                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Brenda V. Smith,                                                                  FILED
Plaintiff Below, Petitioner                                                      March 28, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0752 (Jefferson County 12-C-178)                                    OF WEST VIRGINIA



Corporation of Harpers Ferry,

James Arthur Addy, and Shauna Johnstone,

Defendants Below, Respondents



                              MEMORANDUM DECISION
       Petitioner Brenda V. Smith, by counsel Brett Offutt, appeals the order of the Circuit
Court of Jefferson County, entered May 28, 2013, granting summary judgment in favor of
respondents Corporation of Harpers Ferry, James Arthur Addy, and Shauna Johnstone.
Respondents appear by counsel Jeffrey W. Molenda and Mikaela D. Torbert.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the circuit court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

        Petitioner was a town clerk employed by respondent corporation. In that capacity, she
was responsible for work related to water and sewage services. Her duties included billing
customers, taking service requests, collecting bill payments, making bank deposits, and filing
accounts receivable reports. Petitioner’s collection duties required that she send generated form
notices to customers who had not made timely payments, threatening discontinuation of services.
Petitioner was terminated from her employment in April of 2011. She testified at her deposition
that at the time of her termination, she had not generated the notices in approximately three to
four months because the computer program that she used to do so had stopped working.

         Respondent Johnstone, the director for administration and treasurer for respondent
corporation, testified that prior to petitioner’s termination, she requested reports of outstanding
bills from petitioner on “numerous” occasions, but petitioner did not produce reports from May
of 2010 through the time of her termination. Respondent Johnstone also testified that she
overheard an argument between petitioner and Respondent Addy concerning a large unpaid
water bill, and that argument prompted her to run the report herself. Upon doing so, she
determined that approximately $90,000 of uncollected water bills were outstanding or about 15



                                                1

to 18% of the total charged services for that period.1 Respondent Johnstone testified that
petitioner’s husband was among the customers with unpaid bills, at $5,841.57, as were Chad and
Carrie Gauthier, at $6,045.15. Petitioner later was employed by the Gauthiers, and conceded that
they were her friends.

        Respondent corporation had a public official bond through surety Travelers Casualty and
Surety Company of America. The policy appears to have been serviced by Commercial
Insurance Services. Respondent Johnstone testified that she notified Mary Jo Mozingo of
Commercial Insurance that money was unaccounted for, telling Ms. Mozingo that it could be the
result of accounting error, misappropriation, negligence, failure to collect, or fraud. Ms. Mozingo
then completed a “Property Loss Notice” form that indicated a misappropriation of funds had
occurred. Respondent Johnstone later sent an e-mail to a representative at Travelers Insurance
asking that Travelers not close its file on respondent corporation’s claim because it would be
filing a claim upon completion of a state audit to verify the loss. Respondent Johnstone later
clarified by separate e-mail:

       We have just been informed that the WV State Fraud Auditors are finally coming
       to investigate the matter of [petitioner] and our loss of funds. I will send
       something concrete to tell you as soon as they begin their investigation. I am sorry
       for the delay in submitting the report in writing, however all I can tell you is that
       [petitioner] left, with cash missing as far as we could determine at the time
       amounting to upwards of $90,000. The auditors need to determine the precise
       amount and the means by which the funds became unaccounted for.

Respondent Addy testified he had no communications with Travelers; he was not asked about
communications with Commercial Insurance.2

       Respondent Johnstone completed, on May 20, 2011, a West Virginia Consolidated
Retirement Board form entitled “‘Less Than Honorable Service’ Notification.” In her deposition,
Respondent Johnstone testified that this was the only form available to her to report petitioner’s
termination to the retirement board. She checked one box to indicate that no criminal complaint
had been filed, and another to affirmatively answer the question, “Were larceny of funds or
property from a state agency or political subdivision involved in this alleged crime?” However,
Respondent Johnstone also provided the following detailed description of the circumstances:
“Gross Negligence—Left owing her own water bill of $6,000 unpaid, allowed friends not to pay
their water bills for which she was responsible. Under investigation by WV Auditor, Fraud
Division.”

       Also in May of 2011, an article appeared in a publication called “The Spirit of Jefferson”

       1
       According to information contained in the appendix record on appeal, the amount of
money outstanding in uncollected water bills could have been as high as $150,000.
       2
        No deposition transcript for any employee of Commercial Insurance or Travelers was
included in the appendix record on appeal.


