Cox v. State
| Decision Date | 23 June 1995 |
| Docket Number | 22485,Nos. 22484,s. 22484 |
| Citation | 460 S.E.2d 25,194 W.Va. 210 |
| Parties | Jacqueline Bennett COX, Plaintiff Below, Appellee v. STATE of West Virginia, Defendant Below, Department of Natural Resources, Appellant. |
| Court | West Virginia Supreme Court |
June 23, 1995.
Syllabus by the Court
1. Syllabus Point 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995), rehearing denied, May 11, 1995.
2. "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), rehearing denied, May 11, 1995.
3. "If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure." Syllabus Point 3, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995), rehearing denied, May 11, 1995.
4. "The imposition of sanctions by a circuit court under W.Va.R.Civ.P. 37(b) for the failure of a party to obey the court's order to provide or permit discovery is within the sound discretion of the court and will not be disturbed upon appeal unless there has been an abuse of that discretion." Syllabus Point 1, Bell v. Inland Mut. Ins. Co., 175 W.Va. 165, 332 S.E.2d 127, cert. denied, 474 U.S. 936, 106 S.Ct. 299, 88 L.Ed.2d 277 (1985).
5. "Where a party's counsel intentionally or with gross negligence fails to obey an order of a circuit court to provide or permit discovery, the full range of sanctions under W.Va.R.Civ.P. 37(b) is available to the court and the party represented by that counsel must bear the consequences of counsel's actions." Syllabus Point 4, Bell v. Inland Mut. Ins. Co., 175 W.Va. 165, 332 S.E.2d 127, cert. denied, 474 U.S. 936, 106 S.Ct. 299, 88 L.Ed.2d 277 (1985).
John W. Cooper and Lori M. Hood, Cooper & Preston, Parsons, for appellee.
Darrell V. McGraw, Jr., Atty. Gen. and Stephen R. Van Camp, Deputy Atty. Gen., Charleston, for appellant.
The Division of Natural Resources of the State of West Virginia appeals an order of the Circuit Court of Tucker County granting Jacqueline Bennett Cox summary judgment and also sanctioning the State by striking the State's pleadings, which resulted in judgment on the pleadings. Ms. Cox sued the State to quiet title to an 105.21 acre tract located in Canaan Valley State Park. After the State failed to respond to Ms. Cox's summary judgment motion, requests for admission and discovery requests, the circuit court awarded Ms. Cox summary judgment and sanctioned the State by striking its pleadings. On appeal, the State argues that no evidence supports the finding that it willfully failed to respond to discovery requests, that the circuit court failed to hold an evidentiary hearing on discovery requests and that the State will suffer prejudice if required to use eminent domain to acquire the disputed tract. 1 Because the record shows no error, we affirm the circuit court's decision.
On December 16, 1992, Ms. Cox filed suit to quiet title to a 105.21 acre tract of land located in Canaan Valley State Park, Tucker County, West Virginia (hereinafter the tract). In her complaint, Ms. Cox alleges that she has title to the tract because she and her predecessors in interest, under color of title, possessed the tract openly, notoriously and continuously for more than 60 years. Ms. Cox maintains that the Division's placing markings and signs and maintaining trails on her tract constitutes an ongoing trespass. Ms. Cox also alleges that the Division's development of the park had caused her tract to become surrounded by park land. Attached to Ms. Cox's complaint is a March 16, 1964 letter from the Department of Natural Resources to John A. Bennett, Ms. Cox's father and predecessor in interest, acknowledging that the tract was subject to competing claims and offering to pay one-half of the market price, as agreed to by the parties, for a quitclaim deed.
The State filed a timely answer denying the allegations and claiming title to the tract through the will of Sarah Maude Kaemmerling, which the State alleges is superior to Ms. Cox's title.
On April 21, 1993, Ms. Cox served the State with a set of Interrogatories and Requests for Production of Documents. According to Ms. Cox, after the State failed to respond, her lawyer contacted Russell M. Hunter, the Assistant Attorney General representing the State, who said that the State would respond during the week of June 21, 1993. On June 23, 1993, the circuit court scheduled a jury trial for August 30, 1993.
Because the State failed to respond to Ms. Cox's discovery requests, on August 10, 1993, Ms. Cox filed motions to compel discovery and to continue the jury trial. After a hearing on August 20, 1993, which was not attended by the State's lawyer 2, on August 26, 1993, the circuit court ordered the State to comply with Ms. Cox's discovery requests on or before August 31, 1993 or "its Answer and other pleadings will be stricken and Plaintiff will be granted summary judgment and Plaintiff's prayers for relief in the Counts of the Complaint will be granted." The circuit court also rescheduled the jury trial for December 16, 1993.
On August 31, 1993, the State answered at least some of the interrogatories and produced at least some of the documents. 3 One of the documents that the State failed to produce was the Division's March 16, 1964 letter that had been attached to Ms. Cox's complaint.
By letter dated September 3, 1993, Ms. Cox's lawyer requested the State to provide entire copies of the plats for comparison. No answer was received. On September 24, 1993, Ms. Cox served the State with 55 Requests for Admission, to which the State made no response.
On October 28, 1993, Ms. Cox filed a motion for summary judgment based on the State's answer, facts admitted, tax maps and County Assessor's records. Ms. Cox also filed a motion for sanctions alleging that the State failed to comply with discovery requests. Both motions were noticed for a hearing on November 12, 1993. The State did not respond to either motion, did not request a continuance, and did not file any evidentiary rebuttal. During the November 12, 1993 hearing, the Tucker County Assessor testified that according to official tax maps, the disputed tract "is outside the [State Park] boundary...." Mr. Hunter, the State's lawyer, said he had a copy of the State's title report, which was available at the hearing, and he agreed that partial maps had been supplied. The State argued that the existence of a material issue of fact concerning adverse possession precluded summary judgment, but failed to present any counter affidavit(s) or any additional document(s) or to retract explicitly any of its admissions.
By order dated November 19, 1993, the circuit court granted Ms. Cox's motion for summary judgment and motion for sanctions by striking all of the State's pleadings and awarding Ms. Cox judgment on the pleadings. Ms. Cox was also awarded an easement because the disputed tract was landlocked by virtue of the State's previous land acquisitions.
On February 7, 1994, the State, now represented by Shirley A. Skaggs, Senior Assistant Attorney General, filed a motion to reconsider. Attached to the motion were several additional documents and plats that had been requested in discovery; however, no title report or abstract was attached. 4 At the March 18, 1994 hearing, 5 the State argued that its title is superior to Ms. Cox's title and that summary judgment was premature and not a proper sanction for failure to respond to discovery requests. The State also said that the 6 Ms. Cox argued that the State's motion to reconsider was untimely because Rule 59(e) [1978] of the W.Va.R.Civ.P. requires the motion to be filed within 10 days and no ground for a Rule 60(b) motion was asserted. Ms. Cox also asserts that the attachment of documents, exhibits and an affidavit was solely to augment the record for appeal.
After the hearing, by order dated May 9, 1994, the circuit court denied the State's motion to reconsider. The State then appealed to this Court.
The circuit court awarded Ms. Cox judgment on two separate grounds: (1) summary judgment; and (2) a sanction, imposed on the State for failure to comply with a discovery order, striking the State's pleadings and then awarding Ms. Cox judgment on the pleadings. 7 Although the State contends that summary judgment was contingent on the sanction award, the circuit court granted Ms. Cox summary judgment independently of the sanction award. 8 We first consider whether the award of summary judgment was proper.
"A circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy,...
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