IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2009 Term
KENNETH EDWARD CHANCE, JR.,
Plaintiff Below, Appellant
GEORGE HILL, SUPERINTENDENT, WV CORRECTIONAL INDUSTRIES,
MOUNT OLIVE CORRECTIONAL COMPLEX, IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY,
Defendant Below, Appellee
Appeal from the Circuit Court of Fayette County
The Honorable John W. Hatcher, Jr., Judge
Civil Action No. 07-C-53
Submitted: September 23, 2009
Filed: November 2, 2009
Kenneth Edward Chance Mark E. Troy, Esq.
Bailey & Wyant
Charleston, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. This Court's review of a trial court's decision on a motion to dismiss
for improper venue is for abuse of discretion. Syl. Pt. 1, United Bank, Inc. v. Blosser
W. Va. 378, 624 S.E.2d 815 (2005).
2. 'Actions wherein a state agency or official is named, whether as a
principal party or third-party defendant, may be brought only in the Circuit Court of
Kanawha County.' Syllabus point 2, Thomas v. Board of Education of McDowell County
167 W.Va. 911, 280 S.E.2d 816 (1981). Syl. Pt. 2, State ex rel. Stewart v. Alsop
, 207 W.
Va. 430, 533 S.E.2d 362 (2000).
This case is before the Court upon the appeal of Kenneth Edward Chance, Jr.,
a pro se Appellant, from the April 15, 2008, Order of the Circuit Court of Fayette County,
West Virginia, dismissing, without prejudice, the Appellant's action filed pursuant to the
provisions of West Virginia Code §§ 25-1A-1 to -8 (2008)(Prison Litigation Reform Act). (See footnote 1)
The circuit court's decision was based upon its determination that the Circuit Court of
Kanawha County, West Virginia, was the proper venue for the Appellant's action. Based
upon a review of the Appellant's brief, (See footnote 2)
the record, and all other matters submitted before the
Court, we affirm the decision of the Circuit Court of Fayette County.
I. Factual and Procedural Background
On February 15, 2007, the Appellant instituted the instant action by filing a
Complaint in the Circuit Court of Fayette County, West Virginia, against George Hill,
Superintendent, West Virginia Correctional Industries, Mount Olive Correctional Complex,
in his individual and official capacities. The Appellant alleged that the Appellee committed
a tort of breach of contract . . . when he terminated Plaintiff from his Inmate Job position
without any cause, other then [sic] because he could[.] (See footnote 3)
The Appellant further alleged that
the Appellee abused his authority/discretion, when he terminated Plaintiff from his Inmate
Job position as a form of retaliation for Plaintiff successfully pursuing a personal injury claim
against him for gross negligence, and that the Appellee denied the Appellant due process
of law when he treated plaintiff in an arbitrary and capricious, fundamentally unfair
, when he terminated plaintiff from his Inmate Job position, solely as a means of
retaliating against Plaintiff. . . .
By Order entered February 15, 2007, the Circuit Court of Fayette County
transferred the Appellant's case to the Circuit Court of Kanawha County, based upon the
determination that under the provisions of West Virginia Code § 14-2-2 (2009), the Circuit
Court of Kanawha County was the appropriate venue. Subsequently, by Order entered April
3, 2007, the Circuit Court of Kanawha County dismissed the action, finding that it was
frivolous and failed to state a claim upon which relief could be granted. (See footnote 4)
On August 10, 2007, the Appellant, filed a petition for appeal in the West
Virginia Supreme Court regarding the dismissal of this action by the Circuit Court of
Kanawha County. In that petition, the Appellant argued that [t]here was error in jurisdiction
in this matter created by the Circuit Court of Fayette County and furthered by the Circuit
Court of Kanawha County. More precisely, the Appellant, relying upon the identical
statute (See footnote 5)
and case law (See footnote 6)
which the Appellant currently relies upon, argued in his prior petition
for appeal filed with the Court that the transfer of the case from Fayette County to Kanawha
County was erroneous. (See footnote 7)
By order entered March 4, 2008, this Court, based upon the Appellant's
petition, granted the petition for appeal. In the same Order, this Court stated:
It is hereby ordered that the dismissal order entered April 3, 2007, be, and it
hereby is, reversed and this matter is hereby remanded to the Circuit Court
of Kanawha County with directions to reinstate the complaint and issue
process in Kanawha County Civil Action No. 07-C-328. Justices Starcher
and Albright would direct that counsel be appointed in light of the
circumstances of this case.
(emphasis added). (See footnote 8) Given that the venue issue was raised in the petition, this Court resolved
the issue by sending the case back to Kanawha County, thereby determining that Kanawha
County was the appropriate venue.
Notwithstanding this Court's Order which resolved the venue issue by
returning the case to the Circuit Court of Kanawha County, on April 4, 2008, the Circuit
Court of Kanawha County transferred the case back to the Circuit Court of Fayette County.
In that order, the Circuit Court of Kanawha County determined that such transfer was in the
best interest of judicial economy and not prejudicial to any of the parties.
Subsequently, by Order entered April 15, 2008, the Circuit Court of Fayette
County dismissed the action, without prejudice. The Circuit Court of Fayette County
reasoned that according to the provisions of West Virginia Code § 14-2-2, proper venue for
the action was in the Circuit Court of Kanawha County. Specifically, the circuit court based
its decision upon the following:
By an Order entered April 4, 2008, Tod J. Kaufman, Judge of the Circuit Court
of Kanawha County, West Virginia, entered an Order transferring the above-
styled civil action to the Circuit Court of Fayette County, West Virginia,
making, in said Order, a variety of pleasant sounding, but wholly irrelevant,
findings of fact which fly clearly in the face of the specific provisions of
Chapter 14, Article 2, Section 2 of the West Virginia Code.
