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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

S.U.,

Plaintiff Below, Petitioner

vs.) No. 20-1006 (Harrison County 19-C-275-2)

Central Atlantic Legal Group, PLLC,

dba Booth, Strange & Daniel, and J.S.,

Defendants Below, Respondents

MEMORANDUM DECISION

Self-represented petitioner S.U.1 appeals the Circuit Court of Harrison County’s November 

16, 2020, order that, in relevant part, granted respondents’ motions for summary judgment and 

their counterclaim to have petitioner designated as a vexatious litigant. Respondents Central 

Atlantic Legal Group, PLLC, dba Booth, Strange & Daniel, and J.S., by counsel Daniel T. Booth, 

filed a response in support of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner 

alleges that the litigation privilege should not extend to sexual exploitation, sexual harassment, 

and/or malicious claims of incest, and that the standard for a finding of vexatious litigation was 

not met.

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.

This Court has previously issued detailed memorandum decisions concerning petitioner’s 

attempts to divest his children’s mother of her custody of their children and even her status as the 

children’s mother. See S.U. v. C.J. (“S.U. I”), No. 18-0566, 2019 WL 5692550 (W. Va. Nov. 4, 

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Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 

254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013); 

State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W. 

Va. 641, 398 S.E.2d 123 (1990). 

FILED

February 1, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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2019)(memorandum decision); S.U. v. C.J. (“S.U. II”), No. 19-1181, 2021 WL 365824 (W. Va. 

Feb. 2, 2021)(memorandum decision); In re Adoption of E.U., L.U.-1, and L.U.-2, No. 20-0039, 

2021 WL 4935772 (W. Va. Oct. 13, 2021)(memorandum decision); In re The Children of: S.U. v. 

C.J., No. 20-0515, 20-0516, 20-0612, and 20-0710, 2021 WL 4936476 (W. Va. Oct. 13, 

2021)(memorandum decision). Because of the limited arguments on appeal in the matter currently 

before the Court, it is unnecessary to belabor these facts. Instead, it is sufficient to stress that 

petitioner has repeatedly advanced factual theories that have no basis in the record in his numerous 

attempts to undermine the children’s mother’s relationship with their children. 

This appeal arises from proceedings in which petitioner filed a civil complaint against 

Central Atlantic Legal Group, PLLC, and J.S., a member of that firm and the attorney who 

represented petitioner’s children’s mother in the proceedings from S.U. I. Specifically, in October 

of 2019, petitioner filed a complaint against respondents in which he alleged malicious use of 

process, defamation per se, harassment, fraud, and intentional and reckless infliction of emotional 

distress arising from J.S.’s representation of the mother. As in all of petitioner’s proceedings before 

this Court, he claimed that the mother had no legal claim to the children because of the alleged 

existence of a gestational surrogacy contract, a contract this Court has found to be unenforceable. 

S.U. I, No. 18-0566, 2019 WL 5692550, at *4 (finding that “all of [petitioner’s assignments of 

error] . . . [w]ere grounded on his contention that [respondent] was nothing more than a gestational 

surrogate for the parties’ three youngest children” and declining to disturb the family court’s 

resolution of this issue in respondent’s favor). Based on this assertion, petitioner alleged in his 

complaint that respondent J.S. made fraudulent representations to various courts in furtherance of 

his representation of the mother. Petitioner also alleged that respondent J.S. harassed him and, in 

fact, physically pushed and threatened him after a hearing. Petitioner also claimed that respondent 

J.S. extensively and maliciously attempted to demean him in regard to his gender. Relevant to this 

issue, we previously noted that petitioner “was listed as a female on his birth certificate,” although 

he “testified that he was not a binary male or female at birth, although he has always considered 

himself to be male.” S.U. I, No. 18-0566, 2019 WL 5692550, at *1. 

