STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Greg Winland and Tri-State Concrete Pumping, Inc., FILED 

Plaintiffs Below, Petitioners November 8, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs) No. 13-0231 (Kanawha County 07-C-1384) OF WEST VIRGINIA 

West Virginia Regional Jail and Correctional Facility Authority;
 

Wyetta Fredericks, in her capacity as Executive Director
 

for the West Virginia Regional Jail and Correctional
 

Facility Authority; John Does 1 through 5, West Virginia residents;
 

John Does 1 through 5, Ohio residents; Business Organization XYZ,
 

and Corporations 1 through 5, Ohio and/or West Virginia corporations,
 

Defendants Below, Respondents
 

MEMORANDUM DECISION 

Petitioners Greg Winland and Tri-State Concrete Pumping, Inc., by counsel John E. 

Triplett, Jr., appeal the Circuit Court of Kanawha County’s order dismissing petitioners’ civil 

action pursuant to Rule 41(b) of the West Virginia Rules of Civil Procedure for failure to 

prosecute. Respondents West Virginia Regional Jail and Correctional Facility Authority and 

Wyetta Fredericks, in her capacity as its Executive Director, by counsel Jeffrey W. Lilly, filed a 

response. Petitioners filed a reply. 

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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Petitioners1 filed their civil action in the Circuit Court of Kanawha County on or about 

July 5, 2007, and alleged that respondents2 improperly released recorded phone conversations 

1

According to the complaint, Petitioner Greg Winland is a resident of Belpre, Ohio, and 

Petitioner Tri-State Concrete Pumping, Inc. is a company 100% controlled by Petitioner 

Winland. 

2

According to the complaint, “John Does 1 through 5, West Virginia residents” were 

believed to have been officers or agents of Respondent Regional Jail and Correctional Facility 

Authority. “John Does 1 through 5, Ohio residents” and “Business Organization XYZ, and 

Corporations 1 through 5, Ohio and/or West Virginia corporations” were alleged to have been 

the recipients of the taped conversations. 

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between Petitioner Winland and an inmate of the Northern Regional Jail, located in Doddridge 

County, West Virginia. The inmate was allegedly a former employee of Petitioner Tri-State 

Concrete Pumping, Inc. Petitioners allege that the taped conversations were released by 

respondents pursuant to an Ohio state court subpoena, served in West Virginia, and issued in an 

Ohio divorce action between Petitioner Winland and his now former wife. The recordings were 

allegedly received by the attorney for Petitioner Winland’s ex-wife. Petitioners alleged the 

following: (1) violation of petitioners’ civil rights, (2) outrageous conduct, (3) invasion of 

privacy, (4) violation of various West Virginia statutes on eavesdropping and wire-tapping,3 (5) 

negligence, (6) negligent training, and (7) negligent supervision.4 The substance of the taped 

conversations, and how they may have affected petitioners, is unclear from the record. 

Respondents filed their answer to the complaint on or about September 7, 2007. On 

September 17, 2008, the circuit court issued a “Notice of Intent to Involuntarily Dismiss” the 

case due to inactivity in excess of one year. On October 2, 2008, petitioners filed a motion to 

retain the case on the docket, and served their first set of written discovery requests on 

respondents.5 Respondents served their answers to discovery on November 3, 2008. 

On August 10, 2009, petitioners filed a Notice of Deposition for the attorney for 

Petitioner Winland’s ex-wife and scheduled the deposition for the next day in Marietta, Ohio. 

The certificate of service reflects that petitioners’ counsel served the notice on respondents’ 

counsel by depositing the same in United States mail on August 11, 2009, the day of the 

deposition. 

On October 18, 2010, respondents filed their motion to dismiss for failure to prosecute, to 

which petitioners responded four months later, on or about February 28, 2011. On May 5, 2011, 

the circuit court held a hearing on respondents’ motion and heard argument from both sides. 

3

Petitioners fail to identify the statutes in the complaint or in their brief to this Court. 

4

Petitioners had previously filed the same suit in the Circuit Court of Doddridge County, 

prompting a motion to dismiss by respondents. Prior to the dismissal of respondents herein from 

the Doddridge County action, petitioners filed the present suit in Kanawha County. Petitioners 

assert that the Doddridge County action is still pending as it relates to the other defendants. 

Petitioner attempted to include the pleadings from the Doddridge County action in the appendix 

record for the present appeal, prompting a motion to strike by respondents on May 8, 2013. By 

Order of June 18, 2013, this Court granted respondents’ motion to strike and ruled that “all 

documents contained in the appendix record, that are not part of the Circuit Court of Kanawha 

County record, be, and they hereby are, stricken.” 

5

Also on October 2, 2008, the Circuit Court of Kanawha County, Judge Berger presiding, 

entered an order dismissing the case from its docket pursuant to Rule 41(b) of the West Virginia 

Rules of Civil Procedure. It is unclear from the appendix record, but presumably this order was 

rescinded as the matter remained on the court’s docket until Judge Webster’s subsequent 

dismissal, which is the subject of this appeal. 

