Ronald C. Ayersman and Ronald C. "Mackey" Ayersman, Assistant State Fire Marshal v. Tammy S. Wratchford and Michael W. Wratchford and West Virginia State Fire Marshal's Office v. Tammy S. Wratchford and Michael W. Wratchford

• Court: West Virginia Supreme Court
• Decided: May 20, 2022
• Docket: 21-0174 and 21-0181
• Status: Published

Opinion

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2022 Term FILED _______________ May 20, 2022 released at 3:00 p.m. No. 21-0174 EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS _______________ OF WEST VIRGINIA

RONALD C. AYERSMAN AND RONALD C. “MACKEY” AYERSMAN, ASSISTANT STATE FIRE MARSHAL, Defendants Below, Petitioners

v.

TAMMY S. WRATCHFORD AND MICHAEL W. WRATCHFORD, Plaintiffs below, Respondents ____________________________________________________________

AND _______________

No. 21-0181 _______________

WEST VIRGINIA STATE FIRE MARSHAL’S OFFICE, Defendant Below, Petitioner

TAMMY S. WRATCHFORD AND MICHAEL W. WRATCHFORD, Plaintiffs Below, Respondents. ____________________________________________________________

Appeals from the Circuit Court of Hardy County The Honorable H. Charles Carl, III, Judge Case No. CC-16-2018-C-3

AFFIRMED ____________________________________________________________

Submitted: March 15, 2022 Filed: May 20, 2022 Shawn A. Morgan, Esq. J. David Judy, III, Esq. Susan L. Deniker, Esq. Judy & Judy Attorneys at Law Jeffrey M. Cropp, Esq. Moorefield, West Virginia Steptoe & Johnson PLLC Counsel for Respondents Tammy S. Bridgeport, West Virginia Wratchford and Michael W. Wratchford Counsel for Petitioners Ronald C. Ayersman and Ronald C. “Mackey” Ayersman

Lou Ann S. Cyrus, Esq. Shuman McCuskey & Slicer, PLLC Charleston, West Virginia Michael D. Dunham, Esq. Shuman McCuskey & Slicer, PLLC Winchester, Virginia Counsel for Petitioner West Virginia State Fire Marshal’s Office

JUSTICE WOOTON delivered the Opinion of the Court.

JUSTICE BUNN, deeming herself disqualified, did not participate in the decision of this case. SYLLABUS BY THE COURT

1. “‘This Court reviews de novo the denial of a motion for summary

judgment, where such a ruling is properly reviewable by this Court.’ Syl. Pt. 1, Findley v.

State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).” Syl. Pt. 1, W. Va.

Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).

2. “A circuit court’s denial of summary judgment that is predicated on

qualified immunity is an interlocutory ruling which is subject to immediate appeal under

the ‘collateral order’ doctrine.” Syl. Pt. 2, Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d

660 (2009).

3. “A circuit court’s entry of summary judgment is reviewed de novo.”

Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

4. “If a public officer is either authorized or required, in the exercise of

his judgment and discretion, to make a decision and to perform acts in the making of that

decision, and the decision and acts are within the scope of his duty, authority, and

jurisdiction, he is not liable for negligence or other error in the making of that decision, at

the suit of a private individual claiming to have been damaged thereby.” Syl. Pt. 4, Clark

v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).

i 5. “In the absence of an insurance contract waiving the defense, the

doctrine of qualified or official immunity bars a claim of mere negligence against a State

agency not within the purview of the West Virginia Governmental Tort Claims and

Insurance Reform Act, W.Va. Code § 29-12A-1, et seq., and against an officer of that

department acting within the scope of his or her employment, with respect to the

discretionary judgments, decisions, and actions of the officer.” Syl. Pt. 6, Clark v. Dunn,

195 W. Va. 272, 465 S.E.2d 374 (1995).

6. “To determine whether the State, its agencies, officials, and/or

employees are entitled to immunity, a reviewing court must first identify the nature of the

governmental acts or omissions which give rise to the suit for purposes of determining

whether such acts or omissions constitute legislative, judicial, executive or administrative

policy-making acts or involve otherwise discretionary governmental functions. To the

extent that the cause of action arises from judicial, legislative, executive or administrative

policy-making acts or omissions, both the State and the official involved are absolutely

immune pursuant to Syl. Pt. 7 of Parkulo v. W. Va. Bd. of Probation and Parole, 199 W.Va.

161, 483 S.E.2d 507 (1996).” Syl. Pt. 10, W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B.,

234 W. Va. 492, 766 S.E.2d 751 (2014).

7. “To the extent that governmental acts or omissions which give rise to

a cause of action fall within the category of discretionary functions, a reviewing court must

determine whether the plaintiff has demonstrated that such acts or omissions are in

ii violation of clearly established statutory or constitutional rights or laws of which a

reasonable person would have known or are otherwise fraudulent, malicious, or oppressive

in accordance with State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992).

In 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, W. Va. Reg’l Jail & Corr.

Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014).

8. “The ultimate determination of whether qualified or statutory

immunity bars a civil action is one of law for the court to determine. Therefore, unless

there is a bona fide dispute as to the foundational or historical facts that underlie the

immunity determination, the ultimate questions of statutory or qualified immunity are ripe

for summary disposition.” Syl. Pt. 1, Hutchison v. City of Huntington, 198 W. Va. 139,

479 S.E.2d 649 (1996).

9. “‘The public policy favors prosecution for crimes and requires the

protection of a person who in good faith and upon reasonable grounds institutes

proceedings upon a criminal charge. The legal presumption is that every prosecution for

crime is founded upon probable cause and is instituted for the purpose of justice.’ Syllabus

Point 4, McNair v. Erwin, 84 W.Va. 250, 99 S.E. 454 (1919).” Syl. Pt. 3, Jarvis v. W. Va.

State Police, 227 W. Va. 472, 711 S.E.2d 542 (2010).

iii 10. “[A] grand jury indictment is prima facie evidence of probable cause

for the underlying criminal prosecution, and a plaintiff may rebut this evidence by showing

that the indictment was procured by fraud, perjury, or falsified evidence.” Syl. Pt. 5, in

part, Jarvis v. W. Va. State Police, 227 W. Va. 472, 711 S.E.2d 542 (2010).

11. “Probable cause in [a] malicious prosecution action is a mixed

question of law and fact; where facts are admitted or assumed, it is a question of law in [a]

malicious prosecution action whether they constitute probable cause.” Syl. Pt. 3, Staley v.

