E.K. suffered years of sexual abuse while in foster care. He
filed suit against Respondent West Virginia Department of
Health and Human Resources (the "DHHR") alleging
negligent placement/monitoring. The circuit court dismissed,
with prejudice, his claim as time-barred because E.K. filed
the lawsuit more than two years after he turned eighteen.
Considering matters outside the complaint, the court further
determined that it "could not in good faith" allow
amendment of the complaint.
appeal to this Court, E.K., by counsel Bruce E. Stanley,
contends the circuit court committed reversible error by
dismissing his complaint with prejudice. If allowed to amend
his complaint, E.K. argues that factual development will show
that his claim was timely. Moreover, he will allege that the
DHHR fraudulently concealed information which prevented him
from discovering or pursing his claims, thus tolling the
statute of limitations. The DHHR by counsel, Kelly C. Morgan
and Kristen V. Hammond, counters that the circuit court did
not err in finding that the applicable statute of limitations
could not be tolled beyond E.K.'s twentieth birthday. The
DHHR argues that any amendment to the complaint would
ultimately prove futile.
merit to E.K.'s arguments, we reverse and remand with
instructions to allow E.K. to file an amended complaint.
Whether the statute of limitations is tolled depends on
unresolved questions of fact that would benefit from
discovery. Inasmuch as this case does not present a new or
significant question of law, this matter satisfies the
"limited circumstances" requirement and a
memorandum decision reversing the decision of the circuit
court is appropriate in accordance with Rule 21(d) of the
West Virginia Rules of Appellate Procedure.
Facts and Procedural History
2011, the DHHR removed fifteen-year-old E.K., and his
brothers, from their home due to allegations of physical
abuse by their biological father. The DHHR placed the
children under the foster care of Ms. J.W.L., without
providing foster-parent training to her prior to this
placement. For several years thereafter, J.W.L. sexually
abused E.K. on a regular basis.
reported the sexual abuse to authorities in June of 2014,
when he was nineteen years old. In August of 2014,
forty-year-old J.W.L. was arrested and charged with sexual
abuse by a parent. The outcome of J.W.L.'s criminal
proceeding is not in the record before us.
initiated the present action in February of 2016 by filing a
one-count complaint against the DHHR alleging negligent
placement/monitoring. Specifically, he stated that the DHHR
breached its duty to "adequately investigate the
prospective foster home placement, and to regularly monitor
the home after any such placement to assure that [he] was not
being further abused, particularly after 'other referrals
were being made because . . . a lot of people in the
community . . . knew [what] was going on.'" E.K.
asserted that at no time did anyone with the DHHR advise him
"regarding his legal rights or discuss with him the
advisability of him consulting legal counsel regarding his
situation." E.K. alleged that the DHHR's breach of
its duty resulted in his long-term physical sexual abuse at
the hands of his foster mother, and this abuse caused severe
emotional trauma and psychological injuries.
admitted that he never told anyone with the DHHR that his
foster mother was abusing him sexually; he was afraid that
the DHHR would separate him and his brothers if they were
removed from her home. Nevertheless, E.K. alleged that the
DHHR "had been advised of the situation over the
entirety of the three years[.]" He claimed that his
sibling, L.K.-who was removed from the foster home for having
run away-informed the DHHR of the abuse taking place in
J.W.L.'s household as early as 2012. He further alleged
that J.W.L.'s conduct "was not news in the
surrounding community," and that the DHHR responded to
the home following referrals on several occasions but did
nothing to protect him.
DHHR has not answered E.K.'s complaint. Instead, in April
of 2016, the DHHR filed a motion to dismiss under Rule
12(b)(6) of the West Virginia Rules of Civil Procedure. The
DHHR raised an affirmative defense and asserted E.K.'s
claim was time-barred based on the applicable two-year
statute of limitations. Although the statute of limitations was
tolled until E.K. reached the age of majority, E.K. turned
eighteen on March 2, 2013. Thus, the DHHR argued he would
have two years, until March 2, 2015, to file his lawsuit and
still be in conformity with the statute. Here, E.K. waited
nearly three years after he turned the age of eighteen to
file this lawsuit.
opposing the motion to dismiss, E.K. asserted in his response
that he was still under the control of the DHHR until March
of 2015 (because he was living in a group home operated by
the DHHR), less than a year before he filed his complaint.
