Frank D. Unger and Sherri J. Unger v. Susan Pierce

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
FRANK D. UNGER and SHERRI J. UNGER,
November 1, 2023
Plaintiffs Below, Petitioners
EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
vs.) No. 23-ICA-29 (Cir. Ct. Kanawha Cnty. No. 22-C-17) OF WEST VIRGINIA

SUSAN PIERCE,
Defendant Below, Respondent

MEMORANDUM DECISION

Petitioners Frank D. Unger and Sherri J. Unger (“the Ungers”) appeal the December
22, 2022, order entered by the Circuit Court of Kanawha County. Respondent Susan Pierce
timely filed her response. 1 The Ungers did not file a reply. The issue on appeal is whether
the circuit court erred in granting Ms. Pierce’s motion to dismiss the Ungers’ claim of
defamation against her and in finding that she was entitled to a qualified privilege of
immunity for her statements.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). 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 order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

The Ungers own and operate Past Respects, LLC, a business that performs historic
preservation services. Ms. Pierce is the Director of the West Virginia State Historic
Preservation Office (“SHPO”). On or around July 31, 2022, the Ungers contracted with the
Vandalia Heritage Foundation (“the Foundation”) to perform work on the Davis Coal and
Coke Administration Building (“Davis Building”), located in Thomas, West Virginia. The
contract with the Foundation stated that the Ungers would install a rubble stone floor in the
Davis Building using existing limestone materials in the basement. Further, the contract
provided that the Ungers would repair or replace basement-level exterior doors, and that
the doors should include ventilation panels. As part of their work on the project, the Ungers
added a brick walkway and a ventilation system to the basement, neither of which were
original historic features of the building.

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The Ungers are self-represented. Ms. Pierce is represented by Charles R. Bailey,
Esq., and Celeste E. Webb, Esq.

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A portion of the funding used to pay the Ungers for their work on the Davis Building
came from grant money administered by the SHPO. Funding for these grants comes, in
part, from the National Parks Service (“NPS”). All projects that receive these funds must
comply with the Standards for Historic Preservation Projects promulgated by the
Department of the Interior and enforced by the NPS. The SHPO bears the responsibility of
ensuring that historic preservation projects completed with these funds comply with the
applicable standards.

After the Ungers completed their scheduled work on the Davis Building, Ms. Pierce
contacted the NPS for guidance regarding the historical accuracy of the work performed
and to ensure that the completed work met the standards set forth by the Department of the
Interior. All communications between Ms. Pierce and the NPS were made within her
capacity as the Director of the SHPO. Ms. Pierce and the NPS representative discussed
whether the rubble stone flooring created a false sense of history, and whether the
ventilation system installed in the basement doors was inappropriate. Ms. Pierce expressed
concern that the project was in violation of Standard 3 of the Department of the Interior’s
Standards, which states that “[e]ach property will be recognized as a physical record of its
time, place, and use. Changes that create a false sense of historical development, such as
adding conjectural features or elements from other historic properties, will not be
undertaken.”

The Ungers filed their initial complaint in this matter in the Circuit Court of
Kanawha County on January 10, 2022, asserting a claim of defamation against Ms. Pierce.
The Ungers alleged that Ms. Pierce stated that the work completed by the Ungers was in
violation of standards promulgated by the Department of the Interior, even though the
terms of the contract were previously approved by the SHPO. Additionally, the Ungers
alleged that an NPS representative, a third party, was consulted to determine whether the
standards had been violated. The Ungers averred that Ms. Pierce was negligent in failing
to research the terms of the contract and the specifications of the Davis Building project.
Further, the Ungers alleged loss of income in the amount of $20,000, personal emotional
distress, and damage to the reputation of their business based on Ms. Pierce’s statements.

