Hupp v. Monahan
| Decision Date | 02 June 2021 |
| Docket Number | No. 20-0532,20-0532 |
| Citation | 858 S.E.2d 888 |
| Court | West Virginia Supreme Court |
| Parties | Clay R. HUPP, Plaintiff Below, Petitioner v. Richard A. MONAHAN and the Masters Law Firm LC, Defendants Below, Respondents |
Richard A. Robb, South Charleston, West Virginia, Attorney for the Petitioner.
Richard A. Monahan, The Masters Law Firm lc, Charleston, West Virginia, Self-Represented Litigant and Attorney for the Respondent, The Masters Law Firm lc.
Petitioner, Clay R. Hupp ("Mr. Hupp"), the plaintiff below, appeals an order entered by the Circuit Court of Kanawha County that granted a motion to dismiss Mr. Hupp's legal malpractice lawsuit, which motion was filed by the defendants below, the respondents, Richard A. Monahan ("Mr. Monahan") and The Masters Law Firm lc. ("Masters"). The circuit court granted dismissal based upon its conclusion that the applicable two-year statute of limitations on Mr. Hupp's claim had expired prior to the filing of his legal malpractice action. Mr. Hupp argues that the circuit court erred in failing to apply the continuous representation doctrine to find his complaint was timely filed. We have considered the briefs submitted on appeal, the appendix record, the parties’ oral arguments, and the applicable legal authority. Because the circuit court considered matters outside the pleadings, we convert the dismissal to summary judgment; however, we find no error in the circuit court's conclusion that the continuous representation doctrine is not applicable to the facts presented in this case. Accordingly, the circuit court's order effectively granting summary judgment to Mr. Monahan and Masters (collectively "Lawyers") is affirmed.
Mr. Hupp, who was formerly employed as a trooper for the West Virginia State Police, was granted duty-related, partial-disability benefits by the West Virginia Consolidated Public Retirement Board ("WVCPRB") in 1999.1 His partial disability resulted from hearing loss and was based, in part, upon an evaluation by Stephen J. Wetmore, M.D., a physician chosen by the WVCPRB. Dr. Wetmore concluded that Mr. Hupp was permanently disabled from performing the essential functions required of a state trooper due to a moderate to severe high frequency hearing loss. Mr. Hupp's disability was considered permanent. In addition, Mr. Hupp presented the WVCPRB with a report from his own treating physician, Robert W. Azar, M.D., and from audiologist George F. Evans, M.A. Audiologist CCCA, both of whom concurred that Mr. Hupp was permanently disabled from performing the essential duties of a state trooper as a result of his hearing loss.
Despite the earlier finding that Mr. Hupp suffered from a permanent hearing loss, the WVCPRB notified Mr. Hupp on July 2, 2010, that he was to undergo a recertification exam by a physician selected by the WVCPRB to verify that he remained disabled. Thereafter, he was examined on behalf of the WVCPRB by Marsha Lee Bailey, M.D. Dr. Bailey completed a recertification form based on her evaluation of Mr. Hupp and gave an affirmative answer to the following question: "[h]as the individual recovered from his or her previously determined probable permanent disability to the extent that he or she is able to perform adequately the essential duties of a law enforcement officer?" In addition, Dr. Bailey noted on the form that Mr. Hupp "was never disabled as a law enforcement officer." Mr. Hupp's partial-disability benefits were terminated based upon Dr. Bailey's report. Mr. Hupp elected to retire rather than return to active duty as a state trooper following the termination of his benefits; nevertheless, he appealed the termination because his partial-disability benefits were superior to his retirement benefits.
