SER Katie Franklin v. Hon. R. Craig Tatterson, Judge ( 2018 )


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  •          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
    September 2018 Term                        FILED
    _______________
    November 13, 2018
    released at 3:00 p.m.
    No. 18-0218                          EDYTHE NASH GAISER, CLERK
    _______________                        SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    STATE OF WEST VIRGINIA ex rel. KATIE FRANKLIN,
    Petitioner
    v.
    HONORABLE R. CRAIG TATTERSON,
    Judge of the Circuit Court of Jackson County; and
    CATHY BROWN,
    Respondents
    ____________________________________________________________
    ORIGINAL PROCEEDING IN PROHIBITION
    WRIT GRANTED
    ____________________________________________________________
    Submitted: October 24, 2018
    Filed: November 13, 2018
    Patrick Morrisey                             John W. Alderman, III, Esq.
    Attorney General                             Law Offices of John W. Alderman
    Lindsay S. See                               Charleston, West Virginia
    Solicitor General                            Counsel for Respondent Cathy Brown
    Charleston, West Virginia
    Katie Franklin, Esq.
    Jackson County Prosecuting Attorney
    Ripley, West Virginia
    Counsel for Petitioner
    JUSTICE WALKER delivered the Opinion of the Court.
    SYLLABUS BY THE COURT
    1.     “Prohibition lies only to restrain inferior courts from proceeding in
    causes over which they have no jurisdiction, or, in which, having jurisdiction, they are
    exceeding their legitimate powers and may not be used as a substitute for [a petition for
    appeal] or certiorari.” Syllabus Point 1, Crawford v. Taylor, 
    138 W. Va. 207
    , 
    75 S.E.2d 370
    (1953).
    2.     “In determining whether to entertain and issue the writ of prohibition
    for cases not involving an absence of jurisdiction but only where it is claimed that the lower
    tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
    the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
    desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
    correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter
    of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent
    disregard for either procedural or substantive law; and (5) whether the lower tribunal’s
    order raises new and important problems or issues of law of first impression. These factors
    are general guidelines that serve as a useful starting point for determining whether a
    discretionary writ of prohibition should issue. Although all five factors need not be
    satisfied, it is clear that the third factor, the existence of clear error as a matter of law,
    should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 
    199 W. Va. 12
    , 
    483 S.E.2d 12
    (1996).
    i
    3.     “The decision of whether to admit evidence of compromise offers for
    a purpose other than to ‘prove liability for or invalidity of the claim or its amount,’ W. Va.
    R. Evid. 408, is within the sound discretion of the circuit court.” Syl Pt. 7, State ex rel.
    Shelton v. Burnside, 
    212 W. Va. 514
    , 
    575 S.E.2d 124
    (2002).
    4.     Evidence of all statements made during compromise negotiations is
    inadmissible under Rule 408 of the West Virginia Rules of Evidence unless offered to
    prove an exception under the rule. Because this Court’s prior holding in Syllabus Point 3
    of Shaeffer v. Burton, 151 W.Va. 761, 
    155 S.E.2d 884
    (1967) has been superseded by Rule
    408 of the West Virginia Rules of Evidence, it is overruled.
    5.     “While testimony offered to show an unaccepted offer of compromise
    is incompetent and inadmissible, where it appears that such statements were made without
    any attempt to effect any compromise between the parties, such testimony is admissible
    under the well-established rule that the declaration of parties to the record against interest
    may be shown in evidence.” Syllabus Point 2, Averill v. Hart & O’Farrell, 101 W.Va.
    411, 
    132 S.E. 870
    (1926).
    ii
    WALKER, JUSTICE:
    Petitioner Katie Franklin, Prosecuting Attorney of Jackson County, invokes
    this Court’s original jurisdiction seeking a writ to prohibit the Circuit Court of Jackson
    County from enforcing its order suppressing all evidence of text messages between
    Respondent Cathy Brown, the defendant in the underlying criminal case, and an accountant
    for the company from which she allegedly embezzled $306,000. Because it is evident that
    the text messages were not exchanged in the context of civil settlement negotiations, we
    grant the writ of prohibition and find that the circuit court committed a clear error of law
    in prohibiting their admission at trial.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    Ms. Brown has been charged with one count of embezzlement of
    approximately $306,000 from Hartley Oil Company, Inc. (Hartley Oil). On October 13,
    2015, Hartley Oil’s accountant, Krista Bratton, discovered an alleged multi-year
    embezzlement scheme by Ms. Brown, another employee of the company. After an inquiry
    by the accountant, Ms. Brown claimed to be sick and went home. Over the next seven
