S.U. v. Central Atlantic Legal Group, PLLC ( 2022 )

FILED
February 1, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
S.U.,
Plaintiff Below, Petitioner
vs.) No. 20-1006 (Harrison County 19-C-275-2)
Central Atlantic Legal Group, PLLC,
dba Booth, Strange & Daniel, and J.S.,
Defendants Below, Respondents
MEMORANDUM DECISION
Self-represented petitioner S.U. 1 appeals the Circuit Court of Harrison County’s November
16, 2020, order that, in relevant part, granted respondents’ motions for summary judgment and
their counterclaim to have petitioner designated as a vexatious litigant. Respondents Central
Atlantic Legal Group, PLLC, dba Booth, Strange & Daniel, and J.S., by counsel Daniel T. Booth,
filed a response in support of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner
alleges that the litigation privilege should not extend to sexual exploitation, sexual harassment,
and/or malicious claims of incest, and that the standard for a finding of vexatious litigation was
not met.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
This Court has previously issued detailed memorandum decisions concerning petitioner’s
attempts to divest his children’s mother of her custody of their children and even her status as the
children’s mother. See S.U. v. C.J. (“S.U. I”), No. 18-0566, 2019 WL 5692550 (W. Va. Nov. 4,
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
1
2019)(memorandum decision); S.U. v. C.J. (“S.U. II”), No. 19-1181, 2021 WL 365824 (W. Va.
Feb. 2, 2021)(memorandum decision); In re Adoption of E.U., L.U.-1, and L.U.-2, No. 20-0039,
2021 WL 4935772 (W. Va. Oct. 13, 2021)(memorandum decision); In re The Children of: S.U. v.
C.J., No. 20-0515, 20-0516, 20-0612, and 20-0710, 2021 WL 4936476 (W. Va. Oct. 13,
2021)(memorandum decision). Because of the limited arguments on appeal in the matter currently
before the Court, it is unnecessary to belabor these facts. Instead, it is sufficient to stress that
petitioner has repeatedly advanced factual theories that have no basis in the record in his numerous
attempts to undermine the children’s mother’s relationship with their children.
This appeal arises from proceedings in which petitioner filed a civil complaint against
Central Atlantic Legal Group, PLLC, and J.S., a member of that firm and the attorney who
represented petitioner’s children’s mother in the proceedings from S.U. I. Specifically, in October
of 2019, petitioner filed a complaint against respondents in which he alleged malicious use of
process, defamation per se, harassment, fraud, and intentional and reckless infliction of emotional
distress arising from J.S.’s representation of the mother. As in all of petitioner’s proceedings before
this Court, he claimed that the mother had no legal claim to the children because of the alleged
existence of a gestational surrogacy contract, a contract this Court has found to be unenforceable.
S.U. I, No. 18-0566, 2019 WL 5692550, at *4 (finding that “all of [petitioner’s assignments of
error] . . . [w]ere grounded on his contention that [respondent] was nothing more than a gestational
surrogate for the parties’ three youngest children” and declining to disturb the family court’s
resolution of this issue in respondent’s favor). Based on this assertion, petitioner alleged in his
complaint that respondent J.S. made fraudulent representations to various courts in furtherance of
his representation of the mother. Petitioner also alleged that respondent J.S. harassed him and, in
fact, physically pushed and threatened him after a hearing. Petitioner also claimed that respondent
J.S. extensively and maliciously attempted to demean him in regard to his gender. Relevant to this
issue, we previously noted that petitioner “was listed as a female on his birth certificate,” although
he “testified that he was not a binary male or female at birth, although he has always considered
himself to be male.” S.U. I, No. 18-0566, 2019 WL 5692550, at *1.
Respondents filed an answer that, in relevant part, asserted litigation privilege as an
affirmative defense to petitioner’s causes of action. Respondents also asserted counterclaims for
malicious prosecution, abuse of process, and declaratory judgment. According to respondents,
petitioner filed this civil action “in an attempt to collaterally attack and set aside the West Virginia
Supreme Court’s decision” in S.U. I and to increase the mother’s litigation costs and expenses in
an effort to force her to abandon her efforts to maintain custody of the children. Respondents also
alleged that petitioner sought to force J.S. to withdraw from his representation of the mother,
leaving her without representation to protect her interests and those of her children. Respondents
cited petitioner’s past motions seeking J.S.’s withdrawal as evidence. Respondents further asserted
that petitioner’s filing was with malice and without probable cause, as this Court’s affirmation of
the lower courts in S.U. I demonstrated the mother’s entitlement to custody of her children.
