                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Dana J. Minor,
                                                                                        FILED
Plaintiff Below, Petitioner                                                         January 11, 2016
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
vs.) No. 15-0134 (Wood County 11-C-563)                                             OF WEST VIRGINIA


Leslie D. Jones
Defendant Below, Respondent


                               MEMORANDUM DECISION
        Pro se petitioner Dana J. Minor appeals the Circuit Court of Wood County’s January 21,
2015, order denying his motion for a new trial following a jury trial in this civil matter.
Respondent Leslie D. Jones, by counsel David A. Mohler, Christopher L. Edwards, and Joshua
A. Johnson, filed a response in support of the circuit court’s order. Petitioner filed a reply. On
appeal, petitioner argues that the circuit court erred in denying his motion for a new trial because
(1) insufficient evidence supported the jury’s verdict; and (2) his trial counsel failed to prepare
for trial, failed to object to clearly erroneous witness testimony, failed to present all relevant
evidence to the jury, and lied to petitioner about the status of his appeal.1

        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, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       In December of 2009, while attempting to park her sport utility vehicle (“SUV”) in a
business establishment’s parking lot in Vienna, West Virginia, respondent struck a parked truck.
The parties disagree as to the severity of this accident. Petitioner was a pedestrian standing near
the parked truck when the accident occurred. Petitioner claimed that respondent struck the
parked truck with enough force that the truck hit him and caused injuries to his neck, his back,


       1
         In his brief to this Court, petitioner initially lists three assignments of error containing a
total of ten sub-assignments of error. However, in the argument section of his brief, petitioner
discusses only two alleged errors: insufficient evidence and his trial counsel’s alleged failures. In
this memorandum decision, we address only those grounds sufficiently briefed by petitioner. As
this Court has explained, “[a] skeletal ‘argument,’ really nothing more than an assertion, does not
preserve a claim . . . .” State v. Kaufman, 227 W.Va. 537, 555 n. 39, 711 S.E.2d 607, 625 n. 39
(2011) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)).


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and one of his knees. Although respondent later admitted to striking the parked truck, she
claimed that “it rocked up a little bit” causing only a “little . . . scratch.”2

        In December of 2011, petitioner, by his counsel Ira Haught, filed a complaint against
respondent alleging that respondent’s negligence in the incident in December of 2009 caused
petitioner to sustain personal injuries. Thereafter, respondent filed an answer, and the parties
exchanged discovery. Depositions were taken from petitioner, petitioner’s wife, the responding
police officer, and a chiropractor. In his brief to this Court, petitioner claims to have rejected two
settlement offers in this matter due to his concern that the amounts offered would not cover his
medical expenses.3 Based on evidence later presented at trial, petitioner regularly visited several
medical specialists and a chiropractor for alleged injuries related to the accident in December of
2009.4

        In January of 2013, petitioner’s jury trial commenced. At trial, the jury heard testimony
from petitioner, respondent, petitioner’s wife, and several medical experts who had differing
opinions of petitioner’s alleged injuries. Petitioner testified that he was injured when
respondent’s vehicle struck the parked truck that, in turn, hit him. Petitioner and his medical
experts testified that he experienced pain and had continuing treatment for injuries to his neck,
his back, and one of his knees. According to the testimony of his orthopedic surgeon, petitioner
had a torn meniscus in one of his knees. In contrast, respondent testified that she only scratched
the parked truck as she was parking her own vehicle and that the parked truck moved only
slightly upon impact. Under cross-examination, she explained that she might have slid on oil
immediately before the accident that became slick from a recent rain. Respondent called her own
medical experts, including an orthopedic surgeon, who testified that petitioner had no injuries
proximately caused by being struck by a vehicle. One of respondent’s medical experts, an
orthopedic surgeon, testified that no torn meniscus was visible based on his examination of
petitioner’s medical records. Ultimately, the jury returned a verdict for respondent, finding that
respondent’s negligence did not cause injury to petitioner.

        In February of 2013, petitioner filed a motion for a new trial pursuant to Rule 59 of the
West Virginia Rules of Civil Procedure. In that motion, petitioner argued that respondent
presented “erroneous testimony” to the jury. Respondent filed a response in which she argued
that petitioner’s motion lacked particularity in its grounds and that no new trial was warranted in

       2
       Petitioner asserts that a police report was created for the accident, but no police report
was made a part of the record below.
       3
       According to petitioner, the first settlement offer was made in September of 2010 in the
amount of $14,146, and the second settlement offer was made on the first morning of trial in the
amount of approximately $16,000. Petitioner states that both settlement offers were relayed to
him by Mr. Haught.
       4
         The exact total dollar amount of petitioner’s medical expenses is unclear from the record
on appeal. Although petitioner’s Exhibit No. 1 at trial was a summary of his medical expenses,
that exhibit is not in the appendix record.


