IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2021 Term

_______________

No. 20-0065

_______________

ERIC PARKS,

Petitioner

v.

MUTUAL BENEFIT GROUP,

Respondent

____________________________________________________________

Appeal from the Circuit Court of Monongalia County

The Honorable Phillip D. Gaujot, Judge

Civil Action No. 19-CAP-31

REVERSED AND REMANDED

____________________________________________________________

Submitted: October 6, 2021

Filed: October 28, 2021

Kevin T. Tipton, Esq.

Tipton Law Offices

Fairmont, West Virginia

Counsel for Petitioner

Jeanette H. Ho, Esq.

Thomas, Thomas & Hafer LLP

Pittsburgh, Pennsylvania

Counsel for Respondent

JUSTICE ARMSTEAD delivered the Opinion of the Court.

FILED

October 28, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. The appellate standard of review for a circuit court order either 

granting or denying a motion for judgment as a matter of law in a bench trial, made pursuant 

to Rule 52 of the West Virginia Rules of Civil Procedure, is de novo. On appeal, this Court, 

after considering the evidence in the light most favorable to the nonmovant party, will 

sustain the granting of a judgment as a matter of law when only one reasonable conclusion 

as to the verdict can be reached. But if reasonable minds could differ as to the importance 

and sufficiency of the evidence, a circuit court's ruling granting a directed verdict will be 

reversed. Syllabus Point 1, Waddy v. Riggleman, 216 W. Va. 250, 606 S.E.2d 222 (2004).

2. The plain language of Rule 13 of the Rules of Civil Procedure for the 

Magistrate Courts of West Virginia provides the exclusive methods of discovery in West 

Virginia’s magistrate courts. Requests for admission are not a proper form of discovery in 

magistrate courts. 
1

Armstead, Justice:

Eric Parks (“Petitioner”) appeals the Circuit Court of Monongalia County’s 

final order granting judgment as a matter of law1 in the amount of $5,589.11 in favor of 

Mutual Benefit Group (“Respondent”). The circuit court conducted a trial de novo from a 

magistrate court judgment, in which Respondent brought an action against Petitioner as the 

result of an automobile accident. The circuit court’s basis for its grant of judgment as a 

matter of law was that Petitioner had failed to respond to requests for admissions that 

Respondent had served upon Petitioner in the magistrate court. Because the West Virginia 

Rules of Civil Procedure for Magistrate Courts provide the exclusive means of discovery 

in magistrate courts and clearly do not provide for parties to serve requests for admission, 

we reverse the circuit court and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 23, 2017, Petitioner and Renee Dillow (“Dillow”) were involved 

in an automobile accident. Respondent was Dillow’s insurer and paid to her the sum of 

1 Respondent sought “directed verdict and . . . judgment in its favor.”

Following the 1998 amendments to the West Virginia Rules of Civil Procedure, a directed 

verdict is now known as judgment as a matter of law. W. V. R. C. P., Rule 50 and W. V. 

R. C. P., Rule 52. “As a result of amendments to the West Virginia Rules of Civil 

Procedure in 1998, the legal phrase ‘directed verdict’ has been replaced . . . by the phrase 

‘judgment as a matter of law.’” Mumaw v. U.S. Silica Co., 204 W. Va. 6, 10 n.4, 511 

S.E.2d 117, 121 n.4 (1998). “[W]e note that these vestigial terms continue to occasionally 

litter both this Court’s opinions and the arguments of attorneys.” Fredeking v. Tyler, 224 

W. Va. 1, 4, 680 S.E.2d 16, 19 (2009). We will use the proper legal phrase contemplated 

by Rules 50 and 52 throughout this opinion.
2

$5,089.11 for the damage to her automobile. Dillow had a $500 deductible. Respondent 

then brought suit in Monongalia County Magistrate Court to recover the monies it paid 

Dillow and for Dillow’s deductible.

The magistrate court conducted a bench trial and found in favor of 

Respondent in the amount of $5,589.11, plus court costs and interest. Petitioner appealed 

that judgment to circuit court. The appeal of the magistrate court bench trial to circuit court 

resulted in a trial de novo before the circuit court. See W. Va. Code § 50-5-12(d) (1994).

In the circuit court trial, Respondent presented its evidence first. Following 

the close of Respondent’s case, Respondent moved for directed verdict2 on the grounds 

that Petitioner did not respond to requests for admission that were served in magistrate 

court. During the course of the proceedings in magistrate court, Respondent served 

requests for admission upon Petitioner and Petitioner did not answer them.3

 Petitioner 

objected to the circuit court entering judgment against his client during the trial on the 

grounds that the magistrate court has very limited discovery. This argument was detailed 

in Petitioner’s written objection to entry of the circuit court’s final order. Nonetheless, the 

circuit court agreed with Respondent and deemed the following matters admitted:

a) The accident between [Petitioner] and [Dillow] was caused 

by [Petitioner’s] negligence;

2

 See footnote 1.

