                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


                                                                                   FILED
Thomas D. Thornburgh Jr.,                                                          May 24, 2013
Plaintiff Below, Petitioner                                                   RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
vs.) No. 12-0329 (Fayette County 11-C-269)

Town of Gauley Bridge, Fayette County, West Virginia,
Defendant Below, Respondent

                                 MEMORANDUM DECISION

        Petitioner Thomas D. Thornburgh Jr.’s appeal, filed by counsel Paula L. Harbour, arises
from the Circuit Court of Fayette County, which granted respondent’s motion to dismiss
petitioner’s complaint by order entered on February 7, 2012. Respondent Town of Gauley
Bridge, by counsel Vaughn T. Sizemore, has filed a response in support of the circuit court’s
order.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In November of 2009, petitioner was pulled over by a Gauley Bridge police officer,
issued a traffic citation, and fined one hundred and fifty dollars. In December of 2009, petitioner
attempted to tender his fine entirely with coins. This payment was refused by the City Hall
employee who explained to petitioner that the Town of Gauley Bridge has an ordinance that
prohibits payment in coins for amounts greater than five dollars. Petitioner thereafter filed suit in
circuit court, complaining that he suffered and continues to suffer humiliation, loss of privilege
to drive on West Virginia roads, and annoyance and inconvenience, among other complaints.
Respondent filed a motion for sanctions and to dismiss the case. The circuit court denied the
motion to impose sanctions, but granted respondent’s motion to dismiss petitioner’s case. The
circuit court found that respondent was protected by both statutory immunity and qualified
immunity. From this dismissal order, petitioner brings this appeal.

       First, petitioner argues that the circuit court erred by finding that respondent had
immunity under West Virginia Code § 29-12A-5(a)(4).1 Petitioner argues that the exception
provided in West Virginia Code § 29-12A-18(e) is applicable because the issue of petitioner’s
1
  This subsection reads as follows: “A political subdivision is immune from liability if a loss or
claim results from: . . . (4) Adoption or failure to adopt a law, including, but not limited to, any
statute, charter provision, ordinance, resolution, rule, regulation or written policy[.]”

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suit against respondent concerned a violation of a United States statute, i.e., 31 United States
Code § 5103. This federal law provides that United States coins are legal tender. Respondent
contends that the circuit court did not commit error in finding that it is protected by the doctrines
of statutory immunity and qualified immunity and further asserts that petitioner failed to state a
prima facie claim for claiming that respondent violated a federal statute. Second, petitioner
argues that the town’s ordinance is in direct contravention to the aforementioned federal statute
and that, accordingly, the town’s refusal of his payment by coins was in violation of federal
code. Respondent contends that several federal cases support its position, whereas petitioner has
failed to cite any supporting authority.

       “Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de
novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyon Pontiac-Buick, Inc., 194 W.Va. 770, 461
S.E.2d 516 (1995).

       Upon our review, the Court finds no error by the circuit court to warrant reversal. The
record submitted on appeal indicates that the circuit court considered both parties’ arguments in
issuing its decision. Respondent never claimed that the coins were not legal tender; rather,
respondent had a reasonable ordinance to prevent unduly burdening its employees with the task
of counting coins. We agree with the circuit court’s conclusion that respondent enjoys statutory
immunity from suit.

        Moreover, the exception to statutory immunity upon which petitioner attempts to rely,
West Virginia Code § 29-12A-18(e), does not apply to qualified immunity. Petitioner fails to set
forth any error in the circuit court’s qualified immunity finding.

       For the foregoing reasons, we affirm.


                                                                                          Affirmed.

ISSUED: May 24, 2013

CONCURRED IN BY:

Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis




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