“Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo.”
How later courts described this case
- “Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo.”
Written by the judges who cited it.
The opinion
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
September 4, 2024
AMANDA GOFF, ROBERT H. CARLTON,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INDIVIDUALLY AND D/B/A ROBERT H. CARLTON LAW INTERMEDIATE COURT OF APPEALS
OFFICE, AND HOMESTEAD REALTY INCORPORATED, OF WEST VIRGINIA
Plaintiffs Below, Petitioners
v.) No. 23-ICA-299 (Circuit Ct. of Mingo Cnty. No. CC-30-2021-C-84)
JAMES SMITH, FORMER SHERIFF OF MINGO COUNTY,
IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY,
JOE SMITH, SHERIFF OF MINGO COUNTY,
IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY,
NORMAN MINES, SHERIFF DEPUTY OF MINGO COUNTY,
IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY,
ALLEN MOUNTS, SHERIFF DEPUTY OF MINGO COUNTY,
IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY, OTHER AS OF YET
IDENTIFIED MINGO COUNTY SHERIFF DEPUTIES,
STATE OF WEST VIRGINIA,
WEST VIRGINIA STATE POLICE,
DUSTIN CONTOS, WEST VIRGINIA STATE POLICE OFFICER,
IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY,
CORY MAYNARD, WEST VIRGINIA STATE POLICE OFFICER,
IN HIS OFFICIAL CAPACITY AND INDIVIDUALLY, AND OTHER AS OF YET
IDENTIFIED STATE POLICE TROOPERS,
Defendants Below, Respondents
MEMORANDUM DECISION
Petitioners Amanda Goff, Robert H. Carlton, individually and doing business as
Robert H. Carlton Law Office, and Homestead Realty Incorporated appeal three orders of
the Circuit Court of Mingo County. The first order, dated October 4, 2022, granted the
motion to dismiss by Respondents State of West Virginia, West Virginia State Police,
Dustin Contos, and Cory Maynard. The second order, dated June 13, 2023, denied
Petitioners’ motion for default judgment against Respondents James Smith, Joe Smith,
Norman Mines, and Allen Mounts; and the third order, dated June 13, 2023, granted the
motion to dismiss on behalf of the same respondents. Respondents State of West Virginia,
West Virginia State Police, Dustin Contos, and Cory Maynard (collectively “the State
Respondents”) filed a summary response. Respondents James Smith, Joe Smith, Norman
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Mines, and Allen Mounts (collectively “the Sheriff Respondents”) filed a response.1 No
reply was filed.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds there is error in the circuit court’s decision but no
substantial question of law. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the Rules of Appellate Procedure for reversal in a memorandum decision.
For the reasons set forth below, the circuit court’s decision is affirmed, in part, and
reversed, in part.
This matter arises from a complaint filed by Mr. Carlton, an attorney, and Ms. Goff,
a paralegal who worked for Mr. Carlton, after a burglary at the Carlton Law Office in
Williamson, Mingo County, West Virginia. Mr. Carlton’s office also houses his realty
company, Homestead Realty Incorporated. The office was broken into on August 26, 2020,
and two business laptops were stolen. The Mingo County Sheriff’s Department recovered
the laptops and took them into evidence for use in the prosecution of the theft.
Mr. Carlton and Ms. Goff allege that the Sheriff’s Department refused to return the
laptops, despite the direction of the Mingo County Prosecuting Attorney to do so.
Petitioners claim that the Sheriff’s Department agreed to permit Ms. Goff, in her role as
Mr. Carlton’s paralegal, to appear at their office to obtain a copy of the files from the
laptops. The pertinent complaint alleges that when Ms. Goff arrived at the Sheriff’s
department, the Mingo County Sheriff informed her that one of the laptops contained a
video that purportedly depicted Mr. Carlton and Ms. Goff engaging in sexually themed or
otherwise lurid activity. Ms. Goff alleges that the Sheriff and Sheriff’s Deputies present
took her to a dark, private basement area where she was pressured to “change her story”
about whether the conduct in the video was consensual or coerced. She further alleges that
she was intimidated and inappropriately touched by multiple officers, threatened with
being criminally charged as an accessory to Mr. Carlton’s activities if she did not cooperate
with law enforcement, and that she was scared for her safety. The complaint includes
allegations that the Sheriff’s Department did not return the laptops and that a Sheriff’s
Deputy stole another laptop from the office during the crime scene investigation. The
petitioners allege that this and other outrageous conduct by law enforcement was possible
retaliation for matters related to Mr. Carlton’s history as a criminal defense attorney, a
former mayor of Williamson, a former assistant prosecuting attorney, a former adult
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Petitioners Amanda Goff and Homestead Realty Incorporated are represented by
Petitioner Robert H. Carlton, Esq., who is self-represented. Respondents State of West
Virginia, West Virginia State Police, Dustin Contos, and Cory Maynard are represented by
Michael D. Mullins, Esq. Respondents James Smith, Joe Smith, Norman Mines, and Allen
Mounts are represented by Chip E. Williams, Esq., and Jared C. Underwood, Esq.
