Hoover v. West Virginia Bd. of Medicine, No. 31576.

CourtSupreme Court of West Virginia
Writing for the CourtDAVIS, Justice.
Citation216 W.Va. 23,602 S.E.2d 466
PartiesKatherine Anne HOOVER, M.D., Appellant Below, Appellee, v. WEST VIRGINIA BOARD OF MEDICINE, Appellee Below, Appellant.
Docket NumberNo. 31576.
Decision Date28 May 2004

602 S.E.2d 466
216 W.Va.
23

Katherine Anne HOOVER, M.D., Appellant Below, Appellee,
v.
WEST VIRGINIA BOARD OF MEDICINE, Appellee Below, Appellant

No. 31576.

Supreme Court of Appeals of West Virginia.

Submitted: April 28, 2004.

Filed: May 28, 2004.


602 S.E.2d 467
Nancy C. Hill, Esq., Winter Johnson & Hill, Charleston, for Appellant

A. Andrew MacQueen, Esq., Charleston, for Appellee.

602 S.E.2d 468
DAVIS, Justice

The West Virginia Board of Medicine (hereinafter referred to as "the Board"), appellant/appellee below, appeals an order of the Circuit Court of Harrison County. The circuit court's order reversed a decision of the Board which had revoked the medical license of Dr. Katherine Anne Hoover (hereinafter referred to as "Dr. Hoover"), appellee/appellant below. The circuit court reversed the Board's decision on the sole ground that the initiating complaint and notice of hearing had not been properly signed by an authorized official. Here, the Board contends that the signature discrepancy was insufficient to warrant reversal of its decision. After a review of the briefs and record in this matter, the circuit court's order is affirmed in part and reversed in part.

I.

FACTUAL AND PROCEDURAL HISTORY

This case has been before this Court on two prior occasions. See State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996) (involving issuance of a subpoena on a privately retained court reporter); State ex rel. Hoover v. Smith, 198 W.Va. 507, 482 S.E.2d 124 (1997) (involving issuance of subpoenas to conduct depositions). Consequently, we will be brief in our recitation of the underlying facts.

Dr. Hoover was licensed to practice medicine in West Virginia in 1978. On May 13, 1996, the Board issued a complaint and notice of hearing (hereinafter referred to as "complaint") against Dr. Hoover.1 The complaint alleged that Dr. Hoover asked a seventeen-year-old female patient, who was seeking gynecological care, whether the patient and any of her girlfriends would be willing to come to Dr. Hoover's home and have sex with her teenage son. The complaint charged that this conduct violated W. Va.Code §§ 30-3-14(c)(8) and (17) and 11 C.S.R. 1 A-12.1(e), (j) and (r) and 11 C.S.R. 1A-12.2(d).

The evidentiary hearing took place on July 26, 2001. Dr. Hoover appeared briefly at the hearing without counsel and Dr. Hoover gave an opening statement. However, after giving her opening statement, Dr. Hoover left the proceeding. Dr. Hoover advised the hearing examiner that she had to go to work, and therefore, she would not participate in the proceedings. The hearing continued in Dr. Hoover's absence. Several witnesses were called and numerous exhibits were introduced into evidence. At the conclusion of the proceedings, the hearing examiner issued a lengthy recommended decision dated October 31, 2001. The recommended decision found the charges against Dr. Hoover were proven, and that her medical license should be revoked, along with additional sanctions.

By order entered November 9, 2001, the Board adopted the hearing examiner's recommendation with some modifications. The Board revoked Dr. Hoover's medical license, but suspended the revocation and placed her on five years probation, with certain restrictions.

Dr. Hoover filed a petition for review of the Board's decision with the circuit court. In Dr. Hoover's petition for review, she assigned error to numerous matters. The circuit court, however, ruled upon only one issue. By order entered December 18, 2002, the circuit court found that the "signatures on [the] Complaint and Notice of Hearing of A. Paul Brooks, Jr., M.D., President, and William T. Wallace, Jr., M.D., M.P.H., Secretary, are not authentic in that said signatures were executed by Ellen Briggs, Administrative Secretary to the Executive Director." As a result of this finding, the circuit court reversed the Board's decision to revoke Dr. Hoover's medical license. From this ruling, the Board filed the instant appeal.

II.

STANDARD OF REVIEW

In this proceeding, the circuit court was called upon to review a decision of an administrative agency. When an administrative decision is reversed by a circuit court,

602 S.E.2d 469
this Court applies the following standard of review
In cases where the circuit court has [reversed] the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of discretion standard and reviews questions of law de novo.

