LINDA L. HINKLE, exrx., etc., et al. υ. THE HON. DONALD F. BLACK, etc., et al.
No. 14617
Supreme Court of Appeals of West Virginia
Decided December 18, 1979
In accord with the reasoning herein, the orders of the Circuit Courts of Mingo County and Lincoln County are reversed and the cases remanded with instruction that the appeals be granted and that the proper value of the affected parcels of land be set by the circuit court based upon taking of relevant evidence.
(Mingo County)
Reversed.
(Lincoln County)
Reversed.
John R. Hoblitzell, Kay, Casto & Chaney for Cross Concrete.
Herbert G. Underwood, James M. Wilson, Steptoe & Johnson for Research-Cottrell.
Diana Everett, Cather & Renner for United.
John B. Garden, R. Noel Foreman, Bachmann, Hess, Bachmann & Garden for Allegheny, Monongahela and Potomac-Edison.
Spilman, Thomas, Battle & Klostermeyer, David B. Shapiro, John H. Tinney, McQuire, Woods & Battle, Murray H. Wright for Pittsburgh Testing.
NEELY, JUSTICE:
On 27 April 1978 the collapse of a cooling tower then under construction at the Pleasants Power Station, Willow Island, Pleasants County, West Virginia, resulted in the deaths of fifty-one men. As a consequence of certain of those deaths, as of 18 June 1979, there were pending in the Circuit Court of Pleasants County twenty civil actions which sought damages for wrongful death from various defendants who were involved in the construction or ownership of the collapsed tower.
On 16 May 1979 seven civil actions seeking damages for the alleged wrongful deaths of persons killed in the
The seven civil actions filed in Wood County were distributed among the three judges of that court, and on 18 June 1979 Research-Cottrell, which was a defendant in each of the wrongful death actions, moved the Circuit Court of Wood County to remove the civil actions filed in that circuit to the Circuit Court of Pleasants County pursuant to
The motion to transfer the actions to Pleasants County was resisted by the plaintiffs in the Wood County litigation and after briefs and argument the respondent, Donald F. Black, Chief Judge of the Circuit Court of Wood County, granted the motion and directed that an order effecting that decision be prepared for entry. Included in Judge Black‘s findings were his conclusions that:
*** all Twenty-Seven (27) Civil Actions—Seven (7) pending in the Circuit Court of Wood County, West Virginia, and the Twenty (20) pending in the Circuit Court of Pleasants County, West Virginia, involved common questions of both law and fact, and that they can be consolidated for the purposes of discovery and trial, and the issues of liability and all other matters other than the quantum of damages. If said Civil Actions are consolidated for the determination of all issues other than damages, they will save all parties litigant to all Twenty-Seven (27) Civil Actions much time and money. Such consolidation would avoid (1) duplication of discovery, (2) the duplication of the trial of the issues of liability, and (3) duplication as to other issues. Such consolidation would avoid possible contradictory rulings on the part of the separate circuit courts trying the same.
The plaintiffs in the Wood County action then came to this Court seeking a writ of prohibition and we granted a rule to show cause why the Circuit Court of Wood County had not exceeded its legitimate powers in transferring the civil actions to Pleasants County. We conclude that the Circuit Court of Wood County had jurisdiction to transfer the cases and that in so doing the court did not abuse its discretion; consequently, the writ of prohibition prayed for is denied.
I
The threshold question presented in this case is whether an issue of this type may be reached by a writ of prohibition. This case presents an opportunity to address a subject which has not recently been adequately considered, namely when a litigant can successfully seek a writ of prohibition to serve the office of an interlocutory appeal. In general there is an embarras de richesses of creative mandates emanating from actions in prohibition2 and an utter paucity of cogent analysis of the crite-
Nonetheless, the classic formulation that a writ of prohibition will issue “in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers,”
error under substantive or procedural law and a court acting in excess of its powers if only because every act without jurisdiction or in excess of its powers in a proceeding over which it has jurisdiction of necessity involves an ‘error of law.‘” La Rocca v. Lane, 37 N.Y. 2d 575, 338 N.E.2d 606 (1975), cert. denied, 424 U.S. 968 (1976).
