Code § 3-5-7(b)(6). The Chairman of the Point Pleasant City Republican Executive Committee filed a complaint with the City Clerk seeking to remove Mr. Billings from the ballot. Anticipating that his name, was going to be removed from the ballot, Mr. Billings petitioned this Court for a writ of mandamus and challenged the constitutionality of the statute.
Our decision in Billings simply addressed the issue of whether a person has an absolute right to be placed upon the ballot as a candidate for public office and whether in certain circumstances, the State can restrict that right. This Court ultimately held:
The provision in W.Va.Code, 3 — 5—7(b)(6) (1991), which effectively disqualifies from running for political office individuals who change their political party affiliation within sixty days of filing their announcements of candidacy, is necessary to accomplish the compelling governmental interest in preserving the integrity of the political process, promoting party stability, and avoiding voter confusion. The provision, therefore, does not violate either the fundamental right of candidacy or the right to change political party affiliations.
Syllabus Point 4, Billings. Unlike Mr. Billings, Mr. Hill did have access to the ballot. Both he and Mr. Stowers conducted write-in campaigns. Thus, the decision in Billings does not support Mr. Hill’s argument that he has a “constitutional claim” against Mr. Stowers. While this Court recognized in Billings that our State Constitution confers a fundamental right to run for public office, the decision does not provide the basis for a private cause of action for monetary damages by a losing candidate in an election for public office even in situations involving alleged fraud.
The facts and circumstances of the instant case are more analogous to those in Shields v. Booles, 238 Ky. 673, 38 S.W.2d 677 (1931). In that case, B.F. Shields sued W.W. Booles after he lost the 1929 Democratic primary election for State Senator in the Twentieth Senatorial District in Kentucky. Mr. Shields alleged that Mr. Booles, who was awarded the certificate of nomination, and his campaign manager entered into a conspiracy with other unknown persons to procure large sums of money to be used in circulating false, malicious, and scandalous statements concerning Mr. Shields in order to bring about his defeat and secure the nomination for Mr. Booles. Mr. Shields also alleged that some of the money was used to bribe voters. Mr. Shields sought to recover $5,000.00 for compensatory damages and $20,000.00 for punitive damages. He never contested Mr. Booles’s nomination.
With regard to the allegations concerning the bribery of voters, the Kentucky court found that no cause of action for damages was manifested. The court explained that
[i]t is not an actionable injury to the character, person, or property of a candidate for office for his adversary to bribe voters. It is an offense to be redressed in a prosecution by the commonwealth, or in a contest of the nomination where the wrongdoer may be deprived of the fruits of his wrong.
[A] candidate is not the injured party, or within the purpose o[r] purview of the remedy allowed a voter for being deprived wrongfully of his right to vote. Nor was the right of appellant to be a candidate in the primary infringed or affected. That right was fully enjoyed by the appellant. A violation of his right to receive any votes that might have been cast for him but for the wrongful interference of appellees did not result in any injury to his character, person, or property that could be the subject of a suit for damages. The remedy for wrongs of that character, if carried to an extent that affected the result of the election, was for the unsuccessful candidate to institute a contest, where he could protect his own rights, and vindicate the rights of the public as well. His abstract right to be elected was conditioned upon his ability to get a majority of the votes.
238 Ky. at 679-81, 38 S.W.2d at 679-80.
Like the Kentucky court, we find that the remedy for Mr. Stowers’s violations of law lies in criminal prosecution, and the remedy for a candidate such as Mr. Hill is the right to contest the election in the manner provided by the Constitution and state statutes. In that regard, Article IV, Section 11 of the Constitution of West Virginia provides:
The legislature shall prescribe the manner of conducting and making returns of elections, and of determining contested elections; and shall pass such laws as may be necessary and proper to prevent intimidation, disorder or violence at the polls, and corruption or fraud in voting, counting the vote, ascertaining or declaring the result, or fraud in any manner, upon the ballot.
Pursuant to this constitutional provision, our Legislature enacted Chapter 3 of the West Virginia Code, known as the “West Virginia Election Code,” which, inter alia, sets forth the process for contesting the l’esults of an election. W.Va.Code §§ 3-1-1 to 3-11-6 (Repl. Vol. 2006 & Supp. 2008). Therefore, as a candidate for public office, Mr. Hill could have filed an election contest. There is simply no legal basis for Mr. Hill’s contention that the West Virginia Constitution allows him to pursue a private cause of action for damages against Mr. Stowers. Mr. Hill did not suffer an injury to his character, person, or property as a result of Mr. Stowers’s vote-buying activities. Long ago, the United States Supreme Court recognized that “public offices are mere agencies or trusts, and not property, as such ... generally speaking, the nature of the relation of a public office to the public is inconsistent with either a property or contract right.” Taylor v. Beckham, 178 U.S. 548, 577, 20 S.Ct. 890, 900-01, 44 L.Ed. 1187, 1200 (1900).
B. Statutory Claim
Next, Mr. Hill asserts that the circuit court erred by finding that he does not have a statutory claim against Mr. Stowers pursuant to W. Va.Code § 55-7-9 (1923) (Repl. Vol. 2008), which provides:
Any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, although a penalty or forfeiture for such violation be thereby imposed, unless the same be expressly mentioned to be in lieu of such damages.
Mr. Hill contends that Mr. Stowers violated W. Va.Code §§ 3-8-11 (1995) (Repl. Vol. 2006), 3-9-12 (1963) (Repl. Vol. 2006), and 3-9-13 (1978) (Repl. Vol. 2006) which forbid any improper influence upon elections, prohibit bribery by candidates as well as the buying and selling of votes, and provide criminal penalties for such actions. Mr. Hill argues that these statutes give rise by implication to a private cause of action in favor of a candidate who has been denied public office against a person who has committed these offenses. Mr. Hill maintains that this Court recognized such a cause of action in Pritt v. Republican National Committee, 210 W.Va. 446, 557 S.E.2d 853 (2001). We disagree.
Following an unsuccessful bid for Governor of West Virginia in 1996, Charlotte Pritt brought suit against various Republican political organizations, including the Republican National Committee, alleging that they com mitted common law libel, slander, and defamation by publishing false and injurious statements about her during the gubernatorial campaign. After discovery was completed, the circuit court granted summary judgment in favor of the defendants finding that the statements at issue were not false and that there was no evidence that any defendant acted with “actual malice.” Upon appeal, this Court reversed that decision, concluding that there were genuine issues of material fact concerning whether the alleged defamatory statements were “tainted with falsity” or “laced with malice.” Id. at 453, 557 S.E.2d at 860.
A review of the case shows that Ms. Pritt alleged in her complaint that the defendants had violated W. Va.Code § 3-8-ll(c). Id. at 450, 557 S.E.2d at 857. Contrary to Mr. Hill’s contention, however, this Court did not recognize a private cause of action pursuant to W. Va.Code § 55-7-9 as a result of a violation of W. Va.Code § 3-8-ll(e) in the Pritt decision. That issue was not presented to this Court. Furthermore, it does not appear that Ms. Pritt ever asserted that theory as a basis for recovery against the defendants. Thus, Mr. Hill’s reliance upon Pritt is misplaced.
Long ago, “[i]n England v. Central Pocahontas Coal Co., 86 W.Va. 575, 104 S.E. 46 (1920), we suggested that the purpose of [W. Va.Code § 55-7-9] was to preserve the right to bring a cause of action based on the violation of a statute in those situations where the statute contained a penalty or forfeiture, so as to preclude the assertion that the penalty or forfeiture prevented the bringing of a damage action.” Jenkins v. J.C. Penney Cas. Ins. Co., 167 W.Va. 597, 600, 280 S.E.2d 252, 254-55 (1981), overruled, in part, on other grounds by State ex rel. State Farm Fire & Cas. Co. v. Madden, 192 W.Va. 155, 451 S.E.2d 721 (1994) and superseded by W. Va.Code § 33-ll-4a (2005) (Repl. Vol. 2006). Since then, this Court has on several occasions considered whether the violation of a given statute creates an implied private cause of action. For example, in Hurley v. Allied Chemical Corp., 164 W.Va. 268, 262 S.E.2d 757 (1980), this Court found that W.Va.Code § 27-5-9(a), which provides that no person may be deprived of any civil right solely by reason of his or her receipt of services for mental illness, created an implied cause of action against a private employer who allegedly denied employment to an otherwise qualified individual because that person had received services for mental illness. By contrast, this Court found in Arbaugh v. Board of Education, the County of Pendleton, 214 W.Va. 677, 591 S.E.2d 235 (2003), that W.Va.Code § 49-6A-2 (2001) (Repl. Vol. 2001), which provides criminal penalties for failure to report suspected child abuse, did not create a private cause of action against persons with a duty to report under the statute who allegedly had reasonable cause to suspect that a child was being abused but failed to report their suspicions. See also Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990) (selling beer to a person under twenty-one years of age in violation of W. Va.Code ll-16-18(a)(3) gives rise to a cause of action against the licensee in favor of a purchaser or a third party injured as a proximate result of the unlawful sale); Yourtee v. Hubbard, 196 W.Va. 683, 474 S.E.2d 613 (1996) (a person who steals an automobile is not within the class of persons that the Legislature designed the unattended motor vehicle statute to benefit and cannot bring an action based on a violation of W.Va.Code § 17C-14-1 (1951)).
To determine whether a private cause of action exists based on a violation of a statute, this Court set forth a four-part test in Hurley. Syllabus Point 1 of Hurley provides that
[t]he following is the appropriate test to determine when a State statute gives rise by implication to a private cause of action: (1) the plaintiff must be a member of the class for whose benefit the statute was enacted; (2) consideration must be given to legislative intent, express or implied, to determine whether a private cause of action was intended; (3) an analysis must be made of whether a private cause of action is consistent with the underlying purposes of the legislative scheme; and (4) such private cause of action must not intrude into an area delegated exclusively to the federal government.
Applying the Hurley test to the case at hand, the first consideration is whether Mr. Hill is within the class of persons that the statutes at issue were meant to benefit. W.Va.Code §§ 3-8-11, 3-9-12, and 3-9-13 were clearly enacted to protect a person’s right to vote freely for the candidate of his or her choice. As both a candidate and a voter, it is obvious that Mr. Hill is a member of the class that the statutes were meant to benefit. It is equally obvious that a private cause of action would not intrude into an area delegated exclusively to the federal government. “[F]ederal courts do not sit to award post-election damages to defeated candidates.” Hutchinson v. Miller, 797 F.2d 1279, 1287 (4th Cir.1986). Thus, the first and fourth elements of Hurley are easily satisfied. However, the same cannot be said for the second and third parts of the test.
The second and third elements of the Hurley test require a close examination of the statutes at issue. With regard to the second element, a determination must be made as to whether the Legislature intended a private cause of action to exist. This Court is unaware of any legislative history pertaining to W. Va.Code §§ 3-8-11, 3-9-12, and 3-9-13. Even if such history did exist, it would not necessarily be helpful because as this Court pointed out in Hurley, “the omission of an express right of action in the statute typically occurs against a background of legislative silence or ambiguity on this question.” 164 W.Va. at 279, 262 S.E.2d at 763. Thus, the context in which the statutes were enacted must be considered.
The statutes at issue are a part of the West Virginia Election Code which “contemplates and comprehends a code of laws for the establishment, administration and regulation of elections and election procedures in the state of West Virginia.” W. Va.Code § 3-1-1 (1963) (Repl. Vol. 2006). As previously discussed, the West Virginia Election Code also sets forth a process for contesting elections. Of particular’ relevance in this instance is W. Va.Code § 3-7-6 (1995) (Repl. Vol. 2006) which provides that
[a] person intending to contest the election of another to any county or district office, including judge of any court or any office that shall hereafter be created to be filled by the voters of the county or of any magisterial or other district therein, shall, within ten days after the result of the election is certified, give the contestee notice in writing of such intention and a list of the votes he will dispute, with the objections to each, and of the votes rejected for which he will contend.
Further examination of Article 7 of Chapter 3 of the West Virginia Code reveals a comprehensive and detailed procedure which allows a losing candidate to dispute the results of an election. Absent within this statutory scheme is any indication that the Legislature contemplated any other mechanism such as a private cause of action to challenge the results of an election even where there is an allegation of election fraud. Accordingly, under these circumstances, this Court cannot conclude that the Legislature intended that violations of the statutes at issue would give rise to a private cause of action.
