Hall's Park Motel, Inc. v. Rover Const., Inc.

• Decision Date: 11 July 1995
• Docket Number: No. 22534,22534
• Parties: HALL'S PARK MOTEL, INC., a West Virginia Corporation, Plaintiff Below, Appellant, v. ROVER CONSTRUCTION, INC., etc., et al., Defendants Below, Appellees.
• Court: West Virginia Supreme Court

Page 444

460 S.E.2d 444

194 W.Va. 309

HALL'S PARK MOTEL, INC., a West Virginia Corporation Plaintiff Below, Appellant, v. ROVER CONSTRUCTION, INC., etc., et al., Defendants Below, Appellees.

No. 22534.

Supreme Court of Appeals of West Virginia.

Submitted May 10, 1995.

Decided July 11, 1995.

Syllabus by the Court

1. "Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syllabus point 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

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.

3. "In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which have not been decided by the court from which the case has been appealed." Syllabus point 11, Work v. Rogerson, 149 W.Va. 493, 142 S.E.2d 188 (1965).

Gail I. Michelson, Kopleman & Associates, Charleston, for appellant.

Johnnie E. Brown, Molly Underwood-Korwan, McQueen & Brown, L.C., Charleston, for appellee, Rover Const., Inc.

W.T. Webber, Jr., W.T. Webber, III, Webber & Webber, Weston, for appellee, Kelly, Gidley, Blair & Wolfe, Inc.

Michael M. Fisher, Offutt, Eifert, Fisher & Duffield, Huntington, for appellees, City of South Charleston, Sanitary Bd. of South Charleston, and Richard A. Robb, Mayor.

Robert R. Rodecker, Jerri F. Heiskell, Charleston, for appellees, Green Valley Community Public Service Dist. and John L. Ford.

FOX, Judge: ¹

This is an appeal by Hall's Park Motel, Inc., from an order of the Circuit Court of Kanawha County granting summary judgment to the defendants in this property damage action on the ground that the action was barred by the statute of limitations. On appeal, Hall's Park Motel, Inc., contends that the action was not barred by the statute of limitations and that the circuit court erred in its holding. After reviewing the questions presented and the record, we disagree. The judgment of the Circuit Court of Kanawha County is, therefore, affirmed.

On 29 May 1981, Rover Construction, Inc., which was constructing a sewage system for the City of South Charleston, the Sanitary Board of the City of South Charleston, and Green Valley Community Public Service District, began to excavate a pit for the construction of a sewage lift station on land immediately adjoining a motel owned by the appellant, Hall's Park Motel, Inc.

While the work on the lift station was being performed, Rover Construction removed and replaced earth immediately adjacent to the Hall's Park Motel, Inc., property. The work of Rover Construction Co., Inc., on the lift station was completed in the late fall of 1981.

During the construction, or shortly after the work on the lift station was completed, the land around and underneath the Hall's Park Motel property began to slip and subside. As a consequence, the motel property and the building upon it were damaged.

On 22 December 1981, after obtaining an estimate from a construction appraiser, attorneys representing Hall's Park Motel, Inc., notified the appellees that the claim for loss and damages would be for $40,000.00. The matter was turned over to the appellees' insurance carrier, United States Fidelity & Guaranty Company, which unsuccessfully attempted to negotiate a settlement of the claim. Despite the fact that no settlement was ever reached, and for reasons not apparent in the record, neither Hall's Park Motel, Inc., nor its attorney, made any further efforts to resolve the matter or took any action to collect until 1991.

On 15 March 1991, almost ten years after the first damage to the Hall's Park Motel property and almost eight years after the last contact between Hall's Park Motel, Inc., and the appellees, the complaint giving rise to the present appeal was filed.

The complaint alleged:

10. On or about May 29, 1981, the defendant Rover Construction, Inc. engaged in excavating a pit for the construction of a sewage lift station on the land immediately adjoining and in close proximity to the above mentioned property and motel of the plaintiff.

11. The excavation work performed by the defendant Rover Construction, Inc. was prosecuted on behalf of the defendants City of South Charleston, The Sanitary Board of the City of South Charleston, and/or Green Valley Community Public Service District and pursuant to the plans and specifications prepared by the defendant Kelley, Gidley, Blair & Wolfe, Inc.

