Evans v. Mutual Min.

• Decision Date: 11 April 1997
• Docket Number: No. 23550,23550
• Citation: 485 S.E.2d 695,199 W.Va. 526
• Court: West Virginia Supreme Court
• Parties: Ralph E. EVANS and Nellie S. Evans, Plaintiffs Below, Appellants, v. MUTUAL MINING, Defendant Below, Appellee.

Page 695

485 S.E.2d 695

199 W.Va. 526

Ralph E. EVANS and Nellie S. Evans, Plaintiffs Below, Appellants, v. MUTUAL MINING, Defendant Below, Appellee.

No. 23550.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 5, 1997.

Decided April 11, 1997.

Syllabus by the Court

1. Civil discovery is governed by the West Virginia Rules of Civil Procedure, Rules 26 through 37. "The Rules of Civil Procedure generally provide for broad discovery to ferret out evidence which is in some degree relevant to the contested issue. (footnote omitted)." Policarpio v. Kaufman, 183 W.Va. 258, 261, 395 S.E.2d 502, 505 (1990). Discovery disputes that must be resolved by the circuit court are addressed to the circuit court's sound discretion, and the circuit court's order will not be disturbed upon appeal unless there has been an abuse of that discretion.

2. Under Rule 701 [1994] of the West Virginia Rules of Evidence, the owner of destroyed or damaged personal property is qualified to give lay testimony as to the value of the personal property based on his or her personal knowledge. When the value of the personal property is disputed, the ultimate determination of the value of personal property must be resolved by the trier of fact.

3. " '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)." Syllabus Point 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

4. "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, 194 W.Va. 52, 459 S.E.2d 329 (1995).

5. "Fletcher v. Rylands, 3 H. & C. 774, 159 Eng.Rep. 737 (1865), rev'd Fletcher v. Rylands, L.R. 1 Ex. 265 (1866), aff'd Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), as articulated in the Restatement (Second) of Torts (1976) is hereby adopted into the common law of this jurisdiction." Syllabus Point 1, Peneschi v. National Steel Corp., 170 W.Va. 511, 295 S.E.2d 1 (1982).

Robert Lee White, Madison, for Appellants.

Robert H. Sweeney, Jr., Jenkins, Fenstermaker, Krieger, Kayes & Agee, Huntington, Cheryl A. Keffer, Bastien & Gerwig, Charleston, for Appellee.

STARCHER, Justice:

Ralph E. and Nellie S. Evans appeal a jury verdict awarding them $5,000 for the damages they suffered when an impoundment of water under the control of Mutual Mining ("Mutual") inundated their property. On appeal, Mr. and Mrs. Evans allege the damage award was inadequate because of the circuit court's following errors: (1) exclusion of their testimony as owners of the value of their personal property, (2) exclusion of evidence of the concomitant damage which occurred on five other occasions, (3) exclusion of evidence of mental anguish, and (4) failure to grant a directed verdict on the issue of liability. Because we find merit in all the assignments of error except for the exclusion of evidence of mental anguish, we affirm, in part, reverse, in part, and remand this case, with directions.

I. Facts and Background

On December 2, 1991, a sediment control cell located on the mountainside above the community of Madison Camp ruptured, sending water, mud and debris down the mountain and into Madison Camp. Mr. and Mrs. Evans are residents of Madison Camp and their property was inundated. ¹ Numerous items that the Evanses had stored in their garage were damaged or destroyed when the wash covered their property. The sediment control cell is/was part of the drainage structure for Mutual's surface mining operations on the mountainside above Madison Camp. Although Mutual undertook to remove the mud and debris from Madison Camp, the Evanses maintain that because of blocked drains and culverts resulting from the December 21, 1991 incident, additional flooding occurred in Madison Camp on June 29, 1992, July 2, 1992, July 24, 1992, March 24, 1993 and June 4, 1993.

