Petition for Writ of Certiorari — Fleming Landfill, Inc. v. Garnes

Supreme Court brief1991

Ask Donna

What actually matters in this document.

Text

we @) areih Court, US

90-15 CO TL ED

APR 10 199%

Sn Che OFFICE CF THE CLERK

Supreme Court Of Che United States

OCTOBER TERM, 1990

FLEMING LANDFILL, INC. AND JOHN T. FLEMING,

Defendants-Appellanis,

Petitioners,

JULIAN GARNES AND SHARON GARNES,

Plaintiffs-Appellees,

Respondents.

ON CERTIORARI TO THE

SUPREME COURT OF WEST VIRGINIA

PETITION FOR WRIT OF CERTIORARI

Robert B. Allen

Counsel of Record

KING, BETTS & ALLEN

Post Office Box 3394

Charleston, West Virginia 25333

(304) 345-7250

Counsel for Petitioners, Fleming

LAWYERS PRINTING COMPANY 7th & Franklin Bidg. Richmond, Virginia 23219 (804) 648-3664

(1)

QUESTIONS PRESENTED

Whether West Virginia law,

which authorizes punitive damages to

be awarded in tort actions in which

"reckless conduct or criminal indif-

ference to civil obligations affecting

the rights of others appear," violates

the Due Process Clause of the Four-

teenth Amendment in that, among other

things:

it fails to provide adequate

notice of the conduct for

which punitive damages may

be allowed;

it fails to set forth any

clear, constitutionally

acceptable standards for

juries to apply in determin-

ing whether to award punitive

damages; and

by leaving the determination

of the amount of punitive

damages solely to the jury,

West Virginia law fails to

set forth any clear, con-

stitutionally acceptable

standards for juries to apply

in determining the amount of

such damages.

)

DESIGNATION OF PARTIES

Petitioners are Fleming Landfill,

Inc. and John T. Fleming (collectively

referred to as "Petitioners"). Respon-

dents, Julian Garnes and Sharon Garnes

(collectively referred to as "Garnes"),

are residents of Kanawha County, West

Virginia, residing near the solid waste

disposal facility operated by the

Petitioners.

Pursuant to Rule 29.1 of the Rules

of this Court, Petitioner Fleming

Landfill, Inc. states that it is a West

Virginia corporation. It has no parent

company, non-wholly owned subsidiary

or affiliate.

TABLE OF CONTENTS

Questions Presented............

Designation of Parties.........

Table OF CONEONES.. ce wsccecccses

Table of Authorities...........

OCBAMIGME WOLOWs ccccevesscecevscs

Jurisdictional Statement.......

Constitutional and Statutory

Provisions Involved..........

Statement of the Case..........

SCRCOMONMG GE FOCCB. 2c icccesecee

Presentation of Issues

ce DE. Ss ok eK eR RR eee,

Reasons for Granting

Tene DOCECIOR 666 eb eas ccascs

Argument for the Allowance

OE GRO WEEE «cand ewe sowncese

I West Virginia Punitive

Damages Law Denies

Petitioners Due Process

\ GE Be wae hence eeank oek 400%

een ete ceihe Cicamnd —_

- a a ,.

aes atl

aes = an aa

bag a

‘

eto.

~+*, ="

}

ty =

eS een

Appendix

TABLE OF AUTHORITIES

CASES

Browning-Ferris Industries

of Vermont, Inc. v. Kelco

Disposal, Inc.,

492 U.S.

‘

109 S.Ct. 2909 (1989)......

Missouri Pac. Ry. Co. v.

Tucker, 230 U.S. 340, 351

(1913) .. ccc rc cccccccccccces

Pacific Mutual Life Ins.

Co. v. Haslip,

59 USLW 4157

(emraes 4, AGPL) 6 acc cece sees

Rosener v. Sears,

Roebuck & Co.,

110 Cal.App.3d 740

(1980), app. dism'd,

450 U.S. 1051 (1981).......

Southern Western Tel & Tel

Co. v. Danaher,

238 U.S. 482, 491

ie ee eee hes beens

Wells v. Smith,

237 &.8.2@ 872

‘a. |) ee eenannnreae

‘ a. Se

—_ eS pall yw : _ a hoot aint 7

ae aan)

t —

si is an Fi cen eae a

FEDERAL STATUTES

United States Constitution,

Fourteenth Amendment Passim

SS O.8.0i BABSTOM 6 ccs che das 8

7 a

( a c]

a . pt

a 5

a OC

p a a

; an ;

ian :

a “~ ° ;

t : fl

4 ' 2 (

= ; ;

; a

7 |

' wwe — 4

. poe ,

1 / " i

: im, P

ad wd.

» :

ee oe

OPINIONS BELOW

The opinions of the Circuit Court

of Kanawha County, West Virginia are

unreported and are reproduced in the

Appendix, infra, beginning at- App. 1,

The opinion of the Supreme Court

of Appeals of West Virginia denying

Fleming's petition for appeal is un-

reported, but is reproduced in the

Appendix, infra, at App. 13-14.

JURISDICTIONAL STATEMENT

The jurisdiction of this Court is

invoked under 28 U.S.C. §1257(a).

The judgment of the Siseuit Court

of Kanawha County, West Virginia, was

entered on December 9, 1988, awarding

Garnes punitive damages of $105,000.00.

(App., infra, 1-3]. On February 2,

1989, the Circuit Court of Kanawha

County, West Virginia, entered a final

order denying Fleming's motion for

judgment notwithstanding the verdict,

motion for a new trial, and motion for

remittitur. [App. infra, 4-6].

