State ex rel. Smith v. Maynard

• Decision Date: 18 November 1994
• Docket Number: No. 22494,22494
• Citation: 454 S.E.2d 46,193 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Charles S. SMITH, Relator, v. Honorable Elliott E. MAYNARD, Special Judge of the Circuit Court of Kanawha County, and Cleve Benedict, Respondents.

Page 46

454 S.E.2d 46

193 W.Va. 1

STATE of West Virginia ex rel. Charles S. SMITH, Relator, v. Honorable Elliott E. MAYNARD, Special Judge of the Circuit Court of Kanawha County, and Cleve Benedict, Respondents.

No. 22494.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 1, 1994.

Decided Nov. 18, 1994.

[193 W.Va. 2] Syllabus by the Court

1. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

2. If suit is brought in the county where the cause of action arose and if none of the defendants reside in that county, W.Va.Code, 56-1-1(b) (1986), permits a defendant to move the circuit court to transfer the case to a county wherein one or more of the defendants reside. For the circuit court to grant the motion, a defendant must demonstrate that the proposed county would better afford convenience to the parties litigant and the witnesses likely to be called, and that the ends of justice would be better served by such change.

3. W.Va.Code, 56-1-1(b) (1986), exclusively controls a transfer decision where its prerequisites have been met; namely, the forum selected is where the cause of action arose, and the defendant resides in another county and requests the case be transferred to that county.

4. Where W.Va.Code, 56-1-1(b) (1986), applies, its explicit provisions render inapplicable the doctrine of forum non conveniens. As a consequence, to the extent that the West Virginia doctrine of forum non conveniens has survived this new statutory enactment, it applies only where W.Va.Code, 56-1-1(b) (1986), does not apply.

5. By enacting W.Va.Code, 56-1-1(b) (1986), the legislature granted to the circuit courts of this State broader discretion than was permissible under the old rule of forum non conveniens.

6. Under W.Va.Code, 56-1-1(b) (1986), the plaintiff's choice of forum is no longer the dominant factor that it was prior to the adoption of this section.

7. Where a circuit court does not abuse its discretion in transferring cases under W.Va.Code, 56-1-1(b) (1986), this Court will not prohibit such transfer.

8. In order for this Court to review a circuit court's decision under the factors listed under W.Va.Code, 56-1-1(b) (1986), the circuit court must provide a sufficiently detailed record that shows the basis for its decision.

Joseph R. Goodwin, Goodwin & Goodwin, Charleston, Rebecca A. Baitty, Lutz, Webb, Partridge, Bobo & Baitty, Sarasota, FL, for the relator.

Michael W. Carey, Phillip B. Scott, Pamela C. Deem, Carey, Hill & Scott, Charleston, for the respondent Cleve Benedict.

CLECKLEY, Justice:

In this original proceeding for a writ of prohibition, we are asked to determine whether the respondent judge, the Honorable Elliott E. Maynard, of the Circuit Court of Mingo County, erred in transferring a civil action by order dated June 23, 1994, from Mingo to Kanawha County. The relator, Charles S. Smith, argues that, if we find the civil action properly was transferred to Kanawha County, it was error to administratively assign the respondent judge to sit as a Special Judge of the Circuit Court of Kanawha County to preside over the action.

I. FACTS

The relator contends that the underlying civil action was filed on September 8, 1993, in the Circuit Court of Mingo County, against the defendant below and a respondent herein, Cleve Benedict. The complaint alleges The relator asserts that, at a proceeding held before the Circuit Court of Mingo County on March 7, 1994, the respondent judge sua sponte raised the issue of whether Mingo County was the proper forum for the litigation. ² After this proceeding, on March 24, 1994, the defendant filed a motion with the Mingo County Circuit Court to transfer the case to Kanawha County.

