Albright, Justice, dissenting:
Although the majority accurately discusses the law with regard to remand after
an appeal and addresses a related doctrine known as the law of the case, application of those
principles to this case was not warranted given the jurisdictional basis for this Court's ruling
in Oxley I,
(See footnote 1)
the extremely limited nature of our substantive rulings in Oxley I, and the
absolute lack of procedural limitations placed on the lower court's actions by our previous
ruling. Through its ruling in the case sub judice, an original jurisdiction petition for a writ
of prohibition, the majority has denied to the lower court the power to make a procedural
ruling which it has the discretion to make in a case over which it continues to have
jurisdiction. Accordingly, I must respectfully dissent to the majority's decision.
Because our decision in Oxley I was to grant a writ of prohibition, nothing was
before us in Oxley I regarding the underlying civil action except petitioners' successful effort
to prevent enforcement of the lower court's grant of partial summary judgment in that
underlying civil action. Accordingly, there was no prototypical remand in Oxley I in the
sense that this Court directed the lower court to hold further proceedings for the purpose of
resolving a particular factual or legal issue. Instead, this Court, through its issuance of a writ
of prohibition in Oxley I, simply refused to allow the enforcement of a partial summary
judgment ruling in the underlying case. Otherwise, the lower court retained jurisdiction of
the underlying civil action throughout our consideration of Oxley I and this Court never
acquired jurisdiction of that underlying civil action. Consequently, the effect of this Court's
issuance of an extraordinary writ in Oxley I was merely to put the parties back in the midst
of the litigation, headed for a trial on the issues presented. See MOM Corp. v.
Chattahoochee Bank, 418 S.E.2d 74, 76 (Ga.App.1992) (recognizing that “[o]n a reversal
of summary judgment, a case is remanded in the posture existing prior to summary
judgment”).
The majority's attempt to cloak its decision with
legitimacy by suggesting that the law of the case prevents the lower court
from granting a motion to amend a complaint was exceedingly imprudent. Had
this Court through its ruling in Oxley I expressly ruled that no amendments
to the complaint could be entertained, then the law of the case doctrine would
prevent the trial court from subsequently allowing such an amendment. Instead,
under the guise of a supposed failure of the lower court to observe our mandate
in Oxley I(including our opinion in that proceeding), this Court has stripped the trial judge of his
discretion to permit an amendment of the pleadings by characterizing his decision in that
regard as being in excess of his jurisdiction, and thereby justifying the issuance of a second
writ of prohibition. The trial judge clearly acted within his jurisdiction and is vested by our
law with discretion to permit an amendment of the pleadings. The most this Court might say
if his ruling were later to come before us on appeal, and we disagreed with his decision
regarding amendment of the pleadings, is that the trial court abused that discretion. Such
an abuse of discretion, however, does not constitute an act in excess of a lower court's
jurisdiction and is an insufficient basis for the issuance by this Court of a writ of prohibition,
as was done in this case.
To justify its inappropriate and untimely intrusion upon the discretion vested
in the trial court, the majority concludes that the trial court disregarded the law of the case.
That is wholly unjustified. In fact, in just over three pages of discussion in Oxley I, this
Court made only one ruling that could be viewed as controlling under the law of the case
doctrine: That the settlement agreement between the parties was ambiguous. Were the trial
court to have sought to uphold the settlement agreement following the issuance of the writ
of prohibition, the law of the case would have controlled and prevented the enforcement of
such a ruling. No such ruling was made by the trial court.
Instead the majority seeks to elevate what is merely dicta in Oxley I to the
status of binding direction to the trial court. The majority asserts that our speculative
comment that “[a]bsent that [settlement] agreement, we would simply reverse the circuit
court's award of summary judgment . . . and remand for a factual determination of whether
a surrender of the prime lease occurred” constituted a binding direction to the trial court
which prohibited consideration of any motions to amend the pleadings.
