         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 September 2019 Term
                                   ______________                          FILED
                                                                      November 12, 2019
                                    No. 18-0375                             released at 3:00 p.m.
                                  _______________                       EDYTHE NASH GAISER, CLERK
                                                                        SUPREME COURT OF APPEALS
                                                                             OF WEST VIRGINIA
                                 ARTHUR PATTON,
                                    Petitioner

                                          v.

                COUNTY OF BERKELEY, WEST VIRGINIA and
             BERKELEY COUNTY SHERIFF’S DEPARTMENT, and
                   DEPUTY JOHN CARDELLO, individually,
              and in his capacity as an employee of Berkeley County,
                                    Respondents

        ________________________________________________________
                Appeal from the Circuit Court of Berkeley County
                  The Honorable Christopher C. Wilkes, Judge
                           Civil Action No. 17-C-258

                                     AFFIRMED

      ____________________________________________________________

                             Submitted: September 11, 2019
                               Filed: November 12, 2019

Christian J. Riddell, Esq.                     Charles R. Bailey, Esq.
Stedman & Riddell, PLLC                        Michael W. Taylor, Esq.
Martinsburg, West Virginia                     Bailey & Wyant, PLLC
Counsel for the Petitioner                     Charleston, West Virginia
                                               James W. Marshall, Esq.
                                               Bailey & Wyant, PLLC
                                               Martinsburg, West Virginia
                                               Counsel for the Respondents



CHIEF JUSTICE WALKER delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT


              1.     “‘“Appellate review of a circuit court’s order granting a motion to

dismiss a complaint is de novo.” Syllabus point 2, State ex rel. McGraw v. Scott Runyan

Pontiac–Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).’ Syl. Pt. 1, Albright v. White,

202 W. Va. 292, 503 S.E.2d 860 (1998).” Syllabus Point 1, J.F. Allen Corp. v. Sanitary

Bd. of City of Charleston, 237 W. Va. 77, 785 S.E.2d 627 (2016).



              2.     “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

Ins., 204 W. Va. 430, 513 S.E.2d 657 (1998).


              3.     County sheriff’s departments and the law enforcement officials they

employ are not within the executive branch of state government for purposes of the tolling

provisions of West Virginia Code § 55-17-3(a)(2) (2016).




                                             i
WALKER, Chief Justice:

              Petitioner Arthur Patton was arrested on June 2, 2015, by Deputy John

Cardello of the Berkeley County Sheriff’s Department and eventually pleaded no contest

to third offense DUI and fleeing from a law enforcement officer. More than two years

later, he sued Respondents Deputy Cardello, Berkeley County and its Sheriff’s

Department, claiming that his arrest violated his constitutional rights and was intentional

infliction of emotional distress and battery. The circuit court dismissed Mr. Patton’s claims

because he did not file within the two-year statute of limitations. He now appeals the

dismissal on the grounds that (1) the circuit judge should have been disqualified from the

case; and (2) the tolling provision of West Virginia Code § 55-17-3(a) should have applied

once he gave notice of his claim to the Berkeley County Sheriff’s Department.1 We

disagree and find that because the sheriff’s department is not part of the executive branch

of state government, the tolling provision of § 55-17-3(a) did not apply. And, Mr. Patton’s

allegations that the circuit judge should have been disqualified were properly adjudicated

(twice) by the Chief Justice of this Court and are without merit.




       1
          In asserting that the circuit court erred in finding that Mr. Patton was not entitled
to a tolling of the statute of limitation under § 55-7-3(a), Mr. Patton’s arguments do not
include any assertions with respect to the dismissal of Berkeley County itself, the
remaining defendant in this case. Mr. Patton’s arguments are solely relegated to the
sheriff’s department, asking this Court to determine whether county level law enforcement
agencies constitute “government agencies” for the purposes of West Virginia Code § 55-
17-3.

