County 16-MAP-5, 9, and 10)
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.
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.
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. Petitioner counters that municipal court
appeals have to be filed directly with the circuit court
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.
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. 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
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)).
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.
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.
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.
CONCURRED IN BY: Chief Justice Allen H. Loughry, Justice
Robin Jean Davis, Justice Margaret L. Workman, Justice Menis
E. Ketchum, Justice Elizabeth D. Walker