State v. Clawges, No. 13–0110.

CourtSupreme Court of West Virginia
Writing for the CourtPER CURIAM:
Citation745 S.E.2d 192,231 W.Va. 301
PartiesSTATE of West Virginia ex rel. Tobby Lynn SMALL, Petitioner v. Honorable Russell M. CLAWGES, Jr., Judge of the Circuit Court of Monongalia County; James R. Ramsey, Sr.; Virginia E. Ramsey; Willie McNeal, Jack B. Kelley, Inc.; and Amerigas Propane, LP, Respondents.
Decision Date05 June 2013
Docket NumberNo. 13–0110.

231 W.Va. 301
745 S.E.2d 192

STATE of West Virginia ex rel. Tobby Lynn SMALL, Petitioner
v.
Honorable Russell M. CLAWGES, Jr., Judge of the Circuit Court of Monongalia County; James R. Ramsey, Sr.; Virginia E. Ramsey; Willie McNeal, Jack B. Kelley, Inc.; and Amerigas Propane, LP, Respondents.

No. 13–0110.

Supreme Court of Appeals of
West Virginia.

Submitted May 15, 2013.
Decided June 5, 2013.


[745 S.E.2d 194]



Syllabus by the Court

1. “In determining whether to entertain and issue the writ of prohibition for cases not involving the 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.” Syllabus point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

2. “A state court has no jurisdiction to enjoin a proceeding or judgment of a federal court. The jurisdictions are separate and independent, and it is essential to the independence and efficiency of each that they be exempt from interference and control one by the other.” Syllabus point 3, Henderson v. Henrie, 61 W.Va. 183, 56 S.E. 369 (1907).


Jeffrey S. Zurbuch, Peter G. Zurbuch, Busch, Zurbuch & Thompson, Elkins, WV, for Petitioner.

Mark F. McKenna, McKenna & Associates, P.C., James A. Villanova, Michael E. Metro, Villanova Law Offices, P.C., Pittsburgh, PA, for Respondents, James R. Ramsey, Sr., and Virginia E. Ramsey.


Peter T. DeMasters, Lindsey M. Saad, Flaherty Sensabaugh Bonasso, P.L.L.C., Morgantown, WV, for Respondents, Willie McNeal; Jack B. Kelley, Inc.; and Amerigas Propane, L.P.

PER CURIAM:

This proceeding was brought under the original jurisdiction of this Court by Tobby

[745 S.E.2d 195]

Lynn Small, the petitioner herein and defendant below, seeking a writ of prohibition to prevent enforcement of an order of the Circuit Court of Monongalia County. The circuit court's order precluded Mr. Small from raising a compulsory counterclaim defense against the respondents herein and plaintiffs below, James R. and Virginia E. Ramsey. Here, Mr. Small argues that the circuit court improperly ordered him not to raise the defense of untimely assertion of a compulsory counterclaim in a federal action; improperly determined that he had waived the compulsory counterclaim defense in the circuit court proceeding; and committed legal error by failing to apply the doctrine of res judicata to the circuit court litigation. After a careful review of the briefs and the record submitted in this case, and listening to the arguments of the parties, we grant the requested writ of prohibition.

I.
FACTUAL AND PROCEDURAL HISTORY

This case arose out of a multi-vehicle accident on Interstate 79 in Lewis County, West Virginia, on February 20, 2009. On that date, Mr. Small lost control of his Jeep SUV on an icy bridge and ended up in the center median of the highway. Mr. Small got out of his vehicle while in the center median. At some point after Mr. Small exited his vehicle, a Nissan SUV, that Mr. Ramsey was driving, was struck by a tractor trailer, that Willie McNeal was operating. 1 The tractor trailer impacted and broke loose a cable guardrail in the center median. The cable guardrail struck Mr. Small and caused him severe injuries.

