Roger Smith v. Stockmeier Urethanes U.S.A., Inc.

FILED
October 6, 2021
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
Roger Smith,
Defendant Below, Petitioner
vs.) No. 19-0410 (Harrison County 17-C-349)
Stockmeier Urethanes U.S.A., Inc.,
a West Virginia Corporation,
Plaintiff Below, Respondent
and
Roger Smith,
Defendant Below, Petitioner
vs.) No. 20-0352 (Harrison County 17-C-349-2)
Stockmeier Urethanes U.S.A., Inc., a
West Virginia Corporation,
Plaintiff Below, Respondent 1
MEMORANDUM DECISION
Petitioner Roger Smith, by counsel Gregory H. Schillace, appeals the orders of the Circuit
Court of Harrison County awarding a preliminary injunction against petitioner, denying
petitioner’s motion to disqualify the trial judge, and awarding sanctions against petitioner and his
counsel. Further, petitioner argues that at the trial of this matter, the jury was not properly
instructed. Respondent Stockmeier Urethanes U.S.A., Inc. by counsel Susan L. Deniker and Shawn
A. Morgan, filed a response in support of the circuit court’s orders.
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, we find that the circuit court did not err. For this reason, a memorandum decision
affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.
1
By this Court’s order dated November 16, 2020, Case Nos. 20-0352 and 19-0410 were
consolidated for the purposes of consideration and decision.
1
Respondent is a company that “develops, produces, and sells polyurethane systems.” The
company supplies liquid urethanes materials to customers throughout the country for purposes of
making things like playground mulch, turf for athletic fields, superglue, and sponges. Petitioner
was formerly employed as respondent’s Chief Operating Officer and Senior Advisor. In 2013, and
again in January of 2017, respondent and petitioner entered into employment agreements to
“prevent [petitioner] from engaging in misappropriation of [respondent’s] trade secrets and/or
from improperly accessing, using, or disclosing [respondent’s] confidential and/or proprietary
information.” Despite the prohibitions contained within these agreements, on August 16, 2017,
petitioner was observed carrying several binders of information related to his work to his car. 2
From February 2, 2017, through August 9, 2017, respondent contends that petitioner “used
removable storage devices . . . and/or used a cloud-based storage medium . . . to acquire, download,
and store confidential and proprietary information from respondent’s computer systems.”
On September 1, 2017, respondent’s president and CEO, wrote to petitioner reminding
petitioner of “his obligations to preserve confidentiality of [respondent’s] proprietary information”
and to insist “that [petitioner] immediately take the necessary steps to address and mitigate his
violations of his employment agreement.” Respondent’s president and CEO wrote to petitioner
again on September 12, 2017, terminating petitioner’s employment and reminding petitioner of his
“obligations to preserve confidentiality of [respondent’s] proprietary information.”
On November 9, 2017, respondent filed the underlying action against petitioner after
learning that petitioner, in contravention of his employment agreement with respondent, had
removed binders from respondent’s property; had used removable storage devices to download
and store respondent’s confidential and/or proprietary information; and had e-mailed respondent’s
proprietary and/or confidential information to a shared personal e-mail account. Respondent
further discovered that petitioner had created, saved, and printed documents evidencing that he
intended to start a competing business and had permanently deleted the “sent” and “deleted” item
folders on his company e-mail account.
In its underlying suit against petitioner, respondent asserted clams for breach of
confidentiality, misappropriation of trade secrets, and for declaratory and monetary relief. As to
declaratory relief, respondent sought a declaration that petitioner, “by virtue of his employment
[with respondent] and as part of his employment arrangement with [respondent], is liable to keep
confidential all proprietary information gleaned during the course of his employment with
[respondent].” Further respondent sought a declaration that petitioner “may not appropriate any
[of respondent’s] trade secret[s]” and that petitioner “must produce his personal computing devices
. . ., cellular telephone, e[-]mail accounts, [binders], and any thumb driver [or] other storage
medium he used to preserve confidential or proprietary information . . . .” Respondent also asked
for a declaration that petitioner was “obligated either to return any confidential or proprietary
information,” and that petitioner “must disclose to [respondent] any disclosure he made of
[respondent’s] confidential or proprietary information.”
