United States District Court, S.D. West Virginia, Beckley Division
MEMORADUM OPINION AND ORDER
C. BERGER UNITED STATES DISTRICT JUDGE
Court has reviewed the Complaint (Document 1), John David
Wooton, Jr., and Wooton, Davis, Hussell & Ellis,
LLC's (hereinafter the “Wooton
Defendants'”) Motion to Dismiss by Wooton
Defendants (Document 4), the Memorandum of Law in Support of
Motion to Dismiss by Wooton Defendants (Document 5), the
Plaintiff's Motion for Extension of Time (Document 6),
and the Plaintiff's Response in Opposition to the Wooton
Defendants' Motion to Dismiss (Document 7). In his motion
for extension of time, the Plaintiff sought additional time
to file a response to the motion to dismiss and advised the
Court that the Defendants did not object. The Court finds
that the motion for extension should be granted. For the
reasons stated herein, the Court finds that the motion to
dismiss should be denied.
ALLEGATIONS AND PROCEDURAL HISTORY
20, 2018 the Plaintiff, Weldon Burnette, filed a two-count
Complaint against the Defendants John David Wooton Jr.,
Wooton, Davis, Hussell & Ellis, LLC, and Alexander
Sizemore, alleging malicious prosecution and abuse of
The 2001 Criminal Proceeding
origin of this case stems from a 2001 case in which the
Greenbrier County grand jury indicted Alexander Sizemore for
the crime of sexual assault in the first degree. At the time,
Mr. Sizemore was twenty-two years old and the indictment
alleged that he had engaged in a sexual act with an
eleven-year-old. Mr. Sizemore retained Mr. Burnette and his
former law firm to represent him in the criminal case. Mr.
Burnette and his former firm secured a plea offer from then
Greenbrier County Assistant Prosecuting Attorney, Stephen
Dolly. Mr. Burnette encouraged Mr. Sizemore to accept the
plea offer but he refused. Thus, a trial was held in the
Circuit Court of Greenbrier County, West Virginia, from July
9-11, 2002. After the State rested its case, Assistant
Prosecuting Attorney Dolly again offered Mr. Sizemore a plea.
Mr. Burnette encouraged Mr. Sizemore to take the offer and,
for the second time, Mr. Sizemore declined. After the
conclusion of the trial, Mr. Sizemore was convicted of sexual
assault in the first degree.
the conviction, Mr. Sizemore was placed on home confinement
pending sentencing. He violated the terms of his home
confinement by sneaking a fifteen-year-old girl into his home
to spend the night. The State moved to revoke Mr.
Sizemore's home confinement. The court granted the motion
and remanded Mr. Sizemore to the Southern Regional Jail
pending sentencing. Mr. Burnette filed a motion to withdraw
as Mr. Sizemore's counsel on August 23, 2002. The court
granted the motion on August 26, 2002, and Mr. Burnette has
not represented Mr. Sizemore since that time. Mr. Sizemore
was sentenced to an indeterminate term of not less than 15
and no more than 35 years in the state penitentiary.
Mr. Sizemore's Habeas Corpus Petitions
Sizemore appealed his conviction multiple times. Initially,
Mr. Sizemore appealed his conviction to the Supreme Court of
Appeals of West Virginia, but the court refused to hear the
appeal. In March 2005, Mr. Sizemore filed a habeas
corpus petition in this Court, in part, on the grounds
that Mr. Burnette, while acting as Mr. Sizemore's
attorney, informed the Assistant Prosecuting Attorney, Mr.
Dolly, that his client had confessed the sexual assault to
his girlfriend. That petition was denied. On February 13,
2013, Mr. Sizemore filed a pro se habeas corpus
petition with the Circuit Court of Greenbrier County, West
Virginia. That petition also repeated the claim that Mr.
Burnette had informed Mr. Dolly of Mr. Sizemore's
December 11, 2014, the Honorable James J. Rowe, Judge,
Circuit Court of Greenbrier County West Virginia, conducted a
hearing on the petition. Following the hearing, Judge Rowe
signed an order releasing Mr. Sizemore from prison and
placing him on bond pending a ruling on the petition. On May
27, 2016, Judge Rowe signed an order granting the petition
and reversing the conviction, but the order did not state the
basis upon which Mr. Sizemore's conviction was vacated.
Shortly after granting the petition, Judge Rowe retired.
Mr. Sizemore's Litigation After Release
his release, Mr. Sizemore sought damages against the State
for wrongful incarceration. The claim against the State was
denied. On December 9, 2016, Mr. Sizemore filed a civil
complaint in Greenbrier County Circuit Court against Mr.
Burnette alleging malpractice and other causes of action
based on the allegation that Mr. Burnette had informed Mr.
Dolly about Mr. Sizemore's confession. On March 21, 2017,
Mr. Sizemore, represented by the Wooton Defendants, amended
April 16, 2017, Mr. Burnette removed the case to this Court.
On May 8, 2017, Mr. Burnette filed a motion to dismiss the
complaint in the malpractice action for reasons which
included the expiration of the statute of limitations. He
requested that the Court take judicial notice of the 2002
trial transcript, Judge Rowe's order vacating Mr.
Sizemore's conviction, and the 2013 habeas
corpus petition. On May 22, 2017, Mr. Sizemore,
represented by the Wooton Defendants, filed a response to Mr.
Burnette's motion to dismiss the malpractice action. In
it, he argued that the “discovery rule” applied
since he alleged in his proposed second amended complaint
that Mr. Sizemore first learned of the basis of the
malpractice action less than two years before it was
filed. On June 9, 2017, Mr. Burnette filed a
request for the Court to take judicial notice of the 2005
habeas corpus petition, wherein Mr. Sizemore had
made the allegation about the confession. On June 12, 2017,
Mr. Sizemore, represented by the Wooton Defendants, filed a
reply to Mr. Burnette's response. This Court granted the
motion to amend the complaint and granted leave to Mr.
Burnette to file a new motion to dismiss addressing the
allegations in the amended complaint, which he did. On July
17, 2017, Mr. Sizemore, still represented by the Wooton
Defendants, filed a response to Mr. Burnette's motion to
dismiss the second amended complaint. On August 22, 2017,
this Court held a hearing on Mr. Burnette's request for
judicial notice. Before the hearing, John Wooton, Jr.,
approached Mr. Burnette and offered to forgo a personal
judgment against Mr. Burnette if he would assist John Wooton,
Jr., with locating Mr. Burnette's malpractice insurance
and cooperate involving Mr. Burnette's malpractice
insurance carrier. On March 8, 2018, this Court entered an
order granting Mr. Burnette's motion to dismiss the
second amended complaint and the malpractice action with
prejudice, finding that the statute of limitation had expired
on the claim inasmuch as Mr. Sizemore had knowledge of and
had relied upon the allegation that Mr. Burnette had given
information regarding the confession to Mr. Dolly in his
2002-03 post-conviction motions and in his state