Full Opinion (html_with_citations)

       IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
                                                                                   FILED
                                                                              December 15, 2023
TIMOTHY HALL,
                                                                                EDYTHE NASH GAISER, CLERK
Plaintiff Below, Petitioner                                                   INTERMEDIATE COURT OF APPEALS
                                                                                     OF WEST VIRGINIA

vs.) No. 22-ICA-200           (Cir. Ct. Berkeley Cnty. No. CC-02-2022-C-11)

PHILLIS GAIL ENSOR, THOMAS BEACH III,
SCOTT FORD, EDWARD TURNBOW, LARRY
MUNDAY, DENA BONEBRAKE, AND
JUSTIN SCHOOLEY,
Defendants Below, Respondents


                              MEMORANDUM DECISION

       Petitioner Timothy Hall appeals the Circuit Court of Berkeley County’s August 30,
2022, “Final Order of Dismissal With Prejudice” which granted his pro se motion to
dismiss, and the circuit court’s September 28, 2022, “Order Denying Motion to Amend”
which affirmed the dismissal with prejudice. Respondents Scott Ford, Dena Bonebrake,
and Justin Schooley filed timely responses. 1 Petitioner filed a reply. Plaintiff Joy Hall and
Respondents Phillis Gail Ensor, Thomas Beach III, Edward Turnbow, and Larry Munday
did not participate in this appeal.

       This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the lower tribunal’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

        This case arises out of an alleged dispute between Dr. Timothy Hall and his aunt,
Phillis Ensor, regarding the use of a family farm. Dr. Hall and his wife, Joy Hall, filed suit
in Berkeley County Circuit Court in January 2022, alleging various harassments and threats
made against them by Ms. Ensor, her attorney, Thomas Beach III, as well as Scott Ford,
Edward Turnbow, Larry Munday, and Dena Bonebrake. The Halls also alleged that Justin
Schooley, in his role as Assistant Superintendent of Human Resources for Berkeley County


       1
        Petitioner is self-represented. Scott Ford is represented by William J. Powell, Esq.
Dena Bonebrake is represented by Alex A. Tsiatsos, Esq. Justin Schooley is represented
by Tracey Eberling, Esq.


                                              1
Schools, leaked information to the public about Joy Hall’s application for a job, while also
preventing her application’s passage to the accounting department as part of an effort to
obstruct her opportunity for employment. The Halls claim that they “spent years living
under the threat of surveillance and potential physical danger of uncertain character and
have suffered significant emotional distress as a result thereof.” Circuit Judge Bridget
Cohee was assigned to the case.

       In response to the Amended Complaint, Respondents Bonebrake and Ford filed
Answers. On May 16, 2022, Respondent Schooley filed a motion to dismiss pursuant to
Rule 12(b)(6) contending that he was entitled to statutory immunity, which was granted on
June 22, 2022. Respondent Ensor filed a motion to dismiss on May 26, 2022, and
Respondents Bonebrake and Ford filed motions to dismiss on June 28, 2022, and July 14,
2022, respectively.

        The Halls’ counsel, Christian Riddell, filed a motion to withdraw on June 27, 2022.
On June 28, 2022, Mr. Riddell filed a Motion to Stay Discovery and Extend Time for
Plaintiffs’ Response to Defendant Ensor’s Motion to Dismiss. Respondent Ford filed a
Motion to Schedule a Status Conference to address the pending motions to withdraw and
for stay. By its order of June 30, 2022, the circuit court set the hearing for July 18, 2022,
and ordered the Halls to attend in person. On July 5, 2022, after receiving notice of a
scheduling conflict, the circuit court reset the status conference for August 18, 2022. The
Halls’ counsel filed a Motion for Hearing on his motion to withdraw as counsel on July 11,
2022. On July 13, 2022, the court set the hearing on the motion to withdraw for August 18,
2022.

       Also on July 13, 2022, Judge Cohee entered an “Order Regarding Potential
Conflict” indicating that she “was a practicing attorney with the law firm of Steptoe &
Johnson PLLC, from 2000-2016” and while she concluded this did not create a direct
conflict that required her to disqualify herself, she indicated that “any party may challenge
the Court’s impartiality if there is a substantial reason.” The order further reflected that she
would voluntarily disqualify herself if any party sought disqualification “based on an
appearance of bias or impartiality.” The deadline for motions to disqualify pursuant to West
Virginia Trial Court Rule 17 was set for August 1, 2022.

