655 S.E.2d 528
The majority opinion reverses the lower court's grants of summary judgments.
The reversal is based on the majority's assertion that genuine issues of material fact exist
such that the case should have been submitted to the jury for decision. I disagree with the
majority's contention that any genuine issues of material fact exist; therefore, I respectfully
dissent.
The circuit court's decisions were consistent with the standard for granting
summary judgment. That is, “[a] motion for summary judgment should be granted only when
it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is
not desirable to clarify the application of the law.” Syl. pt. 1, Tiernan v. Charleston Area
Med. Ctr., Inc., 203 W. Va. 135, 506 S.E.2d 578 (1998) (quotations and citation omitted).
“The question to be decided on a motion for summary judgment is whether there is a genuine
issue of fact and not how that issue should be determined.” Syl. pt. 5, Aetna Cas. & Sur. Co.
v. Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). We have
previously explained that
[s]ummary judgment is appropriate if, from the totality of
the evidence presented, the record 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 that it has the burden to prove.
Syl. pt. 2, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995). Finally,
in Syllabus point 5 of Jividen v. Law, 194 W. Va. 705, 461 S.E.2d 451 (1995), we explained
the meaning of “genuine issue” as follows:
Roughly stated, a “genuine issue” for purposes of West
Virginia Rule of Civil Procedure 56(c) is simply one half of a
trialworthy issue, and a genuine issue does not arise unless there
is sufficient evidence favoring the non-moving party for a
reasonable jury to return a verdict for that party. The opposing
half of a trialworthy issue is present where the non-moving party
can point to one or more disputed “material” facts. A material
fact is one that has the capacity to sway the outcome of the
litigation under the applicable law.
Officer Barnes issued a citation to Mr. Kelley for violating ABCC regulations. (See footnote 1)
Pursuant to the ABCC regulations, it is undisputed that all persons, including patrons and
employees, must be cleared from the club by 3:30 a.m. on Sunday mornings. In discussing
the summary judgment granted in Mr. Kelley's case, the majority opinion states as follows:
With regard to Mr. Kelley, and viewing the evidence in
a light most favorable to the Appellants, a jury could find that
Officer Barnes had improper motives underlying his decision to
arrive at Colie's Club at approximately the time it should have
been vacated and in writing a citation to Mr. Kelley. A jury
could also conclude that Officer Barnes used excessive force in
dealing with an alleged violation of ABCC regulations or that
the detention of Mr. Kelley and the citations against him were
unlawful based upon the conflicting evidence regarding the
precise time at which Officer Barnes observed Mr. Kelley in
Colie's Club. These factual discrepancies and conflicts in
testimony create genuine issues of material fact ripe for jury
resolution.
See Majority opinion, pp. 13-14.
Based on my own review of the record, I simply cannot agree with the factual
interpretations held by the majority. At the forefront of my decision, I must note that
nowhere in the applicable regulations does it include a discretionary standard. The majority
opinion implies that an officer has discretion in finding an ABCC violation when stating that
“a jury could find that Officer Barnes had improper motives underlying his decision to arrive
at Colie's Club at approximately the time it should have been vacated and in writing a
citation to Mr. Kelley.” See Majority opinion, id. In contrast, my reading of the applicable
regulations is very simple: if anyone, whether patron or employee, is inside a private club
after 3:30 a.m. on a Sunday morning, there is an ABCC violation. If a person violates the
time limitations, that is an infraction of the regulation. I fail to understand how an officer
who enforces a regulation with strict time components can possibly have an “improper
motive” such that would warrant relieving the offender of any obligation. While I recognize
that the record indicates that there is a negatively charged personal history between Officer
Barnes and Mr. Kelley, there is nothing on the record to indicate that the officer induced or
assisted Mr. Kelley in violating the regulation. Thus, when Mr. Kelley violated a strict
regulation, he should have been held accountable, no matter who issued the citation or what
their personal past relationship entailed.
As illustrated by the majority opinion, the crux of this determination is the time
at which Mr. Kelley was found inside his bar. If it was before 3:30 a.m., there is no
regulatory infraction. If it was after 3:30 a.m., he violated the ABCC regulations and is
subjected to criminal penalty. The majority turns its decision on its perception that genuine
issues of material fact exist as to what time Mr. Kelley was found inside the bar. While I
agree that the time when Mr. Kelley was found in the bar is dispositive, one party's dislike
of a particular fact is not sufficient to deem it a genuine issue of material fact such that
summary judgment should be defeated.
The underlying record reveals that there is no true question as to what time Mr.
Kelley was inside his bar, and further, that it was after 3:30 a.m. on a Sunday morning in
violation of ABCC regulations. Even the deposition testimony of Mr. Kelley alleviates any
question as to whether he was inside his bar after 3:30 a.m. During the deposition, the
following exchange occurred regarding Mr. Kelley's return to his bar after realizing he left
a cash bag on the premises:
Q. Okay. So all these guys ride back with you over to
Colie's again?
A. Yeah
Q. What time do you think you got back to Colie's?
A. Probably around 3:30 maybe.
. . . .
Q. And you went inside to go get the money bag?
A. Yeah, and I made the rest of the guys come in with me
because I still had the money bag with quarters in my
vehicle.
