STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Robert Lee Mattingly, Jr.,
Plaintiff Below, Petitioner, FILED
May 11, 2020
vs.) No. 19-0055 (Ritchie County 18-C-2) released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
Robert Moss, OF WEST VIRGINIA
Defendant Below, Respondent.
MEMORANDUM DECISION
Petitioner Robert Lee Mattingly, Jr., by counsel Joseph H. Kozlowski, James L. Lindsay
and Jennifer N. Taylor, appeals the December 6, 2018 order of the Circuit Court of Ritchie County,
West Virginia, granting summary judgment to Respondent. Respondent Robert Moss, by counsel
John M. Butler, filed a response in support of the circuit court’s order. Petitioner filed a reply. On
appeal, petitioner argues that the circuit court erred in granting respondent’s motion for summary
judgment because it misapplied the doctrine of res judicata and failed to recognize that equity
demands petitioner be given his day in court.
The Court has considered the parties’ briefs, the appendix record, and the applicable law.
The facts and legal arguments are adequately presented, and the parties’ have agreed that the
decisional process would not be significantly aided by oral argument. 1 Upon consideration of the
standard of review, the briefs, and the record presented, 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 West Virginia Rules of Appellate Procedure.
Petitioner lives in Pleasants County and rents out a house that is also located on the same
property where he resides. Respondent also lives in Pleasants County, and is a well-tender, who
maintained the gas wells that were located on petitioner’s property. Petitioner and respondent
became acquainted and often visited when respondent passed through petitioner’s property while
working.
1
This matter was originally scheduled for oral argument on March 25, 2020, but was
continued generally due to an Administrative Order entered by the Court on March 22, 2020,
declaring a judicial emergency through April 10, 2020, due to the COVID-19 virus. By letter
dated March 25, 2020, the parties were given the opportunity to submit their case on briefs, without
oral argument. Both parties agreed to proceed with having the Court decide the matter on the
briefs.
1
In July 2015, respondent was visiting with petitioner at his home when law enforcement
authorities arrived and placed petitioner under arrest. 2 Petitioner asked respondent, and respondent
agreed, to take care of petitioner’s property, his rental property and his dog until he was released
from jail.
Petitioner was incarcerated from July, 2015, until January, 2017, even though he had
initially thought his incarceration was going to be brief. When he realized it wasn’t, respondent
visited petitioner at the North Central Regional Jail and agreed to continue to take care of
petitioner’s dog and property. Petitioner said as part of that agreement, he signed eight blank
checks from his two bank accounts and gave them to respondent. Thereafter, on October 21, 2015,
petitioner executed a hand-written document (“Power of Attorney”) appointing respondent his
“power of attorney in all [petitioner’s] personal and business” matters while petitioner was
incarcerated. Petitioner signed the Power of Attorney and it was notarized. The Power of Attorney
also specifically provided for respondent to address any issues that arose at petitioner’s rental
property, including collecting rent, and “speaking with the courts in preparation for an eviction
notice to the tenanet [sic] on my notification.”
According to respondent, while petitioner was incarcerated, respondent paid bills for
petitioner; collected petitioner’s mail and took it to him; cared for petitioner’s dog, house, rental
property, and vehicle; and managed any issues with a tenant on petitioner’s property, which
included filing a civil eviction and obtaining judgment for damages to the rental property in the
amount of $5,000. Respondent stated that he handled all of the expenses associated with these
activities by utilizing the checks signed by petitioner, and spent approximately $23,000 for the
total care of petitioner’s assets and debts for the eighteen months petitioner was jailed. Respondent
stated that he turned over all remaining funds and supporting documents to petitioner upon
petitioner’s release from jail in January, 2017.
Conversely, petitioner claimed that upon his return home from jail he discovered that
respondent had withdrawn over $23,000 from his two bank accounts. Petitioner claims respondent
“swindle[d]” the money from him.
On March 1, 2017, petitioner, acting pro se, filed an action in the Magistrate Court of
Pleasants County, case number 17-M37C-00032 (hereinafter “Case No. 1”). In the complaint,
petitioner averred that respondent withdrew funds in the amount of $16,400, using the Power of
Attorney that petitioner provided to him. Petitioner claimed that the funds were misused, and that
respondent “did very[,]very little, and still let my home and a [sic] aparment 3 [sic] go into ruins
[sic][.] But yet he had plenty of time too [sic] withdraw $16,400.00 from my bank account. . . .”
