No. 33059 State of West Virginia ex rel. West Virginia Regional Jail Authority v. The
Honorable John L. Henning, Judge of the Circuit Court of Randolph County,
West Virginia; Frank J. Staud; and Shell Equipment Company, Inc.
On a former day, to-wit, June 7, 2006, this original proceeding was submitted to this
Court upon the petition of the West Virginia Regional Jail Authority asking this Court to
prohibit the respondent, the Honorable John L. Henning, Judge of the Circuit Court of
Randolph County, from enforcing an order entered on February 9, 2006, in the underlying
action. That action, filed on June 13, 2005, is styled Frank J. Staud and Shell Equipment
Company, Inc., v. West Virginia Regional Jail Authority; Circle M Enterprises, Inc.; and
, civil action no. 05-C-116 (Randolph County).
In the action, Staud and Shell Equipment alleged, inter alia
, that the Regional Jail
Authority breached a contract to sell them certain stockpiled coal by, instead, transferring the
coal to Circle M Enterprises, Inc., and Randall McCauley. Pursuant to the order of February
9, the Circuit Court denied the Authority's motion to dismiss. On March 29, 2006, this Court
issued a rule to show cause why relief in prohibition should not be granted. This Court now
has before it the petition of the Regional Jail Authority, the responses thereto, all matters of
record and the argument of counsel. Upon careful consideration, and as more fully set forth
below, this Court concludes that the Regional Jail Authority is entitled to relief in prohibition
with regard to the February 9, 2006, order.
In its motion, the Authority, by special appearance, alleged that dismissal was
appropriate because Staud and Shell Equipment failed to provide the Authority and the West
Virginia Attorney General with the pre-suit notice required by W.Va. Code
(2002). That section provides, in part:
Notwithstanding any provision of law to the contrary, at least thirty days
prior to the institution of the action against a government agency, the
complaining party or parties must provide the chief officer of the government
agency and the Attorney General written notice, by certified mail, return
receipt requested, of the alleged claim and the relief desired.
As acknowledged by the parties, and as expressly found by the Circuit Court, Staud
and Shell Equipment did not provide the required notice to the chief officer of the Regional
Jail Authority or to the Attorney General prior to filing the underlying action. Nevertheless,
the Circuit Court concluded that, inasmuch as the statute does not provide for any remedy,
sanction or penalty for failure to provide the notice, the Authority's motion to dismiss
should be denied. This Court is of the opinion, however, that the Circuit Court's conclusion
in that regard would render the provisions of W.Va. Code
, 55-17-3(a)(1) (2002), of no
consequence, especially in view of the statute's mandatory language to the effect that
[n]otwithstanding any provision of law to the contrary, the required notice must be
, Ashby v. City of Fairmont
, 216 W.Va. 527, 532, 607 S.E.2d 856, 861 (2004)
(stating that [t]ypically, the word 'must' is afforded a mandatory connotation.).
Accordingly, the motion to dismiss should have been granted, and, regardless of
whether in denying the motion the Circuit Court was acting without or in excess of its
jurisdiction, relief in prohibition is appropriate. See
, syl. pt. 4, State ex rel. Hoover v. Berger
199 W.Va. 12, 483 S.E.2d 12 (1996) (indicating that relief in prohibition is appropriate
where the lower tribunal's order is clearly erroneous as a matter of law) and syl. pt. 1,
Hinkle v. Black
, 164 W.Va. 112, 262 S.E.2d 744 (1979) (indicating that relief in prohibition
may be granted where there is a high probability that the trial will be completely reversed
if the error is not corrected in advance). In so holding, this Court does not address the
assertion of Circle M Enterprises, Inc., and Randall McCauley that they are also entitled to
be dismissed from the action. That assertion is more appropriately before the Circuit Court
following the entry of this order.
Upon all of the above, it is ADJUDGED and ORDERED that the writ of prohibition
be granted, as moulded. This matter is remanded to the Circuit Court of Randolph County,
West Virginia, with directions: (1) that the motion to dismiss filed by the West Virginia
Regional Jail Authority be granted, without prejudice, and (2) that Frank J. Staud and Shell
Equipment Company, Inc., be permitted pursuant to the refiling provisions of W.Va. Code
55-2-18 (2001), to refile their claim against the Authority following compliance with the
notice requirements of W.Va. Code
, 55-17-3(a)(1) (2002).
It is further ORDERED that service of an attested copy of this order upon the
respondent Judge and the other respondents shall have the same force and effect as service
of a formal writ.