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Magnet Bank v. Barnette
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 1992 Term ___________ No. 20406 ___________ MAGNET BANK, F.S.B., Plaintiff Below, Appellee v. WILLIAM A. BARNETTE, FRANK M. MORRISON, AND MOUNTAIN TOP ATHLETIC CLUB, INC., A CORPORATION, Defendants and Third-Party Plaintiffs Below, Appellants v. ROBERT P. MARTIN, Third-Party Defendant Below, Appellee _______________________________________________________ Appeal from the Circuit Court of Pocahontas County Honorable Frank E. Jolliffe, Judge Civil Action No. 86-C-130 Reversed ________________________________________________________ Submitted: April 29, 1992 Filed: May 29, 1992 Michael C. Allen Charleston, West Virginia Christopher P. Bastien Charleston, West Virginia Attorneys for the Appellee Robert P. Martin David A. Sims Michele W. Good Wallace, Ross & Harris Elkins, West Virginia Attorneys for Appellants The Opinion of the Court was delivered PER CURIAM. SYLLABUS BY THE COURT 1. "'The provisions for impleader under Rule 14(a), West Virginia Rules of Civil Procedure, . . . are within the sound discretion of the trial court and where the third party procedure may create confusion or cause complicated litigation involving separate and distinct issues the trial court does not abuse its discretion in refusing to allow
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impleader under third party practice.' Syl. Pt. 5, in part, Bluefield Sash & Door Co., Inc. v. Corte Constr. Co., 158 W. Va. 802, 216 S.E.2d 216 (1975), overruled on other grounds, Haynes v. City of Nitro, 161 W. Va. 230, 240 S.E.2d 544 (1977)." Syllabus Point 5, Shamblin v. Nationwide Mut. Ins. Co., 183 W. Va. 585, 396 S.E.2d 766 (1990). 2, "'Impleader under Rule 14(a), West Virginia Rules of Civil Procedure, should not be allowed if there is a possibility of prejudice to the original plaintiff or the third party defendant.' Syl. Pt. 3, Bluefield Sash & Door Co., Inc. v. Corte Constr. Co., 158 W. Va. 802, 216 S.E.2d 216 (1975), overruled on other grounds, Haynes v. City of Nitro, 161 W. Va. 230, 240 S.E.2d 544 (1977)." Syllabus Point 6, Shamblin v. Nationwide Mut. Ins. Co., 183 W. Va. 585, 396 S.E.2d 766 (1990). 3. "The purpose of Rule 14(a), West Virginia Rules of Civil Procedure, permitting impleader of a third party defendant by the original defendant, is to eliminate circuity of actions when the rights of all three parties center upon a common factual situation." Syllabus Point 1, Bluefield Sash & Door Co., Inc. v. Corte Constr. Co., 158 W. Va. 802, 216 S.E.2d 216 (1975), overruled on other grounds, Haynes v. City of Nitro, 161 W. Va. 230, 240 S.E.2d 544 (1977). Miller, Justice: In this appeal, the defendants and third-party plaintiffs assert that the trial court erred in dismissing their complaint. The basis for the trial court's dismissal was that the third-party complaint was unrelated to the matters arising out of the original complaint. The court concluded that the third-party complaint did not meet the criteria of Rule 14 of the West Virginia Rules of Civil Procedure, which governs third-party actions. We disagree. Rule 14(a) permits a defendant to bring a third-party complaint against "a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." Similar language is found in Rule 14 of the Federal Rules of Civil Procedure, from which our Rule 14 was taken. The appellee third-party defendant relies mainly on Shamblin v. Nationwide Mutual Insurance Co., 183 W. Va. 585, 396 S.E.2d 766 (1990), where we affirmed the trial court's initial denial of a motion to bring a third-party action.See footnote 1 In Shamblin, the defendant attempted to file the third-party complaint more than four years after the lawsuit was filed and two months before the actual trial. In Syllabus Points 5 and 6 of Shamblin, we quoted with approval Syllabus Point 3, in its entirety, and Syllabus Point 5, in part, of Bluefield Sash & Door Co., Inc. v. Corte Construction Co., 158 W. Va. 802, 216 S.E.2d 216 (1975), overruled on other grounds by Haynes v. City of Nitro, 161 W. Va. 230, 240 S.E.2d 544 (1977): "5. 'The provisions for impleader under Rule 14(a), West Virginia Rules of Civil Procedure, . . . are within the sound discretion of the trial court and where the third party procedure may create confusion or cause complicated litigation involving separate and distinct issues the trial court does not abuse its discretion in refusing to allow impleader under third party practice.'. . . "6. 'Impleader under Rule 14(a), West Virginia Rules of Civil Procedure, should not be allowed if there is a possibility of prejudice to the original plaintiff or the third party defendant.'. . ." (Citations omitted). Bluefield Sash & Door involved a certified question relating to a Rule 14(a) third-party action. We concluded that the trial court had not abused its discretion by dismissing the third-party action, because the issues in the third-party suit were unrelated to those in the main action. We spoke in Syllabus Point 1 of Bluefield Sash & Door as to the rationale behind Rule 14: "The purpose of Rule 14(a), West Virginia Rules of Civil Procedure, permitting impleader of a third party defendant by the original defendant, is to eliminate circuity of actions when the rights of all three parties center upon a common factual situation." We have not had occasion to discuss in any detail the type of claim which the defendant must assert to meet the requirement of Rule 14(a) that the third-party defendant "is or may be liable to him for all or part of the plaintiff's claim[.]" The federal courts have considered this question and in 3 James Wm. Moore, et al., Moore's Federal Practice

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