On January 10, 1991, the Supreme

Court of Appeals of West Virginia

dismissed the Garnes appeal. (App.

infra, 15-17]. On January 10, 1991,

the Supreme Court of Appeals of West

Virginia denied Fleming's petition for

appeal, thus, refusing to review the

decision of the Circuit Court of

Kanawha County, West Virginia. /[App.

infra, 13-14]. This petition for writ

of certiorari is filed within ninety

days of the denial of Petitioners'

petition for appeal by the Supreme

Court of Appeals of West Virginia.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 1 of the Fourteenth

Amendment of the United States Con-

stitution provides in relevant part:

No state shall make or

enforce any law which shall

abridge the privileges or

immunities of citizens of the

United States; nor shall any

state deprive any person of

life, liberty, or property,

without due process of law;

nor deny to any person within

its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

On December 24, 1987, Garnes

filed an action against Fleming alleg-

ing that Fleming's operation of a solid

waste disposal facility constituted a

nuisance. A jury trial was held and,

on November 15, 1988, the jury found

that the solid waste facility operated

by Fleming constituted a nuisance. The

jury also found that Garnes was not

entitled to any compensatory damages.

The jury awarded punitive damages in

the amount of $105,000.00. On February

2, 1990, the Circuit Court of Kanawha

County, West Virginia, denied Fleming's

motion for judgment notwithstanding the

verdict, motion for a new trial, and

motion for remittitur.

Garnes filed a petition for appeal

with the Supreme Court of Appeals of

West Virginia on March 9, 1990. That

petition assigned as error the failure

to award compensatory damages and the

failure of the Circuit Court to issue

a permanent injunction. That appeal

was granted on April 4, 1990. On

December 20, 1990, Garnes moved to

dismiss their appeal. On January 10,

1991, the Supreme Court of Appeals of

West Virginia dismissed the Garnes'

appeal. On January 7, 1991, Fleming

filed a petition for appeal with the

Supreme Court of Appeals of West Vir-

ginia. This petition for appeal was

denied on January 10, 1991.

STATEMENT OF FACTS

Fleming Landfill, Inc. is a West

Virginia corporation which operates a

solid waste disposal facility in

Kanawha County, West Virginia. fThis

landfill has three full-time employees.

This landfill is located on property

owned by John T. Fleming and Sandra

Fleming. Mr. Fleming's house is the

closest residence to the landfill. The

landfill began receiving solid waste

on July 4, 1979, pursuant to the permit

granted by the West Virginia State

Department of Health. Garnes claims

that the landfill is a nuisance for a

number of miscellaneous reasons.

Except for Marilyn Cameron, a close

friend of Mr. and Mrs. Garnes, no other

resident in the area noticed or

testified to any problems caused by the

landfill. Mr. and Mrs. Garnes' home

is approximately 1400 feet from the

landfill.

Following the trial court's

instructions on the issue of liability,

the jury was instructed on punitive

damages as follows:

The Court instructs the jury

that if you find from the

evidence the defendants, or

either of them, have com-

mitted wanton, willful or

reckless conduct, affecting

the rights of others, includ-

ing the plaintiffs, and such

conduct has directly and

proximately caused injury to

the plaintiffs, the jury may

assess punitive damages

against the defendants.

The Court instructs the jury

that punitive damages are

damages which will punish the

defendants and in the judg-

ment of the jury should be

sufficient to deter defendant

John Fleming and/or’ the

defendant Fleming Landfill,

Inc. and others from engaging

in a like course of conduct.

The Court instructs the jury

that in assessing punitive

damages you should take into

consideration all the cir-

cumstance surrounding the

particular occurrence which

is the subject of this liti-

gation, including the nature

of the wrongdoing, the extent

of harm inflicted, the intent

of tne party committing the

act, the economic wealth of

the defendants, including in

each case his or its assets

and income as well as any

mitigating circumstances.

This instruction was objected to by

Fleming because it did not require that

an award of punitive damages bear a

reasonable relationship to any compen-

satory damage award. [App. infra 47-

48]. The trial judge apparently be-

lieved that this reasonable relation-

ship requirement was contained in

another instruction. [App. infra 2}.

However, the reasonable relationship

requirement was not contained in any

instructions given to the jury.

On November 15, 1988, the jury

found that Garnes was not entitled to

any compensatory damages. The jury

further awarded punitive damages in the

amount of $105,000.00.

PRESENTATION OF ISSUES IN STATE COURT

Fleming timely filed a motion for

judgment notwithstanding the verdict,

motion for a new trial, and motion for

remittitur. At that time, the federal

questions presented herein were raised.

(App. infra, 28-33]. The trial court

summarily denied Petitioners' motions

without addressing the constitutional

issues. (App. infra, 4-12]. The fed-

eral questions presented herein were

also raised in Fleming's petition for

appeal. [App. infra, 18-27].

REASONS FOR GRANTING THIS PETITION

The issues presented herein were

recently addressed in Pacific Mutual

Life Ins. Co. v. Haslip, 59 USLW 4157

(March 4, 1991). Subsequently, this

Court granced writ of certiorari in a

number of cases rating punitive

damages. In those cases the judgments

were vacated and the cases remanded for

further consideration in light of

Pacific Mutual Life Ins. Co. v. Haslip,

supra.

In this case, the jury found that

Garnes was not injured by the conduct

of Fleming. The jury made no award of

compensatory damages. The jury was

instructed that it could award punitive

damages if Fleming's conduct was wan-

—

ton, willful, or reckless, and directly

and proximately caused injury to the

plaintiffs. Another jury instruction

violated the Due Process Clause because

it did not require that an award of

punitive damages bear a reasonable

relationship to any compensatory damage

award.

Under West Virginia law, a jury

is authorized to award punitive damages

in any tort case in which wanton, will-

ful, or reckless conduct or criminal

indifference to civil obligations

affecting the rights of others appear.

Wells v. Smith, 297 S.E.2d 872 (W.Va.

1982). This standard is vague,

indefinite and provides very little

guidance as to the conduct prohibited.

In this case, the jury was instructed

that they may assess punitive damages

if they found the Petitioners to have

committed reckless conduct. "Reckless

conduct" was not defined to the jury.

Moreover, there was no limit as to the

amount of damages that could be awarded

by the jury. Moreover, although ob-

jected to by the Petitioners, the jury

was not instructed that an award of

punitive damages must bear a reasonable

relationship to any compensatory damage

award. Moreover, the Petitioners have

not been afforded the appellate review

granted the defendant in Haslip.

This case is typical of the

explosion of punitive damage claims and

awards which are escalating in both

number and size. As shown by the award

against Fleming in this case, juries,

and reviewing trial and appellate

courts, have free and untrammelled

discretion regarding whether and how

much to punish. In this case, Peti-

tioners were punished when their con-

duct did not cause any damage.

