State v. Sanders, 15-0033

State of West Virginia ex rel. James Campbell and Steven Foster, Petitioners v. The Honorable David H. Sanders, Judge of the Circuit Court of Jefferson County;and Glen Poe, Respondents

No. 15-0033

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 16, 2015

(Jefferson County 08-C-223)

MEMORANDUM DECISION

In this original proceeding, the petitioners and defendants below, James Campbell and Steven Foster, by counsel Charles R. Bailey, petition to prohibit the circuit court from enforcing its order of January 17, 2014. The circuit court denied the defendants' motion to alter or amend the order on January 5, 2015. The 2014 order granted the motion of the respondent and plaintiff below, Glen Poe, represented by Robert J. Schiavoni and David M. Hammer, to set judgment on a $100,000 promissory note guaranteed by the defendants, such judgment also including an award of interest and attorney fees.

Upon consideration of the record before us, the parties' briefs, and their oral arguments, we conclude that the circuit court's order is not clearly erroneous as a matter of law, and, therefore, that extraordinary relief should not issue. Moreover, because we discern no substantial question of law in connection with the petition, a memorandum opinion refusing the requested writ of prohibition is the appropriate disposition pursuant to Rule 21 of the West Virginia Rules of Appellate Procedure.

The underlying matter has been before us once before, on direct appeal. In Campbell v. Poe, No. 12-0130 & No. 12-0165, 2013 WL 2462169 (W. Va. June 7, 2013), we affirmed the circuit court's grant of summary judgment to Poe on the promissory note. Therein, we recited that Campbell—Poe's former attorney—convinced Poe to lend $100,000 to a restaurant venture in which Campbell was involved. The promissory note was executed on August 29, 2007, by a limited liability company, and it contained the personal guarantees of Campbell, Foster, and Michael Briel. The note provided for simple interest on the principal at an annual rate of twelve percent, and, in the event of anaction to collect, Poe was entitled to recover "all reasonable costs and expenses thereof, including but not limited to reasonable attorneys fees."

Less than $3500 in accumulated interest was paid on the note before the restaurant went out of business and the company declared bankruptcy. Poe sued Campbell, Foster, and others for breach of contract, fraud, negligent legal counsel and breach of fiduciary duties, and for violations of the Wage Payment and Collection Act, 21 West Virginia Code § 21-5-1 to § 21-5-18.

The contract and fraud claims were tried in May 2011 before a jury, which returned a verdict for Poe. The circuit court declared a mistrial, however, because of an irregularity during the subsequent punitive damages phase. A retrial was scheduled, then cancelled after the circuit court granted Poe's motion for summary judgment on the contract claim, grounded predominantly on the defendants' admissions at trial and in Campbell's pro se closing argument during the punitive damages phase that he had "never shied away from" admitting that he had signed the guarantee. The circuit court's order of November 9, 2011, specified that it

shall conduct such further proceedings as may be necessary under the terms of the Note to liquidate an amount due under the Note, including an award of attorney's fees and costs as provided for in the Note. The plaintiff shall have twenty days from the date of entry of this Order to submit such further issues to the Court and a Rule 22 will issue upon the plaintiff's motion.

The mention of "Rule 22" refers to the corresponding portion of the Trial Court Rules governing motions practice, meaning simply that once Poe identified the issues remaining for adjudication and signaled his readiness, the circuit court would enter an order scheduling briefing and argument thereon. The circuit court's docket indeed reflects two entries relating to scheduling orders on November 28, 2011 (within twenty days of the November 9 order), but provides no explicit detail concerning their subject matter or what precipitated them. Prior docket entries on November 23, 2011, however, indicate receipt of a pair of letters dated two days before and sent by Poe's lawyer to counsel for each defendant.

