Myra Kay Reilley, Administrator of the Estate of Francis E. Reilley and Myra Kay Reilley, Individually v. The Board of Education of the County of Marshall ( 2022 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
January 2022 Term
_______________ April 26, 2022
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 20-0849 SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
MYRA KAY REILLEY, Administrator of the Estate of Francis E. Reilley, and
MYRA KAY REILLEY, individually,
Defendants Below,
Petitioners,
v.
THE BOARD OF EDUCATION OF THE COUNTY OF MARSHALL,
Plaintiff Below,
Respondent.
____________________________________________________________
Appeal from the Circuit Court of Marshall County
The Honorable David W. Hummel, Jr., Judge
Civil Action No. 10-C-180-H
AFFIRMED, IN PART, AND REVERSED, IN PART AND REMANDED
____________________________________________________________
Submitted: February 15, 2022
Filed: April 26, 2022
Jeffrey A. Holmstrand, Esquire Kenneth E. Webb, Esquire
Grove, Holmstrand & Delk, PLLC Bowles Rice LLP
Wheeling, West Virginia Charleston, West Virginia
Counsel for Petitioners Counsel for Respondent
JUSTICE ARMSTEAD delivered the Opinion of the Court.
JUSTICE ALAN D. MOATS sitting by temporary assignment.
i
SYLLABUS BY THE COURT
1. “Under Rule 4(k) of the West Virginia Rules of Civil Procedure
[1998], if a plaintiff fails to serve a summons and complaint upon a defendant within 120
days, then the circuit court should dismiss the action against that defendant without
prejudice. However, the circuit court shall extend the time for service if the plaintiff
shows good cause for the failure. In the absence of a showing of good cause, upon motion
or upon its own initiative, the circuit court may in its discretion extend the time for service.”
Syllabus Point 3, Burkes v. Fas-Chek Food Mart Inc, 217 W. Va. 291, 617 S.E.2d 838(2005).
2. “Where a plaintiff sustains a noticeable injury to property from a
traumatic event, the statute of limitations begins to run and is not tolled because there may
also be latent damages arising from the same traumatic event.” Syllabus Point 2, Hall’s
Park Motel, Inc. v. Rover Construction, Inc., 194 W. Va. 309, 460 S.E.2d 444 (1995).
3. ““‘The proximate cause of an injury is the last negligent act
contributing to the injury and without which the injury would not have occurred.’” Syllabus
Point 5, Hartley v. Crede, 140 W.Va. 133, 82 S.E.2d 672 (1954), overruled on other
grounds, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983).” Syllabus Point 1, Mays v.
Chang, 213 W. Va. 220, 579 S.E.2d 561 (2003).
ii
4. “‘After an evidentiary hearing on a complaint for a permanent
injunction, a trial court is required to make a finding of fact and conclusion of law under
Rule 52 of the West Virginia Rules of Civil Procedure, and findings and conclusions also
should be made upon ruling on a motion to dissolve an injunction in order to assist appellate
courts in determining whether there is a legitimate area for state regulation by injunction.’
Syl. pt. 4, United Maintenance and Manufacturing Co. v. United Steel Workers of
America, 157 W.Va. 788, 204 S.E.2d 76 (1974).” Syllabus Point 2, West v. National Mines
Corp., 175 W. Va. 543, 336 S.E.2d 190 (1985).
5. “‘Rule 52(a) mandatorily requires the trial court, in all actions tried
upon the facts without a jury, to find the facts specially and state separately its conclusions
of law thereon before the entry of judgment. The failure to do so constitutes neglect of duty
on the part of the trial court, and if it appears on appeal that the rule has not been
complied with, the case may be remanded for compliance.’ Syllabus Point
1, Commonwealth Tire Co. v. Tri–State Tire Co., 156 W.Va. 351, 193 S.E.2d 544 (1972).”
