Stephen U. v. Caren J. and Charleston Area Medical Center Health System, Inc.; and Stephen U., individually and on behalf of minor children Z.U. and L.U. v. Charleston Area Medical Center Health System, Inc., and Caren J.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

STEPHEN U.,
Plaintiff Below, Petitioner

v.) No. 25-ICA-56 (Cir. Ct. of Kanawha Cnty. Case No. CC-20-2020-C-783)

CAREN J. and
CHARLESTON AREA MEDICAL CENTER HEALTH SYSTEM, INC.,
Defendants Below, Respondents FILED
August 29, 2025
and ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
STEPHEN U., individually and on behalf OF WEST VIRGINIA

of his minor children, Z.U. and L.U.,
Plaintiffs Below, Petitioners

v.) No. 25-ICA-57 (Cir. Ct. of Kanawha Cnty. Case No. CC-20-2018-C-1356)

CHARLESTON AREA MEDICAL CENTER HEALTH SYSTEM, INC.,
Defendant/Third-Party Plaintiff Below, Respondent

and

CAREN J.,
Third-Party Defendant Below, Respondent

MEMORANDUM DECISION

In this consolidated appeal from the Circuit Court of Kanawha County, Petitioner
Stephen U.1 appeals multiple orders. In Case Number 25-ICA-57, petitioner appeals two
orders. The first is the March 4, 2022, order granting summary judgment in favor of
Respondent Charleston Area Medical Center Health System, Inc. (“CAMC”). The second
is the January 31, 2025, order denying petitioner’s motion to alter or amend the summary
judgment ruling pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure. In

1
Consistent with the Supreme Court of Appeals of West Virginia’s long-standing
practice in cases with sensitive facts, we use initials where necessary to protect the
identities of those involved in this case. See In re K.H., 235 W. Va. 254, 773 S.E.2d 20
(2015); Melinda H. v. William R., II, 230 W. Va. 731, 742 S.E.2d 419 (2013); State v.
Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
1
Case Number 25-ICA-56, petitioner challenges the January 31, 2025, order dismissing
petitioner’s separate complaint against Respondent Caren J. and CAMC pursuant to Rule
41(b) of the West Virginia Rules of Civil Procedure. CAMC filed separate responses in
each case.2 Caren J. did not participate in either appeal. Petitioner filed a reply in both
cases.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the circuit court’s orders is appropriate
under Rule 21 of the Rules of Appellate Procedure.

From the outset, we note that this appeal is yet another attempt by petitioner to divest
Caren J. of her status as mother of petitioner’s children based on the unrelenting assertion
that petitioner is the biological mother of the children, and that Caren J. is merely a
gestational surrogate who was improperly designated as the children’s mother on their birth
certificates pursuant to West Virginia Code § 16-5-10(e) (2006).3 Because the history of
the parties and their children has been thoroughly addressed in prior decisions of the
Supreme Court of Appeals of West Virginia (“SCAWV”), a recitation of the facts is
unnecessary.

These matters were first addressed by the SCAWV in S.U. v. C.J. (“S.U. I”), No.
18-0566, 2019 WL 5692550 (W. Va. Nov. 4, 2019) (memorandum decision) wherein the
SCAWV affirmed the Family Court of Mason County’s determination that the purported
gestational surrogacy agreement was unenforceable, Caren J. is the legal mother of the
children, and it was in the children’s best interest to remain in her primary custody. Id. at
*5. In S.U. I, the SCAWV also specifically found: “Our review of the record uncovers no
error. . . . Succinctly stated, [petitioner] failed to submit competent evidence to overcome
the presumption set forth in West Virginia Code § 16-5-10(e) that ‘the woman who gives
birth to the child is presumed to be the mother[.]’” Id. at *4.

2
In both appeals, petitioner is self-represented. CAMC is represented by Rita
Massie Biser, Esq., Moore & Biser, PLLC.
3
West Virginia Code § 16-5-10(e) states: “For the purposes of birth registration, the
woman who gives birth to the child is presumed to be the mother, unless otherwise
specifically provided by state law or determined by a court of competent jurisdiction prior
to the filing of the certificate of birth.” Further, we note that although this provision was
not substantively affected by the recent amendments to West Virginia Code § 16-5-10
(2024), we refer to the former version of the statute because it was in effect at the time the
birth certificates were issued.

