IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2022 Term

No. 20

- 0 349

WILLIAM DAVID HAUGHT II

, Plaintiff Below, Petitioner

v.

DAVID FLETCHER, individually and

as mayor of the TOWN OF BELLE, West Virginia

and TOWN OF BELLE, West Virginia, a municipal corporation

, Defendants Below, Respondents

Appeal from the Circuit Court of Kanawha County

The Honorable Charles E. King, Judge

Case No. 19

- C

- 1 1 5 4

REVERSED IN PART AND REMANDED

Submitted: January 25 , 202 2

Filed: March 8 , 202 2

Michael T. Clifford, Esq.

Charleston, West Virginia

Counsel for Petitioner Cy A. Hill, Jr., Esq.

Cipriani & Werner, LLC

Charleston, West Virginia

Counsel for Respondents

JUSTICE WALKER delivered the Opinion of the Court. 

### FILED

March 8, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIAi SYLLABUS BY THE COURT

1. “Appellate review of a circuit court ’ s order granting a motion to

dismiss a complaint is de novo .” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan

Pontiac

- Buick, Inc.

, 194 W. Va. 770, 461 S.E.2d 516 (1995).

2. “ ‘ The essential elements for a successful defamation action by a

private individual are (1) defamatory statements; (2) a nonprivileged communication to a

third party; (3) falsity; (4) reference to the plaintiff; (5) at least negligence on the part of

the publisher; and (6) resulting injury. ’ Syl. Pt. 1, Crump v. Beckley Newspapers, Inc

. , 173

W. Va. 699, 320 S.E.2d 70 (1983) .” Syllabus Point 5, Zsigray v. Langman

, 243 W. Va.

163, 842 S.E.2d 716 (2020)

.

3. “‘ Qualified privileges are based upon the public policy that true

information be given whenever it is reasonably necessary for the protection of one ’ s own

interests, the interests of third persons or certain interests of the public. A qualified

privilege exists when a person publishes a statement in good faith about a subject in which

he has an interest or duty and limits the publication of the statement to those persons who

have a legitimate interest in the subject matter; however, a bad motive will defeat a

qualified privilege defense. ’ Syl. Pt. 4, Dzinglski v. Weirton Steel Corp.

, 191 W. Va. 278,

445 S.E.2d 219 (1994). ” Syllabus Point 10, Zsigray v. La ngman

, 243 W. Va. 163, 842

S.E.2d 716 (2020)

.ii 4

. “ The existence or nonexistence of a qualifiedly privileged occasion,

and whether the privilege has been exceeded, in the absence of a controversy as to facts,

are questions of law for the court. ” Syllabus Point 3, Swearingen v. Parkersburg Sentinel

Co.

, 125 W. Va. 731, 26 S.E.2d 209 (1943)

.1 WALKER, Justice:

Petitioner William David Haught II is a Patrolman with the Police

Department of the Town of Belle

, who has sued Respondent David Fletcher for

defamation. 1 According to Haught

, Fletcher told Town of Belle Council Members and

another patrolman that Haught had engaged in an illicit affair while on duty

, knew the

statement was false, and made the s tatement intending to harm Haught’s reputation. The

Circuit Court of Kanawha County granted Fletcher’s motion to d ismiss Haught’s

defamation claim on grounds of qualified privilege.

On appeal, Haught contends that the circuit court erred when it dismissed his

claim against Fletcher because he clearly alleged that Fletcher made the supposed

defamatory statement maliciously

. When accepted as true and view ed in the light most

favorable to Haught

, that allegation precludes dismissal of Haught ’s defamation claim

against Fletcher under West Virginia Rule of Civil Procedure 12(b)(6)

. So, we reverse the

circuit court ’ s order

, in part, and remand this case for further proceedings

.

1 Haught also sued the Town of Belle and Fletcher in his official capacity as the

Mayor of the Town of Belle for defamation

. As discussed below, the circuit court

dismissed Haught ’s defamation claim against the Town and Fletcher, as Mayor , and

Haught does not appeal the dismissal of those claims. Because Haught does not challenge

the dismissal of his defamation claim against the Town and Fletcher, as Mayor, references

in this Opinion to Haught’s defamation claim refer only to his claim against Fletcher,

individually.2 I. FACT UAL AND PROCEDURAL HISTORY

In November 2019, Haught filed a com plaint against the Town of Belle and

David Fletcher, individually and as Mayor of the Town of Belle

. The complaint contained

two counts: defamation and violation of

, in his words, the Policeman ’ s Bill of Rights. 2 In

March 2020, the Circuit Court of Kanawha County granted Fletcher and the Town’s motion

to dismiss the c omplaint, with prejudice. Haught now appeals the court ’ s order only as to

the dismissal of his defamation claim against Fletcher, individually. So

, this brief recitation

of the allegations in Haught ’s complaint and related proceedings includes only those

matters pertinent to the dismissal of that single claim.

