“A circuit court’s entry of summary judgment is reviewed de novo.”
How later courts described this case
- “A circuit court’s entry of summary judgment is reviewed de novo.”
- “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
VICTOR SUMMERS,
August 6, 2025
Plaintiff Below, Petitioner
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
v.) No. 24-ICA-385 (Cir. Ct. Roane Cnty. Case No. CC-44-2022-C-31) OF WEST VIRGINIA
EDWARD L. MOORE,
Defendant Below, Respondent
MEMORANDUM DECISION
Petitioner Victor Summers appeals the Circuit Court of Roane County’s August 26,
2024, order, which granted Respondent Edward L. Moore’s motion to dismiss or
alternatively for summary judgment and denied Mr. Summers’ motion in opposition to
Rule 41(b) dismissal. Dr. Moore filed a response.1 Mr. Summers did not file 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 that there is error in the lower tribunal’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 lower tribunal’s decision is affirmed, in part, vacated,
in part, and this case is remanded to the circuit court with instructions to enter an order
consistent with this decision and that the case be dismissed without prejudice.
In May 2020, Dr. Moore purchased ultraviolet germicidal lights for use in his dental
office to help mitigate against the spread of COVID-19. The UV lights were used for
disinfection purposes, but they were not used during patient care. On August 26, 2020, Mr.
Summers presented at Dr. Moore’s dental office for treatment. After he arrived, but before
receiving any dental treatment, Dr. Moore’s staff placed Mr. Summers in a patient room
that contained one of the UV lights. The light’s activation timer was malfunctioning, and
the light turned on while Mr. Summers was waiting in the room. He was exposed to the
ultraviolet light and as a result suffered bilateral conjunctival thermal burns and blistering
on his skin, eyes, and lips.
On July 25, 2022, Mr. Summers’ attorney served Dr. Moore with a notice of claim,
and a screening certificate of merit pursuant to West Virginia Code § 55-7B-6(c) (2022) of
the West Virginia Medical Professional Liability Act (“MPLA”). The screening certificate
1
Mr. Summers is represented by Sam H. Harrold III, Esq. Dr. Moore is represented
by Michael D. Dunham, Esq., and Tyler L. Rittenhouse, Esq.
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of merit set forth alleged deficiencies in Dr. Moore’s use of UV lights and was executed
by Tiffanie Bova, a registered nurse with certifications in nursing, nursing home
administration, and wound care and a background in corporate compliance for healthcare
facilities. Ms. Bova had no education, training, or experience in dentistry and never worked
in a dental office but had experience with “patient safety related to durable medical
equipment.”
On August 16, 2022, Mr. Summers filed the underlying civil action against Dr.
Moore for medical malpractice and negligence. In September 2022, Dr. Moore filed a
motion to dismiss or alternatively for summary judgment on the grounds that Mr. Summers
failed to comply with the MPLA’s pre-suit notice requirements and that Dr. Moore was
entitled to immunity pursuant to the COVID-19 Jobs Protection Act, West Virginia Code
§§ 55-19-1 to 55-19-9 (2021). In November 2022, a hearing on Dr. Moore’s dispositive
motion was held and the circuit court took the matter under advisement.
No further action was taken in the case by the circuit court or the parties and in
February 2024, the circuit court clerk’s office issued a notice of intent to dismiss Mr.
Summers’ action pursuant to Rule 41(b) of the West Virginia Rules of Civil Procedure. In
March 2024, Mr. Summers filed a motion in opposition to Rule 41(b) dismissal and the
circuit court held a status conference. The parties and the circuit court discussed the issues
related to Dr. Moore’s outstanding motion and Mr. Summers’ opposition to Rule 41(b)
dismissal. The circuit court took the outstanding issues under advisement.
In an August 26, 2024, order, the circuit court granted Dr. Moore’s motion to
dismiss or alternatively for summary judgment, finding that Ms. Bova was not qualified to
issue a screening certificate of merit under the MPLA because her “professional
background as a wound care nurse, corporate compliance officer, and nursing supervisor
in long-term care facilities does not qualify her as an expert in dentistry or UV lighting
specific to dental settings.” Given this finding, the circuit court concluded that Mr.