                                              1
                  I. FACTUAL AND PROCEDURAL BACKGROUND

                Mr. Patton alleges that on June 2, 2015, Deputy John Cardello used excessive

force in apprehending him and beat him so badly that he required facial reconstructive

surgery and the insertion of a metal plate into his cheek. He claims that video from Deputy

Cardello’s “dash-cam” shows him radioing dispatch that Mr. Patton was “making a run for

it before [Mr. Patton] had even opened his car door, indicating . . . that Deputy Cardello

intended to set up his justification for brutality before engaging with him.” Deputy

Cardello then rushed Mr. Patton the moment he stepped out of the car. Mr. Patton asserts

that the deputy next beat him repeatedly about his body and face while Mr. Patton lay

helpless in a river. Mr. Patton also alleges that during criminal proceedings, the dash-cam

video disappeared for a long period of time and became the subject of a discovery dispute.

The discovery dispute was eventually resolved and the video was produced. Mr. Patton

eventually pled no contest to third offense DUI and fleeing from a law enforcement officer.



                On May 5, 2017, Mr. Patton sent a notice under West Virginia Code § 55-

17-3(a)(2)2 of intent to file an action to Doug Copenhaver, President of the Berkeley



       2
           West Virginia Code § 55-17-3(a)(2) (2016) provides:

                       (2) The written notice to the chief officer of the
                government agency and the Attorney General required by
                subdivision (1) of this subsection is considered to be provided
                on the date of mailing of the notice by certified mail, return
                receipt requested. If the written notice is provided to the chief
                officer of the government agency as required by subdivision
                (1) of this subsection, any applicable statute of limitations is
                                                2
County Council. Mr. Patton alleges that this notice tolled the statute of limitations for

thirty days from the date the notice was provided and received. On June 5, 2017, Mr.

Patton filed his complaint alleging a violation of his constitutional rights, intentional

infliction of emotional distress, and battery. Respondents moved to dismiss the complaint,

arguing that Mr. Patton had not filed his civil suit within the two-year statute of limitations

under West Virginia Code § 55-2-12,3 and that the statute of limitations was not tolled

because the Berkeley County Sheriff’s Office did not qualify as a “government agency”

under West Virginia Code § 55-17-2(2).4 The circuit court granted Respondents’ joint


                tolled for thirty days from the date the notice is provided and,
                if received by the government agency as evidenced by the
                return receipt of the certified mail, for thirty days from the date
                of the returned receipt.
       3
           West Virginia Code § 55-2-12 (2016) provides:

                       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 personal
                representative.

       Further, civil rights claims filed in state court pursuant to 42 U.S.C.A. § 1983 are
personal injury actions governed by state two-year statute of limitations, rather than one-
year statute of limitations. 42 U.S.C.A. § 1983; Rodgers v. Corp. of Harpers Ferry, 179
W. Va. 637, 371 S.E.2d 358 (1988) abrogated on other grounds by Courtney v. Courtney,
190 W. Va. 126, 437 S.E.2d 436 (1993).
       4
           West Virginia Code § 55-17-2(2) (2016) provides, in pertinent part:

                                                3
motion to dismiss Mr. Patton’s civil action, finding that sheriff’s departments are political

subdivisions,5 and that West Virginia Code §§ 29-12A-1 through -186 does not contain a

notice requirement or any applicable tolling of the general two-year statute of limitations.




                        For the purposes of this section: . . . (2) “Government
                agency” means a constitutional officer or other public official
                named as a defendant or respondent in his or her official
                capacity, or a department, division, bureau, board, commission
                or other agency or instrumentality within the executive branch
                of state government that has the capacity to sue or be sued[.]
       5
         Under West Virginia Code § 29-12A-3 (2018), a political subdivision is defined
in part as:

                any county commission, municipality and county board of
                education; any separate corporation or instrumentality
                established by one or more counties or municipalities, as
                permitted by law; any instrumentality supported in most part
                by municipalities; any public body charged by law with the
                performance of a government function and whose jurisdiction
                is coextensive with one or more counties, cities or towns; . . .
                public service districts; and other instrumentalities including,
                but not limited to, volunteer fire departments and emergency
                service organizations as recognized by an appropriate public
                body and authorized by law to perform a government function
                ....
       6
           West Virginia Code § 29-12A-1 (2018) provides:

                      This article shall be known and may be cited as “The
                Governmental Tort Claims and Insurance Reform Act.”

