Gum v. Dudley

Decision Date08 December 1997
Docket NumberNo. 23845.,23845.
Citation505 S.E.2d 391,202 W.Va. 476
CourtWest Virginia Supreme Court
PartiesSylvia GUM, as Executrix for the Estate of Charles Lee Gum, Plaintiff Below, Appellant, v. Roger Lee DUDLEY, Robert Dudley, Tamera Suzette Baker and Lillian B. Ayr, Defendants Below, Appellees.

John C. Skinner, Jr., Stephen Gibson Skinner, Nichols & Skinner, Charles Town, for Appellant.

Thomas G. Steele, Clarksburg, for Appellees, Dudley and Dudley.

Christopher D. Janelle, Henry, Taylor & Janelle, Martinsburg, for Appellees, Baker and Ayr.

Tracey B. Dawson, Steptoe & Johnson, Martinsburg, for State Farm Mutual Insurance. DAVIS, Justice:

This is an appeal by Sylvia Gum (Mrs. Gum) as executrix for the estate of Charles Lee Gum, plaintiff/appellant, from an order of the Circuit Court of Berkeley County denying her motion to set aside the jury verdict and grant a new trial. Mrs. Gum's motion was predicated on the failure of counsel for Tamera Suzette Baker (Baker) and Lillian B. Ayr (Ayr), defendants/appellees, to disclose a settlement agreement between Baker and Ayr. The issue before this Court is whether the failure to disclose the settlement agreement between Baker and Ayr warranted setting aside the jury verdict and granting a new trial. Additionally, the court must consider whether the attorney's failure to disclose the settlement agreement constituted a violation of the general duty of candor attorneys owe to our courts. For the reasons stated herein this case is affirmed in part; reversed in part; and remanded with directions.


On October 9, 1992, Mr. Gum had an accident involving two vehicles and a tractor trailer. During the accident, Mr. Gum's vehicle was slammed into a stone wall. Five hours after the accident, Mr. Gum died of a heart attack. Mrs. Gum sued four (4) persons in the wrongful death action. Mrs. Gum sued the vehicle driver Roger Dudley and the car's owner Robert Dudley. Mrs. Gum also sued the tractor trailer driver, Tamera Suzette Baker, and Lillian B. Ayr, who owned the tractor trailer. Also, the record reveals that Ayr filed cross-claims against Baker as well as the Dudleys.

Ayr's claim against Baker focused on Ayr's right of indemnification and contribution from Baker, the driver of Ayr's tractor trailer. Ayr's attorney, Tammy Mitchell Bittorf, approached Commerce Insurance regarding potential coverage and a joint defense under the Commerce Insurance policy for Ayr and Baker. Commerce Insurance agreed to a joint defense for Ayr and Baker. Therefore, on July 18, 1995, counsel for Baker, Mr. Christopher D. Janelle, entered his appearance on behalf of Ayr by means of a Notice of Appearance. The Notice of Appearance was served on all parties.

At some point thereafter, Mr. Janelle recognized a potential conflict resulting from his joint representation of both Baker and Ayr due to Ayr's cross-claim against Baker. In an effort to extinguish the conflict, sometime in mid-July, 1995, attorney Tammy Mitchell Bittorf prepared an agreed order wherein defendant, Baker confessed judgment in the cross-claim filed by Ayr.

The agreed order confessing judgment stated in relevant part as follows:


On this 16th day of July, 1995, the Defendant, Tamera Suzette Baker, by counsel, Christopher D. Janelle and the Co-Defendant, Lillian Ayr, by counsel, Tammy Mitchell Bittorf, and entered into an agreement and now do represent to the Court as follows:

1. Lillian B. Ayr has alleged and filed herein a Cross claim against Tamera Suzette Baker for contribution and indemnification.

2. Tamera Suzette Baker does desire and hereby wish to confess judgment upon said Cross claim of Lillian B. Ayr. Accordingly, Tamera Suzette Baker, by counsel, having expressed to this Court a desire to confess judgment to the Cross claim as brought by Lillian B. Ayr for indemnification and contribution, it is ADJUDGED and ORDERED that judgment upon the Cross claim brought herein by Lillian B. Ayr against Tamera Suzette Baker is entered in favor of Lillian B. Ayr. It is thus further ORDERED that Tamera Suzette Baker indemnify and hold harmless Lillian B. Ayr for any and all sums awarded herein in favor of the Plaintiff against Lillian B. Ayr.