2
Since S.U. I, petitioner has relitigated those issues in subsequent litigation and
appeals. However, those attempts have been soundly rejected by the SCAWV, often on res
judicata grounds. See S.U. v. C.J. (“S.U. II”), No. 19-1181, 2021 WL 365824 (W. Va. Feb.
2, 2021) (memorandum decision); In re Adoption of E.U., L.U.-1, and L.U.-2 (“Adoption
I”), No. 20-0039, 2021 WL 4935772 (W. Va. Oct. 13, 2021) (memorandum decision); In
re The Children of: S.U. v. C.J. (“S.U. III”), Nos. 20-0515, 20-0516, 20-0612, and 20-0710,
2021 WL 4936476 (W. Va. Oct. 13, 2021) (memorandum decision); In re Adoption of E.U.,
L.U.-1, and L.U.-2 (“Adoption II”), No. 21-0165, 2022 WL 293352 (W. Va. Feb. 1, 2022)
(memorandum decision); In re S.U. (“S.U. IV”), No. 21-0258, 2022 WL 1556113 (W. Va.
May 17, 2022) (memorandum decision); see also S.U. v. Cent. Atl. Legal Grp., No. 20-
1006, 2022 WL 293551 (W. Va. Feb. 1, 2022) (memorandum decision) (affirming circuit
court’s determination that petitioner is a vexatious litigant based upon petitioner’s repeated
attempts to relitigate issues involving C.J. and the children, including suing the law firm
representing C.J. and raising the same arguments regarding surrogacy and the birth
certificates); S.U. v. C.J. (“S.U. V”), No. 21-0322, 2022 WL 3905107 (W. Va. Aug. 30,
2022) (memorandum decision) (affirming the lower court’s imposition of prefiling
injunction against petitioner); S.U. v. Cent. Atl. Legal Grp., No. 22-0441, 2023 WL
6862166 (W. Va. Oct. 18, 2023) (memorandum decision) (affirming circuit court’s
imposition of attorney’s fees and costs against petitioner based upon vexatious conduct).
Moreover, petitioner was recently unsuccessful in multiple attempts to raise the same issues
before this Court. See Stephen U. v. State, No. 24-ICA-326, 2025 WL 1249486 (W. Va.
Ct. App. Apr. 29, 2025) (memorandum decision) (concluding that petitioner’s claims were
barred by the doctrine of res judicata); Stephen U. v. Caren J., No. 24-ICA-506, 2025 WL
1604142 (W. Va. Ct. App. June 6, 2025) (memorandum decision) (affirming the circuit
court’s dismissal of petitioner’s complaint on res judicata and collateral estoppel grounds).

In its rulings on petitioner’s subsequent appeals, the SCAWV has reiterated two
important rulings from S.U. I: “The first is that there was never a valid, enforceable
gestational surrogacy agreement between petitioner and respondent . . . The second is that
respondent is the legal mother of all four children.” S.U. III, 2021 WL 4936476, at *1
(citations and quotations omitted); Adoption II, 2022 WL 293352, at *1 (citations and
quotations omitted); S.U. V, 2022 WL 3905107, at *1 (citations and quotations omitted);
see also S.U. IV, 2022 WL 1556113, at * 1 (“Further, we have stressed that respondent ‘is
the legal mother of all four children.’”) (citations omitted).

With this backdrop in mind, we turn to the present appeal.

The 2018 Case (25-ICA-57)

On October 28, 2016, Caren J. gave birth to twins, Z.U. and L.U. at CAMC. In
accordance with West Virginia Code § 16-5-10 (2006), CAMC submitted a “Mother’s
Worksheet for Child’s Birth Certificate” for each child to the vital statistics section in the
Bureau for Public Health for issuance of the children’s birth certificates (“Worksheets”).

3
The Worksheets identified Caren J. as the children’s mother and petitioner as the children’s
father. The children’s birth certificates were issued with these designations.

On October 25, 2018, petitioner sued CAMC in circuit court based upon events
surrounding the children’s birth and CAMC’s submission of the Worksheets for the
issuance of the children’s birth certificates. Factually, the complaint alleged that pursuant
to a surrogacy agreement, Caren J. was only a gestational surrogate, petitioner was the
biological mother of the children, and petitioner would assume custody of the children after
their births. It was alleged that prior to the birth of the children, petitioner provided CAMC
with a copy of the documents, along with additional documentation, which petitioner
claimed established Caren J.’s status as a surrogate and petitioner’s status as the biological
mother.

