Rex Donahue v. Mammoth Restoration and Cleaning and Allstate Insurance Company ( 2022 )


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  •       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
    January 2022 Term                       FILED
    _______________                    February 18, 2022
    released at 3:00 p.m.
    No. 20-0343                       EDYTHE NASH GAISER, CLERK
    SUPREME COURT OF APPEALS
    _______________                          OF WEST VIRGINIA
    REX DONAHUE,
    Defendant Below and Third-Party
    Plaintiff Below, Petitioner
    v.
    MAMMOTH RESTORATION and CLEANING,
    Plaintiff Below, Respondent
    and
    ALLSTATE INSURANCE COMPANY,
    Third-Party Defendant Below,
    Respondent
    ________________________________________________________
    Appeal from the Circuit Court of Cabell County
    The Honorable Alfred E. Ferguson, Judge
    Civil Action No. 19-C-289
    AFFIRMED
    ________________________________________________________
    Submitted: January 11, 2022
    Filed: February 18, 2022
    Steven T. Cook, Esq.                           Evan R. Kime, Esq.
    Cook Law Offices, PLLC                         Jackson Kelly PLLC
    Barboursville, West Virginia                   Charleston, West Virginia
    Counsel for Petitioner                         Counsel for Respondent
    Allstate Insurance Company
    CHIEF JUSTICE HUTCHISON delivered the Opinion of the Court.
    1
    1
    Pursuant to an administrative order entered by this Court on February 7,
    2022, the Honorable Alan D. Moats, Judge of the Nineteenth Judicial Circuit, was
    assigned to sit as a member of the Supreme Court of Appeals of West Virginia
    commencing February 7, 2022, following the resignation of former Justice Evan
    Jenkins; however, Justice Moats did not participate in this decision. And although
    former Justice Jenkins heard oral argument in this case, he did not participate in this
    decision.
    SYLLABUS BY THE COURT
    1.     “Where the issue of the enforceability of a settlement agreement
    requires the lower court to make findings of fact and apply contractual or other legal
    principles, this Court will review its order and the ultimate disposition under an abuse of
    discretion standard, its underlying factual findings under a clearly erroneous standard, and
    questions of law pursuant to a de novo review.” Syl. Pt. 2, Triple 7 Commodities, Inc. v.
    High Country Mining, Inc., 
    245 W. Va. 63
    , 
    857 S.E.2d 403
     (2021).
    2.     “A trial court is vested with a sound discretion in granting or refusing
    leave to amend pleadings in civil actions. Leave to amend should be freely given when
    justice so requires, but the action of a trial court in refusing to grant leave to amend a
    pleading will not be regarded as reversible error in the absence of a showing of an abuse
    of the trial court’s discretion in ruling upon a motion for leave to amend.” Syl. Pt. 6, Perdue
    v. S.J. Groves & Sons Co., 
    152 W. Va. 222
    , 
    161 S.E.2d 250
     (1968).
    3.     “‘A meeting of the minds of the parties is a sine qua non of all
    contracts.’ Syl. pt. 1, Martin v. Ewing, 
    112 W.Va. 332
    , 
    164 S.E. 859
     (1932).” Syl. Pt. 1,
    Burdette v. Burdette Realty Improvement, Inc., 
    214 W.Va. 448
    , 
    590 S.E.2d 641
     (2003).
    4.     “‘The purpose of the words “and leave [to amend] shall be freely
    given when justice so requires” in Rule 15(a) W.Va.R.Civ.P., is to secure an adjudication
    on the merits of the controversy as would be secured under identical factual situations in
    the absence of procedural impediments; therefore, motions to amend should always be
    i
    granted under Rule 15 when: (1) the amendment permits the presentation of the merits of
    the action; (2) the adverse party is not prejudiced by the sudden assertion of the subject of
    the amendment; and (3) the adverse party can be given ample opportunity to meet the
    issue.’ Syllabus Point 3, Rosier v. Garron, Inc., 
    156 W.Va. 861
    , 
    199 S.E.2d 50
     (1973).”
