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Doe-1 v. Corporation of President of Church of Jesus Christ of Latter-Day Saints

Supreme Court of West Virginia

June 14, 2017

JANE DOE-1, Individually and as Parent, Guardian, and Next Friend of J.T., a Minor, and W.T., a Minor; JOHN DOE-1, Individually; JANE DOE-2, Individually and as Parent, Guardian, and Next Friend of Z.W., a Minor, and A.W., a Minor; JANE DOE-3, Individually and as Parent, Guardian, and Next Friend of C.H., a Minor; JOHN DOE-3, Individually; JANE DOE-4, Individually and as Parent, Guardian, and Next Friend of A.B., a Minor; JANE DOE-5, Individually and as Parent, Guardian, and Next Friend of T.S., a Minor, and M.S., a Minor; JOHN DOE-5, Individually; JANE DOE-6, Individually and as Parent, Guardian, and Next Friend of P.C., a Minor; and JOHN DOE-6, Individually, Plaintiffs Below, Petitioners
v.
CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, STEVEN GROW, DON FISHEL, CHRISTOPHER MICHAEL JENSEN, CHRISTOPHER JENSEN, SANDRALEE JENSEN, and UNNAMED DEFENDANT-1, Defendants Below, Respondents

          Submitted: May 16, 2017

         Appeal from the Circuit Court of Berkeley County Honorable John C. Yoder, Judge Civil Action No. 13-C-656

          Robert P. Fitzsimmons, Esq. Fitzsimmons Law Firm PLLC Wheeling, West Virginia.

          Thomas V. Flaherty, Esq. Flaherty Sensabaugh Bonasso PLLC Charleston, West Virginia Counsel for the Respondent UD-1.

          Carl S. Kravitz, Esq. Zuckerman Spaeder LLP Washington, DC Counsel for the Petitioners.

          Mark A. Atkinson, Esq. John J. Polak, Esq. Atkinson & Polak, PLLC Charleston, West Virginia Counsel for the Respondents Christopher Jensen and Sandralee Jensen.

          Thomas J. Hurney, Jr., Esq. Jackson Kelly PLLC Charleston, West Virginia.

          William J. Powell, Esq. Jackson Kelly PLLC Martinsburg, West Virginia Counsel for the Respondents Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, Steven Grow, and Donald Fishel.

         SYLLABUS BY THE COURT

         1. "In reviewing a circuit court's certification under Rule 54(b) of the West Virginia Rules of Civil Procedure, this Court applies a two-prong test. First, we scrutinize de novo the circuit court's evaluation of the interrelationship of the claims, in order to decide whether the circuit court completely disposed of one or more claims, which is a prerequisite for an appeal under this rule. As to the second prong of the inquiry under the rule-whether there is any just reason for delay-this Court accords the circuit court's determination considerably more deference than its first-prong determination. The circuit court's assessment that there is 'no just reason for delay' will not be disturbed unless the circuit court's conclusion was clearly unreasonable, because the task of balancing the contending factors is peculiarly one for the trial judge, who can explore all the facets of a case." Syl. Pt. 1, Province v. Province, 196 W.Va. 473, 473 S.E.2d 894 (1996).

         2. "'"Where an appeal is properly obtained from an appealable decree either final or interlocutory, such appeal will bring with it for review all preceding non-appealable decrees or orders, from which have arisen any of the errors complained of in the decree appealed from, no matter how long they may have been rendered before the appeal was taken." Point 2, syllabus, Lloyd v. Kyle, 26 W.Va. 534 [1885].' Syllabus point 5, State ex rel. Davis v. Iman Mining Co., 144 W.Va. 46, 106 S.E.2d 97 (1958)." Syl. Pt. 6, Riffe v. Armstrong, 197 W.Va. 626, 477 S.E.2d 535 (1996).

          3. "A civil conspiracy is a combination of two or more persons by concerted action to accomplish an unlawful purpose or to accomplish some purpose, not in itself unlawful, by unlawful means. The cause of action is not created by the conspiracy but by the wrongful acts done by the defendants to the injury of the plaintiff." Syl. Pt. 8, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009).

         4. " A civil conspiracy is . . . a legal doctrine under which liability for a tort may be imposed on people who did not actually commit a tort themselves but who shared a common plan for its commission with the actual perpetrator(s)." Syl. Pt. 9, in part, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009).

          OPINION

          LOUGHRY, CHIEF JUSTICE.

