CHARLESTON — The Supreme Court affirmed Monongalia Circuit Court's order granting summary judgment to Frontier West Virginia and T.A. Chapman Inc.
Howard Liston's claim is deemed time-barred under the statute of limitations, and the court finds no error in this determination, according to the Jan. 25 West Virginia Supreme Court memorandum decision.
Liston was appealing a Monongalia Circuit Court order from March 7, 2022, which granted summary judgment to the respondents in his claim that their negligent removal and replacement of a utility pole caused damages to his real property.
The undisputed facts of the case are that the respondents removed and replaced a utility pole adjacent to Liston's rental property no later than 1993, according to the memorandum decision.
Liston observed this work, noting that the workers "broke off" the old pole about 15 inches above the ground, leaving a jagged break that went below the ground level.
The workers informed Liston that another crew would come to complete the job by jackhammering the sidewalk, digging down, and pouring a new sidewalk, however, this work was never done despite Liston's repeated calls to the power company, according to the decision.
In 1999, Liston received a call from a tenant reporting the sound of running water during a rainstorm and Liston investigated but found no running water at the time.
However, he suspected rainwater was getting under the sidewalk due to the manner in which the pole was left.
In 2005, Liston found moisture in the crawlspace of the property, indicating water infiltration. He continued to make calls to the power company to address the issue but took no legal action until May 9, 2016, after discovering mold in the property in 2014.
Liston's complaint alleged that the respondents negligently left the bottom portion of the pole in the ground, leading to water infiltration, structural damage and mold in the property.
The respondents moved for summary judgment, arguing that Liston's claim was time-barred under the two-year statute of limitations in West Virginia Code § 55-2-12(a).
The court granted their motions, citing evidence that Liston knew or should have known of the damage no later than 2005, making his 2016 lawsuit untimely.
In his appeal, Liston argues that the discovery rule should toll the statute of limitations. This rule states that the statute begins when the plaintiff knows or should know they have been injured, the identity of the responsible entity, and the causal relation between the conduct and injury.
The court agrees that Liston knew of the injury and the responsible party when he observed the pole's removal and replacement in the 1990s. He was aware of the water infiltration by 2005 and actively tried to prevent it, indicating his knowledge of the causal link between the respondent's actions and the damages, according to the decision.
Therefore, even if the discovery rule applies, it only delays the start of the statute of limitations until 2005, when Liston discovered the water infiltration. Since he did not file suit until 2016, well beyond the two-year limit, his claim remains time-barred, the court found.
There are no allegations of fraudulent concealment or other tolling doctrines, further supporting the court's decision to grant summary judgment to the respondents.
Justice John A. Hutchison disagreed with the majority and authored a dissenting opinion.
"I dissent to the majority’s resolution of this case," Hutchison wrote. "I would have set this case for oral argument to thoroughly address the error alleged in this appeal. Having reviewed the parties’ briefs and the issues raised therein, I believe a formal opinion of this Court was warranted, not a memorandum decision. Accordingly, I respectfully dissent."
The petitioner was represented by Kevin T. Tipton. Frontier was represented by Charles C. Wise. T.A. Chapman was represented by Jonathan J. Jacks and Victor Flanagan.
Attorneys for the parties declined to comment on the matter.
West Virginia Supreme Court of Appeals case number: 22-0258