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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