    days, Ms. Brown and the accountant exchanged several text messages. Throughout the
    texts Ms. Brown expressed regret for her actions and a willingness to make amends, and
    asked whether Hartley Oil’s owners, Rodd and Georgie Hartley, would seek criminal
    prosecution.
    1
    The circuit court characterized the text messages as follows.1 On October
    15, 2015, Ms. Brown sent a text to the accountant asking a question about payroll. After
    receiving the accountant’s response, Ms. Brown asked “[h]ows everything else[?]” The
    following texts ensued:
    [Ms. Brown]:         I don’t think he bills in U.S. Dollars
    Has she got back with you
    [Accountant]:        She is researching the amount
    [Ms. Brown]:          I will be back to work on Monday I have
    a lot of personal things wrong with me
    I am ready to have a nervous breakdown
    my Meds aren’t helping anymore
    Is that ok
    [Accountant]:        It is but I’d like to talk about what’s going
    on.
    [Ms. Brown]:         With me
    [Accountant]:        Yes mam, you’ve got me worried
    [Ms. Brown]:         Worried about what
    [Accountant]:        You told me that you’ve done something
    and that I could guess what. I would really prefer not to guess
    what it is.
    1
    As noted in the circuit court’s order, the text messages contain misspellings and
    grammatical errors. The name of Ms. Brown’s minor daughter has been redacted in
    accordance with Rule 40(e) of the West Virginia Rules of Appellate Procedure.
    2
    When Ms. Brown asked to talk on Monday, the accountant asked if Ms.
    Brown could call her “tomorrow,” which “would give [her] a night to sleep on it.” Ms.
    Brown insisted that she wanted to come in and talk with “everyone next week,” and “after
    hours if possible.” The accountant responded that she would talk to the owners of the
    company. These texts followed:
    [Ms. Brown]:        What did she say am I’m going to jail or
    are they going to work with me fir paying it back I am worried
    [about my daughter,] not myself
    [Ms. Brown]:         At this point are you just saying I quit
    [Accountant]:       I think we need to determine how much
    before the decision is made. I’m still talking to Rodd and
    Georgie [Hartley Oil’s owners].
    ***
    [Ms. Brown]:         I am so sorry for everything I thought it
    was best to just go ahead and say something
    [Accountant]:     I appreciate it. I’m trying to communicate
    that with Rodd too that you telling us should count for
    something
    [Ms. Brown]:           lol ease do everything you can to help me
    I know what I did was wrong and I wish I could take it back I
    am willing to pay every penny back to them I will do anything
    I just don’t want to ruin [my daughter’s] life over something
    that I did I think I can tell you the amount once I look at it but
    I would really like to come in and talk. I know everyone hates
    me at this point that’s why I would just like to say I quit so [my
    daughter] Don’t find out she’s just a child and do t need to be
    hurt. I know I am the one that hurt her I would work anywhere
    for free just to get then their money back I was struggling
    between bills. Famous for [my daughter] trying to keep her
    happy. I know that is no excuse for what I did. Please don’t
    hate me. Please do everything you can to help me I really
    cinfide in you. I am telling everyone that I quit for personal
    3
    reasons right now I just don’t want to go to jail but that not my
    choice it’s up to rodd
    [Accountant]:        I will call you here in a minute.
    [Ms. Brown]:         Does everyone hate me. I am so sorry2
    The State asserts that, after this particular exchange, Ms. Brown and the
    accountant spoke by telephone and Ms. Brown admitted to stealing approximately $20,000
    during the 2015 calendar year. The following day, on October 16, 2015, Ms. Brown sent
    a text to the accountant that stated, “Krista I’m scared to death.” Ms. Brown later asked
    about what was being said about her around the company and what the other employees
    knew of the situation. The accountant then assured Ms. Brown that the situation was being
    kept quiet and Ms. Brown’s response stated “[t]hank you for being so good to me.” The
    accountant promised Ms. Brown that she was “trying to keep everything fair.” Then, Ms.
    Brown and the accountant had the following exchange:
    [Ms. Brown]:         I’m so scared
    I hate myself
    [Accountant]:       Cathy, what has happened can’t be
    changed, only going forward. No matter what happens
    [Ms. Brown]:         I texted Georgie last night but she didn’t
    respond.
    I know she is really mad
    [Accountant]:        I can imagine she is
    2
    (emphasis by the State) (typographical errors in original).
    4
    ***
    [Ms. Brown]:         Are you keeping my Checks
    [Accountant]:         The payroll ones? I don’t think I can. We
    will work that out this afternoon.
    And I’ll need you to sign a termination slip.
    [Ms. Brown]:         Ok
    Did you say anything to him
    [Accountant]:        I’m trying to go through and find
    everything
    Ms. Brown later sent spreadsheets to the accountant which contained
    highlighted, circled and crossed-through items. The text exchange continues as follows:
    [Ms. Brown]:         Ok all the I highlighted ones
    I have a question if can I cash out my 401k and give it to the
    Hartleys
    Can I meet you and sign the paper and get my check
    Ms. Brown and the accountant then discussed a time for Ms. Brown to come
    to the office for a meeting. That same day, Ms. Brown sent the accountant a text that she
    “[j]ust pulled in” the office. Ms. Brown then signed a Hartley Oil Company, Inc. -
    Employee Action Form that included the handwritten statement “Admitted to embezzling”
    by the accountant in the Incident Information section of the form.
    5
    The following day, October 17, 2015, Ms. Brown sent a text including a
    picture of her daughter to the accountant and thanked her for “being a friend.” The
    accountant indicated that she saw the picture on Facebook and complimented Ms. Brown’s
    daughter. In response, Ms. Brown sent the following text message:
    [Ms. Brown]:       Thank you. I am Already working on
    getting money together I’m selling my Durango and hoping I
    can get the 401 money out and I have my vacation checks.
    Ms. Brown again thanked the accountant for helping her.
    On October 18, 2015, Ms. Brown sent a text to the accountant asking to meet
    in person. Ms. Brown indicated, “[a]nd again I am so sorry.” When the accountant
    responded, “I know Cathy,” Ms. Brown responded, “I feel like you are the only friend I
    have right now.” Ms. Brown continued to apologize in the texts.
    On October 19, 2015, Ms. Brown sent a text to the accountant that she was
    selling her Durango, cashing in her 401(k) account and borrowing money on her house. In
    her text, Ms. Brown stated, “I would like to start paying some back as soon as I can if they
    will let me.” Ms. Brown later sent her a text that stated, “[i]f you have any questions on
    anything I would gladly answer them for you.”
    On October 20, 2015, Ms. Brown again sent a text to the accountant asking
    about setting up a meeting with Hartley Oil’s owners. When the accountant indicated
    neither were available, Ms. Brown sent a text stating, “[o]mg their not there I pray there
    6
    not somewhere pressing charges in me.” Later that day, there were texts between Ms.
    Brown and the accountant arranging for Ms. Brown to call her.
    Ms. Brown continued texting with the accountant on October 22, 25 and 26
    and November 11, 12, 19 and 20. In those texts, they discussed Ms. Brown providing more
    information to the accountant, including discussions about meeting at the Ripley Park and
    Ride so that Ms. Brown could provide documents.
    Prior to the trial on the embezzlement charge, the State filed a notice of intent
    to introduce the string of text messages from October 15, 2015 to November 20, 2015.
    After briefing by the parties, the circuit court entered an order on August 3, 2017, which
    denied admission of the text messages. The court found that Rule 408 of the West Virginia
    Rules of Evidence precluded their admission at trial. Rule 408 provides that:
    Compromise offers and negotiations.
    (a)    Prohibited Uses. Evidence of the following is
    not admissible—on behalf of any party—either to prove or
    disprove the validity or amount of a disputed claim, the liability
    of a party in a disputed claim, or to impeach by a prior
    inconsistent statement or a contradiction:
    (1) furnishing, promising, or offering—or accepting,
    promising to accept, or offering to accept—a valuable
    consideration in compromising or attempting to compromise
    the claim; and
    (2) conduct or a statement made during compromise
    negotiations about the claim.
    (b) Exceptions.      This rule does not require the
    7
    exclusion of any evidence otherwise discoverable merely
    because it is presented in the course of compromise
    negotiations. This rule also does not require exclusion when
    the evidence is offered for another purpose, such as proving
    bias or prejudice of a witness, negating a contention of undue
    delay, or proving an effort to obstruct a criminal investigation
    or prosecution.
    In so ruling, the circuit court found that Rule 408 is not limited to civil
    proceedings, but also applies to criminal proceedings by virtue of West Virginia Rule of
    Evidence Rule 101(a), which instructs that “these rules apply to proceedings in the courts
    of this State. . . .”3 The circuit court also relied upon United States v. Davis,4 which the
    court found to be factually analogous to the text messages in the case at hand, and
    determined that they were made in an “attempt to compromise and settle the matters that
    gave rise to the Indictment.”5 In prohibiting the admission of the text messages, the circuit
    court stated:
    Defendant expressed that she “just [doesn’t] want to go to jail,”
    is concerned about Hartley Oil executives’ planned courses of
    action regarding the allegations against her, and offers her
    401K and other monies so that no charges will be brought
    against her.
    On March 14, 2018, the State filed a petition for a writ of prohibition to
    prohibit the circuit court from enforcing its order suppressing all evidence of text messages
    3
    (emphasis added).
    4
    
