IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2005 Term
Plaintiff Below, Appellant
Defendant Below, Appellee
Appeal from the Circuit Court of Kanawha County
The Honorable Irene C. Berger, Judge
Civil Action No. 00-C-374
Submitted: October 11, 2005
Filed: November 30, 2005
Clinton W. Smith
Charleston, West Virginia Charleston,
Attorney for the Appellant Attorney
for the Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. Appellate review of a circuit court's
order granting a motion to dismiss a complaint is de novo
Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc.,
770, 461 S.E.2d 516 (1995).
2. A circuit court's entry of summary
judgment is reviewed de novo.
Syl. Pt. 1, Painter v. Peavy,
W.Va. 189, 451 S.E.2d 755 (1994).
3. When the ground for dismissal in
a case is that the real party in interest did not institute the civil action,
the trial court should stay the dismissal of the complaint and establish a reasonable
period of time to allow someone to properly qualify as the real party in interest.
Rule 17(a), West Virginia Rules of Civil Procedure. Syl. Pt. 5, Richardson
, 197 W. Va. 326, 475 S.E.2d 418 (1996).
4. A court has 'inherent power to do
all things that are reasonably necessary for the administration of justice within
the scope of its jurisdiction.' Syl. Pt. 3, Shields v. Romine
W. Va. 639, 13 S.E.2d 16 (1940) (citation omitted).
In this appeal of the August 17, 2004, order
entered by the Circuit Court of Kanawha County, Vallie Huffman, as the person
who filed the complaint below and who is ostensibly proceeding on behalf of Vallie's,
Inc. (hereinafter referred to as Appellant), claims the lower court
erred by dismissing the complaint against the defendant below, Robert Criner
(hereinafter referred to as Appellee). The two errors Appellant alleges
the trial court committed are: (1) dismissing this case from the docket; and
(2) denying Appellant's motion for summary judgment based on Appellee's assertion
of his right against self incrimination during discovery. Having completed our
review of the briefs and argument of counsel, the certified record and relevant
law, we affirm the order of the court below.
I. Factual and Procedural Background
Vallie Huffman filed a complaint against
Appellee on February 18, 2000, in which she sought damages for destruction of
rental property. The complaint contains the assertion that Appellee illegally
burned the property in question. (See
During discovery, it was disclosed that Ms. Huffman did
not own the subject property personally. Instead the
property was allegedly titled to the corporate entity of Vallie's, Inc., of
which Ms. Huffman is the sole corporate shareholder. It also surfaced during
discovery that Ms. Huffman had filed a personal bankruptcy action and obtained
discharge in bankruptcy; however, Ms. Huffman neither listed her holdings under
the corporate name of Vallie's, Inc. nor did she claim the subject property
as an asset or liability in the bankruptcy action.
Ms. Huffman filed a motion for summary judgment,
relying on the argument that Appellee's assertion of his right to remain silent
during discovery could be used in a civil context to prove by inference that
he was responsible for the fire damaging the subject property. Once Appellee
discovered the information regarding ownership of the property, he too filed
a motion for summary judgment. Thereafter, Ms. Huffman moved to amend her complaint
to add Vallie's, Inc. as an additional plaintiff. An order was entered on January
16, 2003. In that order, the presiding judge refused to rule on any issues raised
in either of the summary judgment motions which had been ruled on by the judge
formerly assigned to the case, (See
noting that the Court's prior ruling constitutes
the law of the case. (See
The lower court did grant summary judgment on the new
issue raised by Appellee regarding ownership of the property. The court below
concluded as a matter of law that [t]he
Defendant is entitled to a SUMMARY JUDGMENT . . . [because] no deed and no
record of inheritance . . . is offered by plaintiff to support ownership by
Vallie E. Huffman of the property in question in this case. Also granted
by way of the January 16, 2003, order was Ms. Huffman's motion to amend the
complaint to name the proper party plaintiff. (See
On January 21, 2003, Appellee filed a motion
to dismiss for failure to state a claim upon which relief can be granted, pursuant
to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, asserting that
Vallie's, Inc. was not the record owner of the damaged property. Appellant filed
a response to the motion and refuted the facts asserted. Appellee then filed
a supplemental motion, arguing that in the event that its primary motion to dismiss
was not granted that the jurisdiction over the claim rested with the bankruptcy
court, presumably because Appellant's undeclared interest in the corporation
affected the bankruptcy estate, which would have to name the bankruptcy trustee
as a party for the matter to proceed. The lower court responded to these motions
by order entered March 5, 2003, in which it is stated as a conclusion of law:
Court must liberally construe Rule 15 of the West Virginia Rules of Civil Procedure
when motions to amend are filed. That Rule provides that the amended complaint
relates back to the date of filing when: a) there is no essential change
in the cause of action; b) Vallie's, Inc., bears a close relationship to the
original Plaintiff; and c) the adverse party is not prejudiced by the assertion
of the amendment. Rosier v. Garron, Inc., 199 S.E.2d 50 (1973).
Having allowed for filing of a proper amended complaint, the trial court then
sustained Appellee's supplemental motion to dismiss for failure to state a
claim upon which relief can be granted and stayed the matter for six months
so that proper documents could be obtained from the Bankruptcy Court for the
Southern District of West Virginia which would allow Vallie's Inc. to go forward
with the suit.
