SARAH E. MAGEE and MICHAEL T. MAGEE, Petitioners,

Appeal from a final order of v. The Circuit Court of Kanawha County

(13-P-327) RACING CORPORATION OF WEST VIRGINIA D/B/A MARDI GRAS CASINO & RESORT, a Michigan Corporation, DALLAS NELSON, CITY OF NITRO, NITRO POLICE DEPARTMENT, and C.A. GREENE Respondents.

PETDcrONERS'BRlEF

Counsel for Petitioners, Sarah E. Magee & Michael T. Magee Shannon M. Bland (WV Bar #5693) Bland and Bland Attorneys at Law 1550 Kanawha Boulevard East Charleston, West Virginia 25311 (304) 344-3691 sbland@bland-law.com

TAB.LE OF CONTENTS

Assignments of Error

Statem.ent of the Case 1-3

Summary ofArgument 3

Statement Regarding Oral Argument and Decision 4

Argum.ent 4-8

Conclusion 8

TABLE OF AUTHORITIES

Cases Page

Appalachian Power Co. V. State Tax Dep't of West Virginia, 15 W.va. 573, 587, 466 S.E.2d 424, 438 (1995) ............ · ............... · ........ · 4

Board of Education of McDowell County vs. Zando, Martin & Milstead. Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990)........................................................ 7

Chrystal R.M. vs. Charlie A.L. 194 W.Va. 138, 459 S.E.2d 415 (1995) .................................................... · 4

Crocket v. Ansrews. 153 W.Va. 714, 172 S.E.2d 384 (1970)..................................................... 4

Glover v. Narick 184 W.va 381, 400 S.E.2d 816 (1990)......................................................... 6

James M.B. v. Carolvn M. 193 W.va. 289, 456 S.E2d 16 (1995) ..................... · .... · ......... · ..· .... ····· ... ·... 7

Magnet Bank. F.S.B. vs. Barnette, 187 W.Va. 435, 437, 419 S.E.2d 696, 699 (1992)........................................ 7

Sheetz vs. Bowles. Rice, McDavid, Graff and Love, 209 W.Va. 318, 547 S.E.2d 256 (2001) ...................................... ,................. 7

Sizemore v. State Farm Garn Ins. Co. 202 W.Va. 591,596, 505 S.E.2d 654, 659 (1998)................................... 5

State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951)...................................................... 4

State v. Stephanie Elaine Louk January 2016 Term, Docket No.: 15-0021................................................. 4

State ex reI. One-Gateway v. Johnson. 208 W.va. 731, 542 S.E.2d 894 (2000),.................................................... 6

West Virginia Health Care Case Review Authorityv. Boone Memorial Hosp .. 196 W.Va. 326, 472 S.E.2d 411,423 (1996)............................................... 5

Wachter v. Doster 172 W.Va 93, 303 S.E2d 731 (1983)........................................................... 6

Statutes

W.V. Code § 55-2-12......................................................... , .................................. . 7,8

W.V. Code § 55-17-3 ........................................................................................... .

W.V. Code § 55-17-3(a)(2) ................................................................................. .. 1,3,5, 7,8

Rules and Regulations

Rule 19 of the West Virginia Rules of Civil Procedure...................................................... 6

Rule 19(a) of the West Virginia Rules of Civil Procedure .................................. . 6

ASSIGNMENTS OF ERROR

I. The Circuit Court erred by improperly applying the tolling provision of W.Va.

Code §SS-17-3(a)(2) to the non-governmental and private defendants in this case.

STATEMENT OF THE CASE

On December 2, 2012, Mr. & Mrs. Magee were attending Mr. Magee's company

Christmas party at the Mardi Gras Casino & Resort (hereinafter MGC&R). The Magees

were over-night guests at the resort and had, prior to the events, checked into their room

at the resort hotel. The Magees were sitting at a bar in the casino, Mrs. Magee got up to

go to the restroom and Mr. Magee escorted her and was waiting outside the restroom for

his wife.

While waiting on Mrs. Magee, Mr. Magee was approached by Dallas Nelson, a

security guard for the resort. Mr. Magee was escorted out of the casino and told by Mr.

Nelson he was being removed from the casino. The Magees told Mr. Nelson they were

guests of the hotel and were going to their room. Mr. Nelson would not allow the

Magees to return to their room, but instead contacted the Nitro Police Department.

Lieutenant C. A. Greene of the Nitro Police Department responded to the call.

Mr. Magee told Lt. Greene that he and his wife were going to their room in the hotel. Lt.

Greene would not allow the Magees to return to their room and requested Mr. Magee to

take a breath test. Mr. Magee was not driving hut was standing outside the casino where

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his office Christmas party had been held and alcohol had been served by the MGC&R.

Mr. Magee refused the breath test. Lt. Greene then threw Mr. Magee to the ground,

handcuffed him and pepper sprayed him.

Mrs. Magee objected to the treatment of her husband. She was then handcuffed,

pushed around and arrested as well. The Magees were then taken to the Nitro Police

Station in separate cruisers and searched. While at the station, Mr. Magee, while

handcuffed and unable to see from being pepper sprayed, was tased twice with an

electronic taser.

