(Monongalia County 15-C-37)
Yong Lee, by counsel Clinton W. Smith, appeals the Circuit
Court of Monongalia County's October 31, 2016, order
dismissing his amended complaint. Respondent Blue Sky Realty,
LLC, by counsel Heather M. Noel and Sara E. Brown, filed a
response. Petitioner filed a reply. Petitioner argues that
the circuit court erred in finding that the amended complaint
did not relate back to the filing of the original complaint
and in dismissing the amended complaint.
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.
filed his original complaint on January 16, 2015, against
James Craig alleging a slip and fall injury that occurred on
January 20, 2013, on property located at 420 Grant Avenue in
Morgantown, West Virginia. Petitioner attempted service of
process upon Mr. Craig at 250 Scott Avenue in Morgantown. Mr.
Craig, who is a member of respondent, has never resided at or
otherwise occupied 250 Scott Avenue. Similarly, respondent
has never been located at this address. On January 21, 2015,
process was returned as undeliverable.
March 16, 2015, petitioner filed an "Affidavit of Due
Diligence, " which began the process for effectuating
constructive service by publication. In the affidavit,
petitioner's counsel conclusorily stated that he
"used due diligence to ascertain the whereabouts of
Brandy Smith without effect." Despite the error in
naming the party counsel was unable to serve, the record
reflects that an "Order of Publication" was issued
by the Monongalia County Circuit Clerk, which ordered the
correct individual, Mr. Craig, to serve an answer or defense
to petitioner's complaint. The "Order of
Publication, " per petitioner's representation,
stated that the object of the action was "to collect a
debt." The "Publisher's Certificate"
indicates that notice was published in the newspaper once a
week for two weeks beginning on March 25, 2015, and ending on
April 1, 2015.
Craig failed to file an answer or other responsive pleading;
accordingly, petitioner moved for default on January 19,
2016. Approximately one week later, petitioner attempted to
serve this motion at the same address at which he attempted
service of the original complaint and summons. Thus, Mr.
Craig was not served with this motion, but he became aware of
it on February 19, 2016, when the insurance agent for the
property on which petitioner purportedly fell provided Mr.
Craig with a copy of it. Thereafter, Mr. Craig appeared by
counsel and sought an enlargement of time within which to
respond to petitioner's complaint. Mr. Craig was granted
the enlargement and filed a motion for summary judgment
asserting that he was entitled to summary judgment on
petitioner's sole claim of negligence because he did not
own the subject property and, therefore, owed no duty to
petitioner. Mr. Craig also argued that petitioner failed to
exercise due diligence in attempting to personally serve him
and, for that reason, constructive service by publication
2, 2016, petitioner moved to amend his complaint to name the
owner of the property upon which he purportedly fell,
respondent, as the proper party defendant. The circuit court
granted Mr. Craig's motion for summary judgment and
dismissed him with prejudice. The court also granted
petitioner's motion to amend his complaint. The order,
entered on June 7, 2016, provided petitioner with ten days to
file his amended complaint and further stated that the
circuit court made "no ruling regarding whether the
[p]laintiff's Amended Complaint 'relates back'
pursuant to Rule 15 of the West Virginia Rules of Civil
petitioner's filing of the amended complaint, respondent
moved to dismiss it pursuant to Rules 12(b)(6) and 41(b) of
the West Virginia Rules of Civil Procedure. Respondent
asserted that petitioner failed to state a claim upon which
relief could be granted due to the expiration of the statute
of limitations. Specifically, respondent argued that it
received no notice of the subject action prior to the
expiration of the statute of limitations; therefore, the
amended complaint did not relate back to the original
complaint. Respondent also argued that dismissal was
warranted because petitioner failed to file the amended
complaint within the ten-day time frame set forth by the
order entered on October 31, 2016, respondent's motion to
dismiss was granted. The circuit court concluded that
respondent was not prejudiced by petitioner's delay in
filing the amended complaint beyond the ten-day period
provided, but it dismissed the complaint upon finding that
the notice of publication was inaccurate in that it
identified the incorrect defendant and stated that the suit
was to "satisfy a debt, " that respondent did not
receive notice of the suit until February 19, 2016, and that
petitioner's inaccurate constructive service was
insufficient to provide proper notice to respondent so as to
satisfy the relation back requirements set forth in Rule
15(c) of the West Virginia Rules of Civil Procedure. It is
from this order that petitioner appeals.
held 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).
argues on appeal that respondent has had notice of its need
to defend the instant lawsuit since the original summons and
complaint were served upon Mr. Craig by publication.
Petitioner asserts that, at the time of publication,
respondent knew or should have known that it would or could
be named as the defendant below, save for petitioner's
mistake in naming Mr. Craig as the defendant. Thus,
petitioner concludes that the amended complaint relates back
to the original complaint.
the West Virginia Rules of Civil Procedure, an amended
pleading relates back to the original pleading when
(1) relation back is permitted by the law that provides the
statute of limitations applicable to the action; or
(2) the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set
forth or attempted to be set ...