At the request of the West Virginia Troopers Association, Lawyers represented Mr. Hupp in his appeal.2 Lawyers first filed an administrative appeal on behalf of Mr. Hupp, and, following a hearing on February 1, 2011, the hearing officer issued a recommended decision concluding that Mr. Hupp's appeal should be denied. The WVCPRB adopted the recommended decision by its final order dated May 26, 2011, and notified Mr. Monahan of the same. Lawyers continued their representation of Mr. Hupp and appealed the final administrative order to the Circuit Court of Tyler County. By order entered on June 22, 2013, the circuit court affirmed the decision of the WVCPRB. Finally, the circuit court's decision was appealed to this Court, with Lawyers still serving as counsel for Mr. Hupp. This Court also affirmed the termination of Mr. Hupp's partial-disability benefits. See Hupp v. W. Va. Consol. Pub. Ret. Bd. , No. 13-0811, 2014 WL 2682677 (W. Va. June 13, 2014) (memorandum decision). Mr. Monahan forwarded a copy of this Court's memorandum decision to Mr. Hupp on June 16, 2014. By order entered on August 26, 2014, the Court refused Mr. Hupp's petition for rehearing, which had been filed on his behalf by Mr. Monahan. This Court's mandate issued on September 2, 2014.
Thereafter, James C. Lee, in his capacity as President of the West Virginia Troopers Association, sent a letter to Masters dated December 22, 2015,3 which stated, in relevant part: Thereafter Mr. Monahan and Mr. Hupp tried, unsuccessfully, to obtain medical evidence to demonstrate that Mr. Hupp's hearing had worsened in the time since Dr. Bailey's 2010 examination, which evidence was necessary to support Mr. Hupp's application for disability benefits.4 Having failed to obtain medical evidence to adequately demonstrate a worsening of Mr. Hupp's hearing during the relevant timeframe, Lawyers advised Mr. Hupp in January 2018 that nothing more could be done to further his efforts to obtain a new award of disability benefits.5
On October 4, 2018, Mr. Hupp filed a complaint against Lawyers in the Circuit Court of Kanawha County alleging that they committed legal malpractice in connection with his appeal of the WVCPRB's termination of his partial-disability benefits by failing to obtain and/or submit medical evidence to refute Dr. Bailey's assessment that Mr. Hupp suffered no disability from hearing loss. Mr. Hupp contended that Lawyers’ failure to obtain this evidence resulted in the WVCPRB's decision being affirmed at every level of appeal. Lawyers filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure claiming the action was time-barred by the applicable statute of limitations. They argued that the two-year statute of limitations for Mr. Hupp's malpractice claim began to run on September 3, 2014, immediately following this Court's issuance of the mandate that concluded Mr. Hupp's final appeal of the termination of his disability benefits. As such, Lawyers contend that the limitations period for Mr. Hupp's malpractice action expired on September 2, 2016, and his complaint, which was not filed until October 4, 2018, was untimely. Mr. Hupp resisted the motion and argued that Lawyers’ representation was continuous until January 2018, when they advised him that they could do nothing more in relation to his efforts to obtain a new award of disability benefits. Calculating the statute of limitations from January 2018, Mr. Hupp argued that his complaint was timely filed.
The circuit court granted Lawyers’ motion to dismiss, finding that Mr. Hupp "neither has nor can show a clear indicia [sic] of an ongoing, continuous relationship between the parties" after the conclusion of his appeal of the termination of his disability benefits. The circuit court further concluded that any further relationship between the parties, i.e. , Lawyers’ assistance in attempting to gather information to file a new application for disability benefits, was only tangentially related to their earlier, allegedly negligent, representation of Mr. Hupp. This appeal followed.
Mr. Hupp appeals from the circuit court's order dismissing his complaint for failing to state a claim upon which relief can be granted. Generally, "[o]nly matters contained in the pleading can be considered on a motion to dismiss under Rule 12(b) R.C.P., and if matters outside the pleading are presented to the court and are not excluded by it, the motion should be treated as one for summary judgment ...." Syl. pt. 3, in part, Riffle v. C.J. Hughes Constr. Co. , 226 W. Va. 581, 703 S.E.2d 552 (2010) (quotations and citations omitted). We observe that Lawyers attached sixteen exhibits to their motion to dismiss. Some of these exhibits fall within exceptions to the general rule prohibiting consideration of matters outside the pleading, such as records from related proceedings.
See, e.g. , Forshey v. Jackson , 222 W. Va. 743, 747, 671 S.E.2d 748, 752 (2008) ; Sturm v. Bd. of Educ. of Kanawha Cty. , 223 W. Va. 277, 284 n.9, 672 S.E.2d 606, 613 n.9 (2008) (...
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