         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                               September 2018 Term                          FILED
                                _______________
                                                                       November 13, 2018
                                                                            released at 3:00 p.m.
                                  No. 18-0218                           EDYTHE NASH GAISER, CLERK
                                _______________                         SUPREME COURT OF APPEALS
                                                                             OF WEST VIRGINIA


             STATE OF WEST VIRGINIA ex rel. KATIE FRANKLIN,
                               Petitioner

                                        v.

                    HONORABLE R. CRAIG TATTERSON, 

                 Judge of the Circuit Court of Jackson County; and 

                                CATHY BROWN,

                                   Respondents 


      ____________________________________________________________

                  ORIGINAL PROCEEDING IN PROHIBITION

                            WRIT GRANTED
      ____________________________________________________________

                            Submitted: October 24, 2018
                             Filed: November 13, 2018


Patrick Morrisey                             John W. Alderman, III, Esq.
Attorney General                             Law Offices of John W. Alderman
Lindsay S. See                               Charleston, West Virginia
Solicitor General                            Counsel for Respondent Cathy Brown
Charleston, West Virginia

Katie Franklin, Esq.
Jackson County Prosecuting Attorney
Ripley, West Virginia
Counsel for Petitioner


JUSTICE WALKER delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT 


              1.     “Prohibition lies only to restrain inferior courts from proceeding in

causes over which they have no jurisdiction, or, in which, having jurisdiction, they are

exceeding their legitimate powers and may not be used as a substitute for [a petition for

appeal] or certiorari.” Syllabus Point 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d

370 (1953).



              2.     “In determining whether to entertain and issue the writ of prohibition

for cases not involving an absence of jurisdiction but only where it is claimed that the lower

tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether

the party seeking the writ has no other adequate means, such as direct appeal, to obtain the

desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter

of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent

disregard for either procedural or substantive law; and (5) whether the lower tribunal’s

order raises new and important problems or issues of law of first impression. These factors

are general guidelines that serve as a useful starting point for determining whether a

discretionary writ of prohibition should issue. Although all five factors need not be

satisfied, it is clear that the third factor, the existence of clear error as a matter of law,

should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199

W. Va. 12, 483 S.E.2d 12 (1996).



                                               i
              3.     “The decision of whether to admit evidence of compromise offers for

a purpose other than to ‘prove liability for or invalidity of the claim or its amount,’ W. Va.

R. Evid. 408, is within the sound discretion of the circuit court.” Syl Pt. 7, State ex rel.

Shelton v. Burnside, 212 W. Va. 514, 575 S.E.2d 124 (2002).



              4.     Evidence of all statements made during compromise negotiations are

inadmissible under Rule 408 of the West Virginia Rules of Evidence unless offered to

prove an exception under the rule. Because this Court’s prior holding in Syllabus Point 3

of Shaeffer v. Burton, 151 W.Va. 761, 155 S.E.2d 884 (1967) has been superseded by Rule

408 of the West Virginia Rules of Evidence, it is overruled.



              5.     “While testimony offered to show an unaccepted offer of compromise

is incompetent and inadmissible, where it appears that such statements were made without

any attempt to effect any compromise between the parties, such testimony is admissible

under the well-established rule that the declaration of parties to the record against interest

may be shown in evidence.” Syllabus Point 2, Averill v. Hart & O’Farrell, 101 W.Va.

411, 132 S.E. 870 (1926).




                                              ii
WALKER, JUSTICE:

               Petitioner Katie Franklin, Prosecuting Attorney of Jackson County, invokes

this Court’s original jurisdiction seeking a writ to prohibit the Circuit Court of Jackson

County from enforcing its order suppressing all evidence of text messages between

Respondent Cathy Brown, the defendant in the underlying criminal case, and an accountant

for the company from which she allegedly embezzled $306,000. Because it is evident that

the text messages were not exchanged in the context of civil settlement negotiations, we

grant the writ of prohibition and find that the circuit court committed a clear error of law

in prohibiting their admission at trial.



                 I. FACTUAL AND PROCEDURAL BACKGROUND

               Ms. Brown has been charged with one count of embezzlement of

approximately $306,000 from Hartley Oil Company, Inc. (Hartley Oil). On October 13,

2015, Hartley Oil’s accountant, Krista Bratton, discovered an alleged multi-year

embezzlement scheme by Ms. Brown, another employee of the company. After an inquiry

by the accountant, Ms. Brown claimed to be sick and went home. Over the next seven

days, Ms. Brown and the accountant exchanged several text messages. Throughout the

texts Ms. Brown expressed regret for her actions and a willingness to make amends, and

asked whether Hartley Oil’s owners, Rodd and Georgie Hartley, would seek criminal

prosecution.