Ms. Pierce moved to dismiss the complaint for failure to state a claim upon which
relief could be granted pursuant to West Virginia Rules of Civil Procedure Rule 12(b)(6).
She argued that any comments made to the NPS representative regarding the Davis
Building fell within the scope of her employment with the SHPO and were thus protected
by qualified privilege. Further, Ms. Pierce argued that the Ungers failed to allege any facts
demonstrating that Ms. Pierce acted fraudulently, maliciously, or oppressively in her
communications with the NPS. Additionally, Ms. Pierce stated that the Ungers failed to
establish any injury caused by her statements. Further, Ms. Pierce alleged that all
statements that she made to the NPS were true, and thus by definition not defamatory.
Finally, Ms. Pierce argued that to the extent the Ungers were asserting a breach of contract

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action, that claim would need to be brought before the West Virginia Legislative Claims
Commission.

The circuit court granted Ms. Pierce’s motion to dismiss by order entered December
22, 2022. The circuit court found that Ms. Pierce was acting within the scope of her role as
Director when she communicated with the NPS regarding the Ungers’ work on the Davis
Building. Further, the circuit court found that Ms. Pierce is an employee of a state agency
and is therefore immune from liability for actions within the scope of her duties.
Additionally, the circuit court found that none of the statements made by Ms. Pierce were
in violation of a clearly established constitutional right, nor were they fraudulent,
malicious, or oppressive. The circuit court also held that the Ungers failed to allege any
facts that would overcome the immunity expressly granted to Ms. Pierce as a matter of law.
The circuit court noted that to the extent the claims brought by the Ungers arose out of a
contractual dispute, they must be brought before the Legislative Claims Commission.
Lastly, the circuit court held that the Ungers failed to allege facts sufficient to maintain a
cause of action for defamation. Based on the foregoing, the circuit court dismissed the
Ungers’ complaint with prejudice. It is from this order that the Ungers now appeal.

The Supreme Court of Appeals of West Virginia has set forth our standard of
review: “[a]ppellate review of a circuit court’s order granting a motion to dismiss is de
novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va.
770, 461 S.E.2d 516 (1995). Further, “the circuit court, viewing all facts in a light most
favorable to the nonmoving party, may grant the motion only if ‘it appears beyond doubt
that the plaintiff can prove no set of facts in support of his [her, or its] claim, which would
entitle him to relief.’” Id. at 776, 461 S.E.2d at 522 (citing Syl. Pt. 3, in part, Chapman v.
Kane Transfer Co., Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977)).

On appeal, the Ungers assert several assignments of error. First, the Ungers argue
that the circuit court erred in finding that Ms. Pierce was entitled to qualified immunity.
Second, the Ungers aver that the circuit court erred in finding they did not prove the
elements required for a defamation case. Third, the Ungers assert that the circuit court
improperly assigned counsel for Ms. Pierce to draft the findings of fact for the final order.
Next, the Ungers argue that the final order does not reflect important facts in the case, and
that the circuit court did not properly address the responsibilities of the parties to the
contract. Further, the Ungers aver that the circuit court is the proper forum for this issue
rather than the Legislative Claims Commission. Finally, the Ungers argue that purported
political connections between Judge Webster and the State Historic Preservations Office
played a role in the outcome of their case below.

The Supreme Court of Appeals of West Virginia has held that:

A public executive official who is acting within the scope of his authority
and is not covered by the provisions of W. Va. Code, 29-12A-1, et seq. is

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entitled to qualified immunity from personal liability for official acts if the
involved conduct did not violate clearly established laws of which a
reasonable official would have known. There is no immunity for an executive
official whose acts are fraudulent, malicious, or otherwise oppressive.

Syl., State v. Chase Securities, Inc., 188 W. Va. 356, 364-65, 424 S.E.2d 591, 599-600
(1992). “In [the] absence of such a showing, both the State and its officials or employees
charged with such acts or omissions are immune from liability.” Syl. Pt. 11, in part, West
Virginia Reg’l Jail and Corr. Facility Auth. v. A.B, 234 W. Va. 492, 766 S.E.2d 751 (2014).
Further, our Supreme Court has stated that “[t]he ultimate decision of whether qualified or
statutory immunity bars a civil action is one of law for the court to determine.” Syl. Pt. 1,
in part, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996).