3 As there is no record of bench trials conducted in West Virginia magistrate 

courts we rely upon the representations of the parties. See W. Va. Code § 50-5-8(f) (1994).
3

b) The cost of repairs which were performed on [Dillow’s] car 

total $5,589.11;

c) The repairs that were performed on [Dillow’s] car were 

reasonable and necessary;

d) [Respondent] paid $5,089.11 for the repairs to [Dillow’s] 

car;

e) [Dillow] paid the $500.00 deductible required under her 

insurance policy for the repairs that were made to her car; and

f) The cost of repairs to [Dillow’s] car as well as the amounts 

paid by [Dillow] and [Respondent] were fair and reasonable.

Before granting the motion for judgment as a matter of law, Petitioner was 

not afforded the opportunity to present any evidence at the trial de novo in the circuit court

despite having witnesses, including Petitioner, available and ready to testify. The circuit 

court found that “the [Petitioner] failed to respond [to the requests for admission], therefore 

they’re admitted.” In its order, after having made the findings regarding the specific 

admissions noted above, the circuit court found “that the motions [for a directed verdict 

and judgment in its favor] are meritorious.”

It is from the circuit court’s entry of its final order granting judgment as a 

matter of law that Petitioner appeals.

II. STANDARD OF REVIEW

Petitioner asserts that we should apply the de novo he standard of review 

applicable to a circuit court’s grant of a Rule 50 motion for judgment as a matter of law:

“The appellate standard of review for the granting of a 

motion for a [judgment as a matter of law] pursuant to Rule 50 
4

of the West Virginia Rules of Civil Procedure is de novo. On 

appeal, this court, after considering the evidence in the light 

most favorable to the nonmovant party, will sustain the 

granting of a [judgment as a matter of law] when only one 

reasonable conclusion as to the verdict can be reached. But if 

reasonable minds could differ as to the importance and 

sufficiency of the evidence, a circuit court’s ruling granting a 

directed verdict will be reversed.” Syllabus Point 3, Brannon 

v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996).

Syllabus Point 5, Smith v. First Cmty. Bancshares, Inc., 212 W. Va. 809, 575 S.E.2d 419 

(2002). 

Respondent does not dispute whether Rule 50 applies but argues that we 

should consider the standard of review applicable after a circuit court conducts a bench 

trial, citing to a memorandum decision for this proposition. See Wiekle v. Bolling, No. 12-

0549, 2013 WL 3184956 (W. Va. June 24, 2013) (memorandum decision).

Upon consideration of the parties’ positions and the procedural posture of 

this matter, we believe the circuit court granted judgment as a matter of law pursuant to 

Rule 52 of the West Virginia Rules of Civil Procedure.4

 Under that rule, the appropriate 

standard of review, as under Rule 50, is de novo:

The appellate standard of review for a circuit court order 

either granting or denying a motion for judgment as a matter of 

law in a bench trial, made pursuant to Rule 52 of the West 

Virginia Rules of Civil Procedure, is de novo. On appeal, this 

Court, after considering the evidence in the light most 

favorable to the nonmovant party, will sustain the granting of 

a judgment as a matter of law when only one reasonable 

4 Rule 52 specifically applies “[i]n all actions tried upon the facts without a 

jury or with an advisory jury.” This was a trial de novo tried before the circuit court without 

a jury.
5

conclusion as to the verdict can be reached. But if reasonable 

minds could differ as to the importance and sufficiency of the 

evidence, a circuit court's ruling granting a directed verdict will 

be reversed.

Syllabus Point 1, Waddy v. Riggleman, 216 W. Va. 250, 606 S.E.2d 222 (2004).

III. ANALYSIS

This case calls upon us to examine the proper scope of discovery in our 

state’s magistrate courts. The Rules of Civil Procedure for the Magistrate Courts in West 

Virginia were first promulgated by this Court in 1988 pursuant to our rulemaking authority 

under Article VIII, § 3 of the West Virginia Constitution5 and the provisions of West 

Virginia Code § 51-1-4 (1935).6

 On their face, these rules clearly and unequivocally 

5 Article VIII, § 3 of the Constitution of West Virginia states, in pertinent 

part:

The court shall have power to promulgate rules for all 

cases and proceedings, civil and criminal, for all of the courts 

of the state relating to writs, warrants, process, practice and 

procedure, which shall have the force and effect of law.

