Hansbarger v. Cook, s. 17098
| Decision Date | 26 November 1986 |
| Docket Number | Nos. 17098,17099,s. 17098 |
| Court | West Virginia Supreme Court |
| Parties | L. Clark HANSBARGER, M.D. v. Hon. Jerry COOK, Judge, Etc. David K. HEYDINGER, M.D., Director, West Virginia Department of Health v. Hon. Jerry COOK, Judge, Etc. |
Syllabus by the Court
1. When a state official brings suit against an individual in the courts of this State in the execution of the statutory duties of his office, such state official is not an "opposing party" within the meaning of W.Va.R.Civ.P., Rule 13(a) for purposes of a compulsory counterclaim brought against such official in his personal capacity.
2. Venue is not a jurisdictional question in the strict sense of the word, but rather, is a matter of personal privilege which may be waived by any party, including the State.
3. When a plaintiff brings suit in a particular county, he may not thereafter object to the venue of any counterclaim arising out of his civil action which is brought in that county, even though venue would be improper if the counterclaim had been brought as an independent action.
Charles G. Brown, Atty. Gen., J. Bradley Russell, David P. Lambert, Asst. Attys. Gen., John S. Haight, Jack Smith, Kay, Casto & Chaney, Charleston, for appellant.
Guy Bucci, Charleston, for appellee.
These original proceedings in prohibition, which have been consolidated for decision, arise out of a civil action brought in the Circuit Court of Lincoln County by Dr. L. Clark Hansbarger, then the Director of the West Virginia Department of Health, to enjoin Ida Mae Adkins, doing business as Adkins Rest Home, from operating a nursing home or personal care home in Hamlin Lincoln County. Dr. Hansbarger and Dr. David K. Heydinger, the current Director of the Department of Health, now seek to prevent the trial of a counterclaim brought by Mrs. Adkins. We conclude that petitioner Hansbarger has demonstrated his entitlement to the relief requested and is entitled to the writ prayed for, but that petitioner Heydinger has failed to make a showing of entitlement to the extraordinary remedy of prohibition.
The facts giving rise to these proceedings are essentially undisputed. On July 17, 1984, Dr. Hansbarger brought suit in the Circuit Court of Lincoln County on behalf of the Department of Health to enjoin the operation of Adkins Rest Home on the grounds that Mrs. Adkins had been operating a nursing home or personal care home without a license, in violation of W.Va.Code § 16-5C-6 (1985 Replacement Vol.), and had subjected the residents of her facility to abuse and/or neglect, in violation of W.Va.Code § 9-6-1 et seq. (1984 Replacement Vol.). Upon these allegations and several affidavits submitted in support thereof, the circuit court issued a preliminary injunction closing the rest home and enjoining its further operation. In addition, the court ordered the residents of the facility transferred to a hospital for medical examinations and appointed a guardian ad litem to represent their interests.
During the summer and fall of 1984, the parties conducted discovery in preparation for a hearing on the propriety of a permanent injunction. In December 1984, Mrs. Adkins filed an answer denying the material allegations of the complaint and counterclaimed against Dr. Hansbarger, "individually and in his official capacity as Director of the West Virginia Department of Health", seeking monetary damages and injunctive relief for alleged violations of 42 U.S.C. § 1983. 1 A copy of the answer and counterclaim was mailed to the Attorney General of West Virginia, counsel for Dr. Hansbarger in the original proceeding.
In January 1985, Dr. Hansbarger sought to remove the counterclaim to the United States District Court for the Southern District of West Virginia. Along with the petition, Dr. Hansbarger filed, by special appearance, a motion to dismiss the counterclaim against him in his personal capacity on the ground of failure of service of process. Dr. Hansbarger contended that since he had instituted proceedings against Mrs. Adkins only in his official capacity, service by mail upon the Attorney General was insufficient to give the circuit court jurisdiction of him as an individual in the counterclaim action. Mrs. Adkins opposed removal of the action to federal court, and, by order entered May 7, 1985, the District Court remanded the counterclaim to the Circuit Court of Lincoln County.
On April 15, 1985, while the removal proceedings were pending, Dr. Hansbarger resigned as Director of the Department of Health and subsequently moved to New Mexico. Dr. Heydinger succeeded Dr. Hansbarger as Director of the Department of Health and was substituted as a party to the counterclaim under Rule 25(d)(1) of the West Virginia Rules of Civil Procedure. 2 Dr. Hansbarger remained a party to the counterclaim in his personal capacity.