Rife, 109 W. Va. 701, 156 S.E. 113 (1930).

12. “In a civil action for malicious prosecution, the issues of malice and

probable cause become questions of law for the court where the evidence pertaining thereto

is without conflict, or, though conflicting in some respects, is of such nature that only one

inference may be drawn therefrom by reasonable minds.” Syl. Pt. 7, Truman v. Fid. &

Cas. Co. of N.Y., 146 W. Va. 707, 123 S.E.2d 59 (1961).

13. “If the plaintiff identifies a clearly established right or law which has

been violated by the acts or omissions of the State, its agencies, officials, or employees, or

can otherwise identify fraudulent, malicious, or oppressive acts committed by such official

or employee, the court must determine whether such acts or omissions were within the

scope of the public official or employee’s duties, authority, and/or employment. To the

extent that such official or employee is determined to have been acting outside of the scope

iv of his duties, authority, and/or employment, the State and/or its agencies are immune from

vicarious liability, but the public employee or official is not entitled to immunity in

accordance with State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992) and

its progeny. If the public official or employee was acting within the scope of his duties,

authority, and/or employment, the State and/or its agencies may be held liable for such acts

or omissions under the doctrine of respondeat superior along with the public official or

employee.” Syl. Pt. 12, W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492,

766 S.E.2d 751 (2014).

14. “‘To establish prima facie proof of tortious interference, a plaintiff

must show: (1) existence of a contractual or business relationship or expectancy; (2) an

intentional act of interference by a party outside that relationship or expectancy; (3) proof

that the interference caused the harm sustained; and (4) damages. If a plaintiff makes a

prima facie case, a defendant may prove justification or privilege, affirmative defenses.

Defendants are not liable for interference that is negligent rather than intentional, or if they

show defenses of legitimate competition between plaintiff and themselves, their financial

interest in the induced party’s business, their responsibility for another’s welfare, their

intention to influence another’s business policies in which they have an interest, their

giving of honest, truthful requested advice, or other factors that show the interference was

proper.’ Syllabus Point 2, Torbett v. Wheeling Dollar Sav. & Trust Co., 173 W.Va. 210,

314 S.E.2d 166 (1983).” Syl. Pt. 5, Hatfield v. Health Mgmt. Assocs. of W. Va., 223 W.

Va. 259, 672 S.E.2d 395 (2008).

v 15. “In the context of tortious interference with a business relationship,

one who intentionally causes a third person not to perform a contract or not to enter into a

prospective business relation with another does not interfere improperly with the other’s

business relation by giving the third person (a) truthful information, or (b) honest advice

within the scope of a request for the advice. Restatement (Second) of Torts § 722 (1979).”

Syl. Pt. 5, Tiernan v. Charleston Area Med. Ctr., Inc., 203 W. Va. 135, 506 S.E.2d 578

(1998).

vi WOOTON, Justice:

These consolidated appeals stem from an investigation into a suspicious fire

that damaged the home of Tammy and Michael Wratchford (hereinafter “the Wratchfords”

or “Respondents”). Petitioner Ronald C. Ayersman (“Mr. Ayersman”), in his official

capacity as an assistant state fire marshal, investigated the fire on behalf of Petitioner West

Virginia State Fire Marshal’s Office (“WVSFMO”). Upon completion of his investigation,

Mr. Ayersman concluded that the fire was caused by arson allegedly committed by Ms.

Wratchford. A grand jury declined to indict Ms. Wratchford. Thereafter she and Mr.

Wratchford sued the WVSFMO and Mr. Ayersman in his personal and official capacities,

alleging, among other things, negligence, violations of the West Virginia Governmental

Ethics Act (“Ethics Act”), 1 and tortious interference.

Mr. Ayersman and the WVSFMO moved for summary judgment, each

asserting they were entitled to qualified immunity. The circuit court denied, in part, both

motions upon finding that several genuine disputes of material fact remained which may

defeat immunity. Mr. Ayersman and the WVSFMO appealed the rulings separately, and

this Court consolidated those appeals for purposes of argument and decision. Because we

find that the circuit court correctly denied, in part, the motions for summary judgment on

the ground that there remained outstanding issues of material fact, we affirm.

1 See W. Va. Code §§ 6B-1-1 to -3-11 (2019). 1 I. FACTUAL AND PROCEDURAL BACKGROUND

On February 20, 2017, the home of Michael and Tammy Wratchford was

damaged by a fire which burned the basement stairs and a small portion of the kitchen floor

(hereinafter the “Wratchford fire”). The Moorefield Volunteer Fire Department (“VFD”)2

responded to the fire, at which time the chief of the VFD, Doug Mongold, examined the

scene and opined that the fire may have been caused by faulty electrical wiring. Mr.

Mongold later testified in a deposition that he observed damaged wiring and burn marks at

the scene that supported this conclusion, though he was ultimately unable to pinpoint the

exact cause of the fire.

The Wratchfords maintained a fire insurance policy through Erie Insurance

Property and Casualty Company (“Erie”). When faced with a fire insurance claim, Erie

contracts with private companies to investigate the origin and cause of the structural fires

underlying the claim. With regard to the Wratchford fire, Erie contracted with Fire &

Safety Investigation Consulting Services, LLC (“FSI”), which investigates fires in

Maryland, Pennsylvania, and West Virginia. The owner of FSI, Brent Harris, personally

investigated the Wratchford fire and initially believed the fire to have been “incendiary,”

or intentionally set. However, Mr. Harris recommended to Erie that an electrical engineer

examine the site to determine whether faulty wiring may have been the cause of the fire.

2 Mr. and Mrs. Wratchford are both members of the VFD, though neither was working in their volunteer capacity at the time of the fire.

2 At the same time, Mr. Harris contacted the WVSFMO to request that they investigate the

fire as a potential arson.

Before further discussing the facts surrounding the Wratchford fire, we must

take a brief detour to discuss a matter at the heart of this appeal: the dual employment of

the investigating assistant fire marshal, Mr. Ayersman. Mr. Ayersman joined the

WVSFMO as an assistant fire marshal in 1994 and presently remains in that employ. In

January 2010, Mr. Ayersman took a second job as a part-time fire investigator for FSI.

