State v. Kaufman, No. 14–0280.

CourtSupreme Court of West Virginia
Writing for the CourtJustice KETCHUM:
Citation760 S.E.2d 883
Docket NumberNo. 14–0280.
Decision Date16 June 2014
PartiesSTATE of West Virginia ex rel., Justin S. GOLDEN, Sr., & New York Life Insurance and Annuity Corporation, and Nylife Securities, LLC, Petitioners v. The Honorable Tod J. KAUFMAN, Judge of the Circuit Court of Kanawha County, West Virginia; & Mark A. Miller, Respondents.

760 S.E.2d 883

STATE of West Virginia ex rel., Justin S. GOLDEN, Sr., & New York Life Insurance and Annuity Corporation, and Nylife Securities, LLC, Petitioners
v.
The Honorable Tod J. KAUFMAN, Judge of the Circuit Court of Kanawha County, West Virginia; & Mark A. Miller, Respondents.

No. 14–0280.

Supreme Court of Appeals of
West Virginia.

Submitted May 7, 2014.
Decided June 16, 2014.


[760 S.E.2d 885]



Syllabus by the Court

1. “A cause of action for alienation of affections consists of three elements: wrongful conduct of defendant, plaintiff's loss of affection or consortium with the other spouse, and causal connection between such conduct and loss. W.Va.Code, 56–3–2a, abolishes all such suits for alienation of affections.” Syllabus Point 2, Weaver v. Union Carbide Corp., 180 W.Va. 556, 378 S.E.2d 105 (1989).

2. “Article VIII, Section 13 of the West Virginia Constitution and W.Va.Code, 2–1–1, were not intended to operate as a bar to this Court's evolution of common law principles, including its historic power to alter or amend the common law.” Syllabus Point 2, Morningstar v. Black and Decker Mfg. Co., 162 W.Va. 857, 253 S.E.2d 666 (1979).

3. The torts of criminal conversation and adultery are, in essence, common law actions for alienation of affections. Accordingly, the torts of criminal conversation and adultery are not valid causes of action in West Virginia.


Mychal S. Schulz, Esq., Arie M. Spitz, Esq, Dinsmore & Shohl LLP, Charleston, WV, for Petitioner, Justin S. Golden, Sr.

John C. Palmer IV, Esq., Keith J. George, Esq., Robinson & McElwee PLLC, P. Rodney Jackson, Esq., Law Office of P. Rodney Jackson, Charleston, WV, for Respondent, Mark A. Miller.


Stuart A. McMillan, Esq., Christopher L. Edwards, Esq., Bowles Rice, LLP, Charleston, WV, for Petitioner, New York Life.

Justice KETCHUM:

Petitioner Justin S. Golden, Sr. (“Defendant Golden”) invokes this Court's original jurisdiction in prohibition to challenge the March 18, 2014, oral order issued by the Circuit Court of Kanawha County denying his motion for summary judgment. Respondent/plaintiff Mark A. Miller (“Mr. Miller”) sued Defendant Golden for criminal conversation, adultery, and breach of fiduciary duty to a beneficiary. Mr. Miller also sued Defendant Golden's employer, New York Life Insurance

[760 S.E.2d 886]

and Annuity Corporation and New York Life Securities, LLC (“New York Life”),1 for negligent training and supervision. Further, Mr. Miller alleged that New York Life was liable for Defendant Golden's “wrongful acts” under the doctrine of respondeat superior. These causes of action are based on Mr. Miller's allegation that his ex-wife, Maria Miller, engaged in an adulterous affair with Defendant Golden that “destroyed” his marriage and led to the Millers' divorce. Mr. Miller seeks approximately $561,502.00 in monetary damages from the defendants.

Defendant Golden filed a petition for a writ of prohibition after the circuit court denied his motion for summary judgment. Defendant Golden argues that Mr. Miller's causes of actions are, in essence, claims for alienation of affections. Because all claims for alienation of affections are prohibited by W.Va.Code § 56–3–2a [1969], Defendant Golden asserts that the circuit court erred by denying his summary judgment motion. Defendant Golden states that if this case proceeds to trial his “private and personal life will be paraded in front of the jury on claims [alienation of affections] that this Court has said may not be maintained. This public spectacle cannot be undone simply by waiting to remedy the Circuit Court's erroneous Order on appeal.” Therefore, Defendant Golden asks this Court to grant the writ of prohibition.

After review, we find that all of Mr. Miller's causes of action are based on claims for alienation of affections. Under this Court's clear power to alter the common law, and because all claims for alienation of affections are prohibited by W.Va.Code § 56–3–2a, we abolish the torts of criminal conversation and adultery. We therefore grant the requested writ of prohibition.

I.
FACTUAL AND PROCEDURAL BACKGROUND

Mark Miller and Maria Miller were married in 1994. They have one child, a fifteen-year-old son. In January 2010, Maria Miller rolled over her 401(k) retirement account into an annuity account with New York Life. Defendant Golden was the New York Life employee who assisted Maria Miller with this transaction. Maria Miller was the sole owner of the 401(k) account. Mr. Miller was initially listed as the beneficiary on the annuity. After the couple divorced, Maria Miller changed the designated beneficiary from Mr. Miller to their fifteen-year-old son.

