State of West Virginia ex rel. Christopher Chafin and Cheat Lake Urgent Care, PLLC v. Susan B. Tucker ( 2021 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia ex rel. Christopher
Chafin, M.D. and Cheat Lake Urgent
Care, PLLC, FILED
Petitioners
March 17, 2021
released at 3:00 p.m.
vs) No. 20-0685 (Monongalia County 16-C-547) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
The Honorable Susan B. Tucker, Judge of the
Circuit Court of Monongalia County, David Anderson,
Brian Boal, Boal & Associates, P.C., Gillen
Enterprises, LLC, Affordable Contractors, LLC,
and Build It, LLC,
Respondents
MEMORANDUM DECISION
This is a petition for writ of prohibition in which petitioners seek to preclude the
Circuit Court of Monongalia County from enforcing an order striking their expert, Charles Russo,
and precluding his testimony at trial. 1 Petitioners set forth various arguments in support of their
position that the circuit court clearly erred and exceeded its legitimate powers by barring their
expert witness from trial.
This Court has considered the parties’ briefs, oral arguments, and the appendix
record. Upon consideration of the standard of review and the applicable law, the Court finds no
substantial question of law and no prejudicial error. For these reasons, a memorandum decision
denying the request for extraordinary relief is appropriate under Rule 21 of the West Virginia Rules
of Appellate Procedure.
On or about October 27, 2016, Dr. Christopher Chafin filed a civil action against
Dr. David Anderson alleging that Dr. Anderson embezzled funds from Cheat Lake Urgent Care,
PLLC, which was a professional limited liability company of which both were part owners. 2
Thereafter, Dr. Chafin filed an Amended Complaint naming Brian R. Boal and Boal and
Associates, P.C. (hereinafter “Boal”) who had provided accounting services to Cheat Lake Urgent
1
Petitioners are represented by Jason Wingfield, Esq. and James A. Gianola, Esq.,
Morgantown, West Virginia. Respondents Brian Boal and Boal & Associates, P.C. are represented
by Avrum Levicoff, Esq., Pittsburgh, Pennsylvania. Respondent David Anderson is represented
by Raymond H. Yackel, Esq., Morgantown, West Virginia.
2
According to petitioners, Cheat Lake Urgent Care, PLLC is a now-dissolved Professional
Limited Liability Company that formerly provided medical services in the Morgantown, West
Virginia area.
1
Care, PLLC and Dr. Chafin, as defendants, alleging that they failed to discover that Dr. Anderson
was embezzling funds from Cheat Lake Urgent Care and also that they failed to ensure payment
of his personal income taxes.
The circuit court entered a Scheduling Order on December 6, 2018, which required
petitioners “to disclose trial experts” on or before May 1, 2019. On May 1, 2019, petitioners
disclosed two expert witnesses: Andrew Smith, CPA, and Charles J. Russo, PhD, CPA. In
addition to disclosing the names of their expert witnesses, petitioners provided a curriculum vitae
for each expert witness. Further, petitioners’ disclosure provided as follows with respect to
Andrew Smith: “[p]laintiffs believe that this expert will testify to the standard of care accounting
professionals owe to client and industry practices. Further, it is anticipated that this expert will
testify to a review of accounting practices performed in the subject matter and his opinions based
upon that review.” With respect to Charles J. Russo, the disclosure provided:
Plaintiffs believe that this expert will testify to the standard of care
accounting professionals owe to client and industry practices.
Further, it is anticipated that this expert will testify to a review of
accounting practices performed in the subject matter and his
opinions based upon that review. Moreover, this expert will provide
a value for the lost income and lost opportunity costs associated with
the negligence and embezzlement and the effect on the Plaintiffs.
On June 19, 2019, the circuit court entered an Amended Scheduling Order, which
required the “[p]arty with the burden of proof to supplement trial experts’ opinions” on or before
August 9, 2019. On the day prior to this deadline, a hearing was held to discuss various discovery
disputes. On August 14, 2019, the circuit court entered a Second Amended Scheduling Order,
which did not change the deadline by which the petitioners were required to supplement their trial
experts’ opinions. 3 It is undisputed that petitioners did not file a supplement to their trial experts’
opinions on or before August 9, 2019.
On October 23, 2019, petitioners disclosed a preliminary report of Andrew Smith,
CPA, whom they had identified as their expert who would establish the embezzlement. As for Mr.
Russo, counsel for petitioners indicated that his report would be provided “once he receives the
final report from Smith.” On November 7, 2019, counsel for Boal notified petitioners that they
objected to the timeliness of the production of expert reports and that they reserved their right to
seek the appropriate relief from the circuit court.
