*1 S.E.2d 223 CAPERTON, Develop Harman Hugh M. Mining Corporation, Cor Harman
ment Inc., Sales, Sovereign
poration, and Coal Below, Appellees,
Plaintiffs COMPANY, INC., COAL
A.T. MASSEY Inc., Indepen Company,
Elk Run Coal Inc., Company, Marfork Coal
dence Coal Inc.,
Company, Performance Coal Com Company,
pany, Coal Sales Below,
Inc., Appellants. Defendants 33350.
No. Appeals of
Supreme Court of Virginia.
West Rehearing March
Submitted on 2008. April
Decided 2008.
Concurring Opinion of Chief Justice July
Benjamin
628 *6 Development Corporation, Harman
Harman Corporation, Sovereign Mining Coal Sales, Inc. Mick,
Bradley Pyles, Pyles, & J. Turner LLP, Logan, for United Mine Amicus Curiae of America. Workers DAVIS, Justice: Appellants and defendants be- herein Inc., low, Massey Company, A.T. Coal subsidiaries, appeal of its various March entered Circuit order County, Boone which denied their Court of judgment as a post-judgment motions for law, remittitur, trial, matter of new response entry judgment of a more appellees million in favor of the than $50 herein, below, Hugh Caper- M. plaintiffs ton, Corporation, Development Harman Har- Corporation Sovereign Mining Coal man Sales, appeal, In this AT. Coal Inc. allege and its Company subsidiaries numer- purportedly errors occurred ous throughout proceedings below. presently case is before this on This thorough rehearing.1 upon our con- Based parties’ arguments on re- sideration hearing, law and the record the relevant case appeal, again we conclude that case separate resolved on and mutual- two *7 First, grounds. we find that the ly exclusive denying a motion to circuit court erred in Massey Company filed Coal dismiss A.T. subsidiaries, upon the existence and its based in contained of a forum-selection clause directly that related to the conflict contract Assuming, giving rise to the lawsuit. instant court’s denial arguendo, that the circuit Offutt, Jr., Burchett, Perry Stephen D.C. error, not in we the motion dismiss was Offutt, Rich, Oxley, Fisher David E. & W. judgment conclude should be further Nord, Huntington, Appellants. for judi- upon of res reversed based the doctrine Abdalla, Stanley, E. F. Bruce Tarek Reed to an action that had been cata due earlier LLP, PA, Appellee, Pittsburgh, Smith County, Virginia. litigated Buchanan Ac- Hugh Caperton. M. judgment cordingly, we reverse the this Jr., Berthold, and remand the circuit court Christina L. case Robert V. Berthold, Smith, O’Dell, Charleston, dismissing, prejudice, enter an order Tiano & Fawcett, Company Coal Ingersoll B. & this ease A.T. David Buchanan PA, Pittsburgh, Appellees, and its subsidiaries. Rooney, for the pro- justices participated in the earlier opinion formerly who The filed in connection with 1. appeal ceedings has vacated based this this been Court. subsequent voluntary disqualification of two of (hereinafter Development Corporation2 I. re- ferred to as Development”).3 “Harman In FACTUAL AND PROCEDURAL year, Development same Harman pur- HISTORY previously chased the three mentioned sub- dispute underlying ap- Central Inspiration: sidiaries of Mining,4 Harman Mine, peal underground Harman is the Southern, Sovereign5 and thereby be- County, Virgi- in Buchanan coal mine located came the owner of the Harman Mine.6 Har- nia, very produced high quality metal- Development, man Mining Harman and Sov- lurgical coal. Harman Mine Prior ereign below, plaintiffs are all to this action by Inspiration Corporation was owned Coal (hereinafter appellees and are herein collec- (hereinafter “Inspiration”) referred to as tively referred to Compa- as “the Harman through Mining three subsidiaries: Harman nies”). In improve- order to fund (hereinafter Corporation “Har- referred to as Mine, ments to the Harman the Harman Sales, Mining”), Sovereign man Coal Inc. Companies sold all the Harman Mine re- (hereinafter “Sovereign”), referred to as Virginia Corporation, serves to Penn (here- Kentucky Energy Company Southern then leased back those reserves that could be “Southern”). inafter referred to as For mined a cost-effective manner. many years, all of the coal from the Harman Companies From the time the Harman Corpo- Mine had been sold to Wellmore Coal became owners of the Harman Mine until (hereinafter ration referred to as “Well- 1997, coal from the Harman pur- Mine was more”), subsidiary Corpora- of United Coal chased Wellmore in accordance with the April Sovereign tion. In and Southern expiration 1992 CSA. Prior to the of the 1992 (hereinafter supply agreement entered a coal CSA, in March of a new CSA with a CSA”) referred to as “the 1992 with Well- (hereinafter higher price per ton of coal re- CSA, more. Under the 1992 Wellmore was CSA”) ferred to as “the 1997 negotiated purchase Sovereign and Southern Sovereign, between Wellmore and Hannan 750,000 year approximately per tons of coal Mining.7 The 1997 CSA was to be in effect years. period for a of ten period years, for a of five commencing retro- (hereinafter Hugh Caperton However, M. actively January 1997. Caperton”), included, referred to “Mr. plaintiff among things, CSA other herein, clause,8 appellee majeure below and formed Harman and a forum-selection force Development Corporation Virgi- way 2. Harman ais that would allow convenient ad- access to corporation principal place joining Compa- nia that has its reserves owned Pittston Coal Beckley, Virginia. ny. explain appellees business West that it is common- place mining industry companies for coal Caperton Sovereign Mr. had worked for when properties operators to sell or lease their to other subsidiary Inspiration. it was a As Sover- when it makes economic sense to allow someone eign’s employee, Caperton Mr. sold coal on be- topography mine else to their coal. Due to the Sovereign, including half of coal from the Har- area, provided Harman Mine better ac- *8 Caperton Sovereign man Mine. Mr. left to form cess to Pittston reserves than Pittston itself brokerage company, his own coal Dominion En- Thus, Caperton hoped day had. Mr. to one lease ergy. Through Energy, Caperton Dominion Mr. However, agree- the Pittston reserves. no lease continued to broker coal from the Harman Mine ment was ever executed between Pittston and Inspiration. on behalf of Dominion any Companies. of the Harman Energy Development Corpora- became Harman tion. specified 7. The 1997 CSA that Wellmore would coal, 573,000 purchase tonnage a minimum Mining Virginia corporation 4. Harman is a that per year, gave option tons and also Wellmore the transacts business in West and is a purchase produc- to all of the Harman Mine's wholly-owned subsidiary Develop- of Harman Historically, purchased tion. Wellmore had all ment. produced. of the coal that the Harman Mine Sovereign corporation 5. is a Delaware that has principal place Beckley, its in business West majeure nearly 8. The clause was identical to force Virginia. Sovereign wholly-owned is a subsid- CSA, one that had been included in the 1992 and iary Development. of Harman stated, part, in relevant plan Development majeure" 6. The Harman established for The term "force as used herein any reasonably the Harman Mine was to mine the reserves in a mean shall and all causes be- er, Wellmore, parent corporation, brought in and its requiring “[a]ll actions clause (hereinafter Agreement be filed Corporation with this shall re- United Coal connection of Bu- by “United”).12 the Circuit Court in and decided Massey purchased ferred to as County, Virginia.” chanan July Wellmore and United on 1997. agreement long-term Since there was no be- CSA, of the and at During course Wellmore, Massey hoped tween LTV and executed, one of the 1997 CSA was the time its own coal for the Harman Mine substitute was LTV primary customers Wellmore’s supplying coal that Wellmore had been “LTV”). (hereinafter to as referred Steel Massey ad- LTV. An internal memorandum shipped nearly two-thirds sold and Wellmore Massey during mitted trial revealed that un- purchased it from the Harman of the coal plan, were to its most plant derstood there risks Companies to LTV’s coke located Pennsylvania.10 July notably possibility relationship On Pittsburgh, LTV announced that intended might between LTV and Wellmore not con- Pittsburgh plant coke due to close its Massey ownership of tinue under Wellmore. change regulations promulgated in emissions that, spite circuit found of this court Agency. Environmental Protection risk, despite knowledge and that LTV “extremely change long- reluctant (hereinafter Massey Company A.T. Coal established, coal blend” that in- successful “Massey”), a below referred to as defendant Mine, Massey cluded coal from the Harman herein, appellant had tried unsuccessful- and price “provided LTV with firm nevertheless years ly for several to sell its West Mines, quotes mainly Massey for coal from directly Due to lack mined coal to LTV.11 its coal, own, not Harman and insisted that LTV selling to LTV on its of success provider acquire suppli- make its sole-source via Massey determined to LTV’s BUYER, obligations Party giving yond then the control of SELLER or such obligations applicable, corresponding which or BUYERto and the cause SELLER notice hereunder, as, perform Party suspended fail to such but other shall be to the extent to, God, public necessary by majeure limited acts of acts of the made such force insurrections, riots, continuance; however, (i) enemy, epidemics, during provided labor its strikes, closures, government boy- disputes cotts, obligations suspended that such shall be fires, shortages, ex- necessary by labor and material force to the extent made such floods, outages continuance, plosions, breakdowns or of or majeure only during its damage preparation plants, equipment (ii) to coal Party giving act that the such notice shall facilities, interruptions pow- or reduction to or promptly elimi- reasonable manner to [sic] (including, supplies transportation er or coal majeure.... nate force such to, shortages) limited car em- but not bargoes, railroad military or civil authori- acts of clause is identical to one This forum-selection 9. ties, wholly prevent partly min- or had included in the 1992 CSA. been delivering ing, processing, loading and/or SELLER, wholly partly the coal or which purchased premium Wellmore a LTV from receiving, storing, pro- prevent accepting, of coal the Harman Mine mixed with blend other, cessing shipment the coal BUYER.... quality lesser coals. The circuit court BUYER, Pertaining maj- the term "force expressly Harman ”[c]oal found that from the eure” as used herein shall further include oc- currence(s) metallurgical very Mine is coal favorable any majeure of a force event at coking prized by steelmakers like characteristics facilities, plants and ex- BUYER’Scustomer’s LTV.” cept majeure that the effects of force such justify reducing event its shall not BUYER quality 11. This coal was inferior coal purchase greater propor- of coal hereunder in from the Harman Mine and sold to LTV obtained purchased tion than hereunder the coal to be *9 through Wellmore. supply, all includ- bears to BUYER’Ssources mines, ing BUYER’Sown for BUYER’Smetal- Companies Caperton and Mr. 12. The Harman lurgical producers. coal sold to domestic coke presented evidence at trial to establish Mas- notify promptly SELLER and BUYERshall LTV, sey time to coal to following maj- had for some desired sell other commencement of a force opined and that it was this desire that motivated majeure eure. If of a force SELLER because Wellmore, BUYER, Massey’s acquisition and further respectively, carry out is unable to Massey obligations Agreement to eliminate the Harman Com- if motivated its under this panies competitors Party promptly give as its via the destruction of such shall to the other Party majeure, companies. written of such force those notice Massey acknowledged contract.”13 As a conse- business. long-term coal Well- actions, buy- Massey’s LTV ceased quence readily purchase more was able to and sell Thereafter, coal, on Au- ing coal Wellmore. Harman but instead chose to Wellmore, 5, 1997, at the direction of gust majeure” Wellmore declare “force Compa- Harman Massey, gave notice to the based analysis Massey a cost benefit stating that if LTV did in fact nies letter performed which indicated that it would Pittsburgh plant, then Wellmore close its profits by doing increase its so. Further- pro tonnage rata reduction in anticipated a more, Massey before directed the declara- majeure clause of the 1997 under the majeure”, tion of Massey “force concealed force CSA. the fact that the LTV business was lost Massey delayed Wellmore’s termi- August Subsequent to 5th let- Wellmore’s nation of Harman’s contract until late ter, Massey negotiations entered into with year, knowing virtually it would be Companies purchase the Harman for the impossible for Harman to find alternate During the course of the Harman Mine. buyers for point its coal at that in time. negotiations, these confidential information suddenly Once stopped purchas- Wellmore operations, regarding the Harman Mine’s in- ing output, Harman’s Harman had no abil- cluding eventually adjoin- mine its desire to ity stay meantime, in business. In the reserves,14 ing Pittston as well as confidential Massey sold Wellmore. pertaining information finances of Companies Caperton, Harman and of Mr. Massey negotiations continued in with the Massey. personally, was shared with Companies Harman Caperton and Mr. Companies expressed to Harman also Mas- Mine, Massey’s purchase of the Harman sey disagreement their that the closure LTV parties agreed to close the transaction on Pittsburgh plant of its coke constituted a 31,1998. However, January Massey delayed majeure event. force and, found, “ultimately as the circuit court Thereafter, on December Well- collapsed the transaction in a manner such so direction, more, Massey’s at declared Companies’] [the increase Harman fi- force majeure based on closure of its Pitts- LTVs addition, Massey nancial uti- distress.”15 burgh plant, and advised the Harman coke lized the confidential information it had ob- 205,- Companies purchase that would Companies tained from the Harman to take 573,000 minimum 707 tons of the tons of coal actions, purchasing further such as a narrow required According under the 1997 CSA. band of the Pittston coal reserves surround- express findings of the circuit court on ing the Mine in Harman order to make the point, Harman Mine unattractive to others and
[ojnly Massey’s marketing thereby During nego- after efforts its value. decrease caused the loss of business did tiations for of the Mine LTVs Mas- the sale Harman sey maj- Massey, Massey direct to declare “force had also learned that Wellmore Mr. Harman, Caperton personally guaranteed eure” a declaration which had a num- Massey put Companies’ obligations.16 knew would Harman out of ber of the Harman Massey notwithstanding prior closing Massey's pur- 13. made these demands lo the scheduled Mine, knowledge historically Massey had its LTV demon- chase of the Harman demanded preference multiple suppliers changes strated a to numerous material terms of the Har- multi-year supply agreement Companies' had not entered coal Penn Vir- contracts. man lease Additionally, ginia. Massey price the firm for its coal that Mas- and Penn could not terms; therefore, sey quoted represented agree Massey's purchase to LTV “a handsome improvement” prices Massey completed. over the at which the Harman Mine was never selling had been its coal. Caperton personal obligations 16.Mr. had to In- supra (now Industries), 14. See note 6. spiration Coal known as Terra Financial, Bank, Grundy Senstar National trial, Financial, According testimony presented among dur- Vision others. The circuit ing negotiations Massey’s potential pur- expressly many steps court found that Mine, Massey represented Caperton per- chase of the Harman took were directed at Mr. *10 sonally, Caperton that it would assume the Harman coal reserves and that Mr. relied to his had However, just representations lease from Penn “as-is.” detriment on numerous false Companies quired Harman filed this action to be filed in Buchanan
Subsequently, the County, bankruptcy. Virginia. The circuit court denied Massey Defendants’ motion to dismiss. Thereafter, May Mining Harman in Thereafter, April Massey in Defen- Sovereign Wellmore the Circuit and sued summary judgment, dants filed a motion for County, Virginia, alleging Buchanan Court of part, arguing, relevant the instant for breach of contract and causes of action legal principal action was barred under the good the covenant of faith and for breach of judicata. of res The circuit court denied this dealing arising from declara- fair Wellmore’s well. motion as However, majeure. Harman tion force Sovereign voluntarily Mining withdrew Ultimately, only three of the theories of Following prior claim to trial. trial their tort liability present- in this were asserted action claim, jury found in favor of on the contract jury for a verdict:19 tortious inter- ed Sovereign Mining and awarded Harman ference, misrepresentation fraudulent damages.17 million in $6 August fraudulent concealment. On filed, jury plaintiffs of all on all found favor Shortly action was after verdict, 29, 1998, grounds Development, three and returned a includ- Harman on October $50,038,406.00. ing damages, Mining, Sovereign Caper- punitive and Mr. On Harman ton, 30, 2002, individually, Massey August filed the instant action in Defendants filed County, seeking judgment Court of Boone a matter of the Circuit West a motion law, trial, or, alternative, Massey Compa- Virginia, against A.T. Coal a new in the remit- Inc., Inc., ny, Company, lengthy delay, by Elk Run Coal Inde- Following titur. order Inc., pendence Company, Coal Mar Fork entered March the circuit court Inc., Company, post-trial appeal Coal Performance Coal Com- This denied the motions. Massey Company, Inc. pany, and Coal Sales followed.20 (hereinafter collectively referred to as “the Defendants”).18
Massey The first amended II. complaint in this filed on Decem- action was 10, 1998, and asserted claims of tortious ber OF STANDARD REVIEW existing rela- interference with contractual analysis will Our of this case consider two tions, prospective tortious interference first, whether the circuit court erred issues: relations, misrepre- contractual fraudulent denying Massey Defendants’ motion sentation, misrep- conspiracy, negligent civil on of the forum-selection dismiss the issue resentation, punitive Though damages. clause, and, alternative, in the whether the pre-trial numerous motions were filed denying Massey circuit court erred in action, underlying particular are rele- two summary judgment Defendants’ motion First, vant resolution of matter. to our judicata. of res on issue 1998, Massey in December Defendants first review the correctness of filed a motion to dismiss. their memoran- We motion, Massey De support Massey dum in the circuit court’s denial of the alia, improper argued, that the fo- fendants’ motion to dismiss for ven Defendants inter light con- of the 1997 CSA re- ue in of the forum-selection clause rum-selection clause Inc., Company, Independence by Massey. example made One of such false 18. Elk Run Coal Inc., Company, Company, Mar Coal Coal Fork representations by Massey made that it lead was Inc., Company, Massey Performance Coal Caperton Mr. that it intended to close believe Inc., Company, are all Coal Sales subsidiaries January purchase its Mine on Harman Company, A.T. Coal Inc. 1998, when, fact, Massey already had deter- mined not to close the transaction. damages presented punitive claim was 19. The also. appealed 17. Wellmore the verdict to the Su preme Virginia, appeal delays however the in this in- 20. There were additional case grounds. volving transcript. refused on technical See Wellmore The circuit court the trial Corp. Mining Corp., transcript August Coal 264 Va. 2006. This Harman certified appeal was then filed on October S.E.2d 671
635 mind, in proceed the 1997 CSA. “This Court’s review these considerations we tained in dispositive address the on a motion to issues raised this of a trial court’s decision appeal. abuse of improper for venue is for dismiss 1, Bank, Syl. pt. Inc. v. discretion.” United III.
Blosser,
378,
218
Caperton is
whether a forum-selection
mandato
clause is
knowledge
Caperton
Mr.
had
opment. Since
ry
permissive requires scrutiny
or
of the
clause,
Development
Harman
particular language used.
knowledge of the clause.
deemed to
determining
whether a forum selec
Milam,
192 W.Va.
Clark v.
See
mandatory
permissive,
tion clause is
(“Generally, corpora-
S.E.2d
language
clause
must be examined.
‘discovers,’
‘knows,’
what its
officers
tion
Quinones,
Su
example,
For
the Florida
know.”). Thus,
find
we
suffi-
and directors
preme
Court found
the forum selec
of this case
in the record
cient evidence
mandatory,
permissive,
tion clause was
clause
the forum-selection
establish that
provided
because it
the creditor
who
reasonably
to those
now
communicated
*14
“may”
legal
speci
in
proceedings
institute
application.
its
resist
courts,
[Qui
it
fied
not that
“shall” do so.
(Overseas),
Corp.
v.
Bank
nones
Swiss
Mandatory or Permissive.
(em
S.A.,
(Fla.1987)
509
275
]
So.2d
analysis
step
our
is
deter
The second
added)____
phasis
“Conversely forum se
clause is
mine whether the forum-selection
clearly
lection
which state or
indi
clauses
mandatory
any litigation
It
been
cate that
shall be
permissive.
has
wide
must or
specified
initiated
mandato
in a
forum are
recognized,
expressly
and we now
hold
ly
Conn,
ry.” Shoppes
P’ship
Ltd.[
v.
types
forum[-]selee
that
are two
“[t]here
(Fla.Dist.Ct.App.2002) ]
So.2d
mandatory
permissive.
A
tion clauses:
added)
(emphasis
(citing
Computer
Mgmt.
mandatory
clause contains
forum[-]selection
Controls,
Constr.,
Perry
Inc. v. Charles
indicating
language
jurisdiction
that
clear
is
(Fla.
1999)).
Inc.,
present
case,
Turning to
we note that
the instant
to,”
“arising
“in connection with” or
lating
the forum-selection clause issue was ad-
reject
[Appel
therefore
from.” We
of a
dressed below in the context
motion to
only allegations
contention that
lants’]
dismiss; therefore,
we consider
claims as
scope
violations fall within
contractual
they
in the amended com-
were asserted
the clauses.