Haught allege d that he is a patrolman with the Police Department of the

Town of Belle. He further allege d that Fletcher asked Town Council Members and another

patrolman, Wayne Holeston, to stay behind after a council meeting in 2019 to, as stated in

the c omplaint, “discuss a situation with a citizen of the Town [

. ] ” 3 Haught claimed that,

once assembled, Fletcher told the Council Members and Patrolman Holeston that Haught

was not getting a pay raise as a patrolman and that the reason

for the same was that [ Haught ] was having an extramarital

affair with the citizen ’ s wife while he was on duty. [Fletcher]

further advised that this had been discussed at the Finance

Committee either on that date or at some prior date that was

not noticed pursuant to State law or the City ordinances, and

2 S ee W. Va. Code §§ 8

- 14a

- 1 to 5

.

3 Haught alleges that this violated the Open Governmental Proceedings Act, W. Va.

Code §§ 6

- 9A

- 1 to 1 2

.3 that, because of this alleged affair, the Finance Co mmittee had

not recommended a pay increase for [ Haught ].

Fletcher’s statements, Haught claim ed

, “were slander per s e

, published with knowledge of

their falsity and with the intent to cause harm to [his] reputation and otherwise, were

malicious and intentio nal.” Haught allege d further that “by stating that the alleged affair

occurred while on duty,” Fletcher had “accused that [he] was depriving the town of his

honest services, a criminal act.”

Fletcher and the Town moved to dismiss the complaint pursuant t o West

Virginia Rule of Civil Procedure 12(b)(6)

. 4 They argued that the alleged defamatory

statements were qualifiedly privileged because Fletcher had a duty to address a complaint

from a T own citizen and had discussed the citizen ’ s complaint, and the pe rsonnel matter it

generated, only with Town representatives

. Haught responded that Fletcher was not

entitled to the defense of qualified privilege because he had acted with a bad motive, that

4 The Town argued that it was immune from Haught’s defamation claim

— an

intentional tort

— because it is a political subdivision protected by the West Virginia

Governmental Tort Claims Act, W. Va. Code § § 29

- 12A

- 1, et. seq. The circuit court

granted the Town’ s motion to dismiss the defamation claim against it, and Fletcher in his

official capacity, on those grounds. The circuit court dismissed Haught’s claim that the

Town and Fletcher had violated the Policeman’s Bill of Rights by failing to affor d him

notice and a hearing on the issue of the denial of a prospective pay raise as guaranteed by

West Virginia Code § 8

- 14A

- 3 (1997) . The court found that denial of a prospective pay

raise was not a “punitive action,” as defined in West Virginia Code § 8

- 14A

- 1(7) (1 997)

, so Haught was not entitled to notice and a hearing under § 8

- 14A

- 3. Haught does not

challenge either of these rulings on appeal.4 is, Fletcher made the statements regarding Haught ’s alleged affair with malice and despite

knowing the statements were false.

The circuit court granted the motion to dismiss the defamation claim against

Fletcher, individually

, reasoning that both the entitlement to a defense of qualified privilege

and the q uestion of whether a defendant abused that privilege are questions of law to be

decided by the court. The court went on to find that

,

[e] ven viewing the allegations contained in the

Complaint in the light most favorable to [ Haught ], the [c]ourt

FINDS that Mayor Fletcher had an interest, if not a duty, as the

mayor to address a complaint from a citizen that a Town

patrolman was having an inappropriate relationship with [the

citizen’s] wife while on duty. The [c]ourt FINDS that no

defamation claim exists wh en a mayor discusses a citizen

complaint involving personnel matters pertaining to a Town of

Belle police officer with Town representatives as such matters

fall within the mayor ’ s qualified privilege as the highest

ranking elected official of the Town.

[ Ha ught ] does not allege that Mayor Fletcher made the

subject statement to any third

- parties not associated with the

Town of Belle. Rather, he only discussed this internal

personnel matter with representatives of the Town of Belle

outside the presence of pri vate citizens following the public

city council meeting. This undisputed fact indicates to the

Court that Mayor Fletcher discussed this matter in good faith

and without malice toward [ Haught ].

