          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                           _______________
                                                                            FILED
                                    No. 17-0206                          April 6, 2018
                                  _______________                          released at 3:00 p.m.
                                                                       EDYTHE NASH GAISER, CLERK

                                                                       SUPREME COURT OF APPEALS

                                  January 2018 Term                         OF WEST VIRGINIA




                      TERRI SMITH AND KENNETH SMITH,
                           Plaintiffs Below, Petitioners

                                          v.

   ROBERT TODD GEBHARDT, MICHAEL COYNE, AND TRIPLE S&D, INC., 

                   Defendants Below, Respondents


           _____________________________________________________
                   Appeal from the Circuit Court of Ohio County

                       The Honorable David J. Sims, Judge

                            Civil Action No. 13-C-323


                            Reversed and Remanded

          _______________________________________________________
                          Submitted: February 13, 2018
                              Filed: April 6, 2018

Ronald Wm Kasserman, Esq.                      P. Joseph Craycraft, Esq.
Kasserman Law Offices, PLLC                    Katherine N. Dean, Esq.
Wheeling, West Virginia                        Swartz Campbell LLC
Counsel for Petitioners                        Wheeling, West Virginia
                                               Counsel for Respondent Robert Todd
                                               Gebhardt

                                               Mark Kepple, Esq.
                                               Bailey & Wyant, PLLC
                                               Wheeling, West Virginia
                                               Counsel for Respondents Michael Coyne
                                                  and Triple S&D, Inc.

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court
JUSTICE DAVIS concurs and reserves the right to file a concurring opinion.
                              SYLLABUS BY THE COURT



              1. “In formulating the appropriate sanction, a court shall be guided by

equitable principles. Initially, the court must identify the alleged wrongful conduct and

determine if it warrants a sanction. The court must explain its reasons clearly on the record

if it decides a sanction is appropriate. To determine what will constitute an appropriate

sanction, the court may consider the seriousness of the conduct, the impact the conduct had

in the case and in the administration of justice, any mitigating circumstances, and whether

the conduct was an isolated occurrence or was a pattern of wrongdoing throughout the case.”

Syl. Pt. 2, Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996).



              2. “Imposition of sanctions of dismissal and default judgment for serious

litigation misconduct pursuant to the inherent powers of the court to regulate its proceedings

will be upheld upon review as a proper exercise of discretion when trial court findings

adequately demonstrate and establish willfulness, bad faith or fault of the offending party.”

Syl. Pt. 7, State ex rel. Richmond Am. Homes of W. Va., Inc. v. Sanders, 226 W.Va. 103, 697

S.E.2d 139 (2010).
Workman, Chief Justice:



              This case is before the Court upon the appeal of Terri and Kenneth Smith

(hereinafter “the Petitioners”) from a February 3, 2017, order of the Circuit Court of Ohio

County dismissing their civil action as a sanction for alleged discovery violations. Upon

review of the briefs, arguments of counsel, appendix record, and applicable precedent, this

Court reverses the circuit court’s decision and remands this matter for further proceedings

consistent with this opinion.



                                I. Factual and Procedural History

              The Petitioners contracted with the Respondent Robert Gebhardt (hereinafter

“Gebhardt”) in 2009 to construct a single story home with cement block foundation and

concrete basement flooring for $226,102.23. Portions of the basement were to be finished

with dry wall and ceiling. Brick was to be placed on the home’s exterior, creating a three-

foot veneer around the bottom wall of the home, with the remainder of the exterior finished

with aluminum siding.



              Approximately four months after the Petitioners took occupancy of the home,

they informed Gebhardt that the block in the basement was wet. According to the

Petitioners, Gebhardt unsuccessfully attempted to remedy the water infiltration for the


                                               1

following three years. On September 27, 2013, with an amended complaint filed on

December 18, 2014, the Petitioners instituted a civil action alleging unfair and deceptive acts;

breach of express and implied warranties; breach of contract; negligence; intentional

interference with warranty contracts; common law fraud and fraudulent inducement; and

intentional, willful, wanton, malice or outrageous conduct.1 On September 21, 2015,

Gebhardt filed multiple motions in limine, a motion for sanctions, and a motion to strike

regarding the Petitioners’ experts. He also filed five motions for summary judgment on

various theories of liability and a motion to dismiss based upon spoliation of evidence.