Notably, though, only
plaint.
three of the
complaint
claims asserted in the amended
Corporation
Lloyd’s, 996
Roby v.
F.2d
ultimately presented
jury
to the
for a
(2d Cir.1993).
were
1353, 1361
verdict, indicating that there was insufficient
phrases
Given
similarities between
remaining
support
claims.
evidence
to,”
with” and “in relation
we
“in connection
Accordingly,
deciding
whether the claims
reasoned,
that the Third Circuit has
also note
“brought in
below
connection
asserted
were
case,
pro
interpret
we
In this
must
CSA,
limit our
the 1997
we will
consid-
with”
in the forum selection clause that
vision
claims that ulti-
eration to
those three
jurisdic
English
exclusive
gives the
courts
claims,
mately
jury.
went to the
Those three
dispute
“any
arising ...
rela
tion over
(1)
tort,
sounding in
all
were:
tortious inter-
The ordi
Agreement.
tion to” the
(2)
ference;
misrepresentation;
fraudulent
“arising
nary meaning
phrase
fraudulent concealment. Based
simple.
say that a
to” is
To
dis
relation
claims, we
our review of these tort
conclude
...
to” the
pute
in relation
“arise[s]
“brought
were
indeed
connection
say
origin of
Agreement is to
that the
with” the
CSA.
i.e.,
agreement,
related
dispute is
to that
alleged injuries
All of the
connection
origin
dispute
has some
three
tort claims
with the
aforementioned
“logical or causal connection”
directly from
declaration of
flow
Wellmore’s
New Inter
Agreement. Webster’s Third
*18
majeure,
inextricably
that is
an event
Dictionary,
national
force
CSA.
connected
the 1997
While
Wyeth & Bro. Ltd. v. CIGNA Int’l
John
methodically
complaint
sets out nu-
amended
Cir.1997).
1070, 1074(3d
Corp., 119 F.3d
See
pre-farce maj-
purported
merous details of
F.Supp.2d
Xerox Corp.,
also Klotz v.
conduct,
injury
wrongful
no
resulted
eure
2007) (conclud
(S.D.N.Y. Oct.22,
n. 4&
alleged
conduct without the
from
challenge to
ing
“[p]laintiff
raises no
majeure
under the 1997
declaration
force
clause,
forum
nor could
scope of the
selection
CSA.
she,
pro
expansive language of the
since the
‘[a]ny
example, “Count I” of
amended
vision-covering
in connection
For
action
alleges
complaint
tortious interference with
Employee’-plainly
en
with the Plan
relations,
claims”;
specifically
existing
com
contractual
compasses her
and further
existing
with Wellmore
“[plaintiffs
law tort and
identifies
contracts
menting that
state
(the
(the
CSA),
‘action
lease of
part
claims are
of an
Penn
contract
also
reserves), and the
Harman Coal
UMWA
are covered
connection with
Plan’ and
contract).
(a
(footnote omitted));
Certainly a claim inter-
Doe v. Sea-
labor
the clause”
majeure
with the 1997 CSA itself is related to more’s declaration of
ference
under
force
respect
CSA,
to the Penn
that contract.
With
these claims are all “brought
contracts,
and,
it was Well-
UMWA
in connection with” the 1997 CSA
as a
majeure
consequence,
more’s declaration
scope
are within the
force
Companies and Mr.
placed the Harman
Ca-
forum-selection clause contained therein.24
position
being
perton in the
unable to
parties
b. Are the
involved
the suit
obligations.
fulfill their contractual
Without
subject
to the forum-selection
clause?
majeure,
those contractual relations
force
Companies
The Harman
Caperton
and Mr.
by the
would have been unaffected
actions
that,
argued
strangers
to the 1997
Thus,
Massey
this
Defendants.
claim
CSA, Massey
precluded
Defendants are
“brought in connection with” the 1997 CSA.
enforcing
its terms as
are not
complaint
“Count II” of
amended
al-
third-party beneficiaries of the contract.
leged
prospective
tortious interference with
Companies
The Harman
Caperton
and Mr.
relations, again involving
contractual
Well-
argued
further
plaintiffs
that two of the
more,
Virginia and
Penn
the UMWA. As with
action,
Development
Harman
and Mr.
I,
key
Count
to these claims remains
(in
Caperton
capacity),
his individual
are not
wrongful declaration of
Wellmore’s
and,
signatories
therefore,
/bree
to the 1997 CSA
majeure.
In the
of the declaration
absence
may
not be bound
its terms. We dis-
majeure,
Companies
the Harman
agree.
force
bankruptcy
would not have been forced into
addressing
Other courts
the issue of
prospective
and their
contractual
relation-
non-signatories
whether
to a contract
ships
impeded by
would not have been
Mas-
enforce,
to,
subject
or be
a forum-selection
sey.
“brought
Therefore this claim is
clause have found the clauses to be enforce
connection with” the 1997 CSA.
able under certain circumstances. One such
Finally,
alleges
“Count
III”
fraudulent
Manetti-Farrow,
case is
Inc. v. Gucci Amer
misrepresentation, deceit and concealment
(9th
ica, Inc.,
Cir.1988).
pute and that it will be causes of ac- comes “foreseeable” alleging numerous California bound____ Hugel is President and Chair- tion, Parfums and only against Gucci America, man of the Board of both GCM and OMI. parent also but Gucci addition, Gucci, Hugel of the stock In owns 99% as well as numerous company, Guccio' which, turn, owns 100% of the of GCM companies. Manetti-Far- these officers of alleged row, Upholding the stock of OMI. The assurances 511-12. F.2d at confidentiality Hugel were made to alone based the fo- court’s dismissal district clause, Hugel corpora- and alone decided that his Ninth Circuit found rum-selection Lloyd’s participate would investi- applicable tions clause was that a forum-selection gation. participants” who range “a of transaction to the contractual rela- “closely related to
were
Hugel
Lloyd’s
contracted to settle
tionship”:
disputes
England. Although
all of their
argues the forum selec
Manetti-Farrow
GCM and OMI were not members of
Par-
only apply to
dispute
tion clause can
Gucci
Lloyd’s, in the course of a
between
fums,
sign
defendant
Lloyd’s, Hugel
which was
alone involved
Hugel and
However,
range
“a
of trans
corporations
sup-
the contract.
his two controlled
non-par
parties and
participants,
belonging
action
plied
allegedly
information
ties,
subject to
from and be
corporations.
should benefit
district court
those
clauses.” Clinton v. Jan
corporations
forum selection
found that
owned
(N.D.Ill.1984)
ger,
F.Supp.
Hugel
closely
related
controlled
are so
Corp.
Tilghman
v.
(citing
they
equally
Coastal Steel
dispute
bound
Ltd.,
709 F.2d
202-03
Wheelabrator
clause and must sue
the forum selection
(3d Cir.),
denied,
cert.
464 U.S.
Hugel agreed
in which
the same court
(1983)).
We
leged conduct of the Furthermore, Hugel 999 F.2d 209-10. closely contractual relation related to the non-party to a con- court made clear that applies ship that the forum selection clause third-party beneficiary in need not tract all defendants. clause to be order for the forum-selection F.2d at 514 n. 5. non-party: binding against such Hugel Corporation Similarly, must argue Plaintiffs the court (7th Cir.1993), it was Lloyd’s, 999 F.2d finding non-party that a make a threshold corporate plaintiffs to a law- argued that two third-party beneficiary to a contract is a OMI, suit, parties to the were not GCM and binding him to a forum selection before containing the contract forum-selection that third- clause. While it be true (which signed), plaintiff Hugel had clause would, by party of a contract beneficiaries therefore, by the clause. In were not bound definition, satisfy “closely related” and argument, the court relied on rejecting the “foreseeability” requirements, e.g., see relationship companies’ close Steel, (refusing F.2d at 203 Coastal foreseeability agreement and the beneficiary third-party from the absolve by the forum-selection would be bound a forum selection clause which strictures of clause:25 foreseeable); Janger, 583 Clinton v. (N.D.Ill.1984), a third- F.Supp. non-party to a forum order to bind clause, beneficiary required. is not party “closely party status
selection must be Hugel cooperated investigation. dispute Hugel Id. case arose ated 25. The contract plaintiff Hugel investigation provided Dieter became a member of infor- after confidential Corporation Lloyd’s. Hugel Corporation pertaining In the to GCM and OMI. sub- mation (7th Cir.1993). Lloyd's, F.2d lawsuit, plaintiffs Hugel, sequent GCM and OMI membership Hugel signed that includ- contract "they as the result of claimed that lost business Thereafter, ed clause. Id. the forum-selection relating *20 Lloyd’s confidentiality to breach Hugel Lloyd's suspicious that and GCM became investigation.’’ Id. initi- in criminal misconduct and were involved
645 (emphasis provisions” n. 7 Hugel, F.2d at bound 999 209-10 forum-selection due added).26 “shareholder, his status of to officer and (internal signatory corporate director” of case, In another Northern Insur- Great omitted)); quotations Medtronic, and citation Polymer-Chemie Co. v. ance Constab GmbH Inc., Endologix, F.Supp.2d 1054, Inc. v. 530 Co., GJD, No. NAM 2007 & 5:01-CV-0882 (D.Minn.2008) (“[A] party third may 1056-57 (N.D.N.Y. 2007), Sept.28, 2891981 two WL bound be a forum-selection clause where companies supply entered into a German closely dispute it is related to the such that it agreement whereby Polymer-Che- Constab becomes it will foreseeable (hereinafter “Constab”) to mie referred as It majority bound---- is true that supply products produce photo to would used binding party a to a cases third forum-selec- to Feliz & Co. and paper Sehoeller GmbH its clause under closely-related-party tion subsidiaries, one of which was Schoeller- parties suing doctrine involved third as 2891981,at *1. The USA 2007 WL contract plaintiffs, being rather than those sued as specifying included a clause forum-selection defendants.... But the does not be- jurisdiction disputes of certain would be closely-related-party lieve that the doctrine is Warstein, Id., Germany. WL Indeed, third-party limited to plaintiffs. provided at *7. Constab defective deciding applies, when whether the doctrine USA, products to Sehoeller and Sehoeller court following ques- a must answer USA, insurer, through filed suit in Cali- its party reasonably tion: should the third fore- that, argument rejecting fornia.27 In being bound see the forum-selection non-parties to the contract Great Northern relationships clause because of its to the not and Sehoeller-USA could enforce the signatory cause action and clause, reasoned, court forum-selection (internal quotations forum-selection clause?” [njeither [its Great Northern nor insured] omitted)); Compana and citations LLC v. signatories Schoeller-USA SAS, No. Mondial Assistance 3:07-CV- However, Agreement. the enforcement of (N.D.Tex. 1293-D, at *4 WL clearly the forum selection clause is “fore- 23, 2008) (“The recognizes Circuit Jan. Fifth given relationships seeable” between that can estoppel two theories bind a parties plain- and the which basis nonparty of a contract to the contract’s arbi- Therefore, tiff has commenced this suit. tration or forum selection clause. The first the Court finds that the forum selection theory’ called an claims ‘intertwined against plaintiff____ clause be invoked equitable estoppel, grants non-signa- tory right to a contract enforce a See WL at *8. also Hellenic against provision signato- of the contract Fund, Veritas, Inn. Inc. v. Det Norske recognizes ry.... The Fifth another Circuit (5th Cir.2006) (enforcing F.3d forum estoppel-'direct estoppel’- form benefits non-signatory selection clause grants signatory whieh to a contract the non-signa- the contract on the that the basis right provision against to enforce a contract tory performance benefitted from Enters, (internal non-signatory.” contract); citations omit- Maraño Kansas v. Z- ted)); Inc., Rests., (8th Aspitz L.P., Sys., v. Witness No. C 07- Teca 254 F.3d RS, (N.D.Cal. Cir.2001) at *3 non-signatory WL (concluding to con- 2007) Aug.10, party “closely disputes (observing tract was to the fact that did related arising agreements properly sign agreement controlling out of the is not as to Labs., provided indemnity 26. But see Pixel Enhancement Inc. v. 27. Great Northern insurance McGee, (D.Mass.1998) and, WL at *2 to Schoeller-USA accordance with ("As beneficiary party McGee is not a third policy, compensated insurance Schoeller-USA Agreement, standing License he no has to assert resulting product for its losses the defective Azure, McCarthy its forum selection clause.” subrogated became Schoeller-USA’s (1st Cir.1994) (“[T]hird party 22 F.3d rights. beneficiary exception status constitutes general grant rule that a does not contract en- rights non-signatories).”). forceable *21 (N.D.Cal.1997) (“It 1427, is well estab- clause would be en- forum-selection whether Prot, range partici- forced); a transaction Mortg. LLC v. Par- lished that Affiliated 4908(DRD), non-parties, and een, pants, parties should benefit A. 2007 WL Civ. No. 2007) (“[W]here (D.N.J. Jan.24, 203947, subject to forum selection *4 from and be claus- at closely and Mr. to es.... conduct of GTSI Fuller party’s [T]he is related a third conduct closely relationship, the are related the contractual rela- [to] forum selec- the contractual TPI, (inter- Mr. and applies party.” tionship third between Graham and clause to the tion omitted)); applies Novak forum selection clause both quotations and citation nal (JFB)(ARL), Tucows, Inc., spite Fuller in of the fact GTSI and Mr. No. 06CV1909 v. (inter- (E.D.N.Y. 26, 922306, signatories not to the PSA.” *13 March at 2007 WL omitted)); (“[A]t 2007) and quotations within Cir- nal citations Beck two courts least Fin., Inc., A. Group/Credit well v. Civ. No. is CIT [i]t cuit have held that established (E.D.Pa. 94-5513, 394067, participants, par- 1995 WL at *6 range a of transaction 1995) (“That signed Beck non-parties, benefit from and June Mr. ties and should Security Agreement president of Beck subject A Co. to forum selection clauses.... be consequence given his intimate an is of little non-party agreement be bound Co., relationship Beck the benefit to him party is a forum selection clause where the funding provided, the closely dispute it from the circumstances related to the such person- that he was giving that it will be bound.” rise to his claims foreseeable becomes (internal omitted)); ally injured by the in which quotations and citations manner defen- agreement under Specialty Corp. performed v. Ins. dant his Ins. Admiral First Co., MO, request personally to be credited No. CV 07 2007 WL (“[A] (D.Or. 2007) allegedly overcharged to range of trans- amounts Beck *3 June Co____Assuming that has including non-parties, Mrs. Beck stand- participants, action asserted, similarly ing claims she is be forum selection clauses on the should bound subject provisions. if underlying agreement to the forum selection of an their conduct Moreover, relationship ‘closely given related to the contractual relation- is presented, ... The that either one or both Becks and the circumstances ship.’ fact wholly inappropriate permit Mr. signatory underlying not would be parties was (internal provision evade the in his dispositive.” citations Beck to forum contract is omitted)); Aviation, initiating guaranty L.L.C. Aircen- and elsewhere suit Hasler (internal ter, L06-CV-180, Inc., Mrs. Beck.” citations jointly No. 2007 WL (E.D.Tenn. 2007) (“Other omitted)); Sparks Tune-Up Aug.27, footnote at *6 5902,1994 Ctrs., Strong, C a contractual se- Inc. v. No. 92 WL courts enforced forum 1994) (“The (N.D.I11. May non-signatories to the at *5 clause lection contract, binding thread in cases which hold that a long parties so as those were close- from dispute non-signatory party and it should ‘benefit ly related to the was foresee- (internal subject clause they might quota- to’ forum selection able be bound.” omitted)); overriding prevent contracting Weingard concern tions citations Inc., Civ.2024(MBM), escaping obligations Telepathy, party No. 05 contractual 2005) (S.D.N.Y. Nov.7, bargained agreed which he at *5 WL and/or (“Other upon.”); Drycleaiu-U.S.A. Circuits have held that contractual- Lu v. of Califor- nia, 1490, 1493-94, Inc., Cal.App.4th ly-based foi’um selection clause also covers (1992) (“[Plaintiffs against non-signatories Cal.Rptr.2d ar- tort claims if the tort gue of the forum selection ultimately depend claims existence enforcement relationship signa- because a contractual between the would be unreasonable two clause defendants, Dryclean Dry- Franchise and tory parties, ... if resolution of the claims contract, U.S.A., Agreement interpretation sign if clean did not relates to we are operative containing Again, the clause. com- the tort claims involve the same pelled disagree. range of parallel for a A transaction facts as claim breach (internal parties non-parties, ... should quotations participants, and cita- contract.” Solutions, omitted)); subject Tech. and be to forum selec- tions benefit from Graham (internal Pictures, Inc., F.Supp. tion Thinking Inc. v. clauses.”
647 (internal omitted)); citations, Citigroup quotations, clause.” and citation quotations omitted)); 98,102 (Fla.Ct.App. footnotes Titan Indem. Co. v. Caputo, 957 So.2d Inc. v. (Miss.2004) (“Even Hood, 138, 2007) Citigroup (quot- were not 895 So.2d assuming Agreement, ing approvingly a non- comment from by the Citibank Accelerated covered Educ., Corp., may signatory’s invoke a forum Christian Inc. v. Oracle signatory (Tex. 66, 1996), non-signatory Ct.App. stating clause where the S.W.2d selection related.”); agree “[w]e Deloitte & Touche with the federal court that a signatory are 678, Indus., Inc., valid governs 929 So.2d forum selection clause all v. Gencor (observing participants, regardless that transaction (Fla.Dist.Ct.App.2006) of wheth- non-party participants signatories of a are di- er the were actual “where the interests to ...”); rectly completely Dogmoch Corp. to or derivative of the contract Int’l related v. AG, 396, 397, contracting party, non-signa- Dresdner Bank 304 A.D.2d those tory by (N.Y.App.Div.2003)(“Although the contract’s forum selec- N.Y.S.2d is bound clause.”); Designr-Build, nonsignatory Inc. v. tion Ttittle’s defendant was to the account Inc., agreements, reasonably Fancy, 604 So.2d 873-74 it was Florida foreseeable (Fla.Dist.Ct.App.1992) (recognizing that rea- that it would seek to enforce forum selec- given en- tion relationship forum-selection clause would be clause the close be- sonable subsidiary____”); against non-signatory); Kelly Brinson v. tween itself and its forced Bear, Inc., Martin, Ga.App. 469 S.E.2d Steams & No. Co. CONTROL (“[Plaintiff] 080832, (Pa. (Ga.Ct.App.1996) at *2 539-40 WL 2001) (“[Pjlaintiffs argue the court erred Commw.Ct. Dec. Brinson also contends against non-signatories Engagement Martin. He that as dismissing his claims to the Letters, argues regardless of whether the venue the forum selection does not clause Woodmen, applicable apply disagrees. the clause to them. clause is This court This dispute governed by apply against would not to his claims Martin the forum selection clearly for tortious interference with economic rela- clause because the claims asserted unjust only possible out of relationship tions and enrichment because those arise plaintiffs Engage- out the contract and had with claims do not arise Bear Stearns-the Letters.”); parties signatories County involve who were not to ment Sevier Bank Inc., Serv.s., [Djespite attempt Paymentech Merck. the contract.... Brinson’s No. E2005- 02420-COA-R3-CV, to characterize his claims Martin as WL *9 2006) (“We falling relationship (Tenn.Ct.App. Aug.23, agree he outside business Woodmen, had with it is clear from his com- the federal court that a valid forum selection plaint directly governs participants, clause all claims arose either transaction participants indirectly regardless from his contract with Woodmen. of whether the were circumstances, signatories By persuad- these we are actual to the contract. trans- Under rely participant, employee we mean an ed that if Martin were not entitled to on action clause, likely contracting separate parties actions would be one of the who is individ- brought, possibly resulting varying ually by contracting party deci- named another sions, arising containing with the administration of out inconsistent suit of the contract reasons, justice. conclude that the forum selection clause. To hold other- For these we ruling nonsignatory employee, allow a the trial court did not err wise would may rely participant, was a Martin on the forum selection who transaction defeat case.”); company’s agreed-to by refusing clause in this v. Jim Bama his forum Grott Inc., Log Sys.-Midwest, employer’s 794 N.E.2d bound contract. This (“The (Ind.Ct.App.2003) 1104-05 Texas trial cannot be. We conclude the court Appeals applied apply Court of has forum-selection valid forum selection clause to all nonsignatories participants. a contract who To conclude other- clauses to transaction participants[,] mean[ing] party bypass ... a valid are transaction wise would enable by naming peti- employee contracting parties of one of the forum selection clause its individually closely-related party who is named another con- tion a who was not a contract.”); tracting party arising party in a suit out of the Accelerated Chris- Edna., containing Corp., contract forum-selection tian Inc. v. Oracle 925 S.W.2d (“We 1996) Development (Tex.Ct.App. conclude the bound forum-selec- tion clause of the 1997 CSA. may apply a valid forum selection court trial participants. To transaction to all clause Defendants, Turning to the party would enable conclude otherwise signatories them we note that none of were *23 by nam- forum selection clause bypass a valid However, Defendant to the 1997 CSA. Mas party petition closely-related who ing in its sey parent compa subsequently became the (footnote contract.” party not a was Wellmore, ny signatory of the who is omitted)). CSA, Massey’s and Wellmore was sub maje sidiary at the time it declared foregoing, we Based force Massey All other Defendants are ure29 non-signa plaintiff who hold that a is now Massey. complaint also subsidiaries of tory containing a contract a forum-selec alleges Massey, along with all plainly that its may be bound that clause tion clause ac subsidiaries who are defendants this her when it is shown that his or claims tion, exercised “domination and control” over closely related to the contract. further We wrong and directed Wellmore to Wellmore non-signatory hold that a defendant who is Because, fully majeure. as we declare containing a forum-selection to a contract force determined, previously all of the claims it that clause when is clause enforce directly this action flow from the declaration that the him or her are shown claims majeure, complaint alleges and the of closely related to the contract. force Massey that the Defendants controlled Well- majeure, more’s declaration of the com foregoing holdings Applying the force plaint plainly demonstrates that claims case, note the facts of the instant we first closely against the Defendants are that, plaintiffs, Sovereign; Mr. Ca as to the Therefore, find related to the contract. we perton, president Sovereign; and Har Massey Defendants are entitled to that the signatories the 1997 Mining man were of the enforce the forum-selection clause CSA; Development Caper- Mr. Harman and 1997 CSA. ton, capacity, in his individual were not. However, wholly- Sovereign and Harman are 4. Rebuttal. the forum-se Because Development, of Harman owned subsidiaries clause was communicated to the re lection Caperton of Har and Mr. is the sole owner mandatory and sisting party, has force cov facts, any Development. man Under these parties involved this ers claims brought by Harman Caperton claim Mr. dispute, presumptively enforceable. Development in connection with the 1997 Thus, step analysis is to the final to our closely CSA are related to the contract and Companies Harman ascertain whether the are, therefore, subject to the forum-selection Caperton pre Mr. have rebutted the clause contained therein. As we determined enforceability sumption by making a suffi preceding opinion, section ciently strong showing that enforcement factually-supported claims three asserted unjust, or that the would be unreasonable or complaint28 first amended all flowed invalid for reasons as fraud clause was such maj wrongful from the declaration of force overreaching. or CSA, brought eure under the 1997 and were regard, recog According with that contract. In this it has been connection ly, Caperton we find that Mr. and Harman nized that preceding three claims
28. As we noted in the
section of this
limit our consideration
those
jury.
ultimately
opinion,
went to the
ad-
the forum-selection clause issue was
dressed below in the context of a motion to
dismiss;
therefore, we consider the claims as
29. The 1997 CSA was executed in March
they were
amended com-
asserted
first
January
retroactively
made
effective to
plaint. Notably, though, only
three
claims
Massey acquired
July
1997.