When the third part of the Hurley test is considered, it is clear that a private cause of action is not implicated. The third part of the test requires a consideration of whether a private cause of action would be consistent with the underlying purposes of the legislative scheme. The statutes at issue were enacted for the purpose of imposing criminal sanctions on persons who improperly influence voters in an election. As discussed, these statutes are part of the Election Code which also includes the procedure for challenging the results of an election. Given that fact, this Court finds that the creation of a private cause of action based upon these statutes would only serve to usurp the legislative scheme. Essentially, this Court would be creating an alternative means by which an unsuccessful candidate could contest the results of an election and providing a private cause of action for damages to one individual for conduct violative of the rights of the citizenry at large. Not only would there be the potential for the outcome of such a private cause of action to be at odds with the certified results of the election at issue, there would be the potential for no finality to any election.
It is clear that if this Court were to find that a private cause of action exists under these circumstances, a whole new field of tort liability would be created without any express legislative authorization. “ ‘[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[.]’ ” State v. Richards, 206 W.Va. 573, 577, 526 S.E.2d 539, 543 (1999) (quoting State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 145, 107 S.E.2d 353, 358 (1959) (citation omitted)). Accordingly, this Court finds that conduct which constitutes violations of W. Va.Code §§ 3-8-11, 3-9-12, and 3-9-13 does not give rise to an implied private cause of action in addition to the criminal penalties imposed therein.
C. Unjust Enrichment Claim
Mr. Hill also contends that the circuit court erred by finding that he does not have a claim against Mr. Stowers for unjust enrichment. Mr. Hill argues that Mr. Stowers was unjustly enriched because he reaped the benefits of an office to which he was not lawfully elected. In other words, Mr. Hill asserts that the 1996 election for Circuit Clerk of Lincoln County was rendered void because votes were illegally obtained, and therefore, Mr. Stowers was not entitled to the salary and benefits he received. As the opposing candidate, Mr. Hill asserts that he was directly harmed and, thus, has a valid cause of action for unjust enrichment.
In considering Mr. Hill’s argument, a brief examination of the concept of unjust enrichment is necessary. In Syllabus Point 4 of Prudential Ins. Co. of America v. Couch, 180 W.Va. 210, 376 S.E.2d 104 (1988), this Court held:
It is generally recognized in the law of restitution that if one party pays money to another party (the payee) because of a mistake of fact that a contract or other obligation required such payment, the party making the payment is entitled to repayment of the money from the payee.
In so holding, this Court explained in Prudential that “[t]he theoretical basis for this principle is that it would be unjust to allow a person to retain money on which he had no valid claim. He would be unjustly enriched thereby, when in equity and justice it should be returned to the payor.” Id. at 214, 376 S.E.2d at 108. In this ease, it appears that Mr. Stowers was elected in 1996 because he illegally obtained votes. Mr. Hill, however, was not the payor of the salary and benefits that Mr. Stowers received as circuit clerk. Accordingly, there is simply no basis to allow Mr. Hill to pursue a claim against Mr. Stowers for unjust enrichment.
D. Public Policy Claim
Finally, Mr. Hill contends that the circuit court erred by finding that he does not have a cause of action against Mr. Stowers based on a violation of public policy. In support of his argument, Mr. Hill relies upon this Court’s decision in Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978). In that case, a former at-will bank employee, John Harless, filed suit against his former employer, the First National Bank in Fairmont, and its vice presidents, alleging that he had been fired because of his attempts to require the bank to comply with state and federal consumer credit protection laws. The circuit court dismissed the complaint filed by Mr. Harless finding that he had failed to state a cause of action and certified its decision to this Court., Upon review, this Court found that Mr. Harless had set forth a valid cause of action. This Court concluded that
the Legislature intended to establish a clear and unequivocal public policy that consumers of credit covered by the [West Virginia Consumer Credit and Protection] Act were to be given protection. Such manifest public policy should not be frustrated by a holding that an employee of a lending institution covered by the Act, who seeks to ensure that compliance is being made with the Act, can be discharged without being furnished a cause of action for such discharge.
Id. at 125-126, 246 S.E.2d at 276. Accordingly, this Court held:
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.
Syllabus, Harless.
In this case, Mr. Hill contends that public policy in West Virginia protects and safeguards free and fair elections without undue influence by unlawful vote-buying. While we agree that election fraud is clearly against West Virginia public policy, we cannot agree with Mr. Hill’s contention that such conduct gives rise to a private cause of action against a person who engages in the illegal activity by that person’s election opponent. In Harless, this Court found that a private cause of action was appropriate because there was no other mechanism available to enforce the public policy at issue. As explained in the preceding sections, there are procedures in place that allow a candidate in an election to contest the results. These procedures constitute the mechanism by which the Legislature has sought to secure free and fair elections in this State. In other words, West Virginia’s public policy of ensuring fair and free elections is enforced through the procedure for contesting an election. Even more importantly, criminal statutes such as W. Va.Code §§ 3-8-11, 3-9-12, 3-9-13 set forth penalties for election misconduct involving bribing voters and buying and selling votes. Moreover, there are also federal laws that impose criminal penalties for such activities. In fact, Mr. Stowei’s was indicted pursuant to 18 U.S.C. § 597. See note 4, supra. He ultimately pled guilty to one count of violating that statute and was sentenced to six months in prison.
In rejecting Mr. Hill’s public policy claim, the circuit court relied upon the decision of the Fourth Circuit Court of Appeals in Hutchinson v. Miller, 797 F.2d 1279 (4th Cir.1986). In Hiitchinson, three unsuccessful candidates for three separate public offices in West Virginia sought to recover approximately nine million dollars in damages for alleged irregularities in the 1980 general election pursuant to 42 U.S.C. § 1983, 18 U.S.C. § 1964, and the common law of West Virginia. Mr. Hill contends that the case has no application here because the Court ultimately rejected the plaintiffs’ claims based upon its conclusion that “federal courts do not sit to award post-election damages to defeated candidates.” 797 F.2d at 1287. However, we find the Court’s discussion instructive on this issue. The Court explained that
[t]hose who enter the political fray know the potential risks of their enterprise. If they are defeated by trickery or fraud, they can and should expect the established mechanisms of review — both civil and criminal — to address their grievances, and to take action to insure legitimate electoral results. In this way, they advance the fundamental goal of the electoral process— to determine the will of the people — while also protecting their own interest in the electoral result. A suit for damages, by contrast, may result principally in financial gain for the candidate. We can imagine no scenario in which this gain is the appropriate result of the decision to pursue elected office, and we can find no other case in which a defeated candidate has won such compensation. Nor do we believe, in light of the multitude of alternative remedies, that such a remedy is necessary either to deter misconduct or to provide incentives for enforcement of election laws.
Id. Based on all the above, it is clear that permitting a losing candidate in an election to pursue a private cause of action for monetary damages against his opponent would actually be contrary to West Virginia public policy.- Accordingly, this Court finds no merit to Mr. Hill’s argument.
Notwithstanding all the above, it is further noted that Mr. Hill’s claims would also likely fail simply because of the extreme difficulty of proof, both as to whether election fraud activities changed the outcome of an election held ten years prior to such suit being filed and whether Mr. Hill sustained any damages as a result of Mr. Stowers’s alleged vote-buying activities. “ ‘The general rule with regard to proof of damages is that such proof cannot be sustained by mere speculation or conjecture.’ Syllabus Point 1, Spencer v. Steinbrecher, 152 W.Va. 490, 164 S.E.2d 710 (1968).” Syllabus Point 6, Taylor v. Elkins Home Show, Inc., 210 W.Va. 612, 558 S.E.2d 611 (2001). In this case, Mr. Hill is claiming that he is entitled to the salary and benefits he would have received had he won the 1996 election for the Circuit Clerk of Lincoln County. Even if a claim existed, Mr. Hill would have to prove by a preponderance of evidence that he would have been elected to the office had Mr. Stowers not engaged in the alleged illegal conduct. It would have been impossible to determine in 2006, when Mr. Hill filed this lawsuit, how voters would have voted in the absence of Mr. Stowers’s alleged vote-buying activities in 1996. In other words, a civil action for damages for election fraud is unsusceptible to the level of proof necessary to sustain such a claim.
Having found that there is no merit to any of the claims asserted by Mr. Hill, this Court concludes that the circuit court did not err in granting Mr. Stowers’s motion to dismiss. Mr. Hill failed to set forth a claim upon which relief can be granted and dismissal of his complaint was proper.
IV.
CONCLUSION
Accordingly, for the reasons set forth above, the final order of the Circuit Court of Lincoln County entered on October 1, 2007, is affirmed.
Affirmed.
Justice MeHUGH, deeming himself disqualified, did not participate in the decision in this case.
Judge MOATS, sitting by temporary assignment.
. See note 5, infra.
. There was no Republican nominee.
. It appears that Mr. Hill did not seek the office in 2000 or 2004.
. Mr. Stowers pled guilty to violating 18 U.S.C. § 597 (1996) (2006 ed.) which provides:
Whoever makes or offers to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate; and
Whoever solicits, accepts, or receives any such expenditure in consideration of his vote or the withholding of his vote
Shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both.
.Rule ! 2(b)(6) of the West Virginia Rules of Civil Procedure provides, in pertinent part:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion ... (6) failure to state a claim upon which relief can be grantedf]
. W. Va.Code § 3-8-11 provides, in pertinent part:
(a) Any person who shall, directly or indirectly, by himself, or by any other person on his behalf, make use of, or threaten to make use of, any force, violence or restraint, or inflict, or threaten to inflict, any damage, harm or loss, upon or against any person, or by any other means attempt to intimidate or exert any undue influence, in order to induce such person to vote or refrain from voting, or on account of such person having voted or refrained from voting, at any election, or who shall, by abduction, duress or any fraudulent device or contrivance, impede or prevent the free exercise of the suffrage by any elector, or shall thereby compel, induce or prevail upon any elector either to vote or refrain from voting for or against any particular candidate or measure
Is guilty of a misdemeanor, and, on conviction thereof, shall be fined not more than ten thousand dollars, or confined in jail for not more than one year, or, in the discretion of the court, shall be subject to both such fine and imprisonment.
W. Va.Code § 3-9-12 states:
Whoever, being a candidate for any office, loans or gives, directly or indirectly, or offers or promises to loan, or give, any money, or other thing of value, to any elector, for the purpose of influencing or retaining the vote of such elector, or inducing such elector to work or labor for the election of such candidate, or to refrain from working or laboring for the election of any other candidate; or to any person to secure or to retain the influence or vote of such elector, in his behalf as such candidate, or to be used by such person in any way to influence the vote of any elector, or of electors generally, for himself or any candidate or ticket, shall be guilty of a misdemeanor, and, on conviction thereof, shall be fined not more than one thousand dollars, or confined in the county jail for not more than one year, or both, in the discretion of the court.
W. Va.Code § 3-9-13 states:
(a) It is unlawful for any person to offer or to pay money or any other thing of value to any person as consideration for the vote of the offeree or payee, as the case may be, to be cast for or against any candidate or issue in any election held in the state. Any person who violates the provisions of this subsection shall be guilty of a felony, and, upon conviction thereof, shall be fined not less than five thousand dollars or imprisoned for a period of not less than one year, nor more than five years, or both.
(b) It is likewise unlawful for any person to accept or agree to accept money or other thing of value as consideration for the vote of the acceptee, to be cast for or against any candidate or issue in any election held in the state. Any person who violates the provisions of this subsection shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or imprisoned in the county jail not more than one year, or both.
. Here, Mr. Hill is challenging the results of an election that occurred almost thirteen years ago.
. As previously noted, Mr. Stowers pled guilty to one count of buying votes in connection with the 2004 primary election in Lincoln County. Mr. Hill’s complaint, however, alleged that Mr. Stowers also bought votes during the 1996 election. For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the allegations set forth in the complaint are taken as true. Sedlock, supra, 222 W.Va. at 550, 668 S.E.2d at 179.
