Selwyn Vanderpool v. CPL B.M. Hunt and Greenbrier County Sheriff Department

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2019 Term
FILED
_____________________ January 31, 2019
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 17-0436 SUPREME COURT OF APPEALS
_____________________ OF WEST VIRGINIA
SELWYN VANDERPOOL, INDIVIDUALLY AND IN HIS CAPACITY AS
ADMINISTRATOR OF THE ESTATE OF LILA VANDERPOOL AND AS TRUSTEE
OF THE SELWYN VANDERPOOL AND LILA VANDERPOOL FAMILY
IRREVOCABLE LIVING TRUST, AND CORNERSTONE MARKETING, LLC, A
WEST VIRGINIA LIMITED LIABILITY COMPANY, JOSEPH W. BOSWELL, III,
MANAGER, AND JOSEPH W. BOSWELL, III, INDIVIDUALLY,
Plaintiffs Below, Petitioners,
v.
CPL. B.M. HUNT AND GREENBRIER COUNTY SHERIFF’S DEPARTMENT,
Defendants Below, Respondents.
___________________________________________________________
Appeal from the Circuit Court of Greenbrier County
Honorable Jack Alsop, Judge
Civil Action No. 15-C-185
AFFIRMED
_________________________________________________________
Submitted: January 16, 2019
Filed: January 31, 2019
Barry L. Bruce, Esq. Wendy E. Greve, Esq.
Barry L. Bruce and Associates, L.C. Oscar R. Molina, Esq.
Lewisburg, West Virginia Pullin, Fowler, Flannigan
Attorney for Petitioners Brown & Poe, PLLC
Charleston, West Virginia
Attorneys for Respondents
JUSTICE HUTCHISON delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “‘The trial court, in appraising the sufficiency of a complaint on a
Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.’ Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” Syl. Pt.
3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977).
2. “Appellate review of a circuit court’s order granting a motion to
dismiss a complaint is de novo.” Syl. Pt. 2, State ex. rel McGraw v. Scott Runyan Pontiac-
Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).
3. “The standard of review applicable to an appeal from a motion to alter
or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that
would apply to the underlying judgment upon which the motion is based and from which
the appeal to this Court is filed.” Syl. Pt. 1, Wickland v. Am. Travellers Life Ins. Co., 204
W.Va. 430, 513 S.E.2d 657 (1998).
4. “A motion to vacate a judgment made pursuant to Rule 60(b), W.Va.
R.C.P., is addressed to the sound discretion of the court and the court’s ruling on such
motion will not be disturbed on appeal unless there is a showing of an abuse of such
discretion.” Syl. Pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).
i
5. “Where the issue on an appeal from the circuit court is clearly a
question of law . . . involving an interpretation of a statute, we apply a de novo standard of
review.” Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415(1995).
6. “When a statute is clear and unambiguous and the legislative intent is
plain, the statute should not be interpreted by the courts, and in such case it is the duty of
the courts not to construe but to apply the statute.” Syl. Pt. 5, State v. General Daniel
Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959).
7. “Statutes which relate to the same subject matter should be read and
applied together so that the Legislature’s intention can be gathered from the whole of the
enactments.” Syl. Pt. 3, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219
S.E.2d 361 (1975).
8. “‘It is the duty of a court to construe a statute according to its true
intent, and give to it such construction as will uphold the law and further justice. It is as
well the duty of a court to disregard a construction, though apparently warranted by the
literal sense of the words in a statute, when such construction would lead to injustice and
absurdity.’ Syllabus Point 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925).” Syl. Pt.
2, Conseco Fin. Serv’g Corp. v. Myers, 211 W.Va. 631, 567 S.E.2d 641 (2002).
ii
9. “Where a particular construction of a statute would result in an
absurdity, some other reasonable construction, which will not produce such absurdity, will
be made.” Syl. Pt. 2, Newhart v. Pennybacker, 120 W.Va. 774, 200 S.E. 350 (1938).
10. “‘That which is necessarily implied in a statute, or must be included
in it in order to make the terms actually used have effect, according to their nature and
ordinary meaning, is as much a part of it as if it had been declared in express terms.’
Syllabus point 14, State v. Harden, 62 W.Va. 313, 58 S.E. 715 (1907).” Syl. Pt. 4, Smith
v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975).
