STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Judy Kay Miskell, FILED
Plaintiff Below, Petitioner May 31, 2019
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
vs) No. 17-0836 (Pendleton County 17-C-14)
OF WEST VIRGINIA
Jerry Moore, Attorney for the
Hinkle Corporation;
Defendant Below, Respondent
MEMORANDUM DECISION
Petitioner Judy Kay Miskell, pro se, appeals the August 29, 2017, order of the Circuit Court
of Pendleton County granting Respondent Jerry Moore’s motion to be dismissed as a co-defendant
in petitioner’s civil action against respondent’s client, Hinkle Trucking, Inc. (“Hinkle”). 1
Respondent, by counsel Jared T. Moore, filed a summary response.
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 affirming the circuit court’s orders is appropriate under Rule 21 of the
Rules of Appellate Procedure.
According to petitioner, on August 2, 2015, a truck driven by a Hinkle employee sprayed
lime on her vehicle as she was traveling behind the truck on Route 33 in Riverton, West Virginia.
Petitioner alleges that the lime caused her health problems. On July 18, 2017, petitioner filed a
civil action against Hinkle in the Circuit Court of Pendleton County seeking $500,000 in damages.
In addition to Hinkle, petitioner named respondent—Hinkle’s attorney—and Hinkle’s insurer and
its adjusters as co-defendants. Petitioner alleges that Hinkle and its various agents intentionally
hindered her ability to file her civil action within the applicable two-year statute of limitations.2
1
Respondent states that petitioner mistakenly identified his client as “the Hinkle
Corporation” in her complaint.
2
West Virginia Code § 55-2-12(b) provides, in pertinent part, that “[e]very personal
1
With regard to respondent, petitioner alleges that Hinkle informed her to “contact [its] attorney,
[respondent,] who refuse[d] to receive phone calls and it is suspected that he advised his clients to
not respond to any phone calls or inquiries after initial contact of the accident, possibly to run out
the [s]tatute of [l]imitations.”
On July 25, 2017, respondent filed a motion to be dismissed as a co-defendant, arguing that
he enjoyed absolute immunity from petitioner’s action pursuant to the litigation privilege. In
response, petitioner filed a motion for an evidentiary hearing on July 30, 2017. The circuit court
held a hearing on respondent’s motion on August 22, 2017, at which it heard arguments from the
parties. The circuit court asked petitioner whether her only allegations against respondent were
that he refused her phone calls and advised Hinkle “to run out the statute [of limitations.]”
Petitioner answered in the affirmative. By order entered August 29, 2017, the circuit court
dismissed respondent as a co-defendant with prejudice, finding:
16. In this case, each and every allegation against [respondent] is based upon
his representation of [Hinkle] as legal counsel. It is not alleged that [respondent]
took any type of action outside of the litigation process. In particular, [petitioner]
avers that [respondent] merely refused to receive her telephone calls and advised
his clients to avoid communications with [petitioner].
17. The [c]ourt finds that [petitioner’s] [c]omplaint against [respondent] is
absolutely barred under the litigation privilege, which insulates legal counsel from
civil liability arising out of their actions during the course of litigation.
Petitioner now appeals the circuit court’s August 29, 2017, order dismissing respondent as
a co-defendant in her civil action.3 Rule 12(b)(6) of the West Virginia Rules of Civil Procedure
action for which no limitation is otherwise prescribed shall be brought: . . . (b) within two years
next after the right to bring the same shall have accrued if it be for damages for personal
injuries[.]”
3
We note that this Court’s “jurisdiction normally does not encompass appeals from the
denial or granting of a motion to dismiss where there are remaining issues to be litigated.” State
ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 775, 461 S.E.2d 516, 521
(1995). The order at issue here dismisses all claims against respondent only, leaving claims
pending against the other defendants; however, it does not include certification under Rule 54(b)
of the West Virginia Rules of Civil Procedure that “there is no just reason for delay” not to enter
final judgment as to the dismissed defendant. Nonetheless,
[t]he key to determining if an order is final is not whether the
language from Rule 54(b) . . . is included in the order, but is whether
the order approximates a final order in its nature and effect. We
extend application of this rule to a motion to dismiss under Rule
12(b)(6) of the West Virginia Rules of Civil Procedure.
