This is a follow-up appeal from our decision in
Phares v. Brooks,
I.
FACTUAL AND PROCEDURAL HISTORY
Ms. Phares and Mr. Brooks were involved in an automobile accident on Painter Hollow Road in Mineral County. Ms. Phares sued Mr. Brooks and his father. 1 On the day the trial began, the jury pool included Judith Dolechek. Although not evident from the voir dire transcript, later evidence in the case clearly illustrated that the circuit court was aware that Ms. Dolechek was employed by State Farm Insurance Company. At voir dire the circuit court asked, “I know there was a question raised, Ms. Dolechek, would, your work sometimes deals with things involving accidents. Would, would that, do you feel that would influence you in anyway?” Ms. Dolechek responded, “No, because I just do claims. I just type them in and that’s it- I have nothing more to do with it.”
Thereafter, Ms. Phares’s counsel, Mr. Staggers, asked, “[i]s there anyone who’s familiar with Painter Hollow Road?” One juror who was unnamed in the voir dire transcript, verbally responded, “I know where it is.” When Ms. Phares’s counsel then asked, “Okay. For the record, can you state your names, please[,]” the voir dire transcript reads “(Jurors Peltier, Hanson, Beery and Steele gave their names.)” The voir dire transcript reveals that Ms. Dolechek did not answer. Thereupon, a jury was empaneled which included Ms. Dolechek. The jury returned a verdict apportioning fault at 50% and 50%, resulting in Ms. Phares receiving no damages.
After the jury was discharged and the term of court ended, Mr. Staggers contacted three jurors, including Ms. Dolechek. During his discussion with Ms. Dolechek, Mr. Staggers states that Ms. Dolechek admitted familiarity with Painter Hollow Road and further stated that the curve where the accident occurred was so dangerous that she could not imagine anyone could be at fault. *444 Mr. Staggers also claimed that Ms. Dolechek expressed the opinion that everybody sues and that is why insurance rates are so high. Armed with this information, Mr. Staggers requested a hearing to inquire into whether Ms. Doleehek’s answers about her insurance job and her lack of familiarity with Painter Hollow Road were false. When the circuit court refused to grant a hearing, Ms. Phares appealed. In ruling for Ms. Phares, we specifically found that
[i]n this Court’s view, the question posed by the appellant’s attorney to the jury panel as to their knowledge of the scene of the accident was material in that it went to the question of whether the jurors could rule in the case solely on the evidence presented, rather than on personal knowledge.
Phares I,
As a result of our remand in Phares I, the circuit court conducted a hearing on August 5, 2002 (hereinafter “the remand hearing.”). Although not clear from the record before us, it appears that the circuit court directed Mr. Staggers to secure counsel for himself and that the Brookses then subpoenaed Mr. Staggers to testify at the remand hearing. It is, however, clear from the remand hearing transcript that Mr. Staggers did testify. He explained during the remand hearing that he attempted to contact all the jurors who sat on the jury, but succeeded in reaching only three of them-including Ms. Dolechek. As a result of his conversations with her, he testified that Ms. Dolechek volunteered that before the trial she was familiar with Painter Hollow Road and was further familiar with the curve where the accident happened.
At the remand hearing, Ms. Dolechek admitted that she was familiar with Painter Hollow Road before the trial and that she believed that the curve where the accident occurred was dangerous. She denied, however, having a preconceived belief as to who was at fault in the accident. She further testified that she did not remember if she was asked during voir dire if she was familiar with Painter Hollow Road. Ms. Dolechek explained:
I was excited about doing jury duty because I really didn’t think I’d ever get picked for jury [sic], and I was a little nervous, very nervous in fact, when I first came in because I’d never done it before, and the first part, you know, is just, I don’t remember a lot of things that went on. I remember you asking me about whether I worked for insurance and if I did claims and so forth, and I remember telling you that I typed them in and that was as far as they went with claims, and I remember the doctors and things of that sort, but it’s been so long ago I don’t remember everything.
The circuit court entered an order reinstating the verdict. The circuit court found that “Ms. Dolechek may have raised her hand in response to Mr. Staggers’ voir dire question about Painter Hollow Road and that the court reporter simply did not see Ms. Dolechek based upon the layout of the courtroom and thus, her name was not included in the transcript.” The court went on to find that “Ms. Dolechek may not have heard any question of voir dire concerning whether she was familiar with Painter Hollow Road and thus if she did not hear the question, made an honest omission.” Finally, the circuit court found that the because Ms. Phares did not strike any of the four jurors who admitted familiarity with Painter Hollow Road, the voir dire question was not material. From this ruling, Ms. Phares timely appealed.
*445 II.
STANDARD OF REVIEW
We begin our review by identifying the standard of review that governs this case. We have held that
[i]n reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court’s underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Syl. pt. 3,
State v. Vance,
III.
DISCUSSION
Ms. Phares claims that Ms. Doleehek falsely testified by not in responding to the materia] voir dire question about whether any juror was familiar with Painter Hollow Road. In contrast, the Brookses, consistent with the circuit court's order, make three responses. They first assert that Ms. Dolechek’s failure to respond that she was familiar with Painter Hollow Road may be explained because it is plausible that Ms. Doleehek simply failed to hear the question. They also posit that Ms. Doleehek might actually have heard the question and raised her hand in affirmative response; but, that she was overlooked by the court reporter. Finally, she argues that the question was not material. We reject these contentions and find that the circuit court abused its discretion in failing to grant Ms. Phares a new trial.