. As previously discussed, Mr. Hill sought to disqualify Judge Hoke during the proceedings below and has again asserted that this Court should appoint a different circuit judge to preside over the case. Given our decision above, it is not necessary to address this issue. However, it is noted that Rule 17.05 of the West Virginia Trial Court Rules states that "[ajll rulings and orders relating to the recusal of disqualification of a judge shall be considered interlocutory in nature and not subject to direct or immediate appeal.” | [
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MeHUGH, Justice.
Appellant Ryan Strick challenges the October 25, 2007, order of the Circuit Court of Kanawha County upholding the decision of the Appellee Division of Motor Vehicles (“Division”) to revoke his operator’s license for first offense driving under the influence of alcohol and refusing to submit to a secondary chemical test. As grounds for his appeal, Appellant argues that the arresting officer lacked the requisite degree of suspicion to stop his vehicle on the night of his arrest. While the Division maintains that an unlit tail lamp provided the police officer with the necessary basis for instituting a traffic stop, Mr. Strick contends that driving with only one operable tail lamp does not violate state traffic laws. Having carefully examined the arguments on this issue, we find that the trial court did not commit error and, accordingly, affirm.
I. Factual and Procedural Background
On November 18, 2005, at approximately 1:08 a.m., Officer C.J. Rider of the Charleston Police Department was conducting routine traffic patrol when he observed a red Jeep Wrangler. Because the vehicle had a non-functioning taillight on the passenger side of the vehicle, Officer Rider initiated a traffic stop. When the arresting officer approached the vehicle to identify its driver, he detected the odor of alcohol on Mr. Striek’s breath; observed the bloodshot condition of his eyes; and noted a slurring of his speech. Based on these observations, Appellant was instructed to exit his vehicle.
Following his unsteady exit from the vehicle, Officer Rider administered several field sobriety tests to Mr. Strick: the horizontal gaze nystagmus test; the walk-and-turn test; and the one-leg stand test. Throughout the testing, Appellant displayed prototypical signs of inebriation as his performance demonstrated that he had balance-related difficulties and impaired vision. When asked to submit to a preliminary breath test, Mr. Strick refused. Appellant was then arrested for driving under the influence of alcohol (“DUI”) and transported to the Charleston Police Department. Despite being provided with information regarding the penalties for refusing to submit to a secondary chemical test, Mr. Strick twice refused to take the secondary chemical test.
Appellant’s privilege to operate a motor vehicle was' revoked for six months for DUI and one year for refusing the secondary chemical test. Appellant requested an administrative hearing in connection with the revocation of his operator’s license and that hearing was held before the Division on September 20, 2006. Included in the Division’s final order upholding the administrative revocation were two critical determinations: (1) that Officer Rider had reasonable grounds to stop Mr. Strick’s vehicle for having or displaying defective equipment, and (2) that there was probable cause for the subsequent arrest of Appellant for DUI. Mr. Strick appealed the Commissioner’s decision and by order of October 25, 2007, the circuit court affirmed the final order. Through this appeal, Appellant challenges whether the administrative tribunal and the trial court both erred in concluding that Officer Rider had the predicate reasonable suspicion necessary to institute a lawful traffic stop on the night of his arrest.
II. Standard of Appeal
An appeal from a circuit court’s review of an administrative order is governed by the following standard:
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. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). With this two-pronged standard in mind, we proceed to determine whether the trial court committed error in upholding the administrative revocation of Appellant’s operator’s license on the facts of this ease.
III. Discussion
At the heart of this appeal is a purely legal question: Whether the operation of a motor vehicle with one inoperable taillight is a misdemeanor traffic violation which may in turn provide the predicate basis for a lawful traffic stop. Relying on a statutory provision that requires motor vehicles to be equipped “with at least one tail lamp,” Appellant argues that at the time of his arrest he was not operating his vehicle in violation of any traffic laws. W.Va.Code § 17C-15-5. Conversely, the Division adopts the position that all of the tail lamps must be in proper working order when a vehicle is equipped with multiple tail lamps.
We necessarily begin our analysis of the issue presented by reviewing the applicable statutes. The statute which addresses the penalty for driving an unsafe or improperly equipped motor vehicle is West Virginia Code § 17C-15-1. Pursuant to subsection a. of that statute
It is a misdemeanor for any person to drive or move or for the owner to cause or knowingly permit to be driven or moved on any highway any vehicle or combination of vehicles which is in such unsafe condition as to endanger any person, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and. adjustment as required in this article, or which is equipped in any manner in violation of this article, or for any person to do any act forbidden or fail to perform any act required under this article.
W.Va.Code § 17C-15-l(a) (emphasis supplied).
The specific requirements that pertain to tail lamps are separately addressed in section five of chapter fifteen. See W.Va.Code § 17C-15-5. Under section five, the Legislature has mandated as follows with regard to tail lamps:
(a) Every motor vehicle, trailer or semitrailer, and any other vehicle which is being drawn at the end of a train of vehicles, shall be equipped until at least one tail lamp mounted on the rear, which, when lighted as hereinbefore required, shall emit a red light plainly visible from a distance of five hundred feet to the rear, provided that in the case of a train of vehicles only the tail lamp on the rearmost vehicle need actually be seen from the distance specified.
(b) Every tail lamp upon every vehicle shall be located at a height of not more than sixty inches nor less than twenty inches to be measured as set forth in section three (b) [§ 17C-15-3(b) ] of this article.
(c) Either a tail lamp or a separate lamp shall be so constructed- and placed as to illuminate with a white light the real’ registration plate and render it clearly legible from a distance of fifty feet to the rear. Any tail lamp or tail lamps, together with any separate lamp for illuminating the rear registration plate, shall be so wired as to be lighted whenever the head lamps or auxiliary driving lamps are lighted.
W.Va.Code § 17C-15-5 (emphasis supplied).
Appellant suggests that the issue before us is resolved by the language of section 5(a) which requires motor vehicles to have “at least one tail lamp.” W.Va.Code § 17C-15-5(a). Because a vehicle is permitted to be equipped with only one tail lamp, Mr. Strick contends that a vehicle which has only one of two tail lights in working condition does not violate the requirements of our traffic laws. Moreover, Appellant asserts that section five, as the specific statute governing tail lamps, must be viewed as the controlling statute if any conflict arises with other provisions in chapter fifteen. Cf. §§ W.Va.Code 17C-15-5, -1; see generally Syl. Pt. 1, UMWA by Trumka v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984) (recognizing statutory construction rule that specific statute is given precedence over general statute).
Appellant seeks to view the legislative mandate that motor vehicles be “equipped with at least one tail lamp” in isolation from other provisions included in chapter fifteen, including additional provisions set forth in section 5. See W.Va.Code § 17C-15-5. While there is no question that a vehicle whose design includes only one tail lamp is in compliance with the equipment requirement set forth in section 5(a), that is not the question before us. See W.Va.Code § 17C-15-5(a). We are asked to decide whether a vehicle equipped by design with two tail lamps that has only one of those lamps in working order is in violation of the equipment-related mandates of chapter fifteen.
To support its position that Appellant was driving an improperly-equipped vehicle at the time of his arrest, the Division relies upon a different provision of section five than Appellant. In detailing the wiring-related requirements applicable to tail lamps, the Legislature has provided: “Any tail lamp or tail lamps, together with any separate lamp for illuminating the rear registration plate, shall be so wired as to be lighted whenever the head lamps or auxiliary driving lamps are lighted.” W.Va.Code § 17C-15-5(c) (emphasis supplied). As the Division notes, the subject of this provision was written in both the singular and the plural to address the alternative design possibility of vehicles having one or more tail lamps. Of significance to the Division is the requirement that those tail lamps are “to be lighted” in tandem with the use of headlights or auxiliary driving lamps. Id. By looking to this additional design requirement, the Division contends that all of the tail lamps on a vehicle must “be lighted” to meet the mandates of chapter fifteen.
While Appellant contends that the Division’s reliance on the tail lamp wiring requirements is misplaced, one appellate court has found this same statutory language to be determinative. In the analogous decision of People v. Williams, 236 Mich.App. 610, 601 N.W.2d 138 (1999), the court examined whether the traffic stop of a vehicle that had one inoperative tail lamp was lawful where the applicable statute required that motor vehicles “shall be equipped with at least 1 rear lamp mounted on the rear ....” Id. at 140 (quoting Mich. Comp. Laws § 257.686) (emphasis in original). Immediately following the quantitative tail lamp provision, the Michigan statute sets forth language virtually identical to section 5(c) of chapter fifteen which requires that a “tail lamp or tail lamps ... shall be wired so as to be lighted whenever the head lamps or auxiliary driv ing lamps are lighted.” Id. (emphasis in original).
The Michigan appellate court quickly ruled out any violation of the provision that required vehicles to be “equipped with” at least one rear lamp. As the court opined, “defendant’s automobile satisfied this requirement, because it was equipped with two tail lamps.” 601 N.W.2d at 140. As to the second provision concerning the wiring of the tail lamp(s), the court reasoned that there were two ways to read the statute:
[I]t could be read to provide either (1) that a tail lamp must be wired so as to be lighted as specified in order to comply with the Vehicle Code — the implication being that an automobile with a tail lamp not wired so as to be lighted as specified would be in violation of the Vehicle Code — or (2) that an automobile must be equipped with at least one tail lamp wired so as to be lighted as specified in order to be in compliance with the Vehicle Code.
Id. In concluding that the first interpretation was the proper reading of the statute, the Michigan court observed that the inclusion of the language “or tail lamps” would be rendered obsolete if it were to adopt the position that only one operative tail lamp was required under the statute. See Williams, 601 N.W.2d at 140. The fact that traffic safety was promoted by requiring operable tail lamps to be in compliance with the state vehicle code was also considered by the court. See id. As the court reasoned in Williams, “[w]e assume that when multiple tail lamps are included in an automobile’s design, they are intended, in part, to function together to enhance safety.” 601 N.W.2d at 141. Based on statutory provisions virtually identical to ours, the court held that a motor vehicle equipped with multiple tail lamps is in violation of the Michigan Vehicle Code if one or more of its tail lamps is inoperative and that such an equipment violation can provide the basis for a lawful traffic stop. Id.; see State v. Lewis, 738 So.2d 1212, 1215 (La.App.2d Cir.1999) (finding violation of Louisiana traffic laws that required vehicles to have at least one tail lamp and required lamps to be in proper condition where one tail lamp had hole in it); see also State v. Lussier, 171 Vt. 19, 757 A.2d 1017, 1029 (2000) (concluding that traffic stop for having only one of two taillights in working order was lawful because statute does not provide that one functioning taillight is sufficient).
Explaining its decision to uphold the license revocation in the final order, the Division first referenced the language of West Virginia Code § 17C-15-l(a), which makes it a misdemeanor offense to operate a vehicle “which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this article.” Turning then to West Virginia Code § 17C-15-5(c), the Division looked to the requirement that “[a]ny tail lamp or tail lamps ... shall be so wired as to be lighted whenever the head lamps or auxiliary driving lamps are lighted.” Based on the mandate that lamps are required to be “in proper condition” “at all times” and the further requirement that tail lamps “be lighted” when head lamps are on, the Division concluded that a vehicle equipped by the manufacturer with multiple tail lamps is required to have each of its tail lamps in working order. Under reasoning analogous to that employed in Williams, the Division reasoned that a vehicle which is operated with only one of its two tail lamps in proper working condition violates the traffic laws of this state.
By arguing that only one working tail lamp is required by the language of West Virginia Code § 17C-15-5(a), Appellant has overlooked the distinction between statutorily-mandated equipment and the separate restriction that such equipment must be in working order. The equipment provisions contained in chapter fifteen were not intended to be read in a vacuum from the mandates set forth in section one. The criminal offense established by the Legislature in section one for the operation of an unsafe or improperly equipped vehicle specifically includes a vehicle that does not have “lamps and other equipment in proper condition.” W.Va.Code § 17C-15-l(a).
Appellant’s position that the Legislature has never adopted a statutory provision which requires tail lamps to function properly at all times is simply incorrect. When sections one and five of chapter fifteen are read in pari materia, there is no question that tail lamps are required to be in working order at all times. See W.Va.Code §§ 17C-15-1, -5; Syl. Pt. 5, in part, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907 (1975) (holding that “[statutes which relate to the same person or things, or to the same class of persons or things, or statutes which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent”). Accordingly, we hold that when one or more of the tail lamps on a vehicle originally equipped with multiple tail lamps are not in proper working condition, the provisions of West Virginia Code § 17C-15-l(a) that establish a misdemeanor offense for the operation of an unsafe or improperly equipped motor vehicle are violated.
