Wastezero, Inc. v. Foodmasters, LLC d/b/a Kanawha City Piggly Wiggly

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

WASTEZERO, INC.,

Plaintiff/Counter-Claim Defendant Below, Petitioner

v.) No. 24-ICA-271 (Cir. Ct. of Kanawha Cnty. Case No. CC-20-2022-C-185)

FOODMASTERS, LLC d/b/a KANAWHA FILED

CITY PIGGLY WIGGLY, April 29, 2025

Defendant/Counter-Claim Plaintiff Below, Respondent ASHLEY N. DEEM, CHIEF DEPUTY CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioner Wastezero, Inc. (“Wastezero”) appeals the Circuit Court of Kanawha

County’s May 29, 2024, order denying Wastezero’s motion to withdraw non-responses to

requests for admission and granting summary judgment in favor of Respondent

Foodmasters, LLC d/b/a Kanawha City Piggly Wiggly (“Foodmasters”). Foodmasters filed

a response.1 Wastezero filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2024). After considering the parties’ arguments, the record on appeal, and the

applicable law, this 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.

Starting in July 2015, the City of Charleston (“City”) engaged in a trash/recycling

bag voucher program coordinated by Wastezero through a “Voucher Supplies and Services

Agreement” between Wastezero and the City. Through the voucher program, the City

provided certain qualifying residents with vouchers that could be redeemed at participating

retailers (such as Foodmasters) for 32-gallon trash bags or recycling bags. After a retailer

exchanged the vouchers for bags, it would send the vouchers to Wastezero and the retailer’s

account would be credited for the next bag distribution to the retailer. The voucher program

ended in September 2019.

In March 2022, Wastezero filed this action alleging that Foodmasters owed

Wastezero $10,913.42 for a quantity of bags sold to Foodmasters prior to the end of the

voucher program in September 2019. Foodmasters filed a counterclaim asserting that it

1

Wastezero is represented by Clinton W. Smith, Esq. Foodmasters is represented

by Jonathan Nicol, Esq.

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sent 111,432 vouchers to Wastezero during the voucher program, but Wastezero never

reimbursed Foodmasters $36,246.10 for those vouchers.

In May 2023, Foodmasters served requests for admission on Wastezero. Wastezero

failed to respond to the requests for admission, did not ask for an extension, and did not

respond to Foodmasters’ attorney’s multiple status inquiries regarding responses. In

August 2023, Foodmasters filed a motion for summary judgment primarily based on facts

deemed admitted pursuant to Rule 36(a) of the West Virginia Rules of Civil Procedure due

to Wastezero’s failure to respond. By failing to respond, Wastezero admitted that it owed

Foodmasters $39,001.20. In further support of its summary judgment motion, Foodmasters

attached documents and affidavit testimony establishing the number of vouchers sent by

Foodmasters to Wastezero.

Foodmasters’ motion for summary judgment was set for hearing on January 5, 2024.

On January 2, 2024, Wastezero filed a motion for leave to withdraw prior non-responses

to Foodmasters’ requests for admission, responses to the requests for admission and a

response in opposition to Foodmasters’ motion for summary judgment. In its May 29,

2024, order granting summary judgment and denying Wastezero’s motion to withdraw

prior non-responses to the requests for admission, the circuit court found that for a period

of 195 days, Wastezero failed to respond to requests for admission while scheduling order

deadlines ticked away to Foodmasters’ prejudice. The circuit court further found that

Wastezero’s January 2, 2024, filings were untimely and lacked good cause for their

untimeliness. Based on those findings, the circuit court denied Wastezero’s motion to

withdraw its non-responses to the requests for admission. The circuit court also granted

summary judgment on Foodmasters’ counterclaim for $36,246.10, based on Wastezero’s

admissions and on the exhibits attached to Foodmasters’ motion for summary judgment.

Moreover, the circuit court concluded that by conceding that it owed Foodmasters

$39,001.20, Wastezero had effectively conceded its claim that Foodmasters owed

Wastezero $10,913.42.

Wastezero appeals the circuit court’s May 29, 2024, order.

In this appeal, we review the portion of the circuit court's order denying Wastezero’s

motion to withdraw non-responses to requests for admission under the following standard:

The West Virginia Rules of Evidence and the West Virginia Rules of Civil

Procedure allocate significant discretion to the trial court in making

evidentiary and procedural rulings. Thus, rulings on the admissibility of

evidence and the appropriateness of a particular sanction for discovery

violations are committed to the discretion of the trial court. Absent a few

exceptions, this Court will review evidentiary and procedural rulings of the

circuit court under an abuse of discretion standard.