Wellmore
complaint
purchased
asserted in the amended
were ulti-
Corpora-
when it
United Coal
verdict,
mately
jury
presented
subsidiary
for a
indi-
tion and United's
Wellmore. Well-
(here
cating
majeure
evidence to
was insufficient
more declared
on December
force
Therefore,
remaining
support
we
claims.
ing party
[mjandatory choice
forum clauses will
fails
any-
to come forward with
thing beyond general
conclusory
are “unreason-
be enforced unless
alle-
Group, deprived
gations
inconvenience,
able.” Davis Media
of fraud and
uphold
agreement”).
court must
day
grave
in “‘court’
his
because
of the selected
inconvenience or unfairness
case,
Id.
631 n. 1. In this
the Harman
forum;
(3) the
fundamental unfairness
Companies
Caperton
and Mr.
have not ar-
may deprive
plaintiff
law
the chosen
Court,
gued, either below or before this
remedy;
enforcement
their
would
enforcement of the forum-selection clause of
strong
policy of
public
contravene a
CSA,
requiring
i.e.
that this case be
London,
Lloyd’s
Allen v.
state.”
forum
litigated in Virginia, was
unreasonable
(4th Cir.1996).
F.3d
*24
unjust
Massey
at the time of the
Defendants’
dismiss,30
motion to
or that
the clause was
Union,
v. Summit Fed. Credit
452
Belfiore
invalid for such
as
(foot-
reasons
fraud or over-
(D.Md.2006)
629,
F.Supp.2d
631-32
reaching. Accordingly,
the
omitted).
forum-selection
Moreover,
*25
judicial opinions
rule as to
is
general
neither
States Constitution
United
[t]he
retroactive.”); Findley v.
fully
applica-
prohibits
requires retroactive
nor
454, 460,
222,
629 S.E.2d
Findley, 280 Ga.
decision,
question
judicial
a
(2006) (“[W]e
tion of
apply
continue to
shall
228
prospective application
retrospective or
of
announc
judicial
rule that a
decision
general
retroaetive[.]”);
litigation
civil
judicial decision to
v.
ing
of a state
rule is
Aleckson
a new
Park,
82,
a matter
state law
176 Ill.2d
Village
courts is
of
Round Lake
the state
of
451,
1224,
86,
when,
here,
679 N.E.2d
1226
question
rule in
involves
223 Ill.Dec.
as
(1997) (“Generally,
a court issues an
when
tort and is
a matter of a common-law
presumed
apply
opinion, the decision is
statutory
or
on federal constitutional
based
Dempsey
Allstate
retroactively[.]”);
...
v.
law.
207,
483,
Co.,
217 104 P.3d
489
Ins.
325 Mont.
Lorenz,
P.2d
Corp. v.
823
Martin Marietta
(2004) (“Therefore today
our
we reaffirm
(Colo.1992).
100,
Harper v. Vir
112
See also
give retroactive effect
general
[w]e
rule that
94,
Taxation,
86,
113
Dep’t
509 U.S.
ginia
(internal quotations and
judicial
decisions.”
(1993)
2510, 2516,
651
Dist.,
489,
Indep.
comparative
Edgewood
negligence
Sch.
826 S.W.2d
rule
applied
would be
(Tex.1992)
judicial
retroactively
(“Generally,
to cases pending
515
decisions
at the time of
retroactively.”);
Styles,
decision. To resolve
apply
State v.
166Vt.
the issue of retroac
(“We
734,
615, 616,
tivity,
A.2d
have
context
new law that over
law,
prior
ruled
adopted
Bradley
case
previously
guid
the common law rule that
looked for
ance from
given
the United States
change
Supreme
law will be
effect while
review,
Huson,
Court’s decision in Chevron
Co.
except
case is
direct
Oil
v.
extraordi-
404 U.S.
nary
S.Ct.
of law is to be
whether to extend full
retroactivity,
following
factors are to
presumes
Although the common law rule
First,
be considered:
the nature of the
appellate judicial
apply
decisions
retro-
substantive issue overruled must be deter-
actively,
country
long
“[t]he courts
mined.
If
traditionally
the issue involves a
recognized exceptions
rule of
law,
area
settled
such
as contracts
Oil,
Rose,
retroactivity!.]”
Inc. v.
Ashland
property
distinguished
torts,
177 W.Va.
350 S.E.2d
foreshadowed,
the new
not clearly
rule was
addressing
seminal ease
this Court
Second,
then retroactivity
justified.
is less
exception
retroactivity
issue
where the overruled decision deals with
Co.,
Bradley
Appalachian Power
*26
procedural
substantive,
law rather
than
332,
256
879
W.Va.
S.E.2d
retroactivity ordinarily will be more readi-
Bradley,
this Court was asked to de-
Third,
ly
decisions,
accorded.
law
common
contributory
cide
our
negli-
whether or not
overruled, may
when
in
result
the overrul-
gence
should
rule
be modified
allow for
effect,
ing
being given
decision
retroactive
comparative negligence. After an exhaustive
usually
since
substantive issue
a
has
history
examination of the
of the contributo-
impact
likely
narrower
and is
to involve
doctrine,
ry negligence
Bradley found that
Fourth, where,
parties.
fewer
on the oth-
modification of the doctrine was warranted.
hand,
public
er
substantial
issues
in-
held,
In doing
opinion
so the
volved,
statutory
arising from
or constitu-
present judicial
[o]ur
rule of contributo-
interpretations
tional
represent
that
a
ry negligence
pro-
is therefore modified to
departure
prior
clear
precedent, pro-
from
a party
vide that
not
from
is
barred
recov-
spective application
ordinarily
will
fa-
be
ering damages in
tort
long
a
action so
as
Fifth,
radically
vored.
the more
the new
negligence
his
equal
or fault does not
departs
previous
decision
substantive
negligence
exceed the combined
or fault of
law,
greater
limiting
the need for
ret-
parties
the other
involved in the accident.
roactivity. Finally, this Court will also
prior
To the extent
our
contributory
precedent
look to the
of other courts which
negligence cases are
with
inconsistent
this
retroactive/prospee-
have
determined
rule, they are overruled.
question
tive
in
same
in
area
the law
overruling
their
decisions.
342,
Bradley,
Insofar as prior overruled contrib- utory law, negligence opinion case retroactivity ad- The test announced Brad- dressed the ley issue of whether or not the by new has been relied this Court when- law, Bradley acknowledged prior regarded having decision a later case is as been the principle of law created the Court that in- even at date of the To erroneous decision. retroactivity, prior princi- volved exception, but found that one this rule there is where —that 2, ple statute, Syl. pt. was too narrow. See giving Falconer v. there a and a a is decision Simmons, 172, (1902) (“An construction, W.Va. S.E. 193 certain and there a contract valid is law, construction, regarded overruled decision is having not as never under such later decision does law, given contract."). been the the law but not retroact so as to invalidate such dealing retroactivity a iri cases nonre- has arisen in our
ever the issue
generally
troactivity question, we have
However,
Bradley test
nar
is
civil case.
First,
deciding
separate
whether
retro
three
factors.
rowly
considered
confined
nonretroactively
applied
law
actively
principle
a new
the decision
be
apply
law,
prior prece
...
principle
overruled
in case that
must establish
new
created
Bradley
impression
by deciding
constraints
of first
dent. The narrow
issue
problematic
clearly
whenever
proved to be
not
foreshad-
have
whose resolution was
retroactivity
Second,
the con
has
examined
it has been stressed that
owed.
in a
principle
law created
of a new
text
...
weigh
we
the merits
demer-
must
precedent.
prior
not overrule
case
did
by looking
prior
its
each case
512,
Levin,
See,
e.g.,
W.Va.
Richmond
history
question,
purpose
its
of the rule
(“[T]he
610,
(2006)
analy
637 S.E.2d
effect,
retrospective oper-
and whether
Bradley
directly
is
not
sis established
operation.
its
ation will further or retard
before us
point
question
the case
since the
Finally,
weighed
inequity
im-
we
overruling any prior authori
does not involve
application, for where
posed by retroactive
(internal
citation omit
quotations and
ty[.]”
produce
of this Court could
sub-
a decision
Cline,
ted));
216 W.Va.
Adkins
applied
inequitable results if
retro-
stantial
(2004) (“The
Bradley
607 S.E.2d
actively,
ample
in our cases
there
basis
specific guidance to
give
not
formula does
avoiding
injustice
hardship
situation!..]”);
v. Man
Kincaid
our current
holding
nonretroactivity.
432 S.E.2d
gum, 189 W.Va.
Bradley,
S.E.2d at 888
163 W.Va. at
(“[T]he
correctly point
plaintiffs
out
Chevron,
106-07,
404 U.S. at
(quoting
by Bradley is
analysis established
that the
(internal quotations
and addi-
S.Ct.
point
question in the
directly on
since the
omitted)).34
citations
With the Chev-
tional
overruling
us does not involve
case before
guide, we
hold that in
factors as a
now
ron
limi
authority!;.]”). Because of the
any prior
determining whether to extend full retroac-
by Bradley
on the issue
imposed
tations
law,
tivity
principle
to new
established
test,
another
retroactivity, we believe that
any prior
civil
that did not overrule
case
compliment Bradley,
be
designed
must
following
will
con-
precedent, the
factors
upon to
this Court is called
utilized whenever
*27
First, we will determine whether
retroactively
sidered.
applying a
the issue of
examine
principle
new
of law was an issue of first
not
rule
law
a case that did
new
of
clearly fore-
impression whose resolution was
In
of this Court.
any prior decision
overrule
Second,
test,
we must determine
no
shadowed.
formulating
we need look
such
purpose
effect of the
opinion
or not
Bradley
itself.
whether
further than
rule
be enhanced or retarded
new
will
retroactively. Finally, we
applying the rule
retroactivity
in
created
The
test
retroactivity
full
of
determine whether
following will
Bradley
from the
was fashioned
ineq-
produce
new
would
substantial
in
was
rule
language
appeared
Chevron and
that
Bradley:
uitable results.
quoted
Harper
plication
new
of the basic
of
rules. Mindful
test was overruled
34. The Chevron
Taxation,
adjudication
Department
509 U.S.
that ani-
norms of constitutional
of
(1993).
Har
S.Ct.
bama
court for tort and breach of con-
Although
Supreme
tract claims. The defendants filed a motion
the
Alabama
re
that,
grounds
dismiss on
the
under the
as
lied
nationwide trend
foreshadow
Sutherland,
ing
terms
contractual forum-selection
its new rule
we
clauses
need not
parties,
between
all causes
action had
to a national trend to find that the
look
new
be filed in Florida.
trial
principles developed
The
court denied
forum-selection clause
grounds
the motion to
previ
dismiss on
that
in this case were
As
foreshadowed.
prior
ously
opinion,
Alabama
that
pointed
case law held
“outbound”
out in
over twen
this
against public
ty-five years ago
forum-selection clauses were
Electric Co. v.
General
(1981),
policy.
Keyser,
The
appealed
defendants
to the Ala-
166 W.Va.
clauses
not
litigate
privity
thereto to
Keyser,
parties and those
Specifically, we stated in
State.
this
voluntarily
a forum
chosen
them.
claims in
occasion, however, to dis-
We have had
cuss,
clauses.
indirectly, forum selection
inequitable
c. No substantial
results
skeletal,
point
this
Although our law on
is
applying
new forum-
would flow from
contract
which
it does indicate that
clauses
retroactively.
principles
clause
selection
jurisdiction
and the
affect matters such
presented with
We have not been
valid
carefully analyzed. Unques-
like should be
applying
princi
new
reason to show that
are not
tionably,
selection clauses
forum
bring
inequita
ples
about
substantial
would
contrary
policy in
of them-
public
“Indeed, limiting
ble
this decision to
result.
in commer-
for
are sanctioned
selves
inequi
application
produce
prospective
would
agreements]!]
cial sales
table
Farm Mut.
results[.]”
State
Cundiff v.
Co.,
174 P.3d
at Auto. Ins.
Ariz.
at 461 n.
S.E.2d
Keyser, 166 W.Va.
(2008). This is
because there is
placed
true
Clearly, Keyser
parties
291 n.
that,
that
no
in the
to show
presented
when
evidence
record
action on notice
this
clause
in this
forum-selection
involved
case
opportunity, this Court would “care-
with an
freely bargained
by the actual
was
for
analyze
matters relevant
to the
fully”
all
agreement.
allow
appeal.
signatories to the
To
one
presented on
clause
forum-selection
agreement
escape
signatory to the
its
arguments of
Harman
Contrary to the
through prospective application of our
Caperton,
effects
Mr.
there is no
Companies and
inequitable.
principles
simply
new
would
be
specific
must
requirement
there
exist
exactly how
precedent
foreshadowed
Accordingly, we
that the forum-
conclude
involving
new
would resolve
issues
this Court
adopted
principles
of law
selection clause
clause.
If such a situation
a forum-selection
may properly
applied to the
opinion
this
be
any jurisdiction
the law this State
proceeding.
parties to the instant
country,
very
few cases
there would
bankruptcy court’s order
6. The
that created new law
appeal
decided
any preclusive effect on the
did not have
parties
to the
applied
could be
before
forum
clause issue. The final
selection
is not
law in
appellate court. This
address in
area
matter we must
this
concerns
country
Virginia.
nor in West
Conse-
argument
Mr.
“that the United
Caperton’s
that the new
quently, we find
forum-selection
Bankruptcy
Western
Court for the
States
principles
opinion
created in this
were
clause
final,
Virginia has
un
District of
rendered
by Keyser.
foreshadowed
specifically finding
ruling
West
contested
purpose
new
The
and effect of the
b.
proper
to be
forum
this
by applying
will
rules
be enhanced
alleged
a result of this
final
Action.”35 As
retroactively
parties.
to the
In other
rules
decision,
Caperton
Mr.
contends
opinion
we have
parts of
discussed
estoppel precludes relit
doctrine of collateral
general purpose and effect of forum-selection
proc
igation
issue in
court
the state
clause
clauses.
new forum-selection
eedings.36
simply
principles
in this
announced
decision
begin,
parameters
“[t]here
To
we note that
provide
enforcement
judicata
deny
question that the doctrines of res
application
To
no
forum-selection clauses.
estoppel
ren
parties
apply
liti-
to decisions
principles
those
in this
collateral
*29
Bankruptcy Courts.”
very
the
in Federal
Je-
gation would undermine
essence
dered
Co., Inc.,
Massey
previously
Massey
Caperton
270 B.R.
v. A.T.
Coal
35. We have
noted
the
(S.D.W.Va.2001).
attempted
to intervene
the bank-
Defendants
in
Compa-
ruptcy proceeding
by the Harman
filed
attempted
purpose
nies. The
of this
intervention
Caperton
the
36.
also contends that
doctrine
Mr.
(sic)
Caperton's
the
Caperton
was “to determine whether
judicata applies.
Insofar as Mr.
res
actually
Development’s
attacking
claims
disposition
and Harman
were
the
the
forum
issue,
bankruptcy
separately
of the
estates
whether
need not
assets
selection clause
we
Hugh Caperton
attempting
deprive
judicata
to
the
res
claim. The result would
was
address the
analysis
bankruptcy
improperly.”
be
under an
of either doctrine.
those assets
the same
estates of
Co.,
Props.
issuing
Massey’s
Inc. v. Eccelston
an order that
rome J. Steiker
involved
in-
claims,
Ltd.,
Further,
N.Y.S.2d
tervention
the federal
district court
issued another written
Caperton
interpreted
Mr.
contends that
the
order that
because
bankruptcy
bankruptcy proceeding adjudicated
regarding
the fo
the
court’s order
Mas-
issue,
sey’s claims. The
“the federal rules
federal district court
rum selection clause
made
Quest
following
the
findings:
preclusion
applied.”
must be
Sea
Int'l,
Inc.,
Shipworks,
Inc. v. Trident
As set forth
its November
1115, 1119(Fla.Dist.Ct.App.2007).
So.2d
Un
Joint Memorandum Opinion, the Bank-
law,
party asserting
der federal
collateral
ruptcy
attempted
respond
Court
to
to this
estoppel
relitigating
aas bar to
an issue must
Court’s
Opinion
Memorandum
and Order
establish
question
and determined the crucial
was
Caperton
whether
Harman Devel-
(1)
and/or
precluded
the issue to be
is identical
opment
any independent
have
causes of
(2)
already litigated,
to the issue
the issue
action under
Virginia
West
law. The
actually
prior pro-
determined in the
Bankruptcy Court then
pos-
clarified what
(3)
ceeding,
the determination of the issue
Caperton
sible claims
and Harman Devel-
part
was an essential
decision
the
opment might
independent
have that are
(4)
prior proceeding,
prior judgment
bankrupt
and non-derivative of the
es-
valid,
party
was final and
declined, however,
tates’ claims. It
to de-
estoppel
whom
had
is asserted
actual,
cide whether such claims have
le-
opportunity
full
fair
litigate
to
gal validity
Virginia
under West
state law.
issue.
Instead,
Bankruptcy
opined
Court
(4th
Coleman,
In re
426 F.3d
Cir.
question
was better addressed
a West
2005).37
court,
Virginia
federal,
either state or
long
We need not labor
on this issue. The
deciding
questions
abstained from
estoppel
second element of collateral
is dis-
presented
declaratory
judg-
positive of the matter.
In order for collater-
ment/adversary proceedings.
Integral
to
estoppel
apply
al
to the forum selection
its decision to abstain and dismiss the
issue,
actually
clause
the matter had to
adversary proceedings,
Bankruptcy
bankruptcy
proceeding.
determined
Court determined
par-
the claims
all
below,
weAs
shall demonstrate
it was not.
ties,
thereto,
adjudi-
can be
defenses
satisfactorily
cated
Virginia
in the West
previously
opin
As
indicated in this
action.
ion,
Massey
attempted
Defendants
Co.,
instant
Caperton
Inc.,
case removed to a federal
Massey
v. A.T.