    596 F.3d 852
    (D.C. Cir. 2010).
    5
    (emphasis added).
    8
    between Ms. Brown and Hartley Oil’s accountant. After Ms. Brown filed a response, this
    Court issued a rule to show cause by corrected order entered May 9, 2018.
    II. STANDARD OF REVIEW
    The general standard for issuance of a writ of prohibition is set forth in West
    Virginia Code § 53-1-1 (2016), which states that “[t]he writ of prohibition shall lie as a
    matter of right in all cases of usurpation and abuse of power, when the inferior court has
    not [sic] jurisdiction of the subject matter in controversy, or, having such jurisdiction,
    exceeds its legitimate powers.” This Court has held that “[p]rohibition lies only to restrain
    inferior courts from proceeding in causes over which they have no jurisdiction, or, in
    which, having jurisdiction, they are exceeding their legitimate powers and may not be used
    as a substitute for [a petition for appeal] or certiorari.”6 With respect to the standard, this
    Court has established five factors to be considered:
    In determining whether to entertain and issue the writ of
    prohibition for cases not involving an absence of jurisdiction
    but only where it is claimed that the lower tribunal exceeded
    its legitimate powers, this Court will examine five factors: (1)
    whether the party seeking the writ has no other adequate
    means, such as direct appeal, to obtain the desired relief; (2)
    whether the petitioner will be damaged or prejudiced in a way
    that is not correctable on appeal; (3) whether the lower
    tribunal’s order is clearly erroneous as a matter of law; (4)
    whether the lower tribunal’s order is an oft repeated error or
    manifests persistent disregard for either procedural or
    substantive law; and (5) whether the lower tribunal’s order
    raises new and important problems or issues of law of first
    impression. These factors are general guidelines that serve as a
    6
    Syl. Pt. 1, Crawford v. Taylor, 
    138 W. Va. 207
    , 
    75 S.E.2d 370
    (1953).
    9
    useful starting point for determining whether a discretionary
    writ of prohibition should issue. Although all five factors need
    not be satisfied, it is clear that the third factor, the existence of
    clear error as a matter of law, should be given substantial
    weight.7
    “The decision of whether to admit evidence of compromise offers for a
    purpose other than to ‘prove liability for or invalidity of the claim or its amount,’ W. Va.
    R. Evid. 408, is within the sound discretion of the circuit court.”8 Thus, our general rule
    provides that “[p]rohibition is ordinarily inappropriate in matters involving a trial court’s
    pretrial ruling on . . . the admissibility of evidence.”9 However, in circumstances like the
    present case, when the State has no other adequate means to obtain the desired relief and
    this issue is not one that would be correctable on appeal, this Court has entertained a
    petition for a writ of prohibition.10 With these standards in mind, we consider the parties’
    arguments.
    7
    Syl. Pt. 4, State ex rel. Hoover v. Berger, 
    199 W. Va. 12
    , 
    483 S.E.2d 12
    (1996).
    8
    Syl. Pt. 7, State ex rel. Shelton v. Burnside, 
    212 W. Va. 514
    , 
    575 S.E.2d 124
    (2002).
    9
    Policarpio v. Kaufman, 
    183 W. Va. 258
    , 261, 
    395 S.E.2d 502
    , 505 (1990).
    10
    See State ex rel. Plants v. Webster, 
    232 W. Va. 700
    , 708, 
    753 S.E.2d 753
    , 761
    (2012).
    10
    III. DISCUSSION
    The State argues that although Rule 408 may be applicable in criminal
    proceedings, the text messages here were not statements made for civil settlement
    purposes. Rather, they were intended to affect a criminal proceeding and thus, Rule 410
    of the West Virginia Rules of Evidence applies. Rule 410 addresses the admissibility of
    criminal plea negotiations in civil and criminal trials. Pursuant to Rule 410(a)(4), criminal
    plea negotiations are not admissible at trial if “an attorney for the prosecuting authority” is
    a party to the negotiations, which was not the case here. Therefore, the State argues that
    this Court should prohibit the circuit court from enforcing its order suppressing all evidence
    of text messages between Ms. Brown and an accountant for the employer from which she
    allegedly embezzled $306,000.
    The State notes that the texts referenced solely Ms. Brown’s fear of going to
    jail and the potentiality for criminal charges. Throughout the text messages, the State
    asserts that there is no statement that references a civil negotiation or even a concern for
    any form of civil remedy; to the contrary, Ms. Brown made it clear in the texts that she
    would sell her personal property and assets to do whatever she needed to do in order to
    avoid criminal charges. The State argues that the nature of Ms. Brown’s text messages
    distinguishes her situation from Davis, where the D.C. Circuit found that the defendant was
    11
    engaged in civil settlement negotiations and did not have any awareness of a potential
    criminal proceeding.11
    The State contends that a Fourth Circuit case, United States v. Peed,12 is more
    analogous to the present circumstances than Davis. In Peed, the Fourth Circuit found that
    the district court did not abuse its discretion in admitting a secretly recorded conversation
    during which a criminal defendant attempted to pay a victim in exchange for dropping the
    charges. The Fourth Circuit agreed with the district court’s characterization of the
    defendant’s statements as an attempt to avoid criminal prosecution, not as an effort to
    resolve a civil claim, which is the purpose behind Rule 408.13
    Alternatively, the State claims that even if the text message exchanges were
    civil settlement negotiations, the texts would still be admissible under this Court’s decision
    in Shaeffer v. Burton.14 In Syllabus Points 2 and 3 of Shaeffer, this Court held:
    2.     ‘While testimony offered to show an unaccepted
    offer of compromise is incompetent and inadmissible, where it
    appears that such statements were made without any attempt to
    effect any compromise between the parties, such testimony is
    admissible under the well-established rule that the declaration
    of parties to the record against interest may be shown in
    