Justice Elkington in Rosener v.

Sears, Roebuck & Co., 110 Cal.App.3d

740 (1980), app. dism'd, 450 U.S. 1051

(1981) stated this matter succinctly,

at page 759:

Placing unrestricted power

in a jury to direct punish-

ment for “evil intent" by

compelling the "evildoer" to

pay money to another without

right thereto, seems foreign

to any concept of due process

known to me.

Judicial oversight at present does

no more than shift discretion to the

judge or panel of judges. All of the

"tests" for the validity of these

awards boil down to the subjective

determination of whether the particular

court feels the award was excessive,

based upon, as with jurors, their un-

divided backgrounds, temperament and

societal concerns. In this case, not

only was an objective test not used,

the appellate court refused to subjec-

tively review the punitive damage

award.

This is an appropriate case for

this Court to examine the present state

of punitive damages law in West Vir-

ginia to determine whether Due Process

standards are met, considering the free

reign given to juries by that doctrine

to punish selectively, to indulge bias,

prejudice and any wealth redistribution

inclinations they may have, and to

exercise standardless discretion to

render awards bearing no necessary

relationship to actual harm caused.

WEST VIRGINIA PUNI-

TIVE DAMAGES LAW

DENIES PETITIONERS

DUE PROCESS OF LAW.

Damages and penalties imposed by

state laws, including civil laws, may

be invalid as deprivations of property

without due process of law. Missouri

Pac. Ry. Co. v, Tucker, 230 U.S. 340,

351 (1913); Southern Western Tel & Tel

Co. v. Danaher, 238 U.S. 482, 491

(1915). In Pacific Mutual Life Ins.

Co. v. Haslip, 59 USLW 4157 (March 4,

1991), Justice Blackmun, in discussing

the constitutionality of punitive dam-

ages under the Due Process Clause of

the Fourteenth Amendment stated:

We need not, and indeed we

cannot, draw a mathematical

bright line between the

constitutionally acceptable

and the constitutionally

unacceptable that would fit

every case. We can say,

however, that general con-

cerns of reasonableness and

adequate guidance from the

court when a case is tried

to a jury properly enter into

the constitutional calculus.

Punitive damage law in West Vir-

ginia, as apptied in this case, vio-

lates the Due Process Clause in each

of the following specific ways, among

others:

a. It fails, as do the court

decisions interpreting it,

to notify people (who are

later to become defendants)

of the nature of the offenses

for which they may be liable

in punitive damages, and it

fails to limit the award of

punitive damages to criminal,

or even intentional, be-

havior;

It likewise fails, as do the

court decisions interpreting

it, to guide judges and

juries with regard to the

nature of offenses for which

punitive damages may . be

awarded;

It fails, as do the court

decisions interpreting it,

to inform judges and juries

as to the means of calcu-

lating or determining the

amount of punitive damages

to be awarded, whether by

reference to actual damages

or otherwise, leaving such

determination to the jury;

It fails to place any ascer-

tainable or meaningful limit

upon the amount of punitive

damages to be awarded; and

It permits awards of exces-

Sive punitive damages without

relationship to the public

safety, health, or welfare

sought to be served by the

allowance of punitive dam-

ages.

Considered separately and cumula-

tive, the foregoing failures

demonstrate that West Virginia law as

applied in this case is a denial of due

process. As stated by Justice Kennedy

in his concurring opinion in Pacific

Mutual Life Ins. Co. v. Haslip:

This is not to say that every

award of punitive damages by

a jury will satisfy constitu-

tional norms. A verdict

returned by a biased or

prejudiced jury no doubt

violates due process, and the

extreme amount of an award

compared to the actual dam-

age inflicted can be some

evidence of bias or prejudice

in an appropriate case.

In the present case, the jury found

that Garnes were not damaged by the

conduct of Petitioners. The jury

awarded no compensatory damages. The

punitive damage award is excessive

under due process standards.

In Browning-Ferris Industries of

Vermont, Inc. v. Kelco Disposal, Inc.,

492 U.S. __—__, 109 S.Ct. 2909 (1989),

Justice Brennan, in his concurrence,

suggested that Due Process’ forbids

excessive damages in civil cases, stat-

ing, at page 29<.:

Several of our decisions

indicate that even where a

statute sets a range of pos-

Sible civil damages that may

be awarded to a private

litigant, the Due Process

Clause forbids damages awards

that are "grossly excessive,"

Waters-Pierce Oil Co. v.

Texas, aaa Uses 86, 111

(1909), or "so severe and

oppressive as to be wholly

disproportionate to the

offense and obviously un-

reasonable," St. Louis, I.M.

& S.R. Southwestern Telegraph

& Telephone Co. v. Danaher,

238 U.S. 482, 491 (1915);

Missouri Pacific Railway Co.

v._ Humes, 115 U.S. 512, 522-

23 (1885). I should think

that, if anything, our

scrutiny of awards made with-

out the benefit of a legisla-

ture's deliberation and guid-

ance would be less indulgent

than our consideration of

those that fall within

statutory limits.

West Virginia law as applied in

the present case is more constitution-

ally egregious than that found in

Pacific Mutual Life Ins. Co. v. Haslip,

supra. In Haslip, the plaintiff

recovered a $200,000 compensatory

damage award. 59 USLW at 4158, n.2.

In the present case there was no com-

pensatory damage award justifying the

punitive damage award.

Moreover, in Haslip, the alleged

constitutional deficiencies were fully

addressed by the Supreme Court of

Alabama. In the present case, the

Supreme Court of Appeals of West Vir-

ginia refused to review the jury ver-

dict. [{App. infra 13-14].

CONCLUSION

Petitioners' constitutional claims

are substantial. They have been

punished in an amount vastly out of

proportion to the compensatory damages.

The jury failed to make any award of

compensatory damages. The award was

“ not reviewed by any appellate court.

Because these challenges raise impor-

tant issues, this Petition for Writ of

Certiorari should be granted and this

case should be briefed and set for oral

argument.

