STATE of West Virginia ex rel. THORNHILL GROUP, INC. and Wally L. Thornhill, Petitioners v. Charles E. KING, Jr., Judge of the Circuit Court of Kanawha County and George A. Roberts, Respondents.
No. 14-0059
Supreme Court of Appeals of West Virginia
Decided June 6, 2014.
759 S.E.2d 795
Submitted April 22, 2014.
State‘s case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant‘s guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.
Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979). In McGinnis, we observed “that
Because the State‘s case rested solely upon the claims of Ms. Huffman and because the evidence of the other alleged bad acts by the petitioner improperly bolstered her testimony, we conclude that its admission had an unfairly prejudicial effect on the jury. The likelihood of a conviction in this instance, without the introduction of other sexual offenses allegedly committed by the petitioner, one of which was against a child, was considerably less. Thus, we find that the improper admission of the
Because we have reversed the petitioner‘s sexual abuse conviction, we must vacate his recidivist conviction. As this Court explained in syllabus point 3 of Holcomb v. Ballard, 232 W.Va. 253, 752 S.E.2d 284 (2013), “A recidivist sentence under
IV. Conclusion
For the reasons set forth above, the petitioner‘s conviction of first degree sexual abuse is reversed, and the case is remanded to the circuit court for a new trial and further proceedings consistent with this opinion. The petitioner‘s recidivist conviction is vacated.
No. 13-0574—Reversed and remanded.
No. 13-0575—Vacated.
Harry F. Bell, Jr., Esq., Jonathan W. Price, Esq., The Bell Law Firm, PLLC, Charleston, WV, for Respondent Roberts.
LOUGHRY, Justice:
Petitioners Thornhill Group, Inc. (“Thornhill Group“) and Wally L. Thornhill seek a writ of prohibition in connection with the December 16, 2013, ruling of the Circuit Court of Kanawha County denying their motion to dismiss for improper venue. Given that the petitioners—defendants below—are either residents of or have their principal place of business in Logan County and all the relevant factual events alleged by respondent George A. Roberts in support of the underlying cause of action transpired in Logan County, the petitioners argue that the provisions of our general venue statute1 dictate that venue is proper in Logan County. After a careful review of the applicable venue statute in conjunction with controlling case law, we conclude that the trial court committed error in ruling that venue lies properly in Kanawha County.2 Accordingly, we grant the requested writ of prohibition.
I. Factual and Procedural Background
On or about December 11, 2006, Mr. Roberts began working as a general manager for the Thornhill Group at its automotive dealership in Logan County.3 In the Spring of 2011, Mr. Roberts learned of the Thornhill Group‘s alleged decision to replace him with a younger employee.4 Through a complaint filed on February 11, 2013, in the Circuit Court of Kanawha County, Mr. Roberts asserted claims against the petitioners predicated on breach of contract, age discrimination, unlawful retaliation,5 and unpaid wages. The petitioners promptly filed a motion to dismiss asserting that Kanawha County is not the proper venue for the underlying cause of action based on the provisions of the general venue statute.6 Addressing Mr. Roberts’ allegation that a Kanawha County venue is supported by case law which recognizes a three-pronged consideration for selection of venue in breach of contract cases,7 the petitioners argued that not only was the alleged offer of employment accepted at the dealership located in Logan County, but all of the events related to an alleged breach of contract similarly took place in Logan County. The petitioners also question the validity of the decisional law relied upon by Mr. Roberts in light of the repeal of West Virginia Code § 56-1-2 in 1986.8 The petitioners assert that no fair or reasonable reading of the venue statute at issue would support venue existing in Kanawha County.
In denying the petitioners’ motion to dismiss on improper venue grounds, the trial court ruled that venue was appropriate in Kanawha County based on the alleged acceptance by Mr. Roberts of an offer of employment from the Thornhill Group in Kanawha County.9 As an additional basis for its ruling,
II. Standard of Review
That the issue of venue may properly be addressed through a writ of prohibition is well-settled. In State ex rel. Riffle v. Ranson, 195 W.Va. 121, 464 S.E.2d 763 (1995), we explained our preference for “resolving this issue [venue] in an original action” given the “inadequacy of the relief permitted by appeal.” Id. at 124, 464 S.E.2d at 766; accord State ex rel. Huffman v. Stephens, 206 W.Va. 501, 503, 526 S.E.2d 23, 25 (1999) (recognizing that concerns regarding litigants being placed at unwarranted disadvantage and inadequate appellate relief compel exercise of original jurisdiction in venue matters). In deciding whether to grant a writ of prohibition in cases where the lower court is acting within its jurisdiction but alleged to have exceeded its authority, we rely upon those now axiomatic factors set forth in syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).12 We proceed to determine whether a writ of prohibition should issue.