Petitioner’s complaint asserted six causes of action against CAMC. It alleged the
tort of intentional infliction of emotional distress (“IIED”), based upon CAMC allegedly
depriving petitioner of custody of the children and placing them with a biological stranger.
A claim was asserted that CAMC had interfered with petitioner’s and Caren J.’s existing
surrogacy contract, and that the resulting interference had deprived petitioner of custody
of the children. Petitioner also asserted a claim for interference with custody, alleging that
despite having prior knowledge of Caren J.’s status as a gestational surrogate and the
surrogacy contract, CAMC prevented petitioner from taking custody of the children. Each
of these three causes of action was accompanied by separate claims for punitive damages.

On September 27, 2019, CAMC filed a third-party complaint naming Caren J. as a
third-party defendant. The third-party complaint alleged fraudulent misrepresentation,
negligent misrepresentation, and implied indemnification. CAMC also requested an
assessment of comparative fault pursuant to West Virginia Code § 55-7-13a (2015). On
June 27, 2019, the circuit court entered a scheduling order setting forth deadlines for the
parties regarding certain aspects of the litigation such as discovery, filing and responding
to pretrial motions, and filing pretrial memoranda. The scheduling order also set a pretrial
conference hearing for September 29, 2020.

On January 14, 2020, petitioner filed a motion to stay the case, claiming the inability
to comply with the deadlines of the scheduling order because S.U. I was pending before
the SCAWV, and that the case might also be reviewed by the United States Supreme Court.
Petitioner filed an identical second motion on September 8, 2020.

CAMC filed a response in opposition to the second motion on September 22, 2020.
The response noted that at the time petitioner filed that motion, there was no case pending
before the SCAWV because it had issued its decision in S.U. I on November 4, 2019, and
there was no evidence that a petition for writ of certiorari had been filed, let alone accepted
by the United States Supreme Court. CAMC further contended that because S.U. I
determined that there was no enforceable surrogacy or custody agreement between

4
petitioner and Caren J., and that she was legal mother of the children, those determinations
were dispositive of the claims raised in petitioner’s complaint.

On this same day, CAMC filed its motion for summary judgment, which argued,
among other things, that S.U. I was dispositive of petitioner’s claims in this case. CAMC’s
pretrial memorandum was filed on September 28, 2020. Petitioner did not file a response
to CAMC’s motion for summary judgment, nor did petitioner file a pretrial memorandum.

On September 29, 2020, the day of the pretrial hearing, petitioner filed a “Notice of
Active Litigation and Motion for Abeyance of Proceedings.” In this pleading, petitioner
contended that CAMC’s actions were negligent and felonious, resulting in significant
damages. It was also asserted that weeks prior, petitioner had filed a second civil action
against CAMC and Caren J. (25-ICA-56). It was stated that this second action was based
upon the same series of events and raised causes of action which paralleled the present
case, and that the matter was pending before the same court. Petitioner posited that the
cases should be consolidated as no scheduling order had been entered in the newest case.
The court held the pretrial conference as scheduled. According to the parties’ briefs, the
circuit court orally granted CAMC’s motion for summary judgment at that hearing.

Eventually, the court’s ruling was memorialized in a summary judgment order
entered on March 4, 2022. The summary judgment order made several findings of fact and
conclusions of law. With respect to this appeal, the circuit court’s most significant finding
was its determination that the SCAWV’s decision in S.U. I collaterally estopped petitioner
from pursuing the claims in the underlying complaint. To that end, the circuit court noted
that S.U. I determined that the purported custody agreement is invalid and unenforceable,
petitioner had failed to rebut the presumption of maternity pursuant to West Virginia Code
§16-5-10(e), Caren J. is the legal mother of the children, she is properly designated as their
mother on the birth certificates, and was designated as the children’s primary residential
and custodial parent. The circuit court also found that since S.U. I, petitioner has filed
numerous lawsuits against Caren J. and others, which presiding courts have rejected
because those cases all sought to relitigate the matters decided by S.U. I. Significantly, the
court found that petitioner’s complaint against CAMC was another attempt to collaterally
attack S.U. I because the claims were dependent upon the surrogacy agreement being valid
and enforceable.