It is this Order that forms the basis for the instant appeal.
II. Standard of Review
This Court's review of a trial court's decision on a motion to dismiss for
improper venue is for abuse of discretion. Syl. Pt. 1, United Bank, Inc. v. Blosser
, 218 W.
Va. 378, 624 S.E.2d 815 (2005). The Court now reviews the circuit court's decision utilizing
the abuse of discretion standard.
III. Discussion of Law
The Appellant posits that the issue for resolution before the Court is whether
venue for inmate civil actions filed pursuant to provisions of Prison Litigation Reform Act
rests solely within the Circuit Court of Kanawha County due to the provisions of West
Virginia Code § 14-2-2. The Appellant maintains that such an action can be brought
anywhere that a plaintiff so desires to initiate the action.
The problem with the Appellant's argument, however, is two-fold. First, the
issue that the Appellant presents has already been resolved by this Court in its March 4, 2008,
Order, directing that the action be returned to the Circuit Court of Kanawha County. The
Circuit Court of Kanawha County transferred the case back to Fayette County. The transfer
of the case by the Circuit Court of Kanawha County to the Circuit Court of Fayette County
was contrary to the Court's Order.
Moreover, there are no provisions in the Prison Litigation Reform Act
governing the venue of such suits. Under the provisions of West Virginia Code § 14-2-2,
however, [t]he following proceedings shall be brought and prosecuted only in the circuit
court of Kanawha County: (1) any suit in which the governor, any other state officer, or a
state agency is made a party defendant except as garnishee or suggestee. Id
In syllabus point two of State ex rel. Stewart v. Alsop, 207 W. Va. 430, 533
S.E.2d 362 (2000), the Court reiterate a prior holding as follows:
Actions wherein a state agency or official is named, whether as a
principal party or third-party defendant, may be brought only in the Circuit
Court of Kanawha County. Syllabus point 2, Thomas v. Board of Education
of McDowell County, 167 W.Va. 911, 280 S.E.2d 816 (1981).
Alsop, 207 W. Va. at 431, 533 S.E.2d at 363, Syl. Pt. 2.
Notwithstanding this holding, the Appellant relies upon the Court's prior
decision in King v. Heffernan, 214 W. Va. 835, 591 S.E.2d 761 (2003), to support his
argument that he, as the Plaintiff, can choose where to bring the action. See W. Va. Code §
14-2-2 or W. Va. Code § 56-1-1 (2005 & Supp. 2009).
Interestingly, in King, the plaintiffs instituted the action in Kanawha County,
alleging that the defendants, David Heffernan, M.D., Cabell Huntington Hospital, Inc., and
the University of West Virginia Board of Trustees, caused injury to the plaintiffs' child
during the delivery of the child at Cabell Huntington Hospital, which is located in
Huntington, West Virginia. 214 W. Va. at 836, 591 S.E.2d at 762-63. The defendants
maintained that because the University of West Virginia Board of Trustees no longer existed
and did not exist at the time the plaintiffs' filed their complaint, venue was not proper in
Circuit Court of Kanawha County. Id. at 837-38, 591S.E.2d at 763-64. While the circuit
court agreed with the defendants, this Court reversed. The Court determined that even
though the Marshall University Board of Governors, which effectively replaced the West
Virginia Board of Trustees as a party defendant, was a state agency, because the plaintiffs
only sought recovery up to the limits of the state's liability insurance policy, the plaintiffs
could bring the action either in Kanawha County or Cabell County. Id. at 838, 841, 591
S.E.2d at 764, 767. Succinctly stated, the Court found in King that where a plaintiff is only
seeking recovery against the a state agency's liability insurance coverage, then venue for
such claims is proper under either West Virginia Code §14-2-2 or West Virginia Code § 56-
1-1. (See footnote 9) 214 W. Va. at 836, 591 S.E.2d at 762, Syl. Pt. 3.
The instant case is so factually dissimilar from the facts before the Court in King that the Court finds that King is not controlling. Further, even assuming, arguendo,
that our decision in King should apply to this case, in the case sub judice, the Appellant
concedes that the Appellee is a state employee. Further, the Appellant filed this action after
giving the Appellee statutory notice as reflected in paragraph 12 of the Appellant's Complaint:
On October 2, 2006, pursuant to W. Va. Code § 55-17-3(a)(1), plaintiff
provided formal notice to defendant Hill and all other relevant persons
specified by statute, that he intended to file suit over the improper actions of
defendant Hill on September 28, 2006.
Such notice is only required for actions against the State agency or governmental agency. (See footnote 10) See W. Va. Code §§ 55-17-1 to -6 (2008). Finally, unlike the plaintiffs in King, the
allegations contained within the Appellant's Complaint do indicate that the Appellant is only
seeking recovery up to the limits of the Appellee's liability insurance policy. 214 W. Va.
at 836, 591 S.E.2d at 762. Consequently, the circuit court did not abuse its discretion in
sending the matter back to the Circuit Court of Kanawha County pursuant to the provisions
of West Virginia Code § 14-2-2 and this Court's decision in Alsop. (See footnote 11) 207 W. Va. at 431, 533
S.E.2d at 363, Syl. Pt. 2.
Based upon the foregoing, the decision of the Circuit Court of Fayette County,
West Virginia is affirmed.
The Court, in its review of the Order from the Circuit Court of Fayette County,
dismissing the action, without prejudice, found that the dismissal for lack of venue was after
the Circuit Court of Fayette County transferred the case back to the Circuit Court of