                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

David C. Tabb,
                                                                     FILED
Plaintiff Below, Petitioner                                                      June 2, 2017

                                                                                RORY L. PERRY II, CLERK
vs) No. 16-0533 (Jefferson County 15-C-282)                                   SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


Jefferson County Board of Education;

Dr. Bondy Shay Gibson, Superintendent of Schools for Jefferson

County, West Virginia; Scott Sudduth, President;

Mark Osbourn, Vice President; Gary Kable, Board Member;

Laurie Ogden, Board Member; Kahtryn Skinner, Board Member;

and The Jefferson County Commission; Peter Onoszko, President;

Jane Tabb, Vice President; Josh Compton, Commissioner;

Patsy Noland, Commissioner; and Caleb Husdon, Commissioner;

Defendants Below, Respondents



                              MEMORANDUM DECISION
         Petitioner David C. Tabb, pro se, appeals two orders of the Circuit Court of Jefferson
County. In the first order, entered April 20, 2016, the circuit court granted summary judgment to
respondents in petitioner’s action seeking a declaratory judgment that respondents failed to
comply with statutory requirements for the holding of the December 12, 2015, special excess levy
election. In the second order, entered May 23, 2016, the circuit court denied petitioner’s motion to
alter or amend its April 20, 2016, order.

        Respondents Jefferson County Board of Education; Dr. Bondy Shay Gibson,
Superintendent of Schools for Jefferson County, West Virginia; Scott Sudduth, President; Mark
Osbourn, Vice President; Gary Kable, Board Member; Laurie Ogden, Board Member; and
Kahtryn Skinner, Board Member (collectively, “Board of Education”); by counsel Tracey B.
Eberling, filed a response in support of the circuit court’s orders. Respondents Jefferson County
Commission; Peter Onoszko, President; Jane Tabb, Vice President; Josh Compton,
Commissioner; Patsy Noland, Commissioner; and Caleb Husdon, Commissioner (collectively,
“County Commission”); by counsel Nathan P. Cochran, filed a response in support of the circuit
court’s orders.1 Petitioner filed a reply to each response.


       1
         Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, the names of
the current public officers have been substituted as the respondents in this action.

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        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 no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s orders is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On November 12, 2015, petitioner, a resident of Jefferson County, West Virginia, filed an
action seeking a declaratory judgment that respondents failed to comply with West Virginia Code
§§ 11-8-9, 11-8-12, and 11-8-16 for the holding of a special excess levy election for the Board of
Education scheduled for December 12, 2015. In connection with his claim for declaratory relief,
petitioner requested that the circuit court prohibit respondents from proceeding with the election.
However, the circuit court failed to make a ruling prior to the December 12, 2015, special election,
at which the voters approved the excess levy to fund the educational purposes listed on the ballot
for the 2016, 2017, 2018, 2019, and 2020 fiscal years. Petitioner’s action proceeded on his claim
that the special election should be invalidated because of respondents’ failure to comply with West
Virginia Code §§ 11-8-9, 11-8-12, and 11-8-16.

         Each respondent filed a motion to dismiss petitioner’s action. Given its receipt of
documents outside of the parties’ pleadings, the circuit court converted the motions to dismiss into
motions for summary judgment by order entered on February 24, 2016. The circuit court also
permitted the parties to submit additional briefing and documentation in support of their positions.
Petitioner objected to certain documents submitted by the Board of Education. By order entered on
March 24, 2016, the circuit court directed the filing of proof authenticating the submitted
documentation. On April 5, 2016, the Board of Education submitted a certification by the County
Superintendent of Schools authenticating (1) the minutes for the March 9, 2015, board meeting;
(2) the minutes for the March 23, 2015, board meeting; and (3) the Notice of Special Election for
Renewal of Additional Levy to the Voters of Jefferson County. Petitioner filed a response to the
certification of records on April 14, 2016, acknowledging that “true and accurate copies of the
original record maintained by the Board of Education” were submitted. On April 20, 2016, the
circuit court entered an order awarding summary judgment to respondents on petitioner’s claim
that the special election should be invalidated, finding that respondents complied with West
Virginia Code §§ 11-8-9, 11-8-12, and 11-8-16. On April 29, 2016, petitioner filed a motion to
alter or amend the April 20, 2016, order pursuant to Rule 59(e) of the West Virginia Rules of Civil
Procedure. The circuit court denied petitioner’s motion in an order entered on May 23, 2016.

        Petitioner now appeals the circuit court’s April 20, 2016, order awarding summary
judgment to respondents and its May 23, 2016, order denying petitioner’s motion to alter or amend
the judgment. We review the entry of summary judgment de novo. See Syl. Pt. 1, Painter v. Peavy,
192 W.Va. 189, 451 S.E.2d 755 (1994). We need not independently review the May 23, 2016,
order. See Syl. Pt. 1, Wickland v. Am. Travellers Life In. Co., 204 W.Va. 430, 513 S.E.2d 657
(1998) (holding that “[t]he standard of review applicable to an appeal from a motion to alter or
amend a judgment, made pursuant to [Rule] 59(e), is the same standard that would apply to the
underlying judgment upon which the motion is based”). Pursuant to Rule 56(c), summary
judgment shall be granted provided that “there is no genuine issue as to any material fact and that
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the moving party is entitled to a judgment as a matter of law.”

