                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

Michael Ellis,                                                                     FILED
Plaintiff Below, Petitioner                                                   December 20, 2019
                                                                                EDYTHE NASH GAISER, CLERK
vs) No. 18-0612 (Kanawha County 17-C-361)                                       SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


Office of the Kanawha County
Circuit Clerk,
Defendant Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Michael Ellis, pro se, appeals the June 19, 2018, order of the Circuit Court of
Kanawha County awarding Respondent Office of the Kanawha County Circuit Clerk summary
judgment on petitioner’s claim that an assistant clerk committed intentional misconduct by adding
a defendant to petitioner’s complaint in another action that petitioner did not want to sue.
Respondent, by counsel James A. Muldoon, filed a response in support of the circuit court’s order.
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 no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        On February 9, 2017, petitioner filed a complaint in Case No. 17-C-1901 (“first action”)
against the West Virginia Human Rights Commission (“HRC”) and its executive director.2 On
March 16, 2017, petitioner filed a complaint in the instant action, Case No. 17-C-361 (“second
action”), against respondent, alleging that he did not want to name the HRC’s executive director
as a separate defendant in the first action. In the second action, petitioner further alleged that he
explained to the assistant clerk in respondent’s office that he wanted to name the HRC as the only
defendant in the first action and that the assistant clerk added the executive director’s name to his


       1
           We take judicial notice of the record in Kanawha County Case No. 17-C-190.
       2
         Petitioner alleged that the HRC’s finding of no probable cause regarding his
discrimination complaint was fraudulent.
                                                  1
complaint without petitioner’s knowledge or permission. Finally, petitioner alleged that the
assistant clerk committed fraud and forgery and violated petitioner’s right to due process of law.

       In the first action, at an August 28, 2017, hearing, the circuit court first considered a motion
by the HRC’s executive director to be dismissed as a defendant based on petitioner’s admission
that he did not want to name the executive director as a separate defendant. After petitioner
confirmed this admission, the circuit court granted the executive director’s motion to be dismissed
as a defendant. Next, the circuit court considered the HRC’s motion to dismiss petitioner’s
complaint in the first action. Following argument by petitioner and the HRC, the circuit court
dismissed petitioner’s complaint, finding that it was barred by the relevant statute of limitations
and that it failed to state a claim upon which relief can be granted. The circuit court entered its
dismissal order in the first action on September 20, 2017.3

        In the second action, the circuit court entered a scheduling order on August 29, 2017, and
the parties thereafter engaged in discovery. Following the close of discovery, respondent filed a
motion for summary judgment on May 4, 2018.4 The circuit court held a hearing on respondent’s
motion on June 7, 2018. Following argument by the parties, by an order entered June 19, 2018, the
circuit court awarded summary judgment to respondent, finding that petitioner “did not suffer any
damages as a matter of law.”

        It is from the circuit court’s June 19, 2018, order that petitioner now appeals. “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). Rule 56(c) of the West Virginia Rules of Civil Procedure provides
that summary judgment shall be granted where “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.” “Summary judgment is
appropriate where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on
an essential element of the case that it has the burden to prove.” Painter, 192 W.Va. at 190, 451
S.E.2d at 756, syl. pt. 4.

        In Syllabus Point 1 of Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981), we reiterated
that:

        3
         Petitioner attempted to appeal the circuit court’s September 20, 2017, order in the first
action by a filing a motion for leave to appeal out of time in this Court on January 28, 2019. By
order entered February 4, 2019, we denied petitioner’s motion, finding that an appeal from the
September 20, 2017, order had to be perfected on or before February 27, 2018 and that “the
statutory time frame for perfecting the appeal has expired.” See W.Va. Code § 58-5-4;
W.V.R.App.P. 5(f).
        4
         In the August 29, 2017, scheduling order, the circuit court set April 1, 2018, as the deadline
for discovery to be completed. The parties now dispute the date on which discovery closed and the
timeliness of each other’s discovery responses. However, we decline to address any issue with
regard to the parties’ discovery dispute as our affirmation of the circuit court’s award of summary
judgment to respondent is dispositive as to all claims herein.
                                                  2
               [t]he essential elements in an action for fraud are: “(1) that the act claimed
       to be fraudulent was the act of the defendant or induced by him; (2) that it was
       material and false; that plaintiff relied upon it and was justified under the
       circumstances in relying upon it; and (3) that he was damaged because he relied
       upon it.” Horton v. Tyree, 104 W.Va. 238, 242, 139 S.E. 737 (1927).

In Syllabus Point 1 of Barbee v. Amory, 106 W.Va. 507, 146 S.E. 59 (1928), we held that forgery
constitutes “[e]ither the fraudulent making or altering of an instrument of legal import to the
prejudice of another’s rights.” We further have held that a person alleging a violation of due
process of law must demonstrate that he suffered prejudice thereby. See Syl. Pt. 5, Miller v.
Moredock, 229 W.Va. 66, 726 S.E.2d 34 (2011) (holding that a person alleging an undue delay in
the revocation of his license to operate a motor vehicle must show that he suffered prejudice as a
result of the delay).

         On appeal, petitioner argues that he was damaged and/or prejudiced by respondent’s
employee allegedly adding the HRC’s executive director’s name to his complaint in the first action
without his knowledge or permission. Respondent counters that the circuit court properly awarded
it summary judgment on petitioner’s various claims. We agree with respondent. Based on our
review of the circuit court’s September 20, 2017, order in the first action, we find that the HRC’s
executive director’s motion to be dismissed as a defendant was treated separately from the HRC’s
motion to dismiss petitioner’s complaint. The circuit court’s dismissal of the HRC’s executive
director was favorable to petitioner because it was in accordance with his stated desire. While the
circuit court granted the HRC’s motion to dismiss, the court did not indicate that the naming of the
executive director as a defendant was a reason supporting either of the two grounds on which it
dismissed petitioner’s complaint in the first action. Therefore, we conclude that the circuit court
did not err in awarding summary judgment to respondent in the second action given that petitioner
failed to show that he was damaged by respondent’s employee’s alleged misconduct as a matter
of law.

       For the foregoing reasons, we affirm the circuit court’s June 19, 2018, order granting
respondent’s motion for summary judgment.

                                                                                          Affirmed.

ISSUED: December 20, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
                                                 3
