Kent v. Sullivan

901 S.E.2d 500

Todd KENT, Mark Spessert, Christopher Kutcher, City of Charles Town, Bradley Meacham, Glenna Hosby-Brown, William Roper, and City of Ranson, Defendants Below, Petitioners,

v.Christopher SULLIVAN, Plaintiff Below, Respondent.

No. 22-0428

Supreme Court of Appeals of West Virginia.

Submitted: March 13, 2024

Filed: May 9, 2024

Syllabus by the Court

1. "Under Rule 12 of the West Virginia Rules of Civil Procedure, a circuit court’s denial of a motion to dismiss a complaint that is predicated on the statutory immunity conferred by the Governmental Tort Claims and Insurance Reform Act is an interlocutory ruling that is subject to immediate appeal under the ‘collateral order’ doctrine." Syl. Pt. 5, State ex rel. Grant Cnty. Comm’n v. Nelson, 244 W. Va. 649, 856 S.E.2d 608 (2021).

2. " ‘A circuit court’s denial of a motion to dismiss that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the "collateral order" doctrine.’ Syllabus point 1, West Virginia Board of Education v. Marple, 236 W. Va. 654, 783 S.E.2d 75 (2015)." Syl. Pt. 1, W. Va. Reg’l Jail and Corr. Facility v. Estate of Grove, 244 W. Va. 273, 852 S.E.2d 773 (2020).

3. "When a party, as part of an appeal from a final judgment, assigns as error a circuit court’s denial of a motion to dismiss, the circuit court’s disposition of the motion to dismiss will be reviewed de novo." Syl. Pt. 4, Ewing v. Bd. of Educ of Cnty. of Summers, 202 W. Va. 228, 503 S.E.2d 541 (1998).

4. " ‘[This Court] may, sua sponte, in the interest of justice, notice plain error.’ Syl. Pt. 1, in part, State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (1998)." Syl. Pt. 1, Cartwright v. McComas, 223 W. Va. 161, 672 S.E.2d 297 (2008).

5. " ‘ " ‘To trigger application of the "plain error" doctrine there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.’ Syllabus point 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995)." Syllabus Point 7, Page v. Columbia Natural Resources, Inc., 198 W. Va. 378, 480 S.E.2d 817 (1996).’ Syl. Pt. 12, Keesee v. General Refuse Service, Inc., 216 W. Va. 199, 604 S.E.2d 449 (2004)." Syl. Pt. 2, Cartwright v. McComas, 223 W. Va. 161, 672 S.E.2d 297 (2008).

Appeal from the Circuit Court of Jefferson County, The Honorable Debra McLaughlin, Judge, Civil Action No. 21-C-136

Matthew R. Whitler, Esq., PULLIN, FOWLER, FLANIGAN, BROWN & POE, LLC, Martinsburg, West Virginia, Counsel for Petitioners Todd Kent, Mark Spessert, Christopher Kutcher, and the City of Charles Town, Keith C. Gamble, Esq., PULLIN, FOWLER, FLANIGAN, BROWN & POE, LLC, Morgantown, West Virginia, Counsel for Petitioners Bradley Meacham, Glena Hosby-Brown, William Roper, and the City of Ranson

Michael T. Logsdon, II, Esq., Sutton & Janelle, PLLC, Martinsburg, West Virginia, Counsel for Respondent

WOOTON, Justice:

The petitioners/defendants below, Officers Bradley Meacham and Glenna Hosby-Brown, Chief William Roper, and the City of Ranson, ("Ranson petitioners"), as well as Officer Todd Kent, Sgt. Mark Spessert, Chief Christopher Kutcher,¹ and the City of Charles Town ("Charles Town petitioners") (collectively "the petitioners"), appeal the May 3, 2022, order of the Circuit Court of Jefferson County, West Virginia, partially granting the petitioners’ motion to dismiss the amended complaint filed by the respohdent/plaintiff below, Christopher Sullivan. The respondent asserted twenty-three state law causes of action against the petitioners following a confrontation that he had with the petitioner police officers which led to his arrest on various charges including disorderly conduct and driving under the influence ("DUI").² The Ranson petitioners and the Charles Town petitioners filed two separate motions to dismiss the respondent’s amended complaint pursuant to West Virginia Rule of Civil Procedure 12(b)(6), alleging varying theories of immunity.

