“When an attorney appears in court representing clients there is a strong presumption of his authority to represent such clients, and the burden is upon the party denying the authority to clearly show the want of authority.”
How later courts described this case
- “When an attorney appears in court representing clients there is a strong presumption of his authority to represent such clients, and the burden is upon the party denying the authority to clearly show the want of authority.”
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2022 Term FILED
_______________ February 18, 2022
released at 3:00 p.m.
No. 20-0343 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
REX DONAHUE,
Defendant Below and Third-Party
Plaintiff Below, Petitioner
v.
MAMMOTH RESTORATION and CLEANING,
Plaintiff Below, Respondent
and
ALLSTATE INSURANCE COMPANY,
Third-Party Defendant Below,
Respondent
________________________________________________________
Appeal from the Circuit Court of Cabell County
The Honorable Alfred E. Ferguson, Judge
Civil Action No. 19-C-289
AFFIRMED
________________________________________________________
Submitted: January 11, 2022
Filed: February 18, 2022
Steven T. Cook, Esq. Evan R. Kime, Esq.
Cook Law Offices, PLLC Jackson Kelly PLLC
Barboursville, West Virginia Charleston, West Virginia
Counsel for Petitioner Counsel for Respondent
Allstate Insurance Company
CHIEF JUSTICE HUTCHISON delivered the Opinion of the Court.
1
1
Pursuant to an administrative order entered by this Court on February 7,
2022, the Honorable Alan D. Moats, Judge of the Nineteenth Judicial Circuit, was
assigned to sit as a member of the Supreme Court of Appeals of West Virginia
commencing February 7, 2022, following the resignation of former Justice Evan
Jenkins; however, Justice Moats did not participate in this decision. And although
former Justice Jenkins heard oral argument in this case, he did not participate in this
decision.
SYLLABUS BY THE COURT
1. “Where the issue of the enforceability of a settlement agreement
requires the lower court to make findings of fact and apply contractual or other legal
principles, this Court will review its order and the ultimate disposition under an abuse of
discretion standard, its underlying factual findings under a clearly erroneous standard, and
questions of law pursuant to a de novo review.” Syl. Pt. 2, Triple 7 Commodities, Inc. v.
High Country Mining, Inc., 245 W. Va. 63, 857 S.E.2d 403 (2021).
2. “A trial court is vested with a sound discretion in granting or refusing
leave to amend pleadings in civil actions. Leave to amend should be freely given when
justice so requires, but the action of a trial court in refusing to grant leave to amend a
pleading will not be regarded as reversible error in the absence of a showing of an abuse
of the trial court’s discretion in ruling upon a motion for leave to amend.” Syl. Pt. 6, Perdue
v. S.J. Groves & Sons Co., 152 W. Va. 222, 161 S.E.2d 250 (1968).
3. “‘A meeting of the minds of the parties is a sine qua non of all
contracts.’ Syl. pt. 1, Martin v. Ewing, 112 W.Va. 332, 164 S.E. 859 (1932).” Syl. Pt. 1,
Burdette v. Burdette Realty Improvement, Inc., 214 W.Va. 448, 590 S.E.2d 641 (2003).
4. “‘The purpose of the words “and leave [to amend] shall be freely
given when justice so requires” in Rule 15(a) W.Va.R.Civ.P., is to secure an adjudication
on the merits of the controversy as would be secured under identical factual situations in
the absence of procedural impediments; therefore, motions to amend should always be
i
granted under Rule 15 when: (1) the amendment permits the presentation of the merits of
the action; (2) the adverse party is not prejudiced by the sudden assertion of the subject of
the amendment; and (3) the adverse party can be given ample opportunity to meet the
issue.’ Syllabus Point 3, Rosier v. Garron, Inc., 156 W.Va. 861, 199 S.E.2d 50 (1973).”