April 8, 1991.

Respectfully submitted,

FLEMING LANDFILL, INC. and

JOHN T. FLEMING

unsel of Record

APPENDIX

IN THE CIRCUIT COURT OF KANAWHA COUNTY,

WEST VIRGINIA

JULIAN GARNES and

SHARON GARNES,

Plaintiffs,

vs. CIVIL ACTION NO. 87-C-4527

FLEMING LANDFILL, INC.,

and JOHN T. FLEMING,

Defendants.

JUDGMENT

This action came on for trial

before the Court and a properly im-

paneled jury, Honorable Herman Canady

presiding, and the issues having been

duly tried and the jury on November 15,

1988, having rendered the following

verdict:

We, the jury, find that the

operation of the solid waste facility

by the defendants since December 24,

1985, does constitute a nuisance.

App. 1

We, the jury, find that the

plaintiffs are not entitled to any

compensatory damages.

: We, the jury, find that the

plaintiffs are entitled to punitive

damages and we do further award the

plaintiffs punitive damages in the

amount of $105,000.

It is hereby ORDERED and ADJUDGED

that the plaintiffs recover of the

defendants John T. Fleming and Fleming

Landfill, Inc. the sum of $105,000,

with interest thereon at the rate of

ten percent from the aforesaid date

until paid and their costs of action.

The Court notes the exceptions of

both plaintiffs and defendants to the

entry of this judgment.

App. 2

Dated this 9th day of December,

1988.

/s/ Herman Canady, Jr.

Circuit Judge

Order Book: CA

Book 88-18, P. 348-C

App. 3

IN THE CIRCUIT COURT OF KANAWHA COUNTY,

WEST VIRGINIA

JULIAN GARNES and

SHARON GARNES,

Plaintiffs,

vs. CIVIL ACTION NO. 87-C-4527

FLEMING LANDFILL, INC.

and JOHN T. FLEMING,

Defendants.

ORDER

This matter having come on for

hearing before the Court and a properly

empaneled jury and the jury having

considered the evidence and rendered

a verdict and a judgment having pre-

viously been entered on that verdict,

and the Court having considered the

record and the evidence presented and

the motions made by the parties to this

action, and being sufficiently advised,

it is hereby ORDERED as follows:

App. 4

i The defendants' motion for

judgment notwithstanding the verdict,

the defendants' motion for a new trial,

and the defendants' motion for remit-

titur are denied. The Court notes the

objection of the defendants to this

ruling.

2° The plaintiffs' motion for

judgment notwithstanding the verdict

is denied. The Court notes the plain-

tiffs' objection to this ruling.

aie The plaintiffs' motion for

permanent injunction is denied except

that it is granted in the following

extent: the defendant is hereby en-

joined and restrained from allowing mud

and debris to accumulate and remain on

the public right of way providing

ingress and egress from the Fleming

App. 5

“ a

Landfill. The Court notes the objec-

tions of both plaintiffs and defendants

to this ruling.

4. The Court has set forth the

basis for the rulings set forth in this

Order in a letter dated January 8,

1990, and addressed to all counsel of

record. A copy of that letter is

attached to this Order and is made a

part hereof.

To all of which the defendants

hereby object and except.

ENTERED this 2nd day of February,

1990. /s/ Herman Canady, Jr.

Judge

Order Book: CA

Book 90-3, P. 50

App. 6

State of West Virginia

Thirteenth Judicial Circuit

4th Floor

Kanawha County Judicial Building

Charleston, West Virginia 25301

Herman G. Canady, Jr.

Judge

January 8, 1990

John McFerrin, Esquire

1116-B Kanawha Blvd. E.

Charleston, WV 25301

Benjamin N. Snyder, Esquire

P.O. Box 659

Clendenin, WV 25045

Arden J. Curry, Esquire

P.O. BOx 2786

Charleston, WV 25330

Philip B. Hereford, Esquire

405 Capitol Street

Charleston, WV 25301

Re: Julian Garnes and Sharon

Garnes v. Fleming Landfill,

Inc. and John T. Fleming

87-C-4527

Gentlemen:

A number of post trial motions were

made by both parties during the months

that followed the jury trial herein.

App. 7

Defendant's motion to set aside the

verdict of the jury is primarily based

upon the contention that since the jury

verdict awarded no compensatory damages

to the plaintiff, this Court cannot

accept the verdict awarding punitive

damages. Indeed, it is defendant's

position that an award of compensatory

damages is prerequisite to an award of

punitive damages. At the very least

defendants maintain that there must be

compensatory damages that stand in

substantial relation to any punitive

damages. It has been widely held that

there is no cause of action for puni-

tive damages alone. 22 Am Jur 2d,

Damages 241, 17 ALR2d 527. The bulk

of these rulings simply imply that a

jury must consider the cause of action

independently of plaintiff's claim for

exemplary damages. Some states have

ruled that a jury must first award

compensatory damages before any puni-

tive damages. West Virginia was long

regarded as such a jurisdicticen. Toler

v. Cossinelli, 129 WV 591, 41 S.E.2d

672 (1942). Recent West Virginia cases

reflect a trend away from strict ad-

herence to the "reasonable relation"

rule. Wells v. Smith, W.V. 297 S.E.2d

872 (1982), Leach v. Biscayne Oil and

Gas Co., W.V. 289 S.E.2d 197 (1982).

"... where the jury is

properly instructed on the

issue of damages, the failure

to return an award for compen-

App. 8

satory damages should not of

itself preclude a punitive

award, provided that there is

evidence showing an injury to

the plaintiff caused by the

egregious and tortious conduct

of the defendant." Wells v.

Smith (Supra)

"Only where the award of

punitive damages has no founda-

tion in the evidence so as to

evince passion, prejudice or

corruption in the jury should

the award be set aside as ex-

cessive." Wells -. Smith

(Supra)

This Court finds that there was

ample evidence presented of defendant's

failure to comply with State regulatory

provisions, either willfully or through

wreckless indifference. These regula-

tions were intended to prevent harm

such as was alleged in the plaintiff's

complaint. Here the jury was properly

instructed as to what they could prop-

erly consider, including the circum-

stances surrounding particular occur-

rences; the nature of the alleged

committing party; as well as the wealth

of the alleged committing party. The

jury was also properly instructed that

annoyance and inconvenience was to be

considered in regards to compensatory

damages, if any. There being some

admissible evidence covering these

points, the jury having been properly

App. 9

instructed on these matters, the ver-

dict will not be set aside on grounds

that no compensatory award was made.