As a result of the accident, Mr. Small filed an action against Mr. Ramsey and the other defendants in the Circuit Court of Harrison County in June 2010. Mr. Small's case was removed to federal court based upon diversity jurisdiction in August 2010.2 Thereafter, in June 2011, Mr. Ramsey and his wife filed the instant action against Mr. Small and others 3 in the Circuit Court of Monongalia County.4 Mr. Small filed a motion to dismiss the case on the grounds that Mr. Ramsey failed to file a compulsory counterclaim in Mr. Small's federal action. The circuit court denied the motion to dismiss but ordered Mr. Ramsey to file a counterclaim in Mr. Small's federal case. 5 The circuit court also ordered Mr. Small to not object to Mr. Ramsey's motion to amend his answer so he could file a counterclaim in federal court.6

In October 2011 Mr. Ramsey filed a motion in Mr. Small's federal case seeking leave to amend his answer to assert a counterclaim.7 As a result of the circuit court's order, Mr. Small filed a motion with the federal court seeking permission to file a response to Mr. Ramsey's motion. Mr. Small argued to the federal court that the circuit court's order was unlawful because it violated the Supremacy Clause of the federal constitution. The federal court entered an order granting Mr. Small's motion to file a response. Thereafter, Mr. Small filed a response opposing the motion to amend the answer on the grounds that the amendment was outside the scheduling order time frame for the filing of a motion to amend. The federal court denied the motion to amend as untimely. Prior to the trial of Mr. Small's

[745 S.E.2d 196]

federal case, Mr. Ramsey settled, but the other defendants did not.8 On July 9, 2012, a jury returned a verdict in favor of Mr. Small.9

On October 8, 2012, Mr. Small filed an answer to Mr. Ramsey's circuit court complaint. On October 19, 2012, Mr. Small filed a motion for summary judgment. In the motion, Mr. Small argued that Mr. Ramsey waived his claim against Mr. Small because the action had to be brought as a counterclaim under Rule 13 of the Federal Rules of Civil Procedure. He was also argued that the doctrine of res judicata precluded Mr. Ramsey's claim. Mr. Small further contended that Mrs. Ramsey's loss of consortium claim was derivative of Mr. Ramsey's claim and also had to be brought in federal court. The circuit court denied the summary judgment motion ruling that Mr. Small had waived the asserted issues because he had disobeyed the court's order and had contested Mr. Ramsey's motion to amend his answer to file a counterclaim. Subsequently, Mr. Small filed for the instant writ of prohibition.

II.
STANDARD OF REVIEW

This matter is before the Court on a petition for a writ of prohibition that challenges the circuit court's order denying Mr. Small's motion for summary judgment. We previously have held that “[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va.Code 53–1–1.” Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). More specifically, this Court has held:

In determining whether to entertain and issue the writ of prohibition for cases not involving the 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.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). In light of these established standards, we proceed to consider the merits of the case.


III.
DISCUSSION

This case presents two issues for resolution. First, whether it was improper for the circuit court to order Mr. Small to not raise a defense to a counterclaim in the federal action. Second, whether the doctrine of res judicata precluded the circuit court action against Mr. Small. We will address the issues separately below.

A. Prohibiting Mr. Small from Raising a Defense to a Counterclaim in the Federal Court Action

Mr. Small contends that the circuit court had no legal authority to preclude him from challenging Mr. Ramsey's motion to amend his complaint in order to assert a counterclaim in the federal litigation. Mr. Small also argues that, in exercising his right in federal court, he did not waive his right to

[745 S.E.2d 197]

challenge Mr. Ramsey's action in circuit court. We agree with both arguments.

Over one hundred years ago this Court addressed the issue of a state court's authority to interfere with a federal court proceeding. The issue was raised in Henderson v. Henrie, 61 W.Va. 183, 56 S.E. 369 (1907). In Henderson, the plaintiff filed an action in circuit court to prevent a federal bankruptcy trustee from conveying a real estate deed to the defendant for property purchased by the defendant at a bankruptcy sale. The plaintiff argued that he had a contract with the defendant whereby the defendant agreed to give the plaintiff...

