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Rebecca F. v. James J.

Supreme Court of West Virginia

April 20, 2018

Rebecca F., Plaintiff Below, Petitioner
v.
James J. and Diane J., Defendants Below, Respondents

          (Berkeley County CC-02-2016-C-406)

          MEMORANDUM DECISION

         Petitioner Rebecca F., [1] pro se, appeals four orders of the Circuit Court of Berkeley County. In the first two orders, entered March 6 and 27, 2017, the circuit court denied petitioner's motions to compel the production of discovery. In the third order, entered April 18, 2017, the circuit court denied petitioner's motion to find Respondents James J. and Diane J. in contempt for communicating with petitioner's family members and allegedly intimidating her witnesses. In the fourth order, entered April 18, 2017, the circuit court awarded summary judgment to respondents in petitioner's action alleging that respondents failed to return all of petitioner's personal property left at the residence she formerly shared with Respondent James J. Respondents, by counsel Dale A. Buck, filed a summary response. 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 orders is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Prior to respondents' recent marriage, petitioner and Respondent James J. were in a long-term romantic relationship. Petitioner and Respondent James J. have a six-year-old child together. Respondent James J. has full custody of the child because petitioner is incarcerated. Previously, petitioner was convicted of eight counts of identity theft and five counts of child abuse by a parent resulting in injury to her children from prior relationships.

         On July 18, 2016, petitioner filed a complaint against respondents in the Circuit Court of Berkeley County. Petitioner filed an amended complaint on October 3, 2016, raising the following claims: (1) Respondent James J. refused to communicate with petitioner to the extent that he was "not allowing any communication with the child whatsoever";[2] (2) Respondent James J. failed to act in petitioner's best interests when he held her power of attorney during her incarceration; (3) petitioner and Respondent James J. previously entered into a "verbal antenuptial agreement"; (4) respondents owed petitioner $100, 000, or 50% of the value of the residence she and Respondent James J. formerly shared despite petitioner's acknowledgement that her name was never placed on the deed "for legal reasons"; and (5) respondents failed to return all of petitioner's personal property left at the residence she formerly shared with Respondent James J. On October 17, 2016, respondents filed separate answers to the amended complaint.

         On January 9, 2017, petitioner filed interrogatories and a request for production of documents on respondents which they answered on February 6, 2017. First, respondents objected to interrogatories requesting information regarding the school records and medical history of petitioner's and Respondent James J.'s child as beyond the scope of petitioner's action against them. Second, respondents objected to providing sensitive financial and tax information to petitioner given her convictions for identity theft. Respondents stated that they would provide such sensitive information to petitioner only if compelled to do so by court order. Finally, respondents objected to petitioner's request for "a complete inventory list" of "every item in every room, closet and outdoor buildings, and yard" at their residence, including photographs thereof, as overly burdensome.

         Dissatisfied with respondents' answers, petitioner filed motions to compel the production of the requested discovery on March 6 and 27, 2017. Petitioner stated that she was entitled to receive the discovery based on her conclusory statement that respondents' objections were without merit. By order entered March 6, 2017, the circuit court denied the first motion to compel because the circuit court had no way of evaluating petitioner's interrogatories and production request and respondents' answers thereto given that they were not attached to the motion. In its March 20, 2017, order, the circuit court was able to evaluate the parties' discovery exchanges and found that, based on its review of respondents' answers, "each of [petitioner]'s requests were answered or a specific objection was made and explained in the text of the response." Accordingly, the circuit court denied the second motion to compel.

         On February 17, 2017, respondents filed a motion for summary judgment supported by affidavits by respondents. In the affidavits, respondents stated that they have returned all of petitioner's personal property to her parents for safekeeping. In Respondent James J.'s affidavit, he further stated that, during the time that he was petitioner's power of attorney, he did not handle any funds or assets belonging to petitioner other than to deposit funds given to him by petitioner's mother into her prison commissary account. In their motion, respondents argued that petitioner's complaint was a meritless pleading filed by petitioner to retaliate against Respondent James J. for filing a petition for the full custody of his and petitioner's child in the Family Court of Berkeley County.

         On February 22, 2017, the circuit court entered a scheduling order giving petitioner until March 17, 2017, to file a response to the motion for summary judgment and referencing an earlier order entered on January 24, 2017, that provided petitioner 90 days to seek the appointment of a committee to protect her interests as an incarcerated individual. The circuit court ruled that, if petitioner wished the motion for summary judgment to be held in abeyance until a committee is appointed, she should "explain this in her response." Otherwise, "the [c]ourt will regard the matter as ripe for consideration and will rule upon the motion on the pleadings and the record or set the matter for . . . hearing as the [c]ourt deems necessary." Petitioner filed a response on March 2, 2017, and did not request that the motion for summary judgment be held in abeyance. However, petitioner asked for additional time for discovery, stating that affidavits from her family members "are forthcoming, " but were not yet available. Petitioner acknowledged that some of her personal belongings were returned to her parents, but disputed that respondents returned all of her property.