Additionally, the circuit court concluded that petitioner had failed to establish the
existence of any duty owed by CAMC, and the evidence showed that CAMC complied
with the statutory requirements of West Virginia Code § 16-5-10. The court also found that
petitioner’s IIED claim could not survive summary judgment because petitioner could not
satisfy each element of the tort. See Syl. Pts. 3 and 4, Travis v. Alcon Lab’ys, Inc., 202 W.
Va. 369, 504 S.E.2d 419 (1998). Petitioner could not seek both compensatory and punitive
damages for the IIED claim because petitioner failed to allege or make a requisite showing
of physical trauma, or provide medical or psychiatric proof of emotional or mental trauma

5
as a result of CAMC’s alleged conduct. Syl. Pt. 14, in part, Tudor v. Charleston Area Med.
Ctr., Inc., 203 W. Va. 111, 506 S.E.2d 554 (1997). Moreover, the circuit court determined
that petitioner’s remaining causes of action for punitive damages failed because state law
does not recognize independent causes of action for punitive damages.

Following entry of the summary judgment order, petitioner timely filed a motion to
alter or amend the judgment on March 14, 2022. See W. Va. R. Civ. P. 59(e). In the motion,
petitioner claimed that the court’s ruling was contrary to law as the evidence shows Caren
J. was a gestational surrogate and that petitioner was deprived of the constitutional right to
custody of the children as their biological parent; petitioner was denied due process because
the court never ruled upon petitioner’s motions for a stay or abeyance of the proceedings;
and that petitioner was further denied due process because CAMC’s motion for summary
judgment was not filed at least ten days prior to the September 29, 2020, pretrial hearing.
Petitioner also claimed that the circuit court impermissibly converted the pretrial hearing
to a hearing on the motion for summary judgment.

After filing the motion, neither the parties, nor the court took any action for nearly
three years until petitioner filed a renewed motion on January 14, 2025. Thereafter, the
circuit court entered an order on January 31, 2025, which reaffirmed its summary judgment
ruling and denied the motion.

The 2020 Case (25-ICA-56)

On September 10, 2020, petitioner filed a new complaint against Caren J. and
CAMC in the same circuit court. The complaint acknowledged the pendency and nature of
the 2018 case, and alleged facts that mirrored those alleged in the other case. The complaint
alleged that Caren J. and CAMC committed acts of fraud, negligence, and the IIED. The
complaint also sought a declaratory judgment that the children’s Worksheets contained
information that Caren J. and CAMC knew to be false. In other words, petitioner sought
the removal of Caren J. as the children’s mother on the birth certificates.

On October 15, 2020, CAMC filed a motion to dismiss, alleging that the summary
judgment order entered in the 2018 case, as well as prior decisions by SCAWV in S.U. I
and its progeny precluded the 2020 complaint. No action was taken by the circuit court on
the motion to dismiss and the case went dormant.

On September 17, 2024, the circuit court entered its notice of intent to dismiss the
case for inactivity pursuant to Rule 41(b) of the West Virginia Rules of Civil Procedure.4

4
At the time the circuit court issued its notice of intent to dismiss, the court’s
proceedings were governed by the version of Rule 41 adopted by the Supreme Court of
Appeals of West Virginia in 1998. While Rule 41 was amended by the Court, effective
January 1, 2025, no changes were made that affect this appeal.
6
On September 23, 2024, petitioner filed a response objecting to dismissal. The response
alleged that this case contained different causes of actions from the 2018 case, and that the
causes of action in this case were not discovered until after the first case was filed and
pending. Petitioner contended that at the 2018 case’s pretrial hearing on September 29,
2020, the court indicated that it was going to grant summary judgment in the 2018 case and
dismiss the 2020 case. However, when the written order was entered on March 4, 2022, it
made no mention of the 2020 case, and the 2020 case had no scheduling order. Petitioner
further contended that the inactivity in this case was due to waiting on the summary
judgment order in the 2018 case. Petitioner requested entry of a scheduling order and for
the case to be decided on the merits.

Subsequently, the parties filed other motions in the case; however by order entered
January 3, 2025, the court stayed consideration of all those motions and further proceedings
until the Rule 41(b) matter had been ruled upon.

On January 31, 2025, the circuit court entered its order dismissing the action
pursuant to Rule 41(b). The order noted the court’s consideration of the record and
petitioner’s filed objection before finding that petitioner had failed to establish good cause
for delaying the prosecution of the case for nearly four years. The court also denied the
stayed motions as untimely. This appeal followed.

