Submitted: May 16, 1995
Filed: June 15, 1995
Barbara H. Allen
Joseph C. Cometti
Allen & Allen
Charleston, West Virginia
Attorneys for Appellants
Charles F. Johns
Steptoe & Johnson
Clarksburg, West Virginia
Attorneys for Appellee
JUSTICE CLECKLEY delivered the Opinion of the Court.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER and JUDGE FOX sitting by temporary assignment.
1. "A court of limited appellate jurisdiction is
obliged to examine its own power to hear a particular case. This
Court's jurisdictional authority is either endowed by the West
Virginia Constitution or conferred by the West Virginia
Legislature. Therefore, this Court has a responsibility sua sponte
to examine the basis of its own jurisdiction." Syl. pt. 1, James
M.B. v. Carolyn M., W. Va. , 456 S.E.2d 16 (1995).
2. "Where neither party to an appeal raises, briefs, or
argues a jurisdictional question presented, this Court has the
inherent power and duty to determine unilaterally its authority to
hear a particular case. Parties cannot confer jurisdiction on this
Court directly or indirectly where it is otherwise lacking." Syl.
pt. 2, James M.B. v. Carolyn M., W. Va. , 456 S.E.2d 16
3. "Under W. Va. Code, 58-5-1 (1925), appeals only may
be taken from final decisions of a circuit court. A case is final
only when it terminates the litigation between the parties on the
merits of the case and leaves nothing to be done but to enforce by
execution what has been determined." Syllabus Point 3, James M.B.
v. Carolyn M., W. Va. , 456 S.E.2d 16 (1995).
4. When a party agrees to or requests a new trial, and
a new trial is granted because of the agreement or request, a denial of appellate review is justified on the ground that the
party has elected to accept the new trial and should be bound, as
if the party had entered a settlement agreement to forego appeal of
the order granting a new trial.
The plaintiffs below and appellants herein, Mary Coleman,
J. Wesley Coleman, and Michelle Coleman, appeal from the circuit
court's use of remittitur to reduce the amount of their jury award.
The defendant below and appellee herein, Dr. Irvin Sopher, asserts
that remittitur was proper and cross-assigns that the circuit court
committed various other errors that prejudiced the defendant at
trial. The circuit court at the request of the defendant and the
acquiescence of the plaintiffs granted a new trial on the issue of
damages. Before the commencement of the new trial, both parties
filed a petition for appeal with this Court. As a result of the
pending action in the circuit court, we find the petition for
appeal was improvidently granted and this appeal must be dismissed
for lack of appellate jurisdiction.
On September 26, 1987, Elmer Coleman collapsed at home from a heart attack. An ambulance rushed Mr. Coleman to Montgomery General Hospital, where an emergency room physician pronounced him dead on arrival.See footnote 1 Mrs. Coleman arrived at the hospital sometime later. Hospital staff asked Mrs. Coleman whether she wanted an autopsy performed on Mr. Coleman. Mrs. Coleman consented to the autopsy after Mr. Coleman's father told her she might have a claim for occupational pneumoconiosis benefits as a result of Mr. Coleman's years of working in the coal mines. Mrs. Coleman thought an autopsy might indicate whether occupational pneumoconiosis contributed to her husband's death.
Later that day, Mr. Coleman's body was transported to the
Office of the Chief Medical Examiner of West Virginia. Dr. Irvin
Sopher, the Chief Medical Examiner, performed an autopsy the next
day. Mr. Coleman's body was then transported to Combs-Pennington
Funeral Home where the owner, Paul Pennington, embalmed the body.
The funeral occurred without incident.
Sometime later, Mrs. Coleman applied for occupational
pneumoconiosis survivor benefits. After her claim was refused,
Mrs. Coleman's attorney, Heidi Kossuth, collected additional
medical information on Mr. Coleman. The autopsy report prepared by
Dr. Sopher contained no findings helpful to the occupational
pneumoconiosis claim since it stated there was no indication that
Dr. Sopher examined the lungs. The following phrase, however, was
recorded on the report: "'The heart is not removed from the
body[.]'" Ms. Kossuth informed Mrs. Coleman that the present
medical reports did not show occupational pneumoconiosis and a
second autopsy might produce the necessary evidence to support a
claim for benefits. Mrs. Coleman consented to the second autopsy.
On September 13, 1989, Dr. Echols Hansbarger performed a
second autopsy. After inspecting the thoracic cavity, Dr.
Hansbarger's report noted he found no evidence of pneumoconiosis.
The report also stated "the heart is not identified or found."
After Mrs. Coleman became distraught over the report's revelation
as to the missing heart, Ms. Kossuth called Dr. Sopher. According
to Mrs. Coleman, Dr. Sopher later called her and told her that he
was not sure, but he thought he had given the heart to Mr.
Pennington to put back into the body during the embalming.
