CHARLESTON - The West Virginia Supreme Court of Appeals has issued a decision stating that a couple failed to timely raise applicability of a savings statute in their lawsuit.

Chief Justice Margaret L. Workman, and Justices Robin Jean Davis, Brent D. Benjamin, Menis E. Ketchum and Allen H. Loughry II all concurred in the decision.

Carissa Hammonds and Daniel Hammonds appeal the an Order Granting Defendants’ Motion to Dismiss in a Wood Circuit Court lawsuit entered Sept. 15, 2014.

The Supreme Court 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," the Justices' order states. "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."

On July 14, 2010, Carissa Hammonds sustained a broken left ankle when she fell into an uncovered man-made hole at Riverview Cemetery in Williamstown, while attending her grandfather’s graveside service.

On July 11, 2012, the couple filed a personal injury action against Peoples/Perdew Inc., which it doing business as Cawley & Peoples Funeral Home and also doing business as Riverview Cemetery, in Wood Circuit Court.

Peoples timely removed the case to the United States District Court for the Southern District of West Virginia, based upon diversity of citizenship and on Aug. 29, 2012, Peoples filed a motion to dismiss on the ground that it neither owns nor operates Riverview Cemetery on whose property Carissa Hammonds alleged she was injured.

By order entered Nov. 29, 2012, Peoples' motion to dismiss was granted, without prejudice, pursuant to Federal Rule of Civil Procedure 12(b)(4). The Hammondses did not appeal this order.

On Dec. 18, 2012, the couple filed the present civil action against the respondants for the alleged injuries arising out of the July 14, 2010, incident and the respondents filed a motion to dismiss pursuant to West Virginia Rule of Civil Procedure 12(b)(6), alleging that petitioners' complaint was filed after the applicable two-year statute of limitations had expired.

In their response to respondents’ motion, the couple argued that the present action "relates back" to the initial lawsuit, which was filed prior to the expiration of the applicable statute of limitations, and that, although West Virginia Rule of Civil Procedure 152 concerns amended and supplemental pleadings, the circuit court should treat the present complaint as a "de facto Amended Complaint" to the previous complaint timely filed on July 11, 2012.

The circuit court found that petitioners “have presented no evidence or legal authority that supports their argument that the ‘relation back’ doctrine applies and that this December 18, 2012[,] Complaint relates back to their June 11, 2012[,] Complaint so as to avoid the running of the statute of limitations.”

"Concluding that the applicable statute of limitations had expired on July 14, 2012, and that petitioners’ civil action was not timely filed and was, therefore, time barred, the circuit court granted respondents’ motion to dismiss by order entered September 16, 2014. This appeal followed," the decision states.

On appeal, the couple argued that, in granting the respondents' motion to dismiss, the circuit court committed plain error by ignoring the provisions of West Virginia's savings statute, West Virginia Code 55-2-18, which provides for a one-year extension of the statute of limitations if, as in this case, "the initial pleading was timely filed" and "the action was involuntarily dismissed for any reason not based upon the merits of the action."

In the present case, the couple argued that they timely filed the initial complaint and the subsequent complaint was filed well within one year from the date of the dismissal order.

"Upon careful review of the record, we find that petitioners failed to raise the applicability of the savings statute before the circuit court and, indeed, raise the issue for the first time on appeal to this court," the decision states.

The couple is represented by David M. Adkins.

Riverview Cemetery Association and Five Oaks Management are represented by Michael D. Crim.

W.Va. Supreme Court of Appeals case number: 14-1338

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