FILED
June 2, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia ex rel. West Virginia
Department of Health and Human Resources,
Petitioner
vs.) No. 20-0784
The Honorable Tera L. Salango, Judge of the Circuit
Court of Kanawha County, and Rene G. Denise,
Respondents
MEMORANDUM DECISION
The West Virginia Department of Health and Human Resources (“DHHR”) 1 seeks
a writ of prohibition to prohibit Respondent Tera L. Salango, Judge of the Circuit Court of
Kanawha County, from allowing Respondent Rene G. Denise 2 to proceed with her sexual
harassment case against DHHR. The West Virginia Code provides that a “government
agency” is entitled to thirty days’ written notice before it is sued. W. Va. Code § 55-17-
3(a)(1) (2008).3 Under our cases, failure to give this pre-suit notice deprives the circuit
1
DHHR is represented in this matter by Jan L. Fox, Esq., Mark C. Dean, Esq., and
Michelle E. Gaston, Esq., of Steptoe & Johnson PLLC.
2
Ms. Denise is represented in this matter by Todd S. Bailess, Esq., and Rodney A.
Smith, Esq., of Bailess Smith PLLC and by Michael P. Addair, Esq., of Addair Law Office
PLLC.
3
West Virginia Code § 55-17-3(a)(1) provides that
[n]otwithstanding any provision of law to the contrary, at least thirty
days prior to the institution of an action against a government agency,
the complaining party or parties must provide the chief officer of the
government agency and the Attorney General written notice, by certified
mail, return receipt requested, of the alleged claim and the relief desired.
Upon receipt, the chief officer of the government agency shall forthwith
forward a copy of the notice to the President of the Senate and the Speaker
(continued . . .)
1
court of jurisdiction. By statute, a “government agency” includes both a state executive-
branch “department” with capacity to be sued and a “public official named as a defendant
or respondent in his or her official capacity[.]” W. Va. Code § 55-17-2(2) (2002). 4 In this
case, DHHR received statutory pre-suit notice; other defendants did not, including a
defendant supervisor who works at a hospital run by DHHR.
DHHR contends that the defendant supervisor is a public official who was sued in
her official capacity and without pre-suit notice. DHHR further contends that this failure
of notice deprived the circuit court of jurisdiction. The Circuit Court of Kanawha County
disagreed and denied DHHR’s motion to dismiss. Now DHHR asks this Court to prohibit
the circuit court from allowing the case to proceed, alleging the circuit court lacks
jurisdiction.
Based on the record before us, the arguments of the parties, and the applicable law,
we find that DHHR had no clear right to have the case against it dismissed, regardless of
whether the supervisor in question is (or is not) a “public official” for purposes of West
Virginia Code § 55-17-2(2). Therefore, we deny DHHR’s writ petition and remand this
case to the circuit court for further proceedings. Because this case presents no new or
substantial question of law, and because we find no prejudicial error, its proper disposition
is by memorandum decision as contemplated by Rule 21 of the Rules of Appellate
Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case stems from a sexual harassment suit filed by Ms. Denise. Ms. Denise is a
nurse who, in August or September 2017, began working for Sunbelt Staffing, LLC
(“Sunbelt”). Sunbelt recruits and provides staff for hospitals and other healthcare facilities,
of the House of Delegates. The provisions of this subdivision do not apply
in actions seeking injunctive relief where the court finds that irreparable harm
would have occurred if the institution of the action was delayed by the
provisions of this subsection.
4
According to West Virginia Code § 55-17-2(2),
“[g]overnment agency” means a constitutional officer or other public
official named as a defendant or respondent in his or her official
capacity, or a department, division, bureau, board, commission or other
agency or instrumentality within the executive branch of state government
that has the capacity to sue or be sued[.]
2
and Sunbelt placed Ms. Denise with DHHR’s William R. Sharpe, Jr. Hospital. 5 After a
period of orientation, Ms. Denise began working in the E2 Unit for young adult patients.
