Burnette v. Wooton et al

Filing 13

MEMORANDUM OPINION AND ORDER: granting Plaintiff's 6 MOTION for Extension of Time and denying Defendants 4 Motion to Dismiss. Signed by Judge Irene C. Berger on 3/11/2019. (cc: attys; any unrepresented party) (msa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
WELDON MARK BURNETTE,
Plaintiff,
v.

CIVIL ACTION NO. 5:18-cv-00956

JOHN DAVID WOOTON, JR., et al.,
Defendants.
MEMORADUM OPINION AND ORDER
The Court has reviewed the Complaint (Document 1), John David Wooton, Jr., and
Wooton, Davis, Hussell & Ellis, LLC’s (hereinafter the “Wooton Defendants’”) Motion to Dismiss
by Wooton Defendants (Document 4), the Memorandum of Law in Support of Motion to Dismiss
by Wooton Defendants (Document 5), the Plaintiff’s Motion for Extension of Time (Document 6),
and the Plaintiff’s Response in Opposition to the Wooton Defendants’ Motion to Dismiss
(Document 7). In his motion for extension of time, the Plaintiff sought additional time to file a
response to the motion to dismiss and advised the Court that the Defendants did not object. The
Court finds that the motion for extension should be granted. For the reasons stated herein, the
Court finds that the motion to dismiss should be denied.
FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY
On May 20, 2018 the Plaintiff, Weldon Burnette, filed a two-count Complaint against the
Defendants John David Wooton Jr., Wooton, Davis, Hussell & Ellis, LLC, and Alexander
Sizemore, alleging malicious prosecution and abuse of process.
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A. The 2001 Criminal Proceeding
The origin of this case stems from a 2001 case in which the Greenbrier County grand jury
indicted Alexander Sizemore for the crime of sexual assault in the first degree. At the time, Mr.
Sizemore was twenty-two years old and the indictment alleged that he had engaged in a sexual act
with an eleven-year-old. Mr. Sizemore retained Mr. Burnette and his former law firm to represent
him in the criminal case. Mr. Burnette and his former firm secured a plea offer from then
Greenbrier County Assistant Prosecuting Attorney, Stephen Dolly. Mr. Burnette encouraged Mr.
Sizemore to accept the plea offer but he refused. Thus, a trial was held in the Circuit Court of
Greenbrier County, West Virginia, from July 9-11, 2002. After the State rested its case, Assistant
Prosecuting Attorney Dolly again offered Mr. Sizemore a plea. Mr. Burnette encouraged Mr.
Sizemore to take the offer and, for the second time, Mr. Sizemore declined. After the conclusion
of the trial, Mr. Sizemore was convicted of sexual assault in the first degree.
Following the conviction, Mr. Sizemore was placed on home confinement pending
sentencing. He violated the terms of his home confinement by sneaking a fifteen-year-old girl
into his home to spend the night. The State moved to revoke Mr. Sizemore’s home confinement.
The court granted the motion and remanded Mr. Sizemore to the Southern Regional Jail pending
sentencing. Mr. Burnette filed a motion to withdraw as Mr. Sizemore’s counsel on August 23,
2002. The court granted the motion on August 26, 2002, and Mr. Burnette has not represented
Mr. Sizemore since that time. Mr. Sizemore was sentenced to an indeterminate term of not less
than 15 and no more than 35 years in the state penitentiary.
B. Mr. Sizemore’s Habeas Corpus Petitions
Mr. Sizemore appealed his conviction multiple times. Initially, Mr. Sizemore appealed
his conviction to the Supreme Court of Appeals of West Virginia, but the court refused to hear the
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appeal. In March 2005, Mr. Sizemore filed a habeas corpus petition in this Court, in part, on the
grounds that Mr. Burnette, while acting as Mr. Sizemore’s attorney, informed the Assistant
Prosecuting Attorney, Mr. Dolly, that his client had confessed the sexual assault to his girlfriend.
That petition was denied. On February 13, 2013, Mr. Sizemore filed a pro se habeas corpus
petition with the Circuit Court of Greenbrier County, West Virginia. That petition also repeated
the claim that Mr. Burnette had informed Mr. Dolly of Mr. Sizemore’s confession.
On December 11, 2014, the Honorable James J. Rowe, Judge, Circuit Court of Greenbrier
County West Virginia, conducted a hearing on the petition. Following the hearing, Judge Rowe
signed an order releasing Mr. Sizemore from prison and placing him on bond pending a ruling on
the petition. On May 27, 2016, Judge Rowe signed an order granting the petition and reversing
the conviction, but the order did not state the basis upon which Mr. Sizemore’s conviction was
vacated. Shortly after granting the petition, Judge Rowe retired.
C. Mr. Sizemore’s Litigation After Release
Upon his release, Mr. Sizemore sought damages against the State for wrongful
incarceration. The claim against the State was denied. On December 9, 2016, Mr. Sizemore
filed a civil complaint in Greenbrier County Circuit Court against Mr. Burnette alleging
malpractice and other causes of action based on the allegation that Mr. Burnette had informed Mr.
Dolly about Mr. Sizemore’s confession. On March 21, 2017, Mr. Sizemore, represented by the
Wooton Defendants, amended the complaint.
On April 16, 2017, Mr. Burnette removed the case to this Court. On May 8, 2017, Mr.
Burnette filed a motion to dismiss the complaint in the malpractice action for reasons which
included the expiration of the statute of limitations. He requested that the Court take judicial
notice of the 2002 trial transcript, Judge Rowe’s order vacating Mr. Sizemore’s conviction, and
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the 2013 habeas corpus petition. On May 22, 2017, Mr. Sizemore, represented by the Wooton
Defendants, filed a response to Mr. Burnette’s motion to dismiss the malpractice action. In it, he
argued that the “discovery rule” applied since he alleged in his proposed second amended
complaint that Mr. Sizemore first learned of the basis of the malpractice action less than two years
before it was filed. 1 On June 9, 2017, Mr. Burnette filed a request for the Court to take judicial
notice of the 2005 habeas corpus petition, wherein Mr. Sizemore had made the allegation about
the confession. On June 12, 2017, Mr. Sizemore, represented by the Wooton Defendants, filed a
reply to Mr. Burnette’s response. This Court granted the motion to amend the complaint and
granted leave to Mr. Burnette to file a new motion to dismiss addressing the allegations in the
amended complaint, which he did. On July 17, 2017, Mr. Sizemore, still represented by the
Wooton Defendants, filed a response to Mr. Burnette’s motion to dismiss the second amended
complaint. On August 22, 2017, this Court held a hearing on Mr. Burnette’s request for judicial
notice. Before the hearing, John Wooton, Jr., approached Mr. Burnette and offered to forgo a
personal judgment against Mr. Burnette if he would assist John Wooton, Jr., with locating Mr.
Burnette’s malpractice insurance and cooperate involving Mr. Burnette’s malpractice insurance
carrier. On March 8, 2018, this Court entered an order granting Mr. Burnette’s motion to dismiss

