                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


David M. Smith and Doris Smith
Plaintiffs Below, Petitioners                                                    FILED
                                                                            February 12, 2016
vs) No. 14-1285 (Kanawha County 14-C-981)                                      RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
The Velotta Company and Safety Caution
Equipment Co.,
Defendants Below, Respondents


                              MEMORANDUM DECISION
       Petitioners David M. Smith and Doris Smith, by counsel James D. McQueen, Jr., and
Christopher Heavens, appeal the November 24, 2014, order of the Circuit Court of Kanawha
County denying petitioners’ motion to alter ruling. Respondent The Velotta Company
(“Velotta”), by counsel James D. Stacy, II, responds in support of the circuit court’s order.
Respondent Safety Caution Equipment Co., (“Safety Caution”), by counsel Melvin F. O’Brien
and Michelle B. Skeens, also responds in support of the circuit court’s order. Petitioners filed a
reply.

        This 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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

         Petitioners’ claims arise from an April 11, 2012, motor vehicle accident which occurred
on U.S. Route 19, near Mount Hope, West Virginia. At the time of the accident, Petitioner David
Smith was a commercial truck driver and was operating a tractor-trailer vehicle for his employer
William Thomas Allen d/b/a William Thomas Allen Trucking (“Allen Trucking”). Petitioner
Smith was traveling in the outside lane of Route 19, approaching a road construction site, when
traffic slowed in front of him. Mr. Smith was unable to stop his vehicle before it struck a vehicle
operated by James A. Murdock.1 At all times relevant hereto, Respondent Velotta was a
contractor working on the road construction project in the area where the accident occurred.
Respondent Safety Caution Equipment Co. (“Safety Caution”) was a subcontractor of Velotta
that worked on implementation of a portion of the temporary traffic control plan in place around
the accident site.

       1
         Ultimately, the Smith vehicle struck two temporary concrete barriers, crossed the outside
barrier of a bridge, and fell onto an embankment below the bridge.


                                                1

        On April 2, 2014, James A. Murdock, and his wife Barbara, filed a civil action in the
Circuit Court of Fayette County against Petitioner David Smith (and his employer) for damages
arising from the accident. On May 27, 2014, petitioners filed the underlying civil action against
respondents in Kanawha County Circuit Court, also seeking damages arising from the accident.
In their Kanawha County action, petitioners contend that, on May 10, 2014, Mr. Smith was
contacted by an investigator on behalf of another party who was reportedly injured in a separate
motor vehicle accident that occurred in the same area of Route 19 as Mr. Smith’s April 11, 2012,
accident. Petitioners allege they did not know, and reasonably should not have known, the
identity of respondents, or that their conduct had a causal relation to Mr. Smith’s injuries until
they were contacted by the investigator.

        In answer to petitioner’s Kanawha County action, respondents filed separate motions to
dismiss, arguing that petitioners’ claims were barred by West Virginia Code § 55-2-12, which
directs that actions seeking damages for personal injuries must be brought “within two years next
after the right to bring the same shall have accrued.” A hearing on respondents’ motions to
dismiss was held before Kanawha County Circuit Court Judge Paul Zakaib on August 14, 2014.
By order entered September 23, 2014, respondents’ motions to dismiss were granted.

        In its order granting respondents’ motions to dismiss, the circuit court found that “[a]t the
time of the accident on April 11, 2012, the [p]laintiff David Smith knew that he had been
involved in an accident in an area where road construction was occurring and/or temporary
traffic control measures were in place.” Further, the court acknowledged receipt of certain
medical records of David Smith (relating to his post-accident treatment), and noted that those
records clearly demonstrate that Mr. Smith had knowledge of the accident, the manner in which
the accident occurred, and the fact that he was injured as a result of the accident.

