Wachter v. Dostert

• Citation: 172 W.Va. 93,303 S.E.2d 731
• Decision Date: 25 May 1983
• Docket Number: No. 15681,15681
• Parties: H. Ford WACHTER, et al., etc. v. Hon. Pierre DOSTERT, Judge, etc.
• Court: West Virginia Supreme Court

Page 731

303 S.E.2d 731

172 W.Va. 93

H. Ford WACHTER, et al., etc. v. Hon. Pierre DOSTERT, Judge, etc.

No. 15681.

Supreme Court of Appeals of West Virginia.

May 25, 1983.

Syllabus by the Court

Rule 19(a) of the West Virginia Rules of Civil Procedure requires two general inquiries for joinder of a person who is subject to service of process. First, is his presence necessary to give complete relief to those already parties? Second, does he have a claim that, if he is not joined, will be impaired or will his nonjoinder result in subjecting the existing parties to a substantial risk of multiple or inconsistent obligations? If the absent person meets the foregoing test, his joinder is required. However, in the event that the absent person cannot be joined, the suit should be dismissed only if the court concludes that the 19(b) criteria cannot be met.

Geary L. Walker, Parkersburg, for petitioners.

Pierre Dostert, pro se.

MILLER, Justice:

This is an original proceeding in prohibition instituted by the relators, H. Ford Wachter and W. Thomas Biggert, as trustees for Tower Acres Joint Venture. In this proceeding, the relators pray that we prohibit the respondent from requiring the joinder of the West Virginia Department of Highways (hereinafter Department of Highways) as an indispensable party-defendant in a certain action now pending in the Circuit Court of Morgan County styled H. Ford Wachter and W. Thomas Biggert, as Trustees for Tower Acres Joint Venture, Plaintiffs v. Harry Fowler and Virginia Fowler, Defendants (Civil Action No. 81-C-32). The relators contend that the Department of Highways is not an indispensable party and that the joinder would not be proper in view of the fact that the Circuit Court of Morgan County lacks venue to consider actions against the Department. For these reasons, they contend that the respondent has exceeded his jurisdiction in ordering the joinder. We agree with the relators, and we issue the writ of prohibition.

The relators are land developers who have acquired a tract of land in Morgan County adjacent to a road which they claim is designated as Morgan County Route 8/2, and which, according to them, is a public way. The defendants in the proceeding below are adjoining landowners. They denied that the road was a public way and interfered with the relators' use of it. The relators, thereupon, filed a petition for an injunction enjoining the defendants below from interfering with their use of the road.

After a number of delays the case was set for trial on August 30, 1982. On that day, the relators indicated that they wished to present evidence which included the testimony of right-of-way and maintenance personnel for the Department of Highways. After hearing the relators' position, the trial judge concluded that the Department of Highways was an indispensable party and ordered that the suit be amended to join it.

In Syllabus Point 1 of Dixon v. American Industrial Leasing Co., 157 W.Va. 735, 205

S.E.2d 4 (1974), we established this test for determining whether a party is indispensable under Rule 19 of the West Virginia Rules of Civil Procedure, as it existed prior to its amendment on June 1, 1978:

"The determination of whether a party is indispensable under the provisions of Rule 19(a) of the West Virginia Rules of Civil Procedure is in the sound discretion of the trial court. Generally, a court must consider whether: (1) the interest of the absent party is distinct and severable; (2) in the absence of such party, the court can render justice between the parties before it; (3) the decree made will, in the absence of such party, have no injurious effect on the interest of such absent party; (4) the final determination will, in the absence of such party, be consistent with equity and good conscience, but each case must be considered on the basis of its peculiar facts, and the principal limitation on the court's decision is whether, under the particular facts of each case, absent parties will be adversely affected by non-joinder." ¹

The Court in Dixon recognized that although Rule 19 of the Federal Rules of Civil Procedure had been amended in 1966, West Virginia's Rule 19 had not been amended and, therefore, the Court relied on federal cases decided before 1966 in fashioning its law. The 1978 Amendments made in our Rules of Civil Procedure brought our Rule 19 in line with Rule 19 of [172 W.Va. 95] the Federal Rules of Civil Procedure as it was amended in 1966. ² See Anderson v. McDonald, 170 W.Va. 56, 289 S.E.2d 729, 733 (1982).