1 The Supreme Court of Appeals of West Virginia has held:
[U]nder the discovery rule the statute of limitations begins to run
when the plaintiff knows, or by exercise of reasonable diligence,
should know (1) that the plaintiff has been injured, (2) the identity
of the entity who owed the plaintiff a duty to act with due care, and
who may have engaged in conduct that breached that duty, and (3)
that the conduct of that entity has a causal relation to the injury.
Gaither v. City Hosp., Inc., 487 S.E.2d 901 (W. Va. 1997).
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the second amended complaint and the malpractice action with prejudice, finding that the statute
of limitation had expired on the claim inasmuch as Mr. Sizemore had knowledge of and had relied
upon the allegation that Mr. Burnette had given information regarding the confession to Mr. Dolly
in his 2002-03 post-conviction motions and in his state appeal. 2
STANDARD OF REVIEW
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or
pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed. R. Civ.
P. 8(d)(1).

“[T]he pleading standard Rule 8 announces does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly,
550 U.S. 544, 555 (2007)). In other words, “a complaint must contain “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid
of further factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557)
(internal quotation marks omitted).
The Court must “accept as true all of the factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw [] all reasonable factual
2 The Court has accepted the facts and allegations in the complaint to be true, in accord with the precedent cited
herein for analyzing a motion made pursuant to Rule 12(b)(6).