__________________________ Tammy Mitchell Bittorf _________________________ Christopher D. Janell[e] _____________________________ JUDGE OF THE CIRCUIT COURT OF BERKELEY COUNTY WEST VIRGINIA

The record reflects that attorney Bittorf, as the author of the agreed order, tendered the same to Judge Wilkes during a pretrial hearing.1 Plaintiff's counsel, attorney Skinner, was neither copied on the agreed order nor notified of it being tendered to the court for entry prior to commencement of the trial.

The trial began on August 30, 1995. The Dudley's had one trial attorney, Thomas G. Steele. Baker and Ayr had one trial attorney, Christopher D. Janelle. On the second day of trial, Mrs. Gum's attorney filed a motion requesting the circuit court "require the defendant to disclose any settlement agreement between themselves". Counsel for the Dudleys, Thomas G. Steele, responded in open court that no such agreement existed between the defendants. Counsel for Ayr and Baker, Mr. Janelle, although at the proceeding, made no response to the court. (Emphasis added). The circuit court, believing there to be no settlement agreement among the defendants continued the trial. The jury returned a verdict for the defendants on August 31, 1995.

Two weeks after the trial, Mrs. Gum's attorney learned that Baker and Ayr had entered into a settlement agreement in July of 1995. The settlement was discovered after Mrs. Gum's counsel received a copy of the agreed order from the circuit clerk's office. Although, the agreed order was entered by the circuit court on August 31, 1995, neither attorney Steele nor attorney Skinner were notified, in any manner, by either attorney Janelle, or attorney Bittorf, that an order had been submitted to Judge Wilkes for entry.2

Mrs. Gum's attorney filed a motion for post-trial discovery to ascertain the terms of the settlement agreement. Mrs. Gum's attorney also filed a motion to set aside the verdict and grant a new trial based upon the failure to disclose the settlement agreement. A hearing on the motions was held on March 11, 1996. At the hearing Mrs. Gum's attorney informed the circuit court that no motion was filed asking the court to enter the agreed order; that counsel never received notice that an agreed order was submitted to the court; and that counsel, Mr. Janelle, indicated by his silence at trial that no settlement agreement was entered into between the defendants. The circuit court found that Mrs. Gum failed to show any prejudice to her case because of the defendant's failure to disclose the settlement agreement. The circuit court denied all post-trial motions. This appeal followed. The questions presented to this Court are whether a new trial should have been granted because Mr. Janelle failed to disclose the settlement agreement between Ayr and Baker, and whether Mr. Janelle's failure to disclose such an agreement constitutes a violation of the general duty of candor.


We set out the standard of review for an order denying a motion for a new trial in syllabus point 3 of In re State Public Bldg. Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994):

A motion for a new trial is governed by a different standard than a motion for a directed verdict. When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority to weigh the evidence and consider the credibility of the witnesses. If the trial judge finds the verdict is against the clear weight of the evidence, is based on false evidence or will result in a miscarriage of justice, the trial judge may set aside the verdict, even if supported by substantial evidence, and grant a new trial. A trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion.

Mrs. Gum contends that a new trial should have been granted due to Mr. Janelle's failure to disclose the Baker/Ayr settlement when the court so inquired. The standard of review is the same as any order denying a motion for a new trial. "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

A. Failure to Disclose the Settlement Agreement: Its Impact on the Trial

Mrs. Gum contends that our decision in State ex rel. Vapor Corp. v. Narick, 173 W.Va. 770, 320 S.E.2d 345 (1984) required disclosure of the settlement agreement between defendants, Baker and Ayr.3 We addressed the issue of the disclosure of "Mary Carter" type settlement agreements4 in syllabus point 1 of Vapor Corp., wherein we held "[m]ost courts in considering the validity of "Mary Carter" and related settlement agreements hold that prompt disclosure is required to both the court and opposing counsel once such a settlement is made." We explained the necessity for disclosure to the court and opposing counsel in Vapor Corp.:

Disclosure is required because such settlements frequently tend to realign the loyalties of the parties and change their trial tactics from what normally would be expected. It is critical to the fair conduct of the trial to disclose the settlement terms so that the court, with the assistance of counsel, may decide whether the agreement is valid, and if so, what measures should be taken to ensure that the nonsettling party or parties will not be prejudiced.5

Id. 173 W.Va. at 773, 320 S.E.2d at 348.

The initial problem with Mrs. Gum's...

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