                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



John T. Lemon and Pamela Lemon,                                                 FILED
Plaintiffs Below, Petitioners                                                  June 28, 2013
                                                                          RORY L. PERRY II, CLERK
                                                                        SUPREME COURT OF APPEALS
vs) No. 12-0990 (Kanawha County 12-C-482)                                   OF WEST VIRGINIA


Dennis Stilwell Jr.,

Defendant Below, Respondent


                                 MEMORANDUM DECISION

       Petitioners John T. Lemon and Pamela Lemon, by counsel David White, appeal the July
20, 2012 order of the Circuit Court of Kanawha County, which granted respondent’s motion to
dismiss. Respondent Dennis Stilwell Jr., by counsel Andrew Workman, has filed a response.

       As more fully explained herein, the Court is of the opinion that the circuit court erred in
granting respondent’s motion to dismiss. Because we find that the circuit court erred by failing to
conduct a proper analysis before granting the motion to dismiss and that this case must be
remanded for that purpose, this case satisfies the “limited circumstances” requirement of Rule
21(d) and it is appropriate for the Court to issue a memorandum decision rather than an opinion.

       On March 15, 2012, petitioners filed a complaint alleging that on August 25, 2008,
respondent negligently and carelessly ran him off the road causing serious injury and that
respondent failed to stop and render aid. Petitioners also alleged that, despite their best efforts
and subsequent investigation, they were unable to identify respondent until June of 2011. On
April 3, 2012, respondent filed a motion to dismiss the complaint pursuant to West Virginia
Code § 55-2-12. Following a hearing on respondent’s motion to dismiss, the circuit court granted
respondent’s motion. The circuit court, applying the discovery rule, found that petitioners’ two-
year statute of limitations began to run on August 25, 2008, the date of the accident and a
reasonably prudent person should have known the identity of the respondent and the elements of
his cause of action before June of 2011.

       “‘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). In Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009), this Court set forth the
appropriate analysis circuit courts should use to determine if an action is time-barred, as follows:

       [T]he 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


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       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
       should determine if the statute of limitation period was arrested by some other
       tolling doctrine. Only the first step is purely a question of law; the resolution of
       steps two through five will generally involve questions of material fact that will
       need to be resolved by the trier of fact.

Syl. Pt. 5, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009). For purposes of a motion to
dismiss, the complaint is construed in the light most favorable to plaintiff, and its allegations are
to be taken as true. John W. Lodge Distributing Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 605,
245 S.E.2d 157, 158 (1978).

        In reviewing the language of the complaint and in consideration of the applicable
standard of review, the Court finds that the circuit court failed to apply the five-step analysis set
forth in Dunn. Therefore, we reverse the circuit court’s July 20, 2012 order granting respondent’s
motion to dismiss and remand with instructions for the circuit court to consider the factors set
forth in Dunn.

                                                                          Reversed and Remanded.


ISSUED: June 28, 2013

CONCURRED IN BY:

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




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