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inferences from those facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231,
244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the
assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore,
the court need not “accept as true unwarranted inferences, unreasonable conclusions, or
arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as
a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff
to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’” Francis, 588
F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint, “articulate
facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling him to relief.”
Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining whether a complaint
states [on its face] a plausible claim for relief [which can survive a motion to dismiss] will ... be a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679.
DISCUSSION
Count I of the Complaint alleges that the Defendants engaged in malicious prosecution of
the Plaintiff.

A plaintiff, in an action for malicious prosecution, must prove “(1) that the

prosecution was malicious, (2) that it was without reasonable or probable cause, and (3) that it
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terminated favorably to [the] plaintiff.” Preiser v. MacQueen, 352 S.E.2d 22, 24 (W. Va. 1985)
(citing Lyons v. Davy-Pocahontas Coal Co., 84 S.E. 744 (W. Va. 1915).
In their motion, the Wooton Defendants argue that the Court should dismiss the Complaint,
because the underlying case was resolved based on the expiration of the statute of limitations rather
than on the merits, which they contend is a required element in the third part of the conjunctive
test set forth in Lyons. The Plaintiff counters that no such requirement exists.
After a review of the applicable law, the Court finds that there is no requirement that a
matter be terminated on the merits to raise a claim for malicious prosecution. To support their
position to the contrary, the Wooton Defendants rely on McCammon v. Oldaker, 516 S.E.2d 38
(W. Va. 1999) and Cunard v. Mylan Pharm., Inc., Civil Action No. 2:06–CV–00640, 2006 WL
3692648 (S.D.W. Va. Dec. 13, 2006) (Copenhaver, J.). However, neither case is instructive.
In McCammon, the Supreme Court of Appeals of West Virginia addressed whether the
plaintiff's malicious prosecution claim, based on the favorable resolution of a medical malpractice
case, was barred by the one-year statute of limitation. 516 S.E.2d at 43. That court did not
address whether an action must be resolved on the merits to satisfy the “terminated favorably”
element set forth in Lyons.
In Cunard v. Mylan Pharm., Inc., the plaintiff alleged that the defendants caused a criminal
investigation to be conducted and that the search warrant issued by the circuit court relied on
misleading information provided by the defendant. Civil Action No. 2:06–CV–00640, 2006 WL
3692648 at *1 (S.D.W. Va. Dec. 13, 2006) (Copenhaver, J.). Judge Copenhaver dismissed the
malicious prosecution count, because:
[T]he plaintiffs cannot show that the prosecution was conducted to
its termination. Cunard was never arrested or indicted on any
charges. Even if the court were to find that a prosecution
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commenced upon the issuance and execution of the search warrant,
the prosecution was not thereafter pursued, much less “conducted to
its termination.” Rather, Monongalia County authorities simply
decided there was no basis for any criminal investigation.
Id. at 5. Here, unlike Cunard, there was a clear termination of the malpractice suit. This Court
entered an order granting the Plaintiff’s motion to dismiss with prejudice. Cunard does not reach
the issue of whether a case must be terminated on its merits. Judge Copenhaver simply found that
there was no “prosecution” to have been “conducted to its termination” as required by Lyon and
subsequently cited in Preiser. In other words, a prosecution must have actually existed or
commenced and then concluded before one can complain of a malicious prosecution.
In a footnote, the Wooton Defendants note that other jurisdictions have, in fact, required
favorable termination on the merits. However, because this Court is sitting in diversity, it must
apply West Virginia state substantive law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
If there is no relevant West Virginia substantive law addressing the issue, the Court must predict
how West Virginia state courts would address the issue. Roe v. Doe, 28 F.3d 404, 407 (4th Cir.
1994). However, in doing so, the Court must not expand upon the laws of West Virginia. Wade
v. Danek Med., Inc., 182 F.3d 281, 286 (4th Cir. 1999) (citing St. Paul Fire & Marine Ins. Co. v.
Jacobson, 48 F.3d 778, 783 (4th Cir. 1995)).

West Virginia law on this subject is clear.