First, nothing in either the voir dire transcript nor the remand transcript supports the circuit court’s conclusion that Ms. Dole-ehek may not have heard the question and that her failure to respond was not intentional. Ms. Doleehek was able to hear the circuit court’s question concerning her employment and, moreover, four other jurors were able to hear the question about Painter Hollow Road-one of whom verbally responded, “I know where it is.” Ms. Dolechek’s testimony at the remand hearing is also devoid of any testimony that she actually heard the question and answered. Her testimony at the hearing was that she simply did not remember whether she heard the question when asked. 2 Indeed, the circuit court’s order is facially speculative in finding that “Ms. Dole-ehek may not have heard any question of voir dire concerning whether she was familiar with Painter Hollow Road and thus if she did not hear the question, made an honest omission.” (Emphasis added).
Second, nothing in either the voir dire transcript nor the remand transcript supports the circuit court’s conclusion that Ms. Doleehek answered the question about Painter Hollow Road; but, the court reporter simply failed to see her raise her hand. The voir dire transcript reveals that when asked if any jurors were familiar with Painter Hollow Road, only four jurors responded in the affirmative and that Ms. Doleehek was not one of the four. Moreover, Ms. Doleehek did not testify at the remand hearing that she heard and answered the question about Painter Hollow Road. At best, her testimony was that she could not remember whether she heard the question when asked. We are again troubled by the circuit court’s order when its conclusion is based upon speculation that “Ms. Doleehek may have raised her hand in response to Mr. Staggers’ voir dire question and that the court reporter simply did not see Ms. Doleehek based upon the *446 layout of the courtroom and thus, her name was not included in the transcript.” (Emphasis added).
Indeed, our review of the
voir dire
and remand hearing transcripts in this case establishes Ms. Phares right to relief under
Phares I.
During the remand hearing, Ms. Dolechek admitted she was familiar with Painter Hollow Road as well as the curve where the accident in this case occurred at the time
voir dire
occurred in this case. She also admitted that she considered the curve to be “dangerous.” Notwithstanding these admissions, the circuit court engaged in mere speculation as to what
might have happened
at
voir dire
by advancing two inconsistent conclusions, each unsupported by the record. First, that Ms. Dolechek heard the question and answered while being overlooked by the court reporter. Alternatively, that Ms. Dole-chek did not hear the question and thus honestly did not answer. We think that a circuit court’s order cannot legitimately be based on speculation or divorced from the evidence in the record.
See, e.g., State v. Head,
Of course, our above conclusions are not fatal to the Brookses if we accept the circuit court’s final justification for denying a new trial — that “the voir dire question of the Plaintiff as to familiarity with Painter Hollow Road was not a material question.” We, however, must also reject this conclusion as well.
In syllabus point 1 of
Adkins v. American Casualty Co.,
“The general rule is that when a question has been definitely determined by this Court its decision is conclusive on parties, privies and courts, including this Court, upon a second appeal and it is regarded as the law of the case.” Pt. 1, Syllabus, Mullins v. Green,145 W.Va. 469 [,115 S.E.2d 320 (1960)].
See also State ex rel. Frazier & Oxley v. Cummings,
No. 31391,
[i]n this Court’s view, the question posed by the appellant’s attorney to the jury panel as to then* knowledge of the scene of the accident was material in that it went to *447 the question of whether the jurors could rule in the case solely on the evidence presented, rather than on personal knowledge.
For the above reasons, we find that the circuit court abused its discretion as it acted under a “misapprehension of the law [and] the evidence!,]” Syl. Pt. 4,
Sanders v. Georgia-Pac. Corp.,
IV.
CONCLUSION
For the preceding reasons, the judgment of the Circuit Court of Mineral County is reversed. This case is remanded with directions to award a new trial. 5
Reversed and remanded.
Notes
. Charles J. Brooks was driving a car owned by his father Charles L. Brooks.
. Specifically, at the remand hearing, Ms. Dole-ehek was asked, "Did you hear the question when it was asked at that time?" Ms. Doleehek answered, "That I do not remember.”
. In its order, the circuit court found, in part, that "Ms. Dolechek ... testified that she did not have a preconceived notion about where the accident occurred ...” However, Ms. Dolechek's testified at the remand hearing:
Q Ms. Dolechek, when you say you had some familiarity with the road before, what, did you have a preconceived opinion about that particular curve?
A No, sir, I did not. I know its dangerous, but that’s it.
Thus, although denying it, it is clear that Ms. Dolechek did have a preconceived idea of Painter Hollow Road and the curve where the accident occurred.
. We have observed in the past "that the rule known as ‘law of the case’ is not absolute],]’’
Highland
v.
Davis,
. Given our conclusion that Ms. Phares is entitled to a new trial because Ms. Dolechek failed to answer a material voir dire question, we need not address Ms. Phares’s other assignments of error.