2
Security video footage showed petitioner carrying said binders to his car “on six separate
occasions on that day, using different doors.”
2
Following the filing of its complaint, on November 13, 2017, respondent moved for a
preliminary injunction against petitioner. Petitioner opposed an injunction. A hearing was held
before the circuit court on December 8, 2017. By order entered on January 4, 2018, respondent
was awarded a preliminary injunction. Specifically, the court found that respondent met its burden
“to establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm
[in] the absence of preliminary relief, that the balance of the equities tips in [its] favor, and that an
injunction is in the public interest.” The court directed petitioner to provide to respondent “certain
items of personal property for inspection.”
On March 16, 2018, respondent served its first set of discovery requests upon petitioner to
determine what “confidential and proprietary information” petitioner had taken, where he had
taken and stored such information, and whether he had returned all documents. Petitioner did not
timely respond to the requests, despite two good faith letters from respondent. On May 10, 2018,
respondent filed a motion to compel petitioner’s responses and argued that the requests for
admission be deemed admitted. Thereafter on June 5, 2018, respondent noticed the depositions of
two individuals for June 20, 2018, in Iowa. On June 21, 2018, petitioner filed a motion to quash
the subpoenas associated with the Iowa depositions, arguing that Iowa rules governing depositions
and subpoenas had not been followed. 3
Respondent responded to the motion to quash and argued the subpoenas were proper, that
the motion to quash was not timely filed, and that respondent’s counsel and representatives had
already departed for Iowa before the motion to quash was faxed to respondent’s counsel. Further,
respondent argued that petitioner had contacted both of the Iowa deponents and “convinced one of
them not to appear.” Respondent argued that based on petitioner’s actions it could not “draw any
conclusion other” than petitioner “had acted in bad faith to obstruct and interfere with the discovery
process.”
On June 26, 2018, petitioner responded to respondent’s first set of discovery requests.
Respondent deemed the responses incomplete (citing that the same were incomplete, evasive,
contained unverified answers to interrogatories, and produced no documents), and, on July 13,
2018, respondent filed a second motion to compel petitioner to cease interference with discovery
and motion for sanctions. Respondent argued that petitioner had interfered with the Iowa
depositions; still had not substantively responded to the initial set of discovery requests; and had
repeatedly failed to respond to correspondence.
On August 9, 2018, the court granted respondent’s motion to compel petitioner to cease
interference with discovery and motion for sanctions and renewed motion to compel discovery
responses. The court directed petitioner to “forthwith provide supplemental answers and responses
to [respondent’s] discovery requests.” In the same order, the court denied petitioner’s motions to
quash as untimely filed and, as a mandatory reporter of unethical conduct, the court forwarded its
order to the State of Iowa’s Commission on the Unauthorized Practice of Law, requesting that it
review petitioner’s counsel’s conduct. On August 20, 2018, respondent filed its affidavit of
3
While the motion to quash was dated June 19, 2018, the motion was not filed in circuit
court until June 21, 2018.
3
attorney’s fees and expenses listing $4,395.29 in attorney’s fees and costs associated with its
motions to compel. By order entered on September 10, 2018, the court found respondent’s
expenses to be reasonable and ordered petitioner and his counsel to pay those expenses.