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Respondent argued that at the time of their October 18, 2010, motion, there had been no activity 

in the case for over one year. Petitioners argued that the case was procedurally complicated due 

to the initial filing in Doddridge County, confusion over the apparent dismissal of the case on 

October 2, 2008, by Judge Berger, the need for respondents to supplement their discovery 

responses6

, and the difficulties obtaining depositions of the Ohio divorce attorney and Petitioner 

Winland’s ex-wife7 that resulted in Ohio litigation over her motion to quash a subpoena. 

In its ruling, the circuit court acknowledged the preference for resolving cases on their 

merits, but found that the record demonstrated that there was no activity for over one year prior 

to the filing of the motion to dismiss; that the court had previously dismissed the case for failure 

to prosecute, but afforded petitioners another opportunity to prosecute their case; but despite this 

second opportunity, petitioners still failed to prosecute the case. By order entered January 22, 

2013, the court dismissed the action with prejudice. From this order, petitioners appeal to this 

Court. 

This Court reviews a circuit court’s dismissal of a case for inactivity pursuant to Rule 

41(b) under an abuse of discretion standard. Caruso v. Pearse, 223 W.Va. 544, 678 S.E.2d 50 

(2009). Petitioners raise three assignments of error that can be addressed as a single issue: 

Whether the circuit court abused its discretion by dismissing petitioners’ civil action with 

prejudice. Petitioners argue that the circuit court failed to consider the multi-jurisdictional effort 

that was required to move the case along; that the court failed to consider the lack of prejudice on 

the part of respondents; and that dismissal with prejudice is a draconian measure reserved for the 

most flagrant demonstrations of inactivity. 

We disagree with petitioners and find no abuse of discretion in the dismissal of the case. 

In an attempt to resuscitate their Kanawha County civil action, petitioners point to irrelevant 

activity in Doddridge County and the State of Ohio. Petitioners’ only activity in the Kanawha 

County civil action is: (1) the filing of the suit on July 5, 2007, (2) the October 2, 2008, motion 

to retain the case on the docket after the first notice of intent to dismiss and first set of discovery 

requests, (3) an untimely notice of deposition on August 10, 2009, and (4) the February 28, 2011, 

second motion to retain the case on the docket. In nearly six years, the only attempt to prosecute 

the case is one set of discovery requests that appear to have been served in an attempt to fend off 

the circuit court’s first notice of intent to dismiss. 

In Whiting v. Marion County Sheriff’s Department, No. 11-0575 (W.Va. Supreme Court, 

September 21, 2012) (memorandum decision), this Court upheld the dismissal of a pro se 

plaintiff’s suit where the inactivity exceeded one year and where the plaintiff argued that he was 

not aware of the requirements to move the case to conclusion. In the present case, petitioners are 

represented by counsel and are asking for a third chance to prosecute their case that was filed in 

2007. Given this Court’s refusal to find an abuse of discretion under the facts in Whiting, we 

certainly cannot find the same in present case. 

6

Petitioners filed no motions to compel additional discovery. 

7

Petitioner Winland’s ex-wife’s deposition was noticed to take place on March 14, 2011, 

in Marietta, Ohio. Petitioners’ counsel served the notice by facsimile and regular mail on March 

11, 2011. 

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As to petitioners’ claim that the circuit court failed to consider the lack of prejudice to 

respondents, we do not believe such a consideration was required under the facts in this case. We 

have held that 

the plaintiff bears the burden of going forward with evidence as to good cause for 

not dismissing the action; if the plaintiff does come forward with good cause, the 

burden then shifts to the defendant to show substantial prejudice to it in allowing 

the case to proceed; if the defendant does show substantial prejudice, then the 

burden of production shifts to the plaintiff to establish that the proffered good 

cause outweighs the prejudice to the defendant. 

Syl. Pt. 3, in part, Dimon v. Mansy, 198 W.Va. 40, 479 S.E.2d 339 (1996). Dimon does not call 

for a shift in the burden to respondents to show prejudice if petitioners fail to show good cause 

for the inactivity. At the May 5, 2011, hearing, the circuit court gave petitioners an opportunity 

to demonstrate good cause as to why the case should not be dismissed. The court heard the 

petitioners’ argument that the Doddridge County and State of Ohio proceedings caused the delay 

in the Kanawha County case. Simply put, the court was not persuaded. Petitioners maintain a 

“continuing duty to monitor a case from the filing until the final judgment,” and failed to do so. 

Dimon, 198 W.Va. at 45, 479 S.E.2d at 344. Therefore, the burden did not shift to respondents to 

show prejudice. 

Finally, as for petitioners’ challenge to the dismissal being with prejudice, we find that 

Rule 41(b) itself calls for such a result. The rule clearly states, in part, that “[u]nless the court in 

its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal 

not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, 

operates as an adjudication upon the merits.” Dismissal with prejudice is supported by the rule. 

Therefore, we find no abuse of discretion by the circuit court in dismissing the case with 

prejudice. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: November 8, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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