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concerning the circumstances leading to petitioner’s termination. Respondent Johnstone testified
that she did not provide information for that article. It does not appear that Respondent Addy was
asked about communication with “The Spirit of Jefferson.”3

        Petitioner filed a complaint in the Circuit Court of Jefferson County in May of 2012,
asserting a cause of action for defamation. She did not contest her termination. Respondents filed
a motion for summary judgment, which the court granted by order entered May 28, 2013. The
court found that respondents did not make defamatory statements about petitioner, and that the
subject communications were privileged. The court also found respondent corporation immune
pursuant to West Virginia Code § 29-12A-4(b)(1) and West Virginia Code § 29-12A-5(a)
(statutory immunity for political subdivisions). This appeal followed.

         Pursuant to Rule 56(c) of the West Virginia Rules of Civil Procedure, summary judgment
should be awarded “if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Thus, “[a] motion for
summary judgment should be granted only when it is clear that there is no genuine issue of fact
to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.”
Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770
(1963). We accord a plenary review to the circuit court's order granting summary judgment: “[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). Finally, in considering a motion for summary judgment, we
review all facts and inferences in the light most favorable to the nonmoving party. Williams v.
Precision Coil, Inc., 194 W.Va. 52, 59–60, 459 S.E.2d 329, 336–37 (1995).

         On appeal, petitioner asserts five assignments of error. She argues that the circuit court
erred in: (1) finding that all communications by the respondents to a third party regarding the
petitioner were privileged; (2) finding that the respondents were immune from liability to the
petitioner pursuant to West Virginia Code §§ 29-12A-4(b)(1), 5(a) and 5(b); (3) not considering
all of the evidence when making factual determinations; (4) finding that punitive damages cannot
be assessed against the individual respondents; and (5) granting a motion for summary judgment
prior to the completion of discovery.

      Petitioner first assigns error to the circuit court’s finding that respondents’
communications concerning petitioner’s termination were privileged, a finding that defeated her
defamation claim.4 We have previously stated as follows:



       3
         No deposition transcript for any representative of “The Spirit of Jefferson” was included
in the appendix record on appeal.
       4
         “The essential elements for a successful defamation action by a private individual are (1)
defamatory statements; (2) a nonprivileged communication to a third party; (3) falsity; (4)
reference to the plaintiff; (5) at least negligence on the part of the publisher; and (6) resulting
injury.” Syl. Pt. 1, Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70 (1984).


                                                  3

               In syllabus point six of Crump [v. Beckley Newspapers, Inc., 173 W.Va.
       699, 320 S.E.2d 70 (1984)], this Court held that “‘[t]he existence or nonexistence
       of a qualifiedly privileged occasion . . . in the absence of controversy as to the
       facts, [is a] question [ ] of law for the court.’ Syl. pt. 3, Swearingen v.
       Parkersburg Sentinel Co., 125 W.Va. 731, 26 S.E.2d 209 (1943).” 173 W.Va. at
       703, 320 S.E.2d at 74.

              This Court further explained as follows in syllabus point four of Dzinglski
       v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994),

                       Qualified privileges are based upon the public policy that
               true information be given whenever it is reasonably necessary for
               the protection of one’s own interests, the interests of third persons
               or certain interests of the public. A qualified privilege exists when
               a person publishes a statement in good faith about a subject in
               which he has an interest or duty and limits the publication of the
               statement to those persons who have a legitimate interest in the
               subject matter; however, a bad motive will defeat a qualified
               privilege defense.

Belcher v. Wal-Mart Stores, Inc., 211 W.Va. 712, 720, 568 S.E.2d 19, 27 (2002).

        Petitioner’s argument on this point is three-fold. She claims that there remains
“considerable controversy” about the facts of this case, that “it was not established that the
communications in question were made in good faith or without bad motive,” and that there is a
dispute about whether the individuals who received the communications had a “legitimate
interest” in the subject matter.5 We agree with the circuit court, however, that the facts relevant
to the question of qualified privilege are not in dispute. Petitioner acknowledged that she did not
send collection letters to delinquent customers for a period of three to four months, and there is
no question that when Respondent Johnstone looked into the overdue accounts she found that
petitioner’s husband and friends had benefitted from petitioner’s failure to collect. Certainly, it is
not unreasonable for an employer in these circumstances to conclude that there is possible
wrongdoing and take steps to minimize losses. A common step where losses are involved would
include providing notice for an insurance carrier as required by an insurance carrier. Likewise,
Respondent Johnstone testified that her job duties required that she report petitioner’s
termination to the Consolidated Public Retirement Board, and that the “less than honorable
service” discharge notice was the only form available for her to do so. Petitioner has offered no

