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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


September 2008 Term ____________ No. 33863 ____________

FILED December 9, 2008
released at 3:00 p.m.
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

MATTHEW BRIAN YOAK, M.D.,
Plaintiff Below, Appellant
v. MARSHALL UNIVERSITY BOARD OF GOVERNORS;
UNIVERSITY PHYSICIANS AND SURGEONS, INC.,
and DAVID A. DENNING, M.D.,
Defendants Below, Appellees
______________________________________________________ Appeal from the Circuit Court of Cabell County
Hon. David M. Pancake
Case No. 06-C-957
AFFIRMED ______________________________________________________ Submitted: October 28, 2008 Filed: December 9, 2008 William V. DePaulo, Esq. Charleston, West Virginia Attorney for Appellant Charles R. Bailey, Esq. Vaughn T. Sizemore, Esq. Bailey & Wyant Charleston, West Virginia Attorneys for Appellees

The Opinion of the Court was delivered PER CURIAM. JUSTICE ALBRIGHT not participating.

SENIOR STATUS JUSTICE McHUGH, sitting by temporary assignment.

SYLLABUS BY THE COURT
1. "Appellate review of a circuit court's order granting a motion to dismiss

a complaint is de novo." Syllabus Point 2, State ex rel. McGraw v. Scott Runyan PontiacBuick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). 2. "The general rule in cases of anticipatory breach of contract is that

where one party repudiates the contract and refuses longer to be bound by it, the injured party has an election to pursue any of three remedies: he may treat the contract as rescinded and recover on quantum meruit so far as he has performed; or he may keep the contract alive for the benefit of both parties, being at all times ready and able to perform, and at the end of the time specified in the contract for performance, sue and recover under the contract; or he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized, if he had not been prevented from performing." Syllabus Point 1, Annon v. Lucas, 155 W.Va. 368, 185 S.E.2d 343 (1971). 3. "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." Syllabus Point 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996).

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Per Curiam:1

The appellant, Dr. Mathew B. Yoak, filed a civil action for both injunctive and monetary relief against his former employers, Marshall University Board of Governors and University Physicians and Surgeons, Inc., and also against David A. Denning, Chairman of the Department of Surgery at the Marshall University School of Medicine. In his complaint Dr. Yoak asserted claims against the Marshall University Board of Governors for misappropriation of identity, negligent credentialing, and wrongful termination. Dr. Yoak's claim against University Physicians and Surgeons, Inc. was for wrongful termination and his claim against Dr. Denning was for malicious tortuous interference with his contracts of employment. The circuit court dismissed the complaint for failure to state a cause of action and the appellant appeals. For the reasons stated infra, we affirm.

I. From the record in this case we observe the following: In 2002, the appellant, Dr. Mathew B. Yoak ("Yoak") accepted a faculty position as assistant professor of surgery

Pursuant to an administrative order entered on September 11, 2008, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the Supreme Court of Appeals of West Virginia commencing September 12, 2008 and continuing until the Chief Justice determines that assistance is no longer necessary, in light of the illness of Justice Joseph P. Albright.
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at the Joan C. Edwards School of Medicine at Marshall University. Dr. Yoak had a written employment contract with the Marshall University Board of Governors ("MUBG"). The contract ran from July 1, 2002, through June 30, 2003, and was renewed annually in separate agreements in 2003 and 2004

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