Coal
(S.D.W.Va.2001)
district court
the Southern District of
(emphasis
B.R.
655-56
removal,
added).
Virginia.
response
West
aAs
result of the federal district
Companies
Caperton
the Harman
and Mr.
court’s determination that
bankruptcy
the federal
asked
district court to remand
court
deciding any
abstained from
in-
issue
claims,
the case to state
volving
Massey
court. The federal district
intervention
opinion indicating
court issued a written
federal district court
declined motion
abeyance any
ruling
Massey
would hold
about
Defendants
transfer the case
propriety
being
the ease
federal
to a federal
Virginia. Specif-
district court in
bankruptcy
court until the
ically,
court made a rul
the federal district court held that the
ing
by Massey
on the claims
Massey
asserted
as an
Defendants’ “motion for transfer of
Caperton
Massey
intervenor. See
v. A.T.
venue to the District
the Western
Co., Inc.,
(S.D.W.Va.2
moot,
Coal
their Massey alleges Caperton ... courts, law.” questions on of federal even Development seeking to en- Harman are (2003). Robinson, P.3d See v. State alleged claims force for their own benefit Co., Neely, Distrib. Inc. also Cash bankruptcy solely the which are assests of (Miss.2007) (“[S]tate su 292 n. 5 So.2d Sovereign. Mining Harman estates of duty-bound a not to follow preme courts are However, Massey’s proceedings, in these appeals’ interpretation of court of federal judi- object appears real to be to obtain law.”). Thus, the federal district federal Virgi- cial determination that under West bankruptcy interpretation court’s Develop- Caperton nia law and Harman binding on this Court. order is not court’s independent claims of their ment have no so, agree district Even we with the federal Massey pursue against can own which bankruptcy court’s order did court that alleged wrongful Because for its conduct. any issue or claim not address the merits of can be better ren- such determination attempted by Massey’s intervention raised Action, Virginia this dered in the West proceeding.40 bankrupt bankruptcy hearing Court chooses abstain Opinion Memorandum made cy court’s Joint in fa- declaratory judgment actions these following findings: by appropriate West vor of resolution By adversary proceeding, forum, or federal. Virginia whether state respective seeks a determination ownership Caperton and the interests Wheaton, Ill.App.3d Caperton's supplemental v. First Nat’l Bank
39.
In a footnote in Mr.
suggest
attempts
he
that the federal dis-
N.E.2d
brief
257 Ill.Dec.
Bank,
Durbin,
appropriate
the case to
trict court "found it
See also I.A.
Inc. v.
Nat'l
Jefferson
Virginia.”
ultimately proceed
Cir.1986)
(11th
(In
in West
The foot-
"a non-
793 F.2d
disingenuous
trying
suggest that the
note is
only
proceeding,
bankruptcy
court could
core
federal district court
that West
found
findings
proposed
fact and conclusions
issue
fully litigated
to allow the case to be
on the
had
law,
subject
review
which would be
to de novo
order, like
merits. The federal district court's
court,
findings
proposed
and such
district
order,
bankruptcy
up
left it
to the
court’s
judicata effect in
would not be entitled to res
decide the merits of all
West
courts to
litigation
subsequent
would have
because there
in the state court
claims and defenses asserted
(internal
judgment
no final
on the merits.”
been
proceeding.
SMI/USA,
omitted));
Inc. v.
citations
Profile
point
We should
out that the federal district
Tech., Inc.,
(Tex.Ct.App.
38 S.W.3d
hearing any claim or de-
court abstained from
2001) ("Although
bankruptcy judge may hear
proceeding un-
fense asserted in the state court
proceedings
proposed
and make
Find
non-core
mandatory
provision
der
of bank-
abstention
ings
Law to the
of Fact and Conclusions of
law,
litigation
ruptcy
law
because the state
Court,
judge may
a final
not render
District
proceeding
bankruptcy purposes.
core
result,
judgment
claims. As a
a bank
on such
held,
Specifically, the federal district court
proceed
ruptcy
disposition
court's
of non-core
Companies’
[the
The Court holds
Harman
subsequent
ings
judicata
res
as to
state
is not
Caperton’s]
and Mr.
claims are non-core be-
claims.”).
proceedings regarding the same
court
1)
specifically
are not
identi-
cause:
the claims
proceedings
fied as core
under 28 U.S.C.
Caperton’s
judicata
fail
Mr.
res
claim would
157(b)(2); 2)
prior
§
the claims existed
bankruptcy
enter a
court did not
because
bankruptcy
filing
Companies’]
the [Harman
Massey's
judgment
inter-
final
on the
merits
3)
petitions;
solely
the claims
based
Bank Ltd.
vention claims. See Israel Disc.
independent
state law and therefore exist
Entin,
(11th Cir.1992) ("Res
951 F.2d
11;
4)
par-
provisions Chapter
(1)
judicata
subsequent action if:
... will bar a
rights
ties'
are not affected
the outcome of
prior
decision was rendered
a court of
bankruptcy proceedings.
(2)
competent jurisdiction;
there was
final
generally recog-
Caperton,
[plaintiff] injured individually because S.E.2d at 703. See also Martin v. SAIF actually necessarily Corp., such issue was not 339 Mont. 167 P.3d 918-19 (2007) (“Full bankruptcy proceeding, generally decided faith and credit re Bankruptcy expressly quires every give judgment deter- to a State *32 658 judicata judg- separate effect which the The facts of Aronow involved two
least the res by plaintiffs against accorded in the State which lawsuits filed different ment would be (internal quotations prosecu- and citation the same law firm for rendered it.” malicious omitted)). tion.41 One lawsuit was filed Dr. Ann
Fitzsimmons,
and the other was filed Bet-
ty
brought by
Aronow.
In the case
Dr.
specific
discussing
Before
ele
Fitzsimmons,
judgment
in
was rendered
ments that must be established in order for
27,
January
favor of the law firm on
1981.
judicata
apply
preclusive
effect of res
However,
law,
appeal,
as a
of an
the case
result
Virginia
under
we must first address a
24,
finally disposed
was not
of until June
preliminary
Virgi
issue. Under the laws of
nia,
brought by
1987. The action
Ms.
judgment
purposes
Aronow
“a
is not final for the
5,
went to trial on October
1982. Prior to
judicata
being appealed
...
of res
when it is
trial
the law firm raised the
perfecting
issue
res
or when the time limits fixed for
judicata, but the trial court found that res
appeal
expired.”
have not
Faison v.
Hudson,
413, 419,
judicata
apply
did not
Dr.
because
Fitzsim-
417
243 Va.
S.E.2d
(1992).
case,
pending
appeal
mons’ case was
and there-
appears
In the instant
jury ultimately
fore had not become final. A
judgment
Virginia
that a trial court
in the
returned a
May
verdict
favor of Ms. Aronow
proceeding was entered on
1, 2002,
damages.
her
Subsequently,
April
Massey
on
awarded
The law firm
filed
summary judgment
appealed
judgment.
a motion for
with the
the case was
While
court,
Virginia
arguing
pending
appeal,
West
circuit
on
Dr. Fitzsimmons’ case
principles
judicata required
of res
appellate
dismissal
became final after an
court ren-
Virginia
of the
case as a result of the
affirming
West
dered a
in fa-
decision
the verdict
judgment
Virginia
case. On June
vor of the law firm. As a result of Dr.
final,
circuit
court denied the motion.
becoming
Fitzsimmons’ case
the law
denying
The
circuit court was correct
sum
judicata
firm raised the
issue
res
mary judgment
judicata grounds
on
be
res
appeal
appellate
of Ms. Aronow’s case. The
cause,
at the time
filed its motion
court in Aronow
found that
issue could
matter,
and the circuit
decided the
court
appeal:
be raised on
Virginia judgment
being appealed by
was
First,
question
we consider the
of a final
out,
pointed
As
Wellmore.
we have
under
judgment on the
At the time
merits.
Virginia
judgment
“a
final
law
is not
for res
began,
[Ms. Aronow]
court trial of
[Dr.
judicata purposes
being appealed.”
if it is
appeal,
Fitzsimmons’
was on
so there
case]
Enters.,
CDM
Inc. v. Commonwealth/Manu
judgment
was no final
... on which [the
Bd.,
702, 709,
Va.App.
Hous.
factured
rely
judicata
firm]
law
could
to raise a res
(emphasis
original).
S.E.2d
However,
defense in the trial court....
judgment
...
our affirmance of the
[the
Virginia judgment
did not be
final,
law
...
firm’s]
[became]
favor
on
purposes
judicata
come final for
of res
until
28, 1987,
September
present ap-
while the
September
Supreme
when the
peal
pending.
Virginia
ap
dismissed Wellmore’s
circumstances,
peal.
Corp.
See Wellmore Coal
v. Harman
Under
these
law
[the
Mining Corp.,
judgment
firm]
264 Va.
entitled to recover from Mr.
true,
argued by the learned
It
is
counter-claim.
[Ward],
appellate court
counsel for
that an
reviewing
proceedings
disposition
Har-
the record of the
As a result of the
lawsuit,
per-Ward
Mr.
in the court below will not entertain the
Charlton asked
that,
adopted
pointed
appealed.
It should be
out
at the time of
This rule was first
case,
Hudson,
Supreme
Court of
had not
Virginia explained the
concept
way:
supra;
v. Ware
Haley,
Brown v.
233 Va.
Castles,
[Wright
210, 219,
At first brush
v.
232 Va.
(equitable
earlier
Alls
Castles,
Alexandria,
Wright
Towing,
City
v.
tar
parties); and
Inc. v.
same
Allstar,
(prior chancery
S.E.2d 125
Va.
could not
(2000).
pleadings
the
in the
S.E.2d
243
In other
adjudication
523
“
words,
cause;
anyone
arising
judicata applies
after the
to a matter
res
‘so
nor
party]
even in a second
adjudication,
identified in interest with
that he
[a
former
the
parties
represents
legal right, precisely
former or
suit between
same
controversy,
of action are
privies,
question, particular
their
if the causes
the same
”
same,
omitted).
(cites
Johnson,
Va.App.
7
at
376
issue.’
(citation omitted).
S.E.2d at 788
(em-
Corp.,
WL
at *8
Cherokee
added).
Virginia Imports,
also
phasis
See
Enters., Inc. v.
CDM
Commonwealth/Manu
6,n.
n.
Va.App. at 410
[t]he
of res
Johnson,
parties
Gray
to the actual
in a case but also Commonwealth ex rel.
v.
City
Va.App.
in
with
S.E.2d
privity
those
them. See
judice,
identity
we find
made
Turning
the case mb
determination be
of the
Virginia proceeding
parties
quality
persons
to the
of the
against
that
whom
parties
in
explained by
“are
identified
interest” with
the claim was made. As
Virgi
so
they “repre-
proceeding
court,
to the instant
trial
‘identity
quality’
nia
“[t]he
ele
Enters.,
legal right[s].”
the same
CDM
requirement
parties
sent
ment
is a
in
Inc.,
Va.App.
at
with Harman signed that he the 1997 CSA in extent his
capacity president Sovereign, and inso- CONCLUSION Mining Sovereign as Harman far body For the stated in reasons wholly-owned subsidiaries of Harman Devel- opinion, judgment we reverse this case Caperton opment, and Mr. sole owner is the to enter and remand for the circuit court Likewise, Development. Harman A.T. dismissing this A.T. order ease Mas- *39 Massey Company privity Coal is in with its sey Coal Company and its with subsidiaries Wellmore, subsidiary remaining as are the prejudice. Defendants, Massey who subsidiar- are also Massey corporations ies of and sister Reversed and remanded.
Wellmore. Identity quality of the Chief Justice MAYNARD and Justice persons STARCHER,
the the deeming for or whom claim themselves indicated, previously pur disqualified, participate made. As the did not judicata, Virginia requires poses of res decision of this case. FOX, “Massey’s that conduct warranted Judge sitting opinion COOKMAN and
Judge judgment type [below] in assignment. the rendered by temporary majority Id. the this case.” This time Judge ALBRIGHT and Justice regarding silent disdain Mas- stands right the dissent and reserve COOKMAN sey’s again it bends the law conduct. Once dissenting opinions. file “result deny proper Plaintiffs the clearly appears justified.” Id. Acting Chief Justice BENJAMIN right the Judge FOX concur and reserve record, wholeheartedly em- For the we opinions. concurring file Court the determination of this the brace COOKMAN, ALBRIGHT, Justice, withdrawn, original, opinion now “Mas- sitting by special assignment, type judg- Judge, sey’s conduct warranted the dissenting. [below] rendered in this case.” ment Id. Likewise, saying we do not shrink from with- rehearing the Court on This case is before should now out reservation that this Court on the after the five elected Justices granted judgment against the the De- affirm Court, proper disagreeing about the while for the in this fendants reasons outlined dis- case, unanimously of the ultimate outcome Moreover, the failure of the Court now sent. “Massey’s conduct agreed that defendant acknowledge justice of to even the Plaintiffs’ type judgment the rendered warranted below, opinion, previous as it in the case had Caperton in this v. A.T. [below] case.” the result-driven nature of the underlines Co., Inc., Massey Coal WL majority opinion. Id. current (No. 33350, filed November Slip Op. at 2007),withdrawn. law, the errors of In terms of the the
Nevertheless, majority opinion complex or three for are not difficult a vote of They explain. in number. reversed the are few against, original Court two of the Boone judgment Circuit First, under our law as it existed before (Appellees County, awarded Plaintiffs which case, proper majority in this decision here) million, plus interest and over $50 regarding enforceability of a inquiry fo- costs, egregious conduct. on account of that rum selection in a contract was wheth- clause rejection majority explained its er, analysis, with careful its enforcement was simply judgment by saying “we court’s lower just reasonable and in the circumstances of compromise law in order to cannot this the case. In case it was not. clearly appears to be reach a result justified.” Second, Id. Virginia under as it the law at all to the case be- existed times relevant filed, opinion two of After that when, us, judicata under applied res fore Justices themselves fur- elected recused ease, fairly the issues facts of all of A motion to ther consideration of the case. arising pled, under facts could Court on granted the case was this rehear pled, proved have been could have been remaining the unanimous vote of the three us, before the same evidence. In the case Judge judges, and two Cook- Justices circuit transactions be- several occurrences and Fox, Judge by acting appointed man and case, parties to this which were tween Now, Benjamin. Chief Justice reconsti- original Virginia not involved contract has again tuted Court reversed lower action, required substantial amounts evi- (Davis, J.; Benjamin, court a vote three would relevant in dence which not have been J.) Fox, J., (Albright, J. and to two contract action. J.) Cookman, Finally, under West law as ex- Today’s opinion “new” of the Court rests opinion was filed in grounds majority isted before legal on the same indefensible case, court on the decision of a lower original opinion supplemented even — *40 judi- of res questions plea of raised more extended discussion some venue to be under an abuse of strangely, omitting clearly cata were reviewed points but, — standard, evaluating the lower original majority discretion correct assertion in the facts, not all application court’s of the law to the such decisions of lower courts without novo, majority has now ruled. regard de as the to the reasonable discretion of the trial courts and their view of applicable legal argu- The more narrow and focused facts. rehearing supporting ments and facts of the (1) process make it all the more clear that 3.Lastly, imperially this Court found in Massey’s the bounds of conduct was outside majority opinion Virginia that the law decency respectable business human judicata on the clearly issue of res has been practices, poses the law no barrier to through Any settled from 1998 2002. fair County jury upholding the Boone verdict Virginia review of the cases in and the course finding repugnant such behavior and deserv- development Virginia law demonstrates ing opposed simply decid- of redress. As beyond doubt that law in that time ing they on the facts and law the case frame deprive would not the Circuit Court of complained existed at the time the events County Boone venue the cause before occurred, majority kneads the facts so grant us to hear and determine and the relief majority fit the better new law the warranted____” “Massey’s conduct Caper necessary not finds create for West ton, (No. Slip Op. 2007 WL at 13 Virginia. explain also for we but As 21, 2007), filed November withdrawn. below, judicata principles in detail neither res presence nor the of a forum selection clause impediment upholding
serve as I. DISCUSSION OF THE FACTS jury In- lower court’s actions and verdict. Nothing completely highlights so the er- stead, majority ignores decision now majority rors of opinion outright and the injustice admitted done to Plaintiffs. It fash- injustice thorough of its result as a review of points ions no less than nine new of law to the evidence admitted in the trial of this majority. achieve result desired forty-page case. In the denying Ap- order accomplish goal, majority: To (Defendants below) pellants judgment as a Broadly 1. endorses forum selection trial, is, matter of law or a new refusing clauses, applicable persons makes them case, jury to overturn the verdict in this party containing to the contracts such lower court found that there was sufficient clauses, cautious, removes hint of the jury evidence from which the could have approval juris- limited such clauses our supply agreement found that the coal con- prudence, extends their effect causes of taining the forum selection clause was but action in which the related contract is but far-reaching one factor in a scheme which justifying recovery, one several factors Massey set Mining out to ruin Harman charges those who would resist their Hugh Caperton-beginning its owner before application obligation proving with the Massey’s supply involvement with the coal them unreasonable-even when the time for agreement ending Massey’s after brief adducing require- evidence to meet that new ownership company party agree- of a to that irretrievably ment has passed-making it im- ment. possible for Plaintiffs to defend their $50 order, In its the Circuit Court of Boone judgment. million County weight said “[T]he of the evidence at respect principle With of res fairly trial clearly established and was suffi- judicata prior adjudicated suit —whether Jury” cient for the to conclude that: adjudicated could in a issues raised majority acquire suit filed later —the [United now makes the chose to Coal novo, Company] lower court’s decisions reviewable de in order to eliminate a com- is, removing any petitor requirement gain that this and to more access to LTV give any Corporation], fully Court deference to [Steel the lower court’s ... [while] proper application cognizant long-term consideration of the of Harman’s coal particular law to the of a supply agreement facts case. In that with Wellmore and regard, majority opinion preference opens now LTV’s for the UCC/Harman systematically door to this reviewing blend. *41 LTV, fully cognizant Harman’s order, the trial cess to but paragraph
In weight long-term supply agreement coal Well- further said court preference for and was fairly established more and LTV’s trial evidence at con- jury to further In a document written for the blend. clearly sufficient UCC/Harman UCC, Massey Massey’s purchase of prior that:1 clude as follows: the situation characterized (collectively Corporate Plaintiffs The [a] terms, metallurgical layman’s the UCC “Harman”) in the business of formerly were Massey’s pre- equivalent to quality is coal metallurgical selling high quality mining and coal, is further en- Marfork but mium Mine. The from the Harman produced coal by having higher inerts level hanced a “Massey”) are also (collectively Defendants UCC had achieved lower sulfur content. a selling mining met- in the business and/or supplier relation- particularly enviable Massey were Harman allurgical coal. (“LTV”) Corporation ship with LTV Steel competitors. place for over that has now been desired, things, among Massey other [b] relationship years. Surprisingly, the LTV (“LTV”) as a Corporation gain LTV Steel contract, but by long-term is not secured new customer. purchase orders that are by annual rather pm-chased had sub- years, LTV For [c] pricing consistently renewed at favorable metallurgical coal from amounts stantial regard high for levels because of LTV’s (“UCC”). The coal Company United Coal quality. the UCC coal purchased from preferred and that LTV Harman coal premium blend of UCC was a (the other, quality coals lesser dependence [sic] UCC’s decree blend”) Har- Coal from the “UCC/Harman obviously a mining coal is sensitiv- Harman very metallurgical coal with
man Mine is represents about 40% ity, that source since prized cooking characteristics favorable shipment level at Wellmore the annual steelmakers like LTV. fairly critical No. and has become all of many years, Harman sold For [d] in the LTV coal blend. ingredient subsidiaries, of UCC’s Well- its coal to one mining purchase com- term of the Harman (“Wellmore”), which Corporation more Coal year through the 2001.... mitment runs was, turn, part as of the supplied to LTV were risks Massey knew that there [¶] During the relevant Blend. UCC/Harman pre- acquisition. In a with its associated long-term coal period, had a time Harman risks, assessing those acquisition document Harman supply agreement with Wellmore. stated, significant risk Massey “The most con- exclusively reliant on that was almost is that with this transaction associated always management had tract. Wellmore’s relationship supplier be- plus-10-years-old and sell to it as encouraged Harman to mine continue un- and UCC tween LTV Harman had possibly could. much coal as ownership.” Massey der quali- high supplying with its been Wellmore however, document, [g] In that same a continuous basis ty metallurgical coal on enjoy very Massey it would noted many years. if it could cause economic outcome favorable Massey years, wanted LTV For [e] Mines, Massey purchase coal from LTV to of coals tried to increase sales business and Blend, at the instead UCC/Harman (“Massey production sources from its coal. price paying LTV was UCC/Harman Mines”) LTV, with little success. So but Harman coal was Recognizing that [h] in order to acquire UCC chose that LTV ingredient in the coal blend critical gain and to more ac- competitor eliminate a dissenting opinion to this directly quote extensively the order is attached opinion 1. This will now Judge Jay very thorough grateful appendix. order. It We are from the court's lower Circuit, particular pages sitting in all will or utilize not cite to the 25th Judicial Hoke of indicating quo- means of cases the conventional County, exhaustive for his Circuit Court of Boone marks, tations, quotation indenta- double such as evidence. review of the However, tions, single spacing. the full text *42 past legal ened not to knowing and that LTV in the Plaintiffs undertake preferred, purchase Massey from purchase not to much coal action. offered to had chosen the as- Massey nonetheless went ahead Massey, sets of Harman at a price. distressed sale Further, recognizing UCC. purchased delayed Massey and ultimately then col- extremely change a reluctant to “LTV is lapsed the transaction such a as manner so blend”, coal Mas- long-established, successful to Plaintiffs’ increase the financial distress. sey went ahead and marketed nonetheless Instead, utilizing confidential ob- information Massey replace Mines to LTV to coals from alleged tained from Plaintiffs for the purpose preferred. the Harman blend that LTV a negotiating disputes, settlement of their Massey purchased a narrow coal band of Massey provided price LTV with firm [i] surrounding reserves much of the Harman Mines, mainly Massey quotes coal from purpose making Mine for Harman coal, Harman and insisted that LTV not unattractive others and to to decrease its Massey via provider its sole-source make Massey, Massey planned value to all but contract, that, despite coal long-term the fact acquire long to Harman in the run.” preferred suppli- historically, multiple LTV multi-year, long-term ers and did utilize Against Caperton A. Actions Plaintiff price contracts. The Mas- supply coal Personally sey quoted for it is coals to LTV consti- [sic] improvement” “handsome over the tuted a identified, by way The trial court of exam- prices receiving had been its coals. it ple, specific jury actions which the find could against were directed Defendants Plaintiff Massey’s resulted [j] marketing strategy Caperton personal capacity, in his as follows: that it in a LTV business-a risk loss fully acknowledged Massey’s under- conduct in appreciated, “negotiating” [i] di- marketing rectly Caperton even prior its efforts and with and under the Febru- stood Only purchase ary agreement: after prior Massey to its of UCC. 1998 letter sub- marketing agreement Massey’s Caperton efforts caused the loss of mitted a letter to Mr. Massey Sovereign did LTVs business direct Wellmore as President of and Harman in ” Harman, majeure Massey and expressly to declare Wellmore “force Massey put agreed good “pursue negotiations a declaration which knew would faith Massey concluding acknowl- Harman out business. toward described transac- readily edged purchase able to tions.” The transaction described in the Wellmore coal, Harman chose agreement and sell the but instead was intended to settle all issues ” majen,re relating Supply Agreement Coal to have Wellmore declare to 1997 “force Massey parties analysis permit Massey cost benefit between based performed acquire Corpo- in- Caperton’s which indicated that it would interest in the Furthermore, profits by doing rate crease its so. Plaintiffs. Massey directed the before declaration Massey’s negotiating conduct in let- [ii] ”, majeure Massey the fact concealed Grundy: ter of In the “force intent letter Massey that the LTV business was lost and intent, Massey purchase agreed to note delayed termination Wellmore’s of Harman’s by Grundy. Massey held entered into year, knowing late in contract until Grundy letter intent with with full virtually impossible
would be
for Harman to
Caperton’s personal
knowledge
guaran-
buyers
point
find alternate
for its coal at that
Grundy note.