       5
          Petitioner argues that she “believes” that Respondent Johnstone made false statements in
retaliation for petitioner’s having questioned Respondent Johnstone’s abilities. To survive a
motion for summary judgment, the party opposing summary judgment must satisfy the burden of
proof “by offering more than a mere ‘scintilla of evidence’ and must produce evidence sufficient
for a reasonable jury to find in a nonmoving party’s favor. . . . The evidence illustrating the
factual controversy cannot be conjectural or problematic.” Williams, 194 W.Va. at 60, 459
S.E.2d at 337 (1995). Petitioner’s “belief” does not satisfy the requirements of Williams.


                                                  4

evidence that Respondent Johnstone was untruthful about what transpired. Importantly,
petitioner has presented no evidence of a bad motive on the part of any respondent.

        Analysis of this argument overlaps to some degree with that of petitioner’s third
assignment of error, in which she asserts that the circuit court failed to consider evidence when
making its findings of fact. Petitioner states, for example, that Respondent Johnstone lied by
reporting to the retirement board that “larceny” was a factor in petitioner’s termination.
However, the circuit court adequately explained that Respondent Johnstone noted on the form
the exact circumstances—that is, that petitioner had left her employment “leaving her own water
bill unpaid” and had permitted friends not to pay their water bills, and that the matter had been
referred to the State Auditor of West Virginia. Thus, Respondent Johnstone left little or no room
for confusion in her completion of the form. Petitioner also takes exception to the circuit court’s
characterization of her husband’s water bill as “her” water bill. Petitioner testified, though, that
she and her husband lived together at the time, and she has offered no evidence that the circuit
court’s belief, if wrong, that she and her husband shared the bill was significant to the court’s
ruling.

        Petitioner also disputes, through her own testimony, that the water bill of one of her
friends—which had more than a $5,000 balance when discovered by respondents—was past due
and required action by her at the time Respondent Addy inquired about it. Petitioner has
presented no evidence that the remainder of the outstanding bills, the total amount of which was
significant, were not in arrears. Last, petitioner states that “there is no evidence showing that
[she] was under investigation by the State Auditor. However, Respondent Johnstone testified that
she was accountable to the State Auditor. It thus would have been reasonable for her to inform
the State Auditor of the discovery of missing funds. Moreover, petitioner has presented no
evidence that she was not the subject of an inquiry by the State Auditor. We agree with the
circuit court that there is no bona fide dispute about the material facts, and we conclude that the
circuit court correctly determined that the communications attributable to respondents were
privileged, and that respondents were entitled to summary judgment on the single claim in this
lawsuit, defamation.6

      Finally, we address petitioner’s brief argument that the circuit court erred in granting
summary judgment prior to the close of discovery. According to the docket sheet provided in the
appendix record on appeal, the initial scheduling order was entered on June 19, 2012, and




       6
         To the extent that petitioner maintains that the article about these events that appeared in
“The Spirit of Jefferson” was defamatory, we note also that there is no evidence of
communications between any respondent and anyone affiliated with that publication. Inasmuch
as we have determined that the communications about which petitioner complains were
privileged, thus defeating the defamation claim, we find it unnecessary to address petitioner’s
second assignment of error (that the circuit court erred in applying statutory immunity) or
petitioner’s fourth assignment of error (that the circuit court erred in finding that punitive
damages were not available as to the individual defendants).


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summary judgment was granted nearly a year later, on May 28, 2013.7 The primary fact offered
by petitioner in support of her argument is that the court granted summary judgment before she
received transcripts of the depositions of three witnesses.