The second major point raised by

defendants in support of post trial

motions is that the jury award is

excessive. Previous pronouncements of

the West Virginia Supreme Court of

Appeals relied heavily upon the "rea-

sonable relation" rule. The thinking

being that where punitive damage awards

remain in proportion to "actual damages

done" the possibility that an award

might be based on partiality and preju-

dice is minimized. However, recent

rulings of our Supreme Court reflect

a trend away from strict adherence of

such a rule on the grounds that it

would "thwart the punishment purpose

of punitive damages in cases where the

defendant's conduct has been egregious,

but where plaintiff has’ suffered

intermediate or nominal damages. This

discourages the plaintiff from bringing

the suit and deprives the public from

the deterrence of wanton acts." Wells

v. Smith (Supra). The jury considered

some evidence of defendant's financial

ability.

"Courts must not set aside

jury verdicts as excessive,

unless they are monstrous,

enormous, beyond all measure,

unreasonable, outrageous and

manifestly show jury passion,

impartiality, prejudice oor

App. 10

corruption." Muzelak v. King

Chevrolet Inc., 368 S.E.2d 710

(W.V. 1988); Roberts v. Stevens

Clinic Hospital, 345 S.E.2d 791

(1986).

The post trial motions to set aside

upon this ground is DENIED.

The final matter brought before the

Court that requires ruling is the

motion of plaintiff for a permanent

injunction against the defendant,

closing defendant's business, upon

grounds that defendant is maintaining

a nuisance, and upon all grounds for

which plaintiff prayed for damages.

The Court notes that damages were

sought and an award was secured herein.

This Court is also taking into con-

sideration that a temporary injunction

was denied by Judge Patrick Casey

herein. For this equitable portion of

the case the jury sat as an advisory

jury and the lack of any compensatory

damages is taken into consideration.

There was no evidence that the defen-

dant's landfill was situated within a

populous municipality; but, to the

contrary the evidence is that it was

construed in a rural area, without

zoning laws. It is the finding of this

Court that the statutory laws and regu-

lations do not render the landfill

herein to be illegal, nor does any law

of this State define it to be a

nuisance per se. Furthermore, the

verdict of the advisory jury leads this

App. 11

Court to conclude and find that the

landfill is not a situation that will

likely be a nuisance in the future, if

left without Court intervention and not

shut down. The motion for permanent

injunction is therefore denied for the

greater part, except the defendant is

enjoined from allowing mud and debris

to accumulate and remain upon the

public right of way providing ingress

and egress from the landfill herein.

The remaining motions "NOV" and the

grounds that they serve are hereby

Overruled for the reasons previously

expressed in the record in this case.

An order in conformity herewith,

will be prepared by this Court incor-

porating this letter memorandum of

opinion.

Very truly yours,

/s/ Herman G. Canady, Jr.

Judge

App. 12

STATE OF WEST VIRGINIA

At a Regular Term of the Supreme

Court of Appeals continued and held at

Charleston, Kanawha County, on the 10th

day of January, 1991, the following

order was made and entered:

Julian Garnes and

Sharon Garnes,

Plaintiffs Below, Appellees

vs.) No. 910088

Fleming Landfill, Inc. and

John T. Fleming,

Defendants Below, Appellants

Upon an appeal from a judgment of

the Circuit Court of Kanawha County,

rendered on the 2nd day of February,

1990.

On a former day, to-wit, January

7, 1991, came the petitioners, Fleming

Landfill, Inc. and John T. Fleming, by

Pauley, Curry, Sturgeon & Vanderford,

Arden J. Curry, Arden J. Curry, II, and

David K. Schwirian, their attorneys,

App. 13

and presented to the Court their peti-

tion praying for an appeal from a

judgment of the Circuit Court of Ka-

nawha County, rendered on the 2nd day

of February, 1990. Upon consideration

whereof, the Court is of opinion to and

doth hereby refuse said petition on the

merits.

A True Copy

Attest: /s/ Ancil G. Ramey

Clerk, Supreme Court of Appeals

App. 14

STATE OF WEST VIRGINIA

At a Regular Term of the Supreme

Court of Appeals continued and held at

Charleston, Kanawha County, on the 10th

day of January, 1991, the following

order was made and entered:

Julian Garnes and

Sharon Garnes,

Plaintiffs Below, Appellants

vs.) No. 19612

Fleming Landfill, Inc. and

John T. Fleming,

Defendants Below, Appellees

Upon an appeal from a judgment of

the Circuit Court of Kanawha County

rendered on the 2nd day of February,

1990.

On a former day, to-wit, December

21, 1990, came the appellants, Julian

Garnes and Sharon Garnes, by John

McFerrin and Benjamin Snyder, their

attorneys, and presented to the Court

their motion in writing to dismiss this

App. 15

action, for the reasons stated therein.

Thereafter, on the 7th day of January,

1991, came the appellees, Fleming

Landfill, Inc., and John T. Fleming,

by Pauley, Curry, Sturgeon & Vander-

ford, Arden J. Curry, Arden J. Curry,

II, and David kK. Schwirian, their

attorneys, and presented to the Court

their written response in opposition

thereto.

Upon consideration whereof, the

Court is of opinion to and doth hereby

sustain said motion. It is therefore

considered and ordered by the Court

that this action be, and the same is

hereby dismissed from the docket of

this Court, each party to pay its own

costs; all of which is ordered to be

certified to the Circuit Court of

Kanawha County.

A True Copy

Attest: /s/ Ancil G. Ramey

Clerk, Supreme Court of Appeals

App. 17

WEST VIRGINIA SUPREME COURT OF APPEALS

APPEAL NO. 19162

JULIAN GARNES and

SHARON GARNES,

Plaintiffs/Appellants,

vs. Filed Jan 7 1991

Ancil G. Ramey, Clerk of

the Supreme Court of Appeals

of West Virginia

FLEMING LANDFILL, INC., and

JOHN T. FLEMING,

Defendants/Appellees.

