Joseph Todd Hutchinson and Jennifer Lynn Hutchinson v. Mark Forest Underwood, Patricia Jennings and Underwood Law Office ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Joseph Todd Hutchinson and
Jennifer Lynn Hutchinson, FILED
Plaintiffs Below, Petitioners September 18, 2020
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
vs.) No. 19-1079 (Cabell County 17-C-149) OF WEST VIRGINIA
Mark Forest Underwood, Patricia Jennings, and
Underwood Law Office,
Defendants Below, Respondents
MEMORANDUM DECISION
Petitioners Joseph Todd Hutchinson and Jennifer Lynn Hutchinson, self-represented
litigants, appeal the October 21, 2019, order of the Circuit Court of Cabell County awarding
judgment as a matter of law at the close of petitioners’ evidence to Respondents Mark Forest
Underwood, Patricia Jennings, and the Underwood Law Office (collectively, “respondents”) and
the circuit court’s November 1, 2019, order denying petitioners’ motion for a new trial.
Respondents, by counsel Kevin A. Nelson and Arie M. Spitz, filed a response in support of the
circuit court’s orders. Petitioners filed a reply.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s orders is appropriate under Rule
21 of the Rules of Appellate Procedure.
Petitioners retained respondents to represent them in a proceeding before the West
Virginia Court of Claims (“Court of Claims”).1 According to the Court of Claims’ January 20,
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The West Virginia Court of Claims is now known as the West Virginia Legislative
Claims Commission. State ex rel. Ladanye v. West Virginia Legislative Claims Commission, 242
W. Va. 420, __, 836 S.E.2d 71, 78 (2019) (citing W. Va. Code § 14-2-4 (2019)). The function of
this legislative body is to make “a recommendation to the Legislature based upon a finding of
moral obligation, and the enactment process of passage of legislation authorizing payments of
claims recommended by the court is at legislative discretion.” Id. (quoting W. Va. Code § 14-2-
28 (2014)). As we noted in Ladanye, “[o]ur State constitution provides sovereign immunity
protections and does not allow for suits to be brought against the State. Id. at __, 836 S.E.2d at
76-77 (citing W. Va. Const. art. VI, § 35).
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2014, decision, petitioners filed a claim against the West Virginia Division of Highways
(“DOH”) alleging that the DOH was “responsible for the maintenance of the roadway and the
culvert that abuts [petitioners’] property located” on Aracoma Road in Huntington, West
Virginia, and that “runoff from Aracoma Road clogged or crushed a culvert which caused or
contributed to damage to [petitioners’] [p]roperty.” Petitioners and the DOH reached a settlement
in the amount of $85,000 in “a full and complete satisfaction of any and all past and future
claims that [petitioners] may have against [the DOH] arising from the matters described in said
claim.” Pursuant to the settlement, petitioners agreed that:
Five Thousand Dollars ($5,000.00) of the settlement sum is expressly earmarked
for [petitioners] to hire a contractor of their choosing to clear the culvert that abuts
[petitioners’] [p]roperty and [petitioners] shall be solely responsible for directing
such work and shall defend, protect, and indemnify [the DOH] from and against
any such claims or liabilities arising from such work. [Petitioners] further agreed
that the sum to be paid herein shall forever bar [petitioners] or any future owners
of the [p]roperty from any claim against the [DOH] arising from the [d]amages as
identified in the parties’ stipulation.
Based on the settlement of petitioner’s claim against the DOH, the Court of Claims
recommended to the Legislature that it authorize an award of $85,000 to petitioners. As
respondents’ fee, respondents received 40% of the $85,000 subsequently awarded to petitioners.
On March 3, 2017, petitioners filed the instant civil action against respondents in the
Circuit Court of Cabell County, alleging that respondents breached a fiduciary duty that they
owed to petitioners in settling petitioners’ claim against the DOH. Petitioner sought $400,000 in
compensatory damages and $300,000 in punitive damages. On March 30, 2017, respondents
filed a motion for a more definite statement, which was granted by an order entered on May 25,
2017. On June 22, 2017, petitioners filed a supplemental complaint specifically alleging that
respondents failed to inform petitioners that the settlement with the DOH would bar future
claims against the DOH regarding the culvert abutting their property. On July 13, 2017,
respondents filed an answer. The parties disputed whether petitioners’ claim was for breach of a
fiduciary duty or for legal malpractice.