W. Va. Const. art. VIII, § 3.

6 West Virginia Code § 51-1-4 provides:

The Supreme Court of Appeals may, from time to time, 

make and promulgate general rules and regulations governing 

pleading, practice and procedure in such court and in all other 

courts of record of this state. All statutes relating to pleading, 

practice and procedure shall have force and effect only as rules 

of court and shall remain in effect unless and until modified, 

suspended or annulled by rules promulgated pursuant to the 

(continued . . .)
6

provides the exclusive means of formal discovery in our magistrate courts. Rule 13 of 

those rules provides:

Discovery shall be limited to the following methods:

(a) Production of Documents and Entry Upon Land. If the 

parties are otherwise unable to agree, upon motion of any party 

showing good cause and upon notice to all parties, the 

magistrate may order another party to the action to:

(1) Produce and permit the inspection and photocopying by the 

moving party of any designated documents or records or 

tangible items which contain relevant evidence which are not 

privileged, and which are in the possession, custody or control 

of the party from whom production is sought; or

(2) Permit entry upon designated land or other property in the 

possession or control of a party for the purpose of inspecting, 

measuring, surveying or photographing the property if the 

subject matter is relevant to the pending action.

The court order shall specify the time, place, and manner of 

making the inspection and making the copies and may 

prescribe such terms and conditions as are just.

(b) Physical Examination. If the parties are otherwise unable to 

agree, upon motion showing good cause and upon notice to all 

parties, the magistrate may order another party to submit to a 

physical examination by a physician, under the following 

circumstances:

(1) A plaintiff claiming relief for physical injury caused by the 

defendant’s actions may be ordered to submit to an 

examination upon motion of the defendant.

(2) A defendant placing the defendant’s physical condition in 

issue by way of defense or otherwise may similarly be ordered 

to submit to an examination, upon motion of the plaintiff.

provisions of this section. Such rules and regulations shall be 

uniform for all courts of the same grade or class; but any court 

of the state other than the Supreme Court of Appeals may adopt 

rules of court governing its local practice, but such rules of 

local practice shall not be inconsistent with any general rule of 

court then in existence or thereafter promulgated, and shall be 

effective only after approval by the Supreme Court of Appeals.

W. Va. Code § 51-1-4 (1935).
7

(3) Notice shall be given to the party to be examined and to all 

other parties and shall specify the time, place, manner, 

conditions and scope of any such examination and the person 

or persons by whom it is to be made.

(4) If requested by the person examined, the party causing any 

such examination to be made shall deliver to the person 

examined a copy of a detailed written report of the examining 

physician setting out the physician’s findings and conclusions.

(5) After such request and delivery, the party causing the 

examination to be made shall be entitled upon request to 

receive from the party examined a like report of any 

examination, previously or thereafter made, of the same 

physical condition.

(6) If the party examined refuses to deliver such report, the 

court on motion and hearing may order delivery on such terms 

as are just, and if a physician fails or refuses to make such a 

report the court may exclude the physician’s testimony if 

offered at the trial.

(c) Failure to Comply. If any party refuses to obey an order 

made under subdivision (a) or (b) of this rule, the magistrate 

may:

(1) Order that the matters regarding the character or description 

of the property or the contents of the paper, or the physical 

condition of the party, or any other designated facts shall be 

taken to be established for the purposes of the action in 

accordance with the claim of the party obtaining the order;

(2) Refuse to allow the disobedient party to support or oppose 

designated claims or defenses, or prohibit such party from 

introducing in evidence designated documents or items of 

testimony, or from introducing evidence of physical 

conditions; or

(3) Stay further proceedings until the order is obeyed.

W. V. R. C. P. Mag. Ct., Rule 13. 

In examining provisions of the companion West Virginia Rules of Civil 

Procedure, we have consistently stated that we must apply their plain language. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“The plain language of Rule 56(c) 
8

mandates the entry of summary judgment. . . .”); Chichester ex rel. Estate of Cook v. Cook, 

234 W. Va. 183, 188, 764 S.E.2d 343, 348 (2014) (applying plain language of Rule 56); 

Mason v. Smith, 233 W. Va. 673, 678, 760 S.E.2d 487, 492 (2014) (applying plain language 

of Rule 56); McComas v. ACF Industries, LCC, 232 W. Va. 19, 23, 750 S.E.2d 235, 239 

(2013) (applying plain language of Rule 56); Motto v. CSX Transp., Inc., 220 W. Va. 412, 

419-20, 647 S.E.2d 848, 855-6 (2007) (applying plain language of Rule 56); Powderidge 

Unit Owners Ass’n v. Highland Properies, Ltd., 196 W. Va. 692, 702, 474 S.E.2d 872, 882 

(1996) (cautioning litigants to heed the plain language of Rule 56(f)); Pettry v. Chesapeake 

& O. Ry. Co., 148 W. Va. 443, 452, 135 S.E.2d 729, 734 (1964) (discussing the plain 

language of Rule 81(a)(1)). Neither the briefs of the parties nor a plain reading of the 

relevant procedural rules provides support for authorizing requests for admission to be 

served in magistrate courts. To the contrary, the plain language of this rule limits discovery 

to three methods and we must simply apply it. 

