        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                September 2017 Term
                                  _______________                        FILED
                                                                     November 1, 2017
                                    No. 17-0630                           released at 3:00 p.m.
                                                                      EDYTHE NASH GAISER, CLERK
                                  _______________                     SUPREME COURT OF APPEALS
                                                                           OF WEST VIRGINIA

                 STATE OF WEST VIRGINIA ex rel.

        FAIRMONT STATE UNIVERSITY BOARD OF GOVERNORS,

                           Petitioner


                                         v.

              THE HONORABLE PATRICK N. WILSON,

                         GALEN HANSEN,

                       ALBERT MAGRO, and

      WEST VIRGINIA HIGHER EDUCATION POLICY COMMISSION,

                           Respondents


      ____________________________________________________________

                         Petition for Writ of Prohibition

                                 WRIT GRANTED

      ____________________________________________________________

                             Submitted: October 17, 2017
                               Filed: November 1, 2017

Patrick Morrissey, Esq.                       Jerry A. Carbo, Esq.

Attorney General                              Shippensburg, Pennsylvania

Dawn E. George, Esq.                          Counsel for the Respondents,

Assistant Attorney General                    Galen Hanson and Albert Magro

Charleston, West Virginia

Counsel for the Petitioner                    Candace Kraus, Esq.

                                              West Virginia Higher Education Policy
                                              Commission
                                              Charleston, West Virginia
                                              Counsel for the Respondent,
                                              West Virginia Higher Education Policy
                                              Commission
JUSTICE KETCHUM delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



              1.     “Actions wherein a state agency or official is named, whether as a

principle party or third-party defendant, may be brought only in the Circuit Court of

Kanawha County.” Syl. Pt. 2, Thomas v. Bd. of Educ., 167 W.Va. 911, 280 S.E.2d 816

(1981), disapproved on other grounds by Hansbarger v. Cook, 177 W.Va. 152, 157 n.5,

351 S.E.2d 65, 70 n.5 (1986).

              2.     Under West Virginia Code § 14-2-2a [2004], a lawsuit in which

West Virginia University or Marshall University is made a party defendant shall be

brought in the circuit court of any county in which the cause of action arose, unless

otherwise agreed by the parties. This statutory exception to the general rule that an action

against a state agency may be brought only in Kanawha County applies exclusively to

lawsuits against West Virginia University or Marshall University.




                                             i
Justice Ketchum:


              The Fairmont State University Board of Governors (“Fairmont State”) and

the West Virginia Higher Education Policy Commission (“HEPC”) were sued in the

Circuit Court of Marion County by some faculty members of Fairmont State. Fairmont

State and the HEPC filed identical motions to dismiss the lawsuit based on, among other

things, improper venue. The circuit court denied both motions to dismiss.

              Fairmont State requests that we issue a writ prohibiting the circuit court

from hearing the lawsuit against it and the HEPC. West Virginia’s venue statutes require

that the lawsuit against Fairmont State and the HEPC be filed in Kanawha County. The

circuit court exceeded its legitimate powers by holding otherwise. Therefore, we issue

the requested writ of prohibition.


                                  I.

                 FACTUAL AND PROCEDURAL BACKGROUND



              On March 3, 2017, some faculty members at Fairmont State sued their

university’s Board of Governors and the HEPC in Marion County Circuit Court. The

lawsuit alleges that Fairmont State deliberated and decided on public matters in private

meetings in violation of the West Virginia Open Meetings Act (West Virginia Code §§ 6­

9A-1 to -12 [1975]) and that it did not fully comply with the plaintiffs’ Freedom of

Information Act request. In addition, the lawsuit alleges that the HEPC failed to exercise

its oversight responsibility over Fairmont State to prevent it from acting illegally. The



                                            1

faculty members sought injunctive relief, a writ of mandamus, and a declaratory

judgment.

              Fairmont State and the HEPC filed identical motions to dismiss the lawsuit

based on, among other things, improper venue. They asserted that, subject to exceptions

which do not apply in this case, lawsuits against state agencies must be filed in Kanawha

County. The circuit court denied Fairmont State’s and the HEPC’s motions to dismiss

and held that Marion County was a proper venue to hear the lawsuit. In response,

Fairmont State filed its petition for a writ of prohibition with this Court.