11. “‘Whether a complaint states a claim upon which relief may be
granted is to be determined solely from the provisions of such complaint[.]’ Syl. pt. 3, in
part, Barker v. Traders Bank, 152 W.Va. 774, 166 S.E.2d 331 (1969).” Syl. Pt. 2, Par Mar
v. City of Parkersburg, 183 W.Va. 706, 398 S.E.2d 532 (1990).
12. A county sheriff’s department and its officers are a state entity for
purposes of the Maxwell Governmental Access to Financial Records Act, West Virginia
Code §§ 31A-2A-1 to -10.
13. The Maxwell Governmental Access to Financial Records Act, West
Virginia Code §§ 31A-2A-1 to -10, does not provide a civil cause of action for the negligent
receipt of financial records by a state entity. Consequently, a state entity that obtains a
iii
customer’s financial records cannot be held civilly liable under the Act in the absence of a
negligent disclosure of those records to a third party.
iv
HUTCHISON, Justice:
The petitioners and plaintiffs below, Selwyn Vanderpool,1 Joseph Boswell,2
and Cornerstone Marketing, LLC, appeal the February 10, 2017, and April 10, 2017, orders
of the Circuit Court of Greenbrier County granting the motion to dismiss filed by the
respondents and defendants below, Corporal B.M. Hunt and the Greenbrier County
Sheriff’s Department,3 and denying the petitioners’ “Motion for A Rehearing or New
Hearing,” respectively.4 The petitioners filed this action pursuant to the Maxwell
1
Mr. Vanderpool filed suit individually and in his capacity as Administrator of the
Estate of Lila Vanderpool and as Trustee of the Selwyn Vanderpool and Lila Vanderpool
Family Irrevocable Living Trust. Approximately three months after the orders on appeal
were entered by the circuit court, Mr. Vanderpool passed away. Thereafter, the remaining
plaintiffs filed motions in the circuit court seeking to substitute as plaintiffs Jerry Markham,
the administratrix of the Estate of Selwyn Vanderpool, for Selwyn Vanderpool in his
individual capacity, and Crystal Beyer, the newly appointed co-trustee of the Selwyn
Vanderpool and Lila L. Vanderpool Family Irrevocable Living Trust, for Mr. Vanderpool
in his capacity as Trustee. The motions were granted by the circuit court on October 30,
2017. Because this appeal was docketed prior to Mr. Vanderpool’s death, the style of the
case has not been modified to reflect the substituted plaintiffs. See W.Va. R. App. Proc.
41.
2
Joseph Boswell filed suit individually and in his capacity as manager of
Cornerstone Marketing, LLC.
3
The February 10, 2017, order also denied the petitioners’ motion for partial
summary judgment.
4
The petitioners also named Branch Banking & Trust (“BB&T”) and Danita G.
Moore, an agent for BB&T, as defendants in this matter. The petitioners’ claims against
BB&T and Ms. Moore are not at issue in this appeal. When this appeal was filed, the
petitioners’ claims against BB&T and Ms. Moore remained pending below; however,
during oral argument, the petitioners’ counsel stated that those claims have now been
settled.
1
Governmental Access to Financial Records Act, West Virginia Code §§ 31A-2A-1 to -10
(“Act”), alleging that the respondents were negligent in obtaining and serving a subpoena
on Branch Banking & Trust (“BB&T”) without giving notice to them, which resulted in
the wrongful disclosure of their confidential financial information.
In this appeal, the petitioners assert that the circuit court erred in finding that
they have no cause of action against the respondents under the Act. While maintaining that
the circuit court properly dismissed the claims against them, the respondents also set forth
two cross-assignments of error,5 arguing that the circuit court erred in failing to find them
immune from the petitioners’ claims pursuant to the West Virginia Governmental Tort
Claims and Insurance Reform Act, West Virginia Code §§ 29A-12A-1 to -18, and asserting
that Mr. Vanderpool’s claims fail as they did not survive his death.6 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.
I. Facts and Procedural Background
On November 5, 2015, the petitioners filed their complaint instituting this
action. They alleged that Corporal Hunt of the Greenbrier County Sheriff’s Department
initiated an elder abuse investigation in 2014 under the mistaken belief that Mr. Boswell
5
See W.Va. R. App. Proc. 10(c)(10)(f) (providing for cross assignments of error by
respondents).
