### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

Dorothy Manning, 

### FILED Melinda Bailey and Taylor Bailey, by her next friend 

### October 12, 2018 and guardian/natural mother, Melinda Bailey, EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS Plaintiffs Below, Petitioners
OF WEST VIRGINIA
vs.) No. 17-0798 (Mercer County 14-C-406)

Don Meadows, individually and in his Capacity as the Sheriff of Mercer County, and The Mercer County Commission, Defendants Below, Respondents



### MEMORANDUM DECISION

Petitioners Dorothy Manning, Melinda Bailey, and Ta ylor Bailey, by her next friend and guardian/natural mother, Melinda Bailey, by counsel Anthony M. Salvatore, appeal the Circuit Court of Mercer County’s August 18, 2017, orde r granting respondents’ motion for summary judgment. Respondents Don Meadows, individually and in his capacity as the Sheriff of Mercer County, and the Mercer County Commission, by couns el James C. Stebbins and Spencer D. Elliott, filed a response. On appeal, petitioners argue that the circuit court erred in granting respondents’ motion for summary judgment.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21
of the Rules of A ppellate Procedure.

On March 18, 2014, petitioners attended a magist rate court hearing at the Mercer County Courthouse. The hearing involved a dispute between petitioner Ta ylor Bailey and another high
school student. Petitioners alle ged that following the hearing, Sheriff Meadows became irate, screaming and yelling at them in a violent a nd threatening manner. Sheriff Meadows admitted
that he issued a verbal warni ng to petitioners, but denied screaming or yelling in a threatening manner. Following the incident, petitioners f iled a complaint against respondents alleging intentional infliction of emotional distress. In regard to damages, petitioners claimed that they
suffered from severe emotional distress and anxi ety as a result of the incident with Sheriff
Meadows.

1Thereafter, respondents filed a motion for su mmary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure. Res pondents argued that Sheriff Meadows’s alleged
conduct did not rise to the level re quired to prove the tort of intentional infliction of emotional distress. Respondents requested that the circuit court grant summary judgment if the circuit court found no genuine issues of material fact. Petit ioners filed a response in opposition arguing that there were genuine issues for trial and that the actions of Sheriff Meadows caused them to suffer severe emotional distress and anxiety.

During the August 16, 2017, hearing on responde nts’ motion for summary judgment, the circuit court found that petitioners did not meet the elements of intentional infliction of emotional distress necessary to recover damages. In its order granting summary judgment, the circuit court explained that

[f]irst, as a matter of law, the conduct reported by [petitioners] was not so extreme and outrageous that it would go beyond al l possible bounds of d ecency. This is an absolute requirement for the first element of the tort of [intentional infliction of emotional distress] to be met. This [c]our t, as gatekeeper for frivolous claims, has a duty to dismiss an action when as a matter of law the conduct complained of is not outrageous; rather, it was only an in cident where someone was inconsiderate and unkind. As the West Virginia Supr eme Court has explained, society is expected to be hardened to a certain amount of rough language and it is certainly not this [c]ourt’s duty to intervene ev ery time someone’s feelings are hurt.

The circuit court further noted in its order that peti tioners had not been diagnosed with posttraumatic stress disorder, nor had they incurred a ny medical expenses as a result of the incident with Sheriff Meadows. In their complaint, pet itioners did not allege any physical threats by Sheriff Meadows or any physical injury. While Taylor Bailey stated that she experienced one episode of sleep paralysis, nightmares, a fear of being pulled over by a po lice officer, and high blood pressure, she was on high blood pressure medi cation prior to the in cident and failed to seek any medical treatment as a result of this incident. Additionally, Melinda Bailey complained of high blood pressure, sleep-loss, nightmares, a nd diagnosed herself with post-traumatic stress disorder. However, she admitted that she was previously prescribed Xanax and Lexapro before the incident occurred, and also admitted that she did not go to a psychologist or psychiatrist following the incident. Lastly, Dorothy Manning cl aimed to have post-traumatic stress disorder and complained of nightmares, hair loss, diab etes, and high blood pressure, but admitted to taking three Xanaxes a day prior to the incident and further admitted that none of her medication changed following the incide nt with Sheriff Meadows.

The circuit court also noted that in pet itioners’ response to the motion for summary judgment, “there was merely a bare recitation of th e facts with the depositions included. There was no argument or evidence presented that would lead this [c]ourt to be lieve this claim should not be dismissed.” Ultimately, the circuit court found that there were no material factual issues in dispute which could lead a reas onable jury to find respondents liable. Accordingly, respondents’ motion for summary judgment was granted and the case was dismissed. It is from the circuit court’s August 18, 2017, order granting summ ary judgment that petitioners appeal.