                                         II.

                                 STANDARD OF REVIEW



              We use the following factors to decide whether to grant Fairmont State’s

requested writ of prohibition:

                      In determining whether to entertain and issue the writ
              of prohibition for cases not involving an absence of
              jurisdiction but only where it is claimed that the lower
              tribunal exceeded its legitimate powers, this Court will
              examine five factors: (1) whether the party seeking the writ
              has no other adequate means, such as direct appeal, to obtain
              the desired relief; (2) whether the petitioner will be damaged
              or prejudiced in a way that is not correctable on appeal; (3)
              whether the lower tribunal’s order is clearly erroneous as a
              matter of law; (4) whether the lower tribunal’s order is an oft
              repeated error or manifests persistent disregard for either
              procedural or substantive law; and (5) whether the lower
              tribunal’s order raises new and important problems or issues
              of law of first impression. These factors are general
              guidelines that serve as a useful starting point for determining
              whether a discretionary writ of prohibition should issue.
              Although all five factors need not be satisfied, it is clear that


                                              2

              the third factor, the existence of clear error as a matter of law,
              should be given substantial weight.1

Furthermore, we have noted that a writ of prohibition may be used to preclude a circuit

court from hearing a lawsuit against a state agency when it does not have venue.2


                                           III.

                                        ANALYSIS


              Fairmont State and the HEPC argue that Marion County is not a proper

venue for the lawsuit filed against them. Venue for lawsuits against state agencies is

controlled by West Virginia Code § 14-2-2 [1976], which, in pertinent part and with

emphasis added, provides: “(a) The following proceedings shall be brought and

prosecuted only in the circuit court of Kanawha County: (1) Any suit in which . . . a state

agency is made a party defendant.” Likewise, this Court has held: “Actions wherein a

state agency or official is named, whether as a principle party or third-party defendant

may be brought only in the Circuit Court of Kanawha County.”3 Syl. Pt. 2, Thomas v.


              1
               Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12
(1996) (footnote added).
              2
               See, e.g., State ex rel. W.Va. Real Estate Appraiser Licensing & Cert. Bd.
v. Chiles, 234 W.Va. 125, 128, 763 S.E.2d 663, 666 (2014) (granting state agency’s writ
of prohibition on ground that Kanawha County was only proper venue for plaintiff’s
lawsuit against it); State ex rel. Stewart v. Alsop, 207 W.Va. 430, 435, 533 S.E.2d 362,
367 (2000) (“This Court has previously utilized a writ of prohibition to preclude a trial
court from proceeding to hear a case where venue was improper under [West Virginia’s
state agency venue statutes].”); State ex rel. W. Va. Bd. of Educ. v. Perry, 189 W.Va. 662,
669, 434 S.E.2d 22, 29 (1993) (same).
              3
               See also, Franklin D. Cleckley, Robin Jean Davis, & Louis J. Palmer,

Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(3) at 370 (4th ed.

                                                                        (continued . . .)

                                              3

Bd. of Educ., 167 W.Va. 911, 280 S.E.2d 816 (1981) (emphasis added), disapproved on

other grounds by Hansbarger v. Cook, 177 W.Va. 152, 157 n.5, 351 S.E.2d 65, 70 n.5

(1986). Indeed: “We have consistently held that the provisions of W.Va. Code § 14-2-2,

as amended, are exclusive to other venue provisions.”4

             Both Fairmont State and the HEPC fall within the Legislature’s definition

of a state agency, which is, “a state department, board, commission, institution, or other

administrative agency of state government.”5      More importantly, the parties do not

dispute that Fairmont State and the HEPC are state agencies. Therefore, unless an

exception to the venue statute applies, West Virginia Code § 14-2-2 requires that the

lawsuit filed against Fairmont State and the HEPC be brought in Kanawha County.

