The opinion
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Billy Shaffer,
FILED
Plaintiff Below, Petitioner November 6, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 14-0954 (Kanawha County 11-C-1368) OF WEST VIRGINIA
City of South Charleston, a West Virginia municipal
corporation, Pat C. Rader, employee of the City of
South Charleston, Robert Yeager, employee of the
City of South Charleston, Dow Chemical Corporation,
a foreign corporation authorized to do business in
West Virginia, Mary Byrd, a Dow Chemical employee,
Jim Jones, II, a Dow Chemical employee, Jeff Means,
a Dow Chemical employee, and Cliff Samples, a Dow
Chemical employee,
Defendants Below, Respondents
MEMORANDUM DECISION
Petitioner Billy Shaffer, by counsel William B. Summers, appeals the final judgment
order of the Circuit Court of Kanawha County, entered on August 15, 2014. Respondents City of
South Charleston, Pat C. Rader, and Robert Yeager (“the City of South Charleston respondents”)
appear by counsel Molly Underwood Poe. Respondents The Dow Chemical Company, Mary
Byrd, Jim Jones II, Jeff Means, and Cliff Samples (“the Dow respondents”) appear by counsel
Gary W. Hart and Jennelle D. Arthur. The circuit court’s final judgment order was entered upon
the grant of the Dow respondents’ motion to dismiss and the grant of the City of South
Charleston respondents’ motion to dismiss or, in the alternative, motion for summary judgment.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Petitioner, a former employee of Dow Chemical Company, filed a complaint in the
Circuit Court of Kanawha County on August 16, 2011, naming the City of South Charleston
respondents as defendants and asserting causes of action for conversion, trespass, and the tort of
outrage, based on allegations that South Charleston Police Officers Rader and Yeager executed
an illegal search warrant that resulted in the officers’ taking of petitioner’s personal property. On
April 4, 2013, petitioner filed an amended complaint, adding the Dow respondents as defendants
and asserting that the Dow Chemical Company employees directed the officers concerning the
1
property to be seized. The amended complaint added wrongful termination1 and federal civil
rights violations2 as causes of action. Respondents subsequently removed the case to the federal
district court in the Southern District of West Virginia, wherein Respondent Dow Chemical
Company filed a motion to dismiss, and the parties conducted discovery. The federal court
subsequently dismissed the civil rights claim and remanded the case to the state circuit court.
Discovery revealed that Respondent Samples, a Dow Chemical Company manager,
reported to South Charleston officers in August of 2009, that more than $11,000 worth of
equipment, including industrial-style fencing and barbed wire, had been stolen from Dow
Chemical Company in June and July of that same year. Respondent Samples told police that he
drove by petitioner’s residence and saw Dow Chemical Company property there, and that he
took pictures of that property. Respondent Rader then obtained a warrant and searched the
property. Petitioner was not home at the time of the search, and some property was seized from
the residence. At the direction of Respondent Yeager, this property was released to Respondent
Byrd on behalf of Dow Chemical Company.3 Petitioner’s civil action seeks return of the property
taken from his residence.4
Upon the federal court’s remand to the state circuit court, the Dow respondents filed their
motion to dismiss, arguing that the claims against them were barred by the statute of limitations.
In addition, the City of South Charleston respondents filed a motion to dismiss or, in the
1
Petitioner offers little explanation of the basis for his claim, except to state that he “was
forced into early retirement” by Respondent Dow Chemical Company. We have held that
constructive discharge can only occur where an employer has created a hostile work environment
based upon a protected status or other unlawful discrimination: “A constructive discharge cause
of action arises when the employee claims that because of age, race, sexual, or other unlawful
discrimination, the employer has created a hostile working climate which was so intolerable that
the employee was forced to leave his or her employment.” Syl. Pt. 4, Slack v. Kanawha Cnty.
Housing & Redevelopment Auth., 188 W.Va. 144, 423 S.E.2d 547 (1992).
2
See 42 U.S.C. § 1983.
3
Petitioner was arrested on August 19, 2009, and indicted for grand larceny and
embezzlement in the following May term of court. These charges were later dismissed.