2
provides, in pertinent part, that a defendant may move to dismiss an action for “. . . (6) [a] failure
to state a claim upon which relief can be granted.” In syllabus points one and two of Roth v.
DeFeliceCare, Inc., 226 W.Va. 214, 700 S.E.2d 183 (2010), we held:
1. “Appellate 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).
2. “The 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).
On appeal, petitioner argues that the circuit court should have provided an opportunity to
prove her claims that respondent refused her phone calls and advised Hinkle “to run out the
[s]tatute of [l]imitations.” Respondent counters that a court may properly grant a motion to dismiss
“where the claim is not authorized by the laws of West Virginia.” McGraw, 194 W.Va. at 776, 461
S.E.2d at 522. See Camden-Clark Mem. Hosp. Corp. v. Tuan Nguyen, 240 W.Va. 76, 79 n.8, 807
S.E.2d 747, 750 n.8 (2017) (finding that a motion to dismiss tests the legal sufficiency of a
complaint). We agree with respondent and find that petitioner confirmed to the circuit court that
her only allegations against respondent were that he refused her phone calls and advised Hinkle to
run out the statute of limitations. Given that the nature of petitioner’s allegation related to
respondent’s representation of Hinkle regarding a prospective judicial action, the circuit court
found that petitioner’s claim was not legally cognizable because of the litigation privilege.
In syllabus point three of Clark v. Druckman, 218 W.Va. 427, 624 S.E.2d 864 (2005), we
held that “[t]he litigation privilege is generally applicable to bar a civil litigant’s claim for civil
damages against an opposing party’s attorney if the alleged act of the attorney occurs in the course
of the attorney’s representation of an opposing party and is conduct related to the civil action.” See
Syl. Pt. 2, Collins v. Red Roof Inns, Inc., 211 W.Va. 458, 566 S.E.2d 595 (2002) (holding that the
litigation privilege bars a defamation action when the subject statement is made where “the
prospective judicial action . . . is under serious consideration”). Here, it is undisputed that petitioner
was seriously considering a suit against respondent’s client given petitioner’s allegation that
Hinkle and its various agents acted to prevent her from filing suit within the applicable statute of
limitations. Petitioner further alleges that those actions were undertaken on advice from
Syl. Pt. 1, 194 W. Va. at 773, 461 S.E.2d at 519. Here, because the circuit court found that
respondent enjoyed absolute immunity from petitioner’s action, we find that the order is final in
its nature and effect and that the matter is, therefore, properly before this Court on appeal. See
Nat’l Union Fire Ins. Co. v. Miller, 228 W. Va. 739, 746-47, 724 S.E.2d 343, 350-51 (2012)
(finding that an appeal was proper given that the circuit court’s order was final in its nature and
effect).
3
respondent. Therefore, upon our review of the record, we concur with the circuit court’s finding
that “each and every allegation against [respondent] is based upon his representation of [Hinkle]
as legal counsel.” Accordingly, we conclude that the circuit court did not err in granting
respondent’s motion to dismiss as he enjoys absolute immunity from petitioner’s action pursuant
to the litigation privilege.4
For the foregoing reasons, we affirm the circuit court’s August 29, 2017, order dismissing
respondent as a co-defendant with prejudice from petitioner’s civil action against respondent’s
client.
Affirmed.
ISSUED: May 31, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
4
In Clark, we described the litigation privilege as an absolute privilege in those situations
where it applies. 218 W.Va. at 433-34, 624 S.E.2d at 870-71; see Collins, 211 W.Va. at 461, 566
S.E.2d at 598 (stating that “an absolute privilege removes all possibility of remedy for [an alleged]
wrong”).
4
Judy Kay Miskell v. Jerry Moore
Combined Opinion