    Syl. Pt. 5, State ex rel. Vedder v. Zakaib, 
    217 W. Va. 528
    , 
    618 S.E.2d 537
     (2005).
    ii
    HUTCHISON, Chief Justice:
    Petitioner Rex Donahue appeals an order from the Circuit Court of Cabell
    County enforcing a settlement agreement between petitioner and his insurer, Respondent
    Allstate Company (“Allstate”), relating to water damage occurring at certain real property
    owned by petitioner. The order also denied petitioner’s motion to amend his complaint or,
    alternatively, allow the filing of a new complaint so as to allege claims of breach of contract
    and insurance bad faith against Allstate. Petitioner contends that while he agreed to dismiss
    his claim against Allstate regarding the payment of a debt petitioner owed for water
    mitigation services performed as a result of the water damage, there was no meeting of the
    minds regarding petitioner’s agreement to dismiss any claims against Allstate for denying
    coverage for the damage sustained and insurance bad faith.
    Upon review of the parties’ briefs, appendix record, oral argument, and
    applicable legal authority, and for the reasons stated below, we affirm the circuit court’s
    order enforcing the settlement agreement between petitioner and Allstate and denying
    petitioner’s request to amend his complaint or allow the filing of a new complaint.
    I. Factual and Procedural Background
    In January of 2018, petitioner made a claim with Allstate on a Landlord’s
    Package Policy for damages to rental property he owned in Ona, West Virginia, after
    several water pipes froze and then burst. Allstate denied the claim on the ground that the
    policy included an exclusion for property damage caused by a failure to maintain adequate
    1
    heat in the residence. 2 On July 24, 2018, Mammoth Restoration and Cleaning
    (“Mammoth”) filed a civil complaint against petitioner in the Magistrate Court of Cabell
    County seeking $6,301.11 in payment for water mitigation services it performed at the
    subject property due to the burst pipes.
    Petitioner thereafter filed a Third-Party Complaint against Allstate alleging
    that the subject property was insured by Allstate; that it was Allstate that selected
    Mammoth to perform the water mitigation services; that Allstate had denied coverage on
    the ground that “the electric was off”; that petitioner “has non-party witnesses to verify the
    electric was on”; and that Allstate “has a good faith basis to cover the cost” of Mammoth’s
    services. Petitioner requested that Allstate be held responsible for the payment of
    Mammoth’s services and for his attorney fees and costs.
    3
    On June 18, 2019, Allstate removed the case from magistrate court to the
    circuit court and filed its answer denying the principal allegations of the Third-Party
    4
    Complaint.
    Allstate represents, and petitioner does not dispute, that the subject property was
    2
    unoccupied at the time the water pipes burst.
    At the hearing on Allstate’s motion to enforce the settlement, counsel for petitioner
    3
    stated that when Mammoth arrived at the subject property to perform the water mitigation
    services, petitioner’s son was on site and “signed a document . . . that said if Allstate doesn’t
    pay [for Mammoth’s services], that [petitioner was] liable under the contract.”
    West Virginia Code § 50-4-8 (2018) provides, in pertinent part, that “[a]t any time
    4
    before trial in a civil action involving $5,000 or more, any party may, upon payment of the
    Continued . . .
    2
    On June 28, 2019, following negotiations between counsel for petitioner,
    Mammoth, and Allstate, counsel for Allstate circulated the following e-mail, the stated
    purpose of which was to memorialize the terms of a three-way agreement concerning
    petitioner’s and Mammoth’s respective claims:
    We have a three[-]way agreement to settle all disputes and
    claims between Plaintiff Mammoth, Defendant/Third-Party
    Plaintiff Rex Donahue, and Third-Party Defendant Allstate
    Insurance Company.
