Joseph Todd Hutchinson and Jennifer Lynn Hutchinson v. Mark Forest Underwood, Patricia Jennings and Underwood Law Office

• Court: West Virginia Supreme Court
• Decided: September 18, 2020
• Docket: 19-1079
• Status: Published

Opinion

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

Joseph Todd Hutchinson and Jennifer Lynn Hutchinson, FILED Plaintiffs Below, Petitioners September 18, 2020 EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS vs.) No. 19-1079 (Cabell County 17-C-149) OF WEST VIRGINIA

Mark Forest Underwood, Patricia Jennings, and Underwood Law Office, Defendants Below, Respondents

MEMORANDUM DECISION

Petitioners Joseph Todd Hutchinson and Jennifer Lynn Hutchinson, self-represented litigants, appeal the October 21, 2019, order of the Circuit Court of Cabell County awarding judgment as a matter of law at the close of petitioners’ evidence to Respondents Mark Forest Underwood, Patricia Jennings, and the Underwood Law Office (collectively, “respondents”) and the circuit court’s November 1, 2019, order denying petitioners’ motion for a new trial. Respondents, by counsel Kevin A. Nelson and Arie M. Spitz, filed a response in support of the circuit court’s orders. Petitioners filed a reply.

The Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s orders is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioners retained respondents to represent them in a proceeding before the West Virginia Court of Claims (“Court of Claims”).1 According to the Court of Claims’ January 20,

1 The West Virginia Court of Claims is now known as the West Virginia Legislative Claims Commission. State ex rel. Ladanye v. West Virginia Legislative Claims Commission, 242 W. Va. 420, __, 836 S.E.2d 71, 78 (2019) (citing W. Va. Code § 14-2-4 (2019)). The function of this legislative body is to make “a recommendation to the Legislature based upon a finding of moral obligation, and the enactment process of passage of legislation authorizing payments of claims recommended by the court is at legislative discretion.” Id. (quoting W. Va. Code § 14-2- 28 (2014)). As we noted in Ladanye, “[o]ur State constitution provides sovereign immunity protections and does not allow for suits to be brought against the State. Id. at __, 836 S.E.2d at 76-77 (citing W. Va. Const. art. VI, § 35).

1 2014, decision, petitioners filed a claim against the West Virginia Division of Highways (“DOH”) alleging that the DOH was “responsible for the maintenance of the roadway and the culvert that abuts [petitioners’] property located” on Aracoma Road in Huntington, West Virginia, and that “runoff from Aracoma Road clogged or crushed a culvert which caused or contributed to damage to [petitioners’] [p]roperty.” Petitioners and the DOH reached a settlement in the amount of $85,000 in “a full and complete satisfaction of any and all past and future claims that [petitioners] may have against [the DOH] arising from the matters described in said claim.” Pursuant to the settlement, petitioners agreed that:

Five Thousand Dollars ($5,000.00) of the settlement sum is expressly earmarked for [petitioners] to hire a contractor of their choosing to clear the culvert that abuts [petitioners’] [p]roperty and [petitioners] shall be solely responsible for directing such work and shall defend, protect, and indemnify [the DOH] from and against any such claims or liabilities arising from such work. [Petitioners] further agreed that the sum to be paid herein shall forever bar [petitioners] or any future owners of the [p]roperty from any claim against the [DOH] arising from the [d]amages as identified in the parties’ stipulation.

Based on the settlement of petitioner’s claim against the DOH, the Court of Claims recommended to the Legislature that it authorize an award of $85,000 to petitioners. As respondents’ fee, respondents received 40% of the $85,000 subsequently awarded to petitioners.