         The petitioners (plaintiffs below) are nine minors and their parents, individually and as parents, guardians, and next friends, [1] in this action alleging various negligence claims, fraud, intentional infliction of emotional distress, assault, battery, and civil conspiracy related to, arising from, and resulting in defendant Michael Jensen's known and alleged sexual abuse of the minor plaintiffs.[2] Following extensive discovery, the circuit court entered an order on December 4, 2015, through which it granted summary judgment in favor of the respondent (defendant below), Unidentified Defendant-1 ("UD-1"), against whom conspiracy was the only claim asserted. On December 30, 2015, the circuit court entered an order granting several of the defendants' motions in limine which eliminated a large portion of the plaintiffs' circumstantial evidence in support of their conspiracy claim.[3] The following day, December 31, 2015, the circuit court entered an order granting summary judgment on the plaintiffs' conspiracy claim in favor of the respondents (defendants below), Corporation of the President of The Church of Jesus Christ of Latter-day Saints, Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints, Steven Grow, and Don Fishel (collectively the "Church defendants"), and in favor of the respondents (defendants below), Christopher Jensen[4] and Sandralee Jensen.[5]

         On January 11, 2016, the circuit court entered an order certifying its interlocutory summary judgment rulings as final judgments pursuant to West Virginia Rule of Civil Procedure Rule 54(b).[6] In addition to seeking a reversal of the summary judgment orders, the plaintiffs ask this Court to reverse those in limine rulings. They assert these rulings facilitated the circuit court's issuance of summary judgment rulings without first evaluating the evidence offered in support of their conspiracy claims under the strictures applicable to summary judgment.

         Upon our careful review of the parties' briefs, the arguments of counsel, the appendix record submitted, and the applicable law, we reverse the summary judgments and in limine rulings and remand this action for further proceedings consistent with this opinion.

         I. Facts and Procedural Background[7]

         In late 2004, Chris and Sandralee Jensen (collectively the "Jensen parents") and their children were residing in or near Provo, Utah. Their son Michael Jensen, who was then thirteen years old, was arrested at his middle school and charged with two felony counts of sexual abuse of a child. The incidents occurred in November and December of 2004, and his female victims were twelve and thirteen years old, respectively. On both occasions, Michael waited for his victim to exit a classroom before pinning her against a wall and grabbing her buttocks and breasts without her consent. One of the victims indicated in her statement to the police that during Michael's attack upon her person, he told her that they needed to have sex; that she was "really scared"; and that she had kneed Michael in the groin to get away. The defendants minimize the severity of the incidents describing them instead as brief groping of two female classmates over their clothes while at school.

         The plaintiffs allege that a conspiracy began in Provo when The Church of Jesus Christ of Latter-day Saints ("Church") influenced Michael's criminal proceeding, which resulted in the two felonies charges being reduced to misdemeanor sexual offenses. Among other assertions, the plaintiffs state that Michael's paternal grandfather, Blaine P. Jensen, who has held very high positions within the Church, [8] attended a meeting between Michael and Michael's attorneys, and was present for Michael's dispositional hearing in January 2015. Dale Swensen, Michael's Church bishop[9] in Provo, also attended the dispositional hearing. During this hearing, the juvenile petition was read and reports were submitted, including a Sexual Behavior Risk Assessment ("SBRA"), [10] which indicated that Michael's offenses are based primarily on opportunity" and that he "will offend if given the opportunity." The juvenile court then accepted Michael's admission to reduced charges of two misdemeanor counts of lewdness involving a child; placed him on probation; ordered his parents to comply with the terms of probation; and ordered him to complete fifty hours of community service and a Sexual Appropriateness Class with the family component with proof of completion to be provided to the court. The defendants allege the plaintiffs have no evidence the Church influenced Michael's proceeding in any manner and that affidavits and declarations from the prosecutors involved in Michael's juvenile proceeding refute the existence of any such influence. Although the defendants allege Blaine Jensen's involvement was simply that of a grandfather assisting his grandson, the plaintiffs point to evidence that Michael told his friend, J.C., he had been in legal trouble in Utah and that his grandfather "was in a leadership position for the church . . . [and] helped take care of whatever needed to be taken care of."[11]

         The plaintiffs further allege that although the Church knew that Michael had pled guilty to two sex offenses in Utah, it did nothing to warn or protect, despite the existence of an abuse "prevention and response" procedure, referred to as an "annotation system." The defendants allege that their evidence demonstrates that the Church "rarely" annotates its records for children, and "even less so where the misconduct does not indicate a danger to much younger children."[12]

         During the summer of 2005, the Jensen family moved to Martinsburg, West Virginia. Soon thereafter, Sandralee Jensen was asked to serve as the Church's Relief Society President for her new ward, [13] which she accepted. In that role, Mrs. Jensen reported directly to her ward bishop, who was at that time Matthew Whitcomb. She also oversaw the Sunday class for the women and was responsible for "compassionate service" for all ward members. Shortly thereafter, Chris Jensen was placed on the Stake High Council, [14] which is an advisory body to the Stake President, who at all relevant times was defendant Stephen Grow.