Recognizing there may be a potential conflict in working for both the WVSFMO and a

private entity that investigates fires in West Virginia, Mr. Ayersman submitted a “Request

for Determination Regarding Secondary Employment or Voluntary Activity” to the

WVSFMO. In his request, Mr. Ayersman stated that he would only investigate fires in

West Virginia for the WVSFMO, and that he would limit his investigations for FSI to fires

that occurred in Maryland and Pennsylvania. Based on this information, Mr. Ayersman’s

supervisor determined that his dual employment created no conflict. 3 With this in mind,

we return to the events surrounding the Wratchford fire.

3 Despite this determination, we are mindful that a full review of the record reveals that Mr. Ayersman frequently logged hours as an employee of both the WVSFMO and FSI on the same days, which must inherently overlap. This is so, because on more than one occasion Mr. Ayersman logged more than twenty-four billable hours of work in a single day, and because on several days he logged no mileage travelled for his work with FSI.

3 On February 23, 2017, Mr. Harris contacted the WVSFMO to request an

investigation of the fire. The facts surrounding this initial contact are somewhat unclear

from the record, but it appears Mr. Harris directly contacted Mr. Ayersman in his official

capacity as an assistant fire marshal to request the investigation. During this conversation,

Mr. Harris expressed to Mr. Ayersman his belief that the Wratchford fire had been

intentionally set, and that he had ruled out all accidental causes of the fire. After this

conversation Mr. Harris also contacted the WVSFMO Arson Hotline to request an

investigation of the Wratchford fire as a possible arson.

Once the request was made to the WVSFMO, George Harms, 4 Mr.

Ayersman’s direct supervisor, assigned the investigation of the Wratchford fire to Mr.

Ayersman. There is substantial disagreement amongst the parties as to how Mr. Ayersman

received this assignment, but the uncontroverted testimony of both Mr. Ayersman and Mr.

Harms is that Mr. Ayersman was assigned the investigation simply because he had a lesser

workload than other WVSFMO employees. 5 We would note, however, that Mr. Ayersman

stated, perhaps anecdotally, to Mr. Wratchford that he “told [Mr. Harms] to give it to me.”

We find it pertinent to note that the record indicates Mr. Harms was also once an 4

employee of FSI.

This is so because Mr. Ayersman had apparently been on medical leave for several 5

weeks prior to the Wratchford fire. Of note, Mr. Ayersman returned to work for the WVSFMO on the day the Wratchford fire was reported to the WVSFMO. Also of note, Mr. Ayersman had returned to work for FSI several days prior to his return to work for the WVSFMO.

4 On February 24, 2017, Mr. Ayersman began his investigation into the

Wratchford fire. As part of his investigation he interviewed the Wratchfords, then

inspected the interior and exterior of the home. During his inspection of the basement stairs

Mr. Ayersman used a device to detect ignitable liquids, and the device alerted to the

presence of such liquids at that time. However, further testing revealed that no ignitable

liquids were present at the scene of the fire. At the conclusion of his initial inspection, Mr.

Ayersman indicated he believed the fire to be incendiary in nature.

Mr. Ayersman returned for a follow-up inspection of the home on February

27, 2017. That inspection was undertaken with Mr. Harris and the electrical engineer

retained by Erie. The electrical engineer eliminated faulty electrical wiring and electrical

problems as potential sources of the fire, explaining that the damaged wiring observed by

VFD Chief Mongold was caused by the fire, rather than the source of it.

Thereafter, on March 9, 2017, Ms. Wratchford voluntarily consented to a

polygraph examination conducted by civilian polygraph examiner and former West

Virginia State Police Officer Kevin Pansch. Mr. Pansch asked Ms. Wratchford a series of

questions about the fire and her whereabouts on the day of the incident, determining that

several of her answers indicated deception. After the polygraph examination concluded,

Mr. Pansch and Mr. Ayersman interviewed Ms. Wratchford, at which time she allegedly

admitted to having previously placed a lit candle beneath a tabletop Christmas tree in hopes

5 that it would burn the house down. 6 However, notwithstanding this prior attempt, Ms.

Wratchford denied having set the fire on February 20.

The interview also revealed that the Wratchfords were experiencing

significant financial problems, including that their mortgage was approximately $6,000 in

arrears. Further, Mr. Ayersman informed Ms. Wratchford that he had discovered she had

failed to pay personal property taxes in 2016, and that, despite this failure, the Wratchfords’

motor vehicles were all properly licensed. Mr. Ayersman expressed his concern that Ms.

Wratchford had abused her position as an employee of the West Virginia Division of Motor

Vehicles (“DMV”) to fraudulently register the family’s cars. Though she initially denied

having done so, Ms. Wratchford ultimately admitted — in a signed and handwritten

statement — to having provided falsified property tax receipts to another DMV employee

in order to fraudulently register her vehicles. 7

As the interview was ending Ms. Wratchford attempted to retract her

admission that she had previously attempted to set the home ablaze; she also became

6 When he was deposed, Mr. Pansch stated he did not recall Ms. Wratchford making this admission. However, we take care to note that Ms. Wratchford’s own deposition includes multiple references to this incident. A jury might reasonably construe her statements as an admission to a prior arson attempt. 7 Mr. Ayersman reported Ms. Wratchford’s conduct to the West Virginia State Police (“State Police”), who then contacted the DMV. As noted, Ms. Wratchford admitted to having abused her position as a DMV employee to fraudulently register her vehicles. She subsequently resigned from her position at the DMV.

6 physically ill. Later that evening, Ms. Wratchford attempted suicide, and was admitted to

the hospital for several days to recover.

In the meantime, Mr. Ayersman continued his investigation into the

Wratchford fire. Specifically, he turned his efforts to collecting information about the

Wratchfords’ financial troubles. In so doing, he confirmed that the Wratchfords were

significantly behind on their mortgage payments and that their lender had begun

foreclosure proceedings. Mr. Ayersman also subpoenaed the Wratchfords’ bank

statements, which indicated that at the time of the fire the Wratchfords maintained four

checking accounts, with balances of $0.26, $66.13, $103.70, and $1,330.54.

As a result of his investigation, Mr. Ayersman concluded that Ms.

Wratchford intentionally set the fire on February 20 in order to collect insurance money. 8

Mr. Ayersman provided his entire case file, along with his findings, to his WVSFMO

supervisors, Mr. Harms and Deputy State Fire Marshal Jason Baltic. Upon review of the

file, Mr. Harms and Mr. Baltic directed Mr. Ayersman to pursue criminal charges against

Ms. Wratchford.

