Zsigray v. Cindy Langman & J.W. Ebert Corp.

• Decision Date: 27 March 2020
• Docket Number: No. 18-0461,18-0461
• Parties: John R. ZSIGRAY, Petitioner v. Cindy LANGMAN and J.W. Ebert Corporation, d/b/a "McDonalds" Respondents
• Court: West Virginia Supreme Court

842 S.E.2d 716

John R. ZSIGRAY, Petitioner

v.Cindy LANGMAN and J.W. Ebert Corporation, d/b/a "McDonalds" Respondents

No. 18-0461

Supreme Court of Appeals of West Virginia.

Submitted: March 4, 2020

Filed: March 27, 2020

William B. Summers, Esq., Parkersburg, West Virginia, Counsel for the Petitioner

Robert L. Greer, Esq., Jonathon W. Fischer, Esq., GREER LAW OFFICES, PLLC, Clarksburg, West Virginia, Counsel for the Respondents

ARMSTEAD, Chief Justice:

Petitioner John R. Zsigray ("Mr. Zsigray") filed a civil action against Respondents Cindy Langman ("Ms. Langman") and the J.W. Ebert Corporation, d/b/a "McDonalds," alleging claims for libel and slander ("defamation"), outrage, and intentional infliction of emotional distress. The circuit court granted Ms. Langman's Rule 12(b)(6) motion to dismiss the defamation claim, but allowed Mr. Zsigray's remaining claims to go forward. Following discovery, the circuit court granted Ms. Langman's summary judgment motion on the outrage and intentional infliction of emotional distress claims. Mr. Zsigray subsequently filed this appeal.

After review, we affirm the circuit court's order granting summary judgment on the outrage and intentional infliction of emotional distress claims. We affirm, in part, and reverse, in part, the circuit court's order granting Ms. Langman's motion to dismiss the defamation claim. We remand this matter to the circuit court for further proceedings consistent with our ruling herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 8, 2015, Mr. Zsigray and his wife placed an order at the drive-thru window at the McDonald's restaurant in Glenville, West Virginia. Mr. Zsigray asserts that he ordered a "plain chicken sandwich" but only received a plain chicken patty with no bun. Upon discovering that he had received a plain chicken patty, Mr. Zsigray returned to the first drive-thru window, explained that his order was incorrect, and demanded a refund. A McDonald's employee directed him to proceed to the second drive-thru window. Ms. Langman, the restaurant's manager, was at the second window when Mr. Zsigray arrived. Mr. Zsigray's description of what occurred at the second window is as follows:

And we pulled to the next window and there Cindy Langman [was] for whatever reason. And she was trying to give me a lecture on the sandwich and I didn't want a lecture on the sandwich. I asked for a refund. So I called her a stupid f---ing b---- again and she give me my refund and we left. The next thing I know, I have a warrant out for arrest for harassment.

Immediately after this incident, Ms. Langman contacted the West Virginia State Police. West Virginia State Trooper K.J. Varner ("Trooper Varner") was dispatched to the restaurant. Trooper Varner's investigation included both an interview with Ms. Langman and a written statement that she prepared for him. The investigation revealed that Mr. Zsigray had been involved in a prior incident at this McDonald's in which he used vulgar language toward Ms. Langman and allegedly used a racial epithet toward an African-American employee¹ over a dispute involving pancake syrup. This earlier incident occurred a few months prior to the May 2015 incident. In subsequent deposition testimony, Mr. Zsigray described the pancake syrup incident as follows:

When I got to the window to pick them [pancakes] up, I asked Cindy Langman – at that time I didn't know who she was – if she would give me some extra syrup please, and her reply was she was tired of giving me extra syrup all the time. And I like said to myself, "Whoo [sic], who is this woman."

But anyways, I told her, I said, "Ma'am, I don't want you to give me anything, but I do want extra syrup, so put it in the bag and, if you need to, charge me for it."

Well, she just went on and on and I told her just give me back my money. So when she put the money in my hand she told me not to come back and I just looked at her and called her a stupid f---ing b---- and drove off.

