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Magee v. Racing Corp. of West Virginia

Supreme Court of West Virginia

November 1, 2017

Sarah E. Magee and Michael T. Magee, Plaintiffs Below, Petitioners
v.
Racing Corporation of West Virginia d/b/a Mardi Gras Casino & Resort, a Michigan corporation, Dallas Nelson, City of Nitro, Nitro Police Department, and C. A. Greene, Defendants Below, Respondents

         Kanawha County 14-C-2234

          MEMORANDUM DECISION

         Petitioners Sarah E. Magee and Michael T. Magee (hereinafter collectively "the Magees") appeal the December 6, 2016, order of the Circuit Court of Kanawha County dismissing their complaint against respondents Racing Corporation of West Virginia d/b/a Mardi Gras Casino & Resort, Dallas Nelson (hereinafter collectively "the Mardi Gras defendants"), the City of Nitro, Nitro Police Department, and C. A. Greene (hereinafter collectively "the Nitro defendants") pursuant to West Virginia Rule of Civil Procedure 12(b)(6) for failure to file their claims against these respondents within the statute of limitations. The Magees contend that the tolling provision contained in the pre-suit notice requirements of West Virginia Code § 55-17-3(a)(2) (2008) serves to toll the statute of limitations as against all named defendants, not just those defendants entitled to pre-suit notice. By way of cross-assignment of error, the Nitro defendants assert that the circuit court erred in failing to dismiss the Magees' case for failure to prosecute.[1]

         This Court has considered the parties' briefs, oral arguments, and the record on appeal. The facts and legal arguments are adequately presented and 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 West Virginia Rules of Appellate Procedure.

         I. Factual and Procedural History

         On December 2, 2012, the Magees were overnight guests at a Christmas party at the Mardi Gras Casino in Cross Lanes, West Virginia. Mrs. Magee went to the restroom, escorted by her husband, who waited outside. While he was waiting outside, Mr. Magee was allegedly approached by Dallas Nelson, a casino security guard, who told him he had to leave the casino. When Mrs. Magee emerged, Mr. Nelson allegedly refused to allow the Magees to return to their room and contacted Nitro Police Department. When Lt. C. A. Greene of the Nitro Police Department arrived, he allegedly also refused to allow the Magees to return to their room and requested that Mr. Magee undergo a breathalyzer test. Mr. Magee refused and was arrested, along with Mrs. Magee, who "objected" to her husband's treatment. Both were taken to the Nitro Police Department; Mr. Magee alleges he was pepper sprayed and struck with a taser twice. Both were then taken to the South Central Regional Jail, where Mrs. Magee was allegedly made to shower in view of other inmates and jail personnel.

         On November 21, 2014, the Magees' counsel sent a "Notice of Claim" to Nitro Police Department[2] and the West Virginia Regional Jail and Correctional Facility Authority ("WVRJCFA") pursuant to West Virginia Code §§ 55-17-3 et seq., requiring pre-suit notice to "government agencies." The Notice was received on November 24, 2014. On December 23, 2014-twenty-one days after the two-year statute of limitations[3]-the Magees filed suit against the Mardi Gras defendants, the Nitro defendants, and the WVRJCFA. In April, 2015, the Mardi Gras defendants filed a motion to dismiss on statute of limitations grounds; no response was filed. No additional activity occurred thereafter and, on July 5, 2016, a notice of involuntary dismissal was issued by the circuit clerk, providing the Magees with fifteen days to demonstrate good cause why the case should not be dismissed pursuant to West Virginia Rule of Civil Procedure 41(b). In response, the Magees filed a motion to reinstate containing three sentences, stating they were "prepared to move forward with this matter." Each defendant below filed a response resisting the motion to reinstate, arguing that no good cause was articulated in the motion. The Magees then filed a reply stating simply that Mrs. Magee gave birth in March, 2016 to her third child and due to the upsetting nature of the case, she felt it was wise not to "actively pursue" the litigation during that time because her pregnancy was "high risk."

         The circuit court held a hearing on November 10, 2016, on both the motion to reinstate and motion to dismiss. Although the circuit court chastised the Magees' counsel for not communicating about the basis for lack of prosecution of the case, it ruled that the Magees had demonstrated good cause and the case would not be dismissed. The circuit court then took up the motion to dismiss on statute of limitations grounds. The Magees argued that the tolling provision of West Virginia Code § 55-17-3(a)(2) applied to toll the statute of limitations as to all named defendants where a pre-suit notice was required as to any defendant. The circuit court stated that it found no basis upon which to extend the statutory tolling provision to non-State governmental entities and therefore, the Magees had failed to file their complaint within the applicable statute of limitations. Accordingly, the circuit court dismissed the complaint as against all defendants except the WVRJCFA. This appeal followed.

         II. Standard of Review

         It is well-established that "[a]ppellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). Moreover, since this case involves the applicability of the tolling provision of West Virginia Code § 55-17-3, a de novo standard is equally applicable: "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). As to the Nitro defendants' cross-assignment of error regarding failure to prosecute: "We review a circuit court's order dismissing a case for inactivity pursuant to Rule 41(b) under an abuse of discretion standard." Caruso v. Pearce, 223 W.Va. 544, 547, 678 S.E.2d 50, 53 (2009). With these standards in mind, we proceed to the parties' arguments.

         III. Discussion

         The issue presented herein is straight-forward: whether the thirty-day tolling provision of West Virginia Code § 55-17-3(a)(2) operates to toll the statute of limitations as to all named defendants or only the defendant(s) requiring pre-suit notice under the statute. West Virginia Code § 55-17-1 et seq. was enacted in 2002 and is entitled "Procedures for Certain Actions on Behalf of or Against the State." (emphasis added). Its statement of purpose observes that

there are numerous actions, suits and proceedings filed against state government agencies and officials that may affect the public interest. Depending upon the outcome, this type of litigation may have significant consequences that can only be addressed by subsequent legislative action. . . . Government agencies and their officials require more notice of these actions and time to respond to them and the Legislature requires more timely information regarding these actions, all in order to protect the public interest.

W.Va. Code § 55-17-1(a). Accordingly, at least thirty days prior to suing a State agency or official, the plaintiff must provide written notice by certified mail, of the claim and relief sought. W.Va. Code § 55-17-3(a)(1). Importantly,

[i]f the written notice is provided to the chief officer of the government agency as required by subdivision (1) of this subsection, any applicable statute of limitations is tolled for thirty days from the date the notice is provided and, if received by the government agency as evidenced by the return receipt ...

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