On June 16, 2017, Mr. Ayersman did just that; he filed criminal complaints

against Ms. Wratchford, charging her with first-degree arson, two counts of burning or

8 Separately, Mr. Harris reached the same conclusion and reported his findings to Erie.

7 attempting to burn insured property (one resulting from the previous attempt to set the

home on fire), insurance fraud, and attempt to commit arson. In essence, the complaints

alleged that Ms. Wratchford intentionally set the fire in an effort to collect insurance money

so that she could bring the Wratchfords’ mortgage current and avoid foreclosure. 9 A Hardy

County magistrate reviewed the complaints and found probable cause to issue an arrest

warrant for Ms. Wratchford. Two days later, Ms. Wratchford was taken into custody, and

on June 26, 2017, the magistrate held a preliminary hearing and found probable cause to

bind over the criminal charges to a Hardy County grand jury. 10

The criminal charges were presented to the grand jury in February 2018, but

there were multiple irregularities during the proceedings. Specifically, the prosecuting

attorney declined to call Mr. Ayersman as a witness regarding the results of the

investigation. Instead, the prosecutor called an assistant fire marshal, Paul Alloway, who

was uninvolved with and had little knowledge of the investigation of the Wratchford fire.

The prosecutor also presented the testimony of an expert witness, Larry Rine, regarding

9 We would note that Mr. Ayersman’s complaints provided selective information to the magistrate regarding the Wratchfords’ financial problems, insofar as the complaints only referenced the bank account containing $0.26. 10 On July 11, 2017, Erie denied coverage for the fire loss and damages to the Wratchford home. Erie did, however, provide $5,000 to Mr. Wratchford under the innocent spouse doctrine, as no criminal charges were lodged against him and there was no evidence indicating that he was involved in the attempted arson. It appears Mr. Wratchford used a portion of that disbursement to bring the Wratchfords’ mortgage out of arrears.

8 the origin and cause of the fire. 11 In so doing, the prosecutor represented to the grand jury

that Mr. Rine was “an independent expert for the state” when, in fact, this was blatantly

untrue — Mr. Rine was retained and compensated by the Wratchfords. Ultimately the

grand jury returned no true bill on the charges against Ms. Wratchford, so all charges were

dismissed, without prejudice.

Thereafter, Mr. Wratchford filed an ethics complaint alleging that Mr.

Ayersman’s conduct during the investigation constituted violations of the Ethics Act. 12

The complaint was referred to the Probable Cause Review Board (“Review Board”) of the

West Virginia Ethics Commission (“Ethics Commission”), which conducted an

investigation and dismissed the complaint, concluding that Mr. Ayersman had not

“materially violated any prohibition of the Ethics Act, West Virginia Code §§ 6B-1-1 to

6B-3-11.”

The Wratchfords then filed a civil action in the Circuit Court of Hardy

County against Mr. Ayersman, the WVSFMO, Erie, FSI and others, alleging multiple

causes of action. As to Mr. Ayersman, the Wratchfords alleged: (1) negligence in the

performance of the investigation; (2) tortious interference with employment contracts; (3)

intentional infliction of emotional distress; (4) civil conspiracy with the other defendants

11 Mr. Rine testified that the fire was caused by faulty electrical wiring. 12 W. Va. Code §§ 6B-1-1 to -3-11.

9 to illegally deny the Wratchfords insurance coverage for the fire; (5) malicious prosecution;

and (6) abuse of process. With respect to the WVSFMO, the Wratchfords alleged failure

to properly investigate the fire, ignoring exculpatory evidence; and failure to property train,

supervise, and oversee Mr. Ayersman’s conduct during the investigation.

Both Mr. Ayersman and the WVSFMO filed motions for summary judgment,

alleging they were entitled to qualified immunity. The Wratchfords opposed the motions,

arguing that there remained several outstanding issues of fact bearing upon whether the

conduct underlying the claims amounted to violations of clearly established law, or was

otherwise fraudulent, malicious, or oppressive such that qualified immunity would be lost.

For the most part agreeing with the Wratchfords, the circuit court issued two separate

orders granting, in part, 13 and denying, in part, Mr. Ayersman’s and the WVSFMO’s

motions for summary judgment. In short, the circuit court determined that several genuine

issues of material fact remained outstanding, and that the question of Mr. Ayersman’s and

the WVSFMO’s entitlement to qualified immunity should be submitted to the jury.

As discussed infra, the circuit court granted Mr. Ayersman’s motion for summary 13

judgment on the tortious interference claim. That decision was not predicated on qualified immunity, but on the merits of that claim.

10 Mr. Ayersman and the WVSFMO then filed separate appeals to this Court.

By order dated January 13, 2022, we consolidated those appeals for purposes of oral

argument, consideration, and decision.

II. STANDARD OF REVIEW

This appeal involves orders granting in part, and denying in part motions for

summary judgement. This Court has held that we “‘review[] de novo the denial of a motion

for summary judgment, where such a ruling is properly reviewable by this Court.’ Syl. Pt.

1, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).” Syl.

Pt. 1, W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 751

(2014). Moreover, “[a] circuit court’s denial of summary judgment that is predicated on

qualified immunity is an interlocutory ruling which is subject to immediate appeal under

the ‘collateral order’ doctrine.” Syl. Pt. 2, Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d

660 (2009). We have also held that “[a] circuit court’s entry of summary judgment is

reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

However, “[i]n cases where interlocutory review of qualified immunity determinations

occurs, any summary judgment rulings on grounds other than immunity are reserved for

review at the appropriate time should the interlocutory appeal result in finding immunity

inapplicable under the circumstances.” City of Saint Albans v. Botkins, 228 W. Va. 393,

397 n.13, 719 S.E.2d 863, 867 n.13 (2011). With these standards in mind, we address the

parties’ arguments.

11 III. DISCUSSION

On appeal, the petitioners raise several assignments of error. Mr. Ayersman

contends that the circuit court erred in denying his motion for summary judgment as to the

negligence claims pled in the Wratchfords’ Amended Complaint, as well as his motion for

summary judgment as to claims of intentional infliction of emotional distress, civil

conspiracy, malicious prosecution, and abuse of process. The WVSFMO argues that the

circuit court erred by failing to grant its motion for summary judgment as to the

Wratchfords’ claim that the WVSFMO negligently trained and supervised Mr. Ayersman.