Respondent Coyne also filed twelve motions with the circuit court.



              During an October 16, 2015, pretrial conference, the circuit court considered

Gebhardt’s motion to dismiss. The motion to dismiss was based upon Gebhardt’s allegations

that the Petitioners intentionally caused water damage by positioning a garden hose at the

exterior corners of the home; that their expert collected mold samples without notice to the

defendants; that they blocked their foundation drainage system; that they inappropriately

removed part of the exterior brick; and that they deconstructed an interior bannister post.




       1
        The original complaint was filed against Gephardt, supplier Lumber Liquidators, and
an unknown contractor. The amended complaint included Respondents Michael Coyne and
Triple S&D as defendants. Those defendants had been hired for the purpose of completing
masonry work, block foundation, and brick veneer on the home construction project.

                                               2

              The circuit court ultimately postponed trial until November 14, 2016, due to

the “volume of pretrial motions, responses, exhibits and expert testimony for the Court to

address. . . .” In April 2016, the circuit court denied Gebhardt’s motion to dismiss, finding

that dismissal was not an appropriate remedy for the conduct alleged.2 In October 2016, the

circuit court ruled on various discovery motions, addressing the defendants’ concerns by

limiting expert testimony, excluding certain evidence, and indicating that adverse inference

jury instructions would be considered at trial. No more drastic sanctions, such as dismissal,

were mentioned at that time.



              On November 8, 2016, Gebhardt was personally served by a professional

process server, John Dan Livingston, with a subpoena duces tecum requesting Gebhardt to

bring to trial on November 14, 2016, “receipts for gravel applied to the basement floor . . .

before the concrete was poured.” Gebhardt’s counsel was not served.



              Gephardt filed a second motion to dismiss the civil action on November 9,

2016, arguing that service of the subpoena duces tecum directly upon him, without notice to

his counsel, constituted “harassment and intimidation of a key party-defendant in litigation



       2
        In April 2016, the circuit court also granted summary judgment in Gebhardt’s favor
on the Petitioners’ claims of fraud and fraudulent inducement, intentional interference with
warranty contracts, violations of the consumer credit and protection statute, and punitive
damages.

                                             3

on the eve of trial.” The circuit court responded by cancelling the November 14, 2016, trial

and setting the matter for a November 15, 2016, evidentiary hearing.



                The Petitioners and Gebhardt testified during the evidentiary hearing.

Gebhardt denied being harassed, intimidated, or threatened by the service of the subpoena

directly upon him. The subcontractor defendants, Coyne and Triple S&D, indicated that they

“did not take any position on the Motion” to dismiss. Gebhardt did not file a motion to quash

the subpoena.



                On February 3, 2017, the circuit court granted Gebhardt’s motion to dismiss

as a sanction for the alleged discovery violations. The circuit court identified ten instances

of alleged wrongful conduct by the Petitioners. These instances, developed in further detail

in the discussion portion of this opinion, generally include the following: placing orange

paint on portions of the basement wall to mark areas of hollow walls; intentionally causing

water damage to the home; removal of some brick; blocking a drain; performing testing on

a bannister without notice to the defendants; performing mold tests without notice to the

defendants; presenting inaccurate expert disclosures; inappropriately recording a

conversation with Gephardt; inappropriately communicating with Gebhardt’s Rule 26(b)(4)3

       3
       Rule 26(b)(4) of the West Virginia Rules of Civil Procedure, in pertinent part,
provides:

                                                                                 (continued...)

                                              4

non-testifying consultant; and improperly serving a subpoena duces tecum directly upon

Gebhardt without notice to his counsel.




