Regina Griffith Olmstead, as Administratrix of the Estate of Ronald Lawrence Olmstead, Plaintiff Below, Petitioner
Jose Jorge Gordinho, d/b/a Responsible Pain and Aesthetic Management, PLLC, Defendant Below, Respondent
(Raleigh County 13-C-826)
Regina Griffith Olmstead, as Administratrix of the Estate of
Ronald Lawrence Olmstead, by counsel David Kirkpatrick,
appeals the August 17, 2017, order of the Circuit Court of
Raleigh County denying her motion to vacate the circuit
court's October 12, 2016, order granting summary judgment
to Respondent Jose Jorge Gordinho d/b/a Responsible Pain and
Aesthetic Management, PLLC. Respondent, by counsel David P.
Cook Jr., filed his response.
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. For these
reasons, a memorandum decision affirming the circuit
court's order is appropriate under Rule 21 of the Rules
of Appellate Procedure.
December 30, 2011, Lt. Jason McDaniel of the Beckley Police
Department filed a criminal complaint against Ronald Lawrence
Olmstead ("the decedent") based on information
allegedly supplied by respondent. As a result, the decedent
was arrested on January 9, 2012, for unlawfully withholding
information from a practitioner in order to obtain additional
controlled substances in violation of West Virginia Code
October 25, 2013, the decedent filed a complaint in the
Circuit Court of Raleigh County alleging that respondent
violated West Virginia Code § 61-5-27a(c) by
fraudulently causing Lt. McDaniel to file a criminal
complaint against the decedent. In the civil complaint, the
decedent requested past and future medical expenses and
damages for permanent impairment, pain and suffering,
annoyance and inconvenience, emotional distress,
embarrassment and humiliation, and loss of enjoyment of life,
in addition to other consequential and punitive damages.
During discovery, the decedent stated that as a result of his
arrest he "suffered some minor bruising and pain in his
back and shoulders from being physically arrested . . ."
and that he endured "severe anxiety, embarrassment, and
emotional trauma[;]" however, he denied seeking medical
treatment for any alleged injuries sustained as a result of
the incident. He also admitted that he did not suffer any
permanent injury as a result of the incident. In those
responses, he further stated that the only damage claim was
his emotional distress claim.
a January 21, 2015, hearing, the circuit court learned that
the decedent had passed away, so it directed the
decedent's attorney to file a suggestion of death and to
substitute petitioner as the party in interest. Petitioner
complied with that directive. Respondent submitted a motion
for summary judgment, which was granted by the circuit court
by order entered October 12, 2016. In that order, the circuit
court found that given the nature of the cause of action, the
claims did not survive the death of the decedent and the
cause of action was not assignable under common law. The
circuit court stated that petitioner's complaint is for a
personal tort for abuse of process/malicious prosecution and
that such action does not survive the death of the decedent
and is not assignable. It also noted that there was no
evidence in the "factual record in the form of verified
discovery responses, deposition testimony, or documentary
evidence, supporting that the decedent suffered a personal
injury as a result of the alleged incident." Pointing to
Rodgers v. Corporation of Harpers Ferry, 179 W.Va.
637, 371 S.E.2d 358 (1988), the circuit court found that this
Court had held that personal tort actions, such as emotional
distress claims, do not survive the death of an individual.
Noting petitioner's objections and exceptions, the
circuit court then dismissed the action with prejudice.
November 10, 2016, petitioner filed a motion for relief from
judgment, pursuant to Rule 60 of the West Virginia Rules of
Civil Procedure. In that motion, petitioner stated that her
motion should be granted because there was a fact witness who
could testify to the arrest of the decedent and the discovery
of medical records, including an MRI taken sixteen days after
the decedent's arrest in January of 2012. By order
entered on August 17, 2017, the circuit court denied that
motion. According to that order, the affidavit of the newly
discovered witness was signed just nine days after the
hearing on the motion for summary judgment and the medical
records were requested just two days after that hearing.
Therefore, the circuit court concluded that "[b]ased on
this timeline . . . the 'newly discovered evidence'
was in fact available and discoverable with minimum effort
long before the hearing on the motion for summary
judgment." Petitioner appeals from that
Court has previously recognized that "[a]n appeal of the
denial of the Rule 60(b) motion brings to consideration for
review only the order of denial itself and not the substance
supporting the underlying judgment nor the final judgment
order." Syl. Pt. 3, Toler v. Shelton, 157 W.Va.
778, 204 S.E.2d 85 (1974). Further, we have stated:
4.In reviewing an order denying a motion under Rule 60(b),
W.Va.R.C.P., the function of the appellate court is limited
to deciding whether the trial court abused its discretion in
ruling that sufficient grounds for disturbing the finality of
the judgment were not shown in a timely manner.
5. A motion to vacate a judgment made pursuant to Rule 60(b),
W.Va. R.C.P., is addressed to the sound discretion of the
court and the court's ruling on such motion will not be
disturbed on appeal unless there is a showing of an abuse of
Syl. Pts. 4 and 5, Toler at 778, 204 S.E.2d at 86.
appeal, petitioner sets forth three assignments of error. We
address petitioner's first and second assignments of
error together due to the overlap and similarities of those
arguments. First, petitioner argues that the circuit
court's finding that petitioner's action did not
survive the decedent's death ignores the submission of
documentary evidence submitted in petitioner's response
to respondent's motion for summary judgment. She next
contends that the circuit court inappropriately ignored
evidence of the decedent's physical injury as an
additional ground of survivability for her
Virginia Code § 55-7-8a(a) provides that
[i]n addition to the causes of action which survive at common
law, causes of action for injuries to property, real or
personal, or injuries to the person and not resulting in
death, or for deceit or fraud, also shall survive; and such
actions may be brought notwithstanding the death ...