As the Division acknowledged during the oral argument of this case, the statutes under discussion are admittedly outdated because vehicles have been manufactured with more than one tail lamp for more than forty years now. The provision that requires “at least one tail lamp” has not been amended since its original enactment in 1951. See W.Va. Code § 17C-15-5(a). Several states have expressly addressed the impact that vehicle design change had on their traffic laws by exempting cars manufactured before a specified date from having two tail lamps. See, e.g., Conn. Gen.Stat. § 14-96e (2006) (requiring vehicles to have at least two tail lamps after Oct. 1, 1967, but permitting passenger ears manufactured prior to Oct. 1, 1957, to have at least one tail lamp); Haw.Rev.Stat. § 291-31 (2007) (providing that “vehicles manufactured prior to 1968 originally equipped with a single tail light assembly need only display a single tail light”); Nev. Rev.Stat. § 484.551 (2003) (allowing vehicles manufactured before July 1, 1969, to have at least one tail lamp “if they were originally equipped with only one tail lamp”). Wisconsin eliminated any confusion on this issue by amending its statute to provide: “No vehicle originally equipped at the time of manufacture and sale with 2 tail lamps shall be operated upon a highway during hours of darkness unless both such lamps are in good working order.” Wis. Stat. § 347.13 (2005).
Based on our determination that the Division and the circuit court correctly concluded that Appellant was operating his vehicle in violation of West Virginia Code §§ 17C-15-l(a) and 17C-15-5(c), the traffic stop initiated by Officer Rider was lawful. As we announced in syllabus point one of State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994), “Police officers may stop a vehicle to investigate if they have an articulable reasonable suspicion that the vehicle is subject to seizure or a person in the vehicle has committed, is committing, or is about to commit a crime.” In this case, Officer Rider effected a traffic stop for a misdemeanor violation of this state’s traffic laws based on the inoperable tail lamp on Appellant’s passenger side of his vehicle. As the United States Supreme Court observed in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), “[t]he foremost method of enforcing traffic and vehicle safety regulations ... is acting upon observed violations.” 440 U.S. at 659, 99 S.Ct. 1391. Because the traffic stop was lawful, the evidence that led to Appellant’s arrest for DUI is not subject to challenge as improperly obtained. Consequently, we find no basis for error with the trial court’s decision to uphold the administrative revocation of Appellant’s operator’s license.
Based on the foregoing, the decision of the Circuit Court of Kanawha County is affirmed.
Affirmed.
. See W.Va.Code §§ 17C-5-2, -4 (2004).
. See W.Va.Code § 17C-15-5(a) (2004).
. See W.Va.Code § 17C-5-4.
. The Division entered an "Order.of Revocation Implied Consent/DUI” on November 29, 2005.
. The record indicates that Appellant declined to testify or put on any evidence at the administrative hearing.
. The order was entered on April 30, 2007.
. Although the question of whether one operable tail lamp meets the equipment requirements of our traffic laws was raised in State v. Cline, 206 W.Va. 445, 525 S.E.2d 326 (1999), the appellant's failure to properly preserve the matter for appeal prevented us from addressing the merits of the issue in that decision. See id. at 450, 525 S.E.2d at 331.
. Because we find no conflict between the operation of sections one and five of chapter fifteen, there is no basis for applying the statutory construction rule that requires that a specific statutory provision take precedence over a general provision. See W.Va.Code §§ 17C — 15—1, —5.
. Under federal law, two red tail lamps are required to be mounted on the rear of passenger vehicles, symmetrically placed on each side as far apart as practicable. See 49 C.F.R. 57.108, Table I-b at 425 (2008). | [
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STARCHER, J.
Appellant appeals from an order entered by the circuit court of Jefferson County denying her petition for a writ of prohibition. The appellant claims in her petition that a family court judge exceeded the jurisdiction of the family court by issuing a domestic violence protective order upon a petition filed by a minor. For the reasons set forth below, we affirm the dismissal of appellant’s petition.
I.
Facts & Background
In the early morning hours of December 31, 2004, Richard B. filed a domestic violence petition against his mother, Katherine B. T., in the magistrate court of Jefferson County, West Virginia. In the petition Richard B. claims that in the late hours of December 30, 2004, in Charles Town, West Virginia, “My mom provoked me and came after me and choked me. She also punched me in the face.”
At the time of the filing of the petition Richard B. was a minor — fifteen years old. Also, at the time of the filing of the petition Richard B. was accompanied by his sister, Jennifer M., a twenty-seven year old married woman who is the mother of two children. Jennifer M., however, was not named in the petition as next friend.
After reviewing the petition, the magistrate entered an emergency protective order and placed Richard B. in the custody of his sister, Jennifer M., who lived in nearby Maryland. Subsequent to the hearing, the magistrate by telephone and by FAX reported the incident to the Department of Health and Human Resources (“the DHHR”).
On January 11, 2005, the family court of Jefferson County, West Virginia, conducted a final hearing on the petition. At the beginning of the hearing the court recognized the petitioner’s sister, Jennifer M., as next friend and treated her as such by allowing her to remain in the hearing as a party while other witnesses were segregated. The minor petitioner was represented by counsel, Robert D. Aitcheson, and the respondent Katherine B.T. (petitioner on appeal) appeared pro se.
After hearing evidence from both the minor son and the respondent mother, the family court issued a 180-day protective order and granted temporary custody to Richard B.’s sister, Jennifer M. The family court judge then, at the request of Jennifer M., granted permission to place Richard B. in the physical custody of Randall W., a family friend, who also was present and who testified at the hearing. Randall W. is also a resident of Maryland.
On January 13, 2005, the respondent mother appealed the order of the family court to the circuit court, claiming that false statements were made against her by her son and daughter. The circuit court conducted a hearing on the appeal on January 25, 2005, and reviewed the record of the family court. The circuit court affirmed the family court’s protective order on January 25, 2005. The respondent mother, Katherine B. T., immediately filed a petition in the family court to modify the protective order. No specific relief was requested in the petition.
On February 3, 2005, the minor son, Richard B., by counsel filed a petition for contempt against his mother, Katherine B. T., alleging that his mother violated the protective order by making excessive phone calls to him. On February 8, 2005, the respondent mother, Katherine B. T., filed a second petition in the family court to modify the protective order, this time seeking visitation with Richard B. On the same day, the family court considered the son’s petition for contempt, and found the respondent mother, Katherine B. T., in contempt. The family court also considered the mother’s motion to modify the protective order, and issued a modified protective order which permitted the petitioner, Richard B., to spend time with his mother, Katherine B. T., as “he [Richard B.] desires.”
On March 9, 2005, the respondent mother, Katherine B. T., for the first time, appeared by counsel, by filing a motion in the family court to dismiss the original petition, or in the alternative, that the court enter an order placing the custody of Richard B. with an appropriate adult in West Virginia. On April 11, 2005, Richard B. filed a motion for drug testing of his mother, Katherine B.T. By order dated April 12, 2005, the family court denied the mother’s motion to dismiss and the son’s motion for drug testing.
On April 13, 2005, Katherine B. T., the respondent below and appellant in the instant case, filed a petition for a writ of prohibition in the circuit court against Sally G. Jackson, Judge of the Family Court, claiming, among other things, that the family court exceeded its legitimate powers by granting relief to the minor, Richard B., in the underlying case. The circuit court considered the petition for a writ of prohibition at a hearing on June 29, 2005, and entered an order denying the petition. It is from this order that the petitioner, Katherine B. T., appeals.
II.
Standard of Review
We first turn our attention to the standard of review to be applied in the instant case. We held in Syllabus point 2 of State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977) that:
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.
Furthermore, we held in Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996) that:
In determining whether to entertain and issue the writ of prohibition for eases 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.
Finally, we held in Syllabus Point 1 of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) that:
Where the issue on 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.
We consider these principles applicable to the instant case.
III.
Discussion
We begin our discussion by noting that since the protective order in the underlying domestic violence ease expired by its own terms and by operation of law on July 10, 2005, it would appear that the instant case is moot. The petition for appeal was received by this Court on October 31, 2005, nearly three months after the expiration of the underlying domestic violence protective order issued by the family court.
Complicating our consideration of the instant case is the fact that in oral argument we learned that on July 7, 2005, three days before the expiration of the underlying domestic violence protective order, Richard B., by his next friend, Randall W., filed a new and separate petition in the family court of Jefferson County against the minor’s mother, Katherine B. T., requesting that emergency and permanent custody be placed in Randall W. We further learned that on July 8, 2005, the family court entered an order granting emergency temporary custody to Randall W. until further order of the court. This order was in effect at the time of the oral argument in the instant case.
We have also learned since oral argument, and take judicial notice thereof, that a final hearing was conducted in the aforesaid pending custody case in the family court of Jefferson County on June 13, 2006. At the hearing the parties reported to the family court that the parties had reached an agreed settlement regarding the custody of Richard B. Additionally, we note that a guardian ad litem had been appointed for Richard B. in the custody case and that the guardian ad litem participated in the June 13 hearing.
The agreed settlement announced by the parties to the court at the June 13, 2006 custody hearing was reduced to writing and incorporated into a final order which, in part, granted shared custody to Randall W. and Katherine B.T. The order also provides that Katherine B.T. shall have custodial time with Richard B. for a minimum of three days per week, or as she and the child otherwise agree. The order of the family court was entered on October 16, 2006, after the oral argument in the instant case.
The appellant encourages this Court to consider the issues in this case notwithstanding that the domestic violence order in issue has expired. Appellant cites to Syllabus Point 1 of Israel by Israel v. West Virginia Secondary Schools Activities Commission, 182 W.Va. 454, 388 S.E.2d 480 (1989) for the proposition that this Court may consider issues that are technically moot.
Three factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.
Syllabus Point 1 of Israel, supra.
In examining whether the instant case satisfies the three factors of Israel, supra, we first consider potential collateral consequences. If minor children were allowed to file domestic violence petitions without the necessity of doing so by a next friend or having a guardian ad litem appointed, it would be reasonable to expect to some children to use the domestic violence laws to escape legitimate parental supervision. We believe this potentiality alone satisfies the first prong of Israel, supra.
Secondly, it is axiomatic that taking minor children from under parental supervision is a matter of sufficient public interest. We also believe that the public interest will be served by providing guidance regarding this matter to the public, the bar and the court system. The issue clearly involves a vital public function — serving the best interest of our minor children. The second prong of Israel, supra, is therefore satisfied.
Finally, because domestic violence protective orders are, by statute, limited in duration, it is likely that instances of similar circumstances as raised in this appeal have and will in the future escape appellate review “because of their fleeting and determinative nature.” The third prong of Israel, supra, is also satisfied.
For the reasons stated above, and because it is foreseeable that minor children in the future may attempt to file domestic violence petitions, the questions raised in the instant appeal remain justiciable. See White v. Linkinoggor, 176 W.Va. 410, 412, 344 S.E.2d 633, 635 (1986).
The principle of mootness has proper application in this case because the underlying domestic violence protective order has expired and the custody issue raised has been resolved. We therefore find that the instant case is moot; however, we decline to dismiss the appeal.
A.
The appellant mother, Katherine B. T., challenges the fact that Richard B., a minor, filed a domestic violence petition on his own behalf and asserts that the family court exceeded its legitimate authority by failing to dismiss the petition. We disagree.
This issue involves, in part, a matter of statutory interpretation. We held in Syllabus Point 5 of State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959) that:
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.
The appellant first cites to W.Va.Code, 48-27-305(2) (2001), which states:
A petition for a protective order may be filed by:
(2) An adult family or household member for the protection of the victim or for any family or household member who is a minor child or physically or mentally incapacitated to the extent that he or she cannot file on his or her own behalff.]
The appellant, however, fails to consider the first paragraph of W.Va.Code, 48-27-305(1) (2001), which states:
A petition for a protective order may be filed by:
(1) A person seeking relief under this article [W.Va.Code, 48-27-1 et seq.] for herself or himself.
