C. Michael Bee, Esq.
Sandra Brenneman Harrah, Esq.
Hill, Peterson, Carper, Bee & Dietzler, P.L.L.C.
Charleston, West Virginia
Attorneys for the Appellant
Mark A. Atkinson, Esq.
John J. Polak, Esq.
Timbera C. Wilcox, Esq.
Rose & Atkinson
Charleston, West Virginia
Attorneys for Appellees
James Roger House, II,
Nancy House, and
James Roger House
|Wendy E. Greve, Esq.
Pullin, Knopf, Fowler
& Flanagan, P.L.L.C.
Charleston, West Virginia
Attorney for Appellees
Joshua Haynes, Glen Haynes,
and Patricia Haynes
|Ancil G. Ramey, Esq.
Jan L. Fox, Esq.
Michelle E. Piziak, Esq.
Steptoe & Johnson, P.L.L.C.
Charleston, West Virginia
Attorneys for Appellee
Board of Education of
the County of Kanawha
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE DAVIS concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
JUSTICE MAYNARD concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.
In this appeal from the Circuit Court of Kanawha County, we are asked to review four orders granting summary judgment to several appellees. In each order, the appellant contends that the circuit court abused its discretion by granting summary judgment before the appellant was allowed to conduct discovery of facts necessary to oppose the appellees' motions for summary judgment.
As set forth below, we agree and reverse the circuit court's orders.
Appellees Glenn and Patricia Haynes also owned a home adjacent to the empty house where the party was held. Their son, appellee Joshua Haynes, who was then also eighteen years old, had several friends visiting the Haynes house that evening. Joshua Haynes and his friends, including defendant below Chris Schoolcraft, migrated next door to J. R. House's victory party.
Witnesses allege that, while at the party, Joshua Haynes and Chris Schoolcraft consumed substantial amounts of beer. One witness testified in a deposition that both Joshua Haynes and Chris Schoolcraft performed keg stands, and were held upside down drinking from a running beer keg tap. At some point, Joshua Haynes and Chris Schoolcraft returned to the Haynes property.
Appellant Aaron Elliott arrived at the party in the late evening, and after being at the party for 20-45 minutes, decided to leave. As he walked by the Haynes property, the appellant claims he saw J. R. House and stepped onto the Haynes property to congratulate him. Appellee Joshua Haynes immediately yelled for the appellant to leave his property, and after that began debating with Chris Schoolcraft as to who of the two was going to beat up the appellant. Chris Schoolcraft then hit the appellant in the jaw with his fist, and the appellant collapsed to the ground. Evidence revealed during the discovery process suggests that both Joshua Haynes and Chris Schoolcraft proceeded to kick the appellant as he lay on the ground. (See footnote 1)
The appellant was severely injured, and was diagnosed with a broken jaw which required his mouth be wired shut for six months. The appellant also sustained a back injury. He has incurred medical expenses in excess of $16,000.00.
On December 3, 1999, the appellant filed a complaint against various individuals seeking to recover compensation for his injuries. To begin, the appellant sued Chris Schoolcraft, who never answered the appellant's complaint. A default judgment was later entered against Mr. Schoolcraft by the circuit court, and he is not participating in the instant appeal.
The appellant also filed the instant lawsuit against J. R. House and his parents, Nancy and Roger House. The appellant contends that the Houses violated W.Va. Code, 11- 16-19 , which prohibits any person under the age of 21 from purchas[ing], consum[ing], sell[ing], possess[ing] or serv[ing] nonintoxicating beer, and prohibits a person from giving or furnishing nonintoxicating beer to anyone under the age of 21. The legislatively-stated purpose of this statute is:
. . . for the protection of the public safety, welfare, health, peace and morals and [is] further intended to eliminate, or to minimize to the extent practicable, the evils attendant to the unregulated, unlicensed and unlawful . . . sale, distribution . . . and consumption of such beverages[.]
W.Va. Code, 11-16-2 . The appellant alleged that the Houses, by furnishing, selling, and promoting the consumption of alcoholic beverages by and to high-school-aged students, negligently contributed to the intoxication of Joshua Haynes and Chris Schoolcraft, and that the intoxication was a direct and proximate cause of an evil attendant to such activity, the appellant's injuries.
