1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia ex rel. West Virginia

Department of Health and Human Resources,

Petitioner

vs.) No. 20-0784

The Honorable Tera L. Salango, Judge of the Circuit

Court of Kanawha County, and Rene G. Denise,

Respondents

MEMORANDUM DECISION

The West Virginia Department of Health and Human Resources (“DHHR”)1 seeks 

a writ of prohibition to prohibit Respondent Tera L. Salango, Judge of the Circuit Court of 

Kanawha County, from allowing Respondent Rene G. Denise2 to proceed with her sexual 

harassment case against DHHR. The West Virginia Code provides that a “government 

agency” is entitled to thirty days’ written notice before it is sued. W. Va. Code § 55-17-

3(a)(1) (2008).3

 Under our cases, failure to give this pre-suit notice deprives the circuit 

1 DHHR is represented in this matter by Jan L. Fox, Esq., Mark C. Dean, Esq., and 

Michelle E. Gaston, Esq., of Steptoe & Johnson PLLC.

2 Ms. Denise is represented in this matter by Todd S. Bailess, Esq., and Rodney A. 

Smith, Esq., of Bailess Smith PLLC and by Michael P. Addair, Esq., of Addair Law Office 

PLLC.

3 West Virginia Code § 55-17-3(a)(1) provides that 

[n]otwithstanding any provision of law to the contrary, at least thirty 

days prior to the institution of an action against a government agency, 

the complaining party or parties must provide the chief officer of the

government agency and the Attorney General written notice, by certified 

mail, return receipt requested, of the alleged claim and the relief desired. 

Upon receipt, the chief officer of the government agency shall forthwith 

forward a copy of the notice to the President of the Senate and the Speaker 

(continued . . .)

FILED

June 2, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

court of jurisdiction. By statute, a “government agency” includes both a state executivebranch “department” with capacity to be sued and a “public official named as a defendant

or respondent in his or her official capacity[.]” W. Va. Code § 55-17-2(2) (2002).

4

 In this 

case, DHHR received statutory pre-suit notice; other defendants did not, including a 

defendant supervisor who works at a hospital run by DHHR.

DHHR contends that the defendant supervisor is a public official who was sued in 

her official capacity and without pre-suit notice. DHHR further contends that this failure 

of notice deprived the circuit court of jurisdiction. The Circuit Court of Kanawha County

disagreed and denied DHHR’s motion to dismiss. Now DHHR asks this Court to prohibit 

the circuit court from allowing the case to proceed, alleging the circuit court lacks

jurisdiction.

Based on the record before us, the arguments of the parties, and the applicable law, 

we find that DHHR had no clear right to have the case against it dismissed, regardless of 

whether the supervisor in question is (or is not) a “public official” for purposes of West

Virginia Code § 55-17-2(2). Therefore, we deny DHHR’s writ petition and remand this 

case to the circuit court for further proceedings. Because this case presents no new or 

substantial question of law, and because we find no prejudicial error, its proper disposition 

is by memorandum decision as contemplated by Rule 21 of the Rules of Appellate 

Procedure.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case stems from a sexual harassment suit filed by Ms. Denise. Ms. Denise is a 

nurse who, in August or September 2017, began working for Sunbelt Staffing, LLC

(“Sunbelt”). Sunbelt recruits and provides staff for hospitals and other healthcare facilities, 

of the House of Delegates. The provisions of this subdivision do not apply 

in actions seeking injunctive relief where the court finds that irreparable harm 

would have occurred if the institution of the action was delayed by the 

provisions of this subsection.

4 According to West Virginia Code § 55-17-2(2), 

“[g]overnment agency” means a constitutional officer or other public

official named as a defendant or respondent in his or her official

capacity, or a department, division, bureau, board, commission or other 

agency or instrumentality within the executive branch of state government 

that has the capacity to sue or be sued[.]
3

and Sunbelt placed Ms. Denise with DHHR’s William R. Sharpe, Jr. Hospital.5

 After a 

period of orientation, Ms. Denise began working in the E2 Unit for young adult patients.

