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

- 07 84

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. Denise 2 to proceed with her sexual

harassment case against DHHR

. The West Virginia Code provides that a “governme nt

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 offi cer 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 VIRGINIA2 court of jurisdiction. By statute, a “government agency” includes both a state executive

branch “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, DHH R 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

. T he Circuit Court of Kanawha County

d isagree d 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 W est

V irginia 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 memorand um 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 c onstitutional 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 S unbelt placed Ms. Denise with DHHR’s William R. Sharpe, Jr. Hospital. 5 After a

period of orientation, Ms. Denise began work ing 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 hara ssing 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” a nd 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 cancel ed. 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

in eligible.

On October 21, 2019, Ms. Denise notified 7 DHHR 8 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 su ed 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 provide d any significant details

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

7 By statute, written p re

- 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 “p ersons” 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 W est V irginia 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 W est V irginia 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 p ersons ” (emphasis added).

11 W est V irginia 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) Willfull y 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 t he case for lack of jurisdiction, 13 arguing that Ms. Stump

is a n 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

. Accordin g 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. V a. , 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 sub ject matter jurisdiction

. The

statute provides : “ 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

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 : “ C ompliance 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, M otto 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’

disput e 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 t he 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 o ur 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 assume s 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 office r of the

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

Va. Code § 55

- 17

- 3(a)(1). Th is language poses a problem for DHHR because everyone

agrees that DHHR is a state agen cy 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 s tatute, she i s 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.

A ccording 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, W est V irginia Code § 55

- 17

- 3(a) (2) provid es 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 W est V irginia 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: “ T he summons shall

. . . be directed to the defendant . . . . It shall

also state the time within which the defendant must appear and defend, and noti fy 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 attempt ing 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 somet hing more: a n

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 claims that 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 met hod by which

Otis can seek dismissal of claims against other parties

. ” (alterations in original) )

. In this

matter, DHHR has no in terest 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. V a. Off. of

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

83 5

- 3 6 (Tex. App. 2019) ( finding that subject matter jurisdiction was limited to certain

state defendant s 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 defeat s 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