State ex rel. Richmond American Homes of West Virginia, Inc. v. Sanders

697 S.E.2d 139, 226 W. Va. 103, 2010 W. Va. LEXIS 82
CourtWest Virginia Supreme Court
DecidedJune 16, 2010
DocketNo. 35440
StatusPublished
Cited by25 cases

This text of 697 S.E.2d 139 (State ex rel. Richmond American Homes of West Virginia, Inc. v. Sanders) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Richmond American Homes of West Virginia, Inc. v. Sanders, 697 S.E.2d 139, 226 W. Va. 103, 2010 W. Va. LEXIS 82 (W. Va. 2010).

Opinions

McHUGH, Justice:

This case is before the Court on a petition for a writ of prohibition. Two of the eight defendants below,1 Richmond American Homes of West Virginia, Inc. (hereinafter “Richmond”) and M.D.C. Holdings, Inc., (hereinafter “MDC”),2 invoke the original jurisdiction 3 of this Court in an effort to enjoin enforcement of the November 4, 2009, and November 18, 2009, orders of the Circuit Court of Jefferson County. The orders resulted in the striking of Petitioners’ defenses and default judgment entered against them on the issue of liability in the underlying tort litigation based on the allegation of the plaintiffs below (hereinafter “Respondents”) that inadequate radon mitigation systems were installed in their homes.4 Petitioners maintain that the circuit court exceeded its legitimate powers in issuing such harsh sanctions, which warrants the issuance of a writ of prohibition with direction to the lower court to vacate the orders. Upon due consideration of the briefs and arguments of counsel, review of numerous exhibits supplied by the parties5 and examination of the relevant law, we issue the writ of prohibition as moulded.

I. Factual and Procedural Background

Richmond and MDC as its parent company have built a number of houses in the Eastern Panhandle of West Virginia, including the homes in the Locust Hill Subdivision in Jef[107]*107ferson County, West Virginia. Presumably the houses were built and sold with some representation made by the companies that the houses had radon mitigation systems. In December 2006, homeowners in the Locust Hill Subdivision contacted Richmond through an attorney and fellow homeowner, Andrew Skinner, regarding problems with the radon systems the company installed in their homes. According to an exhibit filed with the petition in this case,6 Richmond’s corporate counsel sent a letter to Mr. Skinner offering to remediate the problems with the radon systems, which offer Mr. Skinner rejected. In May 2008, Mr. Skinner filed the complaint in the Joy case on behalf of sixteen Locust Hill Subdivision homeowner families (consisting of sixty-six individuals) against Richmond, MDC and six Richmond subcontractors. See n. 1 supra. Two other related cases were filed in the fall of 2008. See n. 4 supra. The initial trial date in the Joy case was set for April 2010. The assertions made in all of the suits are based on the improper installation of radon mitigation systems in the homes, with particular allegations that homes were built with no radon removal system, a defective system or a fake system, which is apparently the reason why the cases were consolidated for discovery purposes.

The writ of prohibition sought in this case involves two intertwined orders7 issued by the lower court after hearing was held on “Plaintiffs’ Motion for Default Judgment, Motion to Strike the Defendants’ Answers and Defenses, Motion for Sanctions.” The sanctions were imposed as a result of the lower court finding that Richmond had “engaged in a pattern of extensive litigation misconduct.” The misconduct identified in the orders included: (1) direct contact by letter of Richmond’s President, Patrick Annessa, to some of the homeowners in the Joy ease over the homeowners’ counsels’ pri- or objection to such contact; (2) discovery misconduct; and (3) attempts during a settlement conference by Richmond’s in-house counsel to enter into discussions with the homeowners’ counsel about potential employment with the company. The information supplied in this proceeding regarding each of these subjects follows.

Annessa Letter

According to copies of e-mails supplied by the parties before us, Richmond renewed its remediation efforts after the Joy suit was filed. Richmond’s counsel retained to defend the company in the Joy suit sent an e-mail in March 2009 to Mr. Skinner asking for a list of clients who had not yet had active radon systems installed in their homes. In an April 2009 e-mail, Richmond’s retained counsel attached a draft letter for Mr. Skinner’s clients from Richmond’s President, Patrick Annessa, outlining Richmond’s offer to arrange for the installation of active radon detection systems. In that e-mail, Richmond’s counsel asked: “Please let me know by Tuesday (4/14/09) if you will accept the letter on behalf of your clients or if Mr. Annessa should send a letter to each of your clients directly.” Mr. Skinner’s colleague, Laura Davis, responded by return e-mail disputing portions of the letter and stating: “I cannot agree to permit this communication to be sent directly to represented parties in the litigation. I agree that it is wise to formalize the terms of remediation in writing. However, I would prefer that you do so in correspondence to us as opposed to our clients.” According to the affidavits of two of the attorneys retained to represent Richmond dated August 27, 2009, [108]*108negotiations regarding the contents of the letter continued, but Respondents’ counsel never accepted the letter on behalf of their clients nor did they agree to give the letter to their clients. In June 2009,8 a letter signed by Mr. Annessa9 was sent to at least eleven of the sixteen families involved in the Joy ease.10

Discovery

In preparing for trial, Respondents served MDC and Richmond with a set of interrogatories, request for production of documents and request for admissions along with the Joy complaint. Apparently a second, third and fourth set of interrogatories and request for production of documents in the Joy case were subsequently delivered to MDC and Richmond. Respondents maintain that MDC completely ignored the discovery requests for over a year.11

Respondents filed two motions to compel discovery from Richmond which were taken up by the trial court at a scheduling conference on March 12, 2009.12 In the June 24, 2009, order resulting from the scheduling conference, the lower court ruled on the motions to compel as follows:

1. Plaintiffs Motion to Compel Discovery Responses from Defendant Richmond. Plaintiffs and defendant Richmond shall, on or before April 1, 2009, meet and confer in good faith in our [sic] effort to resolve the discovery issues raised or presented in plaintiffs’ currently pending motions to compel discovery responses. In the event the plaintiffs’ [sic] and defendant Richmond are unable to resolve the discovery issues on or before April 1, 2009, the discovery issues shall be referred to Oscar W. Bean, Esquire, of Moorefield, West Virginia, as discovery commissioner, and Mr. Bean is hereby directed to make written recommendation to this Court as to a resolution of the discovery issues.

The parties dispute whether Richmond complied with the directive in the June 24, 2009, order to “meet and confer,” but nonetheless, the discovery issues were submitted to the discovery commissioner before whom a hearing was held on September 23, 2009. As the parties confirmed during oral argument, no recommended order was submitted to the court by the discovery commissioner, nor had the trial court issued any order compelling discovery.

Employment Offer

Mr. Skinner filed an affidavit with the court13

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Cite This Page — Counsel Stack

Bluebook (online)
697 S.E.2d 139, 226 W. Va. 103, 2010 W. Va. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-richmond-american-homes-of-west-virginia-inc-v-sanders-wva-2010.