                       Its purposes are to limit liability of political
                subdivisions and provide immunity to political subdivisions in
                certain instances and to regulate the costs and coverage of
                insurance available to political subdivisions for such liability.

                                               4
The circuit court concluded that Mr. Patton’s action was filed outside of the statute of

limitations and dismissed the action in September of 2017.



              Mr. Patton alleges that following the dismissal of his claims, he learned that

the daughter of the circuit judge who adjudicated this case worked as co-counsel on Mr.

Patton’s criminal case during the discovery dispute regarding the dash-cam video. Because

Mr. Patton believed that the daughter was involved in his criminal prosecution and in the

dispute about the dash-cam video, he alleged this made her a material witness in the case,

giving her more than a de minimis interest in it. So, Mr. Patton filed a motion to disqualify

the circuit judge from the underlying civil matter.



              In the motion to disqualify the circuit judge, Mr. Patton asserted that after he

filed his complaint, he learned that Deputy Cardello initially lied about having previously

disclosed the video in discovery, that the State then claimed for a period of months that the

video could not be located, and that the video was eventually produced only after his

counsel filed a motion to compel and refused to engage in plea negotiations until the video

was produced. Mr. Patton alleged that a question existed as to whether there was an attempt

to hide or otherwise suppress the video by intentionally misfiling it, or by never actually

filing it at all, both of which he argued constituted police or prosecutorial misconduct. Mr.

Patton alleged that the daughter’s testimony would most likely be needed given her

personal involvement in the case.


                                              5
                After Mr. Patton’s motion to disqualify was denied by then-Chief Justice

Loughry on October 3, 2017, Mr. Patton filed a complaint against the circuit judge with

the Judicial Investigation Commission (JIC). Next, Mr. Patton filed a supplemental motion

for disqualification with this Court informing the Court that he had filed a complaint with

the JIC.7 Then-Chief Justice Workman issued an order denying Mr. Patton’s second

motion on March 30, 2018.



                Meanwhile, Mr. Patton moved to alter or amend the circuit court’s judgment,

arguing that its decision to dismiss his civil claims was clearly erroneous because a sheriff

should be considered a constitutional officer within the executive branch, tolling the statute

of limitations under the notice provision of West Virginia Code § 55-17-1.8 The circuit


       7
         The JIC published an Advisory Opinion, 2017-16, finding that the Commission
did not believe that Rule 2.11 required a per se disqualification of a judge from an
underlying action simply because a party thereto has filed a judicial ethics complaint
against him or her. Instead, it concluded that the judge should disclose the matter on the
record to all parties and follow Trial Court Rule 17 where applicable.
       8
           West Virginia Code § 55-17-1 (2016) provides:

                        (a) The Legislature finds that there are numerous
                actions, suits and proceedings filed against state government
                agencies and officials that may affect the public interest.
                Depending upon the outcome, this type of litigation may have
                significant consequences that can only be addressed by
                subsequent legislative action. In these actions, the Legislature
                is not directly involved as a party. The Legislature is not a
                proper party to these actions because of an extensive structure
                of Constitutional protections established to safeguard the
                prerogatives of the legislative branch under our governmental
                system of checks and balances. Government agencies and their
                officials require more notice of these actions and time to
                                                6
court denied Mr. Patton’s motion on April 6, 2018, finding no grounds for reconsideration,

as there were no manifest errors of law or fact to be corrected because county sheriff’s

departments, county commissions, city governments, and individuals employed by those



             respond to them and the Legislature requires more timely
             information regarding these actions, all in order to protect the
             public interest. The Legislature further finds that protection of
             the public interest is best served by clarifying that no
             government agency may be subject to awards of punitive
             damages in any judicial proceeding.

