David L. Cunningham, Plaintiff Below, Petitioner
Joseph R. Hooker, individually and in his official capacity as agent and employee of Marshall County Commission, and Marshall County Commission, a political subdivision in the State of West Virginia, Defendants Below, Respondents
David L. Cunningham, by counsel Paul J. Harris, appeals the
Circuit Court of Marshall County's February 25, 2016,
order granting respondents' motion to dismiss.
Respondents Joseph R. Hooker and the Marshall County
Commission, by counsel Thomas E. Buck, filed a response. On
appeal, petitioner argues that (1) the circuit court erred in
granting respondents' motion to dismiss based upon the
applicable statute of limitations, and (2) the circuit court
failed to address three of the counts from his complaint.
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.
February 10, 2012, petitioner was charged with one count of
misdemeanor battery. On September 18, 2013, Deputy Joseph R.
Hooker, respondent herein, arrested petitioner on an
outstanding warrant related to the battery charge. Following
his arrest, petitioner was taken to the Marshall County
Sheriff's Office before he was booked and transferred to
Northern Regional Jail. Petitioner was released that same
day. Ultimately, on December 30, 2013, the criminal complaint
against petitioner for battery was dismissed.
December 24, 2014, petitioner filed a civil complaint against
Deputy Hooker and the Marshall County Commission. In his
complaint, petitioner set forth the following four counts:
(1) due process violation; (2) malicious prosecution; (3)
deliberate indifference; and (4) negligent retention and
hiring. Respondents thereafter filed a motion to dismiss the
complaint. The case then went through a protracted period of
reassignments to various judges before the circuit court
eventually held a hearing on the motion to dismiss in
February of 2016. Ultimately, the circuit court granted the
motion to dismiss upon a finding that petitioner failed to
file his complaint before the one-year statute of limitations
applicable to claims of malicious prosecution expired. It is
from the order granting respondents' motion to dismiss
that petitioner appeals.
previously held that "'[a]ppellate review of a
circuit court's order granting a motion to dismiss a
complaint is de novo.' Syllabus Point 2,
State ex rel. McGraw v. Scott Runyan Pontiac-Buick,
Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995)." Syl.
Pt. 2, Hill v. Stowers, 224 W.Va. 51, 680 S.E.2d 66
(2009). Additionally, we have held as follows:
"The trial court, in appraising the sufficiency of a
complaint on a Rule 12(b)(6) motion, should not dismiss the
complaint unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief." Syl. Pt. 3, Chapman v. Kane
Transfer Co., 160 W.Va. 530, 236 S.E.2d 207 (1977).
Syl. Pt. 2, Roth v. DeFeliceCare, Inc., 226 W.Va.
214, 700 S.E.2d 183 (2010). Upon our review, the Court finds
no error in the circuit court's order granting
respondents' motion to dismiss.
appeal, petitioner argues that the circuit court erred in
granting respondents' motion to dismiss based upon his
failure to file the action within the applicable statute of
limitations. This Court has previously held that
"'[a]n action for malicious prosecution must be
brought within one year from the termination of the action
alleged to have been maliciously prosecuted.' Syllabus
Point 2, in part, Preiser v. MacQueen, 177 W.Va.
273, 352 S.E.2d 22 (1985)." Syl. Pt. 1, McCammon v.
Oldaker, 205 W.Va. 24, 516 S.E.2d 38 (1999). In reaching
its decision, the circuit court found that the applicable
statute of limitations began to run on September 18, 2013,
the date upon which petitioner was arrested and released.
Petitioner, however, argues that the proper date upon which
to begin calculating the time period for the statute of
limitations is December 30, 2013, the date upon which the
criminal complaint against him was ultimately dismissed. We
agree with petitioner that December 20, 2013, is the date
upon which the action was terminated by the State's
dismissal of the criminal complaint at issue. Accordingly, we
find that the circuit court was incorrect in granting
respondent's motion to dismiss on this ground.
the Court also notes that respondent argues on appeal, as it
did in the circuit court, that petitioner failed to state a
claim upon which relief could be granted. We agree. We have
previously held that
"[t]o maintain an action for malicious prosecution it is
essential to prove: (1) That the prosecution was malicious;
(2) that it was without reasonable or probable cause; and (3)
that it terminated favorably to plaintiff." Syllabus
Point 1, Lyons v. Davy-Pocahontas Coal Co., 75 W.Va.
739, 84 S.E. 744 (1915).
Id. at 26, 516 S.E.2d at 40, syl. pt. 3. The record
shows that petitioner does not challenge the validity of the
warrant and, therefore, cannot challenge probable
cause. Indeed, the warrant upon which petitioner
was arrested in September of 2013 was valid at that time. The
warrant, issued by the Magistrate Court of Marshall County,
plainly stated that probable cause existed to believe that
petitioner committed a battery. As such, it is clear that
Deputy Hooker had probable cause to arrest petitioner.
Accordingly, petitioner cannot establish any set of facts
under which he could recover for malicious prosecution. For
these reasons, we find no error in the circuit court
dismissing petitioner's claim for malicious prosecution.
we find no error in the circuit court's failure to
address petitioner's claims from counts one, three, and
four of his complaint in its order dismissing the same.
Petitioner's remaining claims for due process violation,
deliberate indifference, and negligent retention and hiring
all stemmed from the factual assertions underpinning his
claim of malicious prosecution by virtue of his arrest on
September 18, 2013. Given that petitioner's factual
assertions on that claim are not supported by the record on
appeal, his related claims must also fail. Accordingly, we
find no error in the circuit court dismissing these claims as
foregoing reasons, the circuit court's February 25, 2016,
order granting respondents' ...