III. Discussion
The parties agree that the singular issue of venue before us is controlled by the provisions of
(a) Any civil action or other proceeding, except where it is otherwise specially provided, may hereafter be brought in the circuit court of any county:
(1) Wherein any of the defendants may reside or the cause of action arose, ...; or
(2) If a corporation be a defendant, wherein its principal office is or wherein its mayor, president or other chief officer resides....
According to the petitioners, the residency factors set forth in subsections (a)(1) and (2) of our general venue statute require the conclusion that Logan County is the proper county in which to resolve the underlying action. See
Turning to the residency requirements set forth in the general venue statute, it is clear that venue lies in Logan County. See
As part of our consideration of where Mr. Roberts’ cause of action arose, we find it necessary to address the petitioners’ contention that the trial court relied on case law that is no longer valid. In making its ruling in this case, the circuit court considered whether the repeal of
the West Virginia Supreme Court has applied the same reasoning subsequent to repeal of that statute, recognizing that the divisible and transitory nature of contracts means that venue may be appropriate in more than one county. McGuire v. Fitzsimmons, 197 W.Va. 132, 136-37, 475 S.E.2d 132, 136-137 (1996);
6. Further, the McGuire court observed that “[t]he plain language of
W.Va. Code, 56-1-1(a)(1) [1986] does not limit the venue to one county, but provides at least two possible justifications for proper venue, either the residence of the defendants or where the ‘cause of action arose.‘” Id. at 136, [475 S.E.2d at] 136.
The petitioners’ suggestion that the repeal of
This statutory enactment [
W.Va.Code, 56-1-1 ], which became effective in 1986, consolidated and slightly modified two previous venue statutes,W.Va.Code, 56-1-1 [1927] , andW.Va.Code, 56-1-2[1927] .
West Virginia Code, 56-1-1 , as in effect prior to the 1986 amendments, provided for venue based on the location of the defendant........
The former
W.Va.Code, 56-1-2 , unlike the formerW.Va.Code, 56-1-1 , provided for venue under certain circumstances in the county where the cause of action arose....As previously indicated, after the 1986 amendments, it was provided in
W.Va. Code, 56-1-1 , that, except where otherwise specifically provided, a cause of action could be brought in any county, “(1) Wherein any of the defendants reside or the cause of action arose.”
182 W.Va. at 490, 388 S.E.2d at 846 (emphasis supplied).
Rather than discarding established common law principles of venue concerning where the cause of action arose, we explained in Banner Printing that “this Court believes that the new
With our ruling in Banner Printing, this Court resolved more than two decades ago that, subsequent to the 1986 amendments to the general venue statute, our case law addressing the issue of where a cause of
Prior recognition of the legislative purpose for the 1986 amendments to our venue laws further supports the conclusion we reach in this case. Addressing the addition of language to
By enacting
W.Va.Code, 56-1-1(b) ,21 the legislature granted to the circuit courts of this State broader discretion than was permissible under the old rule of forum non conveniens. Thus, in effect, it gave the circuit court some discretion to decide the choice of forum, a prerogative which previously was placed in the hands of the plaintiff. UnderW.Va.Code, 56-1-1(b) , the “plaintiff‘s choice [of forum] is no longer the dominant factor that it was prior to [the] adoption of [this section].”