Respondents concluded by asserting that petitioner “demonstrated actual malice by a sinister and
corrupt motive such as hatred, personal spite, desire to injure [respondents] and their client . . . ,
and a conscious disregard for the rights of [the mother] and her counsel.”
Thereafter, respondents moved for summary judgment on all of petitioner’s claims and
their counterclaims. By order entered on November 16, 2020, the circuit court ruled on several
2
outstanding filings. Relevant to this appeal, the court granted all of respondents’ motions for
summary judgment. The court also declared petitioner a vexatious litigant and enjoined him from
filing any further self-represented filings before the court.
In reaching this ruling, the court addressed all of petitioner’s enumerated claims, as set
forth in his complaint. The court noted that petitioner’s claim for “Malicious Use of Process”
would be treated, because of petitioner’s self-represented status, as both a claim for malicious
prosecution and abuse of process. In regard to petitioner’s responsive pleadings to respondents’
motion for partial summary judgment on the claim of “Malicious Use of Process,” the court noted
that they were “entirely devoid of legal authority” and “essentially offer[] little more than what
amounts to bald averments, conclusory statements, and self-serving opinions, insufficiently
supported legal argument thereon.” The court also noted that petitioner failed to provide any
supportive documents or other evidence of record, or any controlling legal authority establishing
the necessary elements for either a claim of malicious prosecution or abuse of process. Importantly,
the court found that petitioner could not meet the standard for malicious prosecution by
respondents because the civil actions in question were initiated by petitioner and respondents
merely defended against them. Further, the actions ended unfavorably to his position. Accordingly,
the court found that petitioner’s cause of action could not survive respondents’ motion for
summary judgment as a matter of law because petitioner had not demonstrated any genuine issue
of material fact thereon.
In regard to petitioner’s fraud claim, the court found that petitioner could not establish
through the evidentiary record that he relied, to his detriment or otherwise, upon any allegations
or pleadings made by respondents on their client’s behalf. Rather, the record showed that petitioner
“vigorously contested such through trial and on appeal.” The court further found that petitioner’s
“fraudulent claims upon the court against [respondents] in prior court proceedings were asserted
and argued by him during those prior proceedings wherein he did not prevail at trial or on appeal.”
According to the court, nothing in the developed record supported any potential claim of fraudulent
concealment let alone created any genuine issue of material fact sufficient to survive summary
judgment. Again, the court found that petitioner failed to provide any substantive evidence in
opposing summary judgment as to this count.
As to petitioner’s claim of intentional and reckless infliction of emotional distress, the court
found that “nothing in the developed record herein supports any potential claim of intentional and
reckless infliction of emotional distress let alone create[s] any genuine issue of material fact
enough to survive summary judgment.” The court then found that no cause of action for
“harassment” exists, and petitioner failed to state a legitimate claim upon which relief could be
granted. However, the court found that the specific allegations contained therein would
nonetheless fall under his claim for intentional and reckless infliction of emotional distress, which
lacked a basis in the evidence and was already found to be ripe for summary judgment.
The court then turned to petitioner’s claim of defamation per se and found that all the
statements “were made in the course of court proceedings in an attempt to uncover the actual
parentage of the child involved in pro se [petitioner’s] custody battle with [respondents’] client
and serve as critical inquiry for credibility determinations by that court.” Further, the court found
that “any purportedly defamatory statements made to pro se [petitioner] by [respondents], as
3
asserted in his pleadings, were made directly to him; and not to any third party or otherwise
published.” As such, the court found that petitioner failed to establish all the essential elements for
his defamation claim as a matter of law.
More generally, the court found that in resisting a motion for summary judgment, petitioner
“cannot rest upon the mere allegations or denials of [respondent’s] pleadings.” Instead, the court
ruled that petitioner was required to produce pertinent facts to demonstrate necessary trial-worthy
issues for his claims. Petitioner provided a document titled “Affidavit,” but the court found that
“this self-serving document is not notarized, was not properly taken under oath[, and] is
accordingly deemed insufficient for purposes of countering” respondents’ affidavit. The court
further noted that petitioner’s responsive pleadings to respondents’ summary judgment motions
“fail to address many of the legal issues set forth therein which are dispositive of the legal issues
at hand.” As such, the court deemed that petitioner conceded those legal issues.