    The terms are as we discussed in recent emails:
    1. Rex Donahue will release all claims against Allstate arising out
    of the subject water loss claim made in January 2018 on the
    Landlord’s Package policy with Allstate covering 105 Iroquois
    Trail, Ona, WV 25545. Rex Donahue will dismiss all claims
    against Allstate in the civil action between the parties now
    pending in the Circuit Court of Cabell County.
    2. In return, Allstate will satisfy the claim of Plaintiff Mammoth
    Construction Company 5 against Rex Donahue, by paying
    Mammoth Construction the sum of $5,000.00.
    3. This will resolve all claims of the parties to the civil litigation
    referenced above. A jointly endorsed order of dismissal with
    prejudice of all claims will be submitted to the Court.
    Please confirm.
    (Footnote and emphasis added).
    circuit court filing fee, cause such action to be removed to the circuit court. . . . The matter
    shall then be heard by the circuit court.”
    It is unclear why Mammoth is identified as “Mammoth Construction Company”
    5
    rather than “Mammoth Restoration and Cleaning” as the distinction is not acknowledged
    by either party.
    3
    In e-mails responding to Allstate’s June 28, 2019, e-mail setting forth the
    settlement terms, counsel for Mammoth replied, “Confirm.” More importantly, counsel for
    petitioner replied, “Confirmed. Please circulate the Order and I will get my client[’]s
    signature on the same (Rex Donahue).” Although the June 28, 2019, e-mail from counsel
    6
    for Allstate referenced “the terms . . . as we discussed in recent emails[,]” the appendix
    record includes only one such e-mail, which is dated June 27, 2019, from counsel for
    petitioner to counsel for Allstate. That e-mail states:
    I spoke with Rex Donahue about All-[S]tate paying the
    [Mammoth] Restoration claim (and/or whatever reduced
    settlement amount) and Rex Donahue would release All-State
    from the 3rd party complaint and bad faith claim surrounding
    this lawsuit and he AGREED TO THE SAME. I would request
    the release or other document as soon as possible so that I can
    get Rex Donahue to sign so we can resolve this case. It is my
    understanding Rex Don[a]hue will [b]e paying $0.00 to
    [Mammoth] under the existing suit and will be dismissed in
    light of All-State’s payment of the same.
    Also on June 27, 2019, counsel for petitioner left counsel for Allstate the following
    voicemail message that was transcribed and included in the appendix record:
    This is attorney Steve Cook. I spoke with Rex Donahue and he
    agreed with that [sic] to get Mon Mouth [Mammoth] out of that
    if you, if Allstate’s paying the claim and will dismiss and drop
    any suit against Allstate involving that claim on the home and
    the lost property. If you can get that out or get that worked out
    Though it appears that counsel for petitioner e-mailed his response confirming the
    6
    settlement terms only to counsel for Mammoth, it is reasonably presumed that counsel for
    petitioner did so inadvertently, as petitioner does not allege otherwise. Indeed, because
    counsel for Allstate was tasked with drafting the order and settlement agreements, it is clear
    that when counsel for petitioner replied and directed that the “order” be circulated so that
    he could “get [his] client’s signature on the same,” he intended to include counsel for
    Allstate.
    4
    we’re a 100% in on Rex will pay zero, Allstate will pay it we’ll
    drop our Third-Party claim and any bad faith. If you want to
    get that over to us, I will get Rex to sign it and we can go from
    there.
    (Emphasis added).
    A month later, in a July 25, 2019, e-mail to counsel for petitioner and counsel
    for Mammoth, counsel for Allstate advised as follows:
    I have the check and will mail it today or tomorrow to [counsel
    for Mammoth] with a release to be executed by Mammoth that
    releases [petitioner] from Mammoth’s claims.
    I will also send Mr. Cook [counsel for petitioner] a release that
    releases Allstate from [petitioner’s] claims, the consideration
    for which will be the payment of the debt owed to Mammoth.
