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Olmstead v. Gordinho

Supreme Court of West Virginia

June 8, 2018

Regina Griffith Olmstead, as Administratrix of the Estate of Ronald Lawrence Olmstead, Plaintiff Below, Petitioner
v.
Jose Jorge Gordinho, d/b/a Responsible Pain and Aesthetic Management, PLLC, Defendant Below, Respondent

          (Raleigh County 13-C-826)

          MEMORANDUM DECISION

         Petitioner 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.

         This 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.

         On 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 § 60A-4-410.[1]

         On 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.

         During 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.

         On 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 order.[2]

         This 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 such discretion.

Syl. Pts. 4 and 5, Toler at 778, 204 S.E.2d at 86.

         On 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 claims.[3]

         West 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 ...

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