         In their effort to further demonstrate the defendants' knowledge and awareness of Michael's history as an abuser, the plaintiffs allege there was a Stake High Council meeting in 2006 or 2007, [15] during which leaders of the Martinsburg Stake discussed Michael Jensen's abuse of a younger sister[16] and possibly another girl, and Chris Jensen's possible abuse of his son Michael. They further allege that at this same time, Stake President Grow asked UD-1 to "keep an eye" on Chris Jensen, who was UD-1's close friend, and to report back to him. UD-1 indicated during a recorded interview that through his position on Church councils, he was aware that Church leaders had been working hard with Michael Jensen to get him the help that he needed in the 2007-2008 time frame.[17] The defendants deny that this 2006-2007 Stake High Council meeting ever took place or that Stake President Grow ever made such a monitoring arrangement with UD-1.

         The plaintiffs allege that by April 2007, through her role as Relief Society President, Sandralee Jensen was arranging for Michael to babysit the children of ward families. They further allege that because there had been no disclosures concerning Michael's prior sex offenses in Utah by the Jensens or the Church defendants, the plaintiff Doe-6 parents allowed their four-year-old daughter P.C. to be babysat by Michael, who sexually and physically abused her by repeatedly laying down in bed with her and making her touch his penis. The plaintiffs further allege that when the Doe-6 parents returned home, P.C. was extremely upset; had a handprint-shaped bruise on her bottom; and was terrified of Michael. When Jane Doe-6 confronted the Jensens parents, who were both Church officers at the time, they explained that P.C. was upset because Michael had not fed the Doe-6 children properly. Sandralee Jensen assumed that Michael had spanked P.C., and Chris Jensen believed that Michael needed more "tutelage from his mother" to become a better babysitter.[18]

          Moving forward to June 2007, the plaintiffs allege that Michael Jensen assaulted J.M., a fourteen-year-old girl. J.M. testified that Michael invited her to go to the movies, telling her there was a "huge group of people" from the church going. According to J.M., after her mother dropped her off at the movie theater, Michael purchased her ticket and, as they walked through the door of the theater, he grabbed her, pulled her close, and started touching her breasts. She testified that he then pulled her outside the theater, pushed her up against a wall, and continued touching, kissing, and "doing all this other stuff" as she tried to press him back. Explaining further, she testified that Michael's older brother, Blaine, came out of the theater, yelled Michael's name, "dr[agged] him [Michael] inside the theater, " and thereafter kept Michael away from her. She testified that she was upset; that Michael had made her feel as if she "owed him something just because he paid for [her] ticket"; and that she did not report the incident to the police because she was humiliated. She further recounted subsequent contact with Mrs. Jensen, who approached her and asked whether she was okay and "do we have a problem?" The plaintiffs allege that Mrs. Jensen "linked in her mind" the incident with J.M. to Michael's Provo sex offenses, which prompted her to confer with Bishop Whitcomb about the matters. Mrs. Jensen testified that the only "link" in her mind was her concern, as a religious woman, with Michael's "pre-marital displays of sexuality[, ]" and that her conversation with Bishop Whitcomb was along those lines with only a passing reference to Michael's offenses in Utah.[19]

         During the fall of 2007, the plaintiffs allege that Church leaders discussed Jane and John Doe-1's marital difficulties and that Sandralee Jensen, as Relief Society President, offered Michael as a babysitter if the Doe-1 parents needed some time alone. Mrs. Jensen testified that she did not disclose Michael's sex offenses in Utah or the injury he had inflicted on P.C. to Jane Doe-1. The plaintiffs allege Mrs. Jensen also failed to mention that Michael was no longer allowed to babysit his siblings, Michael's assault of J.M., or her conclusion that he should not babysit unsupervised. Jane Doe-1 accepted Mrs. Jensen's offer of child care, and Michael babysat J.T., then aged three, and W.T., then aged four. These children would later disclose to their parents that the evening Michael babysat them, he blindfolded them, put ketchup on his penis, and forced them to perform oral sex on him. Criminal charges for these offenses were brought against Michael in 2012. He was tried, convicted, and sentenced to thirty-five to seventy-five years in the penitentiary, and he has been designated a "violent sexual predator."[20]

         In early 2008, UD-1's two-year-old son, C.P., was cared for in the Jensen home and came home with a swollen penis and abrasions on the inner part of his upper thighs. Neither UD-1 nor his wife, S.P., who was at that time a neonatal intensive care nurse, sought medical treatment for C.P., which the plaintiffs allege was because they knew it would result in mandatory reporting to state authorities.[21] UD-1 and his wife knew C.P.'s injuries could not have been self-inflicted because of his physical disabilities. When interviewed by the plaintiffs' counsel, UD-1 stated that Sandralee suggested to his wife that C.P.'s injuries might be diaper rash, which his wife, who was a nurse, knew it was not.[22] UD-1 also stated during this interview, as did S.P. during her deposition, that C.P., who had been potty-trained, thereafter began wetting the bed again.

