Michael Ellis v. Office of he Kanawha County Circuit Clerk ( 2019 )


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  •                               STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    Michael Ellis,                                                                     FILED
    Plaintiff Below, Petitioner                                                   December 20, 2019
    EDYTHE NASH GAISER, CLERK
    vs) No. 18-0612 (Kanawha County 17-C-361)                                       SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    Office of the Kanawha County
    Circuit Clerk,
    Defendant Below, Respondent
    MEMORANDUM DECISION
    Petitioner Michael Ellis, pro se, appeals the June 19, 2018, order of the Circuit Court of
    Kanawha County awarding Respondent Office of the Kanawha County Circuit Clerk summary
    judgment on petitioner’s claim that an assistant clerk committed intentional misconduct by adding
    a defendant to petitioner’s complaint in another action that petitioner did not want to sue.
    Respondent, by counsel James A. Muldoon, filed a response in support of the circuit court’s order.
    Petitioner filed a reply.
    The 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.
    On February 9, 2017, petitioner filed a complaint in Case No. 17-C-1901 (“first action”)
    against the West Virginia Human Rights Commission (“HRC”) and its executive director.2 On
    March 16, 2017, petitioner filed a complaint in the instant action, Case No. 17-C-361 (“second
    action”), against respondent, alleging that he did not want to name the HRC’s executive director
    as a separate defendant in the first action. In the second action, petitioner further alleged that he
    explained to the assistant clerk in respondent’s office that he wanted to name the HRC as the only
    defendant in the first action and that the assistant clerk added the executive director’s name to his
    1
    We take judicial notice of the record in Kanawha County Case No. 17-C-190.
    2
    Petitioner alleged that the HRC’s finding of no probable cause regarding his
    discrimination complaint was fraudulent.
    1
    complaint without petitioner’s knowledge or permission. Finally, petitioner alleged that the
    assistant clerk committed fraud and forgery and violated petitioner’s right to due process of law.
    In the first action, at an August 28, 2017, hearing, the circuit court first considered a motion
    by the HRC’s executive director to be dismissed as a defendant based on petitioner’s admission
    that he did not want to name the executive director as a separate defendant. After petitioner
    confirmed this admission, the circuit court granted the executive director’s motion to be dismissed
    as a defendant. Next, the circuit court considered the HRC’s motion to dismiss petitioner’s
    complaint in the first action. Following argument by petitioner and the HRC, the circuit court
    dismissed petitioner’s complaint, finding that it was barred by the relevant statute of limitations
    and that it failed to state a claim upon which relief can be granted. The circuit court entered its
    dismissal order in the first action on September 20, 2017.3
    In the second action, the circuit court entered a scheduling order on August 29, 2017, and
    the parties thereafter engaged in discovery. Following the close of discovery, respondent filed a
    motion for summary judgment on May 4, 2018.4 The circuit court held a hearing on respondent’s
    motion on June 7, 2018. Following argument by the parties, by an order entered June 19, 2018, the
    circuit court awarded summary judgment to respondent, finding that petitioner “did not suffer any
    damages as a matter of law.”
    It is from the circuit court’s June 19, 2018, order that petitioner now 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). Rule 56(c) of the West Virginia Rules of Civil Procedure provides
    that summary judgment shall be granted where “there is no genuine issue as to any material fact
    and that the moving party is entitled to a judgment as a matter of law.” “Summary judgment is
    appropriate where the record taken as a whole could not lead a rational trier of fact to find for the
    nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on
    an essential element of the case that it has the burden to prove.” Painter, 192 W.Va. at 
    190, 451 S.E.2d at 756
    , syl. pt. 4.
    In Syllabus Point 1 of Lengyel v. Lint, 167 W.Va. 272, 
    280 S.E.2d 66
    (1981), we reiterated
    that:
    3
    Petitioner attempted to appeal the circuit court’s September 20, 2017, order in the first
    action by a filing a motion for leave to appeal out of time in this Court on January 28, 2019. By
    order entered February 4, 2019, we denied petitioner’s motion, finding that an appeal from the
    September 20, 2017, order had to be perfected on or before February 27, 2018 and that “the
    statutory time frame for perfecting the appeal has expired.” See W.Va. Code § 58-5-4;
    W.V.R.App.P. 5(f).
    4
    In the August 29, 2017, scheduling order, the circuit court set April 1, 2018, as the deadline
    for discovery to be completed. The parties now dispute the date on which discovery closed and the
    timeliness of each other’s discovery responses. However, we decline to address any issue with
    regard to the parties’ discovery dispute as our affirmation of the circuit court’s award of summary
    judgment to respondent is dispositive as to all claims herein.
    2
    [t]he essential elements in an action for fraud are: “(1) that the act claimed
    to be fraudulent was the act of the defendant or induced by him; (2) that it was
    material and false; that plaintiff relied upon it and was justified under the
    circumstances in relying upon it; and (3) that he was damaged because he relied
    upon it.” Horton v. Tyree, 104 W.Va. 238, 242, 
    139 S.E. 737
    (1927).
    In Syllabus Point 1 of Barbee v. Amory, 106 W.Va. 507, 
    146 S.E. 59
    (1928), we held that forgery
    constitutes “[e]ither the fraudulent making or altering of an instrument of legal import to the
    prejudice of another’s rights.” We further have held that a person alleging a violation of due
    process of law must demonstrate that he suffered prejudice thereby. See Syl. Pt. 5, Miller v.
    Moredock, 229 W.Va. 66, 
    726 S.E.2d 34
    (2011) (holding that a person alleging an undue delay in
    the revocation of his license to operate a motor vehicle must show that he suffered prejudice as a
    result of the delay).
    On appeal, petitioner argues that he was damaged and/or prejudiced by respondent’s
    employee allegedly adding the HRC’s executive director’s name to his complaint in the first action
    without his knowledge or permission. Respondent counters that the circuit court properly awarded
    it summary judgment on petitioner’s various claims. We agree with respondent. Based on our
    review of the circuit court’s September 20, 2017, order in the first action, we find that the HRC’s
    executive director’s motion to be dismissed as a defendant was treated separately from the HRC’s
    motion to dismiss petitioner’s complaint. The circuit court’s dismissal of the HRC’s executive
    director was favorable to petitioner because it was in accordance with his stated desire. While the
    circuit court granted the HRC’s motion to dismiss, the court did not indicate that the naming of the
    executive director as a defendant was a reason supporting either of the two grounds on which it
    dismissed petitioner’s complaint in the first action. Therefore, we conclude that the circuit court
    did not err in awarding summary judgment to respondent in the second action given that petitioner
    failed to show that he was damaged by respondent’s employee’s alleged misconduct as a matter
    of law.
    For the foregoing reasons, we affirm the circuit court’s June 19, 2018, order granting
    respondent’s motion for summary judgment.
    Affirmed.
    ISSUED: December 20, 2019
    CONCURRED IN BY:
    Chief Justice Elizabeth D. Walker
    Justice Margaret L. Workman
    Justice Tim Armstead
    Justice Evan H. Jenkins
    Justice John A. Hutchison
    3
    

Document Info

Docket Number: 18-0612

Filed Date: 12/20/2019

Precedential Status: Precedential

Modified Date: 12/20/2019