Thomas E. Scarr
Daniel T. Yon
Michael A. Frye
Todd A. Biddle
Michael E. Estep
Bailes, Craig & Yon
Jenkins Fenstermaker, P.L.L.C. Huntington, West Virginia
Huntington, West Virginia Attorneys for Respondent
Attorneys for Petitioners
Ancil G. Ramey
Michelle E. Pizak
Steptoe & Johnson, P.L.L.C.
Charleston, West Virginia
Attorneys for City National Bank
JUSTICE DAVIS delivered the opinion of the Court.
JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion.
JUSTICES MCGRAW and ALBRIGHT dissent and reserve the right to file dissenting opinions.
2. When this Court remands a case to the circuit court, the remand can
be either general or limited in scope. Limited remands explicitly outline the issues to be
addressed by the circuit court and create a narrow framework within which the circuit court
must operate. General remands, in contrast, give circuit courts authority to address all
matters as long as remaining consistent with the remand.
3. Upon remand of a case for further proceedings after a decision by this
Court, the circuit court must proceed in accordance with the mandate and the law of the
case as established on appeal. The trial court must implement both the letter and the spirit
of the mandate, taking into account the appellate court's opinion and the circumstances it
embraces.
4. A circuit court's interpretation of a mandate of this Court and whether
the circuit court complied with such mandate are questions of law that are reviewed de
novo.
5. When a circuit court fails or refuses to obey or give effect to the
mandate of this Court, misconstrues it, or acts beyond its province in carrying it out, the
writ of prohibition is an appropriate means of enforcing compliance with the mandate.
Davis, Justice:
Frazier & Oxley, L.C. and William M. Frazier (hereinafter “Frazier and
Oxley”) seek an original jurisdiction writ to prohibit Respondent Judge, the Honorable John
L. Cummings of the Circuit Court of Cabell County, from enforcing his order of April 1,
2003, granting the Respondent, St. James Management Company (hereinafter “St. James”)
leave to file an amended complaint against Frazier & Oxley and City National Bank Corp.
(hereinafter “City National”). Having reviewed the petition for prohibition and the
supporting memorandum of law, the responses, and all the accompanying exhibits, we
herein grant the writ.
In 1980 St. James's predecessor in interest, First Huntington Building
Corporation, entered into a lease agreement (hereinafter “the prime lease”) with the
predecessor in interest to City National, Old National Bank of Huntington.
(See footnote 1)
In 1987,
Frazier and Oxley subleased the St. James Building's mezzanine. After City National took
over the St. James Building, a dispute arose between St. James and Frazier & Oxley
concerning, among other things, the sublease. The two parties reached a settlement signed
on November 9, 1999. Under the pertinent settlement terms, the term of sublease was
“concurrent with the term of the master/primary lease . . . . and shall expire . . . upon the
expiration or termination of the master/primary lease . . . .”
In the fall of 2000, City National approached St. James seeking to end the prime lease. On September 27, 2000, City National and St. James entered into a lease termination agreement. Under this termination agreement, City National surrendered to St. James the main banking facility located in the St. James Building. In July 2001, Frazier & Oxley was informed that the sublease terminated as a result of the termination of the prime lease. Frazier & Oxley, however, remained on the premises. By letter of October 26, 2001, St. James provided official notice to Frazier & Oxley to vacate. After Frazier & Oxley refused to vacate, St. James sued seeking immediate possession of the mezzanine and damages. Frazier & Oxley subsequently filed a third-party complaint against City National.
The circuit court then granted St. James and City National a partial summary
judgment by ordering Frazier and Oxley to vacate the premises. Frazier & Oxley sought
a prohibition which we granted, holding that the rights of a subtenant depend on whether
the primary lease was “terminated,” which would also terminate the sublease, or was
“surrendered,” which would not affect the sublease. Frazier & Oxley I, 212 W. Va. at 281,
569 S.E.2d at 802. At that point in Frazier & Oxley I, we observed
[t]his would be the end of our inquiry were it not for the
settlement agreement which was executed between City
National and Frazier & Oxley. Absent that agreement, we
would simply reverse the circuit court's award of summary
judgment in favor of City National and St. James and remand
for a factual determination of whether a surrender of the prime
lease occurred.
Id., 569 S.E.2d at 802 (footnote omitted). We then recognized that if a subtenant consents
to the surrender, the consented to surrender would terminate the sublease, id. at 281-82, 569
S.E.2d at 802-03, but found that the settlement agreement between Frazier & Oxley and
City National could not be construed as Frazier and Oxley's consent to a surrender. Id. at
283, 569 S.E.2d at 804. Thus, we granted the writ of prohibition. Id., 569 S.E.2d at 805.