                     (b) The Legislature further finds that there are numerous
             actions, suits and proceedings filed on behalf of the State of
             West Virginia or a government agency thereof, that may affect
             the public interest. Depending upon the outcome, this type of
             litigation may have significant consequences that can only be
             addressed by subsequent legislative action. In such litigation,
             the Governor, Department of Administration and the
             Legislature may not be directly involved as parties.
             Additionally, the Governor, Department of Administration and
             the Legislature need advance notice of potential moneys that
             may become available as a result of seizure or forfeiture of
             assets under state or federal criminal law. The Governor,
             Department of Administration and the Legislature require
             more timely information regarding these actions in order to
             protect the public interest. The Legislature further finds that
             protection of the public interest is best served by requiring
             notice to the Governor, the Secretary of the Department of
             Administration, the President of the Senate and the Speaker of
             the House of Delegates of any action brought on behalf of the
             state or a government agency thereof, which may result in a
             judgment, award or settlement and when the state or a
             government agency thereof, becomes eligible for moneys from
             state or federal seizure or forfeiture of assets in criminal cases.

                    (c) It is the purpose of this article to establish procedures
             to be followed in certain civil actions filed on behalf of or
             against state government agencies and their officials.

                                              7
entities are political subdivisions and are not within the executive branch of state

government; and that Mr. Patton did not provide any new evidence that would justify

altering or amending the circuit court’s prior order. Mr. Patton now appeals that order.



                              II. STANDARD OF REVIEW

               Regarding our standard of review, “‘“[a]ppellate review of a circuit court’s

order granting a motion to dismiss a complaint is de novo.” Syllabus point 2, State ex rel.

McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).’

Syl. Pt. 1, Albright v. White, 202 W. Va. 292, 503 S.E.2d 860 (1998).”9 And, “[t]he

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.”10



                                    III. DISCUSSION

A.     Motion to Disqualify

               In his first assignment of error, Mr. Patton alleges that the circuit judge

should have been disqualified from presiding over the case because he had a close family


       9
        Syl. Pt. 1, J.F. Allen Corp. v. Sanitary Bd. of City of Charleston, 237 W. Va. 77,
785 S.E.2d 627 (2016).
       10
        Syl. Pt. 1, Wickland v. American Travellers Life Ins., 204 W. Va. 430, 513 S.E.2d
657 (1998).

                                             8
member with an interest in Mr. Patton’s civil case who, at a minimum, would serve as a

material witness. Mr. Patton contends that under West Virginia Code of Judicial Conduct

2.11(A)(2),11 the circuit judge should have recused himself.



                Mr. Patton has previously raised this issue twice before this Court. Both

times, the Court denied his request for disqualification.12          In a letter to this Court

responding to the motion to disqualify him, the circuit judge explained that if his daughter

was going to have involvement in Mr. Patton’s civil case, his recusal was warranted. But

at that stage of the proceedings, the case had been dismissed and the only matter left for

decision was Mr. Patton’s motion to alter or amend the judgment. The only additional



       11
            West Virginia Code of Judicial Conduct 2.11(A)(2) provides:

                       (A) A judge shall disqualify himself or herself in any
                proceeding in which the judge’s impartiality might reasonably
                be questioned, including but not limited to the following
                circumstances: (2) The judge knows that the judge, the judge’s
                spouse or domestic partner, or a person within the third degree
                of relationship to either of them, or the spouse or domestic
                partner of such a person is: (a) a party to the proceeding, or an
                officer, director, general partner, managing member, or trustee
                of a party; (b) acting as a lawyer in the proceeding; (c) a person
                who has more than a de minimis interest that could be
                substantially affected by the proceeding; or (d) likely to be a
                material witness in the proceeding.
       12
           West Virginia trial Court Rule 17.01 provides that “[u]pon a proper
disqualification motion, as set forth in this rule, a judge shall be disqualified from a
proceeding only where the judge’s impartiality might reasonably be questioned, in
accordance with the principles established in Canon [2.11] of the Code of Judicial
Conduct.”

