Bennett v. Warner

• Decision Date: 01 July 1988
• Docket Number: No. 18023,18023
• Parties: Henry BENNETT, Jr., et al., v. Ralph WARNER, et al., William N. Haney, Sr., et al., v. COMMONWEALTH LAND TITLE INSURANCE CO.
• Court: West Virginia Supreme Court

Page 920

372 S.E.2d 920

179 W.Va. 742

Henry BENNETT, Jr., et al., v. Ralph WARNER, et al., William N. Haney, Sr., et al., v. COMMONWEALTH LAND TITLE INSURANCE CO.

No. 18023.

Supreme Court of Appeals of

West Virginia.

July 1, 1988.

Rehearing Denied Sept. 22, 1988.

[179 W.Va. 743] Syllabus by the Court

1. Under article eight, section three of our Constitution, the Supreme Court of Appeals shall have the power to promulgate rules for all of the courts of the State related to process, practice, and procedure, which shall have the force and effect of law.

2. "Under Article VIII, Section 8 [and Section 3] of the Constitution of West Virginia (commonly known as the Judicial Reorganization Amendment), administrative rules promulgated by the Supreme Court of Appeals of West Virginia have the force and effect of statutory law and operate to supersede any law that is in conflict with them." Syl.Pt. 1, Stern Brothers, Inc. v. McClure, 160 W.Va. 567, 236 S.E.2d 222 (1977).

3. The 1986 jury selection statute, W.Va. Code § 52-1-1 et seq., mandated the use of juror qualification forms, although amendments to that statute, 1988 W.Va. Acts Ch. 79, nullified that requirement as of July 1, 1988.

4. It is the prerogative of the Legislature to change its mind and alter statutes, but this Court is obligated to uphold the lawful legislative policy that was in effect at the time a cause of action arose.

5. The statutory procedure for challenging the jury selection process requires only a finding of a substantial failure to comply with article 1, chapter 52, of the Code to support such a challenge, with no showing of prejudice required.

6. Parties moving for separate trials of issues pursuant to West Virginia Rule of Civil Procedure 42(c), or the court if acting sua sponte, must provide sufficient justification to establish for review that informed discretion could have determined that the bifurcation would promote the recognized goals of judicial economy, convenience of the parties, and the avoidance of prejudice, the overriding concern being the provision of a fair and impartial trial to all litigants.

7. Issuance of a broad protective order, based upon the assertion of a blanket privilege against discovery, without scrutiny of each proposed area of inquiry and without giving full consideration to a more narrowly drawn order constitutes abuse of discretion under West Virginia Rule of Civil Procedure 26(c).

8. It is beyond argument that the courts of this state are open to all and that parties in litigation should have access to their legal proceedings, W.Va.Const., art. III, § 17, and such access to court proceedings is also required as a part of due process, W.Va. Const., art. III, § 10.

Richard W. Cardot, Elkins, for William and Rose Haney.

Braun Hamstead, Charles Town, for Henry Bennett et al.

McGRAW, Justice:

This is an appeal by William N. and Rose Ann Haney, third-party plaintiffs below, from an order of the Circuit Court of Pendleton County which denied their motion for a new trial in their suit against the Appellee, Commonwealth Land Title Insurance Company (Commonwealth), a third-party defendant below. The third-party complaint alleged that Commonwealth's delay in obtaining a right-of-way for the Appellants was intentional infliction of emotional and physical suffering and distress, and the action was brought within the concept known as the "tort of outrage." The trial was bifurcated so as to first consider only the issue of liability. The jury verdict was for Commonwealth, and costs were assessed against the Appellants by the court.

I FACTS

William N. and Rose Ann Haney were Pennsylvania residents who purchased a thirty-six acre tract of property in Pendleton County from Ralph and Nellie Warner on August 9, 1984, with the intention of relocating their residence to West Virginia. Rose Ann Haney said she suffered from severe allergic reactions to a multitude of environmental pollutants, and that the purpose of the relocation was to live in an area free from industrial pollutants.

The title search for the Appellants' property was done by an approved attorney for the Appellee, who also applied for and obtained title insurance for the property from that company. There was no note of defect in the right-of-way mentioned in the deed title report, and the title insurance policy included protection of the right-of-way to the insured property.