Syllabus, Clark Apartments ex rel. Hood v. Walaszczyk, 213 W. Va. 369, 582 S.E.2d 816(2003).
iii
Armstead, Justice:
The Board of Education of the County of Marshall (“Respondent”) brought
suit against Myra Kay Reilley, Administrator of the Estate of Francis E. Reilley, and Myra
Kay Reilley, individually, (“Petitioners”) for alleged flood damages caused to
Respondent’s property as a result of the construction of a road and bridge which
Respondent maintained impeded the flow of Little Grave Creek in Glen Dale, West
Virginia. The matter proceeded to a jury trial and Petitioners were found to be liable to
Respondent for $122,861.79 in damages, plus pre- and post- judgment interest, for multiple
flooding events. Based upon that jury verdict, the circuit court granted injunctive relief
which required Petitioners to remove the bridge and road. Petitioners then appealed to this
Court, raising four issues: 1) the complaint in the action was not timely served; 2) damages
for two flood events were barred by the applicable statute of limitations; 3) the evidence
was insufficient for the jury to find that construction of the road and bridge was the
proximate cause of Respondent’s damages; and 4) the circuit court’s order granting
injunctive relief failed to contain appropriate findings of fact and conclusions of law.
After review of the trial transcript and evidence, the briefs and arguments of
the parties, and all other matters of record, we affirm on the issues of service of process
and proximate cause, and we reverse and remand on the statute of limitations issue and on
the granting of injunctive relief.
1
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1997, Petitioner’s husband, Frances E. Reilley, purchased a 198-acre tract
of land located along Little Grave Creek in Glen Dale, West Virginia. 1 The access to the
property is from State Route 2 and along a right of way which straddles the southern
boundary of property owned by Respondent. Respondent’s property is comprised of 37
acres and is the site of John Marshall High School and its attendant baseball field. The
bulk of Petitioners’ property is located on the east side of Little Grave Creek and
Respondent’s property is located on the west side. Thus, Little Grave Creek is the eastern
boundary of the Respondent’s property and is also the western boundary of the Petitioners’
property.
Sometime in 1984, Francis Reilley, with the assistance of his then co-owner
brothers and others, constructed an embankment on the right of way along the southern
boundary of Respondent’s property for an elevated roadway. At the same time, a bridge
was constructed across Little Grave Creek to Petitioners’ 198-acre tract. Once completed,
these improvements became known as Duck Lane.
There were no issues with the construction of Duck Lane until the remnants
of Hurricane Ivan passed through the Upper Ohio River Valley on September 17, 2004,
1
Prior to this purchase, Mr. Reilley was a co-owner of the property with his
brothers. Mr. Reilley died during the pendency of this action and his heir and estate were
substituted as parties.
2
causing a large amount of rain to fall in Marshall County. On that date, and for the first
time since construction of Duck Lane, Little Grave Creek overflowed its banks and flooded
the nearby baseball field. This marked the first of a number of flooding events that
occurred on February 1, 2008, June 17, 2009, and June 5, 2010, each causing damages to
Respondent’s baseball field.
On September 2, 2010, Respondent brought suit against Mr. Reilley alleging
multiple causes of action – continuing trespass, interference with riparian rights, nuisance
at law, and private nuisance. Respondent also sought an injunction to require Mr. Reilley
to abate the nuisance by removing Duck Lane. The summons was issued on January 28,
2011, and Mr. Reilley was personally served with the summons and complaint that day,
148 days after the complaint was filed. Mr. Reilley moved to dismiss the complaint on the
ground that it was not served within 120 days of filing as required by Rule 4(k) of the West
Virginia Rules of Civil Procedure. Mr. Reilley also moved to dismiss the allegations
regarding the first two flood events – September 17, 2004 and February 1, 2008 2 – on the
ground that they fell outside the applicable statute of limitations.
The initial complaint listed this date as March 4, 2008. The amended
2
complaint changed it to February 1, 2008.
3
A series of events then took place which ultimately resulted in the circuit
court not ruling on this motion until February 8, 2018. 3 At that time, the circuit court
denied the motion to dismiss, finding that “‘good cause’ clearly exists to allow
[Respondent] more than one hundred and twenty (120) days from the filing of the
Complaint” to serve Mr. Reilley. As to the issue of the 2004 and 2008 flood events being
outside the applicable statute of limitations, the circuit court found:
While [Petitioners’] position may very well be spot-on
correct relative to damages alleged to have resulted from the
2004 and 2008 flooding episodes, it is this Court’s position that
the parties should be given further opportunity for discovery to
develop the facts. When discovery has sufficiently produced
such facts, [Petitioners] may reach the same issues by way of a
Motion for Summary Judgment.
Thereafter, both parties filed motions for summary judgment. Petitioners renewed their
argument that Respondent’s claims relating to the September 17, 2004 and February 1,
2008, flooding events were filed outside the statute of limitations and were time-barred.
According to the appendix record, no written order was ever entered on the dispositive
motions but the circuit court ruled on the record that all dispositive motions were denied.