                                                9
grounds in his supplemental motion for disqualification was that Mr. Patton had filed a

complaint against the circuit judge before the JIC. In response to that, the circuit judge

stated he did not feel that a voluntary recusal was warranted but recognized that if the

circumstances changed and it appeared that his daughter was going to have involvement in

the case, his recusal was mandated. Mr. Patton alleges that his motion for disqualification

specifically stated that the daughter would, in fact, need to be called as a witness, at least

for a deposition, and that the circuit judge’s letter did not attempt to reconcile his agreement

that a potential conflict would arise should his daughter be involved in the case.



              Mr. Patton’s motions for disqualification alleged the same facts now

presented in this appeal. His motions were denied by prior orders of two Chief Justices,

who both determined that the evidence offered by Mr. Patton in support of his motion to

disqualify was insufficient to warrant disqualification. “The matter of judicial recusal and

disqualification is a matter of discretion reposed solely in the presiding judge and the Chief

Justice of this Court.”13 Mr. Patton, now reiterating the same argument, fails to offer any

new evidence or argument in support of his assertion that the proceedings below were not

fair.14 As such, we find no error.



       13
         State of West Virginia ex rel. Pritt v. Vickers, 214 W. Va. 221, 222 n.1, 588 S.E.2d
210, 211 n.1 (2003) (citing W. Va. Tr. Ct. R. 17.01 (delineating procedure for motions to
disqualify presiding judge)).
       14
       See In re: K.M., Case No. 16-0109, 2016 WL 5900710, *3 (W. Va. Oct. 11, 2016)
(memorandum decision).

                                              10
   B. Tolling of the Statute of Limitations

                The next issue we consider is whether the sheriff’s department is

appropriately characterized as a “government agency” under West Virginia Code § 55-17-

2. Mr. Patton contends that the circuit court erred when it found that the Berkeley County

Sheriff’s Department is not a “government agency” for purposes of West Virginia Code §

55-17-2, a finding that, in turn denied him the tolling effect of § 55-17-3(a)(2).



                Mr. Patton argues that county-level law enforcement have regularly been

held to be members of the executive branch and any ambiguity must be resolved in favor

of inclusion. Mr. Patton asserts that under Webster County Commission v. Clayton,15

because a sheriff is allowed to hire persons to aid him or her in the execution of duties as a

“constitutional officer of the State,” a sheriff is unquestionably a constitutional officer such

that any suit brought against a sheriff’s department is subject to the notice requirements of

§ 55-17-3(a)(2).16 He also contends that in State ex rel. Miller v. Smith,17 and Games-Neely

v. Sanders,18 this Court held that prosecuting attorneys are officers of the executive branch

of government. Mr. Patton further alleges that § 55-17-6 (2016) provides that the notice



       15
            206 W. Va. 107, 113, 522 S.E.2d 201, 207 (1999).
       16
          We note that in this case, Mr. Patton has filed suit against the Berkeley County
Sheriff’s Department, not the Sheriff.
       17
            168 W. Va. 745, 285 S.E.2d 500 (1981).
       18
            220 W.Va. 230, 641 S.E.2d 153 (2013).

                                              11
provision of West Virginia Code § 55-17-3 is to be interpreted broadly,19 and that county-

level governmental agencies have no reason to require less notice than their state-level

counterparts so there is no cognizable reason why actions against political subdivisions

should not raise the same concerns as “purely state level agencies[.]” We do not find Mr.

Patton’s arguments persuasive.20



              Article 17 is entitled “Procedures for Certain Actions against the State.”

