Phillips v. Stear, No. 15–0011.

CourtSupreme Court of West Virginia
Writing for the CourtChief Justice, KETCHUM
Citation783 S.E.2d 567
Parties Gerald A. PHILLIPS and Teresa L. Phillips, Petitioners, v. Joshua D. STEAR, a resident of West Virginia, and State Farm Mutual Automobile Insurance Company, a foreign company, Respondents.
Decision Date02 March 2016
Docket NumberNo. 15–0011.

783 S.E.2d 567

Gerald A. PHILLIPS and Teresa L. Phillips, Petitioners,
v.
Joshua D. STEAR, a resident of West Virginia, and State Farm Mutual Automobile Insurance Company, a foreign company, Respondents.

No. 15–0011.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 2016.
Decided March 2, 2016.


C. Paul Estep, Esq., Estep & Shaffer, L.C., Kingwood, WV, for the Petitioners.

G. Thomas Smith, Esq., Afton L. Aman, Esq., Smith, McMunn & Glover, PLLC, Clarksburg, WV, for the Respondents.

Chief Justice, KETCHUM :

In this appeal from the Circuit Court of Lewis County, a plaintiff asserts that a defendant engaged in fraud, misrepresentations, or misconduct to obtain a favorable jury verdict. Specifically, the plaintiff contends the defendant concealed, or failed to reveal, evidence specifically asked for in discovery, and then presented a defense at trial directly contrary to the undisclosed evidence. The plaintiff moved to set aside the judgment entered on the jury's verdict under Rule 60(b)(3) of the West Virginia Rules of Civil Procedure.

The circuit court denied the plaintiff's motion to set aside the judgment. As we discuss below, we find that the circuit court abused its discretion and should have granted the motion. The defendant's clear misrepresentation and misconduct in discovery precluded the plaintiff from fully and fairly preparing for and rebutting the defendant's claims at trial, and the resulting verdict was unfairly obtained. We vacate the circuit court's judgment order, and remand the case for a new trial.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff is Gerald A. Phillips, a commercial truck driver. Phillips's complaint alleges that the defendant, Joshua D. Stear, carelessly engaged in an act of "road rage" on Interstate 79. Phillips contends that late in the afternoon of December 3, 2010, Stear negligently veered in front of Phillips's truck and slammed on his brakes. Phillips swerved to avoid Stear, wrecked and was injured. Stear then fled the scene, but a witness followed Stear and obtained his license plate number. A State Trooper later cited Stear for making an improper lane change, and Stear pleaded no contest to the citation.

Stear's liability insurance carrier settled for its policy limits. Thereafter, the underinsured motorist carrier on Phillips's truck (State Farm Mutual Automobile Insurance Company) took over the defense in the name of Stear. Phillip's lawsuit was tried to a jury between March 25 and March 27, 2014.

Stear's defense at trial was that he did not cause the accident and was unaware of the accident until he was approached by a State Trooper ten days later. Stear conceded that he might have been driving on the same stretch of interstate highway as Phillips at the time of the accident, while making his daily two-hour drive home from work. However, he argued his vehicle was mistakenly identified and he was falsely accused.

Although Stear claimed he was mistakenly identified, the evidence at trial showed the following: Phillips testified he wrecked swerving to avoid a maroon-colored late model Chevrolet sedan with one occupant who "gave him the finger." A second witness testified at trial that the accident was caused by a "reddish or maroon color" General Motors vehicle with several occupants, one of whom "sort of flipped the bird or something." A third witness, however, saw Phillips wreck avoiding "a maroonish color Chevy" (with one occupant, a man with short hair) before the vehicle sped away. The third witness gave chase, followed the vehicle and called 911. The third witness gave the 911 operator the vehicle's license plate number, identifying it as a "Chevy Malibu," but then corrected herself and identified it as a "maroon Chevy Impala."

Using the license plate number, the State Police identified the vehicle that caused the

783 S.E.2d 573

wreck as a 2008 Chevrolet Impala (with a "red jewel tint" color) owned by Stear.

