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Fruth v. Powers

Supreme Court of West Virginia

October 23, 2017

SERGEANT ROBERT E. FRUTH, II, Plaintiff Below, Petitioner

          Submitted: September 19, 2017

         Appeal from the Circuit Court of Mason County The Honorable Thomas Evans, III, Judge Civil Action Nos. 12-AA-157, 158; 14-AA-57

          Michael N. Eachus, Esq. Eachus & Finley, Esq. Gallipolis, Ohio and Mark L. McMillian, Esq. Mark McMillian, Attorney at Law, L.C. Charleston, West Virginia Counsel for the Petitioner

          Karen H. Miller, Esq. Joseph L. Amos, Jr., Esq. Miller & Amos, Attorneys at Law Charleston, West Virginia Counsel for the Respondent


         1. "A final order of a deputy sheriffs' civil service commission, based upon findings not supported by the evidence, upon findings contrary to the evidence, or upon a mistake of law, will be reversed and set aside by this Court upon review." Syllabus Point 1, Mangum v. Lambert, 183 W.Va. 184');">183 W.Va. 184, 394 S.E.2d 879 (1990).

         2. "An appellate court may reverse a decision of the Civil Service Commission for Deputy Sheriffs, W.Va. Code § 7-14-1 (1991), et seq., as clearly wrong or arbitrary or capricious only if the Commission used a misapplication of the law, entirely failed to consider an important aspect of the problem, offered an explanation that ran counter to the evidence before the Commission, or offered an explanation that was so implausible that it could not be ascribed to a difference in view or the product of Commission expertise." Syllabus Point 3, Messer v. Hannah, 222 W.Va. 553');">222 W.Va. 553, 668 S.E.2d 182 (2008).

         3. "Before the prosecution of a lawsuit may be barred on the basis of res judicata, three elements must be satisfied. First, there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings. Second, the two actions must involve either the same parties or persons in privity with those same parties. Third, the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved, had it been presented, in the prior action." Syllabus Point 4, Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va. 469, 498 S.E.2d 41 (1997).

         4. "Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action." Syllabus Point 1, State v. Miller, 194 W.Va. 3');">194 W.Va. 3, 459 S.E.2d 114 (1995).

         5. "The dismissal of criminal charges that prompted initial disciplinary action against a public employee does not preclude a public official from administering further disciplinary action, including discharge." Syllabus Point 2, Neely v. Mangum, 183 W.Va. 393');">183 W.Va. 393, 396 S.E.2d 160 (1990).

         6. "Seriously wrongful conduct by a civil service employee can lead to dismissal even if it is not a technical violation of any statute. The test is not whether the conduct breaks a specific law, but rather whether it is potentially damaging to the rights and interests of the public." Syllabus Point 5, Mangum v. Lambert, 183 W.Va. 184');">183 W.Va. 184, 394 S.E.2d 879 (1990).

          7. " W.Va. Code, 7-14-7 (1981), requires that dismissal of a deputy sheriff covered by civil service be for just cause, which means misconduct of a substantial nature directly affecting the rights and interests of the public, rather than upon trivial or inconsequential matters, or mere technical violations of statute or official duty without a wrongful intention." Syllabus Point 2, Mangum v. Lambert, 183 W.Va. 184');">183 W.Va. 184, 394 S.E.2d 879 (1990).



         Sergeant Robert E. Fruth, II, was discharged from employment with the Mason County Sheriff's Department based on two separate incidents - he engaged in a verbal altercation with his spouse in public while on duty and he intentionally wrecked his police cruiser. He challenges the finding of just cause for the discharge made by the Mason County Civil Service Commission for Deputy Sheriffs ("the Commission") that was upheld by the Circuit Court of Mason County by order entered on July 29, 2016. Sgt. Fruth also claims he was denied procedural due process and that the Commission's practices and procedures were flawed. We find no error and affirm the decision of the circuit court.


         The incidents resulting in disciplinary action against Sgt. Fruth took place shortly after his then-wife, Melissa Searls (formerly Melissa Fruth), informed him that she wanted a divorce. At the time, Ms. Searls was employed with the Mason County Office of Emergency Medical Services (EMS) as an Emergency Medical Technician (EMT). On February 10, 2011, Sgt. Fruth, while on duty with the Sheriff's Department, contacted an EMS dispatcher to ask where he could find Ms. Searls. He also inquired as to the make and model of the personal vehicle of her coworker, Trey Anderson. Sgt. Fruth believed his wife was involved romantically with Mr. Anderson.

         Later that day, while still on duty, Sgt. Fruth confronted Ms. Searls and Mr. Anderson in a restaurant parking lot. Ms. Searls was on duty and her assigned ambulance was in the parking lot, as was Mr. Anderson's personal vehicle. While armed and in uniform, Sgt. Fruth reportedly blocked Mr. Anderson's personal vehicle with his police cruiser and engaged in a loud, verbal altercation with Ms. Searls and Mr. Anderson. Ms. Searls and Mr. Anderson claimed that Sgt. Fruth made threats toward them, including "I'll blow your F-ing head off" and "You will get yours. I promise."

         According to Deputy Robert Wilson, Sgt. Fruth's former co-worker, Sgt. Fruth came to his home later that day and said that he "had to do something to get [his wife's] attention."[1] The next day, in the early morning hours, Sgt. Fruth again contacted the EMS dispatcher and learned that Ms. Searls's ambulance would be dispatched on the next emergency call. Shortly thereafter, Sgt. Fruth was involved in a single car accident in his police cruiser. Sgt. Fruth later claimed he was attempting to avoid a deer in the road. According to Sgt. Clifford Varian, one of Sgt. Fruth's co-workers and the first to arrive on the scene, Sgt. Fruth told him that his wife was going to be the EMS responding to the scene and requested that Sgt. Varian relay to Ms. Searls that "everything will be okay" and to ask "if they could work things out." Sgt. Fruth was hospitalized following the accident.

