Justin Gibson v. Shentel Cable and Robert Herrald

Full text

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Justin Gibson,

Plaintiff Below, Petitioner FILED February 11, 2013 vs) No. 12-0132 (Fayette County 11-C-45) RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Shentel Cable Company and Robert Herrald, Petitioners Below, Respondents

MEMORANDUM DECISION

Petitioner Justin Gibson, by counsel Scott W. Anderson, appeals the January 3, 2012, order of the Circuit Court of Fayette County granting respondents’ motion to dismiss. Respondents Shentel Cable Co.1 and Robert Herrald, by counsel Brian J. Moore and Ashley C. Pack, have filed a response, to which petitioner has filed a reply.

The 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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner previously worked for Respondent Shentel Cable Co. and alleges that he was injured during the course of his employment on June 26, 2009. Thereafter, petitioner was terminated from his position and filed a complaint in the circuit court alleging the following causes of action: deliberate intent; negligence; violation of the West Virginia Human Rights Act; intention infliction of emotional distress; and, retaliatory discharge. On September 23, 2011, petitioner filed an amended complaint after the circuit court granted his motion for leave to file the amended complaint. Respondents thereafter filed a motion to dismiss the first amended complaint and a hearing on the motion was held on December 15, 2011, during which petitioner orally moved for leave to again amend the complaint. The circuit court denied petitioner’s motion to amend and granted respondents’ motion to dismiss.

On appeal, petitioner raises six assignments of error. Five of the assignments of error are related to the circuit court’s dismissal of petitioner’s variously pled causes of action and together allege error by the circuit court in granting respondents’ motion to dismiss. In support of the assignment of error related to the motion to dismiss, petitioner argues that the amended complaint stated the elements of each of his claims and contained sufficient facts to support those claims in accordance with the notice pleading requirement of Rule 8(a) of the West Virginia Rules of Civil Procedure. Petitioner also alleges error by the circuit court in denying 1 Respondent indicates that effective April 1, 2012, Shentel Cable Co. is now known as Shentel Cable, LLC. 1

him leave to file a second amended complaint, arguing that such leave is to be freely given when justice requires. In response, respondents argue that the circuit court was correct in granting the motion to dismiss because petitioner failed to plead facts related to the various claims. Further, respondents argue that the circuit court correctly denied petitioner’s request for leave to file a second amended complaint because the motion was untimely.

This Court has previously 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, 194 W.Va. 770, 461 S.E.2d 516 (1995).” Syl. Pt. 1, Posey v. City of Buckhannon, 228 W.Va. 612, 723 S.E.2d 842 (2012). Upon our review, the Court concludes that the circuit court did not err in either granting respondents’ motion to dismiss or in denying petitioner leave to amend the complaint. We have previously held that

“[a] trial court is vested with a sound discretion in granting or refusing leave to amend pleadings in civil actions. Leave to amend should be freely given when justice so requires, but the action of a trial court in refusing to grant leave to amend a pleading will not be regarded as reversible error in the absence of a showing of an abuse of the trial court’s discretion in ruling upon a motion for leave to amend.” Syllabus Point 6, Perdue v. S.J. Groves and Sons Company, 152 W.Va. 222, 161 S.E.2d 250 (1968).

Hawkins v. Ford Motor Co., 211 W.Va. 487, 490, 566 S.E.2d 624, 627 (2002). A review of the record shows that the circuit court did not abuse its discretion in denying petitioner’s motion for leave to amend. Further, having reviewed the circuit court’s “Order Granting Defendants’ Motion To Dismiss” entered on January 3, 2012, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

For the foregoing reasons, we find no error in the decision of the circuit court and its January 3, 2012, order granting respondents’ motion to dismiss is affirmed.

Affirmed. ISSUED: February 11, 2013 CONCURRED IN BY:

Chief Justice Brent D. Benjamin Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II

2