Accordingly, this [c]ourt FINDS that David Fletcher

had a qual ified privilege to discuss the matters alleged by

[Haught] with representatives of the Town of Belle, and thus

, he may not be held personally liable for slander or defamation

of character as a matter of law.5 Haught now appeals that portion of the court ’ s o rder dismissing his

defamation claim against Fletcher

.

II. STANDARD OF REVIEW

“Appellate review of a circuit court ’ s order granting a motion to dismiss a

complaint is de novo

, ” 5 meaning that this Court considers the allegations in the complaint

afresh to determine whether “ it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief.” 6 Motions to dismiss are

disfavored, and court s “ should presume all of the plaintiff ’ s factual allegations are true,

and should construe those facts, and inferences arising from those facts, in the light most

favorable to the plaintiff.” 7 We now apply that well

- worn standard to determine whether

the circuit court appropriately dismiss ed Haught’s defamation claim against Fletcher

. 8

5 Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac

- Buick, Inc.

, 194 W. Va.

770, 461 S.E.2d 516 (1995).

6 Syl. Pt. 2, in part, Mountaineer Fire & Rescue Equip., LLC v. City Nat'l Bank of

W. V a.

, 244 W. Va. 508, 854 S.E.2d 870 (2020) ( internal quotations omitted ).

7 Id

. at 520, 854 S.E.2d at 882

.

8 Haught quotes the Rule 12(b)(6) and Rule 56(c) standards in his briefing. The

order from which Haught appeals clearly dismisse d his complaint pursuant to Rule

12(b)(6)

. Fletcher does not suggest otherwise. We note that Haught attached to his

response to the motion to dismiss a single, ty pe

- written page bearing three signatures that

purports to elaborate on the allegations in Haught’s complaint . The circuit court did not

refer to this attachment in its order granting Fletcher’s motion to dismiss

.6 III. ANALYSIS

Haught contests the dismissal of his defamation claim against Fletcher on the

grounds that “at the time that [Fletcher] made the statement to City Council members it

was NOT in good faith ,” and that Fletcher “made and published a statement that he knew

was false when he made it and did so to disparage” him

. Because “[i]ssues regarding

. . .

Fletcher ’ s conduct, knowledge, good faith, motivation

. . . are for the jury to decide

, ”

Haught concludes that the circuit court precipitously disposed of his defamation claim on

a Rule 12(b)(6) motion to dismiss.

Fletcher counters that had he intended to embarrass Haught (or had otherwise

been motivated by malice), he “could have easily brought up the personnel issues

surrounding [ Haught ] to any number of third

- persons who have no direct interest in the

subject matter.” So, Fletcher concludes, the circuit court correctly assessed the allegations

in the complaint and properly dismissed the claim on grounds of qualified privilege and its

finding t hat Fletcher published the alleged defamatory statement in good faith and without

malice.

Our analysis of the law begins with Haught’s alleg ations that Fletcher

published a defamatory statement about him 9 to Town Council Members and Pat r olman

9 It is unclear whether Haught brings his defamation claim against Fletcher as a

public or private figure. See Syl. Pt. 2, State ex rel. Suriano v. Gaughan , 198 W. Va. 339,

342, 480 S.E.2d 548, 551 (1996) (“Under West Virginia law, a libel plaintiff ’ s status sets

the standard for assessing the de fendant ’ s conduct. Plaintiffs who are public officials or7 Holeston

. “A statement may be described as defamatory ‘ if it tends so to harm the

reputation of another as to lower him in the estimation of the community or to deter third

persons from associating or dealing with him. ’ ” 10 T hat the operative statement was

defamator y is only one element of a defamation claim. A successful defamation claim

includes five others:

“The essential elements for a successful defamation

action by a private individual are (1) defamatory statements;

(2) a nonprivileged communication to a thir d party; (3) falsity;

(4) reference to the plaintiff; (5) at least negligence on the part

of the publisher; and (6) resulting injury. ” Syl. Pt. 1, Crump v.

Beckley Newspapers, Inc ., 173 W. Va. 699, 320 S.E.2d 70

(1983)

. [ 11 ]

public figures must prove by clear and convincing evidence that the defendants made their

defamatory statement with knowledge that it was false or with reckless disregard of

whether it was false or not. Private figures need only show that the defendants were

negligent in publishing the false and defamatory statement. ”). As Haught has alleged that

Fletcher made the allegedly defamatory statements knowing them to be false, the

distinction is not relev ant for purposes of this Opinion.

10 Crump v. Beckley Newspapers, Inc.

, 173 W. Va. 699, 70 6

, 320 S.E.2d 70, 7 7

(1983) (quoting R ST

. (2 D ) OF T ORTS § 559 (1977)).

