                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



 Carol Pizzuto,                                                                    FILED
                                                                                 October 4, 2013
 Plaintiff Below, Petitioner                                                 RORY L. PERRY II, CLERK

                                                                           SUPREME COURT OF APPEALS

                                                                               OF WEST VIRGINIA

 vs) No. 12-1298 (Ohio County 10-C-101)

 Rebecca Randolph; Main Street Financial Services
 Corp. (Holding Company for Main Street Bank);
 Keith C. Gamble; Pullin, Fowler, Flanagan, Brown, & Poe,
 PLLC; and John Doe I, Defendants Below, Respondents

                               MEMORANDUM DECISION

        Petitioner Carol Pizzuto, appearing pro se, appeals the order of the Circuit Court of Ohio
County, entered September 20, 2012, that granted respondents’ motions for summary judgment
on petitioner’s various causes of action. Respondents Rebecca Randolph; Main Street Financial
Services Corp. (a holding company for Main Street Bank); Keith C. Gamble; and Pullin, Fowler,
Flanagan, Brown, & Poe, PLLC; by counsel Keith C. Gamble and Stephen M. Fowler; filed a
response.

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

        On July 12, 2007, at approximately 5:00 p.m., petitioner and her son Greg Givens went to
Respondent Main Street Bank. Respondent Rebecca Randolph, a Main Street Bank employee, was
informed that Mr. Givens was at the bank.1 Ms. Randolph subsequently met with Mr. Givens and
questioned him about a suspicious check Mr. Givens had cashed in April of 2007. During Ms.
Randolph and Mr. Givens’s conversation, petitioner was outside of the bank because she needed to
retrieve her identification. Because of the 5:00 p.m. closing time, the bank had closed and
       1
          Rebecca Randolph and Main Street Bank and their attorneys are respondents herein. As
to the other defendant in the instant action, John Doe I, it appears that such a defendant is
frequently named in actions filed by petitioner and her relatives without any subsequent attempt to
identify or serve the unnamed party. See, e.g., Pizzuto v. Randolph, No. 5:10–cv–00017–FPS 2010
WL 2402861, at *1 n. 3 (N.D. W.Va. June 10, 2010); Givens v. Criswell, No. 5:08–cv–00025–
FPS–JSK, 2010 WL 2925942, at *1 n. 2 (N.D. W.Va. July 22, 2010).

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petitioner could not reenter. However, customers such as Mr. Givens who were already inside the
bank could exit the building at any time because the doors were not locked from the inside. At the
conclusion of his conversation with Ms. Randolph, Mr. Givens exited the lobby of Main Street
Bank without incident.

       Subsequently, Ms. Randolph reported Mr. Givens to the police regarding the suspicious
check. On January 14, 2008, a grand jury indicted Mr. Givens for uttering, uttering a public record,
and fraudulent schemes. Mr. Givens was evaluated by a state mental hospital. As a result of this
evaluation, the criminal charges against Mr. Givens were dismissed because he was found to be
incompetent to stand trial and not likely to attain competency.

        Following Ms. Randolph’s report of Mr. Givens to the police, Mr. Givens, petitioner, and
Mr. Givens’s uncle Dennis Givens have filed numerous actions against Ms. Randolph, her
employer Main Street Bank, various other employees of the bank, as well as their attorneys in
numerous different courts.2 Petitioner filed her first action in the Circuit Court of Ohio County on
January 15, 2010 in Civil Action No. 10-C-12. The case was removed to federal court, and the
United States District Court for the Northern District of West Virginia subsequently granted the
defendants’ motions to dismiss on June 10, 2010. Petitioner appealed to the United States Court of
Appeals for the Fourth Circuit which affirmed the dismissal on October 25, 2010. See Pizzuto v.
Randolph (“Pizzuto I”), 399 Fed.App’x 843 (4th Cir. 2010). In its order granting respondents
summary judgment in the case at bar, the circuit court found that petitioner alleged the following
causes of action in Pizzuto I: (1) defamation; (2) negligence; (3) negligence in supervision and
employment; (4) adulteration of the system of justice; (4) production of false psychological
reports, and (5) civil rights violations.