Ms. Denise claims that, from her first day in the E2 Unit, she was sexually harassed
by a hospital coworker named Scott Starcher. She says that she reported the harassment to
“Melanie,” whom Ms. Denise describes as a “supervisor and/or human resources
personnel” employed by DHHR. Ms. Denise alleges that “Melanie” promised to “put
something in writing” about the harassing coworker and to put Ms. Denise on her “list of
things” to discuss with Francis Stump, whom Ms. Denise describes as a “supervisor/agent
of DHHR.” 6
The harassment continued, according to Ms. Denise, and she complained a second
time to “Melanie” and a third time to Ms. Stump. Ms. Stump allegedly admitted that Mr.
Starcher was an “issue” and that she had received “multiple complaints” about him.
We do not know what, if any, discipline was imposed on Mr. Starcher, but Ms.
Denise says that she was subsequently transferred to an undesirable midnight shift and
assigned to work back-to-back sixteen-hour shifts. She claims that her requests for a new
schedule were refused and that, on or about November 9, 2017, she learned that her contract
was canceled. She alleges that Ms. Stump attributed the cancelation to job cuts and assured
her that she was eligible to return to work when DHHR needed more staff. However, Ms.
Denise claims that, when DHHR was later seeking to hire nurses, she was deemed
ineligible.
On October 21, 2019, Ms. Denise notified 7 DHHR 8 and the West Virginia Attorney
General by certified mail, return receipt requested, that she planned to sue the State for
various claims arising from her “joint employment” with DHHR and Sunbelt. The next
day, she sued Sunbelt, Mr. Starcher, “Melanie” (as “Jane Doe”), and Ms. Stump. Her
complaint alleged that Sunbelt and DHHR were “employers” for purposes of West Virginia
5
Ms. Denise alleges that she was “jointly employed” by Sunbelt and DHHR.
6
During oral argument, DHHR’s counsel referred to Ms. Stump as a “nurse
manager” and a “nursing supervisor,” but neither party has provided any significant details
about Ms. Stump’s title, activities, or duties.
7
By statute, written pre-suit notice “is considered to be provided on the date of
mailing of the notice by certified mail, return receipt requested.” W. Va. Code § 55-17-
3(a)(2).
8
Her attorney addressed the certified letter to the cabinet secretary and the chief
operating officer for DHHR’s Office of Health Facilities.
3
Code § 5-11-3(d) 9 and that Mr. Starcher, “Melanie,” and Ms. Stump were “persons” for
purposes of West Virginia Code § 5-11-3(a). 10 Her complaint further alleged that, as
persons, Mr. Starcher, “Melanie,” and Ms. Stump were “individually liable for the acts
described herein in the aiding and abetting of discrimination as set forth in W[est]
V[irginia] Code § 5-11-9(7).” 11
9
According to West Virginia Code 5-11-3(d) (1998),
“employer” means the state, or any political subdivision thereof, and any
person employing twelve or more persons within the state for twenty or more
calendar weeks in the calendar year in which the act of discrimination
allegedly took place or the preceding calendar year: Provided, That such
terms shall not be taken, understood or construed to include a private club[.]
10
West Virginia Code § 5-11-3(a) defines a “person” as “one or more individuals,
partnerships, associations, organizations, corporations, labor organizations, cooperatives,
legal representatives, trustees, trustees in bankruptcy, receivers and other organized groups
of persons” (emphasis added).
11
West Virginia Code § 5-11-9(7) (2016) forbids
any person, employer, employment agency, labor organization, owner, real
estate broker, real estate salesman or financial institution to:
(A) Engage in any form of threats or reprisal, or to engage in, or hire, or
conspire with others to commit acts or activities of any nature, the purpose
of which is to harass, degrade, embarrass or cause physical harm or
economic loss or to aid, abet, incite, compel or coerce any person to
engage in any of the unlawful discriminatory practices defined in this
section;
(B) Willfully obstruct or prevent any person from complying with the
provisions of this article, or to resist, prevent, impede or interfere with the
commission or any of its members or representatives in the performance
of a duty under this article; or
(C) Engage in any form of reprisal or otherwise discriminate against any
person because he or she has opposed any practices or acts forbidden
under this article or because he or she has filed a complaint, testified or
assisted in any proceeding under this article.