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this matter. In that appeal, petitioner claimed that from February of 2013 until February of 2014
Mr. Haught informed him that they were awaiting a hearing before the circuit court on his
motion for a new trial.5

        In April of 2014, petitioner, appearing pro se, filed a second motion for a new trial listing
several “grounds” and attaching several exhibits in support. In his second motion, petitioner
claimed that (1) respondent committed perjury at trial when she testified that she only scratched
the parked truck in the accident, and that such perjury is supported by a report by Mr. Haught’s
investigator who found that the truck’s owner said the damage to his truck was substantially
more than a scratch; (2) Mr. Haught failed to move the admission of the police report into
evidence, which would have contradicted respondent’s testimony that her vehicle might have slid
on oil; (3) Mr. Haught failed to move the admission of several medical reports into evidence,
which would have demonstrated the severity of petitioner’s knee injury; (4) petitioner’s receipt
from the business establishment where the accident occurred coupled with the time listed on the
police report proved that he did not have time to stage an accident; (5) petitioner did not “refuse”
medical transport as provided in the police report when he merely told the emergency workers
that he had to escort his young child and diabetic wife home safely; and (6) Mr. Haught failed to
provide petitioner or his doctors with adequate notice of the trial, which deprived them of
sufficient time to prepare.

        By order entered in January of 2015, following a hearing in October of 2014, the circuit
court denied petitioner’s motion for a new trial. The circuit court found that the jury’s verdict
was not against the clear weight of the evidence; that no new evidence was presented by
petitioner; and that there was no basis to set aside the verdict or allow a new trial. This appeal
followed.

        With regard to our standard for reviewing a circuit court’s ruling on a motion for a new
trial, we have explained that

       [a]s a general proposition, we review a circuit court’s rulings on a motion for a
       new trial under an abuse of discretion standard. In re State Public Building
       Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994). . . . Thus, in
       reviewing challenges to findings and rulings made by a circuit court, we apply a
       two-pronged deferential standard of review. We review the rulings of the circuit
       court concerning a new trial and its conclusion as to the existence of reversible
       error under an abuse of discretion standard, and we review the circuit court’s
       underlying factual findings under a clearly erroneous standard. Questions of law
       are subject to a de novo review.


       5
         In February of 2014, this Court suspended Mr. Haught’s license to practice law in this
State for a period of one year with additional sanctions for unrelated ethical violations. See
Lawyer Disc. Bd. v. Haught, 233 W.Va. 185, 757 S.E.2d 609 (2014) (suspending attorney Ira
Haught’s law license for one year with additional sanctions for failing to keep client money in an
IOLTA account and for making false statements as to an attorney-client relationship with real
estate purchasers).

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Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995).

        On appeal, petitioner first argues that a new trial should have been granted because the
evidence was not sufficient to support the jury’s verdict.6 In Syllabus Point 5 of Orr v. Crowder,
173 W.Va. 335, 339, 315 S.E.2d 593, 597 (1983), cert. denied, 469 U.S. 981 (1984), this Court
held as follows:

               In determining whether there is sufficient evidence to support a jury
       verdict the court should: (1) consider the evidence most favorable to the
       prevailing party; (2) assume that all conflicts in the evidence were resolved by the
       jury in favor of the prevailing party; (3) assume as proved all facts which the
       prevailing party’s evidence tends to prove; and (4) give to the prevailing party the
       benefit of all favorable inferences which reasonably may be drawn from the facts
       proved.

See Syl. Pt. 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963) (in
determining whether evidence supports a jury’s verdict, “every reasonable and legitimate
inference, fairly arising from the evidence in favor of the party for whom the verdict was
returned must be considered, and those facts, which the jury might properly find under the
evidence, must be assumed as true.”). We have also explained that

       although the circuit court does have some role in determining whether there is
       sufficient evidence to support a jury’s verdict, it is not the role of the circuit court
       to substitute its credibility judgments for those of the jury or to assume the jury
       made certain findings because they did not believe evidence presented on other
       issues.

Smith v. Cross, 223 W.Va. 422, 430, 675 S.E.2d 898, 906 (2009) (quoting Neely v. Belk, Inc.,
222 W.Va. 560, 571, 668 S.E.2d 189, 199 (2008)). Furthermore,

               “‘[q]uestions of negligence, due care, proximate cause and concurrent
       negligence present issues of fact for jury determination when the evidence
       pertaining to such issues is conflicting or where the facts, even though undisputed,
       are such that reasonable men may draw different conclusions from them.’ Syl. pt.

       6
        We note that petitioner untimely filed his second Rule 59(b) motion for a new trial. Rule
59(b) of the West Virginia Rules of Civil Procedure provides that “[a]ny motion for a new trial
shall be filed not later than 10 days after entry of the judgment.” The circuit court entered the
underlying judgment in February of 2013, and petitioner’s second motion for a new trial, which
included new grounds for relief, was filed more than one year later in April of 2014. Petitioner’s
second motion for a new trial was well outside the ten-day filing period for motions made
pursuant to Rule 59(b). This Court has explained that “as a general rule, an amendment to a
timely motion for a new trial that raises additional grounds not contained in the original motion
is impermissible.” Jones v. Perrine, 175 W.Va. 111, 112 n.1, 331 S.E.2d 842, 843 n.1 (1985). To
the extent petitioner relies upon the additional grounds raised for the first time in his untimely
second motion for a new trial, we do not consider those grounds.
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       5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964).” Syllabus
       Point 3, Dawson v. Woodson, 180 W.Va. 307, 376 S.E.2d 321 (1988).