Petitioner further averred that respondent “even cash[ed] two checks 1368 & 1369 the same day
2
Petitioner stated that he was arrested for driving on a suspended license; respondent stated
that petitioner was arrested for violating home confinement for an alcohol-related conviction. It
is unclear from the record exactly what criminal conduct prompted petitioner’s arrest, and the
resolution of this factual issue is not relevant to any issue raised in this appeal.
3
The complaint in Case No. 1 also referred to a “rental house.”
2
for $9,000.00[,] surly [sic] not for my selfe [sic][,] dog, house or apparment [sic], in any way.”
Petitioner expressly “waive[d] . . . [his] rights to anything over 10,000.00.”
Also on March 3, 2017, petitioner, again acting pro se, filed a second complaint in the
Magistrate Court of Pleasants County, case number 17-M37C-00033 (hereinafter “Case No. 2”).
In this complaint, petitioner alleged: “[T]his civil matter is like case 1 in this case Mr. Moss with
draw [sic] $7,200.00 under the same circumstances, I feel this is extorson [sic][.] I am asking for
$7,200.00 in this suit plus cost[s] this is out of checking acct Community Bank.” 4
Respondent, by counsel, filed an answer in Case No. 1 and a Motion to Dismiss in Case
No. 2. In his answer, respondent stated that “[a]ll records relating to the expenditure of funds
w[ere] provided to the Plaintiff after he was released from incarceration so he has all of the
accounting documents in his possession.” Further, “[a]ny funds not specifically used to the
payment of the Plaintiff’s debts were used to pay the Defendant for performing a multitude of
services.” Respondent also stated that he “provided funds into the Plaintiff’s commissary account
to supply him with items during his incarceration.” Respondent claimed that “[t]he Plaintiff owed
according to him and [sic] excess of eighty thousand ($80,000.00) dollars in unpaid child support
and he desired to keep all funds out of his checking account so that the Bureau of [C]hild Support
Enforcement could not attach his checking account.” Respondent also stated that during
petitioner’s incarceration: he paid for petitioner’s post office box; he filed “the paperwork in
Pleasants County Magistrate Court to evict Bill Shepard for nonpayment of rent and obtained a
judgement for Mr. Mattingly in the amount of five thousand ($5,000.00) dollars”; he patched the
roof on the garage attached to the house because it was leaking; he winterized the waterlines in the
main house and the smaller house so they would not freeze during the winter; he cleaned the
ventless heaters in the main house and smaller house to keep the heat running during the winter;
he started petitioner’s truck periodically to make sure it remained useable; he relocated the truck
periodically on petitioner’s property to make it look like someone was living on the property; he
mowed petitioner’s grass; he cared for petitioner’s dog; he paid the rest of the bond money to
petitioner’s bail bondsman; he met with the interlock company to have the equipment removed
from petitioner’s vehicle as petitioner “was on the Interlock Program when he got caught driving
and was sentenced to jail”; he unhooked petitioner’s washer and moved it inside so it would not
freeze as “it was sitting on the porch of the smaller house”; he picked petitioner up from the St.
Mary’s Correctional Center when petitioner was released from custody; and he continued to drive
petitioner around after petitioner’s release from incarceration as petitioner did not have a valid
driver’s license. Respondent further claimed in his answer that after petitioner’s release from
incarceration, petitioner spent some $8,000, had been drinking constantly, and “was mean, abusive
and misusing medications.”
4
Petitioner acknowledges in his brief, and we agree, that there is no recognized civil cause
of action for extortion in this State. See Machinery Hauling, Inc. v. Steel of W. Va., 181 W. Va.
694, 696, 384 S.E.2d 139, 141 (1989) (declining to recognize a civil cause of action arising from
violating a criminal extortion statute, stating “[w]e find few cases that analyze recovery in this
type of situation from the perspective of an implied civil cause of action arising from a criminal
extortion statute.”).
3
In response to Case No. 2, respondent filed a Motion to Dismiss, arguing that petitioner
had already filed Case No. 1, asking for $10,000 in damages, which is the jurisdictional limit for
magistrate court. Respondent maintained that in Case No. 2, petitioner averred that “‘this civil
matter is like case 1.’” Respondent contended that both actions “are all financial matters between
the parties relating to Mr. Mattingly being incarcerated and providing Bob Moss with a Power of
Attorney to authorize him to take care of business matters while the Plaintiff is incarcerated.”
Respondent claimed that the two actions could not be separated and that petitioner was attempting
to circumvent the jurisdictional limit of $10,000 in magistrate court.