         The plaintiffs allege that sometime between February through April of 2008, Jane Doe-2 approached Sandralee Jensen, who was still serving as Relief Society President, about her need for after-school child care for her sons, four-year-old Z.W. and six-year-old A.W. According to Mrs. Jensen's testimony, she proposed Michael to babysit the children in the Jensen home, indicating she would be there, as well. She did not disclose any information to Jane Doe-2 about Michael's prior offenses, as discussed above, or his fitness as a babysitter. Over the following weeks, the plaintiffs allege that Michael forced Z.W. to perform oral sex on him and forced A.W. to watch. Z.W. testified that on one occasion when he told Sandralee that Michael was abusing him, she said, "okay and just ignored it."[23] In April 2008, Z.W. told his mother about the abuse. Jane Doe-2 testified that she saw the fear in her son's eyes and never doubted his truthfulness about what had happened. She told Sandralee what Michael had done and, a day or two later, Michael and his father Chris appeared at her home, denying the abuse ever happened in an aggressive manner that caused her to feel intimidated.

         Jane Doe-2 further testified that she and her husband arranged a meeting with defendant Bishop Fishel during which they disclosed Michael's sexual abuse of Z.W., and Bishop Fishel indicated he would look into the matter. According to Jane Doe-2, when she saw Bishop Fishel at church approximately one week later, he told her that he had spoken to Michael; that he did not believe that Michael had abused Z.W.;[24] and that Z.W. might have been exposed to pornography. John Doe-2 testified to a separate but similar conversation with Bishop Fishel. When Bishop Fishel was deposed, he denied ever speaking to Jane Doe-2 about Michael's alleged sexual abuse of her son, and asserted any conversation he had with John Doe-2 did not involve sexual abuse. Bishop Fishel's testimony reflects that a few weeks later, he selected Michael Jensen and his brother Blaine Jensen to be First and Second Assistant to the Bishop, an honor within the Church.

         The defendants allege that neither of Z.W.'s parents "believed Z.W.'s account enough to report the abuse to the authorities" and John Doe-2 never disclosed any abuse of his son "by anybody." Conversely, Jane Doe-2 testified she and her husband considered reporting the abuse to authorities but after speaking to Bishop Fishel, they decided that Z.W. had been through enough; that his allegation would be questioned; that there would be persons who would not believe him because it would have been Z.W.'s word against Michael Jensen's denial; and that she did not want Z.W. to be ostracized.

         By early 2009, Sandralee Jensen was no longer the Relief Society President but had assumed oversight of the Church's Cub Scout program. When Jane and John Doe-3 indicated their inability to attend her Cub Scout training one evening because someone would need to watch their young children, Sandralee offered to have her children babysit the Doe-3 children. Jane Doe-3 testified that Michael and a Jensen daughter babysat her children in the Jensen home, including her three-year-old son, C.H., who later disclosed Michael followed him into the bathroom, shut the door, and when he pulled down his pants to use the toilet, Michael touched his penis. Although the defendants state C.H. denied Michael had ever abused him, the plaintiffs point to contrary evidence in the appendix record and to the circuit court's denial of the defendants' motion for summary judgment on the claims of C.H. and his parents.

         The record reflects that around this same time in 2009, Sandralee emailed her former bishop, Matt Whitcomb, expressing her concern that Michael posed a risk to her other children. She advised Mr. Whitcomb that she and her husband were "trying to think[] of different options to help protect [Michael] from himself" and asking whether there were any farmers in his area who would be willing to take in Michael. She also expressed to Mr. Whitcomb her comfort in seeking his help because he "knew some of the history."

         In early 2010, Chris Jensen found eighteen-year-old Michael in the bedroom of his twelve-year-old sister K.J., who was lying on her bed. Mr. Jensen testified that he had Michael leave the room after which his daughter told him that Michael had lain on top of her and tried to kiss her. During her deposition, K.J. described this incident as Michael first lying down beside her on her bed, then "climb[ing] on top" of her after which he kissed her for what seemed like ten to twenty minutes, and also "possibly" moving his pelvis against her. She stated that she was terrified. From that point forward, the Jensens banned Michael from their home, although he stayed in a tent in their backyard at various times.