The WVSFMO also asserts that the circuit court erred in failing to grant its motion for

summary judgment insofar as it is entitled to qualified immunity for its employees’

discretionary acts and insofar as Mr. Ayersman’s alleged conduct was outside the scope of

his employment.

The Wratchfords raise two cross-assignments of error. Specifically, they

argue that the circuit court erred in dismissing their claim for tortious interference against

Mr. Ayersman, and in concluding that the Ethics Act cannot constitute a “statutory or

constitutional rights violation” to defeat a claim of qualified immunity. We address each

of the parties’ arguments in turn.

A. Negligence Claim against Mr. Ayersman

We begin our analysis with Mr. Ayersman’s argument that the circuit court

erred in denying his motion for summary judgment as to the Wratchfords’ claim that he

12 was negligent in investigating the Wratchford fire. Mr. Ayersman contends that the law of

this state unequivocally provides that negligence claims against public officials in the

performance of discretionary functions are barred. He draws this from the following

holdings:

If a public officer is either authorized or required, in the exercise of his judgment and discretion, to make a decision and to perform acts in the making of that decision, and the decision and acts are within the scope of his duty, authority, and jurisdiction, he is not liable for negligence or other error in the making of that decision, at the suit of a private individual claiming to have been damaged thereby.

....

In the absence of an insurance contract waiving the defense, the doctrine of qualified or official immunity bars a claim of mere negligence against a State agency not within the purview of the West Virginia Governmental Tort Claims and Insurance Reform Act, W.Va. Code § 29-12A-1, et seq., and against an officer of that department acting within the scope of his or her employment, with respect to the discretionary judgments, decisions, and actions of the officer.

Syl. Pts. 4 and 6, Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995).

While we agree that this Court has generally recognized that claims sounding

in “mere negligence” against public officials cannot stand, the claim asserted in this case

belies that characterization. Syllabus point ten of A.B. directs a reviewing court to “first

identify the nature of the governmental acts or omissions which give rise to the suit for

purposes of determining” whether qualified immunity applies. A.B., 234 W. Va. at 497,

766 S.E.2d at 756. While respondents assert generally that Mr. Ayersman acted

13 “negligently” in his investigation of the fire, their specific allegations and the evidence

adduced reveal far more than the type of “mere negligence” rendered immune pursuant to

Clark. In fact, the Amended Complaint illustrates that this “negligence” claim is

predicated on intentional conduct and is essentially a watered-down version of the

Wratchfords’ civil conspiracy claim, as they allege that “[e]ach of the [d]efendants were

negligent in their reliance upon the work product of the other investigators. . .in

determining the causation of the fire[.]” Taken in conjunction with the rest of the Amended

Complaint, which alleges that the named defendants worked in concert to deprive the

Wratchfords of the insurance proceeds — namely the civil conspiracy claim pled in the

same Amended Complaint — it is clear this is not a claim of “mere negligence,” but one

predicated on intentional conduct allegedly undertaken to prevent the Wratchfords from

recovering under their insurance policy. For this reason, we conclude that the Wratchfords’

negligence claim is mischaracterized and, thus, is not explicitly barred by the doctrine of

qualified immunity under syllabus point six of Clark. See 195 W. Va. at 274, 465 S.E.2d

at 376, syl. pt. 6.

That said, Mr. Ayersman is still a state employee, so he may still be entitled

to qualified immunity for causes of actions arising from the acts or omissions that underlie

the Wratchfords claims. In this regard, we have explained that

[t]o the extent that governmental acts or omissions which give rise to a cause of action fall within the category of discretionary functions, a reviewing court must determine whether the plaintiff has demonstrated that such acts or omissions are in violation of clearly established statutory or

14 constitutional rights or laws of which a reasonable person would have known or are otherwise fraudulent, malicious, or oppressive in accordance with State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992). In absence of such a showing, both the State and its officials or employees charged with such acts or omissions are immune from liability.

A.B., 234 W. Va. at 497, 766 S.E.2d at 756, syl. pt. 11.

The Wratchfords argued below, as they do on appeal, that Mr. Ayersman

violated the Ethics Act, specifically West Virginia Code § 6B-2-5(e) 14, insofar as he

communicated information about the investigation of the fire at their home to third parties.

However, the Wratchfords’ argument on this point is flawed; the Review Board explicitly

found that no such violation had been committed. More specifically, any information Mr.

Ayersman shared with third parties (Erie and FSI) was not confidential; moreover, the

WVSFMO has no policy prohibiting fire marshals from sharing information regarding such

information with third parties like fire insurers and private companies investigating

suspicious fires. 15

14 West Virginia Code § 6B-2-5(e) provides, in relevant part that “[n]o present or former public official or employee may knowingly and improperly disclose any confidential information acquired by him or her in the course of his or her official duties nor use such information to further his or her personal interests or the interests of another person.” 15 In fact, the existence of such a policy would seem counterintuitive insofar as the very function of the WVSFMO is to investigate potential arsons and the results of such investigations would necessarily be of use to an insurance company in determining how to handle an insurance claim resulting from a fire.

15 On appeal, the Wratchfords contend that the Review Board was misled by

the WVSFMO, arguing that the WVSFMO falsely represented to the Review Board that

there was “no policy against sharing information about fire investigations with other

agencies, law enforcement, or insurance companies.” However, the Wratchfords have

cited nothing purporting to show the existence of such a policy; rather, their only citation

is to an email from Mr. Ayersman which includes language stating that he will not share

information with third parties. The unrefuted testimony below established that Mr.

Ayersman added that language to the emails himself, not at the request of the WVSFMO.

In the absence of any citation — to the record or otherwise — purporting to show that such

a policy against sharing information with insurance companies exists, we cannot conclude

that there has been a violation of the Ethics Act, or that the circuit court erred in finding

that no such violation had been shown.

To reiterate, the Wratchfords’ entire argument that Mr. Ayersman violated

some clearly established statutory or constitutional right or law hinges upon an alleged

violation of the Ethics Act. The Probable Cause Review Board (“Review Board”) of the

West Virginia Ethics Commission — which is specifically tasked with determining

whether an ethics violation has occurred — definitively concluded that a violation did not

occur. Other than a bare allegation that the Review Board was misled, the Wratchfords

16 have presented this Court with nothing to indicate that conclusion was flawed.