According to respondent’s affidavit filed in support of his Motion for Summary Judgment
in the subsequent circuit court action, both magistrate court cases were set for hearing on May 17,
2017. On that day, petitioner appeared pro se, and respondent appeared with his attorney.
Petitioner was allowed to testify and to present evidence in both cases. By order entered in Case
No. 1, the magistrate court found in respondent’s favor, stating that “Plaintiff failed to provide
proof by the preponderance of the evidence.” By order entered in Case No. 2, the magistrate court
dismissed the action “without prejudice.” Petitioner did not appeal either magistrate court order
to the circuit court.
Eight months later, petitioner, who was then represented by counsel, filed a complaint in
the Circuit Court of Ritchie County. 5 Petitioner alleged the exact same financial circumstances
between the parties from July 2015 through January 2017 as those he previously alleged in the two
magistrate court actions. Based on those same facts, petitioner pleaded counts of financial
exploitation, breach of fiduciary duty, fraud, fraud in the inducement, intentional infliction of
emotional distress, and breach of contract. He sought damages in excess of $30,000.
Respondent answered the complaint and asserted multiple defenses, including res judicata.
Thereafter, respondent filed a motion for summary judgment on April 5, 2018, arguing that res
judicata precluded the circuit court action. Respondent argued that petitioner had asserted the
same facts and claims against him in two magistrate court cases, which had resulted in final orders
in both cases. Petitioner did not appeal those orders. Petitioner responded to the summary
judgment motion, contending that different causes of action had been asserted in his circuit court
case and because of that the circuit court case would be based upon different evidence.
5
It is unclear why petitioner filed his circuit court action in Ritchie County when he resides
in Pleasants County. In his answer to petitioner’s complaint, respondent stated that he was a
resident of Pleasants County, not Ritchie County, and that “venue in Ritchie County [wa]s not
proper”; however, respondent took no other steps to challenge venue. As we have previously
recognized, venue may be waived or conferred by consent. See State ex rel. Dale v. Stucky, 232
W. Va. 299, 304 n.6, 752 S.E.2d 330, 335 n.6 (2013); Vanover v. Stonewall Cas. Co., 169 W. Va.
759, 761-62, 289 S.E.2d 505, 507 (1982). Given respondent’s inaction on this issue, we find that
any issue regarding venue has been waived.
4
On August 17, 2018, the circuit court held a hearing on respondent’s summary judgment
motion, 6 and by order entered on December 17, 2018, the court granted the motion, finding that
there were no objections to the documentation that had been submitted to the court and there were
no disputed facts. The circuit court determined that, as a matter of law, summary judgment was
appropriate based on res judicata and dismissed all the claims with prejudice. Specifically, the
circuit court found:
1. The Plaintiff and Defendant as parties in this case were
previously involved in two (2) cases filed in Pleasants County,
Magistrate Court as set forth in the factual claims and briefs of the
parties. Those two (2) cases were litigated fully in Magistrate Court
with an adverse ruling against the Plaintiff, Robert Lee Mattingly,
Jr.
2. The Magistrate Court statement with regard to the case number
two (2) contending that it was dismissed without prejudice is an
erroneous statement, which the Court looks behind such statement
and determines that case number two (2) was in fact dismissed with
prejudice because the matters had been factually and legally argued
before the Magistrate in the companion case number one (1). The
Magistrate was required to rule against Robert Mattingly for Robert
Moss in case number two (2) as well as in case number one (1).
3. Robert Lee Mattingly Jr., representing himself, fully tried case
number one (1) and case number two (2) in Magistrate Court and
received an adverse ruling from which he did not appeal, and the
matter is conclusive. The judgment of the Magistrate Court is
therefore conclusive.
4. The Civil Action in this case is an attempt to retry and relitigate
the fundamental claims between the parties. The mere fact that the
claims are more exhaustive in their presentation in the pleadings
[than] they were in Magistrate Court is of no consequence. The
Court looks at the substantive claim of the parties and whether the
parties were given full and fair opportunity to bring all their claims
forward against each other in a Court with jurisdiction and venue.
Even so, if a party chooses to file their claims in one jurisdiction and
venue and as a result precludes themselves from filing alternative or
additional action based upon the same facts in another jurisdiction
or venue, their choice shall amount to res judic[a]ta. The Court
6
The circuit court initially deferred ruling on the motion and expressly allowed the parties
to submit additional argument and documentation for consideration by the court. Petitioner filed
a second memorandum of law in opposition to respondent’s motion. Respondent did not file any
further pleadings or documentation.