Prior to trial, respondents challenged petitioners’ service of process on the individual
respondents, prompting the circuit court to provide petitioners with additional time to complete
service of process, and petitioners thereafter successfully served each respondent. On July 24,
2019, respondents filed a motion to dismiss the civil action, alleging that petitioners were
engaging in serious litigation misconduct by threatening respondents, their attorneys, and
potential witnesses. By order entered on September 5, 2019, the circuit court denied the motion.
The circuit court held the trial on September 4 and 5, 2019. After petitioners rested their
case, respondents moved for judgment as a matter of law pursuant to Rule 50(a) of the West
Virginia Rules of Civil Procedure, arguing that no reasonable jury could find in petitioners’ favor
based on the evidence they presented. After argument by the parties, the circuit court awarded
judgment as a matter of law to respondents. By order entered on October 21, 2019, the circuit
court found that petitioners’ evidence was insufficient to persuade a jury to find in petitioners’
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favor because their evidence could not establish all of the elements of either a breach of fiduciary
duty or a legal malpractice claim. On October 28, 2019, petitioners filed a motion for a new trial.
By order entered on November 1, 2019, the circuit court denied the motion, thereby rejecting
petitioners’ argument that they were not allowed to call all of the witnesses and introduce all of
the documentary evidence that they wished to present during their case-in-chief.
Petitioners now appeal the circuit court’s October 21, 2019, and November 1, 2019,
orders. We review the circuit court’s award of judgment as a matter of law to respondents
pursuant to the following standard:
“‘The appellate standard of review for the granting of a motion for a
[judgment as a matter of law] pursuant to Rule 50 of the West Virginia Rules of
Civil Procedure is de novo. On appeal, this court, after considering the evidence
in the light most favorable to the nonmovant party, will sustain the granting of a
[judgment as a matter of law] when only one reasonable conclusion as to the
verdict can be reached. But if reasonable minds could differ as to the importance
and sufficiency of the evidence, a circuit court’s ruling granting a [judgment as a
matter of law] will be reversed.’ Syllabus Point 3, Brannon v. Riffle, 197 W. Va.
97, 475 S.E.2d 97 (1996).” Syl. pt. 5, Smith v. First Community Bancshares, Inc.,
212 W. Va. 809, 575 S.E.2d 419 (2002).[2]
Syl. Pt. 1, Estep v. Mike Ferrell Ford Lincoln-Mercury, Inc., 223 W. Va. 209, 672 S.E.2d 345
(2008) (Footnote added). With regard to the circuit court’s denial of petitioners’ motion for a
new trial, “[c]ourts do not grant new trials unless it is reasonably clear that prejudicial error has
crept into the record or that substantial justice has not been done[.]” In re State Pub. Bldg.
Asbestos Litig., 193 W. Va. 119, 124, 454 S.E.2d 413, 418 (1994) (quoting 11 Charles Alan
Wright and Arthur R. Miller, Federal Practice and Procedure, § 2803 at 32-33 (1973))
(Footnotes omitted).
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Rule 50(a) of the West Virginia Rules of Civil Procedure provides:
(a) Judgment as a Matter of Law.
(1) If during a trial by jury a party has been fully heard on an issue and there is no
legally sufficient evidentiary basis for a reasonable jury to find for that party on
that issue, the court may determine the issue against that party and may grant a
motion for judgment as a matter of law against that party with respect to a claim
or defense that cannot under the controlling law be maintained or defeated
without a favorable finding on that issue.
(2) Motions for judgment as a matter of law may be made at any time before
submission of the case to the jury. Such a motion shall specify the judgment
sought and the law and the facts on which the moving party is entitled to the
judgment.
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On appeal, petitioners raise fifteen assignments of error. Respondents counter that
petitioners raise issues that the circuit court resolved in petitioners’ favor such as allowing
petitioners additional time to serve each respondent and denying respondents’ motion to dismiss
the civil action due to petitioners’ alleged misconduct.3 Petitioners argue that “[t]he point is not
that . . . [p]etitioners prevailed in the lower court” on certain issues, but that the circuit court
generally allowed respondents to obstruct petitioners’ opportunity to be heard. See Syl. Pt. 2,
Simpson v. Stanton, 119 W. Va. 235, 193 S.E. 64 (1937) (holding that “[t]he due process of law
guaranteed by the State and Federal Constitutions, when applied to procedure in the courts of the
land, requires both notice and the right to be heard”) (Emphasis added); State ex rel. Peck v.