12. As a direct and approximate result of the negligent, careless and reckless construction by the defendants, the plaintiff's motel and real property was severely damaged, including damage to the foundation, walls, windows, and sewage disposal system of said motel, rendering the same unsafe and uninhabitable and depriving the plaintiff of the use and benefit thereof.

After being served with the complaint, the appellees moved for summary judgment on the ground that the action was barred by the statute of limitations. The court initially denied that motion, but later, after extensive discovery in the case, granted the motion on 27 April 1994. In its order, the court ruled as follows:

And the Court having reflected upon reconsideration of the previous ruling which denied summary judgment by memorandum and order dated August 22, 1991; and the Court having taken into consideration the subsequent discovery, and especially the deposition given by Erma Creasy dated July 21, 1992; the Court finds that plaintiff had notice by 1981 through 1985 that damages to the motel property in question was so severe that remedial repairs were not possible. The lawsuit herein filed March 15, 1991, is barred by the statute of limitations without any possibility of tolling due to a continuing tort.

In asserting that the entry of summary judgment was improper, Hall's Park Motel, Inc., argues that the damage to its property has been ongoing and is still continuing and where a tort involves a continuing or repeated injury, the cause of action accrues at, and the limitations period begins to run from, the date of the last injury or when the tortious overt act ceases. Hall's Park Motel, Inc., argues that under this principle, its action is not barred by West Virginia's statute of limitations.

In Aetna Casualty and Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), this Court discussed at some length the circumstances under which summary judgment could appropriately be granted in a civil action in West Virginia. In syllabus point 3 of that case, the Court stated its conclusion as follows:

A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.

See Lowery v. Raptis, 174 W.Va. 736, 329 S.E.2d 102 (1985); Karnell v. Nutting, 166 W.Va. 269, 273 S.E.2d 93 (1980); Consolidated Gas Supply Corp. v. Riley, 161 W.Va. 782, 247 S.E.2d 712 (1978); and Anderson v. Turner, 155 W.Va. 283, 184 S.E.2d 304 (1971).

Furthermore, the Court recently explained in syllabus point 4 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), that:

Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.

It is implicit from reading the briefs in the present case that the parties do not challenge the fact that the appropriate limitations period for the action instituted by Hall's Park Motel, Inc., is the two-year limitations period contained in W.Va.Code § 55-2-12 for tort resulting in damage to property. ² The question which the parties raise is when the limitations period for any tort involved in the present action began or begins to run.

As a general proposition, the limitations period begins to run from the date of the injury. State ex rel. Ashworth v. State Road Commission, 147 W.Va. 430, 128 S.E.2d 471 (1962); and Boyd v. Beebe, 64 W.Va. 216, 61 S.E. 304 (1908).

There are, however, a good many exceptions to this rule. For instance, where injury is not immediately known or discoverable, the statute of limitations begins to run when the injury is discovered or should have been discovered by the exercise of due diligence. Stemple v. Dobson, 184 W.Va. 317, 400 S.E.2d 561 (1990).

Other problems arise where elements of a tort do not occur or manifest themselves within a brief, discrete period. Two situations involving these circumstances have recently been addressed by this Court.

In the first, discussed in Jones v. Trustees of Bethany College, 177 W.Va. 168, 351 S.E.2d 183 (1986), the Court dealt with the situation where, within a brief, discrete period of time, all the elements of a tort occurred or manifested themselves and a plaintiff suffered a noticeable injury, but for a substantial period thereafter the plaintiff suffered a worsening of his condition or injury. In the second situation, discussed in Handley v. Town of Shinnston, 169 W.Va. 617, 289 S.E.2d 201 (1982), both the noticeable negligence, or negligent act, and the noticeable injury itself persisted and worsened over a period of time.

In the Bethany College case, this Court cited with approval Albertson v. T.J. Stevenson & Co., 749 F.2d 223 (5th Cir.1984). The Court said:

Where there is an initial traumatic injury, but the full extent of the injury is not immediately known, Albertson terms this as a "traumatic event/latent manifestation case." In this type of case, the statute of limitations begins to run from the...