                                             1

             The circuit court characterized the text messages as follows.1 On October

15, 2015, Ms. Brown sent a text to the accountant asking a question about payroll. After

receiving the accountant’s response, Ms. Brown asked “[h]ows everything else[?]” The

following texts ensued:


             [Ms. Brown]:         I don’t think he bills in U.S. Dollars

                                  Has she got back with you

             [Accountant]:        She is researching the amount

             [Ms. Brown]:          I will be back to work on Monday I have
             a lot of personal things wrong with me

                                I am ready to have a nervous breakdown
             my Meds aren’t helping anymore

                                  Is that ok

             [Accountant]:        It is but I’d like to talk about what’s going
             on.

             [Ms. Brown]:         With me

             [Accountant]:        Yes mam, you’ve got me worried

             [Ms. Brown]:         Worried about what

             [Accountant]:        You told me that you’ve done something
             and that I could guess what. I would really prefer not to guess
             what it is.




      1
        As noted in the circuit court’s order, the text messages contain misspellings and
grammatical errors. The name of Ms. Brown’s minor daughter has been redacted in
accordance with Rule 40(e) of the West Virginia Rules of Appellate Procedure.


                                               2

             When Ms. Brown asked to talk on Monday, the accountant asked if Ms.

Brown could call her “tomorrow,” which “would give [her] a night to sleep on it.” Ms.

Brown insisted that she wanted to come in and talk with “everyone next week,” and “after

hours if possible.” The accountant responded that she would talk to the owners of the

company. These texts followed:

             [Ms. Brown]:        What did she say am I’m going to jail or
             are they going to work with me fir paying it back I am worried
             [about my daughter,] not myself

             [Ms. Brown]:         At this point are you just saying I quit

             [Accountant]:       I think we need to determine how much
             before the decision is made. I’m still talking to Rodd and
             Georgie [Hartley Oil’s owners].

                                           ***

             [Ms. Brown]:         I am so sorry for everything I thought it
             was best to just go ahead and say something

             [Accountant]:     I appreciate it. I’m trying to communicate
             that with Rodd too that you telling us should count for
             something

             [Ms. Brown]:           lol ease do everything you can to help me
             I know what I did was wrong and I wish I could take it back I
             am willing to pay every penny back to them I will do anything
             I just don’t want to ruin [my daughter’s] life over something
             that I did I think I can tell you the amount once I look at it but
             I would really like to come in and talk. I know everyone hates
             me at this point that’s why I would just like to say I quit so [my
             daughter] Don’t find out she’s just a child and do t need to be
             hurt. I know I am the one that hurt her I would work anywhere
             for free just to get then their money back I was struggling
             between bills. Famous for [my daughter] trying to keep her
             happy. I know that is no excuse for what I did. Please don’t
             hate me. Please do everything you can to help me I really
             cinfide in you. I am telling everyone that I quit for personal


                                             3

               reasons right now I just don’t want to go to jail but that not my
               choice it’s up to rodd

               [Accountant]:        I will call you here in a minute.

               [Ms. Brown]:         Does everyone hate me. I am so sorry2



               The State asserts that, after this particular exchange, Ms. Brown and the

accountant spoke by telephone and Ms. Brown admitted to stealing approximately $20,000

during the 2015 calendar year. The following day, on October 16, 2015, Ms. Brown sent

a text to the accountant that stated, “Krista I’m scared to death.” Ms. Brown later asked

about what was being said about her around the company and what the other employees

knew of the situation. The accountant then assured Ms. Brown that the situation was being

kept quiet and Ms. Brown’s response stated “[t]hank you for being so good to me.” The

accountant promised Ms. Brown that she was “trying to keep everything fair.” Then, Ms.

Brown and the accountant had the following exchange:

               [Ms. Brown]:         I’m so scared

               I hate myself

               [Accountant]:       Cathy, what has happened can’t be
               changed, only going forward. No matter what happens

               [Ms. Brown]:         I texted Georgie last night but she didn’t
               respond.

               I know she is really mad

               [Accountant]:        I can imagine she is

      2
          (emphasis by the State) (typographical errors in original).


                                              4

                            ***

             [Ms. Brown]:         Are you keeping my Checks

             [Accountant]:         The payroll ones? I don’t think I can. We
             will work that out this afternoon.

             And I’ll need you to sign a termination slip.

             [Ms. Brown]:         Ok

             Did you say anything to him

             [Accountant]:        I’m trying to go through and find
             everything


             Ms. Brown later sent spreadsheets to the accountant which contained

highlighted, circled and crossed-through items. The text exchange continues as follows:

             [Ms. Brown]:         Ok all the I highlighted ones

             I have a question if can I cash out my 401k and give it to the
             Hartleys

             Can I meet you and sign the paper and get my check



             Ms. Brown and the accountant then discussed a time for Ms. Brown to come

to the office for a meeting. That same day, Ms. Brown sent the accountant a text that she

“[j]ust pulled in” the office. Ms. Brown then signed a Hartley Oil Company, Inc. -

Employee Action Form that included the handwritten statement “Admitted to embezzling”

by the accountant in the Incident Information section of the form.