The Magees were then transferred to the South Central Regional Jail.

While at the jail, Mrs. Magee, the mother of two (2) girls (at the time) was strip­

searched and made to shower with the door open in view of other inmates and jail

personnel.

The Magees were released the next morning from the jail. The City of Nitro has

to this day NEVER held a hearing on the charges of public intoxication and obstructing

an officer that the Magees were charged with that night.

The Magees, after waiting more than eighteen (18) months for the City of Nitro to

pursue the charges, on November 21, 2014, filed their Notice of Claim pursuant to W.Va.

Code §SS-17-3for the claim of Mrs. Magee against the West Virginia Regional Jail

Authority.

After the thirty (30) day notice provision had been satisfied, the Magees filed

their Civil Complaint against the parties involved in the occurrences of the night in

question, Racing Corporation ofWest Virginia d/b/a/ Mardi Gras Casino & Resort, a

Michigan Corporation; Dallas Nelson, City of Nitro, Nitro Police Department, and C.A.

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Greene.

SUMMARY OF ARGUMENT

The statue in question, W.Va. Code §55-17-3(a)(2), reads as follows:

(2) The written notice to the chief officer of the government agency and the Attorney General required by subdivision (1) of this subsection is considered to be provided on the date of mailing of the notice by certified mail, return receipt requested. If the written notice is provided to the chief officer of the government agency as required by subdivision (1) of this subsection, any applicable statute of limitations is tolled for thirty days from the date the notice is provided and, if received by the government agency as evidenced by the return receipt of the certified mail, for thirty days from the date of the returned receipt."

As is acknowledged by Mr. Taylor, counsel for the West Virginia Regional Jail

Authority, the Notice of Claim was supplied to the State on November 24, 2014, and that

the Complaint was filed on the thirtieth (30th) day of the tolled statute, which was

timely. Therefore, the State does not join in the statute of limitations argument. (AR.

98).

There is no argument as to the facts surrounding the giving of Notice and the

filing of the Complaint as it related to the government defendant. The only argument is

the application of the statute's tolling provision to this case as it relates to the non­

government defendants.

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STATEMENT REGARDING ORAL ARGUMENT AND DECISION

Because of the issues presented in the application of the tolling provisions in the

statute to the non-government defendants, the Petitioners herein believe this case is an

appropriate case for a Rule 19 Oral Argument.

ARGUMENT

I. STATUTORY INTERPRETATION

The standard of review in matters of statutory interpr.etation is de novo. ChJ.YStal

R. M. vs. Charlie AL.. 194 W.Va. 138,459 S.E.2d 415 (1995).

In the recent case of State of West Virginia vs. Stephanie Elaine Louk, ( January

2016 Term, Docket No.: 15-0021), the Supreme Court discussed the statutory

construction as noted below:

"[w]e look first to the statute's language. IF the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed" Appalachian Power Co. V. State Tax Dep't ofWest Virginia, 15 W.Va. 573, 587,466 S.E.2d 424,438 (1995); see also Syllabus Point 2, Crocket v. Andrews, 153 W.va 714, 172 S.E.2d 384 (1970) ("Where the language of a statute is free from ambiguity, its plain meaning is to be accept and applied without resort to interpretation."); and Syllabus Pint 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) (ecA statutory provision which is clear and unambiguous and plainly expressed the legislative intent will not be interpreted by the courts but will be given full force and effect.").

Additionally, this Court has held that "[a] statute is open to construction only where the language used requires interpretation because of ambiguity which renders it susceptible of two or more constructions or of such doubtful

Page 4 of 8

or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning:' Sizemore v. State Farm Gen. Ins. Co., 202 W.Va. 591,596, 505 S.E2d 654, 659 (1998)." "As this Court recognized in West Virginia Health Care Cost Review Authority v. Boone Memorial Hasp., 196 W.va. 326, 472 S.E.2d 411 (1996), "[i]t is a fundamental principle of statutory construction that the meaning of a word cannot be determine in isolation, but it must be drawn from the context in which it is used." Id. at 338, 472 S.E2d at 423." (Emphasis added).

The portion of W.Va. Code 55-17-3(a)(2) at issue reads as follows:

"If the written notice is provided to the chief officer of the government agency as required by subdivision (1) of this subsection, any applicable statute of limitations is tolled for thirty days from the date the notice is provided ... "

There is no argument in this case that the Notice was timely provided to the Chief

Office of the Governmental Agency, so the "If' required is satisfied in this case.

The next segment of the sentence is where the issue in this case lies. "any

applicable statute oflimitations is tolled for thirty days from the date the notice is

provided." (emphasis added).

The crux of this case therefore is the definition to be applied to the word "any".

If the litigation was to only involve the governmental agency, then the question is

easily resolved; however, as in this case the answer becomes less clear when both public

or governmental entities and private non-governmental entities are joined as defendants

in litigation.

