Whitlow v. Board of Educ. of Kanawha County

• Decision Date: 23 November 1993
• Docket Number: No. 21362,21362
• Citation: 190 W.Va. 223,438 S.E.2d 15
• Court: West Virginia Supreme Court
• Parties: , 88 Ed. Law Rep. 406 Shelley D. WHITLOW, Formerly Shelley D. Casto, Plaintiff Below, Appellant v. The BOARD OF EDUCATION OF KANAWHA COUNTY, a Municipal Corporation, Defendant Below, Appellee.

Page 15

438 S.E.2d 15

190 W.Va. 223, 88 Ed. Law Rep. 406

Shelley D. WHITLOW, Formerly Shelley D. Casto, Plaintiff Below, Appellant v. The BOARD OF EDUCATION OF KANAWHA COUNTY, a Municipal

Corporation, Defendant Below, Appellee.

No. 21362.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 22, 1993.

Decided Nov. 23, 1993.

Syllabus by the Court

1. "The general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled." Syllabus Point 1, UMWA by Trumka v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984).

2. " ' " 'Where economic rights are concerned, we look to see whether the classification is a rational one based on social, economic, historic or geographic factors, whether it bears a reasonable relationship to a proper governmental purpose, and whether all persons within the class are treated equally. Where such classification is rational and bears the requisite reasonable relationship, the statute does not violate Section 10 of Article III of the West Virginia Constitution which is our equal protection clause.' Syllabus Point 7, [as modified,] Atchinson v. Erwin, W.Va. , 302 S.E.2d 78 (1983)." Syllabus Point 4, as modified, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., , 328 S.E.2d 144 (1984).' Syllabus Point 4, Gibson v. West Virginia Department of Highways, 185 W.Va. 214, 406 S.E.2d 440 (1991)." Syllabus Point 2, O'Dell v. Town of Gauley Bridge, 188 W.Va. 596, 425 S.E.2d 551 (1992).

3. W.Va.Code, 29-12A-6 (1986), violates the Equal Protection Clause found in Section X of Article III of the West Virginia Constitution to the extent that it denies to minors the benefit of the statute of limitations provided in the general tolling statute, W.Va.Code, 55-2-15 (1923).

Lawrence W. Burdette, Jr., Guy R. Bucci, Sandra A. Willis, Charleston, for appellant.

Jeffrey M. Wakefield, Flaherty, Sensabaugh & Bonasso, Charleston, for appellee.

MILLER, Justice:

In this appeal, we consider whether the general provision of W.Va.Code, 55-2-15 (1923), for tolling the statute of limitations period for suits brought by persons under a disability, has been superseded by the more restrictive tolling provision in the West Virginia Governmental Tort Claims and Insurance Act (Act), W.Va.Code, 29-12A-6 (1986). This latter section is applicable only to individuals suing political subdivisions. If we find that W.Va.Code, 29-12A-6, takes precedence over W.Va.Code, 55-2-15, we then must consider whether that statute violates our constitutional principle of equal protection.

The plaintiff was severely injured on September 17, 1987, when the bleachers at her junior high school collapsed. She was fifteen years old at the time of the accident. The plaintiff sued the Board of Education of Kanawha County on March 28, 1991, over three and one-half years after the accident. The defendant board of education contended that the plaintiff's suit was time barred by virtue of W.Va.Code, 29-12A-6(b). The parties agree that the defendant board of education is a political subdivision under W.Va.Code, 29-12A-3(c), ¹ and is, therefore, entitled to the benefit of the Act. The plaintiff, however, sought to avail herself of the limitations found in W.Va.Code, 55-2-15. The Circuit Court of Kanawha County concluded that the limitation period in W.Va.Code, 29-12A-6, was applicable to this case and that the suit was time barred. The plaintiff appeals.

I.

The plaintiff asserts that the circuit court's determination that the Act is applicable to this case was erroneous because there is no specific language in W.Va.Code, 29-12A-1, et seq., that repeals W.Va.Code, 55-2-15. We do not accept this reasoning. First, it must be remembered that W.Va.Code, 55-2-15, does not deal exclusively with tolling the statute of limitations for minors during their minority. It encompasses other persons who are deemed to be under a disability, i.e., those who are insane. ² It has been considered our general tolling statute for purposes of extending the time when one under a disability may file an action.

There is nothing in the language of W.Va.Code, 29-12A-6, that repeals W.Va.Code, 55-2-15. Thus, it is apparent that the legislature did not repeal W.Va.Code, 55-2-15, when it enacted W.Va.Code, 29-12A-6. Rather, W.Va.Code, 29-12A-6, enacted a separate tolling provision for minors who sue a political subdivision. Thus, we must contrast the general provision for the tolling of a statute of limitations by persons under a disability in W.Va.Code, 55-2-15, with W.Va.Code, 29-12A-6(b), which contains a more limited tolling provision relating only to suits filed on behalf of minors against political subdivisions. ³

The parties neither suggest nor can we find a way to reconcile the general tolling statute with the special minor's tolling provision in W.Va.Code, 29-12A-6(b). Our traditional rule of statutory construction is set out in Syllabus Point 1 of UMWA by Trumka v. Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984):

"The general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled."

