State v. Stucky

232 W.Va. 299

752 S.E.2d 330

STATE of West Virginia ex rel. Steven O. DALE, Acting Commissioner, West Virginia Division of Motor Vehicles, Petitioner

v.The Honorable James C. STUCKY, In His Official Capacity as Judge of The Thirteenth Judicial Circuit, and Michael Doonan, Respondents

No. 13–0438.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 16, 2013.

Decided Nov. 7, 2013.

Syllabus by the Court

1. “A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va.Code, 53–1–1.” Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).

2. “ ‘In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight’ Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).” Syl. Pt. 1, State ex rel Comm'r. W.Va. Div. of Motor Vehicles v. Swope, 230 W.Va. 750, 742 S.E.2d 438 (2013).

3. “Jurisdiction consists of two elements. One of these elements is jurisdiction of the subject matter and the other is jurisdiction of the person. Jurisdiction of the subject matter must exist as a matter of law. Jurisdiction of the person may be conferred by consent of the parties or the lack of such jurisdiction may be waived.” Syl. Pt. 4, W.Va. Secondary School Activities Comm'n v. Wagner, 143 W.Va. 508, 102 S.E.2d 901 (1958).

4. “ ‘To enable a court to hear and determine an action, suit or other proceeding it must have jurisdiction of the subject matter and jurisdiction of the parties; both are necessary and the absence of either is fatal to its jurisdiction.’ Syllabus Point 3, State ex rel. Smith v. Bosworth, 145 W.Va. 753, 117 S.E.2d 610 (1960).” Syl. Pt. 3, Blankenship v. Estep, 201 W.Va. 261, 496 S.E.2d 211 (1997).

5. “ ‘Whenever it is determined that a court has no jurisdiction to entertain the subject matter of a civil action, the forum court must take no further action in the case other than to dismiss it from the docket.’ Syllabus Point 1, Hinkle v. Bauer Lumber & Home Bldg. Ctr., Inc., 158 W.Va. 492, 211 S.E.2d 705 (1975)” Syl. Pt. 1, Hanson v. Bd. of Educ. of the Cnty. of Mineral, 198 W.Va. 6, 479 S.E.2d 305 (1996).

Patrick Morrisey, Esq., Attorney General, Janet E. James, Esq., Senior Assistant Attorney General, Charleston, WV, for Petitioner.

George J. Cosenza, Esq. Parkersburg, WV, for Respondent, Michael Doonan.

PER CURIAM:

This original proceeding is before the Court upon the petition of Steven O. Dale, Acting Commissioner of the West Virginia Division of Motor Vehicles (“the Commissioner”), which seeks to prohibit the Circuit Court of Kanawha County from accepting jurisdiction of Respondent Michael Doonan's administrative appeal of the Commissioner's order revoking his driver's license. The Commissioner argues that Mr. Doonan improperly filed his petition for review of the Commissioner's order in the Circuit Court of Wood County and that, as a result, that court lacked the authority to transfer the matter to the Circuit Court of Kanawha County. Upon consideration of the record in this matter, the briefs and arguments of the parties, and the applicable legal authority, and for the reasons discussed below, we grant the requested writ.

I. Factual and Procedural Background

The facts relevant to the issue raised in the Commissioner's petition are not in dispute.¹ On January 1, 2010, Mr. Doonan was arrested for driving under the influence of alcohol (“DUI”) in Parkersburg, Wood County, West Virginia. At the time of his arrest, Mr. Doonan was a resident of Wood County. Following an administrative hearing, the Commissioner issued a final order affirming the revocation of Mr. Doonan's driver's license for second offense DUI,² effective December 19, 2012. Counsel for Mr. Doonan received a copy of the final order on December 11, 2012.

On January 10, 2013, Mr. Doonan filed a Petition for Review of the revocation order in the Circuit Court of Wood County pursuant to West Virginia Code § 29A–5–4 (1998).³ At a hearing conducted on January 22, 2013, Mr. Doonan's counsel advised the circuit court that his client had moved to the State of Florida and was no longer a resident of Wood County.⁴ He then requested that the matter be transferred to the Circuit Court of Kanawha County given the statutory requirement that a petition for review must be filed either in the Circuit Court of Kanawha County or in the circuit court of the county in which the petitioner resides or does business. W.Va.Code § 29A–5–4(b). The Commissioner objected to the transfer on the ground that the Circuit Court of Wood County did not have jurisdiction of the administrative appeal and, therefore, lacked the authority to transfer the matter to the Circuit Court of Kanawha County. The Commissioner argued that the matter should be dismissed and then re-filed in Kanawha County. Mr. Doonan countered that the time to file an appeal had expired and that transfer was appropriate. By order entered January 25, 2013, the Circuit Court of Wood County granted Mr. Doonan's request and ordered that the case be transferred to the Circuit Court of Kanawha County.

Thereafter, on February 6, 2013, the Commissioner filed a Notice of Special Limited Appearance and Motion to Dismiss in the Circuit Court of Kanawha County. By order entered April 22, 2013, the Circuit Court of Kanawha County, by the Honorable James C. Stucky, a respondent herein, denied the Commissioner's motion to dismiss and, in a separate order, also granted Mr. Doonan's motion to stay the Commissioner's order revoking his driver's license for a period of 150 days. On May 1, 2013, the Commissioner filed the instant petition for a writ of prohibition seeking to prohibit the Circuit Court of Kanawha County from accepting jurisdiction of Mr. Doonan's administrative appeal. Mr. Doonan filed a response thereto on May 23, 2013, and, on June 4, 2013, this Court issued a rule to show cause.

II. Standard of Review

The current matter concerns whether the Circuit Court of Kanawha County exceeded its legitimate powers by accepting the transfer of Mr. Doonan's administrative appeal from the Circuit Court of Wood County. We previously have held that “[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va.Code, 53–1–1.” Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). More specifically, this Court has held:

“In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

Syl. Pt. 1, State ex rel. Comm'r W. Va. Div. of Motor Vehicles v. Swope, 230 W.Va. 750, 742 S.E.2d 438, 439 (2013). In light of these established guidelines, we proceed to address the issues raised in this petition for a writ of prohibition.

III. Discussion

Judicial review of a final order of the Commissioner revoking a driver's license for DUI is governed by West Virginia's Administrative Procedures Act, §§ 29A–1–1 to 29A7–4. See Swope, 230 W.Va. at 754, 742 S.E.2d at 442; Miller v. Moredock, 229 W.Va. 66, 69, 726 S.E.2d 34, 37 (2011); Muscatell v. Cline, 196 W.Va. 588, 594, 474 S.E.2d 518, 524 (1996); Dean v. W.Va. Dept. of Motor Vehicles, 195 W.Va. 70, 71, 464 S.E.2d 589, 590 (1995); see alsoW.Va.Code § 17C–5A–2(s) (2013) (“A person whose license is at issue and the commissioner shall be entitled to judicial review as set forth in chapter twenty-nine-a [§§ 29A–1–1 et seq.] of this code.”); 91 C.S.R. § 1–3.12.3 (“The person is entitled to judicial review [of the Commissioner's final order] as set forth in W.Va.Code § 29A–5–1 et seq. and in accordance with the applicable statutory...