State ex rel. Surnaik Holdings of WV, LLC v. Bedell

• Decision Date: 20 November 2020
• Docket Number: No. 19-1006,19-1006
• Citation: 852 S.E.2d 748
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia EX REL. SURNAIK HOLDINGS OF WV, LLC, Petitioner v. The Honorable Thomas A. BEDELL, Sitting by Assignment as Judge of the Circuit Court of Wood County and Paul Snider, on Behalf of Himself and a Class of Others Similarly Situated, Respondents

852 S.E.2d 748

STATE of West Virginia EX REL. SURNAIK HOLDINGS OF WV, LLC, Petitioner

v.The Honorable Thomas A. BEDELL, Sitting by Assignment as Judge of the Circuit Court of Wood County and Paul Snider, on Behalf of Himself and a Class of Others Similarly Situated, Respondents

No. 19-1006

Supreme Court of Appeals of West Virginia.

Submitted: September 23, 2020

Filed: November 20, 2020

Concurring Opinion of Justice Hutchison November 24, 2020

Ryan McCune Donovan, J. Zak Ritchie, Andrew C. Robey, Hissam Forman Donovan Ritchie PLLC, Charleston, West Virginia, Attorneys for the Petitioner.

Alex McLaughlin, John H. Skaggs, Calwell Luce diTrapano PLLC, Charleston, West Virginia, Attorneys for the Respondent, Paul Snider, on behalf of himself and a class of others similarly situated.

Jenkins, Justice:

This matter is before this Court on a petition for writ of prohibition. Respondent the Honorable Thomas A. Bedell, sitting by assignment as Judge of the Circuit Court of Wood County, certified a class action against Petitioner, Surnaik Holdings of WV, PLLC ("Surnaik"). The circuit court named Respondent Paul Snider ("Mr. Snider") as class representative. Surnaik asserts that the circuit court clearly erred in certifying this class and asks this Court to prohibit the circuit court from conducting any further proceedings in this case until the circuit court has vacated its class certification order. Based upon the record before us, the arguments of the parties, and the applicable law, we find that the circuit court exceeded its jurisdiction by failing to conduct an appropriate and thorough analysis of the West Virginia Rules of Civil Procedure 23(a) and 23(b) class certification requirements. Accordingly, we grant the writ of prohibition as moulded and vacate the circuit court's order certifying the class action.

I.FACTUAL AND PROCEDURAL HISTORY

In the early morning hours of Saturday, October 21, 2017, a fire erupted at a warehouse owned by Surnaik in Parkersburg, West Virginia. The fire burned from October 21 to October 29. Mr. Snider asserts that the fire "emitted a plume of smoke—consisting primarily of particulate matter and gases—that adversely impacted neighboring property owners and lessees for days, residents as well as businesses and government agencies." Mr. Snider further alleges that "[t]he most obvious and immediate adverse impact—as well as the one that is common to all members of the class—is annoyance resulting from the smoke itself, which at certain concentrations is irritating to the nose and throat of most[,] if not all[,] persons."

Mr. Snider, on behalf of himself and on behalf of a class of others similarly situated, filed a complaint against Surnaik in the Circuit Court of Wood County, on October 30, 2017.¹ In the complaint, Mr. Snider alleged negligence; reckless, willful, and wanton indifference motivated by financial gain; nuisance; trespass; and "class action allegations." Furthermore, in the complaint, Mr. Snider sought to "represent a class that consists of all residents and businesses within an 8.5 mile radius of the warehouse, which was located on the 3800 block of Camden Avenue, in Parkersburg, West Virginia." Mr. Snider indicated that "[t]he radius includes at least the following cities, towns, and population clusters in the State of West Virginia: Parkersburg, Vienna, Blennerhassett, Lubeck, Washington, and Waverly. It also includes one population cluster in the State of Ohio, around Belpre, Ohio." Mr. Snider requested compensatory damages in the form of diminution in value of property, loss of the right to use and enjoy property, lost business profits, and personal injuries, as well as punitive damages. Surnaik answered the complaint in November 2018.²

Subsequently, on April 30, 2019, Mr. Snider filed a motion for class certification and memorandum of law in support thereof ("the motion"). In the motion, Mr. Snider defined the class³ as follows:

All lawful possessors—primarily owners and lessees—of real property located within one [of] the isopleths depicted on the maps attached hereto as Exhibits 1-A, 1-B, and 1-C, who did one or more of the following in October 2017:

(1) Resided on the property within the isopleth; or

(2) Conducted business operations, including those of a nonprofit business, on the property within the isopleth; or

(3) Conducted state, county, [or] municipal government operations on the property within the isopleths.