3
These events include the death of Mr. Reilley and the substitution of
Petitioners as parties to the action, retirement of a circuit judge, the recusal of the judge
who replaced the retired judge, and the transfer of the matter to another circuit judge, as
well as long periods of unexplained inactivity in the case. Despite this long delay, we note
that the record does not indicate that the parties actively sought a ruling by the circuit court
on the pending motion.
4
The matter then proceeded to a jury trial that lasted three days. Prior to
deliberations, the parties stipulated as to the damages caused to Respondent’s property as
a result of the separate flooding events: September 17, 2004 - $54,992.72; February 1,
2008 - $7,555.97; June 17, 2009 - $58,038.65; and, June 5, 2010 - $2,274.45. As noted in
the judgment order dated April 16, 2019, at the conclusion of the trial, the jury found
Petitioners liable for all four flooding events. Thereafter, Petitioners filed motions for
judgment as a matter of law, a new trial, and/or to amend the judgment order. The circuit
court denied the motions for judgment as a matter of law and for a new trial and amended
the judgment order with regard to the calculation of pre-judgment interest.
Over a year following trial, in an order containing no findings of fact or
conclusions of law, the circuit court granted Respondent injunctive relief requiring
Petitioners to remove the embankment and bridge. Petitioners then filed this appeal.
II. STANDARD OF REVIEW
As there are multiple issues arising from divergent procedural postures, we
set forth the standards of review applicable to each of the issues raised in the appeal. The
circuit court’s denial of Petitioners’ motion to dismiss the complaint under Rule 4(k) of the
West Virginia Rules of Civil Procedure is reviewed under an abuse of discretion. See
Syllabus Point 4, Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996) (“This
Court reviews the circuit court’s final order and ultimate disposition under an abuse of
5
discretion standard. We review challenges to findings of fact under a clearly erroneous
standard; conclusions of law are reviewed de novo.”).
A denial of a motion for summary judgment is reviewed de novo. “This
Court reviews de novo the denial of a motion for summary judgment, where such a ruling
is properly reviewable by this Court.” Syllabus Point 1, Findley v. State Farm Mut. Auto.
Ins. Co., 213 W. Va. 80, 576 S.E.2d 807 (2002). Likewise, the denial of a motion for
judgment as a matter of law is also reviewed de novo. “The appellate standard of review
for an order granting or denying a renewed motion for a judgment as a matter of law after
trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure [1998] is de
novo.” Syllabus Point 1, Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d 16 (2009) (brackets
in original).
Denial of motions for new trial are reviewed under an abuse of discretion
standard:
[I]t is well-established that “‘[a]lthough the ruling of a trial
court in granting or denying a motion for a new trial is entitled
to great respect and weight, the trial court’s ruling will be
reversed on appeal when it is clear that the trial court has acted
under some misapprehension of the law or the evidence.’
Syllabus point 4, Sanders v. Georgia–Pacific Corp., 159
W.Va. 621, 225 S.E.2d 218 (1976).” Syllabus Point
3, Carpenter v. Luke, 225 W.Va. 35, 689 S.E.2d 247 (2009). In
other words, our standard of review for a trial court’s decision
regarding a motion for a new trial is abuse of
discretion. Marsch v. American Elec. Power Co., 207 W.Va.
174, 180, 530 S.E.2d 173, 179 (1999).
6
MacDonald v. City Hosp., Inc., 227 W. Va. 707, 715, 715 S.E.2d 405, 413 (2011).
Finally, we review a circuit court’s order granting injunctive relief under the
following standard of review:
In reviewing objections to the findings of fact and
conclusions of law supporting the granting or the denial of a
temporary or preliminary injunction, we will apply a three-
pronged deferential standard of review. We review the final
order granting or denying the temporary injunction and the
ultimate disposition under an abuse of discretion standard, we
review the circuit court’s underlying factual findings under a
clearly erroneous standard, and we review questions of law de
novo.
Syllabus Point 1, Bansbach v. Harbin, 229 W. Va. 287, 728 S.E.2d 533 (2012).
III. ANALYSIS
Having set forth the applicable standards of review, we now turn to each
issue raised in this appeal.
A. Untimely Service of Complaint
We first address the issue of service of the complaint and summons on Mr.
Reilley. 4 As stated above, the complaint was filed on September 2, 2010, but the summons
was not issued until January 28, 2011, 148 days after the complaint was filed. The
4
We reiterate that Mr. Reilley passed away during the course of the litigation
and Petitioners were substituted as parties in his place.
