SELWYN VANDERPOOL, INDIVIDUALLY AND IN HIS CAPACITY AS ADMINISTRATOR OF THE ESTATE OF LILA VANDERPOOL AND AS TRUSTEE OF THE SELWYN VANDERPOOL AND LILA VANDERPOOL FAMILY IRREVOCABLE LIVING TRUST, AND CORNERSTONE MARKETING, LLC, A WEST VIRGINIA LIMITED LIABILITY COMPANY, JOSEPH W. BOSWELL, III, MANAGER, AND JOSEPH W. BOSWELL, III, INDIVIDUALLY, Plaintiffs Below, Petitioners,
CPL. B.M. HUNT AND GREENBRIER COUNTY SHERIFF'S DEPARTMENT, Defendants Below, Respondents.
Submitted: January 16, 2019
from the Circuit Court of Greenbrier County Honorable Jack
Alsop, Judge Civil Action No. 15-C-185.
L. Bruce, Esq. Barry L. Bruce and Associates, L.C. Lewisburg,
West Virginia Attorney for Petitioners
E. Greve, Esq. Oscar R. Molina, Esq. Pullin, Fowler,
Flannigan Brown & Poe, PLLC Charleston, West Virginia
Attorneys for Respondents
BY THE COURT
"'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).
"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).
"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).
"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).
"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).
"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
"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).
"'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).
"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).
"'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).
"'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).
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.
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.
petitioners and plaintiffs below, Selwyn Vanderpool,
Joseph Boswell, 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,
denying the petitioners' "Motion for A Rehearing or
New Hearing," respectively. 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.
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,
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. 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.
Facts and Procedural Background
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. 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.
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.
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. 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.
complaint alleged that by not providing notice to the
petitioners that their bank records had been subpoenaed,
Corporal Hunt negligently violated the Act. 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" 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
oral argument on the motions on December 15, 2016, the
circuit court granted the respondents' motion to
dismiss. 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.