11 Syl. Pt. 5, Zsigray v. Langman , 243 W. Va. 163, 842 S.E.2d 716 (2020)

. See also

Bine v. Owens , 208 W. Va. 679, 683, 542 S.E.2d 842, 846 (2000) (stating that “to have a

defamation claim, a plaintiff must show that false and defamatory statements were made

against him, or relating to him, to a third party who did not have a reasonable right to know,

and that the statements were made at least negligently on the part of the party making the

statements, and resulted in injury to the plaintiff”)

.8 “ A defamation defendant, of cour se, has various defenses which can be

asserted. ” 12 Q ualified privilege is the defense at issue

, here

. We have stated that the

defense is available “ ‘ when a person publishes a statement in good faith about a subject in

which he has an interest or duty and limits the publication of the statement to those persons

who have a legitimate interest in the subject matter. ’ ” 13 Despite that succinct description

of the privilege, whether it is ultimately available to a defamation defendant “ may depend

on all the circumstances of the particular case. ” 14

The availability of the defense of qualified privilege also depends on whether

the defendant used the privilege in good faith. 15 Strong public policy supports the

privilege ; the good

- faith requirement prevents it s abuse. We recently summarized these

principles in Zsigray v. Langman :

“ Qualified privileges are based upon the public policy

that true information be given whenever it is reasonably

necessary for the protection of one ’ s own interests, the interests

of third persons or certain interests of the public. A qualified

privilege exists when a person publishes a statement in good

faith about a subject in which he has an interest or duty and

limits the publication of the statement to those persons w ho

have a legitimate interest in the subject matter; however, a bad

12 Crump

, 173 W. Va. at 706, 320 S.E.2d at 77 ( stating that defenses of privilege

and truth “allow a defe ndant to avoid all liability once established” ).

13 Id. at 707, 320 S.E.2d at 78 (quoting Swearingen v. Parkersburg Sentinel Co. ,125

W. Va. 731, 744, 26 S.E.2d 209, 215 (1943)).

14 England v. Daily Gazette Co. , 143 W. Va. 700, 709, 104 S.E.2d 306, 311 (1958)

( internal quotation omitted ).

15 Id

.9 motive will defeat a qualified privilege defense. ” Syl. Pt. 4,

Dzinglski v. Weirton Steel Corp. , 191 W. Va. 278, 445 S.E.2d

219 (1994). [ 16 ]

Zsigray also concerned the qualified

- privilege defense

. 17 There, plaintiff

alleged that defendant made defamatory statements about him to a state t rooper during a

criminal investigation. 18 The circuit court granted p laintiff ’s motion to dismiss the

defamation claim pursuant to Rule 12(b)(6)

, on the grounds that the alleged defamatory

statements were privileged because they were made to law enforcement at the beginning

of a judicial proceeding

. 19

We reversed the dismissal of the defamation claim

. We compared the case

to the circumstances of Be lcher v. Wal

- Mart Stores, Inc.

, which also involved a witness ’ s

16 Syl. Pt. 10, Zsigray

, 243 W. Va. at 163, 842 S.E.2d at 716

. S ee also Crump

, 173

W. Va. at 707, 320 S.E.2d at 78 (stating that “[a]lthough motive is irrelevant when an

absolute privilege is involved, a bad motive will defeat a qualified privilege defense”); R ST

. ( 2 D ) OF T ORTS § 599 (1977) (“ One who publishes defamatory matter concerning another

upon an occasion giving rise to a conditional privilege is subject to liability to the other if

he abuses the privilege. ”).

17 Zsigray

, 243 W. Va. at 1 72

, 842 S.E.2d at 7 25

.

18 Plaintiff was under investigation after defendant, a manager of a McDonald’s

restaurant

, reported to the State Police that plaintiff had cursed at her and threatened her

while returning a n unsatisfactory chicken sandwich to the McDonald’s drive

- through

. Id

.

at 16 7

, 842 S.E.2d at 72 0

. In plaintiff’s own words, defendant had lectured him about the

sandwich, but he “ ‘ didn’t want a lecture on the sandwich. I asked for a refu nd. So I called

her a stupid f

--- ing b

---- again and she give me my refund and we left. The next thin g I

know, I have a warrant out for arrest for harassment. ’ ” Id

. Plaintiff had also been in a

dispute with defendant over his repeated requests for extra syrup for his pancake s

. Id

.