(See footnote 2)
212 W.Va. at 281,
569 S.E.2d at 802. The fact is that this Court issued a straightforward writ of prohibition
simply prohibiting the enforcement of the lower court's partial judgment order. The writ in
Oxley I was not moulded in any manner to instruct the lower court to do or not do anything
else in the underlying case.
Critically, the majority seeks to apply the law of the case doctrine to bar the
lower court from its jurisdictional right to make discretionary rulings on matters of
procedure in cases over which it has, and has always retained, original jurisdiction rather
than, as might have been appropriate, to bar additional litigation of a substantive matter that
might have been _ but was not in Oxley I _ ruled upon and resolved by this Court. The law
simply does not bind the hands of a trial court in the manner imposed by the majority here.
While the law of the case doctrine bars reopening or reconsideration of a
question of law or fact that has been definitively determined by this Court, (See
footnote 3) it does not abrogate the lower court's
authority to consider motions for the addition of new parties or the amendment
of pleadings or the taking of additional evidence. See Cauble v. Cauble, 515
S.E.2d 708 (N.C. App. 1999) (holding that trial court on remand could in its
sole discretion receive such further evidence and argument from parties as
it deemed necessary and appropriate); Chattahoochee Bank, 418 S.E.2d
at 75 (finding that failure of appellate court upon reversal of summary judgment
to expressly direct taking of new evidence did not prohibit lower court from
receiving additional evidence on remand); Blue v. Campbell, 57 W.Va.
34, 49 S.E. 909 (1905) (observing that even absent directions to permit amendment
of pleadings, such amendment may occur on remand); see also Syl. Pt.
5, Maynard v. Hammond, 139 W.Va. 230, 79 S.E.2d 295 (1953) (“The
determination of an issue in an extraordinary proceeding in this Court constitutes
the law of the case in a subsequent proceeding on writ of error or appeal wherein
the real parties in interest and the issues are the same, and there has been
nothing new injected by pleadings or evidence which calls for a different conclusion.”); Syl.
Pt. 2, Moran v. Leccony Smokeless Coal Co.,124 W.Va. 54, 18 S.E.2d
808 (1942) (“In the absence of new pleadings, or new evidence,
calling for a different judgment, the decisions of this Court in a suit or
action brought before it for review will be treated as the law of the case
on second appeal or writ of error.”); Syl. Pt. 2, Keyser Canning Co. v. Klots Throwing
Co., 98 W.Va. 487, 128 S.E. 280 (1925) (“The decision of this court 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.”)
In reaching its decision, the majority completely sidesteps the fact that
discretion remains in the trial court on remand
(See footnote 4)
as to matters that routinely fall within the
lower court's decision making authority. See generally 5 Am.Jur.2d Appellate Review § 786
(1995) (observing that trial courts are vested with broad discretion regarding handling of
matters remanded with general directions for further proceedings); 1B Michie's
Jurisprudence Appeal and Error § 342 (stating that while mandate controls as to matters
within its compass, lower court is free as to other issues left open on remand).
While the majority waxes on about how the trial court acted counter to its
mandate, the mandate was issued without any specific directions on its face or in the
accompanying opinion. That mandate, which the majority chose not to recite in its opinion,
says nothing other than the writ of prohibition is granted and “this action is remanded to the
Circuit Court of Cabell County for further proceedings in accordance with the written
opinion.” The opinion, which is viewed as part of the mandate, is also without direction as
to what specific action the trial court is supposed to take, or not take, when the matter is
permitted to proceed before the lower court. Oxley I closes with a simple holding that
summary judgment was wrongly granted. No guidelines for remand were provided by this
Court and consequently no limits were placed on the trial court's actions other than to act
consistent with the mandate.