                                            5

              The following day, October 17, 2015, Ms. Brown sent a text including a

picture of her daughter to the accountant and thanked her for “being a friend.” The

accountant indicated that she saw the picture on Facebook and complimented Ms. Brown’s

daughter. In response, Ms. Brown sent the following text message:

              [Ms. Brown]:       Thank you. I am Already working on
              getting money together I’m selling my Durango and hoping I
              can get the 401 money out and I have my vacation checks.

Ms. Brown again thanked the accountant for helping her.



              On October 18, 2015, Ms. Brown sent a text to the accountant asking to meet

in person. Ms. Brown indicated, “[a]nd again I am so sorry.” When the accountant

responded, “I know Cathy,” Ms. Brown responded, “I feel like you are the only friend I

have right now.” Ms. Brown continued to apologize in the texts.



              On October 19, 2015, Ms. Brown sent a text to the accountant that she was

selling her Durango, cashing in her 401(k) account and borrowing money on her house. In

her text, Ms. Brown stated, “I would like to start paying some back as soon as I can if they

will let me.” Ms. Brown later sent her a text that stated, “[i]f you have any questions on

anything I would gladly answer them for you.”



              On October 20, 2015, Ms. Brown again sent a text to the accountant asking

about setting up a meeting with Hartley Oil’s owners. When the accountant indicated

neither were available, Ms. Brown sent a text stating, “[o]mg their not there I pray there


                                             6

not somewhere pressing charges in me.” Later that day, there were texts between Ms.

Brown and the accountant arranging for Ms. Brown to call her.



             Ms. Brown continued texting with the accountant on October 22, 25 and 26

and November 11, 12, 19 and 20. In those texts, they discussed Ms. Brown providing more

information to the accountant, including discussions about meeting at the Ripley Park and

Ride so that Ms. Brown could provide documents.



             Prior to the trial on the embezzlement charge, the State filed a notice of intent

to introduce the string of text messages from October 15, 2015 to November 20, 2015.

After briefing by the parties, the circuit court entered an order on August 3, 2017, which

denied admission of the text messages. The court found that Rule 408 of the West Virginia

Rules of Evidence precluded their admission at trial. Rule 408 provides that:

             Compromise offers and negotiations.

                    (a)    Prohibited Uses. Evidence of the following is
             not admissible—on behalf of any party—either to prove or
             disprove the validity or amount of a disputed claim, the liability
             of a party in a disputed claim, or to impeach by a prior
             inconsistent statement or a contradiction:

                    (1) furnishing, promising, or offering—or accepting,
             promising to accept, or offering to accept—a valuable
             consideration in compromising or attempting to compromise
             the claim; and

                    (2) conduct or a statement made during compromise
             negotiations about the claim.

                     (b) Exceptions.      This rule does not require the


                                             7

                exclusion of any evidence otherwise discoverable merely
                because it is presented in the course of compromise
                negotiations. This rule also does not require exclusion when
                the evidence is offered for another purpose, such as proving
                bias or prejudice of a witness, negating a contention of undue
                delay, or proving an effort to obstruct a criminal investigation
                or prosecution.


                In so ruling, the circuit court found that Rule 408 is not limited to civil

proceedings, but also applies to criminal proceedings by virtue of West Virginia Rule of

Evidence Rule 101(a), which instructs that “these rules apply to proceedings in the courts

of this State. . . .”3 The circuit court also relied upon United States v. Davis,4 which the

court found to be factually analogous to the text messages in the case at hand, and

determined that they were made in an “attempt to compromise and settle the matters that

gave rise to the Indictment.”5 In prohibiting the admission of the text messages, the circuit

court stated:

                Defendant expressed that she “just [doesn’t] want to go to jail,”
                is concerned about Hartley Oil executives’ planned courses of
                action regarding the allegations against her, and offers her
                401K and other monies so that no charges will be brought
                against her.


                On March 14, 2018, the State filed a petition for a writ of prohibition to

prohibit the circuit court from enforcing its order suppressing all evidence of text messages


       3
           (emphasis added). 

       4
           596 F.3d 852 (D.C. Cir. 2010).

       5
           (emphasis added). 



                                               8

between Ms. Brown and Hartley Oil’s accountant. After Ms. Brown filed a response, this

Court issued a rule to show cause by corrected order entered May 9, 2018.



                               II. STANDARD OF REVIEW

                The general standard for issuance of a writ of prohibition is set forth in West

Virginia Code § 53-1-1 (2016), which states that “[t]he writ of prohibition shall lie as a

matter of right in all cases of usurpation and abuse of power, when the inferior court has

not [sic] jurisdiction of the subject matter in controversy, or, having such jurisdiction,

exceeds its legitimate powers.” This Court has held that “[p]rohibition lies only to restrain

inferior courts from proceeding in causes over which they have no jurisdiction, or, in

which, having jurisdiction, they are exceeding their legitimate powers and may not be used

as a substitute for [a petition for appeal] or certiorari.”6 With respect to the standard, this

Court has established five factors to be considered:

                        In determining whether to entertain and issue the writ of
                prohibition for cases not involving an absence of jurisdiction
                but only where it is claimed that the lower tribunal exceeded
                its legitimate powers, this Court will examine five factors: (1)
                whether the party seeking the writ has no other adequate
                means, such as direct appeal, to obtain the desired relief; (2)
                whether the petitioner will be damaged or prejudiced in a way
                that is not correctable on appeal; (3) whether the lower
                tribunal’s order is clearly erroneous as a matter of law; (4)
                whether the lower tribunal’s order is an oft repeated error or
                manifests persistent disregard for either procedural or
                substantive law; and (5) whether the lower tribunal’s order
                raises new and important problems or issues of law of first
                impression. These factors are general guidelines that serve as a

       6
           Syl. Pt. 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953).


                                               9

                useful starting point for determining whether a discretionary
                writ of prohibition should issue. Although all five factors need
                not be satisfied, it is clear that the third factor, the existence of
                clear error as a matter of law, should be given substantial
                weight.7



                “The decision of whether to admit evidence of compromise offers for a

purpose other than to ‘prove liability for or invalidity of the claim or its amount,’ W. Va.

R. Evid. 408, is within the sound discretion of the circuit court.”8 Thus, our general rule

provides that “[p]rohibition is ordinarily inappropriate in matters involving a trial court’s

pretrial ruling on . . . the admissibility of evidence.”9 However, in circumstances like the

present case, when the State has no other adequate means to obtain the desired relief and

this issue is not one that would be correctable on appeal, this Court has entertained a

petition for a writ of prohibition.10 With these standards in mind, we consider the parties’

arguments.




       7
           Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
       8
           Syl. Pt. 7, State ex rel. Shelton v. Burnside, 212 W. Va. 514, 575 S.E.2d 124 (2002).
       9
           Policarpio v. Kaufman, 183 W. Va. 258, 261, 395 S.E.2d 502, 505 (1990).
       10
            See State ex rel. Plants v. Webster, 232 W. Va. 700, 708, 753 S.E.2d 753, 761
(2012).


                                                 10 

                                    III. DISCUSSION 


              The State argues that although Rule 408 may be applicable in criminal

proceedings, the text messages here were not statements made for civil settlement

purposes. Rather, they were intended to affect a criminal proceeding and thus, Rule 410

of the West Virginia Rules of Evidence applies. Rule 410 addresses the admissibility of

criminal plea negotiations in civil and criminal trials. Pursuant to Rule 410(a)(4), criminal

plea negotiations are not admissible at trial if “an attorney for the prosecuting authority” is

a party to the negotiations, which was not the case here. Therefore, the State argues that

this Court should prohibit the circuit court from enforcing its order suppressing all evidence

of text messages between Ms. Brown and an accountant for the employer from which she

allegedly embezzled $306,000.



              The State notes that the texts referenced solely Ms. Brown’s fear of going to

jail and the potentiality for criminal charges. Throughout the text messages, the State

asserts that there is no statement that references a civil negotiation or even a concern for

any form of civil remedy; to the contrary, Ms. Brown made it clear in the texts that she

would sell her personal property and assets to do whatever she needed to do in order to

avoid criminal charges. The State argues that the nature of Ms. Brown’s text messages

distinguishes her situation from Davis, where the D.C. Circuit found that the defendant was




                                              11 

engaged in civil settlement negotiations and did not have any awareness of a potential

criminal proceeding.11



                 The State contends that a Fourth Circuit case, United States v. Peed,12 is more

analogous to the present circumstances than Davis. In Peed, the Fourth Circuit found that

the district court did not abuse its discretion in admitting a secretly recorded conversation

during which a criminal defendant attempted to pay a victim in exchange for dropping the

charges. The Fourth Circuit agreed with the district court’s characterization of the

defendant’s statements as an attempt to avoid criminal prosecution, not as an effort to

resolve a civil claim, which is the purpose behind Rule 408.13



                 Alternatively, the State claims that even if the text message exchanges were

civil settlement negotiations, the texts would still be admissible under this Court’s decision

in Shaeffer v. Burton.14 In Syllabus Points 2 and 3 of Shaeffer, this Court held:

                        2.     ‘While testimony offered to show an unaccepted
                 offer of compromise is incompetent and inadmissible, where it
                 appears that such statements were made without any attempt to
                 effect any compromise between the parties, such testimony is
                 admissible under the well-established rule that the declaration
                 of parties to the record against interest may be shown in

       11
            596 F.3d at 861. 

       12
            714 F.2d 7 (4th Cir. 1983). 

       13
            Id. at 9-10.

       14
            151 W.Va. 761, 155 S.E.2d 884 (1967). 



                                                12 

                evidence.’ Point 2, syllabus, Averill v. Hart & O’Farrell, 101
                W.Va. 411, [132 S.E. 870 (1926)].

