                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



Dale Wallace,                                                                   FILED
                                                                                June 28, 2013
Plaintiff Below, Petitioner                                                RORY L. PERRY II, CLERK
                                                                         SUPREME COURT OF APPEALS
vs) No. 12-1089 (Wayne County 09-C-094)                                      OF WEST VIRGINIA



I.L. Long Construction, Third-Party Defendant Below;
and Akers Paving, Fourth-Party Defendant Below,
Respondents


                              MEMORANDUM DECISION

       Petitioner Dale Wallace, by counsel Gary Michels II, appeals the orders of the Circuit
Court of Wayne County, entered May 24, 2012, and June 28, 2012, which granted respondents’
motions to dismiss and denied petitioner’s motion to amend the complaint.1 Respondent I.L.
Long Construction (“Long”) appears by counsel Travis Haley, and Respondent Akers Paving
(“Akers”) appears by counsel Paul Gwaltney Jr., both respondents argue in support of the
dismissal. Petitioner 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        In May of 2007, petitioner’s wife allegedly stepped on a water meter cover located in the
parking lot of the Wayne Post Office. Allegedly, the cover flipped over and pinned the leg of
petitioner’s wife, causing injury. On May 20, 2009, petitioner and his wife filed a complaint
against the Town of Wayne and Wayne Water and Sewer Services2 (“Wayne”) for negligence,
failure to warn, and loss of consortium.3 Wayne was granted permission to file a third-party
complaint against Long on July 9, 2010, for negligently re-paving the parking lot. Long
       1
         The circuit court’s order entered on May 24, 2012, granted Long’s motion to dismiss.
The circuit court order entered on June 28, 2012, granted Akers’ motion to dismiss.
       2
         The Town of Wayne and Wayne Water and Sewer Services are not a party to this
appeal. The circuit court granted them summary judgment by order entered on March 2, 2012.
       3
         Petitioner filed a motion for substitution of party to allow Dale Wallace as Executor of
the Estate of Deborah Wallace to replace Deborah Wallace as a plaintiff on April 6, 2012.

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answered on August 24, 2010, and on September 1, 2010, it filed a third-party defendant and
fourth-party plaintiff complaint against Akers asserting claims for contribution and express
and/or implied indemnification for all damages that may be rendered against them.4

        On February 15, 2011, Wayne filed a motion for summary judgment. The circuit court
dismissed the complaint against Wayne by order entered on March 2, 2012, and declined to
address any claims against Long and Akers. On April 17, 2012, Long moved to dismiss the
action pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. Petitioner sought
permission to amend the complaint on April 23, 2012, to assert that Long and Akers were
negligent in performing work on the parking lot. In further support of the motion, petitioner
stated that neither party would be prejudiced by the amendment because both parties have been
involved in the action for over a year, have participated in all discovery, and would have ample
time to prepare for trial, and the amended complaint was based on the same occurrence as the
original complaint. Subsequently, Akers filed a motion to join Long’s motion to dismiss. The
circuit court granted Long and Akers’s motions to dismiss and denied petitioner’s motion to
amend the complaint by orders entered on May 24, 2012, and June 28, 2012, respectively.

        Petitioner appeals the dismissal order to this Court. “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). In support of his
argument, petitioner states that it is undisputed that respondents participated in all discovery and
were prepared to go to trial before the circuit court dismissed the case; that the amended
complaint would not have prejudiced the respondents because it would not have created a new
cause of action or raised new substantive issues because it arose out of the same occurrence as
the original complaint; and, respondents were timely added as third and fourth party defendants.

       This Court has previously stated that

       [u]nder Rule 15(c)(3) of the West Virginia Rules of Civil Procedure [1998], an
       amendment to a complaint changing a defendant or the naming of a defendant
       will relate back to the date the plaintiff filed the original complaint if: (1) the
       claim asserted in the amended complaint arose out of the same conduct,
       transaction, or occurrence as that asserted in the original complaint; (2) the
       defendant named in the amended complaint received notice of the filing of the
       original complaint and is not prejudiced in maintaining a defense by the delay in
       being named; (3) the defendant either knew or should have known that he or she
       would have been named in the original complaint had it not been for a mistake;
       and (4) notice of the action, and knowledge or potential knowledge of the
       mistake, was received by the defendant within the period prescribed for
       commencing an action and service of process of the original complaint.

Syl. Pt. 4, Brooks v. Isinghood, 213 W.Va. 675, 584 S.E.2d 531 (2003). We further held
that,



       4
           Long contracted with Akers to pave the parking lot.
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       Under the 1998 amendments to Rule 15(c)(3) of the West Virginia Rules of Civil
       Procedure , before a plaintiff may amend a complaint to add a new defendant, it
       must be established that the newly-added defendant (1) received notice of the
       original action and (2) knew or should have known that, but for a mistake
       concerning the identity of the proper party, the action would have been brought
       against the newly-added defendant, prior to the running of the statute of limitation
       or within the period prescribed for service of the summons and complaint,
       whichever is greater. To the extent that the Syllabus of Maxwell v. Eastern
       Associated Coal Corp., 183 W.Va. 70, 394 S.E.2d 54 (1990) conflicts with this
       holding, it is hereby modified.

Syl. Pt. 9, Brooks. Under the facts of this case petitioner’s statute of limitations expired on May
22, 2009. The record reflects that Long was not added as a party until July 9, 2010, and Akers
was not added until September 1, 2010, both well over a year after the statute of limitations
expired. Therefore, because respondents did not receive notice of the original complaint prior to
the expiration of the statute of limitations or within 120 days of the service of the original
complaint, petitioner’s amended complaint does not relate back to the original complaint as
required by Rule 15.

       For the foregoing reasons, we affirm the circuit court’s decision.

                                                                                        Affirmed.



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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