(Randolph County 16-C-107)
Randy Davis, by counsel Scott Curnutte, appeals the Circuit
Court of Randolph County's April 12, 2017, order granting
Respondent Ryan Schooley's motion to dismiss
petitioner's personal injury claims against him.
Respondent, by counsel Matthew Whitler and Anthony J.
Delligatti, filed a response in support of the circuit
court's order. On appeal, petitioner argues that the
circuit court erred in granting respondent's motion to
dismiss on the basis that the statute of limitations had
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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
August 17, 2015, petitioner filed Civil Action No. 15-C-130
in the Circuit Court of Randolph County captioned Davis
v. Schooley. However, he never served the defendant,
respondent herein, with that complaint.
of 2016, the circuit court sent petitioner a letter inquiring
about the delay in service and requesting a show of good
cause for the delay. The circuit court received no response
from petitioner. On July 27, 2016, respondent filed a motion
to dismiss for failure to serve process within 120 days, in
accordance with Rule 4(k) of the West Virginia Rules of Civil
Procedure. Petitioner did not respond to the motion to
dismiss. Ultimately, the circuit court entered an order
dismissing the matter without prejudice on August 19, 2016.
Petitioner did not appeal that order. On August 22, 2016,
petitioner filed a motion to extend time for service in the
recently dismissed matter. The circuit court denied the
motion on the basis that the prior proceeding had already
been dismissed. Petitioner did not appeal the order denying
his motion to extend time for service.
same date that petitioner filed the motion for extension, he
filed the same complaint in a new action, Civil Action No.
16-C-107, also before the Circuit Court of Randolph County.
Thereafter, petitioner located respondent in Andover,
Minnesota, and served him with the complaint in the second
proceeding days later on September 10, 2016. Respondent filed
a motion to dismiss alleging that the statute of limitations
on petitioner's personal injury claims accrued before
this second action was filed. After a hearing on
respondent's motion to dismiss, the circuit court granted
the motion to dismiss on April 12, 2017, on the basis that
the statute of limitations had accrued. Petitioner appeals
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,
194 W.Va. 770, 461 S.E.2d 516 (1995). Additionally,
"[w]here the issue on an appeal is clearly a question of
law or involving an interpretation of a statute, we apply a
de novo standard of review." Syl. Pt. 1,
Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459
S.E.2d 415 (1995).
appeal, petitioner argues that the circuit court erred in
dismissing his second complaint on the basis that the statute
of limitations accrued. He asserts that the circuit court
should have applied West Virginia Code § 55-2-18, also
known as the saving statute, and denied respondent's
motion to dismiss. Petitioner contends that his previous
complaint was involuntarily dismissed for a failure to timely
serve process and that exception is clearly covered by the
saving statute. We disagree.
West Virginia Code § 55-2-18 provides as follows:
(a) For a period of one year from the date of an order
dismissing an action or reversing a judgment, a party may
re-file the action if the initial pleading was timely filed
and (i) the action was involuntarily dismissed for any reason
not based upon the merits of the action or (ii) the judgment
was reversed on a ground which does not preclude a filing of
new action for the same cause.
(b) For purposes of subsection (a) of this section, a
dismissal not based upon the merits of the action includes,
but is not limited to: . . .
(3) A dismissal for failure to have process timely served,
whether or not the party is notified by the court of the
regard to this statute, this Court has previously pointed out
its remedial purpose and has held that it should be liberally
construed for the purpose of accomplishing its intent.
Henthorn v. Collins, 146 W.Va. 108, 111, 118 S.E.2d
358, 360 (1961). However, "a dismissal of an action
which will save a second action from the effects of a statute
of limitations must not be the result of voluntary action on
the part of plaintiff, or must not amount to an abandonment
of the action by the plaintiff." Henthorn, 146
W.Va. at 111, 118 S.E.2d at 360. Further, "[w]here the
former action has been dismissed by the voluntary act of the
plaintiff or by conduct equivalent thereto, the
statute of limitations is not tolled and a subsequent action,
if commenced after the limitation has accrued, is
barred." McClung v. Tieche, 126 W.Va. 575, 578,
29 S.E.2d 250, 252 (1944) (emphasis added). Finally,
"good faith and diligence of the party invoking the
benefits of the statute . . . is a necessary qualification in
the absence of which he must be denied the saving provision
of the statute respecting a second suit." Bent v.
Read, 82 W.Va. 680, 688, 97 S.E. 286, 289 (1918).
record is devoid of any action taken by petitioner to save
his previous case prior to dismissal. Petitioner did not
respond to the circuit court's request to show good cause
for the delay in service of process or to respondent's
motion to dismiss. Petitioner did not include any explanation
for his failure to provide service on respondent in the
record. Now, on appeal, petitioner asserts for the first time
that he could not locate respondent to provide service to
him. However, he did not provide any evidence of his attempts
to locate respondent. This Court has previously held that an
action can be saved by this statute when there is an attempt
at process and a showing of good faith and diligence. See
Ketterman v. Dry Fork R. Co., 48 W.Va. 606, 609, 37
S.E. 683, 684 (1900) (a dismissal based on a defect in the
summons deemed an involuntary dismissal). Unlike
Ketterman, petitioner's failure to effectuate
service in Civil Action No. 15-C-130 was not due to mistake
or defect. Instead, it is apparent from the record that
petitioner simply made no effort to serve the respondent.
Therefore, we cannot find that petitioner's ...