       On August 18, 2014, petitioners filed a third-party complaint in the Fayette County action
brought by the Murdocks and impleaded respondents into that case.2 Respondents filed separate
motions to dismiss petitioner’s third-party complaint in the Fayette County action. After
consideration of respondents’ motions to dismiss, the Fayette County Circuit Court also
determined that petitioners’ personal injury claims were barred by the statute of limitations, and
dismissed petitioner’s third-party complaint.3



       2
         The third-party complaint was filed in Fayette County Circuit Court four days after
petitioners’ Kanawha County action was dismissed. In their third-party complaint, petitioners
asserted identical claims against respondents to those that had been asserted by petitioners in
their Kanawha County action.
       3
         Petitioners’ appeal of the Fayette County Circuit Court’s ruling dismissing petitioners’
third-party complaint against respondent (related to the April 11, 2012 accident) was the subject
of a separate appeal pending before this Court, wherein we affirmed the circuit court’s dismissal
in a memorandum decision. Smith v. Velotta Co. and Safety Caution Equip. Co., No. 15-0228
(W.Va. Feb. 12, 2016)(memorandum decision).



                                                 2

        On September 4, 2014, petitioners       filed a motion to alter ruling/proposed order of
dismissal in the Kanawha County action.          A hearing was held on petitioners’ motion on
November 6, 2014. During this hearing, the      circuit court denied petitioners’ motion. An order
memorializing the rulings was entered on         November 24, 2014. It is from this order that
petitioners now appeal.

      In syllabus point two of J.A. Street & Associates, Inc., v. Thundering Herd Development,
LLC, 228 W.Va. 695, 724 S.E.2d 299 (2011), we held that

              “ ‘ “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.” Syllabus point 1,
       Wickland v. American Travellers Life Insurance Co., 204 W.Va. 430, 513 S.E.2d
       657 (1998).’ Syllabus point 2, Bowers v. Wurzburg, 205 W.Va. 450, 519 S.E.2d
       148 (1999).” Syllabus point 1, Alden v. Harpers Ferry Police Civil Service
       Commission, 209 W.Va. 83, 543 S.E.2d 364 (2001).

        “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, 194 W.Va. 770, 461
S.E.2d 516 (1995).4 Moreover, “[t]he 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.E.2d 80] (1957).” Syl. Pt. 3, Chapman v.
Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977). With these principles in mind,
we turn to a consideration of each of petitioners’ arguments on appeal.

        On appeal, petitioners assert two assignments of error. First, petitioners argue that the
circuit court erred in dismissing their Kanawha County civil action, as the “discovery rule” tolled
the applicable statute of limitations. Second, petitioners contend that the circuit court erred by
invading the province of the jury and weighing evidence by making factual findings inconsistent
with the facts presented by petitioners.

       In this case, it is clear from the record that, in their Kanawha County civil action,

       4
          Consideration of materials outside of the complaint on a motion to dismiss for failing to
state a claim upon which relief may be granted requires the motion “be treated as one for
summary judgment and disposed of under Rule 56 [of the West Virginia Rules of Civil
Procedure].” Franklin D. Cleckley, Robin Jean Davis and Louis J. Palmer, Jr., Litigation
Handbook on West Virginia Rules of Civil Procedure, § 12(b)(6), p. 393 (4th ed. 2012). Although
the trial court’s dismissal of petitioners’ claims was technically a summary judgment dismissal
because the trial court considered material outside the complaint in making its decision, our
standard of review of that aspect of the dismissal is still de novo. See Syl. Pt. 1, Painter v. Peavy,
192 W.Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of summary judgment is
reviewed de novo.”)


                                                  3

petitioners sought to recover monies for petitioners’ personal injuries arising from the April 11,
2012, motor vehicle accident. Our law is also clear that actions for personal injuries must be
brought “within two years next after the right to bring the same shall have accrued.” W.Va. Code
§ 55-2-12. It is without dispute that petitioners filed their civil action against respondents in the
Circuit Court of Kanawha County on May 27, 2014, more than two years following the April 11,
2012, accident. However, petitioners argue that they only “discovered” their possible claims
against respondents after being contacted by an investigator (representing another party in a
separate lawsuit arising from a separate accident) and that the circuit court erred in failing to
apply the discovery rule to toll the running of the two-year statute of limitations. This Court has
held that

               “[i]n tort actions, unless there is a clear statutory prohibition to its
       application, under the discovery rule the statute of limitations begins to run when
       the plaintiff knows, or by the exercise of reasonable diligence, should know (1)
       that the plaintiff has been injured, (2) the identity of the entity who owed the
       plaintiff a duty to act with due care, and who may have engaged in conduct that
       breached that duty, and (3) that the conduct of that entity has a causal relation to
       the injury.” Syllabus Point 4, Gaither v. City Hosp., Inc., 199 W.Va. 706, 487
       S.E.2d 901 (1997).

