Preview:

SER Cavender v. McCarty
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1996 Term
No. 23652
STATE OF WEST VIRGINIA EX REL.
OTIS L. CAVENDER AND MARGUERITE CAVENDER,
Petitioners,

v.
HONORABLE CHARLES E. McCARTY,
JUDGE OF THE CIRCUIT COURT OF ROANE COUNTY,
BILLY FOUTY AND PATRICIA FOUTY,
Respondents

Petition for Writ of Prohibition
WRIT GRANTED
Submitted: October 1, 1996 Filed: November 18, 1996
George M. Scott Spencer, West Virginia Attorney for the Petitioners
The Honorable Charles E. McCarty, Judge Ripley, West Virginia Pro Se
David A. Sims Debra Tedeschi Hall Sims and Hall Elkins, West Virginia Attorneys for the Respondents Billy and Patricia Fouty
This Opinion was delivered PER CURIAM.
JUDGE RECHT sitting by temporary assignment.
JUSTICE CLECKLEY concurs and reserves the right to file a concurring opinion. SYLLABUS BY THE COURT
1. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among the litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syl. pt. 1, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979).
2. "Parties moving for separate trials of issues pursuant to West Virginia Rule of Civil Procedure 42(c), or the court if acting sua sponte, must provide sufficient justification to establish for review that informed discretion could have determined that the bifurcation would promote the recognized goals of judicial economy, convenience of the parties, and the avoidance of prejudice, the overriding concern being the provision of a fair and impartial trial to all litigants." Syl. pt. 6, Bennett v. Warner, 179 W. Va. 742, 372 S.E.2d 920 (1988). Per Curiam:
        In this original proceedingSee footnote 1 in prohibition, the petitioners, Otis L. Cavender and Marguerite Cavender, challenge a July 12, 1996, ruling of the Circuit Court of Roane County, West Virginia, Pursuant to that ruling, the respondent, the Honorable Charles E. McCarty, granted the motion of Billy Fouty and Patricia Fouty, also named as respondents, to conduct separate trials upon the issues of liability and damages in the underlying personal injury action. That action is styled Cavender v. Fouty, Civil Action No. 93-C-123, Roane County. The petitioners contend that the bifurcation of the liability and damage issues, under the circumstances herein set forth, was in contravention of law and, thus, constituted an abuse of discretion.
        This Court has before it the petition for a writ of prohibition, the response of the trial judge, the response of the Foutys and all matters of record. For the reasons stated below, this Court grants the relief sought by the Cavenders and orders that the trial judge be prohibited from bifurcating the liability and damage issues.
        As the parties indicate, Otis L. Cavender, in August, 1991, offered to buy from Billy Fouty, a used, electrical meter box, and connecting paraphernalia, attached to a pole upon the Foutys' property. Mr. Fouty, an automotive mechanic, had no use for the meter box and sold it to Mr. Cavender for $50. Soon after, Mr. Cavender, using a ladder, attempted to detach the meter box and the paraphernalia from the pole. The pole gave way, and Mr. Cavender fell, sustaining serious injuries. According to the exhibits filed in this proceeding, Mr. Cavender incurred special damages in the range of $60,000 to $70,000.
        In June 1993, the Cavenders instituted the underlying action. Thereafter, the Foutys moved for summary judgment, asserting that Mr. Cavender was a mere licensee upon their property when he was injured and that, therefore, they had no duty to protect him from dangers arising on the property from existing conditions. Agreeing with the Foutys, the trial judge granted summary judgment. The summary judgment was appealed, however, and in Cavender v. Fouty, 195 W. Va. 94, 464 S.E.2d 736 (1995), this Court reversed and remanded the action for trial.
        In Cavender, we indicated that the Foutys were correct in asserting that they had no duty to protect a licensee from dangers arising on the property from existing conditions. We also indicated, however, that, under the circumstances, Mr. Cavender could have been an invitee, and, if so, the Foutys had a duty to exercise ordinary care to keep and maintain their property in a reasonably safe condition. In any event, this Court held, in Cavender, that Mr. Cavender's status as a licensee or as an invitee was for a jury to determine. 195 W. Va. at 97 n. 2 and 3, 464 S.E.2d at 739 n. 2 and 3.See footnote 2
        During the subsequent proceedings below, the Foutys filed a motion pursuant to Rule 42(c) of the West Virginia Rules of Civil Procedure to bifurcate the issues of liability and damages. The Foutys asserted that bifurcation should be granted because, if the Cavenders failed to establish liability, a substantial amount of time would be saved and the parties could avoid the expense of obtaining expert medical testimony. In addition, the Foutys asserted that, in view of the serious injuries sustained by Mr. Cavender, bifurcation would eliminate any possible prejudice adverse to the Foutys which might otherwise occur during the liability phase of the litigation. On July 12, 1996, the trial judge granted the motion to bifurcate and stated as follows in a letter memorandum of opinion:
            The liability issue in this case should take no more than a day of the Court's time and bifurcation could significantly cut the costs of expert witness fees, attorney fees, etc. Once the liability issue is resolved and the need of a trial for damages is determined, the Court can instruct another jury as to the findings of liability and how such damages were sustained by the plaintiff. . . .
            The defendants question the sympathy factor. Would a jury, hearing evidence regarding both liability and damages, be compelled to award damages against the defendants not based upon liability, but sympathy? This concern would be null if the liability issues were presented without the additional evidence of Mr. Cavender's medical problems and pain.
        Following that ruling, the petitioners filed the petition for relief in prohibition with this Court. On August 8, 1996, this Court issued a rule directed to the respondents to show cause why relief should not be awarded.
        This is an original proceeding in prohibition. See W. Va. Const. art. VIII,

Download 23652.pdf

West Virginia Law