CHARLESTON - The state Supreme Court ruled last year that a magistrate was correct to not only dismiss a Gilmer County man’s breach of contract suit against the county’s public service district, but also order him to pay court costs.

The court on May 29 upheld Gilmer Circuit Judge Richard A. Facemire’s ruling affirming Special Magistrate Richard G. Postalwait’s Oct. 7, 2010, decision dismissing John Zsigray’s suit against the Gilmer County Public Service District.

In a unanimous, four-page memorandum opinion, the court agreed with Facemire that Postalwait properly determined Zsigray, 58 and a Glenville resident, lacked standing to sue GCPSD, and did not abuse his discretion in ordering Zsigray to pay $671.

Memorandum opinions are issued by the Court in cases that would not be significantly aided by oral arguments and present no new or significant questions of law.

According to court records, Zsigray’s wife, Jeannie Marsh, on an unspecified date signed a contract to have GCPSD install a tap on their property. Only Marsh’s signature was on the contract.

After the tap was installed on the wrong property, Zsigray on Jan. 28, 2010, filed suit for recovery of the fees Marsh paid GCPSD. When he filed the suit, Zsigray only listed himself as a plaintiff.

Following motions filed by GCPSD, Gilmer magistrates Robert Minigh and Carol Wolfe voluntarily recused themselves from the case. On an unspecified date, Postalwait, a magistrate from neighboring Calhoun County, was appointed to hear it.

According to court records, at a July 19, 2010, pre-trial conference, Postalwait entered a scheduling order that included a trial date for later in October. On Sept. 22, 2010, Zsigray filed motion to include Marsh as a co-plaintiff.

On the day of trial, GCPSD objected to Zsigray’s motion on the grounds it was not served with it. Postalwait dismissed the case, and ordered Zsigray to pay the $671 tab to summons a jury.

Immediately, Zsigray appealed Postalwait’s decision to Gilmer Circuit Court. Following a Nov. 29, 2010, status conference hearing, Facemire not only upheld Postalwait’s decision, but also ordered Zsigray to pay an additional $145 for appealing it.

In upholding Facemire’s and Postalwait’s rulings, the court made reference to its opinions in the 2002 and 2010 cases of Findlay v. State Farm Mutual Automobile Insurance Company and Carper v. Watson. Since Zsigray not only lacked standing to file the suit, but was also warned at the pre-trial conference about it, the court said Postalwait correctly dismissed the suit when Zsigray failed to add Marsh by the trial date and assess him court costs for essentially filing a frivolous suit.

“In the present case,” the court said, “[Zsigray] had neither standing nor a legally protected interest.

“Moreover, [his] pro se motion to add his wife as a plaintiff was not filed in accordance with the West Virginia Rules of Civil Procedure for Magistrate Courts, as he did not serve the motion on opposing counsel.”

“Given the facts of this case, this Court finds no error in the circuit court’s decision to affirm the magistrate court’s dismissal of this action.”
GCPSD was represented by former Gilmer County Prosecutor Shelly Morris DeMarino. She was paid $1,803 to defend it in Zsigray’s suit.

West Virginia Supreme Court of Appeals, case number 11-0577
Gilmer Circuit Court, case number 10-CAP-30

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