Mrs. Coleman subsequently filed suit naming Dr. Sopher
and Mr. Pennington as defendants. The complaint alleged either Dr.
Sopher or Mr. Pennington concealed the fact that the heart was
removed from the body. Three causes of action were alleged: (1)
intentional infliction of emotional distress, (2) outrageous
conduct, and (3) conversion. The complaint cited as damages the
fact that Mrs. Coleman and the Coleman children suffered "emotional
pain and suffering, anxiety and depression[.]" The Colemans
sought both compensatory and punitive damages.
At a status conference, the circuit court announced that
it intended to grant summary judgment to the defendants on the
ground that the plaintiffs could not "legally maintain this action
against two Defendants alleging that one or the other Defendant,
but not both, are liable to the Plaintiff[s]." The circuit court
permitted the plaintiffs leave to amend the complaint naming one of the two defendants. The circuit court entered a summary judgment
for Paul Pennington after the Colemans decided to pursue the suit
against Dr. Sopher. Dr. Sopher brought Mr. Pennington back into
the suit by filing a third-party complaint.
At trial, the three plaintiffs gave detailed testimony
about their emotional distress. Mr. Pennington made a motion for
a directed verdict at the conclusion of the plaintiffs' case. The
circuit court ultimately granted this motion. Subsequently, Dr.
Sopher took the stand and denied removing the heart. However,
during cross-examination, Dr. Sopher admitted he had published
several articles about a condition called myocarditis, which is an
inflammation of the heart muscle. He also admitted to occasionally
securing for research heart tissue samples from autopsies. Further
testimony revealed that patients suffering from myocarditis
experience symptoms like a chest cold and sore throat. One of the
exhibits introduced by Dr. Sopher indicated that Mr. Coleman
suffered from chest pain and indigestion before collapsing.
The jury returned a verdict in favor of the plaintiffs.
The Colemans were awarded a total of $185,000 in compensatory and
punitive damages. After trial, Dr. Sopher filed motions for a new
trial, judgment notwithstanding the verdict, and remittitur. In
support of the motions, Dr. Sopher asserted, among other things,
that the verdict was "incited by jury passion and prejudice." The
circuit court denied all the post-trial motions, except for remittitur. The circuit court gave the plaintiffs the option of
accepting a reduction in their damage award or a new trial on
damages. The circuit court proposed reducing Mrs. Coleman's
compensatory damages from $75,000 to $50,000 and each of the
children's compensatory damages from $30,000 to $10,000. There was
to be no reduction in the $50,000 punitive damage award. The
circuit court granted a new trial on damages when the plaintiffs
rejected the proposal.
On appeal, the plaintiffs assert the circuit court lacked
the authority to apply remittitur to this case. The defendant
argues remittitur was appropriate and cross-assigns that the
circuit court erred by (1) rejecting his claim of governmental
immunity from prosecution, (2) violating Rule 404(b) of the West
Virginia Rules of Evidence by admitting testimony about his tissue
donations to Marshall University Medical School in the past, and
(3) permitting the plaintiffs' claim for punitive damages.
The plaintiffs argue the circuit court improperly applied remittitur to their compensatory damage awards. The circuit court presumably determined the size of the compensatory portion of the verdict was excessive. The circuit court gave the plaintiffs the option of having a new trial on the issue of damages or accepting a remittitur which would lower the amount of compensatory damages by $65,000. The plaintiffs opted for a new trial. Nevertheless, the plaintiffs appeal the remittitur, which they now suggest was done in anticipation of an appeal by the defendant. The defendant cross-assigns various errors.
On our own initiative, we question our jurisdiction to
hear any of the issues on appeal. We find that in absence of a
final order, this case is not ripe for appeal and is thereby
dismissed for lack of jurisdiction.
Our analysis must necessarily begin with our seminal case
of James M.B. v. Carolyn M., ___ W. Va. ___, 456 S.E.2d 16 (1995),
where we declared this Court has a duty to examine its own
jurisdictional authority even if it is not raised by the parties.
In Syllabus Points 1 and 2 of James M.B., we stated:
"1. A court of limited appellate jurisdiction is obliged to examine its own power to hear a particular case. This Court's jurisdictional authority is either endowed by the West Virginia Constitution or conferred by the West Virginia Legislature. Therefore, this Court has a responsibility sua sponte to examine the basis of its own jurisdiction.
"2. Where neither party to an
appeal raises, briefs, or argues a
jurisdictional question presented, this Court
has the inherent power and duty to determine
unilaterally its authority to hear a
particular case. Parties cannot confer
jurisdiction on this Court directly or
indirectly where it is otherwise lacking."
Thus, given the procedural history of the present case and an
outstanding order granting a new trial as agreed to by the parties, we are obligated to first determine if we have jurisdiction to
entertain the merits of the appeal.