         The Jensens met with Bishop Chris Vincent, who was a bishop in their Stake but was not their ward bishop, and reported Michael's abuse of K.J. Bishop Vincent testified that during this meeting, K.J. told him about a court case in another state where Michael was tried for hitting a girl. Bishop Vincent testified that he told no one else within the Church about his meeting with the Jensens; that he agreed to counsel Michael; that he did not ask Michael about his abuse of K.J. or his earlier case that she had referenced; and that he gave Michael keys to the church building so he would have a safe place to sleep.

         Between 2010 and June of 2011, Michael sometimes lived with Church families, including the Doe-4 family, who took him on a family trip to South Carolina. Jane Doe-4's son, J.C., who was Michael's friend, testified the only concern he was aware of Mrs. Jensen expressing was her worry that Michael would "mess[] up or hook[]up" with a girl at the beach. Michael went on that trip during which he allegedly abused the Doe-4s' eight-year-old daughter, A.B., touching her genitals over her clothing.[25] Sandralee Jensen testified that she knew Michael was living with the Doe-4 family, but she did not disclose anything to them about Michael's history of abuse, including his recent abuse of his sister K.J. As Sandralee explained, she did not feel any need to warn the Doe-4 parents because K.J. was more "developed" than the Doe-4s' daughter who was about the same age.

         During this same time, the plaintiffs allege that the Church continued to hold Michael out as a trustworthy member of the community and, in early 2011, he was asked to serve as a substitute teacher in the Church's primary program and taught a class of four-year- old children. In June 2011, Michael was approved for a Church mission, which UD-1 indicated had been delayed while Bishop Fishel worked with Michael on his various issues.

         In January of 2012, while Michael was on his mission, J.T. and W.T. disclosed to their parents, John and Jane Doe-1, that Michael had abused them five years earlier. Jane Doe-1 reported the abuse to the West Virginia State Police. Bishop Vincent informed President Grow about these allegations against Michael involving the Doe-1 children, including that he had called the Church's Helpline to advise Church officials in Utah of the West Virginia State Police investigation and that the State Police wanted to interview Michael. Although the Church brought Michael back to West Virginia early from his mission in Arizona, the plaintiffs allege that the Jensens and Church leaders met and agreed to not disclose his return to the police. The plaintiffs further allege Michael fabricated a story that he returned early from his mission due to a bicycle accident, and that Stake President Grow did nothing to correct the fabrication.

         The Jensens state that Chris Jensen was deployed when Michael returned early from his mission, and because Mrs. Jensen did not want Michael living at home without his father there, Mr. Whitcomb, who was then a Stake High Councilor, agreed to let Michael live with him and his wife. Mr. Whitcomb testified that when his daughter and grandchildren planned a visit, he told Michael to find another place to live because there was not enough room in his home for everyone.[26] Mr. Whitcomb asked John Doe-5 if Michael could live with his family. Although the Doe-5s had young children, the plaintiffs allege that neither Mr. Whitcomb, nor any Church official or defendant, told the Doe-5s the reason for Michael's early return from his mission, or about Michael's history of sexual abuse. Mr. Whitcomb testified that he believed John Doe-5 was aware of the allegations against Michael based on conversations he had with John Doe-5, but he could not specifically recall the dates of those conversations.

         John Doe-5 testified that both Stake President Grow and Bishop Fishel encouraged him to allow Michael to live in his home. Michael Jensen lived with the Doe-5s from May 2012 until August 2012.[27] John and Jane Doe-5's son M.S. testified Stake President Grow told him it was good that Michael was living with the Doe-5 family; that Michael was a "good guy;" and that he would be a "good role model" for M.S. The plaintiffs allege that during this same time, Stake President Grow was "counseling" Michael on a regular basis.

         The plaintiffs further allege that while Michael lived with the Doe-5 family, he touched the genitals of the Doe-5 boys, six-year-old T.S. and ten-year-old M.S., on several occasions. During therapy with a psychologist, T.S. described looking into the living room at his home on one occasion and seeing Michael holding his brother's head down to Jensen's crotch and "humping" his brother M.S.'s face; he drew a picture of what he had observed. The defendants allege the Doe-5 boys thought Michael's touching of them was accidental, while they were "wrestling, " until their father suggested it was not. They add it was the Doe-5's oldest son, M.S.-2, who originally suggested that Michael live with their family.