Ms. Denise claims that, from her first day in the E2 Unit, she was sexually harassed 

by a hospital coworker named Scott Starcher. She says that she reported the harassment to 

“Melanie,” whom Ms. Denise describes as a “supervisor and/or human resources 

personnel” employed by DHHR. Ms. Denise alleges that “Melanie” promised to “put 

something in writing” about the harassing coworker and to put Ms. Denise on her “list of 

things” to discuss with Francis Stump, whom Ms. Denise describes as a “supervisor/agent 

of DHHR.”6

 

The harassment continued, according to Ms. Denise, and she complained a second 

time to “Melanie” and a third time to Ms. Stump. Ms. Stump allegedly admitted that Mr. 

Starcher was an “issue” and that she had received “multiple complaints” about him. 

We do not know what, if any, discipline was imposed on Mr. Starcher, but Ms. 

Denise says that she was subsequently transferred to an undesirable midnight shift and 

assigned to work back-to-back sixteen-hour shifts. She claims that her requests for a new 

schedule were refused and that, on or about November 9, 2017, she learned that her contract 

was canceled. She alleges that Ms. Stump attributed the cancelation to job cuts and assured 

her that she was eligible to return to work when DHHR needed more staff. However, Ms. 

Denise claims that, when DHHR was later seeking to hire nurses, she was deemed 

ineligible.

On October 21, 2019, Ms. Denise notified7 DHHR8 and the West Virginia Attorney 

General by certified mail, return receipt requested, that she planned to sue the State for 

various claims arising from her “joint employment” with DHHR and Sunbelt. The next

day, she sued Sunbelt, Mr. Starcher, “Melanie” (as “Jane Doe”), and Ms. Stump. Her 

complaint alleged that Sunbelt and DHHR were “employers” for purposes of West Virginia 

5 Ms. Denise alleges that she was “jointly employed” by Sunbelt and DHHR.

6 During oral argument, DHHR’s counsel referred to Ms. Stump as a “nurse 

manager” and a “nursing supervisor,” but neither party has provided any significant details 

about Ms. Stump’s title, activities, or duties.

7 By statute, written pre-suit notice “is considered to be provided on the date of 

mailing of the notice by certified mail, return receipt requested.” W. Va. Code § 55-17-

3(a)(2).

8 Her attorney addressed the certified letter to the cabinet secretary and the chief 

operating officer for DHHR’s Office of Health Facilities.
4

Code § 5-11-3(d)9 and that Mr. Starcher, “Melanie,” and Ms. Stump were “persons” for 

purposes of West Virginia Code § 5-11-3(a).10 Her complaint further alleged that, as 

persons, Mr. Starcher, “Melanie,” and Ms. Stump were “individually liable for the acts 

described herein in the aiding and abetting of discrimination as set forth in W[est] 

V[irginia] Code § 5-11-9(7).”11

9 According to West Virginia Code 5-11-3(d) (1998),

“employer” means the state, or any political subdivision thereof, and any 

person employing twelve or more persons within the state for twenty or more 

calendar weeks in the calendar year in which the act of discrimination 

allegedly took place or the preceding calendar year: Provided, That such 

terms shall not be taken, understood or construed to include a private club[.]

10 West Virginia Code § 5-11-3(a) defines a “person” as “one or more individuals, 

partnerships, associations, organizations, corporations, labor organizations, cooperatives, 

legal representatives, trustees, trustees in bankruptcy, receivers and other organized groups 

of persons” (emphasis added).

11 West Virginia Code § 5-11-9(7) (2016) forbids

any person, employer, employment agency, labor organization, owner, real 

estate broker, real estate salesman or financial institution to:

(A) Engage in any form of threats or reprisal, or to engage in, or hire, or 

conspire with others to commit acts or activities of any nature, the purpose 

of which is to harass, degrade, embarrass or cause physical harm or 

economic loss or to aid, abet, incite, compel or coerce any person to

engage in any of the unlawful discriminatory practices defined in this 

section;

(B) Willfully obstruct or prevent any person from complying with the 

provisions of this article, or to resist, prevent, impede or interfere with the 

commission or any of its members or representatives in the performance 

of a duty under this article; or

(C) Engage in any form of reprisal or otherwise discriminate against any

person because he or she has opposed any practices or acts forbidden

under this article or because he or she has filed a complaint, testified or

assisted in any proceeding under this article.
5

Ms. Denise refrained, however, from suing DHHR until thirty-one days later, when 

she filed an amended complaint adding DHHR as a defendant. She subsequently dismissed 

Sunbelt and Mr. Starcher from the case pursuant to West Virginia Rule of Civil Procedure 

41.

