State ex rel. Leung v. Sanders
| Decision Date | 02 July 2003 |
| Docket Number | No. 31319.,31319. |
| Citation | 213 W.Va. 569,584 S.E.2d 203 |
| Parties | STATE of West Virginia ex rel. Albert LEUNG, M.D., Petitioner, v. Honorable David H. SANDERS, Judge of the Circuit Court of Berkeley County, and Christel Y. Schell, Respondents. |
| Court | West Virginia Supreme Court |
David Z. Myerberg, Esq., Charles J. Crooks, Esq., Jackson & Kelly, PLLC, Morgantown, for the Petitioner.
D. Michael Burke, Esq., Burke, Schultz, Harman & Jenkinson, Martinsburg, Barry J. Nace, Esq., Paulson & Nace, Washington, DC, for the Respondents.
Albert Leung, M.D. (hereinafter "Dr. Leung"), seeks an original jurisdiction writ of prohibition to prevent the respondent Judge, the Honorable David H. Sanders, Judge of the Circuit Court of Berkeley County (hereinafter "the circuit court"), from enforcing an order denying Dr. Leung leave to file a third-party complaint in the underlying medical malpractice action. Having reviewed the petition for prohibition and the supporting memorandum of law, the response, and all the accompanying exhibits, we find the circuit court exceeded its legitimate powers by committing clear legal error. Consequently, we grant the writ as moulded.
On February 22, 2002, respondent Christel Y. Schell (hereinafter "Ms. Schell") filed a medical malpractice complaint against, among a number of other individuals, Dr. Leung. On August 5, 2002, the circuit court entered a scheduling order. The scheduling order failed to set forth a time limit to join other parties. The order did, however, provide for a May 20, 2003, trial date; a discovery deadline of February 20, 2003; and witness disclosures by March 20, 2003, for Ms. Schell and by April 20, 2003, for the defendants.
On or about March 21, 2003, Dr. Leung filed a motion for leave to file a third-party complaint against Dr. Wanger and Shenandoah Valley Medical Systems, Inc. (hereinafter "Shenandoah").1 This third-party complaint alleged that Dr. Wanger was an employee of Shenandoah and that Drs. Leung and Wanger had an agreement whereby Dr. Wanger would provide medical care to Dr. Leung's patients when Dr. Leung was unavailable. The complaint also alleged that Dr. Wanger saw Ms. Schell in Dr. Leung's absence and provided medical care to her, which included testing and diagnosis upon which Dr. Leung relied in subsequently treating Ms. Schell. Dr. Leung further alleged that if he would be found liable, then all or some of the liability would be the result of Dr. Wanger and/or Shenandoah's negligence. Thus, Dr. Leung sought to make Dr. Wanger and Shenandoah third-party defendants for indemnification and/or contribution.
The parties before this Court agree that at the time Dr. Leung filed his motion for leave to bring in Dr. Wanger and Shenandoah, discovery was not yet complete. According to Dr. Leung, he had yet to take Ms. Schell's deposition, and Ms. Schell confirms that the deposition was continued at least once prior to the discovery deadline. Further, several of the expert witnesses in the case had not been deposed at the time of Dr. Leung's motion.
The circuit court refused permission to file the third-party complaint by order entered April 25, 2003. In denying the motion, the circuit court found: (1) the filing of the motion barely two months before the trial date was untimely and prejudicial to Ms. Schell; (2) the third-party complaint failed to contain any allegations of negligence or basis of liability against Dr. Wanger so that leave to file could not properly be had; and, (3) Dr. Leung failed to comply with the screening requirements of the West Virginia Medical Professional Liability Act in that he failed to provide a screening certificate of merit. W. Va.Code § 55-7B-6(b) (2001) (Supp.2002). Dr. Leung then filed a petition for a writ of prohibition with this Court. We issued a rule to show cause on May 13, 2003.
Pursuant to West Virginia Code § 53-1-1 (1923) (Repl.Vol.2000), "[t]he writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers." Dr. Leung does not dispute that the circuit court enjoyed jurisdiction over this case; rather, he contends that it exceeded its legitimate powers in declining to allow him to file his third-party complaint. The standard in such a case is found 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 oft 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.
Dr. Leung finds fault with all three bases upon which the circuit court denied him permission to file his third-party complaint against Dr. Wanger and Shenandoah.2 We find that the circuit court exceeded its legitimate powers in holding Dr. Leung's motion untimely and in finding that Dr. Leung's proposed third-party complaint against Dr. Wanger and Shenandoah was inadequate. We further conclude that Ms. Schell lacked standing to invoke the certificate of merit requirement contained in the West Virginia Medical Professional Liability Act, W. Va. Code § 55-7B-6(b) (2001) (2002 Supp.) on behalf of Dr. Wanger and Shenandoah. Thus, we grant the writ as moulded.
In the absence of a scheduling order containing a deadline to join additional parties as required by Rule 16 of the West Virginia Rules of Civil Procedure, the timeliness of a motion to file a third-party complaint is analyzed under Rule 14 of the West Virginia Rules of Civil Procedure. West Virginia Rule of Civil Procedure 16(b)(1) provides, in pertinent part, that "[e]xcept in actions exempted by the Supreme Court of Appeals," a circuit court "shall after consulting with the attorneys for the parties ... enter a scheduling order that limits the time: To join other parties and to amend the pleadings...." Thus, Rule 16(b) directs that, "[a]s long as the case is not exempted ... the court must issue a written scheduling order ...." Fed.R.Civ.P. 16 advisory committee's note (1983 amendment).3 In other words, "[u]nder Rule 16(b)(1) it is mandatory that a scheduling order fix dates for joining other parties and to amend the pleadings." Franklin D. Cleckley et al., Litigation Handbook on West Virginia Rules of Civil Procedure § 16(b)(1)[2], at 357 (2002). Notwithstanding that Rule 16(b)(1) is mandatory, the scheduling order lacked a deadline for adding parties.
Because of the scheduling order's failure to include a cut-off date to add additional parties, Dr. Leung asserts he We disagree with this characterization.
The scheduling order in this case simply did not contain a deadline for joining other parties. In such a circumstance, we cannot ignore the obvious and indulge in the fiction that a deadline was set; rather, we must take the facts as they actually existed and proceed upon the recognition that no Rule 16(b)(1) deadline governing the joining of additional parties was included in the scheduling order in this case.4 Thus, we think that the proper approach is to examine the issue under West Virginia Rule of Civil Procedure 14, the Rule that "lays out the guidelines under which defendants and plaintiffs may bring third parties into the action." Cleckley, supra, § 14[1], at 323. Cf. Campania Mgt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 849 n. 1 (7th Cir.2002)
().5
Rule 14(a) of the West Virginia Rules of Civil Procedure provides, in pertinent part:
At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff. The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer. Otherwise the third-party plaintiff must obtain leave on motion upon notice to all parties to the action.
In short, Rule 14(a) provides that before a third-party may be impleaded6 by a first-party defendant, a first-party defendant must file a motion for leave to bring in a third-party defendant, unless the motion is made...
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