6
See note 1, supra.
2
was taking financial advantage of Mr. Vanderpool. According to the complaint, Mr.
Vanderpool’s wife, Lila, granted him her power of attorney on September 13, 2013, while
she was a resident of Brier Rehabilitation and Nursing Center.7 On or about January 7,
2014, Mr. Vanderpool deposited a check payable to his wife in the amount of $121,646.20
from Sun Life Financial into her checking account with BB&T in Lewisburg, West
Virginia. On January 9, 2014, using his power of attorney, Mr. Vanderpool wrote a check
from his wife’s checking account for the same amount as he had deposited two days earlier,
making it payable to Cornerstone Marketing, LLC. That same day, the check was
deposited by Mr. Boswell into Cornerstone’s checking account at the BB&T branch in
Roncerverte, West Virginia.8
On January 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, Mr. Boswell obtained a cashier’s check from
BB&T in the amount of $93,500.00, which was the balance of the Vanderpool funds
previously deposited into Cornerstone’s account. Mr. Boswell gave the cashier’s check to
Mr. Vanderpool who deposited it into the Vanderpool Trust Account. According to the
7
Mrs. Vanderpool passed away on February 20, 2014.
8
The complaint does not set forth the nature of the relationship between the
Vanderpools, Mr. Boswell, and Cornerstone Marketing.
3
petitioners, BB&T stopped payment on the check on February 5, 2014, without prior notice
and without providing any reason for doing so. 9
It appears that sometime during the course of the above 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, LLC.10 Pursuant to
Corporal Hunt’s request, an order was issued by Greenbrier County Circuit Judge J. C.
Pomponio, Jr., directing the circuit clerk to issue a subpoena duces tecum to Corporal Hunt
so he could obtain the BB&T bank records. Corporal 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 complaint alleged that by not providing notice to the petitioners that their
bank records had been subpoenaed,11 Corporal Hunt negligently violated the Act.12 A
9
The complaint states that “Vanderpool’s plan was to have the Vanderpool Trust
loan Boswell the $93,500 at 6% interest per year, and Boswell was in agreement to said
terms.”
10
While Ridgeview Properties is mentioned in the complaint, no explanation of how
that entity was involved in this matter has been provided, nor is it a named party in this
action.
11
The relevant language of the Act is set forth in the discussion section, infra.
12
The complaint also alleged that BB&T and Ms. Moore had negligently disclosed
the petitioners’ financial records in violation of the Act. The complaint further asserted
4
motion to dismiss the complaint was filed by the respondents on October 11, 2016. The
respondents asserted that there is no cause of action against a law enforcement officer of a
political subdivision under the Act for negligently failing to provide notice to a
“customer”13 whose financial records are being sought pursuant to a subpoena. In addition,
respondents asserted immunity under the West Virginia Governmental Tort Claims and
Insurance Reform Act.14
Following oral argument on the motions on December 15, 2016, the circuit
court granted the respondents’ motion to dismiss.15 The order was entered on February 10,
2017. Subsequently, the petitioners filed a “Motion for a Rehearing or a New Hearing”
that was denied by the order entered on April 10, 2017. This appeal followed.
additional causes of action against BB&T and Ms. Moore. However, as noted previously,
the petitioners’ claims against BB&T and Ms. Moore are not at issue in this appeal and
have now been settled.
13
The Act defines “customer” as “any person or his or her duly authorized
representative who has transacted business with or has used the services of a financial
institution or for whom a financial institution has acted as a fiduciary in relation to an
account maintained in such person’s name[.]” W.Va. Code § 31A-2A-1(a) (2009).
14
See W.Va. Code §§ 29-12A-1 to -18.
15
The court also denied the petitioners’ motion for partial summary judgment.