Syl. pt. 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). See Clark v. West Virginia Bd. of Medicine, 203 W.Va. 394, 397, 508 S.E.2d 111, 114 (1998).

III.

DISCUSSION

The circuit court reversed the Board's decision to revoke Dr. Hoover's medical license solely on the ground that the signatures on the complaint were made by an administrative secretary. Before we squarely address the merits of this issue, we must first determine whether the circuit court could properly consider the issue of the authenticity of the complaint signatures. This issue, "having fairly arisen upon the record, will be considered and determined by this Court upon its own motion." Backus v. Abbot, 136 W.Va. 891, 900, 69 S.E.2d 48, 53 (1952) (citations omitted).

A. The Signature Requirement for Issuing a Disciplinary Complaint Against a Medical Doctor is a Jurisdictional Matter

The initial issue we must decide is whether Dr. Hoover's contention that the complaint was not properly signed was an issue that could be raised on appeal to the circuit court. The record in this case shows that Dr. Hoover refused to put on any evidence during the proceedings before the hearing examiner. Dr. Hoover appeared briefly and gave an opening statement. During that opening statement, Dr. Hoover made the following comment: "Well, the important thing is the signature on the subpoenas and the complaint were forged." Dr. Hoover went on to make other comments before she left the proceeding.

The law is clear in holding that "`[a]n opening statement ..., having no evidentiary value, cannot operate to place an issue in controversy.'" State v. Richards, 190 W.Va. 299, 303, 438 S.E.2d 331, 335 (1993) (quoting United States v. Green, 648 F.2d 587, 595 (9th Cir.1981)). See also Alexander v. Jennings, 150 W.Va. 629, 636, 149 S.E.2d 213, 218 (1966) ("In this jurisdiction and in general, the opening statement of counsel is ordinarily intended to do no more than to inform the [factfinder] in a general way of the nature of the action and the defense in order that the [factfinder] may better be prepared to understand the evidence."). Consequently, as a result of Dr. Hoover's decision not to participate in the hearing, no evidence was introduced on her behalf. Specifically, no evidence was submitted on the issue of the possible fatal signature defect in the complaint. It was not until Dr. Hoover appealed the Board's decision to the circuit court that she presented evidence regarding the signatures on the complaint. "Our general rule is that nonjurisdictional questions ... raised for the first time on appeal, will not be considered." Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999). Further, if a party fails to properly raise a nonjurisdictional "defense during [an] administrative proceeding, that party waives the defense and may not raise it on appeal." Fruehauf Trailer Corp. v. W.C.A.B., 784 A.2d 874, 877 (Pa.Cmwlth.2001). See also ESG Watts, Inc. v. Pollution Control Bd., 286 Ill.App.3d 325, 221 Ill.Dec. 778, 676 N.E.2d 299, 307 (1997) ("[Appellant] contends that the Agency failed to provide sufficient notice of the reasons for denial of the permits. However, [appellant] failed to raise this issue in the proceeding before the Board. Hence, it waived the right to raise the issue on appeal."); Board of Registration in Medicine v. Fiorica, 488 A.2d 1371, 1375 (Me.1985) ("[Appellant] waived any defense or objection he may have had by failing to raise such defense or objection before the Administrative Court."); In re Annexation of Territory of Riveredge Township, 46 Ohio App.3d 29, 545 N.E.2d 1287, 1297 (1988) ("[I]f a party does not object to alleged errors ... at an administrative hearing, he waives his right to raise those errors on appeal."). This issue

602 S.E.2d 470
was succinctly addressed by the dissent in West Virginia Board of Medicine v. Shafer, 207 W.Va. 636, 535 S.E.2d 480 (2000), as follows:
In administrative proceedings ..., the circuit court is sitting in the capacity of an appellate court. In such circumstances, it is improper for that court to consider an issue that was not initially raised below. In fact, the West Virginia Administrative Procedures Act specifically directs that a circuit court's review of an administrative proceeding
shall be conducted by the court without a jury and shall be upon the record made before the agency, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken before the court. The court may hear oral arguments and require written briefs.
W. Va.Code § 29A-5-4(f) (1998) (Repl.Vol.1998).

Shafer, 207 W.Va. at 639, 535 S.E.2d at 483 (Davis, J., dissenting).

Although nonjurisdictional issues generally may not be raised for the first time in an appeal, our cases have made clear that jurisdictional matters "`may be raised for the first time on appeal.'" Easterling v. American Optical Corp., 207 W.Va. 123, 132, 529 S.E.2d 588, 597 (2000) (quoting Jan-Care Ambulance Serv., Inc. v. Public Serv. Comm'n of West Virginia, 206 W.Va. 183, 189 n. 4, 522 S.E.2d 912, 918 n. 4 (1999)). Thus, in the instant case we must determine whether an improperly signed administrative disciplinary complaint against a physician presents a jurisdictional issue. This matter is one of first impression for this Court.

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7 practice notes
  • Gill v. City of Charleston, No. 14–0983.
    • United States
    • Supreme Court of West Virginia
    • February 10, 2016
    ...was made at the administrative level, we find the issue waived for purposes of this appeal. See Hoover v. West Virginia Bd. of Med., 216 W.Va. 23, 26, 602 S.E.2d 466, 469 (2004) ("[I]f a party fails to properly raise a nonjurisdictional ‘defense during [an] administrative proceeding, that p......
  • West Va. Med. Imaging v. Harrison, No. 101150.
    • United States
    • Supreme Court of West Virginia
    • May 26, 2011
    ...novo.” Syl. pt. 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).’ Syllabus point 1, Hoover v. West Virginia Board of Medicine, 216 W.Va. 23, 602 S.E.2d 466 (2004).” Syl. Pt. 1, Crouch v. West Virginia Div. of Motor Vehicles, 219 W.Va. 70, 631 S.E.2d 628 (2006). 4. “ ‘In the inte......
  • Fruth v. Powers, No. 16-0797
    • United States
    • Supreme Court of West Virginia
    • October 23, 2017
    ...for appeal, were neither assigned nor argued in the Appellant's brief, they are hereby waived.").12 Hoover v. W. Va. Bd. of Med. , 216 W. Va. 23, 26, 602 S.E.2d 466, 469 (2004) (quoting Shaffer v. Acme Limestone Co., Inc. , 206 W. Va. 333, 349 n.20, 524 S.E.2d 688, 704 n.20 (1999) ).13 W. V......
  • Crouch v. Div. Of Motor Vehicles, No. 32843.
    • United States
    • Supreme Court of West Virginia
    • May 24, 2006
    ...novo.' Syl. pt. 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996)." Syllabus point 1, Hoover v. West Virginia Board of Medicine, 216 W.Va. 23, 602 S.E.2d 466 2. "A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpret......
  • Request a trial to view additional results
7 cases
  • Gill v. City of Charleston, No. 14–0983.
    • United States
    • Supreme Court of West Virginia
    • February 10, 2016
    ...was made at the administrative level, we find the issue waived for purposes of this appeal. See Hoover v. West Virginia Bd. of Med., 216 W.Va. 23, 26, 602 S.E.2d 466, 469 (2004) ("[I]f a party fails to properly raise a nonjurisdictional ‘defense during [an] administrative proceeding, that p......
  • West Va. Med. Imaging v. Harrison, No. 101150.
    • United States
    • Supreme Court of West Virginia
    • May 26, 2011
    ...novo.” Syl. pt. 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).’ Syllabus point 1, Hoover v. West Virginia Board of Medicine, 216 W.Va. 23, 602 S.E.2d 466 (2004).” Syl. Pt. 1, Crouch v. West Virginia Div. of Motor Vehicles, 219 W.Va. 70, 631 S.E.2d 628 (2006). 4. “ ‘In the inte......
  • Fruth v. Powers, No. 16-0797
    • United States
    • Supreme Court of West Virginia
    • October 23, 2017
    ...for appeal, were neither assigned nor argued in the Appellant's brief, they are hereby waived.").12 Hoover v. W. Va. Bd. of Med. , 216 W. Va. 23, 26, 602 S.E.2d 466, 469 (2004) (quoting Shaffer v. Acme Limestone Co., Inc. , 206 W. Va. 333, 349 n.20, 524 S.E.2d 688, 704 n.20 (1999) ).13 W. V......
  • Crouch v. Div. Of Motor Vehicles, No. 32843.
    • United States
    • Supreme Court of West Virginia
    • May 24, 2006
    ...novo.' Syl. pt. 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996)." Syllabus point 1, Hoover v. West Virginia Board of Medicine, 216 W.Va. 23, 602 S.E.2d 466 2. "A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpret......
  • Request a trial to view additional results

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