Respondents filed an answer that, in relevant part, asserted litigation privilege as an 

affirmative defense to petitioner’s causes of action. Respondents also asserted counterclaims for 

malicious prosecution, abuse of process, and declaratory judgment. According to respondents, 

petitioner filed this civil action “in an attempt to collaterally attack and set aside the West Virginia 

Supreme Court’s decision” in S.U. I and to increase the mother’s litigation costs and expenses in 

an effort to force her to abandon her efforts to maintain custody of the children. Respondents also 

alleged that petitioner sought to force J.S. to withdraw from his representation of the mother, 

leaving her without representation to protect her interests and those of her children. Respondents 

cited petitioner’s past motions seeking J.S.’s withdrawal as evidence. Respondents further asserted 

that petitioner’s filing was with malice and without probable cause, as this Court’s affirmation of 

the lower courts in S.U. I demonstrated the mother’s entitlement to custody of her children. 

Respondents concluded by asserting that petitioner “demonstrated actual malice by a sinister and 

corrupt motive such as hatred, personal spite, desire to injure [respondents] and their client . . . , 

and a conscious disregard for the rights of [the mother] and her counsel.” 

Thereafter, respondents moved for summary judgment on all of petitioner’s claims and 

their counterclaims. By order entered on November 16, 2020, the circuit court ruled on several 
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outstanding filings. Relevant to this appeal, the court granted all of respondents’ motions for 

summary judgment. The court also declared petitioner a vexatious litigant and enjoined him from 

filing any further self-represented filings before the court. 

In reaching this ruling, the court addressed all of petitioner’s enumerated claims, as set 

forth in his complaint. The court noted that petitioner’s claim for “Malicious Use of Process” 

would be treated, because of petitioner’s self-represented status, as both a claim for malicious 

prosecution and abuse of process. In regard to petitioner’s responsive pleadings to respondents’ 

motion for partial summary judgment on the claim of “Malicious Use of Process,” the court noted 

that they were “entirely devoid of legal authority” and “essentially offer[] little more than what 

amounts to bald averments, conclusory statements, and self-serving opinions, insufficiently 

supported legal argument thereon.” The court also noted that petitioner failed to provide any 

supportive documents or other evidence of record, or any controlling legal authority establishing 

the necessary elements for either a claim of malicious prosecution or abuse of process. Importantly, 

the court found that petitioner could not meet the standard for malicious prosecution by 

respondents because the civil actions in question were initiated by petitioner and respondents 

merely defended against them. Further, the actions ended unfavorably to his position. Accordingly, 

the court found that petitioner’s cause of action could not survive respondents’ motion for 

summary judgment as a matter of law because petitioner had not demonstrated any genuine issue 

of material fact thereon. 

In regard to petitioner’s fraud claim, the court found that petitioner could not establish 

through the evidentiary record that he relied, to his detriment or otherwise, upon any allegations 

or pleadings made by respondents on their client’s behalf. Rather, the record showed that petitioner 

“vigorously contested such through trial and on appeal.” The court further found that petitioner’s 

“fraudulent claims upon the court against [respondents] in prior court proceedings were asserted 

and argued by him during those prior proceedings wherein he did not prevail at trial or on appeal.” 

According to the court, nothing in the developed record supported any potential claim of fraudulent 

concealment let alone created any genuine issue of material fact sufficient to survive summary 

judgment. Again, the court found that petitioner failed to provide any substantive evidence in 

opposing summary judgment as to this count. 

As to petitioner’s claim of intentional and reckless infliction of emotional distress, the court 

found that “nothing in the developed record herein supports any potential claim of intentional and 

reckless infliction of emotional distress let alone create[s] any genuine issue of material fact 

enough to survive summary judgment.” The court then found that no cause of action for 

“harassment” exists, and petitioner failed to state a legitimate claim upon which relief could be 

granted. However, the court found that the specific allegations contained therein would 

nonetheless fall under his claim for intentional and reckless infliction of emotional distress, which 

lacked a basis in the evidence and was already found to be ripe for summary judgment. 