      3
          (...continued)
                 Trial Preparation: Experts. Discovery of facts known and
                 opinions held by experts, otherwise discoverable under the
                 provisions of subdivision (b)(1) of this rule and acquired or
                 developed in anticipation of litigation or for trial, may be
                 obtained only as follows:

                           (A)(i) A party may through interrogatories require
                           any other party to identify each person whom the
                           other party expects to call as an expert witness at
                           trial, to state the subject matter on which the
                           expert is expected to testify, and to state the
                           substance of the facts and opinions to which the
                           expert is expected to testify and a summary of the
                           grounds for each opinion.

                           (ii) A party may depose any person who has been
                           identified as an expert whose opinions may be
                           presented at trial.

                           (B) A party may discover facts known or opinions
                           held by an expert who has been retained or
                           specially employed by another party in
                           anticipation of litigation or preparation for trial
                           and who is not expected to be called as a witness
                           at trial, only as provided in Rule 35(b) or upon a
                           showing of exceptional circumstances under
                           which it is impracticable for the party seeking
                           discovery to obtain facts or opinions on the same
                           subject by other means.

                                                   5

                 The Petitioners appeal, contending that the circuit court based its sanction upon

a variety of erroneous legal conclusions and that dismissal of the civil action was an abuse

of discretion.



                                     II. Standard of Review

                 This Court has consistently applied an abuse of discretion standard in our

review of matters regarding the imposition of sanctions by a lower court. Bartles v. Hinkle,

196 W.Va. 381, 472 S.E.2d 827 (1996). Recognizing the authority of a circuit court “to

fashion an appropriate sanction for conduct which abuses the judicial process,” this Court

has also provided guidance to courts in fashioning sanctions for discovery misconduct. Id.

at 389, 472 S.E.2d at 835 (internal quotations omitted). In syllabus point two of Bartles, this

Court explained:

                         In formulating the appropriate sanction, a court shall be
                 guided by equitable principles. Initially, the court must identify
                 the alleged wrongful conduct and determine if it warrants a
                 sanction. The court must explain its reasons clearly on the
                 record if it decides a sanction is appropriate. To determine what
                 will constitute an appropriate sanction, the court may consider
                 the seriousness of the conduct, the impact the conduct had in the
                 case and in the administration of justice, any mitigating
                 circumstances, and whether the conduct was an isolated
                 occurrence or was a pattern of wrongdoing throughout the case.

This Court also cautioned in Bartles that although no formal procedures are required when

issuing a sanction,



                                                 6

              a court must ensure it has an adequate foundation . . . and [t]he
              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
              any sanction imposed is fashioned to address the identified harm
              caused by the party’s misconduct.

196 W.Va. at 384, 472 S.E.2d at 830. With those standards as guidance, we address the

contentions of the parties to this appeal.



                                       III. Discussion

              Dismissal of a civil action as a sanction for a party’s inappropriate conduct

during discovery is a severe result to be used sparingly. Imposition of such a drastic sanction

is justified only where an offending party has engaged in willfulness, bad faith, or fault. This

principle was explained in syllabus point seven of State ex rel. Richmond American Homes

of West Virginia, Inc. v. Sanders, 226 W.Va. 103, 697 S.E.2d 139 (2010), as follows:

                      Imposition of sanctions of dismissal and default judgment
              for serious litigation misconduct pursuant to the inherent powers
              of the court to regulate its proceedings will be upheld upon
              review as a proper exercise of discretion when trial court
              findings adequately demonstrate and establish willfulness, bad
              faith or fault of the offending party.

This Court also articulated the basis for this approach in Richmond:

              As was stated in Cattrell Cos. v. Carlton, Inc., 217 W.Va. 1, 14,
              614 S.E.2d 1, 14 (2005), “dismissal and default [judgment] are
              [considered] drastic sanctions that should be imposed only in
              extreme circumstances.” See also Doulamis v. Alpine Lake

                                               7

              Prop. Owners Ass’n, Inc., 184 W.Va. 107, 112, 399 S.E.2d 689,
              694 (1990) (stating that “dismissal, the harshest sanction, should
              be used sparingly and only after other sanctions have failed to
              bring about compliance.”); Bell v. Inland Mut. Ins. Co., 175
              W.Va. at 172, 332 S.E.2d at 134 (1985) (advising that the
              sanction of default judgment “should be used sparingly and only
              in extreme situations [in order to effectuate] the policy of the
              law favoring the disposition of cases on their merits.”).

