Supreme Court says lower court rightfully dismissed complaint against Greenbrier Sheriff's Department

By Kyla Asbury | Feb 11, 2019

CHARLESTON — The West Virginia Supreme Court of Appeals affirmed a decision by a lower court that granted a motion to dismiss and denied a motion for a new hearing in a case against the Greenbrier County Sheriff's Department for alleged wrongful disclosure of confidential financial information.

Justice John Hutchison authored the opinion, which was filed Jan. 31.

The petitioners in the case were Selwyn Vanderpool, Joseph Boswell and Cornerstone Marketing. The petitioners appealed a Feb. 10, 2017, and an April 10, 2017, order by Greenbrier Circuit Court that granted the motion to dismiss and denied the motion for a new hearing.

The petitioners filed the suit pursuant to the Maxwell Governmental Access to Financial Records Act, claiming the respondents were negligent in obtaining and serving a subpoena on Branch Banking & Trust without giving notice to them, which resulted in the wrongful disclosure of their confidential financial information.

The petitioners argued in the appeal that the circuit court was wrong to find there was no cause of action against the respondents under the Maxwell Governmental Access to Financial Records Act.

"Having considered the parties’ briefs and oral arguments, the submitted appendix record, and pertinent authorities, we affirm the circuit court’s orders for the reasons set forth below," Hutchison wrote.

The petitioners filed a complaint against the respondents in November 2015, alleging that Cpl. B.M. Hunt of the Greenbrier County Sheriff's Department initiated an elder abuse investigation in 2014 under the mistaken belief that Joseph Boswell III was taking advantage of Selwyn Vanderpool.

The previous year, Lila Vanderpool granted Selwyn Vanderpool power of attorney when she was a resident of Brier Rehabilitation and Nursing Center and Selwyn Vanderpool deposited a check for $121,646.20 from Sun Life Financial into her checking account. Selwyn Vanderpool later wrote a check using his power of attorney from his wife's checking account, making it payable to Cornerstone Marketing.

That same day, Bowell deposited the check into Cornerstone's checking account.

On Jan. 31, 2014, the Selwyn Vanderpool and Lila Vanderpool Family Irrevocable Trust was formed, and a Vanderpool Trust Account was opened at City National Bank in Lewisburg. That same day, Boswell obtained a cashier’s check from BB&T in the amount of $93,500, which was the balance of the Vanderpool funds previously deposited into Cornerstone’s account.

Boswell gave the cashier’s check to Selwyn Vanderpool, who deposited it into the Vanderpool Trust Account. 

"It appears that sometime during the course of the ... transactions, Corporal Hunt began his investigation and sought assistance from the Greenbrier County Prosecutor’s Office to obtain the banking records of Mr. Vanderpool, Mrs. Vanderpool, Mr. Boswell, Cornerstone Marketing, and Ridgeview Properties," the opinion states. 

Pursuant to Hunt’s request, an order was issued by Greenbrier Circuit Judge J. C. Pomponio Jr., directing the circuit clerk to issue a subpoena duces tecum to Hunt so he could obtain the BB&T bank records, according to the opinion.

Hunt then served the subpoena on BB&T and its agent, Danita Moore. No notice of the subpoena was given to any of the individuals or entities whose financial records were being sought.

The petitioners claimed that by not giving notice of the subpoena, Hunt violated the Maxwell Governmental Access to Financial Records Act. The circuit court dismissed the complaint on Feb 10, 2017. Then the court denied a motion for rehearing on April 10, 2017.

"Upon review of the complaint, we find no assertion that the respondent officer or the respondent sheriff’s department negligently disclosed the petitioners’ financial records to anyone," Hutchison wrote. "Rather, the petitioners simply alleged in the complaint that respondent 'Hunt knowingly, willfully and negligently induced' BB&T to disclose the subject records."

Hutchison wrote that because West Virginia Code § 31A-2A-7(b) does not provide for civil liability when a state entity “induces” a financial institution to disclose financial records or information contained therein, the petitioners have no claim against the respondents under the Maxwell Governmental Access to Financial Records Act.

"Even when the petitioners’ allegations are taken as true, their complaint fails to allege a violation of the Act by the respondents that gives rise to a claim upon which relief can be granted," Hutchison wrote. "Therefore, the circuit court did not err in dismissing the complaint against the respondents pursuant to Rule of Civil Procedure 12(b)(6) and in denying the petitioners’ motion for a rehearing."

West Virginia Supreme Court of Appeals Case number: 17-0436

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