By failing to heed the significance of the special nature of the Court's
prohibition jurisdiction in Oxley I, the majority overlooks the rationale underlying the rule
of the case doctrine. Our review in cases that are accepted pursuant to this Court's
extraordinary jurisdiction is by design more circumscribed than in matters that are reviewed
under our general appellate jurisdiction. As was the case in both Oxley I and II,
extraordinary jurisdiction cases typically involve consideration of limited issues and often
require a decision before the case has been fully litigated. What the rule of the case doctrine
is aimed at preventing is relitigation of issues that have been fully addressed by an appeals
court. In marked contrast to a case that is properly remanded by this Court following appeal,
our scope of review in Oxley I was confined to considering solely the partial summary
judgment issue, based on a limited factual development. In setting aside the lower court's
judgment, this Court decided a single, narrow question of law. Because we did not decide
the ultimate issue in Oxley I concerning the underlying case _ whether a surrender of the
prime lease had occurred _ and did not give the Circuit Court of Cabell County any direction
related to that ultimate issue, the majority's reliance on the rule of the case doctrine as
barring the circuit court's discretionary grant of a motion to amend pleadings is clearly
wrong. See Chattahoochee Bank, 418 S.E.2d at 75 (holding that “following appellate
review of summary judgment, 'the law of the case' rule does not limit or prohibit the trial
court from receiving new evidence which changes the evidentiary posture of the case”).
To suggest that the trial court was essentially thumbing its nose at this Court's
rulings by permitting an amended complaint to be filed when this Court made no
determination on the ultimate issue, in my opinion, is an injudicious and unjustified attempt
to broaden the law of the case doctrine.
(See footnote 5)
Furthermore, to conclude, as did the majority, that
the trial court failed to adhere to the scope of the mandate is an undeniable and indefensible
reach given that the mandate issued by this Court in Oxley I imposed no limitations on the
trial court other than a reversal of its grant of partial summary judgment based on the
ambiguous terms of the settlement agreement.
(See footnote 6)
The majority opinion is patently unfair to
the circuit judge because this Court gave him no reason whatsoever to conclude that he had
been deprived of discretion to permit subsequent amendment of the pleadings. A review of
his exercise of that discretion might have been appropriate upon appeal of the underlying
case but not by way of the instant writ of prohibition
I would have refused the writ in this case and allowed the matter to proceed
to trial without further interference by this Court. I cannot escape the conclusion that the
majority's view of this case proceeds, at least in part, from a settled effort to choose the
winner before the relevant issues have been fully tried and heard.
I further observe that this case illustrates an unfortunate confusion that has
slipped into the practice and procedures of this Court which should be remedied by us in
future cases. The majority's entire discussion about remands is misplaced in this case and
the inclusion in the mandate in Oxley I of language about a “remand” underlines the
problem.
When a case is before us on appeal, where we have taken appellate jurisdiction
of a matter first heard in a lower tribunal, we do indeed “remand” that case to a lower
tribunal, most often with directions that bind and direct the lower court. Those directions
may be expressed in the opinion which forms a part of our judgment in the case but may also
be set forth in extenso in the mandate.
Unfortunately, a search of our order books discloses that on numerous
occasions this Court, and on occasion, this author, has spoken in original jurisdiction cases
of “remanding” the case and the mandate has, on occasion also utilized such “remand”
language. We should stop both practices immediately. Upon appeal we may remand. In an
original jurisdiction case, we may grant a straightforward writ or mould it in one or more
particulars. However, in such original jurisdiction cases we should be careful not to assert
that we “remand.”
(See footnote 8)
We should stop that practice now!
For the above stated reasons, I respectfully dissent.
On the other hand, when we undertake a ruling in a case where we are
exercising original jurisdiction, such as mandamus or prohibition, we do not proceed based
on the case that was initiated in the lower court, although we may indeed have before us
certain facts or rulings developed in a lower court. We may, in exercising our original
jurisdiction, impose one or more directions on a lower court applicable to and forming a part
of the law of a case then pending in that lower court. Importantly, the case proceeds in a
manner that is separate from and thus viewed as extraordinary in comparison to our appellate
jurisdiction. The relief we grant in that situation is awarded by a writ. It may be a simple,
straightforward direction to the lower court; it may be a more complex, multi-faceted
directive. In the former case, the relief awarded is by means of a writ; in the latter case, it
most often is a moulded writ. What it is not is a “remand.”
(See footnote 7)
Footnote: 1