On March 3, 2017, petitioners filed the instant civil action against respondents in the Circuit Court of Cabell County, alleging that respondents breached a fiduciary duty that they owed to petitioners in settling petitioners’ claim against the DOH. Petitioner sought $400,000 in compensatory damages and $300,000 in punitive damages. On March 30, 2017, respondents filed a motion for a more definite statement, which was granted by an order entered on May 25, 2017. On June 22, 2017, petitioners filed a supplemental complaint specifically alleging that respondents failed to inform petitioners that the settlement with the DOH would bar future claims against the DOH regarding the culvert abutting their property. On July 13, 2017, respondents filed an answer. The parties disputed whether petitioners’ claim was for breach of a fiduciary duty or for legal malpractice.

Prior to trial, respondents challenged petitioners’ service of process on the individual respondents, prompting the circuit court to provide petitioners with additional time to complete service of process, and petitioners thereafter successfully served each respondent. On July 24, 2019, respondents filed a motion to dismiss the civil action, alleging that petitioners were engaging in serious litigation misconduct by threatening respondents, their attorneys, and potential witnesses. By order entered on September 5, 2019, the circuit court denied the motion.

The circuit court held the trial on September 4 and 5, 2019. After petitioners rested their case, respondents moved for judgment as a matter of law pursuant to Rule 50(a) of the West Virginia Rules of Civil Procedure, arguing that no reasonable jury could find in petitioners’ favor based on the evidence they presented. After argument by the parties, the circuit court awarded judgment as a matter of law to respondents. By order entered on October 21, 2019, the circuit court found that petitioners’ evidence was insufficient to persuade a jury to find in petitioners’

2 favor because their evidence could not establish all of the elements of either a breach of fiduciary duty or a legal malpractice claim. On October 28, 2019, petitioners filed a motion for a new trial. By order entered on November 1, 2019, the circuit court denied the motion, thereby rejecting petitioners’ argument that they were not allowed to call all of the witnesses and introduce all of the documentary evidence that they wished to present during their case-in-chief.

Petitioners now appeal the circuit court’s October 21, 2019, and November 1, 2019, orders. We review the circuit court’s award of judgment as a matter of law to respondents pursuant to the following standard:

“‘The appellate standard of review for the granting of a motion for a [judgment as a matter of law] pursuant to Rule 50 of the West Virginia Rules of Civil Procedure is de novo. On appeal, this court, after considering the evidence in the light most favorable to the nonmovant party, will sustain the granting of a [judgment as a matter of law] when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court’s ruling granting a [judgment as a matter of law] will be reversed.’ Syllabus Point 3, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996).” Syl. pt. 5, Smith v. First Community Bancshares, Inc., 212 W.Va. 809, 575 S.E.2d 419 (2002).[2] Syl. Pt. 1, Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W. Va. 209, 672 S.E.2d 345 (2008) (Footnote added). With regard to the circuit court’s denial of petitioners’ motion for a new trial, “[c]ourts do not grant new trials unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done[.]” In re State Pub. Bldg. Asbestos Litig., 193 W. Va. 119, 124, 454 S.E.2d 413, 418 (1994) (quoting 11 Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure, § 2803 at 32-33 (1973)) (Footnotes omitted).

2 Rule 50(a) of the West Virginia Rules of Civil Procedure provides:

(a) Judgment as a Matter of Law.

(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.

3 On appeal, petitioners raise fifteen assignments of error. Respondents counter that petitioners raise issues that the circuit court resolved in petitioners’ favor such as allowing petitioners additional time to serve each respondent and denying respondents’ motion to dismiss the civil action due to petitioners’ alleged misconduct.3 Petitioners argue that “[t]he point is not that . . . [p]etitioners prevailed in the lower court” on certain issues, but that the circuit court generally allowed respondents to obstruct petitioners’ opportunity to be heard. See Syl. Pt. 2, Simpson v. Stanton, 119 W. Va. 235, 193 S.E. 64 (1937) (holding that “[t]he due process of law guaranteed by the State and Federal Constitutions, when applied to procedure in the courts of the land, requires both notice and the right to be heard”) (Emphasis added); State ex rel. Peck v. Goshorn, 162 W. Va. 420, 422, 249 S.E.2d 765, 766 (1978) (same).