5
II. Standard of Review
The petitioners appeal the circuit court’s order dismissing their complaint for
failure to state a claim against the respondents upon which relief can be granted.16 We
have held that “‘[t]he trial court, in appraising the sufficiency of a complaint on a Rule
12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” Syl. Pt. 3,
Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977). In other
words, “[d]ismissal for failure to state a claim is proper ‘where it is clear that no relief
could be granted under any set of facts that could be proved consistent with the
allegations.’” Murphy v. Smallridge, 196 W.Va. 35, 36, 468 S.E.2d 167, 168 (1996)
(quoting Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.E.2d
59, 65 (1984)). It is well established that “[a]ppellate review of a circuit court’s order
granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, State ex. rel McGraw v.
Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).
The petitioners also appeal the circuit court’s “Order Denying Motion for
Rehearing or New Hearing.” The petitioners’ motion was filed pursuant to Rules 59(a)
and (b) and 60(b) of the West Virginia Rules of Civil Procedure. However, Rule 59(a)
does not apply in these circumstances. Addressing a similar motion filed in Malone v.
16
See W.Va. R. Civ. Proc. 12(b)(6) (providing for dismissal of complaint for “failure
to state a claim upon which relief can be granted”).
6
Potomac Highlands Airport Auth., 237 W.Va. 235, 238-39, 786 S.E.2d 594, 597-98 (2015),
we explained:
[S]ubsection (a) of Rule 59 is plainly inapplicable as it
provides for relief from judgments which have been entered as
a result of trial: “A new trial may be granted to all or any of the
parties and on all or part of the issues (1) in an action which
there has been a trial by jury . . . and (2) in an action tried
without a jury. . . .” (emphasis added). Inasmuch as petitioner’s
“Motion for Reconsideration and Rehearing” was filed within
ten days of the circuit court’s order dismissing the action, in
accord with our historical practice, the Court will treat this
appeal as arising from the circuit court’s denial of a motion
filed pursuant to Rule 59(e), which provides for the alteration
or amendment of a judgment.
Accordingly, we review this matter as an appeal from a motion filed pursuant to Rule 59(e).
The standard of review applicable to an appeal from a
motion to alter or amend a judgment, made pursuant to W. Va.
R. Civ. P. 59(e), is the same standard that would apply to the
underlying judgment upon which the motion is based and from
which the appeal to this Court is filed.
Syl. Pt. 1, Wickland v. Am. Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).
As set forth above, the underlying judgment was the granting of the respondents’ motion
to dismiss to which a de novo standard of review is employed. With regard to determining
the merits of Rule 60(b) motions, circuit courts are afforded broad discretion. As set forth
in syllabus point five of Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974),
A motion to vacate a judgment made pursuant to Rule
60(b), W.Va. R.C.P., is addressed to the sound discretion of the
court and the court’s ruling on such motion will not be
disturbed on appeal unless there is a showing of an abuse of
such discretion.
7
Finally, we apply the de novo standard of review to the questions of law
encompassed in both the petitioners’ and respondents’ assignments of error. In that regard,
this Court has long held: “Where the issue on an appeal from the circuit court is clearly a
question of law . . . involving an interpretation of a statute, we apply a de novo standard of
review.” Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415(1995).” With respect to the term de novo, we have observed it “means ‘[a]new; afresh; a
second time.’” Gastar Exploration Inc. v. Rine, 239 W.Va. 792, 798, 806 S.E.2d 448, 454
(2017) (additional quotation and citation omitted). “We, therefore, give a new, complete
and unqualified review to the parties’ arguments and the record before the circuit court.”
Id.III. Discussion
Enacted in 1998, the Maxwell Governmental Access to Financial Records
Act limits a state entity’s access to certain records of financial institutions and provides for
criminal and civil liability and penalties for violations thereof. In particular, West Virginia
Code § 31A-2A-2 (1998) provides:
(a) No state entity may have access to or obtain from a
financial institution financial records of any customer except
as set forth in section four [§31A-2A-4] of this article17 or
under the following circumstances:
(1) The customer has executed a written authorization
pursuant to section three [§ 31A-2A-3] of this article;
(2) The financial records are disclosed in response to a
judicial order, warrant, summons or subpoena issued by a court
17
The additional exceptions set forth in West Virginia Code § 31A-2A-4 (1998) do
not apply to this matter.
