Shaheen Shafii v. Kaden Thomas

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
June 27, 2025
SHAHEEN SHAFII, ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Plaintiff Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 24-ICA-433 (Cir. Ct. of Kanawha Cnty. Case No. CC-20-2023-C-959)

KADEN THOMAS,
Defendant Below, Respondent

MEMORANDUM DECISION

Petitioner Shaheen Shafii appeals the Circuit Court of Kanawha County’s
September 30, 2024, order granting Respondent Kaden Thomas’ motion to dismiss as a
sanction for Mr. Shafii failing to comply with the court’s prior order pursuant to Rule 37
of the West Virginia Rules of Civil Procedure. Mr. Thomas filed a response.1 Mr. Shafii
filed a reply.

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 order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

On November 3, 2022, a vehicle operated by Mr. Thomas struck Mr. Shafii’s parked
vehicle, causing significant damage to Mr. Shafii’s vehicle. Mr. Shafii made a claim with
Mr. Thomas’ insurance carrier. The policy’s $25,000 limit was insufficient to cover the
damages to Mr. Shafii’s vehicle and on October 31, 2023, Mr. Shafii filed this lawsuit
seeking to recover the damages to his vehicle.

Mr. Thomas’ counsel served discovery requests upon Mr. Shafii but Mr. Shafii
failed to respond. Mr. Thomas then filed a motion to compel responses to the discovery
requests. The circuit court granted Mr. Thomas’ motion and entered an order compelling
Mr. Shafii to respond to the discovery. Mr. Shafii did not respond as the order directed,
prompting Mr. Thomas to file his motion to dismiss pursuant to Rule 37(b) of the West
Virginia Rules of Civil Procedure.

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Mr. Shafii is self-represented. Mr. Thomas is represented by Kelly G. Pawlowski,
Esq.
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At the September 24, 2024, hearing on the sanctions motion, the circuit court
granted the motion, dismissed the case, and requested that Mr. Thomas’ counsel prepare
the order memorializing the court’s rulings. That same day, Mr. Thomas’ counsel
submitted a proposed order and a notice that, pursuant to Rule 24.01 of the West Virginia
Trial Court Rules (1999), Mr. Shafii had five days to object to the terms of the proposed
order.2

On September 30, 2024, the circuit court entered the proposed order, which
dismissed the case, with prejudice. On October 1, 2024, Mr. Shafii filed a notice objecting
to the proposed order and claimed that the case should have been dismissed without
prejudice and not with prejudice. 3 On October 9, 2024, Mr. Shafii submitted his competing
proposed order to the circuit court, which the circuit court rejected. This appeal of the
circuit court’s September 30, 2024, dismissal order followed.

We review the circuit court’s September 30, 2024, order under the following
standard: “The imposition of sanctions by a circuit court under W.Va. R. Civ. P. 37(b) for
the failure of a party to…permit discovery is within the sound discretion of the court and
will not be disturbed upon appeal unless there has been an abuse of that discretion.” Syl.
Pt. 1, in part, Bell v. Inland Mut. Ins. Co., 175 W. Va. 165, 332 S.E.2d 127 (1985).

On appeal, Mr. Shafii asserts three closely related assignments of error that we will
address together. See Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va. 396, 402, 729
S.E.2d 231, 237 (2012) (allowing consolidation of related assignments of error); see also
Jacquelyn F. v. Andrea R., No. 16-0585, 2017 WL 2608425, at *1 n.2 (W. Va. June 16,
2017) (memorandum decision) (restating assignments of error where they involve clearly
related issues). Essentially, Mr. Shafii argues that this Court should vacate the September
30, 2024, order and remand this matter to the circuit court to consider his objections that
he filed on October 1, 2024.

Rule 24.01 governs proposed orders submitted to trial courts and provides, in
pertinent part:

...

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Pursuant to TCR 24.01(c) and the time computation rules set forth in Rule 6(a)
(1998) of the West Virginia Rules of Civil Procedure, the deadline to object to the terms
of the proposed order was October 1, 2024.
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The circuit court did not specify at the hearing whether dismissal was with, or
without, prejudice.

