Miller v. Triplett, 24751.

• Decision Date: 17 July 1998
• Docket Number: No. 24751.,24751.
• Citation: 507 S.E.2d 714,203 W.Va. 351
• Parties: Linda K. MILLER, Individually, and Justin L. Miller, Who Sues By His Next Friend, Linda K. Miller, Plaintiffs Below, Appellants, v. Charles H. TRIPLETT, Defendant Below, Appellee.
• Court: West Virginia Supreme Court

507 S.E.2d 714

203 W.Va. 351

Linda K. MILLER, Individually, and Justin L. Miller, Who Sues By His Next Friend, Linda K. Miller, Plaintiffs Below, Appellants, v. Charles H. TRIPLETT, Defendant Below, Appellee.

No. 24751.

Supreme Court of Appeals of West Virginia.

Submitted May 13, 1998.

Decided July 17, 1998.

Larry E. Losch, Esq., William A. McCourt, Jr., Esq., Summersville, West Virginia, Attorneys for the Appellants.

Ellen A. Archibald, Esq., Brent K. Kesner, Esq., Tanya M. Kesner, Esq., Kesner, Kesner & Bramble, Charleston, West Virginia, Attorneys for the Appellee. MAYNARD, Justice:

Linda Miller and Justin Miller, plaintiffs in a personal injury case, appeal the final order of the Circuit Court of Clay County entered April 4, 1997. The appellants raise three issues on appeal in support of their prayer for a new trial. The appellants also raise as error the circuit court's remittitur of Justin Miller's award, and the ordered splitting of court costs between Linda Miller and Charles Triplett. We affirm the judgment of the circuit court.

Upon reviewing the record, briefs, and arguments of counsel, this Court finds the appellants waived all errors which would support the award of a new trial by failing to comply with Rules 59(b) and 59(f) of the West Virginia Rules of Civil Procedure. We, therefore, decline to consider the plaintiffs' assignments of error in support of their prayer for a new trial. Also, we find that the circuit court did not abuse its discretion in ordering remittitur and splitting court costs. Accordingly, we affirm the final order of the Circuit Court of Clay County.

I. FACTS

On July 14, 1993, Linda K. Miller was driving a vehicle on Route 19 in Clay County, West Virginia. Linda Miller's son, Justin Miller, was a passenger in the vehicle. The Millers' vehicle was struck from behind by a car being driven by Charles H. Triplett. On July 13, 1995, the Millers sued Mr. Triplett for injuries and other expenses arising out of the collision.

A trial was held on January 8 and 9, 1997. The jury found in favor of the plaintiffs and awarded Linda Miller $9,000¹ and Justin Miller $5,000.² Following the verdict, the court invited the parties to make post-trial motions. The appellants failed to make a motion for a new trial, despite being given ample opportunity to do so. On April 4, 1997, judgment was entered on the verdict. Thereafter, the appellants neglected to serve a written motion for a new trial within ten days from the entry of judgment in accordance with Rule 59(b) of the West Virginia Rules of Civil Procedure. In fact, the appellants completely failed to make a motion for a new trial before the circuit court. Instead, the appellants attempted to raise errors in support of their prayer for a new trial for the first time with this Court.

II. DISCUSSION

On appeal, the appellants pray that this Court will grant them a new trial citing three errors by the circuit court. First, the appellants assert the circuit court erred in giving the jury a "missing witness" instruction pertaining to certain medical personnel. The circuit court gave an instruction which essentially stated that if the jury believed the plaintiffs received treatment from medical providers for injuries sustained in the accident, then the failure of the plaintiffs to call the medical providers as witnesses or to otherwise explain their absence gives rise to an inference that the witnesses would have testified adversely to the interest of the plaintiffs. The appellants argue that the court should not have given a missing witness instruction because the witnesses were equally available to both parties, the testimony would not be material, and the testimony would be cumulative of other evidence offered at trial. Second, the appellants contend the circuit court refused to permit their chiropractor, Stephen Wolford, to testify to a reasonable degree of medical certainty about the plaintiffs' future injuries.³ Due to the appellants' failure to file a motion for a new trial and the waiver which resulted, this Court declines to consider the issue at this time. Finally, the appellants argue the circuit court improperly prevented one of their witnesses from testifying about an out-of-court statement made by a witness for the defendant.⁴

Upon review of the record, we decline to consider the issues presented because they were not properly preserved with the trial court.⁵ In Syllabus Point 2 of State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996), this Court stated, "To preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect." The Court further explained that "[t]he rule in West Virginia is that parties [seeking to preserve an issue for appellate review] must speak clearly in the circuit court, on pain that, if they forget their lines, they will likely be bound forever to hold their peace." Cooper, 196 W.Va. at 216, 470 S.E.2d at 170.