Also on November 23, 2011, the defendants moved to alter or amend the November 9 order. The circuit court denied that motion on January 5, 2012, prompting Campbell and Foster to file notices of appeal on January 23 and January 27, 2012, respectively. We affirmed the circuit court's order on June 7, 2013, see Campbell, 2013 WL 2462169 at *4, and, after we denied the defendants' petition for rehearing, our mandate issued on October 1, 2013.

On November 13, 2013, Poe moved the circuit court to set the amount of judgment, and, on November 25, 2013, he filed a petition for fees and costs in excess of $197,000. Poe's motion came on for hearing on January 5, 2014. On January 17, 2014, the circuit court entered an order awarding judgment to Poe in the amount of $173,000 for principal and interest due through October 31, 2013. The circuit court instructed Poe "to submit separately his petition for fees and costs to include said fees and costs through appeal and up to and through this motion." Poe had initially expected fees and costs to be determined concomitantly with the amount of judgment, but, as the result of an apparent miscommunication, counsel for the defendants informed the circuit court at the January 5 hearing that he was unprepared to address the merits of the fee petition.

The defendants moved to alter or amend the judgment order. The circuit court denied that motion on January 5, 2015. On January 14, 2015, the defendants filed the instant petition seeking extraordinary relief in prohibition. Therein, the defendants contend that our mandate of October 1, 2013, affirming the circuit court's initial entry of summary judgment on behalf of Poe, insofar as it did not provide for a remand for the circuit court to determine the specific amount of judgment or an award of attorney fees, effectively ended the case. According to the defendants, the circuit court was therefore without jurisdiction to entertain Poe's motion to set judgment or to adjudicate his petition for fees and costs.

We will grant a petition seeking a writ of prohibition "'only to restrain inferior courts from proceedings in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers.'" Syl. pt. 3, in part, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996) (quoting syl. pt. 1, in part, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953)). A petition for a writ of prohibition "'may not be used as a substitute for a petition for appeal or certiorari.'" Id. (quoting Crawford) (alteration omitted). In Hoover, we set forth five factors to assist us in determining whether a lower tribunal has exceeded its legitimate authority such that we should exercise our discretion to grant extraordinary relief in prohibition:

(1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied,it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Syl. pt. 4, id.

In taking the position that the lack of an explicit remand following direct appeal rendered the dispute final for all purposes, the defendants blame Poe for the supposed procedural default, noting:

Poe did not mention to this Supreme Court that a specific judgment amount had not been awarded by the Circuit Court of Jefferson County or that any issue remained with respect to the award of attorneys' fees. . . . Poe [therefore] waived any remaining issue to be decided by the Supreme Court or by the Circuit Court of Jefferson County.

The defendants thus maintain that because Poe did not move to dismiss their appeal (i.e., their losing appeal) as interlocutory, he is not entitled to a money judgment for their admitted breach of contract. Ignoring the fundamental maxim that "[e]quity will not permit the processes of a court to be used to work injustice," Price v. Price, 122 W. Va. 122, 7 S.E.2d 510, 514 (1940) (Fox, J. dissenting), the defendants insist that two of our recent decisions, In re Name Change of Jenna A.J., 234 W. Va. 271, 765 S.E.2d 160 (2014), and Quicken Loans v. Brown, ___ W. Va. ___, No. 13-0764, 2014 WL 6734107 (W. Va. Nov. 25, 2014), petition for cert. filed, Mar. 30, 2015, require precisely that sort of unjust result.

In Jenna A.J., we concluded that the issuance of an opinion without remand establishes the law of the case, such that the circuit court's reconsideration of the issue decided is, "in effect, an attempt to overrule a decision of this Court, something that is contrary to our system of jurisprudence." 234 W. Va. at ___, 765 S.E.2d at 163. Then, in Quicken Loans, we held that the circuit court erred on remand in awarding attorney fees for the prior appeal where the mandate directed the parties to bear their own costs. The defendants interpret these precedents as barring all further action by the circuit court in the instant case.

Neither Jenna A.J. nor Quicken Loans stand for anything remotely close to the proposition for which...