State of West Virginia ex rel. Regional Jail Authority v. the Honorable Carrie Webster, Judge ( 2019 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2019 Term FILED
_____________
November 22, 2019
released at 3:00 p.m.
No. 19-0595 EDYTHE NASH GAISER, CLERK
_____________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL.
WEST VIRGINIA REGIONAL JAIL AUTHORITY,
Petitioner
V.
HONORABLE CARRIE WEBSTER,
JUDGE OF THE CIRCUIT COURT OF KANAWHA COUNTY;
BOBBI DAWN BRYANT; AND
PRIMECARE OF WEST VIRGINIA, INC.,
Respondents
________________________________________________
PETITION FOR WRIT OF PROHIBITION
WRIT DENIED
________________________________________________
Submitted: November 6, 2019
Filed: November 22, 2019
M. Andrew Brison Stephen P. New
Mark J. McGhee Amanda J. Taylor
Anspach Meeks Ellenberger LLP Beckley, West Virginia
Charleston, West Virginia Attorneys for the Respondent
Attorneys for the Petitioner Bobbi Dawn Bryant
JUSTICE JENKINS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court. It will only issue where the trial court has no jurisdiction or
having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1.” Syllabus
point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).
2. “‘[T]his Court will use prohibition in this discretionary way to correct
only substantial, clear-cut, legal errors plainly in contravention of a clear statutory,
constitutional, or common law mandate which may be resolved independently of any
disputed facts and only in cases where there is a high probability that the trial will be
completely reversed if the error is not corrected in advance.’ Syl. Pt. 1, in part, Hinkle v.
Black, 164 W. Va. 112, 262 S.E.2d 744 (1979), superseded by statute on other grounds as
stated in State ex rel. Thornhill Group, Inc. v. King, 233 W. Va. 564, 759 S.E.2d 795(2014).” Syllabus point 3, State ex rel. Almond v. Rudolph, 238 W. Va. 289, 794 S.E.2d
10 (2016).
3. “In determining whether to entertain and issue the writ of prohibition
for cases not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
i
correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter
of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal’s
order raises new and important problems or issues of law of first impression. These factors
are general guidelines that serve as a useful starting point for determining whether a
discretionary writ of prohibition should issue. Although all five factors need not be
satisfied, it is clear that the third factor, the existence of clear error as a matter of law,
should be given substantial weight.” Syllabus point 4, State ex rel. Hoover v. Berger, 199
W. Va. 12, 483 S.E.2d 12 (1996).
4. “A five-step analysis should be applied to determine whether a cause
of action is time-barred. First, the court should identify the applicable statute of limitation
for each cause of action. Second, the court (or, if questions of material fact exist, the jury)
should identify when the requisite elements of the cause of action occurred. Third, the
discovery rule should be applied to determine when the statute of limitation began to run
by determining when the plaintiff knew, or by the exercise of reasonable diligence should
have known, of the elements of a possible cause of action, as set forth in Syllabus Point 4
of Gaither v. City Hosp., Inc., 199 W. Va. 706, 487 S.E.2d 901 (1997). Fourth, if the
plaintiff is not entitled to the benefit of the discovery rule, then determine whether the
defendant fraudulently concealed facts that prevented the plaintiff from discovering or
pursuing the cause of action. Whenever a plaintiff is able to show that the defendant
fraudulently concealed facts which prevented the plaintiff from discovering or pursuing the
ii
potential cause of action, the statute of limitation is tolled. And fifth, the court or the jury
should determine if the statute of limitation period was arrested by some other tolling
doctrine. Only the first step is purely a question of law; the resolution of steps two through
five will generally involve questions of material fact that will need to be resolved by the
trier of fact.” Syllabus point 5, Dunn v. Rockwell, 225 W. Va. 43, 689 S.E.2d 255 (2009).
iii
Jenkins, Justice:
This case was brought as a petition for a writ of prohibition under the original
jurisdiction of this Court by Petitioner, the West Virginia Regional Jail Authority (“the
WVRJA”). In this proceeding, the WVRJA seeks to have this Court prohibit the Circuit
Court of Kanawha County from enforcing its order denying the WVRJA’s motion to
dismiss Respondent Bobbi Dawn Bryant’s (“Ms. Bryant”) complaint against it as barred
by the applicable statute of limitations. On November 16, 2016, Ms. Bryant was
incarcerated at the Southwestern Regional Jail and Correctional Facility (“regional jail”)
in Logan County, West Virginia, when she was seen by the medical staff for “weakness,
labored breathing, rapid pulse, and disorientation.” She was urgently transferred to Logan
Regional Medical Center and, subsequently, to Pikeville Medical Center.
