Kelley v. City of Williamson, West Virginia

• Decision Date: 21 November 2007
• Docket Number: No. 33311.,33311.
• Parties: Grady Colin KELLEY, II, and Frieda Carol Kelley, Plaintiffs Below, Appellants v. The CITY OF WILLIAMSON, WEST VIRGINIA, A Municipal Corporation, and Michael Barnes, Individually and in his Capacity of a Police Officer Employed by the City of Williamson, Defendants Below, Appellees.
• Court: West Virginia Supreme Court

655 S.E.2d 528

Grady Colin KELLEY, II, and Frieda Carol Kelley, Plaintiffs Below, Appellants v. The CITY OF WILLIAMSON, WEST VIRGINIA, A Municipal Corporation, and Michael Barnes, Individually and in his Capacity of a Police Officer Employed by the City of Williamson, Defendants Below, Appellees.

No. 33311.

Supreme Court of Appeals of West Virginia.

Submitted September 19, 2007.

Decided November 21, 2007.

Syllabus by the Court

1. "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).

2. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

3. "If there is no genuine issue as to any material fact summary judgment should be granted but such judgment must be denied if there is a genuine issue as to a material fact." Syl. Pt. 4, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

4. "A party who moves for summary judgment has the burden of showing that there is no genuine issue of material fact and any doubt as to the existence of such issue is resolved against the movant for such judgment." Syl. Pt. 6, Aetna Cas. & Sur. Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).

5. "Roughly stated, a `genuine issue' for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict for that party. The opposing half of a trialworthy issue is present where the non-moving party can point to one or more disputed `material' facts. A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law." Syl. Pt. 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995).

6. "West Virginia Code § 29-12A-5(b) provides that employees of political subdivisions are immune from personal tort liability unless `(1) [h]is or her acts or omissions were manifestly outside the scope of employment or official responsibilities; (2)[h]is or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or (3)[I]iability is expressly imposed upon the employee by a provision of this code.'" Syl. Pt. 1, Beckley v. Crabtree, 189 W.Va. 94, 428 S.E.2d 317 (1993).

Thomas M. Plymale, Plymale & Maddox, PLLC, Huntington, for the Appellants.

Duane J. Ruggier, II, Katherine MacCallum Nichols, C. Scott Applegate, Pullin, Fowler & Flanagan, PLLC, Charleston, for the Appellee, The City of Williamson.

David J. Mincer, Vaughn T. Sizemore, Bailey & Wyant, PLLC, Charleston, for the Appellee, Michael Barnes.

PER CURIAM:

Grady Colin Kelley, II, and Frieda Carol Kelley (hereinafter "Appellants" or "Mr. Kelley and Mrs. Kelley") appeal from orders of the Circuit Court of Mingo County granting summary judgment to Appellees City of Williamson and Williamson police officer Michael Barnes. The Appellants allege that the trial court erred in granting summary judgment where genuine issues of material fact exist for jury determination in the underlying civil actions which were initiated by the Appellants as a result of the issuance of a citation to Mr. Kelley and the arrest of Mrs. Kelley in the early morning hours of July 23, 2000, in the City of Williamson. Subsequent to thorough review of the record, arguments of counsel, and applicable precedent, this Court reverses the orders of summary judgment and remands these matters to the trial court for additional proceedings consistent with this opinion.

I. Factual and Procedural History

On July 23, 2000, Appellant Mr. Kelley closed the bar he operated in Williamson, West Virginia, called "Colie's Club," and he proceeded toward his home in his automobile, with several other passengers in the vehicle. During the ride home, Mr. Kelley realized that he had left a cash bag at the bar, and he returned to the bar to retrieve the bag. Once at the location of the bar, Mr. Kelley went inside and asked his passengers to wait in the small entrance area between the bar's outer and inner doors. Mr. Kelley retrieved the cash bag and proceeded toward the front of the bar to leave. He was greeted by Officer Michael Barnes of the Williamson Police Department. Mr. Kelley contends that Officer Barnes told Mr. Kelley, "I told you I got you. I was going to get you." Mr. Kelley maintains that animosity had existed between Mr. Kelley and Officer Barnes based upon prior incidents.¹

As Officer Barnes escorted Mr. Kelley and his companions out of Colie's Club, Mr. Kelley maintains that Officer Barnes pushed him against the police cruiser. After Officer John Hall arrived at the scene, Mr. Kelley and the others were taken to the Williamson Police Department. Mr. Kelley was issued a citation for the violation of ABCC regulations requiring private clubs to be vacated by 3:30 a.m. on Sunday mornings. See CSR 175-2-4.7 and 175-2-4.8.² To prove the allegations asserted against Mr. Kelley, it would have been necessary for Officer Barnes to prove that Mr. Kelley was in the bar after 3:30 a.m. That essential fact is in dispute. The criminal citation filed on July 23, 2000, indicates that the offense occurred at 4:30 a.m., but the statement Officer Barnes made in the criminal complaint sworn before Magistrate Greene on January 22, 2001, indicates that it occurred "after the hour of 4:00 a.m." According to Mr. Kelley, he did not know precisely what time he was retrieving the cash bag from the bar, but he testified that "it was close" to 3:30 a.m.³ Mr. Kelley telephoned his family at approximately 4:00 a.m. to inform them that he was in custody at the police station.

Upon learning that her son was in custody, Appellant Mrs. Kelley and her husband, Colin Kelley, Sr., proceeded to the Williamson Police Department. Mrs. Kelley testified that, upon arriving at the police station, she informed Officer Barnes that she was concerned for the safety of her son and nephew, one of the passengers in Mr. Kelley's automobile. All parties agree that Officer Barnes asked Mrs. Kelley to leave the police station, alleging that she was behaving in a disruptive manner. Mrs. Kelley informed the officers that she refused to leave without her son and nephew. Mrs. Kelley was eventually handcuffed and arrested for disorderly conduct and willful disruption of a governmental process.⁴ Mrs. Kelley denies allegations that she interfered with the performance of the officers' duties, behaved in a rude and aggressive manner, used profanity, and employed racial slurs toward Officer Barnes.⁵

Mr. Kelley and Mrs. Kelley filed separate lawsuits against Officer Barnes and the City of Williamson.⁶ Mr. Kelley's complaint asserted four causes of action: the tort of outrage; battery; false swearing by Officer Barnes in the criminal complaint; and negligence by the City in hiring and supervising Officer Barnes. Mrs. Kelley's complaint asserted four causes of action: the tort of outrage; intentional infliction of emotional distress; battery; and false swearing by Officer Barnes. The two actions were consolidated by order dated April 17, 2005, but the trials were scheduled to be bifurcated.

Upon motions for summary judgment filed by Officer Barnes and the City, the trial court found that the arrest of Mrs. Kelley and the citation issued to Mr. Kelley were lawful and proper.⁷ The trial court granted summary judgment to Officer Barnes on the Mr. Kelley action by order entered January 10, 2006; summary judgment to Officer Barnes on the Mrs. Kelley action by order entered March 17, 2006; summary judgment to the City on the Mrs. Kelley action by order entered April 10, 2006; and summary judgment to the City on the Mr. Kelley action by order entered April 21, 2006. This Appellants assert that the trial court erred in granting summary judgment to the City and Officer Barnes, contending that genuine issues of material fact exist which should preclude the granting of summary judgment.

II. Standard of Review

Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment is required when the record reveals that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." W.Va. R. Civ. Pro. 56(c); see also Hager v. Marshall, 202 W.Va. 577, 505 S.E.2d 640 (1998). In examining a trial court's entry of summary judgment, this Court applies a de novo standard of review. See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) ("A circuit court's entry of summary judgment is reviewed de novo").

This Court has repeatedly stated that "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). In syllabus point four of Aetna Casualty, this Court explained: "If there is no genuine issue as to any material fact summary judgment should be granted but such judgment must be denied if there is a genuine issue as to a material fact."

In determining whether a genuine issue of material fact exists, this Court construes the facts in the light most favorable to the party against whom summary judgment was granted. Alpine Prop. Owners Assn. v. Mountaintop Dev. Co., 179 W.Va. 12, 365 S.E.2d 57 (1987). Syllabus point six of Aetna Casualty also explains: "A party who moves for summary judgment has the burden of showing that there is no genuine issue of material fact and any doubt as to the existence of such issue is resolved against ...