12 Accordingly, the only remaining defendants in the case were DHHR, “Melanie,” and 

Ms. Stump.

DHHR moved to dismiss the case for lack of jurisdiction,13 arguing that Ms. Stump 

is an official who was sued in her “official capacity” and was, thus, entitled to statutory 

pre-suit notice pursuant to West Virginia Code § 55-17-3(a)(1).

14 Ms. Stump joined 

DHHR’s motion. The circuit court rejected DHHR’s argument and denied the motion to 

dismiss in a June 8, 2020 order. According to the circuit court, Ms. Stump is a public

employee, not a public official entitled to pre-suit notice.

DHHR remains convinced that Ms. Stump is a “public official.” DHHR filed this 

petition for writ of prohibition to challenge the circuit court’s jurisdiction. Ms. Stump,

however, is neither a co-petitioner with DHHR nor a respondent in this matter, nor has she

filed a writ petition of her own.

II. STANDARD OF REVIEW

We have held that “[a] writ of prohibition will not issue to prevent a simple abuse 

of discretion by a trial court. It will only issue where the trial court has no jurisdiction or 

having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1.” Syl. Pt. 1, 

State ex rel. PrimeCare Med. of W. Va., Inc. v. Faircloth, 242 W. Va. 335, 835 S.E.2d 579 

(2019) (quoting Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 

425 (1977)). Lack of jurisdiction is, thus, an accepted ground for issuing a writ of 

prohibition. 

DHHR contends that a plaintiff’s failure to provide pre-suit notice pursuant to West 

Virginia Code § 55-17-3(a)(1) deprives the circuit court of subject matter jurisdiction. The 

statute provides: “Notwithstanding any provision of law to the contrary, at least thirty days 

prior to the institution of an action against a government agency, the complaining party or

12 Rule 41(a)(1)(i) (1998) authorizes a plaintiff to dismiss an action “by filing a 

notice of dismissal at any time before service by the adverse party of an answer or of a 

motion for summary judgment, whichever first occurs[.]” According to the notices of 

dismissal, neither Sunbelt nor Mr. Starcher had served an answer or motion for summary 

judgment.

13 DHHR asserted other defenses, but they are not relevant to this writ petition.

14 See supra note 3.
6

parties must provide . . . written notice . . . of the alleged claim and the relief desired.” Id.

(emphasis added). Our cases are equally clear: “Compliance with the pre-suit notification

provisions set forth in W. Va.Code § 55–17–3(a) (2002) is a jurisdictional pre-requisite

for filing an action against a State agency subject to the provisions of W. Va.Code § 55–

17–1, et seq. (2002).” Syl. Pt. 3, Motto v. CSX Transp., Inc., 220 W. Va. 412, 647 S.E.2d 

848 (2007) (emphasis added); accord Gomez v. State Athletic Comm’n, No. 16-0103, 2016 

WL 5348350, *2 (W. Va. Sept. 23, 2016) (memorandum decision). 

Our standard of review for jurisdictional questions depends on whether the parties’ 

dispute is one of fact or law.

When a petition raises a jurisdictional challenge, “we must determine 

. . . whether it is jurisdictional in the sense of requiring a decision upon facts 

or a decision upon a pure question of law.” Lewis v. Fisher, 114 W. Va. 151, 

154-155, 171 S.E. 106, 107 (1933). “If it rests upon a determination of fact, 

prohibition will not lie.” Id. at 155, 171 S.E. at 107. If, however, the 

challenge “rests upon the determination of a question of law, prohibition will 

lie if the trial court has exceeded its jurisdiction or usurped a jurisdiction that 

in law does not exist.” Id. Because the question is one of law, we apply a de 

novo standard of review. See, e.g., Tennant v. Smallwood, 211 W. Va. 703, 

707, 568 S.E.2d 10, 14 (2002).

PrimeCare, 242 W. Va. at 341-42, 835 S.E.2d at 585-86 (footnote omitted). In this case, 

neither party has raised any material issue of fact relevant to jurisdiction, so our standard 

of review is de novo. 