In its order resolving the petitioners’ motions, and of key importance to the issues before us, the circuit court applied both the analytical framework of West Virginia Regional Jail and Correctional Facility Authority v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014) and West Virginia Regional Jail and Correctional Facility Authority v. Estate of Grove, 244 W. Va. 273, 852 S.E.2d 773 (2020), as well as the West Virginia Governmental Tort Claims and Insurance Reform Act ("the Tort Claims Act"), W. Va. Code §§ 29-12A-1 to -18 (2023), in resolving the immunity issues.³

After careful review of the briefs of the parties, their oral arguments, the appendix record, and the applicable law, we reverse the circuit court’s decision and remand for further proceedings consistent with this opinion. Insofar as none of the petitioners’ assigned errors⁴ address the overarching error in the circuit court’s decision, we sua sponte find that the court committed plain error⁵ by basing its immunity decisions on common law qualified immunity principles which are only applicable to the State, its agencies, officials, and employees, rather than applying the provisions of the Tort Claims Act, which govern immunity for the claims asserted against the petitioners as they are undisputedly political subdivisions and employees of political subdivisions.

I. Facts and Procedural Background

The respondent’s amended complaint alleges⁶ that on the night of September 28, 2019, he observed the police vehicles of Officer Meacham and Sgt. Spessert parked in a privately owned parking lot that served the residents of an apartment complex where the respondent resided; however, their vehicles were not positioned in individually marked parking spaces. The officers were responding to a vehicle break-in call at the apartment complex. While he was driving past the officers, the respondent made remarks out his window to the officers about their parking, after which he parked his own vehicle. Officer Meacham then confronted him, allegedly without reasonable suspicion that the respondent had committed any crime, and a verbal altercation ensued between the two. During the verbal altercation which included profanity by both individuals and threats of jail and hospitalization made by Officer Meacham, Officer Meacham warned the respondent to stop loudly cursing at the officers or else he would be arrested for disorderly conduct. The respondent started to walk away yet he continued to argue with Officer Meacham, using profane language. Officer Meacham arrested the respondent for disorderly conduct and used two sets of handcuffs to restrain him, one of the sets coming from Sgt. Spessert. Additionally, as the respondent was being transported to the police vehicle, Officer Meacham used a leg sweep to take him to the ground after he asked the officers to pick up his belongings. He alleges that he injured his head when he fell to the ground and, despite his requests, none of the police officers contacted or sought medical assistance for him.

After the respondent was placed in a police cruiser, Officer Meacham stated that he wanted to "add [driving under the influence ("DUI")] now because he’s just running his mouth." The officers claim that they detected an odor of alcohol on the respondent prompting them to reasonably suspect a possible DUI. The respondent rejected the officers’ request that he perform field sobriety tests but claims he did not refuse a preliminary breathalyzer test; however, the officers contend that they understood the respondent's refusal to take the field sobriety tests as a refusal of the preliminary breathalyzer test. The respondent contends that he was not lawfully arrested because he did not affirmatively refuse either the preliminary or secondary chemical breath tests and he was not given paperwork explaining the penalties for refusing a breath test. He asserts that he was further harassed and verbally abused by Officers Kent and Hosby-Brown after he was arrested and placed inside a police vehicle.

Ultimately, the respondent was charged with disorderly conduct, DUI, battery on an officer, obstructing an officer, resisting arrest, fingerprint refusal, and destruction of property. The State later dismissed the charges for fingerprint refusal, DUI, and destruction of property; a jury found the respondent not guilty of obstructing an officer and disorderly conduct, and a magistrate entered a judgment of acquittal on the charge of battery on an officer.

On September 27, 2021, the respondent filed a 244-paragraph amended complaint⁷ against the petitioners, containing twenty-three counts for the following state law causes of actions: common law assault, common law battery, outrageous conduct, three counts of intentional infliction of emotional distress, three counts of negligent infliction of emotional distress, malicious prosecution relating to the Department of Motor Vehicles, three counts of malicious prosecution, negligence, gross negligence, four counts of negligence in employment (employment, entrustment, retention, training, and supervi- sion), and failure to intervene. The amended complaint also contained respondeat superior claims against the petitioners the City of Ranson and the City of Charles Town related to the allegations against the petitioner police officers.

In response to the respondent’s amended complaint, the Charles Town petitioners and the Ranson petitioners filed separate motions to dismiss pursuant to West Virginia Rule of Civil Procedure 12(b)(6). Interestingly, the Ranson petitioners claimed immunity only under the Tort Claims Act, see W. Va. Code §§ 29-12A-1 to -18, which affords immunity in certain circumstances to political subdivisions and their employees. In contrast, the Charles Town petitioners first argued that they were entitled to immunity under the Tort Claims Act but then later argued that they were entitled to "qualified immunity" under this Court’s body of case law...