         In February of 2013, Michael Jensen was tried and convicted of the sexual abuse of the Doe-1 children, J.T. and W.T. During Michael's criminal trial, the Doe-2's son, Z.W., testified under Rule 404(b) about his own sexual abuse by Michael.[28]

         After additional children came forward, alleging they had been sexually abused by Michael, the Church organized a support group meeting for their families in March 2013 in which some of the plaintiff families participated. UD-1 attended this support meeting, after which he reported on the meeting to Stake President Grow. The plaintiffs allege UD-1 continued to keep President Grow informed of what he learned from the plaintiff families and of the conversations he had with John Doe-5's lawyer. The appendix record contains an email from UD-1 to Grow that begins, "As promised here is what we [he and John Doe-5] talked about last night."[29]

         On September 16, 2013, the plaintiffs filed their complaint in the circuit court against the Church defendants and the Jensens (Chris, Sandralee, and Michael) alleging civil conspiracy, fraud, intentional infliction of emotional distress, and various negligence claims; they also asserted an assault and a battery claim solely against Michael Jensen. On February 3, 2014, the plaintiffs filed an amended complaint naming UD-1 as a defendant on their claim of civil conspiracy.

         Following extensive discovery, multiple motions for summary judgment were filed, as well as numerous motions in limine. During a status conference held on August 31, 2015, the circuit judge, expressing his concern regarding the impact that a six-week trial would have on his docket, identified a need to find ways to shorten the trial's duration.

         On December 4, 2015, prior to its in limine rulings, the circuit court entered an order granting UD-1's motion for summary judgment, finding the plaintiffs could not prove the elements of conspiracy against him. Through its order entered on December 30, 2015, the circuit court granted several of the defendants' motions in limine, effectively eliminating much of the plaintiffs' evidence offered in opposition to the defendants' motions for summary judgment on the conspiracy claim.[30] Although the circuit court had previously indicated its intent to allow the plaintiffs' conspiracy claim against the remaining defendants to go to trial, the following day, December 31, 2015, the court entered an order granting summary judgment in favor of the remaining defendants on that claim. After observing in this order that it had "eliminated much of the circumstantial evidence that Plaintiffs intended to use in support of their conspiracy claim, " the circuit court found the plaintiffs had no direct evidence of a conspiracy and no evidence of a "concerted action by the alleged conspirators, " a "common plan or mutual agreement by the alleged conspirators, " or any evidence that "the alleged conspirators combined and agreed to violate a duty owed to the Plaintiffs."

         On January 11, 2016, the circuit court entered an order of final judgment pursuant to West Virginia Rule of Civil Procedure 54(b) concerning its summary judgment orders. The circuit court ruled these orders were final because they entirely disposed of all claims against UD-1 and all conspiracy claims against all defendants. No party objected to the entry of this order. This appeal followed.

          II. Standard of Review

         The plaintiffs have appealed two summary judgment orders. Our review is plenary. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo."). To the extent other standards apply to our review of the circuit court's Rule 54(b) certification and its evidentiary rulings, those standards are set forth below.

         III. Discussion

         The circuit court certified its summary judgment orders under West Virginia Rule of Civil Procedure 54(b). Following our consideration of the Rule 54(b) certification, we will then address the circuit court's in limine rulings and conclude with our review of the summary judgment decisions.

         A. Rule 54(b) certification

         In its Rule 54(b)[31] order, the circuit court found that its summary judgment orders had disposed of the only claim (conspiracy) asserted against UD-1, as well as the conspiracy claim against all other defendants, and that there was no just reason for delaying entry of final judgment with respect to those claims. As the circuit court explained:

(a) appellate review of those orders and any necessary evidentiary rulings will promote judicial efficiency by maximizing the chance that this lengthy and complex case is tried only once, with the benefit of definitive rulings on the admissibility of certain evidence and the viability of certain claims; and (b) the special nature of this case, where sexually abused children will be called upon to testify, strongly supports appellate review of these matters before trial. Testifying, and reliving their abuse, is re-traumatizing, and whatever appropriate steps are available should be taken to ensure that this happens only once.

         All parties assented to the circuit court's Rule 54(b) ruling as being proper and meeting the criteria of Rule 54(b) at the time it was made. Notwithstanding the defendants' agreement to entry of the Rule 54(b) order below, and the fact they did not file a motion to dismiss this appeal or cross-assign as error the circuit court's Rule 54(b) certification, they now argue that this interlocutory appeal under Rule 54(b) is improper because civil conspiracy merely extends liability for an underlying tort, which makes it inseparable from the merits of the underlying torts that remain pending below.[32] For the reasons set forth below, we disagree.

         Our review of the circuit court's Rule 54(b) certification is guided by the following test:

In reviewing a circuit court's certification under Rule 54(b) of the West Virginia Rules of Civil Procedure, this Court applies a two-prong test. First, we scrutinize de novo the circuit court's evaluation of the interrelationship of the claims, in order to decide whether the circuit court completely disposed of one or more claims, which is a prerequisite for an appeal under this rule. As to the second prong of the inquiry under the rule-whether there is any just reason for delay-this Court accords the circuit court's determination considerably more deference than its first-prong determination. The circuit court's assessment that there is "no just reason for delay" will not be disturbed unless the circuit court's conclusion was clearly unreasonable, because the task of balancing the contending factors is peculiarly one for the trial judge, who can explore all the facets of a case.

