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Lusher v. City of Huntington

Supreme Court of West Virginia

September 1, 2017

Charles Lusher, Defendant Below, Petitioner
v.
The City of Huntington, Plaintiff Below, Respondent

         (Cabell County 16-MAP-5, 9, and 10)

          MEMORANDUM DECISION

         Petitioner Charles Lusher, pro se, appeals the September 30, 2016, orders of the Circuit Court of Cabell County dismissing his appeal from a September 13, 2016, order of the Municipal Court of Huntington, West Virginia, fining him a total of $685, plus court costs, with regard to citations for using his cell phone while driving and failing to stop his vehicle at the location that the police officer instructed. Respondent City of Huntington ("City"), by counsel Scott Damron and Ericka B. Hernandez, filed a summary 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 or about February 11, 2016, petitioner was issued a citation for using his cell phone while driving and failing to stop at the location that the police officer instructed. On May 24, 2016, petitioner appeared in the Municipal Court of Huntington, West Virginia, where he was found guilty and fined $685. Thereafter, the parties disagreed regarding the proper procedure for appealing the municipal court's judgment to the Circuit Court of Cabell County. According to the City, such appeals must be filed with the municipal court clerk, who then transmits the appeal to the circuit court clerk.[1] Petitioner counters that municipal court appeals have to be filed directly with the circuit court clerk.

         Consequently, petitioner's appeal from the municipal court's judgment was docketed three times by the circuit court clerk: as Case Nos. 16-MAP-5, 9, and 10. In No. 16-MAP-5, at a June 28, 2016, hearing, the circuit court remanded the case to the municipal court to allow the parties to "figure it out" so that petitioner could file a proper appeal. Pursuant to the circuit court's July 6, 2016, remand order, the municipal court held a hearing on September 13, 2016, and re-imposed petitioner's fine, plus court costs. Petitioner posted a $685 appeal bond, and the municipal court clerk transmitted the paperwork to the circuit court clerk to initiate Case No. 16-MAP-9.

         In No. 16-MAP-9, the circuit court set a hearing for September 29, 2016. Petitioner filed an "emergency" motion to dismiss No. 16-MAP-9 on September 23, 2016, because he maintained that his appeal had to be directly filed with the circuit court clerk.[2] In his motion, petitioner acknowledged that he "was notified" of the September 29, 2016, hearing. On September 28, 2016, petitioner filed an appeal from the municipal court in No. 16-MAP-10. Petitioner failed to appear at the September 29, 2016, hearing. Accordingly, by separate orders entered on September 30, 2016, the circuit court dismissed petitioner's appeal in each of the three cases (Nos. 16-MAP-5, 9, and 10) finding that he "no longer wishes to prosecute this matter." Petitioner now appeals the circuit court's September 30, 2016, orders dismissing his appeal from the municipal court's judgment.

         We reverse a circuit court's order dismissing a case for a failure to prosecute "only where there is a clear showing of an abuse of discretion." Caruso v. Pearce, 223 W.Va. 544, 547, 678 S.E.2d 50, 53 (2009) (quoting Dimon v. Mansy, 198 W.Va. 40, 46, 479 S.E.2d 339, 345 (1996)).

         On appeal, petitioner contends that he was guilty of neither the use of his cell phone while driving nor a failure to stop at the location that the officer instructed. The City counters that we have no need to address the merits of petitioner's case because the circuit court properly dismissed his appeal from the municipal court's judgment for a failure to prosecute. We agree with the City.

         Petitioner does not dispute that he received notice of the September 29, 2016, hearing that was held in No. 16-MAP-9. In addition, petitioner filed his "emergency" motion to dismiss on September 23, 2016, in No. 16-MAP-9, wherein he acknowledged receiving notice of that hearing. The September 29, 2016, hearing presented petitioner with the opportunity to explain why the circuit court should dismiss No. 16-MAP-9 and allow him to proceed with No. 16-MAP-10 despite the City's argument that the latter appeal was improperly filed. Therefore, because petitioner fails to explain why he did not appear for that hearing, we conclude that the circuit court properly dismissed petitioner's appeal for a failure to prosecute.

         For the foregoing reasons, we affirm the circuit court's September 30, 2016, orders dismissing petitioner's appeal from the municipal court's September 13, 2016, order.

         Affirmed.

          CONCURRED IN BY: Chief Justice Allen H. Loughry, Justice Robin Jean Davis, Justice Margaret L. Workman, Justice Menis E. Ketchum, Justice Elizabeth D. Walker

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