7
summons and complaint were served that day upon Mr. Reilley. Rule 4(k) of the West
Virginia Rules of Civil Procedure provides:
If service of the summons and complaint is not made
upon a defendant within 120 days after the filing of the
complaint, the court, upon motion or on its own initiative after
notice to the plaintiff, shall dismiss the action without
prejudice as to that defendant or direct that service be effective
within a specified time; provided that if the plaintiff shows
good cause for the failure, the court shall extend the time for
service for an appropriate period.
W. V. R. C. P. 4. Upon a finding of good cause, an extension of time beyond the 120 days
for serving a complaint is mandatory. We have discussed this mandatory application of
Rule 4(k) and held:
Under Rule 4(k) of the West Virginia Rules of Civil
Procedure [1998], if a plaintiff fails to serve a summons and
complaint upon a defendant within 120 days, then the circuit
court should dismiss the action against that defendant without
prejudice. However, the circuit court shall extend the time for
service if the plaintiff shows good cause for the failure. In the
absence of a showing of good cause, upon motion or upon its
own initiative, the circuit court may in its discretion extend the
time for service.
Syllabus Point 3, Burkes v. Fas-Chek Food Mart Inc, 217 W. Va. 291, 617 S.E.2d 838(2005) (brackets in original). In Burkes, we also set forth factors to determine if good cause
exists to extend the time for service:
In considering whether good cause has been satisfied, circuit
courts should consider the “‘(1) length of time to obtain
service; (2) activity of plaintiff; (3) plaintiff’s knowledge of
defendant’s location; (4) ease with which location could have
been known; (5) actual knowledge by defendant of the action;
and (6) special circumstances.” Estate of Hough ex rel.
Lemaster v. Estate of Hough ex rel. Berkeley County
8
Sheriff, 205 W. Va. 537, 542, 519 S.E.2d 640, 645 (1999) (per
curiam).
Id., 217 W. Va. at 298, 617 S.E.2d at 845. Additionally, we have previously explained
that:
Because the West Virginia Rules of Civil Procedure are
patterned after the Federal Rules of Civil Procedure, we often
refer to interpretations of the Federal Rules when discussing
our own rules. See Painter v. Peavy, 192 W.Va. 189, 192 n. 6,
451 S.E.2d 755, 758 n. 6 (1994) (“Because the West Virginia
Rules of Civil Procedure are practically identical to the Federal
Rules, we give substantial weight to federal cases . . . in
determining the meaning and scope of our rules.”). See,
e.g., State v. Sutphin, 195 W.Va. 551, 563, 466 S.E.2d 402, 414
(1995) (“The West Virginia Rules of Evidence are patterned
upon the Federal Rules of Evidence, . . . and we have
repeatedly recognized that when codified procedural rules or
rules of evidence of West Virginia are patterned after the
corresponding federal rules, federal decisions interpreting
those rules are persuasive guides in the interpretation of our
rules.” (citations omitted)).
Keplinger v. Virginia Elec. & Power Co., 208 W. Va. 11, 20 n. 13, 537 S.E.2d 632, 641 n.
13 (2000). Thus, under Rule 4(m) of the Federal Rules of Civil Procedure, the rule after
which West Virginia’s Rule 4(k) is patterned, the United States Supreme Court has stated
that “[c]omplaints are not to be dismissed if served within 120 days, or within such
additional time as the court may allow.” 5 Henderson v. United States, 517 U.S. 654, 663
(1996). This is because “[t]he liberality of the Federal Rules of Civil Procedure allows
minor defects in service to be overlooked, as long as the defendant received actual notice
of the lawsuit and has an opportunity to defend the action.” 4B Charles Alan Wright,
5
Federal Rule of Civil Procedure 4(m) now requires service within 90 days.
9
Arthur R. Miller & Adam B. Steinman, Federal Practice and Procedure § 1137 (2021
Supp.). This is in accord with our previous holding that “the West Virginia Rules
of Civil Procedure should be construed liberally to promote justice.” Syllabus Point 1, in
part, Harrison v. Davis, 197 W. Va. 651, 478 S.E.2d 104 (1996).