Syl. Pt. 5, State ex rel. Vedder v. Zakaib, 217 W. Va. 528, 618 S.E.2d 537 (2005).
ii
HUTCHISON, Chief Justice:
Petitioner Rex Donahue appeals an order from the Circuit Court of Cabell
County enforcing a settlement agreement between petitioner and his insurer, Respondent
Allstate Company (“Allstate”), relating to water damage occurring at certain real property
owned by petitioner. The order also denied petitioner’s motion to amend his complaint or,
alternatively, allow the filing of a new complaint so as to allege claims of breach of contract
and insurance bad faith against Allstate. Petitioner contends that while he agreed to dismiss
his claim against Allstate regarding the payment of a debt petitioner owed for water
mitigation services performed as a result of the water damage, there was no meeting of the
minds regarding petitioner’s agreement to dismiss any claims against Allstate for denying
coverage for the damage sustained and insurance bad faith.
Upon review of the parties’ briefs, appendix record, oral argument, and
applicable legal authority, and for the reasons stated below, we affirm the circuit court’s
order enforcing the settlement agreement between petitioner and Allstate and denying
petitioner’s request to amend his complaint or allow the filing of a new complaint.
I. Factual and Procedural Background
In January of 2018, petitioner made a claim with Allstate on a Landlord’s
Package Policy for damages to rental property he owned in Ona, West Virginia, after
several water pipes froze and then burst. Allstate denied the claim on the ground that the
policy included an exclusion for property damage caused by a failure to maintain adequate
1
heat in the residence. 2 On July 24, 2018, Mammoth Restoration and Cleaning
(“Mammoth”) filed a civil complaint against petitioner in the Magistrate Court of Cabell
County seeking $6,301.11 in payment for water mitigation services it performed at the
subject property due to the burst pipes.
Petitioner thereafter filed a Third-Party Complaint against Allstate alleging
that the subject property was insured by Allstate; that it was Allstate that selected
Mammoth to perform the water mitigation services; that Allstate had denied coverage on
the ground that “the electric was off”; that petitioner “has non-party witnesses to verify the
electric was on”; and that Allstate “has a good faith basis to cover the cost” of Mammoth’s
services. Petitioner requested that Allstate be held responsible for the payment of
Mammoth’s services and for his attorney fees and costs.
3
On June 18, 2019, Allstate removed the case from magistrate court to the
circuit court and filed its answer denying the principal allegations of the Third-Party
4
Complaint.
Allstate represents, and petitioner does not dispute, that the subject property was
2
unoccupied at the time the water pipes burst.
At the hearing on Allstate’s motion to enforce the settlement, counsel for petitioner
3
stated that when Mammoth arrived at the subject property to perform the water mitigation
services, petitioner’s son was on site and “signed a document . . . that said if Allstate doesn’t
pay [for Mammoth’s services], that [petitioner was] liable under the contract.”
West Virginia Code § 50-4-8 (2018) provides, in pertinent part, that “[a]t any time
4
before trial in a civil action involving $5,000 or more, any party may, upon payment of the
Continued . . .
2
On June 28, 2019, following negotiations between counsel for petitioner,
Mammoth, and Allstate, counsel for Allstate circulated the following e-mail, the stated
purpose of which was to memorialize the terms of a three-way agreement concerning
petitioner’s and Mammoth’s respective claims:
We have a three[-]way agreement to settle all disputes and
claims between Plaintiff Mammoth, Defendant/Third-Party
Plaintiff Rex Donahue, and Third-Party Defendant Allstate
Insurance Company.
The terms are as we discussed in recent emails:
1. Rex Donahue will release all claims against Allstate arising out
of the subject water loss claim made in January 2018 on the
Landlord’s Package policy with Allstate covering 105 Iroquois
Trail, Ona, WV 25545. Rex Donahue will dismiss all claims
against Allstate in the civil action between the parties now
pending in the Circuit Court of Cabell County.
2. In return, Allstate will satisfy the claim of Plaintiff Mammoth
Construction Company 5 against Rex Donahue, by paying
Mammoth Construction the sum of $5,000.00.
3. This will resolve all claims of the parties to the civil litigation
referenced above. A jointly endorsed order of dismissal with
prejudice of all claims will be submitted to the Court.
Please confirm.
(Footnote and emphasis added).
circuit court filing fee, cause such action to be removed to the circuit court. . . . The matter
shall then be heard by the circuit court.”
It is unclear why Mammoth is identified as “Mammoth Construction Company”
5
rather than “Mammoth Restoration and Cleaning” as the distinction is not acknowledged
by either party.