One answer to the question would be to shorten the applicable statute of

limitations to the private non-governmental defendant, but the statute does not require

that.

Page 5 of 8

Another answer to the question could be multiple fragmented filings with

separate fees and judicial assignments followed by consolidations and expenditure of

judicial time and effort for no real purpose other than to comply with the notice

provisions to the governmental defendant.

II. FRAGMENTED LITIGATION

This Court has looked upon fragmented litigation unfavorably and has through

Rule 19 of the Rules of Civil Procedure, and its prodigy of cases, suggested that litigation

arising out of the same "transaction or occurrence" should and in some Rule 19 cases

requires the joinder of all possible parties.

"Rules of Civil Procedure require two general inquiries for joiner of a person who is subject to service of process, namely, whether his presence is necessary to give complete relief to those already parties, and whether he has a claim that, ifhe is not joined, will be impaired or whether his nonjoiner will result in subjecting the existing parties to a substantial risk of multiple or inconsistent obligations, and ifthe absent person meets the foregoing test, his joinder is required. Rules of Civ. Proc., Rule 19(a), State ex reI. One-Gateway v. Johnson, 2000, 542 S.E.2d 894, 208 W.va 731; Glover v. Narick, 1990,400 S.E.2d 816, 184W.va. 381; Wachter v. Doster, 1983, 172 W.Va 93, 303 S.E.2d 731."

In this particular case, the occurrences of the evening in question and the

multiple defendants involved are all required to address the full picture and prevent

"mUltiple or inconsistent" obligations of the parties involved.

"Necessary party" is one whose interest could be so impaired or adversely affected by outcome that he or she must be

Page 6 of 8

included as plaintiff or defendant unless there is valid excuse for their nonjoinder. James M.B. v. Carolyn M., 1995, 456 S.E.2d 16,193 W.Va. 289."

This principle of not having fragmented litigation is discussed in Sheetz vs.

Bowles, Rice, McDavid, Graff and Love, 209 W.Va. 318, 547 S.E.2d 256(2001). In the

Sheetz case, the Court in discussing the issue of contribution among defendants look at

two cases, Board of Education of McDowell County vs. Zando, Martin & Milstead. Inc.,

182 W.Va. 597, 390 S.E.2d 796 (1990) and Magnet Bank ,F.S.B. vs. Barnette, 187 W.va

435, 437, 419 S.E.2d 696, 699 (1992), and says:

"Magnet Bank and Zando i11ustrate the principle that West Virginia jurisprudence favors the consideration, in a unitary trial, of aU claims regarding liability and damages arising out of the same transaction, occurrence or nucleus of operative facts, and the joinder in such trial of all parties who may be responsible for the relief that is sought in the litigation."

Thus to require fragmented litigation to satisfy the governmental notice

provisions of W.Va. Code § 55-17-3 does not seem to provide a logical answer to this

question.

The application of the plain meaning of the statutory language set forth in W.Va.

Code § 55-17-3(a)(2) that "ANY" (emphasis added) applicable statute of limitations is

tolled should therefore be given its plain meaning.

The statute of limitations "APPUCABLE" (emphasis added) to the negligence

claims against the defendants in this case is a two year statute, W.Va. Code § 55-2-12.

Therefore, the plain meaning of the statute tolling any applicable statute of

limitations should preclude the defendant's claim that the filing of this case against the

non-government defendants is barred by the applicable two year statute of limitations

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set forth in W.Va. Code § 55-2-12, as the statute should have been tolled by W.Va. Code

CONCLUSION

The Circuit Court's Order granting Defendants Racing Corporation of West

Virginia, Dallas Nelson, and City of Nitro, Nitro Police Department, and C.A. Greene's

Motion to Dismiss should be reversed, and this matter should be remanded for further

proceedings.

SARAH E. MAGEE & MICHAEL T. MAGEE, By Counsel

L~ Shannon M. Blatfd (WVSB# 5693) Bland & Bland Attorneys At Law, L.C. 1550 Kanawha Boulevard East Charleston, WV 25311 (304) 344-3691 sbland@bland-Iaw.com

Page 8 of 8

CERTIFICATE OF SERVICE

I hereby certify that on this ~ day of April, 2017, true and accurate copies of

the foregoing PETITIONERS' BRIEF was deposited with the U.S. Mail contained in

postage-paid envelope addressed to counsel for all other parties to this appeal as

follows:

David J. Mincer, Esquire Bailey &Wyant, PLLC PO Box 3710 Charleston, WV 25337 Counsel for Respondent West Virginia Regional Jail Authority

Maryl C. Sattler, Esquire Bailey & Glasser, LLP 209 Capitol Street Charleston; WV 25301 Counselfor Respondents Racing Corporation ofWest Virginia d/b/a Mardi Gras Casino & Resort and Dallas Nelson

James A Muldoon, Esquire Pullen, Fowler, Flanagan, Brown & Poe 901 Quarrier Street Charleston, WV 25301 Counsel for Respondents City ofNitro, City ofNitro Police Department & CA. Greene

S~5693)Counsel of Record for Petitioners