                        3.     The determining factor as to whether a statement
                is in the nature of a settlement proposal or offer, so as to
                exclude it from evidence, is whether the form of the statement
                is explicit or absolute, and if its purpose is to declare a fact
                really to exist rather than to concede a fact hypothetically in
                order to effect a settlement, the statement is admissible.15


                The State argues that while this Court decided Shaeffer before the adoption

of the West Virginia Rules of Evidence, the Court favorably cited the Shaeffer decision in

SER Richmond American Homes of W.Va., Inc. v. Sanders.16 Applying the holdings of

Shaeffer to this case, the State argues that not only did Ms. Brown make various admissions

of actual guilt—not simply hypothetical guilt—but she also provided copies of

spreadsheets where she highlighted accounting entries relating to money she specifically

admits to embezzling. Therefore, the State argues that Ms. Brown’s text messages, along

with the spreadsheets, constitute direct, express, and unconditional admissions of stated

facts and show an intention to admit liability for at least part of the crime charged.



                To the contrary, Ms. Brown argues that the circuit court properly relied on

Davis. First, Ms. Brown argues that the text message exchanges occurred in the context of

and contemporaneously with settlement negotiations to resolve Hartley Oil’s claim against



       15
            Id. at 761, 155 S.E.2d at 886.

       16
            226 W.Va. 103, 117, 697 S.E.2d 139, 153 (2010).



                                              13 

her and, therefore, Rule 408 applies. The first set of text messages indicated that Ms.

Brown allegedly asked Hartley Oil’s accountant if “they are going to work with me fir

paying it back.” Ms. Brown asserts that the accountant proceeded to indicate that the

amount needed to be determined and she was still talking to the company’s owners. The

next set of text messages indicated that Ms. Brown was willing to pay Hartley Oil, would

do everything in order to resolve the matter, and wanted to calculate the amount owed in

order to compensate the company. Ms. Brown asserts that she and the accountant sought

to establish the amount of the disputed claim. She contends that she expressed her desire

to make financial amends rather than confessing to a crime.



              Ms. Brown claims that, at that time, Hartley Oil retained counsel to evaluate

its civil claim and the potential for reaching a settlement. While Hartley Oil ultimately

filed a civil action against Ms. Brown to recover monetary damages for the alleged

embezzlement, Ms. Brown’s attorney engaged in negotiations with a lawyer for Hartley

Oil prior to the filing of that action. On November 17, 2015, Ms. Brown sent $17,135 to

Hartley Oil. Ms. Brown asserts that there were also e-mails titled “settlement negotiations”

between her and Hartley Oil’s attorneys in an attempt to reach a settlement. Ms. Brown

contends that when she and Hartley Oil failed to reach a settlement in 2016, the company

filed its action. Therefore, Ms. Brown argues that the circuit court properly found that the

text messages were inadmissible because they constituted settlement negotiations under

Rule 408.




                                            14 

                The threshold question this Court must consider is whether Rule 408 applies

to the text messages between Ms. Brown and the accountant at Hartley Oil. To establish

that Rule 408(a) applies to a particular document or information, a party must make a

substantial showing that it was, in fact, part of civil settlement negotiations. In Miller v.

Allman,17 we recently discussed the intended application of Rule 408:

                This rule “addresses the admissibility of evidence originating
                in offers to compromise or settle civil suits.” 1 Palmer, et al.,
                Handbook on Evidence § 408.02, at 479. There are two
                provisions set out under Rule 408(a) that prohibit evidence
                concerning settlements. “Rule 408(a)(1) covers offers or
                acceptance of offers to compromise, [and] Rule 408(a)(2)
                covers any statement made during compromise negotiations.”
                United States v. Dish Network, L.L.C., No. 09-3073, 2015 WL
                9164665, at *3 (C.D. Ill. signed December 15, 2015). It has
                been noted that “Rule 408 statements made in settlement
                negotiations are only excludable under the circumstances
                protected by the rule.” 1 Palmer, et al., Handbook on Evidence
                § 408.02, at 479. The exceptions to the prohibitions of Rule
                408(a) are found in Rule 408(b). . . . It has been recognized that
                “[t]his is an illustrative, not an exhaustive, list of the many
                exceptions to the Rule 408 prohibition.” United States v. J.R.
                LaPointe & Sons, Inc., 950 F.Supp. 21, 23 (D. Me. 1996).[18]


                In making a determination of whether Rule 408 applies, a court must look at

the totality of the circumstances.19 “In determining whether prelitigation discussions

between parties constitute settlement negotiations requires a trial court to look at the totality


       17
            240 W. Va. 438, 813 S.E.2d 91 (2018) (Walker, J. dissenting on other grounds).
       18
            240 W. Va. at __, 813 S.E.2d at 104. (emphasis added).
       19
         1 Palmer, et al., Handbook on Evidence § 408.03[1] at 482 (citing Raybestos
Products Co. v. Younger, 54 F.3d 1234, 1241 (7th Cir. 1995).


                                               15 

of the circumstances, carefully reviewing the substance of the communications and the

timing of its occurrence.”20



                  While litigation need not have actually commenced in order for Rule 408 to

apply, under Rule 408(a) there must be a prior dispute before excluding evidence of an

offer to compromise. “Courts generally recognize a preexisting dispute when an offer is

made after some legal action had been taken or threatened, i.e., a threat to bring suit on a

claim, delivery of a claim to an attorney for legal action, or the actual filing of a suit.”21

Rule 408, however, does not apply to settlement offers made before the plaintiff has

asserted a claim or threatened to assert a claim against the defendant.



