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Lee v. Blue Sky Realty, LLC

Supreme Court of West Virginia

November 22, 2017

Yong Lee, Plaintiff Below, Petitioner
Blue Sky Realty, LLC, Defendant Below, Respondent

          (Monongalia County 15-C-37)


         Petitioner 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.

         This 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.

         Petitioner 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.

         On March 16, 2015, petitioner filed an "Affidavit of Due Diligence, " which began the process for effectuating constructive service by publication.[1] 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.

         Mr. 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 failed.

         On May 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 Procedure."

         Following 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 circuit court.

         By 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.

         We have 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).

         Petitioner 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.

         Under 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 ...

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