19 Id

. at 16 8

, 842 S.E.2d at 721.10 statements to law enforcement. 20 There, this Court affirmed a grant of summary judgment

to Wal

- Mart, upholding the circuit court ’s ruling that alleged defamatory statements to

police made by store employees were based on a legitimate need: an ongoing investigation

into computer theft. 21 I n Zsigray

, we acknowledged that defendant ’ s theory paralleled our

reasoning in Belcher

, stating that, “[a]s in Belcher

, [defendant] asserts that her statements

were entitled to qualified privilege because they were made in good faith about a subject

in which she had an interest (her safety), and they were limited to the person who had a

legitimate interest in the subject, Trooper Varner.” 22 But

, we he ld that those parallels

simply were not enough to affirm the circuit court ’ s dismissal of plaintiff ’ s defamation

claim, at least on the pleadings, explaining that:

Mr. Zsigray ’ s complaint alleged that Ms. Langman

“slandered and libeled the Plaintiff by int entionally and

maliciously making false and misleading statements both

orally and in writing in the public domain

. . . with the intent to

damage

. . . the Plaintiff” (Emphasis added.) For purposes of

Ms. Langman ’ s motion to dismiss, the circuit court was

required to construe the complaint “in the light most favorable

to plaintiff, and its allegations are to be taken as true.” Lodge

Distrib. Co., Inc. v. Texaco, Inc.

, 161 W. Va. 603, 605, 245

S.E.2d 157, 158 (1978). Because Mr. Zsigray ’ s complaint

alleg ed that Ms. Langman had a bad motive (“maliciously

making false and misleading statements”) when making her

statements to Trooper Varner, his complaint included

20 Id

. at 1 7 3, 842 S.E.2d at 726 (citing Belcher v. Wal

- Mart Stores

, Inc.

, 211 W.Va.

712, 568 S.E

. 2d 19 (2002)).

21 Belcher

, 211 W. Va

. at 720, 568 S.E

. 2d at 27.

22 Zsigray , 243 W. Va. at 173, 842 S.E.2d at 726

.11 sufficient allegations to withstand a motion to dismiss on this

portion of the defamation claim

. [ 23 ]

In sum, in Zsigray

, plaintiff’s defamation claim survived a Rule 12(b)(6) motion to dismiss

premised on the qualified

- privilege defense because plaintiff alleged that the defendant had

made the putative defamatory statements with malice and despite knowing that they were

not true.

So it is, here. Haught has alleged that Fletcher published defamatory

statements about him to third parties “with knowledge of [the statements’] falsity and with

the intent to cause harm to [ Haught ’s] reputation and otherwise .” A s in Zsigr ay

, Haught

has alleged that Fletcher made the alleged defamatory statements with a bad motive

, an

allegation that is sufficient to preclude Rule 12(b)(6) dismissal of the defamation claim at

issue in this case.

In dismissing Haught’s defamation claim again st Fletcher, the circuit court

acknowledged Haught’s allegation that Fletcher acted in bad faith when making the

challenged statements to Town Council Members

, Patrolman Holeston

, and the Town

Finance Committee

. But the circuit court did not credit that a llegation. Instead, the court

focused on Haught’s failure to allege that Fletcher had discussed the alleged affair with

third parties, rather than representatives of the Town of Belle

, only. According to the

circuit court, that “indicate[d]

. . . that Ma yor Fletcher discussed this matter in good faith

23 Id

. at 173

– 74, 842 S.E.2d at 726

– 27

.12 and without malice toward [Haught]

. ” Tha t is an inference made in Fletcher’s favor, not

Haught’s

. As all inferences are to be made in the plaintiff’s favor when assessing the

sufficiency of a complaint und er Rule 12(b)(6), it was error to rely on that inference to find

that Fletcher acted in good faith, despite Haught’s clear allegation to the contrary

, and so

to dismiss Haught’s defamation claim against Fletcher

.

“ T he existence or nonexistence of a qualifiedly privileged occasion, and

whether the privilege has been exceeded, in the absence of a controversy as to facts, are

questions of law for the court.” 24 A court may

— at some point

— determine as a matter of

law that Fletcher made the alleged defamat ory statements about Haught on a qualifiedly

privileged occasion and did not abuse that privilege

. But t aking as true the allegations in

Haught’s complaint and all inferences in his favor, we are bound to conclude that it is

premature to do so, now, when it is possible that Haught may yet prove a set of facts in

support of his defamation claim against Fletcher that would entitle him to relief.

IV. CONCLUSION

For the reason s discussed above

, we reverse that portion of the March 10,

2020, order dismissing Haugh t’s defamation claim against Fletcher

, individually, and

remand this case to the circuit court for further proceedings consistent with this O pinion

.

REVERSED IN PART AND REMANDED

24 Syl. Pt. 3, Swearingen , 125 W. Va. at 731, 26 S.E.2d at 210

.