Perrine v. E.I. du Pont de Nemours and Company, No. 34333 (W.Va. 6/2/2010), No. 34333.

• Decision Date: 02 June 2010
• Docket Number: No. 34335.,No. 34333.,No. 34334.
• Court: West Virginia Supreme Court
• Parties: Lenora Perrine; Carolyn Holbert; Waunona Messinger Crouser; Rebeccah Morlock; Anthony Beezel; Mary Montgomery; Mary Luzader; Truman R. Desist; Larry Beezel; and Joseph Bradshaw, individuals residing in West Virginia, on behalf of themselves and all others similarly situated, v. E.I. du Pont de Nemours and Company, a Delaware corporation doing business in West Virginia; Meadowbrook Corporation, a dissolved West Virginia corporation; Matthiessen & Hegeler Zinc Company, Inc., a dissolved Illinois corporation formerly doing business in West Virginia; and T.L. Diamond & Company, Inc., a New York corporation doing business in West Virginia.

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Lenora Perrine; Carolyn Holbert; Waunona Messinger Crouser; Rebeccah Morlock; Anthony Beezel; Mary Montgomery; Mary Luzader; Truman R. Desist; Larry Beezel; and Joseph Bradshaw, individuals residing in West Virginia, on behalf of themselves and all others similarly situated, v. E.I. du Pont de Nemours and Company, a Delaware corporation doing business in West Virginia; Meadowbrook Corporation, a dissolved West Virginia corporation; Matthiessen & Hegeler Zinc Company, Inc., a dissolved Illinois corporation formerly doing business in West Virginia; and T.L. Diamond & Company, Inc., a New York corporation doing business in West Virginia.

No. 34333.

No. 34334.

No. 34335.

Supreme Court of Appeals of West Virginia.

June 2, 2010.

On Petition for Rehearing

PER CURIAM:

On March 26, 2010, this Court issued an opinion in this case which affirmed the lower court's judgment in part, conditionally affirmed in part, and reversed in part. DuPont filed a petition for rehearing on April 23, 2010, seeking to have this Court reconsider the disposition of the punitive damages allocation for medical monitoring.¹ As pointed out in the majority opinion, the verdict form in this case did not allocate punitive damages between the Plaintiffs' property damage claims and their medical monitoring claims. The majority opinion, after finding that punitive damages could not be awarded for medical monitoring, allocated forty percent of the punitive damages for medical monitoring and thereafter reduced the punitive damages by forty percent.² In the petition for rehearing DuPont contends that this Court should have allocated seventy percent of the punitive damages for medical monitoring. In support of its argument Dupont presents essentially two contentions: (1) this Court should not have considered statements made during oral argument regarding the allocation of forty percent of the punitive damages for medical monitoring, and (2) that evidence exists which shows that seventy percent of the punitive damages should have been awarded for medical monitoring. We will address both contentions separately.

1. Representations Made During Oral Argument

During oral arguments, this Court specifically asked counsel for Plaintiffs whether the trial court made an allocation of the punitive damages between the property damage claims and the medical monitoring claims. This question was asked for two reasons. First, the record submitted to this Court did not contain any reference to an allocation of punitive damages between the property damage claims and the medical monitoring claims. Second, and most importantly, the question was asked because one of DuPont's assignments of error concerned whether or not punitive damages could be awarded for medical monitoring.

Counsel for Plaintiffs informed this Court, in response to our direct question, that the trial court allocated forty percent of the punitive damages for medical monitoring. After counsel for Plaintiffs informed this Court of how the trial court ruled on the issue of the allocation of punitive damages, counsel for DuPont closed out its argument without challenging the representations made by Plaintiffs' counsel. That is, DuPont failed to inform the Court that it disagreed with Plaintiffs' counsel's response to our question.

In its petition for rehearing, DuPont contends, for the first time, that "[t]he Circuit Court made no such allocation[.]" Assuming that DuPont is correct in representing to this Court that the circuit court did not make such an allocation, well settled principles of appellate procedure indicate that "a rehearing on an appeal can be granted only for purposes of correcting errors that the court has made, and the party seeking a rehearing cannot assign as error points or arguments that could have been raised before the appeal was resolved." In re Leslie H., 861 N.E.2d 1010, 1015 (Ill. App. Ct. 2006).³ See also SouthTrust Bank v. Copeland One, L.L.C., 886 So. 2d 38, 43 (Ala. 2003) ("Matters not argued . . . on original submission cannot be raised for the first time on application for rehearing."); Pacific Bell Wireless, LLC v. Public Utils. Comm'n of California, 140 Cal. App. 4th 718, 746, 44 Cal. Rptr. 3d 733, 754 (Cal. Ct. App. 2006) ("Arguments cannot be raised for the first time in a petition for rehearing."); Massey v. Conseco Servs., L.L.C., 886 N.E.2d 581, 582 (Ind. Ct. App. 2008) ("[On petition for rehearing] Massey waived this issue by failing to raise it on appeal."); Kinzenbaw v. Director of Revenue, 62 S.W.3d 49, 54 n.9 (Mo. 2001) ("Issues raised for the first time in a motion for rehearing will not be considered."). It has been correctly noted that "[t]he purpose of a petition for rehearing is not to present points which lawyers for the losing parties have overlooked[.]" Kennedy v. South Carolina Ret. Sys., 564 S.E.2d 322, 322 (S.C. 2001) (quotations and citation omitted).

