                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Edwin Brownlow Pound,
Plaintiff Below, Petitioner                                                            FILED
                                                                                   November 21, 2014
                                                                               RORY L. PERRY II, CLERK
vs) No. 13-1277 (Marion County 12-C-112)                                     SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Donna Marie Tucker, Steven Clyde Tucker, and
Daniel C. Tucker, Defendants Below, Respondents

                               MEMORANDUM DECISION

        Petitioner Edwin Brownlow Pound, appearing pro se, appeals the November 18, 2013,
order of the Circuit Court of Marion County that denied his motion for a new trial following a jury
verdict that found that (1) respondents were not liable to petitioner; and (2) petitioner owed
Respondents Donna Marie Tucker and Daniel C. Tucker $24,471.97 on a promissory note.
Respondents Donna Marie Tucker, Steven C. Tucker, and Daniel C. Tucker, by counsel Kevin T.
Tipton, filed a summary response. Petitioner filed a reply.

        The 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.

       Petitioner sued respondents, alleging that respondents either stole or impermissibly sold
various items of personal property belonging to petitioner. The issue of whether petitioner owed
Respondents Donna Marie Tucker and Daniel C. Tucker on a promissory note was also tried to the
jury.1

        Prior to trial, by a scheduling order, entered October 16, 2012, petitioner was required to
identify his expert witnesses and their specialties, and disclose either expert reports or summaries
of the experts’ expected testimony by December 4, 2012. Subsequently, trial occurred on August
21, 2013, through August 23, 2013. In reaching a verdict, the jury determined that (1) respondents
were not liable to petitioner; and (2) petitioner owed Respondents Donna Marie Tucker and Daniel
C. Tucker $24,471.97 on the promissory note. Consistent with the jury’s verdict, the circuit court
awarded Respondents Donna Marie Tucker and Daniel C. Tucker a judgment in the amount of
$25,776.65, which included pre-judgment and post-judgment interest through August 27, 2013,


       1
           The record is not clear as to why the two issues were tried together.

                                                  1

with post-judgment interest continuing to accrue thereafter.2

        Petitioner’s counsel filed a motion for a new trial, on which the circuit court held a hearing
on October 30, 2013. On November 18, 2013, the circuit court denied the motion finding no merit
to petitioner’s proffered reasons for setting aside the jury’s verdict, as follows: (1) petitioner
“opened the door” to one question by respondents’ counsel about petitioner’s alleged prostitution
because petitioner put his financial condition into issue; (2) respondents’ counsel did not
improperly suggest that petitioner was homosexual or had HIV during closing arguments (and no
objection was made); (3) respondents’ counsel did not violate a motion in limine that covered
testimony about petitioner spreading feces on the walls on Respondent Donna Marie Tucker’s
home because the circuit court reserved the right to allow the testimony if it became relevant and
petitioner “opened the door” (the testimony was admitted only to show petitioner’s animosity
toward respondents); (4) respondents’ counsel did not improperly refer to petitioner as a “liar”
because the parties were granted wide latitude in their closing arguments and made similar
characterizations of each other; (5) the court permitted petitioner to elicit limited testimony about
the affair between Respondent Donna Marie Tucker and Respondent Steven C. Tucker3 and the
jury considered that testimony (also, petitioner did not focus on this issue in his closing argument);
(6) the court properly struck the testimony of petitioner’s appraiser, Ms. Golden, because “[t]he
witness did not provide a [curriculum vitae], résumé, or any reports” and based her opinions on
what any lay person could do (internet research); and (7) the jury gave fair and serious
consideration to each party’s evidence,4 and the verdict reflected the evidence.

        Petitioner now appeals the circuit court’s November 18, 2013, order denying his motion for
a new trial. This Court has consistently reviewed a circuit court’s rulings on a motion for a new
trial under an abuse of discretion standard. As this Court explained in Williams v. Charleston Area
Medical Center, Inc., 215 W.Va. 15, 18, 592 S.E.2d 794, 797 (2003):

       As a general proposition, we review a circuit court’s rulings on a motion for a new
       trial under an abuse of discretion standard. . . . 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
       2
           Petitioner argued in his opening brief that the circuit court erred in its calculation of
interest. However, in his reply, petitioner concedes that this issue was waived because there was no
objection from his counsel. After conducting our own analysis, we accept petitioner’s concession
that the issue was waived. See Syl. Pt. 8, State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991).
       3
          Respondent Steven C. Tucker is Respondent Donna Marie Tucker’s former
brother-in-law. Respondent Daniel C. Tucker is her former husband.
       4
         In his reply, petitioner concedes that whether Respondent Donna Marie Tucker testified
falsely was a question for the jury. After conducting our own analysis, we accept petitioner’s
concession. See State v. Guthrie, 194 W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995) (“An
appellate court may not decide the credibility of witnesses or weigh evidence as that is the
exclusive function and task of the trier of fact.”).
                                                   2
       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.

(Internal citations omitted.). Also, it has been long established that a litigant is only entitled to a
fair trial, but not a perfect trial “because such a thing does not exist.” Sprouse v. Clay
Communication, Inc., 158 W.Va. 427, 464, 211 S.E.2d 674, 698 (1975).

