Harold Ziler and Waneta Ziler, by counsel Clinton W. Smith,
appeal the Circuit Court of Roane County's February 1,
2016, order granting respondent's motion for summary
judgment. Respondent, Contractor Services, Inc. of West
Virginia, by counsel Christopher A. Brumley and Philip A.
Reale, II, filed its response in support of the circuit
court's order to which petitioners submitted a reply. On
appeal, petitioners argue that the circuit court erred in
granting respondent's motion and determining that the
facts of the case do not amount to a continuing tort.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the 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.
May of 2007 and June of 2007, respondent was contracted to
perform certain oil and gas well work on a property adjacent
to petitioners' property. To access the well location,
respondent utilized a road that petitioners also used to
access their property. In July of 2007, respondent completed
the well work on the adjacent property. In 2012, a land slip
occurred near the well location where respondent performed
work in 2007.
of 2012, petitioners contacted the Office of the Governor of
West Virginia to register a complaint against respondent.
Petitioners alleged that respondent "buried vehicles and
timber in the ground" and "negligently performed
its drilling and caused a slip which denied [petitioners]
access to the easement of their property." As a result,
the Governor's Office forwarded the complaint, via email,
to the West Virginia Department of Environmental Protection
of 2015, petitioners filed a complaint, and a subsequent
amended complaint, against respondent in the Circuit Court of
Roane County, alleging that it caused damage to their
property and prevented access to an easement petitioners used
to enter their property. Petitioners specifically alleged
that respondent buried vehicles and timber in the ground and
negligently performed its drilling, causing a land slip which
denied petitioners access to the easement of their property.
August of 2015, respondent filed a motion to dismiss, or
alternatively for summary judgement, contending that
petitioners' complaint was not timely filed pursuant to
West Virginia Code § 55-2-12, which provides that
"[e]very personal action for which no limitation is
otherwise prescribed shall be brought [w]ithin two years next
after the right to bring the same shall have accrued, if it
be for damage to property." Respondent contended that,
in 2012 there was evidence that petitioners knew of and
complained about the alleged facts giving rise to their
complaint. Petitioners countered that they suffered
"continuing injuries" as a result of the land slip,
which served to toll the statute of limitations. At a
September of 2015 hearing, the circuit court denied
respondent's motion to dismiss and, alternatively, ruled
that respondent's motion for summary judgement would be
taken under advisement and ordered the parties to conduct
December of 2015, respondent filed a renewed motion for
summary judgment. In support of its motion, respondent
provided evidence that, in July of 2012, petitioners called
the Office of the Governor and filed a complaint against
respondent alleging the same facts that they would later
allege in their complaint before the circuit court.
February of 2016, the circuit court held a hearing on
respondent's renewed motion for summary judgment. At the
hearing, petitioners admitted that they contacted the Office
of the Governor and made a complaint against respondent.
However, petitioners argued that they suffered a continuing
injury because respondent left timber and vehicle parts
buried in the ground on their property and failed to repair
the alleged damage resulting therefrom. Based on the evidence
presented, the circuit court found that petitioners knew of
respondent's alleged negligent acts and resulting injury
on or before July 2, 2012, more than two years prior to the
filing of their complaint. The circuit court also found that
petitioners' claims did not constitute a "continuing
tort" because the negligence petitioners complained of
was a singular act not repetitive, wrongful conduct. The
circuit court further found that respondent's alleged
failure to remove the vehicle parts and timber did not
constitute a continuing breach of duty. By order dated
February 1, 2016, the circuit court granted respondent's
renewed motion for summary judgment. It is from this order
that petitioners appeal.
previously established 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). We have also held that "[a] motion
for summary judgment should be granted only when it is clear
that there is no genuine issue of fact to be tried and
inquiry concerning the facts is not desirable to clarify the
application of the law." Id. at 190, 451 S.E.2d
at 756, Syl. Pt. 2.
first argue on appeal that a genuine issue of material fact
exists as to whether the facts of this case constitute a
continuing tort. Petitioners also contend that they suffered
a continuing injury and that the damage done to their
property continued to increase over time, thereby creating a
"new wrong each day." Upon careful review of the
record before us, we find no error.
previously concluded that "the concept of a continuing
tort requires the showing of repetitious, wrongful conduct .
. . [m]oreover a wrongful act with consequential damages is
not a continuing tort." Ricottilli v. Summersville
Mem. Hosp., 188 W.Va. 674, 677, 425 S.E.2d 629, 632
(1992). Further, even "[w]here a tort involves a
continuing or repeated injury, the cause of action accrues at
and the statute of limitations begins to run from the date of
the last injury or when the tortious overt acts or omissions
cease." Syl. Pt. 2, Roberts v. W.Va. Am. Water,
221 W.Va. 373, 655 S.E.2d 119 (2007).
record on appeal does not support petitioners' contention
that they suffered a continuing tort. Here petitioners'
argument is premised solely on respondent's alleged
single, wrongful act of burying vehicles and timber in the
ground. It is clear from the record that petitioners were
aware of respondent's alleged wrongful act as early as
July of 2012. They contend that their property damages
resulted from that one specific event. Moreover, we have held
that "[w]here a plaintiff sustains a noticeable injury
to property from a traumatic event, the statute of
limitations begins to run and is not tolled because there may
also be latent damages arising from the same traumatic
event." Id. at 375, 655 S.E.2d at 121, Syl. Pt.
5. As such, the record on appeal clearly supports the circuit
court's conclusion that petitioners' claims
"amount to consequential damages arising from an alleged
single, discrete act of negligence and do not constitute a
continuing tort and the applicable statute of limitations is
also argue on appeal that the circuit court erred in
determining that no continuing breach of duty existed, which
would have served to toll the statute of limitations. They
contend that because respondent has "never gone in and
repaired [the] damage it caused by burying car parts and
timber, " it violated a continuing duty to petitioners
and created a "new tort daily." According to
petitioners, because respondent's negligence is a
continuing breach of duty ...