STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

David C. Tabb, FILED 

Petitioner Below, Petitioner November 18, 2016 

RORY L. PERRY II, CLERK 

vs) No. 15-1155 (Jefferson County 13-C-432) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

The County Commission of Jefferson 

County, West Virginia, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner David C. Tabb, pro se, appeals two orders of the Circuit Court of Jefferson 

County. In the first order, entered October 29, 2015, the circuit court (1) denied petitioner’s 

petition to hold Respondent County Commission of Jefferson County in contempt for allegedly 

violating the parties’ settlement agreement; and (2) dismissed with prejudice a claim that the 

settlement agreement allowed petitioner to refile. In the second order, entered November 30, 2015, 

the circuit court denied petitioner’s motion to alter or amend its October 29, 2015, order. 

Respondent, by counsel Nathan P. Cochran, filed a response in support of the circuit court’s order. 

Petitioner filed a reply. 

The 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. 

Petitioner is a resident of Jefferson County, West Virginia. On December 3, 2013, 

petitioner filed a petition for writ of mandamus to compel respondent to hold its meetings at the 

Jefferson County Courthouse (“county courthouse”) rather than at the Charles Town Library 

(“library”). Petitioner later added claims that respondent failed to post an adequate notice of its 

meeting place and failed to fly the United States and West Virginia flags in front of the library in 

accordance with West Virginia Code § 7-3-2a. 

By entry of a June 17, 2014, voluntary dismissal order, the circuit court found that the 

parties settled petitioner’s claims. First, the parties agreed that the meeting room leased by 

respondent in the library constituted “a proper and lawful meeting place within the [c]ounty seat at 

which to conduct [respondent’s] meetings.” The circuit court noted that respondent passed a 

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resolution designating the library as its meeting place.1 Second, the parties agreed that respondent 

would post adequate notices of its meetings both at the library and the county courthouse. 

With regard to petitioner’s claim that respondent must fly the national and state flags at the 

library in compliance with West Virginia Code § 7-3-2a, the circuit court found, as follows: 

. . . However, [respondent] leases the [l]ibrary space and does not have the 

authority to modify the structure without the consent of the [l]ibrary. [Respondent] 

has been in good faith negotiations with the [l]ibrary to obtain permission to display 

flags outside of the [l]ibrary either near the side entrance or near the front entrance. 

However, the exact costs and specifications have not yet been agreed. [Respondent] 

hopes to obtain permission to display flags and to find the resources to cover the 

costs of [the] same within the next few months. [Petitioner] agrees that the display 

of flags during [respondents’] meetings (weather permitting) at either side or front 

locations would be satisfactory and understands [that] the negotiation and 

installation will take some time. . . . [N]either party deems it cost-effective to 

litigate the flag issue at this time when it is likely to be resolved in the near future. 

(emphasis added). However, the parties agreed that petitioner retained the right to refile his claim 

regarding “the display of the flags” within 180 days of the dismissal order. Accordingly, the circuit 

court dismissed petitioner’s first two claims with prejudice and dismissed his third claim without 

prejudice. 

Petitioner subsequently refiled his claim that respondent was not flying national and state 

flags in accordance with West Virginia Code § 7-3-2a. On April 24, 2015, the circuit court held a 

hearing on respondent’s efforts to comply with that part of the parties’ settlement agreement. At 

that hearing, petitioner conceded that respondent flies flags in front of the county courthouse 

twenty-four hours a day, seven days a week. Respondent’s executive assistant, Jessica Carroll, 

testified that respondent also flies flags outside the meeting room at the library during its meetings 

there, including public hearings. During respondent’s meetings, Ms. Carroll testified that flags are 

installed on brass flag holders “attached . . . to the brick of the [library] building.” However, the 

flags flown by respondent during its meetings are three feet by five feet rather than four feet by six 

feet, which is the preferred size under West Virginia Code § 7-3-2a. By order entered June 22, 

2015, the circuit court found that “[n]either . . . [p]etitioner nor [respondent] deny the validity of 

the June 17, 2014, [settlement] agreement between the parties” and directed respondent to ensure 

its full compliance with that agreement by September 1, 2015. 