5
relies upon the case of Dan Ryan Builders Inc., vs Crystal Ridge
Development Inc., 803 S.E.2d 519 (West Virginia 2017).
Petitioner now appeals the circuit court’s order granting summary judgment. In our review
of that order, we are guided by the following standard of review: “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). Further, Rule 56(c) of the West Virginia Rules of Civil Procedure provides that
summary judgment shall be granted provided “there is no genuine issue as to any material fact and
. . . the moving party is entitled to judgment as a matter of law.”
On appeal, petitioner argues that the circuit court erred in granting respondent’s motion for
summary judgment based on the doctrine of res judicata. According to petitioner, because the
magistrate court dismissed Case No. 2 without prejudice, there was not a final adjudication on the
merits of that action and, accordingly, res judicata does not act as a bar. As petitioner contends,
“[t]he Circuit Court’s conclusion that both actions were litigated fully because the first action alone
was litigated fully is clearly erroneous. The Petitioner fully litigated only one action, not both, and
was not afforded the opportunity to litigate the second action due to the Magistrate Court’s
dismissal without prejudice.” Respondent counters that the elements of res judicata are met as
both magistrate court actions were resolved by the magistrate court, after an evidentiary hearing
in which petitioner was allowed to present all his evidence on both cases and failed to meet his
burden of proof. Petitioner then failed to appeal the magistrate court’s decision in either case. 7
We agree with respondent.
The Court held in syllabus point four of Blake v. Charleston Area Medical Center, Inc.,
201 W. Va. 469, 498 S.E.2d 41 (1997):
Before the prosecution of a lawsuit may be barred on the
basis of res judicata, three elements must be satisfied. First, there
must have been a final adjudication on the merits in the prior action
7
West Virginia Code § 50-5-12 provides for an appeal to the circuit court from a magistrate
court judgment as follows:
(a) Any person may appeal the judgment of a magistrate court to the
circuit court as a matter of right by requesting such appeal not later
than twenty days after such judgment is rendered or not later than
twenty days after a decision is rendered upon a motion to set aside
such judgment.
Further, “[i]n the case of an appeal of a civil action tried before the magistrate without a jury, the
hearing on the appeal before the circuit court shall be a trial de novo, triable to the court, without
a jury.” Id. § 50-5-12 (b); see also W. Va. R. Civ. P. Magis. Ct. 18(c) (providing, in relevant part,
that “[i]f no notice is filed within the 20-day period, the circuit court may, not later than 90 days
after the date of judgment, grant an appeal upon a showing of good cause why the notice was not
filed within such 20-day period.” ).
6
by a court having jurisdiction of the proceedings. Second, the two
actions must involve either the same parties or persons in privity
with those same parties. Third, the cause of action identified for
resolution in the subsequent proceeding either must be identical to
the cause of action determined in the prior action or must be such
that it could have been resolved, had it been presented, in the prior
action. 8
(Footnote added).
We recently addressed whether the first element of a final adjudication on the merits had
been established in a magistrate court case for res judicata purposes in State ex rel. Veard v. Miller,
238 W. Va. 333, 795 S.E.2d 55 (2016). In Veard, petitioners filed an action in magistrate court to
have respondent evicted from one of their apartments. Id. at 335-36, 795 S.E.2d at 57-58.
Respondent, who was proceeding pro se, filed an answer and a counterclaim for unpaid wages. Id.
at 336, 795 S.E.2d at 58. There was a hearing, during which the magistrate found that respondent
had moved from the apartment and petitioners had recovered possession of their property; the
hearing then proceeded on respondent’s counterclaim for wages. Thereafter, the magistrate court
dismissed petitioners’ complaint as moot, and rendered a verdict against respondent on his
counterclaim for unpaid wages. Respondent appealed to circuit court. Id.
After the magistrate court appeal was filed in circuit court, respondent retained counsel,
who filed a complaint in circuit court against petitioners on respondent’s behalf. The circuit court
complaint contained claims for unpaid wages and a wrongful termination claim. 9 Id. Petitioners
moved to dismiss, arguing that the issues raised in respondent’s circuit court complaint had been
litigated in magistrate court. Id. Respondent opposed the motion, arguing that the magistrate court
proceeding was not final, and the parties in the two actions were not the same. Id. The circuit court
denied the motion to dismiss and petitioners filed a writ of prohibition with this Court. Id. at 336-
37, 705 S.E.2d at 58-59.
