                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

David L. Cunningham,
Plaintiff Below, Petitioner                                                           FILED
                                                                                   April 10, 2017
vs) No. 16-0262 (Marshall County 14-C-213)                                         RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Joseph R. Hooker, individually and in his
official capacity as agent and employee of
Marshall County Commission, and Marshall
County Commission, a political subdivision
in the State of West Virginia,
Defendants Below, Respondents


                              MEMORANDUM DECISION
        Petitioner David L. Cunningham, by counsel Paul J. Harris, appeals the Circuit Court of
Marshall County’s February 25, 2016, order granting respondents’ motion to dismiss.
Respondents Joseph R. Hooker and the Marshall County Commission, by counsel Thomas E.
Buck, filed a response. On appeal, petitioner argues that (1) the circuit court erred in granting
respondents’ motion to dismiss based upon the applicable statute of limitations, and (2) the
circuit court failed to address three of the counts from his complaint.

        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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On February 10, 2012, petitioner was charged with one count of misdemeanor battery.
On September 18, 2013, Deputy Joseph R. Hooker, respondent herein, arrested petitioner on an
outstanding warrant related to the battery charge. Following his arrest, petitioner was taken to the
Marshall County Sheriff’s Office before he was booked and transferred to Northern Regional
Jail. Petitioner was released that same day. Ultimately, on December 30, 2013, the criminal
complaint against petitioner for battery was dismissed.

        On December 24, 2014, petitioner filed a civil complaint against Deputy Hooker and the
Marshall County Commission. In his complaint, petitioner set forth the following four counts:
(1) due process violation; (2) malicious prosecution; (3) deliberate indifference; and (4) negligent
retention and hiring. Respondents thereafter filed a motion to dismiss the complaint. The case
then went through a protracted period of reassignments to various judges before the circuit court
eventually held a hearing on the motion to dismiss in February of 2016. Ultimately, the circuit

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court granted the motion to dismiss upon a finding that petitioner failed to file his complaint
before the one-year statute of limitations applicable to claims of malicious prosecution expired. It
is from the order granting respondents’ motion to dismiss that petitioner appeals.

       We have previously held that “‘[a]ppellate review of a circuit court’s order granting a
motion to dismiss a complaint is de novo.’ Syllabus Point 2, State ex rel. McGraw v. Scott
Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).” Syl. Pt. 2, Hill v. Stowers,
224 W.Va. 51, 680 S.E.2d 66 (2009). Additionally, we have held as follows:

               “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.” Syl. Pt. 3, Chapman v. Kane Transfer Co., 160 W.Va. 530,
       236 S.E.2d 207 (1977).

Syl. Pt. 2, Roth v. DeFeliceCare, Inc., 226 W.Va. 214, 700 S.E.2d 183 (2010). Upon our review,
the Court finds no error in the circuit court’s order granting respondents’ motion to dismiss.

        On appeal, petitioner argues that the circuit court erred in granting respondents’ motion to
dismiss based upon his failure to file the action within the applicable statute of limitations. This
Court has previously held that “‘[a]n action for malicious prosecution must be brought within
one year from the termination of the action alleged to have been maliciously prosecuted.’
Syllabus Point 2, in part, Preiser v. MacQueen, 177 W.Va. 273, 352 S.E.2d 22 (1985).” Syl. Pt.
1, McCammon v. Oldaker, 205 W.Va. 24, 516 S.E.2d 38 (1999). In reaching its decision, the
circuit court found that the applicable statute of limitations began to run on September 18, 2013,
the date upon which petitioner was arrested and released. Petitioner, however, argues that the
proper date upon which to begin calculating the time period for the statute of limitations is
December 30, 2013, the date upon which the criminal complaint against him was ultimately
dismissed. We agree with petitioner that December 20, 2013, is the date upon which the action
was terminated by the State’s dismissal of the criminal complaint at issue. Accordingly, we find
that the circuit court was incorrect in granting respondent’s motion to dismiss on this ground.

        However, the Court also notes that respondent argues on appeal, as it did in the circuit
court, that petitioner failed to state a claim upon which relief could be granted. We agree. We
have previously held that

              “[t]o maintain an action for malicious prosecution it is essential to prove:
       (1) That the prosecution was malicious; (2) that it was without reasonable or
       probable cause; and (3) that it terminated favorably to plaintiff.” Syllabus Point 1,
       Lyons v. Davy-Pocahontas Coal Co., 75 W.Va. 739, 84 S.E. 744 (1915).




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Id. at 26, 516 S.E.2d at 40, syl. pt. 3. The record shows that petitioner does not challenge the
validity of the warrant and, therefore, cannot challenge probable cause.1 Indeed, the warrant
upon which petitioner was arrested in September of 2013 was valid at that time. The warrant,
issued by the Magistrate Court of Marshall County, plainly stated that probable cause existed to
believe that petitioner committed a battery. As such, it is clear that Deputy Hooker had probable
cause to arrest petitioner. Accordingly, petitioner cannot establish any set of facts under which he
could recover for malicious prosecution. For these reasons, we find no error in the circuit court
dismissing petitioner’s claim for malicious prosecution.

        Finally, we find no error in the circuit court’s failure to address petitioner’s claims from
counts one, three, and four of his complaint in its order dismissing the same. Petitioner’s
remaining claims for due process violation, deliberate indifference, and negligent retention and
hiring all stemmed from the factual assertions underpinning his claim of malicious prosecution
by virtue of his arrest on September 18, 2013. Given that petitioner’s factual assertions on that
claim are not supported by the record on appeal, his related claims must also fail. Accordingly,
we find no error in the circuit court dismissing these claims as well.

       For the foregoing reasons, the circuit court’s February 25, 2016, order granting
respondents’ motion to dismiss is hereby affirmed.


                                                                                         Affirmed.

ISSUED: April 10, 2017

CONCURRED IN BY:

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




       1
        Although he refers to the warrant as “stale” in his complaint and on appeal, petitioner
admits that the criminal complaint for battery against him was still pending as of his arrest on
September 18, 2013. He further offers no authority that would establish that the warrant was
somehow invalid despite the continued pendency of the criminal charge against him.


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