After the Appellants had purchased the property and had begun construction of their home, they learned of a possible problem with access to their property when a neighboring property owner (the Bennetts) refused to give them a written right-of-way along an existing access road to their property. The Bennetts denied the Appellants use of that access road in December 1984, and refused a utility right-of-way in April 1985. As a result of this right-of-way problem, the Appellants were delayed in obtaining construction financing. They suspended construction on their home, except for completion of a habitable basement, in which they were living by June 1985.

The Appellants were unsuccessful in obtaining a right-of-way or legal assistance from the attorney involved in the title search, application for title insurance, and purchase of their property. They sought legal assistance from another attorney, who noted the possible coverage by the title insurance of the right-of-way problem, and wrote a letter to the Appellee and their approved attorney in May 1985. The Appellee, through its attorney Braun A. Hamstead, began negotiations for a right-of-way across the Bennett property and notified the Appellants' attorney by letter dated May 31, 1985, that they would take care of the problem. Proposals for a right-of-way agreement were exchanged by the parties in the fall of 1985, but no agreement was reached.

On March 24, 1986, the Bennetts initiated this action by filing a suit seeking injunctive relief against the continuing trespass of the Appellants, the Warners, and one other landowner within the original Warner tract. The Appellants answered that suit, and filed a counterclaim against the Bennetts, a cross-claim against the Warners, and third-party complaint against the Appellee, Commonwealth. The Appellants sought recovery from the Appellee of any amount awarded the Bennetts against the Appellants. They demanded, in addition, judgment against the Appellee in the sum of $100,000 in compensatory damages and $100,000 in punitive and exemplary damages. ¹

In a hearing held on January 20, 1987, the court dismissed all matters in the suit except the third-party complaint by the Appellants against the Appellee. On that same day, the Appellants moved for a continuance, citing the inability of Appellant Rose Ann Haney to attend trial because of allergic reactions she had suffered from a recent trip to the courthouse. The Appellants also cited the lack of development of their plea for damages, the inadequacy of the two days allotted to conduct the trial, and the failure of the circuit clerk to obtain juror qualification forms from the potential jurors in the case. The court denied that motion and ordered the parties to appear for trial on January 21, 1987.

The Appellants immediately filed a petition for a writ of prohibition with this Court, seeking a stay of the scheduled trial on the same grounds cited in their motion for continuance below. That petition was refused by this Court on the day presented.

The jury was impaneled on January 20, 1987, with objection from counsel for the Appellant on the basis of the lack of juror The jury returned a verdict on January 23, 1987, finding that the Appellee was not liable to the Appellants, and the court thereafter entered judgment for the Appellee and ordered the Appellants to pay the costs of the proceedings. The Appellants subsequently filed a motion for a new trial, which was denied. The Appellants appeal that denial.

[179 W.Va. 745] qualification forms. The trial was commenced on January 22, 1987, and at that time the court sua sponte bifurcated the trial so as to try the issue of liability separately from the issue of damages, with the Appellants objecting to that bifurcation.

II JUROR QUALIFICATION FORMS

The Appellants assign error to the failure of the trial court to require the use of juror qualification forms in the jury selection process as required by West Virginia Code § 52-1-1 et seq. (Supp.1987).

Under article eight, section three of our Constitution, the Supreme Court of Appeals "shall have the power to promulgate rules ... for all of the courts of the State related to ... process, practice, and procedure, which shall have the force and effect of law." As we have previously noted, "[u]nder Article VIII, Section 8 [and Section 3] of the Constitution of West Virginia (commonly known as the Judicial Reorganization Amendment), administrative rules promulgated by the Supreme Court of Appeals of West Virginia have the force and effect of statutory law and operate to supersede any law that is in conflict with them." Syl.Pt. 1, Stern Brothers, Inc. v. McClure, 160 W.Va. 567, 236 S.E.2d 222 (1977); see State v. Davis, 178 W.Va. 87, 90, 357 S.E.2d 769, 772 (1987) (and cases cited therein); see also State ex rel. Kenamond v. Warmuth,179 W.Va. 230, 232, 366 S.E.2d 738, 740 (1988).

This Court's rule regarding jury selection, W.Va.T.C.R. XII, does not, however, address the matter of juror qualification forms. Therefore, until this Court promulgates such a rule, the Legislature is not disabled from filling in the interstices, and we see no reason to invalidate the statutory requirements in question. The specific Code sections in question, W.Va.Code § 52-1-7(c), (d), and (e), were new provisions at the time of trial of this case, having taken effect on July 1, 1986. Upon inquiry by counsel for the Appellants on January 15, 1987, which was five days before the date set for striking of the jury, the Circuit Clerk of Pendleton County...