In examining petitioners’ argument that respondent’s claim in the circuit court complaint
for unpaid wages was barred as a matter of law because that claim had been litigated in magistrate
8
There is no dispute that the parties in the circuit court action are the same two parties
involved in both magistrate court actions.
9
Respondent then filed a motion to dismiss his magistrate court appeal without prejudice.
In the motion, respondent acknowledged that the magistrate had ruled against him “on the issue of
unpaid wages.” Veard, 238 W. Va. at 336, 795 S.E.2d at 58. Instead of granting respondent’s
motion to dismiss, the circuit court consolidated the magistrate court appeal with the circuit court
complaint, but provided that respondent could renew his motion to dismiss the magistrate court
appeal at a later date. Id. This Court found the consolidation of the two actions appropriate under
Rule 42(a) of the West Virginia Rules of Civil Procedure. Id. at 338, 795 S.E.2d at 60 and Syl. Pt.
1.
7
court, we found that the unpaid wages claims 10 were not res judicata. In particular, we determined
that the magistrate court action was not a final adjudication on the merits as that case was on appeal
to the circuit court and, therefore, not a final judgment. In reaching this decision, the Court held
that “[t]he doctrines of collateral estoppel and res judicata apply to a magistrate court judgment
only when it becomes final, either through failure to appeal that judgment or after exhausting
appellate proceedings.” Id. at 334, 795 S.E.2d at 56, Syl. Pt. 2 (emphasis added).
Applying the law enunciated in Veard to the instant case, the magistrate court actions are
final adjudications and subject to res judicata and collateral estoppel due to petitioner’s failure to
appeal either judgment to the circuit court. 11 This decision is also supported by this Court’s
decision in syllabus point two of Truglio v. Julio, 174 W. Va. 66, 322 S.E.2d 698 (1984), wherein
we held: “Parties in a magistrate hearing are entitled to rely on the magistrate’s verdict as the final
and proper disposition of their case.” In reaching this decision, the Court reasoned, citing the
syllabus in Johnson v. Rogers, 110 W. Va. 232, 157 S.E. 409 (1931), 12 that “a proper magistrate
court decision bars the subsequent relitigation of a lawsuit in circuit court[.]” Truglio, 174 W. Va.
at 70, 322 S.E.2d at 702.
Petitioner also contends that the causes of action must be the same in order for res judicata
principles to apply, and that the causes of action, evidence and burdens of proof in the petitioner’s
two magistrate complaints were not identical. In support of this argument, petitioner relies upon
10
The Court treated the unpaid wages claims as an amendment to the magistrate court
claims. Id. at 342, 795 S.E.2d at 64 and Syl. Pt. 3 (“When a party appeals a magistrate court
judgment to the circuit court and also files a separate civil action in circuit court arising from the
same facts in the case appealed, that new claim should be treated as an amendment to the magistrate
court pleading on a de novo appeal.”). However, we directed that the wrongful termination claim
be dismissed as a matter of law as it was not brought in the magistrate court action, and was a new
claim which the circuit court had no jurisdiction to hear. Id. at 344, 795 S.E.2d at 66 and Syl. Pt.
4 (“A circuit court may not allow an amendment for an additional cause of action, on appeal from
a magistrate court judgment, that does not embrace the original magistrate court pleading. An
amendment is allowed only to supply any deficiency or omission in the original pleading, not to
inject a new item or cause of action not embraced by the original pleading.”).
11
We held in syllabus point three of State ex rel. DeCourcy v. Dent, 240 W. Va. 163, 807
S.E.2d 834 (2017), that “[a]n appeal of a civil action tried before a magistrate without a jury under
West Virginia Code § 50-5-12(b) (2016) shall be a trial de novo, meaning a new trial in which the
parties may present new evidence including witness testimony not presented in magistrate court.”
Consequently, had petitioner appealed his magistrate court case to the circuit court, he would have
been afforded a trial de novo.
12
See Johnson, 110 W. Va. at 232, 157 S.E. at 409 (“When the merits of a controversy are
once adjudicated by a court of competent jurisdiction, they are conclusively determined between
the same parties as to all matters which were, or might have been, litigated; and this adjudication
is binding as an estoppel in all other actions between the same parties, whether commenced before
or after the action in which the adjudication was made.”).
8
syllabus point four in Slider v. State Farm Mut. Auto. Ins. Co., 210 W. Va. 476, 557 S.E.2d 883
(2001), wherein the Court held:
For purposes of res judicata or claim preclusion, “a cause of
action” is the fact or facts which establish or give rise to a right of
action, the existence of which affords a party a right to judicial relief.