3
In e-mails responding to Allstate’s June 28, 2019, e-mail setting forth the
settlement terms, counsel for Mammoth replied, “Confirm.” More importantly, counsel for
petitioner replied, “Confirmed. Please circulate the Order and I will get my client[’]s
signature on the same (Rex Donahue).” Although the June 28, 2019, e-mail from counsel
6
for Allstate referenced “the terms . . . as we discussed in recent emails[,]” the appendix
record includes only one such e-mail, which is dated June 27, 2019, from counsel for
petitioner to counsel for Allstate. That e-mail states:
I spoke with Rex Donahue about All-[S]tate paying the
[Mammoth] Restoration claim (and/or whatever reduced
settlement amount) and Rex Donahue would release All-State
from the 3rd party complaint and bad faith claim surrounding
this lawsuit and he AGREED TO THE SAME. I would request
the release or other document as soon as possible so that I can
get Rex Donahue to sign so we can resolve this case. It is my
understanding Rex Don[a]hue will [b]e paying $0.00 to
[Mammoth] under the existing suit and will be dismissed in
light of All-State’s payment of the same.
Also on June 27, 2019, counsel for petitioner left counsel for Allstate the following
voicemail message that was transcribed and included in the appendix record:
This is attorney Steve Cook. I spoke with Rex Donahue and he
agreed with that [sic] to get Mon Mouth [Mammoth] out of that
if you, if Allstate’s paying the claim and will dismiss and drop
any suit against Allstate involving that claim on the home and
the lost property. If you can get that out or get that worked out
Though it appears that counsel for petitioner e-mailed his response confirming the
6
settlement terms only to counsel for Mammoth, it is reasonably presumed that counsel for
petitioner did so inadvertently, as petitioner does not allege otherwise. Indeed, because
counsel for Allstate was tasked with drafting the order and settlement agreements, it is clear
that when counsel for petitioner replied and directed that the “order” be circulated so that
he could “get [his] client’s signature on the same,” he intended to include counsel for
Allstate.
4
we’re a 100% in on Rex will pay zero, Allstate will pay it we’ll
drop our Third-Party claim and any bad faith. If you want to
get that over to us, I will get Rex to sign it and we can go from
there.
(Emphasis added).
A month later, in a July 25, 2019, e-mail to counsel for petitioner and counsel
for Mammoth, counsel for Allstate advised as follows:
I have the check and will mail it today or tomorrow to [counsel
for Mammoth] with a release to be executed by Mammoth that
releases [petitioner] from Mammoth’s claims.
I will also send Mr. Cook [counsel for petitioner] a release that
releases Allstate from [petitioner’s] claims, the consideration
for which will be the payment of the debt owed to Mammoth.
So, two releases. Does that work for everyone? 7
(Footnote added).
Counsel for Allstate then forwarded two settlement agreements on that same
date. Pursuant to one agreement, Mammoth would agree to release all claims against
petitioner. Pursuant to the other agreement, petitioner would agree to release all claims
against Allstate. The e-mail from counsel for Allstate accompanying the agreements
8
While the record includes an affirmative e-mail response from counsel for
7
Mammoth, it does not include an e-mail response from counsel for petitioner.
A copy of the written settlement agreement between Allstate and petitioner has not
8
been made a part of the appendix record. However, we note that the parties do not dispute
that it reflects the terms and conditions set forth by counsel for Allstate in the June 28,
2019, e-mail he sent to counsel for petitioner and counsel for Mammoth and which is
previously set forth in this opinion.
5
advised, “Let me know if you have changes, otherwise, please execute and return the
original to the appropriate Defendant’s counsel.”
On July 26, 2019, Allstate provided the agreed-upon settlement amount of
$5,000 to Mammoth in resolution of all issues and claims arising out of its complaint
seeking payment for mitigation services rendered to petitioner. On August 20, 2019,
Mammoth returned the executed settlement agreement to both counsel for Allstate and
counsel for petitioner. The terms of this settlement agreement are not at issue in this appeal.