The court next addressed respondent’s counterclaims and, specifically, the request for
judgment declaring petitioner a vexatious litigant. In ruling on this issue, the court noted the
“totality of prior proceedings” in which respondents represented petitioner’s children’s mother,
which were documented in the record and of which the court took judicial notice. The court found
that petitioner demonstrated a “persistence to file multiple actions in various court venues all of
which essentially being in an effort to continue asserting (directly and/or peripherally) his alleged
parental rights in contravention of all previous determinations.” The court further found that there
was no genuine issue of material fact as to the totality of petitioner’s prior actions before multiple
courts and the unsuccessful results thereof, in addition to the fact that he was the subject of multiple
contempt and injunctive rulings as a result of these filings. The court concluded that it was
indisputable that petitioner’s complaint “completely fails as a result of the proper application of
such ‘litigation privilege’ and there otherwise being no sufficient evidentiary proffer supporting
any cause of action asserted by him to withstand summary judgment as a matter of law.” (Emphasis
added). The court stressed that the evidentiary record “reflects an unfounded civil action . . . that
lacks viable legal support and further demonstrates his ulterior and improper purposes in attacking
such counsel” and that petitioner clearly demonstrated an intention to obstruct the administration
of justice. Accordingly, the court found that petitioner should be prevented from misusing the court
system in Harrison County and specifically as to respondents via any further legal pleadings. The
court then directed that before attempting to file any pleadings against these specific respondents,
petitioner was required to seek the review and approval of the Chief Judge of the Circuit Court of
Harrison County and that any pleadings filed without such approval would be refused or, if filed,
stricken. It is from this order that petitioner appeals.
“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v.
Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). We note, however, that de novo review of the
court’s order in this case is inappropriate because petitioner has failed to challenge the circuit
court’s detailed findings regarding the appropriateness of summary judgments and has, instead,
presented a narrow legal issue that not only misrepresents the record but also would avail him of
no relief even if the Court were to accept his position, which we do not. On appeal, petitioner’s
first assignment of error is presented as follows: “Litigation privilege should not apply to sexual
exploitation, sexual harassment, and/or malicious claims of incest.” As such, it is clear that
petitioner is challenging only the circuit court’s application of the litigation privilege to his claims,
4
while completely ignoring the fact that the court also found that there were no genuine issues of
material fact in regard to any of petitioner’s counts as set forth in his complaint such that it could
survive summary judgment. In fact, after respondents noted in their brief to this Court that the
circuit court did not grant summary judgment on the litigation privilege alone, petitioner redoubled
his focus on this narrow issue in his reply brief, arguing that the court’s final order shows that
petitioner’s “action was entirely summarily dismissed due to litigation privilege.” As support for
this assertion petitioner points to the following finding from the order on appeal:
As otherwise fully reviewed and pronounced herein, there is no genuine issue of
material fact that pro se [p]etitioner’s [c]omplaint completely fails as a result of the
proper application of such ‘litigation privilege’ and there otherwise being no
sufficient evidentiary proffer supporting any cause of action asserted by him to
withstand summary judgment as a matter of law.
Petitioner emphasizes the first portion of this finding concerning the litigation privilege while
totally ignoring the fact that the court also found that the evidence to support petitioner’s claims
was entirely lacking and resulted in there being no genuine issue of material fact to present to a
jury. Petitioner even succinctly sums up his understanding of this quoted language as follows:
“Said another way, it was due only to the lower court’s application of litigation privilege that
[petitioner’s] case was dismissed via summary judgment.” As is abundantly clear from the record,
this is a misrepresentation of the circuit court’s ruling and an interpretation that is fatal to
petitioner’s appeal.
As we have explained,
[i]f the moving party makes a properly supported motion for summary
judgment and can show by affirmative evidence that there is no genuine issue of a
material fact, the burden of production shifts to the nonmoving party who must
either (1) rehabilitate the evidence attacked by the moving party, (2) produce
additional evidence showing the existence of a genuine issue for trial, or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f)
of the West Virginia Rules of Civil Procedure.
Syl. Pt. 3, Williams v. Precision Coil, Inc., 194 W. Va. 52, 56, 459 S.E.2d 329, 333 (1995). As set
forth above, the court made detailed findings about petitioner’s failure to meet these burdens,
including the fact that the document petitioner filed entitled “affidavit” did not meet any of the
requirements for such a filing. On appeal, petitioner fails to challenge any of these findings, instead
opting to argue that litigation privilege should not apply to respondent’s conduct. This is simply
insufficient to entitle him to relief, and we decline to undertake a detailed review of this matter
when petitioner has abdicated his burden of establishing reversible error. This is in keeping with
our explicit warning that “‘[a]ssignments of error that are not argued in the briefs on appeal may
be deemed by this Court to be waived.’ Syl. Pt. 6, Addair v. Bryant, 168 W. Va. 306, 284 S.E.2d
374 (1981).” Syl. Pt. 7, Birchfield v Zen’s Development, LLC, 245 W. Va. 82, 857 S.E.2d 422(2021).
