No. 32877 Donna M. Richmond v. Barry A. Levin, M.D.
Benjamin, Justice, dissenting:
Rule 51 of the West Virginia Rules of Civil Procedure provides that '[n]o party may assign as error the giving or the refusal to give an instruction unless the party objects thereto before the arguments to the jury are begun, stating distinctly, as to any given instruction, the matter to which the party objects and the grounds of the party's objection[.]' See Syl. Pt. 5, Page v. Columbia Natural Resources, Inc., 198 W. Va. 378, 480 S.E.2d 817 (1996).
Doe v. Wal-Mart Stores, Inc., 210 W. Va. 664, 672, 558 S.E.2d 663, 671 (2001). These required notifications provide the trial court the opportunity to address alleged errors or concerns, if the trial court so desires, and also preserves such issues for appellate review.
This Court has previously held that [a] litigant may not silently acquiesce to an alleged
error, or actively contribute to such error, and then raise that error as a reason for reversal on
appeal. Syl. Pt. 1, Maples v. West Virginia Dept. of Commerce, 197 W. Va. 318, 475 S.E.2d
410 (1996). See also, Doe, 210 W. Va. at 672, 558 S.E.2d at 671 (quoting Maples). In State
ex rel. Cooper v. Caperton, 196 W. Va. 208, 216, 470 S.E.2d 162, 170 (1996), Justice
Cleckley explained that:
[t]o preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect. The rule in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they forget their lines, they will likely be bound forever to hold their peace. See State v. Miller, 194 W.Va. 3, 17, 459 S.E.2d 114, 128 (1995). . . . It must be emphasized that the contours for appeal are shaped at the circuit court level by setting forth with particularity and at the appropriate time the legal ground upon which the parties intend to rely.
Thus, [w]here objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal. Syl. Pt. 1, State Road Commission v. Ferguson, 148 W. Va. 742, 137 S.E.2d 206 (1964).
The majority avoids the waiver issue in a footnote by finding constitutional issues may be raised for the first time on appeal. I disagree with the majority's conclusion that the constitutional waiver exception applies in the instant appeal. Since any constitutional rights of Appellant regarding the procedures below were fully available to her below had she chosen to invoke Rules 47 and/or 48 of the West Virginia Rules of Civil Procedure and since Appellant chose not to avail herself of such rules, she waived the claimed procedural defect below. Where a party is presumptively aware of a procedural defect at the trial level and where that party had the ready ability to then make an objection to such defect under our Rules of Civil Procedure, this Court should not now permit the party to reserve by her silence her objection _ raising it on appeal only after she determines that the verdict was not to her liking . It is the unfortunate result of the majority decision that the Court now countenances such a practice. (See footnote 1)
I respectfully dissent from the majority opinion in this matter.