Syl. Pt. 3, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009). In syllabus point two of
Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992), we stated that “[t]he ‘discovery rule’ is
generally applicable to all torts, unless there is a clear statutory prohibition of its application.”
However, we have explained that “[o]nce the defendant shows that the plaintiff has not filed his
or her complaint within the applicable statute of limitations, the plaintiff has the burden of
showing an exception to the statute.” Worley v. Beckley Mech, Inc., 220 W.Va. 633, 638-39 n.7,
648 S.E.2d 620, 625-26 n.7 (2007) (citing Syl. Pt. 3, Cart v. Marcum, 188 W.Va. 241, 423
S.E.2d 644 (1992), overruled on other grounds by Dunn, 225 W.Va. at 51-52, 689 S.E.2d at 263­
64).

      In syllabus point five, in part, of Dunn we established a five-step analysis to determine
whether a cause of action is time-barred:

               First, the court should identify the applicable statute of limitation 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 limitation
       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 limitation is tolled. And, fifth, the court or the jury

                                                 4

       should determine if the statute of limitation period was arrested by some other
       tolling doctrine.

Dunn, 255 W.Va. at 54, 689 S.E.2d at 266.

        In the instant case, petitioners contend that Mr. Smith suffered an acute mental and
physical disability as an immediate result of the April 11, 2012, accident, which prevented him
from discovering respondents’ identities or the fact that an alleged defective design of the
construction area was a causal factor for the accident.5 As such, they argue, the circuit court
erred in failing to apply the discovery rule to toll the statute of limitations. Respondents argue
that the purported medical evidence on which petitioners rely to establish Mr. Smith’s inability
to discern a potential cause of action against respondents simply does not support the conclusions
petitioners seek to reach. Rather, Mr. Smith’s proffered medical records demonstrate that he
knew he was in an accident, and was able to give medical staff at two different facilities a
coherent and accurate history. Respondents note that Mr. Smith’s medical records indicate that
he was discharged from the hospital on the day following the accident, and that there was a
notation in his records within the ten months following the accident that he was remembering
details about the accident. In summary, respondents contend that petitioners simply failed to
proffer sufficient evidence to warrant the circuit court’s application of the discovery rule.

        Based upon our review of the record before us, we find no error in the circuit court’s
conclusion that the discovery rule is inapplicable to petitioners’ claims herein. In syllabus point
four of Dunn we held that

               [u]nder the discovery rule set forth in Syllabus Point 4 of Gaither v. City
       Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997), whether a plaintiff “knows
       of” or “discovered” a cause of action is an objective test. The plaintiff is charged
       with knowledge of the factual, rather than the legal, basis for the action. This
       objective test focuses upon whether a reasonable prudent person would have
       known, or by the exercise of reasonable diligence should have known, of the
       elements of a possible cause of action.

Dunn, 255 W.Va. at 54, 689 S.E.2d at 266.

        The record herein establishes that, at all times relative hereto, Petitioner David Smith was
aware of the fact that he was injured as a result of the April 11, 2012, accident, having reported
the same to his medical providers immediately following the accident. Further, there is no
evidence in the record below to suggest that petitioners were prevented in any manner from
discovering the identities of respondents or that their involvement in the construction area where
the subject accident occurred. Thus, we conclude, in accord with the circuit court’s findings, that
in the exercise of reasonable diligence, petitioners objectively should have known the identity of
respondents and their alleged negligent conduct. Accordingly, we find no error in the circuit

       5
        As a result of the accident, Mr. Smith sustained a scalp laceration, a concussion, and
suffered an alleged impairment of his memory.


                                                 5

court’s conclusion that the discovery rule is in applicable in this case.

