State ex rel. Frazier & Oxley v. Cummings

• Citation: 214 W.Va. 802,591 S.E.2d 728
• Decision Date: 15 October 2003
• Docket Number: No. 31391.,31391.
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia ex rel. Frazier & Oxley, L.C., a West Virginia Legal Corporation, and William M. Frazier, Individually, Petitioners, v. The Honorable John L. CUMMINGS, Judge of the Circuit Court of Cabell County, West Virginia and St. James Management Company, L.L.C., a West Virginia Limited Liability Company, Respondents.

591 S.E.2d 728

214 W.Va. 802

STATE of West Virginia ex rel. Frazier & Oxley, L.C., a West Virginia Legal Corporation, and William M. Frazier, Individually, Petitioners, v. The Honorable John L. CUMMINGS, Judge of the Circuit Court of Cabell County, West Virginia and St. James Management Company, L.L.C., a West Virginia Limited Liability Company, Respondents.

No. 31391.

Supreme Court of Appeals of West Virginia.

Submitted September 9, 2003.

Decided October 15, 2003.

Dissenting Opinion of Justice Albright December 8, 2003.

Dissenting Opinion of Justice McGraw December 10, 2003.

Concurring Opinion of Justice Maynard January 6, 2004.

Thomas E. Scarr, Michael A. Frye, Michael E. Estep, Jenkins Fenstermaker, P.L.L.C., Huntington, for Petitioners.

Daniel T. Yon, Todd A. Biddle, Bailes, Craig & Yon, Huntington, for Respondent.

Ancil G. Ramey, Michelle E. Pizak, Steptoe & Johnson, P.L.L.C., Charleston, for City National Bank. DAVIS, Justice.

Frazier & Oxley, L.C. and William M. Frazier (hereinafter "Frazier and Oxley") seek an original jurisdiction writ to prohibit Respondent Judge, the Honorable John L. Cummings of the Circuit Court of Cabell County, from enforcing his order of April 1, 2003, granting the Respondent, St. James Management Company (hereinafter "St. James") leave to file an amended complaint against Frazier & Oxley and City National Bank Corp. (hereinafter "City National"). Having reviewed the petition for prohibition and the supporting memorandum of law, the responses, and all the accompanying exhibits, we herein grant the writ.

I. FACTUAL AND PROCEDURAL HISTORY

This original jurisdiction proceeding grows out of real estate litigation concerning space Frazier & Oxley occupies in the St. James Building in Huntington. This is the second original jurisdiction proceeding to come before us due to the St. James litigation. In State ex rel. Frazier & Oxley v. Cummings, 212 W.Va. 275, 569 S.E.2d 796 (2002) ("Frazier & Oxley I"), we granted Frazier & Oxley a writ of prohibition against the circuit court prohibiting it from enforcing a partial summary judgment granted to St. James. We need not repeat the detailed factual history found in Frazier & Oxley I. We will simply review the important aspects of the underlying dispute and then detail the facts that arose after Frazier & Oxley I pertinent to this prohibition proceeding. In 1980 St. James's predecessor in interest, First Huntington Building Corporation, entered into a lease agreement (hereinafter "the prime lease") with the predecessor in interest to City National, Old National Bank of Huntington.¹ In 1987, Frazier and Oxley subleased the St. James Building's mezzanine. After City National took over the St. James Building, a dispute arose between St. James and Frazier & Oxley concerning, among other things, the sublease. The two parties reached a settlement signed on November 9, 1999. Under the pertinent settlement terms, the term of sublease was "concurrent with the term of the master/primary lease .... and shall expire ... upon the expiration or termination of the master/primary lease ...."

In the fall of 2000, City National approached St. James seeking to end the prime lease. On September 27, 2000, City National and St. James entered into a lease termination agreement. Under this termination agreement, City National surrendered to St. James the main banking facility located in the St. James Building. In July 2001, Frazier & Oxley was informed that the sublease terminated as a result of the termination of the prime lease. Frazier & Oxley, however, remained on the premises. By letter of October 26, 2001, St. James provided official notice to Frazier & Oxley to vacate. After Frazier & Oxley refused to vacate, St. James sued seeking immediate possession of the mezzanine and damages. Frazier & Oxley subsequently filed a third-party complaint against City National.