        Petitioner filed the instant action, No. 10-C-101, in the Circuit Court of Ohio County on
March 22, 2010, seeking $12,000,000. The circuit court identified the following causes of action:
(1) negligence, (2) negligent hiring practices; (3) failure to supervise; (4) fraud; (5) denial of
access to a state bank; (6) defamation; (7) conspiracy; (8) endangerment and injury to petitioner;
(9) negligent infliction of emotional distress; (10) corporate director/officer liability for wrongful
conduct; (11) intentional infliction of emotional distress; (12) liability for injury sustained in an
attempt to rescue a person from imminent peril; and (13) defamation involving petitioner’s
profession, trade, or business.

       On September 20, 2012, the circuit court entered a sixteen-page order that granted
respondents’ motions for summary judgment, concluding as follows:

                     [Petitioner’s] causes of action in the present case for
               defamation and negligence are barred by the doctrine of res judicata

       2
          In Givens v. Gamble, No. 12-0341, 2013 WL 1859170 (W.Va. Supreme Court, May 3,
2013) (memorandum decision), we affirmed the Circuit Court of Monongalia County’s finding
that the doctrine of res judicata barred Dennis Givens’s action in that case based on the dismissal
of two prior actions by the Circuit Court of Ohio County.
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                because they were previously litigated and dismissed by a federal
                Judge.

                        [Petitioner’s] claims for negligent hiring practices,
                defamation, failure to supervise, injury sustained in an attempt to
                rescue, fraud, endangerment of and injury to [petitioner], infliction
                of physical and emotional distress, liability of a corporate director or
                officer for wrongful conduct are barred by the statute of
                limitations.[3]

                        [Petitioner’s] claims for defamation and other claims
                involving statements or actions by [respondents] that were
                committed in the course of litigation are protected by the litigation
                privilege.[4]

                        In addition to being barred by the litigation privilege, statute
                of limitation[s] and res judicata, [petitioner] has failed to state a
                claim for which relief can be granted for the action or failure to
                employ or supervise employees, defamation occurring September
                30, 20[09], defamation involving [petitioner’s] profession, trade or
                business, negligent infliction of emotional distress, the rescue
                doctrine, denial of access to [a] state banking institution, and injury
                sustained in an attempt to rescue.[5]

Petitioner now appeals the circuit court’s September 20, 2012 order granting summary
judgment.

       “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v.
Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Summary judgment can be granted if a claim fails

        3
          The circuit court found that most of petitioner’s tort claims accrued before March 22,
2008, and had a two-year statute of limitations. See W.Va. Code § 55-2-12(b). Defamation has a
one-year statute of limitations. See W.Va. Code § 55-2-12(c). The circuit court found that one of
petitioner’s claims for defamation dated back to April 24, 2008. The circuit court found an
additional defamation claim and petitioner’s claim for defamation involving her profession, trade,
or business were not time-barred because they accrued on September 30, 2009.
        4
           See Syl. Pt. 3, Clark v. Druckman, 218 W.Va. 427, 624 S.E.2d 864 (2005) (“The
litigation privilege is generally applicable to bar a civil litigant’s claim for civil damages against an
opposing party’s attorney if the alleged act of the attorney occurs in the course of the attorney’s
representation of an opposing party and is conduct related to the civil action.”).
        5
          The circuit court also found that petitioner did not have standing to bring claims on
behalf of Greg Givens.

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as a matter of law. Rule 56(c) of the West Virginia Rules of Civil Procedure provides, in pertinent
part, that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” (Emphasis added). Many of petitioner’s causes of action failed as a matter of law because
of the applicable statute of limitations and/or the litigation privilege. In addition, the circuit court
correctly determined that two of petitioner’s claims were barred by the doctrine of res judicata. See
Syl. Pt., 1, Antolini v. West Virginia Division of Natural Resources, 220 W.Va. 255, 647 S.E.2d
535 (2007) (setting forth the principles of res judicata).

        For those claims raised by petitioner which survived the application of the statute of
limitations, the litigation privilege, and the doctrine of res judicata; the circuit court found that
those causes of action failed to state a claim upon which relief could be granted. Petitioner argues
that summary judgment was granted before there was an adequate opportunity for discovery.
However, in its September 20, 2012 order, the circuit court considered affidavits as well as
deposition testimony. Respondents assert that petitioner’s claims were wholly unsupported and
that judgment was appropriately granted as a matter of law. After careful consideration of the
record on appeal, this Court concludes that the circuit court did not err in granting respondents
summary judgment.

        For the foregoing reasons, we affirm.

                                                                                             Affirmed.

ISSUED: October 4, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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