tee on the
suddenly stopped
Once
time.
Wellmore
Massey’s
affecting Caper-
conduct
[iii]
purchasing
output,
Harman’s
had
Harman
no
obligations: Knowing Caper-
ton’s Terra
meantime,
stay in
ability to
In
business.
responsibilities
personal
ton’s
for reclama-
Massey Wellmore.
sold
Terra,
obligations
Massey agreed
tion
operations,
replace
After Harman shut
Terra reclamation
[k]
down
bond with
“Massey
steps
prevent
Massey
During negotiations,
took a series of
bond.
Plaintiffs,
corporately
personally,
both
Massey
documents reflect
internal
pursuing legal
arising
Caperton’s
guarantees
personal
remedies
out of
were dis-
and,
Massey’s
Massey’s
misconduct.
threat-
CEO
cussed
consideration for
B. Additional Facts
transaction,
specifically negoti-
parties
personal guarantee
of “his
release
ated the
order,
court
paragraph 6 of its
the trial
Caperton’s per-
Recognizing
obligations.”
it had no
Massey’s assertion that
took note of
negotiations,
interest
sonal
*43
pur-
to
interfere with Harman or
“intent to
signatory
to be
required Caperton
the Plain-
financial distress for
posely cause
documents,
far-reaching
sought a
closing
Massey
long
would benefit
tiffs so that
and
Caperton personally,
release
run____”
simply noted that
The lower court
personal
Caperton a
release
give
agreed
documentary
pieces
evidence
“numerous
in return.
by Massey belied that
testimo-
authored
upon
duty mitigate based
Massey’s
[iv]
ny....”
Caperton’s actions taken
knowledge of
order,
through 11 of the
paragraphs 9
In
Massey
knew
reliance:
detrimental
thorough
undertook a
review
the lower court
information
ex-
through
confidential
supporting each of three
of the evidence
during
December 1997
changed
which the case was
upon
of action
causes
Caperton,
with
January
discussions
1998
upon
jury
which the
rendered its
tried and
Har-
plans to shut down
Caperton’s
about
interference,
fraudulent
tortious
verdict:
Massey’s wrongfully
a result
man as
conceal-
and fraudulent
misrepresentation
mqjeure”. Massey
declaration
“force
the essen-
court identified
ment. The lower
that,
upon an
in reliance
knew
further
action and
for each cause of
tial elements
concerning
principle
reached
agreement
respect
with
analyzed the evidence adduced
closing date
key
proposed
and a
terms
action, finding prima
cause of
to each such
31, 1998, Caperton intended to
January
count.2 In
on each
case established
facia
operations on Janu-
Harman’s
shut down
supporting an
respects,
the evidence
some
19,
Massey was also aware
ary
evidence
count was the same
element
one
Massey’s failure to close as
impact
count, find-
of another
supporting an element
personal-
Caperton
on
would have
planned
repeat
not to
ings which we will endeavor
(based
likely
personal guarantees,
ly
on his
requires it. How-
except where the context
etc.).
listing,
Unknown to
AVS violator
ever,
the lower court found
the facts
an internal deci-
Caperton,
made
paint in further
supported by the evidence
by the
to close the transaction
sion not
by
dastardly
of action Defen-
detail a
course
31, 1998,
January
but
agreed-to date
go
which will now unredressed.
dants
Caperton
let
move for-
instead to
chose
9,
pri-
paragraph
the trial court found
plans based
his mistak-
ward with his
proof that:
closing date.
ma
concerning the
en belief
facia
1,
Lint,
See,
Lengyel
e.g., Syllabus
v.
Point
and their essential
three causes of action
2. The
272,
(1981), citing
v.
Horton
W.Va.
280 S.E.2d
as follows:
identified in the order
elements are
242,
737,
Tyree,
(1927).
139 S.E.
104 W.Va.
with Plaintiffs' ad-
1. Tortious interference
relationships:
vantageous business
concealment:
3. Fraudulent
(a)
or business
of a contractual
the existence
fraudulent was
that the act claimed to be
expectancy;
relationship or
him;
or induced
the act of the defendant
(b)
by party
act of interference
an intentional
false;
(b)
material and
that it was
relationship
expectancy;
outside that
(c)
justified
plaintiff
on it and was
under
relied
harm
proof
caused the
it;
that the interference
relying
on
circumstances
sustained; and
(c)
damaged
he relied on
he
because
that was
(d) damages.
it."
See,
Wheeling
Lint,
Syllabus
v.
e.g.,
See,
Point
Torbett
e.g., Syl.
Lengyel
W.Va.
Pt.
Co.,
(1981),
173 W.Va.
Tyree,
& Trust
citing
Dollar Sav.
Horton v.
with National his lia- ally disregard acted in utter of Plaintiffs’ bility under the Terra reclamation bonds rights ultimately destroyed and Plaintiffs’ (and Applicant resulting listing on the Viola- Caperton’s businesses and Plaintiff caused “AVS”), System, personal rela- tor or and his because, listing resultant AVS after conduct- Further, tionship with United Bank. the evi- ing analyses, cost-benefit the Defendants clearly Jury dence was sufficient for the to concluded that it was in the Defendants’ fi- engaged that Defendants in this conclude nancial interest to do so[.] specific pur- intentional interference for the here, In its order under discussion the trial Plaintiffs, financially destroying pose of both court next commented on the evidence from corporately personally. jury might properly which the find that De-
(a) example, Massey persuade For tried to fendants failed to establish their defense of coal, buy place justification” LTV to its coals in of Harman “business under section 767 of ” threats, (Second) majeu.re used and other and the Restatement Torts and our “force Structures, Development otherwise interfered with Harman’s contrac- case of C.W. Inc. v. 462, 465, purpose placing Virginia, Inc. tual relations for the West 185 W.Va. Plaintiffs, (1991), corporately personally, finding in 408 S.E.2d clearly jury evidence was great financial have Har- sufficient for the distress order to man, conclude that: Massey, Massey’s not bear the cost marketing strategy with LTV.
failed developed plan Defendants to inter- [i] existing prospec- fere with Plaintiffs’ (b) Massey example, For directed Well- tive with relations Wellmore before AT. ” majeure more to declare as a result “force Company acquired Coal Wellmore. Massey losing LTVs business due to Mas- Massey acquired pur- [ii] UCC with the sey’s marketing attempts. failed pose gaining access to LTV and to have (c) example, directing For after the decla- ability supply with to interfere “force, majeure”, ration of the Defendants Harman to LTV. participated negotiations in settlement with [iii] Defendants’ Chief Executive Of- Plaintiffs and with Penn Coal Com- (CEO), reading ap- ficer without ever reserves, pany, the Lessor of Plaintiffs’ not plicable long Supply Agreement, term Coal settling disputes, with the intention of but for Corporation directed that Wellmore Coal Plaintiffs, purpose placing corpo- (“Wellmore”) threaten Plaintiffs with the rately personally, greater financial majuere;” declaration of “force distress. November, meeting [iv] At a held in (d) example, directing Virginia, For after the decla- West Defendants’ CEO majeure", ration of Corporate the Defendants threatened the Plaintiffs and “force directly Grundy Caperton long protracted dealt with National Bank Mr. with pursuant by Grundy, litigation Corporate notes held for which in the event the Plain- Caperton given personal agree give up rights Plaintiff had did his tiffs reserves; guaranty; their November, advantage, meeting the and the Plaintiffs to its with At the [v] of the regard informa- little or no to the outcome obtained confidential Defendants Plaintiffs, and, thereafter, personally. purported corporately either or on the tion Caperton’s purchase interest promise to Returning supporting evidence Plaintiffs, in- Corporate the assets of counts, of the three essential elements that confidential information to stead used trial court recited: acquire adjoining reserves which the De- (k) negotiations That Defendants’ acknowl- fendants’ own internal documents Caperton period Plaintiff in the time that the Plain- edged help would to insure through March 1998 were November would be valuable to tiffs’ reserves directly by Ex- conducted Defendants’ Chief Defendants; Office, Blankenship, ecutive Donald and not Massey engaged in a cost-benefit [vi] officers; any corporate of its Wellmore analysis to determine whether it should maj- (i) Defendants, to declare direct Wellmore That not Wellmore “force ”; officers, corporate eure interfered with of its Caperton’s management Plaintiff On December at the Defen- [vii] bankruptcy Corporate Plaintiffs contrary dants’ direction and recom- *45 standing in purchasing claims to obtain management, mendations of its Wellmore Bankruptcy Caperton re- Court and to have maj- occurrence declared the “force ” debtor-in-possession; moved as the Supply Agree- eure event under the Coal ment, which reduced Wellmore’s commit- (m) spe- That Defendants took numerous purchase ment to coal from Plaintiffs wrongfully steps pursuant plan cific to its 1, 1998, January beginning on over 60% existing interfere with contractual Plaintiffs’ knowledge that 60% loss with full before, during relations with and Wellmore financially devastating to Plain- would time that Defendant A.T. after short tiffs; Massey Company Coal owned Wellmore. directing After the declaration of [viii] any The trial further that court observed majewre”, partici- the Defendants “force legitimate justification privilege to inter- pated negotiations in settlement with fere in the contractual relations of subsidiar- Plaintiffs and the Lessor of Plaintiffs’ re- wrongful ies be lost conduct and serves, settling not with the intention preceding that further observed recital disputes, purpose placing but for the the evidence was sufficient to established Plaintiffs, corporately personally, and case, jury allow the to so conclude and distress; greater financial then found further: misrepresented The Defendants their [ix] additional, (p) That substantial evidence of any disputes intention settle between improper presented Jury in- motive parties through purchase an offered that, day August cluded one after assets, Harman and sale of and instead (the acquisition parent of United Coal delayed reneged then transaction and Wellmore), company manage- Wellmore’s purchase the on their stated intention to purchase of Har- ment recommended by collapsing Harman assets the deal after production following entire for the man’s operations the Harman were shut down in CEO, year, but that Defendants’ Donald sale; anticipation of the Blankenship, overruled this recommendation intentionally The defendants acted in [x] purchase and directed Wellmore to refuse to disregard rights utter and Plaintiffs’ tonnages more than the minimum because ultimately destroyed Plaintiffs’ businesses ”, days purported majewre that four “force because, conducting after cost-benefit anal- later, having Blankenship’s after enacted di- yses, the that it Defendants concluded was rective, up Blankenship put Wellmore so; in their financial do and interest September 1997[.] sale in consistently attempt- The Defendants [xi] order, disparity paragraph In of its the trial court ed to use the of resources and clearly bargaining power found that: “The evidence was suffi- between the Defendants Jury for the to conclude that Defen- [iii] cient Defendants concealed the fact fraudulently misrepresented dants material that it made firm numerous offers to sell information, Plaintiffs, personally both the Defendants’ West coals to corporately, justifiably LTV, De- relied price but did not make firm offers to misrepresentations, fendants’ fraudulent LTV; sell Harman coal to Plaintiffs, personally corpo- both purposely [iv] The Defendants omitted to rately, damaged justifi- were because of that disclose the fact that it lost the busi- LTV specifically reliance.” The order able noted ness, which it lost not because of eight examples sufficiency, previ- of this five majeure” but because of Defen- “force ously following and the cited three: marketing strategy dants’ dealings [ij marketing While their West LTV, particularly its insistence that LTV, intentionally coals Defendants LTV fill all of requirements its coal impression the false created to Plaintiffs through Virginia opera- Defendants’ West actually trying were to sell Har- supplier, tions via a long-term sole con- LTV; man coal to tract, through its decision not to allow [iij declaring majeure”, In Well- “force purchase coal, LTV to pre- Harman LTV’s more was directed the Defendants’ sen- choice; ferred management supposed ior to claim that the ” [v] Rather than tell Plaintiffs of its ef- unforeseen, majeure event of “force forts to sell the Defendants’ coals and its when was well aware of and had in selling coals, lack of effort in Harman fact foreseen event least seven Representatives Defendants’ waited until occurred; months before shortly year-end, before nearly when it is ”, declaring majeure Liii] Well- “force impossible to make supply new coal ar- *46 by more was directed Defendants’ senior rangements following year, for the and management facility to claim that a coke then directed Wellmore to declare “force down, had shut when Defendants knew it ” majeure effectively destroy and had not[.] Plaintiffs’ businesses. respect With to the tort of fraudulent con- cealment, the trial court concluded that: clearly
“The evidence was sufficient for the Jury to conclude that Defendants fraudulent- 1, 1997, On [vii] December at the Defen- ly they concealed material information which contrary dants’ direction and to the recom- disclose, duty were under a that Defen- management, mendations its Wellmore dants were motivated to conceal material in- maj- declared the occurrence of a “force ” Plaintiffs, prevent formation and both Supply Agree- eure event under the Coal personally corporately, discovering and from ment, which reduced Wellmore’s commit- information, Plaintiffs, per- and that both purchase by ment to coal from Plaintiffs sonally corporately, damaged and were be- beginning January over 60% on cause of Defendants’ concealment.” The knowledge with full the 60% loss gave court examples, lower then thirteen in- financially devastating would be to Plain- cluding these nine: tiffs; marketing Li] While their West
coals to created the false LTV, the Defendants impression intentionally to Plaintiffs [*] [*] [*] actually trying were to sell Har- The Defendants’ [ix] declaration of “force ” LTV; man coal to majeure was without contractual ba- During Lii] the months that the Defen- sis as Defendants knew was neither a LTV Wellmore, trying persuade buy dants were January LTV to customer of effective containing exclusively Massey coal blends nor had Pittsburgh plant the LTV coals mined the West Defen- by any governmen- been directed to close coal, place action, dants of Harman the Defen- tal but instead was intended to Plaintiffs; dants concealed this fact place pressure upon from additional economic through evidence a number Plaintiffs, person- introduced corporately and both exhibits, testimony of including expert ally; opined a reasonable Stagg
Alan who certainty regarding professional degree place Ca- plan put into when the business concealed their true Defendants The [xi] in 1993 and perton took over the business any disputed be- to settle intention not Harman provided a valuation of the who reneged its and stat- parties tween reserves, and of Mark Gleason who coal Harman as- purchase the intention to ed degree of account- opined to a reasonable collapsed the deal sets, and Defendants Corporate Plaintiffs ing certainty that the operations had down shut after Plaintiffs Defendants; damages exceeding million as suffered $29 anticipation of sale of their busi- of the destruction result ness, jury could response to which the reasonably there was suffi- determine that consistently at- Defendants The [xiii] Corporate to show that the cient evidence disparity of resources tempted to use damages were caused Defen- Plaintiffs’ the Defen- bargaining power between misconduct; tortious dants’ advantage, Plaintiffs to its and the dants regard no to the outcome with little or Caperton introduced That Plaintiff [ii] Plaintiffs, person- corporately or either testimony own through on his evidence ally. behalf, Selby, through expert his Daniel there also found degree “[t]hat lower court of ac- opined to a reasonable who finding support testimony evidence counting certainty, through was sufficient the infor- duty by Reece, Defendants to disclose Grundy of a Bobby an executive at Plaintiffs, corpo- both Bank, mation concealed through introduc- National example, including, for rately personally, establishing all his individu- tion of exhibits agreement dated of a letter injury personal the submission injuries, including to his al Caperton, in both his February reputation resulting in the professional capacities, agreeing corporate income, personal op- and business loss of benefits negotiations good faith toward ‘pursue way injury by of lost portunities, personal transactions’, and concluding the described employment opportunities earnings and *47 true inten- AVS, concealed their that Defendants personal and way listing of his on the any disputes at that time not to settle tion in- injury by way of Defendants’ tortious reneged their parties and on between the personal guaranty obli- terference with his purchase the Harman as- intention to jury stated could response in to which the gations sets, collapsed the deal after and Defendants suffi- reasonably determine that there was operations in antici- had shut down Plaintiffs the Plaintiff evidence to show that cient pation Defendants[.]” of a sale to the caused De- Caperton’s damages were evi- misconduct. Such fendants’ tortious the evi- Finally, trial court reviewed included, not limited to: but was dence damages supporting the award dence Again, claims. the evidence the three tort Caperton was a busi- The Plaintiff [iii] agree- supply to the coal part was in related and his lenders ness leader with whom ment, larger part was com- but in a much willing to do business before vendors were in a from that admissible pletely different conduct; tortious Defendants’ proper noting the action. After contract and lenders with whom The vendors [iv] damages for each of the three measure of done Caperton previously had Plaintiff torts, following court offered the the trial with to do business business now refuse evidence, by way of review of the substantial conduct; him to Defendants’ tortious due example, jury could reach its from which punitive dam- compensatory verdict on and con- Defendants’ tortious Due to the [v] ages: duct, a defen- Caperton became Plaintiff brought against in several lawsuits introduced testi- dant
[i]Corporate Plaintiffs and vendors personally the lenders him mony through a number of witnesses enjoyed previously whom he had tions were made occurred in Virginia. West relationship; On issue as well it should noted beneficial that: Due to the tortious con- Defendants’ (a) [vi] That Defendants’ misconduct occurred duct, judgments Caperton Plaintiff has had part in substantial State Virgi- of West personal- him against tax liens entered nia, purpose was for the of benefiting Defen- throughout Virginia; of West ly the State Virginia operations, dants’ West and substan- tially injured residents of State of Due to West the Defendants’ tortious con- [vii] Virginia; duct, personal Caperton’s Plaintiff credit
rating and creditworthiness have been de- (b) That, Supply Agree- while the Coal stroyed; Sovereign ment between Plaintiff Coal Sales Due to the Defendant’s tortious con- [viii] requii’ed and Wellmore Sovereign pursue duct, Caperton pre- Plaintiff was and is its breach of contact claims Wellmore obtaining mining permit cluded and in the State Virginia, the Defendant engaging in as a (Wellmore) his livelihood result of his that action entity was different listing; AVS here, than the litigat- Defendants it was jury ed awarded verdict based Caperton’s listing, The Plaintiff AVS [ix] only, breach of contract and that the according testimony at trial those in processed appeal defendant’s mining industry, a “black- constitutes Virginia only; the State of ball”; [xj (c) Due to tortious That, Defendants’ interfer- as the record this case illus- ence, personal Caperton’s Plaintiff annual great depth, trates alleged Plaintiffs income went from in excess of proved million jury’s $1.3 satisfaction that the $60,000.00; torts occurred in Virginia!)] the State West [xi] Defendants’ invaded Plaintiff Ca- II. OF DISCUSSION THE
perton’s personal privacy, including the un- APPLICABLE LAW trespass personal his warranted real personal estate to photograph his resi- It foregoing is clear from the recital that dence, and due to Defendants’ tortious con- Plaintiffs’ claims in the West suit duct, Plaintiff Caperton has suffered men- just related to much than more the coal anguish nights. sleepless tal supply agreement. Notwithstanding the fact improper maj- declaration of force Lastly, order, in paragraph of its gave legitimate eure rise to a contract action arguments lower court took note of the re- Virginia directly supply related the coal law, garding analysis choice of and in its agreement, the dealings by entire course of following: noted the Massey with Plaintiffs revealed either principle Under lex loci delec- Virginia action created additional West *48 (the law place ti the where tort oc- properly causes action in tort that could be governs) principle curred the or under in pursued subsequent Virgi- suit in West significant relationship” “most test set forth nia. (Second) in the Restatement of Conflicts of Nothing underlines this more than a fair Lato, Virginia govern West law should be- consideration of the evidence introduced at (1) the are cause: all citizens or Defendants Massey’s trial of directed actions of, contacts, residents or have substantial Caperton capacity. Plaintiff in individual his (2) Virginia; Corporate with West the Plain- He was party right never a in his own to the of, are either tiffs citizens or residents Virginia. Massey contract action in The ac- have substantial Virginia; contacts with West against him personally tions reached far be- (3) Caperton the Plaintiff ais citizen of West yond the supply enforcement the coal (4) Virginia; correspondence much of the and agreement. documents submitted as evidence either was from, into, Virginia; sent sent Similarly, legitimately West argued it cannot be November, 1997, meeting the many dealings by that the Massey entire course of misrepresenta- Defendants’ threats and with Plaintiffs that established tortious inter- compa- 1. Standard of Review Massey the Harman with
ference
was
Caperton
related
nies and Plaintiff
outset,
majority
its
At the
the
furthered
facts to be
agreement or involved
supply
coal
by needlessly changing
law
cause
this state’s
proved in connection
properly
asserted
applied to
governing the standard of review
the coal
action on
Virginia contract
with the
As related in the
forum selection clauses.