4
The circuit court observed that West Virginia Code § 62-1A-6 sets forth the procedure
by which a party should seek return of unlawfully-seized property. See Syl. Pt. 4, State ex rel.
White v. Melton, 166 W.Va. 249, 273 S.E.2d 81 (1980). The court further noted that petitioner
did not petition for the property’s return in accordance with that statute, and that neither the
circuit court nor the magistrate court had directed preservation of the property pursuant to West
Virginia Code § 62-1A-7, which provides:
Property taken pursuant to the warrant shall be preserved as directed by
the court or magistrate for use as evidence and thereafter shall be returned,
destroyed, or otherwise disposed of as the court or magistrate may direct.
2
alternative, motion for summary judgment. The circuit court entered two orders on August 15,
2014, one granting the Dow respondents’ motion to dismiss, and one granting summary
judgment to the City of South Charleston respondents. This appeal followed.
On appeal, petitioner asserts two assignments of error. First, he argues that the circuit
court erred in granting the City of South Charleston respondents’ motion to dismiss or, in the
alternative, for summary judgment on the ground that negligence had not been alleged in the
complaint. He contends that he did, in fact, allege negligence. Second, he argues that the circuit
court erred in granting the Dow respondents’ motion to dismiss on the ground that the statute of
limitations had expired because his amended complaint “related back” to the filing of the original
complaint. We have held that “[a]ppellate review of a circuit court’s order granting a motion to
dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick,
Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). We also have held that “[a] circuit court’s entry of
summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451
S.E.2d 755 (1994). We review petitioner’s respective assignments of error in accordance with
this standard.
We begin with petitioner’s first assignment of error, in which he attacks the circuit
court’s finding that the City of South Charleston respondents were immune from liability and
argues that the circuit court wrongly found that he failed to assert a claim of negligence. The
court’s finding is pertinent to the issues before us because, subject to the qualifications set forth
in West Virginia Code §§ 29-12A-5 and 6, as further discussed below, “[p]olitical subdivisions
are liable for injury, death, or loss to persons or property caused by the negligent performance of
acts by their employees while acting within the scope of employment.” Id. § 29-12A-4(c)(2).
Petitioner was granted leave by the circuit court in March of 2013, to add a cause of action for
negligence (as well as to add the Dow respondents as defendants) to his complaint, but when he
filed his amended complaint the following month, no specific negligence claim was included.
Nevertheless, petitioner did assert in his factual statement that the City of South Charleston
respondents “were individually and collectively negligent in this action[] due to the reckless
disregard for the manner in which the [s]earch [w]arrant was executed and the taking of
[petitioner’s] property.”
As the circuit court explained, however, Respondent City of South Charleston was
immune from liability in this case because its employees were engaged in the “[e]xecution or
enforcement of the lawful orders of any court” when performing their duties related to the search
warrant. See W.Va. Code § 29-12A-5(a)(3). This Court has clearly articulated that
a political subdivision is immune from liability if a loss or claim results from the
execution or enforcement of the lawful orders of any court regardless of whether
such loss or claim is caused by the negligent performance of acts by the political
subdivision’s employees while acting within the scope of employment.
Syl. Pt. 5, in part, Mallamo v. Town of Rivesville, 197 W.Va. 616, 617, 477 S.E.2d 525, 526
(1996). Petitioner did not assign as error—nor do we perceive error regarding the same—in the
circuit court’s determination that “[t]he search warrant in this case was clearly lawful at the time
it was executed.” Petitioner’s having pled or having failed to plead negligence is therefore
3
irrelevant. Because Respondents Rader and Yeager were executing a lawful order of the
magistrate court, Respondent City of South Charleston is immune. Furthermore, because
petitioner has not assigned as error the circuit court’s determination that Respondents Rader and
Yeager enjoyed qualified immunity in the performance of their duties, we will not disturb the
circuit court’s order on that ground.5
We turn, now, to petitioner’s second assignment of error, in which he argues that his
claims against the Dow respondents were not barred because his amended complaint “related
back” to the initial filing of his complaint. It is undisputed that the claims asserted against the
Dow respondents by petitioner were subject to a two-year statute of limitations pursuant to West
Virginia Code § 55-2-126, and that petitioner filed his amended complaint approximately three
5
In syllabus point three of Clark v. Dunn, 195 W.Va. 272, 273, 465 S.E.2d 374, 375
(1995), a case in which we were called upon to determine whether a conservation officer
employed by the West Virginia Department of Natural Resources was entitled to qualified
immunity, we explained that
‘[a] public executive official who is acting within the scope of his authority and is
not covered by the provisions of W.Va. Code, 29-12A-1, et seq. [the West Virginia
Governmental Tort Claims and Insurance Reform Act], is entitled to qualified
immunity from personal liability for official acts if the involved conduct did not
violate clearly established laws of which a reasonable official would have known.
