                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Megan White,                                                                        FILED
Plaintiff Below, Petitioner                                                       March 31, 2014
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 13-0254 (Kanawha County 11-C-1383)                                      OF WEST VIRGINIA



Good Shepherd Child Development Center,
Defendant Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Megan White, by counsel Clinton W. Smith, appeals the February 11, 2013,
order from the Circuit Court of Kanawha County granting summary judgment to respondent.
Respondent Good Shepherd Child Development Center, by counsel John R. McGhee Jr., filed a
response in support of the circuit court’s order. Petitioner submitted a reply. Petitioner argues
that she should have been granted a continuance due to issues in her counsel’s office that led to
her counsel failing to conduct any discovery.

        This 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.

        In August of 2009, petitioner dropped off her child, then three years old, at respondent’s
child care facility and child care workers stated that they discovered the child’s collar bone was
broken. After an investigation, Charleston Police filed a criminal complaint against petitioner
alleging child abuse resulting in injury. The child’s father filed for a domestic violence protective
order (“DVPO”) against petitioner to seek temporary custody of the child, which was granted. In
September of 2009, the Kanawha County Prosecutor moved to dismiss the criminal charges. In
November of 2009, the DVPO was terminated by the Family Court of Kanawha County.

       In August of 2011, petitioner filed the underlying action, alleging that respondent’s
employees gave false statements to authorities, causing petitioner to be arrested and temporarily
lose custody of her child, and arguing she suffered emotional and physical damages, mental
anguish, emotional distress, humiliation, and embarrassment. Respondent filed a motion to
dismiss, arguing it was statutorily immune from petitioner’s claims under West Virginia Code §
49-6A-6 and that it was absolutely immune from the claims under common law witness
immunity. However, the circuit court denied the motion, holding that whether the statements by
respondent’s employees were made in good faith was more appropriately addressed on summary
judgment. The circuit court issued a scheduling order in March of 2012, with specific deadlines

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for discovery, motions, and a trial date in February of 2013. In July of 2012, petitioner responded
to respondent’s discovery requests after the circuit court ordered her to do so,1 but did not
provide medical records or documents supporting her damages claims. Petitioner did not submit
any expert witnesses or facts by the deadlines in May and July of 2012.

        In December of 2012, respondent filed a motion for summary judgment, to which
petitioner never responded. In January of 2012, petitioner filed a motion to continue the trial date
because, “due to circumstances in the office of counsel, counsel has not been able to properly
prepare for the trial of this matter.” At the pre-trial conference,2 the circuit court stated that it
“never continue[s] cases,” but proceeded to question petitioner about the basis for needing a
continuance. Petitioner’s counsel stated that he had an employee quit and was unable to conduct
discovery, including depositions. Petitioner’s counsel then argued that written discovery needed
to be done, including incident reports, and that he had “a doctor who will testify, I believe, . . .
that’s a deposition that needs to be done – that injury could not have happened the way that they
allege it happened . . . .” Petitioner’s counsel stated that the employee had quit in August of
2011, well in advance of the scheduling order and over a year before the discovery cutoff, and
that he was not prepared to defend against the motion for summary judgment. The circuit court
denied petitioner’s motion to continue and granted respondent’s motion for summary judgment
by order entered February 11, 2013, holding that respondent is immune from liability due to its
good faith participation in an investigation into child abuse or neglect and finding that
respondent’s employees participated in good faith with law enforcement’s investigation. It is
from this order that petitioner appeals.

       “‘A circuit court’s entry of summary judgment is reviewed de novo.’ Syllabus point 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).” Syl. Pt. 1, Mack-Evans v. Hilltop
Healthcare Center, Inc., 226 W.Va. 257, 700 S.E.2d 317 (2010).

       If the moving party makes a properly supported motion for summary judgment
       and can show by affirmative evidence that there is no genuine issue of a material
       fact, the burden of production shifts to the nonmoving party who must either (1)
       rehabilitate the evidence attacked by the moving party, (2) produce additional
       evidence showing the existence of a genuine issue for trial, or (3) submit an
       affidavit explaining why further discovery is necessary as provided in Rule 56(f)
       of the West Virginia Rules of Civil Procedure.

Syl. Pt. 3, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

       Petitioner asserts a single assignment of error: the circuit court erred in denying her
motion to continue and considering respondent’s motion for summary judgment. First, petitioner
contends that denying her motion to continue amounted to a sanction for the misconduct of her
counsel and that the circuit court failed to consider the factors articulated in Syllabus Point 2,
Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996):

1
  The circuit court ordered petitioner to respond to respondent’s discovery requests in February

of 2012 after respondent filed a motion for sanctions in May of 2012.

2
  The pre-trial conference was held at its originally-scheduled time.


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       To determine what will constitute an appropriate sanction, the court may consider
       the seriousness of the conduct, the impact the conduct had in the case and in the
       administration of justice, any mitigating circumstances, and whether the conduct
       was an isolated occurrence or was a pattern of wrongdoing throughout the case.

Petitioner argues that the circuit court erred by failing to consider these factors. As evidence of
this failure, petitioner points to the announcement by the circuit court that it “never continue[s]
cases.”

        Respondent argues that petitioner failed to meet the requirements of Rule 56(f) of the
West Virginia Rules of Civil Procedure and, in petitioner’s reply, she argues that she satisfies the
four criteria for permitting a Rule 56(f) motion laid out in Syllabus Point 1 of Powderidge Unit
Owners Association v. Highland Properties, Ltd. 196 W.Va. 692, 474 S.E.2d 872 (1996):

       At a minimum, the party making an informal Rule 56(f) motion must satisfy four
       requirements. It should (1) articulate some plausible basis for the party’s belief
       that specified “discoverable” material facts likely exist which have not yet
       become accessible to the party; (2) demonstrate some realistic prospect that the
       material facts can be obtained within a reasonable additional time period; (3)
       demonstrate that the material facts will, if obtained, suffice to engender an issue
       both genuine and material; and (4) demonstrate good cause for failure to have
       conducted the discovery earlier.

        We find that nothing in the record below suggests that denying petitioner’s motion to
continue was a sanction, but that the circuit court considered the utility of further delays to the
case. We find that petitioner failed to meet the fourth requirement set forth in Powderidge: she
did not demonstrate good cause for failure to have conducted the discovery earlier. The record
shows that petitioner was clearly given deadlines for discovery and that her counsel either did
nothing or was late for all of the deadlines for the case. Her counsel never requested extensions
to the deadlines that had lapsed, including the cutoff for discovery, which had lapsed more than a
month before petitioner filed her motion to continue. Additionally, the only justification
petitioner’s counsel could offer was that an employee had stopped working for him prior to filing
this action.

       Based on the record before this Court, we find that the circuit court did not err in refusing
to continue the case. Thus, because petitioner has not argued any specific error in granting
respondent’s motion for summary judgment, we affirm the circuit court’s order granting the
motion.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.




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ISSUED: March 31, 2014


CONCURRED IN BY:

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




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