To determine whether this Court has jurisdiction, we
further held in Syllabus Point 3 of James M.B., supra:
"Under W. Va. Code, 58-5-1 (1925), appeals only may be taken from final decisions of a circuit court. A case is final only when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined."See footnote 2
The usual prerequisite for our appellate jurisdiction is
a final judgment, final in respect that it ends the case. Parkway
Fuel Serv., Inc. v. Pauley, 159 W. Va. 216, 219, 220 S.E.2d 439,
441 (1975). Here, with the acquiescence of the plaintiffs, the
order granting the defendant's motion for a new trial, far from
ending the case, requires both parties to go forth on the damage
issue again.See footnote 3 Our review of W. Va. Code, 58-5-1(a) (1925), indicates that appeals to this Court only may be taken from "a
final judgment" of a circuit court. We recognize that the statute
does permit appeals from interlocutory rulings, such as "[i]n any
civil case where there is an order granting a new trial or
rehearing, and in such cases an appeal may be taken from the order
without waiting for the new trial or rehearing to be had[.]"
W. Va. Code, 58-5-1(i) (1925).
We must decide whether a party who acquiesced in and/or
requested a new trial can take advantage of this subsection of the
statute and file an appeal. We hold that when a party agrees to or
requests a new trial, rather than resist both the new trial and the
remittitur, "[d]enial of appellate review is justified on the
ground that the party has 'elected' to accept" the new trial "and
should be bound, as if it entered a settlement agreement." Fleming
James, Jr., Geoffrey C. Hazard, Jr. & John Leubsdorf, Civil
Procedure § 7.29 at 402 (4th ed. 1992).See footnote 4 Allowing the plaintiffs to appeal this narrow issue would serve no useful purpose. Even if
the plaintiffs are successful, the victory would merely get that to
which they are already entitled--a new trial--to which both parties
have already agreed.See footnote 5
The plaintiffs' assignment regarding the remittitur is
anomalous because it is directed to an issue that no longer exists
in the case and because the plaintiffs have already received the
best they can get from this Court--a new trial on damages. In In
re State Public Building Asbestos Litigation, ___ W. Va. ___, 454
S.E.2d 413 (1994), we said the authority to grant a new trial based
on the sufficiency of the evidence resides in the exercise of sound
discretion of the trial court and will only be disturbed if the
trial court abuses that discretion. Thus, we are cognizant that a
new trial may be granted even when judgment as a matter of law is
Perhaps the plaintiffs perceive there is some sort of
litigating advantage in seeking to convince the circuit court (or
this Court) to review an issue that is nonexistent, but it
certainly eludes us. To be sure, plaintiffs' quarrel with the circuit court's proposal is based on the claim that the circuit
court has no authority to order a remittitur. While we take
seriously the responsibility of an appellate court to review the
sufficiency of the evidence to support an award of damages, at this
juncture, it makes absolutely no sense to seek to reverse the
circuit court on a remittitur decision that was already set aside.
Alternatively, even had the plaintiffs not agreed to the
new trial, it is unlikely this Court would have granted them
appellate relief.See footnote 6 Rule 59 of the West Virginia Rules of Civil Procedure grants a circuit court the authority to vacate a jury's
verdict and award a new trial "to all or any of the parties and on
all or part of the issues . . . for any of the reasons for which
new trials have heretofore been granted in actions at law." In
Syllabus Point 3, in part, of In re State Public Building Asbestos
Litigation, supra, we noted:
"[T]he trial judge has the authority to weigh the evidence and consider the credibility of the witnesses. if the trial judge finds the verdict is against the clear weight of the evidence, is based on false evidence or will result in a miscarriage of justice, the trial judge may set aside the verdict, even if supported by substantial evidence, and grant a new trial. A trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion."
As stated above, when a motion for a new trial is made, Rule 59(a)
gives the circuit court authority to grant a partial new trial. We
are not asked by the parties to review this portion of the order.
Thus, we accept the circuit court's judgment on this issue.See footnote 7
As a reminder to future appellants, we point out that an
explicit statement or implicit suggestion in the briefs that there
exists an appealable order when, in fact, there is no final order
is misleading. Appellants are required to determine the existence
of an appealable order before attempting to invoke the appellate
jurisdiction of this Court. Failure to do so not only wastes the
precious and limited resources of this Court, but also those of the
lawyers and their clients. We do not wish to be perceived as
"sticklers, precisians, nitpickers, or sadists. But in an era of
swollen appellate dockets, courts are entitled to insist" on
diligence and good faith efforts from the practicing bar so that
the appellate decisional process can proceed as it should. Avitia
v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1224 (1995).
Appealing cases that we have no jurisdiction to hear and not
disclosing at the time the petition is presented the actual status
of proceedings below increases the opponent's work and our work and
delays the lower court's efforts to bring the case to a final
Accordingly, we find the petition for appeal was
improvidently granted and the appeal must be dismissed.