Nevertheless, DHHR’s right to relief must be clear, otherwise we will deny the writ. 

As we have held before, “[t]he writ of prohibition will issue only in clear cases where the 

inferior tribunal is proceeding without, or in excess of, jurisdiction.” Syl., State ex rel.

Vineyard v. O’Brien, 100 W. Va. 163, 130 S.E. 111 (1925) (emphasis added); accord State

ex rel. Maynard v. Bronson, 167 W. Va. 35, 41, 277 S.E.2d 718, 722 (1981) (“The right to 

prohibition must clearly appear, for example, before the petitioner is entitled to such 

remedy.”).

III. ANALYSIS

DHHR’s plea for relief is simple: (a) Ms. Stump is a public official who was sued 

in her official capacity; (b) Ms. Stump never received statutory pre-suit notice; (c) lack of 

notice is a jurisdictional defect; therefore, (d) the circuit court was obliged “to dismiss this 

case” (emphasis added). DHHR assumes that the only relevant question is whether Ms. 

Stump is public official who was sued in her official capacity. We disagree.
7

The statute provides that, when a person wishes to bring “an action against a 

government agency, the complaining party or parties must provide the chief officer of the 

government agency . . . written notice . . . of the alleged claim and the relief desired.” W. 

Va. Code § 55-17-3(a)(1). This language poses a problem for DHHR because everyone 

agrees that DHHR is a state agency and that DHHR received statutory pre-suit notice. The 

real question, therefore, is whether DHHR—after receiving exactly what the statute 

requires—can object to the fact that Ms. Stump, as an alleged public official, did not.

DHHR does not appear to have anticipated this rather obvious question. In its

petition for writ of prohibition, DHHR concentrated its energy on proving that Ms. Stump 

is a public official who was sued in her official capacity. When we questioned, at oral 

argument, DHHR’s capacity to object to Ms. Stump’s lack of pre-suit notice, DHHR argued 

that, by suing Ms. Stump, Ms. Denise was also suing DHHR. We are not persuaded by

this allegation.

If Ms. Stump is a public official who was sued in her official capacity—and we do 

not decide that question—then, by statute, she is a separate government agency with a 

separate right to receive statutory pre-suit notice. West Virginia Code § 55-17-2(2) 

provides that a “government agency” is “a . . . public official named as a defendant . . . in

his or her official capacity, or a department . . . within the executive branch of state 

government that has the capacity to sue or be sued” (emphasis added). The statutory 

definition contains no exception for cases where the alleged public official serves in an 

executive branch department. Indeed, by referring to public officials first, the statutory 

definition appears structured to exclude any doubt that a public official sued in his or her 

official capacity is a “government agency” in addition to whatever “department, division, 

bureau, board, commission or other agency or instrumentality” he or she may lead or serve. 

Id.

According to the statute, a person who brings “an action against a government 

agency . . . must provide the chief officer of the government agency . . . written notice . . . 

of the alleged claim and the relief desired.” Id. § 55-17-3(a)(1) (emphasis added). In the 

same vein, West Virginia Code § 55-17-3(a)(2) provides that “written notice to the chief 

officer of the government agency” is deemed to be provided upon mailing and that “notice 

. . . to the chief officer of the government agency” tolls “any applicable statute of

limitations . . . for thirty days” (emphasis added)).

15 Thus, according to the plain language

of West Virginia Code § 55-17-3(a), when a person brings an action against more than one 

15 This language parallels, in relevant respects, the language of West Virginia Rule 

of Civil Procedure 4: “The summons shall . . . be directed to the defendant . . . . It shall 

also state the time within which the defendant must appear and defend, and notify the 

defendant that failure to do so will result in a judgment by default against the defendant for 

the relief demanded in the complaint.” W. Va. R. Civ. P. 4(a) (2007) (emphasis added).
8

government agency, each defendant government agency has a separate right to receive 

statutory pre-suit notice of the action.

Because DHHR actually received statutory pre-suit notice and is now attempting to

invoke a right that belongs to another party who did not join in DHHR’s writ petition to

this Court, we cannot say that DHHR’s right to relief in this matter is clear. Indeed, we

question DHHR’s standing to object to Ms. Stump’s lack of pre-suit notice.16 

As a general rule any person who will be affected or injured by the 

proceeding which he seeks to prohibit is entitled to apply for a writ of 

prohibition; but a person who has no interest in such proceeding and whose 

rights will not be affected or injured by it can not [sic] do so.