Upon review of the record, we find no merit in the Ungers’ arguments that the circuit
court erred in holding that their claims against Ms. Pierce were barred by qualified
immunity. The record demonstrates that the alleged defamatory statements were made
while Ms. Pierce was acting within the scope of her position as the director of the SHPO.
Ms. Pierce is an employee of a state agency, and she is immune from actions within the
scope of her duties. Further, there is no evidence in the record that the statements made by
Ms. Pierce were in violation of a clearly established constitutional right or law, and they
were not otherwise fraudulent, malicious, or oppressive. As part of her role with the SHPO,
Ms. Pierce is tasked with ensuring that projects completed with NPS funding comply with
the standards promulgated by the Department of the Interior. It is well within Ms. Pierce’s
discretion as Director of the SHPO to discuss these historic preservation projects with the
NPS, as well as whether the completed projects comply with these standards. The Ungers
did not allege any facts that would overcome the immunity granted to Ms. Pierce by law.
Based on the foregoing, we find that the circuit court did not err in finding that Ms. Pierce
was entitled to qualified immunity for her statements to the NPS.

Next, we turn to the Ungers’ assignment of error regarding their defamation claim
against Ms. Pierce. Our Supreme Court has held that in order for private individuals to
maintain an action for defamation, the following elements must be proved: “1) defamatory
statements, (2) a nonprivileged communication to a third party, (3) falsity, (4) reference to
the plaintiff, (5) at least negligence on the part of the publisher, and (6) resulting injury.”
Syl. Pt. 5, Zsigray v. Langman, 243 W. Va. 163, 842 S.E.2d 716 (2020) (citing Syl. Pt. 1,
Crump v. Beckley Newspapers, Inc., 173 W. Va. 699, 320 S.E.2d 70 (1983)).

Upon review, we agree with the circuit court that the Ungers did not allege the
necessary elements for a defamation claim. The Ungers are unable to assert a defamation
claim against Ms. Pierce, as she is entitled to qualified immunity for her statements. Even
assuming for the sake of argument that the claim could proceed, the Ungers did not allege
the necessary elements for a defamation claim. The Ungers’ complaint did not allege
sufficient facts to establish that Ms. Pierce made defamatory statements; that the statements

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were false; that Ms. Pierce was negligent in making the statements; or that they suffered a
resulting injury based on the statements. For these reasons, we find that the circuit court
did not err in holding that the Ungers did not allege sufficient facts to maintain a cause of
action for defamation against Ms. Pierce.

Further, the Ungers assert that the circuit court erred in assigning the drafting of the
final order to counsel for Ms. Pierce. The Ungers further argue that the findings of fact in
the final order do not adequately discuss the facts of the case, and that counsel for Ms.
Pierce was biased in preparing the final order. Rule 24.01(c) of the Trial Court Rules
actually contemplate the practice of counsel for the parties preparing proposed orders, and
states, in part:

counsel responsible for the preparation and presentation of an order may
submit the original of the proposed order to the judicial officer within eleven
(11) days, with a copy to opposing counsel along with a notice to note
objections and exceptions to the order within five (5) days after the receipt
of the proposed order or such lesser time as the judicial officer directs.

With respect to objections to proposed orders, Rule 24.01(d) of the Trial Court Rules
state:

In the event counsel has any objections regarding the wording or content of
a proposed order, counsel shall have the affirmative duty of contacting the
preparer thereof before contacting the judicial officer in an effort to seek a
resolution of the conflict. If the conflict cannot be resolved in this manner,
counsel having an objection shall promptly submit a proposed order to the
judicial officer and opposing counsel as set forth in subsection (c) along with
a letter to the judicial officer, indicating the reason for the change(s).