Following the August 9, 2018, order granting respondent’s motion to compel, respondent’s
counsel corresponded with petitioner’s counsel regarding discovery responses, and petitioner’s
counsel advised that petitioner would supplement the responses “toward the end of the final week
in August.” In reliance on this representation, respondent made travel and other arrangements to
complete the deposition of witnesses in Illinois, Iowa, and North Carolina. However, despite being
promised the supplemental discovery responses towards the end of the final week of August, the
same were not forthcoming, and on September 5, 2018, respondent filed its second renewed motion
to compel responses to respondent’s first set of discovery requests. On September 6, 2018, the
circuit court entered its order setting an expedited response deadline and ordering petitioner to file
a response to petitioner’s motions to compel by 4:00 p.m. on September 11, 2018. However,
petitioner did not respond as directed.
On September 27, 2018, respondent filed a motion for sanctions for spoliation of evidence
and violation of the court’s January 4, 2018, order, and motion for expenses. Respondent argued
that sanctions were proper as petitioner had engaged in “misconduct” and had made “materially
false representations and/or omissions” regarding the items of evidence in the petitioner’s
possession or retained by him. Respondent noted that based upon the recent discoveries made by
its expert’s “analysis of [petitioner’s] computer,” it was apparent that petitioner violated the court’s
January 4, 2018, order to produce all storage devices he installed on his laptop computer. Further,
respondent’s expert discovered that several days following the court’s entry of a preliminary
injunction against petitioner ordering him not to destroy or dispose of personal computing devices,
a person “re-installed the Microsoft operating system on [petitioner’s] laptop computer.”
Respondent qualifies this re-installation as an “attempt to over-write information on the laptop
computer hard drive to keep it from being available for [respondent’s] review.”
By order entered on October 1, 2018, the circuit court granted respondent’s second renewed
motion to compel and motion for expenses. Further, the court awarded attorney’s fees to
respondent for its second renewed motion to compel. In its order, the circuit court “particularly
note[d], for purposes of the pleadings record pertaining to these particular motions” petitioner’s
and his counsel’s “intentional failure to provide any [r]esponse whatsoever to these pending
motions that were required by this [c]ourt pursuant to its September 6, 2018, . . . order.” Further,
the court related that in its prior orders regarding respondent’s motions to compel that the court
“strongly suggested” that “the parties and legal counsel adhere to all applicable rules and code
provisions for good faith and fair dealings and completion of discovery without further court
intervention.” The court stated that “it appears that such suggestion fell upon deaf ears with respect
to [petitioner] and his legal counsel.” Respondent was directed to submit a statement of reasonable
attorney’s fees with regard to its second renewed motion to compel.
On October 11, 2018, respondent filed a motion to compel payment of the expenses
associated with its motion to compel discovery awarded by the court’s September 10, 2018, order.
Thereafter, on October 15, 2018, petitioner moved to disqualify the circuit court, alleging that the
judge exhibited “the appearance of a personal bias or prejudice against” petitioner in this and other
4
actions. By administrative order issued on October 30, 2018, this Court, in accordance with Rule
17.01 of the West Virginia Trial Court Rules, denied petitioner’s motion to disqualify.
On October 17, 2018, respondent filed its affidavit of attorney’s fees and expenses relative
to respondent’s motion for petitioner to cease interference with discovery, alleging expenses of
$23,248.21 ($13,653.21 in costs and $9,595.00 in attorney’s fees). In its order entered on
November 26, 2018, the circuit court found respondent’s claimed expenses to be reasonable under
the applicable law and ordered petitioner and his counsel to pay respondent’s expenses in the
amount of $20,986.00 ($9,595 in attorney’s fees and $11,391.00 in reduced costs). 4
Further, on October 17, 2018, respondent also filed a motion for default judgment as a
sanction for petitioner’s continued failure to respond to discovery requests and court orders.
Respondent filed a supplemental motion for default, hearing, and expenses on November 5, 2018.
Petitioner failed to respond to any of the outstanding motions. By affidavit filed on November 15,
2018, respondent submitted additional expenses totaling $2,089.75. The court again directed
petitioner to respond, but petitioner did not respond. On November 27, 2018, the court entered an
order finding respondent’s expenses to be reasonable and ordering petitioner and his counsel to
pay respondent’s expenses.