Having detailed the history of this case to the issuance of our opinion in Frazier & Oxley
I, we now discuss the pertinent facts as they have arisen since Frazier & Oxley I.
After this Court granted the requested writ, the parties returned to the circuit
court and conducted at least some additional discovery. Part of the discovery included the
partial deposition of William Frazier which was conducted on November 26, 2002. It also
appears that at some point Frazier & Oxley and City National settled their suit. According
to City National, “Frazier & Oxley has agreed to litigate th[e] matter without making third-
party claims against City National.”
On or about February 3, 2003, St. James filed a motion to amend their complaint under Rule 15(a) of the West Virginia Rules of Civil Procedure to add a claim that the Frazier & Oxley sublease was void against it as it was not recorded. (See footnote 2) St. James's motion also sought to add City National as a first-party defendant asserting that City National breached its duty to disclose the sublease and that it breached its contract with St. James. Frazier & Oxley objected to the motion arguing that: 1) amendment of the complaint is futile since St. James was on notice of Frazier & Oxley's possession of the mezzanine;
2) St. James failed to show “very compelling circumstances” required to justify amendment
following our adverse ruling on St. James's original theory; 3) St. James factually and
judicially admitted the validity of the sublease and was estopped from denying its validity;
and, 4) the law of the case doctrine barred St. James's amended complaint. By order of
April 1, 2003, the circuit court allowed the amendment.
(See footnote 3)
It is from this order that Frazier
& Oxley and City National seek extraordinary relief.
(See footnote 4)
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 often 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.
With due regard for this standard, we proceed to discuss the substantive issues
raised in connection with this request for a writ of prohibition.
Frazier & Oxley assert that the circuit court committed clear legal error in
permitting St. James to amend its complaint because such amendment would violate the law
of the case doctrine. We agree with Frazier & Oxley and take the opportunity this case
presents us to address the law of the case doctrine.
The law of the case doctrine “generally prohibits reconsideration of issues which have been decided in a prior appeal in the same case, provided that there has been no material changes in the facts since the prior appeal, such issues may not be relitigated in the trial court or re-examined in a second appeal.” 5 Am. Jur.2d Appellate Review § 605 at 300 (1995) (footnotes omitted). “[T]he doctrine is a salutary rule of policy and practice, grounded in important considerations related to stability in the decision making process, predictability of results, proper working relationships between trial and appellate courts, and judicial economy.” United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir. 1991).
Thus, consistent with these considerations, we have previously held, “[t]he general rule is
that when a question has been definitively determined by this Court its decision is
conclusive on parties, privies and courts, including this Court, upon a second appeal and
it is regarded as the law of the case.” Syl. Pt. 1, Mullins v. Green, 145 W. Va. 469, 115
S.E.2d 320 (1960).
(See footnote 5)
Of course, here we deal with a case that we remanded. In such circumstances,
a special aspect of the law of the case doctrine is implicated_the mandate rule.
(See footnote 6)
We have
explained that under the mandate rule
[a] circuit court has no power, in a cause decided by the
Appellate Court, to re-hear it as to any matter so decided, and,
though it must interpret the decree or mandate of the Appellate
Court, in entering orders and decrees to carry it into effect, any
decree it may enter that is inconsistent with the mandate is
erroneous and will be reversed.
Syl. Pt. 1, Johnson v. Gould, 62 W. Va. 599, 59 S.E. 611 (1907).
(See footnote 7)
See also United States v.
Vigneau, 337 F.2d 62, 67 (1st Cir. 2003) (“One aspect of the law of the case doctrine is the
'mandate' rule, which requires a district court to follow the decisions of a higher court.”).
Because the recording act claim clearly was not presented in Frazier & Oxley I, it could not
have been explicitly decided by this Court. Further, nothing in Frazier & Oxley I indicates
that we implicitly decided the validity of the sublease under the recording act.
(See footnote 8)
However, this does not end our inquiry. The mandate rule is not limited to
matters we decide either explicitly or implicitly on appeal. Rather, when this Court's
decision of a matter results in the case being remanded to the circuit court for additional
proceedings, our mandate controls the framework that the circuit court must use in effecting
the remand. To demonstrate how this rule should be applied, we first review the concepts
related to remands.
