Gregory M. Courtright
Kopelman, Collins & Dodrill
Charleston, West Virginia
Attorney for the Appellant
Walter L. Wagner, Jr.
Dunbar, West Virginia
Attorney for the Appellees
The Opinion of the Court was delivered PER CURIAM.
"[T]he Supreme Court of Appeals is limited in its
authority to resolve assignments of nonjurisdictional errors to a
consideration of those matters passed upon by the court below and
fairly arising upon the portions of the record designated for
appellate review." Syllabus Point 6, in part, Parker v. Knowlton
Construction Co., 158 W. Va. 314, 210 S.E.2d 918 (1975).
Calvin Eugene Keeney, plaintiff below, appeals a final
order of the Circuit Court of Kanawha County, dated August 13,
1990, directing a verdict for defendant, D. W. Postle, d/b/a
Postle's Dairy Bar.See footnote 1
On January 26, 1989, Mr. Keeney sued Larry Shamblin and
Mr. Shamblin's employer, Mr. Postle. In the complaint, Mr. Keeney
alleged that Mr. Shamblin, while at work, assaulted him when he
went into Postle's Dairy Bar to purchase a cup of coffee. The
complaint further alleged that Mr. Postle breached his duty of care
to a business invitee, was vicariously liable for the intentional
torts of an employee, and failed to render aid to Mr. Keeney after
During trial, a hearing was conducted at which the trial
court dismissed Mr. Postle from the case. The jury did, however,
return a verdict for Mr. Keeney against Larry Shamblin and awarded
Mr. Keeney $20,844.81 in compensatory damages. On appeal, Mr.
Keeney contends that the trial court erred in dismissing Mr. Postle
from the case.
Rule 8 of the Rules of Appellate Procedure of the West
Virginia Rules Supreme Court of Appeals requires the designation of
an adequate record on appeal. This rule is also in accord with W.
Va. Code, 58-5-6 (1923). In the present case, we have not been
provided with a transcript of the testimony at trial. The only
relevant portion of the designated appellate record is the
transcript of the hearing at which the trial court dismissed Mr.
Postle and the final order. We can neither discern the reasons for
the trial court's actions, nor address Mr. Keeney's contentions
from the sparse record provided us. The parties in their briefs
assert different factual accounts of the evidence presented at
trial. Without an evidentiary transcript, we are unable to resolve
As we cautioned in Syllabus Point 6, in part, of Parker
v. Knowlton Construction Co., 158 W. Va. 314, 210 S.E.2d 918
"[T]he Supreme Court of Appeals is limited in its authority to resolve assignments of nonjurisdictional errors to a consideration of those matters passed upon by the court below and fairly arising upon the portions of the record designated for appellate review."
See also O'Neal v. Peake Operating Co., ___ W. Va. ___, 404 S.E.2d 420 (1991); Thornton v. CAMC, 172 W. Va. 360, 305 S.E.2d 316 (1983); State v. Cox, 171 W. Va. 50, 297 S.E.2d 825 (1982); Bowman v. Barnes, 168 W. Va. 111, 282 S.E.2d 613 (1981). In the absence
of an adequate record, we cannot consider Mr. Keeney's assignments
For the reasons stated above, the judgment is affirmed.
Footnote: 1Although both parties state that Mr. Postle was dismissed from the case, from the limited record provided to us on appeal, it appears that the trial court directed a verdict in his favor. See W.Va.R.Civ.P. 50(a).