The circuit court then granted St. James and City National a partial summary judgment by ordering Frazier and Oxley to vacate the premises. Frazier & Oxley sought a prohibition which we granted, holding that the rights of a subtenant depend on whether the primary lease was "terminated," which would also terminate the sublease, or was "surrendered," which would not affect the sublease. Frazier & Oxley I, 212 W.Va. at 281, 569 S.E.2d at 802. At that point in Frazier & Oxley I, we observed

[t]his would be the end of our inquiry were it not for the settlement agreement which was executed between City National and Frazier & Oxley. Absent that agreement, we would simply reverse the circuit court's award of summary judgment in favor of City National and St. James and remand for a factual determination of whether a surrender of the prime lease occurred.

Id., at 281, 569 S.E.2d at 802 (footnote omitted). We then recognized that if a subtenant consents to the surrender, the consented to surrender would terminate the sublease, id. at 281-82, 569 S.E.2d at 802-03, but found that the settlement agreement between Frazier & Oxley and City National could not be construed as Frazier and Oxley's consent to a surrender. Id. at 283, 569 S.E.2d at 804. Thus, we granted the writ of prohibition. Id., at 284, 569 S.E.2d at 805. Having detailed the history of this case to the issuance of our opinion in Frazier & Oxley I, we now discuss the pertinent facts as they have arisen since Frazier & Oxley I.

After this Court granted the requested writ, the parties returned to the circuit court and conducted at least some additional discovery. Part of the discovery included the partial deposition of William Frazier which was conducted on November 26, 2002. It also appears that at some point Frazier & Oxley and City National settled their suit. According to City National, "Frazier & Oxley has agreed to litigate th[e] matter without making third-party claims against City National."

On or about February 3, 2003, St. James filed a motion to amend their complaint under Rule 15(a) of the West Virginia Rules of Civil Procedure to add a claim that the Frazier & Oxley sublease was void against it as it was not recorded.² St. James's motion also sought to add City National as a first-party defendant asserting that City National breached its duty to disclose the sublease and that it breached its contract with St. James. Frazier & Oxley objected to the motion arguing that: 1) amendment of the complaint is futile since St. James was on notice of Frazier & Oxley's possession of the mezzanine; 2) St. James failed to show "very compelling circumstances" required to justify amendment following our adverse ruling on St. James's original theory; 3) St. James factually and judicially admitted the validity of the sublease and was estopped from denying its validity; and, 4) the law of the case doctrine barred St. James's amended complaint. By order of April 1, 2003, the circuit court allowed the amendment.³ It is from this order that Frazier & Oxley and City National seek extraordinary relief.⁴

II. GROUNDS FOR ISSUING THE WRIT

A writ of prohibition lies "as a matter of right in all cases of usurpation and abuse of power, when the inferior court has no jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers." W. Va.Code § 53-1-1 (2000 Repl.Vol.). Frazier & Oxley and City National do not dispute that the circuit court had jurisdiction. They argue that the circuit court exceeded its legitimate powers in allowing St. James to amend its complaint. The governing standard in such a case is set forth in syllabus point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996):

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an often repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

With due regard for this standard, we proceed to discuss the substantive issues raised in connection with this request for a writ of prohibition.

III. DISCUSSION

Both Frazier & Oxley and City National Bank raise a number of grounds supporting their claims that the circuit court abused its discretion in making a clear error of law in allowing St. James to amend its complaint. We find it unnecessary to analyze all the grounds presented. Rather, we issue the writ on behalf of Frazier & Oxley because the circuit court ignored the mandate of this Court in Frazier & Oxley I by allowing St. James to amend its complaint in direct contravention of our limited remand in Frazier & Oxley I.

Frazier & Oxley assert that the circuit court committed clear legal error in permitting St. James to amend its complaint because such amendment would violate the law of the case doctrine. We agree with Frazier & Oxley and take the opportunity this case presents us to address the law of the case doctrine.

The law of the case doctrine "generally prohibits reconsideration of issues which have been decided in a prior appeal in the same case, provided that there has been no material changes in the facts since the prior...