There is no immunity for an executive official whose acts are fraudulent,
malicious, or otherwise oppressive. To the extent that State ex rel. Boone National
Bank of Madison v. Manns, 126 W.Va. 643, 29 S.E.2d 621 (1944), is contrary, it
is overruled.’ Syllabus, State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d
591 (1992).
(Emphasis supplied.) Here, we are compelled to clarify that Respondents Rader and Yeager, as
employees of Respondent City of South Charleston, enjoy statutory immunity unless (1) their
actions were manifestly outside the scope of employment or official responsibilities; (2) their
actions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or (3)
liability is expressly imposed by a provision of the West Virginia Code. W.Va. Code § 29-12A
5(b). There is no evidence before the court that any of these scenarios apply to respondents’
actions. Indeed, the circuit court explained, “The fact that a neutral magistrate has issued a
warrant is the clearest indication that the officers acted in an objectively reasonable manner in
performing their investigation.” According to the provisions of the West Virginia Governmental
Tort Claims and Insurance Reform Act, respondent officers are immune from liability in this
case.
6
This section provides:
Every personal action for which no limitation is otherwise prescribed shall be
brought: (a) Within two years next after the right to bring the same shall have
accrued, if it be for damage to property; (b) within two years next after the right to
(continued . . .)
4
years and nine months after the events giving rise to his causes of action. However, petitioner
urged the circuit court—as he now urges this Court—to find that the addition of the Dow
respondents as defendants comported with the applicable statute of limitations, according to Rule
15(c) of the West Virginia Rules of Civil Procedure:
Relation back of amendments.—An amendment of a pleading relates back to the
date of the original pleading when:
(1) relation back is permitted by the law that provides the statute of limitations
applicable to the action; or
(2) the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the
original pleading; or
(3) the amendment changes the party or the naming of the party against whom a
claim is asserted if the foregoing paragraph (2) is satisfied and, within the period
provided by Rule 4(k) for service of the summons and complaint, the party to be
brought in by amendment (A) has received such notice of the institution of the
action that the party will not be prejudiced in maintaining a defense on the merits,
and (B) knew or should have known that, but for a mistake concerning the
identity of the proper party, the action would have brought against the party.
(Emphasis supplied). We have explained that the effect of this rule is that
an amendment to a complaint changing a defendant or the naming of a defendant
will relate back to the date the plaintiff filed the original complaint if: (1) the
claim asserted in the amended complaint arose out of the same conduct,
transaction, or occurrence as that asserted in the original complaint; (2) the
defendant named in the amended complaint received notice of the filing of the
original complaint and is not prejudiced in maintaining a defense by the delay in
being named; (3) the defendant either knew or should have known that he or she
would have been named in the original complaint had it not been for a mistake;
and (4) notice of the action, and knowledge or potential knowledge of the
mistake, was received by the defendant within the period prescribed for
commencing an action and service of process of the original complaint.
Syl. Pt. 4, Brooks v. Isinghood, 213 W.Va. 675, 678-79, 584 S.E.2d 531, 534-35 (2003). The
notice required by the rule may be formal or informal. Syl. Pt. 6, id. at 679, 584 S.E.2d at 535.
bring the same shall have accrued if it be for damages for personal injuries; and
(c) within one year next after the right to bring the same shall have accrued if it be
for any other matter of such nature that, in case a party die, it could not have been
brought at common law by or against his personal representative.