State ex rel. Smith v. Maynard, 193 W.Va. 1, 7, 454 S.E.2d 46, 52 (1994) (footnoted added and citation omitted). Justice Cleckley elicited further that the legislative changes came in response to our ruling in Hinkle v. Black,22 with the aim of revising “this Court‘s formulation of the forum non conveniens doctrine.”23 Id. at 9, 454 S.E.2d at 54. Under subsection (b), defendants who do not reside in the county in which a plaintiff has filed a cause of action were provided with a procedural mechanism by which to seek transfer of that action to a county where one or more defendants resides in the interests of convenience and serving the ends of justice.24 See
Returning to the case before us, we proceed to analyze the trial court‘s decision that venue was proper in Kanawha County based on the residency of Mr. Roberts; his situs when accepting the employment contract; and the location where damages from the alleged breach would be most acutely realized. Under the provisions of our general venue statute, the place of the plaintiff‘s residency has no independent bearing on
In support of its ruling that venue lies in Kanawha County, the trial court concludes that Mr. Roberts accepted an offer of employment from the Thornhill Group in Kanawha County. The record of this case, however, is devoid of any evidence in support of this finding. Not only does the complaint fail to refer to where the oral contract was formed, but no supporting evidence has been submitted on this issue. As we recognized in syllabus point three of Hudgins v. Crowder & Freeman, Inc., 156 W.Va. 111, 191 S.E.2d 443 (1972), “[c]ourts of record can speak only by their records, and what does not so appear does not exist in law.” There is simply no evidence in the record of this case to establish that Mr. Roberts accepted his offer of employment, as was represented during oral argument of this case, while utilizing the telephone in his home.
Although we have no basis from which to assess whether an offer of employment was accepted in Kanawha County,25 the location of the contract‘s acceptance has no bearing on where the subject cause of action arose in this case. See Syl. Pt. 1, Jones v. Main Island Creek Coal Co., 84 W.Va. 245, 99 S.E. 462 (1919) (recognizing that cause of action consists of duty owing to one person from another combined with violation or breach of that duty). Rather than the existence of the contract itself being the pivotal focus of Mr. Roberts’ contractual claim, his claim is predicated on the alleged breach of that contract. Accordingly, for purposes of determining venue in the case before us, what is relevant is where the breach of contract ensued and not where the contract was accepted.
By focusing on the location of the alleged contract‘s acceptance, the trial court overlooked the critical need to determine where the cause of action arose when deciding where venue lies. See
IV. Conclusion
Given the fact that
Writ granted.
Justice KETCHUM concurs and reserves the right to file a concurring opinion.
Justice KETCHUM, concurring:
Our venue statute;
I would overrule all our cases which indicate in a breach of contract suit that the place of contract formation, breach and damages may be considered in determining venue. These cases misconstrue the statute and may allow the plaintiff a choice of forums not allowed by our venue statute.
I do agree with the result in this case.
Therefore, I concur.
Notes
An action, suit or proceeding may be brought in any county wherein the cause of action, or any part thereof, arose, although none of the defendants reside therein, in the following instances:
(a) When the defendant, or if more than one defendant, one or more of the defendants, is a corporation;
(b) When the defendant, or if more than one defendant, one or more of the defendants, are served in such county with process or notice commencing such action, suit or proceeding.
If a corporation be a defendant, wherein its principal office is or wherein its mayor, president or other chief officer resides; or if its principal office be not in this State, and its mayor, president or other chief officer do not reside therein, wherein it does business; or if it be a corporation organized under the laws of this State which has its principal office located outside of this State and which has no office or place of business within the State, the circuit court of the county in which the plaintiff resides or the circuit court of the county in which the seat of state government is located shall have jurisdiction of all actions at law or suits in equity against the corporation, where the cause of action arose in this State or grew out of the rights of stockholders with respect to corporate management[.]
Where one supports the venue for his civil action based upon the place of the breach comprising a part of the cause of action, in the usual case, he must bring the action in the place or county in the State where the breach, repudiation or violation of the duty occurs. But a well recognized exception to the above rule is the “to pay” doctrine providing: where the duty imposed is to pay a debt, the courts construe the contract and the law implies a further duty upon the debtor after default, to seek the creditor and make payment to him and declares that the residence of the creditor at the time the debt is due is the place of the breach of the contract.
156 W.Va. at 694, 195 S.E.2d at 734.Whenever a civil action or proceeding is brought in the county where the cause of action arose under the provisions of subsection (a) of this section, if no defendant resides in the county, a defendant to the action or proceeding may move the court before which the action is pending for a change of venue to a county where one or more of the defendants resides and upon a showing by the moving defendant that the county to which the proposed change of venue would be made would better afford convenience to the parties litigant and the witnesses likely to be called, and if the ends of justice would be better served by the change of venue, the court may grant the motion.
Before the 1986 revisions, our application of the doctrine of forum non conveniens struck directly at venue choices authorized by the Legislature. In other words, it gave the circuit courts authority to disregard the venue statutes that limited venue to certain counties and permitted transfers to another county based upon the circuit court‘s determination that it would be more convenient and just to transfer the case.
195 W.Va. at 127 n. 9, 464 S.E.2d at 769 n. 9.