Ms. Bryant sued both PrimeCare Medical of West Virginia Inc.
(“PrimeCare”)1 and the WVRJA in the Circuit Court of Kanawha County. The WVRJA
moved to dismiss the complaint on the sole basis that the claims asserted against it were
time-barred by the applicable statutes of limitation. However, the circuit court found that
because the statute of limitations was appropriately tolled as to the co-defendant,
PrimeCare, and because Ms. Bryant alleged a civil conspiracy cause of action, the tolling
1
In her complaint, Ms. Bryant alleges that during her time at the regional
jail, PrimeCare was her healthcare provider.
We note that PrimeCare has not presented any filings in this proceeding.
1
of the statute of limitation as to PrimeCare was imputed to the WVRJA. The WVRJA
contends that the circuit court’s order is clear legal error. Upon careful review of the briefs,
the appendix record, the oral arguments of the parties, and the applicable legal authority,
we deny the writ.
I.
FACTUAL AND PROCEDURAL HISTORY
Ms. Bryant asserted the following factual allegations in her underlying
complaint. Ms. Bryant was an inmate at the regional jail from November 7, 2016, until
November 16, 2016, at which time she was “transferred urgently to Logan Regional
Medical Center and, subsequently, to Pikeville Medical Center” for treatment. On the
evening of November 16, 2016, Ms. Bryant was seen by the medical staff of PrimeCare at
the regional jail for “weakness, labored breathing, rapid pulse, and disorientation.” She
was found to have crackles in the bases of her lungs. As such, the on-call doctor directed
that the nursing staff administer IV antibiotics, however the nursing staff could not do so.
Accordingly, Ms. Bryant was transferred to Logan Regional Medical Center where she
received medical care, including receiving IV antibiotics, and was ultimately transferred to
Pikeville Medical Center for further treatment. During her stay at Pikeville Medical
Center, Ms. Bryant was treated for several ailments, including sepsis and endocarditis. Ms.
Bryant underwent a cholecystectomy and a tricuspid valve replacement and was eventually
2
discharged from Pikeville Medical Center on December 5, 2016; however, she continued
to receive four weeks of daily outpatient IV antibiotics.2
It is undisputed that on November 6, 2018, pursuant to the pre-suit notice
requirements contained within the West Virginia Medical Professional Liability Act
(“MPLA”), West Virginia Code § 55-7B-6(b) (LexisNexis 2016), Ms. Bryant, through
counsel, served a notice of claim on PrimeCare. According to Ms. Bryant, the notice of
claim “contained [a] statement of intent to provide a screening certificate of merit affidavit
within sixty days.” On December 28, 2018, within the sixty day time period, Ms. Bryant
states that she provided a detailed notice of claim and screening certificate of merit to
PrimeCare. On January 28, 2019, Ms. Bryant filed her complaint against both PrimeCare
and the WVRJA. Specifically, Ms. Bryant alleged state law claims of negligence against
the WVRJA asserting that while she was incarcerated at the regional jail, its agents,
servants, or employees (1) negligently and carelessly failed to monitor and check her; (2)
negligently and carelessly failed to prevent her health from declining; (3) failed to watch
or monitor her as required; and (4) failed to properly and adequately supervise the
monitoring. Ms. Bryant alleged a medical negligence claim against PrimeCare. Finally,
Ms. Bryant alleged a civil conspiracy claim against both the WVRJA and PrimeCare. Ms.
Bryant’s civil conspiracy claim contended that,
2
Based on the limited record before us, it is not clear if upon discharge from
Pikeville Medical Center Ms. Bryant returned to the regional jail or was discharged
elsewhere.