Appellate remands are characterized as general or limited. A general remand
broadly remands the case and “when a cause is broadly remanded for a new trial all of the
issues are opened anew as if there had been no trial, and the parties have a right to amend
their pleadings as necessary.” Overton Constr. Co. v. First State Bank, 285 Ark. 361, 362,
688 S.W.2d 268, 269 (1985). See also 5 Am. Jur.2d Appellate Review § 787 at 456 (1995)
(footnote omitted) (“[W]here a case is generally remanded by an appellate court, the case
stands as if it had never been tried, and thus the parties are free to amend their pleadings
and assert new causes of action.”). A limited remand, however, “prohibit[s] relitigation of
some issues on remand, or direct[s] that only some expressly severed issues or causes may
still be litigated.” Cherokee Water Co. v. Ross, 698 S.W.2d 363, 366 (Tex. 1985) (per
curiam). Under a limited remand, “the court on remand is precluded from considering other
issues, or new matters, affecting the cause.” 5 Am. Jur.2d Appellate Review § 787 at 455
(1995) (footnotes omitted). In other words, “'[w]hen the further proceedings are specified
in the mandate, the district court is limited to holding such as are directed. When the
remand is general, however, the district court is free to decide anything not foreclosed by
the mandate.'” Hicks v. Gates Rubber Co., 928 F.2d 966, 971 (10th Cir. 1991) (quoting 1B
Moore's Federal Practice ¶ 0.404 [10] (1988) (footnote omitted)). Simply put,
[r]emands . . . can be either general or limited in scope.
Limited remands explicitly outline the issues to be addressed
by the district court and create a narrow framework within
which the district court must operate. General remands, in
contrast, give district courts authority to address all matters as
long as remaining consistent with the remand.
United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999) (citations omitted).
Consequently, we hold that when this Court remands a case to the circuit court, the remand
can be either general or limited in scope. Limited remands explicitly outline the issues to
be addressed by the circuit court and create a narrow framework within which the circuit
court must operate. General remands, in contrast, give circuit courts authority to address
all matters as long as remaining consistent with the remand.
Although there is no universally applicable standard for determining whether
a remand is general or limited, and the particular intricacies of each case will bear on the
issue, there are certain relevant principles to be applied in making such a determination.
Id. at 266. For example, a court must look to the entire mandate, examining every part of
the opinion to determine if a remand is general or limited, as “[t]he relevant language could
appear anywhere in an opinion or order, including a designated paragraph or section, or
certain key identifiable language.” Id. at 266-67. We stress though “that individual
paragraphs and sentences must not be read out of context.” Id. at 267. Moreover, in the
absence of explicit instructions, a remand order is presumptively general.
(See footnote 9)
Id. at 268. In
short,
[u]pon remand of a case for further proceedings after a decision
by the appellate court, the trial court must “proceed in
accordance with the mandate and the law of the case as
established on appeal.” The trial court must “implement both
the letter and the spirit of the mandate, taking into account the
appellate court's opinion and the circumstances it embraces.”
United States v. Kikumura, 947 F.2d 72, 76 (3d Cir.1991).
(Citations omitted).
United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994). See also City of Cleveland v.
Federal Power Comm'n, 561 F.2d 344, 347 n.25 (D.C. Cir. 1977) (citations omitted) (“It
has long been recognized that the court's opinion may be consulted to ascertain the intent
of the mandate. That may now be all the more necessary since the mandate may--and at
least in this circuit ordinarily does--consist of no more than the court's opinion and
judgment. See Fed. R. App. P. 41(a).”) We find this authority also persuasive
(See footnote 10)
and so hold
that upon remand of a case for further proceedings after a decision by this Court, the circuit
court must proceed in accordance with the mandate and the law of the case as established
on appeal. The trial court must implement both the letter and the spirit of the mandate,
taking into account the appellate court's opinion and the circumstances it embraces. In
other words, an opinion does not have to specifically contain the word “remand” in order
to convey such a directive to the circuit court.
With these matters at rest, we must examine the instant proceedings to
determine whether the circuit court exceeded our mandate in Frazier & Oxley I by allowing
St. James to amend its complaint to bring a new theory under the recording statutes. As an
initial matter, though, we note that we have never before examined what standard of review
applies to our determination of whether a circuit court's proceedings on remand violated
this Court's mandate. Consequently, we pause briefly to explain our mode of review. Like
the interpretation of other legal documents, such as constitutions, statutes and procedural
rules,
(See footnote 11)
we believe that the interpretation of one of our mandates, and the corresponding
question of whether the circuit court complied with the mandate, are questions of law that
should be reviewed de novo. Other courts examining this issue have reached similar
conclusions. As the Court of Appeals for the Federal Circuit observed in adopting a de
novo standard, “de novo review appears to be the standard of review that several Circuit
Courts of Appeals have adopted.” Laitram Corp. v. NEC Corp., 115 F.3d 947, 950 (Fed.