Petitioner, however, failed to execute and return the other settlement
agreement. In response to an inquiry from counsel for Allstate on September 25, 2019, as
to when the agreement would be executed by petitioner, counsel for petitioner responded
on that same date that he had hand delivered the settlement agreement to his client “a while
ago” and “requested the same back from him with appropriate signatures.” Counsel for
petitioner related further that he “ha[d] requested an office visit with him asap regarding
the same.” Counsel explained that petitioner was “addressing a very complicated Federal
case at the moment” but that he (petitioner’s counsel) had “indicated the importance of this
matter as well.”
After subsequent inquiries concerning execution of the settlement agreement
went unacknowledged, Allstate filed a Motion to Enforce Settlement on November 22,
9
Subsequent e-mail inquiries to counsel for petitioner were sent on October 4th,
9
October 21st, and October 28th, all of which went unanswered.
6
2019. 10 Petitioner responded, arguing that although he agreed to settle Mammoth’s
complaint seeking approximately $6,000 in costs associated with the water mitigation
services it performed on the subject property, he did not agree to release any claim against
Allstate for water damage on the property, which petitioner alleged amounted to $54,000.
In its reply, Allstate argued that petitioner’s response to the motion to enforce the
settlement agreement represented a “sudden reversal from his prior unequivocal agreement
to settle all claims” and was an “attempt[], for the first time, to invalidate or re-negotiate
the unambiguous terms of the settlement agreement reached in this matter.” According to
Allstate, the parties reached a meeting of the minds regarding settlement, as clearly
demonstrated by the written communications between counsel as well as the
contemporaneous voicemail left by counsel for petitioner for counsel for Allstate. Allstate
argued that there was no misunderstanding concerning the settlement terms and that the
written agreement should be enforced.
On December 27, 2019, petitioner filed a motion to amend the complaint or,
in the alternative, allow the filing of a new complaint. In his proposed pleading, petitioner
alleged that the water leak at the subject property caused $54,000 in damage (in addition
to the $6,000 in mitigation services performed by Mammoth); that Allstate breached its
On December 2, 2019, counsel for petitioner filed a Motion to Withdraw as
10
counsel of record because “[t]here has been a total break-down in communication between
counsel and client in this matter. Client has agreed to withdraw of attorney [sic] and will
seek new counsel.” Ultimately, however, counsel for petitioner did not withdraw and
represents petitioner in this appeal.
7
insurance contract with petitioner by failing to pay for repairs to the water damage and for
the debt owed to Mammoth for mitigation services; and that Allstate’s conduct constitutes
“bad faith.” Petitioner sought $54,000 in damage and repair costs, $6,000 for services
performed by Mammoth, attorney fees and costs, and punitive damages.
By order entered on February 25, 2020, the circuit court granted Allstate’s
motion to enforce the settlement and denied petitioner’s motion to amend the complaint or,
alternatively, allow a new complaint. The circuit court determined that counsel for
petitioner “had clear authority to bind his client to the terms of the settlement[,]” was
11
competent to enter into the agreement with counsel for Allstate, and “unequivocally gave
his consent, on behalf of his client, to the terms of the agreement proposed by Allstate on
June 28, 2019.” The circuit court further determined that Allstate’s payment of petitioner’s
debt “owed to Mammoth was valuable consideration for the return promise to ‘release all
claims against Allstate arising out of the subject water loss claim made in January 2018 on
the Landlord’s Package policy with Allstate covering’” the subject property and to
“‘dismiss all claims against Allstate in the civil action between the parties now pending in
the Circuit Court of Cabell County.’” The court concluded that the June 28, 2019, e-mail
outlined a valid and enforceable settlement agreement between Allstate and petitioner and
We observe that petitioner does not contend that his counsel lacked the authority
11
to bind petitioner to a settlement in this matter. See Syl. Pt. 1, Miranosky v. Parson, 152
W. Va. 241, 161 S.E.2d 665 (1968) (“When an attorney appears in court representing
clients there is a strong presumption of his authority to represent such clients, and the
burden is upon the party denying the authority to clearly show the want of authority.”).
8
ordered petitioner to immediately abide by the agreement. Having granted Allstate’s
motion to enforce the settlement, the circuit court denied petitioner’s motion to amend the
complaint or, alternatively, to allow a new complaint, on the ground that such motion
would be futile and moot. It is from this order that petitioner now appeals.