Summers failed to comply with the MPLA’s pre-suit notice requirements and therefore,
the circuit court lacked subject matter jurisdiction. Additionally, the circuit court
determined that Dr. Moore was immune from liability pursuant to the COVID-19 Jobs
Protection Act and denied Mr. Summers’ motion opposing Rule 41(b) dismissal as moot.
This appeal of the circuit court’s August 26, 2024, order followed.
We review the order granting Mr. Summers’ motion to dismiss or alternatively for
summary judgment under a de novo standard. See Syl. Pt. 2, State ex rel. McGraw v. Scott
Runyan Pontiac-Buick, Inc., 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.”); 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.”). Moreover, “[w]hether a circuit court has
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subject-matter jurisdiction is an issue of law reviewed de novo.” Syl. Pt. 2, In re K.A., ___
W. Va. ___, 915 S.E.2d 520 (2025).2
In his first assignment of error, Mr. Summers asserts that the circuit court
erroneously concluded that Ms. Bova was not qualified to execute a screening certificate
of merit related to Mr. Summers’ claims and therefore, Mr. Summers did not comply with
the jurisdictional pre-suit notice requirements of West Virginia Code § 55-7B-6. Mr.
Summers argues that his claims result from the negligent placement and use of a
malfunctioning UV light in a patient treatment area and are not related to the actual dental
care received. Therefore, the circuit court’s focus on Ms. Bova’s lack of experience in the
dental field was erroneous. Mr. Summers contends that Ms. Bova is properly qualified to
execute a screening certificate of merit in the instant case because she is a licensed nurse
who specializes in healthcare compliance and patient safety. Conversely, Dr. Moore asserts
that Ms. Bova, a nurse with no experience in dentistry or with UV lights in a dental setting,
does not meet the statutory criteria required to execute a screening certificate of merit and
that the circuit court did not err.
Under the MPLA, a valid screening certificate of merit must be executed by an
expert witness who “maintains a current license to practice medicine” and who is “engaged
or qualified in a medical field in which the practitioner has experience and/or training in
diagnosing or treating injuries or conditions similar to those of the patient.” See W. Va.
Code § 55-7B-7(a)(5)-(6); see also W. Va. Code § 55-7B-6(b)(2) (expert preparing
screening certificate of merit must meet requirements of §§ 55-7B-7(a)(5 & 6)). In addition,
the expert must show they devote “60 percent of his or her professional time annually to
the active clinical practice in his or her medical field or specialty, or to teaching in his or
her medical field or specialty in an accredited university.” W. Va. Code § 55-7B-6(b)(3).
Here, there is no indication that Ms. Bova meets any of these criteria. Ms. Bova is
not licensed to practice medicine or dentistry, and she has no education, training, or
experience in diagnosing or treating injuries or conditions caused by ultraviolet disinfecting
lights. Also, nothing in the record establishes that Ms. Bova devotes sixty percent of her
“professional time” to active clinical practice in her medical field or to teaching her
specialty at an accredited university. Therefore, we find no error in the circuit court’s
conclusions that: (1) Ms. Bova is not qualified to execute Mr. Summers’ screening
certificate of merit; and (2) as a result, Mr. Summers’ screening certificate of merit does
not comply with the requirements of West Virginia Code § 55-7B-6(b).
2
The circuit court did not specify whether it decided Mr. Edward’s motion as a
motion to dismiss or as a motion for summary judgment. However, because the dispositive
issue in this appeal is the legal issue of subject matter jurisdiction, this distinction does not
impact our analysis.
3
It is well settled that the pre-suit notice requirements of the MPLA “are
jurisdictional, and failure to provide such notice deprives a circuit court of subject matter
jurisdiction.” Syl. Pt. 2, in part, State ex rel. PrimeCare Med. of W. Va. v. Faircloth, 242
W. Va. 335, 835 S.E.2d 579 (2019). Moreover, the Supreme Court of Appeals of West
Virginia (“SCAWV”) has held that a court “has no authority to suspend the West Virginia
Medical Professional Liability Act’s pre-suit notice requirements ... To do so would
amount to a judicial repeal of” the MPLA. Syl. Pt. 5, PrimeCare, 242 W. Va. at 337, 835
S.E.2d at 581. Accordingly, we find no error in the circuit court’s conclusion that dismissal
of the underlying case for lack of jurisdiction was appropriate.