    So, two releases. Does that work for everyone? 7
    (Footnote added).
    Counsel for Allstate then forwarded two settlement agreements on that same
    date. Pursuant to one agreement, Mammoth would agree to release all claims against
    petitioner. Pursuant to the other agreement, petitioner would agree to release all claims
    against Allstate. The e-mail from counsel for Allstate accompanying the agreements
    8
    While the record includes an affirmative e-mail response from counsel for
    7
    Mammoth, it does not include an e-mail response from counsel for petitioner.
    A copy of the written settlement agreement between Allstate and petitioner has not
    8
    been made a part of the appendix record. However, we note that the parties do not dispute
    that it reflects the terms and conditions set forth by counsel for Allstate in the June 28,
    2019, e-mail he sent to counsel for petitioner and counsel for Mammoth and which is
    previously set forth in this opinion.
    5
    advised, “Let me know if you have changes, otherwise, please execute and return the
    original to the appropriate Defendant’s counsel.”
    On July 26, 2019, Allstate provided the agreed-upon settlement amount of
    $5,000 to Mammoth in resolution of all issues and claims arising out of its complaint
    seeking payment for mitigation services rendered to petitioner. On August 20, 2019,
    Mammoth returned the executed settlement agreement to both counsel for Allstate and
    counsel for petitioner. The terms of this settlement agreement are not at issue in this appeal.
    Petitioner, however, failed to execute and return the other settlement
    agreement. In response to an inquiry from counsel for Allstate on September 25, 2019, as
    to when the agreement would be executed by petitioner, counsel for petitioner responded
    on that same date that he had hand delivered the settlement agreement to his client “a while
    ago” and “requested the same back from him with appropriate signatures.” Counsel for
    petitioner related further that he “ha[d] requested an office visit with him asap regarding
    the same.” Counsel explained that petitioner was “addressing a very complicated Federal
    case at the moment” but that he (petitioner’s counsel) had “indicated the importance of this
    matter as well.”
    After subsequent inquiries concerning execution of the settlement agreement
    went unacknowledged, Allstate filed a Motion to Enforce Settlement on November 22,
    9
    Subsequent e-mail inquiries to counsel for petitioner were sent on October 4th,
    9
    October 21st, and October 28th, all of which went unanswered.
    6
    2019. 10 Petitioner responded, arguing that although he agreed to settle Mammoth’s
    complaint seeking approximately $6,000 in costs associated with the water mitigation
    services it performed on the subject property, he did not agree to release any claim against
    Allstate for water damage on the property, which petitioner alleged amounted to $54,000.
    In its reply, Allstate argued that petitioner’s response to the motion to enforce the
    settlement agreement represented a “sudden reversal from his prior unequivocal agreement
    to settle all claims” and was an “attempt[], for the first time, to invalidate or re-negotiate
    the unambiguous terms of the settlement agreement reached in this matter.” According to
    Allstate, the parties reached a meeting of the minds regarding settlement, as clearly
    demonstrated by the written communications between counsel as well as the
    contemporaneous voicemail left by counsel for petitioner for counsel for Allstate. Allstate
    argued that there was no misunderstanding concerning the settlement terms and that the
    written agreement should be enforced.
    On December 27, 2019, petitioner filed a motion to amend the complaint or,
    in the alternative, allow the filing of a new complaint. In his proposed pleading, petitioner
    alleged that the water leak at the subject property caused $54,000 in damage (in addition
    to the $6,000 in mitigation services performed by Mammoth); that Allstate breached its
    On December 2, 2019, counsel for petitioner filed a Motion to Withdraw as
    10
    counsel of record because “[t]here has been a total break-down in communication between
    counsel and client in this matter. Client has agreed to withdraw of attorney [sic] and will
    seek new counsel.” Ultimately, however, counsel for petitioner did not withdraw and
    represents petitioner in this appeal.