226 W.Va. at 113, 697 S.E.2d at 149.



              Clearly compelling a two-step inquiry upon appellate review, this Court

explained in Richmond that our evaluation must include separate components. First, we must

examine “whether the sanctioning court identified the wrongful conduct with clear

explanation on the record of why it decided that a sanction was appropriate.” Id. Second,

              [w]e then must determine whether the sanction actually imposed
              fits the seriousness of the identified conduct in light of the
              impact the conduct had in the case and the administration of
              justice, any mitigating circumstances, and with due
              consideration given to whether the conduct was an isolated
              occurrence or a pattern of wrongdoing.

Id.



              Adhering to that evaluation protocol, we first examine the conduct for which

the Petitioners in this case were ultimately sanctioned, as chronicled by the circuit court. The

circuit court identified ten distinct areas of alleged misconduct; each is outlined separately

below.


                                               8

                 1. The circuit court noted that the Petitioners permitted Jake Lammott of

Ground Penetrating Radar Systems to place orange paint on portions of the basement block

wall to mark areas of allegedly hollow walls. Through this procedure of utilizing a scanner

to locate hollow portions of the walls, the Petitioners attempted to determine whether

Gephardt was being truthful when he said the basement walls were poured with solid

concrete. Gephardt’s counsel performed two informal inspections of the home before the

orange paint was placed, and he had disclosed photos taken during those inspections as trial

exhibits.4 Mr. Lammott’s investigation did not alter the walls in any manner; particular areas

were simply marked with orange paint. The circuit court addressed this issue in an October

5, 2016, order and deferred ruling on Gebhardt’s motion to strike the Petitioners’ expert, Jake

Lammott, until an objection could be raised at trial; no sanctions were referenced in that

order.       In the 2017 dismissal order currently on appeal, however, the circuit court

characterized the orange paint incident as “secretly destroying and manipulating evidence”

and used it as a basis for granting Gebhardt’s second motion to dismiss.5




         4
        The Petitioners assert that over 123 photographs were taken prior to the placement
of orange paint on the unfinished block walls of the basement. Those photographs showed
wetness and staining over a three-year period and were provided to Gebhardt prior to his
causation engineer’s inspection of the home on October 19, 2014.
         5
         The Petitioners argue that the circuit court could have imposed a sanction for their
painting of the walls, such as exclusion of expert testimony or photographs, but that dismissal
of their civil action is overly punitive.


                                              9

              2. The circuit court addressed the issue of the Petitioners’ intentional watering

of an area around the foundation of the home. This water testing was accomplished

approximately five months before the complaint was filed, and the Petitioners alleged that

Gephardt had also attempted the watering test in an effort to determine the precise location

of water intrusion. On appeal, the Petitioners emphasize that the circuit court granted a

motion in limine to preclude evidence related to watering because it did not constitute a

scientific test performed under proper supervision. No mention of sanctions was made by

the circuit court at the time it precluded that evidence.



              3. The circuit court found that the Petitioners’ removal of a 20" x 22" portion

of the brick veneer was improper. The removal revealed less than one inch of air space

between the brick veneer wall and the underlying wall. It also revealed the absence of

flashing between the lower concrete block foundation and the first brick layer. The removal

was undertaken in November 2014 and served as a ground for Gebhardt’s first motion to

dismiss. In denying that motion in April 2016, the circuit court specified that the sanction

of dismissal was not warranted. Gebhardt had already taken photographs of that area and

was not prejudiced by the brick removal. The subcontractors’ expert causation engineer,

Lorey Caldwell, had also inspected the home prior to the removal of the portion of veneer.