The court then turned to petitioner’s claim of defamation per se and found that all the 

statements “were made in the course of court proceedings in an attempt to uncover the actual 

parentage of the child involved in pro se [petitioner’s] custody battle with [respondents’] client 

and serve as critical inquiry for credibility determinations by that court.” Further, the court found 

that “any purportedly defamatory statements made to pro se [petitioner] by [respondents], as 
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asserted in his pleadings, were made directly to him; and not to any third party or otherwise 

published.” As such, the court found that petitioner failed to establish all the essential elements for 

his defamation claim as a matter of law. 

More generally, the court found that in resisting a motion for summary judgment, petitioner 

“cannot rest upon the mere allegations or denials of [respondent’s] pleadings.” Instead, the court 

ruled that petitioner was required to produce pertinent facts to demonstrate necessary trial-worthy 

issues for his claims. Petitioner provided a document titled “Affidavit,” but the court found that 

“this self-serving document is not notarized, was not properly taken under oath[, and] is 

accordingly deemed insufficient for purposes of countering” respondents’ affidavit. The court 

further noted that petitioner’s responsive pleadings to respondents’ summary judgment motions 

“fail to address many of the legal issues set forth therein which are dispositive of the legal issues 

at hand.” As such, the court deemed that petitioner conceded those legal issues. 

The court next addressed respondent’s counterclaims and, specifically, the request for 

judgment declaring petitioner a vexatious litigant. In ruling on this issue, the court noted the 

“totality of prior proceedings” in which respondents represented petitioner’s children’s mother, 

which were documented in the record and of which the court took judicial notice. The court found 

that petitioner demonstrated a “persistence to file multiple actions in various court venues all of 

which essentially being in an effort to continue asserting (directly and/or peripherally) his alleged 

parental rights in contravention of all previous determinations.” The court further found that there 

was no genuine issue of material fact as to the totality of petitioner’s prior actions before multiple 

courts and the unsuccessful results thereof, in addition to the fact that he was the subject of multiple 

contempt and injunctive rulings as a result of these filings. The court concluded that it was 

indisputable that petitioner’s complaint “completely fails as a result of the proper application of 

such ‘litigation privilege’ and there otherwise being no sufficient evidentiary proffer supporting 

any cause of action asserted by him to withstand summary judgment as a matter of law.” (Emphasis 

added). The court stressed that the evidentiary record “reflects an unfounded civil action . . . that 

lacks viable legal support and further demonstrates his ulterior and improper purposes in attacking 

such counsel” and that petitioner clearly demonstrated an intention to obstruct the administration 

of justice. Accordingly, the court found that petitioner should be prevented from misusing the court 

system in Harrison County and specifically as to respondents via any further legal pleadings. The 

court then directed that before attempting to file any pleadings against these specific respondents, 

petitioner was required to seek the review and approval of the Chief Judge of the Circuit Court of 

Harrison County and that any pleadings filed without such approval would be refused or, if filed, 

stricken. It is from this order that petitioner appeals.

“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. 

Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). We note, however, that de novo review of the 

court’s order in this case is inappropriate because petitioner has failed to challenge the circuit 

court’s detailed findings regarding the appropriateness of summary judgments and has, instead, 

presented a narrow legal issue that not only misrepresents the record but also would avail him of 

no relief even if the Court were to accept his position, which we do not. On appeal, petitioner’s 

first assignment of error is presented as follows: “Litigation privilege should not apply to sexual 

exploitation, sexual harassment, and/or malicious claims of incest.” As such, it is clear that 

petitioner is challenging only the circuit court’s application of the litigation privilege to his claims, 
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while completely ignoring the fact that the court also found that there were no genuine issues of 

material fact in regard to any of petitioner’s counts as set forth in his complaint such that it could 

survive summary judgment. In fact, after respondents noted in their brief to this Court that the 

circuit court did not grant summary judgment on the litigation privilege alone, petitioner redoubled 

his focus on this narrow issue in his reply brief, arguing that the court’s final order shows that 

petitioner’s “action was entirely summarily dismissed due to litigation privilege.” As support for 

this assertion petitioner points to the following finding from the order on appeal: 