Below, the circuit court found that good cause “clearly exists,” pointing to
the affidavit of Respondent’s then-counsel Christopher P. Riley, Esquire, which stated:
2. At [Respondent’s] request, Riley did not have the
Complaint served on the [then-]defendant, Francis E. Reilley,
as [Respondent] wished to provide [Mr.] Reilley with an
opportunity to engage in discussions to amicably resolve the
recurrent flooding of the John Marshall High School athletic
fields and resulting damages therefrom caused by the
defendant’s bridge, roadway, and alterations to the watercourse
of Little Grave Creek.
3. To this end, [Attorney Riley] wrote to [Petitioners’
then-attorney], William Kolibash, on September 7, 2010, to
explore an amicable resolution and request information to aid
in resolution of the claim. . . .
4. Other than a brief acknowledgement of receipt and
an indication that a response would be forthcoming, the
defendant [Mr.] Reilley did not respond.
5. On or about September 1, 2010, [Attorney Riley]
began a restructuring of his law firm. . . .
11. The aforesaid firm matters resulted in a delay in
effectuating service of process within one hundred twenty
(120) days of filing suit. . . .
10
We find that the circuit court did not abuse its discretion in finding good
cause. Here, Respondent had informed Mr. Reilley’s then-counsel of the suit and was
trying to determine if counsel would accept service of process, Respondent knew the
location of Mr. Reilley, and Mr. Reilley knew of the lawsuit. We believe that the pre-120
day notice Petitioners enjoyed, coupled with the short period in which the service exceeded
120 days and the complete lack of prejudice to Petitioners substantiate the good cause
finding by the circuit court. Indeed, had Respondent’s initial complaint been dismissed,
Respondent would simply have refiled the exact same complaint. Of course, at the time
the motion to dismiss was denied, nearly seven years had passed since the motion was filed.
By that time, according to the docket sheet, significant litigation had already transpired in
the matter. The parties and the circuit court had already expended significant resources.
At that point, any prejudice to Petitioners had been attenuated by Petitioners’ full
participation in almost seven years of litigation. Accordingly, we affirm the circuit court’s
finding that Respondent had good cause for the delay in service.
B. Statute of Limitations
There is no dispute that the two later flooding events of June 17, 2009, and
June 5, 2010, fell within the applicable statute of limitations. The question raised by
Petitioners is whether the earlier flood events of September 17, 2004, and February 1, 2008,
fell outside the statute and were time-barred. The statute of limitations applicable to this
action provides:
11
Every 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.
W. Va. Code § 55-2-12 (1923). Clearly, both the September 17, 2004, flood event and the
February 1, 2008, flood event occurred more than two years prior to the filing of the
complaint on September 2, 2010. The question thus becomes whether the continuing tort
doctrine applies to each discrete flood event, thereby tolling the statute of limitations. 6
6
Respondent argues that Petitioners had a continuing duty to remove the
obstruction from Little Grave Creek, thereby tolling the statute of limitations and points us
to Syllabus Point 3 of Riddle v. Baltimore & O. R. Co., 137 W. Va. 733, 73 S.E.2d 793(1952), holding modified by In re Flood Litig., 216 W. Va. 534, 607 S.E.2d 863 (2004), in
support of that position:
One obstructing a natural water course by the
construction of bridges, trestles or culverts thereover must
provide against floods which should be reasonably anticipated
in view of the history of the water course and natural or other
conditions affecting the flowage of the stream; and though
reasonable care may have been exercised originally in the
construction of such bridges, trestles or culverts, if changed
conditions and subsequent developments prove that the
bridges, trestles or culverts, as originally constructed, have
become inadequate to serve the waters of the stream during its
normal flowage and during storms which may reasonably be
anticipated, there is a duty to meet the changed conditions and
failure to perform that duty will ground an action instituted by
one injured by such neglect of duty for the recovery of damages
resulting therefrom.
(continued . . .)
12
We have previously endeavored to apply the continuing tort doctrine in cases
where damages occur over multiple events and this case causes us to once again delve into
issues raised by this Court’s prior opinions in Handley v. Town of Shinnston, 169 W. Va.
617, 289 S.E.2d 201 (1982), Hall’s Park Motel, Inc. v. Rover Construction, Inc., 194 W.