Section 55-17-1 provides that the purpose of Article 17 is to establish procedures to be

followed in certain civil actions filed on behalf of or against state government agencies

and their officials. Further, West Virginia Code § 55-17-2(2) provides, in pertinent part:

                     “Government agency” means a constitutional officer or
              other public official named as a defendant or respondent in his
              or her official capacity, or a department, division, bureau,
       19
         West Virginia Code § 55-17-6(a) (2016) provides that “[i]t is the express intent
of the Legislature that the provisions of this article be liberally construed to effectuate the
public policy set forth in section one of this article.”
       20
          While Mr. Patton cherry-picks language from these cases to assert that both
sheriffs and prosecutors are members of the state executive branch, these cases are not on
point with respect to the issue presented here. While we said in Clayton that “Sheriff
Clayton [was] allowed to hire persons to aide her in the execution of her duties as a
constitutional officer of the State of West Virginia. See W.Va. Const. art. IX, § 1,” we did
not specifically hold that a sheriff is a member of the executive branch of state government.
Id. at 113, 552 S.E.2d at 207 (Emphasis added). Article IX, § 1 of the West Virginia
Constitution simply states: “County Organization. The voters of each county shall elect a
surveyor of lands, a prosecuting attorney, a sheriff, and one and not more than two
assessors, who shall hold their respective offices for the term of four years.” (Emphasis
added). And, a prosecutor, who for certain purposes (like extradition), has duties
intertwined with those of the State Attorney General, a member of the executive branch of
state government, is not akin to a sheriff’s department. Thus, those cases have no bearing
on the issue before us.

                                              12
                board, commission or other agency or instrumentality within
                the executive branch of state government that has the capacity
                to sue or be sued[.][21]


                West Virginia Code § 55-17-3(a)(2) further provides:

                        (2) The written notice to the chief officer of the
                government agency and the Attorney General required by
                subdivision (1) of this subsection is considered to be provided
                on the date of mailing of the notice by certified mail, return
                receipt requested. If the written notice is provided to the chief
                officer of the government agency as required by subdivision
                (1) of this subsection, any applicable statute of limitations is
                tolled for thirty days from the date the notice is provided and,
                if received by the government agency as evidenced by the
                return receipt of the certified mail, for thirty days from the date
                of the returned receipt.[22]



                There is no definition of “executive branch” provided in West Virginia Code

§ 55-17-1, but Article VII, § 1 of the West Virginia Constitution provides that the executive

department consists solely of “a governor, secretary of state, auditor, treasurer,

commissioner of agriculture and attorney general, who shall be ex officio reporter of the

court of appeals.” While a sheriff’s department performs executive functions, it is an

executive agency of the county government. Sheriff’s departments are funded at the county




       21
            (Emphasis added).
       22
            (Emphasis added).

                                                13
level, are not included in the state budget, and are county organizations under Article IX,

§ 1 of the West Virginia Constitution.23



                This Court recently refused to extend the tolling provision at issue here to

local agencies. In Magee v. Racing Corporation of West Virginia,24 this Court was not

directly asked to consider whether the Nitro police department, city, and an officer were

“government agencies” within § 55-17-2. But, we concluded that the statute of limitations

was not tolled as to these agencies even though the police department was given a thirty-

day notice in that matter, as in this case.25 The petitioner in that matter treated the city

entities as non-state governmental defendants.



                The circuit court found an unpublished opinion from the Southern District of

West Virginia, Braxton v. Joynes,26 instructive. In Joynes, the plaintiff filed an action

against Mr. Joynes, John A. Dunn of the Raleigh County Sheriff’s Department, Garland A.

Burke of the Fayette County Sheriff’s Department, Gant Montgomery of the Beckley City

Police, the Raleigh County Commission, the Fayette County Commission, and the City of


       23
            See footnote 20 supra.
       24
          Case No. 17-0008, 2017 WL 4993455 (W. Va. Nov. 1, 2017) (memorandum
decision).
       25
         See Id. at * 1 n.2 (Despite the Magees’ pre-suit notice to the City of Nitro, it is
not a “government agency” as defined by West Virginia Code § 55-17-2(2)).
       26
            Case No. 5:04-0894, 2005 WL 2249865 (S.D.W. Va. Sept. 15, 2005).