5
Finally, petitioner argues that the circuit court erred in finding that he was a vexatious
litigator. However, this argument is again disingenuous and misrepresents petitioner’s extended
history of multiple filings seeking to relitigate and collaterally attack the result of the cause of
action that gave rise to S.U. I. In his brief, petitioner alleges that he “filed a single complaint that
made a good faith argument for the application, extension, modification or reversal of existing law
to stop [r]espondent’s ongoing harassment, abuse, defamation, and malicious acts.” This is wildly
inaccurate, as the record in this matter and the many related appeals before the Court demonstrate
that, as the circuit court found, petitioner has demonstrated a pattern of filing multiple pleadings
in various venues in order to continue his attack against the legal rights of his children’s mother.
Indeed, the order on appeal was explicit that
The majority of pro se [petitioner’s] pleadings herein clearly demonstrate yet
another attempt to somehow: (a) re-litigate the issues previously determined by
prior proceedings in the Family Court of Mason County, West Virginia [S.U. I]; (b)
adversely impact [the children’s mother] therein and; (c) otherwise improperly
burden her legal counsel with little more than bald accusations and litigation
ultimately concluded herein to be speculative and unsupported by any developed
evidentiary record.
That this is the lone complaint he has filed against these specific respondents is not remotely
indicative of petitioner’s history of harassment against the children’s mother, which has now
extended to her legal representation. In fact, this is not the first instance in which petitioner has
been found to have engaged in harassing behavior toward the mother’s counsel. We previously
noted that petitioner was found in contempt multiple times, including for his having increased the
mother’s litigation costs by faxing to her counsel “almost all of [his] pleadings ‘and countless other
documents,’ despite a prior order prohibiting him from doing so.” In re The Children of: S.U. v.
C.J., No. 20-0515, 20-0516, 20-0612, and 20-0710, 2021 WL 4936476, at *2. What the record in
this matter and all of petitioner’s related appeals demonstrates is that petitioner has a willful
disregard for orders of courts and the legitimacy of their rulings that has now manifested in his
attempt to hold counsel for the children’s mother civilly liable for defending her against his
vexatious pleadings.
It is telling that this is now the second appeal before this Court in which petitioner has
challenged a restriction on his ability to file additional pleadings. We addressed this exact issue in
In re The Children of: S.U. v. C.J. In that case, the circuit court required that petitioner pay a bond
and/or retain an attorney before he could file additional pleadings. Id. In addressing petitioner’s
challenge to this ruling, we noted the following:
Free access to courts is a principle predicated on the erroneous assumption that both
litigants in all lawsuits have a good faith dispute. Often this is not the case, and
where it is not, the mischief must be discouraged. Courts are available free of
charge, so they are overused. Their overuse in turn congests the docket, resulting
in justice-defying delays. In a court system burdened, even compromised, by
congestion and delay we need to be particularly sensitive to mischievous overuse
of the courts. Litigation designed simply to impede a party seeking payment of an
obligation, spiteful and vexatious suits—these simply do not belong in court. . . .
6
Everyone who has a good faith dispute requiring a decision by an impartial arbiter
is entitled to his day in court. On the other hand, every person is not entitled to his
day in court regardless of the frivolous nature of the suit. Parties whose interest in
the legal process is to oppress or cheat others should be discouraged.
Mark V.H. v. Delores J.M., No. 18-0230, 2019 WL 4257183 at *13 (W. Va. Sept. 9,
2019)(memorandum decision) (quoting Nelson v. W. Va. Pub. Emp. Ins. Bd., 171 W. Va. 445, 453-
54, 300 S.E.2d 86, 95 (1982)); see also, Mathena v. Haines, 219 W. Va. 417, 422, 633 S.E.2d 771,
776 (2006) (“While access to courts is a recognized fundamental right, it is also a commonly
recognized principle that such right of access is not without limitations.”); State ex rel. James v.
Hun, 201 W. Va. 139, 141, 494 S.E.2d 503, 505 (1997) (The “right of meaningful access to the
courts is not completely unfettered.”).