Va. 309, 460 S.E.2d 444 (1995), and Graham v. Beverage, 211 W. Va. 466, 566 S.E.2d
603 (2002). The Graham decision contains a detailed discussion of Handley and Hall’s
Park Motel, which we do not need to repeat here. See Graham, 211 W. Va. at 476-7, 566
S.E.2d at 613-4. In Handley, this Court found that the continuing tort theory applied to a
leaking water line that caused continuous damage. See id., 169 W. Va. at 619-20, 289
S.E.2d at 202-3. Conversely, in Hall’s Park Motel this Court rejected an application of the
continuing tort doctrine in finding that periodic construction was a “discrete and completed
act of negligent commission, not a continuing negligent act of omission.” Id., 194 W. Va.
at 313, 460 S.E.2d at 448. We held in that case that, “[w]here a plaintiff sustains a
noticeable injury to property from a traumatic event, the statute of limitations begins to run
Syllabus Point 3, id. However, we note that the facts in Riddle do not support the concept
of an unlimited period for which a plaintiff may look back and seek damages. In Riddle,
although flooding events caused by the obstruction of the natural water course occurred on
a semi-routine basis, prior actions were brought to recover for earlier events. See id., 137
W. Va. at 745-6, 73 S.E.2d at 800. The damages sought by plaintiffs were limited to those
that were incurred during the last flood event, which occurred during the applicable statute
of limitations. See id.
13
and is not tolled because there may also be latent damages arising from the same traumatic
event.” Syllabus Point 2, id.
Finally, in Graham, in a matter decided at the summary judgment stage, this
Court concluded the traumatic event allowing the tolling of the statute of limitations was
the failure to “take action with regard to correcting the alleged inadequacies of [a storm
water infiltration system that caused] continuing injuries to” plaintiffs. Graham, 211 W.
Va. at 477, 566 S.E.2d at 614. Since Graham, however, we have found that the statute of
limitations was not tolled in a situation where the plaintiff was positing a continuing duty
on the part of the defendant:
We have previously concluded that “the concept of a
continuing tort requires the showing of repetitious, wrongful
conduct . . . [m]oreover a wrongful act with consequential
damages is not a continuing tort.” Ricottilli v. Summersville
Mem. Hosp., 188 W. Va. 674, 677, 425 S.E.2d 629, 632 (1992).
Further, even “[w]here a tort involves a continuing or repeated
injury, the cause of action accrues at and the statute of
limitations begins to run from the date of the last injury or when
the tortious overt acts or omissions cease.” Syl. Pt. 2, Roberts
v. W. Va. Am. Water, 221 W.Va. 373, 655 S.E.2d 119 (2007).
....
Petitioners also argue on appeal that the circuit court
erred in determining that no continuing breach of duty existed,
which would have served to toll the statute of limitations. They
contend that because respondent has “never gone in and
repaired [the] damage it caused by burying car parts and
timber,” it violated a continuing duty to petitioners and created
a “new tort daily.” According to petitioners, because
respondent’s negligence is a continuing breach of duty causing
a continuing injury, the statute of limitations does not begin to
run until the date of the last injury.
14
The record on appeal likewise does not support petitioner’s
contention that a continuing breach of duty existed. We have
previously determined that where
the cause of the injuries was a “discrete and completed
act of negligent commission, not [ ] a continuing
negligent act of omission” . . . “the statute of limitations
begins to run and is not tolled because there may also be
latent damages arising from the same traumatic event.”
Graham v. Beverage, 211 W.Va. 466, 476–77, 566 S.E.2d 603,
613–14 (2002).
Ziler v. Contractor Servs., Inc. of W. Va. (Conserv), No. 16-0269, 2017 WL 1347714, at
*2–3 (W. Va. Apr. 10, 2017) (memorandum decision). As was the case in Ziler and Hall’s
Park Motel, the evidence of record shows that there were four discrete traumatic events
that caused injury to Respondent, rather than a continuing event stemming from a breach
of duty. “In an action for the recovery of damages to real estate caused by the occasional,
intermittent and recurring encroachment upon such real estate of dirt, rock and debris from
an embankment on adjoining land, the damages recoverable are temporary, not permanent,
in character.” Syllabus Point 5, Oresta v. Romano Bros., 137 W. Va. 633, 634, 73 S.E.2d
622, 623 (1952). Because the flooding events causing damages were occasional,
intermittent, and recurring, they were temporary in nature. In such cases we have stated
that the damages a plaintiff may recover is limited to damages that fall within two years
prior to the filing of the complaint. See Taylor v. Culloden Pub. Serv. Dist., 214 W. Va.
639, 647 n. 21, 591 S.E.2d 197, 205 n.21 (2003). Thus, the circuit court erred in denying
Petitioners’ motion for summary judgment on the statute of limitations issue. The statute
15
of limitations was not tolled and the damages caused by the September 17, 2004 and
February 1, 2008 flood events are time-barred.