Syl. Pt. 1, Province v. Province, 196 W.Va. 473, 473 S.E.2d 894 (1996).

         Regarding the first Province prong, the circuit court found that its summary judgment rulings had disposed of the plaintiffs' conspiracy claim against UD-1, which was the only cause of action asserted against him, and their conspiracy claim against all other defendants. We have previously recognized conspiracy as a separate claim. As we stated in Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009), "'[t[he law of this State recognizes a cause of action sounding in civil conspiracy.'" Id. at 56, 689 S.E.2d at 268 (quoting Kessel v. Leavitt, 204 W.Va. 95, 128, 511 S.E.2d 720, 753 (1998)). The fact that a civil conspiracy claim requires an underlying tort or harm resulting from the conspiracy does not make it any less a claim that can be disposed of separately from the remaining causes of action.

         The defendants assert that civil conspiracy is inseparable from the merits of the underlying torts, is based on the same facts, and seeks the same recovery. While the same facts might be relevant to the conspiracy claim, as well as the negligent and intentional tort claims that remain pending below, this does not preclude the circuit court's Rule 54(b) certification of its final ruling on the plaintiffs' conspiracy claim. Indeed,

"[w]hen the mischief is accomplished, the conspiracy becomes important, as it affects that means and measure of redress; for the party wronged may look beyond the actual participants in committing the injury, and join with them as defendants all who conspired to accomplish it. The significance of the conspiracy consists, therefore, in this: That it gives the person injured a remedy against parties not otherwise connected with the wrong. It is also significant as constituting [a] matter of aggravation, and as such tending to increase the plaintiff's recovery."

Gosden v. Louis, 687 N.E.2d 481, 497 (Ohio Ct. App. 1996) (citation omitted). Further, a conspiracy claim "enlarge[s] the pool of potential defendants from whom a plaintiff may recover damages and, possibly, an increase in the amount of those damages[.]" Id.at 498; see also Premier Therapy, L.L.C. v. Childs, Nos. 14 CO 0048, 15 CO 0028, ___ N.E.3d___, 2016 WL 6966387 (Ohio Ct. App. Nov. 18, 2016) (observing that where additional damages are awarded on conspiracy claim there must be evidence to support damages award). In the case at bar, the plaintiffs argue that "conduct that establishes conspiracy liability, but not separate tort liability, could cause harms not recoverable on the separate tort claims."

         We have previously recognized the possibility of separate damages for conspiracy. In Slack v. Kanawha County Housing and Redevelopment Authority, 188 W.Va. 144, 423 S.E.2d 547 (1992), after ordering the reinstatement of the verdict for the plaintiff's emotional injuries awarded on her invasion of privacy claim, we addressed the errors the plaintiff asserted concerning her conspiracy claim. In Slack, "the only damages the plaintiff proved . . . were damages for emotional distress and mental anguish." Id. at 155, 423 S.E.2d at 558. We recognized the "identicality of the damage claim asserted under the civil conspiracy theory, " but declined to address "whether, from a substantive standpoint, there was sufficient evidence to prove such a theory." Id. at 156, 423 S.E.2d at 559. On remand, we instructed that "the plaintiff is free to develop the claim for civil conspiracy, but unless the damages are separate and distinct from those already obtained on the invasion of privacy verdict, there can be no recovery under Harless."[33] Slack, 188 W.Va. at 156, 423 S.E.2d at 559; see also Wells v. Smith, 171 W.Va. 97, 105-06, 297 S.E.2d 872, 880 (1982) (overruled on other grounds in Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991) (finding that had "jury been properly instructed on the appellants' conspiracy theory they may well have returned a verdict for compensatory damages against Settimio by virtue of the evidence of his participation in the conspiracy").

          While the deference this Court affords to a circuit court's Rule 54(b) certification under the first prong of Province is clear, [34] we afford even greater deference to the circuit court's decision under the second prong of Province. As indicated above, the circuit court found no just reason for delay because appellate review of its orders would "promote judicial efficiency by maximizing the chance that this lengthy and complex case is tried only once, with the benefit of definitive rulings on the admissibility of certain evidence and the viability of certain claims[.]" These findings "will not be disturbed unless the circuit court's conclusion was clearly unreasonable[.]" Province, 196 W.Va. at 475, 473 S.E.2d at 896, syl. pt. 1, in part.