3
[b]y entering into an express or implicit agreement to commit
an unlawful act or to commit a lawful act through unlawful
means by engaging in an overt act, to-wit: Defendant
PrimeCare Medical and agents and/or employees of Defendant
West Virginia Regional Jail Authority, collectively agreed and
conspired to commit the tortious conduct set forth herein,
thereby inflicting damage on Plaintiff, proximately causing
Plaintiff to sustain losses and damages as set forth herein.
Additionally, the complaint indicated that Ms. Bryant had “complied in all manners with
the notice requirements set forth in the [MPLA], W. Va. Code § 55-7B-6.”
Subsequently, on March 6, 2019, the WVRJA filed a motion to dismiss Ms.
Bryant’s complaint pursuant to West Virginia Rule of Civil Procedure 12(b)(6), arguing
that the applicable statute of limitations for filing certain claims asserted against it expired
on November 16, 2018, two years after Ms. Bryant’s transfer out of the regional jail.3 In
her response to the WVRJA’s motion to dismiss, Ms. Bryant argued that a November 16,
2018 notice of claim that was filed pursuant to the MPLA, West Virginia Code §§ 55-7B-
1 to 55-7B-12 (LexisNexis 2016), tolled the statutes of limitation with respect to her claims
against every defendant, not just her medical negligence claim against PrimeCare, because
the complaint asserted a civil conspiracy claim against both PrimeCare and the WVRJA.
The WVRJA replied that Ms. Bryant’s reliance on the general rule that the tolling of the
statute of limitation as to one defendant in a civil conspiracy tolls the statute of limitation
3
West Virginia Code § 55-2-12(b) (LexisNexis 2016) provides that “[e]very
personal action for which no limitation is otherwise prescribed shall be brought: . . . (b)
within two years next after the right to bring the same shall have accrued if it be for
damages for personal injuries[.]”
4
as to all defendants within the civil conspiracy was misplaced because this “rule has a
limited reach and has no application unless the case involves fraudulent concealment.”
Without holding a hearing, the circuit court denied the WVRJA’s motion to dismiss,
finding that Ms. Bryant’s claims against the WVRJA were not time-barred because the
statute of limitations was properly tolled as to PrimeCare pursuant to the MPLA and
“[b]ecause the statute [of limitation] was tolled as to PrimeCare, it is likewise tolled as to
[the] WVRJA as an alleged civil conspirator.” The WVRJA then filed a petition for writ
of prohibition with this Court.
II.
STANDARD FOR ISSUANCE OF WRIT
The WVRJA brought this action under this Court’s original jurisdiction
seeking a writ of prohibition. We have stated that “[a] writ of prohibition will not issue to
prevent a simple abuse of discretion by a trial court. It will only issue where the trial court
has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code,
53-1-1.” Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425(1977). Furthermore,
“this Court will use prohibition in this discretionary way
to correct only substantial, clear-cut, legal errors plainly in
contravention of a clear statutory, constitutional, or common
law mandate which may be resolved independently of any
disputed facts and only in cases where there is a high
probability that the trial will be completely reversed if the error
is not corrected in advance.” Syl. Pt. 1, in part, Hinkle v. Black,
164 W. Va. 112, 262 S.E.2d 744 (1979), superseded by statute
5
on other grounds as stated in State ex rel. Thornhill Group,
Inc. v. King, 233 W. Va. 564, 759 S.E.2d 795 (2014).
Syl. pt. 3, State ex rel. Almond v. Rudolph, 238 W. Va. 289, 794 S.E.2d 10 (2016).
Moreover, in Syllabus point 4 of State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d
12 (1996), this Court set forth the following standard for issuance of a writ of prohibition
when it is alleged a lower court has exceeded its legitimate authority:
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as a
useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of
clear error as a matter of law, should be given substantial
weight.
We have further held that, “‘[i]n determining the third factor, the existence of clear error
as a matter of law, we will employ a de novo standard of review, as in matters in which
purely legal issues are at issue.’ State ex rel Gessler v. Mazzone, 212 W. Va. 368, 372, 572
S.E.2d 891, 895 (2002).” State ex rel. Nelson v. Frye, 221 W. Va. 391, 395, 655 S.E.2d
137, 141 (2007). With the foregoing standards in mind, we turn to the parties’ arguments
and the merits of the underlying petition for writ of prohibition.
6
III.