Accordingly, the Wratchfords’ argument on this point must fail. 16

Given that the Wratchfords cannot establish a violation of clearly established

constitutional or statutory laws or rights, the only way they can overcome the presumption

of qualified immunity for Mr. Ayersman is to demonstrate that his conduct in investigating

the fire was fraudulent, malicious, or oppressive. We have held:

The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition.

Syl. Pt. 1, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996). We

have also stated in Maston v. Wagner, 236 W. Va. 488, 508 n.15, 781 S.E.2d 936, 956 n.15

(2015), that questions regarding malice “are questions for the fact-finder.”

In examining the record before this Court, we have little trouble determining

that there are enough disputed “foundational or historical facts” regarding Mr. Ayersman’s

conduct during the investigation of the fire to preclude summary judgment on qualified

16 The circuit court went a step further and held that the Ethics Act generally does not afford individual rights that may be enforced via civil suits, so it cannot be a “clearly established statutory or constitutional right or law,” the violation of which can overcome qualified immunity. In their cross-assignment of error, the Wratchfords contend the circuit court erred in reaching this conclusion. However, because there is no violation of the Ethics Act in the case at bar, we need not address this argument.

17 immunity grounds. Specifically, we are most concerned with Mr. Ayersman’s dual

employment with the WVSFMO and FSI. To be clear, we are not stating that Mr.

Ayersman’s dual employment in and of itself constitutes fraudulent, malicious, or

oppressive conduct.

Rather, the facts of this case indicate that there are serious questions as to for

whom Mr. Ayersman was working during the investigation. Despite Mr. Ayersman’s

contention that he was working in his official fire marshal capacity during the investigation

of the fire, several documents contained in the record call that into question, including Mr.

Ayersman’s time sheets listing the hours he worked for the WVSFMO and FSI — time

sheets indicating that on more than one occasion he worked more than twenty-four hours

a day. That necessarily implies that there was an overlap in the hours he was working for

the WVSFMO and FSI.

Beyond this, we cannot ignore that there are questions surrounding Mr.

Ayersman’s contact with Mr. Harris prior to the investigation. While we acknowledge that

Mr. Harris is Mr. Ayersman’s supervisor in his private employment, the juxtaposition of

that contact with the start of this investigation is troubling — particularly given other

outstanding questions regarding how Mr. Ayersman came to be assigned to this

investigation by the WVSFMO. Similarly, it is not unreasonable to think a jury might find

that Mr. Ayersman’s conduct during Ms. Wratchford’s polygraph examination and

interview could rise to the level of malice. An examination of the basic facts surrounding

18 that specific portion of the investigation reveals not only that it lasted four-and-a-half

hours, but that Ms. Wratchford became physically ill during the interview, and that there

are disputes about the admission she allegedly made therein. Moreover, those

circumstances, when coupled with Ms. Wratchford’s suicide attempt that evening, leave

far more questions than answers regarding the tactics employed during the interview.

Finally, we note that the Wratchfords have alleged that Mr. Ayersman

included false or misleading information in the criminal complaints he filed with the

magistrate court at the close of his investigation. In particular, the Wratchfords contend

Mr. Ayersman did not accurately represent their finances, insofar as he did not provide the

magistrate court with a complete list of the Wratchfords’ bank accounts in an effort to

imply that Ms. Wratchford had a motive to commit arson. In a similar vein, the

Wratchfords contend that Mr. Ayersman falsely alleged Ms. Wratchford admitted to a prior

arson attempt when she left a lit candle burning under a tabletop Christmas tree. As noted

above, the record calls into question whether Ms. Wratchford made such an admission, as

she denies having done so and the polygraph examiner, when deposed, also stated he did

not recall her making that admission. However, in her own deposition, Ms. Wratchford

recounts the incident, so it is not outside of the realm of possibility that she did make such

an admission during or after the polygraph examination. Ultimately, whether the inclusion

of that admission in the criminal complaints is evidence of fraud, malice, or oppression

sufficient to overcome qualified immunity is not our charge, but that of the jury on remand.

19 Based on the foregoing, we agree with the circuit court that there are disputes

of historical or foundational fact that warrant review by a factfinder before a determination

can be made as to whether Mr. Ayersman is entitled to qualified immunity on the

negligence claims. Accordingly, we affirm the circuit court’s order on this point.

B. Intentional Acts Claims against Mr. Ayersman

Mr. Ayersman next argues the circuit court should have found he was entitled

to qualified immunity for the following intentional acts: (1) intentional infliction of

emotional distress; (2) civil conspiracy; (3) malicious prosecution; and (4) abuse of

process. The theory underlying each of these is that Mr. Ayersman worked in concert with

FSI and Erie to determine that the fire at the Wratchfords’ home was the result of arson so

Erie would not have to pay the Wratchfords’ insurance claim. Mr. Ayersman contends

that, because each of these claims stem from the allegedly wrongful arrest, charge, and

prosecution of Ms. Wratchford, he is entitled to qualified immunity insofar as he had

probable cause to file charges against her. We disagree.

In making his argument Mr. Ayersman cites to a decision of the United States

Court of Appeals for the Fourth Circuit, which held that in determining whether a law

enforcement officer like the fire marshal “is entitled to qualified immunity, the guiding

principle is that ‘[o]nly where the warrant application is so lacking in indicia of probable

cause as to render official belief in its existence unreasonable will the shield of immunity

be lost.’” Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991) (quoting Malley v.

20 Briggs, 475 U.S. 335, 344-45 (1986)). Essentially, he argues that a magistrate found

probable cause to arrest and charge Ms. Wratchford, so he is necessarily entitled to

qualified immunity. However, in making his argument, Mr. Ayersman overlooks pertinent

authority in West Virginia which undermines his position.

While a magistrate found probable cause to arrest and charge Ms.

Wratchford, we note that the grand jury specifically declined to indict her. This Court has

recognized that “‘public policy favors prosecution for crimes and requires the protection

of a person who in good faith and upon reasonable grounds institutes proceedings upon a

criminal charge. The legal presumption is that every prosecution for crime is founded upon

probable cause and is instituted for the purpose of justice.’” Syl. Pt. 3, Jarvis v. W. Va.

