STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

Andrew C. Smith, 

Petitioner Below, Petitioner 

FILED 

July 8, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 12-0793 (Monongalia County 12-C-367) 

City of Morgantown, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Andrew C. Smith, pro se, appeals the order of the Circuit Court of Monongalia 

County, entered June 22, 2012, dismissing his petition for a writ of certiorari challenging two 

decisions of the City of Morgantown Board of Zoning Appeals (“BZA”). Respondent City of 

Morgantown, by counsel Stephen R. Fanok, filed a summary response. 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 that petitioner’s appeal is moot. For these reasons, a memorandum 

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

Petitioner owns property at 426 Drummond Street, Morgantown, West Virginia. On May 

24, 2012, Petitioner filed a petition for a writ of certiorari, in Civil Action No. 12-C-367, 

challenging two decisions of the BZA. In each decision, the BZA granted petitioner’s requested 

variance, but only in the manner recommended by the Morgantown City Planner. 

Respondent filed a motion to dismiss the petition on June 14, 2012. On June 22, 2012, the 

circuit court granted the motion to dismiss because of “[p]etitioner’s failure to comply with proper 

procedures” as delineated in West Virginia Code §§ 8A-9-1 and 8A-9-2, the West Virginia Land 

Use Planning Act. 

On appeal, petitioner admits that he attempted to file and serve a petition for a writ of 

certiorari, but that the circuit court dismissed the case because of “[his] failure to comply with 

proper procedures.” Petitioner argues that because he is a pro se litigant, his unintentional mistakes 

should be forgiven. 

Respondent notes that in the petition, petitioner improperly named the City of Morgantown 

when the correct party, pursuant to West Virginia Code § 8A-9-1, was the BZA and that petitioner 

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failed to serve a summons as required by Rule 4(c) of the West Virginia Rules of Civil Procedure. 

Respondent further notes, inter alia, that subsequent to its motion to dismiss, petitioner corrected 

the procedural deficiencies and filed a proper petition in a new case, Civil Action No. 12-C-411. 

Respondent attaches a copy of the petition in Civil Action No. 12-C-411 and a copy of a circuit 

court order setting a briefing schedule to substantiate that petitioner was being allowed to 

challenge the BZA’s decisions in Civil Action No. 12-C-411. Although petitioner filed a reply, he 

does not dispute that in Civil Action No. 12-C-411, he is being allowed to challenge the variance 

decisions he previously appealed in the instant case. 

We therefore find that this appeal is now moot. “‘Moot questions or abstract propositions, 

the decision of which would avail nothing in the determination of controverted rights of persons or 

of property, are not properly cognizable by a court.’ Syl. pt. 1, State ex rel. Lilly v. Carter, 63 

W.Va. 684, 60 S.E. 873 (1908).” Syl. Pt. 1, State ex rel. McCabe v. Seifert, 220 W.Va. 79, 640 

S.E.2d 142 (2006). 

A review of this Court’s records reveals that the circuit court has now rendered a decision 

in Civil Action No. 12-C-411 and petitioner is currently appealing that decision in Supreme Court 

No. 13-0280. The procedural deficiencies upon which the circuit court relied to dismiss the 

petition in the instant case, Civil Action No. 12-C-367, are no longer alive between the parties. 

Therefore, after careful consideration, this Court dismisses as moot petitioner’s appeal of the 

dismissal of Civil Action No. 12-C-367. 

Dismissed as Moot. 

ISSUED: July 8, 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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