C. Proximate Cause
Respondent alleged in its complaint that the construction of the embankment
and bridge carrying Duck Lane by Mr. Reilley Petitioners’ were the proximate cause of the
damages to Respondent’s property. Petitioners argue that Respondent failed to introduce
evidence at trial establishing proximate cause. In reviewing the trial record, ample
evidence that the embankment and bridge carrying Duck Lane impeded the flow of Little
Grave Creek proximately causing Respondent’s damages was placed before the jury.
Syllabus Point 1 of Mays v. Chang, 213 W. Va. 220, 579 S.E.2d 561 (2003) defines
proximate cause:
“The proximate cause of an injury is the last negligent act
contributing to the injury and without which the injury would
not have occurred.” Syllabus Point 5, Hartley v. Crede, 140
W.Va. 133, 82 S.E.2d 672 (1954), overruled on other
grounds, State v. Kopa, 173 W.Va. 43, 311 S.E.2d 412 (1983).
Syllabus Point 1, id.Several fact witnesses testified that they observed Little Grave Creek
overflow its banks and that the flooding began at Duck Lane’s embankment and bridge.
Robert Montgomery, who was the head baseball coach at John Marshall High School from
1975 – 2017, testified that he saw water hit the bridge and embankment and back up on to
the baseball field in 2008, 2009, and 2010. Both Sabrina Duckworth and Roger Simmons
16
also testified as to observing the flow of water during the 2008, 2009, and 2010 flood events
as the water encountered the bridge and embankment and backed up on to the baseball
field.
Additionally, Respondent’s expert, Michael Kerns, clearly testified that the
cause of the flood events on Respondent’s property was the Duck Lane embankment and
bridge:
Q: You would expect, because the embankment sits in the
floodway, that, for a heavier rain event the embankment’s
going to cause – obstruct the flow and cause more water to
impound on the board’s property as opposed to a five year rain
event .
A: Yes.
....
Q: The analysis you ran, the data you compiled, the things
you investigated, is it – it is your opinion that the Reilley bridge
and embankment caused additional water, raised the flood
elevations, caused additional water to be impounded upon the
board’s property?
A: Yes.
Mr. Kearns’ testimony was based upon modeling of the Little Grave Creek Watershed
without the bridge and embankment and modeling of the creek with the bridge and
embankment. He opined that flooding was caused by large amounts of sediment that had
been deposited in the streambed because the flow of the stream was obstructed by the
embankment and bridge carrying Duck Lane. According to Mr. Kearns, this limited the
amount of water that the stream could contain at peak flow, which, in turn, caused the water
17
to leave the banks of Little Grave Creek and flood Respondent’s property. Further, there
was no dispute that the embankment and bridge were in place prior to the 2008 flood event.
Indeed, the jury could infer that the embankment and bridge caused Little Grave Creek to
back up and flood the Respondent’s property based upon the expert’s testimony and the
observations made by the fact witnesses. 7
D. Injunctive Relief
In its reply, Petitioners cite this Court’s holding in In re Flood Litigation,
7
216 W. Va. 534, 607 S.E.2d 863 (2004):
Where a rainfall event of an unusual and unforeseeable
nature combines with a defendant’s actionable conduct to
cause flood damage, and where it is shown that a discrete
portion of the damage complained of was unforeseeable and
solely the result of such event and in no way fairly attributable
to the defendant’s conduct, the defendant is liable only for the
damages that are fairly attributable to the defendant’s conduct.
However, in such a case, a defendant has the burden to show
by clear and convincing evidence the character and measure of
damages that are not the defendant’s responsibility; and if the
defendant cannot do so, then the defendant bears the entire
liability. To the extent that our prior cases such as State ex rel.
Summers v. Sims, 142 W.Va. 640, 97 S.E.2d 295(1957); Riddle v. Baltimore & O.R. Co., 137 W.Va. 733, 73
S.E.2d 793 (1952), and others similarly situated held
differently, they are hereby modified.
Syllabus Point 10, id. However, we do not believe this case supports Petitioners’ position
because In re Flood Litigation would require Petitioners to show by clear and convincing
evidence the “character and measure” of damages for which they are not responsible. The
record before the circuit court does not demonstrate that Petitioners met this burden.