             Despite the clear directive of West Virginia Code § 14-2-2, the circuit court

found that venue was proper in Marion County under West Virginia Code § 14-2-2a

[2004]. Section 14-2-2a is limited to lawsuits against West Virginia University and

Marshall University; it provides, with emphasis added, that:

                    (a) Notwithstanding the provisions of section two of
             this article [Section 14-2-2], any civil action in which . . .
             West Virginia University . . . is made a party defendant, shall



2012) (“Pursuant to W.Va. Code § 14-2-2, actions wherein a state agency or official is
named, whether as a principle party or third-party defendant, may be brought only in the
circuit court of Kanawha County.”).
             4
                 Vance v. Ritchie, 178 W.Va. 155, 157, 358 S.E.2d 239, 241 (1987).
             5
               W.Va. Code § 14-2-3 [1967] (emphasis added). In 2017, the Legislature
amended this statute in ways which do not affect this appeal.


                                             4

              be brought in the circuit court of any county wherein the
              cause of action arose, unless otherwise agreed by the parties.

                     (b) Notwithstanding the provision of section two of
              this article [Section 14-2-2], any civil action in which
              Marshall University . . . is made a party defendant, shall be
              brought in the circuit court of any county wherein the cause
              of action arose, unless otherwise agreed by the parties.

              The circuit court conceded in its order that the plain language of Section

14-2-2a mentions only West Virginia University and Marshall University. However, the

circuit court’s order continued: “It logically follows that actions against other universities

not specifically named in the statute should also be tried in the county in which the action

occurred. This argument is the most compelling and the one on which this Court’s

decision as to venue primarily turns.” In short, the circuit court extended Section 14-2-2a

to Fairmont State because it could think of no reason why the Legislature would treat

Fairmont State differently than West Virginia University or Marshall University.

              We have repeatedly held that courts must not “arbitrarily . . . read into a

statute that which it does not say. Just as courts are not to eliminate through judicial

interpretation words that were purposely included, we are obliged not to add to statutes

something the Legislature purposely omitted.”6 And because “the express mention of

one thing implies the exclusion of another[,]” we must presume that the Legislature

              6
               Syl. Pt. 11, in part, Brooke B. v. Ray, 230 W.Va. 355, 738 S.E.2d 21
(2013). See also, Int’l Union of Operating Eng’rs v. L.A. Pipeline Constr. Co., 237
W.Va. 261, 266, 786 S.E.2d 620, 625 (2016); W.Va. Bd. of Educ. v. Marple, 236 W.Va.
654, 662, 783 S.E.2d 75, 83 (2015); Young v. Apogee Coal Co., LLC., 232 W.Va. 554,
561 753 S.E.2d 52, 59 (2013); Phillips v. Larry’s Drive-In Pharmacy, Inc., 220 W.Va.
484, 491, 647 S.E.2d 920, 927 (2007).


                                              5

purposely omitted Fairmont State from Section 14-2-2a based on its express mention of

West Virginia University and Marshall University.7 Indeed, Section 14-2-2a is plain and

unambiguous, so it must be applied, not interpreted or construed.8

              We hold that under West Virginia Code § 14-2-2a [2004], a lawsuit in

which West Virginia University or Marshall University is made a party defendant shall

be brought in the circuit court of any county in which the cause of action arose, unless

otherwise agreed by the parties. This statutory exception to the general rule that an action

against a state agency may be brought only in Kanawha County applies exclusively to

lawsuits against West Virginia University or Marshall University. Neither West Virginia

University nor Marshall University were made parties to this lawsuit. Therefore, Section

14-2-2a does not apply to this case.

              Having established that West Virginia Code § 14-2-2a does not apply to

this lawsuit, we address another statute the circuit court relied on to conclude that Marion

County was a proper venue. The faculty members’ lawsuit alleges, in part, that Fairmont

State violated West Virginia’s Open Meetings Act set out in West Virginia Code § 6-9A­

1 to -12 [1975]. Under West Virginia Code § 6-9A-6 [1999], “[t]he circuit court in the

county where the public agency regularly meets has jurisdiction to enforce [the West


              7
                  Syl. Pt. 3, in part, Manchin v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710
(1984).
              8
               See Syl. Pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384
(1970) (“Where the language of a statute is free from ambiguity, its plain meaning is to
be accepted and applied without resort to interpretation.”).