4
Ms. Denise refrained, however, from suing DHHR until thirty-one days later, when
she filed an amended complaint adding DHHR as a defendant. She subsequently dismissed
Sunbelt and Mr. Starcher from the case pursuant to West Virginia Rule of Civil Procedure
41. 12 Accordingly, the only remaining defendants in the case were DHHR, “Melanie,” and
Ms. Stump.
DHHR moved to dismiss the case for lack of jurisdiction,13 arguing that Ms. Stump
is an official who was sued in her “official capacity” and was, thus, entitled to statutory
pre-suit notice pursuant to West Virginia Code § 55-17-3(a)(1). 14 Ms. Stump joined
DHHR’s motion. The circuit court rejected DHHR’s argument and denied the motion to
dismiss in a June 8, 2020 order. According to the circuit court, Ms. Stump is a public
employee, not a public official entitled to pre-suit notice.
DHHR remains convinced that Ms. Stump is a “public official.” DHHR filed this
petition for writ of prohibition to challenge the circuit court’s jurisdiction. Ms. Stump,
however, is neither a co-petitioner with DHHR nor a respondent in this matter, nor has she
filed a writ petition of her own.
II. STANDARD OF REVIEW
We have held that “[a] writ of prohibition will not issue to prevent a simple abuse
of discretion by a trial court. It will only issue where the trial court has no jurisdiction or
having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1.” Syl. Pt. 1,
State ex rel. PrimeCare Med. of W. Va., Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579
(2019) (quoting Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d
425 (1977)). Lack of jurisdiction is, thus, an accepted ground for issuing a writ of
prohibition.
DHHR contends that a plaintiff’s failure to provide pre-suit notice pursuant to West
Virginia Code § 55-17-3(a)(1) deprives the circuit court of subject matter jurisdiction. The
statute provides: “Notwithstanding any provision of law to the contrary, at least thirty days
prior to the institution of an action against a government agency, the complaining party or
12
Rule 41(a)(1)(i) (1998) authorizes a plaintiff to dismiss an action “by filing a
notice of dismissal at any time before service by the adverse party of an answer or of a
motion for summary judgment, whichever first occurs[.]” According to the notices of
dismissal, neither Sunbelt nor Mr. Starcher had served an answer or motion for summary
judgment.
13
DHHR asserted other defenses, but they are not relevant to this writ petition.
14
See supra note 3.
5
parties must provide . . . written notice . . . of the alleged claim and the relief desired.” Id.
(emphasis added). Our cases are equally clear: “Compliance with the pre-suit notification
provisions set forth in W. Va.Code § 55–17–3(a) (2002) is a jurisdictional pre-requisite
for filing an action against a State agency subject to the provisions of W. Va.Code § 55–
17–1, et seq. (2002).” Syl. Pt. 3, Motto v. CSX Transp., Inc., 220 W. Va. 412, 647 S.E.2d
848 (2007) (emphasis added); accord Gomez v. State Athletic Comm’n, No. 16-0103, 2016
WL 5348350, *2 (W. Va. Sept. 23, 2016) (memorandum decision).
Our standard of review for jurisdictional questions depends on whether the parties’
dispute is one of fact or law.
When a petition raises a jurisdictional challenge, “we must determine
. . . whether it is jurisdictional in the sense of requiring a decision upon facts
or a decision upon a pure question of law.” Lewis v. Fisher, 114 W. Va. 151,
154-155, 171 S.E. 106, 107 (1933). “If it rests upon a determination of fact,
prohibition will not lie.” Id. at 155, 171 S.E. at 107. If, however, the
challenge “rests upon the determination of a question of law, prohibition will
lie if the trial court has exceeded its jurisdiction or usurped a jurisdiction that
in law does not exist.” Id. Because the question is one of law, we apply a de
novo standard of review. See, e.g., Tennant v. Smallwood, 211 W. Va. 703,
707, 568 S.E.2d 10, 14 (2002).
PrimeCare, 242 W. Va. at 341-42, 835 S.E.2d at 585-86 (footnote omitted). In this case,
neither party has raised any material issue of fact relevant to jurisdiction, so our standard
of review is de novo.