Syl. Pt. 6, State ex rel. Linger v. Cty. Ct. of Upshur Cty., 150 W. Va. 207, 144 S.E.2d 689 

(1965). DHHR is a defendant in the circuit court action and, therefore, might plausibly 

claim to be a “person who will be affected . . . by the proceeding” and “a person who has 

[an] interest in such proceeding[.]” Id. However, standing requires something more: an 

interest in the particular right or claim the petitioner seeks to assert. As we said in Findley

v. State Farm Mut. Auto. Ins. Co., 

[s]tanding does not refer simply to a party’s capacity to appear in

court. Rather, standing is gauged by the specific common-law, statutory or

constitutional claimsthat a party presents. Typically, . . . the standing inquiry

requires careful judicial examination . . . to ascertain whether the particular

plaintiff is entitled to an adjudication of the particular claims asserted.

213 W. Va. 80, 94–95, 576 S.E.2d 807, 821–22 (2002) (alterations in original) (internal 

quotation marks omitted) (quoting Int’l Primate Prot. League v. Admins. of Tulane Educ.

Fund, 500 U.S. 72, 77 (1991)); see also Bone v. Otis Elevator Co., 2018-0745 (La. App. 4 

Cir. 12/12/18), 261 So. 3d 948, 950 (“[W]e find no error in the district court’s conclusion

that Otis lacked standing to bring exceptions seeking dismissal of FTCA claims against

other defendants. ‘An exception is a means of defense, . . . used by the defendant, . . . to 

retard, dismiss, or defeat the demand brought against him.’ La. C.C.P. art. 921 (emphasis 

added). Under the facts before us, these exceptions are not an available method by which 

Otis can seek dismissal of claims against other parties.” (alterations in original)). In this 

matter, DHHR has no interest in the statutory right or claim it asserts.

16 Though neither party briefed this issue, we note that “[s]tanding . . . may be raised

at any time by a party or sua sponte by the Court.” State ex rel. Morrisey v. W. Va. Off. of

Disciplinary Couns., 234 W. Va. 238, 244, 764 S.E.2d 769, 775 (2014).
9

Furthermore, we have observed that “a court can have subject matter jurisdiction 

over some claims and not others.” PrimeCare, 242 W. Va. at 341 n.14, 835 S.E.2d at 585 

n.14. Likewise, a court’s subject matter jurisdiction may extend to some defendants and 

not others. See, e.g., Charles D. Bonanno Linen Serv., Inc. v. McCarthy, 708 F.2d 1, 11 

(1st Cir. 1983) (holding that federal court jurisdiction was proper “even if the other state 

claim defendants must be left behind.”); Christel v. EB Eng’g, Inc., 116 P.3d 1267, 1270 

(Colo. App. 2005) (holding that trial court had jurisdiction to proceed with “claims against 

the other defendants” while interlocutory appeal was pending); Pack v. Ross, 288 S.W.3d 

870, 873–74 (Tenn. Ct. App. 2008) (holding that, because venue for a defendant was 

limited to a single county, the court of that county had sole “jurisdiction to entertain the

action” despite the fact that other defendants were properly sued in a second county where

the action was filed); Hyundai Motor Am. v. New World Car Nissan, Inc., 581 S.W.3d 831, 

835-36 (Tex. App. 2019) (finding that subject matter jurisdiction was limited to certain 

state defendants and dismissing other state defendants). Accordingly, even if Ms. Stump 

is a government agency entitled to statutory pre-suit notice—which, again, is a question 

we do not decide—it is not clearly established by law that the circuit court’s alleged lack 

of subject matter jurisdiction with respect to Ms. Stump defeats the circuit court’s subject 

matter jurisdiction with respect to DHHR. Accordingly, DHHR has not met its burden to 

establish that it has a clear legal right to the writ it requests.

IV. CONCLUSION

For the foregoing reasons, we deny DHHR’s writ petition and remand this case to 

the circuit court for further proceedings.

Writ denied.

ISSUED: June 2, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton