Hinkle v. Black

Decision Date18 December 1979
Docket NumberNo. 14617,14617
PartiesLinda L. HINKLE, Exrs., etc. et al. v. The Hon. Donald F. BLACK, etc. et al.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.

2. W.Va.Code, 56-9-1 (1939) which provides that a circuit court in which a proceeding has been filed may transfer the proceeding to another circuit for good cause is not inconsistent with Rule 42b, W.Va. RCP which provides that the court in which the first of two or more related actions arising out of the same transaction is pending may order all actions transferred to it.

3. Where a trial court does not abuse its discretion in transferring cases under W.Va.Code, 56-9-1 (1939) this Court will not prohibit such transfer.

Sterl F. Shinaberry, Hostler & Shinaberry, Charleston, for petitioners.

John R. Hoblitzell, Kay, Casto & Chaney, Charleston, for Cross Concrete.

Herbert G. Underwood, James M. Wilson, Steptoe & Johnson, Clarksburg, for Research-Cottrell.

Diana Everett, Cather & Renner, Parkersburg, for United.

John B. Garden, R. Noel Foreman, Bachmann, Hess, Bachmann & Garden, Wheeling, for Allegheny, Monongahela and Potomac-Edison.

Spilman, Thomas, Battle & Klostermeyer, David B. Shapiro, John H. Tinney, Charleston, McQuire, Woods & Battle, Murray H. Wright, Richmond, Va., for Pittsburgh Testing.

NEELY, Justice:

On 27 April 1978 the collapse of a cooling tower then under construction at the Pleasants Power Station, Willow Island, Pleasants County, West Virginia, resulted in the deaths of fifty-one men. As a consequence of certain of those deaths, as of 18 June 1979, there were pending in the Circuit Court of Pleasants County twenty civil actions which sought damages for wrongful death from various defendants who were involved in the construction or ownership of the collapsed tower.

On 16 May 1979 seven civil actions seeking damages for the alleged wrongful deaths of persons killed in the same collapse were filed in the Circuit Court of Wood County. Before the filing of the seven civil actions in Wood County, the Circuit Court of Pleasants County had consolidated all of the then pending Willow Island cases for discovery purposes and ordered all cases arising out of the cooling tower disaster which would subsequently be filed in Pleasants County to be likewise consolidated, subject to plaintiffs' objection, and ordered that the law firm of Preiser & Wilson be appointed "to serve as lead counsel for the purpose of supervising, coordinating, and initiating pretrial discovery on behalf of all plaintiffs in such actions consolidated herewith."

The seven civil actions filed in Wood County were distributed among the three judges of that court, and on 18 June 1979 Research-Cottrell, which was a defendant in each of the wrongful death actions, moved the Circuit Court of Wood County to remove the civil actions filed in that circuit to the Circuit Court of Pleasants County pursuant to W.Va.Code, 56-9-1 (1939). 1

The motion to transfer the actions to Pleasants County was resisted by the plaintiffs in the Wood County litigation and after briefs and argument the respondent, Donald F. Black, Chief Judge of the Circuit Court of Wood County, granted the motion and directed that an order effecting that decision be prepared for entry. Included in Judge Black's findings were his conclusions that:

* * * all Twenty-Seven (27) Civil Actions Seven (7) pending in the Circuit Court of Wood County, West Virginia, and the Twenty (20) pending in the Circuit Court of Pleasants County, West Virginia, involved common questions of both law and fact, and that they can be consolidated for the purposes of discovery and trial, and the issues of liability and all other matters other than the quantum of damages. If said Civil Actions are consolidated for the determination of all issues other than damages, they will save all parties litigant to all Twenty-Seven (27) Civil Actions much time and money. Such consolidation would avoid (1) duplication of discovery, (2) the duplication of the trial of the issues of liability, and (3) duplication as to other issues. Such consolidation would avoid possible contradictory rulings on the part of the separate circuit courts trying the same.

