                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Andre J. Portee,                                                                   FILED
Plaintiff Below, Petitioner
                                                                                June 29, 2018
                                                                              EDYTHE NASH GAISER, CLERK
vs) No. 17-0546 (Fayette County 17-C-152)                                     SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
City of Mount Hope,
Defendant Below, Respondent

                              MEMORANDUM DECISION
        Petitioner Andre J. Portee, pro se, appeals the June 12, 2017, order of the Circuit Court of
Fayette County dismissing his civil action against Respondent City of Mount Hope (“the City”) for
false arrest and property damage during the execution of a search warrant. The City, by counsel
Chip E. Williams and Jared C. Underwood, 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 affirming the circuit court’s orders is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner lives at a residence in Mount Hope, West Virginia. On October 22, 2016, the
City’s police department was contacted regarding an incident at petitioner’s residence. Reportedly,
a woman at petitioner’s residence attempted to leave to go to her mother’s house;1 however,
according to the criminal complaint,2 petitioner followed the woman out of his residence and
forcibly removed her from her mother’s vehicle. Petitioner began hitting and kicking the woman.
The woman’s mother defended her daughter by exiting her vehicle, picking up a flower pot, and
throwing it at petitioner. In response, petitioner threw pieces of the broken flower pot at the
woman’s mother. Meanwhile, the woman was able to get back inside the passenger’s side of the

       1
        The exact nature of the relationship between petitioner and the woman is not disclosed by
the record.
       2
         We take judicial notice of petitioner’s criminal case, No. 16-M-10M-02970, and note that,
in ruling on a motion to dismiss, a court is permitted to “consider matters that are susceptible to
judicial notice.” See Forshey v. Jackson, 222 W.Va. 743, 747, 671 S.E.2d 748, 752 (2008)
(internal quotations and citations).

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vehicle. The woman’s mother got back inside the driver’s side and began backing the vehicle out
of petitioner’s driveway. While the vehicle was backing out, petitioner got behind the vehicle and
attempted to remove its license plate, damaging it. The criminal complaint is dated October 24,
2016, and signed by a magistrate who found “[p]robable cause” for charging petitioner with two
counts of misdemeanor assault, one count of misdemeanor battery, and one count of misdemeanor
destruction of property. The magistrate also signed a warrant for petitioner’s arrest, finding
“probable cause to believe that” he committed the offenses.

        While petitioner was in police custody prior to his release on bond, a second magistrate
found “probable cause” for a search of petitioner’s home. The search warrant specified that the
police could seize various types of electronic equipment found at the residence including
“computer software, tapes and discs, audio tapes, and the contents therein, containing the
information generated by the electronic equipment.” (Emphasis added.). According to petitioner,
the search warrant was served while he was in a holding cell. The police asked petitioner for the
keys to his house, entered his residence, and removed a DVR recording device that petitioner was
using for surveillance both inside and outside his home. On March 28, 2017, the magistrate court
dismissed the four charges against petitioner because both the woman whom he allegedly attacked
and her mother failed to appear as witnesses at his bench trial.

        On April 11, 2017, petitioner filed a civil action against the City alleging “[d]amages to
DVR and door and door frame and [his] person.” In his complaint, petitioner further alleged that he
was arrested “falsely” and made some supporting allegations regarding the seizure of the DVR
device from his home such as that there was no reason to damage his front door given that the
police had the keys to the house. Petitioner devoted a substantial portion of his complaint to a
discussion of the types of monetary damages potentially available if he could prove his claims.
Petitioner asked for unspecified compensatory damages and $100,000 in punitive damages.3 To
the complaint, petitioner attached several exhibits including the arrest warrant, the search warrant,
and a receipt showing that he paid $349.99 for the DVR device. On May 18, 2017, the City filed a
motion to dismiss petitioner’s action pursuant to the immunity provisions set forth in the West
Virginia Governmental Tort Claims and Insurance Reform Act (“the Act”), West Virginia Code
§§ 29-12A-1 through 29-12A-18.4 Following a hearing, the circuit court dismissed the action on
June 12, 2017, finding, inter alia, that the City had immunity from petitioner’s claims pursuant to
West Virginia Code § 29-12A-5(a)(3).5

       3
        We note that, because petitioner seeks to recover from a political subdivision for
“[d]amages to DVR and door and door frame and [his] person,” punitive damages are not available
pursuant to West Virginia Code § 29-12A-7(a).
       4
        West Virginia Code § 29-12A-3(b) defines a “municipality” as “any incorporated city,
town or village and all institutions, agencies or instrumentalities of a municipality.” (Emphasis
added.). A municipality is included within the definition of a “political subdivision” pursuant to
West Virginia Code § 29-12A-3(c).
       5
        Having found this ground sufficient to affirm the dismissal of petitioner’s action, see
(Continued . . .)
                                              2
         Petitioner now appeals the circuit court’s June 12, 2017, dismissal of his action due to
statutory immunity. “Appellate review of a circuit court’s order granting a motion to dismiss a
complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194
W.Va. 770, 461 S.E.2d 516 (1995). In syllabus point 3 of West Virginia Regional Jail and
Correctional Facility Authority v. A.B., 234 W.Va. 492, 766 S.E.2d 751 (2014), we reiterated:

                “The ultimate determination of whether qualified or statutory immunity
        bars a civil action is one of law for the court to determine. Therefore, unless there is
        a bona fide dispute as to the foundational or historical facts that underlie the
        immunity determination, the ultimate questions of statutory or qualified immunity
        are ripe for summary disposition.” Syl. Pt. 1, Hutchison v. City of Huntington, 198
        W.Va. 139, 479 S.E.2d 649 (1996).