We also pointed out that this is the case in many other jurisdictions:
Numerous states have adopted statutes or rules that permit restrictions on litigants
who have been determined to be vexatious—that is, “persons who persistently and
habitually file lawsuits without reasonable grounds, or who otherwise engage in
frivolous conduct in the courts.” Robin Miller, “Validity, Construction, and
Application of State Vexatious Litigant Statutes,” 45 A.L.R.6th 493 (2009). While
this Court has not adopted a vexatious litigant rule, other courts routinely levy
sanctions or fashion remedies to preclude the filing of frivolous and repetitious
proceedings. See, e.g., In re Vey, 520 U.S. 303, 304 (1997) (precluding Supreme
Court Clerk from accepting further in forma pauperis filings “[i]n light of [pro se
petitioner’s] history of frivolous, repetitive filings[.]”); Washington v. Alaimo, 934
F. Supp. 1395, 1397 (S.D. Ga. 1996) (pro se litigant’s access to courts could be
limited because he “lacks the ability or will to govern his suits with the civility and
order required by . . . the Federal Rules of Civil Procedure. He has wasted the time
of many an innocent party and he has flippantly used the resources of the judiciary
with his abusive motions filing practice.”); Rudnicki v. McCormack, 210 F. Supp.
905, 909 (D.R.I. 1962) (“I have determined that the time has come when it is
necessary and appropriate that an injunction issue, both for protection of these and
other public officials against unwarranted harassment, and for the protection of the
records of this and other courts against the filing of frivolous and unimportant
papers.”); In re Prefiling Order Declaring Vexatious Litigant, Pursuant to I.C.A.R.
59, 164 Idaho 586, 434 P.3d 190 (2019) (upholding restrictions on litigant who filed
numerous frivolous pro se actions and frivolous pleadings); DeNardo v. Cutler, 167
P.3d 674, 681 (Alaska 2007) (“[T]he courts have the authority to enjoin persons
engaged in the manifest abuse of the judicial process . . . . The courts may take
creative actions to discourage hyperactive litigators so long as some access to courts
is allowed, such as by limiting the amount of filings a litigant may make, and
prescribing conditions precedent to those filings so as to determine the propriety of
a suit on a case by case basis.” (Quoting 42 Am.Jur.2d Injunctions § 191 (electronic
edition, updated May 2006)); Kondrat v. Byron, 63 Ohio App. 3d 495, 496, 579
N.E.2d 287, 287 (1989) (permanently enjoining litigant from filing future pro se
7
cases without first meeting stringent conditions); Eismann v. Miller, 101 Idaho 692,
697, 619 P.2d 1145, 1150 (1980) (Exercise of the right to access to the courts
“cannot be allowed to rise to the level of abuse, impeding the normal and essential
functioning of the judicial process. To allow one individual, untrained in the law,
to incessantly seek a forum for his views both legal and secular by means of pro se
litigation against virtually every public official or private citizen who disagrees with
him only serves to debilitate the entire system of justice.”); Bd. of Cty. Comm’rs of
Boulder Cty. v. Barday, 197 Colo. 519, 522, 594 P.2d 1057, 1059 (1979) (“[T]he
right of access to courts does not include the right to impede the normal functioning
of judicial processes. Nor does it include the right to abuse judicial processes in
order to harass others.”).
Mark V.H., 2019 WL 4257183 at *14. In upholding the Court’s restrictions on petitioner’s ability
to file additional pleadings in that prior appeal, we noted that
petitioner continues to file numerous pleadings against [the children’s mother] in
an attempt to divest her of her parental rights to the children—an issue that this
Court squarely resolved in S.U. I. Moreover, petitioner has demonstrated a willful
refusal to follow the family court’s basic directions and, as a result, has been held
in contempt at least six times. This includes petitioner’s refusal to cease faxing
voluminous documents to [the mother]’s counsel and other conduct that has
unnecessarily increased [her] legal fees. As such, we find no error in the family
court placing reasonable restrictions on petitioner’s ability to file pleadings or other
self-represented documents.
In re The Children of: S.U. v. C.J., No. 20-0515, 20-0516, 20-0612, and 20-0710, 2021 WL
4936476, at *6. The facts of this case demonstrate that petitioner has not only failed to correct his
vexatious conduct but has, in fact, extended it to target individuals who assisted the mother in her
efforts to exercise custody of her children. Because the court made extensive findings about
petitioner’s bad faith and vexatious conduct, we find no error in the reasonable restrictions placed
on his ability to file self-represented pleadings against respondents herein without prior approval.
Lastly, we find it necessary to remand this matter to the circuit court for the limited purpose
of holding a hearing to determine if awarding respondents attorney’s fees and costs is appropriate.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 16, 2020, order is hereby affirmed and the matter remanded, with instructions.
Affirmed and remanded.
ISSUED: February 1, 2022
CONCURRED IN BY:
8
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
9