J.A. St. & Assocs., Inc. v. Thundering Herd Dev., LLC

• Decision Date: 18 November 2011
• Docket Number: No. 101379.,101379.
• Court: West Virginia Supreme Court
• Parties: J.A. STREET & ASSOCIATES, INC., Defendant/Third–Party Plaintiff Below, Petitioner v. THUNDERING HERD DEVELOPMENT, LLC, a West Virginia Limited Liability Company, and THD Investors 7, LLC, a West Virginia Limited Liability Company; and S&ME, Inc., a foreign corporation; and CTL Engineering of West Virginia, Inc., a West Virginia Corporation, and Bizzack, Inc., a foreign corporation, Plaintiffs, Defendants/Third–Party Plaintiffs Below, Respondents.

724 S.E.2d 299

J.A. STREET & ASSOCIATES, INC., Defendant/Third–Party Plaintiff Below, Petitioner

v.THUNDERING HERD DEVELOPMENT, LLC, a West Virginia Limited Liability Company, and THD Investors 7, LLC, a West Virginia Limited Liability Company; and S&ME, Inc., a foreign corporation; and CTL Engineering of West Virginia, Inc., a West Virginia Corporation, and Bizzack, Inc., a foreign corporation, Plaintiffs, Defendants/Third–Party Plaintiffs Below, Respondents.

No. 101379.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 2011.Decided Nov. 18, 2011.

Syllabus by the Court

1. “A circuit court's entry of summary judgment is reviewed de novo.” Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. “ ‘ “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.” Syllabus point 1, Wickland v. American Travellers Life Insurance Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).’ Syllabus point 2, Bowers v. Wurzburg, 205 W.Va. 450, 519 S.E.2d 148 (1999).” Syllabus point 1, Alden v. Harpers Ferry Police Civil Service Commission, 209 W.Va. 83, 543 S.E.2d 364 (2001).

3. “ ‘ “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).’ Syllabus point 3, Alden v. Harpers Ferry Police Civil Service Commission, 209 W.Va. 83, 543 S.E.2d 364 (2001).” Syllabus point 1, State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005).

4. “An interpretation of the West Virginia Rules of Civil Procedure presents a question of law subject to a de novo review.” Syllabus point 4, Keesecker v. Bird, 200 W.Va. 667, 490 S.E.2d 754 (1997).

5. “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syllabus point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).

6. “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.” Syllabus point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).

7. “ ‘It is well established that the word “shall,” in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation.’ Syllabus Point 1, Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86 (1982).” Syllabus point 1, E.H. v. Matin, 201 W.Va. 463, 498 S.E.2d 35 (1997).

8. Pursuant to W. Va.Code § 55–2–21 (1981) (Repl.Vol.2008), during the pendency of a civil action, the statute of limitation shall be tolled as to any cross-claim that has been or may be asserted therein.

9. To determine whether a cross-claim arises out of the same transaction or occurrence as the original action, there are three nonexclusive factors to be considered: (1) the identity of facts and law between the initial claim and the cross-claim; (2) the mutuality of proof and whether substantially the same evidence will support or refute both the complaint and the cross-claim; and (3) the logical relationship between the original claim and the cross-claim.

10. “A five-step analysis should be applied to determine whether a cause of action is time-barred. First, the court should identify the applicable statute of limitation for each cause of action. Second, the court (or, if questions of material fact exist, the jury) should identify when the requisite elements of the cause of action occurred. Third, the discovery rule should be applied to determine when the statute of limitation began to run by determining when the plaintiff knew, or by the exercise of reasonable diligence should have known, of the elements of a possible cause of action, as set forth in Syllabus Point 4 of Gaither v. City Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997). Fourth, if the plaintiff is not entitled to the benefit of the discovery rule, then determine whether the defendant fraudulently concealed facts that prevented the plaintiff from discovering or pursuing the cause of action. Whenever a plaintiff is able to show that the defendant fraudulently concealed facts which prevented the plaintiff from discovering or pursuing the potential cause of action, the statute of limitation is tolled. And fifth, the court or the jury should determine if the statute of limitation period was arrested by some other tolling doctrine. Only the first step is purely a question of law; the resolution of steps two through five will generally involve questions of material fact that will need to be resolved by the trier of fact.” Syllabus point 5, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009).

