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Burnette v. Wooton

United States District Court, S.D. West Virginia, Beckley Division

March 11, 2019

WELDON MARK BURNETTE, Plaintiff,
v.
JOHN DAVID WOOTON, JR., et al., Defendants.

          MEMORADUM OPINION AND ORDER

          IRENE C. BERGER UNITED STATES DISTRICT JUDGE

         The 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.

         FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

         On May 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 process.

         A. The 2001 Criminal Proceeding

         The 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.

         Following 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.

         B. Mr. Sizemore's Habeas Corpus Petitions

         Mr. 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 confession.

         On 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.

         C. Mr. Sizemore's Litigation After Release

         Upon 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 the complaint.

         On 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.[1] 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 appeal.[2]

         STANDARD ...


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