Cir. 1997) (citing 2, 9, 10 and 11 circuit cases). See also United States v. O' Dell, 320 F.3d
674, 679 (6th Cir. 2003) (mandate interpretation is de novo); Pennington v. Doherty, 110
F.3d 502, 506 (7th Cir.) (similar), vacated on other grounds, 522 U.S. 909, 118 S. Ct. 292,
139 L. Ed.2d 225 (1997). Our research has revealed that this is the view in the state courts
as well. E.g., Wheeler Springs Plaza, LLC v. Beemon, 71 P.3d 1258, 1260 (Nev. 2003);
Moeller-Prokosch v. Prokosch, 53 P.3d 152, 154 (Alaska 2002); Insurance Corp. v. Barker,
628 A.2d 38, 40 (Del. 1993); In re Marriage of Molloy, 181 Ariz. 146, 149, 888 P.2d 1333,
1336 (Ct. App. 1994). Indeed, it would be contrary to common sense “to suggest that we
must defer to what a trial judge inferred about our intent in what we wrote [in our
mandate].” Laitram, 115 F.3d at 951 (emphasis deleted). We thus hold that a circuit
court's interpretation of a mandate of this Court and whether the circuit court complied with
such mandate are questions of law that are reviewed de novo. Having set forth our standard
of review, we now turn to the substantive issue before us and therefore answer the
question: was our remand in Frazier and Oxley I limited so as to preclude St. James from
amending its complaint? See Moored, 38 F.3d at 1421. In so answering, we examine each
part of our opinion in Frazier & Oxley I.
(See footnote 12)
In Frazier & Oxley I, Frazier & Oxley sought a prohibition which we granted,
holding that the rights of a subtenant depend on whether the primary lease was
“terminated,” which would also terminate the sublease, or was “surrendered,” which would
not affect the sublease. Frazier & Oxley I, 212 W. Va. at 280, 569 S.E.2d at 802. After
establishing these new points law, we observed
[t]his would be the end of our inquiry were it not for the
settlement agreement which was executed between City
National and Frazier & Oxley. Absent that agreement, we
would simply reverse the circuit court's award of summary
judgment in favor of City National and St. James and remand
for a factual determination of whether a surrender of the prime
lease occurred.
Id., 569 S.E.2d at 802. We then recognized that if a subtenant consents to the surrender, the
surrender ends any rights a subtenant has under the prime lease. We consequently examined
the settlement agreement between Frazier & Oxley and City National to determine if it
could be construed as Frazier and Oxley's consent to a surrender. Id. at 282-83, 569 S.E.2d
at 803-4. We concluded that the settlement could not be construed as a consent. Id. at 283,
569 S.E.2d at 804. Given that we found the settlement agreement between City National
and Frazier & Oxley did not have any relevance to the issue of whether the prime lease was
terminated or surrendered, the operative part of the opinion in Frazier & Oxley I for
determining the nature of our remand relates back to our observation that, but for the
settlement agreement, we would have remanded the case back to the circuit court to conduct
proceedings “for a factual determination of whether a surrender of the prime lease
occurred.” Id. at 281, 569 S.E.2d at 802 (footnote omitted). Consequently, our remand in
Frazier & Oxley I was not a general remand opening all aspects of the case, but was a
limited one encompassing only “a factual determination of whether a surrender of the prime
lease occurred.” The circuit court's decision to allow St. James to amend its complaint to
add a new theory of recovery based on the recording act exceeded the limited remand in
Frazier & Oxley I.
St. James argues, however, that its discovery of the written sublease and Mr. Frazier's deposition constitute new evidence justifying departure from the mandate. (See footnote 13) We have previously recognized that the discovery of new evidence could justify a departure from the mandate. Thus, in State ex rel. Evelyn v. Madden, 202 W. Va. 634, 637, 505 S.E.2d 697, 700 (1998) (per curiam) we refused a prohibition because “[w]hile the circuit court [was] technically in violation of this Court's mandate, it [was] apparent that, based on new information and evidence not available when this Court's prior decision was rendered, the circuit court's motivation [was] to promote the health and welfare of [the child in the case].” See Standard Oil Co. v. United States, 429 U.S. 17, 18, 97 S. Ct. 31, 32, 50 L. Ed.2d 21, 23 (1976) (per curiam) (holding that a trial court does not violate the mandate rule in addressing a Rule 60(b) motion in a case affirmed on appeal because “[l]ike the original district court judgment, the appellate mandate relates to the record and issues then before the court, and does not purport to deal with possible later events. Hence, the district judge is not flouting the mandate by acting on the motion.”). However, the newly discovered evidence exception to the mandate rule, like the rule's other limited exceptions,
is “narrowly configured and seldom invoked[,] ” United States v. Connell, 6 F.3d 27, 31 (1st
Cir. 1993), being triggered only when “'significant new evidence, not earlier obtainable in
the exercise of due diligence[, has come to light][.]'” United States v. Bell, 5 F.3d 64, 67 (4th
Cir. 1993) (quoting United States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993)).