       On August 1, 2022, the Halls’ counsel filed a Motion to Enlarge, noting that he had
communicated with his client about the potential conflict, and while he had asked for a
response regarding his client’s position, no response was received. Independent of their
counsel, the Halls filed a Motion for Disqualification on August 1, 2022, alleging that they
had made a request for an investigation and/or a complaint to the West Virginia Attorney
General’s office and to the United States Attorney for the Northern District of West
Virginia on July 7, 2022, which they assert was the cause for Judge Cohee to file her notice
of potential conflict. The Halls asserted that Judge Cohee should be disqualified based on
her past employment at Steptoe & Johnson because counsel from that firm represented both


                                               2
Justin Schooley and Scott Ford, and because they believed Steptoe & Johnson had ties to
WVU Medicine “to which a Federal OSHA and West Virginia State Patient Safety Act
case against WVU-Berkeley Medical Center are pending.” The Halls also cited violations
of Rule 2.3 of the Code of Judicial Conduct that they believed their lawyer had committed.
Accordingly, Judge Cohee advised the Chief Justice of the Supreme Court of Appeals of
West Virginia of the Halls’ motion for disqualification, and the case was reassigned to
Judge Steven Redding by Administrative Order dated August 15, 2022, to “avoid even an
appearance of impropriety.”

       The case proceeded with the briefing of the outstanding motions to dismiss, with
the Halls appearing pro se, even though it appears from the underlying record that their
counsel’s motion to withdraw had not been decided. A hearing was set by the circuit court
for September 9, 2022, to address the status of the case and all pending motions. On August
29, 2022, the Halls, pro se, moved to dismiss their case without prejudice, citing the
conduct of their counsel and the perceived conflict of interest of the previous trial judge.
With regard to their counsel, their motion stated,

               Christian Riddell filed for a Motion for Withdrawal from the case and
       has breached attorney-client confidentiality, deteriorated the attorney-client
       relationship, been negligent in his representation as well as failure to
       acknowledge conflicts of interest within his law firm. Mr. Riddell has not
       acted in our interest in this matter and continues to be inconsistent with
       communication to us and actions he is filing with the court. It was continually
       stressed to Mr. Riddell that these individuals not only acted in concert with
       other parties but also, in their respective roles in appointed positions and/or
       employed positions and these various agencies (Berkeley County Schools,
       etc.), boards, (Baltimore County Agricultural Land Preservation Board;
       Maryland Agricultural Resource Council, etc.) and businesses (Whiteford,
       Taylor and Preston law firm with Emily Lashley excluded as well, etc.)
       should be held accountable and listed as well. There is no confidence in his
       representation going forward. The cost and time consumption of obtaining
       new representation at this point in this civil case creates undue financial
       hardship and time constraints.

Respondent Ford responded to the Motion by e-filing on August 30, 2022, indicating that
he did not oppose the motion. Later that day, the court entered a “Final Order of Dismissal
with Prejudice.” The order did not state any reason for granting with prejudice or note that
the Plaintiffs requested it be entered without prejudice.

        The Halls filed a “Motion to Amend” the August 30, 2022, order on September 6,
2022, requesting that it be changed to reflect a dismissal without prejudice. The motion
stated that Plaintiffs “requested a Motion for Dismissal Without Prejudice so options for
re-filing and relief in these matters was preserved due to the hardship and procedural issues


                                             3
previously stated.” The circuit court entered a Scheduling Order pursuant to West Virginia
Trial Court Rule 22 on September 6, 2022, ordering the Halls to e-file a memorandum of
law in support of their motion and serve all non-moving parties, and providing a briefing
schedule for responses (15 calendar days) and a reply memorandum (10 days from the date
of service of the response). The parties were further ordered to e-file proposed orders at the
conclusion of the pleading cycle. The order noted that the court would thereafter rule on
the motion based on the pleadings and the record or schedule a hearing.

        However, the Halls did not file a memorandum of law as ordered. Respondent
Bonebrake filed an opposition brief on September 20, 2022; Respondent Ford thereafter
filed a response indicating that he perceived no merit to the Halls’ claims, but also had no
good faith basis to argue that the dismissal should be with prejudice.

