                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

Gregory S. Farmerie, individually,
and as Administrator of the                                                       FILED
Estate of Christie L. Cathers,                                                 April 15, 2019
Plaintiff Below, Petitioner                                                  EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs) No. 18-0348 (Monongalia County 16-C-9)

Monongalia County Commission,
Defendant Below, Respondent


                              MEMORANDUM DECISION
        Petitioner and plaintiff below Gregory S. Farmerie, individually, and as Administrator of
the Estate of Christie L. Cathers, by counsel Scott S. Segal, Jason P. Foster, and C. Edward
Amos, II, appeals the March 23, 2018, order entered in the Circuit Court of Monongalia County
that denied his motion for a new trial following a unanimous jury verdict that attributed more
than fifty percent of the fault for petitioner’s decedent’s death to the decedent. Respondent and
defendant below Monongalia County Commission, by counsel Cy A. Hill, Jr., Allison M.
Subacz, and Elizabeth A. Moore, filed a response in support of the circuit court’s order.
Petitioner submitted a reply.

        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.

        On June 5, 2015, petitioner’s decedent was shot and killed by a Monongalia County
sheriff’s deputy after she was pursued in a car chase. Petitioner filed a complaint against
respondent, among others, in the Circuit Court of Monongalia County alleging various claims of
negligence, gross negligence, wrongful death, negligent hiring, training, retention and
supervision, and vicarious liability.1

       During a pre-trial conference that occurred on October 20, 2017, the circuit court advised

       1
         On October 20, 2017, respondent filed an emergency petition for a writ of prohibition
with this Court on immunity grounds. This Court refused the petition by order entered on
October 31, 2017.



                                                1
counsel that it has been the court’s practice to allow alternate jurors in civil cases to deliberate
and vote with the regular jury panel and that such practice was permissible, in the court’s
discretion, under West Virginia Rule of Civil Procedure 47.2 The court specifically advised,

       If you—either counsel wishes to challenge that. [sic] And if I’m wrong, just point
       it out and I’ll change my practice. I’m not that prideful that just because that’s
       what I think the law is, or whatever, I’m not willing to change. But do that in a
       timely fashion, you know, before the end of the trial.

        In response, counsel for petitioner stated, “I only have one question. I understand that the
[c]ourt’s intent is to allow two additional jurors to go into the jury room. . . . My question is if no
one gets excused, is it the [c]ourt’s intent to require an eight-person verdict?” The court
answered in the affirmative and explained that “[i]t s[t]ill has to be unanimous and all – and the
alternates would deliberate and vote along with the regular panel.” Petitioner’s counsel replied,
“I understand.”

       The case was tried before six jurors and the two alternate jurors beginning on November
6, 2017. On November 13, 2017, the eight-member jury found the decedent to be 87% at fault,
respondent 10% at fault, and a third defendant, the Monongalia County Homeland Security


       2
           West Virginia Rule of Civil Procedure 47(b) and (c) states as follows:

       (b) Jury Selection. Unless the court directs that a jury shall consist of a greater
       number, a jury shall consist of six persons. The plaintiff and the defendant shall
       each have two preemptory challenges which shall be exercised one at a time,
       alternately, beginning with the plaintiff. Several defendants or several plaintiffs
       may be considered as a single party for the purpose of exercising challenges, may
       allow additional peremptory challenges and permit them to be exercised
       separately or jointly.

       (c) Alternate Jurors. The court may direct that not more than six jurors in
       addition to the regular jury be called and impanelled to sit as alternate jurors.
       Alternate jurors in the order in which they are called shall replace jurors who
       become or are found to be unable or disqualified to perform their duties.
       Alternate jurors shall be drawn in the same manner, shall have the same
       qualifications, shall be subject to the same examination and challenges, shall take
       the same oath, and shall have the same functions, powers, facilities, and
       privileges as the regular jurors. Each side is entitled to 1 additional peremptory
       challenge if 1 to 3 alternate jurors are to be impanelled and 2 additional
       peremptory challenges if 4 to 6 alternate jurors are to be impanelled. The
       additional peremptory challenges may be used against an alternate juror only, and
       the other peremptory challenges allowed by law shall not be used against an
       alternate juror.