Although other jurisdictions have a more precise requirement that the matter be terminated on the
merits, that requirement currently is not present in West Virginia law.
The other claim alleged in the Complaint is that of abuse of process. The Plaintiff argues
the claim is viable. The Plaintiff alleges that he provided information to the Defendants before
they amended their complaint, which proved that the malpractice action was filed outside the
statute of limitations. Additionally, he alleges that John Wooton, Jr., approached him about
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assisting him with obtaining the involvement of his insurance carrier in exchange for not pursuing
a personal judgment. The Wooton Defendants argue that the Complaint should be dismissed
because the Plaintiff failed to allege that the Wooton Defendants used any instruments of lawfully
issued process after it was issued for the sole purpose of something entirely collateral to the
underlying litigation.
“Generally, abuse of process consists of the willful or malicious misuse or misapplication
of lawfully issued process to accomplish some purpose not intended or warranted by that process.”
Williamson v. Harden, 585 S.E.2d 369, 372 (W. Va. 2003) (quoting Preiser v. MacQueen, 352
S.E.2d at 28. In contrast to malicious prosecution, abuse of process is not about commencing an
action or causing the process to issue without justification, rather it is about misapplying process
justified in itself for an end other than what it is designed to accomplish. Preiser, 352 S.E.2d at
28, n. 8. (citing W. Prosser, Handbook of the Law of Torts § 121 (1971)). The elements of an
abuse of process claim are first, an ulterior purpose, and second, a willful act in the use of the
process not proper in the regular conduct of the proceeding. The Preiser Court also added that:
Some definite act or threat not authorized by the process or aimed at
an objective not legitimate in the use of the process, is required; and
there is no liability where the defendant has done nothing more than
carry out the process to its authorized conclusion, even though with
bad intentions. The improper purpose usually takes the form of
coercion to obtain a collateral advantage, not properly involved in
the proceeding itself, such as the surrender of property or the
payment of money, by the use of the process as the threat or club.
There is, in other words, a form of extortion, and it is what is done
in the course of negotiation, rather than the issuance or any formal
use of the process itself, which constitutes the tort.
Id. “[T]he mere filing of a complaint does not give rise to a claim for abuse of process.” S. States
Coop. Inc. v. I.S.P. Co., 198 F.Supp.2d 807, 816 (N.D.W. Va. 2002) (quoting Riddell Sports Inc.
v. Brooks, 872 F.Supp. 73, 79 (S.D.N.Y.)).
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The Complaint sufficiently pleads the facts required for a claim of abuse of process. The
Plaintiff pleads that the Defendants had an ulterior purpose to “embarrass [the Plaintiff], cost him
money in defending the case, cost him harm to his reputation, and to try to wrongfully obtain
money from [the Plaintiff’s] malpractice insurer. (Compl. ¶83). To support this allegation, the
Plaintiff pleads that the Defendants knew they did not have a legitimate claim against the Plaintiff,
because the Defendants knew, or should have known, that the claim was filed well outside the
statute of limitations and despite this knowledge, the Defendants used the complaint and amended
complaint in an unlawful attempt to collect money from the Plaintiff’s insurer.
Specifically, the Plaintiff pleads that John Wooton, Jr., improperly approached him about
his malpractice insurance carrier in an effort to obtain money. (Compl. ¶ 85). Although Courts
generally endorse and encourage the private settlement of litigation, (See McDermott, Inc. v.
AmClyde, 511 U.S. 202, 215 (1994), also see Schenzel v. Enter. Rent-A-Car Co. of Kentucky, No.
CIV. 2:02-0958, 2002 WL 31427029, at *3 (S.D.W. Va. Oct. 30, 2002)), here the Plaintiff alleges
that this interaction was not an attempt to simply settle the litigation but to threaten him with
personal liability on claims the Wooton Defendants knew to be false and to unlawfully obtain
money from his insurer.
To be clear, the abuse of process pled by the Plaintiff is not only that the Defendant filed
the complaint, but that the “Defendant filed an amended complaint “with patent lies” and “intended
to use technicalities and legal maneuvering to avoid dismissal or summary judgment on allegations
they knew to be false.” (Compl. ¶ 84). As the Court stated above, the filing of a complaint alone
is insufficient to sustain an abuse of process claim, but the elements required to support a claim of
abuse of process are satisfied if the filing was made with an ulterior motive in mind, which was
collateral to the litigation, as alleged here.
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CONCLUSION
Wherefore, after thorough review and careful consideration, the Court ORDERS that the
Plaintiff’s Motion for Extension of Time (Document 6) be GRANTED and the Defendants Motion
to Dismiss (Document 4) be DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:

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March 11, 2019