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No. 34271 - Catherine I. Smith and John Smith v. Derek Andreini, M.D. and Orthopaedic
Workman, Justice, concurring, in part, and dissenting, in part:
I concur with the majority's decision in this case to the extent that it holds that
for purposes of appeal, this Court may consider an improperly granted order declaring a
mistrial as an order granting a new trial. I respectfully dissent, however, from the majority's
decision insofar as it concludes that the trial court abused it discretion by setting aside the
jury's verdict and granting the appellees, Catherine and John Smith, a new trial. I believe
that the record as presented to this Court was not sufficient to warrant the reversal of the trial
court's order. The Smiths argued below, and the trial court agreed, that they were entitled
to a new trial because of certain remarks made by counsel for Dr. Andreini, the appellant,
during his closing argument. In this appeal, Dr. Andreini asserted that the trial court erred
in granting a new trial because the remarks made by his attorney were merely responsive to
comments made by counsel for the Smiths during his closing argument and were not
prejudicial. In particular, Dr. Andreini stated in his brief submitted to this Court that,
Mr. Blass [the Smiths' attorney] in the first part of closing
argument repeatedly drilled the point that defense expert Mark
Rodosky, M.D. was not believable, truthful or credible because
he had been impeached with his deposition by Mr. Blass on
cross-examination. This was the basis for the accurate statement
by Mr. Stuhr [Dr. Andreini's attorney] in closing argument that
[the Smiths] would have the jury believe that Dr. Rodosky is
Although Dr. Andreini's argument in this appeal hinged on the closing argument made by
counsel for the Smiths, he failed to submit the transcript of the closing argument made by the
Smiths' attorney for this Court to review.
In a long line of unbroken precedent, this Court has held that the responsibility
and burden of designating the record is on the parties and that appellate review must be
limited to those issues which appear in the record presented to this Court. State v. Honaker,
193 W.Va. 51, 56, 454 S.E.2d 96, 101 (1994) (footnote omitted). This Court has explained
[t]he designation of the record is important. . . . Not only must the
significant portion of the record relating to that alleged error be identified, the
precise part of the record must be designated. Otherwise, the error will be
treated as nonexisting. See State v. Flint, [171 W.Va. 676], 301 S.E.2d 765
(W.Va.1983). II Franklin D. Cleckley, Handbook on West Virginia Criminal
Procedure 497-98 (1993).
It is counsel's obligation to present this Court with specific references
to the designated record that is relied upon by the parties. The failure of
counsel to file the appropriate parts of the record below makes it difficult for
this Court to read the parties' briefs and understand their arguments.
Id. at 56 n.4, 454 S.E.2d at 101 n.4. Accordingly, this Court has stated that
[a]n appellant must carry the burden of showing error in
the judgment of which he complains. This Court will not
reverse the judgment of a trial court unless error affirmatively
appears from the record. Error will not be presumed, all
presumptions being in favor of the correctness of the judgment.
Syllabus Point 5, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d
Syllabus Point 2, WV Dept. of Health and Human Resources Employees Federal Credit
Union v. Tennant, 215 W.Va. 387, 599 S.E.2d 810 (2004).
The record indicates that counsel for Dr. Andreini did not attempt to obtain the
transcript of the closing argument made by the Smiths' attorney until more than twenty
months after the verdict was rendered in this case. Even though the Smiths moved for a
mistrial immediately following the closing arguments and even though the trial court held
a hearing on the issue three months following the trial, Dr. Andreini's counsel did not request
the transcript of the closing argument made by counsel for the Smiths until after the trial
court granted a new trial. By that point, the transcript could not be produced because of the
death of the trial judge's court reporter. It is clear that if Dr. Andreini's counsel had acted
diligently and in a timely manner, the transcript of the closing argument made by the Smiths'
attorney could have been obtained. In that regard, counsel for the Smiths acquired the
transcript of the closing argument made by Dr. Andreini's attorney and submitted it to the
trial court prior to the hearing on their motion for a mistrial.
Absent the transcript of the closing argument made by the Smiths' attorney, I
do not believe that the record submitted to this Court provided a basis to reverse the trial
court's order granting a new trial. This Court has held that [t]he discretion of the trial court
in ruling on the propriety of argument by counsel before the jury will not be interfered with
by the appellate court, unless it appears that the rights of the complaining party have been
prejudiced, or that manifest injustice resulted therefrom. Syllabus Point 3, State v. Boggs,
103 W.Va. 641, 138 S.E. 321 (1927). In this case, the trial court, after hearing both closing
arguments, concluded that [d]efense counsel went beyond the scope of proper argument by
grossly mischaracterizing Plaintiff's closing argument and by injecting harsh and vituperative
remarks. The trial court was in a better position than this Court to make that call, especially
given the record presented to this Court. I do not believe there were sufficient grounds to
conclude that the trial court abused its discretion in setting aside the verdict and granting a
new trial. Accordingly, I would have affirmed the July 25, 2005, order of the trial court.
Based upon the foregoing, I concur, in part, and dissent, in part.