DISCUSSION
In this original jurisdiction matter, the WVRJA raises one issue: whether the
circuit court committed clear legal error in denying the WVRJA’s motion to dismiss Ms.
Bryant’s complaint as time-barred, based on the applicable statute of limitations, such that
a writ of prohibition is warranted. The WVRJA contends that it is entitled to a writ of
prohibition based upon factors one, two, and three of Hoover; however, it mainly relies
upon factor three – clear legal error. See Syl. pt. 4, State ex rel. Hoover v. Berger, 199
W. Va. 12, 483 S.E.2d 12. Regarding factor one – whether the party seeking the writ has
no other adequate means, such as a direct appeal, to obtain the desired relief – the WVRJA
simply states that a writ of prohibition is its only means. See id. Regarding factor two –
whether the petitioner will be damaged or prejudiced in a way that is not correctable on
appeal – the WVRJA states that requiring it, a State entity, to proceed “with the cost, time,
and inconvenience of discovery creates damage and prejudice which is not relieved if
forced to litigate this case for years only to obtain reversal through a direct appeal.” See
id. Regarding factor three – whether the circuit court’s order is clearly erroneous as a
matter of law – the WVRJA contends that the circuit court’s failure to dismiss the action
pursuant to a statute of limitations argument was clearly erroneous as a matter of law. See
id. We disagree with the WVRJA.
7
The WVRJA bases the majority of its argument on the third factor – clear
legal error. Accordingly, we will focus our attention to this factor as well. This Court has
established that
[a] five-step analysis should be applied to determine
whether a cause of action is time-barred. First, the court should
identify the applicable statute of limitation for each cause of
action. Second, the court (or, if questions of material fact exist,
the jury) should identify when the requisite elements of the
cause of action occurred. Third, the discovery rule should be
applied to determine when the statute of limitation began to run
by determining when the plaintiff knew, or by the exercise of
reasonable diligence should have known, of the elements of a
possible cause of action, as set forth in Syllabus Point 4 of
Gaither v. City Hosp., Inc., 199 W. Va. 706, 487 S.E.2d 901(1997). Fourth, if the plaintiff is not entitled to the benefit of
the discovery rule, then determine whether the defendant
fraudulently concealed facts that prevented the plaintiff from
discovering or pursuing the cause of action. Whenever a
plaintiff is able to show that the defendant fraudulently
concealed facts which prevented the plaintiff from discovering
or pursuing the potential cause of action, the statute of
limitation is tolled. And fifth, the court or the jury should
determine if the statute of limitation period was arrested by
some other tolling doctrine. Only the first step is purely a
question of law; the resolution of steps two through five will
generally involve questions of material fact that will need to be
resolved by the trier of fact.
Syl. pt. 5, Dunn v. Rockwell, 225 W. Va. 43, 689 S.E.2d 255 (2009) (emphasis added).
Using Dunn as a guide, the first step in the analysis is to determine the proper statutes of
limitation for each cause of action against the WVRJA. See id. There is no dispute that a
two year statute of limitation is applicable to the causes of action against Petitioner. First,
with regard to the negligence cause of action against the WVRJA, we must look to West
Virginia Code § 55-2-12 (LexisNexis 2016), which provides that
8
[e]very personal action for which no limitation is
otherwise prescribed shall be brought: (a) Within two years
next after the right to bring the same shall have accrued, if it be
for damage to property; (b) within two years next after the right
to bring the same shall have accrued if it be for damages for
personal injuries; and (c) within one year next after the right
to bring the same shall have accrued if it be for any other matter
of such nature that, in case a party die, it could not have been
brought at common law by or against his personal
representative.
(Emphasis added). Therefore, the statute of limitation is two years for Ms. Bryant’s
negligence claim. Next, we have held that “[t]he statute of limitation for a civil conspiracy
claim is determined by the nature of the underlying conduct on which the claim for
conspiracy is based.” Syl. pt. 10, Dunn v. Rockwell, 225 W. Va. 43, 689 S.E.2d 255. As
such, the statute of limitation is two years for the civil conspiracy cause of action as well.
