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Belcher v. Dynamic Energy, Inc.

Supreme Court of West Virginia

April 5, 2018

CLIFFORD BELCHER AND RACHEL BELCHER, INDIVIDUALLY AND AS NEXT FRIENDS OR PARENTS OF MINOR J.A.B., ET AL., Plaintiffs Below, Petitioners,
v.
DYNAMIC ENERGY, INC., ANDMECHEL BLUESTONE, INC., Defendants Below, Respondents. ANDDYNAMIC ENERGY, INC., ANDMECHEL BLUESTONE, INC., Defendants Below, Petitioners,
v.
CLIFFORD BELCHER AND RACHEL BELCHER, INDIVIDUALLY AND AS NEXT FRIENDS OR PARENTS OF MINOR J.A.B., ET AL., Plaintiffs Below, Respondents.

          Submitted: January 24, 2018

          Appeal from the Circuit Court of Wyoming County Honorable Warren R. McGraw, Chief Judge Civil Action Nos. 14-C-67, 14-C-68, 14-C-69, 14-C-70, 14-C-71, 14-C-72, 14-C-73, 14-C-74, 14-C-75, 14-C-100, 14-C-101, 14-C-102, 14-C-103, 14-C-104, 14-C-105, and 14-C-174

          Kevin W. Thompson David R. Barney, Jr. Thompson Barney Charleston, West Virginia Attorneys for the Plaintiffs.

          James M. Brown Pullin, Fowler, Flanagan, Brown & Poe, PLLC Beckley, West Virginia Billy R. Shelton Jones, Walters, Turner & Shelton Lexington, Kentucky Attorneys for the Defendants.

         SYLLABUS BY THE COURT

         1. "This Court reviews the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syllabus point 1, Burke-Parsons-Bowlby Corp. v. Rice, 230 W.Va. 105, 736 S.E.2d 338 (2012), superseded by statute on other grounds as stated in Martinez v. Asplundh Tree Expert Co., 239 W.Va. 612, 803 S.E.2d 582 (2017).

         2. "Where a [party] moves to exclude members of the public from observing his jury trial, the ultimate question is whether, if the trial is left open, there is a clear likelihood that there will be irreparable damage to the [party's] right to a fair trial." Syllabus point 7, State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982).

         3. "In a . . . trial, where a non-party witness . . . fails to testify, a party is not entitled to an instruction allowing the jury to infer that the testimony would be favorable or unfavorable to either [party]." Syllabus point 3, in part, State v. Herbert, 234 W.Va. 576, 767 S.E.2d 471 (2014).

         4. "The official purposes of voir dire [are] to elicit information which will establish a basis for challenges for cause and to acquire information that will afford the parties an intelligent exercise of peremptory challenges." Syllabus point 2, in part, Michael ex rel. Estate of Michael v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994).

         5. "'A motion to set aside a verdict and grant a new trial on the ground that a juror subject to challenge for cause was a member of the jury which returned it, must be supported by proof that the juror was disqualified, that movant was diligent in his efforts to ascertain the disqualification and that prejudice or injustice resulted from the fact that said juror participated in finding and returning the verdict. Such facts must be established by proof submitted to the court in support of the motion, and not from evidence adduced before the jury upon the trial.' Syl., Watkins v. The Baltimore and Ohio Railroad Company et al., 130 W.Va. 268[, 43 S.E.2d 219 (1947), overruled on other grounds by Syl. pt. 3, Proudfoot v. Dan's Marine Service, Inc., 210 W.Va. 498, 558 S.E.2d 298 (2001)]." Syllabus point 2, State v. Dean, 134 W.Va. 257, 58 S.E.2d 860 (1950).

         6. "'Where there is a recognized statutory or common law basis for disqualification of a juror, a party must during voir dire avail himself of the opportunity to ask such disqualifying questions. Otherwise the party may be deemed not to have exercised reasonable diligence to ascertain the disqualification.' Syl. Pt. 8, State v. Bongalis, 180 W.Va. 584, 378 S.E.2d 449 (1989)." Syllabus point 8, Arnoldt v. Ashland Oil, Inc., 186 W.Va. 394, 412 S.E.2d 795 (1991).

         7. "'It is the peculiar and exclusive province of a jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses regarding them is conflicting and the finding of the jury upon such facts will not ordinarily be disturbed.' Syl. pt. 2, Skeen v. C and G Corp., 155 W.Va. 547, 185 S.E.2d 493 (1971)." Syllabus point 3, Harnish v. Corra, 237 W.Va. 609, 788 S.E.2d 750 (2016).

         8. "An appellate court will not set aside the verdict of a jury, founded on conflicting testimony and approved by the trial court, unless the verdict is against the plain preponderance of the evidence." Syllabus point 2, Stephens v. Bartlett, 118 W.Va. 421, 191 S.E. 550 (1937).

         9. "'In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.' Syl. pt. 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963)." Syllabus point 4, Harnish v. Corra, 237 W.Va. 609, 788 S.E.2d 750 (2016).

         10. "Unless an absolute right to injunctive relief is conferred by statute, the power to grant or refuse to modify, continue, or dissolve a temporary or a permanent injunction, whether preventative or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and the circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion." Syllabus Point 11, Stuart v. Lake Washington Realty Corp., 141 W.Va. 627, 92 S.E.2d 891 (1956).

         11. "Where the issue on an appeal from the circuit court is clearlya question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

         12. "Where the language of a statute is plain and unambiguous, there is no basis for application of rules of statutory construction; but courts must apply the statute according to the legislative intent plainly expressed therein." Syllabus point 1, Dunlap v. State Compensation Director, 149 W.Va. 266, 140 S.E.2d 448 (1965).