    7
    insurance contract with petitioner by failing to pay for repairs to the water damage and for
    the debt owed to Mammoth for mitigation services; and that Allstate’s conduct constitutes
    “bad faith.” Petitioner sought $54,000 in damage and repair costs, $6,000 for services
    performed by Mammoth, attorney fees and costs, and punitive damages.
    By order entered on February 25, 2020, the circuit court granted Allstate’s
    motion to enforce the settlement and denied petitioner’s motion to amend the complaint or,
    alternatively, allow a new complaint. The circuit court determined that counsel for
    petitioner “had clear authority to bind his client to the terms of the settlement[,]” was
    11
    competent to enter into the agreement with counsel for Allstate, and “unequivocally gave
    his consent, on behalf of his client, to the terms of the agreement proposed by Allstate on
    June 28, 2019.” The circuit court further determined that Allstate’s payment of petitioner’s
    debt “owed to Mammoth was valuable consideration for the return promise to ‘release all
    claims against Allstate arising out of the subject water loss claim made in January 2018 on
    the Landlord’s Package policy with Allstate covering’” the subject property and to
    “‘dismiss all claims against Allstate in the civil action between the parties now pending in
    the Circuit Court of Cabell County.’” The court concluded that the June 28, 2019, e-mail
    outlined a valid and enforceable settlement agreement between Allstate and petitioner and
    We observe that petitioner does not contend that his counsel lacked the authority
    11
    to bind petitioner to a settlement in this matter. See Syl. Pt. 1, Miranosky v. Parson, 
    152 W. Va. 241
    , 
    161 S.E.2d 665
     (1968) (“When an attorney appears in court representing
    clients there is a strong presumption of his authority to represent such clients, and the
    burden is upon the party denying the authority to clearly show the want of authority.”).
    8
    ordered petitioner to immediately abide by the agreement. Having granted Allstate’s
    motion to enforce the settlement, the circuit court denied petitioner’s motion to amend the
    complaint or, alternatively, to allow a new complaint, on the ground that such motion
    would be futile and moot. It is from this order that petitioner now appeals.
    II. Standard of Review
    In reviewing the circuit court’s order granting Allstate’s motion to enforce
    the settlement, we apply the following standard:
    Where the issue of the enforceability of a settlement
    agreement requires the lower court to make findings of fact and
    apply contractual or other legal principles, this Court will
    review its order and the ultimate disposition under an abuse of
    discretion standard, its underlying factual findings under a
    clearly erroneous standard, and questions of law pursuant to a
    de novo review.
    Syl. Pt. 2, Triple 7 Commodities, Inc. v. High Country Mining, Inc., 
    245 W. Va. 63
    , 
    857 S.E.2d 403
     (2021).
    As for the circuit court’s ruling denying petitioner’s motion to amend his
    third-party complaint or, alternatively, to file a new complaint, we afford circuit courts
    wide discretion in ruling upon such motions:
    A trial court is vested with a sound discretion in granting
    or refusing leave to amend pleadings in civil actions. Leave to
    amend should be freely given when justice so requires, but the
    action of a trial court in refusing to grant leave to amend a
    pleading will not be regarded as reversible error in the absence
    of a showing of an abuse of the trial court’s discretion in ruling
    upon a motion for leave to amend.
    9
    Syl. Pt. 6, Perdue v. S.J. Groves & Sons Co., 
    152 W. Va. 222
    , 
    161 S.E.2d 250
     (1968). With
    these standards in mind, we now consider the parties’ arguments.
    III. Discussion
    Petitioner argues that the circuit court erred by enforcing the settlement
    agreement because the evidence failed to establish a meeting of the minds as to petitioner’s
    assent to release Allstate from all claims “arising out of the subject water loss claim” on
    the subject property that petitioner made with Allstate in January of 2018. He states simply
    that because “this case was filed in Magistrate Court with a limit of $10,000.00. . . . there
    could be no agreement on an amended complaint involving $54,000.00[;]” that “the
    settlement agreement had not been reduced to writing prior to any alleged ‘agreement of
    the parties[;]’” and that the proposed agreement “included different language th[a]n agreed
    by the parties.” In a summary response, Allstate counters that the circuit court correctly
    concluded that the record evidence demonstrated that there was a meeting of the minds.