The appellant also filed the instant lawsuit against Joshua Haynes and his parents, Glenn and Patricia Haynes. The appellant alleged that Joshua Haynes' parents were negligent in allowing their son and his high-school-aged friends to gather and consume alcoholic beverages on their property, and that they failed in their duty to deter underage drinking. As a result of the testimony of a witness during discovery, the appellant later alleged that Joshua Haynes was liable for kicking the appellant as he lay on the ground.
Lastly, the appellant sued the Board of Education of Kanawha County (the Board). The appellant states that W.Va. Code, 18-2-25  places a duty on boards of education to exercise control, supervision, and regulation of all extracurricular activities. The appellant contended that the victory party, because of its connection with the state high school football championship, was such an extracurricular activity. The appellant alleges that teachers at the school knew of the party beforehand, and that several coaches even attended the party and drank alcoholic beverages with students. The appellant argues that the Board had a duty to intervene and prevent students from drinking alcoholic beverages.
When the appellant filed his complaint in December 1999, he also filed a motion seeking a scheduling conference before the circuit court. The parties commenced trading written discovery, and a scheduling conference was planned for March 22, 2000. However, on March 13, 2000, appellees Nancy and James Roger House filed a motion for summary judgment, and the scheduling conference was moved to April 28, 2000. Appellees Joshua, Glenn and Patricia Haynes similarly filed a motion for summary judgment on April 21, 2000.
On April 25, 2000, the appellant filed notices to take the depositions of the parties and several witnesses, beginning on June 1, 2000. The appellant indicated, before the circuit court, that because of the popularity of J. R. House, depositions were necessary to secure the statements of witnesses unwilling to talk informally with appellant's counsel. However, upon filing the notices of deposition, the appellant learned that several witnesses _ including Chris Schoolcraft and Joshua Haynes _ lived in South Carolina and were not subject to a West Virginia subpoena. Furthermore, counsel for the other parties _ namely the Houses _ refused to produce their clients for deposition.
At the April 28, 2000 hearing, counsel for the appellant indicated that the hearing was requested primarily as a scheduling conference to obtain a trial date and to get the discovery moving along. The appellant also repeatedly indicated to the circuit court _orally and in pleadings _ that discovery was still ongoing, and would be needed to respond to the appellees' motions. Still, at the hearing on April 28, 2000, the circuit court announced it would grant summary judgment to appellees Nancy and Roger House, and Joshua, Glenn and Patricia Haynes. The circuit court concluded that no genuine issue of material fact existed to establish a breach of any duty by these appellees, and dismissed the appellant's claims. (See footnote 2)
On May 17, 2000, appellee J. R. House filed a motion for summary judgment. The Board filed a motion for summary judgment on June 6, 2000. At a hearing on June 16, 2000, the circuit court again refused the appellant's request to delay consideration of the motions, and granted both motions for summary judgment. (See footnote 3)
The appellant subsequently filed motions to reconsider or alter the circuit court's summary judgment orders. The circuit court refused to consider the evidence discovered in the few depositions that the appellant was able to conduct in June 2000, such as the testimony that Joshua Haynes had actually participated in kicking appellant Aaron Elliott. The circuit court concluded that its summary judgment orders were sound and based on the facts and law before it at that time[.] In an order dated April 17, 2001, the circuit court denied the appellant's motions to alter the summary judgment orders.
The appellant now appeals the circuit court's orders.
Applying our four-point holding in Powderidge, the record reveals that the
appellant articulated to the circuit court a plausible basis that material facts were
discoverable, but were not accessible to the appellant. The appellant had scheduled
depositions of the parties in what is clearly a fact-intensive case, yet counsel for several
parties refused to produce their clients for deposition before the circuit court considered their
motions for summary judgment. The appellant also demonstrated a realistic prospect that
material facts could have been obtained within a reasonable additional time period.
Depositions of the parties were highly likely to engender a genuine and material issue of fact.
And lastly, good cause for the appellant's failure to have conducted discovery earlier was
shown by the fact the appellees began filing motions for summary judgment only four months
after a complex lawsuit with multiple parties was filed, even before depositions of the parties
could be taken.
The record establishes that the appellant simply was not given an opportunity to conduct sufficient formal discovery of his case and, consequently, could not adequately respond to the appellees' motions for summary judgment. The record also establishes that this was made known, orally and in pleadings, to the circuit court. The circuit court therefore abused its discretion by ruling on the appellees' motions for summary judgment.