                                              10

              4. In dismissing the civil action in February 2017, the circuit court also

referenced the Petitioners’ actions in allegedly blocking an away drain near the foundation

of the home. The Petitioners emphasize that this was also a ground raised in Gebhardt’s first

motion to dismiss, and the circuit court found that it did not warrant dismissal as a sanction.

The Petitioners had placed a screen over the drain to prevent snakes from entering the pipe,

but the screen had become mildewed and blocked with moss. They photographed the drain

while it was in place and later removed it in an effort to mitigate any damages. The

screening was preserved for later inspection, was not washed, and was produced as evidence.

Gebhardt’s counsel also allegedly inspected the drain and photographed the premises on

December 19, 2013, and February 18, 2014.



              5.   The circuit court also found improper action by the Petitioners in

dismantling a bannister6 in the home without prior notice to the defendants. This action,

characterized as spoliation of evidence, was also one of the grounds asserted in Gephardt’s

first motion to dismiss. That motion was denied, and dismissal was not deemed warranted.7

Instead, the circuit court prohibited testimony on measurements obtained through the

bannister testing and indicated that it would consider an adverse jury instruction based on the

       6
       The Petitioners performed the bannister test in an attempt to impeach Gebhardt’s
testimony regarding proper reinforcement of the post.
       7
        In its April 2016, order denying Gebhardt’s first motion to dismiss, the circuit court
stated: “The Court has concluded that dismissal of this action is not an appropriate remedy
for the conduct alleged in this matter.”

                                              11

Petitioners’ alleged spoliation of evidence. The testing did not destroy the bannister; it was

simply disassembled and reassembled. Morever, an expert for the defendants had previously

performed inspections of the bannister.



              6. The circuit court also cited the Petitioners’ action in allowing a mold expert,

John Gongola, to perform an air sampling test for mold without notice to the defendants.

Again, this action constituted one of the grounds for Gebhardt’s prior motion to dismiss, and

the circuit court held that dismissal was not an appropriate remedy at that time. Interestingly,

the circuit court had also concluded in 2016 that “[w]hile testing conducted by Plaintiffs

without notice to Defendants was improper and potentially prejudicial, the Court cannot

conclude that Defendants spoliation claim has merit.” The circuit court had also explained:

“Further, the Court cannot conclude that Defendants were prejudiced by [the Petitioners’]

improper conduct.”



              7. The circuit court also addressed the Petitioners’ allegedly inaccurate expert

disclosures. These issues had also been addressed in prior orders, and the circuit court had

already limited the testimony of several experts based upon their disclaiming or withdrawal

of certain components of their opinions. None of the experts had been entirely excluded, and

no sanctions had been imposed at that time.




                                              12

                 8. The circuit court also found inappropriate action by the Petitioners’ counsel

in secretly recording a meeting with Gebhardt on April 9, 2013, well before this civil action

was filed.8 The Petitioners contend that the recording is expressly authorized by West

Virginia Code § 62-1D-3(e) (2014),9 and they maintain that the purpose of the recording was

to preserve an inconsistent statement by Gebhardt regarding the use of solid concrete in the

cement block foundation. By order dated October 12, 2016, the circuit court had granted

Gebhardt’s motion in limine excluding the recording, but no sanctions were mentioned at that

time.



                 9. The Petitioners’ communication with Mr. Phil Huffner was also referenced

as a ground for the dismissal as a sanction. Mr. Huffner, a non-testifying consultant for

Gebhardt, voluntarily discussed the Petitioners’ home with their expert and indicated that he

        8
        The circuit court was particularly troubled by the secret recording, noting that it was
“totally uncomfortable with” the recording and “[j]ust because something is legal, doesn’t
make it right.” The circuit court stated that “while not illegal and not clearly unethical, [the
recording] was dishonorable and undermined the integrity of the judicial system. It was
underhanded and prejudicial to the fair administration of justice.”
        9
            West Virginia Code § 62-1D-3(e) provides:

                 It is lawful under this article for a person to intercept a wire, oral
                 or electronic communication where the person is a party to the
                 communication or where one of the parties to the
                 communication has given prior consent to the interception
                 unless the communication is intercepted for the purpose of
                 committing any criminal or tortious act in violation of the
                 constitution or laws of the United States or the constitution or
                 laws of this state.