(Emphasis added.)
The appellant further fails to consider the express language of W.Va.Code, 48-27-304(b) (2001) which states:
(b) No person shall be refused the right to file a petition under the provisions of this article. No person shall be denied relief under the provisions of this article if she or he presents facts sufficient under the provisions of this article for the relief sought.
(Emphasis added.)
In order to resolve the question of whether or not a minor may file a domestic violence petition, we need only determine whether or not the legislature intended to include minors as persons who may file a domestic violence petition and thus obtain relief under the statute.
A person is defined as a “human being.” W.Va.Code, 48-27-204 (2002), in defining the term “Family or household member” recognizes “child or stepchild” as a person. Finally, we look to legislative findings and purposes in the enactment of the domestic violence statute. W.Va.Code, 48-27-101 (2001) states, in part, as follows:
§ 48-27-101. Findings and purposes.
(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. (2) Children are often physically assaulted or witness violence against one of their parents or other family or household members, violence which too often ultimately results in death. These children may suffer deep and lasting emotional harm from victimization and from exposure to domestic violence;
(Emphasis added.)
This section clearly expresses a legislative concern that children be protected from domestic violence and that they be treated as persons entitled to the protections of the domestic violence laws. We are persuaded that the language in this section is intended to include the protection of all victims of domestic violence, including minors.
We believe that the dear and unambiguous intention of the legislature was to create a system for addressing domestic violence issues which would be open to all persons. Because we find that the statute is clear and unambiguous and that the legislative intent is plain, our duty is simply to apply the statute.
We therefore hold that under W.Va. Code, 48-27-305 (2002), a minor may file a petition for a domestic violence protective order.
B.
Having answered the question as to whether or not a minor may file a domestic violence petition, we next turn to the procedure to be applied under these circumstances.
The appellant cites to W.Va.Code, 56-4-9 (1923) which states that “... any minor entitled to sue may do so by next friend or guardian.” The appellant also asserts the application of W.Va.Code, 50-5-3 (1978) which requires that infants proceed or be proceeded against by a next friend or guardian in civil actions in magistrate court. Fi nally, the appellant also cites Rule 17(c) of the West Virginia Rules of Civil Procedure as support for requiring a minor to proceed in a domestic violence case by a next friend or guardian.
We believe a domestic violence proceeding under W.Va.Code, 48-27-101, et. seq., is a remedial statute designed for the protection of the persons as defined in the statute and is to be liberally construed to accomplish its purposes. The Court has also adopted a comprehensive set of rules to govern the practice and procedure in civil domestic violence cases; however, the rules do not address whether or not a minor is required to proceed by next friend or guardian.
We agree with the appellant that both our statute and our rules provide that a minor must have either a next friend or guardian in order to prosecute or defend civil actions generally.
The record in the instant case reflects that the minor was accompanied by an adult, namely his sister Jennifer M., at the time of the filing of the domestic violence petition and at the final hearing on the petition. Also, the family court judge recognized the minor’s adult sister, Jennifer M., as his next friend at the final hearing and allowed her to remain in the hearing as a party while other witnesses were segregated from the hearing. Jennifer M. was, therefore, acting and recognized by the court as the defacto next friend of her minor brother Richard B.
Because our domestic violence rules do not speak specifically to domestic violence petitions that may be initiated by minors, we believe it would be helpful to our courts and to litigants for this Court to adopt a procedure to be applied in such cases. We, therefore, hold that when a minor, without a next friend or guardian, files a petition for a protective order under W.Va.Code, 48-27-101, et seq., the court in which the petition is filed shall immediately upon filing of the petition appoint a guardian ad litem for the minor.
C.
Finally, we turn to the appellant’s argument that the family court abused its discretion when it did not report to the DHHR suspected abuse claimed by the appellant.
The appellant argues that this issue is governed by Rule 47(a) of the Rules of Practice and Procedure for Family Courts which states:
(a) Reports by family court judges.- — -If a family court judge has reasonable cause to suspect any minor child involved in family court proceedings has been abused or neglected, that family court judge shall immediately report to the state child protective services agency and the circuit court.
In the instant case the record reflects that the magistrate notified the Jefferson County Department of Health and Human Resources office by FAX of the domestic violence petition and the emergency protective order when the order was issued. The record also reflects that the magistrate called the “hotline” and spoke to a DHHR worker to report the incident. From the record, it also appears that the FAX was sent to the family court judge.
We believe that since the magistrate reported the matter to the DHHR and also notified the family court judge that the report was made, there was no necessity for the family court judge to duplicate the report to the DHHR.
We do, however, believe that the better practice would be to follow the strict language of Rule 47 of the Rules of Practice and Procedure for Family Court even if the petition and incident had been previously reported to the DHHR. This practice could help assure that no case “slips through the cracks.”
We therefore hold that in any domestic violence case, when any circuit court judge, family court judge, or magistrate has reasonable cause to suspect that a child is neglected or abused, the circuit court judge, family court judge, or magistrate shall immediately report the suspected neglect or abuse to the state child protective services agency pursuant to W.Va.Code, 49-6A-2 (2006) and, if applicable, Rule 48 of the Rules of Practice and Procedure for Family Court. When a petition for domestic violence is filed (typically magistrate court) and the judge or magistrate has reasonable cause to suspect that a child is neglected or abused, it would also be the better practice for the court to require the attendance of a representative of the DHHR at all proceedings.
IV.
Conclusion
In consideration of the foregoing, we affirm the circuit court’s dismissal of the appellant’s petition for a writ of prohibition and deny the requested relief. We further hold that in any domestic violence case which is initiated by a minor, our courts shall be guided by the holdings of this case.
Affirmed.
. We follow our traditional practice in cases involving sensitive facts and use initials to identify the last names of the parties. See In re Jeffrey R. L., 190 W.Va. 24, 435 S.E.2d 162 (1993).
. The magistrate made findings which included the following:
C. Petitioner has proven the allegations of domestic violence or abuse by clear and convincing evidence of immediate and present danger of abuse, and is entitled to mandatory relief as provided by W.Va.Code § 48-27-502. D. (Initial if applicable) mpr That Petitioner has proven by clear and convincing evidence the need for the permissive relief granted in this ORDER as provided by W.Va.Code § 48-27-503.
The court makes the following findings of fact which support the conclusion stated in section C&D:
Petr’s [Petitioner's] sworn statement; physical evidence of abuse [;] Statements & information from sister ie [sic]: history of violence between mother and children
PERMISSIVE RELIEF
12. mpr OTHER as allowed by W.Va.Code § 48-27-403: Petr [Petitioner] is going to stay w/ his sister, Jennifer M[J (27 yr. Old) in Bumie, MD
. The record reflects that the following was sent by FAX to the Department of Health and Human Resources:
December 31, 2004
Jefferson County DHHR Office
BY FAX: 267-0121
Attached for your information is a copy of a Domestic Violence
Petition and Emergency Protective Order that was issued about 2:30 a.m. today
I called the Hotline to report the incident. I spoke with Terry and told her I woul fax this paperwork to you Hope it helps.
Thank you.
[signature]
Mary Paul Rissler, Magistrate
Jefferson County
cc: Family Ct. Judge
. The order by its terms expired on July 10, 2005.
. Paragraph 5 of the order granting custody states:
PERMISSIVE RELIEF:
The following items initialed by the family law master [family court judge] are further ORDERED:
5. / Temporary custody of (list names of children, if any) Richard [B.] is awarded to (e/reelt — or¡c-¿i(:-gm.Hfód-)-g-Patitioner—El-Re-spondont. his sister Jennifer [MJ. She may place him with Randall [W.], a family friend.
. See W.Va.Code, 48-27-505(a) (2001) which limits protective orders to 180 days.
. We take judicial notice of a July 8, 2005, order in Jefferson County Civil Action No. 05-D-210, in which custody of Richard B. was granted to Randall W. after the court concluded that Randall W. was fit to have custody.
In the July 8, 2005, order the family court stated:
This Court has previously found that ... C. Randall [W.] is fit to have custody of the child
. We take judicial notice of the June 13, 2006 hearing order in Jefferson County Civil Action No. 05-D-210 in which the agreement of the parties was memorialized. The order was entered on October 16, 2006. The following is a portion of the order:
1. Randall [W.] and Katherine [B.T.] shall have shared custody of Richard [B.], who shall live primarily with Randall [W-l in Hagers-town, Maryland.
2. Katherine [B. T]. shall have custodial lime with the minor child for a minimum of three days per week or as she & child otherwise agree. Child is over 14 yrs & has the right to determine a custodial schedule.
. Black’s Law Dictionary, Eight Edition, West Publishing Co., 2004.
. W.Va.Code, 48-27-204 (2002) states:
"Family or household members” means persons who: ...
(7) Have the following relationships to another person: ...
(H) Child or stepchild: ....
. W.Va.Code, 48-27-101(2001), states, in part, as follows:
§ 48-27-101. Findings and purposes.
(b) This article shall be liberally construed and applied to promote the following purposes:
(I) To assure victims of domestic violence the maximum protection from abuse that the law can provide; ...
. W.Va.Code, 56-4-9 (1923) states:
Minors may sue by next friend or guardian; substitution of plaintiffs.
Any minor entitled to sue may do so by next friend or guardian. When the action or suit is brought by his next friend, the court may, for good cause, substitute the guardian in lieu of the next friend, or any other person as the next friend.
.W.Va.Code, 50-5-3 (1978) states:
§ 50-5-3. Appointment of guardian ad litem.
No infant, incompetent person or incarcerated convict shall proceed or be proceeded against in a civil action in magistrate court unless the provisions of this section are complied with.
Whenever an infant, incompetent person or incarcerated convict has a duly qualified representative, such as a guardian, curator, committee or other like fiduciary, such representative may sue or defend on behalf of the infant, incompetent person or convict. If a person under any disability does not have a duly qualified representative he may sue by his next friend. The magistrate shall appoint some suitable person who shall not be required to be an attorney-at-law as guardian ad litem for an infant, incompetent person or incarcerated convict not otherwise represented in an action.
. This Court has adopted changes to Court rules effective April 3, 2006, regarding reporting of suspected abuse and neglect and accountability which, when followed, should minimize the probability of any instances of abuse and neglect escaping prompt attention by the Department of Health and Human Resources. See Rule 48 of the Rules of Practice and Procedure for Family Court; Rule 3a. of the Rules of Procedure For Child Abuse and Neglect Proceedings; and Rule 16a of Rules of Practice and Procedure for Domestic Violence Civil Proceedings.
. Rule 48 of the Rules of Practice and Procedure for Family Courts, effective April 3, 2006. | [
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PER CURIAM.
In the instant case, the appellant, Samantha Sells, appeals the Circuit Court of Mercer County’s May 11, 2005, order granting summary judgment in favor of the appellee, Kenneth Chittum. Ms. Sells filed a legal malpractice action against Mr. Chittum following his representation of her in a personal injury case. The circuit court found that Ms. Sells was unable to prove that she suffered a loss as a result of Mr. Chittum’s actions. Thus, the circuit court granted Mr. Chittum’s motion for summary judgment.
In this appeal, Ms. Sells contends that because of Mr. Chittum’s conduct, she was forced to settle her underinsured motorist claim in the underlying personal injury action which limited her recovery of damages. Therefore, she argues that the circuit court’s summary judgment order was improper. After reviewing the facts of the case, the issues presented, and the relevant statutory and case law, this Court reverses the decision of the circuit court.
I.
FACTS
On April 21, 2000, the appellant, Samantha Sells, was a guest passenger on a motorcycle driven by Billy Ray Lewis Jr., traveling on Route 102 in Mercer County, West Vix-ginia. The motorcycle was involved in an accident with a Ford F-150 truck driven by Arnold Thomas, when Thomas cut across and in front of the motorcycle. As a result of the accident, Ms. Sells suffered multiple injuries and was left with a permanent limp. Soon thereafter, Ms. Sells retained the appellee, Kenneth E. Chittum, to represent her for her claims against Mr. Lewis and Mr. Thomas. Ms. Sells settled her claims with Mi-. Thomas’ insurance carrier, Nationwide Insurance Company, for $24,300 while the other claimants split the balance of Mr. Thomas’ $50,000 liability policy limits.