Ms. Langman told Trooper Varner that Mr. Zsigray used foul language toward her, and that "she felt very threatened by him and his actions and does not feel safe with him."² Trooper Varner's criminal complaint states that he reviewed "the aforementioned interaction [depicting the chicken sandwich incident] ... on video surveillance and observed Mr. Zsigray open the drive-thru window after a worker had closed it to keep him from yelling into the business."³ Based upon Trooper Varner's investigation, Mr. Zsigray was charged with criminal harassment pursuant to W. Va. Code § 61-2-9a(b).⁴ The matter proceeded to a jury trial in magistrate court. Ms. Langman testified during this trial. The jury found Mr. Zsigray not guilty of criminal harassment.

After the magistrate court trial concluded, Mr. Zsigray filed a complaint alleging defamation, outrage, and intentional infliction of emotional distress against Ms. Langman, and her employer, the J.W. Ebert Corporation, d/b/a McDonalds. The defamation claim was based on 1) Ms. Langman's oral and written statements to Trooper Varner, and 2) her testimony during the magistrate court trial. The complaint alleged that the defendants, Ms. Langman and the J.W. Ebert Corporation, "slandered and libeled the Plaintiff by intentionally and maliciously making false and misleading statements both orally and in writing in the public domain and in Court with the intent to damage ... the Plaintiff."

Ms. Langman filed a Rule 12(b)(6) motion to dismiss Mr. Zsigray's lawsuit. While this motion sought to dismiss the entire lawsuit, it mainly addressed the defamation claim. Ms. Langman argued that her statements "were not defamatory, they were privileged communications and they were not false statements." Further, Ms. Langman asserted that her statements "are absolutely privileged as they were made to law enforcement as a preliminary step to initiation of a judicial action and then to the jury in the pendency of the judicial action." Ms. Langman argued that if the circuit court determined that her statements to Trooper Varner and in the magistrate court trial were not absolutely privileged, they "are still [entitled to] qualified privilege as they were made by [Ms. Langman] in an attempt to protect herself, her employees and the Defendant McDonalds’ interests."

The circuit court granted Ms. Langman's motion to dismiss the defamation claim by order entered on April 17, 2017. The circuit court determined that Ms. Langman's statements to Trooper Varner were "made during the institution of a judicial proceeding, and therefore those statements are ... absolutely privileged." The circuit court also found that Ms. Langman's "statements made at the [magistrate court] trial were made in the course of a judicial proceeding and are therefore absolutely privileged." The circuit court denied the motion to dismiss on the outrage and intentional infliction of emotional distress claims, and the case proceeded to discovery.

Following discovery, Ms. Langman filed a motion for summary judgment on the outrage and intentional infliction of emotional distress claims. The circuit court granted the motion, concluding that

[t]he Court finds that Defendant Langman's conduct cannot reasonably be considered so extreme and outrageous as to constitute the intentional or reckless infliction of emotional distress. Defendant Langman was working in a public place, and she had just encountered the plaintiff for a second time, wherein the plaintiff, by his own admission, for a second time used inappropriate and aggressive language towards her. It does not exceed the bounds of decency or offend community notions of acceptable conduct for an individual working in a restaurant to report an incident with a customer to law enforcement. Seeking the assistance of law enforcement and the criminal justice system is not extreme and outrageous conduct as a matter of law.

Additionally, the court concluded that based on Mr. Zsigray's own testimony regarding the incident, "the Court does not find that it [Ms. Langman's reporting the incident to the police] was extreme or outrageous." After the circuit court entered its summary judgment order on April 20, 2018, Mr. Zsigray filed the instant appeal.

II. STANDARD OF REVIEW

Mr. Zsigray appeals the circuit court's orders granting Ms. Langman's 1) Rule 12(b)(6) motion to dismiss the defamation claim, and 2) summary judgment motion on the outrage and intentional infliction of emotional distress claims. We therefore set forth our standards of review when considering a circuit court's ruling on a Rule 12(b)(6) motion to dismiss and on a summary judgment motion.

This Court has explained that "[t]he purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the complaint." Collia v. McJunkin , 178 W. Va. 158, 159, 358 S.E.2d 242, 243 (1987) (citations omitted). " ‘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.’ Conley v. Gibson , 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)." Syl. Pt. 3, Chapman v. Kane Transfer Co., Inc. , 160 W. Va. 530, 236 S.E.2d 207 (1977). "Dismissal for failure to state a claim is proper where it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Murphy v. Smallridge , 196 W. Va. 35, 36, 468 S.E.2d 167, 168 (1996) (Internal quotation omitted.) Further, "[a]ppellate 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).

We have held that "[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,

[s]ummary judgment is appropriate if, from the totality of the evidence...