The test to determine if the issue or cause of action involved in the
two suits is identical is to inquire whether the same evidence would
support both actions or issues. If the two cases require substantially
different evidence to sustain them, the second cannot be said to be
the same cause of action and barred by res judicata.
Petitioner maintains that magistrate court Case No. 1 alleged breach of a verbal contract, and that
he relied upon the Power of Attorney and copies of cashed checks to prove this claim. According
to petitioner, for his alleged “extortion” claim, Case No. 2, he attached copies of ten different
checks to show that respondent had withdrawn large sums from his bank accounts. Petitioner
asserts that because the checks he relied upon for Case No. 2 were not the same checks entered
into evidence in Case No. 1, the two cases were not identical. Thus, he contends that both
magistrate court cases are “actually and constructively different” from the circuit court complaint
in terms of causes of action, evidence, and burdens of proof. He claims he would also need
additional evidence to prove the causes of action alleged in the circuit court case, so that case
necessarily involves evidence not used in the prior cases.
In contrast, respondent argues that magistrate court Case No. 1 and Case No. 2 arose out
of petitioner’s claims for monies and duties owed to him by respondent for dealings between July
2015 and January 2017. Relying upon this Court’s decision in Dan Ryan Builders, Inc. v. Crystal
Ridge Development, Inc., 239 W. Va. 549, 803 S.E.2d 519 (2017) (reiterating Slider test for
purposes of determining if facts and issues are the same for both actions), respondent argues that
“[t]he causes of action in the Circuit Court Complaint, [which include] financial exploitation[,]
breach of fiduciary duty, fraud, fraud in the inducement and breach of contract are all claims that
the facts supported by the financial transactions heard in Magistrate Court cases.” Because the
magistrate court cases and the circuit court case “rely upon the same facts, and are virtually
identical in terms of time, space, and origin,” respondent contends that as was the case in Dan
Ryan Builders, res judicata prohibits not only the re-litigation of claims that were actually asserted
in the prior action, but also precludes “every other matter which the parties might have litigated as
incident thereto[.]” Id. at 560-61, 803 S.E.2d at 530-31 (quoting, in part, Blake, 201 W. Va. at 477,
498 S.E.2d at 49 (quoting Syllabus Point 1, Sayre’s Adm’r v. Harpold, 33 W. Va. 553, 11 S.E. 16
(1890)). We agree with respondent.
Applying the Slider test to the instant case, it is clear that the same evidence petitioner used
in both of his magistrate court cases would support his circuit court action. Further, both the
magistrate court cases and the circuit court case relate to the same time period and the same
dealings between the same parties between July 2015 and January 2017. Thus, the circuit court
claims are based upon the magistrate court claims that were pursued to final judgment and not
9
appealed. This is exactly what the doctrine of res judicata prohibits. 13 See Slider, 210 W.Va. at
478, 557 S.E.2d at 885, Syl. Pt. 4.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: May 11, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
NOT PARTICIPATING:
Justice Margaret L. Workman
CONCURRING, IN PART; DISSENTING, IN PART,
AND WRITING SEPARATELY:
Justice John A. Hutchison
Justice Hutchison, concurring in part and dissenting in part.
In this proceeding the majority opinion concluded that the circuit court was correct
in using two dismissed complaints the Petitioner filed in magistrate court, as the basis for applying
res judicata to the action filed by the Petitioner in circuit court. I concur in the majority opinion
insofar as it found that dismissal of one of the magistrate court cases precluded relitigation of part
of the action filed in circuit court. However, I dissent from the majority opinion’s conclusion that
the second case dismissed by the magistrate precluded litigation of the remaining part of the
Petitioner’s circuit court complaint.
A few preliminary procedural remarks are in order to properly understand my
dissent. To begin, the Petitioner, acting pro se, filed two civil actions in magistrate court on the
same day. In one case, No. 17-M37C-00032, the Petitioner sought to recover $10,000.00 from
13
Because we resolve this case by upholding the circuit court’s legal determination that
res judicata principles bar petitioner’s action, we find petitioner’s contention that the circuit court
erred in this regard to be without merit.
