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Vanderpool v. Hunt

Supreme Court of West Virginia

January 31, 2019


          Submitted: January 16, 2019

          Appeal from the Circuit Court of Greenbrier County Honorable Jack Alsop, Judge Civil Action No. 15-C-185.

          Barry L. Bruce, Esq. Barry L. Bruce and Associates, L.C. Lewisburg, West Virginia Attorney for Petitioners

          Wendy E. Greve, Esq. Oscar R. Molina, Esq. Pullin, Fowler, Flannigan Brown & Poe, PLLC Charleston, West Virginia Attorneys for Respondents


         1. "'The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)." Syl. Pt. 3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977).

         2. "Appellate 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).

         3. "The standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W.Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed." Syl. Pt. 1, Wickland v. Am. Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).

         4. "A motion to vacate a judgment made pursuant to Rule 60(b), W.Va. R.C.P., is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion." Syl. Pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).

         5. "Where the issue on an appeal from the circuit court is clearly a question of law . . . involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

         6. "When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959).

         7. "Statutes which relate to the same subject matter should be read and applied together so that the Legislature's intention can be gathered from the whole of the enactments." Syl. Pt. 3, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975).

         8. "'It is the duty of a court to construe a statute according to its true intent, and give to it such construction as will uphold the law and further justice. It is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense of the words in a statute, when such construction would lead to injustice and absurdity.' Syllabus Point 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925)." Syl. Pt. 2, Conseco Fin. Serv'g Corp. v. Myers, 211 W.Va. 631, 567 S.E.2d 641 (2002).

         9. "Where a particular construction of a statute would result in an absurdity, some other reasonable construction, which will not produce such absurdity, will be made." Syl. Pt. 2, Newhart v. Pennybacker, 120 W.Va. 774, 200 S.E. 350 (1938).

         10. "'That which is necessarily implied in a statute, or must be included in it in order to make the terms actually used have effect, according to their nature and ordinary meaning, is as much a part of it as if it had been declared in express terms.' Syllabus point 14, State v. Harden, 62 W.Va. 313, 58 S.E. 715 (1907)." Syl. Pt. 4, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975).

         11. "'Whether a complaint states a claim upon which relief may be granted is to be determined solely from the provisions of such complaint[.]' Syl. pt. 3, in part, Barker v. Traders Bank, 152 W.Va. 774, 166 S.E.2d 331 (1969)." Syl. Pt. 2, Par Mar v. City of Parkersburg, 183 W.Va. 706, 398 S.E.2d 532 (1990).

         12. A county sheriff's department and its officers are a state entity for purposes of the Maxwell Governmental Access to Financial Records Act, West Virginia Code §§ 31A-2A-1 to -10.

         13. The Maxwell Governmental Access to Financial Records Act, West Virginia Code §§ 31A-2A-1 to -10, does not provide a civil cause of action for the negligent receipt of financial records by a state entity. Consequently, a state entity that obtains a customer's financial records cannot be held civilly liable under the Act in the absence of a negligent disclosure of those records to a third party.



         The petitioners and plaintiffs below, Selwyn Vanderpool, [1] Joseph Boswell, [2]and Cornerstone Marketing, LLC, appeal the February 10, 2017, and April 10, 2017, orders of the Circuit Court of Greenbrier County granting the motion to dismiss filed by the respondents and defendants below, Corporal B.M. Hunt and the Greenbrier County Sheriff's Department, [3] and denying the petitioners' "Motion for A Rehearing or New Hearing," respectively.[4] The petitioners filed this action pursuant to the Maxwell Governmental Access to Financial Records Act, West Virginia Code §§ 31A-2A-1 to -10 ("Act"), alleging that the respondents were negligent in obtaining and serving a subpoena on Branch Banking & Trust ("BB&T") without giving notice to them, which resulted in the wrongful disclosure of their confidential financial information.

         In this appeal, the petitioners assert that the circuit court erred in finding that they have no cause of action against the respondents under the Act. While maintaining that the circuit court properly dismissed the claims against them, the respondents also set forth two cross-assignments of error, [5] arguing that the circuit court erred in failing to find them immune from the petitioners' claims pursuant to the West Virginia Governmental Tort Claims and Insurance Reform Act, West Virginia Code §§ 29A-12A-1 to -18, and asserting that Mr. Vanderpool's claims fail as they did not survive his death.[6] Having considered the parties' briefs and oral arguments, the submitted appendix record, and pertinent authorities, we affirm the circuit court's orders for the reasons set forth below.

         I. Facts and Procedural Background

         On November 5, 2015, the petitioners filed their complaint instituting this action. They alleged that Corporal Hunt of the Greenbrier County Sheriff's Department initiated an elder abuse investigation in 2014 under the mistaken belief that Mr. Boswell was taking financial advantage of Mr. Vanderpool. According to the complaint, Mr. Vanderpool's wife, Lila, granted him her power of attorney on September 13, 2013, while she was a resident of Brier Rehabilitation and Nursing Center.[7] On or about January 7, 2014, Mr. Vanderpool deposited a check payable to his wife in the amount of $121, 646.20 from Sun Life Financial into her checking account with BB&T in Lewisburg, West Virginia. On January 9, 2014, using his power of attorney, Mr. Vanderpool wrote a check from his wife's checking account for the same amount as he had deposited two days earlier, making it payable to Cornerstone Marketing, LLC. That same day, the check was deposited by Mr. Boswell into Cornerstone's checking account at the BB&T branch in Roncerverte, West Virginia.[8]

         On January 31, 2014, the Selwyn Vanderpool and Lila Vanderpool Family Irrevocable Trust was formed, and a Vanderpool Trust Account was opened at City National Bank in Lewisburg. That same day, Mr. Boswell obtained a cashier's check from BB&T in the amount of $93, 500.00, which was the balance of the Vanderpool funds previously deposited into Cornerstone's account. Mr. Boswell gave the cashier's check to Mr. Vanderpool who deposited it into the Vanderpool Trust Account. According to the petitioners, BB&T stopped payment on the check on February 5, 2014, without prior notice and without providing any reason for doing so. [9]

         It appears that sometime during the course of the above transactions, Corporal Hunt began his investigation and sought assistance from the Greenbrier County Prosecutor's Office to obtain the banking records of Mr. Vanderpool, Mrs. Vanderpool, Mr. Boswell, Cornerstone Marketing, and Ridgeview Properties, LLC.[10] Pursuant to Corporal Hunt's request, an order was issued by Greenbrier County Circuit Judge J. C. Pomponio, Jr., directing the circuit clerk to issue a subpoena duces tecum to Corporal Hunt so he could obtain the BB&T bank records. Corporal Hunt then served the subpoena on BB&T and its agent, Danita Moore. No notice of the subpoena was given to any of the individuals or entities whose financial records were being sought.

         The complaint alleged that by not providing notice to the petitioners that their bank records had been subpoenaed, [11] Corporal Hunt negligently violated the Act.[12] A motion to dismiss the complaint was filed by the respondents on October 11, 2016. The respondents asserted that there is no cause of action against a law enforcement officer of a political subdivision under the Act for negligently failing to provide notice to a "customer"[13] whose financial records are being sought pursuant to a subpoena. In addition, respondents asserted immunity under the West Virginia Governmental Tort Claims and Insurance Reform Act.[14]

         Following oral argument on the motions on December 15, 2016, the circuit court granted the respondents' motion to dismiss.[15] The order was entered on February 10, 2017. Subsequently, the petitioners filed a "Motion for a Rehearing or a New Hearing" that was denied by the order entered on April 10, 2017. This appeal followed.

         II. ...

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