8
of competent jurisdiction or a valid administrative order or
subpoena of a state entity expressly ordering or requiring the
disclosure of financial records: Provided, That any subpoena
issued pursuant to the provisions of this subsection shall
comply with the provisions of section five [§31A-2A-5] of this
article;
(3) The financial records are disclosed in response to a
judicial order authorizing the appointment of the state entity or
its agent: (A) As guardian of the customer or conservator of his
or her property; or (B) as administrator or executor of the
customer’s estate;
(4) The financial records are disclosed: (A) Pursuant to
a state or federal rule of civil or criminal procedure or any
comparable rule of another court of competent jurisdiction; (B)
in response to a subpoena issued in connection with any
pending civil or criminal proceeding in which a state entity is
a party; or (C) in response to interrogatories in aid of execution
propounded by a state entity where it is a judgment creditor of
the customer;
(5) The financial records are disclosed to law-
enforcement officers pursuant to a grand jury or trial subpoena
resulting from a criminal investigation which complies with
the provisions of section six [§ 31A-2A-6] of this article; or
(6) As may be required or permitted by any other state
or federal law.
(b) No state entity obtaining financial records pursuant
to the provisions of this article and no person who obtains
financial records from a state entity which obtained such
financial records pursuant to the provisions of this article shall
disclose such financial records: (i) To any other state entity
unless such other state entity has authority or authorization to
receive the financial record in accordance with the provisions
of this article; or (ii) to any person unless such person has
authority or authorization to receive the financial record:
Provided, That nothing herein shall limit or prevent the
disclosure of financial records which are otherwise public
documents or matters of public record or the disclosure of
financial records made to facilitate a lawful proceeding,
investigation, examination or inspection by a state entity.
Financial records obtained under this article by a state entity
shall not be subject to disclosure under the provisions of article
one [§§ 29B-1-1 et. seq.], chapter twenty-nine-b of this code.
9
In this case, the petitioners alleged that their financial records were
wrongfully disclosed pursuant to West Virginia Code § 31A-2A-2(a)(2) because Corporal
Hunt obtained a subpoena but failed to comply with the requirements of West Virginia
Code § 31A-2A-5 (1998). That statute provides in relevant part:
A financial institution may disclose or produce financial
records to a state entity in compliance with a subpoena served
upon it if the subpoena contains a certification that: (1) A copy
of the subpoena has been served on the customer whose records
are sought by the state entity seeking disclosure or production
of the records at least ten days prior to the date on which
disclosure or production is sought; or (2) that service on the
customer has been waived for good cause by the circuit court
of Kanawha County or other circuit court of competent
jurisdiction.
W.Va. Code § 31A-2A-5(a). Based on the fact that they never received notice of the
subpoena, the petitioners alleged in their complaint that the respondents negligently
violated the Act by obtaining their financial records, and therefore, they are entitled to the
damages afforded by West Virginia Code § 31A-2A-7(b) (1998).18 That statute provides
for civil liability and damages as follows:
(b) Any customer whose financial records or the
information contained therein has been negligently disclosed
by a state entity or a financial institution in violation of this
article may file an action in any circuit court of this state
against the state entity or financial institution and, if the
customer proves that the state entity or financial institution
negligently disclosed the customer’s financial records or the
information contained therein, may recover from the state
entity or financial institution an amount equal to the sum of:
18
West Virginia Code § 31A-2A-10 (1998) states: “The remedies provided in this
article are exclusive for any violations or alleged violations of this article.”
10
(1) Up to one thousand dollars in civil damages, as
penalty, without regard to the volume of records involved or
lack of actual damages;
(2) Any actual damages sustained by the customer as a
result of the disclosure; and
(3) The costs of the action, including reasonable
attorney’s fees, as may be allowed by the court.
W.Va. Code § 31A-2A-7(b).
In granting the respondents’ motion to dismiss, the circuit court found “that
W.Va. Code § 31A-2A-7(b) does not apply to [Corporal] Hunt, [or the] Greenbrier
Sheriff’s Department as they are not a state entity.” In this appeal, the petitioners argue
that Corporal Hunt and the Greenbrier County Sheriff’s Department clearly fall within the
definition of “state entity,” which is set forth in West Virginia Code § 31A-2A-1. Under
the Act, “‘[s]tate entity’ means any state or local governmental office, officer, department,
division, bureau, board or commission, including the Legislature, and any other state or
local government agency of West Virginia, its political subdivisions and any agent
thereof[.]” W.Va. Code § 31A-2A-1(f).
