Raleigh County 17-C-351-K
Joann Dickens, by counsel Brandon L. Gray, Matthew A.
Bradford, and Kyle G. Lusk, appeals the Circuit Court of
Raleigh County's June 1, 2018, order granting
respondents' motion for summary judgment. Respondents
Rebecca Chapel Church, Rebecca Chapel United, Steven Smith,
Ronald Sanbower, Lonnie Burnside, James Farley, and Gary
Daniels, by counsel William R. Wooten, filed a response in
support of the circuit court's order and a supplemental
appendix. On appeal, petitioner argues that the circuit court
erred in finding that respondents did not act in bad faith
and denying petitioner's motion to conduct discovery
prior to granting summary judgment.
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 order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
of 2017, respondents filed a civil complaint alleging that
petitioner fraudulently embezzled approximately $27, 483.94
while she was the treasurer of the Rebecca Chapel Church.
Respondents alleged that petitioner was appointed treasurer
in May of 2012 and resigned in February of 2013 after
confessing to using church funds for personal use.
Respondents asserted several causes of action: fraud,
conversion, and embezzlement; and a breach of fiduciary duty.
Respondents requested compensatory damages, punitive damages,
pre- and post-judgment interest, and attorney's fees. In
August of 2017, petitioner filed a motion to dismiss all
asserted claims based on the statute of limitations.
Petitioner correctly identified respondents' causes of
action as torts, which were subject to a two-year statute of
limitations pursuant to West Virginia Code §
moved to amend the complaint and filed an amended complaint
in September of 2017 that asserted two additional causes of
action, a breach of contract claim and default on payment of
note. In support of the breach of contract claim, respondents
alleged that, following the discovery of the missing funds,
petitioner "confessed that she had misused funds and
pledged to repay the entire amount." Thereafter,
respondents entered into a contract with petitioner to repay
$20, 000, "and in consideration therefore the Church
agreed to forgive . . . $7, 483.94 of the money stolen by
[petitioner], and instead accept[ed] . . . to be repaid in
forty (40) consecutive monthly payments beginning on the 1st
day of June, 2013." Respondents alleged that petitioner
delivered a promissory note for $20, 000 on May 13, 2013,
which required one $500 payment per month for forty months
and terminated in September of 2016. Finally, respondents
alleged that petitioner had no intention of repaying the note
and fraudulently induced respondents to accept the same to
their detriment. Respondents asserted that due to
petitioner's breach of contract, she was contractually
obligated to repay the original $27, 483.94. In support of
the default in payment of note claim, respondents alleged
that petitioner paid only $1, 946.00 toward the promissory
note and had made no payments since September of 2014.
Respondents requested payment of the remaining $18, 054.00
balance of the note.
circuit court held a hearing on petitioner's motion to
dismiss and respondents' motion to amend the complaint in
September of 2017. Respondents argued that petitioner would
have ample time to respond to the amended complaint and,
therefore, would not be prejudiced by the amendment.
Petitioner objected to the motion and argued that respondents
acted in bad faith by strategically choosing to exclude the
additional causes of action in the original complaint in an
attempt to obtain punitive damages. Ultimately, the circuit
court granted the motion to amend and in doing so considered
that Rule 15 of the West Virginia Rules of Civil Procedure is
"an extremely liberal rule;" that this matter was
filed relatively recently; petitioner would have ample
opportunity to respond to the amended complaint; respondents
had not acted in bad faith; and respondents had "not
acted out of a dilatory motive." The circuit court also
heard petitioner's motion to dismiss the first two causes
of action in the complaint, but held that motion in abeyance.
that hearing, respondents served petitioner with written
interrogatories and requested that petitioner provide:
(a) The total amount of payments you have made on your note
dated May 13, 2013 payable to the order of REBECCA CHAPPEL
[sic] UNITED METHODIST CHURCH. (b) The dates and amounts of
each payment. (c) To whom each payment was made. (d) Any form
of documentary evidence of such payments, including but not
limited to receipts or cancelled checks.
oath, petitioner responded that the total amount paid to
respondents was $1, 946.00. Petitioner included a list of
individual payment amounts and copies of receipts of payments
in her answer. Respondents moved for summary judgment on the
default on payment of note claim. Petitioner objected and
filed a motion to dismiss respondents' breach of contract
March of 2018, the circuit court held a hearing on the
pending motions. Respondents argued that petitioner admitted
to paying only $1, 946.00 toward the promissory note and that
summary judgment for the remaining amount, with pre- and
post-judgment interest applied, was appropriate. Petitioner
objected and argued "there was a strong possibility that
if we are allowed to engage in discovery, that there's a
chance that [respondents] received more funds than is
actually contained in the pleadings thus far."
Petitioner believed that she made cash payments to
respondents, but did not receive a receipt for those
payments. Respondents replied that the accountings of both
parties matched and showed that petitioner paid only $1,
946.00 total. Ultimately, the circuit court ordered
respondents to search for "anything else, any other
ledger book, any other document that would reflect payments
that [petitioner] made" and held respondents' motion
for summary judgment in abeyance until that time.
circuit court entered a final order for summary judgment in
respondents' favor on June 1, 2018. In the order, the
circuit court noted that respondents filed a letter detailing
a "diligent search of the records" completed by two
of the respondents and "each of their searches has
disclosed no record of any payments other than the $1, 946.00
which [respondents] contend that [petitioner] made, and which
[petitioner] in her [a]nswers to [i]nterrogatories likewise
contends that she made." Accordingly, the circuit court
granted summary judgment and awarded respondents judgment
against petitioner for the sum of $18, 054.00 with pre- and
post-judgment interest. Petitioner now appeals this order.
review petitioner's appeal of the circuit court's
summary judgment order de novo. See syl. pt. 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755
(1994) ("A circuit court's entry of summary judgment
is reviewed de novo."). Additionally,
"[i]n reviewing challenges to the findings and
conclusions of the circuit court, we apply a two-prong
deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion
standard, and we review the circuit court's underlying
factual findings under a clearly erroneous standard.
Questions of law are subject to de novo
review." Syllabus ...