A notice of intent to dismiss for inactivity
under Rule 41(b) of the West Virginia Rules of Civil Procedure was erroneously
issued on March 25, 2004, by the circuit clerk. On April 7, 2004, Appellant filed
a motion urging the court not to dismiss the claim on Rule 41(b) grounds, noting
that the action had been stayed pending resolution of issues in the bankruptcy
court. Appellee responded to this motion on April 14, 2004, contending that the
six-month stay imposed by the March 5, 2003, order had expired, and by virtue
of the language of the order the matter should be dismissed because nothing had
been presented to the court demonstrating authority to proceed. No hearing was
held before the lower court entered its dismissal of the case on April 15, 2004,
for failure to prosecute.
On June 14, 2004, Appellant filed Plaintiff's
Reply to the Defendant's Response to the Plaintiff's Motion [to Not Dismiss], to
which was attached a certified copy
of the bankruptcy court order granting the application of the trustee in bankruptcy
to employ counsel. The bankruptcy court order had been entered in that court
on December 10, 2003. On August 17, 2004, the lower court dismissed this case
from its docket. The court expressly took into account the motion not to dismiss,
reply to the motion and response to the reply to reach the following conclusion:
court finds that it stayed this matter for six (6) months by virtue of its Order
of March 4, 2003. Said stay was, therefore, in effect until September 4, 2003.
No action was taken in this action until the Motion to Not Dismiss was filed
on April 7, 2004. Specifically, no motion to extend the stay or any other action
the Court finds that this matter should not have been dismissed pursuant to Rule
41 (for lack of activity for a period in excess of one (1) year) inasmuch as
the matter was stayed for six (6) months. However, the Court finds dismissal
was proper as of September 4, 2003, by virtue of the language of the Court's
Order of March 4, 2003.
On December 27, 2004, Appellant petitioned
this Court to appeal the August 17, 2004, order. We granted the appeal by order
dated May 26, 2005.
II. Standard of Review
The errors raised in this appeal involve
the lower court's treatment of motions to dismiss and for summary judgment. As
we stated in syllabus point two of State ex rel. McGraw v. Scott Runyan Pontiac-Buick,
194 W.Va. 770, 461 S.E.2d 516 (1995), [a]ppellate review of a
circuit court's order granting a motion to dismiss a complaint is de
. Likewise, we have held that [a] circuit court's entry
of summary judgment is reviewed de novo.
Syl. Pt. 1, Painter
192 W.Va. 189, 451 S.E.2d 755 (1994). Since we apply the same
test that the circuit court should have applied initially in these circumstances,
we may rule on any . . . ground manifest in the record. Conrad
v. ARA Szabo
, 198 W.Va. 362, 369, 480 S.E.2d 801, 808 (1996).
Appellant maintains that the manner by which
the trial court dismissed this case violated its right to due process of law.
Appellant's brief specifically asserts that [b]y ruling that the case should
be dismissed on grounds which the Appellant had no notice and no opportunity
to address, the trial court denied the Appellant her [sic] right to due process
under the Fourteenth Amendment of the United States Constitution and Article
3 of the West Virginia Constitution. It is not clear to this Court how
the basis for dismissal came as a surprise.
When the lower court was made aware that
Ms. Huffman had no standing to proceed individually in this case and allowed
amendment to the complaint to name a corporate entity as the real party in interest,
the court also recognized that the matter could not proceed because of the complications
created by the bankruptcy action in which Ms. Huffman had not disclosed her interests
in that same corporation. The lower court imposed
a six-month stay in the instant case so that the real party in interest could
be properly qualified and the case could proceed. This procedure is in keeping
with our holding in syllabus point five of Richardson v. Kennedy
W. Va. 326, 475 S.E.2d 418 (1996),
the ground for dismissal in a case is that the real party in interest did not
institute the civil action, the trial court should stay the dismissal of the
complaint and establish a reasonable period of time to allow someone to properly
qualify as the real party in interest. Rule 17(a), West Virginia Rules of Civil
Appellant does not claim that the time period allowed was unreasonable, nor
is it claimed that there is any surprise or confusion regarding the grounds
on which the stay was imposed. Because the trustee in bankruptcy succeeded
to any claim that Vallie's Inc. had in the property, the case could not proceed
until the intention of the bankruptcy court was revealed. The record is devoid
of any indication that: (1) the trustee in bankruptcy proceeded to revive the
action; or (2) that the bankruptcy court consented to the original plaintiff,
Vallie Huffman, proceeding on behalf of Vallie's Inc.
Under these circumstances, we do not find
that the lower court abused its discretion by imposing an unreasonable time period
within which the real party in interest could be properly qualified pursuant
to Rule 17, nor do we find that the court below erred as a matter of law in dismissing
the matter from its docket. We find instead that the trial court employed its 'inherent
power to do all things that are reasonably necessary for the
administration of justice within the scope of its jurisdiction.' Syl.
Pt. 3, Shields v. Romine, 122 W. Va. 639, 13 S.E.2d 16 (1940) (citation
Having determined that the lower court committed
no error in dismissing this case, no need exists to address the subordinate summary
judgment ruling also raised by Appellant in this appeal.
Finding no error for the above stated
reasons, we affirm the August 17, 2004, order of the Circuit Court of Kanawha
Arson charges were brought
against Appellee, however the criminal case was dismissed on May 24, 1999,
due to mishandling of evidence.
The judge originally
assigned to the case was disqualified because of his association with one
of the defense witnesses expected to be called at trial.
Appellant's initial motion
for summary judgment was denied by order entered May 24, 2001; Appellee's
initial motion for summary judgment was denied by order entered December
We note that the style
of the case pending reflects Vallie Huffman as the plaintiff and implies
that Ms. Huffman is the appellant, but given the lower court's allowance
for substitution of parties, the actual party before us as the appellant
is Vallie's, Inc.