(See footnote 14)
Here, we do
not think St. James has met its heavy burden of demonstrating that significant new
evidence, not earlier obtainable through the exercise of due diligence, has come to light.
In fact, St. James admits that on December 12, 2001, it received a copy of the
written sublease. Thus, we cannot conclude that the written sublease was undiscovered at
the time of the filing of the original prohibition petition in Frazier & Oxley I which occurred
on February 14, 2002. Nor can we conclude that it was newly discovered evidence when
St. James filed its motion to amend on February 3, 2003. Moreover, to the extent St. James
claims that it needed Mr. Frazier's deposition to determine if its recording act claim was
valid, it could have earlier secured such testimony by waiting to file its motion for partial
summary judgment until after it had taken Mr. Frazier's deposition. St. James has failed
to meet its burden of showing the testimony was not earlier obtainable. Finally, since Mr.
Frazier testified that he did not know whether the sublease was recorded and St. James
confirms that its title search revealed the sublease was not recorded--we find it difficult to
conclude that Mr. Frazier's deposition testimony was significant. Simply put, St. James has
not shown the circuit court was justified in departing from our limited remand.
(See footnote 15)
Having found that the circuit court departed from our mandate without
justification,
(See footnote 16)
we must now determine if the writ of prohibition is an appropriate vehicle
to enforce our remand. We so find. As the Texas Supreme Court held in Cherokee Water
Co., 698 S.W.2d at 366:
When the opinion and mandate of this court prohibit
relitigation of some issues on remand, or direct that only some
expressly severed issues or causes may still be litigated, and the
parties and trial court attempt relitigation beyond that which
was expressly permitted, a writ of prohibition will issue to
prohibit relitigation.
See also Berthelot v. Dezso, 86 Ohio St.3d 257, 259, 714 N.E.2d 888, 890 (1999) (per
curiam) (“Writs of mandamus and prohibition are appropriate to require lower courts to
comply with and not proceed contrary to the mandate of a superior court.”); 63C Am. Jur.2d
Prohibition § 66 at 44 (1997) (footnote omitted) (“When a trial court fails or refuses to obey
or give effect to the mandate . . .of the reviewing court, misconstrues it, or acts beyond its
province in carrying it out, the appellate court may enforce compliance with its mandate
. . . by a writ of prohibition.”). Thus, we hold that when a circuit court fails or refuses to
obey or give effect to the mandate of this Court, misconstrues it, or acts beyond its province
in carrying it out, the writ of prohibition is an appropriate means of enforcing compliance
with the mandate. Consequently, we grant the writ.
(See footnote 17)
impose limits on the trial courts outside of the context of the specific issue upon which the
writ was granted. However, in Frazier & Oxley I, the parties presented the case to this Court
in a way that required us to go beyond the narrow issue presented in prohibition to decide the
case. Stated simply, any remand issued by this Court in a prohibition action will ordinarily
be a general remand.
Footnote:
10
Id. Thus, we find federal cases interpreting Federal Rule of Appellate
Procedure 41(a) to be persuasive.
Footnote:
11
on a particular point on a former hearing will be regarded as the law of
the case on a second appeal unless new pleadings and new evidence adduced on
the subsequent trial call for a different judgment.” Smith's syllabus
dealt with the general law of the case doctrine as it applied to a “second
appeal.” In the instant case, we address the power of a trial court to
depart from a mandate. Smith is thus not applicable as the law of the
case doctrine under the mandate rule applies with greater strictness in the
trial court than the general law of the case doctrine does in this Court. See
United States v. Tenzer, 213 F.3d 34, 40 (2d Cir. 2000) (“[T]he law
of the case doctrine does not bind us with the same rigidity as it binds the
district court.”); LaShawn A. v. Barry, 87 F.3d 1389, 1393 n.3
(D.C. Cir. 1996) (“[A]n even more powerful version of the doctrine--sometimes
called the 'mandate rule'--requires a lower court to honor the decisions of
a superior court in the same judicial system.”).
Footnote:
14