We must now turn to the second step of Dunn and determine when the
requisite elements of the cause of action occurred. See Syl. pt. 5, Dunn v. Rockwell, 225
W. Va. 43, 689 S.E.2d 255. Once again, there is no dispute as to the second step. The
WVRJA asserts, and Ms. Bryant does not dispute, that based upon the allegations contained
within the complaint, “the last date relevant to [Ms.] Bryant’s claims against the [WVRJA]
occurred on November 16, 2016[,]” when Ms. Bryant was transferred out of the regional
jail.
Next, pursuant to the third step of Dunn, we must determine if the discovery
rule should be applied. See id. Here, there are no allegations by Ms. Bryant that the
9
discovery rule would have tolled the date when the statute of limitation began to run.
Fourth, this Court must examine whether the WVRJA fraudulently concealed any facts that
prevented Ms. Bryant from discovering or pursuing the causes of action. See id. A review
of the record demonstrates that there are no allegations in this matter that the WVRJA
fraudulently concealed any facts that would have prevented Ms. Bryant from discovering
or pursuing the matter.
Last, we must determine if the statute of limitation period was arrested by
“some other tolling doctrine.” Syl. pt. 5, in part, id. Ms. Bryant contends that the statutes
of limitation on both of her causes of action against the WVRJA were tolled pursuant to
this fifth step. Specifically, Ms. Bryant argues that there is no dispute that the statute of
limitations was appropriately tolled as to her medical malpractice cause of action against
co-defendant PrimeCare. Ms. Bryant further argues that, because she has alleged a civil
conspiracy cause of action against both the WVRJA and PrimeCare, the statutes of
limitation were tolled not only with respect to PrimeCare, but also as to the WVRJA. In
arriving at this conclusion, Ms. Bryant relies on this Court’s discussion of the fifth step in
Dunn. However, the WVRJA contends that allegations of fraudulent concealment are a
necessary prerequisite to utilizing this doctrine.
In Dunn, we examined whether several different claims against several
different defendants were time-barred. Significantly, the Court examined seven causes of
action against Mr. Rockwell, an attorney, and his wife, Mrs. Rockwell, a non-attorney. Id.,10
225 W. Va. at 54, 689 S.E.2d at 266. The Court analyzed the first three steps to determine
the date upon which the various applicable statutes of limitation began to run. Thereafter,
the Court moved to the fourth step in the analysis: whether there was any fraudulent
concealment. Id., 225 W. Va. at 59, 689 S.E.2d at 271. Noting that “[t]he Dunns conceded
that the Rockwells did nothing to fraudulently conceal any facts which would have led the
Dunns to discover or to pursue their causes of action[,]” the Court turned to the fifth and
final step of the analysis. Id. (emphasis added). In analyzing the fifth factor, the Court
undertook an examination of whether the statute of limitation as to each defendant was
arrested by some other tolling doctrine. Id. The Court in Dunn stated that it had
previously adopted a doctrine that tolls statutes of limitation in
negligence actions against attorneys. The continuous
representation doctrine, which [the Court] adopted in Smith v.
Stacy, 198 W. Va. 498, 482 S.E.2d 115 (1996), tolls a statute
of limitation in an attorney malpractice action “until the
professional relationship terminates with respect to the matter
underlying the malpractice action.”
Id. (footnote omitted). Furthermore, we stated that based upon the record before us, “it
appear[ed] that there [was] evidence sufficient to say that questions of material fact exist
for the finder of fact to resolve regarding whether the two-year statutes of limitation on the
Dunns’ five causes of action against Lawyer Rockwell were tolled.” Dunn, 225 W. Va. at
61, 689 S.E.2d at 273 (footnote omitted). In other words, this Court directed the finder of
fact on remand to “resolve whether the statute[s] of limitation [were] tolled until the Spring
of 2005 by [Lawyer Rockwell’s] continuous representation of the Dunns[.]” Id.11
Following the Court’s determination that the continuous representation
doctrine might apply to Mr. Rockwell, it examined the claims asserted against his wife,
Mrs. Rockwell. Id. The Court found “that questions of material fact likewise exist
concerning whether the statutes of limitation were tolled as to the five causes of action
against her as well.” Id. However, Mrs. Rockwell contended “that[,] because she [was]
not an attorney, and was not in a continuous professional relationship with the Dunns, . . .
she ought to receive repose because the Dunns did not file their actions against her within
two years[.]” Id. The Court found her argument to be without merit because her “argument
overlook[ed] one of the causes of action asserted against her: civil conspiracy.” Id. The
Court noted that “[t]he general rule is that if the statute of limitation is tolled as to one
defendant in a civil conspiracy, it is tolled as to all alleged co-conspirators.” Id. (footnote
omitted).