As otherwise fully reviewed and pronounced herein, there is no genuine issue of 

material fact that pro se [p]etitioner’s [c]omplaint completely fails as a result of the 

proper application of such ‘litigation privilege’ and there otherwise being no 

sufficient evidentiary proffer supporting any cause of action asserted by him to 

withstand summary judgment as a matter of law.

Petitioner emphasizes the first portion of this finding concerning the litigation privilege while 

totally ignoring the fact that the court also found that the evidence to support petitioner’s claims 

was entirely lacking and resulted in there being no genuine issue of material fact to present to a 

jury. Petitioner even succinctly sums up his understanding of this quoted language as follows: 

“Said another way, it was due only to the lower court’s application of litigation privilege that 

[petitioner’s] case was dismissed via summary judgment.” As is abundantly clear from the record, 

this is a misrepresentation of the circuit court’s ruling and an interpretation that is fatal to 

petitioner’s appeal. 

As we have explained, 

[i]f 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, 56, 459 S.E.2d 329, 333 (1995). As set 

forth above, the court made detailed findings about petitioner’s failure to meet these burdens, 

including the fact that the document petitioner filed entitled “affidavit” did not meet any of the 

requirements for such a filing. On appeal, petitioner fails to challenge any of these findings, instead 

opting to argue that litigation privilege should not apply to respondent’s conduct. This is simply 

insufficient to entitle him to relief, and we decline to undertake a detailed review of this matter 

when petitioner has abdicated his burden of establishing reversible error. This is in keeping with 

our explicit warning that “‘[a]ssignments of error that are not argued in the briefs on appeal may 

be deemed by this Court to be waived.’ Syl. Pt. 6, Addair v. Bryant, 168 W. Va. 306, 284 S.E.2d 

374 (1981).” Syl. Pt. 7, Birchfield v Zen’s Development, LLC, 245 W. Va. 82, 857 S.E.2d 422 

(2021). 
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Finally, petitioner argues that the circuit court erred in finding that he was a vexatious 

litigator. However, this argument is again disingenuous and misrepresents petitioner’s extended 

history of multiple filings seeking to relitigate and collaterally attack the result of the cause of 

action that gave rise to S.U. I. In his brief, petitioner alleges that he “filed a single complaint that 

made a good faith argument for the application, extension, modification or reversal of existing law 

to stop [r]espondent’s ongoing harassment, abuse, defamation, and malicious acts.” This is wildly 

inaccurate, as the record in this matter and the many related appeals before the Court demonstrate 

that, as the circuit court found, petitioner has demonstrated a pattern of filing multiple pleadings 

in various venues in order to continue his attack against the legal rights of his children’s mother. 

Indeed, the order on appeal was explicit that 

The majority of pro se [petitioner’s] pleadings herein clearly demonstrate yet 

another attempt to somehow: (a) re-litigate the issues previously determined by 

prior proceedings in the Family Court of Mason County, West Virginia [S.U. I]; (b) 

adversely impact [the children’s mother] therein and; (c) otherwise improperly 

burden her legal counsel with little more than bald accusations and litigation 

ultimately concluded herein to be speculative and unsupported by any developed 

evidentiary record.

That this is the lone complaint he has filed against these specific respondents is not remotely 

indicative of petitioner’s history of harassment against the children’s mother, which has now 

extended to her legal representation. In fact, this is not the first instance in which petitioner has 

been found to have engaged in harassing behavior toward the mother’s counsel. We previously 

noted that petitioner was found in contempt multiple times, including for his having increased the 

mother’s litigation costs by faxing to her counsel “almost all of [his] pleadings ‘and countless other 

documents,’ despite a prior order prohibiting him from doing so.” In re The Children of: S.U. v. 

