Mary Wenz v. Rachel Hanna and Law Office of Rachel Hanna

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
March 25, 2024
MARY WENZ,
C. CASEY FORBES, CLERK
Plaintiff Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-201 (Cir. Ct. Greenbrier Cnty. No. CC-13-2019-C-162)

RACHEL HANNA and
LAW OFFICE OF RACHEL HANNA,
Defendants Below, Respondents

MEMORANDUM DECISION

Petitioner Mary Wenz appeals the Circuit Court of Greenbrier County’s April 18,
2023, order. In that order, the circuit court dismissed Ms. Wenz’s complaint on the basis
that the circuit court did not have jurisdiction over the claims and even if it did have
jurisdiction, dismissal would still be appropriate because Ms. Wenz’s claims were barred
by the statute of limitations. Respondents Rachel Hanna and Law Office of Rachel Hanna
(collectively “Ms. Hanna”) filed a response in support of the circuit court’s order.1 Ms.
Wenz filed a reply.

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.

On July 3, 2018, Ms. Wenz filed the underlying complaint against Ms. Hanna
alleging professional negligence and intentional infliction of emotional distress.
However, Ms. Wenz did not cause a summons to issue and did not serve the complaint
upon Ms. Hanna. Therefore, on December 3, 2018, the circuit court dismissed the case
for failure to serve. On December 3, 2019, Ms. Wenz refiled her case and Ms. Hanna was
served on May 27, 2020. On August 10, 2022, Ms. Wenz filed her amended complaint in
which she alleged Ms. Hanna’s breach of fiduciary duty, fraud, civil conspiracy, and
intentional infliction of emotional distress.

1
Ms. Wenz is represented by Jeffrey V. Mehalic, Esq. Ms. Hanna is self-
represented.

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More specifically, the amended complaint alleges that on or around June 12, 2015,
Ms. Wenz entered an attorney-client relationship with Ms. Hanna that concerned a
potential product liability case involving implant manufacturer Medtronic. Further, the
amended complaint alleges that Ms. Hanna “began a sexual relationship” with Ms.
Wenz’s then-husband, Dennis O’Dell (“O’Dell”), that said relationship “that ultimately
destroyed” Ms. Wenz’s marriage, ruined her financially, and caused her emotional
distress. It was also alleged that when Ms. Wenz first confronted Ms. Hanna about the
inappropriate relationship with Mr. O’Dell on April 14, 2016, that Ms. Hanna
continuously denied the relationship. In fact, Ms. Wenz averred that it was not until July
7, 2016, that Ms. Hanna finally admitted to having an intimate relationship with Ms.
Wenz’s husband.

On August 30, 2022, Ms. Hanna moved to dismiss the amended complaint. In her
motion to dismiss, Ms. Hanna explained that the Office of Disciplinary Counsel had
investigated the matter, found that the attorney-client relationship ended no later than
October of 2015, and that no breach of any duty occurred. Ms. Hanna further argued that
because Ms. Wenz had obtained a divorce in Virginia based upon adultery, and since
Virginia circuit courts are courts of general jurisdiction, Ms. Wenz should have brought
her claims in the Virginia court as her instant claims are essentially claims for adultery in
disguise.

On October 13, 2022, Ms. Hanna filed a second motion to dismiss and argued that
Ms. Wenz’s claims were barred by the doctrine of laches, clean hands, and the statute of
limitations. Ms. Hanna alleged that the latest date Ms. Wenz knew or should have known
of the affair was no later than January 6, 2016, and since her initial complaint was filed
more than two years later, her complaint was timed barred. On October 13, 2022, Ms.
Hanna filed a third motion to dismiss, in which she argued that dismissal of Ms. Wenz’s
complaint was proper pursuant to principles of equity. In her third motion to dismiss, Ms.
Hanna argues that at some point during the litigation, Ms. Wenz hired Ms. Hanna’s ex-
husband and ex-law partner as her attorney in this matter.2 The remainder of the motion
concerned alleged technical shortcomings of the amended complaint. Also on October
13, 2022, Ms. Hanna filed an answer to the amended complaint. In her answer she
asserted that Ms. Wenz began a relationship with Ms. Hanna’s ex-husband and law
partner and that during Ms. Hanna’s divorce, Ms. Hanna’s ex-husband used the Office of
Disciplinary Counsel complaint against her to force her into a settlement. The answer
also asserted counterclaims for defamation, slander, and libel, invasion of privacy and
false light, tortious interference, abuse of process, conspiracy, fraud, and intentional
infliction of emotional distress.

