Preview:

SER McMahon v. Hamilton

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1996 Term
No. 23422
STATE OF WEST VIRGINIA EX REL. MARIE M. McMAHON, Petitioner
v.
HONORABLE JOHN M. HAMILTON, SPECIAL JUDGE OF THE CIRCUIT COURT OF MORGAN COUNTY, AND JOHN P. ADAMS, ET AL., Respondents
Petition for Writ of Prohibition
WRIT GRANTED AS MOULDED
Submitted: September 25, 1996 Filed: December 13, 1996
Marie M. McMahon Berkeley Springs, West Virginia Pro Se
Lucien G. Lewin Steptoe & Johnson Martinsburg, West Virginia Joanna I. Tabit Steptoe & Johnson Charleston, West Virginia Attorneys for Respondents, John P. Adams, Honorable Donald C. Hott, Glen Stotler, Donald Sharp, Morgan County Fire Board and Howard Trittipoe
Paul B. Weiss Martin & Seibert Martinsburg, West Virginia Attorney for Respondents, Paul B. Weiss, Susan R. Snowden, Daniel T. Booth and Martin & Seibert, L.C.
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
JUDGE RECHT sitting by temporary assignment. SYLLABUS BY THE COURT
1. "'"A writ of prohibition will lie where the trial court does not have jurisdiction or, having jurisdiction, exceeds its legitimate powers." Syllabus Point 3, State ex rel. McCartney v. Nuzum, 161 W. Va. 740, 248 S.E.2d 318 (1978).' Syllabus Point 4, Pries v. Watt, 186 W. Va. 49, 410 S.E.2d 285 (1991)." Syl. pt. 2, State ex rel. Reed v. Douglass, 189
W. Va. 56, 427 S.E.2d 751 (1993).
2.
"In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (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, State ex rel. Hoover v. Berger, No. 23737, ___ W. Va. ___, ___ S.E.2d ___ (Nov. 15, 1996).

3.
Under W. Va. R. Civ. P. 17(c), whenever an infant, incompetent person, or convict has a duly qualified representative, such as a guardian, curator, committee or other like fiduciary, such representative may sue or defend on behalf of the infant, incompetent person, or convict. If a person under any disability does not have a duly qualified representative he may sue by his next friend. The court shall appoint a discreet and competent attorney at law as guardian ad litem for an infant, incompetent person, or convict not otherwise represented in an action, or the court shall make such other order as it deems proper for the protection of any person under disability.

4.
Where a substantial question exists regarding the mental competency of a party not otherwise represented to proceed with the litigation presently before the court, the court may, where there is good cause shown, require the party to undergo a mental examination in order to determine whether a guardian ad litem should be appointed to protect the party's interests pursuant to West Virginia Rule of Civil Procedure 17(c).

5.
"W. Va. Code, 27-3-1(a), provides for confidentiality of communications and information obtained in the course of treatment and evaluation of persons who may have mental or emotional conditions or disorders, subject to the exceptions set out in W. Va. Code, 27-3-1(b)." Syl. pt. 1, State v. Simmons, 172 W. Va. 590, 309 S.E.2d 89 (1983).

6.
W hen a court orders a party to undergo a mental examination by a psychiatrist to determine whether a guardian ad litem should be appointed to protect the party's interests under West Virginia Rule of Civil Procedure 17(c), the court shall receive a copy of the appointed psychiatrist's report of such examination. Pursuant to W. Va. Code, 27-3-1(b)(3) [1977], the court may release such report only if it finds that it is sufficiently relevant to a proceeding before the court to outweigh the importance of maintaining the confidentiality established by W. Va. Code, 27-3-1(a) [1977]. McHugh, Chief Justice:


        Pro se petitioner Marie McMahon, invoking this Court's original jurisdiction pursuant to W. Va. Code, 53-1-3 [1933], seeks to prohibit enforcement of an order entered April 8, 1996 in the Circuit Court of Morgan County by the Honorable John M. Hamilton, special judge, a respondent herein. In that order, Judge Hamilton, upon the motion of respondents Martin & Seibert, L.C., Susan R. Snowden, Daniel T. Booth and Paul B. Weiss, ordered petitioner to undergo a psychiatric examination to determine whether she is mentally competent to proceed with the underlying civil action instituted by her against respondents and others such that a guardian ad litem should be appointed to protect her interests.
        This CourtSee footnote 1 has before it the petition, the responses thereto, and all matters of record. For reasons discussed below, petitioner Marie McMahon's request that this Court prohibit enforcement of that portion of the circuit court's order directing her to undergo a mental examination is denied. However, this Court finds that it was error for the circuit court to direct the appointed psychiatrist to transmit copies of the resulting report to the respondents herein. Accordingly, enforcement of that portion of the circuit court's order is prohibited.
I.
A.        In 1984, petitioner, acting pursuant to a general power of attorney granted her by Bart and Alice Whirley, instituted a lawsuit against six defendants in the Circuit Court for the City of Winchester, Virginia, attacking the probate of the estate of one Ann Schrader. By order of October 15, 1986, that lawsuit was dismissed.
        Subsequently, Charles G. Aschmann, Jr., the attorney hired by petitioner in the above-mentioned probate action, sued petitioner and the Whirleys for payment of $7,000 in legal fees associated with that action. Petitioner filed a counterclaim against Mr. Aschmann, alleging legal malpractice. By order of February 9, 1987, the Circuit Court for the City of Alexandria, Virginia granted Mr. Aschmann's motion for a directed verdictSee footnote 2 as well as his motion to strike petitioner's counterclaim. The court further ordered petitioner to pay to Mr. Aschmann $7,000 plus interest from January 5, 1987. Petitioner never appealed that judgment order.
        The remaining facts of this case consist primarily of a multitude of lawsuits instituted by petitioner, pro se, in a variety of state and federal courts against a various medley of defendants, among them, federal and circuit court judges, lawyers and clerks of court. Petitioner's litigious behavior is rooted in her adamant belief that she was denied her constitutional right to a trial by jury when the above-described directed verdict was rendered against her for $7,000 in unpaid legal fees. Petitioner contends that the defendants against whom she has asserted, and in some cases, reasserted, this claim have all conspired to deprive her of due process. Though recitation of petitioner's many court actions is repetitive and, at times, confusing, we believe it necessary to the ultimate resolution of this case, particularly with regard to respondents' position that petitioner does not comprehend the meaning and effect of the countless lawsuits she has instituted for more than a decade.
B.
        Pursuant to the Full Faith and Credit clause of the United States Constitution, art. IV,

Download 23422.pdf

West Virginia Law