State Police, 227 W. Va. 472, 711 S.E.2d 542 (2010) (quoting Syl. Pt. 4, McNair v. Erwin,

84 W. Va. 250, 99 S.E. 454 (1919)). In this context we have recognized that, while “a

grand jury indictment is prima facie evidence of probable cause for the underlying criminal

prosecution. . .a plaintiff may rebut this evidence by showing that the indictment was

procured by fraud, perjury, or falsified evidence.” Id. at 474, 711 S.E.2d at 544, syl. pt. 5,

in part (emphasis added). This comports with our longstanding holding that “the discharge

by a justice of the plaintiff, who has been arrested and brought before him for examination,

or the refusal of the grand jury to indict him, is prima facie evidence of a want of probable

cause.” Thomas v. Beckley Music & Elec. Co., 146 W. Va. 764, 773, 123 S.E.2d 73, 78

(1961) (citing Syl. Pt. 2, in part, Harper v. Harper, 49 W. Va. 661, 39 S.E. 661 (1901))

(some emphasis added).

21 Here, the Hardy County grand jury explicitly declined to indict Ms.

Wratchford; under the law in this state, that is evidence of a want of probable cause.

Accordingly, Mr. Ayersman’s assertion that he is entitled to immunity on the grounds that

he had probable cause to charge Ms. Wratchford must be reviewed by the finder of fact.

That said, even if the grand jury had indicted her, thus creating a prima facie showing of

probable cause, Ms. Wratchford would still be entitled to rebut that evidence by showing

that the indictment was procured by fraud, perjury or falsified evidence. As discussed

supra, she raised several allegations to that effect insofar as she asserted that Mr.

Ayersman’s criminal complaints contained false and misleading statements — in the form

of omitted financial information, and the inclusion of an allegedly false statement that Ms.

Wratchford admitted to a prior arson attempt.

In this regard, we explained long ago that “[p]robable cause in [a] malicious

prosecution action is generally [a] mixed question of law and fact[.] Syl. Pt. 3, in part,

Staley v. Rife, 109 W. Va. 701, 156 S.E. 113 (1930). We have further explained that

[i]n a civil action for malicious prosecution, the issues of malice and probable cause become questions of law for the court where the evidence pertaining thereto is without conflict, or, though conflicting in some respects, is of such nature that only one inference may be drawn therefrom by reasonable minds.

Syl. Pt. 7, Truman v. Fid. & Cas. Co. of N.Y., 146 W. Va. 707, 123 S.E.2d 59 (1961)

(emphasis added). Without question, the facts surrounding the arrest, charging, and

prosecution of Ms. Wratchford are in conflict; accordingly, our holding in Truman dictates

22 that the questions of probable cause and malice in this action are not questions of law, but

are instead questions of fact which must be submitted to a jury. 17

In examining the remaining claims, we have even less trouble determining

that summary judgment would not have been appropriate. As to the intentional infliction

of emotional distress claim, there are questions regarding Mr. Ayersman’s conduct,

including his tactics in interviewing Ms. Wratchford, and his allegedly acting in concert

with the other defendants to falsify the results of the investigation. Likewise with respect

to the civil conspiracy claim, as the Wratchfords allege that each of the defendants,

including Ayersman and the WVSFMO, acted jointly to accomplish an unlawful purpose,

in that they allegedly fabricated a finding of arson to relieve Erie of its obligation to pay

the Wratchfords’ insurance claim. The record, as noted in the preceding sections, contains

17 As a final aside, we would also point out that some of the disputes may inure to Mr. Ayersman’s benefit. In particular, there were myriad irregularities in the presentation of the criminal charges against Ms. Wratchford to the grand jury. These include but are not limited to the prosecutor’s decision to call a fire marshal totally uninvolved in the investigation to testify on behalf of the WVSFMO, and the prosecutor’s flagrant misrepresentation to the grand jury that an expert witness retained and compensated by the Wratchfords was “an independent witness for the State.” While we cannot say that these irregularities influenced the grand jury in its decision not to indict Ms. Wratchford, a civil jury may come to that conclusion. In that instance, the civil jury could reasonably find that, despite the grand jury’s refusal to indict Ms. Wratchford, Mr. Ayersman had probable cause to seek her prosecution. In that event Mr. Ayersman would be entitled to qualified immunity on these claims.

23 evidence that could lead a jury to find that Ayersman and the WVSFMO are not entitled to

qualified immunity to shield them from these claims.

Ultimately, the circuit court correctly concluded that there are issues of fact

which must be resolved in order to determine whether Mr. Ayersman is entitled to qualified

immunity with regard to the Wratchfords’ claims of intentional tortious conduct. For this

reason, we affirm the circuit court’s denial of summary judgment as to these claims.

C. The WVSFMO’s Immunity

First, the WVSFMO argues that if Mr. Ayersman is immune, the WVSFMO

must also be immune under a theory of vicarious liability. Since Mr. Ayersman’s immunity

is yet to be resolved, this argument is premature.

Second, the WVSFMO argues that even if Mr. Ayersman is not immune, his

conduct falls outside the scope of his employment and therefore the WVSFMO cannot be

held to account for it. Several of the Wratchfords’ claims against Mr. Ayersman could be

construed as alleging conduct that is not in the ordinary course of his job duties, including

the allegations surrounding Mr. Ayersman’s conduct during the polygraph examination

and interview, and the allegation that he falsely indicated that Ms. Wratchford admitted to

a prior arson attempt. If these allegations are found to be true, a jury may conclude that

this conduct was outside the scope of Mr. Ayersman’s employment, negating WVSFMO’s

vicarious liability.

24 To this point, we have plainly held that

[i]f the plaintiff identifies a clearly established right or law which has been violated by the acts or omissions of the State, its agencies, officials, or employees, or can otherwise identify fraudulent, malicious, or oppressive acts committed by such official or employee, the court must determine whether such acts or omissions were within the scope of the public official or employee’s duties, authority, and/or employment. To the extent that such official or employee is determined to have been acting outside of the scope of his duties, authority, and/or employment, the State and/or its agencies are immune from vicarious liability, but the public employee or official is not entitled to immunity in accordance with State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992) and its progeny. If the public official or employee was acting within the scope of his duties, authority, and/or employment, the State and/or its agencies may be held liable for such acts or omissions under the doctrine of respondeat superior along with the public official or employee.