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Syl. Pt. 1, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995). With regard

to the portion of the circuit court's order granting Foodmasters’ motion for summary

judgment, we apply a de novo standard of review. Syl. Pt. 1, Painter v. Peavy, 192 W. Va.

189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of summary judgment is reviewed de

novo.”).

On appeal, Wastezero raises two assignments of error: (1) the circuit court abused

its discretion by denying Wastezero’s motion to withdraw non-responses to requests for

admission; and (2) the circuit court erred by granting summary judgment based solely on

unanswered requests for admission as a sanction against Wastezero where the weight of

the evidence showed that genuine issues of material fact existed for trial.2

In its first assignment of error, Wastezero asserts that the circuit court abused its

discretion in denying its motion to withdraw its prior non-responses to requests for

admission. We disagree. A circuit court has broad discretion when determining whether to

deny a motion as untimely filed. See Firewater Restoration, Inc., v. Maroni, 2023 WL

3719859 *3 (W. Va. May 30, 2023) (memorandum decision) (quoting Baker v. Chemours

Co. FC, LLC, 244 W. Va. 553, 563, 855 S.E.2d 344, 354 (2021) (“[E]nforcement of the

time limits in [a scheduling] order is within the court's broad discretion to control its

docket.”); see also B.F. Specialty Co. v. Charles M. Sledd Co., 197 W. Va. 463, 466, 475

S.E.2d 555, 558 (1996) (“[T]rial courts have the inherent power to manage their judicial

affairs that arise during proceedings in their courts, which includes the right to manage

their trial docket.”). The circuit court denied Wastezero’s motion to withdraw non-

responses to the requests for admission as untimely and Wastezero failed to show good

cause for why it was untimely. The circuit court further noted that the motion to withdraw

non-responses was not filed ten days prior to the January 5, 2024, hearing date, as required

by the circuit court’s scheduling order. Because Wastezero filed its motion to withdraw

non-responses along with its response to Foodmasters’ motion for summary judgment just

three days prior to the hearing, the motion to withdraw non-responses clearly violated the

circuit court’s scheduling order. Therefore, we find that the circuit court did not abuse its

discretion in denying Wastezero’s motion to withdraw non-responses to Foodmasters’

requests for admission.

In its second assignment of error, Wastezero asserts that the circuit court abused its

discretion in granting Foodmasters’ motion for summary judgment, as a discovery

sanction, when genuine conflicts in the evidence existed. We disagree. As an initial matter,

the circuit court did not grant summary judgment as a discovery sanction. Rather, it

correctly found that because the dispositive facts were admitted, there were no genuine

2

In the section of its brief setting out its Assignments of Error, Wastezero lists these

arguments as a single assignment of error. However, as a practical matter in the argument

section of its brief, Wastezero argues these two issues as separate assignments of error.

Accordingly, we will review them as separate issues.

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issues of material fact for trial. Wastezero admitted that it owes Foodmasters $39,001.20.

By obtaining this admission, Foodmasters established it is entitled to a judgment on its

counterclaim. See W. Va. R. Civ. P. 36(b) (1998) (“Any matter admitted under this rule is

conclusively established unless the court on motion permits withdrawal or amendment of

the admission.”). Further, by admitting the amount owed to Foodmasters, the circuit court

concluded that “Wastezero has conceded its case.” See Dingess-Rum Coal Co. v. Lewis,

170 W. Va. 534, 537, 295 S.E.2d 25, 28 (1982). Based on our review of the record, we find

no error.

Accordingly, we affirm the Circuit Court of Kanawha County’s May 29, 2024,

order.

Affirmed.

ISSUED: April 29, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen

Judge S. Ryan White

CONCURRING, IN PART, AND DISSENTING, IN PART:

Judge Daniel W. Greear

Greear, J., concurring, in part, and dissenting, in part:

While I agree with the majority’s reasoning and decision affirming the denial of

Wastezero’s motion to withdraw non-responses to requests for admission and the

associated grant of summary judgment to Foodmasters on its counterclaim, I believe that

the circuit court erred in finding that those admissions also constituted a basis for granting

summary judgment in favor of Foodmasters on the original complaint filed by Wastezero.

Although Wastezero’s failure to respond to Foodmasters’ request for admissions

resulted in the admission of the disputed issues of material fact related to the counterclaim,

the original claim filed by Wastezero was based on separate allegations and evidence. Thus,

it would be possible, based upon the disputed facts at issue, for both parties to prevail on

their respective claims. Accordingly, while the admission of facts (via the deeming

Wastezero’s requests for admissions as admitted), establishes the validity of Foodmasters’

counterclaim, it does not preclude the viability of Wastezero’s original claim. Therefore,

I respectfully dissent from that aspect of the majority’s opinion.

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