(Emphasis added).


                                                  2
Emergency Management Agency MECCA 911, 3% at fault. All eight jurors were individually
polled and each stated that the verdict was unanimous.

         Petitioner timely filed a motion for a new trial on the ground that the circuit court did not
properly dismiss the two alternate jurors and improperly allowed eight jurors to deliberate and
act as regular jurors. The circuit court denied petitioner’s motion by order entered on March 28,
2018, reasoning, as it did previously at the pre-trial conference, that the current version of Rule
47 affords the court “considerable judicial discretion . . . to determine whether any alternate juror
or jurors will formally deliberate and assist in rendering a verdict.” According to the circuit
court, prior to 1998, Rule 47(b) provided that “[a]n alternate juror who does not replace a regular
juror shall be discharged after the jury retires to consider its verdict.” However, the court’s order
states, the 1998 amendments to the rule deleted this reference to the discharge of alternate jurors
after the jury retires to the jury room and Rule 47(c) now states that “[a]lternate jurors shall be
drawn in the same manner, shall have the same qualifications, shall be subject to the same
examination and challenges, shall take the same oath, and shall have the same functions, powers,
facilities, and privileges as the regular jurors.” The court also relied on the specific language
contained in the present Rule 47(b): “Unless the court directs that the jury shall consist of a
greater number . . . .” The circuit court thus found that Rule 47, as amended, no longer requires
the dismissal of alternate jurors before deliberations.

        In its March 28, 2018, order, the circuit court further determined that petitioner’s counsel
failed to object when the court declared that it intended to allow alternate jurors to participate in
deliberation and that counsel “exhibited a full understanding” of the court’s intention on the
matter. The court concluded that counsel “effectively waived” any objection to the court’s
practice of allowing alternate jurors to deliberate by failing to object at the pre-trial conference,
during the trial itself, or at any time before the final verdict was rendered. Finally, the circuit
court rejected petitioner’s claim that it was plain error to allow the alternate jurors to deliberate
and render the verdict. This appeal followed.

       We review a circuit court’s order denying a motion for a new trial under the following
standard:

       As 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.

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

       On appeal, petitioner’s sole assignment of error is that the circuit court erred by allowing
two alternate jurors to deliberate with the regular jury panel. Petitioner argues that the circuit

                                                  3
court violated West Virginia Code § 56-6-11(a), which states that, unless a party waives the right
to a trial by jury, “in any civil trial a jury shall consist of six members . . . .” Id., in relevant part.
Additionally, petitioner argues, the circuit court’s interpretation of Rule 47(b) was inconsistent
with the language of West Virginia Code § 56-6-12a, which states, in pertinent part, as follows:

                In any civil case, whenever in the opinion of the court the trial is likely to
        be a protracted one, the court may direct that not more than four jurors, in
        addition to the regular jury, be called and impaneled to sit as alternate jurors. Said
        alternate jurors shall be chosen from a separate panel of six after the regular jury
        of six or twelve, as the case may be, has been selected. Alternate jurors in the
        order in which they are called shall replace jurors who, prior to the time the jury
        retires to consider its verdict, become unable or disqualified to perform their
        duties. Alternate jurors shall be drawn in the same manner, shall have the same
        qualifications, shall be subject to the same examination and challenges, shall take
        the same oath and shall have the same functions, powers, facilities and privileges
        as the regular jurors. An alternate juror who does not replace a regular juror
        shall be discharged after the jury retires to consider its verdict.

(Emphasis added).