         Under the authority set forth above, and upon giving the requisite deference to the circuit court's Rule 54(b) ruling, we conclude there was no abuse of discretion in its determination that the summary judgment rulings completely disposed of the plaintiffs' conspiracy claims. Further, we give substantial deference to and concur in the circuit court's conclusion that "the special nature of this case, where sexually abused children will be called upon to testify, strongly supports appellate review of these matters before trial."[35] Accordingly, we find no abuse of discretion in the circuit court's Rule 54(b) certification, and we will exercise our appellate jurisdiction in this matter.

         B. In limine rulings

Having upheld the circuit court's Rule 54(b) certification, we observe that
"'[w]here an appeal is properly obtained from an appealable decree either final or interlocutory, such appeal will bring with it for review all preceding non-appealable decrees or orders, from which have arisen any of the errors complained of in the decree appealed from, no matter how long they may have been rendered before the appeal was taken.' Point 2, syllabus, Lloyd v. Kyle, 26 W.Va. 534');">26 W.Va. 534');">26 W.Va. 534');">26 W.Va. 534 [1885]." Syllabus point 5, State ex rel. Davis v. Iman Mining Co., 144 W.Va. 46, 106 S.E.2d 97 (1958).

Syl. Pt. 6, Riffe v. Armstrong, 197 W.Va. 626, 477 S.E.2d 535 (1996). Necessarily intertwined with the circuit court's summary judgment rulings entered in favor of the Church defendants and the Jensen parents are its antecedent in limine rulings.[36]

         Notwithstanding our holding in Riffe, the Church defendants strongly urge this Court to refuse consideration of the circuit court's in limine rulings. Citing our "finality rule, " they argue that the plaintiffs cannot demonstrate that the in limine rulings "were so integral to the conspiracy order as to 'give rise' to the purported errors contained therein"; that "[n]othing in the circuit court's expressed reasons for granting summary judgment suggests that the outcome would have been different if some or all of the excluded evidence had not been excluded"; and that "[t]here is no meaningful way for this Court to determine that any excluded evidence, much less which evidence, resulted in the alleged error in the conspiracy ruling." The Jensen parents take a somewhat different stance. They first argue that this Court should not review the in limine rulings, but then acknowledge that the instant appeal is "tied up with the evidentiary rulings that have been decided, " adding that any review of those rulings should be limited "to the extent they impact the outcome of the summary judgment ruling on the conspiracy cause of action."

         Rejecting the notion that the in limine rulings are distinct from the summary judgment rulings, the plaintiffs maintain that this Court can properly review these evidentiary rulings under Riffe. They highlight the circuit court's statement in its summary judgment order that it had "eliminated much of the circumstantial evidence that Plaintiffs intended to use in support of their conspiracy claim" through its in limine rulings. Although the defendants argue that any alleged error in the summary judgment ruling did not arise from the prior in limine rulings, we find that the circuit judge's comments made during the Rule 54(b) hearing indicate otherwise: "I don't know how you get around the motions in limine . . . . aren't you going to have to look at those as part of the appeal? . . . I don't know how you cut that out of it."[37] It is clear to this Court, as well, that the in limine rulings and the summary judgment rulings are inextricably entwined.

         Typically, a motion in limine is "a pre-trial request . . . that the court not permit certain anticipated evidence to be admitted in the trial and not be seen or heard by the jury."[38]While the circuit court's in limine rulings may have been made, in part, for such purposes, it is equally clear that these in limine rulings allowed the circuit court to evade review of that evidence and the attendant duty to draw all reasonable inferences therefrom, in the light most favorable to the nonmoving party, as is required of a court in ruling upon a motion for summary judgment.[39] Other courts have cautioned against proceeding in such a manner.

         In C & E Services, Inc. v. Ashland Inc., 539 F.Supp.2d 316 (D. D.C. 2008), the court found that "a motion in limine should not be used to resolve factual disputes or weigh evidence[;]" rather, such should be accomplished through "a motion for summary judgment, with its accompanying and crucial procedural safeguards." Id. at 323. Similarly, in Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353 (7th Cir. 1996), the court determined that the sufficiency of evidence concerning lost profits was for summary judgment or judgment as matter of law, not a motion in limine. Id. at 1363; see also Meyer Intellectual Prop.'s. Ltd. v. Bodum, Inc., 690 F.3d 1354, 1378 (Fed. Cir. 2012) (observing that "motion in limine is not the appropriate vehicle for weighing the sufficiency of the evidence"); Williams v. Johnson, 747 F.Supp.2d 10, 14 (D. D.C. 2010) ("Motions in limine are designed to narrow the evidentiary issues at trial. *** In light of their limited purpose, motions in limine 'should not be used to resolve factual disputes, ' which remain the ...


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