         Later that day, Ms. Searls filed a Domestic Violence Petition (DVP) against Sgt. Fruth. Sgt. Fruth was immediately suspended with pay, pending the disposition of the DVP. Soon after, Sgt. Fruth was charged with two criminal violations of the DVP for attempting to contact Ms. Searls through other persons and for possession of ammunition. On February 24, 2011, the Sheriff suspended Sgt. Fruth without pay pending disposition of the criminal charges.

         The DVP was dismissed on June 22, 2011, by the Family Court of Mason County. After a hearing on the merits, the family court concluded that Ms. Searls had failed to prove her allegations of domestic violence or abuse by a preponderance of evidence. The criminal charges relating to alleged violations of the DVP, however, were still pending at that time. Accordingly, Sgt. Fruth remained on suspension without pay.

         On January 4, 2012, Sgt. Fruth was indicted for reckless driving and felony destruction of property based on the allegation that he had intentionally wrecked his police cruiser. On May 8, 2012, the Sheriff instructed Cpl. Forrest Terry with the Sheriff's Department to conduct an internal investigation of Sgt. Fruth's conduct as a law enforcement officer and to determine whether or not he should continue to serve in that capacity. At that time, Sgt. Fruth remained on unpaid suspension.

         Immediately following a pretrial hearing on the criminal charges against him, Sgt. Fruth requested reinstatement on May 29, 2012. In support of the request, Sgt. Fruth claimed that his "court cases" had been dismissed - ostensibly referencing that he had agreed to plead no contest to a misdemeanor charge of failure to maintain control of a vehicle in exchange for the dismissal of the felony destruction of property and reckless driving charges. This was the first request for reinstatement made by Sgt. Fruth in the fifteen months since his suspension. The Sheriff denied the request and explained that the decision was based on (1) the February 11, 2011 vehicle accident, which the department, after investigation, deemed intentional; (2) the anticipated plea to the misdemeanor offense of failure to maintain control; and (3) the pending criminal charges for violation of the DVP. Sgt. Fruth then filed a motion for immediate reinstatement with the Commission.

         On June 5, 2012, Sgt. Fruth's plea of no contest to failure to maintain control of a vehicle was accepted by the circuit court and the felony charges were dismissed. In the same Motion and Order [for] Dismissal, the pending criminal charges for violation of the DVP also were dismissed.

         On June 12, 2012, the Sheriff continued Sgt. Fruth's suspension pending further investigation of the events on February 10 and 11, 2011. Although notified of his right to have the matter heard by the Commission, Sgt. Fruth did not request and was not afforded a predisciplinary hearing for his continued suspension. On September 7, 2012, Cpl. Terry issued his investigative report, recommending termination based on Sgt. Fruth's on-duty conduct.

         In the meantime, the Commission held a hearing on Sgt. Fruth's motion for immediate reinstatement on September 13, 2012. The Commission limited its inquiry to the February 11 and 24, 2011 suspensions, which specifically concerned only the filing of the DVP and the associated criminal charges, all of which had been dismissed. Accordingly, the Commission ordered Sgt. Fruth's reinstatement and back pay from June 5, 2012, the date the plea deal was entered.

         On September 14, 2012, the investigative report recommending termination was forwarded to the Sheriff who agreed with Cpl. Terry's conclusion. The Sheriff notified Sgt. Fruth and his legal counsel that he was recommending that Sgt. Fruth be discharged and informed them of his right to a predisciplinary hearing following an investigation pursuant to West Virginia Code § 17-14C-3. Sgt. Fruth exercised that right and on October 10, 2012, the Deputy Sheriffs' Hearing Board ("Hearing Board") conducted a hearing and unanimously agreed with the discharge of Sgt. Fruth. Sgt. Fruth appealed to the Commission claiming, among other things, that his procedural due process rights were violated because he was not afforded predisciplinary hearings prior to his suspensions. He also asserted that the Sheriff had merely "re-packaged" the allegations the Commission had already dismissed. The Commission overturned the discharge and ordered that Sgt. Fruth be reinstated with back pay, finding that there were procedural infirmities and that the Sheriff's investigation did not contain any new grounds warranting discharge.

         The Sheriff's Department appealed the Commission's decision to the Circuit Court of Mason County. Sgt. Fruth likewise appealed, arguing that his back pay award should date from February 24, 2011, when he was suspended without a predisciplinary hearing, as opposed to the date his plea of no contest was entered. The circuit court remanded the case to the Commission for a full evidentiary hearing to cure any procedural due process violations and to allow evidence on all allegations stemming from the Sheriff's investigation.

         The Commission held a full evidentiary hearing in January 2014 and concluded, unanimously, that just cause existed for Sgt. Fruth's discharge. However, the initial decision lacked findings of fact or conclusions of law. Sgt. Fruth appealed to the Circuit Court of Mason County, asserting various assignments of error, including the failure to make findings of fact and conclusions of law. The circuit court again remanded the case to the Commission, ordering it to make sufficient findings to allow for meaningful appellate review. Both parties submitted proposed findings of fact and conclusions of law. The Commission entered an order with findings and again concluded that Sgt. Fruth's termination was supported by just cause. ...

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