PETITION OF APPELLEES FOR CROSS-ASSIGN-

MENT OF ERROR OR, IN THE ALTERNATIVE

PETITION FOR APPEAL

Petitioners, Fleming Landfill, Inc.

and John T. Fleming, are aggr eved by

an Order of the Circuit Court of Kanaw-

ha County, West Virginia, entered on

the 9th day of December, 1988, awarding

the plaintiffs, Julian Garnes’ and

Sharon Garnes, punitive damages of

App. 18

$105,000.00 plus interest, and from a

Final Order entered by the Circuit

Court of Kanawha County, West Virginia,

on February 2, 1990, denying peti-

tioners' motion for judgment notwith-

standing the verdict, the petitioners'

motion for a new trial, and the

petitioners' motion for remittitur.

THE JUDGMENT BASED ON THE JURY'S :

PUNITIVE DAMAGE AWARD VIOLATES DUE

PROCESS AND THE EIGHTH AMENDMENT'S

PROHIBITION AGAINST EXCESSIVE FINES

Aithough punitive damages are

awarded in civil actions, they are

functionally penal, in that they pro-

mote the traditional goals of punish-

ment -- retribution and deterrence:

Punitive damages are not com-

pensation for injury. Instead,

they are private fines levied

App. 19

by civil juries to punish

reprehensible conduct and to

deter its future occurrence.

(Emphasis Added) International

Brotherhood of Electrical Work-

ers v. Foust,442 U.S. 42, 48

(1979), quoting Gertz v. Robert

Welch. Inc., 418 U.S. 323, 350

(1974).

Because the purpose and impact of puni-

tive damages are fundamentally penal

in nature, due process requires that

enhanced procedural safeguards’ be

extended to defendants in punitive

damage actions. No such safeguards

were present in this case.

The United States Supreme

Court has ruled that "punishment cannot

be imposed ‘without due process of

law.'" Kennedy v. Mendoza-Martinez,

372 U.S. 144, 186 (1963). Due process

requires that legal procedures’ be

consistent with fundamental fairness.

Lassiter v. Dept. of Social Services,

452 U.S. 18, 24-25 (1981).

App. 20

In Bankers Life & Casualty Co. v.

Crenshaw, 108 S.Ct. 1645 (1988), the

U.S. Supreme Court recently faced a

Similar due process challenge to a

large punitive damage award. In Bank-

ers Life, a Mississippi jury awarded

$1.6 million in punitive damages and

$20,000.00 in actual damages (a ratio

of 89 to 1 as compared with the in-

sinite vetia in this case) for the

defendant's bad faith refusal to pay

an insurance claim. Although the

Supreme Court did not decide the due

process issue, as it was not squarely

raised below in the Mississippi Supreme

Court, Justice O'Connor noted in a

concurring opinion, joined by Justice

Scalia, that the defendant "ha[d]

touched on a due process issue that...

App. 21

is worthy of the Court's attention in

an appropriate case." Id. at 1655.

Under Mississippi law, as in West

Virginia, juries are given broad dis-

cretion to award any amount of punitive

damages in tort cases where the defen-

dant acts with a certain mental state.

According to Justice O'Connor, "because

of the punitive character of such

awards, there is reason to think that

this [broad discretion] may violate

the due process clause." Id. Justice

O'Connor also emphasized that granting

juries wholly standardless discretion

to determine the severity of punishment

"appears inconsistent with due

process." Id. at 1656.

Justice O'Connor recognized that

because punitive damages are "not

App. 22

measured against actual injury,

there is no objective standard that

limits their amount. Hence, the impact

of these windfall recoveries is un-

predictable and potentially substan-

tial... For these reasons ... the Court

should scrutinize carefully the proced-

ures under which punitive damages are

awarded in civil lawsuits." Id. at

1655. Justice O'Connor compared puni-

tive damages to criminal penalties

where the Supreme Court has recognized

that "vague sentencing provisions may

pose constitutional questions if they

do not state with sufficient clarity

the consequences of violating a given

criminal statute." Id. at 1656, quoting

United States v. Batchelder, 442 U.S.

114, 123 (1979). Based on this anal-

App. 23

ogy, it was evidence that "[n]othing-

in Mississippi law warned [Bankers

Life} that by committing a tort that

caused $20,000.00 of actual damages,

it could expect to incur a $1.6 million

punitive damage award." Bankers Life,

108 S.Ct. at 1656.

In Browning-Ferris v. Kelco, 109

S.Ct. 2909 (1989), the United States

Supreme Court held that the Eighth

Amendment's excessive fines clause does

not apply to civil lawsuits. Again,

it did not reach the due _ process

issues. Nonetheless, four of the

Justices, while concurring in the

decision, expressed concern about

punitive damage procedures. Justice

Brennan, joined by Justice Marshall,

stated:

App. 24

Without statutory (or at least

common law) standards for the

determination of how large an

award of punitive damages is

appropriate in a given case,

juries are left largely to

themselves in making this im-

portant, and potentially devas-

tating, decision. Indeed, the

jury in this case was sent to

the jury room with nothing more

than the following terse in-

struction: "In determining the

amount of punitive damages,

you may take account of the

character of the defendants,

their financial standing, and

the nature of their acts."

App. 81. Guidance like this

is scarcely better than no

guidance at all. I do not

suggest that the instruction

itself was in error; indeed,

it appears to have been a cor-

rect statement of Vermont law.

The point is, rather, that the

instruction reveals a deeper

flaw: the fact that punitive

damages are imposed by juries

guided by little more than an

admonition to do what they

think is best. 109 S.Ct. at

2923.

Much of the same uneasiness was

expressed by Justice O'Connor,

App. 25

joined

by Justice Stevens, in her concurrence

in Browning-Ferris:

I share Justice Brennan's view

... that nothing in the court's

opinion forecloses a due pro-

cess challenge to awards of

punitive damages or the method

by which they are imposed, and

I adhere to my comments in

Banker's Life ... regarding

the vagueness and procedural

due process problems presented

by juries given unbridled

discretion to impose punitive

damages.