Ultimately, on November 30, 2018, the court entered an order awarding default judgment
and summary judgment to respondent as to petitioner’s counterclaims and respondent’s claims
against petitioner. Thus, the only issue remaining to be decided was the amount of damages, if
any, owed to respondent by petitioner.
On December 10, 2018, in long-awaited supplemental discovery responses, petitioner
identified thirty-three additional thumb drives in his possession, but did not produce such drives
until after the close of discovery and after the court granted default and partial summary judgment
to respondent. By order entered December 18, 2018, the circuit court reduced the judgment award
of attorney’s fees and expenses, which consolidated multiple previous orders into a single
judgment order for execution by respondent against petitioner and his counsel, jointly and
severally. The judgment order totaled $28,822.79.
On January 4, 2019, petitioner filed a motion to alter or amend the December 18, 2018,
judgment order. On February 1, 2019, the circuit court denied petitioner’s motion to alter or amend
the judgment citing “overwhelming support for” denial, including petitioner and his counsel’s
willful failure to respond to respondent’s affidavits, failure to request a hearing as to any of the
awards, and that the discovery-related failures had been addressed at the pre-trial hearing but that
petitioner’s counsel “offered only minimal representations” regarding the reason for the discovery
failures.
The circuit court related, in subsequent orders relating to executions of judgment against
petitioner, that “[t]he length and breadth of litigation misbehavior perpetrated by petitioner and his
legal counsel has never before been seen by this presiding judge during his almost 26 years of
4
The reduction was based on an alternative calculation of the cost of commercial airfare
as opposed to the actual amount respondent spent using its corporate plane to fly to Iowa.
5
service as a jurist for the 15th Judicial Circuit.” Further, the court concluded that the imposition of
the harshest possible sanction of default judgment and partial summary judgment against petitioner
and in favor of respondent is “unquestionably required as a direct result of such misbehavior and
is certainly justified in light of the totality of the proceedings herein.”
The trial on respondent’s damages, if any, related to petitioner’s breach of contractual
duties of confidentiality and loyalty and misappropriation of trade secrets was completed in
December of 2019. At trial, the jury rejected the argument that respondent was entitled to any
punitive damages or that the petitioner disclosed any trade secret of respondent. However, the jury
did find damages of $500,000 on behalf of respondent for unjust enrichment. Further, the jury
awarded compensatory damages to respondent, reportedly associated with the costs incurred by
respondent in its efforts to determine the extent of petitioner’s breach. It is from the award of
sanctions against petitioner, judgment on behalf of respondent, and the jury’s verdict that petitioner
now appeals.
On appeal, petitioner argues six assignments of error. 5 Petitioner’s first and fifth
assignments of error are redundant. He contends in both that the circuit court abused its discretion
in entering a preliminary injunction against petitioner. 6
As to preliminary injunctions, we have held that
“[i]n reviewing the exceptions to the findings of fact and conclusions of law
supporting the granting of a temporary or preliminary injunction, we will apply a
three-pronged deferential standard of review. We review the final order granting
the temporary injunction and the ultimate disposition under an abuse of discretion
standard, West v. National Mines Corp., 168 W.Va. 578, 590, 285 S.E.2d 670, 678
(1981), we review the circuit court’s underlying factual findings under a clearly
erroneous standard, and we review questions of law de novo. Syllabus Point 4,
Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).” Syllabus Point 1,
State By & Through McGraw v. Imperial Mktg., 196 W.Va. 346, 472 S.E.2d 792(1996).
5
Petitioner’s first three assignments of error were the assignments of error alleged by
petitioner in 19-0410. Petitioner’s fourth, fifth, and sixth assignments of error are the three
assignments of error petitioner alleged in 20-0352.
6
In the first assignment of error listed in his appellate brief, petitioner argues that the circuit
court abused its discretion in granting judgment against petitioner and his counsel, including but
not limited to, judgment as to liability, judgment as to petitioner’s counterclaim, and entering a
preliminary injunction against petitioner. However, in the argument section of his appellate brief,
petitioner only references the circuit court’s award of a preliminary injunction against petitioner.
