                            STATE OF WEST VIRGINIA 

                          SUPREME COURT OF APPEALS


Randy Davis,
Plaintiff Below, Petitioner                                                      FILED
                                                                               May 14, 2018
vs.) No. 17-0435 (Randolph County 16-C-107)                                  EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Ryan Schooley, 

Defendant Below, Respondent 



                              MEMORANDUM DECISION
        Petitioner Randy Davis, by counsel Scott Curnutte, appeals the Circuit Court of Randolph
County’s April 12, 2017, order granting Respondent Ryan Schooley’s motion to dismiss
petitioner’s personal injury claims against him. Respondent, by counsel Matthew Whitler and
Anthony J. Delligatti, filed a response in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in granting respondent’s motion to dismiss on the
basis that the statute of limitations had accrued.

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

       On August 17, 2015, petitioner filed Civil Action No. 15-C-130 in the Circuit Court of
Randolph County captioned Davis v. Schooley. However, he never served the defendant,
respondent herein, with that complaint.

        In July of 2016, the circuit court sent petitioner a letter inquiring about the delay in
service and requesting a show of good cause for the delay. The circuit court received no response
from petitioner. On July 27, 2016, respondent filed a motion to dismiss for failure to serve
process within 120 days, in accordance with Rule 4(k) of the West Virginia Rules of Civil
Procedure. Petitioner did not respond to the motion to dismiss. Ultimately, the circuit court
entered an order dismissing the matter without prejudice on August 19, 2016. Petitioner did not
appeal that order. On August 22, 2016, petitioner filed a motion to extend time for service in the
recently dismissed matter. The circuit court denied the motion on the basis that the prior
proceeding had already been dismissed. Petitioner did not appeal the order denying his motion to
extend time for service.

      On that same date that petitioner filed the motion for extension, he filed the same
complaint in a new action, Civil Action No. 16-C-107, also before the Circuit Court of Randolph

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County. Thereafter, petitioner located respondent in Andover, Minnesota, and served him with
the complaint in the second proceeding days later on September 10, 2016. Respondent filed a
motion to dismiss alleging that the statute of limitations on petitioner’s personal injury claims
accrued before this second action was filed. After a hearing on respondent’s motion to dismiss,
the circuit court granted the motion to dismiss on April 12, 2017, on the basis that the statute of
limitations had accrued. Petitioner appeals that order.

       “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). Additionally,“[w]here the issue on an appeal is clearly a question of law or
involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1,
Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

         On appeal, petitioner argues that the circuit court erred in dismissing his second
complaint on the basis that the statute of limitations accrued. He asserts that the circuit court
should have applied West Virginia Code § 55-2-18, also known as the saving statute, and denied
respondent’s motion to dismiss. Petitioner contends that his previous complaint was involuntarily
dismissed for a failure to timely serve process and that exception is clearly covered by the saving
statute. We disagree.

       West Virginia Code § 55-2-18 provides as follows:

       (a)     For a period of one year from the date of an order dismissing an action or
       reversing a judgment, a party may re-file the action if the initial pleading was
       timely filed and (i) the action was involuntarily dismissed for any reason not
       based upon the merits of the action or (ii) the judgment was reversed on a ground
       which does not preclude a filing of new action for the same cause.

       (b)      For purposes of subsection (a) of this section, a dismissal not based upon
       the merits of the action includes, but is not limited to:
       ...
       (3) A dismissal for failure to have process timely served, whether or not the party
       is notified by the court of the pending dismissal.

        In regard to this statute, this Court has previously pointed out its remedial purpose and
has held that it should be liberally construed for the purpose of accomplishing its intent.
Henthorn v. Collins, 146 W.Va. 108, 111, 118 S.E.2d 358, 360 (1961). However, “a dismissal of
an action which will save a second action from the effects of a statute of limitations must not be
the result of voluntary action on the part of plaintiff, or must not amount to an abandonment of
the action by the plaintiff.” Henthorn, 146 W.Va. at 111, 118 S.E.2d at 360. Further, “[w]here
the former action has been dismissed by the voluntary act of the plaintiff or by conduct
equivalent thereto, the statute of limitations is not tolled and a subsequent action, if commenced
after the limitation has accrued, is barred.” McClung v. Tieche, 126 W.Va. 575, 578, 29 S.E.2d
250, 252 (1944) (emphasis added). Finally, “good faith and diligence of the party invoking the
benefits of the statute . . . is a necessary qualification in the absence of which he must be denied
the saving provision of the statute respecting a second suit.” Bent v. Read, 82 W.Va. 680, 688, 97
S.E. 286, 289 (1918).
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        The record is devoid of any action taken by petitioner to save his previous case prior to
dismissal. Petitioner did not respond to the circuit court’s request to show good cause for the
delay in service of process or to respondent’s motion to dismiss. Petitioner did not include any
explanation for his failure to provide service on respondent in the record. Now, on appeal,
petitioner asserts for the first time that he could not locate respondent to provide service to him.
However, he did not provide any evidence of his attempts to locate respondent. This Court has
previously held that an action can be saved by this statute when there is an attempt at process and
a showing of good faith and diligence. See Ketterman v. Dry Fork R. Co., 48 W.Va. 606, 609, 37
S.E. 683, 684 (1900) (a dismissal based on a defect in the summons deemed an involuntary
dismissal). Unlike Ketterman, petitioner’s failure to effectuate service in Civil Action No. 15-C-
130 was not due to mistake or defect. Instead, it is apparent from the record that petitioner
simply made no effort to serve the respondent. Therefore, we cannot find that petitioner’s
previous case was pursued diligently. Finally, as it is our holding that the dismissal of
petitioner’s previous complaint was, in effect, voluntary, we find no error in the circuit court’s
dismissal of petitioner’s second complaint on the basis that the statute of limitations had accrued.

      For the foregoing reasons, the circuit court’s April 12, 2017, order dismissing petitioner’s
complaint is hereby affirmed.


                                                                                         Affirmed.

ISSUED: May 14, 2018

CONCURRED IN BY:

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




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