On or about February 4, 2020, Boal filed a motion in limine seeking to preclude
petitioners from introducing any expert testimony at trial. The final report of Andrew Smith, CPA
was disclosed on March 17, 2020. On or about April 17, 2020, the trial and pretrial were continued
generally due to the COVID-19 pandemic.
3
By the time that the Second Amended Scheduling Order was entered, the deadline for
petitioners to supplement their trial experts’ opinions had already passed.
2
Petitioners served Mr. Russo’s expert report in June of 2020. On or about July 13,
2020, Boal filed a “Motion to Strike Plaintiffs’ Expert Disclosure” based on the untimeliness of
the report and alleged inadequacies in the report.
On August 3, 2020, a hearing was held on various outstanding motions. The
following day, the circuit court issued an order granting Boal’s “Motion to Strike Plaintiffs’ Expert
Disclosure.” 4
Petitioners then filed the instant petition for writ of prohibition.
“A writ of prohibition is an extraordinary remedy reserved for extraordinary
causes.” State ex rel. Yurish v. Faircloth, 243 W. Va. 537, ---, 847 S.E.2d 810, 815 (2020) (citing
State ex rel. Vanderra Resources, LLC v. Hummel, 242 W. Va. 35, 829 S.E.2d 35 (2019) (internal
quotations and citations omitted)). “A writ of prohibition will not issue to prevent a simple abuse
of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having
such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.” Syl. Pt. 2, State ex rel.
Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977). The factors to be considered for
issuance of a writ of prohibition are well-established:
In determining whether to entertain and issue the writ of prohibition
for cases not involving an absence of jurisdiction but only where it
is claimed that the lower tribunal exceeded its legitimate powers,
this Court will examine five factors: (1) whether the party seeking
the writ has no other adequate means, such as direct appeal, to obtain
the desired relief; (2) whether the petitioner will be damaged or
prejudiced in a way that is not correctable on appeal; (3) whether the
lower tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or substantive
law; and (5) whether the lower tribunal’s order raises new and
important problems or issues of law of first impression. These
factors are general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should
issue. Although all five factors need not be satisfied, it is clear that
the third factor, the existence of clear error as a matter of law, should
be given substantial weight.
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
With these standards in mind, we turn to the parties’ arguments.
4
In addition, the court’s order granted the Boal Defendants’ motion for leave to amend
their answer and found petitioners’ motion to compel moot. Finally, the order set a scheduling
conference. For purposes of the instant case, these rulings are not at issue.
3
Petitioners seek a writ of prohibition to restrain the enforcement of the circuit
court’s August 4, 2020 order striking their expert witness, Charles Russo. Petitioners set forth
various arguments in support of their position that the circuit court clearly erred and exceeded its
legitimate powers by barring Mr. Russo’s testimony at trial. 5 Petitioners further allege that the
circuit court’s order was insufficient as it was “terse” and did not contain any findings of fact or
conclusions of law.
A review of the order at issue clearly bears out petitioners’ argument that the order
did not contain detailed findings of fact or conclusions of law. With respect to Boal’s “Motion to
Strike Plaintiffs’ Expert Disclosure,” the order provided that “[u]pon further consideration and
review of the court file, this Court hereby GRANTS” Boal’s motion. It is true that, pursuant to
Rule 52(a) of the West Virginia Rules of Civil Procedure, the order does not have to contain
findings of fact and conclusions of law in order to be effective. Specifically, Rule 52(a) of the
West Virginia Rules of Civil Procedure states that “[f]indings of fact and conclusions of law are
unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided
in subdivision (c) of this rule.” (Emphasis added.)
However, this Court has held that in order to conduct a meaningful review of orders
similar to one at issue here, findings providing more than a mere grant or denial are necessary. For
this reason, we turn our attention to our decision in State ex rel. Allstate Insurance Company v.
Gaughan, 203 W. Va. 358, 508 S.E.2d 75 (1998). In Gaughan, Allstate Insurance Company
sought to restrain the enforcement of discovery orders. However, the orders at issue in that case
did not contain any findings of fact or conclusions of law setting forth the circuit court’s analysis.
After undertaking an extensive review of how other courts had addressed the issue, we held that:
A party seeking to petition this Court for an extraordinary writ based
upon a non-appealable interlocutory decision of a trial court, must
request the trial court set out in an order findings of fact and
conclusions of law that support and form the basis of its decision.
In making the request to the trial court, counsel must inform the trial
court specifically that the request is being made because counsel
intends to seek an extraordinary writ to challenge the court’s ruling.
When such a request is made, trial courts are obligated to enter an
order containing findings of fact and conclusions of law. Absent a
request by the complaining party, a trial court is under no duty to set
out findings of fact and conclusions of law in non-appealable
interlocutory orders.
Syl. Pt. 6, State ex rel. Allstate Ins. Co. v. Gaughan, 203 W. Va. 358, 508 S.E.2d 75 (1998).