As petitioner has not addressed any other of the judgments rendered against him by the circuit
court in the argument section of his brief under this assignment of error, we decline to address any
such argument in this decision. Thus, our inquiry with regard to this assignment of error will relate
only to the propriety of the award of a preliminary injunction against petitioner.
6
“The granting or refusal of an injunction, whether mandatory or preventive,
calls for the exercise of sound judicial discretion, in view of all the circumstances
of the particular case; regard being had to the nature of the controversy, the object
for which the injunction is being sought, and the comparative hardship or
convenience to the respective parties involved in the award or denial of the writ.”
Syllabus Point 4, State v. Baker, 112 W.Va. 263, 162 S.E. 154 (1932).
Syl. Pts. 2 and 3, Ne. Nat. Energy LLC v. Pachira Energy LLC, 243 W. Va. 362, 844 S.E.2d 133(2020).
By order entered January 4, 2018, the circuit court granted respondent’s motion for a
preliminary injunction. Respondent sought the injunction to require petitioner to keep respondent’s
proprietary information confidential; to require petitioner to produce his personal computing
devices, cellular telephone, e-mail accounts, three-ring binders, and storage media so that
respondent could attempt to determine whether petitioner had taken or retained any of its
proprietary information; to require petitioner to return respondent’s proprietary information,
destroy copies of it, and verify that he did not disclose it to others; and to require petitioner to
disclose to respondent any disclosure that petitioner made of its confidential or proprietary
information or any misappropriation of any of respondent’s trade secrets. Respondent argued that
a preliminary injunction was necessary because petitioner failed “to respond to [respondent’s]
attempts to rectify the situation, caused in part by [petitioner’s] claim that he did not take or
disclose [respondent’s] proprietary information.”
In its January 4, 2018, order, the circuit court found that under the West Virginia Trade
Secrets Act (“WVTSA”), West Virginia Code ⸹ 47-22-1 to -10, petitioner’s actions in copying,
retaining, and/or disclosing any of respondent’s trade secrets constituted misappropriation.
Further, petitioner’s actions in copying, retaining, and/or disclosing any of respondent’s
confidential or proprietary information without company authorization was a violation of the
express terms of petitioner’s employment agreement with respondent, as well as respondent’s
employee handbook. Respondent did not authorize petitioner’s possession of any of its computer
files or other information. The court found that absent a preliminary injunction, respondent would
be unable to make a determination as to whether its trade secrets and other proprietary information
were kept confidential and would cause irreparable harm to respondent.
Based on our examination of the record and the detailed orders of the court below, we find
no abuse of the circuit court’s discretion in awarding a preliminary injunction against petitioner.
Petitioner clearly violated his employment agreement with respondent and was dilatory in
providing information to respondent about the breadth of his disclosure and retention of proprietary
information. We concur, under the limited circumstances of this case, with the circuit court’s
determination that absent a preliminary injunction, respondent would have been “unable to make
a determination as to whether its trade secrets or other proprietary information [was] kept
confidential and would cause irreparable harm to respondent.” Accordingly, we find no abuse of
the circuit court’s discretion in awarding a preliminary injunction against petitioner.
In his second assignment of error, petitioner argues that the circuit court abused its
discretion in granting judgment for respondent without a hearing and sanctions against petitioner’s
7
counsel who is not a party to this action. In this assignment of error, petitioner disputes the
propriety of the circuit court’s award of sanctions against petitioner and his counsel under Rule 37
of the West Virginia Rules of Civil Procedure without a hearing. Petitioner is further critical of the
circuit court’s award of sanctions against a non-party to the instant case, petitioner’s counsel. We
disagree with petitioner and find no error in the award of sanctions against petitioner and his
counsel.
