Estep v. Brewer, 22153

• Decision Date: 09 December 1994
• Docket Number: No. 22153,22153
• Citation: 453 S.E.2d 345,192 W.Va. 511
• Court: West Virginia Supreme Court
• Parties: , 97 Ed. Law Rep. 524 Larry ESTEP, Plaintiff Below, Appellee, v. Dan BREWER and Sonja Busic, Defendants Below, Appellants.

Page 345

453 S.E.2d 345

192 W.Va. 511, 97 Ed. Law Rep. 524

Larry ESTEP, Plaintiff Below, Appellee, v. Dan BREWER and Sonja Busic, Defendants Below, Appellants.

No. 22153.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 21, 1994.

Decided Dec. 9, 1994.

Syllabus by the Court

1. "Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal." Syl. pt. 1, State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964).

2. "This Court will not consider an error which is not preserved in the record nor apparent on the face of the record." Syl. pt. 6, State v. Byers, 159 W.Va. 596, 224 S.E.2d 726 (1976).

3. "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." Syl. pt. 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983).

J.W. Feuchtenberger, Stone, McGhee, Feuchtenberger & Barringer, Bluefield, for appellants.

William Flanigan, Sanders, Austin, Swope & Flanigan, Princeton, for appellee.

PER CURIAM:

This case is before this Court upon the appeal of the May 21, 1993, order of the Circuit Court of Mercer County, West Virginia. The jury found that appellants, Dan Brewer and Sonja Busic, had defamed the appellee, Larry Estep, and awarded the appellee $250,000 in damages ($200,000 in compensatory damages and $50,000 in punitive damages). On appeal, the appellants ask that this Court vacate the final order of the circuit court. For the reasons set forth herein, the order of the circuit court is affirmed.

I

The appellee was employed as an assistant principal at Bluefield High School in Mercer County, West Virginia. The appellants are husband and wife, and appellant Brewer was a school bus driver for Mercer County. The couple's son, Frank Brewer, was a special education student at the high school.

In the spring of 1987, it had been alleged that Frank was involved in the wrongful acquisition of a teacher's manual with three other students. The appellee recommended that all four students be suspended from school for five days.

The appellants protested this disciplinary action. The appellants asserted that their son had an Individualized Education Plan (hereinafter "IEP"). This plan prescribes, among other things, requisite disciplinary measures, and the proposed suspension was in excess of the guidelines provided within the IEP. The appellee asserts that once he discovered that Frank had an IEP, he consulted the plan as well as other concerned colleagues and parents and modified the mode of discipline in accord with the IEP. All four students were to receive the same form of punishment, in-school detention. This incident apparently ignited the battle between the two parties.

The next encounter the parties had was in the fall of 1987. A problem occurred involving appellant Brewer and some other students while the appellant was acting in his capacity as a school bus driver. It is unclear as to what exactly took place, but the appellant claimed that certain students, all being African-Americans, misbehaved. As a result, the appellee claims that the appellant left the students stranded at a bus stop. The appellee believed that the appellant improperly handled the situation. When the appellant was not reprimanded for his actions, the appellee complained that the students were being singled out due to their race.

Appellant Brewer filed a grievance with the Mercer County Board of Education listing difficulties he had experienced with the appellee. The appellee suggests that this was the beginning of a malicious and defamatory campaign to have him fired. The appellants, as set forth by the appellee, sent the grievance form to the media while copies were transmitted to other private individuals.

The appellants filed a second retaliatory grievance. In support of that grievance, appellant Busic filed several letters. The letters accused the appellee of, among other things, violating civil rights laws, being emotionally immature, being totally without ethics, acting negligently and cruelly towards students and threatening the appellants. These letters were also sent to the Mercer County Board of Education and state and federal agencies along with the warning that each individual would be held responsible for condoning the appellee's actions. As further noted by the appellee, letters were written by the appellants and sent to a member of the Mercer County Board of Education stating that the media had been notified of the problems the appellants were having with the appellee and the school system and threatening to take legal action against the appellee.

On July 5, 1988, the appellee filed this defamation action with the circuit court against the appellants. The trial was held regarding this matter on May 13 and 14 of 1993. The jury ultimately returned a verdict awarding the appellee $250,000 in damages, including $150,000 for mental anguish, worry and distress and $50,000 for damages to the appellee's reputation and $50,000 in punitive damages. The trial court entered an order on May 21, 1993, confirming the jury's award. It is from this order of the trial court that the appellants appeal to this Court.

II

The appellants raise numerous assignments of error on appeal. However, we will address two assignments which raise questions as to whether it was proper for the jury to decide the appellee's status, that is, whether the appellee was acting as a public person or a private person for purposes of this case and whether the verdict was appropriate. The remaining assignments of error are without merit or were inadequately briefed. See State v. Flint, 171 W.Va. 676, 679 n. 1, 301 S.E.2d 765, 768 n. 1 (1983); Addair v. Bryant, 168 W.Va. 306, 320, 284 S.E.2d 374, 385 (1981).

The appellants primarily argue that it was error for the trial court to submit to the jury the question as to whether the appellee was a public person or a private person for purposes of this defamation case.

The critical analysis in this case is whether or not the appellants preserve the error of which they now complain. The record denotes the exchange that took place between the trial court and counsel for the appellants when counsel was arguing a motion to dismiss after the close of the appellee's case:

Mr. Feuchtenberger: First, the defendants would argue to the Court that Larry Estep is a public figure--

....

The Court: I'm going to stop you right there. First of all, I don't find that there is sufficient evidence to find that he is a public official and the jury will decide whether he is a public figure, which they could find that he is or they could find that he is not a public figure. So, I'm going to leave it up to the jury to find whether he is a private person or not.

Mr. Feuchtenberger then went on to his next issue in his argument in support of dismissing the case and the following exchange occurred:

The Court: The Court finds that there is sufficient evidence in this case in which the jury could find that there were alternatives available to private persons or public persons, defamatory statements made to third persons of a malicious nature or not of a malicious nature. I'm going to tell you something right now, as it stands at the present time, if the jury finds that he is a public figure I probably won't let the verdict stand unless the evidence changes.

Mr. Feuchtenberger: Yes, Your Honor.

Thereafter, the record indicates that the jury was submitted an interrogatory by the trial court. Specifically, the interrogatory asked the jury to decide whether the appellee was a public person or a private person. ¹

The record also indicates that the jury was instructed on the standards of proof required of a public person and a private person in a defamation action. Both parties submitted and the trial court presented instructions to the jury on the following relevant issues: the burden of proof a private person must satisfy in order to prevail in a defamation action; ² the burden of proof a public person must satisfy to prevail in a defamation action, including the definition of actual malice; ³ and, guidelines setting forth when a punitive damage award is appropriate. ⁴

Because our analysis in this case is focused upon the procedural aspects of what occurred or failed to occur at the trial court, we are guided by the Rules of Civil Procedure. Rule 46 of the West Virginia Rules of Civil Procedure states, in relevant part:

Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor[.]

We acknowledged the purpose of this rule in Konchesky v. S.J. Groves & Sons Co., 148 W.Va. 411, 415, 135 S.E.2d 299, 302 (1964): "It will be noted that this Rule clearly shows that formal exceptions are unnecessary, but parties must still make it clear that they object to the ruling or order of the court in order to preserve such matter for appeal." See Bennett v. 3 C Coal Co., 180 W.Va. 665, 672, 379 S.E.2d 388, 395 (1989). This principle was recognized in a more general sense originally in syllabus point 1 of State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964): "Where objections were not shown to have been made in the trial court, and the matters...