11. “ ‘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).” Syllabus point 5, Toth v. Board of Parks and Recreation Commissioners, 215 W.Va. 51, 593 S.E.2d 576 (2003).

James D. McQueen, Jr., Amanda J. Davis, Baker Davis & McQueen, PLLC, Huntington, WV, for Petitioner, J.A. Street & Associates, Inc.

William R. Slicer, Christopher D. Negley, Shuman, McCuskey & Slicer, PLLC, Charleston, WV, Respondent, S&ME, Inc.

DAVIS, Justice:

The petitioner herein and defendant/third-party plaintiff below, J.A. Street & Associates, Inc. (hereinafter “Street”), appeals from an order entered September 24, 2010, by the Circuit Court of Cabell County. By that order, the circuit court affirmed its previous order of July 20, 2010, and certified it as a final order pursuant to Rule 54(b) of the West Virginia Rules of Civil Procedure. The July 20, 2010, order granted the partial motion for summary judgment requested by the respondent herein and defendant/third-party plaintiff below, S&ME, Inc. (hereinafter “S&ME”), and dismissed Street's amended cross-claims against S&ME that sought recovery of remediation costs incurred by Street in 2003. The lower court granted partial summary judgment based on its determination that some of Street's cross-claims were time-barred by the applicable statute of limitations ¹ and that W. Va.Code § 55–2–21 (1981) (Repl.Vol.2008) ² did not apply to toll any limitations periods because Street's claims were independent causes of action as opposed to cross-claims. On appeal to this Court, Street argues that W. Va.Code § 55–2–21 tolled the running of the statute of limitations as to its cross-claims against S&ME. Alternatively, Street argues that the discovery rule applies and that genuine issues of material fact exist such that summary judgment was improper. Based upon the parties' written submissions and oral arguments, the record designated for our consideration, and the pertinent authorities, we find that the lower court erred in its grant of summary judgment. Thus, this case is reversed and remanded for further proceedings consistent with this Opinion.

I.FACTUAL HISTORY

Briefly, this case involves a dispute regarding developed property known as the Merritt Creek Farms Development (hereinafter “Merritt Creek”) in Cabell County, West Virginia. The interested parties before this Court are Street, the project's general contractor, and S&ME, a geotechnical engineering firm. While there are only two parties involved in this appeal, a clear understanding of the facts requires a basic knowledge of the other entities who appeared before the circuit court. Thundering Herd Development, LLC., and THD Investors 7, LLC., (hereinafter “THD,” collectively) own the development. Bizzack, Inc. (hereinafter “Bizzack”), is a grading contractor, and CTL Engineering of West Virginia, Inc. (hereinafter “CTL”), is an engineering firm. Finally, SITE, Inc. (hereinafter “SITE”), was the civil engineer for the project.

S&ME and Street disagree on several factual assertions, as well as the impact of these disputes on this case. These discrepancies will be discussed, when relevant, in the Discussion section of this Opinion. See generally § IV, infra. A summary of the undisputed facts is as follows.

In 2000, THD began exploring developing ideas for the future Merritt Creek project. THD contracted with S&ME in 2001 for a preliminary geotechnical evaluation of the site, which provided recommendations regarding site preparation.³ Construction of the site began in July of that same year based on the design by SITE. In late September 2001, there was a failure of an engineered fill slope at the southeast corner of the area known as the Target store. In September and October 2001, fill was placed in the area known as “Shops A,” which was on the western portion of Merritt Creek, in a different location than the Target store. The Shops A buildings, in late 2002, began showing damage due to settlement. S&ME, on February 24, 2003, investigated the settlement and issued a report of its findings and conclusions, titled “Geotechnical Evaluation of Settlements, Shops A—Merritt Creek Farm Retail Center.”

After receipt of S&ME's report, Street, by letter dated April 22, 2003, wrote to Bizzack, the “land mover” contractor. Street's correspondence informed Bizzack that “S&ME ... feels that the placement of the fill was not in accordance with the original recommendation and was the cause of the settlement.” The letter further requests Bizzack's opinion regarding placement of fill. Bizzack responded in writing on May 8, 2003, and disputed the assertion that there was any problem with fill placement. Bizzack's letter to Street explained...