                [193 W.Va. 3] that the defendant made libelous statements against the relator in a series of commercials that were broadcast in Mingo County and throughout the State of West Virginia.  The commercials were a part of a political campaign initiated by the defendant in his bid to unseat the incumbent governor, the Honorable Gaston Caperton, in the 1992 gubernatorial race. 1  At the time the commercials were broadcast, the relator was the Chairman of the State Democratic Party and a partner in an accounting firm
                

The respondent judge held a hearing on the motion on May 16, 1994. At this hearing, the respondent judge called the case a "hot potato," but, in essence, said that in spite of the nature of the case, the transfer issue must be evaluated on the facts. Upon reviewing the facts, the respondent judge concluded that he was unaware of any witnesses living in Mingo County and it was much more convenient for the ones he was aware of to appear in Kanawha County. In addition, the respondent judge found that none of the parties live in Mingo County. The relator resides in Fayette County, which is contiguous to Kanawha County, and his principal place of business is in Kanawha County. The defendant resides in Greenbrier County, and he maintains that the Circuit Court of Kanawha County is over one hour closer to where he lives than is the Circuit Court of Mingo County.

Moreover, the respondent judge found that it was a five-hour round trip from Kanawha County to Mingo County, and all the lawyers practice in Kanawha County. The respondent judge stated that Kanawha County would be less expensive to the parties. The respondent judge concluded "[c]onsidering every factor in this case, [Kanawha County] would be a more convenient forum, ... the defendant has shown good cause for a transfer of this case.... There were commercials that were complained of that were broadcast in this county and were seen by residents of this county, so there is a nexus here, but it is a slight nexus."

The relator's counsel sent a letter dated May 27, 1994, to the respondent judge to make the relator's position clear that he opposed the transfer. By order dated June 23, 1994, the respondent judge directed the civil action be transferred from the Circuit Court By letter dated June 24, 1994, the respondent judge wrote the Chief Justice of this Court, the Honorable William T. Brotherton, Jr., requesting a determination of whether the transfer of the case to Kanawha County was appropriate and whether he should "continue to preside over the litigation" in Kanawha County. An administrative order from this Court was entered on July 5, 1994, whereas upon review, the Chief Justice affirmed the decision to transfer the case, and the Chief Justice determined that the respondent judge should continue to preside over the matter. ³ The relator then filed a petition for a writ of prohibition with this Court on September 12, 1994.

[193 W.Va. 4] of Mingo County to the Circuit Court of Kanawha County.

II. CRITERIA FOR AWARDING A WRIT OF PROHIBITION

Initially, the relator asserts that a writ of prohibition is the appropriate method to challenge the transfer. In Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979), we addressed when a rule to show cause for a writ of prohibition should be awarded. We said in Syllabus Point 1:

"In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance."

In Hinkle, we concluded that a writ of prohibition was an appropriate method to challenge the trial court's decision to transfer several related civil actions from Wood County to an adjacent county where other related actions were pending. The petitioners argued that they were entitled to their choice of forum and they believed a Wood County jury would give them a higher award. Considering the petitioners' argument of a higher award as true, we found the petitioners' remedy on appeal would be "wholly theoretical and not at all practical." 164 W.Va. at 120, 262 S.E.2d at 749. We explained that when lawyers receive a good award in a case, few of them are willing to risk losing the award in hopes of getting a better one. 164 W.Va. at 120, 262 S.E.2d at 749.

Ultimately, in Hinkle, we decided that, in spite of the petitioners' choice of forum, the transfer was appropriate because the disadvantage to the petitioners was speculative "while the advantages of consolidation in terms of both economy and consistency" of transferring the actions were substantial. 164 W.Va. at 125, 262 S.E.2d at 751. As to the standard of review of a trial court's decision to transfer a case, we stated in Syllabus Point 3 of Hinkle: "Where a trial court does not abuse its discretion in transferring cases under W.Va.Code, 56-9-1 [1939] this Court will not prohibit such transfer." ⁴ Finding the trial court did not abuse its discretion in Hinkle, we denied the petitioners' request for a writ of prohibition. Similarly, in the present case, we now must...