Williamson v. Harden

• Decision Date: 07 May 2003
• Docket Number: No. 30751.,30751.
• Court: West Virginia Supreme Court
• Parties: Gary W. WILLIAMSON, Plaintiff Below, Appellant, v. Lewis HARDEN, Defendant Below, Appellee.

585 S.E.2d 369

214 W.Va. 77

Gary W. WILLIAMSON, Plaintiff Below, Appellant, v. Lewis HARDEN, Defendant Below, Appellee.

No. 30751.

Supreme Court of Appeals of West Virginia.

Submitted February 11, 2003.

Decided May 7, 2003.

Richard L. Douglas, Esq., Suzanne Williams-McAuliffe, Esq., Martinsburg, West Virginia, Attorneys for Appellant.

Christopher D. Janelle, Esq., Sutton & Janelle, PLLC, Martinsburg, West Virginia, Attorney for Appellee.

PER CURIAM:

Appellant Gary A. Williamson, the plaintiff in an underlying slip and fall case, filed a separate action against appellee Lewis Harden, who had testified as a witness in the trial of the slip and fall case. Dr. Williamson alleged below that Mr. Harden had lied on the stand, and in so doing had committed abuse of process and the tort of outrage against Dr. Williamson. The lower court dismissed pursuant to W. Va. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. For reasons set forth below, we affirm the decision of the trial court.

I. FACTS

Gary Williamson appeals the dismissal of his lawsuit against Lewis Harden for abuse of process and outrage, however the dispute in this appeal originates in a separate action filed by Dr. Williamson against a grocery store. On May 16, 1999, appellant Williamson was shopping at Martin's Food Market in Martinsburg, West Virginia. Appellee Harden was also present at the store. Dr. Williamson allegedly slipped on the remains of a broken jar of pickles. As a result of Dr. Williamson's fall on the slick floor, his grocery cart fell on top of him, injuring him. Dr. Williamson alleged that the accident caused thousands of dollars in damages and resulted in his inability to continue his dental practice. Apparently Mr. Harden was a witness to the injurious pickle-related incident.

Dr. Williamson filed suit against the owner of the store and prior to the trial contacted Mr. Harden about his recollection of the accident. Unbeknownst to Mr. Harden, Dr. Williamson recorded their conversation. On October 3, 2001, the defense called Mr. Harden to the stand and he testified in a manner that Dr. Williamson has characterized as false. Counsel for Dr. Williamson used the audiotape of the earlier conversation to impeach Mr. Harden on the stand. Defense counsel objected and moved for a mistrial because the plaintiff had not provided defense counsel with a copy of the tape during discovery. The trial court granted the motion and declared a mistrial.¹

Within weeks of the first trial, Dr. Williamson filed a new action against Mr. Harden on October 15, 2001, claiming Mr. Harden's testimony constituted abuse of process and outrageous conduct. In his complaint, Dr. Williamson claimed that this conduct caused him mental and physical injuries and subjected him to ridicule and scorn; he demanded $1,000,000 in compensatory damages and $5,000,000 in punitive damages. In response, Mr. Harden filed a motion to dismiss pursuant to W. Va. R. Civ. P. Rule 12(b)(6) and requested sanctions against Dr. Williamson. After several additional motions, on December 21, 2001, the lower court dismissed the case and imposed civil sanctions against Dr. Williamson equal to the cost of defending the action, and amounting to slightly less than $1,000. The lower court denied a motion to reconsider on February 8, 2002, and it is from this final order that Dr. Williamson appeals.

II. STANDARD OF REVIEW

Appellant asks this Court to reverse the lower court's dismissal of his case pursuant to W. Va. R. Civ. P. 12(b)(6). "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); accord, Powell v. Wood County Comm'n, 209 W.Va. 639, 550 S.E.2d 617 (2001)

. Or phrased another way, "[w]hen a circuit court grants a Rule 12(b)(6) motion and dismisses a complaint for failure to state a claim upon which relief can be granted, appellate review of the circuit court's dismissal of the complaint is de novo."

Kessel v. Leavitt, 204 W.Va. 95, 119, 511 S.E.2d 720, 744 (1998),

cert. denied, 525 U.S. 1142, 119 S.Ct. 1035, 143 L.Ed.2d 43 (1999); accord, Shaffer v. Charleston Area Med. Ctr., Inc., 199 W.Va. 428, 433, 485 S.E.2d 12, 17 (1997).

III. DISCUSSION

Dr. Williamson contends that the trial court erred in dismissing the case because his allegations, if taken as true and construed in the light most favorable to him, still stated a claim upon which relief could be granted. Furthermore, Dr. Williamson claims that the trial court erred by not giving him an opportunity to develop the record.