On September 4, 2015, petitioner filed a petition to hold respondent in contempt for 

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Respondent’s December 5, 2013, resolution designating the library as its meeting place is 

in the record on appeal. West Virginia Code § 51-3-7 provides that, if a county courthouse “is not 

in a condition to be occupied,” a county commission may enter an order designating another 

location as its meeting place. In the instant case, respondent states that its meeting room at the 

county courthouse is “too small and otherwise unsuitable by modern standards” for it to hold its 

meetings there. 

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allegedly continuing to violate the parties’ June 17, 2014, settlement agreement. Following a 

hearing on September 24, 2015, the circuit court refused to hold respondent in contempt and 

instructed respondent to make inquiries of its maintenance director regarding the feasibility of 

flying four feet by six feet flags outside the meeting room at the library. Respondent subsequently 

sent the circuit court a letter stating that four feet by six feet flags would be “difficult to mount and 

unmount without the flags touching the ground” and would require the purchase and installation of 

different mountings.2 

By order entered October 29, 2015, the circuit court denied petitioner’s petition for 

contempt and dismissed his claim based on West Virginia Code § 7-3-2a with prejudice. The 

circuit court found, in pertinent part, as follows: 

2. While the [c]ourt agrees with [petitioner] that there are statutory 

requirements for [four feet by six feet] flags to be flown on flagpoles in the [county] 

[c]ourthouse, that is not the specific situation in this case. 

3. First, we are not dealing with the [county] [c]ourthouse, but the [l]ibrary 

meeting room, and the testimony presented shows that [respondent] flies [four feet 

by six feet] flags in front of the [county] courthouse in addition to the [three feet by 

five feet] flags at the library meeting room. 

4. Second, the [l]ibrary meeting room used by [respondent] is private 

property, not owned by [respondent], and [respondent] does not have an unfettered 

right to install flagpoles and fly flags as it chooses without obtaining permission 

from a third party. 

5. Third, there is no specification of flag size or requirements for flagpoles in 

the June 17, 2014[, settlement agreement]. 

* * * 

7. In view of the above, and since there is no specification of size in the June 

17, 2014[, settlement agreement], the [c]ourt FINDS that, even if [West Virginia 

Code] § 7-3-2a is applicable in this situation, [three feet by five feet] flags are the 

“appropriate size” under the circumstances in this case to keep the flags from 

touching the ground. Additionally, since other, larger flags are already flying on 

poles in front of the [county] courthouse, the [c]ourt FINDS that [respondent] has 

met both the statutory requirements for flags and the terms of the June 17, 2014[,] 

and June 22, 2015[, orders]. 

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Respondent’s letter to the circuit court is undated. However, in its October 29, 2015, order 

dismissing petitioner’s outstanding claim with prejudice, the circuit court found—and petitioner 

does not dispute—that he received a copy of respondent’s letter. In addition, on October 22, 2015, 

petitioner filed a second petition to hold respondent in contempt. 

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(emphasis added). 

On November 18, 2015, petitioner filed a motion to alter or amend the circuit court’s 

October 29, 2015, order.3 By order entered on November 30, 2016, the circuit court denied 

petitioner’s motion. 

Petitioner now appeals the circuit court’s October 29, 2015, order denying his petition for 

contempt and dismissing his claim based on West Virginia Code § 7-3-2a with prejudice.4 Given 

that the October 29, 2015, order constitutes a decision to enforce the terms of the parties’ 

settlement agreement, we review the circuit court’s decision under an abuse of discretion standard. 