       On September 28, 2022, the circuit court denied the Halls’ Motion to Amend
without a reply brief having been filed by the Halls or any party filing a proposed order.
The circuit court’s order noted that the Halls had not obtained a stipulation from the other
parties concerning the dismissal and that, as the court was proceeding under Rule 41(a)(2)
of the West Virginia Rules of Civil Procedure, it was within the court’s discretion to place
“terms and conditions” on the dismissal in light of the Halls’ election to file a motion to
dismiss versus a stipulation. The court construed the Halls’ motion to amend as a motion
pursuant to Rule 59(e) that allowed courts to alter or amend judgments in certain
circumstances but noted that Rule 59(e) is an “extraordinary remedy which should be used
sparingly.” Mey v. Pep Boys – Manny, Moe & Jack,
228 W. Va. 48, 56-57
,
717 S.E.2d 235, 243-44
 (2011).

       The circuit court found that it had correctly dismissed the case with prejudice,
finding that:

       Even before the Plaintiffs’ pro se filings, it was clear that the allegations in
       this case were without merit. The Court had already dismissed the amended
       complaint with respect to former Defendant Schooley, and additional
       motions to dismiss had been filed on many of the same grounds. Crucially,
       even had the Plaintiffs sought to amend their complaint yet again, no
       amendment would have cured the basic errors that gave rise to the previous
       order of dismissal and the subsequent motions – namely, the lack of any
       statutory causes of action and the speculative nature of the Plaintiffs’
       allegations. . . .

               And the Plaintiffs’ subsequent pro se filings – which make immaterial
       references to the West Virginia Attorney General, the United States Attorney
       for the Northern District of West Virginia, the Baltimore County Agricultural
       Land Preservation Board and the Maryland Agricultural Resource Council,
       among other individuals and entities – do nothing to suggest a different


                                              4
       outcome. See, e.g., Johnson v. Pinson,
244 W. Va. 405
, 415-16,
854 S.E.2d 225
, 235-36 (2020) (notwithstanding the fact that amendments are liberally
       allowed, “it is not an abuse of discretion to deny a motion to amend if the
       proposed amendment would be futile; an amendment is futile if the proposed
       claim would not survive a summary judgment motion. An amendment is also
       futile if, for example, it merely … reasserts a claim on which the court
       previously ruled, fails to state a legal theory, or could not withstand a motion
       to dismiss”) (citations and internal punctuation omitted); see also Andon,
       LLC v. City of Newport News,
813 F.3d 510, 516
 (4th Cir. 2016) (affirming
       dismissal of complaint with prejudice when amendment would have been
       futile).

       Therefore, the circuit court denied the Halls’ motion to amend, and it is from that
order and the underlying order of dismissal that Dr. Hall appeals herein. 2

       Our standard of review is as follows: “[u]nder Rule 41(a)(2), the determination of a
motion for voluntary dismissal is within the sound discretion of the trial court.” State ex
rel. Div. of Hum. Servs. by Mary C.M. v. Benjamin P.B.,
183 W. Va. 220
, 223 n.5,
395 S.E.2d 220
, 223 n.5 (1990). “Only where we are left with a firm conviction that an error
has been committed may we legitimately overturn a lower court’s discretionary ruling.”
Covington v. Smith,
213 W. Va. 309, 322
,
582 S.E.2d 756, 769
 (2003). Moreover, the same
standard applies to the Halls’ motion to amend. “The standard of review applicable to an
appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P.
59(e), is the same standard that would apply to the underlying judgment upon which the
motion is based and from which the appeal to this Court is filed.” Syl. Pt. 1, Wickland v.
Am. Travellers Life Ins. Co.,
204 W. Va. 430
,
513 S.E.2d 657
 (1998).

       On appeal, Dr. Hall argues that the circuit court erred in denying his motion to
amend without waiting the full ten days for his reply under the published briefing schedule,
and that the plaintiffs were at a disadvantage as pro se plaintiffs who did not have the advice
of counsel when they filed their motion to dismiss without seeking the stipulation of the
other parties. Dr. Hall further argues that Judge Cohee erred in filing her Order for Possible

       2
         Dr. Hall filed a Notice of Appeal on October 27, 2022. The ICA issued a
Scheduling Order on November 1, 2022, ordering Dr. Hall to perfect his appeal by January
30, 2023. We note that rather than timely perfecting his appeal, Dr. Hall filed a “Motion to
Hold Case in Abeyance of Consideration” asking for an abeyance of all proceedings in the
appeal because of “pending requests for investigation submitted to law enforcement
agencies” and his concerns about attorney William J. Powell’s representation of Scott Ford,
the need for “an investigation into” Judge Cohee’s dismissal of Justin Schooley, and the
withdrawal of the Halls’ counsel, Mr. Riddell, none of which are issues on appeal before
this Court. The motion was opposed by respondents and was not granted.