Defendants in this case were sim-

ilarly penalized by a jury that was

given almost unlimited discretion and

that was guided solely by vague and

deficient standards for assessing

punitive damages. In the absence of

adequate standards and_ procedural

safeguards, the jury awarded

$105,000.00 to plaintiffs as a total

windfall, completely out of proportion

App. 26

to the defendants' conduct or the

actual harm suffered by the plaintiffs.

Indeed, nothing in West Virginia law

warned defendants that by committing

a tort that causes zero dollars £n

actual damages they could expect to

incur $105,000.00 in punitive damages.

Bankers Life, 108 S.Ct. at 1656. The

jury's verdict in this case fails to

Satisfy due process.

App. 27

IN THE CIRCUIT COURT OF KANAWHA COUNTY,

WEST VIRGINIA

JULIAN GARNES and

SHARON GARNES,

Plaintiffs,

vs. CIVIL ACTION NO. 87-C-4527

FLEMING LANDFILL, INC.,

and JOHN T. FLEMING,

Defendants.

DEFENDANTS' MOTION FOR JUDGMENT

NOTWITHSTANDING THE VERDICT AND

MOTION FOR A NEW TRIAL

The defendants, Fleming Landfill,

Inc. and John T. Fleming, hereby

respectfully move the Court, pursuant

to Rule 50(b) of the West Virginia

Rules of Civil Procedure, that the

verdict rendered herein be set aside

and that judgment be entered in favor

of the defendants in accordance with

their motion for a directed verdict.

App. 28

Alternatively, the defendants move,

pursuant to Rule 59 of the West Vir-

ginia Rules of Civil Procedure, that

a new trial be granted the defendants.

These mecions should be granted for the

following reasons:

i. The fact that the jury awarded

no compensatory damages means that the

jury expressly found that the plain-

tiffs were not damaged by the defen-

dants' solid waste facility and, in the

absence of any damage, there cannot be

a nuisance on which to base an award

of punitive damages.

Ze The jury's award of punitive

damages is inconsistent with the jury

instructions tendered by the plaintiffs

and given by the Court.

App. 29

aici

3. The Court erred in refusing

to direct a verdict for the defendants

at the close of the plaintiffs' and

defendants' case in that there was

insufficient evidence as a matter of

law to sustain a verdict for punitive

damages.

4. The Court erred in giving

plaintiffs' instruction as to punitive

damages, which instruction omitted the

requirement that punitive damages must

bear a reasonable relationship to any

compensatory damage award.

5. The punitive damage award is

clearly excessive and unsupported by

the evidence.

6. The Court erred in admitting

into evidence inspection reports from

the Department of Natural Resources,

App. 30

as such reports are inadmissible and

a large number of those reports discuss

actions barred by the statute of limi-

tations.

aa The Court erred in admitting

into evidence inspection reports from

the Department of Natural Resources,

as such reports are inadmissible be-

cnet they are not relevant to the

issues raised by the pleadings in this

case.

S. Plaintiffs' counsel was im-

properly allowed to argue to the jury

that the defendants' solid waste facil-

ity constituted a nuisance per se.

9. The punitive damage award

violates due process and the Eighth

Amendment's prohibition against exces-

sive fines.

App. 31

10. The plaintiffs were represent-

ed at trial by Benjamin N. Snyder. On

November 15, 1988, he was no longer

admitted to the Bar of this State and

was not authorized to practice law in

this State. Trial in this matter was

conducted on November 15, 1988, at

which time Benjamin N. Snyder made

closing arguments to the jury, among

other things. The prosecution of any

action by a layman is a nullity and any

judgment rendered therein is void.

11. The Court erred in allowing

plaintiffs' counsel, in closing state-

ment, to argue that the landfill

operated at a profit and using as a

basis the amount of projected or

estimated revenue for a period of seven

months to attempt to establish the

App. 32

wealth of the defendants to be con-

Sidered in awarding punitive damages.

12. The Court erred in admitting

into evidence pictures of trucks haul-

ing garbage, in that said pictures were

not admissible, not relevant, were

unduly prejudicial, and not representa-

tive.

13. The jury verdict is contrary

to the law and the evidence of the

case.

FLEMING LANDFILL, INC.

AND JOHN T. FLEMING

By Counsel

App. 33

IN THE CIRCUIT COURT OF KANAWHA COUNTY,

WEST VIRGINIA

JULIAN GARNES and

SHARON GARNES,

Plaintiffs,

vs. CIVIL ACTION NO. 87-C-4527

FLEMING LANDFILL, INC.,

and JOHN T. FLEMING,

Defendants.

MEMORANDUM IN SUPPORT OF DEFEN-

DANTS' MOTION FOR JUDGMENT

NOTWITHSTANDING THE VERDICT AND

MOTION FOR A NEW TRIAL

kak

THE JUDGMENT BASED ON THE

JURY'S PUNITIVE DAMAGE AWARD

VIOLATES DUE PROCESS AND THE

EIGHTH AMENDMENT 'S PROHIBITION

AGAINST EXCESSIVE FINES

Although punitive damages’ are

awarded in civil actions, they are

functionally penal, in that they pro-

mote the traditional goals of punish-

ment - retribution and deterrence:

App. 34

Punitive damages are not com-

pensation for injury. Instead,

they are private fines levied

by civil juries to punish

reprehensible conduct and to

deter its future occurrence.

International Brotherhood of

Electrical Workers v. Foust,

422 U.S. 42, 48 (1979), quoting

Gertz v. Robert Welch, Inc.,

418 U.S. Jaa, 350 (1974)

(Emphasis Added)

Because the purpose and impact of

punitive damages are fundamentally

penal in nature, due process requires

that enhanced procedural safeguards be

extended to defendants in punitive

damage actions.’ No such safeguards

were present in this case.

; The United States Supreme

Court has ruled that "punishment cannot

be imposed ‘without due process of

law.'" Kennedy v. Mendoza-Martinez,

372 U.S. 144, 186 (1963). Due process

requires that legal procedures be

consistent with the fundamental fair-

ness. Lassiter v. Dept. of Social

Services, 452 U.S. 18, 24-25 (1981).