Dr. Williamson argues that a court should rarely grant a 12(b)(6) motion. We have noted that:

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 Company, 160 W.Va. 530, 236 S.E.2d 207 (1977); accord, Napier v. Napier, 211 W.Va. 208, 211, 564 S.E.2d 418, 421 (2002)

; Harrison v. Davis, 197 W.Va. 651, 656, 478 S.E.2d 104, 109 (1996). However, this Court has also stated that:

Nevertheless, despite the allowance in Rule 8(a) that the plaintiff's statement of the claim be "short and plain," a plaintiff may not "fumble around searching for a meritorious claim within the elastic boundaries of a barebones complaint [,]" see Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1430 (7th Cir.1993), or where the claim is not authorized by the laws of West Virginia. A motion to dismiss under Rule 12(b)(6) enables a circuit court to weed out unfounded suits.

State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 776, 461 S.E.2d 516, 522 (1995); accord, Harrison v. Davis, 197 W.Va. 651, 657-58 n. 17, 478 S.E.2d 104, 110-11 n. 17 (1996)

. While courts should make limited use of their power to dismiss cases under Rule 12(b)(6), the rule remains a valuable tool to control a court's docket.

A. Abuse of Process

In the instant case, Dr. Williamson argues that Mr. Harden's trial testimony amounted to abuse of process. This Court has explained that: "`Generally, abuse of process consists of the willful or malicious misuse or misapplication of lawfully issued process to accomplish some purpose not intended or warranted by that process.' Preiser v. MacQueen, , 352 S.E.2d 22, 28 (1985)." Syl. pt. 2, Wayne County Bank v. Hodges, 175 W.Va. 723, 338 S.E.2d 202 (1985). In Hodges, a car dealer had borrowed money from the bank and signed a promissory note, with his parents as co-signers of the note. When the loan went unpaid, the bank sued, and the borrowers counterclaimed, alleging abuse of process and outrage. The lower court granted summary judgment in favor of the bank and this Court affirmed, finding that "the circuit court was correct in concluding that the appellants failed to raise a factual issue with regard to the allegations of abuse of process and outrageous conduct." Id., 175 W.Va. at 726, 338 S.E.2d at 205.

The decision in Hodges relied in large part upon the Court's decision in the case of Preiser v. MacQueen, 177 W.Va. 273, 352 S.E.2d 22 (1985). Preiser concerned a dispute between a newspaper and an attorney who had filed several libel suits against the paper. The paper countersued, alleging malicious prosecution and abuse of process. The attorney asked this Court to prohibit the circuit judge from proceeding with the case on the basis that the statute of limitation had run on the paper's claims. This Court discussed at some length a claim for abuse of process, distinguishing it from an action for malicious prosecution. Relying upon an older Virginia case, this Court explained:

The distinctive nature of an action for abuse of process, as compared with the actions for malicious prosecution and false imprisonment, is that it lies for the improper use of a regularly issued process, not for maliciously causing process to issue, or for an unlawful detention of the person.... The authorities are practically unanimous in holding that to maintain the action [for abuse of process] there must be proof of a willful and intentional abuse or misuse of the process for the accomplishment of some wrongful object—an intentional and willful perversion of it to the unlawful injury of another.

Id. 177 W.Va. at 279, 352 S.E.2d at 28 (quoting Glidewell v. Murray-Lacy and Company, 124 Va. 563, 569, 571, 98 S.E. 665, 667, 668 (1919)).

One case in which both the lower court and this Court found that abuse of process had occurred is that of Pote v. Jarrell, 186 W.Va. 369, 412 S.E.2d 770 (1991) (per curiam). In that case Mr. Pote's company had contracted with the Jarrell bothers to provide a bulldozer and a driver for use in a well project. An emergency occurred on the job after the bulldozer operator had left for the day, so Mr. Pote authorized the use of the bulldozer without obtaining permission from the Jarrells. The Jarrells alleged that the bulldozer was damaged as a result, and when a dispute arose over payment for the damages, the Jarrells succeeded in having Mr. Pote indicted for stealing and damaging the bulldozer. Mr. Pote was acquitted and then sued the Jarrells for malicious prosecution, abuse of process, and other torts. A jury awarded damages to Mr. Pote and the Jarrells appealed. This Court upheld the jury's verdict, stating that "Pote presented sufficient evidence from which a jury could find that he established all of the elements of his causes of action." Id. 186 W.Va. at 374, 412 S.E.2d at 775.

We discuss the Pote case only to note the contrast between the egregious conduct in having Pote indicted for making unauthorized use (in a emergency situation) of equipment he had lawfully rented, with the alleged conduct in the instant case. In this case, Mr. Harden testified as a factual...