18
Count six of the Amended Petition sought injunctive relief requiring the
removal of the embankment and bridge carrying Duck Lane, pursuant to West Virginia
Code § 53-5-4 (1923), which provides that “[e]very judge of a circuit court shall have
general jurisdiction in awarding injunctions, whether the judgment or proceeding enjoined
be in or out of his circuit, or the party against whose proceeding the injunction be asked
reside in or out of the same.” The amended complaint sought injunctive relief on three
causes of action – private nuisance, violation of riparian rights, and continuing trespass.
However, the circuit court’s order granting injunctive relief contained no findings of fact
or conclusions of law demonstrating that Respondent had established the elements
necessary to be awarded injunctive relief.
Every order granting an injunction and every restraining
order shall set forth the reasons for its issuance; shall be
specific in terms; shall describe in reasonable detail, and not by
reference to the complaint or other document, the act or acts
sought to be restrained; and is binding only upon the parties to
the action, their officers, agents, servants, employees, and
attorneys, and upon those persons in active concert or
participation with them who receive actual notice of the order
by personal service or otherwise.
W. V. R. C. P. 65. Here, the circuit court’s final order merely states:
In addition to the arguments of counsel, the Court
incorporates the evidence introduced at and accepts the
findings of the Jury in its Verdict from the trial of the damages
phase of the case where the Jury found that the [Petitioners]
have, in fact, placed obstructions in the stream channel,
drainageway[,] and floodway of Little Grave Creek that cause
water to impound upon the upstream property of the
[Respondent]. Based upon the trial evidence and Jury Verdict
finding that the [Petitioners] have obstructed the flow of Little
Grave Creek, the [c]ourt finds as a matter of law under each of
the alternative theories of continuing trespass, violation of
19
riparian rights[,] and nuisance, that the [Respondent] is entitled
to entry of an [o]rder directing that the obstructions be removed
or abated and that the stream channel, drainageway[,] and
floodway of Little Grave Creek be remediated.
It appears that the circuit court found that the evidence that supported the jury verdict
applied to the injunctive claims. However, the circuit court’s failure to make the requisite
findings of fact and conclusions of law to support an award of injunctive relief leaves this
Court without the ability to meaningfully review the circuit court’s ruling. We have
previously held that circuit courts are required to make findings of fact and conclusions of
law to issue an injunction:
“After an evidentiary hearing on a complaint for a
permanent injunction, a trial court is required to make a finding
of fact and conclusion of law under Rule 52 of the West
Virginia Rules of Civil Procedure, and findings and
conclusions also should be made upon ruling on a motion to
dissolve an injunction in order to assist appellate courts in
determining whether there is a legitimate area for state
regulation by injunction.” Syl. pt. 4, United Maintenance and
Manufacturing Co. v. United Steel Workers of America, 157
W.Va. 788, 204 S.E.2d 76 (1974).
Syllabus Point 2, West v. Nat’l Mines Corp., 175 W. Va. 543, 336 S.E.2d 190 (1985). Here,
the injunction request was properly before the Court, without a jury. Thus,
“Rule 52(a) mandatorily requires the trial court, in all
actions tried upon the facts without a jury, to find the facts
specially and state separately its conclusions of law thereon
before the entry of judgment. The failure to do so constitutes
neglect of duty on the part of the trial court, and if it appears
on appeal that the rule has not been complied with, the case
may be remanded for compliance.” Syllabus Point
1, Commonwealth Tire Co. v. Tri–State Tire Co., 156 W.Va.
351, 193 S.E.2d 544 (1972).
20
Syllabus Point 1, Clark Apartments ex rel. Hood v. Walaszczyk, 213 W. Va. 369, 582
S.E.2d 816 (2003). Because the circuit court failed to follow the mandate of Rule 52(a),
our review of its order granting injunctive relief is substantially hindered because we are
unable to ascertain the circuit court’s reasoning for doing so. See id., 213 W. Va. at 371,
582 S.E.2d at 818. Accordingly, we remand this matter with directions for the circuit court
to enter an order that complies with the mandate of Rule 52(a).
IV. CONCLUSION
For the foregoing reasons, we affirm the circuit court’s rulings that there was
good cause to extend the time for service of process and that there was ample evidence of
proximate cause offered during trial. We reverse and remand for proceedings consistent
with this opinion, including a recalculation of damages in light of our conclusion that the
statute of limitations barred Respondent’s claims relating to the September 17, 2004, and
February 1, 2008, flood events, and for entry of an order that includes findings of fact and
conclusions of law in support of the award of injunctive relief.
Affirmed, in part, reversed, in part, and remanded.
21