In fact, when Officer Barnes approached the bar entrance and had one of the patrons get Mr.
Kelley, Mr. Kelley never objected to the citation on the grounds that it was prior to 3:30 a.m.
Mr. Kelley's objection to the citation was that he never turned on the lights while there and
that he did not serve any drinks after 3:30 a.m. However, under the regulation, the only
relevant factor is that people were present in the club after 3:30 a.m.
The majority opinion states that the timeframe is in question based on the
citation, criminal complaint, and Mrs. Kelley's testimony; however, the record does not
support this assertion. The citation states that the offense occurred at 4:30 a.m., and the
criminal complaint states that it occurred “after the hour of 4:00 a.m.” Both times are
consistent with a regulatory infraction because they are after 3:30 a.m. on a Sunday morning.
Further, during her deposition, Mrs. Kelley was questioned regarding the time that she
learned her son, Mr. Kelley, was receiving a citation. In doing so, the following exchange
happened:
Q. What time was it when he called?
A. Gosh, I don't remember. Approximately, probably
around 4:00. It might have been later than that. I don't
know.
This Court has previously stated that the non-moving party must, at a minimum, offer more
than a “scintilla of evidence” to support his or her claim. Williams, 194 W. Va. at 60, 459
S.E.2d at 337. Further,
[t]he opposing half of a trialworthy issue is present where
the non-moving party can point to one or more disputed
“material” facts. Williams, 194 W. Va. at 60-61, 459 S.E.2d at
337-38. A material fact is one “that has the capacity to sway the
outcome of the litigation under the applicable law.” Id. at 60
[n.13], 459 S.E.2d at 337 n.13. As stated in Anderson, “[f]actual
disputes that are irrelevant or unnecessary will not be counted.” Anderson [v. Liberty Lobby, Inc.], 477 U.S. [242,] 248, 106
S. Ct. [2505,] 2510[, 91 L. Ed. 2d 202 (1986)].
Jividen, 194 W. Va. at 714, 461 S.E.2d at 460. There is no evidence, other than the
appellants' hopeful wishes, that it was before 3:30 a.m. when Officer Barnes found Mr.
Kelley, along with several other people, in the club. Thus, the circuit court's grant of
summary judgment was proper in relation to Mr. Kelley.
In regards to the arrest of Mrs. Kelley, the majority opines as follows:
A jury could conclude that Officer Barnes did not have
a legitimate basis for arresting Mrs. Kelley for her behavior at
the police station. The jury could possibly find that Officer
Barnes' involvement in the charges of willful disruption of a
governmental process and disorderly conduct were in bad faith
or with malicious purpose. The evidence, when viewed in a
light most favorable to Mrs. Kelley, would support a jury
finding that she was simply a concerned mother going to the
police station where her son was being processed for violation
of an ABCC regulation.
See Majority opinion, p. 13. First and foremost, this reasoning is fatally flawed for one basic
reason: Officer Barnes did not arrest Mrs. Kelley. A senior officer, Officer Hall, was the
officer who arrested and placed handcuffs on Mrs. Kelley. However, neither Mrs. Kelley nor
Mr. Kelley filed any causes of action against the actual arresting officer.
Moreover, the record is replete with the kind of behavior Mrs. Kelley exhibited
at the police station. The deposition testimony of Officer Barnes and Officer Hall indicates
that Mrs. Kelley arrived at the station and began yelling and using profanity and racially
derogatory comments to Officer Barnes. In fact, her behavior was loud enough for Officer
Hall to hear it from a back room. It prompted Officer Hall to come out of the back room and
tell her that she needed to calm down. He testified that “Frieda came in the police station.
She was cussing, going on; coming in calling [Officer Barnes] n*gg**s and said, 'I'll have
your f-ing job. You'll be on the back of a trash truck before this week is out.'” She was
repeatedly told to leave or she would be arrested. Her own testimony reveals that she was
told to leave or she would be arrested, even though she indicated her disagreement with the
correctness of that action as she felt she “had as much right there as anybody else.” Mrs.
Kelley's husband had accompanied her to the police station and even he attempted to calm
her down and get her to leave, but she refused. Thus, based on her behavior and the fact she
was warned to leave or be arrested, her arrest was lawful. (See footnote 2) The circuit court's grant of
summary judgment was correct in relation to Mrs. Kelley.
The circuit court weighed all of the evidence and decided that there was no
genuine issue of material fact regarding what time Officer Barnes found Mr. Kelley inside
his bar, along with other people, in violation of the ABCC regulations. A de novo review of
the record leads me to the same conclusion. While the appellants desperately wish that the
time involved was before 3:30 a.m., there is absolutely no evidence in the record to support
their contentions, including their own deposition testimony. Because the citation was proper,
the grant of summary judgment regarding Mr. Kelley should have been affirmed by this
Court. (See footnote 3) Likewise, regarding Mrs. Kelley, Officer Barnes was not the arresting officer and,
even if he had been, the arrest was lawful. Therefore, the grant of summary judgment
regarding Mrs. Kelley should have been affirmed by this Court.
For the reasons stated, I dissent. I am authorized to state that Justice Benjamin
joins me in this dissenting opinion.