"There are sound reasons for requiring a party to present all known arguments or claims to an appellate court before its decision is rendered." Northern Indiana Commuter Transp. Dist. v. Chicago SouthShore & S. Bend R.R., 685 N.E.2d 680, 687 (Ind. 1997). "One of the reasons for the rule is to prevent a party from appealing in a piecemeal manner. The rule also keeps a party from shifting its position. The basic purposes are to promote the finality of appellate courts' decisions and to conserve judicial time." Kentner v. Gulf Ins. Co., 689 P.2d 955, 957 (Or. 1984) (citations omitted). See also OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d 726, 747 (Tex. Ct. App. 2007) ("A motion for rehearing does not afford a party an opportunity to raise new issues after the case has been briefed, argued, and decided on other grounds, unless the error is fundamental. Fundamental error exists in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution[.]") (internal quotations and citations omitted). As more fully discussed in the next section, as a result of DuPont's silence during oral argument, it has waived its right to contest the issue of an allocation of punitive damages by the circuit court. See Butch v. State Comp. Comm'r, 112 W. Va. 493, 498, 165 S.E. 672, 674 (1932) ("The petition for rehearing now states the fact to be that the letter containing the protest was actually filed with the commissioner on April 28th. We cannot now consider a different state of facts from what was shown on the submission of the case.").

In addition to contending that the circuit court did not make an allocation for punitive damages, DuPont argues that this Court could not consider the statements of Plaintiffs' counsel during oral argument because "statements by counsel during argument do not constitute evidence." This contention by DuPont shows a lack of understanding of the purpose of appellate oral argument and the discretionary weight that is given to argument of counsel.

"Oral arguments before the appellate court are intended to aid the court in understanding the points raised and discussed in the briefs filed by the parties." Security Dev. & Inv. Co. v. Ben O'Callaghan Co., 188 S.E.2d 238, 244 (Ga. Ct. App. 1972) (quotations and citation omitted). "Indeed, courts routinely rely on counsel's statements during oral argument and rely on these representations when deciding cases." Matthews v. State, 165 S.W.3d 104, 110 (Tex. Ct. App. 2005) (quotations and citation omitted). Moreover, "[o]ral concessions developed during oral argument before [an appellate] court may properly be used even where the trial record is silent." Staples v. Palten, 571 A.2d 97, 101 n.1 (Conn. 1990). See also Village Saloon, Inc. v. Division of Alcoholic Beverages & Tobacco, Dep't. of Bus. Regulation, 463 So. 2d 278, 281 (Fla. Dist. Ct. App. 1984) ("Though the record is silent on the matter, it was represented during oral argument that a preliminary hearing was held as scheduled on November 16, without achieving any satisfactory resolution of the charges."); Hoover v. Allied Van Lines, Inc., 2005 WL 1277952, at *2 (Kan. Ct. App. 2005) ("As the record on appeal was silent as to why the district court relied upon § 14704(e) rather than § 14708(d), we asked the parties during oral argument for an explanation. Neither party had an explanation."); State v. Hunter, 1984 WL 3984, at *1 (Ohio Ct. App. 1984) ("During oral argument on appeal counsel did indicate that an in camera inspection of the tape was had, although the record is silent on this point.").

Although it is rare, this Court has disposed of cases based upon representations made by the parties during oral argument, which are not contained in the record. A case on point is State v. Board of Canvassers of Nicholas County, 106 W. Va. 544, 146 S.E. 378 (1929). The decision in Smith involved a petition for a writ of mandamus. The petition was filed by Ray Lambert seeking to have this Court compel the board of canvassers to reconvene and to properly count certain ballots, and to declare him the winner of a majority of all the votes cast for the office of sheriff of Nicholas County. During oral argument in the case, the parties stated that this Court should assume that Mr. Lambert received 3,733 votes and that his opponent received 3,745 votes, exclusive of ballots to which there were objections. Based upon the representations the parties made at oral argument, this Court issued the requested writ. The opinion in Smith concluded that, based upon "the figures hereinbefore agreed to [at oral argument], we find that [the opponent] has received a total of 3,795 votes and [Mr.] Lambert 3,795 votes." Smith, 106 W. Va. at 554, 146 S.E. at 383. After this Court issued the opinion in Smith, Mr. Lambert filed a petition for rehearing. The basis for the rehearing was that Mr. Lambert "discovered that his counsel were mistaken when the...