    We agree with Allstate.
    Our law concerning the enforcement of settlement agreements is well
    established. As a guiding principle, we have explained that “[t]he law favors and
    encourages    the    resolution   of    controversies    by   contracts   of    compromise
    and settlement rather than litigation[.]” Syl. Pt. 1, in part, Sanders v. Roselawn Mem’l
    Gardens, Inc., 
    152 W.Va. 91
    , 
    159 S.E.2d 784
     (1968). Nonetheless, settlement agreements
    are contracts and therefore, “are to be construed ‘as any other contract.’” Burdette v.
    Burdette Realty Improvement, Inc., 
    214 W.Va. 448
    , 452, 
    590 S.E.2d 641
    , 645 (2003)
    10
    (quoting Floyd v. Watson, 
    163 W.Va. 65
    , 68, 
    254 S.E.2d 687
    , 690 (1979)). In that regard,
    “[i]t is well-understood that ‘[s]ince a compromise and settlement is contractual in nature,
    a definite meeting of the minds of the parties is essential to a valid compromise, since a
    settlement cannot be predicated on equivocal actions of the parties.’ 15A C.J.S.
    Compromise & Settlement § 7(1) (1967).” O’Connor v. GCC Beverages, Inc., 
    182 W.Va. 689
    , 691, 
    391 S.E.2d 379
    , 381 (1990). A “‘meeting of the minds’ or ‘mutual assent’ relates
    to the parties having the same understanding of the terms of the agreement reached.”
    Messer v. Huntington Anesthesia Grp., Inc., 
    222 W. Va. 410
    , 418, 
    664 S.E.2d 751
    , 759
    (2008) (citing 17 C.J.S. Contracts § 35 (1999)). “A meeting of the minds of the parties is
    a sine qua non of all contracts.” Syl.P. 1, Martin v. Ewing, 
    112 W.Va. 332
    , 
    164 S.E. 859
    (1932).
    The evidence presented in support of Allstate’s motion to enforce the
    settlement is not specifically addressed by petitioner and, thus, is not disputed. On June 27,
    2019, counsel for petitioner sent an e-mail to counsel for Allstate and advised that he had
    spoken with his client “about All-[S]tate paying the [Mammoth] Restoration claim (and/or
    whatever reduced settlement amount) and [petitioner] would release All-State from the 3rd
    party complaint and bad faith claim surrounding this lawsuit and he AGREED TO THE
    SAME.” (Emphasis added). Similarly, in a voicemail message left for counsel for Allstate
    on that same day, counsel for petitioner clearly related that he had spoken with petitioner
    and he agreed with that [sic] to get Mon Mouth [Mammoth]
    out of that if you, if Allstate’s paying the claim and will dismiss
    and drop any suit against Allstate involving that claim on the
    home and the lost property. If you can get that out or get that
    11
    worked out we’re a 100% in on [petitioner] will pay zero,
    Allstate will pay it we’ll drop our Third-Party claim and any
    bad faith. If you want to get that over to us, I will get
    [petitioner] to sign it and we can go from there.
    (Emphasis added).
    Counsel for petitioner’s own words firmly established that, in consideration
    for Allstate paying the debt petitioner owed to Mammoth for the mitigation services
    performed on the subject property, petitioner would release Allstate not only from the third-
    party complaint involving the debt to Mammoth, but also “any suit against Allstate
    involving that claim on the home and the lost property,” including “any bad faith.”
    Inarguably, petitioner’s claim “on the home and the lost property” relates not to the debt
    owed for Mammoth’s services, but to the claim petitioner made with Allstate in January of
    2018 on the Landlord’s Package policy for the water damage occurring on the subject
    property.