C.J., No. 20-0515, 20-0516, 20-0612, and 20-0710, 2021 WL 4936476, at *2. What the record in 

this matter and all of petitioner’s related appeals demonstrates is that petitioner has a willful 

disregard for orders of courts and the legitimacy of their rulings that has now manifested in his 

attempt to hold counsel for the children’s mother civilly liable for defending her against his 

vexatious pleadings. 

It is telling that this is now the second appeal before this Court in which petitioner has 

challenged a restriction on his ability to file additional pleadings. We addressed this exact issue in 

In re The Children of: S.U. v. C.J. In that case, the circuit court required that petitioner pay a bond 

and/or retain an attorney before he could file additional pleadings. Id. In addressing petitioner’s 

challenge to this ruling, we noted the following:

Free access to courts is a principle predicated on the erroneous assumption that both 

litigants in all lawsuits have a good faith dispute. Often this is not the case, and 

where it is not, the mischief must be discouraged. Courts are available free of 

charge, so they are overused. Their overuse in turn congests the docket, resulting 

in justice-defying delays. In a court system burdened, even compromised, by 

congestion and delay we need to be particularly sensitive to mischievous overuse 

of the courts. Litigation designed simply to impede a party seeking payment of an 

obligation, spiteful and vexatious suits—these simply do not belong in court. . . .
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Everyone who has a good faith dispute requiring a decision by an impartial arbiter 

is entitled to his day in court. On the other hand, every person is not entitled to his 

day in court regardless of the frivolous nature of the suit. Parties whose interest in 

the legal process is to oppress or cheat others should be discouraged.

Mark V.H. v. Delores J.M., No. 18-0230, 2019 WL 4257183 at *13 (W. Va. Sept. 9, 

2019)(memorandum decision) (quoting Nelson v. W. Va. Pub. Emp. Ins. Bd., 171 W. Va. 445, 453-

54, 300 S.E.2d 86, 95 (1982)); see also, Mathena v. Haines, 219 W. Va. 417, 422, 633 S.E.2d 771, 

776 (2006) (“While access to courts is a recognized fundamental right, it is also a commonly 

recognized principle that such right of access is not without limitations.”); State ex rel. James v. 

Hun, 201 W. Va. 139, 141, 494 S.E.2d 503, 505 (1997) (The “right of meaningful access to the 

courts is not completely unfettered.”).

We also pointed out that this is the case in many other jurisdictions:

Numerous states have adopted statutes or rules that permit restrictions on litigants 

who have been determined to be vexatious—that is, “persons who persistently and 

habitually file lawsuits without reasonable grounds, or who otherwise engage in 

frivolous conduct in the courts.” Robin Miller, “Validity, Construction, and 

Application of State Vexatious Litigant Statutes,” 45 A.L.R.6th 493 (2009). While 

this Court has not adopted a vexatious litigant rule, other courts routinely levy 

sanctions or fashion remedies to preclude the filing of frivolous and repetitious 

proceedings. See, e.g., In re Vey, 520 U.S. 303, 304 (1997) (precluding Supreme 

Court Clerk from accepting further in forma pauperis filings “[i]n light of [pro se 

petitioner’s] history of frivolous, repetitive filings[.]”); Washington v. Alaimo, 934 

F. Supp. 1395, 1397 (S.D. Ga. 1996) (pro se litigant’s access to courts could be 

limited because he “lacks the ability or will to govern his suits with the civility and 

order required by . . . the Federal Rules of Civil Procedure. He has wasted the time 

of many an innocent party and he has flippantly used the resources of the judiciary 

with his abusive motions filing practice.”); Rudnicki v. McCormack, 210 F. Supp. 