Despite the statements by one commentator that "[t]he principles developed prior to the 1966 revision are still applicable under the revised Rule," 3A J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice s

19.07 (2d ed. 1982), ³ it does appear that there has been a shift in emphasis by the federal courts since the 1966 Amendments to the federal rule. The test has become less scholastic in the sense of trying to define who is an indispensable party. Instead, under the amended rule, the emphasis is placed on the question of whether the case can be equitably prosecuted in the absence of a missing party. If so, there is no reason to join the party or to dismiss the action. This is particularly true in those cases where the absent party cannot be joined because of some jurisdictional reason. A typical example is Idaho ex rel. Evans v. States of Oregon and Washington, 444 U.S. 380, 100 S.Ct. 616, 62 L.Ed.2d 564 (1980), where Idaho invoked the original jurisdiction of the Supreme Court on a claim against Oregon and Washington relating to equitable apportionment of anadromous fish in the Columbia River System.

The defendants, Oregon and Washington, sought to dismiss the action because Idaho had failed to join the United States as an indispensable party. The defendants claimed the United States had by treaties given various Indian tribes a right to take 50 percent of the fish from the Columbia River System and that the United States, as protector of the rights of the Indian tribes, was an indispensable party. The United States refused to waive its sovereign immunity and, consequently, could not be joined.

The Supreme Court proceeded to review the alleged indispensability of the United States under "Rule 19(b) of the Federal Rules of Civil Procedure, which lists four factors to be considered in deciding whether a suit can proceed in the absence of an allegedly necessary party." 444 U.S. at 386, 100 S.Ct. at 620, 62 L.Ed.2d at 570. The Court held that under the four-factor test, the case could be prosecuted without the joinder of the United States since fair and equitable relief could be rendered in the absence of the United States.

Much the same approach has been utilized in cases where the joinder of the absent party would destroy diversity of citizenship, which is the basis for invoking federal jurisdiction. E.g., Prescription Plan Service Corp. v. Franco, 552 F.2d 493 (2nd Cir.1977); Bio-Analytical Services, Inc. v. Edgewater Hospital, Inc., 565 F.2d 450 (7th Cir.1977), cert. denied, 439 U.S. 820, 99 S.Ct. 84, 58 L.Ed.2d 111 (1978); Anrig v. Ringsby United, 603 F.2d 1319 (9th Cir.1978). There are however cases where courts have taken the more traditional approach of first determining whether the absent person is a necessary party under Rule 19(a) and then proceeding to determine his indispensability under Rule 19(b), as illustrated by Eldredge v. Carpenters 46 Northern California Counties Joint Apprenticeship And Training Committee, 662 F.2d 534, 537 (9th Cir.1981), cert. denied, 459 U.S. 917, 103 S.Ct. 231, 74 L.Ed.2d 183 (1982):

"Rule 19 requires two separate inquiries. First, are there persons who should be joined, either because their own interests or the interests of the parties might be harmed by their absence? Such persons, referred to as 'necessary parties,' must be joined if feasible. Fed.R.Civ.P 19(a). Second, if parties determined to be necessary under rule 19(a) cannot be joined, should the action in 'equity and good conscience' be dismissed? Only if the court determines that the action should be dismissed is the absent party labelled 'indispensable.' Fed.R.Civ.P. 19(b); see English v. Seaboard Coast Line Railroad, 465 F.2d 43, 48 (5th Cir.1972)."

See also Manygoats v. Kleppe, 558 F.2d 556 (10th Cir.1977).

We believe the test under the old Rule 19 as stated in Dixon, supra, is rather compatible to the present Rule 19 although it lacks some of the specificity of Rule 19(a), which requires two general inquiries for joinder of a person who is subject to service of process. First, is his presence necessary to give complete relief to those already parties? Second, does he have a claim that, if he is not joined, will be impaired or will his nonjoinder result in subjecting the existing parties to a substantial risk of multiple or inconsistent obligations? If the absent person meets the foregoing test, his joinder is required. However, in the event that the absent person cannot be joined, the suit should be dismissed only if the court concludes that the 19(b) criteria cannot be met.

In the present case, the underlying suit is between two property owners and involves the question of whether a road is a public way. The determination of this issue would not bind the State if the State is not joined as a party, and, therefore, the State's interest would not be impaired. Syllabus Point 8, Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216 (1983). The relief sought by the plaintiffs is to enjoin the defendants from obstructing the road. This relief can be accorded or denied in the absence of the Department of Highways once the issue of the public nature of the road is resolved. We do not believe that there is any substantial risk of subjecting the existing parties to multiple or inconsistent obligations because the only relief sought is to restrain interfering with the free passage along the road. We addressed this issue in a rather...