Goshorn, 162 W. Va. 420, 422, 249 S.E.2d 765, 766 (1978) (same).
Upon our review of petitioners’ assignments of error, we find that many of the
assignments are duplicative.4 Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure
provides that “[t]he argument must contain appropriate and specific citations to the record on
appeal, including citations that pinpoint when and how the issues in the assignments of error
were presented to the lower tribunal,” and that “[t]he Court may disregard errors that are not
adequately supported by specific references to the record on appeal.”5 “Although we liberally
On April 24, 2020, petitioners filed a “motion for default judgment” with this Court,
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alleging that respondents failed to serve petitioners with a copy of the response. We deny that
motion because such a motion is not recognized by the West Virginia Rules of Appellate
Procedure. We further reject petitioners’ argument that respondents failed to serve petitioners
with a copy of the response as the certificate of service attached thereto states that the response
was served on petitioners on April 16, 2020.
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Petitioners’ assignments of error are the following: (1) whether petitioners’ cause of
action was for a breach of a fiduciary duty or legal malpractice; (2) whether all three of the
individual respondents were properly served; (3) whether all three of the individual respondents
were properly served in March of 2017; (4) whether respondents and their attorneys slandered
petitioners in court proceedings, in court filings, and to the general public; (5) whether
petitioners were prevented from calling their subpoenaed witness through the use of false
information; (6) whether respondents’ attorneys made false and inflammatory statements about
petitioners to potential witnesses; (7) whether the circuit court erred in refusing to allow
petitioners to introduce their documentation into evidence; (8) whether the circuit court erred in
requiring petitioners to serve the three individual respondents on multiple occasions; (9) whether
the circuit court erred in ensuring that all three of the individual respondents were properly
served; (10) whether respondents and their attorneys committed perjury; (11) whether petitioners
threatened respondents, respondents’ attorneys, and other persons; (12) whether respondents’
attorneys’ labeling of Petitioner Joseph Todd Hutchinson as an “al-Qaeda spokesman” was
improper; (13) whether respondents’ attorneys made numerous defamatory statements about
petitioners; (14) whether the circuit court expressed aggravation with petitioners’ attempts to
discover the source of the false information about them; and (15) whether petitioners were
prevented from calling one witness when that witness became hostile to them during pre-trial.
(continued . . .)
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construe briefs in determining issues presented for review, issues which are not raised, and those
mentioned only in passing but [which] are not supported with pertinent authority, are not
considered on appeal.” State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996); State
v. Lilly, 194 W. Va. 595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995) (finding that cursory
treatment of an issue is insufficient to raise it on appeal).
Here, we find that the only issues we need to address are petitioners’ arguments that (1)
the circuit court erred in finding that petitioners’ evidence was insufficient to persuade a jury to
find in petitioners’ favor because their evidence could not establish all of the elements of either a
breach of fiduciary duty or a legal malpractice claim; and (2) the circuit court did not permit
petitioners to call all of the witnesses or introduce all of the documentary evidence they wished
to present during their case-in-chief. With regard to these issues, we find that the circuit court
properly resolved both issues in its October 21, 2019, order awarding respondents judgment as a
matter of law pursuant to Rule 30 and/or its November 1, 2019, order denying petitioners’
motion for a new trial.
Having reviewed the circuit court’s October 21, 2019, “Final Order Granting Defendants’
Motion for Judgment as a Matter of Law,” and its November 1, 2019, “Order Denying Plaintiffs’
Motion for New Trial,” we hereby adopt and incorporate the circuit court’s well-reasoned
findings and conclusions. The Clerk is directed to attach a copy of each order to this
memorandum decision. Accordingly, we conclude that the circuit court’s award of judgment as a
matter of law to respondents and denial of petitioners’ motion for a new trial were not erroneous.
For the foregoing reasons, we affirm the circuit court’s October 21, 2019, and November
1, 2019, orders.
Affirmed.
ISSUED: September 18, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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On March 27, 2020, respondents filed a motion to dismiss the appeal, arguing that we
should decline to review all fifteen of petitioners’ assignments of error pursuant to Rule 10(c)(7)
of the West Virginia Rules of Appellate Procedure. We deny this motion as moot.
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