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12 practice notes
  • Frohnapfel v. Arcelormittal Weirton LLC, Civil Action No. 5:14–CV–45.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • April 22, 2015
    ...retaliatory discharge claim fails, Mrs. Frohnapfel's loss of consortium claim fails as well. See State ex rel. Small v. Clawges, 231 W.Va. 301, 745 S.E.2d 192 (2013) (explaining that a loss of consortium claim is merely incidental to a primary cause of action).4 Defendants bring their Motio......
  • Raab v. Smith & Nephew, Inc., CIVIL ACTION NO. 2:14-cv-30279
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • December 15, 2015
    ...loss of consortium is a mere incident to a cause of action and not the subject of an action itself.’ ” State ex rel. Small v. Clawges , 231 W.Va. 301, 745 S.E.2d 192, 201 (2013) (quoting Stokes v. Southeast Hotel Properties, Ltd. , 877 F.Supp. 986, 1000 (W.D.N.C.1994) ). Defendant does not ......
  • Grim v. E. Elec., LLC, No. 13–1133.
    • United States
    • Supreme Court of West Virginia
    • November 25, 2014
    ...for loss of consortium which supported our finding that the action sounded in tort. Id.; see generally, State ex rel. Small v. Clawges, 231 W.Va. 301, 310, 745 S.E.2d 192, 201 (2013) (discussing derivative nature of loss of consortium claim and holding when husband asserts such claim, he mu......
  • Grim v. E. Elec., LLC, No. 13-1133
    • United States
    • Supreme Court of West Virginia
    • November 3, 2014
    ...for loss of consortium which supported our finding that the action sounded in tort. Id.; see generally, State ex rel Small v. Clawges, 231 W.Va. 301, 310, 745 S.E.2d 192, 201 (2013) (discussing derivative nature of loss of consortium claim and holding when husband asserts such claim, he mus......
  • Request a trial to view additional results
12 cases
  • Frohnapfel v. Arcelormittal Weirton LLC, Civil Action No. 5:14–CV–45.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • April 22, 2015
    ...retaliatory discharge claim fails, Mrs. Frohnapfel's loss of consortium claim fails as well. See State ex rel. Small v. Clawges, 231 W.Va. 301, 745 S.E.2d 192 (2013) (explaining that a loss of consortium claim is merely incidental to a primary cause of action).4 Defendants bring their Motio......
  • Raab v. Smith & Nephew, Inc., CIVIL ACTION NO. 2:14-cv-30279
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • December 15, 2015
    ...loss of consortium is a mere incident to a cause of action and not the subject of an action itself.’ ” State ex rel. Small v. Clawges , 231 W.Va. 301, 745 S.E.2d 192, 201 (2013) (quoting Stokes v. Southeast Hotel Properties, Ltd. , 877 F.Supp. 986, 1000 (W.D.N.C.1994) ). Defendant does not ......
  • Grim v. E. Elec., LLC, No. 13–1133.
    • United States
    • Supreme Court of West Virginia
    • November 25, 2014
    ...for loss of consortium which supported our finding that the action sounded in tort. Id.; see generally, State ex rel. Small v. Clawges, 231 W.Va. 301, 310, 745 S.E.2d 192, 201 (2013) (discussing derivative nature of loss of consortium claim and holding when husband asserts such claim, he mu......
  • Grim v. E. Elec., LLC, No. 13-1133
    • United States
    • Supreme Court of West Virginia
    • November 3, 2014
    ...for loss of consortium which supported our finding that the action sounded in tort. Id.; see generally, State ex rel Small v. Clawges, 231 W.Va. 301, 310, 745 S.E.2d 192, 201 (2013) (discussing derivative nature of loss of consortium claim and holding when husband asserts such claim, he mus......
  • Request a trial to view additional results

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