However, after determining that it lacked subject matter jurisdiction, the circuit
court should have taken “no further action in the case other than to dismiss it from the
docket.” Syl. Pt. 1, in part, Hinkle v. Bauer Lumber & Home Bldg. Ctr., Inc., 158 W. Va.
492, 211 S.E.2d 705 (1975). Instead, the circuit court made additional rulings, including a
determination that Dr. Moore was immune from suit under the COVID-19 Jobs Protection
Act. Once the circuit court determined that it did not have jurisdiction over this matter, its
consideration of Dr. Moore’s immunity under the COVID-19 Jobs Protection Act was
improper.3
Although we find that dismissal for lack of subject matter jurisdiction was
appropriate, we must also examine whether a dismissal with prejudice was warranted in
these circumstances. Rule 41 of the West Virginia Rules of Civil Procedure governs
involuntary dismissals and provides that:
For failure of the plaintiff to prosecute or to comply with these rules or any
order of court, a defendant may move for dismissal of an action or of any
claim against the defendant. Unless the court in its order for dismissal
otherwise specifies, a dismissal under this subdivision and any dismissal not
provided for in this rule, other than a dismissal for lack of jurisdiction or for
improper venue, operates as an adjudication upon the merits.
W. Va. R. Civ. P. 41(b) (1998) (emphasis added).4
3
Mr. Summers asserts in his second assignment of error that Dr. Moore was not
immune from liability under the COVID-19 Jobs Protection Act. Based on our
determination that the circuit court lacked subject matter jurisdiction and should not have
considered the issue of immunity, we decline to address the assignment of error on appeal.
4
The circuit court’s proceedings were governed by the version of Rule 41 adopted
by the SCAWV in 1998. While the SCAWV adopted amendments to the rules, effective
January 1, 2025, no changes were made that affect this appeal.
4
Consequently, a dismissal for lack of jurisdiction is not an “adjudication on the
merits” and is ordinarily a dismissal without prejudice. See Tanner v. Raybuck, 246 W. Va.
361, 368, 873 S.E.2d 892, 899 (2022). Although the SCAWV has declined to hold that
dismissal with prejudice is never proper when a plaintiff fails to comply with the MPLA's
pre-suit notice requirements, our jurisprudence favors dismissal without prejudice in such
cases. Id. at 369, 873 S.E.2d at 900 (citing Pendleton v. Wexford Health Sources, Inc., No.
15-0014, 2015 WL 8232155 (W. Va. Dec. 7, 2015) (memorandum decision)); Davis v.
Mound View Health Care, Inc., 220 W. Va. 28, 32, 640 S.E.2d 91, 95 (2006).
It is evident from our review of the order on appeal that the circuit court's decision
to dismiss with prejudice was influenced by its improper consideration of Dr. Moore’s
immunity under the COVID-19 Jobs Protection Act. Under these circumstances and given
the SCAWV’s preference for dismissing without prejudice in cases involving MPLA pre-
suit notice requirements, we find that the circuit court's dismissal should have been without
prejudice.
Lastly, Mr. Summers argues that the circuit court improperly denied his motion in
opposition to Rule 41(b) dismissal as moot. Based on our determinations that the circuit
court lacked subject matter jurisdiction, and that the case should be dismissed without
prejudice, we find no error in the circuit court determining that the motion is moot.
For the foregoing reasons, we affirm the circuit court's August 26, 2024, order to
the extent that it dismisses Mr. Summers’ civil action and to the extent that it denies Mr.
Summers’ motion in opposition to Rule 41(b) dismissal. We vacate the circuit court's order
to the extent that dismissal of the case is with prejudice and to the extent that Dr. Moore’s
immunity under the COVID-19 Jobs Protection Act was addressed. The case is remanded
to the circuit court with instructions to enter an order consistent with this decision and that
the case be dismissed without prejudice.
Affirmed, in part, Vacated, in part, and Remanded.
ISSUED: August 6, 2025
CONCURRED IN BY:
Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White
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