We have recognized the simple truth of the La Rocca, supra, pronouncement in the variety of circumstances where we have issued writs of prohibition because a court “exceeded its legitimate powers,”4 but we have
Since the key word in any analysis of prohibition must be “discretionary” unless this Court is to take on the character of an appellate squire‘s court, we are confounded for that reason by insurmountable conceptual hurdles to constructing iron-clad rules about when prohibition will issue. We can initially, however, perform one service for litigants and the bar, namely explain that once a rule to show cause in prohibition has issued it is unnecessary to brief the procedural question of whether prohibition is the appropriate remedy under prior case law. This Court is sufficiently familiar with all the law surrounding the writ or prohibition that three or four pages of brief dedicated to a repetition of rules about prohibition lying only when a trial court has “exceeded its legitimate powers” is a waste of litigant money and lawyer and court time. It shall be sufficient hereafter in prohibition cases to state the simple proposition that prohibition is not the appropriate remedy arguing the functional criteria of this case or alternatively that prohibition is the appropriate remedy using the same criteria.
When then will prohibition be considered the appropriate remedy and a rule to show cause issue? At the heart of the matter are two functional criteria: first, the adequacy of another remedy such as appeal; second, economy of effort among litigants, lawyers and courts.5 Fur-
Obviously there are prohibition proceedings which come squarely within the classic definition of “when the inferior court has not jurisdiction of the subject matter in controversy”
In the case before us we had an excellent prima facie showing of grounds for relief in prohibition at the time the rule issued; while we have concluded after looking at
Consequently, in the case before us the adequacy of a remedy by appeal was wholly theoretical and not at all practical. The same applies in criminal cases where the issue is double jeopardy; a defendant may be put to $25,000 worth of legal fees, months of agony (possibly in jail) and a year in prison or the county jail while this Court considers a full appeal. That is hardly adequate! Furthermore, in terms of judicial economy it is far more efficient for this Court to prohibit a trial when the defendant presents a good double jeopardy plea than it is to have the lower court spend court time, jury fees, witness fees, transcript expenses, and prosecutor resources only to discover two years later that the trial was a nullity. The cases where double jeopardy has not been found a good ground are seldom reported because this court does not issue the rule in the first place. This Court‘s time is not so valuable that we cannot spend ten man hours (staff included) to save three hundred man hours below and $30,000 in expense. The reported cases generally reveal at least one rule, namely, that whenever lawyers feel that they have been outrageously abused by incorrect trial court rulings they come to this Court seeking justice and this Court has frequently respond-
In most of the cases where a rule has been issued the question has been exclusively legal and not a mixed question of fact and law. This court is not engineered to be as efficient a finder of fact as a trial court because of the cumbersome procedures for taking depositions. When, however, there is a clear legal question it is often efficient to come in prohibition. Furthermore, a remedy by appeal of a crucial but erroneous legal ruling is frequently quite inadequate, particularly if we are realistic in our definition of “adequacy” and recognize that part of adequacy has to do with expense and time. However, where the proper resolution of the legal question first depends upon a proper finding of disputed facts, then the efficiency of prohibition disappears because of mechanical problems in fact finding inherent in multimember courts. In that event, surely, the relative adequacy of a remedy by appeal becomes correspondingly enhanced.
We fear that prohibition may become a dragnet by means of which questions appropriate for the trial court will erroneously be brought before our Court; nonetheless, this Court invites opportunities to correct substantial, clear-cut, legal errors where there is the high probability that the trial will be completely reversed if the error is not corrected in advance. Examples of this type of error have been: proceedings predicated on unconstitutional statutes;8 improper joinder of parties defend-
ant;9 awards of alimony in favor of a guilty party against whom a divorce has been granted;10 proceedings in direct contravention of a clear, positive command of the State or Federal constitutions;11 proceedings in contravention of a clear, positive command of a statute;12 et hoc genus omne.