The plaintiffs in the Wood County action then came to this Court seeking a writ of prohibition and we granted a rule to show cause why the Circuit Court of Wood County had not exceeded its legitimate powers in transferring the civil actions to Pleasants County. We conclude that the Circuit Court of Wood County had jurisdiction to transfer the cases and that in so doing the court did not abuse its discretion; consequently, the writ of prohibition prayed for is denied.


The threshold question presented in this case is whether an issue of this type may be reached by a writ of prohibition. This case presents an opportunity to address a subject which has not recently been adequately considered, namely when a litigant can successfully seek a writ of prohibition to serve the office of an interlocutory appeal. In general there is an Embarras de richesses of creative mandates emanating from actions in prohibition 2 and an utter paucity of cogent analysis of the criteria which motivate this court to entertain a proceeding in prohibition. In general judges cringe at the bare mention of an "interlocutory appeal" because it conjures the specter of clogged dockets, interminable delays while minor procedural points are shunted from trial court to appellate court and back, and the piecemeal adjudication of causes which could be satisfactorily resolved exclusively in the lower court. To the extent that all of these fears are justified we are adamantly opposed to being in the interlocutory appeals business.

Nonetheless, the classic formulation that a writ of prohibition will issue "in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers," W.Va.Code, 53-1-1 (1923) hardly illuminates the variety of circumstances where this Court will grant a rule in prohibition. 3 "(T)here is no sharp line between a court acting in error under substantive or procedural law and a court acting in excess of its powers if only because every act without jurisdiction or in excess of its powers in a proceeding over which it has jurisdiction of necessity involves an 'error of law.' " La Rocca v. Lane, 37 N.Y.2d 575, 376 N.Y.S.2d 93, 338 N.E.2d 606 (1975),Cert. denied, 424 U.S. 968, 96 S.Ct. 1464, 47 L.Ed.2d 734 (1976).

We have recognized the simple truth of the La Rocca, supra, pronouncement in the variety of circumstances where we have issued writs of prohibition because a court "exceeded its legitimate powers," 4 but we have been unable to articulate functional rules which instruct the bar when their attempts to invoke this Court's discretionary jurisdiction will meet with success. It is to this undertaking that we shall now proceed with some trepidation.

Since the key word in any analysis of prohibition must be "discretionary" unless this Court is to take on the character of an appellate squire's court, we are confounded for that reason by insurmountable conceptual hurdles to constructing iron-clad rules about when prohibition will issue. We can initially, however, perform one service for litigants and the bar, namely explain that once a rule to show cause in prohibition has issued it is unnecessary to brief the procedural question of whether prohibition is the appropriate remedy under prior case law. This Court is sufficiently familiar with all the law surrounding the writ of prohibition that three or four pages of brief dedicated to a repetition of rules about prohibition lying only when a trial court has "exceeded its legitimate powers" is a waste of litigant money and lawyer and court time. It shall be sufficient hereafter in prohibition cases to state the simple proposition that prohibition is not the appropriate remedy arguing the functional criteria of this case or alternatively that prohibition is the appropriate remedy using the same criteria.

When then will prohibition be considered the appropriate remedy and a rule to show cause issue? At the heart of the matter are two functional criteria: first, the adequacy of another remedy such as appeal; second, economy of effort among litigants, lawyers and courts. 5 Furthermore, there is a gloss which surrounds both previous criteria, namely a question of good faith. Whenever the Court believes that a prohibition petition is interposed for the purpose of delay or to confuse and confound the legitimate workings of the criminal or civil process in the lower courts, a rule will be denied. In this regard it should be noted that in the last ten years we are unable to find any prohibition cases arising during a trial.

Obviously there are prohibition proceedings which come squarely within the classic definition of "when the inferior court has no jurisdiction of the subject matter in controversy" Code, 53-1-1 (1923) as when, for example, a magistrate court undertakes to try title to real estate or a circuit court undertakes to adjudicate the rights of nonresidents who have not properly been served with process. 6 Many c...

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