Our review of petitioner’s challenges to the orders on appeal requires the application
of different standards of review. In Case Number 25-ICA-57, petitioner challenges the
circuit court’s entry of summary judgment and subsequent denial of petitioner’s motion to
alter or amend. Concerning those orders, our standard of review is de novo. Syl. Pt. 1,
Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of
summary judgment is reviewed de novo.”); Syl. Pt. 1, Wickland v. Am. Travellers Life Ins.
Co., 204 W. Va. 430, 513 S.E.2d 657 (1998) (“The standard of review applicable to an
appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P.
59(e), is the same standard that would apply to the underlying judgment upon which the
motion is based and from which the appeal to this Court is filed.”).

We begin our analysis by noting that while petitioner’s notice of appeal includes the
January 31, 2025, order denying the motion to alter or amend, petitioner’s brief offers no
assignment of error or argument directly challenging that ruling. As such, we deem any
challenge to the court’s ruling on that motion to be waived. Instead, petitioner’s lone
assignment of error is that the circuit court erred by granting summary judgment. With
respect to this assignment of error, petitioner presents arguments challenging the summary
judgment ruling both substantively and procedurally.

Substantively, petitioner argues that the circuit court erred in its dismissal of
petitioner’s claims that CAMC interfered with the surrogacy contract and petitioner’s right
to custody of the children; erred by finding that petitioner had failed to rebut the

7
presumption of maternity pursuant to West Virginia Code § 16-5-10(e); and erred in
dismissing the IIED claims for compensatory and punitive damages. We are unpersuaded
by these arguments.

It is well established in West Virginia that “[s]ummary judgment is appropriate if,
from the totality of the evidence presented . . . 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, 56, 459 S.E.2d 329, 333 (1995).
“[T]he party opposing summary judgment must satisfy the burden of proof by offering
more than a mere ‘scintilla of evidence’ and must produce evidence sufficient for a
reasonable jury to find in a nonmoving party's favor.” Id. at 60, 459 S.E.2d at 337
(quotations and citations omitted). Further, Rule 56(e) of West Virginia Rules of Civil
Procedure (1998)5 states:

When a motion for summary judgment is made and supported as provided in
this rule, an adverse party may not rest upon the mere allegations or denials
of the adverse party’s pleading, but the adverse party’s response, by
affidavits or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial. If the adverse party does not
so respond, summary judgment, if appropriate, shall be entered against the
adverse party.

As we previously observed, petitioner did not file a response in opposition to
CAMC’s motion for summary judgment. Petitioner also did not include the transcript from
the September 29, 2020, pretrial hearing in the appendix record. Thus, there has been no
showing made to this Court that petitioner raised these arguments before the circuit court
or otherwise preserved any objection regarding the summary judgment ruling for review
on appeal.

Similarly, petitioner’s Rule 59(e) motion does not preserve these issues for appeal.
Rather, as explained by this Court in Moschonas v. Charles Town General Hospital, 251
W. Va. 306, 912 S.E.2d 299 (Ct. App. 2025), decisions of this Court and the SCAWV have
addressed this issue as follows:

Neither Rule 59(e) nor Rule 60(b) are appropriate for presenting new legal
theories, arguments or claims that could have been raised previously. Tice v.
Veach, 250 W. Va. 482, 495, 904 S.E.2d 484, 496 (Ct. App. 2024); see also
Mey v. Pep Boys-Manny, Moe & Jack, 228 W. Va. 48, 56, 717 S.E.2d 235,
243 (2011) (“A motion under Rule 59(e) is not appropriate for presenting

5
The circuit court’s proceedings were governed by the version of Rule 56 adopted
by the Supreme Court of Appeals of West Virginia in 1998. While Rule 56 was amended
by the Court, effective January 1, 2025, no changes were made that affect this appeal.
8
new legal arguments, factual contentions, or claims that could have
previously been argued”); Builders’ Serv. and Supply Co. v. Dempsey, 224
W. Va. 80, 85, 680 S.E.2d 95, 100 (2009) (per curiam) (“It is well established
that a Rule 60(b) motion does not present a forum for the consideration of
evidence which was available, but not offered at the original proceeding.”).
Issues first raised in a Rule 59(e) motion, which could have been asserted
earlier, are not properly preserved for appellate review. See City of Fairmont
v. W. Va. Mun. League, Inc., No. 18-0873, 2020 WL 201188, at *6 (W. Va.
Jan. 13, 2020) (memorandum decision).

Id. at ___ , 912 S.E.2d at 310 (cleaned up).