                  While the State argues that even if the text message exchanges were civil

settlement negotiations, the texts would still be admissible under this Court’s decision in

Shaeffer v. Burton, it is clear that our prior holding in Syllabus Point three of Shaeffer has

been superseded by Rule 408. In Shaeffer, this Court held that if the purpose of a statement

was to declare the existence of a fact, rather than to concede a fact hypothetically in order



       20
            Id.
       21
         1 Palmer, et al., Handbook on Evidence § 408.03[1] at 483-84 (citing NMB Air
Operations Corp. v. McEvoy, 1999 U.S. App. LEXIS 22991 (9th Cir. Sept. 16, 1999) (“in
order for a compromise to be inadmissible at trial under Rule 408, the underlying claim
must be disputed as to either validity or amount”); Lightfoot v. Union Carbide Corp., 110
F.3d 898 (2d Cir. 1997); S.A. Healy Co. v. Milwaukee Metropolitan Sewerage Dist., 50
F.3d 476 (7th Cir. 1995).


                                               16 

to effect settlement, the statement was admissible.22 Thus, before the adoption of Rule 408,

“[a]n admission of fact was independent of the compromise and, therefore, admissible

unless the admission was stated hypothetically, expressly stated to be without prejudice, or

so interwoven with the compromise offer as to be inseparable from it.”23 Recognizing that

the common law rule in Shaeffer was difficult to apply, thus making it susceptible to

contradictory and inequitable results, the Handbook on West Virginia Evidence explains

that Rule 408 supersedes Shaeffer:

                        Rule 408(a) avoids the problems caused by Shaeffer, by
                implicitly placing the words without prejudice after every
                statement made during compromise negotiations, thus
                rendering such statements inadmissible. This expansion of the
                rule is consistent with the privilege theory that excludes offers
                of compromise under the notion of encouraging settlements at
                the risk of losing valuable evidence. Now, contrary to common
                law, evidence of all statements made during compromise
                negotiations are inadmissible unless offered to prove an
                exception under Rule 408(b).[24]


                Agreeing with this interpretation of Rule 408(a), the Fourth Circuit has also

determined that the rule is broader than the common law exclusionary rule in many

jurisdictions, and excludes from evidence all statements made in the course of settlement




       22
        See Shaeffer at Syl. Pt. 3.
       23
        1 Palmer, et al., Handbook on Evidence § 40.8.03[4] at 489-90 (citing Shaeffer,
151 W. Va. 761, 155 S.E.2d 884).
       24
            Id. (emphasis added).


                                               17 

negotiations.[25] Accordingly, we hold that contrary to our prior common law, evidence of

all statements made during compromise negotiations are inadmissible under Rule 408 of

the West Virginia Rules of Evidence unless offered to prove an exception under the rule.

Because this Court’s holding in Syllabus Point 3 of Shaeffer has been superseded by Rule

408 of the West Virginia Rules of Evidence, it is overruled.26 Thus, Shaeffer lends no

guidance to our determination of this matter.



                While Rule 408(a) may in fact be applicable to criminal proceedings, the

issue of whether Rule 408(a) actually applies to criminal prosecutions has not yet been

resolved by this Court.27 Regardless, it is unnecessary for the Court to decide that issue in

this particular case because it is evident that the text messages were not part of a civil

settlement negotiation under Rule 408.




       25
          Id. (citing Fiberglass Insulators, Inc. v. Dupuy, 856 F.2d 652 (4th Cir. 1988))
(internal footnotes and citations omitted).
       26
         As this Court reiterated in Syllabus Point 1 of Reed v. Wimmer, 195 W.Va. 199,
465 S.E.2d 199 (1995):

                       “The West Virginia Rules of Evidence remain the
                paramount authority in determining the admissibility of
                evidence in circuit courts. These rules constitute more than a
                mere refinement of common law evidentiary rules, they are a
                comprehensive reformulation of them.” Syllabus Point 7, State
                v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).
       27
            See 1 Palmer, et al., Handbook on Evidence § 408.03[3] at 488.


                                             18 

                The text messages undoubtedly convey that these discussions were not an

attempt to compromise or settle a civil dispute. Rather, Ms. Brown was clearly worried

about whether the owners were going to press charges against her and she wanted to pay

back what she owed them in an effort to avoid criminal prosecution. This conclusion is

supported by the circuit court’s analysis, which included this observation:

                Defendant expressed that she “just [doesn’t] want to go to jail,”
                is concerned about Hartley Oil executives’ planned courses of
                action regarding the allegations against her, and offers her
                401K and other monies so that no charges will be brought
                against her.


