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Richards v. Walker

Supreme Court of West Virginia

May 9, 2018

DENNIS R. RICHARDS, JR., Plaintiff Below, Petitioner
v.
ANDREW WALKER, individually and in his capacity as Chief of Police of the Town of Grantsville Police Department; and TOWN OF GRANTSVILLE, Defendants Below, Respondents

          Submitted: April 24, 2018.

          Appeal from the Circuit Court of Calhoun County The Honorable Anita Harold Ashley, Judge Civil Action No. 16-C-32.

          James D. McQueen, Jr., Esq. McQueen Davis, PLLC Huntington, West Virginia Counsel for the Petitioner.

          Timothy L. Mayo, Esq. Jeffrey Wakefield, Esq. Flaherty Sensabaugh Bonasso PLLC Charleston, West Virginia Counsel for the Respondents.

         SYLLABUS

         "A five-step analysis should be applied to determine whether a cause of action is time-barred. First, the court should identify the applicable statute of limitations for each cause of action. Second, the court (or, if questions of material fact exist, the jury) should identify when the requisite elements of the cause of action occurred. Third, the discovery rule should be applied to determine when the statute of limitations began to run by determining when the plaintiff knew, or by the exercise of reasonable diligence should have known, of the elements of a possible cause of action, as set forth in Syllabus Point 4 of Gaither v. City Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997). Fourth, if the plaintiff is not entitled to the benefit of the discovery rule, then determine whether the defendant fraudulently concealed facts that prevented the plaintiff from discovering or pursuing the cause of action. Whenever a plaintiff is able to show that the defendant fraudulently concealed facts which prevented the plaintiff from discovering or pursuing the potential cause of action, the statute of limitations is tolled. And fifth, the court or the jury should determine if the statute of limitation period was arrested by some other tolling doctrine. Only the first step is purely a question of law; the resolution of steps two through five will generally involve questions of material fact that will need to be resolved by the trier of fact." Syl. pt. 5, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009).

          KETCHUM JUSTICE.

         Dennis R. Richards, Jr., petitioner and plaintiff below, appeals from the May31, 2017, order of the Circuit Court of Calhoun County which dismissed the complaint against the respondents and defendants below, Police Chief Andrew Walker and the Town of Grantsville.

         Richards's driving privileges were revoked by the West Virginia Division of Motor Vehicles for driving under the influence of alcohol. After the Office of Administrative Hearings reversed the revocation, Richards filed the complaint in the circuit court and alleged malicious prosecution, outrageous conduct, intentional infliction of emotional distress and defamation against Chief Walker. Richards alleged the negligent employment of Chief Walker against the Town of Grantsville.

         The circuit court granted Chief Walker and the Town of Grantsville's joint motion to dismiss on the ground that all the claims alleged were barred by the applicable statute of limitations. Upon review, this Court concludes that the circuit court reached the correct result. We, therefore, affirm the May 31, 2017, order.

         I. Factual Background

         On December 9, 2011, Richards was pulled over by Chief Walker for driving with a defective tail light or plate light. Chief Walker asked Richards if he had been drinking. Richards replied that he had consumed three or four beers. Chief Walker administered several field sobriety tests, such as standing on one foot, counting, and walking heel-to-toe. Able to complete only a portion of the tests, Richards asserted that he suffers from a number of health problems, such as chronic leg, back, and respiratory pain and weakness.

         Soon after, a backup officer arrived on the scene with preliminary breath test equipment. According to Chief Walker, the test revealed a breath alcohol content of 0.145 percent. Richards was placed under arrest and taken to the police station. Although Richards took an intoximeter test at the station, the machine did not produce a valid result. Chief Walker filed a criminal complaint in the Calhoun County magistrate court, and probable cause was found to charge Richards with first offense driving under the influence of alcohol.[1] Richards's DUI case was ultimately resolved on January 19, 2012, when he entered a no-contest plea to reckless driving.

         Later, Chief Walker submitted a DUI Information Sheet to the West Virginia Division of Motor Vehicles. The Information Sheet was postmarked May 15, 2012, and received by the Division of Motor Vehicles on May 17, 2012. Chief Walker alleged in the Information Sheet that Richards drove a vehicle on December 9, 2011, while under the influence of alcohol.[2]

         The Division of Motor Vehicles issued an order dated June 13, 2012, revoking Richards's driving privileges. The order stated that the revocation would be effective as of July 18, 2012. Later, Richards received an amended order dated April 23, 2013, which also referred to July 18, 2012, as the effective date of the revocation. Richards contested the revocation, and an administrative hearing was scheduled for October 24, 2012. [3] Chief Walker was under subpoena but did not appear. Although Richards moved to dismiss the revocation, the hearing was rescheduled to July 19, 2013. Chief Walker, again under subpoena, did not appear. Richards's motion to dismiss was denied. Thereafter, the Division of Motor Vehicles filed a subpoena enforcement action. That action was dismissed upon Chief Walker's statement that he had not received the two previously issued subpoenas and upon his promise to appear at future hearings. The hearing was then scheduled for May 20, 2014. Again, Chief Walker did not appear.

         On March 18, 2016, the hearing examiner of the Office of Administrative Hearings concluded that the revocation of Richards's driving privileges should be reversed. The hearing examiner found that the Information Sheet Chief Walker sent to the Division in May 2012 was not submitted in a timely manner. See W.Va. Code, 17C-5A-1(b) [2008] (Law enforcement required to submit DUI investigation report regarding offender to DMV within forty-eight hours). Moreover, the hearing examiner found that Chief Walker failed to obey the subpoenas without justification. The hearing examiner's determinations were approved by the Chief Hearing Examiner on March 21, 2016. As a result, the revocation of Richards's driving privileges was overturned on the basis that the evidence was insufficient to prove that he drove a motor vehicle on December 9, 2011, while under the influence of alcohol.

         II. Procedural Background

         On November 15, 2016, Richards filed a complaint in the Circuit Court of Calhoun County against Chief Walker and the Town of Grantsville.[4] Alleging that Chief Walker falsified information in both the criminal complaint and the DUI Information Sheet, Richards asserted claims against Chief Walker for malicious prosecution, outrageous conduct, intentional infliction of emotional distress and defamation. In addition, Richards asserted a claim against the Town of Grantsville alleging the negligent employment of Chief Walker. [5] The relief Richards sought included punitive damages and attorney's fees.

         Chief Walker and the Town of Grantsville filed a motion to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. They alleged that all of Richards's claims were barred by the statute of limitations. The circuit court agreed and granted the motion by order entered on May 31, 2017. Central to the circuit court's determination was W.Va. Code, 55-2-12 [1959], which states:

Every personal action for which no limitation is otherwise prescribed shall be brought: (a) Within two years next after the right to bring the same shall have accrued, if it be for damage to property; (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries; and (c) within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative.

         First, the circuit court noted that under W.Va. Code, 55-2-12(c) [1959], the statute of limitation for both malicious prosecution and defamation is one year. See Snodgrass v. Sisson's Mobile Home Sales, Inc., 161 W.Va. 588, 594, 244 S.E.2d 321, 325 (1978) (Malicious prosecution and defamation take a one-year statute of limitations under W.Va. Code, 55-2-12(c).). The circuit court determined that Richards's malicious prosecution claim began to run on January 19, 2012, when he entered the no-contest plea to reckless driving and that his defamation claim began to run in June 2012 when he received the initial revocation order, dated June 13, 2012, from the Division of Motor Vehicles. Because ...


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