        This Court has found as a general rule that summary judgment is appropriate only after
the parties have had adequate time to conduct discovery, and that granting a motion for summary
judgment before the completion of discovery is precipitous. Board of Educ. of the Cnty. of Ohio
v. Van Buren & Firestone, Architects, Inc., 165 W.Va. 140, 144, 267 S.E.2d 440, 443 (1980).
However, in order to defeat a motion for summary judgment, the petitioner must rehabilitate the
evidence attacked by the respondent; produce additional evidence showing the existence of a
genuine issue for trial; or submit an affidavit explaining why further discovery is necessary as
provided in Rule 56(f) of the West Virginia Rules of Civil Procedure. See Syl. Pt. 3, Williams,
194 W.Va. at 56, 459 S.E.2d at 333. Williams further provides as follows:

       [A] nonmoving party cannot avoid summary judgment merely by asserting that
       the moving party is lying. Rather, Rule 56 requires a nonmoving party to produce
       specific facts that cast doubt on a moving party's claims or raise significant issues
       of credibility. The nonmoving party is required to make this showing because he
       is the only one entitled to the benefit of all reasonable or justifiable inferences
       when confronted with a motion for summary judgment. Inferences and opinions
       must be grounded on more than flights of fancy, speculations, hunches, intuition
       or rumors.

194 W.Va. at 61 n.14, 459 S.E.2d at 338 n.14 (emphasis in original). Moreover, in Crum v.
Equity Inns, Inc., this Court stated that

       An opponent of a summary judgment motion requesting a continuance for further
       discovery need not follow the exact letter of Rule 56(f) of the West Virginia Rules
       of Civil Procedure in order to obtain it. Elliott v. Schoolcraft, 213 W.Va. at 73,
       576 S.E.2d at 800. However, at a minimum, the party making an informal Rule
       56(f) motion must satisfy four requirements. It should (1) articulate some
       plausible basis for the party's belief that specified “discoverable” material facts
       likely exist which have not yet become accessible to the party; (2) demonstrate
       some realistic prospect that the material facts can be obtained within a reasonable
       additional time period; (3) demonstrate that the material facts will, if obtained,
       suffice to engender an issue both genuine and material; and (4) demonstrate good
       cause for failure to have conducted the discovery earlier. Id.

224 W.Va. 246, 254, 685 S.E.2d 219, 227 (2009). Finally,

       [w]e, like the Fourth Circuit, place great weight on the Rule 56(f) affidavit,
       believing that “[a] party may not simply assert in its brief that discovery was

       7
       Petitioner represents in her brief that discovery “commenced in this matter on August
24, 2014” when she served her first set of interrogatories and requests for production of
documents.
                                                6

       necessary and thereby overturn summary judgment when it failed to comply with
       the requirement of Rule 56(f) to set out reasons for the need for discovery in the
       affidavit.” Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir.1995).

Powderidge Unit Owners Ass'n v. Highland Properties, Ltd., 196 W.Va. 692, 702, 474 S.E.2d
872, 882 (1996).8

        In her brief before this Court, petitioner does not explain what information would have
been added through the use of the additional deposition transcripts. Importantly, petitioner has
offered no evidence that she completed the vital Rule 56(f) affidavit to explain to the circuit
court her need for further discovery. In fact, petitioner’s response to respondents’ summary
judgment motion below fails to indicate that she objected to the court’s consideration of the
summary judgment motion at that juncture.9 For these reasons, we find no error in the timing of
the circuit court’s disposition.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.




       8
           Rule 56(f) of the West Virginia Rules of Civil Procedure states as follows:

               When affidavits are unavailable—Should it appear from the affidavits of a
       party opposing the motion that the party cannot for reasons stated present by
       affidavit facts essential to justify the party’s opposition, the court may refuse the
       application for judgment or may order a continuance to permit affidavits to be
       obtained or depositions to be taken or discovery to be had or may make such other
       order as is just.
       9
         The transcript of the summary judgment motion hearing was not included in the
appendix record on appeal. In light of these factors, we decline to consider various testimony
cited in plaintiff’s brief that was not available to the circuit court when it considered the
summary judgment motion, such as that of Carrie Gauthier. “[I]t is the parties’ duty to make sure
that evidence relevant to a judicial determination be placed in the record before the lower
[tribunal] so that [it] may properly [be] consider[ed] . . . on appeal.” West Virginia Dep't. of
Health and Human Res. ex rel. Wright v. Doris S., 197 W.Va. 489, 494 n.6, 475 S.E.2d 865, 870
n.6 (1996). See also Pearson v. Pearson, 200 W.Va. 139, 145 n.4, 488 S.E.2d 414, 420 n.4
(1997) (“This Court will not consider evidence which was not in the record before the circuit
court.”); Powderidge Unit Owners Assoc., 196 W.Va. at 700, 474 S.E.2d at 880 (1996) (“[T]his
Court for obvious reasons, will not consider evidence or arguments that were not presented to the
circuit court for its consideration [.]”).
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ISSUED: March 28, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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