Additionally, the relevant discovery provisions of the West Virginia Rules 

of Civil Procedure do not apply in a circuit court appeal from magistrate court. See W. V.

R. C. P., Rule 81(a)(1) (“[I]n a case on appeal from a magistrate court, Rules 26 through 

37 may not be used. . . .”). We have previously discussed how Rule 81 applies in trials de 

novo in the circuit court:

It is provided under Rule 18(d), in part, that “[a]n appeal 

of a civil action tried before a magistrate without a jury shall 

be by trial de novo in circuit court without a jury.” Rule 18(d) 

of the magistrate court rules is quite clear in limiting a circuit 

court’s de novo jurisdiction over an appeal of a case tried in 
9

magistrate court without a jury. See Burr v. Elmore, No. 13–

1078, 2014 WL 5328638, at *2 (W. Va. Oct. 20, 2014) 

(memorandum decision) (“[T]he circuit court held a de novo 

bench trial on respondent’s complaint and petitioner’s 

counter-claim.” (emphasis added)). The jurisdiction of the 

trial court in that situation does not extend to affording a 

litigant a jury trial on an appeal. See Robin Davis and Louis J. 

Palmer, Jr., “Handbook on the Rules of Civil Procedure for 

West Virginia Magistrate Courts,” § 18(d), pg. 258 (2010).

It is further provided under W. Va. Code § 50–5–12(d) 

that on an appeal of a magistrate decision “[t]he exhibits, 

together with all papers and requests filed in the proceeding, 

constitute the exclusive record for appeal and shall be made 

available to the parties.” See Davis and Palmer, “Handbook,”

§ 18(d) at 260. This statute is clear in prohibiting a trial court 

from allowing discovery in a case appealed from magistrate 

court. This limitation is consistent with Rule 81(a)(1) of the 

West Virginia Rules of Civil Procedure. Rule 81(a)(1) 

provides, in part:

When the appeal of a case has been granted or perfected, 

these rules apply, except that, in a case on appeal from a 

magistrate court, Rules 26 through 37 may not be used[.]

(Emphasis added.) See Franklin D. Cleckley, Robin Jean 

Davis, and Louis J. Palmer, Jr., “Litigation Handbook on the 

West Virginia Rules of Civil Procedure,” § 81(a)(1), pg. 1433 

(2012) (“The rule also recognizes that all rules of civil 

procedure, other than Rule 26 through Rule 37, apply in an 

appeal to circuit court.”). It is clear that Rule 81(a)(1) also does 

not allow the discovery provisions of Rules 26 through 37 to 

be used in an appeal from a magistrate decision. See Cordell v. 

Jarrett, 171 W.Va. 596, 599, 301 S.E.2d 227, 231 (1982) 

(“Rule 81(a)(1) ... recognizes that all rules of civil procedure, 

other than Rules 26 through 37, apply.”).

State ex rel. Veard v. Miller, 238 W. Va. 333, 338-39, 795 S.E.2d 55, 60-61 (2016).
10

Thus, we conclude that the plain language of Rule 13 of the Rules of Civil 

Procedure for the Magistrate Courts of West Virginia provides the exclusive methods of 

discovery in West Virginia’s magistrate courts. Requests for admission are not a proper 

form of discovery in magistrate courts. Rule 81 of the West Virginia Rules of Civil 

Procedure governs the de novo appeal of magistrate court bench trial decisions and such 

rule expressly excludes the application of Rules 26 through 37 of the West Virginia Rules 

of Civil Procedure to such appeals. Because requests for admissions are a discovery tool 

provided for in Rule 36 of the West Virginia Rules of Civil Procedure, such requests are 

not available to parties in circuit court appeals of magistrate court cases tried without a 

jury. Accordingly, neither the magistrate court nor the circuit court had authority to deem 

matters admitted in requests for admission improvidently served in magistrate court. 

The Respondent appears to argue that, even excluding the evidence deemed 

admitted pursuant to the requests for admission, there was sufficient evidence of record to 

support the circuit court’s decision. We disagree with this position. Following the 

presentation of Respondent’s case, and relying largely upon the Petitioner’s failure to 

answer the requests for admissions, the circuit court granted the Respondent’s motion for 

judgment as a matter of law. Accordingly, the Petitioner was denied the opportunity to 

present evidence before the circuit court in support of his position. The circuit court should 

have denied Respondent’s motion at the conclusion of its evidence during the trial de novo

and allowed Petitioner to present his defense. 
11

IV. CONCLUSION

For the foregoing reasons, the circuit court erred in granting judgment as a 

matter of law and therefore we reverse and remand this matter for further proceedings

consistent with this opinion.

Reversed and remanded.