Additionally, to the extent these arguments in opposition to CAMC’s motion for
summary judgment are being raised for the first time on appeal, we decline to address the
same. “Our general rule is that nonjurisdictional questions . . . raised for the first time on
appeal, will not be considered.” Shaffer v. Acme Limestone Co., Inc., 206 W. Va. 333, 349
n.20, 524 S.E.2d 688, 704 n.20 (1999); see also Whitlow v. Board of Education, 190 W.
Va. 223, 226, 438 S.E.2d 15, 18 (1993) (“Our general rule in this regard is that, when
nonjurisdictional questions have not been decided at the trial court level and are then first
raised before this Court, they will not be considered on appeal.”).

Further, in Jenkins v. Taylor, No. 23-ICA-71, 2023 WL 7202678, at *2 (W. Va. Ct.
App. Nov. 1, 2023) (memorandum decision), we noted that pursuant to Syllabus Point 5 of
Morgan v. Price, 151 W. Va. 158, 150 S.E.2d 897 (1966):

An appellant must carry the burden of showing error in the judgment of
which he complains. This Court will not reverse the judgment of a trial court
unless error affirmatively appears from the record. Error will not be
presumed, all presumptions being in favor of the correctness of the judgment.

Id.; see also Syl. Pt. 4, State v. Browning, 199 W. Va. 417, 485 S.E.2d 1 (1997) (“This
Court will not consider an error which is not properly preserved in the record nor apparent
on the face of the record.”). Because petitioner did not establish that these arguments or
objections were made below, we conclude that petitioner has failed to affirmatively
establish error.

This rationale aside, we further conclude that petitioner’s substantive challenges fail
on the merits. To that end, petitioner’s arguments on appeal challenge the merits of the
circuit court’s rulings with respect to the contract, custody, and West Virginia Code § 16-
5-10(e) issues. However, in doing so, petitioner largely overlooks the fact that the circuit
court’s ruling was based upon its determination that S.U. I and collateral estoppel operated
to bar the litigation of those issues. We cannot conclude that the court erred in this decision.

9
As stated by the SCAWV:

Collateral estoppel will bar a claim if four conditions are met: (1) The issue
previously decided is identical to the one presented in the action in question;
(2) there is a final adjudication on the merits of the prior action; (3) the party
against whom the doctrine is invoked was a party or in privity with a party
to a prior action; and (4) the party against whom the doctrine is raised had a
full and fair opportunity to litigate the issue in the prior action.

Syl. Pt. 1, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).

In that respect, collateral estoppel first requires that the claims in the present action
be identical to those present in prior litigation. This factor is easily satisfied. As previously
set forth in S.U. I, the SCAWV upheld the family court’s rulings with respect to the
surrogacy contract and custody of the children. The SCAWV also expressly found that
petitioner failed to rebut the presumption under West Virginia Code § 16-5-10(e). In the
present case, petitioner’s foundational arguments on these issues, albeit repackaged,
remain the same. In other words, petitioner’s arguments continue to manifestly contend
that pursuant to a surrogacy agreement, Caren J. is a gestational surrogate who has been
impermissibly declared the children’s mother and awarded custody, and that petitioner is
the children’s mother. While petitioner now asserts those arguments against CAMC instead
of Caren J., this veiled attempt does not allow petitioner to evade the preclusive effect of
S.U. I. Moreover, the finality of S.U. I is firmly established by the SCAWV’s rejection of
petitioner’s exhaustive attempts to revive these issues in subsequent appeals. Likewise, as
evidenced by this Court’s prior rulings on petitioner’s appeals, we too have reiterated that
the conclusiveness of S.U. I is beyond reproach.

Similarly, we further conclude that the second and third collateral estoppel factors
are readily met. Obviously, S.U. I and its progeny establish that there has been a final
adjudication on the merits of the prior action. Equivalently, it is more than transparent that
petitioner, the party against whom the doctrine of collateral estoppel was invoked, was
named as either the petitioner or plaintiff throughout S.U. I and its progeny. Furthermore,
there is nothing within the procedural history of cases, nor in the appellate record, to
suggest that petitioner did not have a full and fair opportunity to these claims. Therefore,
we conclude that the circuit court properly concluded that petitioner was collaterally
estopped from pursuing these claims.6