    11 596 F.3d at 861
    .
    12
    
    714 F.2d 7
    (4th Cir. 1983).
    13
    
    Id. at 9-10.
           14
    151 W.Va. 761, 
    155 S.E.2d 884
    (1967).
    12
    evidence.’ Point 2, syllabus, Averill v. Hart & O’Farrell, 101
    W.Va. 411, [
    132 S.E. 870
    (1926)].
    3.     The determining factor as to whether a statement
    is in the nature of a settlement proposal or offer, so as to
    exclude it from evidence, is whether the form of the statement
    is explicit or absolute, and if its purpose is to declare a fact
    really to exist rather than to concede a fact hypothetically in
    order to effect a settlement, the statement is admissible.15
    The State argues that while this Court decided Shaeffer before the adoption
    of the West Virginia Rules of Evidence, the Court favorably cited the Shaeffer decision in
    SER Richmond American Homes of W.Va., Inc. v. Sanders.16 Applying the holdings of
    Shaeffer to this case, the State argues that not only did Ms. Brown make various admissions
    of actual guilt—not simply hypothetical guilt—but she also provided copies of
    spreadsheets where she highlighted accounting entries relating to money she specifically
    admits to embezzling. Therefore, the State argues that Ms. Brown’s text messages, along
    with the spreadsheets, constitute direct, express, and unconditional admissions of stated
    facts and show an intention to admit liability for at least part of the crime charged.
    To the contrary, Ms. Brown argues that the circuit court properly relied on
    Davis. First, Ms. Brown argues that the text message exchanges occurred in the context of
    and contemporaneously with settlement negotiations to resolve Hartley Oil’s claim against
    15
    
    Id. at 761,
    155 S.E.2d at 886.
    16
    226 W.Va. 103, 117, 
    697 S.E.2d 139
    , 153 (2010).
    13
    her and, therefore, Rule 408 applies. The first set of text messages indicated that Ms.
    Brown allegedly asked Hartley Oil’s accountant if “they are going to work with me fir
    paying it back.” Ms. Brown asserts that the accountant proceeded to indicate that the
    amount needed to be determined and she was still talking to the company’s owners. The
    next set of text messages indicated that Ms. Brown was willing to pay Hartley Oil, would
    do everything in order to resolve the matter, and wanted to calculate the amount owed in
    order to compensate the company. Ms. Brown asserts that she and the accountant sought
    to establish the amount of the disputed claim. She contends that she expressed her desire
    to make financial amends rather than confessing to a crime.
    Ms. Brown claims that, at that time, Hartley Oil retained counsel to evaluate
    its civil claim and the potential for reaching a settlement. While Hartley Oil ultimately
    filed a civil action against Ms. Brown to recover monetary damages for the alleged
    embezzlement, Ms. Brown’s attorney engaged in negotiations with a lawyer for Hartley
    Oil prior to the filing of that action. On November 17, 2015, Ms. Brown sent $17,135 to
    Hartley Oil. Ms. Brown asserts that there were also e-mails titled “settlement negotiations”
    between her and Hartley Oil’s attorneys in an attempt to reach a settlement. Ms. Brown
    contends that when she and Hartley Oil failed to reach a settlement in 2016, the company
    filed its action. Therefore, Ms. Brown argues that the circuit court properly found that the
    text messages were inadmissible because they constituted settlement negotiations under
    Rule 408.
    14
    The threshold question this Court must consider is whether Rule 408 applies
    to the text messages between Ms. Brown and the accountant at Hartley Oil. To establish
    that Rule 408(a) applies to a particular document or information, a party must make a
    substantial showing that it was, in fact, part of civil settlement negotiations. In Miller v.
    Allman,17 we recently discussed the intended application of Rule 408:
    This rule “addresses the admissibility of evidence originating
    in offers to compromise or settle civil suits.” 1 Palmer, et al.,
    Handbook on Evidence § 408.02, at 479. There are two
    provisions set out under Rule 408(a) that prohibit evidence
    concerning settlements. “Rule 408(a)(1) covers offers or
    acceptance of offers to compromise, [and] Rule 408(a)(2)
    covers any statement made during compromise negotiations.”
    United States v. Dish Network, L.L.C., No. 09-3073, 
    2015 WL 9164665
    , at *3 (C.D. Ill. signed December 15, 2015). It has
    been noted that “Rule 408 statements made in settlement
    negotiations are only excludable under the circumstances
    protected by the rule.” 1 Palmer, et al., Handbook on Evidence
    § 408.02, at 479. The exceptions to the prohibitions of Rule
    408(a) are found in Rule 408(b). . . . It has been recognized that
    “[t]his is an illustrative, not an exhaustive, list of the many
    exceptions to the Rule 408 prohibition.” United States v. J.R.
    LaPointe & Sons, Inc., 
    950 F. Supp. 21
    , 23 (D. Me. 1996).[18]
    In making a determination of whether Rule 408 applies, a court must look at
    the totality of the circumstances.19 “In determining whether prelitigation discussions
    between parties constitute settlement negotiations requires a trial court to look at the totality
    17
    
    240 W. Va. 438
    , 
    813 S.E.2d 91
    (2018) (Walker, J. dissenting on other grounds).
    18
    240 W. Va. at __, 813 S.E.2d at 104. (emphasis added).
    19
    1 Palmer, et al., Handbook on Evidence § 408.03[1] at 482 (citing Raybestos
    Products Co. v. Younger, 
    54 F.3d 1234
    , 1241 (7th Cir. 1995).
    15
    of the circumstances, carefully reviewing the substance of the communications and the
    timing of its occurrence.”20
    While litigation need not have actually commenced in order for Rule 408 to
    apply, under Rule 408(a) there must be a prior dispute before excluding evidence of an
    offer to compromise. “Courts generally recognize a preexisting dispute when an offer is
    made after some legal action had been taken or threatened, i.e., a threat to bring suit on a
    claim, delivery of a claim to an attorney for legal action, or the actual filing of a suit.”21
    Rule 408, however, does not apply to settlement offers made before the plaintiff has
    asserted a claim or threatened to assert a claim against the defendant.
    While the State argues that even if the text message exchanges were civil
    settlement negotiations, the texts would still be admissible under this Court’s decision in
    Shaeffer v. Burton, it is clear that our prior holding in Syllabus Point three of Shaeffer has
    been superseded by Rule 408. In Shaeffer, this Court held that if the purpose of a statement
    was to declare the existence of a fact, rather than to concede a fact hypothetically in order
    20
    