2
This attorney is not a party to this action and was later disqualified from
representing Ms. Wenz in this matter.

2
On March 28, 2023, the circuit court held a hearing on the motions to dismiss.
Following the hearing, on April 18, 2023, the court entered an order that concluded that:

The subject matter of this case is inseparable from and inextricably
intertwined with the proceedings in the Virginia. The damages alleged were
incurred in Virginia and fully adjudicated in Virginia judicial proceedings
pursuant to applicable Virginia law. Plaintiff does not allege injury, loss, or
damage sufficiently separate and distinct from those adjudicated in
Virginia. Therefore, this court does not have the power to grant the relief
requested.

The circuit court went on to find that even if it did have jurisdiction, dismissal was
appropriate based upon the statute of limitations because Ms. Wenz was aware of the
affair in the spring of 2016, but did not file her complaint until after the two-year statute
of limitations elapsed on July 3, 2018. It is from this order that Ms. Wenz appeals.

On appeal, we apply the following standard of review: “Appellate review of a
circuit court’s order granting a motion to dismiss a complaint 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). “A court reviewing the sufficiency of a complaint should view
the motion to dismiss with disfavor, should presume all of the plaintiff’s factual
allegations are true, and should construe those facts, and inferences arising from those
facts, in the light most favorable to the plaintiff.” Mountaineer Fire & Rescue Equip.,
LLC v. City Nat'l Bank of W. Va., 244 W. Va. 508, 520, 854 S.E.2d 870, 882 (2020)
(citing Chapman v. Kane Transfer Co., 160 W. Va. 530, 538, 236 S.E.2d 207, 212
(1977)).

Ms. Wenz first asserts that the circuit court erred by concluding that it did not have
subject matter jurisdiction over her claims. We disagree. In Syllabus Point 2 of Weaver v.
Union Carbide Corp., 180 W.Va. 556, 378 S.E.2d 105 (1989), the Supreme Court of
Appeals of West Virginia set forth the elements for a claim for alienation of affections
and recognized that the cause of action has been statutorily abolished in West Virginia:
“A cause of action for alienation of affection consists of three elements: wrongful
conduct of the defendant, plaintiff’s loss of affection or consortium with the other spouse,
and causal connection between such conduct and loss. W. Va. Code, 56-3-2a, abolishes
all such suits for alienation of affections.” (Emphasis added). In Weaver, though the
plaintiff did not label her claims as alienation of affection claims, the Weaver Court
nevertheless held that any cause of action that was substantively one for alienation of
affection should be dismissed. Id. at 180 W. Va. at 559–60, 378 S.E.2d at 108–09.

Here, Ms. Wenz expressly asserts that Ms. Hanna’s wrongful conduct made Mr.
O’Dell “walk away” from his marital responsibilities to Ms. Wenz, including to support
her emotionally as well as financially. Although Wenz labels her claims a variety of

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ways, just as the claimant in Weaver, it is clear that all of her underlying claims stem
from an alleged alienation of affection, which is not recognized under West Virginia law.

Allowing Ms. Wenz’s claims to go forward would undermine the reasons cited by
the Weaver Court for abolishing alienation of affections claims. See State ex rel. Golden
v. Kaufman, 236 W. Va. 635, 646, 760 S.E.2d 883, 894 (2014) (Weaver cites the
following reasons for abolishing alienation of affections claims: “(1) the potential for
blackmail and extortion between spouses; (2) the difficulty in assessing the loss arising
from the claim; (3) it represents a forced sale of one spouse’s affections; and (4) marital
harmony best being served by judicial noninvolvement[.]”). Accordingly, as all of Ms.
Wenz’s claims herein result from an alleged alienation of affection, which have been
abolished in West Virginia, the circuit court did not err in concluding that it did not have
subject matter jurisdiction of Ms. Wenz’s claims.

Having found that the circuit court properly concluded that it did not have subject
matter jurisdiction, and as such a conclusion is dispositive of this matter, we decline to
address Ms. Wenz’s remaining assignment of error.

Accordingly, based on the foregoing, we affirm the circuit court’s April 18, 2023,
order.

Affirmed.

ISSUED: March 25, 2024

CONCURRED IN BY:

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

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