II. Standard of Review
In reviewing the circuit court’s order granting Allstate’s motion to enforce
the settlement, we apply the following standard:
Where the issue of the enforceability of a settlement
agreement requires the lower court to make findings of fact and
apply contractual or other legal principles, this Court will
review its order and the ultimate disposition under an abuse of
discretion standard, its underlying factual findings under a
clearly erroneous standard, and questions of law pursuant to a
de novo review.
Syl. Pt. 2, Triple 7 Commodities, Inc. v. High Country Mining, Inc., 245 W. Va. 63, 857
S.E.2d 403 (2021).
As for the circuit court’s ruling denying petitioner’s motion to amend his
third-party complaint or, alternatively, to file a new complaint, we afford circuit courts
wide discretion in ruling upon such motions:
A trial court is vested with a sound discretion in granting
or refusing leave to amend pleadings in civil actions. Leave to
amend should be freely given when justice so requires, but the
action of a trial court in refusing to grant leave to amend a
pleading will not be regarded as reversible error in the absence
of a showing of an abuse of the trial court’s discretion in ruling
upon a motion for leave to amend.
9
Syl. Pt. 6, Perdue v. S.J. Groves & Sons Co., 152 W. Va. 222, 161 S.E.2d 250 (1968). With
these standards in mind, we now consider the parties’ arguments.
III. Discussion
Petitioner argues that the circuit court erred by enforcing the settlement
agreement because the evidence failed to establish a meeting of the minds as to petitioner’s
assent to release Allstate from all claims “arising out of the subject water loss claim” on
the subject property that petitioner made with Allstate in January of 2018. He states simply
that because “this case was filed in Magistrate Court with a limit of $10,000.00. . . . there
could be no agreement on an amended complaint involving $54,000.00[;]” that “the
settlement agreement had not been reduced to writing prior to any alleged ‘agreement of
the parties[;]’” and that the proposed agreement “included different language th[a]n agreed
by the parties.” In a summary response, Allstate counters that the circuit court correctly
concluded that the record evidence demonstrated that there was a meeting of the minds.
We agree with Allstate.
Our law concerning the enforcement of settlement agreements is well
established. As a guiding principle, we have explained that “[t]he law favors and
encourages the resolution of controversies by contracts of compromise
and settlement rather than litigation[.]” Syl. Pt. 1, in part, Sanders v. Roselawn Mem’l
Gardens, Inc., 152 W.Va. 91, 159 S.E.2d 784 (1968). Nonetheless, settlement agreements
are contracts and therefore, “are to be construed ‘as any other contract.’” Burdette v.
Burdette Realty Improvement, Inc., 214 W.Va. 448, 452, 590 S.E.2d 641, 645 (2003)
10
(quoting Floyd v. Watson, 163 W.Va. 65, 68, 254 S.E.2d 687, 690 (1979)). In that regard,
“[i]t is well-understood that ‘[s]ince a compromise and settlement is contractual in nature,
a definite meeting of the minds of the parties is essential to a valid compromise, since a
settlement cannot be predicated on equivocal actions of the parties.’ 15A C.J.S.
Compromise & Settlement § 7(1) (1967).” O’Connor v. GCC Beverages, Inc., 182 W.Va.
689, 691, 391 S.E.2d 379, 381 (1990). A “‘meeting of the minds’ or ‘mutual assent’ relates
to the parties having the same understanding of the terms of the agreement reached.”
Messer v. Huntington Anesthesia Grp., Inc., 222 W. Va. 410, 418, 664 S.E.2d 751, 759
(2008) (citing 17 C.J.S. Contracts § 35 (1999)). “A meeting of the minds of the parties is
a sine qua non of all contracts.” Syl.P. 1, Martin v. Ewing, 112 W.Va. 332, 164 S.E. 859
(1932).