    Id. 21 1
    Palmer, et al., Handbook on Evidence § 408.03[1] at 483-84 (citing NMB Air
    Operations Corp. v. McEvoy, 
    1999 U.S. App. LEXIS 22991
    (9th Cir. Sept. 16, 1999) (“in
    order for a compromise to be inadmissible at trial under Rule 408, the underlying claim
    must be disputed as to either validity or amount”); Lightfoot v. Union Carbide Corp., 
    110 F.3d 898
    (2d Cir. 1997); S.A. Healy Co. v. Milwaukee Metropolitan Sewerage Dist., 
    50 F.3d 476
    (7th Cir. 1995).
    16
    to effect settlement, the statement was admissible.22 Thus, before the adoption of Rule 408,
    “[a]n admission of fact was independent of the compromise and, therefore, admissible
    unless the admission was stated hypothetically, expressly stated to be without prejudice, or
    so interwoven with the compromise offer as to be inseparable from it.”23 Recognizing that
    the common law rule in Shaeffer was difficult to apply, thus making it susceptible to
    contradictory and inequitable results, the Handbook on West Virginia Evidence explains
    that Rule 408 supersedes Shaeffer:
    Rule 408(a) avoids the problems caused by Shaeffer, by
    implicitly placing the words without prejudice after every
    statement made during compromise negotiations, thus
    rendering such statements inadmissible. This expansion of the
    rule is consistent with the privilege theory that excludes offers
    of compromise under the notion of encouraging settlements at
    the risk of losing valuable evidence. Now, contrary to common
    law, evidence of all statements made during compromise
    negotiations are inadmissible unless offered to prove an
    exception under Rule 408(b).[24]
    Agreeing with this interpretation of Rule 408(a), the Fourth Circuit has also
    determined that the rule is broader than the common law exclusionary rule in many
    jurisdictions, and excludes from evidence all statements made in the course of settlement
    22
    See Shaeffer at Syl. Pt. 3.
    23
    1 Palmer, et al., Handbook on Evidence § 40.8.03[4] at 489-90 (citing Shaeffer,
    
    151 W. Va. 761
    , 
    155 S.E.2d 884
    ).
    24
    
    Id. (emphasis added).
    17
    negotiations.[25] Accordingly, we hold that contrary to our prior common law, evidence of
    all statements made during compromise negotiations are inadmissible under Rule 408 of
    the West Virginia Rules of Evidence unless offered to prove an exception under the rule.
    Because this Court’s holding in Syllabus Point 3 of Shaeffer has been superseded by Rule
    408 of the West Virginia Rules of Evidence, it is overruled.26 Thus, Shaeffer lends no
    guidance to our determination of this matter.
    While Rule 408(a) may in fact be applicable to criminal proceedings, the
    issue of whether Rule 408(a) actually applies to criminal prosecutions has not yet been
    resolved by this Court.27 Regardless, it is unnecessary for the Court to decide that issue in
    this particular case because it is evident that the text messages were not part of a civil
    settlement negotiation under Rule 408.
    25
    
    Id. (citing Fiberglass
    Insulators, Inc. v. Dupuy, 
    856 F.2d 652
    (4th Cir. 1988))
    (internal footnotes and citations omitted).
    26
    As this Court reiterated in Syllabus Point 1 of Reed v. Wimmer, 195 W.Va. 199,
    
    465 S.E.2d 199
    (1995):
    “The West Virginia Rules of Evidence remain the
    paramount authority in determining the admissibility of
    evidence in circuit courts. These rules constitute more than a
    mere refinement of common law evidentiary rules, they are a
    comprehensive reformulation of them.” Syllabus Point 7, State
    v. Derr, 192 W.Va. 165, 
    451 S.E.2d 731
    (1994).
    27
    See 1 Palmer, et al., Handbook on Evidence § 408.03[3] at 488.
    18
    The text messages undoubtedly convey that these discussions were not an
    attempt to compromise or settle a civil dispute. Rather, Ms. Brown was clearly worried
    about whether the owners were going to press charges against her and she wanted to pay
    back what she owed them in an effort to avoid criminal prosecution. This conclusion is
    supported by the circuit court’s analysis, which included this observation:
    Defendant expressed that she “just [doesn’t] want to go to jail,”
    is concerned about Hartley Oil executives’ planned courses of
    action regarding the allegations against her, and offers her
    401K and other monies so that no charges will be brought
    against her.
    And the case relied upon by the circuit court, Davis,28 offers little guidance
    in analyzing the facts before us in this case. In Davis, the court addressed the application
    of Federal Rule of Evidence 408 in a criminal proceeding where the state had sought to
    introduce testimony of a telephone conversation in which the defendant, who was accused
    of stealing money from a national fraternity while serving as its treasurer, offered to pay
    back some of the money he stole from the fraternity to “make [the accusations] go away.”
    The conversation was as follows:
    [The defendant asked – he said, ‘Can we just split this
    $29,000 and make this situation go away? . . . . I told him that
    [the] amount was in excess of a hundred thousand dollars. [The
    defendant’s] statement to me at that point was, ‘I can’t afford
    to pay that amount,’ and then I told him – I said, ‘Terry, if you
    want to do some – negotiate some kind of settlement, you need
    to talk to our legal counsel or our international president.’”[29]
    28
    