Conversely, the respondents maintain that they do not come within the
definition of “state entity” under the Act because the definition does not include “county
governmental officials or employees.” The respondents argue that if the Legislature
intended to include county government officials or employees in the definition of “state
entity” for the purpose of imposing civil liability under West Virginia Code § 31A-2A-
7(b), it would have so specified as it did in West Virginia Code § 31A-2A-7(a).
11
Prescribing criminal penalties for violations of the Act, West Virginia Code § 31A-2A-7(a)
provides:
Any state, county or local government official or
employee who knowingly and willfully discloses financial
records with intent to violate this article, or who knowingly and
willfully induces or attempts to induce an officer, employee,
agent or director of a financial institution to disclose financial
records to a state entity with intent to violate this article, is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than one thousand dollars.
(Emphasis added).
In interpreting a statute, our rules of statutory construction first require us to
“ascertain and give effect to the intention of the Legislature.” Syl. Pt. 8, in part, Vest v.
Cobb, 138 W.Va 660, 76 S.E.2d 885 (1953). Thus, “[w]hen a statute is clear and
unambiguous and the legislative intent is plain, the statute should not be interpreted by the
courts, and in such case it is the duty of the courts not to construe but to apply the statute.”
Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144
W.Va. 137, 107 S.E.2d 353 (1959). It is also this Court’s duty to “review the act or statute
in its entirety to ascertain legislative intent properly.” Syl. Pt. 5, in part, Fruehauf Corp. v.
Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907 (1975). In other words
“[s]tatutes which relate to the same subject matter should be read and applied together so
that the Legislature’s intention can be gathered from the whole of the enactments.” Syl.
Pt. 3, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975).
See also Syl. Pt. 3, State ex rel. Graney v. Sims, 144 W.Va. 72, 105 S.E.2d 886 (1958)
12
(“Statutes in pari materia must be construed together and the legislative intention, as
gathered from the whole of the enactments, must be given effect.”).
Importantly, a statute should not be construed in such a manner as to reach
an absurd result. As this Court has long held,
“[i]t is the duty of a court to construe a statute according
to its true intent, and give to it such construction as will uphold
the law and further justice. It is as well the duty of a court to
disregard a construction, though apparently warranted by the
literal sense of the words in a statute, when such construction
would lead to injustice and absurdity.” Syllabus Point 2, Click
v. Click, 98 W.Va. 419, 127 S.E. 194 (1925).
Syl. Pt. 2, Conseco Fin. Serv’g Corp. v. Myers, 211 W.Va. 631, 567 S.E.2d 641 (2002).
Consequently, “[w]here a particular construction of a statute would result in an absurdity,
some other reasonable construction, which will not produce such absurdity, will be made.”
Syl. Pt. 2, Newhart v. Pennybacker, 120 W.Va. 774, 200 S.E. 350 (1938). To that end,
“‘[t]hat which is necessarily implied in a statute, or must be included in it in order to make
the terms actually used have effect, according to their nature and ordinary meaning, is as
much a part of it as if it had been declared in express terms.’ Syllabus point 14, State v.
Harden, 62 W.Va. 313, 58 S.E. 715 (1907).” Syl. Pt. 4, Smith v. State Workmen’s Comp.
Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975).
Applying our rules of statutory construction, we find that the respondents
clearly fall with the definition of “state entity” as set forth in the Act. West Virginia Code
§ 31A-2A-1 expressly includes any “local governmental office, officer [or] department”
13
within the definition of “state entity.” Counties are obviously units of local government in
our state. To exclude county government officials or employees, like the respondents, from
the definition of “state entity” would require us to assume that the phrase “local
governmental office, officer, [or] department” would only apply to other forms of local
government such as towns and cities. The statute simply does not make a distinction
between the various forms of local government. Furthermore, the definition of “state
entity” as set forth in the Act specifically includes “political subdivisions” of the state. It
is well established under other statutory provisions that political subdivisions include
county commissions, which employ the county sheriffs and their officers,19 as well as other
instrumentalities that perform local government functions. See, e.g., W.Va. Code § 29-
12A-3(c) (1986) (defining “[p]olitical subdivision” to include “any county commission” .