        On appeal, petitioner argues that the circuit court erred in dismissing his action against the
City. The City counters that the circuit court properly interpreted the vague allegations in
petitioner’s complaint as raising claims from which it is immune. We agree with the City.

        “[I]n civil actions where immunities are implicated, the trial court must insist on
heightened pleading by the plaintiff.” Hutchison, 198 W.Va. at 149, 479 S.E.2d at 659. As we
explained in Hutchison, “[t]he very heart of the immunity defense is that it spares the defendant
from having to go forward with an inquiry into the merits of the case.” Id. at 148, 479 S.E.2d at
658. Here, we agree with the circuit court’s finding that it is “difficult, at best,” to discern what, if
any, causes of action are asserted by the complaint. The circuit court ultimately determined that
petitioner raised a claim of false arrest and a negligence claim regarding alleged damage to his
front door and DVR device during the execution of the search warrant. We find that, in
determining that petitioner’s allegations regarding his damaged property amounted to a negligence
claim, the circuit court construed his complaint in his favor because, while a municipality is
sometimes liable for its employees’ negligent conduct under the Act, “claims of intentional and
malicious acts are included in the general grant of immunity in [West Virginia Code§]
29-12A-4(b)(1).” Zirkle v. Elkins Road Public Service Dist., 221 W.Va. 409, 414, 655 S.E.2d 155,
160 (2007); see Mallamo v. Town of Rivesville, 197 W.Va. 616, 624-25, 477 S.E.2d 525, 533-34
(1996) (finding that the town had no liability where it was alleged that its police chief committed
conspiracy because conspiracy was an intentional act, not negligence).

        “Furthermore, certain claims of negligence may be subject to one of the specific immunity
provisions of [West Virginia Code §] 29-12A-5.” Zirkle, 221 W.Va. at 414, 655 S.E.2d at 160. In
this case, the specific immunity provision is West Virginia Code § 29-12A-5(a)(3) which provides
that “[a] political subdivision is immune from liability if a loss or claim results from . . . (3)
[e]xecution or enforcement of the lawful orders of any court.” To his complaint, petitioner
attached the arrest warrant and the search warrant as exhibits. We treat the warrants as part of the

infra, we decline to address the other grounds relied upon by the circuit court.


                                                   3
complaint pursuant to syllabus point one of Forshey v. Jackson, 222 W.Va. 743, 671 S.E.2d 748
(2008), in which we held that attached exhibits may be considered in the consideration of a motion
to dismiss without converting the motion into one for summary judgment. With regard to the false
arrest claim, we find that the arrest warrant was a lawful order because it was signed by a
magistrate who found probable cause.

        We further find that the search warrant constituted a lawful order for that same reason.
Accordingly, with regard to the claims alleging that petitioner’s front door and DVR device were
damaged, we find that the search warrant authorized an entry of petitioner’s home and the seizure
of the DVR device “and the contents therein, containing the information generated by the
electronic equipment.” Petitioner’s specific allegation regarding the DVR device is that its hard
drive was “fried.” However, given that “the information generated by the electronic equipment”
constituted an item to be seized, we find that, if the DVR device’s hard drive was negligently
destroyed during the seizure, that negligent conduct came within the scope of the search warrant’s
authorization. Therefore, we conclude that the circuit court properly found that the City had
immunity from petitioner’s claims arising out of actions involving the execution or enforcement of
lawful court orders and did not err in dismissing his action.6

        For the foregoing reasons, we affirm the circuit court’s June 17, 2017, order dismissing
petitioner’s civil action against the City.

                                                                                        Affirmed.

ISSUED: June 29, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

Justice Allen H. Loughry II, suspended and therefore not participating.


       6
         On appeal, petitioner argues that his action against the City should be revived based on
statutes and causes of action not found in his complaint. The City counters that we should
disregard all such arguments because they were not presented to the circuit court. We agree with
the City and decline to address any arguments based on statutes and causes of action not found in
petitioner’s complaint. See A.B., 234 W.Va. at 519, 766 S.E.2d at 778 (finding that “[a]n appellate
court must accept the record as it was originally presented”) (internal quotations and citations
omitted); Syl. Pt. 2, Sands v. Sec. Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958) (holding that
“[t]his Court will not pass on a non[-]jurisdictional question which has not been decided by the
trial court in the first instance”).

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