6
Petitioner also argues that the family court lacked jurisdiction to decide the issues
raised in S.U. I. This contention also fails for the same reasoning set forth above. Not only
does the current petition raise claims previously decided in S.U. I but the SCAWV has
already found that the family court properly decided this issue. See S.U. I, 2019 WL
5692550, at *5 (rejecting petitioner’s argument that the family court lacked jurisdiction to
decide the matter); S.U. IV, 2022 WL 1556113, at *4 (noting petitioner’s claim that the
10
Next, we address the circuit court’s denial of petitioner’s IIED claims for
compensatory and punitive damages. Here, petitioner offers no argument regarding the
circuit court’s conclusion that petitioner could not satisfy the elements of an IIED claim
and, thus, was not entitled to claim-related compensatory damage. Rather, petitioner’s
arguments are solely focused on the court’s ruling on the IIED claim for punitive damages.

On this issue, petitioner claims that Syllabus Points 14 and 15 of Tudor state that
IIED claims must be presented to a jury before a court may rule on those issues, and
therefore the circuit court’s ruling was premature. We disagree. First, the circuit court
properly recognized that our jurisprudence does not recognize independent causes of action
for punitive damages. See Syl. Pt. 1, Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413
S.E.2d 897 (1991). Moreover, after reviewing Tudor, this Court concludes that there is
nothing within those points of law which stands for the proposition espoused by petitioner,
but rather, the plain language of Syllabus Points 14 and 15 establish the nature or type of
the evidence required for a plaintiff to establish a prima facie claim for punitive damages
associated with an IIED claim. In fact, in Travis, the SCAWV clarified the implications of
Syllabus Points 14 and 15 of Tudor, stating that “in order for a plaintiff to recover both
compensatory damages and punitive damages in an intentional or reckless infliction of
emotional distress claim, expert testimony should be used to establish the extent of the
plaintiff’s emotional injury.” Travis, 202 W. Va. at 379 n.8, 504 S.E.2d at 429 n.8.
Therefore, we conclude that petitioner’s specific point of error on this issue fails.7

Petitioner also argues that the underlying complaint establishes sufficient physical
and mental injuries to maintain the IIED claim for punitive damages. We disagree. The
complaint’s allegation of injury is not supported by the opinion of an expert witness.
Instead, petitioner relies solely upon the allegations contained in the complaint. However,
it is well established that “[m]ere allegations are insufficient in response to a motion for
summary judgment to show that there is a genuine issue for trial.” Crum v. Equity Inns,
Inc., 224 W. Va. 246, 254, 685 S.E.2d 219, 227 (2009) (citing Powderidge Unit Owners
Ass’n v. Highland Props., Ltd., 196 W. Va. 692, 698 nn. 10, 11, 474 S.E.2d 872, 878 nn.
10, 11 (1996)) (internal citations omitted); W. Va. R. Civ. P. 56(e) (1998).8 Significantly,

family court lacked jurisdiction to decide S.U. I to be false and reiterating that the family
court properly exercised its jurisdiction to arrive at its determinations in S.U. I).

To the extent petitioner’s argument was intended to argue that the court’s entry of
7

summary judgment deprived petitioner of a jury trial, it is without merit. Syl. Pt. 7, Aetna
Cas. & Sur. Co. v. Fed. Ins. Co. of N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963) (“The
summary judgment procedure provided by Rule 56 of the West Virginia Rules of Civil
Procedure does not infringe upon the constitutional right of a party to a trial by jury. . . .”).
8
See n.4 supra.
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petitioner failed to respond to CAMC’s motion for summary judgment. Thus, we find no
error in the circuit court’s dismissal of petitioner’s IIED claims.

Petitioner’s final argument with respect to Case Number 25-ICA-57 is that there
was procedural error in the proceedings below. Namely, petitioner asserts that the circuit
court failed to provide procedural due process when it heard CAMC’s motion for summary
judgment less than ten days after its filing. However, as noted above, petitioner has not
shown that any alleged errors were preserved for appeal. The same rationale applies to this
issue. In other words, because petitioner has not established that he objected to the
timeliness of the court’s hearing on the motion for summary judgment, that issue is not
properly preserved for appeal, and we decline to consider the same. Therefore, based on
the foregoing, we cannot conclude that there is error in the circuit court’s March 4, 2022,
order granting summary judgment to CAMC and dismissing the 2018 case.

We now turn to Case Number 25-ICA-56. In this case, the issue on appeal is the
circuit court’s dismissal of the 2020 case pursuant to Rule 41(b) of the West Virginia Rules
of Civil Procedure. The circuit court found petitioner had failed to establish good cause for
petitioner’s failure to timely prosecute the action. We review the court’s ruling for an abuse
of discretion. Caruso v. Pearce, 223 W. Va. 544, 547, 678 S.E.2d 50, 53 (2009).