Nevertheless, DHHR’s right to relief must be clear, otherwise we will deny the writ.
As we have held before, “[t]he writ of prohibition will issue only in clear cases where the
inferior tribunal is proceeding without, or in excess of, jurisdiction.” Syl., State ex rel.
Vineyard v. O’Brien, 100 W. Va. 163, 130 S.E. 111 (1925) (emphasis added); accord State
ex rel. Maynard v. Bronson, 167 W. Va. 35, 41, 277 S.E.2d 718, 722 (1981) (“The right to
prohibition must clearly appear, for example, before the petitioner is entitled to such
remedy.”).
III. ANALYSIS
DHHR’s plea for relief is simple: (a) Ms. Stump is a public official who was sued
in her official capacity; (b) Ms. Stump never received statutory pre-suit notice; (c) lack of
notice is a jurisdictional defect; therefore, (d) the circuit court was obliged “to dismiss this
case” (emphasis added). DHHR assumes that the only relevant question is whether Ms.
Stump is public official who was sued in her official capacity. We disagree.
6
The statute provides that, when a person wishes to bring “an action against a
government agency, the complaining party or parties must provide the chief officer of the
government agency . . . written notice . . . of the alleged claim and the relief desired.” W.
Va. Code § 55-17-3(a)(1). This language poses a problem for DHHR because everyone
agrees that DHHR is a state agency and that DHHR received statutory pre-suit notice. The
real question, therefore, is whether DHHR—after receiving exactly what the statute
requires—can object to the fact that Ms. Stump, as an alleged public official, did not.
DHHR does not appear to have anticipated this rather obvious question. In its
petition for writ of prohibition, DHHR concentrated its energy on proving that Ms. Stump
is a public official who was sued in her official capacity. When we questioned, at oral
argument, DHHR’s capacity to object to Ms. Stump’s lack of pre-suit notice, DHHR argued
that, by suing Ms. Stump, Ms. Denise was also suing DHHR. We are not persuaded by
this allegation.
If Ms. Stump is a public official who was sued in her official capacity—and we do
not decide that question—then, by statute, she is a separate government agency with a
separate right to receive statutory pre-suit notice. West Virginia Code § 55-17-2(2)
provides that a “government agency” is “a . . . public official named as a defendant . . . in
his or her official capacity, or a department . . . within the executive branch of state
government that has the capacity to sue or be sued” (emphasis added). The statutory
definition contains no exception for cases where the alleged public official serves in an
executive branch department. Indeed, by referring to public officials first, the statutory
definition appears structured to exclude any doubt that a public official sued in his or her
official capacity is a “government agency” in addition to whatever “department, division,
bureau, board, commission or other agency or instrumentality” he or she may lead or serve.
Id.
According to the statute, a person who brings “an action against a government
agency . . . must provide the chief officer of the government agency . . . written notice . . .
of the alleged claim and the relief desired.” Id. § 55-17-3(a)(1) (emphasis added). In the
same vein, West Virginia Code § 55-17-3(a)(2) provides that “written notice to the chief
officer of the government agency” is deemed to be provided upon mailing and that “notice
. . . to the chief officer of the government agency” tolls “any applicable statute of
limitations . . . for thirty days” (emphasis added)). 15 Thus, according to the plain language
of West Virginia Code § 55-17-3(a), when a person brings an action against more than one
15
This language parallels, in relevant respects, the language of West Virginia Rule
of Civil Procedure 4: “The summons shall . . . be directed to the defendant . . . . It shall
also state the time within which the defendant must appear and defend, and notify the
defendant that failure to do so will result in a judgment by default against the defendant for
the relief demanded in the complaint.” W. Va. R. Civ. P. 4(a) (2007) (emphasis added).
7
government agency, each defendant government agency has a separate right to receive
statutory pre-suit notice of the action.
Because DHHR actually received statutory pre-suit notice and is now attempting to
invoke a right that belongs to another party who did not join in DHHR’s writ petition to
this Court, we cannot say that DHHR’s right to relief in this matter is clear. Indeed, we
question DHHR’s standing to object to Ms. Stump’s lack of pre-suit notice. 16
As a general rule any person who will be affected or injured by the
proceeding which he seeks to prohibit is entitled to apply for a writ of
prohibition; but a person who has no interest in such proceeding and whose
rights will not be affected or injured by it can not [sic] do so.