        Petitioner argues that these statutes mandate that a jury in a civil trial shall consist of six
jurors only; that alternate jurors are not permitted to deliberate unless a regular juror “become[s]
unable or disqualified” to perform his or her duties; and that, unless the alternate juror has
replaced a regular juror, the alternate must be discharged after the jury retires to deliberate.
Petitioner acknowledges that this Court has the authority to make and promulgate rules
governing its courts, see W.Va. Const. art. VIII, § 3; W.Va. Code § 51-1-4, which “shall have the
force and effect of law.” Syl. Pt. 1, in part, Bennett v. Warner, 179 W. Va. 742, 372 S.E.2d 920
(1988). Nonetheless, petitioner argues that the circuit court erred in interpreting Rule 47(b) in a
manner that is inconsistent with the foregoing statutory provisions, particularly in light of Rule
47(c)’s language that “[a]lternate jurors in the order in which they are called shall replace jurors
who become or are found to be unable or disqualified to perform their duties.” Id., in relevant
part. (Emphasis added).

         As indicated above, at the pre-trial conference, when the circuit court advised the parties
that it intended to allow the two alternate jurors to deliberate and vote with the regular jury panel,
petitioner’s counsel asked for and received clarification from the court. Counsel then responded,
“I understand.” It is undisputed that petitioner’s counsel did not then object, nor did he object
during jury selection or when the six regular and two alternate jurors were directed to retire to
the jury room to consider their verdict.

        Ordinarily, “[a] litigant may not silently acquiesce to an alleged error, or actively
contribute to such error, and then raise that error as a reason for reversal on appeal.” Syl. Pt. 1,
Maples v. W.Va. Dep’t of Comm., 197 W. Va. 318, 475 S.E.2d 410 (1996). Indeed, this Court has
consistently explained that

        “silence may operate as a waiver of objections to error and irregularities[.]” State
        v. Grimmer, 162 W.Va. 588, 595, 251 S.E.2d 780, 785 (1979), overruled on other
                                                    4
       grounds by State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980). This “raise or
       waive rule” is designed “to prevent a party from obtaining an unfair advantage by
       failing to give [a] court an opportunity to rule on the objection and thereby correct
       potential error.” Wimer v. Hinkle, 180 W.Va. 660, 663, 379 S.E.2d 383, 386
       (1989). The “raise or waive rule” also “prevents a party from making a tactical
       decision to refrain from objecting and, subsequently, should the case turn sour,
       assigning error (or even worse, planting an error and nurturing the seed as a
       guarantee against a bad result).” State v. LaRock, 196 W.Va. 294, 316, 470 S.E.2d
       613, 635 (1996).

Hopkins v. DC Chapman Ventures, Inc., 228 W. Va. 213, 220-21, 719 S.E.2d 381, 388-89
(2011).

        In State v. Lightner, 205 W. Va. 657, 659, 520 S.E.2d 654, 656 (1999)a criminal matter,
the trial court failed to release the alternate juror when the jury retired to the jury room. Id. at
659, 520 S.E.2d at 656. The alternate juror took part in deliberations and the defendant was
convicted. See id. This Court found that the defendant failed to object to the participation of the
thirteenth juror at any time either before, during, or after deliberations. Id. at 661, 520 S.E.2d at
658. Nonetheless, we held that

       “[p]lain error review creates a limited exception to the general forfeiture policy
       pronounced in Rule 103(a)(1) of the West Virginia Rules of Evidence, 3 in that
       where a circuit court’s error seriously affects the fairness, integrity, and public
       reputation of the judicial process, an appellate court has the discretion to correct
       error despite the defendant’s failure to object.”

Id. at 658, 520 S.E.2d at 655, syl. pt. 1, in part (quoting Syl. Pt. 1, in part, State v. Marple, 197
W.Va. 47, 475 S.E.2d 47 (1996)) (footnote added). As a result, in Lightner, we determined that
“[w]hen a defendant fails to object to an alternate juror retiring to the jury room with the regular
jurors, we will consider the circumstances under the plain error rule of West Virginia Rule of
Criminal Procedure 52(b).” 205 W. Va. at 658, 520 S.E.2d at 655, syl. pt. 2, in part.4



       3
           West Virginia Rule of Evidence 103(a)(1) states:

       Preserving a Claim of Error. A party may claim error in a ruling to admit or
       exclude evidence only if the error affects a substantial right of the party and:
       (1) if the ruling admits evidence, a party, on the record:
       (A) timely objects or moves to strike; and
       (B) states the specific ground, unless it was apparent from the context[.]
       4
          Ultimately, in Lightner, we determined that the error of allowing an alternate juror to
participate in the rendering of the verdict was plain but held that it did not affect the substantial
rights of the defendant. 205 W. Va. at 662, 520 S.E.2d at 659.