The evidence presented in support of Allstate’s motion to enforce the
settlement is not specifically addressed by petitioner and, thus, is not disputed. On June 27,
2019, counsel for petitioner sent an e-mail to counsel for Allstate and advised that he had
spoken with his client “about All-[S]tate paying the [Mammoth] Restoration claim (and/or
whatever reduced settlement amount) and [petitioner] would release All-State from the 3rd
party complaint and bad faith claim surrounding this lawsuit and he AGREED TO THE
SAME.” (Emphasis added). Similarly, in a voicemail message left for counsel for Allstate
on that same day, counsel for petitioner clearly related that he had spoken with petitioner
and he agreed with that [sic] to get Mon Mouth [Mammoth]
out of that if you, if Allstate’s paying the claim and will dismiss
and drop any suit against Allstate involving that claim on the
home and the lost property. If you can get that out or get that
11
worked out we’re a 100% in on [petitioner] will pay zero,
Allstate will pay it we’ll drop our Third-Party claim and any
bad faith. If you want to get that over to us, I will get
[petitioner] to sign it and we can go from there.
(Emphasis added).
Counsel for petitioner’s own words firmly established that, in consideration
for Allstate paying the debt petitioner owed to Mammoth for the mitigation services
performed on the subject property, petitioner would release Allstate not only from the third-
party complaint involving the debt to Mammoth, but also “any suit against Allstate
involving that claim on the home and the lost property,” including “any bad faith.”
Inarguably, petitioner’s claim “on the home and the lost property” relates not to the debt
owed for Mammoth’s services, but to the claim petitioner made with Allstate in January of
2018 on the Landlord’s Package policy for the water damage occurring on the subject
property.
Further, the following day, on June 28, 2019, counsel for Allstate set forth in
an e-mail to both counsel for petitioner and Mammoth indicating that the parties had
agreed that petitioner “will release all claims against Allstate arising out of the subject
water loss claim made in January 2018 on the Landlord’s Package policy with Allstate
covering” the subject property and “will dismiss all claims against Allstate in the civil
action between the parties now pending in the Circuit Court of Cabell County. In return,
Allstate will satisfy the claim of [Mammoth] against [petitioner], by paying [Mammoth]
the sum of $5,000.00.” In response to this e-mail, counsel for petitioner unequivocally
12
agreed to the terms and conditions of the settlement as stated therein by responding,
“Confirmed” and requesting that counsel for Allstate “circulate the Order and I will get my
client[’]s signature on the same[.]” Subsequently, on July 25, 2019, counsel for Allstate
circulated the settlement agreement, and counsel for petitioner never objected to its terms
and conditions or otherwise suggested that they did not reflect that which the parties had
negotiated and agreed to. When counsel for Allstate inquired about the delay in executing
and returning the written agreement, counsel for petitioner confirmed, in a September 25,
2019, e-mail that he had hand delivered the agreement to petitioner “a while ago” and
requested that petitioner return it to him “with appropriate signatures.” Counsel for
petitioner also advised that he requested a meeting with his client “asap regarding the
same.” Importantly, at no time did counsel for petitioner suggest that the reason for the
delay in executing the agreement was because petitioner believed that it did not reflect the
terms and conditions to which he had assented.
We conclude that that the record evidence was overwhelming that petitioner
agreed that, in consideration for Allstate’s payment to Mammoth for the performance of
water mitigation services on the subject property, petitioner would dismiss his third-party
complaint against Allstate and “will dismiss and drop any suit against Allstate involving
that claim on the home and the lost property. . . . and any bad faith.” Petitioner’s assent to
these terms was unequivocal, see O’Connor, 182 W. Va. at 691, 391 S.E.2d at 381, and the
evidence clearly demonstrates that the parties had “the same understanding of the terms of
the agreement reached.” Messer, 222 W. Va. at 418, 664 S.E.2d at 759. We, therefore,
13
conclude that the circuit court did not abuse its discretion in determining that there was a
meeting of the minds regarding the terms of the settlement agreement between petitioner
and Allstate and that the settlement agreement must be enforced. 12
Finally, petitioner also assigns as error the circuit court’s denial of his motion
to amend his third-party complaint against Allstate or file a new complaint. Petitioner
claims he should be permitted to allege claims for breach of contract and insurance bad
faith related to the water damage that occurred on the subject property as a result of the
busted pipes. The circuit court determined that because it held that petitioner “must honor
the terms of his settlement agreement, release his claims, and dismiss his case,” his motion
to amend or file a new complaint is both futile and moot. We agree.