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probation officer, a former magistrate judge, a former child advocate, and a previous
judicial candidate.
Petitioners filed their Amended Complaint in the Circuit Court of Mingo County on
August 18, 2021. James Smith, Joe Smith, Norman Mines, and Allen Mounts were each
served with process on September 1, 2021. They served their Joint Answer via certified
mail on September 22, 2021. Petitioners moved for default judgment on September 23,
2021. The Sheriff Respondents filed their response to the default judgment motion on
October 5, 2021.
Concurrently with the Mingo County civil action, on August 20, 2021, Ms. Goff
and Mr. Carlton filed two substantially similar individual complaints in the Circuit Court
of Kanawha County. Ms. Goff’s Complaint, 21-C-717, was assigned to the Honorable Tera
L. Salango of the Thirteenth Judicial Circuit. Mr. Carlton’s complaint, 21-C-718, was
assigned to the Honorable Joanna I. Tabit of the Thirteenth Judicial Circuit. The State
Respondents filed motions to dismiss both Kanawha County actions and the Mingo County
action, pursuant to the doctrine of qualified immunity and under Rule 12(b)(6) for failure
to state a claim upon which relief can be granted.
By order dated January 3, 2022, Judge Salango dismissed Ms. Goff’s complaint
with prejudice as to the State Respondents for failure to state a claim upon which relief can
be granted. By order dated February 25, 2022, Judge Tabit dismissed Mr. Carlton’s
complaint as to the State Respondents. In her order, Judge Tabit expressly found that
Kanawha County Civil Action Nos. 21-C-717 and 21-C-718 arise from the same set of
facts and occurrences, involve the same parties, and involve common questions of law, and
consolidated the cases into Civil Action No. 21-C-718. Because the State Respondents
were dismissed from both complaints, Judge Tabit transferred the matter to the Circuit
Court of Mingo County to be consolidated with the Mingo County Civil Action No. 21-C-
84, as the only remaining defendants were the Sheriff Respondents.
On April 4, 2022, the State Respondents filed a consolidated motion to dismiss in
the Mingo County case, reasserting the arguments set forth in their original motions to
dismiss and arguing further that the State Respondents were entitled to dismissal pursuant
to the doctrine of res judicata because of their dismissals in the Kanawha County actions.
The State Respondents returned the computers, client files, and other property
belonging to Petitioners and provided chain of custody documents on May 26, 2022. By
order dated October 4, 2022, the court granted the motion to dismiss as to the State
Respondents.
On May 3, 2022, the Sheriff Respondents filed a motion to dismiss. Petitioners
responded by filing a renewed motion for default judgment. The May 3, 2022, motion to
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dismiss was granted by order dated June 13, 2023, and the renewed motion for default
judgment was denied on the same date. This appeal followed.
Petitioners allege fourteen assignments of error between the three orders on appeal
herein. For efficient organization and disposition, we will consider the assignments of error
out of order to group like claims together. First, we turn to the assignments of error relating
to the circuit court’s order granting the motion to dismiss of the Sheriff Respondents.
Petitioners raised these arguments in assignments of error number 1, 2, 3, 5, 9, and 13,
which all contain similar assertions that the circuit court erred when it ruled that there were
no causes of actions stated or allegations of sexual harassment, intentional infliction of
emotional distress, and/or other inappropriate conduct by the Sheriff Respondents
contained in the operative complaint.2
The circuit court’s decision that the complaint failed to state a claim for which relief
could be granted is a ruling of law, and we review such decisions de novo. State ex rel.
McGraw v. Scott Runyan Pontiac-Buick, Inc., syl. pt. 2, 194 W. Va. 770, 461 S.E.2d 516
(1995) (“Appellate review of a circuit court’s order granting a motion to dismiss a
complaint is de novo.”). As we examine the circuit court’s order dismissing the Sheriff
Respondents, we must accept the pleading’s allegations as true. “Since the preference is to
decide cases on their merits, courts presented with a motion to dismiss for failure to state a
claim construe the complaint in the light most favorable to the plaintiff, taking all
allegations as true.” Sedlock v. Moyle, 222 W. Va. 547, 550, 668 S.E.2d 176, 179 (2008)
(citing John W. Lodge Distrib. Co. v. Texaco, Inc., 161 W. Va. 603, 604-05, 245 S.E.2d
157, 158-59 (1978)).