5
Petitioners contend that the circuit court clearly erred when it presumed that they violated
the West Virginia Rules of Civil Procedure by not producing an expert report during discovery.
In addition, petitioners contend that the circuit court exceeded its legitimate powers by summarily
barring their expert from trial: (1) without any evidence of prejudice; (2) without any finding that
they had violated a court order; and (3) before a trial date was scheduled.
4
Following our decision in Gaughan, we have issued decisions in cases seeking
extraordinary relief in which petitioners had made one or more requests to the circuit court for an
order with detailed findings of fact and conclusions of law. See State ex rel. Massachusetts Mut.
Life Ins. Co. v. Sanders, 228 W. Va. 749, 724 S.E.2d 353 (2012); State ex rel. Navient Solutions,
LLC v. Wilson, 2020 WL 2765857 (W. Va. May 27, 2020). We have also considered cases in
which those seeking extraordinary relief did not inform the circuit court of their intent to file a
request for extraordinary relief and/or request an order containing findings of fact and conclusions
of law. In a more recent case, we denied requests for extraordinary relief when a petitioner failed
to inform the circuit court of its intent to file a petition for extraordinary relief and failed to request
a detailed order. See State ex rel. Vanderra Resources, LLC v. Hummel, 242 W. Va. 35, 829 S.E.2d
35 (2019). In Vanderra, petitioner sought extraordinary relief after its motion for summary
judgment was denied. However, petitioner failed to request a detailed order before filing its
petition with this Court. In denying the requested relief, we noted that the petitioner had failed to
fulfill its obligations pursuant to Syllabus Point 6 in Gaughan. This failure left this Court with
“no means to ascertain the rationale underlying” the circuit court’s denial of summary judgment.
Id at 44, 829 S.E.2d at 44. 6
In the instant case, petitioners seek extraordinary relief based upon a non-
appealable interlocutory order. However, petitioners did not inform the circuit court of their intent
to seek this extraordinary writ nor did petitioners request an order containing findings of fact and
conclusions of law that support the circuit court’s decision. We are not persuaded by petitioners’
argument that they did not comply with the obligations set forth in Gaughan and confirmed in
Vanderra because they did not believe that the circuit court would enter a substantive order. The
obligations imposed in Gaughan are clear. A party seeking an extraordinary writ based upon a
non-appealable interlocutory decision must: (1) request the trial court enter an order containing
findings of fact and conclusions of law that support and form the basis of its decision; and (2)
inform the trial court that the request is being made because it intends to seek an extraordinary writ
to challenge the court’s ruling. Syl. Pt. 6, State ex rel. Allstate Ins. Co. v. Gaughan, 203 W. Va.
358, 508 S.E.2d 75 (1998).
The petitioners ask this Court to speculate as to why the circuit court granted the
motion striking their expert. One of the arguments advanced by petitioners is that the circuit court
was operating under “some vague notion that the West Virginia Rules of Civil Procedure require
Plaintiff to provide a detailed expert report.” However, the Motion to Strike contained at least two
arguments that the circuit court may have relied upon in granting the motion: (1) the untimeliness
of the disclosure; and (2) the deficiencies in the disclosure. Without an order containing findings
6
We acknowledge that, in State ex rel. Nationwide Mut. Ins. Co. v. Marks, 223 W. Va.
452, 676 S.E.2d 156 (2009), this Court found an order complete and able to withstand the scrutiny
in an action requesting extraordinary relief despite the petitioner not making a request pursuant to
Gaughan. We also acknowledge that in River Riders, Inc. v. Steptoe, 223 W. Va. 240, 672 S.E.2d
376 (2008), we proceeded to consider the maritime issue before the court because it concerned a
distinct issue of law involving the interpretation and application of a federal statute. However, in
light of the Court’s subsequent holding in Vanderra, and the lack of detailed findings of fact and
conclusions of law by the circuit court in the present case, we are unable to conduct a sufficient
review of the reasons for the circuit court’s determination.
5
of fact and conclusions of law that support and form the basis of the circuit court’s decision, this
Court cannot conduct a meaningful appellate review.
Our holding in Gaughan is dispositive in this case. We will not speculate as to the
reason or reasons that the circuit court granted Boal’s motion. It is clear that there were multiple
arguments advanced that may have been relied upon by the circuit court in its decision. The failure
of petitioners to inform the circuit court of their intent to file a petition for extraordinary relief and
their failure to request a detailed order has left this Court with no ability to conduct a meaningful
appellate review.
For the foregoing reasons, we find that the record in this case does not demonstrate
that the circuit court exceeded its legitimate powers when it issued its August 4, 2020 order striking
petitioners’ expert. Accordingly, we deny the requested writ of prohibition.
Writ Denied.
ISSUED: March 17, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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