In addition to asserting mistaken identity, Stear introduced his character into evidence. Without any objection by the plaintiff's lawyer, Stear essentially testified that he was by nature a careful driver and that slamming on his brakes in front of another driver would be inconsistent with his driving habits. Stear asserted (again, without objection) that he not only observed speed limits, but that he routinely drove slower than the speed limit to save gasoline. To further support this claim, defense counsel (without any objection from plaintiff's counsel) asked Stear about his lack of traffic citations:

Q. You, traveling I–79 five or six days a week, must have had a lot of speeding tickets.

A. Not one.

Q. Not one? ...

A. Yes, sir.

Q. When's the last time you had a speeding ticket?

A. Maybe 2006.

On re-examination, counsel for the plaintiff confirmed Stear's testimony that he'd had no recent traffic citations:

Q. No speeding tickets at all?

A. Not since, I'd say, probably 2006, to the best of my recollection.

Following that answer, plaintiff's counsel tried to impeach Stear and asked him about a recent, August 2011, traffic citation for speeding.1 Stear said, "I don't recall the incident." Plaintiff's counsel then asked to approach the witness with a report showing the traffic citation.2

Acting sua sponte, the circuit court interrupted counsel's questioning and demanded to see the plaintiff's traffic citation report. The circuit court lectured plaintiff's counsel that he could "be in trouble" for using the traffic citation report because "these are for law enforcement purposes" and "are not certified records of any kind of conviction." At the request of defense counsel, the circuit court instructed the jury that plaintiff's traffic citation report was "not an acceptable document." The circuit court also told the jury to disregard plaintiff's counsel's suggestion that he had any report purporting to show Stear had been convicted of any traffic offense. The judge stated to plaintiff's counsel before the jury, "you can ask him the question if he had a speeding ticket ... and he's denying that, so I think that's about as far as we can go with it."

At the close of trial, the jury returned a verdict that Phillips had failed to prove by a preponderance of the evidence that Stear negligently caused the accident. The circuit court entered a judgment order on the jury's verdict on April 10, 2014.

Plaintiff Phillips timely filed a motion, pursuant to Rule 60(b)(3) of the Rules of Civil Procedure seeking relief from the judgment on the basis of "fraud ..., misrepresentation, or other misconduct of an adverse party [.]"3 Phillips alleged that Stear had lied about numerous traffic citations in both pre-trial discovery and at trial.

Specifically, Phillips pointed to Stear's September 2011 response to an interrogatory asking about his prior traffic citations. Stear's response admitted to only one prior citation from five years earlier, in 2006. However, Phillips produced with his motion a certified court document showing that six weeks before answering the interrogatory, in August 2011, Stear had been cited for speeding. Phillips produced another court document showing Stear was cited for reckless driving in 2001. Phillips also produced an

783 S.E.2d 574

affidavit from Stear's ex-wife attesting to four or five traffic citations between 2001 and 2006. She further attested to Stear having a "driving disagreement" with a commercial truck driver that resulted in a physical altercation during the same period.

Plaintiff Phillips argued that Stear's defense hinged on his testimony that speeding and unsafe driving were inconsistent with his driving habits. Additionally, Phillips asserted Stear gave fraudulent, perjurious testimony when he said he could only recall one prior traffic citation, from 2006. Because Stear concealed prior traffic citations during discovery, and misled the jury about prior traffic citations in his testimony, Phillips asserted that the verdict was unjust.

Defendant Stear responded to the plaintiff's assertions by arguing that his testimony about traffic citations was equivocal. Stear did not deny that he received a citation in 2011, only that he could not remember. When counsel asked when he last had a speeding ticket, Stear said, "Maybe 2006," "to the best of my recollection." And as for the 2001 conviction, Stear asserts he was never asked about it and forgot about it because it was so old.

In an order dated October 20, 2014, the circuit court denied Phillips's motion for relief from judgment. Interpreting Rule 60(b)(3), the circuit court found (with emphasis added) that the plaintiff was required to establish "intentional deception or misrepresentation" by the defendant to be successful. The circuit court found Phillips's evidence of traffic citations merely showed Stear was unable to recall his past citations, and ruled that "[a]n inability to recall does not indicate intentional deception or misrepresentation." The circuit court's order makes no mention of Stear's inaccurate answers to discovery, or its effect upon plaintiff's counsel's ability to effectively cross-examine Stear at trial.