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(b) Except for good cause or unless otherwise determined by the judicial
officer, no order may be presented for entry unless it bears the signature of
all counsel and unrepresented parties.

(c) Although it is preferred that orders be entered in accordance with
subsection (b), unless the judicial officer otherwise directs, 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 receipt of the proposed order
or such lesser time as the judicial officer directs. Opposing counsel shall
notify the presiding judicial officer, in writing, of his or her approval of or
objection to the order or any portion thereof. In the event this subsection is
utilized, the judicial officer shall consider the order for entry upon approval
by all counsel, or after five (5) days from its receipt, if no objection is
received by the judicial officer.

(d) 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). Within
five (5) days following receipt of objections and the responsive proposed
order, all counsel shall file a response to the second proposed order. If the
judicial officer determines that a hearing is necessary to resolve the conflict,
counsel objecting to the order shall be responsible for promptly scheduling
the same. Objecting, proposing modifications, or agreeing to the form of a
proposed order shall not affect a party's rights to appeal the substance of the
order.

While we agree with Mr. Shafii that the circuit court did not comply with Rule
24.01(c), we conclude that the circuit court’s noncompliance was harmless error. On
appeal, Mr. Shafii’s only specific objection to the circuit court’s order is that it dismissed
his case with prejudice, rather than without prejudice. Indeed, he argues that by entering
the order early the circuit court “denied [him] the ability to challenge the dismissal with
prejudice.” However, this is a substantive challenge to the sanction the circuit court
imposed, rather than an objection to the form of the order. Mr. Shafii does not point to
anything in the record showing that it was contrary to the circuit court’s intent to dismiss
his case with prejudice. Indeed, recognizing that “[a] court of record speaks only through
its orders,” State ex rel. Erlewine v. Thompson, 156 W. Va. 714, 718, 207 S.E.2d 105, 107
(1973), the Supreme Court of Appeals of West Virginia (“SCAWV”) has explained that

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even when a circuit court solicits proposed orders from counsel, “[i]t is incumbent on the
trial court to determine if the submitted order accurately reflects the court ruling.” Taylor
v. W. Va. Dep’t of Health & Hum. Res., 237 W. Va. 549, 558, 788 S.E.2d 295, 304 (2016).

Moreover, Mr. Shafii does not cite to any authority demonstrating that
noncompliance with Rule 24.01 is reversible error under the facts of this case. Indeed,
under almost precisely similar circumstances, the SCAWV found that a circuit court’s early
entry of an order in violation of Rule 24.01 was harmless, noting that the petitioner had not
identified any authority establishing that such a violation was reversible. See Walker v.
Fazenbaker, No. 18-1062, 2020 WL 598327, at *5 (W. Va. Feb. 7, 2020) (memorandum
decision); see also Hallman-Warner v. Umina, No. 24-ICA-132, 2024 WL 5201011, at *3
(W. Va. Ct. App. Dec. 23, 2024) (memorandum decision) (finding that circuit court’s
violation of Rule 24.01 was harmless). The SCAWV also recognized that, despite the
petitioner’s submission of objections and a competing proposed order after the entry of the
final order, “the circuit court did not deem it necessary to amend the final order in favor of
petitioner's proposed order.” Walker, 2020 WL 598327, at *5. As in that matter, Mr. Shafii
has not cited any authority demonstrating that the circuit court’s Rule 24.01 violation is
reversible, and the circuit court did not find it necessary to amend its order on receipt of
his objections and proposed order. Indeed, on October 24, 2024, the circuit court entered a
subsequent order reiterating that the matter was dismissed, stating that the prior order was
clear, and directing Mr. Shafii to cease and desist contact with the court. For the foregoing
reasons, we conclude that entry of the order prior to Rule 24.01’s five-day objection
deadline was harmless error, and we decline to reverse the circuit court on that basis.

Accordingly, we affirm the Circuit Court of Kanawha County’s September 30,
2024, order.

Affirmed.

ISSUED: June 27, 2025

CONCURRED IN BY:

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

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