10
Respondent for allegedly removing said money from Petitioner’s Williamstown Bank account. 1
In the second action, No. 17-M37C-00033, Petitioner sought to recover $7,200.00 from
Respondent for money Respondent allegedly took from Petitioner’s account with Community
Bank. The Respondent, through counsel, filed an answer to the Williamstown Bank case and
essentially denied that he owed Petitioner any money. The Respondent did not file an answer to
the Community Bank case. Instead, the Respondent filed a motion to dismiss the Community Bank
case on the grounds that the Petitioner filed this second action in an attempt to circumvent the
$10,000.00 jurisdictional limit in magistrate court. An unrecorded hearing was held by the
magistrate in both cases on May 1, 2017. At the conclusion of the hearing the magistrate issued an
order dismissing the Williamstown Bank case with prejudice. However, in the Community Bank
action the magistrate dismissed the case without prejudice. The Petitioner did not appeal either
ruling. Instead, Petitioner, through counsel, filed a complaint in circuit court seeking to recover
money allegedly taken by Respondent from both banks without authorization.
The circuit court granted the Respondent summary judgment under the doctrine of
res judicata. In doing so, the circuit court made two dispositive findings. First, the circuit court
found that some of the allegations raised in the complaint were raised in magistrate court in the
Williamstown Bank case, which was dismissed with prejudice. Consequently, that part of the
complaint seeking recovery of money involved with the Williamstown Bank case could not be
relitigated. The majority opinion has affirmed the circuit court ruling on this issue. I concur with
the majority on the resolution of this issue. Second, the circuit court found that the complaint also
sought to recover money involved in the Community Bank case. Although the Community Bank
case was dismissed by the magistrate without prejudice, the circuit court found that the magistrate
should have dismissed the case with prejudice. Consequently, the circuit court concluded that the
allegations in the complaint seeking recovery of money involved in the Community Bank case
could not be relitigated. The majority opinion agreed with the circuit court on this issue. I dissent
to the resolution of this issue for the reasons that follow.
Res judicata did not apply to that part of Petitioner’s complaint that sought relief
for conduct involved in the Community Bank case, because the magistrate dismissed that action
without prejudice. This Court has long held that “[a]n order in an action at law which dismisses a
defendant without prejudice to the plaintiff to bring a subsequent action upon the same cause of
action against the same defendant will not sustain a plea of res adjudicata as to the same defendant
in a subsequent action on the same cause of action.” Syl. pt. 2, Charleston Nat. Bank v. Hulme,
117 W. Va. 790, 188 S.E. 225 (1936). See Dimon v. Mansy, 198 W. Va. 40, 45 n.3, 479 S.E.2d
339, 344 n.3 (1996) (“a dismissal under Rule 41(b), unless it is expressly stated to be without
prejudice, will generally bar a subsequent action on the claim under the principles of res
judicata.”); Syl. pt. 2, in part, Sattler v. Bailey, 184 W. Va. 212, 400 S.E.2d 220 (1990) (“a
subsequent action in a state court on the state claim which would have been dismissed, without
prejudice, in the prior federal action is not barred by the doctrine of res judicata.”); Syl. pt. 5, in
1
The Petitioner believed that he was entitled to more money in this claim, but he
was willing to limit his recover to the jurisdictional limit in magistrate court. See W.Va.
Code § 50-2-1 (2016) (setting limit at $10,000.00).
11
part, Sprouse v. Clay Commc’n, Inc., 158 W. Va. 427, 211 S.E.2d 674 (1975) (“the dismissal of
an action under Rule 12(b)(6) W.Va. RCP for failure to state a claim upon which relief can be
granted shall be a bar to the prosecution of a new action grounded in substantially the same set of
facts, unless the lower court in the first action specifically dismissed without prejudice.”). Res
judicata requires a final adjudication on the merits. Dismissal without prejudice is not a final
disposition on the merits of an action. See Syl. pt. 4, Blake v. Charleston Area Med. Ctr., Inc., 201
W. Va. 469, 498 S.E.2d 41 (1997) (“Before the prosecution of a lawsuit may be barred on the basis
of res judicata, three elements must be satisfied. First, there must have been a final adjudication
on the merits in the prior action by a court having jurisdiction of the proceedings. Second, the two
actions must involve either the same parties or persons in privity with those same parties. Third,
the cause of action identified for resolution in the subsequent proceeding either must be identical
to the cause of action determined in the prior action or must be such that it could have been
resolved, had it been presented, in the prior action.”).