supply agreement.
majority
attempted to en
opinion, Appellants
the
clause before
force the forum selection
Moreover,
Massey’s
involvement
while
on
lower court
motion to dismiss based
majeure
the
under
the declaration
force
correctly
that
majority
venue. The
noted
is related substantial-
supply agreement
coal
employs
this
an abuse of discretion
misrepresentation
fraudulent
ly to
tort of
the
reviewing
to dismiss
standard when
motions
say
that
jury, it is inaccurate
found
the
Bank,
Syl.
based on venue.
Pt.
United
necessary
prove
tort was
that
the evidence
Blosser,
S.E.2d
Inc. v.
W.Va.
necessary
as that
the same
respects
in all
hardly
dry
ink
on
With the
contract claim
show a valid
standard,
opinion
announcing
this
action.
contract
expressing any
majority proclaims—without
trumping
deci
reason for
the rule
stare
trial
It
clear from the
court’s
is likewise
en
applicability
“review of the
sis—that
supply agreement and
recital
the coal
forceability
clause is de
forum selection
only tan-
contract action were
Massey,
Syl.
Caperton v.
novo.”
Pt.
proving
fraud ease
gentially involved in
(No. 33350,
filed
approved
clauses.
forum selection
While
Company Key
Court in
Electric
General
A. Forum Selection Clause
(1981),
ser, 166
3. die Court in was a We have The issue before Although than forum selec- indirectly, choice of law clause rather a forum clauses. selection tion skeletal, clause. point does indi- our it law on matters cate which affect that contract clauses Keyset n 4. two in reads The entire test of footnote as follows:
677
observed,
“jurisdiction
affecting
court
West
es
e.g.,
As the Federal
and the like” —
analyzed.”
not to
Virginia appears
“carefully
subscribe to
venue —should be
166
of forum
void
n.
rule that choice
clauses are
W.Va. at 461
[t]he
deciding
when
or ab
part
claims are a
the same cause of
similarity
sence
between causes of action.
pending on
Board
ferent
Saunders at 495-96. Some additional older
part
employed to determine whether claims were
cases which the “same evidence test” was
claims
Plan
Va.
there is but one
prove
is whether same evidence
it is
the
test) ].
support
also
(1987)[(“The
349 S.E.2d
Jones v. Morris Plan
same evidence will
claims are
S.E.
action is whether
one cause of
a demand is
necessary
same evidence
the
of a
in
principal
Va.
several,
Wright
times and
[608]
...
*55
Bank],
[
evidence to
(1974)
each
Public
single
both
[667]
are distinct
separate
to maintain
part
at 609-610
v.
WL
so as to
125,
claim.”)];
single
action,
tests
claims. Brown
168 Va.
test
Works,
cause of
Castles,
at
(applying
test)];
upon
5640, *4
672,
support
cause
in
contracts,
is
support
give
single
determining
66 Va.
[284]
divisible
202 S.E.2d
(1986)
different
the
232 Va.
determine
same evidence will
[
the action.
Bank
action are
S.E.2d
Bates
entire,
Jones [v.
(1937)]
rise to more than
(1875) (“The
one is
same
identity
cause of action
action.”) ];
at
both
necessary
to
[(relying
made at dif
218, 223-24,
290-91,
[v.
or whether
claims,
Haley,
principles;
[
not neces
apply
25 Gratt.
(“One
evidence
whether
whether
Devers],
Kelly
[917]
actions,
Morris
If
facts
two
191
the
the
see
de
on
of
at
was filed
judicata
from which the suits arose.
in law.
suit,
the same. Worrie v.
the cause of action
In Smith v.
cause different
evidence rule was to look
achieved
footnote from Bates was elevated
preme Court first
the term “transaction” in relation to the res
proach
S.E.2d
er the
ers —a
same evidence test —that
City
have arisen of a
tion.’ Bates v.
It was in the
assertion of
of action’
For
the
(1992), Virginia Supreme
(1986),
filed in
202 S.E.2d
one based in
different
purposes
the
discussion Allstar
Alexandria,
case earlier
used
192,
element of cause
in
purposes
the law
another case
Ware,
strict
197
in
causes of action existed be
particular legal rights
rights
chancery
Virginia
1974 case
following
Devers,
equity
be defined
in
(1956).
element
referred
definable
court,
application
921 n. 8
issues
of res
noted
were asserted in each
Boze,
Va.
and the other based
Va.
court
to
214 Va.
the examination of
in which
at the
manner:
in both
Yet another
judicata,
the
turned on
in a footnote
vary
198 Va.
Towing,
factual transac
broadly
Bates v. Dev
applying
action. The
of the same
Virginia
Court found
transaction
421 S.E.2d
344 S.E.2d
the result
suits were
the other
one suit
533,
wheth
Inc. v.
‘as an
672 n.
‘cause
body
Su
ap
the
95
the same evidence
Allstar
905-06. Since
other,
sary
support
the
but much of it that
in
was thereafter
the 1988 case of
test
touted
be material
the one would
would
to sustain
regard,
test in
other.”),
principal
Saunders as the
Power,
irrelevant to the
Cohen v.
that
(“The
reading
a fair
of Allstar is
the result the
183 Va.
32 S.E.2d
high
Virginia
court of
would serve
believed
generally
application
the
applied
test
applica
justice could not be attained
strict
adjudicata
doctrine of
is to determine
the
res
Although
of the same
test.
the
tion
evidence
whether the facts
to the mainte
essential
subject of the
two suits which were the
res
nance of the two actions are
same. If the
judicata inquiry
would
would have relied
same facts or evidence
sustain both
Allstar
evidence,
spin
... subsequent
upon
based
the same
actions
action
barred].”),
Supreme
placed
same facts
and Feldman v.
same evidence
[is
unpub
and the
squarely relies are Allstar
high court
allowed the
test
in Allstar
Corpo
suit
court case of Cherokee
the second
lished circuit
reach the conclusion
(Va.
Richardson,
of the relevant
some
1996 WL
proceed because
ration
should
Cir.Ct.1996).
only
the first
until after
occurred
This reliance could
had not
events
did not
court
Allstar
Su
suit was decided.
been used to substantiate
using
before
matter
of a
approach
adoption
later
preme Court’s
in order to find
analysis method
analysis
transactional
It is notewor
rule.14
transactional
inseparable amal-
supported an
the facts
purposes that
the Su
thy
process
due
of action.
one cause
constituting but
gam
ap
Virginia prospectively
preme Court of
upon the
Rather,
relied
in Allstar
the Court
cases
new rule
to those
plied the
sepa-
transactions”
factual
term “definable
July
the effective date of
brought on or after
find
facts before it and
rate the interrelated
knew,
say
parties
2006. To
Fur-
of action.
Id.
causes
two identifiable
have known that
have or even could
should
body
thermore,
indication
was no
there
Virginia would—some five
high court of
prior
opinion that
decisions
of the Allstar
judgment was entered
years after the final
overruled, superseded or should be
were
adopt a transac
Virginia contract
ease—
adoption
stan-
of a new
light
read
analysis approach as the sole means
tional
of action
of causes
dard for determinations
judicata pur
cause of action for res
define
principal
judicata purposes. Thus
for res
parties had ac
poses
to assume that the
Supreme
provides is that
insight Allstar
possessed prescient
crystal
ball or
cess to
strictly
Virginia would not
adhere
Court of
abilities.
which would serve
cause of action
a test for
majority
not have
Significantly, the
could
and fair
party’s right to a full
to eliminate a
Virginia and
precedential
law of
followed
*56
previously
which had not
hearing on matters
form
evidence test
applied the same
adjudicated.
been
Virginia pro-
entire record of the
since the
of the relevant
Although decided outside
into the record of
ceeding was not admitted
judice,
later
period
the ease sub
the
time
comparison of evidence
appeal, making a
this
Homes, Inc., 265
v. Marshall
case of Davis
Virgi-
Virginia
and the West
between the
suit
(2003),
supports this
law —not emotions, By baiting I believe the Dissent- by judicial reflecting officers nouncements ing opinion adopts distinctly “political a contempt for other members of partisanship, “judicial voice” rather than a voice.” With staff, Court, or their bias toward or this respect my dissenting due colleagues, this parties, pre-judging or a of the the present case does not close call on the basis issues.2 Majority rule of law. Because the possesses deep strength decision such a of judicial It is an unfortunate truth that legal authority, I do not believe that the stand for of- officers West must Dissenting opinion any way weakens the political Notwithstanding fice elections.3 authority or substance the of Court’s deci- method, political public’s the this selection sion. system justice confidence in our is neces- sarily stability pre- undermined and the governing The law the Court’s decision of dictability compromised of the rule of law is Accordingly, this case is clear. the focus of politics the threshold of our when cross this is specific concurrence limited to four important factors therefore Court. The most topics: proper ap- view of the facts jus- affecting public’s perception of actual peal, approach judi- the transactional to res necessarily cata, tice in this Court are the actual proper standard of review for Court, members, clause, decisions of this and its forum-selection and the issue of recu- time, professional over demeanor of this sal.5 IV, manipulation opinion Trump of information and via See Charles S. The Case in Favor the innuendo, half-truths, claims, suggestive Nonpartisan and so Justices Election Su- judging contrary judge's duty on. Such is preme Appeals Virginia, Court West The West public criticism. W. to resist clamor fear of 2000) Virginia Lawyer, (May ("Upon Conduct, 3B(2) ("A Va. Rules of Judicial Canon hope jurists bench we to see who will decide interests, swayed by judge partisan shall not be dispassionate reading cases of the law clamor, criticism."). public or fear of application and the reasoned law to the them.”) facts before politicization judicial per-
2. The of one's office is haps gravest independence threat aside, pause briefly 5. As an I judicial to note that the judiciary, because the use of one's Dissenting begins by utterly destroys opinion quoting partisan purposes from the office impartiality necessary Majority opinion and fairness which is that was filed in this action on judicial public justice. actual A officer’s actions rehearing prior November to the ridiculing litigants jurists, in particularly during selected or fellow however, Notably, opinion longer case. no pendency of a case or an ex has force or effect. See State rel. Moats v. election, conveys necessarily public a fun- Janco, 154 W.Va. 180 S.E.2d incompatible damental within bias rule, (1971) ("As general rehearing when a "political” "ap- with fairness. The notion of granted, the status of the case is the same as justice pearance-driven” in West con- occurred____The though hearing grant no had message veys appearances and rheto- ing rehearing opinion previ of a withdraws an particularly when contrived—mean more ric— ously destroys rendered and force and effect its actualities, manipulation than that the of facts is subsequently adopted by unless it is the same themselves, important than the more facts rehearing By tribunal.... reason of the hereto predetermined politically- cases are decided to a granted!,] Majority opinion!, fore the concur result, justify and that means. Pub- correct ends ring,] dissenting opinions and the heretofore filed directly by the manner lic confidence is affected *59 naught.” are withdrawn and held for this case judge justice in which a accords himself or (internal omitted)). citations See also Miller public, by collegiality the which he or herself 681, 698, Burley, W.Va. S.E.2d officers, judicial by she shares with other the (1972) (same); Greyhound Corp. Atlantic v. Pub quality legal reasoning. of his or her Va., 650, 665, W.Va. lic Serv. Comm’n of W. Virginia requires 3. that The West Constitution (1949) ("The granting 54 S.E.2d rehearing judicial Virginia officers in West be elected opinion previously withdraws an ren VIII, 2, 5, People. §§ the W. Va. See Const. art. destroys effect dered and its force and unless it has, Virginia Legislature 10 and 16. The West tribunal.”). subsequently adopted by the same law, by statutory required such elections to be partisan. § W. Va.Code 3-5-4. based, upon the motion to dismiss I. fendants’ added)).6 (emphasis clause.” forum-selection LIMITED FACTS RE VIEWABLE Powderidge High Unit Owners Ass’n Cf. RECORD TO PRE-TRIAL land, Ltd., Props., 196 W.Va. (1996) (“Although S.E.2d our review the more substantive is- Turning first to summary judgment case, of the record from a Dissenting opinion the sues novo, twenty-two page proceeding is de this Court for obvious lengthy, dis- launches into reasons, argu will not consider evidence or during the admitted of the evidence cussion presented that were not to the circuit ments and certain determina- matter trial of this ruling its consideration in on the upon court for circuit court based made the tions clear, our review is limited to motion. To be dissent then uses this The that evidence. stood, the rulings the record as it circuit court court evidence and associated trial before added)). ruling.” (emphasis at the time its how the instant case justify position its on I do not believe have been resolved. should Massey respect to the defendants’ With legally analysis by the to be this dissent summary judgment upon motion for based posture of the instant sound. Due to the judicata, Majority the doctrine of res the ie., actually dispositive matters appeal, the correctly opinion observes that the circuit appeal, on this Court’s before this Court Massey the Defen- properly court denied appeals, a court of review is limited. As summary judgment original dants’ motion for ap- issues not simply cannot consider was no final order the as there parties or the evidence pealed the original summary action at the time that the during non-ap- on admitted trial such was judgment made to the circuit motion was Specifically, there were two pealed issues. However, Majority opinion goes the court. this Court for re- dispositive issues before summary clearly explain judg- that the on (1) the circuit court’s denial of view: the could be raised for the first time ment issue Massey pre-trial motion to dis- defendants’ appropriately addresses the appeal, light improper venue in fo- miss for circuit issue in the same manner that in the 1997 rum-selection clause contained have had ease been court would (2) CSA, Massey defendants’ motion Massey final at the time the Defendants’ summary judgment upon based the doc- summary original judgment motion was judicata. trine of res Therefore, circuit made before the court. Dissenting opinion’s upon reliance facts Massey respect to the Defendants’ With developed during the eventual trial of this based pre-trial motion to dismiss sim- support position matter to its herein is clause, Majority opinion forum-selection not be- ply wrong because those facts were correctly its review to the facts limits at the time the sum- fore the circuit court the time of were before the circuit court at mary judgment motion filed and ruled Indeed, was Majori ruling its on the motion. upon. ty correctly that “the fo opinion observes was addressed be
rum-selection clause issue dismiss; in the context of a motion to
low II. therefore, we consider claims APPROACH TRANSACTIONAL Maj. op. complaint.” at were asserted TO RES JUDICATA (“The Maj. op. at 248 n. 30 See also ascertaining proper ap- test to be proper question ... is whether enforcement unjust judicata, requiring plied to the element res of the forum-selection clause action, Majority identity of the cause of time De- unreasonable CSA, 6. Majority points we will limit our opinion out that ncction with" further only those three claims consideration in the amend- three of the claims asserted ultimately jury. went Those three ultimately presented complaint ed were tort, claims, sounding verdict, were tortious all indicating jury that there was *60 interference; (2) misrepresentation; remaining fraudulent support evidence the insufficient (3) deciding and fraudulent concealment. Accordingly, in whether the claims. Maj. "brought op. 241. in con- at claims asserted below were
689 test, underlying ap- in complaint the action which applies the transactional properly peal filed in the Circuit Court of Boone was time the Virginia, at the place in in was Indeed, County: April October 1998.7 (citations added) omitted)); Nevertheless, long (emphasis matter.” I has a note that Gordon, 667, (Va. approach, applying history the transactional Beale's Adm’r v. 21 S.E. of 669 1895) ("When beginning early See v. judgment as as 1884. a or decree has been Wohlford 333, 338-39, (1884) ("When a Compton, by competent jurisdiction 79 Va. a rendered court of finally by adjudicated a suit, and determined matter is a it is a bar to further action between tribunal, competent it is considered as forever parties upon the same the same matter of contro repose principle upon which the This is a rest. only versy. . .. The decree in the first cause is not society materially depends, and it therefore of determined, actually final as to the matters but throughout very exceptions, prevails, few parties every might matter which the have principle not This embraces the civilized world. pleadings litigated, scope within the the in the of determined, actually ex only but also what was cause, (em might which have been decided." and every parties matter which the other tends added) (citations omitted)); phasis Brunner v. suit."). litigated also might See have Cook, 266, 650, (1922) Va. 114 S.E. 529, Bragg, v. 78 Va. Blackwell’s Adm’r (" 'When the second between the suit is same (1884) (" judicata applies res 'The doctrine of first, parties and same of as the on the cause giving at the time of the all matters which existed action, judgment the in the former is conclusive decree, rendering judgment, the and which the only every question the latter not as to which on opportunity bringing party the had the of before decided, every was but also as to other matter court____ prayed for in this There is no relief might litigated parties had which the have and appellants could not have obtained which the determined, they within the issues as were made suit; mate if thereto. There are no entitled pleadings the or as incident to or or tendered essentially which could in the bill in this case rial averments subject-matter connected with the of that, investigated passed on in been and not have same, litigation, the a the fact, whether as matter of passed by the in effect were not and which were were or not considered. As to such " omitted) (citations in that case.’ final decree matters a new suit on the same cause of action Dashiell, added)); McCullough (emphasis v. par maintained the same cannot be between 610, (1888) 37, ("[Ajlthough this Va. 6 S.E. " 438, "Judgments,” p. § (quoting ties.' 15 R.C.L. only necessary may opinion be that it is court of Co., 684, 962)); S.R. 152 Va. Gimbert Norfolk they questions as are decisive of certain to notice 680, (1929) (same); 682-83 Choate v. 148 S.E. case, appeal yet questions involved in the the all Calhoun, (1929) 153 Va. 149 S.E. distinctly finally adjudicated, whether raised are Miller, (same); Kemp v. 166 Va. 186 S.E. they passed If on below and here or not. and (1936) (same); v. Morris Plan Bank Jones on, involved, might passed have been are Portsmouth, S.E. 168 Va. applies judicata enough.... is The doctrine res (1937) ("The forbidding the well established rule giving existed at the time to all matters which clearly splitting Am.Jur., in 1 of causes of action is stated decree, judgment rendering which said; 'Actions,' § 96. It is there 'One party opportunity bringing had the before may bring separate separate causes of suits on added) (citations omitted)); (emphasis the court." joinder separate causes in action even if of the Furguson, Va. 7 S.E. Fishburne however, subject, permissible, action is one first, ("It necessary, to consider 362-63 power court to order consolidation. concluded the suit re- whether this suit is hand, against has a claim On the other one who for, county; question if the ferred to in Franklin part take a in the satisfaction of another there; adjudicata, ends the whole matter is res for, whole, part only, a or maintain an action for adjudicated finally when a matter is claim, authority although there is some tribunal, by competent it is consid- determined part cannot be waived effect that a of demand principle upon is a ered as forever at rest. This giving juris- purpose court an inferior materially depends, repose society which the having brought part But after suit for diction. very exceptions prevails with few and it therefore claim, bringing plaintiff is barred from of a principle throughout world. This the civiliz.ed part. The law does not for another another suit determined, actually only embraces what single permit or entire cause of the owner of a every which the extends to other matter but also demand, with- an entire or indivisible action or case; parties might litigated and when have person whom out the consent of the cause of action or the facts constitute split exists to divide or cause or demand parties have been between the same sub- defense subject as to make it the court, cause or demand so to the consideration of mitted deter- The whole cause must be court, several actions. again passed cannot brought part defense, for a action. If suit is mined one subjects proper an action or claim, judgment in that action obtained of a judgment finding are of the court unless bringing plaintiff precludes the second by competent authority. opened up or set aside claim, notwithstand- for the residue of the action principle law extends still further in This ing is not identical the second form of action relitigate quieting litigation. party mat- A cannot first, grounds for relief with the or different might interposed, which he but failed ters principle not suit. This prior parties, set forth in the second the same to do in a action between determined, actually subject- but privies, embraces what was to the same or their reference *61 690