                And the case relied upon by the circuit court, Davis,28 offers little guidance

in analyzing the facts before us in this case. In Davis, the court addressed the application

of Federal Rule of Evidence 408 in a criminal proceeding where the state had sought to

introduce testimony of a telephone conversation in which the defendant, who was accused

of stealing money from a national fraternity while serving as its treasurer, offered to pay

back some of the money he stole from the fraternity to “make [the accusations] go away.”

The conversation was as follows:

                        [The defendant asked – he said, ‘Can we just split this
                $29,000 and make this situation go away? . . . . I told him that
                [the] amount was in excess of a hundred thousand dollars. [The
                defendant’s] statement to me at that point was, ‘I can’t afford
                to pay that amount,’ and then I told him – I said, ‘Terry, if you
                want to do some – negotiate some kind of settlement, you need
                to talk to our legal counsel or our international president.’”[29]

       28
            596 F.3d 852.

       29
            Id. at 854 (emphasis added).



                                               19 

In finding that the statements were not admissible, the Davis court reasoned:

                        There can be no doubt that Davis offered to compromise
                a disputed claim. His offer was to split the $29,000 in checks
                to cash he thought the fraternity had discovered. The claim
                “was disputed as to validity or amount,” FED.R.EVID. 408(a):
                Davis did not confess to taking the fraternity’s money; he said
                that he had deposited the cash checks into the fraternity’s
                payroll account; and Hammock rejected Davis’s explanation.
                See Affiliated Mfrs., Inc. v. Alum. Co. of Am., 56 F.3d 521, 527–
                28 (3d Cir.1995). It is also clear that the government intended
                to introduce Davis’s settlement offer in order to prove Davis’s
                guilt, or in the words of Rule 408(a), his “liability.”[30]



                In Davis, the court found that the defendant was engaged in civil settlement

negotiations and did not have any awareness of a potential criminal proceeding. In

contrast, the State correctly contends that in this case there is no statement that references

a civil negotiation or even a concern for any form of civil remedy. To the contrary, Ms.

Brown’s texts make it clear that she would sell her personal property and assets to do

whatever she needed to do in order to avoid criminal charges.



                Further, we are not inclined to follow the reasoning applied by the court in

Davis. When we examine the facts in that case, it is apparent that the defendant was, as

here, not conversing with a person who had authority to enter into compromise/settlement

negotiations, an implicit requirement of Rule 408. Thus, while the defendant in Davis may



       30
            Davis, 596 F.3d at 858-59 (emphasis added).


                                               20 

have made an offer to compromise, as evidenced by the new treasurer’s comments, the

offer was not made to a person with any authority to settle the claim.



                 Additionally, the claim in Davis “was disputed as to validity or amount”

under Federal Rule of Evidence 408(a). The court found that Davis did not confess to

taking the fraternity’s money; he said that he had deposited the cash checks into the

fraternity’s payroll account; and Hammock rejected Davis’s explanation. Here, Ms. Brown

admitted her wrongdoings in her text messages and offered to pay back the full amount she

owed:

                 [Ms. Brown]: lol ease do everything you can to help me I
                 know what I did was wrong and I wish I could take it back I am
                 willing to pay every penny back to them I will do anything I
                 just don’t want to ruin [my daughter’s] life over something that
                 I did I think I can tell you the amount once I look at it but I
                 would really like to come in and talk. I know everyone hates
                 me at this point that’s why I would just like to say I quit so [my
                 daughter] Don’t find out she’s just a child and do t need to be
                 hurt. I know I am the one that hurt her I would work anywhere
                 for free just to get then their money back I was struggling
                 between bills. Famous for [my daughter] trying to keep her
                 happy. I know that is no excuse for what I did. Please don’t
                 hate me. Please do everything you can to help me I really
                 confide in you. I am telling everyone that I quit for personal
                 reasons right now I just don’t want to go to jail but that not my
                 choice it’s up to rodd[31]


                 Because a dispute as to the amount and validity of the claim is a foundational

requirement for Rule 408’s application, payment of the full amount demanded or


        31
             (emphasis by the State).


                                                21 

acknowledgement of the debt has been held not to constitute a compromise offer and is not

protected under Rule 408. In Carmichael v. Government of the Virgin Islands,32 a court

determined that when a defendant was initially confronted by her employer regarding some

missing funds and the defendant readily admitted to taking the money to pay her creditors

and agreed to repay the full amount demanded, her conduct had not come within Rule 408

due to lack of valuable consideration. Specifically, the court found:

                 [The defendant’s] attempt to bring her restitution payment
                 within the rule must also fail for lack of consideration because,
                 having taken CAC’s funds for her own use, any agreement to
                 repay those funds, which she already had a duty to do, cannot
                 constitute valuable consideration under Rule 408. Therefore,
                 the trial court did not abuse its discretion in admitting evidence
                 of those payments.33



                 This case is also analogous to Peed,34 where a secretly-recorded telephone

conversation between a defendant and an owner of a valuable doll collection was held

admissible at trial despite the defendant’s contention that the statement, in which the

defendant offered to return the dolls in return for dropping the criminal charges, constituted

an offer to compromise a civil claim. During the telephone conversation, the defendant

stated, “You’re the one that pressed the charges, will you drop the charges? . . . If you want




       32
            No. CRIM.A.2002/164, 2004 WL 3222756 (D.Vi. Nov. 29, 2004). 

       33
            Id. at *8.

       34
            714 F.2d 7. 