Mr. Snider further alleged that the requirements of West Virginia Rule of Civil Procedure 23(a)⁴ were met: numerosity, commonality, typicality, and adequacy of representation. In addition, Mr. Snider asserted that this action also met the requirements of Rule 23(b)(3)⁵ —predominance and superiority.

On May 31, 2019, Surnaik responded to Mr. Snider's motion, contending that class certification is not appropriate because (1) a class cannot be certified when a significant number of proposed class members are uninjured; (2) a class action is not superior to other available methods for adjudication of the matter; (3) Mr. Snider is not an adequate representative because he knows little about the case and admitted he could not be fair to certain class members; and (4) Mr. Snider's claims are not typical of the class claims because he has not suffered any property damage. As such, Surnaik urged the circuit court to deny the motion for class certification because Mr. Snider failed to satisfy all four prerequisites contained in Rule 23(a) —namely typicality and adequacy of representation—and the predominance and superiority requirements of Rule 23(b)(3). Additionally, Surnaik contended that Mr. Snider failed to satisfy the implicit requirement of ascertainability, as well as standing. Mr. Snider then filed a reply in support of his class certification motion.

The circuit court held a hearing on the motion for class certification on July 8, 2019.⁶ Following the hearing, the circuit court entered its order granting class certification and essentially adopted Mr. Snider's class definition. In the "Findings of Fact" section of its order, the circuit court noted that Mr. Snider provided expert testimony "delineating the geographical boundary of the area allegedly impacted by a 24-hour average of at least three micrograms per cubic meter (‘ug/m³’) of fine particles less than 2.5 microns in size (‘PM_2.5’)." The circuit court further noted that Mr. Snider submitted expert testimony "tending to show that those levels of fine particulate matter increase the risk of injury, resulting in death, asthma

, heart attacks, and coronary artery thickening in a small percentage of persons subjected to them, and some level of discomfort in a much larger percentage of individuals." Lastly, the circuit court noted that Mr. Snider provided "evidence tending to show that the area within the same geographical boundary experienced a peak total suspended particulate level (‘TSP’) of at least 100 ug/m³." The circuit court went on to

find[ ] that the following requirements for certification are met:

a. Numerosity

The Class consists of an estimated 57,000 residents and additional businesses in the area surrounding the warehouse fire which are alleged to have suffered damages as a result of the Warehouse Fire. Joinder is impracticable[,] and the numerosity requirement of W. Va. R. Civ. P. 23(a) is satisfied.

b. Commonality

Common questions of law and fact exist for each of the Class Members with regard to the alleged conduct of the Defendant. Among these are questions relating to the Defendant's liability for their alleged negligent failure to maintain the fire protection system in the warehouse and the geographical area impacted by harmful levels of smoke from the fire. These issues are central to this case and are sufficient to establish commonality under W. Va. R. Civ. P. 23(a).

c. Typicality

Class Representative Paul Snider testified in his deposition that he suffered noxious levels of smoke in his home for days following the Warehouse Fire and that he and his wife both suffered respiratory impairments—in his case, difficulty breathing diagnosed for the first time as asthma—as a result of the Warehouse Fire. The Court finds that these claims are typical of absent Class Members in this litigation with elements of proof and damages typical of absent Class Members. The bases for compensation asserted by the Class Representative—which include damages for annoyance and inconvenience from having his home invaded by noxious smoke—are consistent with and typical of the claims available to absent Class Members, including those claiming property damage. Therefore, the element of typicality is satisfied under W. Va. R. Civ. P. 23(a).

d. Adequate Representation

The Class Representative's interests do not conflict with, and are co-extensive with, those of absent Class Members. Paul Snider, the Class Representative, testified at the hearing and demonstrated sufficient interest in, knowledge of, and involvement with the case. Additionally, this Court recognizes the experience of the counsel designated as Class Counsel below, and finds that the requirement of adequate representation under W. Va. R. Civ. P. 23(a) has been fully met.

e. Predominance of Common Issues

Plaintiff[ ] commonly assert[s] that the Defendant was negligent and recklessly indifferent to the well-being of its neighbors in failing to maintain its fire protection system, and that an award of compensatory and punitive damages to residents, businesses, and government agencies in the area impacted by noxious and harmful levels of smoke from the Warehouse Fire is therefore appropriate. The Court finds that the overarching liability issues predominate over any individual questions, favoring class treatment consistent with W. Va. R. Civ. P. 23(b)(3).

f. Superiority of the Class Action Mechanism

The class action mechanism is ideally suited for resolving these matters. Class certification promotes efficiency and uniformity of judgment, among other reasons, because

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