See also Vance v. Ritchie, 178 W.Va. 155, 358 S.E.2d 239 (1987); State ex rel. Myers v. Wood, 154 W.Va. 431, 175 S.E.2d 637 (1970).

Utilizing this rule, we conclude that the tolling provisions in the special statute of limitations as to minors in W.Va.Code, 29-12A-6(b), takes precedence over the tolling provisions in the general statute of limitations found in W.Va.Code, 55-2-15.

II.

The plaintiff raises a constitutional question regarding the validity of W.Va.Code, 29-12A-6. The defendant contends that the issue was not raised below, and, consequently, we should not address it. Our general rule in this regard is that, when nonjurisdictional questions have not been decided at the trial court level and are then first raised before this Court, they will not be considered on appeal. See, e.g., Shrewsbury v. Humphrey, 183 W.Va. 291, 395 S.E.2d 535 (1990); Cline v. Roark, 179 W.Va. 482, 370 S.E.2d 138 (1988); Crain v. Lightner, 178 W.Va. 765, 364 S.E.2d 778 (1987); Trumka v. Clerk of the Circuit Court, 175 W.Va. 371, 332 S.E.2d 826 (1985).

The rationale behind this rule is that when an issue has not been raised below, the facts underlying that issue will not have been developed in such a way so that a disposition can be made on appeal. Moreover, we consider the element of fairness. When a case has proceeded to its ultimate resolution below, it is manifestly unfair for a party to raise new issues on appeal. Finally, there is also a need to have the issue refined, developed, and adjudicated by the trial court, so that we may have the benefit of its wisdom.

In this case, we are confronted with very limited and essentially undisputed facts. The constitutional issue raised for the first time on appeal is the controlling issue in the resolution of the case. If the statute is unconstitutional the case should not be dismissed. Furthermore, the issue is one of substantial public interest that may recur in the future. These two considerations are in line with our basic standards for deciding when to examine matters in a prohibition proceeding. See Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979). ⁴ Moreover, these same factors are considered when we determine whether to dismiss an appeal based on the alleged mootness of the case. See Hairston v. Lipscomb, 178 W.Va. 343, 359 S.E.2d 571 (1987). ⁵

The Arizona Supreme Court in Barrio v. San Manuel Division Hospital for Magma Copper Co., 143 Ariz. 101, 692 P.2d 280 (1984), was also confronted with a constitutional issue not previously raised involving a statute that limited the tolling period during which a minor could bring a malpractice action. It settled the matter in this fashion: "We believe that the constitutional issue in the case at bench is sufficiently important that it should be considered even though not raised in the trial court. We therefore allowed the parties to direct supplemental briefs and oral arguments to the issue. We now turn to the merits." 143 Ariz. at 104, 692 P.2d at 283. Here, the defendant has thoroughly briefed the constitutional issue in response to the plaintiff's claim. We view the matter as sufficiently developed to decide the issue.

III.

A.

The defendant begins its constitutional discussion by reminding us that, in the past, we have upheld legislative enactments against constitutional assaults made upon equal protection ⁶ and certain remedy grounds. ⁷ See, e.g., Gibson v. West Va. Dep't of Highways, 185 W.Va. 214, 406 S.E.2d 440 (1991) (statute of repose in W.Va.Code, 55-2-6a); Lewis v. Canaan Valley Resorts, 185 W.Va. 684, 408 S.E.2d 634 (1991) (West Virginia Skiing Responsibility Act, W.Va.Code, 20-3A-6); Robinson v. Charleston Area Medical Ctr., 186 W.Va. 720, 414 S.E.2d 877 (1991) (damage limitation for pain and suffering in West Virginia Medical Professional Liability Act, W.Va.Code, 55-7B-8). Moreover, the defendant cites cases where we have specifically affirmed certain portions of the Act against similar constitutional attacks. E.g., Randall v. City of Fairmont Police Dep't, 186 W.Va. 336, 412 S.E.2d 737 (1991) (qualified tort immunity provisions upheld in W.Va.Code, 29-12A-5(b)). See also Pritchard v. Arvon, 186 W.Va. 445, 413 S.E.2d 100 (1991) (immunity of employees of a political subdivision under W.Va.Code, 29-12A-5(b)); O'Dell v. Town of Gauley Bridge, 188 W.Va. 596, 425 S.E.2d 551 (1992) (workers' compensation immunity in W.Va.Code, 29-12A-5(a)(11)).

Notwithstanding the results in the foregoing cases, they cannot be read as sanctioning the constitutionality of the entire Act. We approached those cases on limited legal and factual bases, just as we approach the constitutional issue in this case.

B.

The equal protection standard applicable...