                                              5
Conflict after the dismissal of Justin Schooley was entered, and that there were other
procedural issues not addressed by the circuit court, including, for example, that defendant
Thomas Beach III was never served with the complaint.

        Upon review, we find none of these arguments availing, or even relevant to the
critical issue on appeal – whether the circuit court should have dismissed the case with or
without prejudice. 3 Voluntary dismissals are controlled by Rule 41 of the West Virginia
Rules of Civil Procedure, which provides, in pertinent part:

       Dismissal of actions.

       (a) Voluntary dismissal; effect thereof. —

       (1) By plaintiff; by stipulation. — Subject to the provisions of Rule 23(e), of
           Rule 66, and of any statute of the State, an action may be dismissed by
           the plaintiff without order of court (i) by filing a notice of dismissal at
           any time before service by the adverse party of an answer or of a motion
           for summary judgment, whichever first occurs, or (ii) by filing a
           stipulation of dismissal signed by all parties who have appeared in the
           action. Unless otherwise stated in the notice of dismissal or stipulation,
           the dismissal is without prejudice, except that a notice of dismissal
           operates as an adjudication upon the merits when filed by a plaintiff who

       3
         Even if some of Dr. Hall’s arguments were relevant, we would still find them
unpersuasive. First, the circuit court was not obligated to wait for Dr. Hall to file a reply
brief under the court’s scheduling order when Dr. Hall did not file the memorandum of law
as ordered. Moreover, any disadvantage that the Halls experienced as pro se litigants
appears to have been self-inflicted at the time of their filing of their motion to dismiss, as
the court had not granted their counsel’s motion to withdraw. Dr. Hall repeatedly invokes
his pro se status and ignorance of the law and procedure as excuses for the posture of his
case, but he was not required to represent himself, and could have sought the advice of
other counsel, or asked for a continuance on the pending deadlines and hearings on the
motions to dismiss. As our Supreme Court has held, “[u]nder the West Virginia
Constitution . . . the right of self-representation in civil proceedings is a fundamental right
which cannot be arbitrarily or unreasonably denied.” Syl. Pt. 1, in part, Blair v. Maynard,
174 W. Va. 247
,
324 S.E.2d 391
 (1984). However, “ultimately, the pro se litigant must
bear the responsibility and accept the consequences of any mistakes and errors.”
Id.,
174 W. Va. at 253
,
324 S.E.2d 396
. Meanwhile, Dr. Hall’s arguments about errors in Judge
Cohee’s order regarding a possible conflict, whether parties were properly served with or
responded to pleadings below, or whether attorneys for other parties violated the Rules of
Professional Conduct, are not properly before this court and will not be considered, as they
do not relate to the orders on appeal, were not considered by the circuit court, or both.


                                              6
           has once dismissed in any court of the United States or of this or any other
           state an action based on or including the same claim.

       (2) By order of court. — Except as provided in paragraph (1) of this
           subdivision of this rule, an action shall not be dismissed at the plaintiff’s
           instance save upon order of the court and upon such terms and conditions
           as the court deems proper. If a counterclaim has been pleaded by a
           defendant prior to the service upon the defendant of the plaintiff’s motion
           to dismiss, the action shall not be dismissed against the defendant’s
           objection unless the counterclaim can remain pending for independent
           adjudication by the court. Unless otherwise specified in the order, a
           dismissal under this paragraph is without prejudice.

       In the case below, Dr. Hall did not seek a stipulation signed by the parties pursuant
to Rule 41(a)(1), instead, he filed a motion to dismiss and left it up to the court. Pursuant
to Rule 41(a)(2), that allowed the circuit court to place “terms and conditions” on the
dismissal “as the court deem[ed] proper.” The Rule further gives the court the authority to
specify whether the dismissal was with or without prejudice.4 The circuit court’s decision
to grant a Rule 41 motion to dismiss is within its discretionary authority. Accordingly, only
where there is a clear showing of abuse of discretion would reversal be appropriate.

       Courts have recognized that a dismissal ‘with prejudice’ under Rule 41(a) is
       an adjudication on the merits. See, e.g., Torres v. Kennecott Copper Corp.,
15 Ariz.App. 272, 274
,
488 P.2d 477, 479
 (1971); Barnes v. McGee,
21 N.C.App. 287, 289
,
204 S.E.2d 203, 205
 (1974); Tower City Properties v.
       Cuyahoga County Board of Revision,
49 Ohio St.3d 67, 69
,
551 N.E.2d 122, 124
 (1990). See also 9 C. Wright & A. Miller, Fed. Practice and Procedure
       § 2367, at 185-86 (1971 & Supp.1990); 46 Am.Jur.2d Judgments § 482
       (1969).