905, 909 (D.R.I. 1962) (“I have determined that the time has come when it is 

necessary and appropriate that an injunction issue, both for protection of these and 

other public officials against unwarranted harassment, and for the protection of the 

records of this and other courts against the filing of frivolous and unimportant 

papers.”); In re Prefiling Order Declaring Vexatious Litigant, Pursuant to I.C.A.R. 

59, 164 Idaho 586, 434 P.3d 190 (2019) (upholding restrictions on litigant who filed

numerous frivolous pro se actions and frivolous pleadings); DeNardo v. Cutler, 167 

P.3d 674, 681 (Alaska 2007) (“[T]he courts have the authority to enjoin persons 

engaged in the manifest abuse of the judicial process . . . . The courts may take 

creative actions to discourage hyperactive litigators so long as some access to courts 

is allowed, such as by limiting the amount of filings a litigant may make, and 

prescribing conditions precedent to those filings so as to determine the propriety of 

a suit on a case by case basis.” (Quoting 42 Am.Jur.2d Injunctions § 191 (electronic 

edition, updated May 2006)); Kondrat v. Byron, 63 Ohio App. 3d 495, 496, 579 

N.E.2d 287, 287 (1989) (permanently enjoining litigant from filing future pro se 
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cases without first meeting stringent conditions); Eismann v. Miller, 101 Idaho 692, 

697, 619 P.2d 1145, 1150 (1980) (Exercise of the right to access to the courts 

“cannot be allowed to rise to the level of abuse, impeding the normal and essential 

functioning of the judicial process. To allow one individual, untrained in the law, 

to incessantly seek a forum for his views both legal and secular by means of pro se 

litigation against virtually every public official or private citizen who disagrees with 

him only serves to debilitate the entire system of justice.”); Bd. of Cty. Comm’rs of 

Boulder Cty. v. Barday, 197 Colo. 519, 522, 594 P.2d 1057, 1059 (1979) (“[T]he 

right of access to courts does not include the right to impede the normal functioning 

of judicial processes. Nor does it include the right to abuse judicial processes in 

order to harass others.”). 

Mark V.H., 2019 WL 4257183 at *14. In upholding the Court’s restrictions on petitioner’s ability 

to file additional pleadings in that prior appeal, we noted that 

petitioner continues to file numerous pleadings against [the children’s mother] in 

an attempt to divest her of her parental rights to the children—an issue that this 

Court squarely resolved in S.U. I. Moreover, petitioner has demonstrated a willful 

refusal to follow the family court’s basic directions and, as a result, has been held 

in contempt at least six times. This includes petitioner’s refusal to cease faxing 

voluminous documents to [the mother]’s counsel and other conduct that has 

unnecessarily increased [her] legal fees. As such, we find no error in the family 

court placing reasonable restrictions on petitioner’s ability to file pleadings or other 

self-represented documents. 

In re The Children of: S.U. v. C.J., No. 20-0515, 20-0516, 20-0612, and 20-0710, 2021 WL 

4936476, at *6. The facts of this case demonstrate that petitioner has not only failed to correct his 

vexatious conduct but has, in fact, extended it to target individuals who assisted the mother in her 

efforts to exercise custody of her children. Because the court made extensive findings about 

petitioner’s bad faith and vexatious conduct, we find no error in the reasonable restrictions placed 

on his ability to file self-represented pleadings against respondents herein without prior approval. 

Lastly, we find it necessary to remand this matter to the circuit court for the limited purpose 

of holding a hearing to determine if awarding respondents attorney’s fees and costs is appropriate.

For the foregoing reasons, we find no error in the decision of the circuit court, and its 

November 16, 2020, order is hereby affirmed and the matter remanded, with instructions.

Affirmed and remanded.

ISSUED: February 1, 2022

CONCURRED IN BY:
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Chief Justice John A. Hutchison

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Evan H. Jenkins 

Justice William R. Wooton