1996, relatively action, period pertinent close in time to the Supreme to this same, fact, every also other matter which the whether the extends as a matter of were or litigated parties might have in the case. The rule were not considered. As to such matters a new upon plainest and is founded most substan suit on the same cause of action cannot be main justice, namely, litigation parties (quota tial should have tained between the same ...." omitted)); person unnecessarily Hagen Hagen, end and that no should be tions and citation v. 205 ”); 791, 821, (1965) (same); multiplicity harassed with a of suits.’ Pickeral Va. 139 S.E.2d Baltimore, 743, Devers, 667, 917, v. Federal Land Bank 177 Va. Bates v. 214 Va. 202 S.E.2d of 82, (1941) (" 'Hence, (1974) (“A valid, personal judg 15 S.E.2d when an issue 920-21 n. 8& going to the merits of two or more actions aris ment on the merits in favor of defendant bars action, ing relitigation any from the same transaction is determined of the same cause of or action, hearing judgment part litigated, of the first which could have been be thereof pleaded judicata parties privies.” (citing therein be as res tween the same and their ” 47, subsequent (quoting Judgments §§ En ones.’ American and Restatement of (1942)); 62 & 83 Law, Edition, action', glish Encyclopedia purposes of Second vol and "A 'cause of for of 24, 779)); Peters, Royall page judicata, may broadly ume v. 180 Va. res characterized as an 178, 782, (1942) ("There particular legal rights 21 S.E.2d must at assertion of which have some time be an end to controversies. Courts arisen out a transaction." definable factual added)); purpose furnishing speedy (emphasis Towing, City are for the a end to Allstar Inc. v. Alexandria, 421, 903, litigation and not aas forum for endless conten 231 Va. 344 S.E.2d (1986) ("When after-thought part tions. Carelessness or on the the second suit is between the first, litigants ought parties not to be allowed to affect the same as the and on the same cause action, proceeding judgment conclusiveness of a which has been in the former is conclu latter, ample opportunity hearing only every question determined after afor sive of the not as to decided, every question might litigat every of ed.”); which have been which was but also as to other 443, Griffin, parties might litigated v. 183 Va. 32 S.E.2d matter which the have Griffin 700, (1945) ("The determined, appellant only they not had the had within the issues as were opportunity bringing ground by pleadings, for divorce made or tendered or inci as essentially subject between the court in the first suit opportunity, she had but dent to or connected with the same, duty bring litigation, and it was her matter of whether the as a before fact, ground the court in the suit other matter of were or were not considered. As first divorce that existed at that time. There awas to such matters a new suit on the same cause of final decree in the first cause rendered a court action cannot be maintained between the same jurisdiction omitted)); competent parties (quotations on the merits. It nec ....” and citation Flora, Saunders, essarily appellant conducting Montague, bars the from a & Flora Inc. v. (1988) (“A valid, subsequent tion.”); involving suit the same cause of ac Va. 367 S.E.2d Co., Shepherd Eng'g personal judgment v. Richmond 184 Va. on the merits ... bars reliti (1946) ("The action, gation any part 36 S.E.2d 534-35 law of the same cause of permit single litigated, does not the owner of a or entire thereof which could have been between demand, parties privies.... cause of action of entire indivisible the same and their A claim person against arising without the consent of the whom from an indivisible contract cannot be exists, actions, split split subject separate the cause or demand to divide or and made the but, action, subject being single cause or demand make so as to it the ... cause of must be suit____The litigated permit several actions. The whole cause must be deter- in one law not does brought part single mined in one action. If suit is for a the owner of a or entire cause of action claim, judgment of a obtained that action an entire or indivisible demand ... to divide or precludes plaintiff bringing split from a second that cause or demand so as to make it the claim, subject action for tire residue of the notwithstand- of several actions. The whole cause must ing brought the second form of action is not identical be determined in one action. If suit is first, claim, grounds part judgment with the or different for relief are for a of a obtained principle precludes plaintiff bringing set forth in the second suit. This not action from determined, claim, only actually embraces what was but second action for the residue of the not every withstanding also extends to other matter which the the second form of action is not first, parties might litigated grounds have in the case.... That identical with the or different appellee must stand or fall its election of relief are set forth in the second suit. This fundamental.”); Eason, only principle actually remedies is Eason not embraces what was determined, (“When Va. every 131 S.E.2d but extends also other mat parties parties might second litigated suit is between the same which ter have first, action, omitted)); judg- (quotations and on the same cause of case.” and citations Water latter, Constr., ment in the former is conclusive of the Marine Inc. North End 49ers front decided, A, C, every question Groups Sandbridge as to which was but Bulkhead B & 251 Va. (1996) ("[Ejven every parties though also as to other matter which the 468 S.E.2d determined, might defects, litigated only specific and had within the first demand described judicata applies the issues as were made or tendered the doctrine of res to all claims
pleadings, essentially brought, thereby prevent or as incident to or con- could have been subject action.”). litigation, ing party splitting nected with the matter of the his cause of
691
Richardson,
95-130,
Chancery
Chancery
No.
ap
Virginia applied the transactional
of
96-34,
L-96-148, 1996
now
in
case No.
Law No.
judicata
res
the
WL
proach to the issue of
*
(“As
1065553,
(Va.Cir.Ct.
5, 1996)
1
Construction,
at
June
v.
Inc.
of
Marine
Waterfront
seen, Virginia
can be
the
Sandbridge
follows
transaction
Bulkhead
North End 49ers
417,
rule set forth in
of
C,
Judg
the Restatement
A,
468 S.E.2d
Groups
B and
251 Va.
2d, §
purposes
defining
ments
of
(1996),
Supreme
for
the
Court
wherein
”);
of
v.
though the
‘cause
action.’
Davis
Marshall
that “even
of
observed
Homes, Inc.,
defects,
S.E.2d
only specific
265 Va.
first demand described
(Kinser,
J.,
(observing,
dissenting)
in
applies
judicata
to all
the doctrine of res
post-dated
action,
present
case which
the
brought,
been
there
claims
could have
ivhich
majority opinion
overruled transactional
splitting
from
his
by preventing
party
a
added).
approach
applied,
that previously
comment
(Emphasis
Fur
of
cause
action.”
truth,
the
thermore,
ing
majority’s
“[i]n
the effect of
recognized
Virginia courts
rejection
approach
that,
during
explicit
of a transactional
traditionally
period
the
both
ease,
Towing.
overrule
in Allstar
is to
our decision
Virginia has
of time relevant
to this
However,
explain
majority
why
the
does
approach.
applied the transactional
aside.”).
precedent
eas[t]
should be
applies
the
Virginia Supreme
The
analysis
considering
in
...
transactional
argues
dissent
that the transactional
applica
for
scope of a transaction
approach
clearly
established
not so
in
Trout
judicata____In
tion of
v. Com
res
however,
points
Virginia;
the dissent
to no
Commissioner, 241
Transp.
monwealth
to the instant
apply
ease
would
action
(1991),
the Su
Va.
400 S.E.2d
require
a rule other
application
of
than
preme
this broad transac
Court discussed
Furthermore,
approach.
the transactional
concept:
tional
error. For
the dissent contains notable
ex
a “cause of action”
An “action” and
ample, the
that the
represents
dissent
ease of
“Action”
quite
Flora,
are
different.
is defined
Saunders,
Montague,
Flora &
Inc. v.
above.[8]
8.01-2,
§
noted
(1988),
Code
as
We
applied
235 Va.
367 S.E.2d
defined “cause of action”
Roller
contrary,
To the
the best evidence test.
Co.,
238 Va.
Basic Construction
actually
Saunders
set out
transactional
(1989),
as “a set of
S.E.2d
approach
appropriate
test:
operative facts which under
substan
valid, personal
judgment
A
merits
law,
right
may give
tive
rise to
of
relitigation
... bars
of the same cause of
action.”
action,
any part
thereof which could
transaction
follows the
rule set
par-
the same
litigated,
have been
between
2d,
Judgments
forth
in the Restatement
arising
privies
ties and their
A claim
from
defining
purposes
§ 24
“cause of
for
split
an indivisible contract cannot be
may give
action.”
of action”
One “cause
actions,
subject
separate
made the
...
action, e.g.,
myriad rights
rise
breach
but,
action,
being single
cause of
must be
contract,
warranty, negli-
breach
litigated
The law does not
one suit....
claims; however,
gence,
statutory
if
single or
permit
of a
entire
owner
rights
of action arise
the same
cause of
an entire or indivisible
action or
operative
could legally
set of facts and
split
...
demand
to divide or
cause or
therein,
all
asserted
the same
subject
it the
demand so as to make
purposes
appli-
“cause
of action” for
whole cause must be
several actions. The
judicata.
cation of the doctrine of res
action.
If suit
determined in one
Club,
claim,
Teets,
judgment
Country
brought
part
Inc.
Holiday
Lake
of a
00-70,
00-44, 00-46, 00-47,
precludes
plain-
Nos.
&
obtained
that action
WL
(Va.Cir.Ct.2001).
bringing
tiff from
action
at *7
See also
second
claim,
Linden,
notwithstanding
Virginia,
Corp.
Cherokee
Inc. v.
residue
"
8.01-2,
law,
statutory
equity,
§
nature
Pursuant to Va.Code Ann.
'Action'
claims
interchangeably
and ‘suit’
be used
and shall
and whether in
courts or district courts.”
circuit
proceedings
include all civil
whether
second form of action is not identical with
Majority opinion.
Again, the Dissent
first,
grounds
or different
for relief are
ing opinion is incorrect. To the extent that a
principle
set
second
forth
suit. This
determination of
applicability
of a forum-
*63
actually
what
embraces
deter-
may
selection clause
require this Court to
mined,
every
but also extends
other
review
by
factual determinations made
a cir
parties might
matter which
have liti-
court,
cuit
specific
our review of those
deter
gated in the case.
“clearly
minations is under the
erroneous
Saunders,
(quotations
495
III. ing Co., Chesapeake Foster v. Ins. 933 F.2d DE (3d NOVO REVIEW OF FORUM- 1207, 1216 Cir.1991))); Adagen Kochert v.
SELECTION CLAUSES10
Int’l, Inc.,
(7th
Med.
491 F.3d
Cir.
2007) (“The district
granting
court’s order
Dissenting opinion also finds fault
12(b)(3)
with the
Adagen’s
de novo standard of review set out
Rule
motion
improper
added)
9. The
(quoting,
dissent is also erroneous in its
English Ency
assertion
v.
American and
Law,
Edition,
"[i]t was in the 1974 case of
Bates Devers
clopedia of
Second
volume
Virginia Supreme
...
that the
re
first
779)).
page
ferred in a footnote to the term
'transaction'
judicata
relation
res
element of cause of
criticizing
In addition to
the standard of re-
Dissent,
J.)
op.
(Albright,
action."
at 50.
In
clauses,
applied
view
to forum-selection
the Dis-
stead,
Virginia Supreme
Court utilized the
senting opinion takes issue with various other
early
term "transaction” in this manner as
aspects
analysis
of the forum-selection clause
1941. See Pickeral v. Federal Land Bank Balti
Majority opinion. Though
clarify
I choose to
more,
177 Va.
15 S.E.2d
particular point,
Dissenting opinion’s
(" 'Hence,
going
an
when
issue
to the merits of
analyses
appear
of other issues
to be more result-
arising
two or more actions
from the same trans
meritorious,
legally
driven than
and will there-
hearing
action is determined
of the first
fore not
action,
be discussed herein.
judgment
pleaded
therein
as res
”
judicata
subsequent
(emphasis
ones.'
in a forum
specific terms contained
selec-
forum-selec
contractual
on the
venue based
...”).
case,
novo review.”
In the instant
subject
to de
tion clause
is
tion clause
omitted));
(citation
Calix-Chacon
Global
clause was reviewed in the
forum-selection
(5th
Inc.,
Marine,
493 F.3d
a motion to dismiss.
In this con-
Int’l
context of
Cir.2007) (“[T]he
se
of a forum
text,
enforcement
simply were no factual determina-
there
law, and we
is
issue
lection clause
required
the circuit court that
tions made
law
conclusions of
court’s
Thus,
review
district
Majority’s
deferential
review.
de
Oceaneering
MacPhail v.
(quoting
novo.”
de
review of the circuit court’s forum-se-
novo
Cir.2002)));
(5th
Int’l, Inc.,
302 F.3d
ruling
proper.
lection clause
Capital, Inc. v. Associates
Urol
Preferred
*64
(“We
(6th Cir.2006)
718,
F.3d
ogy, 453
IY.
a forum
enforceability of
note that ‘the
also
law that we
question
a
clause is
selection
DISQUALIFICATION AND
”
LeBoeuf,
(quoting Baker v.
novo.’
review de
DUE PROCESS
1102,
Macrae,
Lamb,
Leiby
105 F.3d
&
Dissenting opinion,
In footnote 16 of the
(6th
Soda,
Cir.1997)));
LLP v.
American
by
filed
reference is made to the motions
the
Inc.,
Group,
F.3d
Filter Wastewater
U.S.
Appellees seeking my disqualification from
Cir.2005) (“We
(10th
921,
review the
especially the last such motion
this
de
enforceability
a forum selection clause
case—
by
Specifically,
the
Appellees.11
filed
Dis
BMW,
V.
(citing K &
Co.
novo.”
Scientific
senting opinion
that “both actual
contends
(10th Cir.2002)));
494,
Silva
314 F.3d
process
can have due
apparent
conflicts
Britannica,
Inc.,
239 F.3d
Encyclopedia
implications
of cases
on the outcome
affected
Cir.2001)
(“We
(1st
a
review
district
clear,
by
is now
“[i]t
such conflicts”
on a forum-selection
court’s dismissal based
disqualifi
especially from the last motion
Int’l,
novo.”);
Inc. v. Missis
de
Terra
clause
...
there are now
due
(8th
[such]
cation
Corp.,
F.3d
691-92
sippi Chem.
process implications”
this case. Dissent
Cir.1997) (“In
hand,
party
neither
the case
added).
Op.,
(emphasis
The Dis
ing
at 284
validity
challenges the
of the forum selection
legal analysis for
senting opinion provides no
clause;
rather,
specific
the
contest
Dissenting
this contention. Nor does
in the forum
meaning
language
used
clause____
herein,
any
claim
opinion,
Appellees
or the
that de
[W]e conclude
selection
my part
prejudice on
in this
actual bias or
appropriate standard for
novo review is the
Indeed,
Dissenting opin-
neither the
interpretation
case.12
reviewing a district court’s
phrase
Dissenting opinion
seeking my
uses the
"both
disqualification
12. The
motion
11. This last
describing
apparent
actual and
conflicts”
years
was filed March
three-and-a-half
Dissenting opinion
type
which the
of conflict to
election,
my 2004
over seventeen months
after
may
process implications
at-
that due
believes
filing
appeal
this
on October
after the
however,
Dissenting opinion,
omits
tach. The
decision
over four months after the initial
any legal analysis
what it contends is
to define
(in which I
November
of this Court on
by
"apparent.”
"apparent”
If
meant
the term
majority against the interests of
voted with the
"obvious,”
phrase
simply
would
mean
means
Appellees), and over two weeks after oral
which are both actual and obvi-
those conflicts
arguments
were heard on the reconsideration
meaning
legitimate
comports
awith
ous. Such a
appeal.
primary
last
basis of this
dis-
this
The
(such
conflicts
as actual
concern for "actual”
by
survey
qualification
was a
taken
motion
directly implicate
prejudices which
biases and
Appellees
can best
described as
which
plainly
process) which are
evident to the
due
also
i.e.,
survey
limited and
"push-poll";
wherein
duty
public (implicating
judicial
and the
officer
conveyed
background
is
selective
information
confidence).
public
to recuse and a concern
individuals,
purpose
which
or result of
is
though,
Dissenting opinion
Conversely,
being surveyed
nega-
"push” the
to a
individual
"apparent” to be a whol-
instead intend the term
ly separate
response against
public indi-
inference
tive
conflict,
from an
form of
distinct
Virgi-
"Push-polls”
in West
vidual.
are unlawful
sense,
Dissenting
In that
actual conflict.
§
W.
3-8-
nia when used in elections.
Va.Code
opinion's
refer to either of two
footnote would
9(a)(10)
being
The motion was denied as
separate
types
which
and distinct
of conflicts
surveys
"push-poll”-type
untimely
and because
may implicate
process
actu-
(con-
due
considerations:
kind, are,
law,
credible
appearance-driven
a matter of
neither
conflicts
al conflicts
according
sufficiently
subjectively-defined
to criteria
the basis for
nor
reliable to serve as
flicts
observer).
may vary
disqualification.
which
from observer to
judge’s
an elected
Appellees
point
by
herein
popularity,
ion nor
mined more
or lack there-
activity
my part
of,
on
actual conduct or
given
litigant
given
or a
result
than
“improper.”13
could be termed
Rather both
Rather,
the rule of law.
justice must
Dissenting opinion
Appellees
and the
fo-
always emphasize
importance
and defi-
appearances
generated by
cus
niteness of the law in the resolution of dis-
—some
media,
generated by a
some
recused member
manner,
putes.
my participation
In that
history
of this Court with a
of verbal discour-
wholly
herein
pro-
consistent with due
Appellant Massey,
tesies toward
and some
cess.14 Because of the reference to the dis-
Appellees,
generated herein
them-
qualification
Albright’s
issue in Justice
Dis-
selves.
opinion,
senting
obligated
I feel
to comment
“apparent
on this matter of
By
conflict.”
its inclusion
Footnote
one must
Dissenting opinion
conclude that
advo-
A. The Measure of Fairness:
concept
“appearance-driven”
cates that the
Actual Justice
judging
bring
should
about a different sub-
question
stantive outcome
this matter.
That
The fundamental
raised
disappointing.
Appellees
Justice should not be
Dissenting opinion
deter-
and the
herein
*65
control,
very
appearance-driven
judicial
disqualifying
notion of
candidate exercises no
from
conflicts,
benefit,
shifting
definitional standards sub-
which he or she
no
seeks
and for which
whims,
ject
caprices
manipulations
to the
and
of
he or she will obtain no current or future benefit
those more interested in
than in
outcomes
the
may
disqualifica-
nevertheless serve as a basis for
law,
application
process.
(West
is antithetical to due
tion. See Footnote
is a
infra
"duty
judge” judicial system).