         13. Pursuant to W.Va. Code § 22-3-24(h) (2006) (Repl. Vol. 2014), an operator's obligation to provide replacement water service in accordance with W.Va. Code §§ 22-3-24(b) and (d) ends when the West Virginia Department of Environmental Protection authorizes the discontinuation thereof.

          DAVIS JUSTICE

         The cases sub judice, which involve the same parties, have been consolidated by the Court for consideration and decision. In Docket Number 17-0168, the petitioners herein and plaintiffs below, Clifford Belcher, Rachel Belcher, individually and as next friends or parents of Minor J.A.B., et al. (collectively, "the Plaintiffs"), appeal from an order entered January 20, 2017, by the Circuit Court of Wyoming County. By that order, the court refused the Plaintiffs' motion to set aside jury verdicts and for a new trial and upheld jury verdicts rendered in favor of the respondents herein and defendants below, Dynamic Energy, Inc., and Mechel Bluestone, Inc. (collectively, "Dynamic Energy"). On appeal to this Court, the Plaintiffs raise the following assignments of error: (1) jury interference and witness intimidation; (2) disqualifying relationship between seated alternate juror and corporate representative of defendant coal company; and (3) defense verdicts against the weight of the evidence. Upon a review of the parties' arguments, the record designated for appellate consideration, and the pertinent authorities, we find no error and, therefore, affirm the circuit court's ruling.

         In Docket Number 17-0169, Dynamic Energy appeals from a different order entered January 20, 2017, by the Circuit Court of Wyoming County. By that order, the circuit court refused to dissolve a preliminary injunction that requires Dynamic Energy to provide replacement water to the Plaintiffs pursuant to W.Va. Code § 22-3-24 (2006) (Repl. Vol. 2014). On appeal to this Court, Dynamic Energy contends that the circuit court erred because the preliminary injunction should have been dissolved. Upon a review of the parties' arguments, the record designated for appellate consideration, and the pertinent authorities, we agree that the subject preliminary injunction should have been dissolved. Accordingly, we reverse the circuit court's ruling. However, during oral argument of these matters, the parties informed the Court that Dynamic Energy, of its own volition, stopped providing the replacement water required by the preliminary injunction in direct violation of the circuit court's commands. Therefore, we remand this case to the circuit court for the parties to raise the issue of Dynamic Energy's noncompliance with the circuit court's preliminary injunction during the pendency of the instant appeal.

         I.

         FACTUAL AND PROCEDURAL HISTORY

         The following is a brief summary of the facts giving rise to the underlying litigation and the circuit court's rulings from which the parties have appealed to this Court. Additional facts will be set forth in relation to the parties' arguments in Section III of the opinion, infra.

         In May 2014, multiple individual plaintiffs filed suit against the defendant coal companies, i.e., Dynamic Energy, Inc., and Mechel Bluestone, Inc. ("Dynamic Energy"), alleging that the defendants' mining activities had contaminated the plaintiffs' well water when they discovered the presence of lead and arsenic in their water. These sixteen individual suits eventually were consolidated into the litigation filed by the Belcher plaintiffs ("the Plaintiffs"). The Plaintiffs asserted claims against Dynamic Energy for property damage; private and public nuisance; trespass; negligent infliction of emotional distress; negligence; violations of the West Virginia Surface Coal Mining and Reclamation Act, W.Va. § 22-3-1 et seq.; and punitive damages. A jury trial eventually was held in the Circuit Court of Wyoming County during April and May 2016, and the jury returned verdicts for Dynamic Energy on May 5, 2016. The Plaintiffs filed a motion to set aside the verdicts and for a new trial, which the circuit court refused by order entered January 20, 2017. From this adverse ruling, the Plaintiffs appeal to this Court in Docket Number 17-0168.

         During the course of the underlying litigation, the Plaintiffs invoked the water replacement provisions of the West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code § 22-3-1 et seq. By order entered December 2, 2014, the circuit court granted the requested relief and issued a preliminary injunction requiring Dynamic Energyto provide replacement water until liability for the well water contamination had been established. Following the jury's defense verdicts, Dynamic Energy asked the circuit court to dissolve the injunction. By order entered January 20, 2017, the circuit court refused to dissolve the injunction while the matter was pending on appeal. From this adverse ruling, Dynamic Energy appeals to this Court in Docket Number 17-0169.

         II.

         STANDARD OF REVIEW

         Given the numerous errors assigned by the parties and the different standards of review applicable thereto, we will set forth the governing standards of review in our discussion of each of the appeals consolidated for consideration and decision herein.

         III.

         DISCUSSION

         The two appeals at issue herein pertain to orders of the circuit court that address different portions of the proceedings below. Docket Number 17-0168 concerns the Plaintiffs' appeal from the circuit court's order upholding the jury's verdict in the case, while Docket Number 17-0169 relates to Dynamic Energy's appeal from the circuit court's order refusing to dissolve the preliminary injunction, which the court issued before the underlying trial, following the jury's verdicts in favor of Dynamic Energy. We will address each appeal in turn.

         A. Docket Number 17-0168 - Plaintiffs' Appeal

         In Docket Number 17-0168, the Plaintiffs appeal from the circuit court's order denying their motion to set aside verdicts and for a new trial. On appeal to this Court, the Plaintiffs raise assignments of error alleging (1) jury interference and witness intimidation; (2) disqualifying relationship between seated alternate juror and corporate representative of defendant coal company; and (3) defense verdicts against the weight of the evidence.

         1. Standard of review.

         The circuit court rendered its January 20, 2017, order denying the Plaintiffs' motion to set aside verdicts and for a new trial following the Plaintiffs' Rule 59 motion requesting such relief. Pursuant ...


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