Mr. and Mrs. Evans filed suit in the Circuit Court of Logan County seeking to recover damage to their personal property and real property, for mental anguish and annoyance and inconvenience. During discovery, a dispute arose about the value of the Evanses' personal property. As a result of a circuit court order, the Evanses were unable to present to the jury all damages their personal property had sustained. In addition, by partial summary judgment order, the circuit court excluded evidence of flooding and damage for all the alleged incidents except those two incidents (December 2, 1991 and March 24, 1993) in which Mutual had been cited for failing to protect off site areas by the W.Va. Department of Environmental Protection. Because the Evanses' claim was limited to property damage, the circuit court also excluded damages for mental anguish.

The issue of Mutual's liability was submitted to the jury, which found Mutual liable and returned the following awards for the Evanses: "$1000.00 Damages to Personal property[,] $3000.00 Damages to Real property [and] $1000.00 Loss of use and annoyance and inconvenience." After the circuit court denied the Evanses' motion for either judgment notwithstanding the verdict or a new trial, the Evanses appealed to this Court alleging the circuit court made several errors.

II. Discussion

A. Owners' Opinion of the Value of Personal Property

Mr. and Mrs. Evans maintain that their opinion of the value of their personal property was erroneously excluded. During discovery, the Evanses produced a hand-written list of their property that was destroyed/damaged and assigned a value to each item. The list was extensive because the garage where the Evanses had stored some of their personal property had been flooded during the incidents. According to Mr. Evans, the damaged property included: equipment from their recently closed restaurant, camping equipment, off-season clothing and many other items. A dispute arose over whether the value assigned by the Evanses to their damaged property was the "fair market value," as requested by Mutual. During a deposition held on September 28, 1993, Mr. Evans testified that he had used catalogs to help him and that the values obtained from the catalog were "replacement values."

Arguing that "replacement values" were unresponsive to its request for "fair market values," Mutual sought a motion to compel, which was granted by the circuit court. Thereafter, the Evanses produced a second list in which the values of several of the items were reduced. However, most of the values noted on the second list remained unchanged. Mr. Evans also submitted his affidavit stating that none of the values noted on his second list was "a replacement cost." Mr. Evans acknowledged and listed the items which on the first list he had used a replacement value, but "[a]s to all other items on that [the first] list I had not replaced [sic] a replacement value but has assigned my opinion as to the fair market value."

Mutual, arguing that the values placed on the second list were unresponsive to the circuit court's order, moved to exclude the items that appeared on both lists with the same value. After a hearing, the circuit court excluded the items whose values had remained unchanged and refused to let the Evanses testify as to their value. The circuit court allowed the jury to consider items that appeared for the first time on the second list based on its finding "those [new items] to be arguably market value." According to the Evanses, the items excluded from the jury's consideration had a value of $9,756.99.

Civil discovery is governed by the West Virginia Rules of Civil Procedure, Rules 26 through 37. "The Rules of Civil Procedure generally provide for broad discovery to ferret out evidence which is in some degree relevant to the contested issue. (footnote omitted)." Policarpio v. Kaufman, 183 W.Va. 258, 261, 395 S.E.2d 502, 505 (1990) (absence of compelling evidence of irremediable prejudice, writ of probation does not lie to bar trial based on pretrial discovery ruling). Cf. Dishman v. Jarrell, 165 W.Va. 709, 711, 271 S.E.2d 348, 349 (1980)("The rules of pleading are liberal and seek substantial justice"). Discovery disputes that must be resolved by the circuit court are addressed to the circuit court's sound discretion, and the circuit court's order will not be disturbed upon appeal unless there has been an abuse of that discretion. Syllabus Points 1 and 2 of 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), state:

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.

The striking of pleadings and the rendering of judgment by default against a party as sanctions under W.Va.R.Civ.P. 37(b) for that party's failure to obey an order of a circuit court to provide or permit discovery may be imposed by the court where it has been established through an evidentiary hearing and in light of the full record before the court that the failure to comply has been due to willfulness, bad faith or fault of...