Upon our review of petitioners’ assignments of error, we find that many of the assignments are duplicative.4 Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure provides that “[t]he argument must contain appropriate and specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal,” and that “[t]he Court may disregard errors that are not adequately supported by specific references to the record on appeal.”5 “Although we liberally

On April 24, 2020, petitioners filed a “motion for default judgment” with this Court, 3

alleging that respondents failed to serve petitioners with a copy of the response. We deny that motion because such a motion is not recognized by the West Virginia Rules of Appellate Procedure. We further reject petitioners’ argument that respondents failed to serve petitioners with a copy of the response as the certificate of service attached thereto states that the response was served on petitioners on April 16, 2020. 4 Petitioners’ assignments of error are the following: (1) whether petitioners’ cause of action was for a breach of a fiduciary duty or legal malpractice; (2) whether all three of the individual respondents were properly served; (3) whether all three of the individual respondents were properly served in March of 2017; (4) whether respondents and their attorneys slandered petitioners in court proceedings, in court filings, and to the general public; (5) whether petitioners were prevented from calling their subpoenaed witness through the use of false information; (6) whether respondents’ attorneys made false and inflammatory statements about petitioners to potential witnesses; (7) whether the circuit court erred in refusing to allow petitioners to introduce their documentation into evidence; (8) whether the circuit court erred in requiring petitioners to serve the three individual respondents on multiple occasions; (9) whether the circuit court erred in ensuring that all three of the individual respondents were properly served; (10) whether respondents and their attorneys committed perjury; (11) whether petitioners threatened respondents, respondents’ attorneys, and other persons; (12) whether respondents’ attorneys’ labeling of Petitioner Joseph Todd Hutchinson as an “al-Qaeda spokesman” was improper; (13) whether respondents’ attorneys made numerous defamatory statements about petitioners; (14) whether the circuit court expressed aggravation with petitioners’ attempts to discover the source of the false information about them; and (15) whether petitioners were prevented from calling one witness when that witness became hostile to them during pre-trial.

(continued . . .) 4 construe briefs in determining issues presented for review, issues which are not raised, and those mentioned only in passing but [which] are not supported with pertinent authority, are not considered on appeal.” State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996); State v. Lilly, 194 W. Va. 595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995) (finding that cursory treatment of an issue is insufficient to raise it on appeal).

Here, we find that the only issues we need to address are petitioners’ arguments that (1) the circuit court erred in finding that petitioners’ evidence was insufficient to persuade a jury to find in petitioners’ favor because their evidence could not establish all of the elements of either a breach of fiduciary duty or a legal malpractice claim; and (2) the circuit court did not permit petitioners to call all of the witnesses or introduce all of the documentary evidence they wished to present during their case-in-chief. With regard to these issues, we find that the circuit court properly resolved both issues in its October 21, 2019, order awarding respondents judgment as a matter of law pursuant to Rule 30 and/or its November 1, 2019, order denying petitioners’ motion for a new trial.

Having reviewed the circuit court’s October 21, 2019, “Final Order Granting Defendants’ Motion for Judgment as a Matter of Law,” and its November 1, 2019, “Order Denying Plaintiffs’ Motion for New Trial,” we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions. The Clerk is directed to attach a copy of each order to this memorandum decision. Accordingly, we conclude that the circuit court’s award of judgment as a matter of law to respondents and denial of petitioners’ motion for a new trial were not erroneous.

For the foregoing reasons, we affirm the circuit court’s October 21, 2019, and November 1, 2019, orders.

Affirmed.

ISSUED: September 18, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead Justice Margaret L. Workman Justice Elizabeth D. Walker Justice Evan H. Jenkins Justice John A. Hutchison

5 On March 27, 2020, respondents filed a motion to dismiss the appeal, arguing that we should decline to review all fifteen of petitioners’ assignments of error pursuant to Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure. We deny this motion as moot.