On July 6, 2000, with Mr. Chittum present, a Nationwide insurance adjuster interviewed Ms. Sells wherein she told the adjustor she was also covered by her father’s insurance. Mr. Chittum was also informed by a claims representative for State Farm Insurance Company that Ms. Sells was entitled to medical payments coverage under a policy issued to her parents. Mr. Chittum later received a check from State Farm for medical payments benefits under Ms. Sells’ parents’ policy. Ms. Sells, however, contends that Mr. Chit-tum failed to investigate or pursue an under-insured motorist claim on her behalf under her parents’ State Farm policy which contained underinsured motorist coverage in the amount of $75,000.
On January 23, 2001, Mr. Chittum completed the settlement with Mr. Thomas’ insurer, and on February 6, 2002, Ms. Sells terminated her representation by Mr. Chit-tum and retained her current counsel, Frank Venezia. On March 14, 2002, on behalf of Ms. Sells, Mr. Venezia filed an action against Mr. Chittum for professional negligence and against State Farm for underinsured motorist coverage. At that time, the statute of limitations on further claims had not run. While her parents’ underinsured policy limit was $75,000, Ms. Sells settled her claim for $50,000. Ms. Sells maintains that she was forced to settle for a lesser amount than she was entitled due to the professional negligence of Mr. Chittum in failing to investigate and determine whether she was eligible for underinsured motorist benefits under her parents’ policy prior to settling her claim against Mr. Thomas.
On May 11, 2005, the Circuit Court of Mercer County granted Mr. Chittum’s motion for summary judgment. Ms. Sells subsequently appealed the circuit court’s order.
II.
STANDARD OF REVIEW
Ms. Sells contends that the circuit court erred in granting summary judgment to Mr. Chittum. 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 & Stirety 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 Ms. Sells’ arguments.
III.
DISCUSSION
The issue in this appeal is whether the circuit court’s granting of Mr. Chittum’s motion for summary judgment was appropriate. Ms. Sells argues that summary judgment was not proper. She believes that Mr. Chit-tum’s settlement on her behalf with the tort- feasor necessarily prejudiced her pursuit of underinsured motorist coverage and resulted in a denial of her ability to receive a fair adjudication in her underlying case. She contends that genuine issues of material fact exist which must be resolved by a jury.
Ms. Sells explains that she was forced to settle her underinsured coverage claim with State Farm Insurance for less money than she was entitled to receive due to Mr. Chit-tum’s negligence. Mr. Venezia, who replaced Mr. Chittum as Ms. Sells’ counsel, filed the subsequent lawsuit in this case against Mr. Chittum. In that lawsuit, Mr. Venezia included a declaratory action against State Farm asking the circuit court to determine that State Farm was required to provide Ms. Sells with underinsured motorist coverage. State Farm then filed a motion for summary judgment in which it argued that Ms. Sells was not entitled to coverage due to Mr. Chittum’s breach of contract in settling Ms. Sells’ earlier claim with Nationwide in violation of State Farm’s policy exhaustion clause.
State Farm maintained in its motion for summary judgment that Mr. Chittum’s settlement and subsequent release of the tort-feasor prejudiced its subrogation rights. State Farm also argued that Virginia law should have applied to Ms. Sells’ underin-sured motorist claim because the State Farm policy was executed in Virginia, to be performed in Virginia, and the principal risk was garaged in Virginia. State Farm declared that under Virginia’s laws, the settlement of the underlying claim against the tortfeasor by Mr. Chittum without notifying State Farm of the settlement was not only a violation of the policy exhaustion clause, but it prejudiced State Farm’s subrogation rights and destroyed its duty of coverage whether there was any prejudice to the insurer or not.
During the hearing on State Farm’s motion for summary judgment, the circuit judge stated that if he determined that Virginia law was to be applied to Ms. Sells’ case then State Farm’s motion would be granted denying any coverage to Ms. Sells. Soon after that hearing, Ms. Sells settled her claim with State Farm for $50,000, which was $25,000 less than the policy limit. Ms. Sells argues that she was forced to settle because she ran the risk of receiving an adverse ruling from the circuit court on State Farm’s summary judgment motion which would have resulted in no coverage for her injuries. She further points out that this would not have been an issue had it not been for Mr. Chittum’s negligent handling of her ease due to his failure to investigate and determine whether she was eligible for underinsured motorist benefits prior to completing his settlement with Nationwide.
Conversely, Mr. Chittum responds that the circuit court correctly granted his motion for summary judgment and properly determined that Ms. Sells was required to prove her loss beyond simple speculative assertions. He states that the circuit court explained that Ms. Sells settled her claim for $50,000 under a policy with a limit of $75,000 and that it was beyond the court to speculate whether a jury would have awarded her the full policy limits. Mr. Chittum further maintains that Ms. Sells was not forced to settle her claim against State Farm. He explains that on February 6, 2002, Ms. Sells signed a release of Mr. Chittum as counsel in her case, and in that release, in bold print, he plainly urged her to seek legal counsel prior to the running of the statute of limitations for any other claims that she may have had surrounding the accident. Mr. Chittum points out that Ms. Sells could have easily refused to sign the release provided to her. Likewise, Mr. Chittum contends that Ms. Sells’ argument is without merit because she terminated his employment and hired Mr. Venezia before her claim was barred by the statute of limitations. Accordingly, Mr. Chittum states that there is no evidence that he committed professional negligence.
After fully reviewing the evidence, we believe that the circuit court erred in granting summary judgment to Mr. Chittum. In Syllabus Point 1 of Calvert v. Scharf, 217 W.Va. 684, 619 S.E.2d 197 (2005), we explained that: “Generally, in a suit against an attorney for negligence, the plaintiff must prove three things in order to recover: (1) the attorney’s employment; (2) his/her neglect of a reasonable duty; and (3) that such negligence resulted in and was the proximate cause of loss to the plaintiff.” See also Keister v. Talbott, 182 W.Va. 745, 748-749, 391 S.E.2d 895, 898-899 (1990) (citations omitted); Sheetz, Inc. v. Bowles Rice McDavid Graff & Love, PLLC, 209 W.Va. 318, 333 n. 13, 547 S.E.2d 256, 271 n. 13 (2001) (same); Armor v. Lantz, 207 W.Va. 672, 681, 535 S.E.2d 737, 746 (2000) (same); McGuire v. Fitzsimmons, 197 W.Va. 132, 136-137, 475 S.E.2d 132, 136-137 (1996) (same).
Moreover, we have held that “[i]n an attorney malpractice action, proof of the attorney’s negligence alone is insufficient to warrant recovery; it must also appeal' that the client’s damages are the direct and proximate result of such negligence.” Syllabus Point 2, Keister v. Talbott, 182 W.Va. 745, 391 S.E.2d 895 (1990). Thus, in order to prevail in a malpractice action against a lawyer, the plaintiff must establish not only his or her damages, but must additionally establish that, but for the negligence of the lawyer, he or she would not have suffered those damages.
In Syllabus Point 3 of Keister we further explained that “[djamages arising from the negligence of an attorney are not presumed, and a plaintiff in a malpractice action has the burden of proving both his loss and its causal connection to the attorney’s negligence.” 182 W.Va. 745, 391 S.E.2d 895. Without the requisite causal connection between an attorney’s malpractice and a loss to the client, a malpractice case simply cannot go forward. See, e.g., Harrison v. Casto, 165 W.Va. 787, 271 S.E.2d 774 (1980) (finding no error in lower court’s dismissal of case alleging malpractice against an attorney who failed to file a complaint on behalf of client upon finding that, although the attorney did not file a complaint, the client had not been harmed by the failure since the statute of limitations on that action had not run at the time the malpractice action had been instituted).
In this case, the attorney’s employment is not an issue. Ms. Sells directly hired Mr. Chittum to represent her. Secondly, Ms. Sells has presented evidence to prove that Mr. Chittum neglected a reasonable duty when he settled with Nationwide Insurance without investigating or pursuing an underinsured motorist claim on her behalf. In that regard, the evidence shows that Mr. Chittum was aware of the State Farm policy prior to settling Ms. Sells’ claim with Nationwide against the tortfeasor. Moreover, it is undisputed that the settlement with Nationwide was in violation of State Farm’s policy exhaustion clause. Thus, Mr. Chittum’s release of the tortfeasor when he executed the settlement with Nationwide prejudiced State Farm’s subrogation rights. Such action necessarily affected a later settlement with State Farm due to the fact that Ms. Sells was in violation of State Farm’s policy the moment Mr. Chittum settled the claim with the tortfeasor.
Finally, Ms. Sells must prove that she suffered loss that was caused by Mr. Chit-tum’s actions. In that regard, Ms. Sells contends that by settling her claim against Mr. Thomas, Mr. Chittum jeopardized her claim against State Farm. As a result, in order to secure some recovery, she settled her under-insured motorist claim for $50,000, $25,000 less than the policy limit. Thus, she reasons that she suffered a loss as a result of Mr. Chittum’s conduct.
By contrast, Mr. Chittum argues that Ms. Sells’ claims are speculative and that she cannot prove that she would have received a greater damage award had the underinsured claim been pursued prior to settlement with Mr. Thomas. Mr. Chittum says that given Ms. Sells’ settlement with State Farm, there is simply no way to prove any negligence on Lis part that caused Ms. Sells to suffer a loss.
We disagree. In Better Homes, Inc. v. Rodgers, 195 F.Supp. 93 (N.D.W.Va.1961), the District Court, applying West Virginia law, discussed the compelling reasons why damages of this type are not speculative. Better Homes was an action against the plaintiffs former attorneys who lost a property damage negligence case brought by a customer and failed to appeal within the applicable time period. The attorneys argued that the plaintiffs loss was too speculative. In rejecting this argument the court held:
If it should be the law that the necessity of undertaking the functions of the Supreme Court of Appeals, in the limited sense hereinbefore outlined, renders the proof of damages too remote, speculative and uncertain to receive cognizance, it is apparent that no lawyer can ever be held financially responsible for admitted negligence in fading to perfect an appeal from a judgment adverse to his client. I do not believe that this is or should be the law.
Having reviewed the record in this case, we believe that genuine issues of material fact exist with regard to whether Mr. Out-turn's failure to pursue the underinsured motorist claim prior to settlement with the tortfeasor caused Ms. Sells to suffer a loss constituting legal malpractice. It is undisputed that Ms. Sells was seriously injured in this accident. She demonstrated approximately $85,000 in medical expenses and was left with a permanent limp. It is clear that she suffered multiple injuries including back injuries, multiple contusions, a severely com-minuted open knee laceration with disruption of the quadriceps, and an intra-articular fracture of the right ankle. We believe that given the opportunity, Ms. Sells may have been able to present compelling evidence to State Farm that her claim was worth $75,000 in underinsured motorist coverage. Thus, as a consequence of Mr. Chittum’s' handling of this case, Ms. Sells was denied the opportunity to present such evidence to a jury for a fair adjudication of her case. As such, the order of the circuit court of Mercer County is reversed, and this case is remanded for further proceedings consistent with this opinion.
IV.
CONCLUSION
Accordingly, for the reasons set forth above, the final order of the Circuit Court of Mercer County entered on May 11, 2005, is • reversed.
Reversed.
. The release signed by Ms. Sells provided the following:
I, Samantha Sells do hereby terminate the representation of Kenneth E. Chittum, Attorney at Law from representing me in my accident case that occurred on April 1st, 2000. Further, I have been advised that there may be a claim against other Insurance carriers for underinsured/uninsured claims/ these claims MUST BE FILED BEFORE APRIL 1ST 2002. Or these potential claims may never be filed. You will lose your right to file them. I have been STRONGLY ADVISED TO SEEK ANOTHER ATTORNEY IMMEDIATELY!
By the termination of this Attorney client relationship I realize that Kenneth E. Chittum shall have no further responsibility in this case. I also acknowledge the receipt of my entire file on this 6 day of Feb. 2002.
. In a separate issue, Ms. Sells states that summary judgment was not appropriate due to the fact that she did not have adequate time for discovery. While we have reviewed the facts of this case and believe that there was adequate time for discovery for both parties, the issue is moot given the fact that we are reversing the circuit court's grant of summary judgment to Mr. Chittum. | [
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ALBRIGHT, Justice.