12
Petitioner raises two additional assignments of error relating to the enforceability
of the settlement agreement: (1) that the agreement is unconscionable, and (2) that the
agreement would unjustly enrich “the bad faith party” (i.e., Allstate). In the exercise of our
discretion, we decline to consider these assignments of error, which consist of only a few
sentences each and lack the citation to any supporting legal authority. “Although we
liberally construe briefs in determining issues presented for review, issues which are . . .
mentioned only in passing but are not supported with pertinent authority, are not considered
on appeal.” State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996); accord W.
Va. R. App. P. 10(c)(7). We have cautioned that “[a]n appellant must carry the burden of
showing the error in the judgment of which he complains. This Court will not reverse the
judgment of a trial court unless error affirmatively appears from the record. Error will not
be presumed, all presumptions being in favor of the correctness of the judgment.” Syl. Pt.
2, W. Va. Dep’t of Health and Human Res. Emp. Fed. Credit Union v. Tennant, 215 W.
Va. 387, 599 S.E.2d 810 (2004) (quoting Syl. Pt. 5, Morgan v. Price, 151 W. Va. 158, 150
S.E.2d 897 (1966)). Because petitioner has failed to adequately brief these assignments of
error, and, therefore, to even minimally carry the burden of showing error in the judgment
about which he now complains, we decline to address them.
14
West Virginia Rule of Civil Procedure 15(a) (1998) permits a party to amend
pleadings “only by leave of court or by written consent of the adverse party” after a
responsive pleading is filed, and counsels that “leave [to amend] shall be freely given when
justice so requires.” Id. This rule has been interpreted broadly and permissively:
The purpose of the words “and leave [to amend] shall
be freely given when justice so requires” in Rule 15(a) W.Va.
R.Civ.P., is to secure an adjudication on the merits of the
controversy as would be secured under identical factual
situations in the absence of procedural impediments; therefore,
motions to amend should always be granted under Rule 15
when: (1) the amendment permits the presentation of the merits
of the action; (2) the adverse party is not prejudiced by the
sudden assertion of the subject of the amendment; and (3) the
adverse party can be given ample opportunity to meet the issue.
Syl. Pt. 2, State ex rel. Vedder v. Zakaib, 217 W. Va. 528, 618 S.E.2d 537 (2005) (quoting
Syl. Pt. 3, Rosier v. Garron, Inc., 156 W. Va. 861, 199 S.E.2d 50 (1973)) (emphasis added).
We have further explained that “a court may exercise its discretion to deny a motion for
leave to amend a complaint where such amendment would not lead to a presentation of the
case on its merits. . . . ‘“[T]he liberal amendment rules under Rule 15(a) do not require the
courts to indulge in futile gestures.”’” Cal. Tchrs’ Ret. Sys. v. Blankenship, 240 W. Va.
623, 631-32, 814 SE.2d 549, 557-58 (2018) (quoting Pyles v. Mason Cnty Fair, Inc., 239
W. Va. 882, 889, 806 S.E.2d 806, 813 (2017) (internal citation omitted)); see also Johnson
v. Pinson, 244 W. Va. 405, 415, 854 S.E.2d 225, 235 (2020) (finding that proposed
amendment to complaint is futile if it “could not withstand a motion to dismiss”); Pyles,
239 W. Va. at 889, 806 S.E.2d at 813 (concluding that circuit court did not abuse its
discretion in refusing plaintiff’s motion to add county commission as a defendant because
15
to do so would be a futile gesture given that commission would be immune from liability
under either West Virginia Governmental Tort Claims and Insurance Reform Act or public
duty doctrine); Lloyd’s, Inc. v. Lloyd, 225 W. Va. 377, 386-87, 693 S.E.2d 451, 460-61
(2010) (concluding that motion to amend complaint was correctly denied “because the
claims sought to be asserted against [one in privity with a party to prior litigation] would
not have ‘permit[ted] the presentation of the merits of the action because such claims also
would have been barred by res judicata’”).
We find that the circuit court correctly refused to grant petitioner permission
to file the proposed amended or new complaint against Allstate insofar as we have already
concluded that the court properly found that the settlement agreement between Allstate and
petitioner resolved the very same claims.
IV. Conclusion
Based upon all of the foregoing, the circuit court’s order granting Allstate’s
motion to enforcement settlement and denying petitioner’s motion to amend his third-party
complaint or allow the filing of a new complaint is affirmed.
Affirmed.
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