Further proceedings were had in the circuit court on September 9, 1985, at which time Dr. Hansbarger renewed his objection to the jurisdiction of the court and moved to dismiss the counterclaim against him. On November 5, 1985, the motion to dismiss was denied. Trial on all issues was set for November 19, 1985, but on the first day of trial the court granted, over the objection of Mrs. Adkins, a motion for bifurcation, and trial of the counterclaim was deferred until a later date.
The hearing on the permanent injunction against Mrs. Adkins lasted twelve days, during which over 60 witnesses, including Dr. Hansbarger, testified as to the allegations of abuse and neglect practiced upon the residents of Adkins Rest Home. The testimony also indicated that Mrs. Adkins had operated an unlicensed facility for a number of years with the acquiescence of the Department of Health, and that Dr. Hansbarger brought suit against her primarily upon the allegations of abuse and neglect rather than for her failure to have a license. On December 11, 1985, the circuit court submitted special interrogatories to an advisory jury empanelled to decide the factual issues involved in the case. The answers to the special interrogatories were generally favorable to Mrs. Adkins.
By order dated March 3, 1986, the court adopted the special interrogatory answers of the advisory jury as part of its findings of fact and concluded that all of the evidence had failed to demonstrate a proper basis for injunctive relief against Mrs. Adkins. The court ordered the temporary injunction dissolved and further ordered Dr. Heydinger and the Department of Health to process with all deliberate speed and fairness Mrs. Adkins' application for a renewal license. Finally, the court set March 26, 1986 as the date for trial on Mrs. Adkins' counterclaim. It is this proceeding that the petitioners seek to prohibit.
Dr. Hansbarger's first contention is that he is not an "opposing party" against whom a counterclaim may be brought under the Rules of Civil Procedure. Rule 13(a), relating to compulsory counterclaims, 3 provides, in part:
A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
Dr. Hansbarger contends that since he initiated proceedings against Mrs. Adkins only in his official capacity as Director of the Department of Health, he is not, in his personal capacity, a proper "opposing party" within the meaning of this Rule. 4
We have never had occasion to address the issue of who is an opposing party for purposes of Rule 13(a). The federal courts have discussed the question, however, in relation to Rule 13(a) of the Federal Rules of Civil Procedure, the pertinent part of which is identical to our Rule. The general rule appears to be that "unless a person has submitted himself to the jurisdiction of the court in a capacity by making a claim in that capacity, then he is not an 'opposing party' such that a compulsory counterclaim must and a permissive counterclaim may be entered against him in that capacity." 3 J. Moore & J. Lucas, Moore's Federal Practice p 13.06. See also 6 C. Wright & A. Miller, Federal Practice and Procedure (2d ed.1986) Civil: § 1404 (1971). Thus, where a plaintiff brings suit in a representative capacity, the defendant may not ordinarily bring a counterclaim against him in his individual capacity under Rule 13. Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875 (2d Cir.1981); United States v. Timber Access Industries Co., 54 F.R.D. 36 (D.Or.1971); Henkin v. Rockower Bros., Inc., 259 F.Supp. 202 (S.D.N.Y.1966); United States ex rel. Tennessee Valley Authority v. Lacy, 116 F.Supp. 15 (N.D.Ala.1953), reversed on other grds., 216 F.2d 223 (5th Cir.1954); Cravatts v. Klozo Fastener Corp., 15 F.R.D. 12 (S.D.N.Y.1953); Higgins v. Shenango Pottery Co., 99 F.Supp. 522 (W.D.Pa.1951); Chambers v. Cameron, 29 F.Supp. 742 (N.D.Ill.1939); Kainz v. Lussier, 4 Hawaii App. 400, 667 P.2d 797 (1983).
The federal courts have recognized "that it will not always be wise to apply the 'opposing party' rule mechanically." Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d at 886, and have declined to follow the rule in certain limited circumstances where the counterclaim defendant is a real party in interest, such as in the case of a derivative suit brought to adjudicate the rights of all stockholders of a closely-held corporation, Berger v. Reynolds Metals Co., 39 F.R.D. 313 (E.D.Pa.1966); Burg v. Horn, 37 F.R.D. 562 (E.D.N.Y.1965); or a suit brought by a partnership in which the individual partners have a personal, beneficial interest in the claim, see Scott v. United States, 173 Ct.Cl. 650, 664-665, 354 F.2d 292, 300 (1965). See also Moore-McCormack Lines, Inc. v. McMahon, 235 F.2d 142 (2d Cir.1956); Automated Datatron, Inc. v....
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