This case is before us on certified questions and presents the issue of whether, upon the destruction of the real property included in a life estate, a remainderman is entitled to the proceeds from a fire insurance policy that the life tenant applied for and purchased. Upon our careful consideration of this issue, we determine that under well-established principles of contract law a remainderman has no interest in or entitlement to the insurance proceeds issued in connection with an insurance policy which was procured by and entirely paid for by a life estate tenant.
I. Factual and Procedural Background
In 1993, Emogene Keith, the mother of Petitioner David W. Keith, died. Under her last will and testament, Mrs. Keith devised a life estate to Opha L. Keith, her husband and the Petitioner’s father. Under this same testamentary document, the decedent bequeathed a remainder interest in the decedent’s entire estate to Petitioner. The deee- dent’s estate included real property located in Monroe County, West Virginia; a home located on that property; and various items of personal property contained within the home.
Sometime in 1989, Emogene and Opha Keith applied for and were issued a policy of insurance by Municipal Mutual Insurance Company (“Municipal Mutual”), which provided coverage for their home and personal property contained therein. On January 17, 2004, the home and personal property subject to the life estate were destroyed as a result of fire. Shortly thereafter, Opha Keith submitted a claim to his insurer for the losses resulting from the fire. On Februaiy 24, 2004, Municipal Mutual issued a check in the amount of $54,000, payable to Opha L. Keith, Emogene Keith, and David Keith. Emogene Keith’s name was included on the proceeds check as the policy was never amended after her death to remove her as an insured. David Keith was included as a payee on the check based on his possession of a remainder interest in the property. By agreement of the parties, the original check issued by Municipal Mutual was voided and the entirety of the funds at issue have been deposited with the Circuit Court Clerk of Monroe County pending resolution of this dispute.
By order entered on February 6, 2006, the Circuit Court of Monroe County certified the following questions:
1. In the event that certain improvements to real estate in the possession of the life tenant, insured against fire on a policy obtained by the life tenant under which only the life tenant is a beneficiary, are destroyed by fire, does the remainderman have an interest in the insurance proceeds though he is neither a named insured or paid any premiums?
2. In the event that the remainderman is determined to have an interest in the insurance proceeds, is West Virginia Code § 48-2-1, et seq., appropriate to determine the share of the proceeds paid to the re-mainderman?
3. If West Virginia Code § 43-2-1 et seq., is deemed to be an appropriate method to calculate the remainderman’s share in the insurance from the loss of the structure, is this also applicable to the loss of personal property on the premises?
4. In the event that West Virginia Code § 43-2-1 et seq., is determined to be the appropriate method to calculate the re-mainderman’s share of the insurance proceeds, is the remainderman precluded from pursuing a negligence claim against the life tenant for the loss of the improvements?
By order dated June 28, 2006, this Court accepted the certified questions and docketed the matter for resolution. We proceed to address the questions certified to us from the circuit court.
II.Standard of Review
As we recognized in syllabus point one of Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), “[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo.”
III.Discussion
As Petitioner acknowledges, courts have adopted two distinct approaches to resolve the issue of a remainderman’s entitlement to insurance proceeds where a life tenant insures the property in his name and for his own benefit and pays the premiums for such policy from his own funds. Petitioner advocates that we adopt the admittedly minority view, which treats the life tenant as a quasi-trustee of the remainderman, and consequently reasons that the remainderman is entitled to the proceeds. In contrast, the prevailing view analyzes the issue pursuant to settled contractual principles to conclude that the life tenant, as the party who entered into a contract of insurance for his personal benefit, is solely entitled to the insurance proceeds when the property subject to the life estate is destroyed. See generally 51 Am. Jur.2d Life Tenants and Remaindermen § 182 (2000); Forbes v. American Int’l Ins. Co., 260 Md. 181, 271 A.2d 684, 686 (1970) (citing 126 A.L.R. 345).
This is a case of first impression as there are no West Virginia eases that address whether a remainderman is entitled to any portion of the insurance proceeds paid out on a policy issued to a life tenant. Our sister state of Virginia has addressed the issue and determined that a “life tenant was under no obligation to insure the property for the benefit of the remaindermen.” Thompson v. Gearheart, 137 Va. 427, 119 S.E. 67, 68 (1923). In explanation of its conclusion, the court reasoned:
Each of them had an insurable interest in the property, but a policy in the name of one could not cover the interest of the other. The nature and effect of an insurance contract is to indemnify the insured against loss or damage, and not some one else who is not a party to the contract; nor has such other party any lawful claim upon the amount realized by the assured under the policy.
Id. at 68.
An oft-quoted explanation for this result is stated in Farmers’ Mutual Fire & Lightning Insurance Co. v. Crowley, 354 Mo. 649, 190 S.W.2d 250 (1945):
The insurance policy is a personal contract; both the life tenant and the remain-derman have insurable interests in the property; if the life tenant procures the insurance for his personal indemnity, the remainderman, who did not procure the insurance, has no cause for complaint, even if the proceeds of the life tenant’s insurance contract exceed the sum which would indemnify him for his personal loss; the proceeds are of the insurance contract, not of the property, and do not stand in the place of the property destroyed.
Id. at 253 (emphasis supplied).
Expounding in a similar vein, a Massachusetts court articulated the following explanation of why the life estate purchaser is entitled to the full amount of the insurance proceeds upon the property’s destruction:
The fact that the property was insured by the life tenant for its full value is not enough to show that he [life tenant] intended to cover the interest of the remainder-man. If a life tenant, who has insured for his own benefit, receives from the insurers more than the value of the life tenancy, that is a matter between the parties to the contracts of insurance and creates no claim in favor of the remainderman in the excess paid over the value of the life tenancy in the property. The underlying principle is that fire insurance policies are personal contracts providing for the payment of indemnity to the insured in case of loss, and the amount received does not stand for nor represent the property damaged or destroyed although the measure of indemnity depends upon the determination of the value of the interest of the insured in the property covered by the policies. In a word, the money received by a life tenant from his own contracts of insurance belongs to him, and he cannot be compelled to hold the money as though it were substituted for the property or as though it were the proceeds of the property.
Converse v. Boston Safe Deposit & Trust Co., 315 Mass. 544, 53 N.E.2d 841, 843 (1944) (emphasis supplied); accord Gearheart, 119 S.E. at 68 (explaining why a trust relationship does not arise by virtue of the life tenant’s receipt of insurance proceeds); 51 Am.Jur.2d Life Tenants and Remaindermen § 182 (observing “that without an express covenant the tenant for life is not liable to rebuild a house destroyed by fire not his or her fault, and a life tenant is in no sense a trustee for the remainderman. If the life tenant is not bound to rebuild, he or she certainly is not bound to insure for the benefit of the remainderman.”).
As support for his position that this Court should reject the contractual approach favored by the majority and adopt the quasi-trust relationship approach taken by the minority, Petitioner looks to this Court’s recognition in Keesecker v. Bird, 200 W.Va. 667, 490 S.E.2d 754 (1997), that a life tenant has a duty to preserve the corpus of the estate and not to commit waste. Id. at 682, 490 S.E.2d at 769. Drawing on this obligation not to waste, Petitioner suggests that the quasi-trustee approach is the approach more in accord with the duty not to commit waste. Petitioner contends essentially that it is inequitable to allow a life estate holder, whose interest in the property is less than that of the remainderman, to benefit from the destruction of the estate. Consequently, he advocates that the remainderman should, under principles of public policy, receive a share of the insurance proceeds that are disbursed upon the destruction of the estate property.
At least one court has squarely addressed “the apparent inequity of the [majority] rule.” Ellerbusch v. Myers, 683 N.E.2d 1352, 1355 (Ind.App.1997). In adopting the majority rule, the court in Ellerbusch reasoned away the seeming harshness of the position by explaining that “a remainderman may protect his interest through an agreement with the life tenant that the latter carry insurance for the remainderman’s benefit” and each party “can insure for himself.” Id. at 1355. In this fashion, the court acknowledged that there are ways to prevent the majority position from operating to the disadvantage of the remainderman.
There are three well-established exceptions to the majority rule that the remainderman does not have an interest in insurance proceeds recovered upon the destruction of the life estate. Those exceptions to the rule operate when (1) the instrument creating the estate expressly provides that the life tenant will insure the property for the benefit of the remainderman; (2) the life tenant and the remainderman agree to this requirement; or (3) if a fiduciary relationship exists between the life tenant and the remainderman. See 51 Am.Jur.2d at § 182; Ellerbusch, 683 N.E.2d at 1354.
Having considered the arguments underlying the majority and minority positions on the issue presented by the first certified question, we believe that the better-reasoned approach is to apply contractual precepts to resolve the issue of a remainderman’s entitlement to insurance proceeds paid out in connection with the destruction of the property subject to the life estate. Accordingly, we adopt the majority position to conclude that where a life tenant insures the property subject to the life estate in his own name and for his own benefit and pays the premiums from his own funds, he is solely entitled to the proceeds of the insurance upon a loss absent a provision in the instrument creating the estate that requires the life tenant to insure the estate for the benefit of the remainder-man; an agreement between the life estate tenant and the remainderman that the estate will be insured for the benefit of the remainderman; or the existence of a fiduciary relationship between the remainderman and the life tenant.
While we are certainly not unmindful of the seeming inequities of the situation pre sented by this case where the value of a remainderman’s inheritance is reduced through no fault of his own, a remainderman is not without the means to prevent this unfortunate result. As the Indiana appellate court made clear in Ellerbusch, the seeming harshness of the majority rule is ameliorated by the fact that the remainderman can procure insurance on his interest in the estate property and thereby avoid the very inequity about which he complains. 683 N.E.2d at 1355.
Having answered the first certified question in the negative, we do not proceed to the remaining questions that were conditionally certified based upon our response to the first question.
Certified question answered.
. Opha Keith died in 2004 and Sharon Buckland was appointed as executrix pursuant to the provisions of his will.
. See, e.g., Crisp Co. Lumber Co. v. Bridges, 187 Ga. 484, 200 S.E. 777, 778 (1939); Fitterling v. Johnson Co. Mut. Fire Ins. Co., 232 Mo.App. 805, 112 S.W.2d 347, 350 (1938).
. There are three recognized exceptions to the majority position that require a life tenant to provide insurance for the benefit of the remain-derman. These exceptions arise (a) when the instrument creating the estate expressly provides accordingly; (b) if the life tenant and the remain-derman agree to this requirement; (c) or if a fiduciary relationship exists between the life tenant and the remainderman. See 51 Am.Jur.2d at § 182; Ellerbusch v. Myers, 683 N.E.2d 1352, 1354 (Ind.App.1997).
. In Keesecker v. Bird, 200 W.Va. 667, 490 S.E.2d 754 (1997), we recognized the two approaches to this issue when commenting on whether a life tenant is obligated to insure the life estate for the remainderman's benefit. Id. at 680-81 n. 14, 490 S.E.2d at 767-68 n. 14.
."Nor can the defendant (life estate holder) be converted into a trustee for the plaintiff (remain-derman) by the mere fact that the amount which she received was equal to the full value of the house. It was paid to and received by her as indemnity for the loss which she had sustained, and, as already observed, does not stand in the place of the property... If the contract is one of indemnity to the insured for the loss sustained by him, it is difficult to see how a sound public policy could be subserved by holding that he shall use what belongs to him for the benefit of some one else.”
119 S.E. at 68 (quoting Harrison v. Pepper, 166 Mass. 288, 44 N.E. 222 (1896)).
. We note that the facts of this case do not present evidence that the life tenant had committed any acts that would constitute waste, which is defined as " 'any permanent or lasting injury done or permitted to be done by the holder of the particular estate to lands, houses, or other corporeal hereditaments, to prejudice of the heir or of him in remainder or reversion.’ ” Keesecker, 200 W.Va. at 682, 490 S.E.2d at 769 (quoting Gwinn v. Rogers, 92 W.Va. 533, 540, 115 S.E. 428, 430 (1922)). | [
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BENJAMIN, Justice.