On appeal, petitioner argues that the circuit court erred in dismissing the case
because petitioner’s written objection to the court’s notice of intent to dismiss established
good cause for petitioner’s delay in prosecuting the case. On this point, petitioner claims
issues in the 2018 and 2020 cases established good cause. In the 2018 case, petitioner cites
the delay between the circuit court’s grant of summary judgment on September 29, 2020,
and entry of the order memorializing that ruling on March 4, 2022, as a reason for inactivity
in the 2020 Case. Petitioner also cites the circuit court’s failure to enter a scheduling order
in the 2020 Case as required by Rule 16(b) of the West Virginia Rules of Civil Procedure
and decisions by the SCAWV as justification for the case’s inactivity. For these reasons,
petitioner asks this Court to remand the matter with directions to the circuit court to
reinstate the case for purposes of a jury trial. We decline to do so.

We find no merit in petitioner’s contention that the circuit court’s delay with respect
to entry of the summary judgment order in the 2018 case excused the dormancy of the
present case. Other than offering conjecture, petitioner fails to cite to the record or pertinent
authority to support this position. See W. Va. R. App. P. 10(c)(7) (“The argument must
contain appropriate and specific citations to the record on appeal, including citations that
pinpoint when and how the issues in the assignments of error were presented to the lower
tribunal.”). Moreover, petitioner does not explain how the circuit court’s delayed entry of
summary judgment in the 2018 case could have continued to justify the failure to prosecute
the 2020 matter even after the summary judgment order was entered on March 4, 2022.
Accordingly, we reject this argument.

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With respect to the scheduling order issue, we acknowledge that petitioner is correct
that Rule 16(b) states that court “shall” enter a scheduling order. W. Va. R. Civ. P. 16(b).
Likewise, it is true that a prior decision of the SCAWV found that a circuit court’s failure
to enter a scheduling order may prevent the dismissal of a case for inactivity. See, e.g.,
Caruso at 550, 678 S.E.2d at 56. However, in that case, the SCAWV also considered the
fact that the plaintiff had only been inactive for just over one year and that the case was
complex. Id. Moreover, the SCAWV has determined that a Rule 41(b) dismissal was not
an abuse of discretion despite the circuit court’s failure to enter a scheduling order. See
Meade v. W. Va. Div. of Corr., No. 13-0983, 2014 WL 1672938, at *4-5 (W. Va. Apr. 24,
2014) (memorandum decision). Under the facts of this case, particularly given the much
more extensive delay than occurred in Caruso, we conclude that the circuit court’s failure
to enter a scheduling order was harmless error.

“Error is harmless when it is trivial, formal, or merely academic, and not prejudicial
to the substantial rights of the party assigning it, and where it in no way affects the outcome
of the [case].” Orphanos v. Rodgers, 250 W. Va. 442, 461, 903 S.E.2d 623, 642 (Ct. App.
2024) (quoting Reed v. Wimmer, 195 W. Va. 199, 209, 465 S.E.2d 199, 209 (1995)). As
previously established, the 2020 case paralleled the 2018 case with respect to the parties,
facts, and causes of action raised. Petitioner acknowledged this in the 2020 complaint.
Simply stated, at their crux, the claims in the 2020 case seek to revive issues previously
decided by S.U. I and its progeny, as well as raise the same or similar causes of action
which were appropriately disposed of by summary judgment in the 2018 case. Therefore,
it is obvious that petitioner’s complaint would be barred by application of res judicata or
collateral estoppel and, thus, it would be futile to remand this case to circuit court for entry
of a scheduling order or a subsequent ruling on the merits. See Bickford v. Workforce W.
Va., No. 22-ICA-276, 2023 WL 7202564, at *4 (W. Va. Ct. App. Nov. 1, 2023)
(memorandum decision) (citations omitted) (“The law does not require the doing of a futile
act.”). Thus, there was no abuse of discretion in the circuit court’s dismissal of the 2020
case.

Accordingly, we find no error and affirm the circuit court’s March 4, 2022, and
January 31, 2025, orders in Case Number 25-ICA-57, and the court’s January 31, 2025,
order in Case Number 25-ICA-56.

Affirmed.

ISSUED: August 29, 2025

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CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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