Kanawha County 17-C-361
Michael Ellis, pro se, appeals the June 19, 2018, order of
the Circuit Court of Kanawha County awarding Respondent
Office of the Kanawha County Circuit Clerk summary judgment
on petitioner's claim that an assistant clerk committed
intentional misconduct by adding a defendant to
petitioner's complaint in another action that petitioner
did not want to sue. Respondent, by counsel James A. Muldoon,
filed a response in support of the circuit court's order.
Petitioner filed a reply.
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.
February 9, 2017, petitioner filed a complaint in Case No.
17-C-190 ("first action") against the
West Virginia Human Rights Commission ("HRC") and
its executive director. On March 16, 2017, petitioner filed a
complaint in the instant action, Case No. 17-C-361
("second action"), against respondent, alleging
that he did not want to name the HRC's executive director
as a separate defendant in the first action. In the second
action, petitioner further alleged that he explained to the
assistant clerk in respondent's office that he wanted to
name the HRC as the only defendant in the first action and
that the assistant clerk added the executive director's
name to his complaint without petitioner's knowledge or
permission. Finally, petitioner alleged that the assistant
clerk committed fraud and forgery and violated
petitioner's right to due process of law.
first action, at an August 28, 2017, hearing, the circuit
court first considered a motion by the HRC's executive
director to be dismissed as a defendant based on
petitioner's admission that he did not want to name the
executive director as a separate defendant. After petitioner
confirmed this admission, the circuit court granted the
executive director's motion to be dismissed as a
defendant. Next, the circuit court considered the HRC's
motion to dismiss petitioner's complaint in the first
action. Following argument by petitioner and the HRC, the
circuit court dismissed petitioner's complaint, finding
that it was barred by the relevant statute of limitations and
that it failed to state a claim upon which relief can be
granted. The circuit court entered its dismissal order in the
first action on September 20, 2017.
second action, the circuit court entered a scheduling order
on August 29, 2017, and the parties thereafter engaged in
discovery. Following the close of discovery, respondent filed
a motion for summary judgment on May 4, 2018. The circuit court
held a hearing on respondent's motion on June 7, 2018.
Following argument by the parties, by an order entered June
19, 2018, the circuit court awarded summary judgment to
respondent, finding that petitioner "did not suffer any
damages as a matter of law."
from the circuit court's June 19, 2018, order that
petitioner now appeals. "A circuit court's entry of
summary judgment is reviewed de novo." Syl. Pt.
1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755
(1994). Rule 56(c) of the West Virginia Rules of Civil
Procedure provides that summary judgment shall be granted
where "there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law." "Summary judgment is appropriate
where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, such as where
the nonmoving party has failed to make a sufficient showing
on an essential element of the case that it has the burden to
prove." Painter, 192 W.Va. at 190, 451 S.E.2d
at 756, syl. pt. 4.
Syllabus Point 1 of Lengyel v. Lint, 167 W.Va. 272,
280 S.E.2d 66 (1981), we reiterated that:
[t]he essential elements in an action for fraud are:
"(1) that the act claimed to be fraudulent was the act
of the defendant or induced by him; (2) that it was material
and false; that plaintiff relied upon it and was justified
under the circumstances in relying upon it; and (3) that he
was damaged because he relied upon it." Horton v.
Tyree, 104 W.Va. 238, 242, 139 S.E. 737 (1927).
Syllabus Point 1 of Barbee v. Amory, 106 W.Va. 507,
146 S.E. 59 (1928), we held that forgery constitutes
"[e]ither the fraudulent making or altering of an
instrument of legal import to the prejudice of another's
rights." We further have held that a person alleging a
violation of due process of law must demonstrate that he
suffered prejudice thereby. See Syl. Pt. 5,
Miller v. Moredock, 229 W.Va. 66, 726 S.E.2d 34
(2011) (holding that a person alleging an undue delay in the
revocation of his license to operate a motor vehicle must
show that he suffered prejudice as a result of the delay).
appeal, petitioner argues that he was damaged and/or
prejudiced by respondent's employee allegedly adding the
HRC's executive director's name to his complaint in
the first action without his knowledge or permission.
Respondent counters that the circuit court properly awarded
it summary judgment on petitioner's various claims. We
agree with respondent. Based on our review of the circuit
court's September 20, 2017, order in the first action, we
find that the HRC's executive director's motion to be
dismissed as a defendant was treated separately from the
HRC's motion to dismiss petitioner's complaint. The
circuit court's dismissal of the HRC's executive
director was favorable to petitioner because it was in
accordance with his stated desire. While the circuit court
granted the HRC's motion to dismiss, the court did not
indicate that the naming of the executive director as a
defendant was a reason supporting either of the two grounds
on which it dismissed petitioner's complaint in the first
action. Therefore, we conclude that the circuit court did not
err in awarding summary judgment to respondent in the second
action given that petitioner failed to show that he was
damaged by respondent's employee's alleged misconduct
as a matter of law.
foregoing reasons, we affirm the circuit court's June 19,
2018, order granting respondent's motion for summary
CONCURRED IN BY: Chief Justice Elizabeth D. Walker, Justice
Margaret L. Workman, Justice Tim Armstead, Justice Evan ...