App. 35

In Bankers Life & Casualty Co. v.

Crenshaw, 108 S.Ct. 1645 (1988), the

U.S. Supreme Court recently faced a

Similar due process challenge to a

large punitive damage award. In

Bankers Life, a Mississippi jury award-

ed $1.6 million in punitive damages and

$20,000.00 in actual damages (a ratio

of 80 to 1 as compared with the in-

finite ratio in this case) for the

defendant's bad faith refusal to pay

an insurance claim. Although the

Supreme Court did not decide the due

process issue, as it was not squarely

raised below in the Mississippi Supreme

Court, Justice O'Connor noted in a

concurring opinion, joined by Justice

Scalia, that the defendant "ha[d]

touched on a due process issue that...

App. 36

is worth of the Court's attention in

an appropriate case." Id. at 1655.

Under Mississippi law, as in West

Virginia, juries are given broad dis-

cretion to award any amount of punitive

damages in tort cases where the defen-

dant acts with a certain mental state.

According to Justice O'Connor, "because

of the punitive character of _such

awards, there is reason to think that

this [broad discretion] may violate the

Due Process Clause." Id. Justice

O'Connor also emphasized that granting

juries wholly standardless discretion

to determine the severity of punishment

"appears inconsistent with due

process." Id. at 1656.

Justice O'Connor recognized that

because punitive damages are "not

App. 37

measured against actual injury,

there is no objective standard that

limits their amount. Hence, the impact

of these windfall recoveries is

unpredictable and potentially substan-

CAHA - 6 2s For these reasons ... the

Court should scrutinize carefully the

precedures under which punitive damages

are awarded in civil lawsuits. Id. at

1655 (Emphasis Added). Justice

O'Connor compared punitive damages to

criminal penalties where the Supreme

Court has recognized that "vague

sentencing provisions may pose cocn-

stitutional questions if they do not

state with sufficient clarity the

consequences of violating a given

criminal statute." Id. at 1656, quot-

ing United States v. Batchelder, 442

App. 38

3.3. i114, 123 (1979). Based on this

analogy, § was evidence that

"'njothing in Mississippi law warned

(Bankers Life] that by committing a

tort that caused $20,000.00 of actual

damages, it could expect to incur a

$1.6 million punitive damage award."

Bankers Life, 108 S.Ct. at 1656.

Defendants in this case were simil-

arly penalized by a jury that was given

almost unlimited discretion and that

waS guided solely by vague and defi-

cient standards for assessing punitive

damages. In the absence of adequate

Standards and procedural safeguards,

the jury awarded $105,000.00 to plain-

tiffs as a total windfall, completely

out of proportion to the defendants'

conduct or the actual harm suffered by

App. 39

the plaintiffs. Indeed, nothing in

West Virginia law warned defendants

that by committing a tort that causes

zero dollars in actual damages they

could expect to incur $105,000.00 in

punitive damages. Bankers Life, 108

S.Ct. at 1656. The jury's verdict in

this case fails to satisfy due process.

Moreover, the jury's grossly exces~-

Sive punitive damage award violates the

Eighth Amendment's prohibition against

excessive fines. The Eighth Amendment

provides that "(e]xcessive bail shall

not be required, nor excessive fines

imposed, nor cruel and unusual punish-

ments inflicted." The principle that

fines shall not be excessive has its

roots in the Magna Carta and the

English Bill of Rights of 1689. Solem

App. 40

v. Helm, 463 U.S. 277, 284-85 (1983).

Under the Eighth Amendment, punishment

must be proportionate to the wrong

committed. This principle is deeply

rooted in our jurisprudence, and was

recognized by the United States Supreme

Court as early as 1910. Weems _v.

United States, 217 U.S. 349, 367

(1910). Although the United States

Supreme Court has not yet ruled on the

constitutionality of massive punitive

damage awards under the Eighth Amend-

ment, the Court has recognized that the

imposition of such awards "raise[s]

important issues which, in an appropri-

ate setting, must be resolved." Aetna

App. 41

Life Ins. Co. v. Lavoie, 475 U.S. 813,

828-29 (1986).'

In Colonia ipeline Co. v. Brown,

365 S.E.2a 827 (Ga. 1988), the Georgia

Supreme Court recently struck down a

punitive damage award as excessive

under Georgia's constitutional provi-

sion barring excessive fines, which is

substantially identical to the Eighth

An historical analysis of the

Eighth Amendment reveals that it should

be applied to civil actions in which

punitive damages are awarded. The

excessive fines clause can be traced

to the "excessive amercement" pro-

visions of the Magna Carta. Amerce-

ments were additional punishments

imposed on defendants in civil and

Criminal actions in 13th-century

England. Bittle, Punitive Damages and

the Eighth Amendment: An Analytical

Framework for Determining Excessive-

ness, 75 Cal. L. Rev. 1433, 1441-47

(1987); Jeffries, A Comment on The

Constitutionality of Punitive Damages,

72 Va. L. Rev. 139, 147-158 (1986).

App. 42

Amendment. In Colonial Pipeline, the

jury awarded approximately $56,000.00

actual damages and $5 million punitive

damages in an action to recover for the

destruction of plaintiff's bulldozer.

The court based its conclusion that

Georgia's excessive fine provision

applies to punitive damage awards on

its GECOESARE Lam that the Eighth

Amendment's Excessive Fines Clause "was

intended as a protection from all

excessive monetary penalties," and that

the object of punitive damages in

Georgia was "among those ordinarily

associated with punishment, such as

retribution, rehabilitation, or deter-

rence." Id. at 831. The court held

that the jury's punitive damage award

was excessive because "there was no

App. 43

bodily injury to this plaintiff, ...

the award does not bear a rational

relationship to the actual damages

award, [and] there is no rational

relationship between the offense and

the punishment in that the punitive

damage award was 100 times the property

damage award. Id. at oe Be Similarly,

plaintiffs did not suffer any loss of

life, personal injury or even property

damage, and there is no rational