Sisler v. Hawkins

CourtSupreme Court of West Virginia
Citation217 S.E.2d 60,158 W.Va. 1034
Decision Date29 July 1975
Docket NumberNo. 13515,13515
PartiesJohn SISLER v. Raymond E. HAWKINS et al.
Syllabus by the Court

1. 'The due process of law guaranteed by the State and Federal Constitutions, when applied to procedure in the courts of the land, requires both notice and the right to be heard.' Point 2, Syllabus, Simpson v. Stanton, 119 W.Va. 235 (193 S.E. 64).

2. Due process of law as guaranteed by the State and Federal Constitutions requires that a party be accorded the right to be present in person or by counsel during all trial proceedings.

3. A litigant has the right to represent himself without counsel if he knowingly and intelligently elects to do so.

4. While an expert witness may express an opinion based on facts which are in evidence, he may not base his opinion upon conclusions or inferences drawn by witnesses or other individuals.

5. 'The general rule with regard to proof of damages is that such proof cannot be sustained by mere speculation or conjecture.' Point 1, Syllabus, Spencer v. Steinbrecher, 152 W.Va. 490 (164 S.E.2d 710).

Brent E. Beveridge, Fairmont, for appellant.

SPROUSE, Justice:

This is an appeal by Victor Solomon, hereinafter referred to as appellant, from a judgment of the Circuit Court of Monongalia County in an action instituted by John Sisler, plaintiff, against Solomon and Raymond and Patricia Hawkins, defendants. The trial court overruled the appellant's motion to set aside the verdicts and vacate the judgments in favor of the plaintiff and Raymond Hawkins and Patricia Hawkins, defendants and cross-complainants, and to grant the appellant a new trial. No appearance on behalf of the plaintiff or cross-complainants was made on the appeal of this case.

The plaintiff instituted the action to recover monetary damages and to obtain a mandatory injunction requiring the removal of a landslide which obstructed a private road that provided access to the plaintiff's property. All of the parties to this action had an easement to use the private road. Raymond Hawkins and Patricia Hawkins filed a cross-claim against appellant Solomon, seeking damages for the obstruction of the road and the negligent use of the road by Solomon. The case was tried before the trial court without a jury.

At the beginning of the trial, counsel for the appellant, who had been retained by the appellant's insurance carrier, informed the court that several days before a dispute had arisen between counsel and the appellant. Counsel then moved to withdraw as counsel of record because of the appellant's alleged failure to cooperate in the preparation of his defense.

At that point, the appellant stood up and attempted to address the court. The court refused, however, to allow the appellant to speak and informed him that he should speak only through his attorney. When the appellant stated that he had no attorney and attempted to explain the difficulty with his insurance carrier's counsel, the court interrupted and informed the appellant that he should sit down.

After opening statements were made by counsel for the other parties, the appellant again attempted to address the court. The court informed the appellant that unless he sat down he would be held in contempt of court, and the trial proceeded.

During the direct examination of the plaintiff, the appellant attempted a third time to address the court. He stated that he was being denied the right to represent himself. At that time, the court held the appellant in contempt and ordered the deputy to remove him from the courtroom. He was placed in jail and the trial proceeded without him. The court did not rule on the counsel's motion to withdraw from the case until the completion of evidence. The attorney representing appellant's insurance carrier remained in the courtroom and cross-examined witnesses, although he did not present any evidence on behalf of the appellant.

It appears from the testimony at the trial that the appellant operated a commercial garbage dump at the end of a private road. In order to improve the maneuverability of large trucks which used this road to dump their garbage, the appellant attempted to widen the road with a bulldozer and a road grader. Moreover, the evidence reflected that many trucks had trouble backing in to dump the garbage because the road was so narrow. As a consequence, these trucks frequently struck the bank with their bumpers. It was clear from the evidence that the parties who had used the private road prior to the commencement of the appellant's commercial garbage dump operation had experienced no major difficulty with the hillside slipping onto the road.