5
The circuit court found that there was no relation to the original complaint under this rule
because there was no evidence that the Dow respondents had notice, as described in Rule
15(c)(3)(A) above, that an action had been filed. The circuit court further noted that petitioner
did not even allege that there was a mistake, as described in Rule 15(c)(3)(B) above, concerning
the identity of the Dow respondents. On appeal, petitioner argues that “the Dow [respondents]
had ample notice of these proceedings as potential defendants and witnesses and key players in
the events during the initial lawsuit and discovery process” and it is thus “impossible for the
Dow [respondents] to claim that they had no notice of these proceedings.” In support of this
argument, petitioner avers that there were “numerous instances”—such as a moment at an
October 9, 2012, hearing7 when petitioner’s counsel sought leave to amend the complaint to add
the Dow respondents8—evincing informal notice of the civil action.
Like the circuit court, we are unpersuaded that petitioner offered evidence of notice,
either formal or informal. Neither petitioner’s assertions that the Dow respondents were
mentioned during litigation nor petitioner’s characterization of their status “as potential
defendants and witnesses and key players” imputes notice within the period provided by Rule
4(k) for service of the summons and complaint.9 Moreover, petitioner does not address the circuit
7
We emphasize that this hearing occurred well over two years after the events upon
which petitioner bases his complaint.
8
Petitioner’s citation to the appendix record on appeal to support this point leads to the
cover page for the hearing on a motion to dismiss for failure to state a claim upon which relief
could be granted, filed by the City of South Charleston respondents. On the sixteenth page of that
transcript (which is not the page that petitioner cited in support of his statement) appears
petitioner’s counsel’s declaration, “[O]ne of the things I intended to do today is to move [Dow
Chemical Corporation] as a party.” There is no indication that any representative of the Dow
respondents was present at that hearing. Counsel made no motion to amend the complaint at that
time.
We take this opportunity to remind petitioner’s counsel that a party’s “argument must
contain appropriate and specific citations to the record on appeal, including citations that
pinpoint when and how the issues in the assignments of error were presented to the lower
tribunal. The Court may disregard errors that are not adequately supported by specific references
to the record on appeal.” See Rule 10(c)(7)West Virginia Rules of Appellate Procedure
(emphasis supplied). A citation to the front page of a transcript, necessarily converting the Court
to truffle hunters if any useful information is to be harvested, is insufficient for the purposes of
this rule. See State, Dep’t of Health & Human Res., Child Advocate Office on Behalf of Robert
Michael B. v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995) quoting United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991).
9
We agree with the Dow respondents that petitioner appears to confuse notice of the
incident giving rise to the claims with notice of the initiation of the action. Petitioner suggests
that counsel for the City of South Charleston respondents contacted counsel for the Dow
(continued . . .)
6
court’s finding that he “failed to even allege that there was a mistake concerning the identity of
the Dow [respondents].” Brooks requires not only that a potential defendant knew or should have
known that he would have been named in the original complaint had it not been for a mistake,
but furthermore requires that the defendant had knowledge or potential knowledge of the mistake
itself within the period prescribed for commencing an action and service of process of the
original complaint. Syl. Pt. 4, Brooks, 213 W.Va. at 678-79, 584 S.E.2d at 534-35. There is no
evidence that mistake, either factual or legal, prevented petitioner’s naming of the Dow
respondents in the original complaint. The amended complaint, then, does not “relate back” to
the original complaint for the purposes of adding the Dow respondents.10
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: November 6, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
respondents on some unspecified date, and informed counsel that “Dow Chemical was going to
be added to the civil action.” This suggestion is made without any citation to the appendix record
on appeal.
10
With little discussion, petitioner suggests that the statute of limitations did not begin to
run until the criminal charges against him were dismissed. There is no evidence that the outcome
of the criminal proceedings would have affected petitioner’s litigation of his civil claims, which
concerned different issues decided under different burdens of proof.
7