        Petitioner asserts that the circuit court erred in allowing respondents’ counsel (1) to ask
improper questions and to make improper references about petitioner’s personal life; and (2) to
refer to petitioner as a “liar.” In addition, petitioner complains that the circuit court also erred in
not permitting him to present more extensive testimony about the affair between two of the
respondents. The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure
allocate significant discretion to the trial court in making evidentiary and procedural rulings. From
our review of the record, we conclude that none of the circuit court’s various rulings on what to
allow—and what not to allow—constituted an abuse of discretion. See Syl. Pt. 1, in part,
McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995) (“Absent a few exceptions, this
Court will review evidentiary and procedural rulings of the circuit court under an abuse of
discretion standard.”).5

         However, there are three evidentiary issues we address with more specificity for the sake of
completeness: (1) respondents’ concession that there was one instance of hearsay; (2) questioning
of petitioner’s accounting expert, Mr. Olivier, about the 2008 promissory note; and (3) striking the
testimony of petitioner’s appraiser, Ms. Golden.

                  Respondents’ concession that there was one instance of hearsay

        Respondents concede that, on its face, Respondent Donna Marie Tucker’s testimony
regarding her conversation with petitioner’s real estate agent constituted hearsay. 6 However,
respondents argue that, even if it was hearsay, the testimony was harmless and inconsequential
because (1) the testimony lasted only a minute or two;7 (2) respondents never argued the issue to
the jury; and (3) petitioner had the opportunity to address this issue on rebuttal. In his reply,
petitioner acknowledges that he had the opportunity to rebut Respondent Donna Marie Tucker’s
testimony, but made the strategic choice not to do so. We agree with respondents that, even if the

       5
         We note that, under Rule 403 of the Rules of Evidence, the standard for excluding
evidence is whether its prejudicial effect substantially outweighs its probative value.
       6
           Petitioner’s counsel made an objection.
       7
         Respondent Donna Marie Tucker was asked during direct examination whether she ever
found out the amount petitioner received for selling his beach house and whether he received the
amount in one payment—not two—and she testified that she learned the answers to both questions
from petitioner’s real estate agent.
                                                3
testimony regarding the conversation with petitioner’s real estate agent was hearsay, its admission
was harmless.

           Questioning of petitioner’s accounting expert about the 2008 promissory note

        Petitioner argues that the circuit court erred in allowing his accounting expert, Mr. Olivier,
to be questioned about a promissory note from 2008 because the promissory note at issue was from
2009. Respondents counter that the 2008 promissory note (and its higher interest rate) was rolled
into the 2009 note. Given that the parties dispute the relevance of the 2008 note, we conclude that
the circuit court clearly did not abuse its discretion in permitting testimony regarding that note.

                          Striking the testimony of petitioner’s appraiser

         Petitioner argues that the circuit court improperly struck the testimony of his appraiser, Ms.
Golden. Respondents counter that Ms. Golden was not disqualified as an expert until after her full
testimony had been heard and only after she admitted that she had no curriculum vitae and did not
produce any report. According to the circuit court, an additional factor was that petitioner himself
testified as to the value of the items and “gave the exact same values as his witness.” In his reply,
petitioner asserts the fact that the circuit court was not familiar with all of the items proves an
appraiser’s testimony was necessary to establish the value of such rare items.

        “Whether a witness is qualified to state an opinion is a matter which rests within the
discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it
clearly appears that its discretion has been abused.” Syl. Pt. 3, Wilt v. Buracker, 191 W.Va. 39, 443
S.E.2d 196 (1993), cert. denied, 511 U.S. 1129 (1994) (Internal quotations and citations omitted.).
While the liberal thrust of the Rules of Evidence presumes evidence is usually admissible, we find
that two circumstances combined to make this case unique. First, the failure to produce an expert
report violated the circuit court’s October 18, 2012, scheduling order, which required such
disclosure so that the opposing party would have notice of the expert’s expected testimony. See
also Rule 26(b)(4)(A)(i), W.V.R.C.P.

        Second, while striking the testimony of an expert witness may be viewed as a somewhat
harsh sanction for violating a scheduling order, the lack of a report detailing Ms. Golden’s
methodology was especially important in this case because Ms. Golden testified she based her
opinions primarily on internet research—a task a lay person often undertakes when formulating
her own opinions. Thus, a special need existed for some explanation of how Ms. Golden’s
opinions were more sophisticated than those of the average lay person. See Syl. Pt. 1, State v.
Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981) (expert testimony is admissible if lay persons
generally would not be as competent as experts) (internal quotations and citations omitted).
Following her entire testimony, the circuit court determined that Ms. Golden’s opinions were not
any more sophisticated than those of the average lay person. After our review of the record,8 we
       8
          We have reviewed the extensive excerpts of the trial transcript petitioner placed in the
record on appeal, including excerpts of Ms. Golden’s testimony and the circuit court’s ruling . . .
that she was not qualified as an expert.
                                               4
cannot conclude, under the unique circumstances of this case, that the circuit court abused its
discretion in disqualifying Ms. Golden as an expert.

      For the foregoing reasons, we find no error in the decision of the Circuit Court of Marion
County and affirm its November 18, 2013, order denying petitioner’s motion for a new trial.


                                                                                      Affirmed.

ISSUED: November 21, 2014

CONCURRED IN BY:

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




                                               5