State ex rel. Div. of Hum. Servs. by Mary C.M. v. Benjamin P.B.,
183 W. Va. 220
, 222 n.3,
395 S.E.2d 220
, 222 n.3 (1990).

       4
         “Because the West Virginia Rules of Civil Procedure are practically identical to
the Federal Rules, we give substantial weight to federal cases ... in determining the meaning
and scope of our rules.” Painter v. Peavy,
192 W. Va. 189
, 192 n. 6,
451 S.E. 2d 755
, 758
n.6 (1994). It is worth noting, therefore, that federal courts have generally held that Rule
41(a)(2) authorizes courts to “convert” motions to dismiss without prejudice, and grant
dismissal with prejudice, “reasoning either that the district [court] is authorized to do so as
a condition by the ‘terms and conditions language’ in the [rule] or that the authority is
implicit in the ‘[u]nless otherwise specified’ language of [Rule 41(a) (2)].” Elbaor v.
Tripath Imaging, Inc.,
279 F.3d 314, 320
 (5th Cir. 2002).


                                              7
        The circuit court’s order denying the motion to amend assesses that the Halls’ claims
are without merit and finds that even if they were permitted to amend and refile their
complaint again, they could not cure the fatal defects that warrant dismissal with prejudice.
As the court observed, “it is not an abuse of discretion to deny a motion to amend if the
proposed amendment would be futile; an amendment is futile if the proposed claim . . .
merely . . . reasserts a claim on which the court previously ruled, fails to state a legal theory,
or could not withstand a motion to dismiss.” Johnson v. Pinson,
244 W. Va. 405
, 415-16,
854 S.E.2d 225
, 235-36 (2020). Critically, Dr. Hall makes no argument before this court
to establish that the circuit court abused its discretion by dismissing the case with prejudice.
Moreover, we note that in the present case, the lower court had already granted a motion
to dismiss in favor of one defendant, and other defendants had filed motions to dismiss on
similar grounds which were scheduled to be heard on September 9, 2022. As Dr. Hall filed
his motion to dismiss on August 29, 2022, rather than responding to the respondents’
pending motions, it appears his intention was to avoid any adverse ruling. 5 Under these
circumstances, we find no error or abuse of discretion in the circuit court’s orders. 6

      Accordingly, we affirm the circuit court’s August 30, 2022, “Final Order of
Dismissal With Prejudice” and its September 28, 2022, “Order Denying Motion to
Amend”.

       5
         Where, as here, the moving party has failed to adequately explain why the
requested dismissal should be without prejudice, and the apparent motivation was to avoid
an adverse ruling, courts have frequently dismissed with prejudice. See, e.g., Minn. Mining
& Manuf. Co. v. Barr Lab’ys, Inc.,
289 F. 3d 775
 (Fed. Cir. 2002); Graham v. Mentor
World Wide LLC, No. 4:19-CV-01637,
2019 WL 4941012
 (E.D. Mo. 2019); Chodorow v.
Roswick,
160 F.R.D. 522
 (E.D. Pa. 1995).
       6
         Although we find no abuse of discretion in the present case, we observe that the
preferred practice when a party files a motion to dismiss without prejudice under Rule
41(a)(2), and the court wants to grant the motion with prejudice, is for the court to inform
the moving party of its intention to dismiss with prejudice and give such party the
opportunity to either explain why dismissal should be without prejudice, or to withdraw
the motion to dismiss. See generally Louis J. Palmer & Robin Jean Davis, Litigation
Handbook on West Virginia Rules of Civil Procedure 1067 (5th ed. 2017). It is important
to give a party an opportunity to withdraw his or her motion to dismiss because “unlike a
dismissal without prejudice, a dismissal with prejudice operates as a rejection of the
plaint’s claims on the merits and res judicata precludes further litigation.”
Id.
 See generally
State ex rel. Div. of Hum. Servs. by Mary C.M. v. Benjamin P.B.,
183 W. Va. 220
, 222 n.3,
395 S.E.2d 220
, 222 n.3 (1990). Furthermore, when a court grants a motion to dismiss with
prejudice, it should also articulate its reasons for doing so with sufficient detail to permit
effective appellate review. Andes v. Versant Corp.,
788 F.2d 1033, 1035, 1038
 (4th Cir.
1986).


                                                8
                                   Affirmed.


ISSUED: December 15, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen




                               9