The plaintiff now appeals the circuit court's order denying his Rule 60(b)(3) motion for relief from the final...

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4 practice notes
  • Brauner v. AHC of Boise, LLC, Docket No. 45980
    • United States
    • United States State Supreme Court of Idaho
    • 4 Febrero 2020
    ...Rule 60(b)(3) apart from fraud, and neither necessitates showing purposeful misconduct or malice." Phillips v. Stear , 236 W.Va. 702, 783 S.E.2d 567, 577 (2016). It appears that this Court has not had the opportunity to address misrepresentation or misconduct in relation to Rule 60(b)(3). W......
  • Robirds v. Robirds, Docket No. 48414
    • United States
    • United States State Supreme Court of Idaho
    • 26 Noviembre 2021
    ...a defense." Brauner v. AHC of Boise, LLC , 166 Idaho 398, ––––, 459 P.3d 1246, 1262 (2020) (quoting Phillips v. Stear , 236 W.Va. 702, 783 S.E. 2d 567, 580 (2016) ). "Misrepresentation and misconduct under Rule 60(b)(3) [or 809(3)] do not require proof of nefarious intent or purpose but can......
  • Brauner v. Ahc of Boise, LLC, Docket No. 45980
    • United States
    • Idaho Supreme Court
    • 4 Febrero 2020
    ...Rule 60(b)(3) apart from fraud, and neither necessitates showing purposeful misconduct or malice." Phillips v. Stear , 236 W.Va. 702, 783 S.E.2d 567, 577 (2016). It appears that this Court has not had the opportunity to address misrepresentation or misconduct in relation to Rule 60(b)(3). W......
  • Robirds v. Robirds, 48414
    • United States
    • United States State Supreme Court of Idaho
    • 26 Noviembre 2021
    ...claim or a defense." Brauner v. AHC of Boise, LLC, 166 Idaho 398,, 459 P.3d 1246, 1262 (2020) (quoting Phillips v. Stear, 263 W.Va. 702, 783 S.E.2d 567, 580 (2016)). "Misrepresentation and misconduct under Rule 60(b)(3) [or 809(3)] do not require proof of nefarious intent or purpose but can......
4 cases
  • Brauner v. AHC of Boise, LLC, Docket No. 45980
    • United States
    • United States State Supreme Court of Idaho
    • 4 Febrero 2020
    ...Rule 60(b)(3) apart from fraud, and neither necessitates showing purposeful misconduct or malice." Phillips v. Stear , 236 W.Va. 702, 783 S.E.2d 567, 577 (2016). It appears that this Court has not had the opportunity to address misrepresentation or misconduct in relation to Rule 60(b)(3). W......
  • Robirds v. Robirds, Docket No. 48414
    • United States
    • United States State Supreme Court of Idaho
    • 26 Noviembre 2021
    ...a defense." Brauner v. AHC of Boise, LLC , 166 Idaho 398, ––––, 459 P.3d 1246, 1262 (2020) (quoting Phillips v. Stear , 236 W.Va. 702, 783 S.E. 2d 567, 580 (2016) ). "Misrepresentation and misconduct under Rule 60(b)(3) [or 809(3)] do not require proof of nefarious intent or purpose but can......
  • Brauner v. Ahc of Boise, LLC, Docket No. 45980
    • United States
    • Idaho Supreme Court
    • 4 Febrero 2020
    ...Rule 60(b)(3) apart from fraud, and neither necessitates showing purposeful misconduct or malice." Phillips v. Stear , 236 W.Va. 702, 783 S.E.2d 567, 577 (2016). It appears that this Court has not had the opportunity to address misrepresentation or misconduct in relation to Rule 60(b)(3). W......
  • Robirds v. Robirds, 48414
    • United States
    • United States State Supreme Court of Idaho
    • 26 Noviembre 2021
    ...claim or a defense." Brauner v. AHC of Boise, LLC, 166 Idaho 398,, 459 P.3d 1246, 1262 (2020) (quoting Phillips v. Stear, 263 W.Va. 702, 783 S.E.2d 567, 580 (2016)). "Misrepresentation and misconduct under Rule 60(b)(3) [or 809(3)] do not require proof of nefarious intent or purpose but can......

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