Ms. Bryant contends that her complaint was timely filed because the
statutory provisions of the MPLA tolled the statutes of limitation as to co-defendant and
alleged co-conspirator PrimeCare and also apply to the WVRJA in this specific instance.
Her assertion is based upon the fifth step announced in Dunn, which requires consideration
of whether the statute of limitation is arrested by some other tolling doctrine, and pursuant
to the statement announced in Dunn: that if the statute of limitation is tolled as to one
conspirator, it is tolled as to all co-conspirators. Moreover, Ms. Bryant argues that because
she is solely relying on the fifth step of Dunn, there is no mention of fraudulent
12
concealment being a necessary requirement for tolling the statute of limitation with respect
to a co-conspirator.
The standard for the issuance of a writ of prohibition by this Court is well-
established and clear: the third factor of whether there was clear error is to be given
substantial weight and we will use prohibition in a discretionary way to correct “only
substantial, clear-cut, legal errors plainly in contravention of a clear statutory,
constitutional, or common law mandate.” Syl. pt. 3, in part, State ex rel. Almond v.
Rudolph, 238 W. Va. 289, 794 S.E.2d 10 (emphasis added). Moreover, “[a] court commits
clear legal error ‘when it incorrectly chooses, interprets, or applies the law.’ McIntosh v.
McIntosh, 282 Mich. App. 471, 475, 768 N.W.2d 325 (2009).” Geering v. King, 906
N.W.2d 214, 218 (2017).
In Dunn, at Syllabus point five, we set forth five separate and distinct steps
to determine whether a cause of action is time-barred. See Syl. pt. 5, Dunn, 225 W. Va.
43, 689 S.E.2d 255. Using this five-step analysis, the Dunn Court determined that the
causes of action against the attorney husband were potentially tolled pursuant to the
continuous representation doctrine. Despite the absence of any fraudulent concealment
allegations and despite the fact that the wife was not an attorney, the Dunn Court imputed
the continuous representation tolling doctrine to her based on the statement that “[t]he
general rule is that if the statute of limitation is tolled as to one defendant in a civil
13
conspiracy, it is tolled as to all alleged co-conspirators.” Id., 225 W. Va. at 61, 689 S.E.2d
at 273.
In the matter sub judice, the circuit court found that the “WVRJA d[id] not
assert that [Ms. Bryant] has failed to state a cause of action upon which relief may be
granted for civil conspiracy as between Defendant WVRJA and Defendant Prime Care
[sic].” Furthermore, the circuit court found that the statutes of limitation were
appropriately tolled as to PrimeCare and because the statutes of limitation had been
properly tolled as to a co-defendant and alleged co-conspirator, the statutes of limitation
had likewise been tolled as to the WVRJA. The circuit court based this ruling on the Dunn
Court’s broad imputation of the husband defendant’s potential tolling of the statutes of
limitation to the non-attorney wife defendant because they too were alleged co-
conspirators. Accordingly, given the high standard for the issuance of a writ of prohibition
and the circumstances as presented in Dunn, WVRJA has failed to demonstrate that the
circuit court’s order was clearly erroneous4 in its decision to deny the WVRAJ’s motion to
dismiss based solely on a statute of limitation argument.5
4
Because it is not entirely clear whether the general rule in Dunn was
intended to apply to statutory tolling provisions such as the MPLA, we cannot conclude
that the circuit court clearly erred as a matter of law so as to warrant a writ of prohibition.
5
Additionally, we note that the WVRJA also raised the first and second
Hoover factors in support of granting a writ of prohibition. However, we do not believe
that in this matter the WVRJA raised concerns sufficient to grant a writ of prohibition,
particularly because of the weight afforded to the third factor under Hoover and the weight
accorded to it in the WVRJA’s brief.
14
IV.
CONCLUSION
In view of the foregoing, the writ of prohibition prayed for by the WVRJA is denied.
Writ denied.
15