In the instant case, the appellants waived the errors which occurred during the trial by failing to make a motion for a new trial before the circuit court. Under our common law, it was axiomatic that,

[i]f errors or supposed errors are committed by a court in its rulings during the trial of a case by a jury, the appellate court can not review these rulings, unless, first, they were objected to when made and the point saved and a bill of exceptions taken showing these rulings during the term of the court, and unless, second, a new trial was asked of the court below and refused, and such refusal objected to in the court below, and this appears of record. If either of these essentials is omitted, the appellate court can not review the rulings.

Syllabus Point 1, in part, Danks v. Rodeheaver, 26 W.Va. 274 (1885). This requirement of moving for a new trial in order to preserve certain errors occurring during the trial was retained with the adoption of West Virginia Rule of Civil Procedure 59(f) which states:

If a party fails to make a timely motion for a new trial, after a trial by jury wherein a verdict is returned without a direction thereof by the court, the party is deemed to have waived all errors occurring during the trial which he might have assigned as grounds in support of such motion; provided that if a party has made a motion under Rule 50(b) for judgment in accordance with his motion for a directed verdict and such motion is denied, his failure to move for a new trial is not a waiver of error in the court's denying or failing to grant such motion for a directed verdict. (Emphasis added.)⁶

The continued operation of our common law requirement was confirmed in Taylor v. Miller, 162 W.Va. 265, 249 S.E.2d 191 (1978), a decision rendered after the adoption of the Rules of Civil Procedure. Taylor concerned an eminent domain proceeding. There, it was recognized that Rule 72 of the West Virginia Rules of Civil Procedure, which triggers the beginning of the appeal time upon the trial court's "granting or denying a motion for a new trial under Rule 59," was not applicable since eminent domain proceedings are excluded from the operation of the Rules. The appellant contended that "no similar requirement exists outside the Rules of Civil Procedure mandating that a party file a motion for a new trial in order to have an appeal." Taylor, 162 W.Va. at 269,249 S.E.2d at 194 (emphasis added). Justice Miller stated, however:

The landowner acknowledges that W.Va. Code, 56-6-28, governs the procedure to be followed in granting a new trial in "any civil case or proceeding," but insists this statute is not mandatory. This Court has held, however, that in order for appellate review of an alleged trial error to be had, the party asserting error not only must object when it is made and file a bill of exceptions, but must also request a new trial, have it refused by the trial court, and object on the record to the refusal.

Taylor, 162 W.Va. at 269-270, 249 S.E.2d at 194 (footnote and citations omitted). The Court concluded in Syllabus Point 3 that "[i]n an eminent domain case, a motion for new trial must be filed and overruled in order to preserve trial errors for purposes of appellate review."

Rule 59(f) has recently been amended.⁷ The 1997 Advisory Committee Note to that amendment states in part:

As in the federal system, the making of post-trial motions under Rule 50 or Rule 59 is not a jurisdictional prerequisite for appeal. But while our subdivision (f) does not make a Rule 59 motion jurisdictional, it does impose a penalty on the party who fails to make such a motion, that penalty being that the party is then "deemed to have waived all errors occurring during the trial which [the party] might have assigned as grounds in support of such motion." If the motion for a new trial or to alter or amend a judgment is made, however, no such grounds are deemed to have been waived, even if they are not specifically stated in the motion. It can thus be argued that Rule 59(f) functions more as a procedural trap for the unwary or inexperienced attorney than it does as a mechanism for adding substance and meaning to the post-trial process.

On the other hand, a Rule 59 motion for a new trial or to alter or amend a judgment is the only post-trial motion that permits the trial judge to consider errors that the judge is alleged to have committed during trial (other than its "error" in refusing to grant a Rule 50(b) motion for judgment notwithstanding the verdict). It can thus also be argued that Rule 59(f) is an appropriate mechanism through which to encourage, if not require, litigants to bring such alleged errors first to the attention of the trial judge who they claim made them, thus giving the trial judge the first opportunity to address the alleged errors, decide if they actually were errors, determine if any errors need to be corrected, and, if so, decide upon the best way of doing so. This

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