The plaintiff also accused the cross-complainants, who lived immediately above the slide area, of negligently operating a septic tank which increased the flow of water on the hillside and contributed to the landslide.

The plaintiff testified that he lived next to the cross-complainants, and that the only ingress and egress to his home was over the private road. As a result of the landslide, he and his ex-wife, who was living with him, had suffered great inconvenience because they had to walk up the hill to their home. The plaintiff, a garbage collector, testified that, since he was unable to dump his garbage at the end of the road, he had to drive a considerable distance to reach another site. Based on an increased cost of $5 per trip, he testified he had lost approximately $750 as a result of the landslide. Mrs. Wilvia Norberg, the ex-wife of the plaintiff, testified that, as a result of the road being in disrepair, she tore the muffler off her car and sustained $132 in damages.

The only other witness for the plaintiff was Dr. Van Eck, a professor of soils at West Virginia University. He testified that on his first visit to the site, he concluded that the slide occurred primarily because of the improper use of heavier pipe which was installed by the cross-complainants in their septic system. He stated that this caused a considerable amount of water to flow through the hillside. According to his testimony, he was later informed by the Health Department that heavier pipe had not been used. As a result of this information, he again visited the site and determined that the slide was caused by disturbances at the lower end of the hillside. He stated that his investigation on the second visit showed less water flowing from the hillside than there had been before the new septic system had been installed.

The cross-complainants testified that they had spent $1,295.96 grading another road to their property. In addition to this expense, Raymond Hawkins testified that he thought he had been damaged approximately $2,000 as a result of the inconvenience caused by the closing of the road.

The trial court made the following findings of fact: The plaintiff and cross-complainants were entitled to the use of the easement; the road was blocked by earth slippage; the cross-complainants were not negligent in their installation of their septic system; the slide was caused solely by the acts of the appellant in altering the route of the private road and in allowing others to use the private road in an unreasonable manner which diminished the lateral support of the hillside and caused it to slide.


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24 cases
  • State v. Byers
    • United States
    • Supreme Court of West Virginia
    • June 14, 2022
    ...a party be accorded the right to be present in person or by counsel during all trial proceedings."15 Syl. pt. 2, Sisler v. Hawkins , 158 W. Va. 1034, 217 S.E.2d 60 (1975). See also State v. Allen , 193 W. Va. 172, 175, 455 S.E.2d 541, 544 (1994) ("[D]ue process of law under the Federal Cons......
  • Stone v. United Engineering, a Div. of Wean, Inc., 23101
    • United States
    • Supreme Court of West Virginia
    • July 8, 1996 sustained by mere speculation or conjecture.' Point 1, Syllabus, Spencer v. Steinbrecher, 152 W.Va. 490, ." Syl. Pt. 5, Sisler v. Hawkins, 158 W.Va. 1034, 217 S.E.2d 60 (1975). 7. " 'When the illegal part of the damages ascertained by the verdict of a jury is clearly distinguishable from......
  • Bower v. Westinghouse Elec. Corp., 25338.
    • United States
    • Supreme Court of West Virginia
    • July 19, 1999
    ...432 rule that "`proof of damages ... cannot be sustained by mere speculation or conjecture.' " Syl. pt. 5, in part, Sisler v. Hawkins, 158 W.Va. 1034, 217 S.E.2d 60 (1975) (quoting syl. pt. 1, Spencer v. Steinbrecher, 152 W.Va. 490, 164 S.E.2d 710 (1968)). Thus, as the Court stated in sylla......
  • State ex rel. Tucker v. Div. Of Labor, 33809.
    • United States
    • Supreme Court of West Virginia
    • June 26, 2008
    ...the right to litigate an issue central to a statutory violation or deprivation of a property interest"); Syl. pt. 1, Sisler v. Hawkins, 158 W.Va. 1034, 217 S.E.2d 60 (1975) ("`The due process of law guaranteed by the State and Federal Constitutions, when applied to procedure in the courts o......
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