DENNIS R. RICHARDS, JR., Plaintiff Below, Petitioner
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.
from the Circuit Court of Calhoun County The Honorable Anita
Harold Ashley, Judge Civil Action No. 16-C-32.
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
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).
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
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.
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.
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.
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. Richards's DUI case was ultimately
resolved on January 19, 2012, when he entered a no-contest
plea to reckless driving.
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.
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.  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.
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) 
(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.
November 15, 2016, Richards filed a complaint in the Circuit
Court of Calhoun County against Chief Walker and the Town of
Grantsville. 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.  The relief Richards sought included
punitive damages and attorney's fees.
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 , 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
the circuit court noted that under W.Va. Code,
55-2-12(c) , 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 ...