    Further, the following day, on June 28, 2019, counsel for Allstate set forth in
    an e-mail to both counsel for petitioner and Mammoth indicating that the parties had
    agreed that petitioner “will release all claims against Allstate arising out of the subject
    water loss claim made in January 2018 on the Landlord’s Package policy with Allstate
    covering” the subject property and “will dismiss all claims against Allstate in the civil
    action between the parties now pending in the Circuit Court of Cabell County. In return,
    Allstate will satisfy the claim of [Mammoth] against [petitioner], by paying [Mammoth]
    the sum of $5,000.00.” In response to this e-mail, counsel for petitioner unequivocally
    12
    agreed to the terms and conditions of the settlement as stated therein by responding,
    “Confirmed” and requesting that counsel for Allstate “circulate the Order and I will get my
    client[’]s signature on the same[.]” Subsequently, on July 25, 2019, counsel for Allstate
    circulated the settlement agreement, and counsel for petitioner never objected to its terms
    and conditions or otherwise suggested that they did not reflect that which the parties had
    negotiated and agreed to. When counsel for Allstate inquired about the delay in executing
    and returning the written agreement, counsel for petitioner confirmed, in a September 25,
    2019, e-mail that he had hand delivered the agreement to petitioner “a while ago” and
    requested that petitioner return it to him “with appropriate signatures.” Counsel for
    petitioner also advised that he requested a meeting with his client “asap regarding the
    same.” Importantly, at no time did counsel for petitioner suggest that the reason for the
    delay in executing the agreement was because petitioner believed that it did not reflect the
    terms and conditions to which he had assented.
    We conclude that that the record evidence was overwhelming that petitioner
    agreed that, in consideration for Allstate’s payment to Mammoth for the performance of
    water mitigation services on the subject property, petitioner would dismiss his third-party
    complaint against Allstate and “will dismiss and drop any suit against Allstate involving
    that claim on the home and the lost property. . . . and any bad faith.” Petitioner’s assent to
    these terms was unequivocal, see O’Connor, 182 W. Va. at 691, 
    391 S.E.2d at 381
    , and the
    evidence clearly demonstrates that the parties had “the same understanding of the terms of
    the agreement reached.” Messer, 222 W. Va. at 418, 
    664 S.E.2d at 759
    . We, therefore,
    13
    conclude that the circuit court did not abuse its discretion in determining that there was a
    meeting of the minds regarding the terms of the settlement agreement between petitioner
    and Allstate and that the settlement agreement must be enforced. 12
    Finally, petitioner also assigns as error the circuit court’s denial of his motion
    to amend his third-party complaint against Allstate or file a new complaint. Petitioner
    claims he should be permitted to allege claims for breach of contract and insurance bad
    faith related to the water damage that occurred on the subject property as a result of the
    busted pipes. The circuit court determined that because it held that petitioner “must honor
    the terms of his settlement agreement, release his claims, and dismiss his case,” his motion
    to amend or file a new complaint is both futile and moot. We agree.
    12
    Petitioner raises two additional assignments of error relating to the enforceability
    of the settlement agreement: (1) that the agreement is unconscionable, and (2) that the
    agreement would unjustly enrich “the bad faith party” (i.e., Allstate). In the exercise of our
    discretion, we decline to consider these assignments of error, which consist of only a few
    sentences each and lack the citation to any supporting legal authority. “Although we
    liberally construe briefs in determining issues presented for review, issues which are . . .
    mentioned only in passing but 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); accord W.
    Va. R. App. P. 10(c)(7). We have cautioned that “[a]n appellant must carry the burden of
    showing the error in the judgment of which he complains. This Court will not reverse the
    judgment of a trial court unless error affirmatively appears from the record. Error will not
    be presumed, all presumptions being in favor of the correctness of the judgment.” Syl. Pt.