Syl. Pt. 6, State ex rel. Linger v. Cty. Ct. of Upshur Cty., 150 W. Va. 207, 144 S.E.2d 689
(1965). DHHR is a defendant in the circuit court action and, therefore, might plausibly
claim to be a “person who will be affected . . . by the proceeding” and “a person who has
[an] interest in such proceeding[.]” Id. However, standing requires something more: an
interest in the particular right or claim the petitioner seeks to assert. As we said in Findley
v. State Farm Mut. Auto. Ins. Co.,
[s]tanding does not refer simply to a party’s capacity to appear in
court. Rather, standing is gauged by the specific common-law, statutory or
constitutional claims that a party presents. Typically, . . . the standing inquiry
requires careful judicial examination . . . to ascertain whether the particular
plaintiff is entitled to an adjudication of the particular claims asserted.
213 W. Va. 80, 94–95, 576 S.E.2d 807, 821–22 (2002) (alterations in original) (internal
quotation marks omitted) (quoting Int’l Primate Prot. League v. Admins. of Tulane Educ.
Fund, 500 U.S. 72, 77 (1991)); see also Bone v. Otis Elevator Co., 2018-0745 (La. App. 4
Cir. 12/12/18), 261 So. 3d 948, 950 (“[W]e find no error in the district court’s conclusion
that Otis lacked standing to bring exceptions seeking dismissal of FTCA claims against
other defendants. ‘An exception is a means of defense, . . . used by the defendant, . . . to
retard, dismiss, or defeat the demand brought against him.’ La. C.C.P. art. 921 (emphasis
added). Under the facts before us, these exceptions are not an available method by which
Otis can seek dismissal of claims against other parties.” (alterations in original)). In this
matter, DHHR has no interest in the statutory right or claim it asserts.
16
Though neither party briefed this issue, we note that “[s]tanding . . . may be raised
at any time by a party or sua sponte by the Court.” State ex rel. Morrisey v. W. Va. Off. of
Disciplinary Couns., 234 W. Va. 238, 244, 764 S.E.2d 769, 775 (2014).
8
Furthermore, we have observed that “a court can have subject matter jurisdiction
over some claims and not others.” PrimeCare, 242 W. Va. at 341 n.14, 835 S.E.2d at 585
n.14. Likewise, a court’s subject matter jurisdiction may extend to some defendants and
not others. See, e.g., Charles D. Bonanno Linen Serv., Inc. v. McCarthy, 708 F.2d 1, 11
(1st Cir. 1983) (holding that federal court jurisdiction was proper “even if the other state
claim defendants must be left behind.”); Christel v. EB Eng’g, Inc., 116 P.3d 1267, 1270
(Colo. App. 2005) (holding that trial court had jurisdiction to proceed with “claims against
the other defendants” while interlocutory appeal was pending); Pack v. Ross, 288 S.W.3d
870, 873–74 (Tenn. Ct. App. 2008) (holding that, because venue for a defendant was
limited to a single county, the court of that county had sole “jurisdiction to entertain the
action” despite the fact that other defendants were properly sued in a second county where
the action was filed); Hyundai Motor Am. v. New World Car Nissan, Inc., 581 S.W.3d 831,
835-36 (Tex. App. 2019) (finding that subject matter jurisdiction was limited to certain
state defendants and dismissing other state defendants). Accordingly, even if Ms. Stump
is a government agency entitled to statutory pre-suit notice—which, again, is a question
we do not decide—it is not clearly established by law that the circuit court’s alleged lack
of subject matter jurisdiction with respect to Ms. Stump defeats the circuit court’s subject
matter jurisdiction with respect to DHHR. Accordingly, DHHR has not met its burden to
establish that it has a clear legal right to the writ it requests.
IV. CONCLUSION
For the foregoing reasons, we deny DHHR’s writ petition and remand this case to
the circuit court for further proceedings.
Writ denied.
ISSUED: June 2, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
9