Pendleton County 17-C-14
Judy Kay Miskell, pro se, appeals the August 29, 2017, order
of the Circuit Court of Pendleton County granting Respondent
Jerry Moore's motion to be dismissed as a co-defendant in
petitioner's civil action against respondent's
client, Hinkle Trucking, Inc. ("Hinkle").
Respondent, by counsel Jared T. Moore,
filed a summary 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 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.
to petitioner, on August 2, 2015, a truck driven by a Hinkle
employee sprayed lime on her vehicle as she was traveling
behind the truck on Route 33 in Riverton, West Virginia.
Petitioner alleges that the lime caused her health problems.
On July 18, 2017, petitioner filed a civil action against
Hinkle in the Circuit Court of Pendleton County seeking $500,
000 in damages. In addition to Hinkle, petitioner named
respondent-Hinkle's attorney-and Hinkle's insurer and
its adjusters as co-defendants. Petitioner alleges that
Hinkle and its various agents intentionally hindered her
ability to file her civil action within the applicable
two-year statute of limitations. With regard to respondent,
petitioner alleges that Hinkle informed her to "contact
[its] attorney, [respondent, ] who refuse[d] to receive phone
calls and it is suspected that he advised his clients to not
respond to any phone calls or inquiries after initial contact
of the accident, possibly to run out the [s]tatute of
25, 2017, respondent filed a motion to be dismissed as a
co-defendant, arguing that he enjoyed absolute immunity from
petitioner's action pursuant to the litigation privilege.
In response, petitioner filed a motion for an evidentiary
hearing on July 30, 2017. The circuit court held a hearing on
respondent's motion on August 22, 2017, at which it heard
arguments from the parties. The circuit court asked
petitioner whether her only allegations against respondent
were that he refused her phone calls and advised Hinkle
"to run out the statute [of limitations.]"
Petitioner answered in the affirmative. By order entered
August 29, 2017, the circuit court dismissed respondent as a
co-defendant with prejudice, finding:
16. In this case, each and every allegation against
[respondent] is based upon his representation of [Hinkle] as
legal counsel. It is not alleged that [respondent] took any
type of action outside of the litigation process. In
particular, [petitioner] avers that [respondent] merely
refused to receive her telephone calls and advised his
clients to avoid communications with [petitioner].
17. The [c]ourt finds that [petitioner's] [c]omplaint
against [respondent] is absolutely barred under the
litigation privilege, which insulates legal counsel from
civil liability arising out of their actions during the
course of litigation.
now appeals the circuit court's August 29, 2017, order
dismissing respondent as a co-defendant in her civil
action. Rule 12(b)(6) of the West Virginia Rules
of Civil Procedure provides, in pertinent part, that a
defendant may move to dismiss an action for ". . . (6)
[a] failure to state a claim upon which relief can be
granted." In syllabus points one and two of Roth v.
DeFeliceCare, Inc., 226 W.Va. 214, 700 S.E.2d 183
(2010), we held:
1. "Appellate review of a circuit court's order
granting a motion to dismiss a complaint is de novo."
Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d
2. "The trial court, in appraising the sufficiency of a
complaint on a Rule 12(b)(6) motion, should not dismiss the
complaint unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief." Syl. Pt. 3, Chapman v. Kane
Transfer Co., 160 W.Va. 530, 236 S.E.2d 207 (1977).
appeal, petitioner argues that the circuit court should have
provided an opportunity to prove her claims that respondent
refused her phone calls and advised Hinkle "to run out
the [s]tatute of [l]imitations." Respondent counters
that a court may properly grant a motion to dismiss
"where the claim is not authorized by the laws of West
Virginia." McGraw, 194 W.Va. at 776, 461 S.E.2d
at 522. See Camden-Clark Mem. Hosp. Corp. v. Tuan
Nguyen, 240 W.Va. 76, 79 n.8, 807 S.E.2d 747, 750 n.8
(2017) (finding that a motion to dismiss tests the legal
sufficiency of a complaint). We agree with respondent and
find that petitioner confirmed to the circuit court that her
only allegations against respondent were that he refused her
phone calls and advised Hinkle to run out the statute of
limitations. Given that the nature of petitioner's
allegation related to respondent's representation of
Hinkle regarding a prospective judicial action, the circuit
court found that petitioner's claim was not legally
cognizable because of the litigation privilege.
syllabus point three of Clark v. Druckman, 218 W.Va.
427, 624 S.E.2d 864 (2005), we held that "[t]he
litigation privilege is generally applicable to bar a civil
litigant's claim for civil damages against an opposing
party's attorney if the alleged act of the attorney
occurs in the course of the attorney's representation of
an opposing party and is conduct related to the civil
action." See Syl. Pt. 2, Collins v. Red
Roof Inns, Inc., 211 W.Va. 458, 566 S.E.2d 595 (2002)
(holding that the litigation privilege bars a defamation
action when the subject statement is made where "the
prospective judicial action . . . is under serious
consideration"). Here, it is undisputed that petitioner
was seriously considering a suit against respondent's
client given petitioner's allegation that Hinkle and its
various agents acted to prevent her from filing suit within
the applicable statute of limitations. Petitioner further
alleges that those actions were undertaken on advice from
respondent. Therefore, upon our review of the record, we
concur with the circuit court's finding that "each
and every allegation against [respondent] is based upon his
representation of [Hinkle] as legal counsel."
Accordingly, we conclude that the circuit court did not err
in granting respondent's motion to dismiss as he enjoys
absolute immunity from petitioner's action pursuant to
the litigation privilege.
foregoing reasons, we affirm the circuit court's August
29, 2017, order dismissing respondent as a co-defendant with
prejudice from ...