                                             14
Beckley, among others, alleging violations of the Equal Protection and Due Process clauses

of the United States Constitution pursuant to 42 U.S.C. § 1983 and violations of the West

Virginia Constitution.27 The defendants moved for summary judgment contending that

plaintiff’s claims were barred by the relevant statute of limitations and because defendants

Joynes, Dunn, Burke, and Montgomery were immune from liability.28 In granting the

defendants’ motion for summary judgment, the District Court held:

                         [c]ounty commissions, city governments or the
                  individuals employed by those entities are not considered to be
                  within the “executive branch of state government.” Therefore,
                  § 55-17-3 upon which Plaintiff relies in is inapplicable to this
                  action. Rather, claims against such entities are controlled by
                  the Governmental Tort Claims and Insurance Reform Act . . .
                  Pursuant to [that Act] in [an] action against a political
                  subdivision the complaint and summons must be served “in the
                  manner prescribed by law for the rules of civil procedure.” W.
                  Va. Code § 29-12A-13(d). Thus, unlike suits against a
                  “government agency” there is no notice requirement nor is
                  there a tolling of the applicable statute of limitations.[29]


                  Finding Braxton persuasive as to the specific issue before us, this Court holds

that county sheriff’s departments and the law enforcement officials they employ are not

within the executive branch of state government for purposes of the tolling provisions of

West Virginia Code § 55-17-3(a)(2).30 West Virginia Code § 29-12A-6 does not contain a


       27
            Id. at *1.
       28
            Id.
       29
            Id. at *3 (emphasis added).
       30
         See Syl. Pt. 2, Beckley v. Crabtree, 189 W. Va. 94, 428 S.E.2d 317 (1993)
modified on other grounds by Smith v. Burdette, 211 W. Va. 477, 566 S.E.2d 614 (2002)
                                         15
requirement to provide a political subdivision with a notice of intent to file suit, nor does

it contain a tolling exception to the statute of limitations when the plaintiff provides notice

of intent to file suit against a political subdivision.31 For these reasons, we conclude that




(a sheriff is an employee of a political subdivision, the county commission, and is therefore
immune from personal tort liability for acts occurring within the scope of employment,
unless one of the exceptions noted in W. Va. Code § 29-12A-5(b) is applicable.); See also
Haney v. Cty. Comm’n, Preston Cty., 212 W. Va. 824, 827, 575 S.E.2d 434, 437 (2002)
(county commission is a political subdivision of the state); Fisk v. Lemons, 201 W. Va.
362, 363, 497 S.E.2d 339, 340 (1997) (analyzing cause of action against county sheriff’s
department as a political subdivision.)
       31
            West Virginia Code § 29-12A-6 (2018) provides, in pertinent part:

                        (a)    An action against a political subdivision to
                recover damages for injury, death, or loss to persons or
                property allegedly caused by any act or omission in connection
                with a governmental or proprietary function, except as
                provided in subsection (b) of this section, shall be brought
                within two years after the cause of action arose or after the
                injury, death or loss was discovered or reasonably should have
                been discovered, whichever last occurs or within any
                applicable shorter period of time for bringing the action
                provided by this code. This section applies to actions brought
                against political subdivisions by all persons, governmental
                entities, and the state.

                                                   ....

                        (c) The periods of limitations set forth in this section
                shall be tolled for any period during which the political
                subdivision or its representative has committed fraud or
                collusion by concealing or misrepresenting material facts about
                the injury.

                                              16
the circuit court properly determined that West Virginia Code § 55-17-3(a)(2) did not apply

to toll Mr. Patton’s claims against the Respondents before us in this case.



                                   IV. CONCLUSION

              For the reasons stated above, the April 6, 2018 order of the Circuit Court of

Berkeley County denying Mr. Patton’s Motion to Alter or Amend Judgment is affirmed.

                                                                                 Affirmed.




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