459 S.E.2d 367 (W.Va. 1995), 22592, Coleman v. Sopher

Docket Nº:22592.
Citation:459 S.E.2d 367, 194 W.Va. 90
Opinion Judge:CLECKLEY, Justice:
Party Name:Mary COLEMAN, et al., Plaintiffs Below, Appellants, v. Irvin SOPHER, Defendant Below, Appellee.
Attorney:Barbara H. Allen, Joseph C. Cometti, Allen & Allen, Charleston, for appellants. Charles F. Johns, Amy Smith, Steptoe & Johnson, Clarksburg, for appellee.
Judge Panel:[194 W.Va. 97] BROTHERTON and RECHT, JJ., did not participate.
Case Date:June 15, 1995
Court:Supreme Court of Appeals of West Virginia
 
FREE EXCERPT

Page 367

459 S.E.2d 367 (W.Va. 1995)

194 W.Va. 90

Mary COLEMAN, et al., Plaintiffs Below, Appellants,

v.

Irvin SOPHER, Defendant Below, Appellee.

No. 22592.

Supreme Court of Appeals of West Virginia.

June 15, 1995

Page 368

Submitted May 16, 1995.

Page 369

[194 W.Va. 92] Syllabus by the Court

1. "A court of limited appellate jurisdiction is obliged to examine its own power to hear a particular case. This Court's jurisdictional authority is either endowed by the West Virginia Constitution or conferred by the West Virginia Legislature. Therefore, this Court has a responsibility sua sponte to examine the basis of its own jurisdiction." Syl. pt. 1, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).

2. "Where neither party to an appeal raises, briefs, or argues a jurisdictional question presented, this Court has the inherent power and duty to determine unilaterally its authority to hear a particular case. Parties cannot confer jurisdiction on this Court directly or indirectly where it is otherwise lacking." Syl. pt. 2, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).

3. "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." Syllabus Point 3, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).

4. When a party agrees to or requests a new trial, and a new trial is granted because of the agreement or request, a denial of appellate review is justified on the ground that the party has elected to accept the new trial and should be bound, as if the party had entered a settlement agreement to forego appeal of the order granting a new trial.

Barbara H. Allen, Joseph C. Cometti, Allen & Allen, Charleston, for appellants.

Charles F. Johns, Amy Smith, Steptoe & Johnson, Clarksburg, for appellee.

CLECKLEY, Justice:

The plaintiffs below and appellants herein, Mary Coleman, J. Wesley Coleman, and Michelle Coleman, appeal from the circuit court's use of remittitur to reduce the amount of their jury award. The defendant below and appellee herein, Dr. Irvin Sopher, asserts that remittitur was proper and cross-assigns that the circuit court committed various other errors that prejudiced the defendant at trial. The circuit court at the request of the defendant and the acquiescence of the plaintiffs granted a new trial on the issue of damages. Before the commencement of the new trial, both parties filed a petition for appeal with this Court. As a result of the pending action in the circuit court, we find the petition for appeal was improvidently granted and this appeal must be dismissed for lack of appellate jurisdiction.

I.

FACTS AND PROCEDURAL BACKGROUND

On September 26, 1987, Elmer Coleman collapsed at home from a heart attack. An ambulance rushed Mr. Coleman to Montgomery General Hospital, where an emergency room physician pronounced him dead on arrival. 1 Mrs. Coleman arrived at the hospital sometime later. Hospital staff asked Mrs. Coleman whether she wanted an autopsy performed on Mr. Coleman. Mrs. Coleman consented to the autopsy after Mr. Coleman's father told her she might have a claim for occupational pneumoconiosis benefits as a result of Mr. Coleman's years of working in the coal mines. Mrs. Coleman thought an autopsy

Page 370

[194 W.Va. 93] might indicate whether occupational pneumoconiosis contributed to her husband's death.

Later that day, Mr. Coleman's body was transported to the Office of the Chief Medical Examiner of West Virginia. Dr. Irvin Sopher, the Chief Medical Examiner, performed an autopsy the next day. Mr. Coleman's body was then transported to Combs-Pennington Funeral Home where the owner, Paul Pennington, embalmed the body. The funeral occurred without incident.

Sometime later, Mrs. Coleman applied for occupational pneumoconiosis survivor benefits. After her claim was refused, Mrs. Coleman's attorney, Heidi Kossuth, collected additional medical information on Mr. Coleman. The autopsy report prepared by Dr. Sopher contained no findings helpful to the occupational pneumoconiosis claim since it stated there was no indication that Dr. Sopher examined the lungs. The following phrase, however, was recorded on the report: " 'The heart is not removed from the body[.]' " Ms. Kossuth informed Mrs. Coleman that the present medical reports did not show occupational pneumoconiosis and a second autopsy might produce the necessary evidence to support a claim for benefits. Mrs. Coleman consented to the second autopsy.

On September 13, 1989, Dr. Echols Hansbarger performed a second autopsy. After inspecting the thoracic cavity, Dr. Hansbarger's report noted he found no evidence of pneumoconiosis. The report also stated "the heart is not identified or found." After Mrs. Coleman became distraught over the report's revelation as to the missing heart, Ms. Kossuth called Dr. Sopher. According to Mrs. Coleman, Dr. Sopher later called her and told her that he was not sure, but he thought he had given the heart to Mr. Pennington to put back into the body during the embalming.

Mrs. Coleman subsequently filed suit naming Dr. Sopher and Mr. Pennington as defendants. The complaint alleged either Dr. Sopher or Mr. Pennington concealed the fact that the heart was removed from the body. Three causes of action were alleged: (1) intentional infliction of emotional distress, (2) outrageous conduct, and (3) conversion. The complaint cited as damages the fact that Mrs. Coleman and the Coleman children suffered...

To continue reading

FREE SIGN UP