Rule 8(f) of the West Virginia Rules of Civil Procedure requires that courts
“liberally construe pleadings so as to do substantial justice.” Mountaineer Fire & Rescue
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Assignment of Error No. 1 alleges that the court erred in ruling that there were no
causes of action stated in the amended complaint against the Sheriff Respondents.
Assignment of Error No. 2 alleges that the court erred in ruling that the amended complaint
did not include allegations of sexual harassment by the Sheriff Respondents against Ms.
Goff. Assignment of Error No. 3 alleges that the court erred in ruling that the amended
complaint did not include allegations that the Sheriff Respondents attempted to coerce Ms.
Goff to lie and participate in the wrongful criminal prosecution of Mr. Goff for sexual
assault. Assignment of Error No. 5 alleges that the court erred in granting the motion to
dismiss the Sheriff Respondents. Assignment of Error No. 9 alleges that the court erred in
ruling that the amended complaint did not include a cause of action for the Sheriff
Respondents’ intentional conduct against Ms. Goff to coerce her to participate in the
wrongful criminal prosecution of Mr. Goff for sexual assault. Assignment of Error No. 13
alleges that the court erred, in part, by granting the motion to dismiss respondents with
prejudice.
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Equip., LLC v. City Nat’l Bank of W. Va., 244 W. Va. 508, 520, 854 S.E.2d 870, 882 (2020)
(internal citations omitted). Accordingly, “[t]he trial court, in appraising the sufficiency of
a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” Syl. Pt. 3, Chapman v. Kane Transfer Co., 160 W. Va. 530, 236
S.E.2d 207 (1977). Our Supreme Court has repeatedly held that, to survive a motion under
Rule 12(b)(6), “a pleading need only outline the alleged occurrence which (if later proven
to be a recognized legal or equitable claim), would justify some form of relief.”
Mountaineer Fire & Rescue Equip., LLC, 244 W. Va. at 521, 854 S.E.2d at 883. “[A]
complaint must be intelligibly sufficient for a circuit court or an opposing party to
understand whether a valid claim is alleged and, if so, what it is.” Scott Runyan Pontiac-
Buick, Inc., 194 W. Va. at 776, 461 S.E.2d at 522.
Upon review, Petitioners’ Amended Complaint alleges that the Sheriff Respondents
engaged in an unlawful search of Petitioners’ office building, unlawful and unwanted
touching of Ms. Goff causing physical injury and emotional distress resulting in PTSD, the
illegal detention of Ms. Goff, the wrongful refusal to return Petitioners’ business property
as part of a pretext for a threatened wrongful criminal prosecution of Mr. Carlton, and the
intentional infliction of emotional distress on Mr. Carlton and Ms. Goff. The complaint
further alleged damages for physical and emotional injuries to their persons and property,
damages for being detained and abused, for being threatened with wrongful prosecution,
for the loss of computers and business files, and for theft and transfer of the stolen property
to the West Virginia State Police and others.
This order was decided on a 12(b)(6) motion to dismiss, and while there is no
guarantee that Petitioners would prevail at summary judgment, we find that it was
premature to dismiss their claims against the Sheriff Respondents at this stage of litigation.
“When a Rule 12(b)(6) motion is made, the pleading party has no burden of proof. Rather,
the burden is upon the moving party to prove that no legally cognizable claim for relief
exists.” Mountaineer Fire & Rescue, 244 W. Va. at 520, 854 S.E.2d at 882. That burden
was unmet in this case, and dismissal was not warranted.
We next turn to the assignments of error relating to the circuit court’s denial of the
motion for default judgment against the Sheriff Respondents. Petitioners raised these
arguments in assignments of error number 4, 6, 7, 8, 10, and 13, which all include
substantially similar allegations.3 Petitioners assert that they filed their motion for default
3
Assignment of error number 4 alleges that the court erred in the denial of Mr.
Carlton’s motion for default judgment against the Sheriff Respondents for attempting to
have him deliberately and wrongfully criminally charged with the sexual assault of Ms.