                                             6

Virginia Open Meetings Act] upon civil action[.]”9            The circuit court incorrectly

presumed that, because it had subject matter jurisdiction over the lawsuit, it had venue as

well.

              It is well-established that: “The terms ‘venue’ and ‘jurisdiction’ are not

synonymous.”10       “Jurisdiction is a court’s inherent power to decide a case; venue,

however, designates the particular county in which a court having jurisdiction may

properly hear and determine the case.”11            Because “[c]ourts must presume that a

legislature says in a statute what it means and means what it says there[,]” we decline to

insert “venue” into Section 6-9A-6 when the Legislature clearly limited the statute to

“jurisdiction.” The Legislature designated Kanawha County as the proper venue for suits

against state agencies.

              However, that is not to say that a circuit court outside of Kanawha County

is always barred from hearing a lawsuit against a state agency for lack of venue. For

example, the Legislature has enacted exceptions to its rule that state agencies may be

sued only in Kanawha County, none of which apply here.12


              9
                  Emphasis added.
              10
                Franklin D. Cleckley, Robin Jean Davis, & Louis J. Palmer, supra, §
12(b)(3) at 363 (citing W. Va. Secondary Sch. Activities Comm’n v. Wagner, 143 W.Va.
508, 520, 102 S.E.2d 901, 909 (1958) (“There is a distinction between jurisdiction and
venue and the two terms are not synonymous.”)).
              11
                   Syl. Pt. 8, Brooke B., 230 W.Va. at 363, 738 S.E.2d at 29.
              12
               See, e.g., W.Va. Code § 14-2-2a (pertaining to lawsuits in which West

Virginia University or Marshall University are made party defendants); W.Va. Code §

                                                                       (continued . . .)

                                               7

              Furthermore, objections to venue may be waived by the defendant.13 Under

West Virginia Rule of Civil Procedure 12(h)(1) [1998], “A defense of . . . improper

venue is waived (A) if omitted from a motion in the circumstances described in

subdivision (g) [Consolidation of Defenses in Motion], or (B) if it is neither made by

motion under this rule nor included in a responsive pleading or an amendment thereof[.]”

Put simply, “[o]rdinarily, [a defendant’s] failure to object specifically to venue before

pleading to the merits constitutes waiver of the objection.”14

              When a state agency that is made a defendant in a lawsuit filed outside of

Kanawha County fails to object to venue, and thereby waives its objection to venue, the

circuit court in which the lawsuit was filed has subject matter jurisdiction to enforce the

West Virginia Open Meetings Act under Section 6-9A-6. Because Fairmont State and

the HEPC raised improper venue in their motions to dismiss, it is undisputed that they did

not waive their objection to venue. Therefore, the circuit court erred by relying upon

Section 6-9A-6 to find that Marion County was a proper venue for this lawsuit.15



14-2-2(b) (pertaining to lawsuits seeking injunctive relief for government taking of real
property).
              13
              See State ex rel. Kenamond v. Warmuth, 179 W.Va. 230, 233, 366 S.E.2d
738, 741 (1988) (“Unlike jurisdiction, . . . venue may be conferred by consent or
waiver[.]”).
              14
                   Hansbarger, 177 W.Va. at 157, 351 S.E.2d at 71.
              15
                Before we dispose of this case, we note that Fairmont State and the
HEPC asserted an additional ground for its requested writ of prohibition. They claim that
West Virginia Code § 55-17-3(a)(1) [2008] required the plaintiffs to give them thirty
days presuit notice before filing their complaint, and that the Plaintiffs failed to do so.
                                                                            (continued . . .)
                                             8

                                        IV.

                                    CONCLUSION



             The lawsuit filed against Fairmont State and the HEPC must be filed in the

Circuit Court of Kanawha County. Therefore, the circuit court exceeded its legitimate

powers by holding that venue for this lawsuit is proper in Marion County.

                                                                            Writ Granted.




Because we grant Fairmont State’s requested writ of prohibition on grounds of venue, we
decline to address the issue of presuit notice.


                                           9