        On appeal, petitioner reiterates arguments rejected by the circuit court and additionally
argues that (1) the circuit court failed to reasonably accommodate him as a pro se litigant; and (2)
the circuit court failed to afford him due process of law. The circuit court’s April 20, 2016, and
May 23, 2016, orders adequately address the arguments presented to that court in the summary
judgment proceedings. Therefore, herein, we address only those arguments solely raised on
appeal.

        We address petitioner’s two arguments together because they are inter-related given that
“[t]he court should strive . . . to ensure that the diligent pro se party does not forfeit any substantial
rights by inadvertent omission or mistake.” Blair v. Maynard, 174 W.Va. 247, 253, 324 S.E.2d
391, 396 (1984); see State ex rel. Peck v. Goshorn, 162 W.Va. 420, 422, 249 S.E.2d 765, 766
(1978) (finding that “[d]ue process of law is synonymous with fundamental fairness”). In Blair, we
found that “[c]ases should be decided on the merits, and to that end, justice is served by reasonably
accommodating all parties, whether represented by counsel or not.” 174 W.Va. at 253, 324 S.E.2d
at 396. However, we cautioned that “the court must not overlook the rules to the prejudice of any
party” and, “ultimately, the pro se litigant must bear the responsibility and accept the
consequences of any mistakes and errors.” Id.; see W.Va. Dept. of Health & Human Resources
Employees Federal Credit Union v. Tennant, 215 W.Va. 387, 394, 599 S.E.2d 810, 817 (2004)
(finding that pro se litigant waived right to jury trial by (1) failing to participate in a scheduling
conference; and (2) failing to express a desire for a jury trial at a pretrial conference and during the
bench trial).

        Respondents assert that, while petitioner is not represented by an attorney, he is a
sophisticated litigant, demonstrated by given his history of filing numerous actions in the Circuit
Court of Jefferson County.2 In the instant case, the circuit court refused to consider petitioner’s
challenge to certain language contained in the special election ballot because petitioner never
amended his complaint to include that claim and refused to consider issues raised by petitioner in
other cases not then before the court. First, petitioner contends that he raised the issue of the ballot
language, but acknowledges that he knew that he needed to amend the complaint to assert that
claim. Given that acknowledgement, we find that petitioner’s failure to file a motion to file an
amended complaint constituted a waiver of his challenge to the ballot language. Second, petitioner
contends that the circuit court should have considered issues raised in his other cases on the ground
that resolution of those issues could have potentially affected the outcome of this case. However, if
petitioner believed that the issues raised in his other cases could have impacted the instant case, we
find that petitioner was sufficiently familiar with court procedure to know that he could file a
motion to consolidate the cases together and failed to do so. Therefore, we conclude that the circuit
court did not err in refusing to consider petitioner’s challenge to certain language contained in the
        2
        See, e.g., Tabb v. County Commission of Jefferson County, No. 15-1155, at 4 (W.Va.
Supreme Court, November 18, 2016) (memorandum decision); Shenandoah Sales & Service, Inc.
v. Assessor of Jefferson County, 228 W.Va. 762, 771, 724 S.E.2d 733, 742 (2012).


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special election ballot and in refusing to consider issues raised by petitioner in other cases not then
before the court.3

        Next, petitioner contends that the circuit court was unduly dismissive of certain of his
arguments by addressing them in footnotes in its summary judgment order. However, we concern
ourselves not with the manner in which the circuit court drafted its order, but with whether the
order reflects both the existing law and the record before the court. See State ex rel. Cooper v.
Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996) (rejecting complaint that the court
adopted proposed findings of opposing party nearly verbatim). Moreover, the circuit court
acknowledged petitioner’s complaint in its order denying the motion to alter or amend the
judgment and addressed those issues previously relegated to footnotes in the body of that order.
Therefore, we conclude that this contention is without merit.

        Finally, petitioner notes the absence of a ruling prior to the voters’ approval of the excess
levy at the December 12, 2015, special election and that the lack of such a ruling was not attributed
to him. However, we find that petitioner was not prejudiced by the lack of a ruling prior to the
special election because the circuit court proceeded with his claim that the election’s result should
be invalidated given respondents’ alleged failure to comply with statutory requirements.
Therefore, we find that this contention is without merit. Accordingly, we conclude that the circuit
court considered petitioner’s arguments that were properly before the court and treated petitioner
fairly by affording him adequate due process.4

        Having addressed those issues solely raised on appeal, and having reviewed the circuit
court’s April 20, 2016, “Order Granting Defendants’ Motions for Summary Judgment” and its
May 23, 2016, “Order Denying Plaintiff’s Motion to Alter or Amend Judgment,” we hereby adopt
and incorporate the circuit court’s well-reasoned findings and conclusions as to all other issues
raised by petitioner in this appeal. The Clerk is directed to attach a copy of each circuit court order
to this memorandum decision. We conclude that the circuit court did not err in awarding summary
judgment to respondents.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.


       3
        One issue that petitioner wanted to raise from another pending case has now been rejected
by this Court. In Tabb v. County Commission of Jefferson County, No. 15-1155, at 4 (W.Va.
Supreme Court, November 18, 2016) (memorandum decision), we found that petitioner was
precluded from arguing that the County Commission must hold its meetings at the Jefferson County
Courthouse, rather than at the Charles Town Library, given the parties’ settlement agreement
providing that the library constituted a proper and lawful place for the Commission to meet.
       4
      We note that petitioner was due a fair proceeding, not a perfect one. See Sprouse v. Clay
Communication, Inc., 158 W.Va. 427, 464, 211 S.E.2d 674, 698 (1975).

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ISSUED: June 2, 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




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