                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


                                                                                  FILED
Town of Pratt,                                                               November 17, 2017
Respondent Below, Respondent                                                   EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
vs) No. 16-0528 (Kanawha County 16-M-AP-2)

Charles Lusher,

Petitioner Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Charles Lusher, pro se, appeals the May 13, 2016, order of the Circuit Court of
Kanawha County imposing a fine and court costs for speeding in violation of West Virginia Code
§ 17C-6-1. Respondent Town of Pratt (“the Town”), by counsel Carrie A. Dysart, filed a summary
response requesting that petitioner’s appeal be dismissed as moot. Petitioner filed a reply.

       The 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 that petitioner’s appeal has been rendered moot. For these reasons, a
memorandum decision dismissing the appeal is appropriate under Rule 21 of the Rules of
Appellate Procedure.

       On December 29, 2015, petitioner was issued a citation by the Town for traveling 54 miles
per hour (“mph”) in a 40 mph zone in violation of West Virginia Code § 17C-6-1. Petitioner
challenged the citation in the Municipal Court of the Town of Pratt, which found him guilty of
speeding.

        Petitioner appealed to the Circuit Court of Kanawha County, which held a trial de novo on
May 12, 2016. By order entered on May 13, 2016, the circuit court convicted petitioner of a
speeding violation, finding that the Town proved its case “beyond a reasonable doubt.” The circuit
court imposed a fine of $75 and assessed petitioner $82 in court costs for a total amount of $157,
consistent with the fine and costs ordered by the municipal court.

        Petitioner now appeals the circuit court’s May 13, 2016, order. “Moot questions or abstract
propositions, the decision of which would avail nothing in the determination of controverted rights
of persons or of property, are not properly cognizable by a court.” Syl. Pt. 4, Cline v. Mirandy, 234
W.Va. 427, 765 S.E.2d 583 (2014) (internal quotations and citations omitted).
        On appeal, petitioner contends that he was prosecuted and sentenced in an unconstitutional
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manner. Though the Town denies that petitioner was unconstitutionally prosecuted and sentenced,
it has agreed to both rescind petitioner’s speeding citation and refund the fine and the court costs in
the total amount of $157. Therefore, the Town argues that petitioner’s appeal should be dismissed
as moot.

        Petitioner contends that, in addition to a refund of $157, he is also entitled to (1)
consequential damages for incidental expenses such as traveling to and from his court
appearances; and (2) damages for the pain and suffering that the Town has inflicted upon him.
However, this is not a civil action in which petitioner has sued the Town for alleged constitutional
violations. 1 Rather, this case comprises the Town’s prosecution of petitioner for a traffic
infraction. The Town has agreed to both rescind petitioner’s speeding citation and refund the fine
and the court costs. We find that, if petitioner wants monetary damages from the Town, he must
file a civil action. We dismiss petitioner’s appeal as moot because the Town has undertaken to
grant him all the relief available to him in this proceeding.2

                                                                                 Dismissed as Moot.

ISSUED: November 17, 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
         See Syl. Pt. 2, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996)
(holding that “[u]nless barred by one of the recognized statutory, constitutional[,] or common law
immunities, a private cause of action exists where a municipality or local governmental unit causes
injury by denying that person rights that are protected by the Due Process Clause embodied within
Article 3, § 10 of the West Virginia Constitution”).
       2
          With his reply, petitioner filed a motion for the disqualification of the Justices of this
Court. We deny the motion for petitioner’s failure to comply with Rule 33(d) of the West Virginia
Rules of Appellate Procedure, which requires that a motion for disqualification be accompanied by
a certificate verifying that the motion “is well grounded in fact and is warranted by existing law or
good faith argument for the extension, modification, or reversal of existing law” and “not
interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation.”

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