E.K. further alleged, for the first time, that the DHHR
breached a duty created by its own internal policy manual
regarding the need to instruct a child in the foster care
system that he/she has generally up to two years after
reaching eighteen years of age to file a cause of action in a
personal injury lawsuit. E.K. argued that it was undisputed
that the DHHR failed to carry out its affirmative duty to
explain to him the time limits regarding his right to pursue
any claims, "including claims he might have against
DHHR while still under DHHR's control." Thus,
he argued there was "the question of whether 'the
statute of limitation period was arrested by some other
DHHR replied that E.K. was "mixing apples and
oranges" because any alleged breach of the DHHR's
internal policy would have nothing to do with the negligent
placement/monitoring claim E.K. pled in his complaint.
Because these are separate and distinct causes of action, the
DHHR reasoned that one cannot be used to toll the statute of
limitations of the other. Moreover, because E.K. did not
allege in his complaint that he remained under the custody
and control of the DHHR for two years after he
turned the age of eighteen, the DHHR urged the circuit court
to disregard that claim as somehow tolling the statute of
a hearing on the DHHR's motion to dismiss, the circuit
court found that E.K.'s complaint was time-barred. The
circuit court emphasized that "its analysis of both the
negligent placement claim and the failure to advise claim
yielded a March 2, 2015 expiration date." It reasoned
that despite knowing "the nature of his injuries"
and "the identity" of the DHHR, E.K. failed to
bring his cause of action until February 19, 2016, nearly
three years after the DHHR's "alleged breached
duties terminated." The circuit court further stated
that it failed to see how any of E.K.'s additional
allegations raised at argument could ultimately serve to
invoke a tolling doctrine, and it "could not in good
faith" allow E.K. to amend his complaint.
Standard of Review
as this case was decided on the DHHR's motion to dismiss
under West Virginia Rule of Civil Procedure 12(b)(6), we
review this matter de novo, and follow our long-established
rule that "[f]or purposes of the motion to dismiss, the
complaint is construed in the light most favorable to
plaintiff, and its allegations are to be taken as true."
Cantley v. Lincoln Cty. Comm'n, 221 W.Va. 468,
470, 655 S.E.2d 490, 492 (2007) (citing John W. Lodge
Distrib. Co. v. Texaco, Inc., 161 W.Va. 603, 605, 245
S.E.2d 157, 158 (1978)).
purpose of a motion under Rule 12(b)(6) of the West Virginia
Rules of Civil Procedure is to test the sufficiency of the
complaint." Cantley, 221 W.Va. at 470, 655
S.E.2d at 492. This Court has held that
[t]he trial court, in appraising the sufficiency of a
complaint on a Rule 12(b)(6) motion, should not dismiss the
complaint unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief. Conley v. Gibson, 355 U.S.
41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
Syl. Pt. 3, Chapman v. Kane Transfer Co., 160 W.Va.
530, 236 S.E.2d 207 (1977).
appeal to this Court, E.K. argues that the circuit court
committed reversible error when it dismissed his complaint
with prejudice. He seeks the opportunity to file an amended
complaint and proceed with discovery. The DHHR responds that
the circuit court properly dismissed the complaint with
prejudice because any amendments would be futile considering
the fact E.K. admits that the only disability which would
toll the statute of limitations was his infancy when the
sexual abuse began. Therefore, if E.K.'s cause of action
accrued when he was a minor, he had two years after turning
eighteen to file his lawsuit.
explained below, the circuit court committed reversible error
when it dismissed the cause of action with prejudice rather
than giving E.K. the opportunity to amend his complaint,
especially when it considered matters beyond the complaint.
Moreover, the issue of whether the statute of limitations is
tolled turns on questions of fact that would benefit from
Justice Requires Leave to File an Amended Complaint
15(a) of the West Virginia Rules of Civil Procedure, which
governs the amendment of pleadings, provides in relevant part
that "a party may amend the party's pleading only by
leave of court or by written consent of the adverse party;
and leave shall be freely given when justice so
requires." This Court held in syllabus ...