Syl. Pt. 1, Birdsell v. Monongahela Power Co., Inc., 181 W.Va. 223, 382 S.E.2d 60 (1989).

        In this case, the parties presented conflicting testimony as to the existence and cause of
petitioner’s alleged injuries from the incident in December of 2009. Respondent’s medical
experts testified that petitioner had no injuries proximately caused by being struck by a vehicle.
The jury also heard conflicting evidence regarding the force with which the parked truck was
struck and whether or how much the parked truck moved as a result of that force. Contrary to
petitioner’s claims, respondent testified that the parked truck moved only slightly when she
struck it. It was the peculiar and exclusive province of the jury to weigh the evidence and to
resolve these issues of conflicting evidence. See Syl. Pt. 7, Smith v. Cross, 223 W.Va. 422, 675
S.E.2d 898 (2009) (citations omitted) (holding that “[i]t is the peculiar and exclusive province of
the jury to weigh the evidence and to resolve questions of fact when the testimony is
conflicting”). The jury was presented with sufficient evidence to resolve these issues in
respondent’s favor. The evidence presented at trial clearly supports the finding that respondent’s
negligence in striking the parked truck did not cause injury to petitioner. Therefore, we find no
merit to this assignment of error.

        Petitioner’s second assignment of error is that the circuit court erred in denying his
motion for a new trial due to Mr. Haught’s allegedly improper representation before, during, and
after trial. Specifically, petitioner claims his trial counsel failed to properly prepare for trial,
failed to object to clearly erroneous witness testimony, failed to present all relevant evidence to
the jury (including impeachment material of respondent’s testimony) and lied to petitioner about
the status of his appeal.7 Respondent, on the other hand, argues that petitioner’s counsel
thoroughly and effectively represented petitioner. Assuming, however, that petitioner’s counsel
was ineffective, respondent contends that no precedence exists in this State for applying the
criminal standard of ineffective assistance of counsel to the civil context. Instead, respondent
cites case law from other jurisdictions in which courts have held that ineffective assistance in
civil cases is not the basis for appeal or retrial, but rather a legal malpractice action against the
subject counsel.

       This Court addressed a similar argument in First National Bank in Marlinton v.
Blackhurst, 176 W.Va. 472, 345 S.E.2d 567 (1986). In Blackhurst, this Court considered whether
one party to a civil matter was prejudiced by her counsel’s alleged violation of the West Virginia
Code of Professional Responsibility for representing multiple parties with opposing interests. In
deciding the issue, this Court explained as follows:

       Both parties recognize that the usual remedy for a violation of the West Virginia
       Code of Professional Responsibility is a disciplinary proceeding against the
       attorney and not a new trial. However, in some cases, when such a violation
       prevents a fair trial, a new trial may be appropriate. Matter of Richard’s Estate, 4

       7
       Petitioner states in his brief to this Court that he filed a disciplinary complaint against
Mr. Haught related to these assertions.
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       Kan.App.2d 26, 602 P.2d 122 (1979). But counsel’s misconduct must be highly
       egregious before another innocent litigant will be put to the expense of a new
       trial. [. . .] Although we realize that at some point attorney insensitivity to
       potential conflict problems may constitute grounds for a new trial, it is not our
       desire to turn the Code of Professional Responsibility into fodder for fashioning
       errors on appeal, and thereby inadvertently create a doctrine of “ineffectiveness of
       counsel” for civil litigants.

               The question of whether a new trial should be granted because of the
       strategy of counsel rests in the discretion of the trial court, and in the absence of a
       clear abuse of discretion, the trial court’s decision on such a question will not be
       reversed on appeal. See Syl. Pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85
       (1974). See also Smith v. Blakey, 213 Kan. 91, 515 P.2d 1062 (1973) (remarks of
       counsel are reversible error when, because of them, the parties have not had a fair
       trial).

Blackhurst, 176 W.Va. at 472, 478-79, 345 S.E.2d at 567, 574.

       In this case, the circuit court denied petitioner’s motion for a new trial despite his
contentions regarding his counsel’s alleged failures. Further, petitioner’s counsel took
depositions of key witnesses, presented several medical experts, and cross-examined
respondent’s witnesses on key points of contention. Based on the record before us, we find no
abuse of discretion in the circuit court’s ruling. As such, we find no merit to this assignment of
error.

       For the foregoing reasons, we find no error in the circuit court’s January 21, 2015, order,
and we hereby affirm the same.


                                                                                           Affirmed.

ISSUED: January 11, 2016


CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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