See also State
Although
Dissenting opinion provides
the
no
Pleasant,
Billings
City
ex rel.
legal analysis
Point
phrase,
to define the
it would seem
(1995) (running
W.Va.
is W.Va. 270 quently judicial stated: duty tion of judge officer from because of an actual interest in a cannot overlook the fact that it cause of
[T]he
obligation
deny
legislative
insufficient recu-
action deemed to be a matter of
has
discretion).
obligation
sal
There is as much
actually
motions.
The focus is on what
judge
upon a
not to recuse himself when
judge’s
affects a
decision-making.
there
no occasion as there
for him to
is
simply
Due Process Clause
does
study
when there is....
do so
After such
standard,”
establish a “uniform
such as the
matter,
give
I could
I reached the
as
Appellees
Dissenting opinion
and the
seek to
judge
conclusion
whether a
should
portray herein.
It establishes a “constitu
particular
depends
in a
recuse himself
case
904-05,
Bracy,
tional floor.”
at
U.S.
personal preferences
not so much on his
process
S.Ct. at 1797. This due
“floor” is “a
views as it does the law. I
individual
have
tribunal,’
judge
‘fair trial
a fair
before a
...
no choice
this case
the absence of
with no actual bias
the defendant or
reason,
legal
right
a valid
I
no
particular
interest
the outcome
his
myself
disqualify
and must sit.
Id.,
904-05,
case.”
at
at
S.Ct.
Mitchell,
F.Supp.
v.
U.S.
1325-26
Larkin,
35, 46,
(quoting Withrow v.
421 U.S.
(D.C.Cir.1974) (internal
omitted),
citations
1456, 1464,
(1975))
95 S.Ct.
Appellees and
Appellees
Dissenting
Neither
opin
nor the
process
be
purpose
the actual
of due
would
presented any
ion have
evidence consistent
by litigants who would hold a
frustrated
implication
with the Aetna standard for
composition of a
power over the
near-veto
Due
Process Clause of the Fourteenth
court, by those who could
publicly-elected
Rather,
they rely
subjec
Amendment.
on
campaigns designed to
wage public relations
tive,
speculations
assump
after-the-fact
malign judicial officers in order to manufac-
judge’s
tions. “The decision
im
whether
conflicts,”
“apparent
by
ture
those who
partiality
‘reasonably
questioned’
can
be
is to
challenge
legal
a decision not
its
would
existed,
light
they
made in
be
facts
correctness,
political
but
its
correctness.
reported.”
and not as
were
surmised
public
long-lasting negative effect on
The
Cheney
Court,
States
United
District
ap-
confidence in our courts caused
1391, 1392,
U.S.
124 S.Ct.
process
due
standard for
pearance-driven
J.) (Memorandum
(Scalia,
L.Ed.2d 225
judicial
would
disqualification of a
officer
Disqualification)
on Motion
(quoting
Mi
incalculable.
States,
Corp. v. United
530 U.S.
crosoft
Dissenting opinion’s passing refer
(2000))
S.Ct.
L.Ed.2d 1048
ence,
analysis,
and In
without
to Aetna
re
C.J.) (Memorandum
(Rehnquist,
regarding
Murchison,
349 U.S.
75 S.Ct.
99 recusal). Reliance on cases such as Aetna
(1955),
support
conten
L.Ed. 942
fails to
its
and In re: Murchison for the contention that
process implications
tion that there are due
disqualifications
publicly
judicial
aof
elected
simply
subjective percep
herein based
solely upon
officer
be based
after-the-
Aetna,
“appearances.”
tions
See
475 U.S.
appearance-based
politically-driven
fact
(due
822-24,
process
698 Del more, judge’s] evenhandedness.”
conflicts,
process
[the
due
tion of
raise
without
Vecchio,
recently recognized by the
at 1372-74.
United
“[T]he
31 F.3d
implications. As
Circuit,
clearly
“has held or
Supreme
no decision
has never rested due
Third
States
Court
appearance of bias on
that an
at
n. 2. As
process
appearance.”
established
Id.
1372
more,
violates
part
judge,
Vecchio,
a
without
pointed
in a concurrence in Del
out
Carroll,
v.
Johnson
Due Process Clause.”
upon appearance-based
based
disqualification
(3d
denied,
Cir.2004),
253,
cert.
369 F.3d
statutes,
subject for
codes of
conflicts “is a
fendant janitor would be allowed to work as a mere fact that money contributed school, in a local Catholic but after school defeat Justice MeGraw is an insufficient rea- officials learned the defendant’s sexual me, disqualify son alone to much less to record, prevented assault he was from work- require disqualification on a constitutional ing Arbaugh, at the school. See State 215 point, basis. On this the law is clear. (2004).44 W.Va. S.E.2d 289 “[Cjampaign by parties
As a result of
contributions
with
ASK’s efforts to defeat
MeGraw45,
pending
judicial
cases
before the
Justice
candidate
because
Mr.
ASK,
by attorneys
or
Blankenship’s
regularly practice
who
Ap-
contributions to
before
pellees
irregular
them is
contend
these indirect and
not so
or
inde-
‘extreme’ as to
pendent
grounds
my
acts constitute
for
violate the Due Process
recu-
Clause of the Four
disagreed
Citizen,
sal from the instant
I
teenth
case.
Amendment.” Public
Inc. v.
(W.D.Tex.
Appellees’
Bomer,
seeldng
motions
F.Supp.2d
have me
2000).46
myself
recuse
I
because
had no role and no
say
This is to
judge
“a
is not
+
+
failing
ame='West
Consumers + for+Jus-
45.
to understand the fundamental role
former-justice
tice'.
speech
which the
at Racine had in
defeat, Appellees simply presume
McGraw's
public
42. This information is available to the
campaign.
absolute effectiveness of ASK’s
through the website of the Internal Revenue Ser-
http://forms.irs.gov/politicalOrgs
vice.
See
considering disqualification
46. Courts
motions
Search/search/gotoSearchDrillDown.
action?pa-
campaigns
related to direct contributions to the
cld='22903'
&
criteriaN-
judicial
consistently recog
candidates have
ame='And + For+The +
+
Sake Of+The + Kids.'
judges
required
nized that "...
are not
to dis
qualify
solely upon
allega
themselves based
Reproduced
http://www.wvcag.org/news/
43.
attorney
litigant
tion that an
or
made a
has
0_15.htm.
fair_use/2004/l
campaign
political campaign
contribution to the
Although
judge
judge's spouse.
long
Arbaugh
impact,
of the
or the
case had an
As
as the
electorate,
speech
require judges
...
at Racine had a
citizens
to face the
more fundamental im-
retention,
pact
general
through
Arbaugh
on the
either
election. The
deci-
election or
'the resul
during
Primary by
campaigns
sion was used
tant
Democratic
contributions to those
... are
"
former-justice
opposed
necessary components
those
judicial system.'
McGraw's elec-
of our
former-justice
tion,
Koivick,
(Fla.
but
MeGraw nevertheless de-
Nathanson v.
577 So.2d
Rowe,
1991)
opponent,
Judge
(quoting
Super
feated his
Bargain
Circuit
Jim
Kids
MacKenzie
Store, Inc.,
Primary.
(Fla.1990)).
the Democratic
565 So.2d
her
reasonably require his or
ney, cannot
or herself
disqualify himself
required to
justice in
is no
litigant
disqualification.
that a
For there
allegation
solely on an
based
legal
not
litigant
Michigan
made a
times who has
a
has
modern
for
or counsel
political
cam
campaign
contributions from such
contribution
received
campaign
judge.”
justice
Bissell v. Baum
whose
persons.
trial
Nor is there a
paign
(Ky.Ct.App.2007)
campaign
con-
gardner, 236 S.W.3d
not received
opponents have
(citation omitted).
v. An
And,
See also Cherradi
in-
persons.
tributions from such
(Fla.CtApp.1996)
drews,
669 So.2d
“opposition” campaigns have
creasingly,
disqualify them
required
(“Judges are
specifical-
in which contributions are
arisen
an attor
allegation
an
solely
selves
justices.
against particular
ly undertaken
campaign contri
made a
ney
party
a
had
Supreme
impossible for the
simply
It is
campaign.”);
judge’s political
bution
Court,
other courts in
as well as most
Redevelopment
Vegas
City
Downtown
Las
campaign
if
lawful
Michigan, to function
Court ex rel.
Eighth Judicial Dist.
Agency v.
for a
can constitute
basis
contribution
644-45,
Clark,
116 Nev.
County of
if a contribu-
judge’s disqualification. For
(2000) (“In
the context of
P.3d
compel a
judicial candidate can
tion to a
contributions,
recognized
we
campaign
disqualification, then a contribution
judge’s
presiding judge
to a
that a contribution
funding
oppo-
opponent,
to an
ordinarily con
attorney does not
party or an
operate in a similar
campaign,
sition
must
Indeed,
grounds
disqualification.
stitute
so,
simple expedi-
If
it would be
fashion.
rule
‘se
that such a
would
we commented
lawyer
to “mold” the
party
ent for a
intolerably5
the conduct
obstruct
verely and
hear his or her cases
court that will
in a state like Nevada
judicial business
opposition con-
tailoring contributions and
*76
must run for election
judicial officers
where
tributions.
campaign contribu
consequently seek
and
however, “We,
fundamentally,
more
Even
Burnside,
tions.”);
Disqualification
In re
Michigan,”
people, of the State
1211, 1212-13,
N.E.2d
113 Ohio St.3d
Constitution,
sys-
a
through the
have created
(“[Ejlected
judges
gener
are
in our state which
judicial
tem of
selection
from
required to recuse themselves
ally not
by, and elected
are nominated
candidates
by
party
represented
an
in which a
is
cases
It is a different
through,
political process.
a
raised
attorney
to or has
who has contributed
judicial
than that which
system of
selection
judge’s
campaign.”);
money
election
for
sys-
and in the federal
in other states
exists
Anderson,
Aguilar v.
855 S.W.2d
tem,
debate the
persons can
and reasonable
(“If
a
judge cannot sit on
(Tex.App.1993)
a
system. Each of
of this
merits and demerits
contributing lawyer is in
a
case in which
urged various
forums has
us- in different
counsel, judges who have been
volved as
Nonetheless,
system.
reforms of this
recuse themselves
would have to
elected
by our
system
been ordained
present
has
filed in their
majority
a
of the cases
perhaps
Constitution,
the environment
and it defines
step
be to
Perhaps the next
would
courts.
aspiring
judicial
office must
those
himself in
case
require
judge
a
to recuse
undertake their efforts.
lawyers had refused to
in which
of the
one
or,
still,
contributed to
worse
had
contribute
system judicial se-
premise of our
The
judge’s opponent.”)
period-
Michigan
judges will
is that
lection
perform-
accountable for their
ically
be held
direct contributions
The issue of lawful
appointments to
lifetime
campaign
exhaus
ance. There are no
judicial candidate’s
a
State, Depart
there are no unac-
judicial positions,
tively addressed in Adair
Education,
who determine wheth-
474 Mich.
709 countable committees
ment (2006),
in office.
be maintained
judges
as follows:
er
should
N.W.2d
sys-
Thus,
strength of our
the most notable
time received
judge
That a
has at some
requires
judicial
is that
selection
tem
party, an
campaign
from a
contribution
go
among
judicial office to
out
candidates for
employing
attorney
party, a law firm
for a
explain why
should
having
the electorate
attorney
party,
group
or a
an
for
system fosters
This
placed
be
office.
party or an attor-
interests with a
common
electorate,
part
deepening paralysis on the
of the Court
speech-
with the
communication
debate,
support
carrying
responsibilities.
for
out its essential
making,
the search
endorsements,
advertising, expres-
campaign
Mich,
Adair,
1041-42,
at
N.W.2d
philosophy, and efforts
judicial
sions of
579-81.
why
election of one
explain
persuasively
judicial
to a
candi-
Direct contributions
ought
preferred.
to be
or the other candidate
basis,
campaign
an
date’s
insufficient
toward
campaigns must be directed
Such
alone,
Therefore,
require disqualification.
electorate____
Supreme
In the case of
third-person
contributions
to a com-
campaigns
typically
will
justices, such
independent campaign
pletely
no ties
—with
of thou-
expenditure of hundreds
involve the
judicial
a due
candidate —do
rise to
millions,
sands,
of dollars on televi-
or even
requirement
disqualification.
process
sion, radio,
advertising,
newspaper,
other
and.
F. Conclusion
campaigns expending similar
opposition
integrity
judicial
is a di-
The
decisions
fund-
expenditures are not
amounts. These
integrity
judicial
rect extension of the
among
magically,
ed
but are raised
simple
guess
invitation to
about
role.
electorate,
rep-
organizations that
and from
judges
colleagues
hidden motivations of
among
resent those
the electorate.
recounting
a selective
the bench caused
Indeed,
system
given
premise
of our
trafficking of
facts or
innuendo
period-
that there should
judicial selection
be
indulge suspicions
half-truths serves
office,
judicial
it would
seem
ic elections
concerning
integrity
of elect-
and doubts
campaigns be well-
it is better
only politics.
ed officials.
It selves
It is
informative,
that candidates
funded and
drama.
It is a diversion.
opportunity
explain
be afforded the fullest
eases,
one,
many
including
publicity
In
judicial
differing perspectives on the
their
judge
justice
virtual
adverse to the
role,
poorly funded
campaigns
than that
be
certainty
decision he or she
no matter what
securing
in candidates
election on
and result
cases,
insufficiently
judges
makes.
such
popular
of little more than a
sur-
the basis
judicial
responsibilities
attuned to their
name.
readily
request
might
welcome baseless
alleged
simply
will
no end to the
There
*77
disqualification
escape from a difficult
as an
every
if
“appearance
impropriety”
of
contri-
particularly in a state which selects its
case—
candidate,
every
or
contribution
bution to
public
The
is
judges
partisan
in
elections.
candidate,
every indepen-
opposing
to an
or
enti-
legitimately entitled to
are
more —
opposition campaign, is viewed as rais-
dent
courage. To
judicial integrity
tled to
and
question concerning
judge’s
ing an ethical
temptations
recusal
would
surrender to such
participation in a case in which a contributor
justly expose
judiciary
public
to
con-
opposition
or an
contributor
is involved.
tempt.
obligation
It is the
of officers of
Again,
cogent arguments have been
while
system
professionalism,
court
to ensure
reform,
judicial
in
made
favor of
selection
and
partisanship, guides
not
their actions
people
adopted
until such reforms are
that cases are decided on the basis of
Michigan,
little alternative to ac-
of
there is
law,
spite
in
not
of it.
pro-
judicial participation
tive
in the electoral
composition
of the
of an
need to raise funds
determination
cess and
concomitant
merely
appellate
panel by
court
a standard
of
effectively participate
in
to
and com-
order
process.
justices
“appearances”
in
If
of the
seems little more than an invi-
municate
this
Court,
subject
Virginia’s justice sys-
tation to
Supreme
particular,
were to recuse
West
day
campaign
vagaries
tem to the
of the
framework
themselves on the basis of
contri-
—a
stability yield
predictability
and
opponents’
to their or their
cam-
which
butions
innuendo, half-truths,
parti-
supposition,
and
paigns,
potential
there would be
recusal mo-
justice
virtually
manipulations. Actual
would
every appeal
tions in
heard
this
san
Court,
political gim-
increasing
replaced by
justice
number
borne of
there would be an
mickry
push-polls and media cam-
designed to effect essen-
such as
of recusal motions
ends,
designed
replace judicial inde-
tially political
paigns
there would be a
and
—all
integrity
something
stability
predictability
more
to the
of the rule
pendence and
puts
heavy
litigants
individual
or others
of law.47 This
burden on the
liking
of
specific
highest
outcomes. members of this Court to act in the
interests
with vested
replaced by
judicial professionalism,
the rule
would be
standard of
to re-
The rule of law
tensions,
exacerbating
judges would be forced to
frain from
to avoid
expediency;
emotional,
politically
highly
form
cor-
to abstain
practice
from that
a “defensive”
divisive,
money
deeply
judi-
jurisprudence;
and those without
which is
work
rect
mercy
cially
judiciously.
at the
of those
standing
would be
willing-
power manipulate
and the
with the
appearance-based
Resort
criteria alone
judges
liking.
to their
impugn
ness to
judging simply encourages
the excesses
aspect
wrought
judicial system
perhaps
during
an unfortunate
often
It
is
rehearing
political struggle.
“Especially ought
timing
pendency
of the
times
pen-
needlessly
appeal has coincided with the
Court not reenforce
the insta
of this
political campaign
day by giving
ground
dency
rigorous
for
bilities of our
fair
for
of a
During
expression
on this Court.
the belief
that Law is the
two of five seats
instance,
periods
change
possible
unexpected changes
in the
chance —for
when
Court,
composition
contingen
in the
philosophical direction
Court’s
by pundits,
of the me-
cies in the choice of
temptation
members
successors.” United
candidates,
Rabinowitz,
dia,
special
interest
litigants,
States
339 U.S.
(1950) (J.
groups, or even members of this Court
S.Ct.
For these
opinion.
notes
by
clause should have been enforced
the
party trying
mandatory
[a]
to defeat
court,
grant
circuit
and that court’s failure to
“heavy
choice
forum clause bears
bur
Massey
the
Defendants’ motion to dismiss
Group
See Davis
v.
Media
Best
den.”
upon the
based
forum-selection clause was an
Int’l, Inc.,
464,
Western
F.Supp.2d
302
abuse of discretion.31
also, e.g., Sar
(D.Md.2004);
see
469-70
Entm’t,
miento v.
Retroactivity
BMG
F.Supp.2d
326
5.
of the New Fo
(C.D.Cal.2003) (“[I]f
1108, 1111
the
rehearing,
resist-
rum-Selection
Clause. On
the
rehearing,
Companies
long they may
On
ter how
30.
the Harman
have been rendered be
2,
Caperton argue,
unjust
part,
appeal
fore
syllabus,
Mr.
in
that it is
to
Point
was taken.’
Lloyd Kyle,
[1885].”).
deprive
apply
Finally,
to
v.
26
534
the forum-selection clause
them
W.Va.
large jury
Caperton
support
cases cited
in
verdict awarded below. The
Mr.
of his
however,
argument
question,
unjust
proper
apply
that it would be
is whether enforce-
unjust
forum-selection
where the
ment of
forum-selection clause was
or
clause
case is now
likely
time-barred in the contractual
unreasonable at the time
forum are
Defen-
unpersuasive.
upon
example,
Caperton
motion
For
Mr.
dants'
to dismiss based
cites
forum-
Brothers,
Companies
Ernest
The
and Norman Hart
selection clause.
Harman
Inc. v. Town
Contractors,
60, 65,
Mass.App.Ct.
Caperton
any
Inc. 18
Mr.
have
forth with
463
not come
facts
355,
(1984).
however,
argument
Notably,
N.E.2d
359
of the
or
enforcement
forum-selec-
solely
unjust
court's decision
based
clause
was not
on the lack
tion
was unreasonable
at that
addition,
remedy
Caperton
of a
in
Mr.
the contractual
forum state.
time.
asserts that
Rather,
fully litigated
this action
in
court concluded that the contract at
because
has been
Virginia,
remedy may
impor
issue
West
longer
was a contract of
More
because
no
adhesion.
tantly,
length
Virginia
running
at
due to
court discussed
the fact that
available
long
period,
unjust
Lhe
forum-selection clauses had
been viewed
limitations
it is
to enforce
and,
Massachusetts,
time,
reject
invalid in
forum
We
there
selection clause.
this rea-
soning
effectively
appellate
no clear
indication that Massachusetts
as it would
divest
appellate jurisdiction
of their
would follow the modern view of
courts
over a lower
reasonable
just
being
denial of a motion
dismiss based
forum-selection clauses
valid and en
court’s
above,
forceable. As noted
in 1981
a forum selection
as it
this Court
clause
relates
tort
First,
approval
just
indicated
lengthy
its
of reasonable and
fo
time
claims.
because of
in-
Key
rum-selection clauses.
Elec. Co. v.
prosecuting
judgment
General
volved
a case to a final
ser,
456,
2,
289,
166 W.Va.
n.
pursuing
appellate process,
461-62
275 S.E.2d
the
filing
the limita-
(1981).
292-93 n. 2
period
proper
tions
a tort action
likely
always
is
run
forum
to have
the time of
review, thus,
this Court’s
there
never be a
We
if we
would be remiss
did not acknowl
Next,
remedy
proper
tort
available in the
forum.
edge
motivating
that the
factor for the Harman
the defendants in this
are entitled to
action
seek
Companies
Caperton
bring
and Mr.
the tort
appeal.
review of the lower
decision on
court’s
Virginia may
claims in
West
been due to the
5,
Syllabus point
rel.
See
Mining
State ex
Davis v. Iman
Virginia
cap
punitive damages
fact that
has a
Co.,
46,
144 W.Va.