    596 F.3d 852
    .
    29
    
    Id. at 854
    (emphasis added).
    19
    In finding that the statements were not admissible, the Davis court reasoned:
    There can be no doubt that Davis offered to compromise
    a disputed claim. His offer was to split the $29,000 in checks
    to cash he thought the fraternity had discovered. The claim
    “was disputed as to validity or amount,” FED.R.EVID. 408(a):
    Davis did not confess to taking the fraternity’s money; he said
    that he had deposited the cash checks into the fraternity’s
    payroll account; and Hammock rejected Davis’s explanation.
    See Affiliated Mfrs., Inc. v. Alum. Co. of Am., 
    56 F.3d 521
    , 527–
    28 (3d Cir.1995). It is also clear that the government intended
    to introduce Davis’s settlement offer in order to prove Davis’s
    guilt, or in the words of Rule 408(a), his “liability.”[30]
    In Davis, the court found that the defendant was engaged in civil settlement
    negotiations and did not have any awareness of a potential criminal proceeding. In
    contrast, the State correctly contends that in this case there is no statement that references
    a civil negotiation or even a concern for any form of civil remedy. To the contrary, Ms.
    Brown’s texts make it clear that she would sell her personal property and assets to do
    whatever she needed to do in order to avoid criminal charges.
    Further, we are not inclined to follow the reasoning applied by the court in
    Davis. When we examine the facts in that case, it is apparent that the defendant was, as
    here, not conversing with a person who had authority to enter into compromise/settlement
    negotiations, an implicit requirement of Rule 408. Thus, while the defendant in Davis may
    30
    
    Davis, 596 F.3d at 858-59
    (emphasis added).
    20
    have made an offer to compromise, as evidenced by the new treasurer’s comments, the
    offer was not made to a person with any authority to settle the claim.
    Additionally, the claim in Davis “was disputed as to validity or amount”
    under Federal Rule of Evidence 408(a). The court found that Davis did not confess to
    taking the fraternity’s money; he said that he had deposited the cash checks into the
    fraternity’s payroll account; and Hammock rejected Davis’s explanation. Here, Ms. Brown
    admitted her wrongdoings in her text messages and offered to pay back the full amount she
    owed:
    [Ms. Brown]: lol ease do everything you can to help me I
    know what I did was wrong and I wish I could take it back I am
    willing to pay every penny back to them I will do anything I
    just don’t want to ruin [my daughter’s] life over something that
    I did I think I can tell you the amount once I look at it but I
    would really like to come in and talk. I know everyone hates
    me at this point that’s why I would just like to say I quit so [my
    daughter] Don’t find out she’s just a child and do t need to be
    hurt. I know I am the one that hurt her I would work anywhere
    for free just to get then their money back I was struggling
    between bills. Famous for [my daughter] trying to keep her
    happy. I know that is no excuse for what I did. Please don’t
    hate me. Please do everything you can to help me I really
    confide in you. I am telling everyone that I quit for personal
    reasons right now I just don’t want to go to jail but that not my
    choice it’s up to rodd[31]
    Because a dispute as to the amount and validity of the claim is a foundational
    requirement for Rule 408’s application, payment of the full amount demanded or
    31
    (emphasis by the State).
    21
    acknowledgement of the debt has been held not to constitute a compromise offer and is not
    protected under Rule 408. In Carmichael v. Government of the Virgin Islands,32 a court
    determined that when a defendant was initially confronted by her employer regarding some
    missing funds and the defendant readily admitted to taking the money to pay her creditors
    and agreed to repay the full amount demanded, her conduct had not come within Rule 408
    due to lack of valuable consideration. Specifically, the court found:
    [The defendant’s] attempt to bring her restitution payment
    within the rule must also fail for lack of consideration because,
    having taken CAC’s funds for her own use, any agreement to
    repay those funds, which she already had a duty to do, cannot
    constitute valuable consideration under Rule 408. Therefore,
    the trial court did not abuse its discretion in admitting evidence
    of those payments.33
    This case is also analogous to Peed,34 where a secretly-recorded telephone
    conversation between a defendant and an owner of a valuable doll collection was held
    admissible at trial despite the defendant’s contention that the statement, in which the
    defendant offered to return the dolls in return for dropping the criminal charges, constituted
    an offer to compromise a civil claim. During the telephone conversation, the defendant
    stated, “You’re the one that pressed the charges, will you drop the charges? . . . If you want
    32
    No. CRIM.A.2002/164, 
    2004 WL 3222756
    (D.Vi. Nov. 29, 2004).
    33
    