In order for the circuit court to apply res judicata to Petitioner’s Community Bank
claims, the dismissal by the magistrate had to be with prejudice. The record is clear that the
magistrate did not dismiss that claim with prejudice. However, the circuit court sua sponte found
that the magistrate should have dismissed the case with prejudice, “because the matters had been
factually and legally argued before the Magistrate in the companion case[.]” The first problem
with this sua sponte determination by the circuit court is that there is nothing in the record to
support its finding that the matters “factually and legally” argued in the magistrate court on the
Community Bank case were being argued in the circuit court case. As I previously pointed out,
there was no transcript or recording of the hearing in magistrate court. Neither the circuit court nor
the majority opinion know what the Petitioner argued to the magistrate, to cause it to dismiss the
case without prejudice.
For example, the magistrate could have based its dismissal of the Community Bank
case under Rule 15(b) of the Rules of Civil Procedure for the Magistrate Courts of West Virginia.
This rule states:
In addition to other grounds for dismissal as provided by law, the
magistrate shall dismiss an action without prejudice where:
***
(b) The defendant fails to file an answer and the plaintiff fails to
move for a default judgment within 6 months of service of the
summons and complaint upon defendant.
Rule 15(b) is clear in requiring a magistrate to dismiss an action without prejudice if a defendant
fails to file an answer and the plaintiff does not timely move for default judgment. The majority
opinion has pointed out that the Respondent did not file an answer to the Community Bank case.
Instead, the Respondent filed a motion to dismiss. Unlike Rule 12 of the Rules of Civil Procedure
for circuit courts, the Rule 12 of the Rules of Civil Procedure for the magistrate courts does not
authorize a defendant to file a motion to dismiss without having first filed an answer to a complaint.
Consequently, the magistrate could have dismissed the Community Bank case under Rule 15(b)
because of the Respondent’s failure to file and answer and the absence of a motion for default
judgment by the Petitioner. See Robin Jean Davis and Louis J. Palmer, Jr., “Handbook on the Rules
of Civil Procedure for West Virginia Magistrate Courts,” § 15, pg. 187-88 (2010) (“Any dismissal
12
under Rule 15 must be made without prejudice. This disposition permits a party to seek
reinstatement of the case or file a new action if the statute of limitations has not run.”). 2
Moreover, assuming for the sake of argument, that the Community Bank case
should have been dismissed with prejudice, neither the circuit court nor the majority opinion cited
to any legal authority that permitted the circuit court to change the dismissal to “with prejudice.”
This Court long ago addressed the issue of a circuit court’s authority to find that a lower tribunal
erroneously dismissed a case without prejudice. This issue was addressed in the context of a
dismissal without prejudice by a justice of the peace, in syllabus point 1 of Parsons v. Riley, 33
W. Va. 464, 10 S.E. 806 (1890):
Where an action for damages for breach of the conditions of a
written contract is brought before a justice, and upon a general
denial by the defendant of the complaint the justice hears the case
upon the evidence and arguments of counsel, and enters a judgment
dismissing the plaintiff’s suit for failure to prove the execution of the
contract sued on, with costs, he cannot, by adding the words
“without prejudice to a new suit,” authorize a new suit for the same
cause of action.
Under Parsons if the dismissal order of a court shows that the merits of the case were addressed,
the order may be treated as a dismissal with prejudice, even if it states otherwise. See Krohn,
Fechheimer & Co. v. Sohn, 68 W. Va. 687, 70 S.E. 699, 700 (1911) (“The defendant, citing
Parsons v. Riley, 33 W. Va. 464, 10 S. E. 806, insists that the judgment announced at the trial was
one on the merits. The petition and affidavits for appeal do not so show. They show that the
judgment then rendered was just that which we have stated it to be--a dismissal by the plaintiffs
before any submission of the case for final determination on the merits.”). The majority opinion
has not relied upon any language in the magistrate court’s order that indicates it addressed the
merits of Petitioner’s Community Bank complaint. 3 Thus, Parsons was not authority for the circuit
court or the majority opinion to treat the dismissal as being on the merits.
In view of the foregoing I concur in part and dissent in part.
2
See also W.Va. Code § 50-4-12 (1978) (“A magistrate shall dismiss a claim
without prejudice if the plaintiff requests such dismissal before trial.”).
3
The majority opinion stated the following:
By order entered in Case No. 1 [Williamstown Bank], the
magistrate court found in respondent’s favor, stating that “Plaintiff
failed to provide proof by the preponderance of the evidence.” By
order entered in Case No. 2 [Community Bank], the magistrate court
dismissed the action “without prejudice.”
This language does not show that Petitioner failed to provide proof by a preponderance of
the evidence on his Community Bank claim. That finding, as quoted by the majority opinion, was
limited to the Williamstown Bank claim.
13