        In their second assignment of error, petitioners contend that the circuit court erred by
invading the province of the jury and weighing evidence inconsistent with the facts pled in
petitioners’ complaint or presented by petitioners in answer to respondents’ motions to dismiss,
in violation of syllabus point five of Dunn.6 Primarily, petitioners argue that the circuit court
made no findings of fact or conclusions of law which address or even mention critical evidence
of Mr. Smith’s mental incapacity in making its determination of applicability of the discovery
rule. Further, petitioners are critical of a number of the circuit court’s findings of fact and
conclusions of law in the circuit court’s dismissal order.7 Respondents argue that the circuit



       6
        Petitioners incorporated their arguments in support of this assignment of error with their
written arguments in support of their first assignment of error and did not address this
assignment of error separately.
       7
           Petitioners take issue with following findings of fact and conclusions of law:

                 1)	 Finding of fact No. 7, in which the circuit court found that Petitioner David
                     Smith’s medical records clearly demonstrate that Mr. Smith had knowledge of
                     the accident, the manner in which it occurred, and the fact that he was injured
                     as a result. Petitioners argue that this finding did not accurately reflect the
                     factual record before the court;

                 2)	 Conclusion of law No. 4, in which the circuit court cites McCoy v. Miller, 213
                     W.Va. 161, 578 S.E.2d 355 (2003). Petitioners argue that the passage cited by
                     the court is an incomplete statement of applicable law;

                 3)	 Conclusion of law No. 6, which includes the statement that petitioners “do not
                     allege that they were prevented from discovering the identity of [respondents]
                     in any way.” Petitioners contend this statement is incorrect in that the medical
                     evidence submitted to the circuit court substantiates that traumatic injuries
                     sustained in the accident prevented petitioner from discovering respondents’
                     identities;

                 4)	 Conclusion of law No. 7, in which the circuit court cites Syl. Pt. 5 of Dunn.
                     Petitioners object because the circuit court’s cite does not include the last
                     sentence of the syllabus point;

                 5)	 Conclusion of law No. 10. In this conclusion of law, the circuit court finds
                     that Petitioner David Smith was aware at the time of the accident that he was
                     claiming to have had difficulties with the temporary traffic control pattern (as
                     petitioner’s Kanawha County civil action against respondents included the
                     description that the accident occurred in a construction zone when Mr. Smith
                     “was confronted with a sudden stoppage of traffic).” Petitioners argue that
(continued . . .)
                                                   6

court’s findings of facts and conclusions of law are supported by the record and the precedent of
this court.

       In Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000), we held that

               [i]n reviewing challenges to findings and rulings made by a circuit court,
       we apply a two-pronged deferential standard of review. We review the rulings of
       the circuit court concerning a new trial and its conclusion as to the existence of
       reversible error under an abuse of discretion standard, and we review the circuit
       court’s underlying factual findings under a clearly erroneous standard. Questions
       of law are subject to a de novo review.

        Based upon our review of the record below, we find no error. The findings of fact and
conclusions of law made by the circuit court are supported by the record and are legally sound.
The record herein establishes that the petitioners knew that Mr. Smith was involved in an
accident on the day the accident occurred, knew he was injured on the day of the accident, and
objectively should have known of the identities and involvement of the respondents.
Accordingly, the circuit court did not err in its dismissal of the action.



       For the foregoing reasons, we affirm.

                                                                                          Affirmed.
ISSUED: February 12, 2016



                  they have clearly demonstrated that there is absolutely no evidence supporting
                  this conclusion of law;

              6)	 Conclusion of law No. 11 in which the circuit court notes that Petitioner
                  David Smith was contacted by an investigator working for another party in a
                  separate lawsuit was objective evidence that petitioners should have known
                  the elements of a possible cause of action existed, as the fact that petitioners in
                  the other case were able to assert their theories of liability within the thirteen
                  months following the date of their accident. Petitioners contend that this
                  conclusion of law did not address any injuries to petitioner’s memory or
                  mental capabilities; and

              7)	 Conclusion of law No. 13. In this conclusion, the court finds that there is no
                  other tolling doctrine that would have arrested the statute of limitation period,
                  and petitioners do not identify any such other doctrine. Petitioners contend
                  that West Virginia Code § 55-2-12 (general saving as to persons under
                  disability) arrests the statute of limitation period applicable herein.



                                                7

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:

Justice Robin Jean Davis




                                 8
