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Farmerie v. Monongalia County Commission

Supreme Court of West Virginia

April 15, 2019

Gregory S. Farmerie, individually, and as Administrator of the Estate of Christie L. Cathers, Plaintiff Below, Petitioner
v.
Monongalia County Commission, Defendant Below, Respondent

          Monongalia County 16-C-9

          MEMORANDUM DECISION

         Petitioner and plaintiff below Gregory S. Farmerie, individually, and as Administrator of the Estate of Christie L. Cathers, by counsel Scott S. Segal, Jason P. Foster, and C. Edward Amos, II, appeals the March 23, 2018, order entered in the Circuit Court of Monongalia County that denied his motion for a new trial following a unanimous jury verdict that attributed more than fifty percent of the fault for petitioner's decedent's death to the decedent. Respondent and defendant below Monongalia County Commission, by counsel Cy A. Hill, Jr., Allison M. Subacz, and Elizabeth A. Moore, filed a response in support of the circuit court's order. Petitioner submitted a reply.

         This 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 order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On June 5, 2015, petitioner's decedent was shot and killed by a Monongalia County sheriff's deputy after she was pursued in a car chase. Petitioner filed a complaint against respondent, among others, in the Circuit Court of Monongalia County alleging various claims of negligence, gross negligence, wrongful death, negligent hiring, training, retention and supervision, and vicarious liability.[1]

         During a pre-trial conference that occurred on October 20, 2017, the circuit court advised counsel that it has been the court's practice to allow alternate jurors in civil cases to deliberate and vote with the regular jury panel and that such practice was permissible, in the court's discretion, under West Virginia Rule of Civil Procedure 47.[2] The court specifically advised,

If you-either counsel wishes to challenge that. [sic] And if I'm wrong, just point it out and I'll change my practice. I'm not that prideful that just because that's what I think the law is, or whatever, I'm not willing to change. But do that in a timely fashion, you know, before the end of the trial.

         In response, counsel for petitioner stated, "I only have one question. I understand that the [c]ourt's intent is to allow two additional jurors to go into the jury room. . . . My question is if no one gets excused, is it the [c]ourt's intent to require an eight-person verdict?" The court answered in the affirmative and explained that "[i]t s[t]ill has to be unanimous and all - and the alternates would deliberate and vote along with the regular panel." Petitioner's counsel replied, "I understand."

         The case was tried before six jurors and the two alternate jurors beginning on November 6, 2017. On November 13, 2017, the eight-member jury found the decedent to be 87% at fault, respondent 10% at fault, and a third defendant, the Monongalia County Homeland Security Emergency Management Agency MECCA 911, 3% at fault. All eight jurors were individually polled and each stated that the verdict was unanimous.

         Petitioner timely filed a motion for a new trial on the ground that the circuit court did not properly dismiss the two alternate jurors and improperly allowed eight jurors to deliberate and act as regular jurors. The circuit court denied petitioner's motion by order entered on March 28, 2018, reasoning, as it did previously at the pre-trial conference, that the current version of Rule 47 affords the court "considerable judicial discretion . . . to determine whether any alternate juror or jurors will formally deliberate and assist in rendering a verdict." According to the circuit court, prior to 1998, Rule 47(b) provided that "[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict." However, the court's order states, the 1998 amendments to the rule deleted this reference to the discharge of alternate jurors after the jury retires to the jury room and Rule 47(c) now states that "[a]lternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors." The court also relied on the specific language contained in the present Rule 47(b): "Unless the court directs that the jury shall consist of a greater number . . . ." The circuit court thus found that Rule 47, as amended, no longer requires the dismissal of alternate jurors before deliberations.

         In its March 28, 2018, order, the circuit court further determined that petitioner's counsel failed to object when the court declared that it intended to allow alternate jurors to participate in deliberation and that counsel "exhibited a full understanding" of the court's intention on the matter. The court concluded that counsel "effectively waived" any objection to the court's practice of allowing alternate jurors to deliberate by failing to object at the pre-trial conference, during the trial itself, or at any time before the final verdict was rendered. Finally, the circuit court rejected petitioner's claim that it was plain error to allow the alternate jurors to deliberate and render the verdict. This appeal followed.

         We review a circuit court's order denying a motion for a new trial under the following standard:

As a general proposition, we review a circuit court's rulings on a motion for a new trial under an abuse of discretion standard. In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994). . . . Thus, in reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review 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.

Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995).

         On appeal, petitioner's sole assignment of error is that the circuit court erred by allowing two alternate jurors to deliberate with the regular jury panel. Petitioner argues that the circuit court violated West Virginia Code § 56-6-11(a), which states that, unless a party waives the right to a trial by jury, "in any civil trial a jury shall consist of six members . . . ." Id., in relevant part. Additionally, petitioner argues, the circuit court's interpretation of Rule ...


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