Several months after Maria Miller purchased the annuity, she and Defendant Golden began having an affair.2 Mr. Miller filed for divorce from Maria Miller on May 3, 2011. The parties reached a compromise on all issues related to the divorce and a final agreed order of divorce and a property settlement agreement were entered in the Family Court of Kanawha County on November 22, 2011. The order states that the divorce was caused by irreconcilable differences.

On June 5, 2012, Mr. Miller filed a complaint against Defendant Golden and New York Life alleging numerous causes of actions arising from Maria Miller's affair with Defendant Golden. The complaint alleged conversion, breach of fiduciary duty, intentional infliction of emotional distress,3 and negligent training and supervision.4 Mr. Miller subsequently filed an amended complaint

[760 S.E.2d 887]

adding counts for adultery and criminal conversation. Mr. Miller alleges that he sustained the following financial damages due to Defendant Golden's alleged misconduct: (1) $11,527.44 in attorneys' fees; (2) $975.00 in accounting fees; and (3) $549,000.00 refinancing his residence and relinquishing his interest in “certain jointly owned real and personal property.” Mr. Miller's complaint states that he seeks “both compensatory and punitive damages, including reasonable attorney fees and court costs” from the defendants.

Defendant Golden and New York Life filed motions for summary judgment that were denied by the circuit court on January 16, 2014. Defendant Golden and New York Life later renewed their motions for summary judgment. The circuit court held a pre-trial hearing on March 18, 2014, during which it orally denied these motions for summary judgment.

The next day, on March 19, 2014, Defendant Golden filed a petition for a writ of prohibition with this Court. Defendant Golden argues that all of Mr. Miller's causes of actions are, in essence, claims for alienation of affections. Because all claims for alienation of affections are prohibited under W.Va.Code § 56–3–2a, Defendant Golden asks this Court to issue a writ of prohibition barring enforcement of the circuit court's order denying his motion for summary judgment. On March 24, 2014, this Court issued a rule to show cause.

On the same day this Court issued its rule to show cause, Mr. Miller voluntarily dismissed his claims for conversion and intentional infliction of emotional distress. Therefore, the remaining causes of action now pending against Defendant Golden are criminal conversation, adultery and breach of fiduciary duty toward a beneficiary. The remaining cause of action against New York Life is negligent training and supervision, and its liability for Defendant Golden's alleged misconduct under the doctrine of respondeat superior.

II.
STANDARD OF REVIEW

This Court has previously addressed our standard of review for a writ of prohibition. “The writ of prohibition will issue only in clear cases, where the inferior tribunal is proceeding without, or in excess of, jurisdiction.” Syllabus, State ex rel. Vineyard v. O'Brien, 100 W.Va. 163, 130 S.E. 111 (1925). See also Syllabus Point 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953) (“Prohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari.”); Syllabus Point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977) ( “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.”).

Further, in Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), we set forth the following standard for issuance of a writ of prohibition when it is alleged a lower court is exceeding its authority:

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

[760 S.E.2d 888]

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 the foregoing in mind, we turn to the parties' arguments.


III.
ANALYSIS

The issue presented in this case is whether the causes of action Mr. Miller alleges,...

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2 practice notes
  • Eb Dorev Holdings, Inc. v. W. Va. Dep't of Admin., No. 13–0886.
    • United States
    • Supreme Court of West Virginia
    • June 16, 2014
    ...Auditor.Id. (emphasis supplied). As this statutory provision makes clear, the Kanawha County sheriff had the authority to recognize the [760 S.E.2d 883]financial lunacy of allowing property worth more than $5,000,000,000 to be purchased for $57,000 in tax liens. Clearly, the Legislature for......
  • Sammons v. Sowards, Civil Action 3:21-0081
    • United States
    • U.S. District Court — Southern District of West Virginia
    • March 18, 2022
    ...failed to take action, and the employee's tortious conduct results in harm to a third party.”); State ex rel. Golden v. Kaufman, 760 S.E.2d 883, 897 (W.Va. 2014) (“[The negligent supervision and training claims] are derivative of the alleged wrongful conduct committed by [the employee.] Hav......
2 cases
  • Eb Dorev Holdings, Inc. v. W. Va. Dep't of Admin., No. 13–0886.
    • United States
    • Supreme Court of West Virginia
    • June 16, 2014
    ...Auditor.Id. (emphasis supplied). As this statutory provision makes clear, the Kanawha County sheriff had the authority to recognize the [760 S.E.2d 883]financial lunacy of allowing property worth more than $5,000,000,000 to be purchased for $57,000 in tax liens. Clearly, the Legislature for......
  • Sammons v. Sowards, Civil Action 3:21-0081
    • United States
    • U.S. District Court — Southern District of West Virginia
    • March 18, 2022
    ...failed to take action, and the employee's tortious conduct results in harm to a third party.”); State ex rel. Golden v. Kaufman, 760 S.E.2d 883, 897 (W.Va. 2014) (“[The negligent supervision and training claims] are derivative of the alleged wrongful conduct committed by [the employee.] Hav......

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