In challenging the constitutionality of the pre-suit notice of claim provisions set forth in West Virginia Code § 55-7B-6 (2003), Appellant, Sarina L. Davis, asks this Court to reverse the November 3, 2005, order entered by the Circuit Court of Marshall County which dismissed her medical malpractice action for failure to comply with statutory mandates. In light of this Court’s longstanding policy of not addressing the constitutionality of statutes unless necessary for the determination of the case, we decline to address Appellant’s constitutional challenge herein. Having reviewed the facts and law applicable to this case, we conclude that the circuit court’s dismissal of this action was not improper in view of Appellant’s failure to comply with clear and unambiguous statutory terms applicable to medical malpractice actions of the kind filed by Appellant. We further conclude that our savings statute, W. Va.Code § 55-2-18 (2001), permits Appellant to re-file her claim in compliance with the mandates of W. Va.Code § 55-7B-6 (2003). Thus, we affirm the circuit court’s November 3, 2005, dismissal order, with leave to Appellant to properly re-file her claim.
I.
FACTUAL AND PROCEDURAL HISTORY
This action arises from the death of Appellant’s eighty-three year old grandmother, Elizabeth K. Weston. On March 21, 2005, Appellant initiated the current medical malpractice action by filing a complaint against Mound View Health Care (hereinafter “Mound View”), a nursing home/continuous care facility, in the Circuit Court of Marshall County, West Virginia. On March 23, 2003, Ms. Weston was transferred from Mound View to Reynolds Memorial Hospital where she underwent surgery for a fractured femur. She died the same day. Prior to her death, Ms. Weston had been a bed-ridden patient at Mound View where she had resided since October 12,1999.
Appellant’s March 21, 2005, complaint alleges that Ms. Weston’s fractured femur, surgery and resulting death were a result of Mound View’s negligence. It is undisputed that Appellant did not serve a notice of claim accompanied by a screening certificate of merit upon Mound View at least thirty days prior to filing her March 21, 2005, complaint as required by W. Va.Code § 55-7B-6(b). It is also undisputed that Appellant did not serve a notice of claim together with a statement invoking the provisions of W. Va.Code § 55-7B-6 (c) indicating that a screening certificate of merit was not required to establish liability or invoking the provisions of W. Va.Code § 55-7B-6 (d) to obtain an additional sixty day time period in which to furnish a screening certificate of merit to Mound View. Likewise, it is undisputed that Appellant did not attempt to serve her complaint upon Mound View at the time it was filed.
On June 17, 2005, Appellant’s original counsel transferred this matter to current counsel as original counsel was discontinuing her law practice. On July 15, 2005, current counsel filed an amended complaint adding a declaratory judgment count to the original complaint seeking a declaration that expert testimony was not necessary to establish the appropriate standard of care. Appellant thereafter immediately served a copy of the original complaint and the amended complaint on Mound View together with a letter, dated July 14, 2005, indicating that a screening certificate of merit would be provided within sixty days after receipt of the letter. One week later, by letter dated July 22, 2005, Appellant first requested copies of Ms. Weston’s medical records from Mound View.
On August 12, 2005, after receipt of a notice of bona fide defense from Mound View, Appellant invoked Rule 34 of the West Virginia Rules of Civil Procedure and served, via United States Mail, a request for production of Ms. Weston’s medical records upon Mound View. Appellant’s counsel received copies of Ms. Weston’s medical records, totaling 4011 pages, from Mound View on September 13, 2005.
On August 26, 2005, Mound View filed a Motion to Dismiss this medical malpractice action based upon Appellant’s failure to serve a notice of claim thirty days prior to filing her original complaint as required by W. Va.Code § 55-7B-6(b). After considering Mound View’s motion and Appellant’s response thereto, the circuit court entered an order granting the motion. In its November 3, 2005, order, the circuit court relied upon Appellant’s failure to comply with the clear and unambiguous provisions of W. Va.Code § 55-7B-6(b) which require that a notice of claim be served at least thirty days prior to the filing of any complaint. In its dismissal order, the circuit court noted that “[e]ven though W. Va.Code § 55-7B-6 provides for alternative handling of the screening certificate, which may veiy well apply in this case, there are no alternatives to providing the notice specifically and unequivocally required by the statute.” The circuit court declined to address Appellant’s arguments regarding the constitutionality of the Medical Professional Liability Act, W. Va.Code § 55-7B-1, ei seq. The circuit court’s November 3, 2005, dismissal order did not specify whether the circuit court intended the dismissal to be with or without prejudice.
II.
STANDARD OF REVIEW
This matter is presented to this Court upon appeal of the circuit court’s November 3, 2005, order granting Mound View’s motion to dismiss for Appellant’s failure to adhere to statutory pre-filing requisites. “ ‘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).” Syl. Pt. 1, Collins v. Heaster, 217 W.Va. 652, 619 S.E.2d 165 (2005). To the extent this matter may be deemed one of statutory interpretation, our review is likewise de novo. See, Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on 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.”). With these principles in mind, we now address the circuit court’s November 3, 2005, dismissal order.
III.
DISCUSSION
In dismissing Appellant’s complaint, the circuit court noted that “the statute is clear’. The notice in mandatory.” This Court has long held that “[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.” 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). See also, Syl. Pt. 1., 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.”); 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.”). The provisions of W. Va.Code § 55-7B-6 (a) and (b) are clear and unambiguous, and thus should be applied as written. W. Va.Code § 55-7B-6 (a) provides that “no person may file a medical professional liability action against any health care provider without complying with the provisions [of W. Va.Code § 55-7B-6].” W. Va.Code § 55-7B-6(b) clearly provides, in pertinent part, that “[a]t 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[.]” Reading subsections (a) and (b) in para materia and acknowledging the mandatory nature of the term “shall,” we find that the circuit court did not err in applying the terms of the statute as written and dismissing Appellant’s suit for failure to comply with the notice of claim provision contained in W. Va.Code § 55-7B-6 (b). See, Arneault v. Arneault, 219 W.Va. 628, 639 S.E.2d 720 (Oct. 5, 2006) (noting mandatory connotation of statutoiy term “shall”).
However, in dismissing Appellant’s action, the circuit court failed to consider this Court’s recent pronouncement that the presuit notice of claim and certificate of merit provisions of W. Va.Code § 55-7B-6 are “not intended to restrict or deny citizens’ access to the courts.” Syl. Pt. 2, in part, Hinchman v. Gillette, 211 W.Va. 378, 618 S.E.2d 387 (2005). We noted in Hinchman that a principal consideration for a court in determining the sufficiency of a notice “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” of “preventing the making and filing of frivolous medical malpractice claims and lawsuits; and promoting the pre-suit resolution of non-frivolous medical malpractice claims.” Syl. Pt. 6, in part, Hinchman. Notwithstanding, whatever error the circuit court may have committed in dismissing Appellant’s action without undertaking an analysis of the considerations set forth in Hinchman, such possible error is harmless due to the language of the circuit court’s November 3, 2005, order.
We have previously stated that “a court speaks only through its orders.” State ex rel. Kaufman v. Zakaib, 207 W.Va. 662, 671, 535 S.E.2d 727, 736 (2000) (citations omitted). As noted above, the circuit court did not specify in its November 3, 2005, order whether it intended the dismissal to be with or without prejudice. Our Rules of Civil Procedure provide that where a civil action is voluntarily dismissed, the dismissal is without prejudice unless otherwise specified in the dismissal order. W. Va. R. Civ. P. 41(a)(2). The Rules do not specifically provide such a presumption where an action is involuntarily dismissed upon a defendant’s motion for a plaintiffs failure to comply with statutory pre-filing notice requirements. The specification as to whether a dismissal is with or without prejudice is significant. Where a dismissal is without prejudice, our savings statute, W. Va.Code § 55-2-18, may be utilized to permit the re-filing of a medical malpractice action involuntarily dismissed for failure to comply with the mandates of W. Va.Code § 55-7B-6 because such dismissal would not be a dismissal on the merits.
In light of our pronouncement in Hinchman that W. Va.Code § 55-7B-6’s pre-suit notice of claim and certificate of merit provisions are not intended to restrict or deny a citizen’s access to our courts, we now hold that where a medical malpractice action is dismissed for failure to comply with the pre-suit notice of claim provision set forth in W. Va.Code § 55-7B-6(b) and the dismissal order does not specify the dismissal to be with prejudice, the dismissal is deemed to be without prejudice. In such a case, the medical malpractice action may be re-filed pursuant to W. Va.Code § 55-2-18, after compliance with the pre-suit notice of claim and screening certificate of merit provisions of W. Va.Code § 55-7B-6. In this ease, Appellant may utilize the savings statute, W. Va. § 55-2-18, within the time therein prescribed of this Court’s filing of our decision herein.
IV.
CONCLUSION
The Circuit Court of Marshall County properly dismissed Appellant’s medical malpractice action for failure to comply with W. Va.Code § 55-7B-6(b)’s pre-suit notice re quirements. Any possible error the circuit court may have committed was harmless because the dismissal is deemed to be without prejudice and Appellant has the right to refile her claim after compliance with the notice of claim and certificate of merit requirements of W. Va.Code § 55-7B-6 (2003).
AFFIRMED
. The West Virginia Medical Professional Liability Act, W. Va.Code § 55-7B-1, et seq., contains certain statutory prerequisites for filing a medical professional liability action. Certain prerequisites relating to providing a pre-suit notice of claim to defendants are contained in subsections (a) — (d) of W. Va.Code § 55-7B-6 (2003), which state:
(a) Notwithstanding any other provision of this code, no person may file a medical professional liability action against any health care provider without complying with the provisions of this section.
(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.
(c) Notwithstanding any provision of this code, if a claimant or his or her counsel, believes that no screening certificate of merit is necessary because the cause of action is based upon a well-established legal theory of liability which does not require expert testimony supporting a breach of the applicable standard of care, the claimant or his or her counsel, shall file a statement specifically setting forth the basis of the alleged liability of the health care provider in lieu of a screening certificate of merit.
(d) If a claimant or his or her counsel has insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations, the claimant shall comply with the provisions of subsection (b) of this section except that the claimant or his or her counsel shall furnish the health care provider with a statement of intent to provide a screening certificate of merit within sixty days of the date the health care provider receives the notice of claim.
. "When it is not necessary in the decision of a case to determine a constitutional question, this Court will not consider or determine such question." Syl. Pt. 5, In re Tax Assessments Against Pocahontas Land Corp., 158 W.Va. 229, 210 S.E.2d 641 (1974). See also, Cogar v. Sommerville, 180 W.Va. 714, 717, 379 S.E.2d 764, 767 (1989) (same); State v. Griffith, 168 W.Va. 718, 724, 285 S.E.2d 469, 473 (1981) ("It is a well settled principle that courts do not generally pass on the constitutionality of challenged statutes unless that question is necessary to the decision of the case.”); Kolvek v. Napple, 158 W.Va. 568, 574, 212 S.E.2d 614, 618 (1975) ("Courts will not pass on the constitutionality of a statute unless it is absolutely necessary for the determination of the case").
. W. Va.Code § 55-2-18 (2001), provides, in pertinent part:
(a) For a period of one year from the date of an order dismissing an action or reversing a judgment, a party may re-file the action if the initial pleading was timely filed and (i) the action was involuntarily dismissed for any reason not based upon the merits of the actionf.]
. Her death certificate listed the cause of death as "acute respiratory failure with hypotension acute pulmonary aedema/fal embolism, s/p [status post] open reduction” with a "fractured femur” as a significant contributing condition.
. It is unclear from the limited record before this Court whether Ms. Weston was bed-ridden throughout her three and one-half year stay at Mound View.
. There is no indication on the record before this Court that any attempt to notify Mound View of the instant claim was made prior to service of the Amended Complaint in July 2005.
. This Court does not place credence in Appellant’s argument that Mound View somehow prevented her from complying with statutory certificate of merit requirements by delaying production of the medical records. The record before this Court clearly indicates that Appellant first requested copies of Ms. Weston’s medical records from Mound View four months after filing her original complaint and after filing an amended complaint. Moreover, immediately after receiving Mound View's notice of bona fide defense. Appellant invoked our Rules of Civil Procedure to obtain copies of the medical records and she received the same within the time frame for production set forth within those Rules.
. Mound View’s motion acknowledges that a screening certificate of merit is not statutorily required to be filed with a notice of claim in all instances. As such, the motion focused upon the failure to serve the pre-suit notice of claim. | [
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