A.B., 234 W. Va. at 497, 766 S.E.2d at 756, syl. pt. 12. We further recognized

in A.B. that “whether an agent is ‘acting within the scope of his employment and about his

employer’s business [. . .] is generally a question of fact for the jury and a jury

determination on that point will not be set aside unless clearly wrong.” Id. at 509, 766

S.E.2d at 768 (quoting Syl. Pt. 4, in part, Griffith v. George Transfer and Rigging, Inc.,

157 W. Va. 316, 201 S.E.2d 281 (1973)) (emphasis in original). We elaborated upon this

by stating that

“[o]rdinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’ In some cases, the relationship between an employee’s work and wrongful conduct is so attenuated that a jury could not reasonably conclude that the act was within the scope of employment.”

25 Id. (quoting Mary M. v. City of Los Angeles, 814 P.2d 1341 (Cal. 1991)). In the case at bar

there are many disputed facts regarding Mr. Ayersman’s conduct. A jury must determine

whether Mr. Ayersman was acting within the scope of his employment. Until that

determination is made, the WVSFMO’s entitlement to qualified immunity cannot be

resolved.

Finally, the WVSFMO contends that the circuit court erred in finding that it

was not entitled to qualified immunity on the Wratchfords’ claim that the WVSFMO

negligently trained and supervised Mr. Ayersman. This Court has recognized that “broad

categories of training, supervision, and employee retention . . . easily fall within the

category of ‘discretionary’ governmental functions.” Id. at 514, 766 S.E.2d at 773. As

such, we once again apply the standard that a government entity engaged in performing

discretionary functions is entitled to immunity unless the plaintiff demonstrates “that such

acts or omissions are in violation of clearly established statutory or constitutional rights or

laws . . . or are otherwise fraudulent, malicious, or oppressive[.]” Id. at 497, 766 S.E.2d at

756, syl. pt. 11.

In this regard, the Wratchfords contend that Mr. Ayersman’s WVSFMO

supervisors assisted in orchestrating this faulty investigation by: (1) assigning him to the

investigation despite knowing of his potential conflict of interest; (2) condoning, accepting,

or covering up his alleged failure to adhere to WVSFMO policies and the law; (3) providing

allegedly false information to the Ethics Commission to protect Mr. Ayersman; and (4)

26 directing Mr. Ayersman to file allegedly unfounded criminal charges against Ms.

Wratchford. Assuming a jury determined Mr. Ayersman’s conduct below was fraudulent,

malicious, or oppressive, it is not unreasonable that the same jury may find that the

WVSFMO acted in a manner which would strip it of qualified immunity for its

discretionary supervision of Mr. Ayersman. As stated above, the resolution of this question

lies with a jury, as it is contingent upon the resolution of numerous disputed facts.

Based on the foregoing, each of the WVSFMO’s arguments fails at this time

because — as with Mr. Ayersman — there are multiple factual issues that must be resolved

before an immunity determination can be made. Therefore, we affirm the circuit court’s

denial of summary judgment on these points.

D. The Wratchfords’ Cross-Assignments of Error

The Wratchfords advance two cross-assignments of error in this appeal.

First, they contend that the circuit court erred in concluding that a violation of the Ethics

Act is not a “violation of clearly established statutory or constitutional rights or laws”

sufficient to thwart summary judgment. As noted above, the Review Board of the Ethics

Commission has already determined that there was no violation of the Ethics Act in this

case, so we need not determine whether the circuit court erred in this regard.

As such, the only remaining argument the Wratchfords advance is that the

circuit court erred in granting Mr. Ayersman’s motion for summary judgment regarding

27 their tortious interference claim. The Wratchfords argued below that Mr. Ayersman

tortiously interfered with Ms. Wratchford’s employment with the DMV. Specifically, they

contend that Mr. Ayersman investigated the Wratchfords’ finances and discovered that

they had not paid personal property taxes for some three years. That failure to pay property

taxes would have precluded the Wratchfords from renewing their motor vehicle

registrations, yet their registrations were current. This was accomplished because Ms.

Wratchford falsified property tax receipts and used her position as a DMV employee to

fraudulently register the Wratchfords’ vehicles. Mr. Ayersman notified Ms. Wratchford of

his discovery and his intention to pass the information along to the State Police. While Ms.

Wratchford initially denied any wrongdoing, she later admitted she engaged in this conduct

in a handwritten, signed statement. Mr. Ayersman did ultimately inform the State Police,

and the State Police subsequently informed the DMV. Thereafter, Ms. Wratchford

voluntarily resigned from her position at the DMV.

On appeal, as she did below, Ms. Wratchford asserts that this amounts to

tortious interference, insofar as Mr. Ayersman’s informing the State Police of her conduct

resulted in the loss of her employment. This Court has explained that a prima facie case

of tortious interference is established by showing: (1) existence of a contractual or business

relationship or expectancy; (2) an intentional act of interference by a party outside that

relationship or expectancy; (3) proof that the interference caused the harm sustained; and

(4) damages. See syl. pt. 5, Hatfield v. Health Mgmt. Assocs. of W. Va., 223 W. Va. 259,

672 S.E.2d 395 (2008). Once a prima facie case is made, a defendant may prove

28 justification or privilege and affirmative defenses. Id. Under the facts of this case, there

is no question that Ms. Wratchford made out a prima facie case of tortious interference.

However, Mr. Ayersman had a clear affirmative defense: truth.

In syllabus point five of Tiernan v. Charleston Area Medical Center, Inc.,

203 W. Va. 135, 506 S.E.2d 578 (1998), we held:

In the context of tortious interference with a business relationship, one who intentionally causes a third person not to perform a contract or not to enter into a prospective business relation with another does not interfere improperly with the other’s business relation by giving the third person (a) truthful information, or (b) honest advice within the scope of a request for the advice. Restatement (Second) of Torts § 722 (1979).

The information Mr. Ayersman provided to the State Police was truthful, as evidenced by

Ms. Wratchford’s own handwritten, signed admission to that effect. Therefore, his conduct

did not amount to tortious interference, and the circuit court properly granted his motion

for summary judgment on that claim. Accordingly, we affirm the circuit court’s grant of

summary judgment on that point.

IV. CONCLUSION

Based on the foregoing, we affirm the Circuit Court of Hardy County’s

February 9, 2021, “Order Granting In Part and Denying In Part Defendant Ronald C.

Ayersman’s Motion for Summary Judgment” and its February 9, 2021, “Order Denying

West Virginia State Fire Marshal’s Office’s Motion for Summary Judgment.”

29 Affirmed.