                                                  13

believed the home was a “tear down” home. The Petitioners assert that Mr. Huffner did not

agree to serve as their expert, did not respond to their attempts at communication, and was

never retained or paid by the Petitioners’ counsel. They abandoned Mr. Huffner as a

potential witness and did not list him as a witness in their pretrial memorandum filed October

15, 2015.



              10. As referenced above, Gebhardt was personally served on November 8,

2016, by a professional process server with a subpoena duces tecum requesting Gebhardt to

bring to trial on November 14, 2016, “receipts for gravel applied to the basement floor . . .

before the concrete was poured.” Gebhardt argued that such service, without notice to his

counsel, was improper and justified dismissal of the Petitioners’ civil action as a sanction.



              These instances of alleged discovery misconduct were identified with

particularity in the circuit court’s dismissal order, thus satisfying the first phase of our

inquiry, as outlined above and explained in Richmond. In the second phase of the required

inquiry, however, this Court must determine whether the sanction of dismissal “fits the

seriousness of the identified conduct.” Richmond, 226 W.Va. at 113, 697 S.E.2d at 149. As

the Petitioners contend, it is imperative to note that the circuit court had previously

considered the discovery conduct in the instances summarized in numbers one through nine

above and had determined that they did not constitute a sufficient basis for imposition of


                                             14

dismissal. It was only with the addition of the service of the subpoena duces tecum that the

circuit court ultimately found justification for dismissal as a sanction. Thus, while the circuit

court’s order insinuates that all ten factors served as a basis for its decision, the service of the

subpoena was the only additional action prompting the circuit court’s dismissal decision.

Prior issues had been addressed, dealt with through alternate means, and found insufficient

to warrant dismissal of the Petitioners’ civil action.10



               Consequently, the actual question for the circuit court was whether the

Petitioners’ decision to directly serve the subpoena on Gebhardt without prior notice to his

counsel was sufficiently egregious to warrant dismissal of their civil action. The circuit court

found service of the subpoena to be in “reckless disregard of proper judicial process” and

noted that the Petitioners’ conduct “resulted in harassment and distraction to Gebhardt on the

eve of trial.”11 Additionally, the court indicated that the Petitioners “caused Gebhardt to

waste time and effort chasing 7-year-old gravel receipts. . .” and that he “may have been

induced to make statements and admissions to a person who could be called to testify at trial

against him. . . .”



       10
        The service of the subpoena was the only significant discovery issue in over a year.
As explained above, Gebhardt’s first motion to dismiss had been denied on April 15, 2016,
accompanied by the circuit court’s conclusion “that dismissal of this action is not an
appropriate remedy for the conduct alleged in this matter.”
       11
       The Petitioners, however, emphasize Gebhardt’s admission that the service of the
subpoena in no manner threatened him.

                                                15

                 On appeal, the Petitioners make the cursory argument that the subpoena was

a trial request, rather than a discovery request,12 and that they fully complied with the Rules

of Civil Procedure13 in serving the subpoena. Neither the parties nor the circuit court

sufficiently addressed the intricacies of the Rule 45 requirements for service of trial

subpoenas, the use of the rule upon parties as opposed to non-parties, the requirement for

serving counsel, or the applicability of West Virginia Code § 57-5-3 (2012) permitting

service of trial subpoenas.14 Thus, issues surrounding the use of Rule 45 have not been