         Petitioner then filed a motion for contempt, alleging that respondents were communicating with her parents and intimidating her witnesses. According to petitioner, her parents have visitation with her and Respondent James J.'s child. Petitioner argued that, when her parents want to speak to the child, Respondent James J. raised the issue of settling the instant action. After respondents filed a response to the motion for contempt, the circuit court allowed petitioner to file a reply to respondents' response "on or before April 17, 2017, " by order entered April 7, 2017.

         No reply was filed by petitioner on or before April 17, 2017, and the circuit court denied her motion for contempt by an order entered April 18, 2017. Also, on April 18, 2017, the circuit court granted respondents' motion for summary judgment. First, the circuit court determined that any claims regarding petitioner's and Respondent James J.'s child were the subject of the separate family court action rather than the instant action. Second, the circuit court found that a verbal antenuptial agreement was not legally enforceable and that petitioner conceded that respondents' residence "is solely in the name of [Respondent] James J[.]" With regard to petitioner's claims that Respondent James J. failed to act in petitioner's best interests as her power of attorney and that respondents failed to return all of petitioner's personal property, the circuit court found that respondents' affidavits disproved those claims. Finally, the circuit court rejected petitioner's contention that additional time for discovery would produce "facts which would illuminate issues of fact for the jury."

         On April 24, 2017, petitioner filed a motion for an extension of time to file a reply to respondents' response to the motion for contempt and, on April 27, 2017, filed that reply with affidavits from petitioner's mother, father, and uncle. In the affidavits, petitioner's family members restated her position that, though respondents returned some of petitioner's personal property, they did not return all of the items. The circuit court denied the motion for an extension of time by order entered April 26, 2017, and did not reconsider its award of summary judgment to respondents based on the affidavits submitted by petitioner.

         Petitioner appeals the circuit court's April 18, 2017, order awarding summary judgment in respondents' favor as well as the earlier orders denying her motions to compel the production of discovery and her motion to hold respondents in contempt.[3] "[I]f an appeal is taken from what is indeed the last order disposing of the last of all claims as to the last of all parties, then the appeal brings with it all prior orders." Riffe v. Armstrong, 197 W.Va. 626, 637, 477 S.E.2d 535, 546 (1996), modified on other grounds, Moats v. Preston County Comm'n, 206 W.Va. 8, 521 S.E.2d 180 (1999); see Syl. Pt. 5, State ex rel. Davis v. Iman Mining Co., 144 W.Va. 46, 106 S.E.2d 97 (1958) (same). Because petitioner also challenges rulings made after the entry of summary judgment, we clarify the issues that are not the subject of this appeal. We will not consider petitioner's arguments that the circuit clerk failed to timely process her requests for issuance of subpoenas and failed to timely list certain documents on the docket sheet. Petitioner clearly raised those issues with the clerk, but we find that she fails to include specific citations to the record on appeal that "pinpoint" when and how those issues were presented to the circuit court prior to the entry of summary judgment.[4] Rule 10(c)(7), W.V.R.A.P. (providing that we "may disregard errors that are not adequately supported by specific references to the record on appeal").[5]

         First, we consider together the circuit court's March 6 and 27, 2017, orders denying her motions to compel the production of discovery because the court reached the merits of that issue only in its second order. "A trial court abuses its discretion when its rulings on discovery motions are clearly against the logic of the circumstances then before the court and so arbitrary and unreasonable as to shock our sense of justice and to indicate a lack of careful consideration." Syl. Pt. 2, in part, State ex rel. State Farm Mut. Auto. Ins. Co. v. Marks, 230 W.Va. 517, 741 S.E.2d 75 (2012) (quoting Syl. Pt. 1, B.F. Specialty Co. v. Charles M. Sledd Co., 197 W.Va. 463, 475 S.E.2d 555 (1996)). Here, the circuit court found that, based on its review of respondents' answers, "each of [petitioner]'s requests were answered or a specific objection was made and explained in the text of the response." For example, respondents stated that, because of petitioner's convictions for identity theft, they refuse to disclose their sensitive financial and tax information to her without a court order compelling them to do so. Petitioner did not request such an order. Rather, petitioner simply grouped respondents' objections together and ...


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