    2, W. Va. Dep’t of Health and Human Res. Emp. Fed. Credit Union v. Tennant, 
    215 W. Va. 387
    , 
    599 S.E.2d 810
     (2004) (quoting Syl. Pt. 5, Morgan v. Price, 
    151 W. Va. 158
    , 
    150 S.E.2d 897
     (1966)). Because petitioner has failed to adequately brief these assignments of
    error, and, therefore, to even minimally carry the burden of showing error in the judgment
    about which he now complains, we decline to address them.
    14
    West Virginia Rule of Civil Procedure 15(a) (1998) permits a party to amend
    pleadings “only by leave of court or by written consent of the adverse party” after a
    responsive pleading is filed, and counsels that “leave [to amend] shall be freely given when
    justice so requires.” 
    Id.
     This rule has been interpreted broadly and permissively:
    The purpose of the words “and leave [to amend] shall
    be freely given when justice so requires” in Rule 15(a) W.Va.
    R.Civ.P., is to secure an adjudication on the merits of the
    controversy as would be secured under identical factual
    situations in the absence of procedural impediments; therefore,
    motions to amend should always be granted under Rule 15
    when: (1) the amendment permits the presentation of the merits
    of the action; (2) the adverse party is not prejudiced by the
    sudden assertion of the subject of the amendment; and (3) the
    adverse party can be given ample opportunity to meet the issue.
    Syl. Pt. 2, State ex rel. Vedder v. Zakaib, 
    217 W. Va. 528
    , 
    618 S.E.2d 537
     (2005) (quoting
    Syl. Pt. 3, Rosier v. Garron, Inc., 
    156 W. Va. 861
    , 
    199 S.E.2d 50
     (1973)) (emphasis added).
    We have further explained that “a court may exercise its discretion to deny a motion for
    leave to amend a complaint where such amendment would not lead to a presentation of the
    case on its merits. . . . ‘“[T]he liberal amendment rules under Rule 15(a) do not require the
    courts to indulge in futile gestures.”’” Cal. Tchrs’ Ret. Sys. v. Blankenship, 
    240 W. Va. 623
    , 631-32, 814 SE.2d 549, 557-58 (2018) (quoting Pyles v. Mason Cnty Fair, Inc., 
    239 W. Va. 882
    , 889, 
    806 S.E.2d 806
    , 813 (2017) (internal citation omitted)); see also Johnson
    v. Pinson, 
    244 W. Va. 405
    , 415, 
    854 S.E.2d 225
    , 235 (2020) (finding that proposed
    amendment to complaint is futile if it “could not withstand a motion to dismiss”); Pyles,
    239 W. Va. at 889, 806 S.E.2d at 813 (concluding that circuit court did not abuse its
    discretion in refusing plaintiff’s motion to add county commission as a defendant because
    15
    to do so would be a futile gesture given that commission would be immune from liability
    under either West Virginia Governmental Tort Claims and Insurance Reform Act or public
    duty doctrine); Lloyd’s, Inc. v. Lloyd, 
    225 W. Va. 377
    , 386-87, 
    693 S.E.2d 451
    , 460-61
    (2010) (concluding that motion to amend complaint was correctly denied “because the
    claims sought to be asserted against [one in privity with a party to prior litigation] would
    not have ‘permit[ted] the presentation of the merits of the action because such claims also
    would have been barred by res judicata’”).
    We find that the circuit court correctly refused to grant petitioner permission
    to file the proposed amended or new complaint against Allstate insofar as we have already
    concluded that the court properly found that the settlement agreement between Allstate and
    petitioner resolved the very same claims.
    IV. Conclusion
    Based upon all of the foregoing, the circuit court’s order granting Allstate’s
    motion to enforcement settlement and denying petitioner’s motion to amend his third-party
    complaint or allow the filing of a new complaint is affirmed.
    Affirmed.
    16