For decades, this Court has recognized that “[a] court ‘has inherent power to do all things
that are reasonably necessary for the administration of justice within the scope of its jurisdiction.’
14 Am. Juris., Courts, section 171.” Syl. Pt. 3, Shields v. Romine, 122 W. Va. 639, 13 S.E.2d 16(1940). Additionally, this Court has expressly found that “a trial court has inherent power to
impose sanctions as a part of its obligation to conduct a fair and orderly trial.” Syl. Pt. 4, in part,
Prager v. Meckling, 172 W. Va. 785, 310 S.E.2d 852 (1983). We have further held that
“[a]lthough Rule[]. . . 37 of the West Virginia Rules of Civil Procedure
do[es] not formally require any particular procedure, before issuing a sanction, a
court must ensure it has an adequate foundation either pursuant to the rules or by
virture of its inherent powers to exercise its authority. The Due Process Clause of
Section 10 of Article III of the West Virginia Constitution requires that there exist
a relationship between the sanctioned party’s misconduct and the matters in
controversy such that the transgression threatens to interfere with the rightful
decision of the case. Thus, a court must ensure that a sanction imposed is fashioned
to address the identified harm caused by the party’s misconduct.”
Syl. Pt. 1, Bartles v Hinkle, 196 W. Va. 381, 472 S.E.2d 827 (1996).
Here the circuit court entered detailed orders setting forth the transgressions of petitioner
and his counsel supporting the award of sanctions against them, jointly and severally. Petitioner
failed to respond to respondent’s multiple motions to compel. As the court noted in its November
30, 2018, omnibus ruling order,
[t]he length and breadth of litigation misbehavior perpetrated by [petitioner] and
his legal counsel has never before been seen by this presiding judge during his
almost [twenty-six] years of service as a jurist . . . To describe such misconduct
only as “serious” is a vast understatement. It has adversely affected [respondent’s]
ability to effectively discover, fully prosecute[,] or otherwise meaningfully mediate
its case and asserted claims herein.
Further, the court found that petitioner “and his legal counsel have willfully ignored and refused
to comply with multiple orders entered in this instant matter compelling discovery responses,
scheduling deadlines for responsive pleadings, and directing other mandated pleading responses.”
Noting sixteen specific failures by petitioner and his counsel, the court reasoned that petitioner and
his counsel’s actions “completely frustrated the normal litigation process.”
In the underlying case, petitioner never requested a protective order from the court
regarding any of the areas of inquiry related to the motions to compel and did not submit any
8
written responses to respondent’s motions to compel, which were each set on an expedited briefing
schedule by the circuit court upon receipt of the motion. It is disingenuous of the petitioner to now
complain of no opportunity to be heard when no request to be heard was made. Accordingly, we
find no merit to petitioner’s argument that it was error for the circuit court to award judgments
against petitioner without a hearing. We further find no error with the circuit court’s award of
sanctions against petitioner’s counsel for discovery violations, as, under the limited facts and
circumstances of this case and the egregious and direct actions of petitioner’s counsel, the same is
permissible under Rule 37(a)(4)(A) of the West Virginia Rules of Civil Procedure. 7
In his third assignment of error, petitioner suggests that the circuit court judge exhibited
actual bias and prejudice against petitioner. In this assignment of error, petitioner reiterates the
facts asserted in his October 15, 2018, motion to disqualify the circuit court. 8 When petitioner filed
his motion to disqualify in October of 2018, Judge Bedell advised this Court of the petitioner’s
motion and informed the Court, in a detailed letter on which the parties were copied, that he did
not believe his disqualification was warranted. Then Chief Justice Margaret Workman reviewed
the matter, and an Administrative order was entered on October 30, 2018, indicating that this Court
“determined that the evidence set out in support of the disqualification motion is insufficient to
warrant such disqualification.” Here, the petitioner’s arguments on appeal do not cause this Court
to reconsider its previous order; thus, we find that petitioner’s third assignment of error is without
merit.