                                                 5
        This Court has also considered whether, under the plain error doctrine, a lower court
judgment in a civil case should be reversed. See Cartwright v. McComas, 223 W. Va. 161, 672
S.E.2d 297 (2008); Sheetz, Inc. v. Bowles Rice McDavid Graff & Love, PLLC, 209 W. Va. 318,
547 S.E.2d 256 (2001); Page v. Columbia Nat. Res., Inc., 198 W. Va. 378, 480 S.E.2d 817
(1996). We have held that “‘[t]o trigger application of the “plain error” doctrine, there must be
(1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the
fairness, integrity, or public reputation of the judicial proceedings.’ Syl. Pt. 7, State v. Miller, 194
W.Va. 3, 459 S.E.2d 114 (1995).” Syl. Pt. 6, Brooks v. Galen of W. Va., Inc., 220 W. Va. 699,
649 S.E.2d 272 (2007). Thus,

       “the plain error analysis begins with a determination of whether there was in fact
       an error. ‘[D]eviation from a rule of law is error unless there is a waiver. Waiver .
       . . is the “intentional relinquishment or abandonment of a known right.” . . .
       [W]hen there has been such a knowing waiver, there is no error and the inquiry as
       to the effect of the deviation from a rule of law need not be determined.’”

Maples, 197 W. Va. at 323, 475 S.E.2d at 415 (quoting Miller, 194 W.Va. at 18, 459 S.E.2d at
129). “When a right is waived, it is not reviewable even for plain error.” State v. Crabtree, 198
W. Va. 620, 631, 482 S.E.2d 605, 616 (1996). “By contrast, the simple failure to assert a right by
not objecting—forfeiture—is distinct from an intentional relinquishment—waiver. Only a
forfeiture is reviewable under plain error.” Id. Here, petitioner urges this Court to find that he
forfeited, rather than waived, the right to have his case heard before six jurors and that, under the
plain error doctrine, the circuit court’s order denying his motion for a new trial must be reversed.

        Under the circumstances of this case, we find that any deviation from a rule of law that
occurred as a result of the alternate jurors’ participation in the deliberation of the verdict was
waived. The circuit court clearly advised all parties, in advance of trial, that the two alternate
jurors would “deliberate and vote” with the regular jury panel. Petitioner’s counsel then asked,
“[I]f no one gets excused, is it the court’s intent to require an eight-person verdict?” After further
explanation by the court, petitioner replied, “I understand,” and made a tactical decision to
acquiesce to the court’s interpretation of Rule 47, and, thus, refrain from making any further
objection on the matter. In so doing, petitioner intentionally relinquished a known right and such
waiver is not reviewable for plain error. See Crabtree, 198 W.Va. at 631, 482 S.E.2d at 616; see
also id. at 631, 482 S.E.2d at 616 (finding there to be “a perfect case of waiver” where “[t]he
defendant voluntarily relinquished any right he had regarding his presence at the time the trial
judge communicated with the jury[]” by affirmatively approving “the trial judge’s request that he
be permitted to engage in discussions with the jury without the defendant being present”); Miller,
194 W.Va. at 14, 459 S.E.2d at 125 (finding that the defendant voluntarily waived any right she
had to have the jury instructed on self-defense when, upon inquiry by the trial court, trial counsel
failed to submit self-defense instructions or object to the court’s failure to give the same; instead,
counsel explicitly affirmed that he was satisfied with the court’s proposed instructions and had
no objection to the jury charge). Accordingly, because there was no error, our analysis under the
plain error doctrine need go no further.

       For the foregoing reasons, we affirm.

                                                                                             Affirmed.
                                                   6
ISSUED: April 15, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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