. . [and] any public body charged by law with the performance of a government function
and whose jurisdiction is coextensive with one or more counties, cities or towns[.]”); W.Va.
Code § 16-5V-2 (2016) (“‘Political subdivision’ means a county, city or town in the
state[.]”); W.Va. Code § 17-1-19 (1925) (“‘Political subdivision’ shall mean and include
any county, city, town or other similar governmental unit of the State.”).
Finally, under the respondents’ interpretation of the definition of “state
entity,” a state or city police officer conducting the same investigation and seeking the
same financial records would be subject to the penalty provisions of the Act but a county
19
See Syl. Pt. 2, in part, Beckley v. Crabtree, 189 W.Va. 94, 428 S.E.2d 317 (1993)
(“A sheriff is an employee of a political subdivision, the county commission[.]”)
14
police officer would not. Such parsing of the statutory language achieves an absurd result
that is simply not permitted under our rules of statutory construction. Accordingly, we now
hold that a county sheriff’s department and its officers are a state entity for purposes of the
Act.
Although we have found that the respondents are a “state entity” under the
Act, our analysis does not end there. “This Court may, on appeal, affirm the judgment of
the lower court when it appears that such judgment is correct on any legal ground disclosed
by the record, regardless of the ground, reason or theory assigned by the lower court as the
basis for its judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466(1965). Therefore, we now consider whether dismissal of the petitioners’ complaint
pursuant to Rule 12(b)(6) of the Rules of Civil Procedure was warranted.
“The purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of
Civil Procedure is to test the sufficiency of the complaint.” Cantley v. Lincoln Co.
Comm’n, 221 W.Va. 468, 470, 655 S.E.2d 490, 492 (2007). It has long been established
that “‘[w]hether a complaint states a claim upon which relief may be granted is to be
determined solely from the provisions of such complaint[.]’ Syl. pt. 3, in part, Barker v.
Traders Bank, 152 W.Va. 774, 166 S.E.2d 331 (1969).” Syl. Pt. 2, Par Mar v. City of
Parkersburg, 183 W.Va. 706, 398 S.E.2d 532 (1990). “[T]he complaint is construed in the
light most favorable to plaintiff, and its allegations are to be taken as true.” Lodge Distrib.
Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 158 (1978).
15
As noted above, the respondents’ liability and the petitioners’ damages for
an alleged violation of the Act are limited by West Virginia Code § 31A-2A-7(b), which
sets forth the civil penalties.20 Critically, the statute only provides for the recovery of civil
penalties against a state entity when a customer’s “financial records or the information
contained therein has been negligently disclosed.” W.Va. Code § 31A-2A-7(b) (emphasis
added). The Act does not provide a civil cause of action for the negligent receipt of
financial records by a state entity. Consequently, a state entity that obtains a customer’s
financial records cannot be held civilly liable under the Act in the absence of a negligent
disclosure of those records to a third party.
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. Rather, the petitioners simply alleged in the complaint that
respondent “Hunt knowingly, willfully and negligently induced” BB&T to disclose the
subject records. 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 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. Therefore, the circuit court did not err in dismissing the complaint against
20
See note 18, supra.
16
the respondents pursuant to Rule of Civil Procedure 12(b)(6) and in denying the petitioners’
motion for a rehearing.21
IV. Conclusion
Accordingly, for the foregoing reasons, the orders of the Circuit Court of
Greenbrier County entered on February 10, 2017, and April 10, 2017, are affirmed.
Affirmed.
21
The respondents also argued that notice requirements set forth in West Virginia
Code § 31A-2A-5(a) did not apply in this case because the subpoena was issued “in
connection with [a] pending . . . criminal proceeding” as provided in W.Va. Code § 31A-
2A-3(a)(4)(b), which is a separate disclosure exception. Unlike West Virginia Code § 31A-
2A-2(a)(2), West Virginia Code § 31A-2A-2(a)(4)(b) does not require compliance with the
notice requirements of West Virginia Code § 31A-2A-5(a) prior to the disclosure of the
financial records. While the respondents’ argument is persuasive, we need not reach that
issue in light of our decision to affirm the circuit court’s dismissal of the complaint based
on all the above. Likewise, for the same reason, we need not address the respondents’
cross-assignments of error.
17