See Burdette v. Burdette Realty Improvement, Inc., 214 W.Va. 448, 452, 590 S.E.2d 641, 645 

(2003). To the extent that the circuit court interpreted the language of West Virginia Code § 

7-3-2a, our review is de novo. See Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 

S.E.2d 415 (1995). 

On appeal, petitioner first contends that respondent should be required to either fly four 

feet by six feet flags outside of the library during its meetings there or hold its meetings at the 

county courthouse. We find that petitioner is precluded from arguing that respondent must hold its 

meetings at the county courthouse because petitioner agreed in the parties’ settlement agreement 

that the library constituted “a proper and lawful meeting place within the [c]ounty seat at which to 

conduct [respondent’s] meetings.”5 

Next, petitioner contends that the circuit court incorrectly found in its October 29, 2015, 

order that the library is a separate entity with which respondent had to negotiate in order to display 

the national and state flags at that location. Petitioner argues that such a finding is inconsistent with 

the findings set forth in the June 17, 2014, voluntary dismissal order. In the voluntary dismissal 

order, the circuit court memorialized the parties’ settlement agreement and, based on that 

agreement, found that the library should be considered part of the county courthouse during 

respondent’s meetings there. 

Based on our review of the two orders, we find that the June 17, 2014, voluntary dismissal 

order is harmonious with the October 29, 2015, order because the circuit court made findings in the 

earlier order that respondent was leasing the meeting room from the library, which required 

respondent to negotiate with the library as to the manner in which respondent would display flags 

outside its meeting room. Significantly, based on those findings, the circuit court ruled that 

petitioner agreed that “the display of flags [only] during [respondents’] meetings . . . would be 

3

Respondent filed a response to petitioner’s motion on November 25, 2015. 

4

While petitioner also appeals the circuit court’s November 30, 2015, order denying his 

motion to alter or amend the October 29, 2015, order, petitioner concedes that this Court has no 

reason to independently analyze the denial of the motion to alter or amend because that denial 

constituted a reaffirmation of the October 29, 2015, order which petitioner also appealed. 

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See fn.1, supra.
 

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satisfactory” and that “the negotiation and installation” of the flags would take some time. In its 

October 29, 2015, order, the circuit court further ruled—and we concur—that there was no 

specification of flag size or requirements for flagpoles in the parties’ settlement agreement. 

Therefore, we conclude that the circuit court did not err in finding that respondent complied with 

the terms of the settlement agreement regarding the display of the national and state flags. 

With regard to West Virginia Code § 7-3-2a, petitioner contends that respondent is 

required to display four feet by six feet flags outside the library during its meetings there. 

Respondent counters that West Virginia Code § 7-3-2a permits the display of the smaller three feet 

by five feet flags at the library because the larger flags could touch the ground during their 

mounting and dismounting. We agree with respondent. 

West Virginia Code § 7-3-2a provides that (1) respondent shall display United States and 

West Virginia flags at “the [county] courthouse”;6 and (2) the flags displayed by respondent shall 

be “four feet by six feet in dimensions . . . or of other appropriate size[.]” (emphasis added). We 

find that the three feet by five feet flags displayed by respondent at the library are “of [an]other 

appropriate size” because the smaller flags can be mounted and dismounted without risk that they 

may touch the ground. Therefore, we conclude that the circuit court did not err in finding that 

respondent is in compliance with West Virginia Code § 7-3-2a. 

For the foregoing reasons, we affirm the circuit court’s October 29, 2015, order denying 

petitioner’s petition for contempt and dismissing his claim based on West Virginia Code § 7-3-2a 

with prejudice, and the court’s November 30, 2015, order denying his motion to alter or amend the 

October 29, 2015, order. 

Affirmed. 

ISSUED: November 18, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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Like the circuit court, we concur that West Virginia Code § 7-3-2a requires the display of 

the national and state flags at the library during respondents’ meetings there. With regard to the 

display of flags in front of the county courthouse, it is undisputed that national and state flags fly 

outside of that location all day, every day. 

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