Fucillo v. Kerner

• Decision Date: 05 June 2013
• Docket Number: No. 11–1783.,11–1783.
• Citation: 231 W.Va. 195,744 S.E.2d 305
• Court: West Virginia Supreme Court
• Parties: Rocco S. FUCILLO, Secretary, West Virginia Department of Health and Human Resources; West Virginia Department of Health and Human Resources; West Virginia Support Enforcement Commission; Garrett M. Jacobs, Commissioner, West Virginia Bureau for Child Support Enforcement; West Virginia Bureau for Child Support Enforcement; and Policy Studies, Inc., a Colorado Corporation, authorized to do business in West Virginia, Defendants Below, Petitioners v. Cynthia KERNER, guardian, on behalf of J.B. and R.B.; Lori C., guardian, on behalf of B.C.; Robin Danberry, guardian, on behalf of B.B.; Kathy Cooper, guardian, on behalf of L.D. and C.D.; Cecilia Nash, guardian, on behalf of C.C. and J.C.; Lisa Roth, guardian, on behalf of A.C. and A.C.; and on behalf of all other children similarly situated, Plaintiffs Below, Respondents.

231 W.Va. 195

744 S.E.2d 305

Rocco S. FUCILLO, Secretary, West Virginia Department of Health and Human Resources; West Virginia Department of Health and Human Resources; West Virginia Support Enforcement Commission; Garrett M. Jacobs, Commissioner, West Virginia Bureau for Child Support Enforcement; West Virginia Bureau for Child Support Enforcement; and Policy Studies, Inc., a Colorado Corporation, authorized to do business in West Virginia, Defendants Below, Petitioners

v.Cynthia KERNER, guardian, on behalf of J.B. and R.B.; Lori C., guardian, on behalf of B.C.; Robin Danberry, guardian, on behalf of B.B.; Kathy Cooper, guardian, on behalf of L.D. and C.D.; Cecilia Nash, guardian, on behalf of C.C. and J.C.; Lisa Roth, guardian, on behalf of A.C. and A.C.; and on behalf of all other children similarly situated, Plaintiffs Below, Respondents.

No. 11–1783.

Supreme Court of Appeals of West Virginia.

Submitted April 17, 2013.

Decided June 5, 2013.

Syllabus by the Court

1. “ ‘Ordinarily the denial of a motion for failure to state a claim upon which relief can be granted made pursuant to West Virginia Rules of Civil Procedure 12(b)(6) is interlocutory and is, therefore, not immediately appealable.’ Syllabus Point 2, State ex rel. Arrow Concrete Co. v. Hill, 194 W.Va. 239, 460 S.E.2d 54 (1995).” Syl. Pt. 1, Jarvis v. W. Va. State Police, 227 W.Va. 472, 711 S.E.2d 542 (2010).

2. “ ‘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.’ Syllabus Point 3, Chapman v. Kane Transfer Company, 160 W.Va. 530, 236 S.E.2d 207 (1977) quoting Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957).” Syl. Pt. 2, Cantley v. Lincoln Cnty. Com'n, 221 W.Va. 468, 655 S.E.2d 490 (2007).

3. “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975).

4. “The following is the appropriate test to determine when a State statute gives rise by implication to a private cause of action: (1) the plaintiff must be a member of the class for whose benefit the statute was enacted; (2) consideration must be given to legislative intent, express or implied, to determine whether a private cause of action was intended; (3) an analysis must be made of whether a private cause of action is consistent with the underlying purposes of the legislative scheme; and (4) such private cause of action must not intrude into an area delegated exclusively to the federal government.” Syl. Pt. 1, Hurley v. Allied Chem. Corp., 164 W.Va. 268, 262 S.E.2d 757 (1980).

5. “Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.” Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).

6. Child support obligees, either on their own behalf or on behalf of their children, do not have a private cause of action under the provisions of West Virginia Code § 48–19–103(f) (2009) against state entities or their contractors for damages arising from the failure of such entities or contractors to reduce the obligees' respective support arrearages to judgment and/or to renew such judgments, thus causing the obligees' claims to become time-barred.

Edgar Allen Poe, Jr., Esq., Pullin, Fowler, Flanagan, Brown & Poe PLLC, Charleston, West Virginia, for DHHR Petitioners.

Charles E. Webb, Esq., The Webb Law Firm, PLLC, Lonnie C. Simmons, Esq., Katherine R. Snow, Esq., DiTrapano, Barrett & DiPiero, PLLC, Charleston, West Virginia, for Respondents.

Ancil G. Ramey, Esq., Hannah C. Ramey, Esq., Steptoe & Johnson PLLC, Huntington, West Virginia, for Petitioner PSI.