       12
            Documents and bills pertaining to the purchase of materials, such as the gravel at
issue here, had been requested during discovery, as early as the March 17, 2015, deposition
of Gebhardt. He testified during that deposition that the bills were “not with me,” but that
there was a “very strong possibility” that he had them at home. His attorney also indicated
that the additional documentation would be produced.
       13
         Rule 45 of the West Virginia Rules of Civil Procedure provides as follows, with
specific regard to commanded production of documents: “Prior notice of any commanded
production of documents and things or inspection of premises before trial shall be served on
each party in the manner prescribed by Rule 5(b).” W.Va. R. Civ. P. 45(b)(1). Rule 5(b)
provides, in pertinent part: “Whenever under these rules service is required or permitted to
be made upon a party represented by an attorney, the service shall be made upon the attorney
unless service upon the party is ordered by the court.” W.Va. R. Civ. P. 5(b). The circuit
court did not meaningfully evaluate Rule 45 in its order, mentioning it only briefly in a
footnote and not quoting the entire sentence quoted above.
       14
            West Virginia Code § 57-5-3 provides:

                        In any case at law, upon a party making affidavit that a
                 particular book of accounts, or other writing or paper is
                 important for him to have in the trial of his cause, he may
                 procure from the clerk of the court in which the action is
                 pending a subpoena duces tecum requiring any party to the
                 action to appear before the court on a day named therein, and
                 bring with him and produce before such court such book of
                                                                                   (continued...)

                                               16

adequately developed and are not properly before this Court.15 Moreover, the ultimate and

critical decision for this Court is whether the circuit court abused its discretion in dismissing

the civil action as a sanction for alleged discovery violations.



                  Based upon the record before this Court, we find that even if we assume,

arguendo, that there was a violation or irregularity in the attempted service of the subpoena

duces tecum, such violation did not justify the extreme sanction of dismissal. The prior

discovery actions by the Petitioners, while generally relevant to the question of a pattern of

wrongdoing,16 had already been dealt with and had been deemed an insufficient basis for

dismissal. A Richmond evaluation, regarding the impact on the case, administration of

justice, and mitigating circumstances, results unequivocally in a conclusion that dismissal of


       14
            (...continued)

                  accounts, or other writing or paper, as is specified in such

                  process, in order that the same may be used as evidence on the

                  trial of the action. 


W.Va. Code § 57-5-3.
       15
           See State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996) (“Although
we liberally construe briefs in determining issues presented for review, issues which are not
raised, and those mentioned only in passing but are not supported with pertinent authority,
are not considered on appeal.”). Rule 10(c)(7) of the West Virginia Rules of Appellate
Procedure requires that “[t]he brief must contain an argument exhibiting clearly the points
of fact and law presented, the standard of review applicable, and citing the authorities relied
on. . . .”
       16
       This Court is not unmindful of the frustrations a circuit court encounters in the
management of extensive discovery conflicts. The decision to dismiss this civil action,
however, was unwarranted.

                                                17

the Petitioners’ cause of action was not justified under these circumstances. See Richmond,

226 W.Va. at 113, 697 S.E.2d at 149. Imposition of the extreme sanction of dismissal was

an abuse of discretion.



              As this Court stated in Mills v. Davis, 211 W.Va. 569, 567 S.E.2d 285 (2002),

“the more severe the sanction, the more restraint a trial court must show[.]” Id. at 575, 567

S.E.2d at 291. “[A] circuit court must ensure that there is an adequate predicate for

exercising its substantial authority . . . and must also ensure that the sanction is tailored to

address the harm identified. This is particularly true when the sanction is in the form of a

dismissal.”   Cox v. State, 194 W.Va. 210, 218, 460 S.E.2d 25, 33 (1995) (Cleckley, J.,

concurring); see also Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991) (“Because of

their very potency, . . . [sanction] powers must be exercised with restraint and discretion. .

. .”). As we recognized in Mills, appropriate sanctions short of dismissal do exist. “In the

instant matter, we find that the circuit court was too harsh in dismissing the action. While

other sanctions . . . may be appropriate, outright dismissal simply is not, under the facts of

this case.” Mills, 211 W.Va. at 577, 567 S.E.2d at 293.



                                    IV. Conclusion

              Based upon this Court’s review, we find that the circuit court abused its

discretion by imposing the sanction of dismissal. For the reasons stated, the judgment of the


                                              18

Circuit Court of Ohio County is reversed. The civil action shall be reinstated and is

remanded for further proceedings.

                                                             Reversed and remanded.




                                         19

