Joseph C. McComas II, Plaintiff Below, Petitioner
Mercer County Board of Education, Defendant Below, Respondent
Joseph C. McComas II, by counsel Anthony M. Salvatore,
appeals the Circuit Court of Mercer County's July 8,
2016, order granting respondent Mercer County Board of
Education's motion for summary judgment and dismissing
his defamation suit. Respondent, by counsel Kermit J. Moore
and W. Blake Belcher, filed a response. On appeal, petitioner
argues that the circuit court erred in granting
respondent's motion for summary judgment because a
genuine issue of material fact existed.
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.
April of 2015, petitioner initiated his lawsuit against
respondent for defamation. According to the record,
petitioner's claims stemmed from a hearing held in April
of 2014 during which petitioner's employment with
respondent was terminated. During the hearing, respondent
accepted evidence of petitioner's alleged conduct that
supported the decision to terminate his employment. Based on
this evidence, respondent found that petitioner engaged in
"willful neglect of duty due to continued poor
performance on substitute evaluations, use of inappropriate
language in the classroom, not following lesson plans, and
falling asleep in class on multiple occasions." These
findings were memorialized in the meeting's minutes.
Following the hearing, and in accordance with its normal
practice, respondent posted the minutes of the meeting to its
support of his defamation lawsuit, petitioner testified that
the sole basis for his claim was the posting of the subject
minutes, which he alleged rendered him unable to find new
employment. Further, petitioner claimed that the finding
regarding use of inappropriate language was incorrect, as he
denied using such language.
January of 2016, respondent filed a motion for summary
judgment, after which petitioner filed a response. In June of
2016, the circuit court held a hearing on the motion.
Following the hearing, the circuit court granted
respondent's motion for summary judgment on the basis of
qualified immunity. Because the circuit court found qualified
immunity applied, it declined to address the remaining
arguments raised. It is from the order granting
respondent's motion for summary judgment that petitioner
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). Our review
is guided by the principle that
"'[a] motion for summary judgment should be granted
only when it is clear that there is no genuine issue of fact
to be tried and inquiry concerning the facts is not desirable
to clarify the application of the law.' Syllabus Point
3, Aetna Casualty & Surety Co. v. Federal Insurance
Co. of New York, 148 W.Va. 160, 133 S.E.2d 770
(1963)." Syllabus Point 1, Andrick v. Town of
Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).
Painter, 192 W.Va. at 190, 451 S.E.2d at 756, Syl.
Pt. 2. Furthermore,
"[s]ummary 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."
Syllabus point 4, Painter v. Peavy, 192 W.Va. 189,
451 S.E.2d 755 (1994).
Syl. Pt. 5, Toth v. Bd. of Parks & Recreation
Comm'rs, 215 W.Va. 51, 593 S.E.2d 576 (2003). Upon
our review, we find no error below.
appeal, petitioner raises no argument as to why the circuit
court's granting of summary judgment in favor of
respondent on the basis of qualified immunity is improper.
Instead, petitioner simply alleges that a genuine issue of
material fact exists because he argues that he submitted a
letter of resignation to respondent on April 3, 2014, which
respondent failed to recognize at the April 10, 2014, hearing
at which his employment was terminated. Not only does
petitioner fail to argue how this fact, if assumed as true,
creates a genuine issue of material fact sufficient to
overcome respondent's motion for summary judgment, he
also fails to show that this argument was submitted for the
circuit court's consideration below.
it is true that petitioner testified to having submitted a
letter of resignation to respondent, the record is devoid of
any instance wherein petitioner argued to the circuit court
that his attempted resignation created a genuine issue of
material fact as to whether or not respondent terminated his
employment. Indeed, petitioner's response to
respondent's motion for summary judgment lacks any
argument regarding an alleged resignation and, instead,
simply states that his "entire deposition . . . is
sufficient to create a genuine issue of fact . . . ."
According to petitioner's response below, respondent
"argued that [petitioner's] testimony should be
interpreted a certain way" while the jury was free to
"interpret [his] testimony in such a way to establish a
prima facie case" as set forth in his
complaint. This constitutes petitioner's entire argument
in response to respondent's motion for summary judgment.
Because he clearly did not raise any argument in regard to
his alleged resignation, we find that petitioner has waived
this argument on appeal. See State v. Jessie, 225
W.Va. 21, 27, 689 S.E.2d 21, 27 (2009) ("This
Court's general rule is that nonjurisdictional questions
not raised at the circuit court level will not be considered
to the first time on appeal."). For this reason, we
decline to grant petitioner relief in this regard.
foregoing reasons, the circuit court's July 8, 2016,
order granting respondent's motion for ...