The record demonstrates that Judge Webster ordered Ms. Pierce’s lawyer to draft
the proposed order. This was done in accordance with the Trial Court Rules. There is no
evidence in the record that the Ungers contacted counsel for Ms. Pierce regarding their
concerns with the proposed Final Order. Further, the Ungers did not submit an alternative
proposed order to the circuit court in accordance with the rules, and their objection to the
Final Order was noted. For these reasons, we find that the circuit court did not err in
ordering counsel for Ms. Pierce to draft the final order.

Further, the Ungers assert that the Final Order did not properly include facts such
as a contractual provision regarding the use of rubble stone floor in completing the Davis
Building project; that Ms. Pierce did not have the right to seek a third-party review of their
work; and that a separate Roane County circuit court case was not considered. We find no
merit in this assignment of error, as these facts would not overcome the qualified immunity
granted to Ms. Pierce, or the fact that the complaint did not allege sufficient facts to

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establish a case for defamation. While it is possible that the contract required work that
was not consistent with historic standards, the statements made by Ms. Pierce did not create
an action for defamation.

Next, we turn to the Ungers’ assignment of error regarding the circuit court’s
holding that any contractual dispute between the parties should be brought before the
Legislative Claims Commission. 2 The Ungers argue that the circuit court was the
appropriate forum for them to resolve their claims. The circuit court concluded that to the
extent that any of the Ungers’ claims arose out of a contractual dispute, said claims must
be initiated in the West Virginia Legislative Claims Commission. West Virginia Code §
14-2-13 (2017) provides that the “claims and demands, liquidated and unliquidated. . .
against the state or any of its agencies, which the state as a sovereign commonwealth should
in equity and good conscience discharge and pay. . . ” are within the jurisdiction of the
Legislative Claims Commission. Our Supreme Court of Appeals has held that “[s]uits
which seek no recovery from state funds, but rather allege that recovery is sought under
and up to the limits of the State’s liability insurance coverage, fall outside of the traditional
constitutional bar to suits against the State.” Syl. Pt. 2, Pittsburgh Elevator Co. v. W. Va.
Bd. of Regents, 172 W. Va. 743, 310 S.E.2d 675 (1983). The Ungers did not allege in their
complaint that they were seeking recovery up to the limits of the state’s liability insurance
coverage, nor did they show that there was insurance that would cover their claim. Thus,
any claims related to a contractual dispute between the Ungers and the State Historic
Preservation Office should have been brought before the Legislative Claims Commission.

Finally, the Ungers assert that political connections between Commissioner Randal
Reid Smith and Judge Webster played a role in the circuit court’s decision. This assignment
of error does not contain citations to the record, nor does it involve an error in the final
order. Further, the Ungers did not make any objection below to Judge Webster’s
participation in this case or reference any purported political connections that they believed
would affect the outcome of their case. “Although we liberally construe briefs in
determining issues presented for review, issues which are not raised, and those mentioned
only in passing but are not supported with pertinent authority, are not considered on
appeal.” State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996). Further, Rule
10(c)(7) of the West Virginia Rules of Appellate Procedure provides that “[t]he 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” and that “[t]he Intermediate Court. . . may disregard errors that are not
adequately supported by specific references to the record on appeal.” Our Supreme Court

2
We note here that the Ungers filed a Motion for Leave to Supplement the Appendix
in this case. This Court denied the motion on March 28, 2023. Thus, the additional evidence
submitted by the Ungers on appeal will not be considered.

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of Appeals has further noted that “[a] skeletal argument, really nothing more than an
assertion, does not preserve a claim. . . .” State v. Kaufman, 227 W. Va. 537, 555 n.39, 711
S.E.2d 607, 625 n.39 (2011). Because this assignment of error was not raised below, it will
not be considered on appeal.

Based on the foregoing, we find that the circuit court did not err in granting Ms.
Pierce’s motion to dismiss. Accordingly, we affirm the circuit court’s December 22, 2022,
order.

Affirmed.

ISSUED: November 1, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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