Goff. Assignment of error number 6 alleges that the court erred by not ruling on the motion
for default judgment for over a year while entertaining motions to dismiss and denying
Petitioners’ motions to amend the complaint and for default judgment. Assignment of error
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judgment in Mingo County Circuit Court before the Sheriff Respondents filed an answer
to the suit, and again filed a renewed motion for default with their responses to the
Respondents’ 12(b)(6) motions. Accordingly, Petitioners argue that the Sheriff
Respondents’ answers were not timely filed and that the court abused its discretion by
refusing to grant their motions for default judgment. We disagree.
Our Supreme Court “has established as a basic policy that cases should be decided
on their merits, and that, therefore, default judgments are not favored.” Hinerman v. Levin,
172 W. Va. 777, 782, 310 S.E.2d 843, 848 (1983) (citations omitted). The court below
found that the Sheriff Respondents were served with the Summons and Complaint on
September 1, 2021, and filed a Joint Answer on September 22, 2021, and a response in
opposition to the motion for default judgment on October 5, 2021. Accordingly, the court
found that the Sheriff Respondents appeared and actively participated in the litigation of
the matter and that the matter should continue to be litigated on its merits. We find no abuse
of discretion in that ruling.
Finally, we turn to the remaining assignments of error which relate to the denial of
the Petitioners’ motion to amend their complaint, and the argument that the trial judge
should have been disqualified from hearing the case after granting a search warrant for Mr.
Carlton’s office to the West Virginia State Police.4 However, we note that there are no
orders on appeal concerning these issues. First, the Petitioners have not appealed any order
deciding their motions for leave to file any amended complaints, or any orders that decide
any issues relating to any motions to disqualify the trial judge. Rule 5(b) of the West
Virginia Rules of Appellate Procedure requires that “the party appealing shall file the
notice of appeal, including attachments required in the notice of appeal form contained in
Appendix A of these Rules.” Appendix A requires that petitioners “ATTACH COPIES OF
ALL ORDERS BEING APPEALED.” To the extent that Petitioners seek to challenge any
number 7 alleges that the court erred in the denial of Ms. Goff’s motion for default
judgment against the Sheriff Respondents for sexual harassment. Assignment of error
number 8 appears to be a duplicate of assignment of error number 4. Assignment of error
number 10 alleges that the court erred in its refusal to grant the motions for default
judgment predicated upon inaccuracies in the responsive pleadings filed by counsel for
Sheriff Respondents. Assignment of error number 13 alleges that the court abused its
discretion, in part, by dismissing a default judgment against Respondents.
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Assignment of error number 11 alleges that the court erred in the denial of the
Petitioners’ motion for leave to amend the complaint. Assignment of error number 12
alleges that the court erred in denying Ms. Goff’s motion to amend the complaint.
Assignment of error number 14 alleges that the judge should have been disqualified after
becoming a fact witness to statements made by police officers who obtained ex parte search
warrants as part of the wrongful criminal prosecution of Mr. Carlton.
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order regarding amendments to their complaints or motions to disqualify, those orders were
not attached to their notice of appeal and therefore, are not properly before this Court. 5
Moreover, it is not clear from the record that any argument regarding judicial
disqualification was raised below.6 “In general, a party who has not raised a particular issue
or defense below may not raise it for the first time on appeal. ‘Indeed, if any principle is
settled in this jurisdiction, it is that, absent the most extraordinary circumstances, legal
theories not raised properly in the lower court cannot be broached for the first time on
appeal . . . We have invoked this principle with near religious fervor.’” State v. Costello,
245 W. Va. 19, 26, 857 S.E.2d 51, 58 (2021) (quoting State v. Miller, 197 W. Va. 588, 597,
476 S.E.2d 535, 544 (1996)). For these reasons, we will not consider these final
assignments of error.
Accordingly, we affirm the circuit court’s June 13, 2023, order denying the motion
for default judgment, and reverse the circuit court’s June 13, 2023, order granting the
Sheriff Respondents’ motion to dismiss for failure to state a claim upon which relief can
be granted.
Affirmed, in part, and Reversed, in part.
ISSUED: September 4, 2024
CONCURRED IN BY:
Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear
5
Conversely, we note that Petitioners attached the October 4, 2022, order granting
the dismissal of the State Defendants, but in their brief allege no assignments of error
regarding that order. As we do not address the merits of this order, we also need not address
whether such appeal was timely filed.
6
This Court lacks jurisdiction to hear any argument regarding judicial
disqualification pursuant to the West Virginia Appellate Reorganization Act, West
Virginia Code § 51-11-1, et seq. See also Trial Ct. R. 17.01 (specifying disqualification
procedure).
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