Footnote: 1 Mr. Coleman is survived by his wife, Mary, and his two children, J. Wesley and Michelle.
Footnote: 2 In relevant part, W. Va. Code, 58-5-1, provides:
"A party to a controversy in any circuit court may obtain from the supreme court of appeals, or a judge thereof in vacation, an appeal from, or a writ of error or supersedeas to, a judgment, decree or order of such circuit court in the following cases: (a) In civil cases where the matter in controversy, exclusive of costs, is of greater value or amount than one hundred dollars, wherein there is a final judgment, decree or order[.]" (Emphasis added).
Footnote: 3 As we concluded in James M.B., only a final decision by a circuit court may be appealed. "This rule, commonly referred to as the 'rule of finality,' is designed to prohibit 'piecemeal
appellate review of trial court decisions which do not terminate
the litigation[.]'" James M.B., W. Va. at , 456 S.E.2d at 19, quoting United States v. Hollywood Motor Car Co., Inc., 458 U.S. 263, 265, 102 S. Ct. 3081, 3082, 73 L.Ed.2d 754, 756 (1982).
Footnote: 4 The defendant, on the other hand, has no statute which he may arguably rely upon to assert appellate jurisdiction. There is no final judgment as to the defendant; he does not seek to appeal the granting of a new trial on the issue of damages, but, to the contrary, moved for the new trial; and there has not been an attempt to invoke any of our other jurisprudential exceptions to establish appellate jurisdiction as we discussed in James M.B. v. Carolyn M., ___ W. Va. at ___ nn. 3 & 4, 456 S.E.2d at 19-20 nn. 3 & 4.
Footnote: 5 Although not argued by the parties, there is some support for permitting the party agreeing to the new trial an opportunity to appeal only by cross-appeal. See Note, 76 Colum. L.Rev. 299, 324 (1976). Under this theory, the plaintiffs could seek to have the appellate court reinstate the original verdict only if the defendant sought to obtain reversal of the granting of the new trial. In this action, however, the defendant does not seek to have the granting of the new trial reversed, but seeks reversal of the judgment for entirely different reasons.
Footnote: 6 Another possible alternative ground for dismissing an appeal is lack of standing. Section 3 of Article VIII of the West Virginia Constitution refers to the word "controversy" in discussing our appellate jurisdiction. One of the incidents of Section 3's controversy requirement is that a litigant have "standing" to challenge the action sought to be adjudicated on appeal. Standing, in turn, is comprised of three elements: First, the party, the plaintiffs herein, must have suffered an "injury-in-fact"--an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent and not conjectural or hypothetical. Second, there must be a causal connection the injury and the conduct forming the basis of the lawsuit. Third, it must be likely that the injury will be redressed through a favorable decision of the court.
Two of these elements are important for purposes of our
discussion. The case before us concerns the first and third
elements. Once a party receives the benefit of his or her
bargain in the lower court, his or her remaining interest is
simply insufficient to confer standing. Common to this threshold
is the requirement that a party establish, at a minimum, "injury
in fact" to a protected interest. Similarly, upon retrial of the
damage issue, all issues that we are asked to consider on appeal
are subject to change. Thus, the interests the parties seek to
protect on this appeal are not "'actual or imminent'" but are
"'"conjectural or hypothetical."'" Lujan v. Defenders of
Wildlife, 504 U.S. 555, ___, 112 S. Ct. 2130, 2136, 119 L.Ed.2d
351, 364 (1992). (Citations omitted).
Because most of the issues presented on this appeal are
likely to arise again at trial, we encourage the trial court to take a careful look at all post-verdict motions and to make specific findings supporting its conclusions. We are particularly concerned with the lack of findings regarding the issues raised by the defendant.
Footnote: 7 To exhaust the issue of our appellate jurisdiction, we do not find the issues raised in this case meet the criteria of the "collateral order" exception, as discussed in Durm v. Heck's, Inc., 184 W. Va. 562, 401 S.E.2d 908 (1991). In note 2 of Durm, 184 W. Va. at 566, 401 S.E.2d at 912, relying upon the language in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L.Ed. 1528 (1949), we acknowledged that an order might nevertheless be appealed as a "final decision" if it fits
within the "collateral order" doctrine. We recognize this is a
narrow exception, including only those orders "that are conclusive, that resolve important questions completely separate from the merits, and would render such important questions effectively unreviewable on appeal from final judgment in the underlying action." Digital Equip. Corp. v. Desktop Direct, Inc., ___ U.S. ___, ___, 114 S. Ct. 1992, 1995-96, 128 L.Ed.2d 842, 849 (1994). (Emphasis added). Although the issue of statutory immunity could conceivably qualify, we are reluctant to invoke this doctrine in a case where there has been no request to do so and in light of our ironclad rule against piecemeal appeals.