    Id. at *8.
           34
    
    714 F.2d 7
    .
    22
    the dolls back and but [sic] I want your word that everything will be dropped.”35
    The Fourth Circuit, refusing to characterize the defendant’s statement as an
    offer to compromise a civil claim, stated:
    There was no civil suit pending at the time this
    conversation took place. [The defendant’s] jargon (“drop the
    charges”) implies concern over criminal prosecution. These
    were not negotiations aimed at settling a civil claim,
    negotiations that the policy behind Rule 408 seeks to
    encourage. Nor were [the defendant’s] statements followed up
    by any attempt on [the defendant’s] part to obtain money or
    resources for achieving a settlement with [the complainant].[36]
    Thus, the court determined that the defendant’s statements were an attempt to avoid
    criminal prosecution under Rule 408(b), and, accordingly, the evidence was held
    admissible.37
    While Ms. Brown did eventually follow up with an attempt to obtain money
    or resources for achieving an eventual civil settlement with Hartley Oil, the fact remains
    that, like Peed, the tenor of Ms. Brown’s text messages with the company’s accountant
    35
    
    Id. at 9.
           36
    
    Id. 37 Id.
    23
    evidences that these early discussions were not part of a civil settlement negotiation, but
    rather simply conveyed her concerns about criminal prosecution.38
    And, as we stated above, Rule 408 does not apply to settlement offers made
    before the plaintiff has asserted a claim or has threatened to assert a claim against the
    defendant.39 Here, the first evidence in the record allegedly demonstrating the existence
    of, or a threat by, Hartley Oil to bring a civil claim, is a November 5, 2015 email from John
    Alderman, Ms. Brown’s counsel, to Ancil Ramey, Hartley Oil’s counsel, wherein he
    conveys that Ms. Brown was planning to pay back the debt owed. However, even assuming
    that civil settlement negotiations had begun at some point during the course of these text
    conversations, looking at the totality of the circumstances, when we examine the nature of
    the comments made by Ms. Brown and the employee with whom her text messages were
    38
    This case is also factually analogous to a Tennessee appellate court case, State v.
    Ward, No. 2008-02389-CCA-R3-CD, 
    2010 WL 3516206
    (Tenn. Crim. App. Sept. 8,
    2010). In Ward, a defendant was convicted of stealing aluminum pipes from a nursery and
    the trial court denied his motion to exclude a statement he made to the manager of the
    nursery under Rule 408. Following the theft, the defendant asked the manager “Can I pay
    you for these pipes that’s been cut up and forget about it?” The appellate court held that
    the statement was admissible under the exception to Rule 408 for proving an effort to
    obstruct a criminal investigation or prosecution. 
    Id. at *8.
    While we do not go so far as to
    find that Ms. Brown’s offer was an effort to obstruct a criminal investigation, like Peed,
    we conclude that her statements do not “rise to the dignity of an offer to compromise a civil
    claim for purposes of [Rule] 408.” 
    Peed, 714 F.2d at 9
    .
    39
    “Courts generally recognize a preexisting dispute when an offer is made after
    some legal action had been taken or threatened, i.e., a threat to bring suit on a claim,
    delivery of a claim to an attorney for legal action, or the actual filing of a suit.” 1 Palmer,
    et al., Handbook on Evidence § 408.03[1] at 483-84.
    24
    exchanged, it is evident that these text messages were not aimed at settling a civil claim,
    the negotiations that the policy behind Rule 408 seeks to encourage. Accordingly, we find
    that the circuit court committed a clear error of law in prohibiting their admission at trial.
    As this Court has made clear:
    While testimony offered to show an unaccepted offer of
    compromise is incompetent and inadmissible, where it appears
    that such statements were made without any attempt to effect
    any compromise between the parties, such testimony is
    admissible under the well-established rule that the declaration
    of parties to the record against interest may be shown in
    evidence.[40]
    Although prohibition is ordinarily inappropriate in matters involving a trial court’s pretrial
    ruling on the admissibility of evidence, when the State has no other adequate means to
    obtain the desired relief and the issue is not one that would be correctable on appeal, this
    Court has entertained a petition for a writ of prohibition.41 Because the circuit court’s
    ruling would effectively prohibit all of the evidence surrounding these statements,
    including testimony from the accountant regarding her discussions with Ms. Brown, it
    would impede the State’s ability to secure a valid criminal conviction in this case.
    Accordingly, we grant the State’s request for extraordinary relief.
    40
    Syl. Pt. 2, Averill v. Hart & O’Farrell, 101 W.Va. 411, 
    132 S.E. 870
    (1926).
    41
    See State ex rel. Plants v. 
    Webster, 232 W. Va. at 708
    , 753 S.E.2d at 761.
    25
    IV. CONCLUSION
    For these reasons, we grant the requested writ and prohibit the circuit court
    from enforcing its August 3, 2017 order denying admission of these text messages.
    Writ granted.
    26