II
The petitioners in the case before us assert that the provisions of
III
Petitioners further allege that even if the respondent judge had jurisdiction to transfer the cases he abused his discretion in so doing since the plaintiffs were entitled to a jury trial in any forum of their choice with proper jurisdiction and venue. This confronts us with the need to reconcile conflicting public policies: the first is to “secure the just, speedy, and inexpensive determination of every action” Rule 1, W.Va. RCP; the second is to assure that a plaintiff may choose the forum which is most convenient for him.13 The respondent Criss Concrete Company filed a number of exhibits in this prohibition proceeding, among which were included 286 pages of depositions already taken along with over 200 printed pages of interrogatory questions. One can imagine the volume of the answers which will be submitted in response! There are nine corporate defendants and 27 individual plaintiffs in these actions. Furthermore, it appears that the suit will focus upon enormously complex factual questions involving principles of engineering which will be intertwined with equally complex legal issues concerning workmen‘s compensation immunity, warranty, products liability, negligence, and comparative negligence. The petitioners assert that since Wood
Accordingly for the reasons set forth above the writ of prohibition is denied.
Writ denied.
CAPLAN, JUSTICE, concurring:
While I agree with the decision to deny the writ in this case, I am not in agreement with much of the dissertation in the opinion relative to the function of the extraordinary remedy of prohibition. Preliminarily, I do not agree that the subject of prohibition “has not recently been adequately considered.” The decisions of this Court, recent and throughout the years, which have, with clarity, instructed the bench and bar on the proper use of prohibition, are indeed legion and the purported instruction contained in the opinion, which I believe in large part is erroneous, tends to confuse rather than aid.
Which clear errors may be corrected by a writ of prohibition? Upon the admission of clear hearsay testimony, do we interrupt the trial and proceed in this Court in prohibition? Upon the giving of an erroneous instruction, is there to be another interruption of the trial to correct what appears to be clear error? The answers to these queries should be obvious—a trial could be subjected to unreasonable delay and endless shuttling from trial to appellant court. No, I do not, as suggested by the writer of the opinion, “cringe at the bare mention” of interlocutory appeal—interlocutory appeal, properly used, serves a proper function in our jurisprudence—but I do “cringe” at the cavalier manner in which the Court, in this case, has subverted the clear and well established office of the writ of prohibition.
To carry out the teachings of the opinion could, and probably will, result in the piecemeal handling of litigation. This was deplored by the writer of the opinion in Woodall v. Laurita, 156 W.Va. 707, 195 S.E. 2d 717 (1973) in the following language: “The piecemeal challenge of discretionary rulings through writs of prohibition does not facilitate the orderly administration of justice.” It is my firm conviction that the pronouncements in the opinion in relation to the function of the writ of prohibition are far too broad, that they obliterate the distinction between that extraordinary remedy and appeal and that the use of prohibition in the manner prescribed will cause confusion and delay in the trial of cases.
Notes
A circuit court, or any court of limited jurisdiction established pursuant to the provisions of section 1, article VIII of the Constitution of this State, wherein an action, suit, motion or other civil proceeding is pending, or the judge thereof in vacation, may on the motion of any party, after ten days’ notice to the adverse party or his attorney, and for good cause shown, order such action, suit, motion or other civil proceeding to be removed, if pending in a circuit court, to any other circuit court, and if pending in any court of limited jurisdiction hereinbefore mentioned to the circuit court of that county: Provided, that the judge of such other circuit court in a case of removal from one circuit to another may decline to hear said cause, if, in his opinion, the demands and requirements of his office render it improper or inconvenient for him to do so.
The dissent was more realistic and prescient in recognizing the “encouragement to interlocutory appeals offered by this decision” 352 U.S. at 268 (Brennan, J. dissenting). Since La Buy “[i]t is beyond question that the supervisory mandamus cases have extended the writs well beyond their traditional role.” 16 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3934 at 241 (1977). In both civil and criminal areas the use of the extraordinary writ in Federal review is burgeoning but at least one commentator believes that “stern admonitions that the writs remain reserved for extraordinary situations have been effective in preventing a debilitating rush of petitioners.” Id. We hope the same will apply in West Virginia!
“(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. * * * (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal (This guideline is closely related to the first). * * * (3) The district court‘s order is clearly erroneous as a matter of law. * * * (4) The district court‘s order is an oft-repeated error, or manifests a persistent disregard of the federal rules. * * * (5) The district court‘s order raises new and important problems, or issues of law of first impression.” Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir. 1977) (citations omitted).