In his fourth assignment of error, petitioner argues that the circuit court erred in instructing
the jury. Specifically, petitioner complains regarding the following instruction:
The [c]ourt has granted judgment in favor of [respondent] on its claim for breach
of confidentiality. Therefore, [respondent] may be awarded compensatory
damages. Compensatory damages for breach of contract are those damages that
may fairly and reasonably be considered as arising naturally from the breach of the
contract itself. [Respondent] must prove that it experienced economic damages.
In addition, [respondent] may recover indirect or consequential damages that arise
from special circumstances of the contract. In order to recover these indirect or
consequential damages, [respondent] must prove, by a greater weight of the
7
Rule 37(a)(4)(A) of the West Virginia Rules of Civil Procedure expressly states that if a
motion to compel is granted, that the court “shall, after affording an opportunity to be heard,
require the party or deponent whose conduct necessitated the motion or the party or attorney
advising such conduct or both of them to pay to the moving party the reasonable expenses incurred
in obtaining the order, including attorney’s fees . . . .”
8
Petitioner argued that the judge’s alleged bias was “evidenced” by the circuit court’s (1)
filing of a complaint with the State of Iowa Unlawful Practice of Law Committee against
petitioner; (2) disparaging comments regarding counsel “in various orders;” (3) imposition of
significant sanctions against counsel, without holding any hearings; and (4) arbitrarily shortening
time frames for counsel for petitioner to respond.
9
evidence, that at the time of the contract, the parties could reasonably have
anticipated that, because of special circumstances of the contract, these damages
would be a probable result of a breach.
I instruct you that, with respect to [respondent’s] claim for breach of
confidentiality/duty of loyalty, these damages may include the value of
[petitioner’s] compensation during his period of disloyalty to [respondent].
Petitioner asserts that the last sentence of the instruction is not an accurate statement of West
Virginia law. We have long held that “[w]hen reviewing a challenge to jury instructions, we
consider the instructions given as whole and not in isolation to determine whether the instructions
adequately state the law and provide the jury with ample understanding of the issues and the
controlling principles of law.” State v. Bradshaw, 193 W. Va. 519, 457 S.E.2d 456 (1995).” State
v. LaRock, 196 W. Va. 294, 308, 470 S.E.2d 613, 627 (1996).
In the instant case, respondent argues, and we concur, that there is no error with respect to
the challenged jury instruction. The instruction is an accurate statement of West Virginia common
law. See Sutherland v. Guthrie, 86 W. Va. 208, 216, 103 S.E. 298, 302 (1920) (“[A]n agent acting
for his own benefit with the property of his principal will not be entitled to receive any
compensation for his services, even though the principal may not be prejudiced by such
misconduct.”). Accordingly, under the limited facts and circumstances of this case we find no
error.
In his final assignment of error, petitioner suggests that the circuit court erred in permitting
the recovery of investigative costs claimed by respondent. However, our review of the verdict form
returned by the jury reveals that the jury awarded respondent damages totaling $531,600, with
$500,000 in “unjust enrichment” damages and $31,600 in compensatory damages. Petitioner does
not identify what “investigative costs” he refers to in his appellate brief. We have repeatedly noted
that “[j]udges are not like pigs, hunting for truffles buried in briefs.” State, Dep't of Health and
Human Res. ex rel. Robert Michael B. v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827,
833 (1995) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Inasmuch as
petitioner has failed to comply with Rule 10(c)(7) of the West Virginia Rules of Appellate
Procedure, we decline to address this assignment of error on appeal.
For the foregoing reasons, we affirm the circuit court’s award of a preliminary injunction
against petitioner, the court’s denial of petitioner’s motion to disqualify the trial judge, the court’s
award of sanctions (attorney’s fees and costs) against petitioner and his counsel, and the court
permitting recovery of respondent’s investigative costs. Further, we find that the jury was properly
instructed.
Affirmed.
ISSUED: October 6, 2021
10
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
11