                                                22 

the dolls back and but [sic] I want your word that everything will be dropped.”35



                  The Fourth Circuit, refusing to characterize the defendant’s statement as an

offer to compromise a civil claim, stated:

                         There was no civil suit pending at the time this
                  conversation took place. [The defendant’s] jargon (“drop the
                  charges”) implies concern over criminal prosecution. These
                  were not negotiations aimed at settling a civil claim,
                  negotiations that the policy behind Rule 408 seeks to
                  encourage. Nor were [the defendant’s] statements followed up
                  by any attempt on [the defendant’s] part to obtain money or
                  resources for achieving a settlement with [the complainant].[36]

Thus, the court determined that the defendant’s statements were an attempt to avoid

criminal prosecution under Rule 408(b), and, accordingly, the evidence was held

admissible.37



                  While Ms. Brown did eventually follow up with an attempt to obtain money

or resources for achieving an eventual civil settlement with Hartley Oil, the fact remains

that, like Peed, the tenor of Ms. Brown’s text messages with the company’s accountant




       35
            Id. at 9.
       36
            Id.
       37
            Id.


                                                23 

evidences that these early discussions were not part of a civil settlement negotiation, but

rather simply conveyed her concerns about criminal prosecution.38



              And, as we stated above, Rule 408 does not apply to settlement offers made

before the plaintiff has asserted a claim or has threatened to assert a claim against the

defendant.39 Here, the first evidence in the record allegedly demonstrating the existence

of, or a threat by, Hartley Oil to bring a civil claim, is a November 5, 2015 email from John

Alderman, Ms. Brown’s counsel, to Ancil Ramey, Hartley Oil’s counsel, wherein he

conveys that Ms. Brown was planning to pay back the debt owed. However, even assuming

that civil settlement negotiations had begun at some point during the course of these text

conversations, looking at the totality of the circumstances, when we examine the nature of

the comments made by Ms. Brown and the employee with whom her text messages were



       38
           This case is also factually analogous to a Tennessee appellate court case, State v.
Ward, No. 2008-02389-CCA-R3-CD, 2010 WL 3516206 (Tenn. Crim. App. Sept. 8,
2010). In Ward, a defendant was convicted of stealing aluminum pipes from a nursery and
the trial court denied his motion to exclude a statement he made to the manager of the
nursery under Rule 408. Following the theft, the defendant asked the manager “Can I pay
you for these pipes that’s been cut up and forget about it?” The appellate court held that
the statement was admissible under the exception to Rule 408 for proving an effort to
obstruct a criminal investigation or prosecution. Id. at *8. While we do not go so far as to
find that Ms. Brown’s offer was an effort to obstruct a criminal investigation, like Peed,
we conclude that her statements do not “rise to the dignity of an offer to compromise a civil
claim for purposes of [Rule] 408.” Peed, 714 F.2d at 9.
       39
          “Courts generally recognize a preexisting dispute when an offer is made after
some legal action had been taken or threatened, i.e., a threat to bring suit on a claim,
delivery of a claim to an attorney for legal action, or the actual filing of a suit.” 1 Palmer,
et al., Handbook on Evidence § 408.03[1] at 483-84.


                                              24 

exchanged, it is evident that these text messages were not aimed at settling a civil claim,

the negotiations that the policy behind Rule 408 seeks to encourage. Accordingly, we find

that the circuit court committed a clear error of law in prohibiting their admission at trial.



                As this Court has made clear:

                       While testimony offered to show an unaccepted offer of
                compromise is incompetent and inadmissible, where it appears
                that such statements were made without any attempt to effect
                any compromise between the parties, such testimony is
                admissible under the well-established rule that the declaration
                of parties to the record against interest may be shown in
                evidence.[40]

Although prohibition is ordinarily inappropriate in matters involving a trial court’s pretrial

ruling on the admissibility of evidence, when the State has no other adequate means to

obtain the desired relief and the issue is not one that would be correctable on appeal, this

Court has entertained a petition for a writ of prohibition.41 Because the circuit court’s

ruling would effectively prohibit all of the evidence surrounding these statements,

including testimony from the accountant regarding her discussions with Ms. Brown, it

would impede the State’s ability to secure a valid criminal conviction in this case.

Accordingly, we grant the State’s request for extraordinary relief.




       40
            Syl. Pt. 2, Averill v. Hart & O’Farrell, 101 W.Va. 411, 132 S.E. 870 (1926).
       41
            See State ex rel. Plants v. Webster, 232 W. Va. at 708, 753 S.E.2d at 761.


                                                25 

                                 IV. CONCLUSION

             For these reasons, we grant the requested writ and prohibit the circuit court

from enforcing its August 3, 2017 order denying admission of these text messages.

                                                                            Writ granted.




                                           26 