2Our standards of review for cases concerni ng summary judgment are well settled. “A circuit court’s entry of summ ary judgment is reviewed de novo .” Syl. Pt. 1, Painter v. Peavy , 192 W.Va. 189, 451 S.E.2d 755 (1994). In conducti ng our de novo review, we apply the same standard for granting summary judgment that is a pplied by the circuit court. Under that standard,

“‘[a] motion for summary judgment shoul d be granted only when it is clear that there is no genui ne issue of fact to be tr ied and inquiry concerning the facts is not desirable to clarify the application of the law.’ Syllabus Point 3, Aetna Casualty & Surety Co. v. Fede ral Insurance Co. of New York , 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syllabus Point 1, Andrick v. Town of Buckhannon , 187 W.Va. 706, 421 S.E.2d 247 (1992).

Painter , 192 W.Va. at 190, 451 S.E.2d at 756, Syl. Pt. 2. In other words,

[s]ummary judgment is appropriate where the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an
essential element of the case th at it has the burden to prove.

Id. at 190, 451 S.E.2d at 756, Syl. Pt. 4. We have held that “[t]he circuit court’s function at the summary judgment stage is not to weigh the evid ence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial.” Id. at 190, 451 S.E.2d at 756, Syl. Pt.
3.

On appeal, petitioners argue that the circuit court erred in granting summary judgment in favor of respondents. Petitioners acknowledge that, pursuant to Rule 56(e) of the West Virginia Rules of Civil Procedure, the party responding to a motion for summary judgment “must set forth specific facts showing that there is a genuine issue for trial.” However, the circuit court noted that in their response to the motion for summary judgment, petitioners failed to provide an “argument or evidence . . . that would lead th[e ] [c]ourt to believe th is claim should not be dismissed.” Further, while petitioners argue on app eal that “depositions made the record replete with evidence from which a jury could have concl uded in [petitioners’] favor,” petitioners fail to cite to this evidence or explai n to what evidence they are refe rring. Moreover, the record is devoid of any issues of material fact raised by petitioners that would need to be brought to trial. Therefore, the circuit court determ ined that there were no material issues for trial, and we agree.

Next, petitioners argue that the circuit c ourt erred in granting summary judgment in regard to their claim of intentional infliction of emotional distress because a jury may have “concluded in [petitioners’] fa vor.” However, as discussed a bove, the circuit court correctly
concluded that there were no issues for tr ial. Nevertheless, we have held that

[i]n order for a plaintiff to prevail on a claim for intentional or reckless infliction of emotional distress, four elem ents must be established. It must be shown: (1) that the defendant’s conduct wa s atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency; (2) that the defendant acted
with the intent to inflict em otional distress, or acted r ecklessly when it was certain

3or substantially certain emotional distress would result from his conduct; (3) that
the actions of the defendant caused the plaintiff to suffe r emotional distress; and, (4) that the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.

Syl. Pt. 3, Travis v. Alcon Labs., Inc. , 202 W.Va. 369, 504 S.E.2d 419 (1998). Further, we have
also held that

[i]n evaluating a defendant’s conduc t in an intentional or reckless infliction of emotional distress claim, the role of the trial court is to first determine whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to constitute the intentional or reckless infliction of emotional distress. Whether conduct may r easonably be considered outrageous is a legal question, and whether conduct is in fact outrageous is a question for jury
determination.

Id . at 371, 504 S.E.2d at 421, Syl. Pt. 4. Whether Sher iff Meadows’s conduct may reasonably be considered outrageous was a question of law for the circuit court to decide. Petitioners failed to provide sufficient evidence to show that Sheriff Meadows’s conduct was extreme and outrageous. While it is undisputed that words were exchanged between Sheriff Meadows and petitioners, we have held that

[l]iability [for intentional infliction of emotional distress] has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in
which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

Id . at 375, 504 S.E.2d at 425. We have also held that “plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occa sional acts that are definitely inconsiderate and unkind. There is no o ccasion for the law to intervene in every case where some one’s feelings are hurt.” Tanner v. Rite Aid of W.Va., Inc ., 194 W.Va. 643, 651, 461 S.E.2d 149, 157 (1995) (citations omitted). Based upon the evidence in the record regarding Sheriff Meadows’s conduct, it is clear that his ac tions may not reasonably be considered to be outrageous.

Petitioners were also required to prove that they suffered severe and unendurable
emotional distress as a result of Sheriff Meadows’s conduct. Travis , 202 W.Va. at 371, 504 S.E.2d at 421, Syl. Pt. 4. While petitioners complain ed of severe emotional distress, anxiety, high blood pressure, and other issues as a result of th e incident, petitioners admitted that they did not seek any medical attention following the exch ange with Sheriff Meadows. Furthermore, evidence indicated that petitioners were prescrib ed medications for issues such as anxiety and high blood pressure prior to the incident and th at their medications did not change after the incident. Petitioners presented no evidence below or on appeal to demonstrate that they were entitled to relief for a claim of intentional infliction of emotional distress. Therefore, we find no
error in the circuit court’s d ecision to grant summary judgment in favor of respondents.

4For the foregoing reasons, we find no error in the decision of the circuit court, and its August 18, 2017, order is hereby affirmed.

Affirmed.

ISSUED : October 12, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sit ting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II, suspended and therefore not participating

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