WORKMAN, J.:

This is an appeal from an order entered on November 28, 2011, by the Circuit Court of Kanawha County, denying the petitioners' Rule 12(b)(6) motions to dismiss. The underlying suit was brought by the respondents, plaintiffs below, six child support obligees ¹ suing on behalf of their respective children,² who allege that the petitioners failed to reduce their respective support arrearages to judgment and/or to renew such judgments, thus causing the obligees' claims to become time-barred. The respondents' complaint sets forth five causes of action, all sounding in tort: breach of statutory duty, negligence, breach of fiduciary duty, breach of trust, and fraud.

The institutional petitioners, defendants below, are the West Virginia Department of Health and Human Resources (hereinafter “DHHR”), the West Virginia Support Enforcement Commission (hereinafter “SEC”), the West Virginia Bureau for Child Support Enforcement (hereinafter “BCSE”), and Policy Studies, Inc. (hereinafter “PSI”). The individual petitioners, defendants below, who are sued in their official capacities, are the Secretary of DHHR ³ and the Commissioner of BCSE

In syllabus point one of Jarvis v. West Virginia State Police, 227 W.Va. 472, 711 S.E.2d 542 (2010), this Court held that

‘[o]rdinarily the denial of a motion for failure to state a claim upon which relief can be granted made pursuant to West Virginia Rules of Civil Procedure 12(b)(6) is interlocutory and is, therefore, not immediately appealable.’ Syllabus Point 2, State ex rel. Arrow Concrete Co. v. Hill, 194 W.Va. 239, 460 S.E.2d 54 (1995).

However, we further held in Jarvis that “[b]ecause the instant order denying a motion to dismiss is an interlocutory order that is predicated in part on qualified immunity, we find that the order is subject to immediate appeal under our holding in Robinson [ v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009) ].”

Jarvis, 227 W.Va. at 476, 711 S.E.2d at 546. Because the order at issue in this case is an interlocutory order predicated in part on qualified immunity, we find that the order is subject to immediate appeal under Robinson and Jarvis.

Upon careful review of the parties' briefs and oral arguments, the appendix record, and our applicable precedents, we conclude that the respondents do not have a private cause of action under the statutes governing collection of child support by the BCSE. We therefore reverse the circuit court's order and remand this case for entry of an order granting the petitioners' motions to dismiss.

I. FACTUAL AND PROCEDURAL HISTORY

On April 25, 2011, the respondents, six child support obligees, filed a complaint alleging that as a result of the petitioners' failure to perform duties imposed on them by law, the respondents' right to collect child support arrearages owed by their respective obligors was barred by the statute of limitations. The petitioners filed motions to dismiss pursuant to West Virginia Rules of Civil Procedure 12(b)(6), raising multiple grounds including, inter alia, that the respondents did not have a private cause of action under the statutes governing child support enforcement. The petitioners also raised the defenses of prosecutorial immunity, qualified immunity, and the public duty doctrine.

On November 28, 2011, the circuit court entered a comprehensive order ruling on all issues raised by the petitioners in their respective motions to dismiss. First, based upon the allegations in the complaint, the circuit court made the following findings of fact, which this Court adopts for purposes of this appeal: ⁴

1. Each Plaintiff class representative [now, collectively, respondents] is a custodial parent of a child or children, who is owed child support from the noncustodial parent.

2. In each case, an order was entered requiring the noncustodial parent to pay a certain amount of child support each month.

3. Defendants West Virginia Department of Health and Human Resources, Bureau for Child Support Enforcement, and Policy Studies, Inc. [now, collectively, petitioners], filed a motion in each case on behalf of the children seeking to determine the amount of child support in arrears.

4. However, each of these motions were filed subsequent to the West Virginia Supreme Court's decisions in Shaffer v. Stanley, 215 W.Va. 58, 593 S.E.2d 629 (2003), and its progeny. In those cases, the West Virginia Supreme Court found that where a child support judgment had not been preserved, the State Defendants and PSI could not collect child support in arrears that fell outside the statute of limitations.

5. In Shaffer, the West Virginia Supreme court ordered the State Defendants to repay the noncustodial parents any money withheld that was barred by the statute of limitations.

6. In each case, the child support order was not preserved, and, pursuant to Shaffer, significant portions of the child support payments in arrears were barred by the statute of limitations. The individual amounts lost by Plaintiffs range from approximately $2,593.89 to $57,728.00. See Compl. at 9–16. The class representatives in total allege $157,070.42 was lost in their cases. Id.

Thereafter, the circuit court held, in its conclusions of law, that further factual development was necessary to determine whether the respondents have a private cause of action under the statutes governing child support enforcement. The court further held that petitioner Policy Studies, Inc., a private corporation, is not entitled to any governmental immunities; that prosecutorial immunity does not apply to either the state actors or to PSI; that further factual development is required before the applicability of qualified immunity to the state actors can be finally determined; and that further factual development is required before the applicability of the public duty doctrine to the state actors can be finally determined. This appeal followed.

II. STANDARD OF REVIEW

Inasmuch as this case was decided on motions to dismiss, West Virginia Rules of Civil Procedure 12(b)(6), we review this matter de novo and follow our...