Vanderpool v. Hunt, 17-0436

• Decision Date: 31 January 2019
• Docket Number: No. 17-0436,17-0436
• Citation: 241 W.Va. 254,823 S.E.2d 526
• Parties: Selwyn VANDERPOOL, Individually and in His Capacity as Administrator of the Estate of Lila Vanderpool and as Trustee of the Selwyn Vanderpool and Lila Vanderpool Family Irrevocable Living Trust, and Cornerstone Marketing, LLC, a West Virginia Limited Liability Company, Joseph W. Boswell, III, Manager, and Joseph W. Boswell, III, Individually, Plaintiffs Below, Petitioners, v. Cpl. B.M. HUNT and Greenbrier County Sheriff’s Department, Defendants Below, Respondents.
• Court: West Virginia Supreme Court

241 W.Va. 254
823 S.E.2d 526

Selwyn VANDERPOOL, Individually and in His Capacity as Administrator of the Estate of Lila Vanderpool and as Trustee of the Selwyn Vanderpool and Lila Vanderpool Family Irrevocable Living Trust, and Cornerstone Marketing, LLC, a West Virginia Limited Liability Company, Joseph W. Boswell, III, Manager, and Joseph W. Boswell, III, Individually, Plaintiffs Below, Petitioners,
v.
Cpl. B.M. HUNT and Greenbrier County Sheriff’s Department, Defendants Below, Respondents.

No. 17-0436

Supreme Court of Appeals of West Virginia.

Submitted: January 16, 2019
Filed: January 31, 2019

Barry L. Bruce, Esq., Barry L. Bruce and Associates, L.C., Lewisburg, West Virginia, Attorney for Petitioners

Wendy E. Greve, Esq., Oscar R. Molina, Esq., Pullin, Fowler, Flannigan, Brown & Poe, PLLC, Charleston, West Virginia, Attorneys for Respondents

HUTCHISON, Justice:

823 S.E.2d 528

The petitioners and plaintiffs below, Selwyn

823 S.E.2d 529

Vanderpool,¹ Joseph Boswell,² and Cornerstone Marketing, LLC, appeal the February 10, 2017, and April 10, 2017, orders of the Circuit Court of Greenbrier County granting the motion to dismiss filed by the respondents and defendants below, Corporal B.M. Hunt and the Greenbrier County Sheriff’s Department,³ and denying the petitioners’ "Motion for A Rehearing or New Hearing," respectively.⁴ The petitioners filed this action pursuant to the Maxwell Governmental Access to Financial Records Act, West Virginia Code §§ 31A-2A-1 to - 10 ("Act"), alleging that the respondents were negligent in obtaining and serving a subpoena on Branch Banking & Trust ("BB&T") without giving notice to them, which resulted in the wrongful disclosure of their confidential financial information.

In this appeal, the petitioners assert that the circuit court erred in finding that they have no cause of action against the respondents under the Act. While maintaining that the circuit court properly dismissed the claims against them, the respondents also set forth two cross-assignments of error,⁵ arguing that the circuit court erred in failing to find them immune from the petitioners’ claims pursuant to the West Virginia Governmental Tort Claims and Insurance Reform Act, West Virginia Code §§ 29A-12A-1 to -18, and asserting that Mr. Vanderpool’s claims fail as they did not survive his death.⁶ Having considered the parties’ briefs and oral arguments, the submitted appendix record, and pertinent authorities, we affirm the circuit court’s orders for the reasons set forth below.

I. Facts and Procedural Background

On November 5, 2015, the petitioners filed their complaint instituting this action. They alleged that Corporal Hunt of the Greenbrier County Sheriff’s Department initiated an elder abuse investigation in 2014 under the mistaken belief that Mr. Boswell was taking financial advantage of Mr. Vanderpool. According to the complaint, Mr. Vanderpool’s wife, Lila, granted him her power of attorney on September 13, 2013, while she was a resident of Brier Rehabilitation and Nursing Center.⁷ On or about January 7, 2014, Mr. Vanderpool deposited a check payable to his wife in the amount of $121,646.20 from Sun Life Financial into her checking account with BB&T in Lewisburg, West Virginia. On January 9, 2014, using his power of attorney, Mr. Vanderpool wrote a check from his wife’s checking account for the same amount as he had deposited two days earlier, making it payable to Cornerstone Marketing, LLC. That same day, the check was deposited by Mr. Boswell into Cornerstone’s checking account at the BB&T branch in Roncerverte,

823 S.E.2d 530

West Virginia.⁸

On January 31, 2014, the Selwyn Vanderpool and Lila Vanderpool Family Irrevocable Trust was formed, and a Vanderpool Trust Account was opened at City National Bank in Lewisburg. That same day, Mr. Boswell obtained a cashier’s check from BB&T in the amount of $93,500.00, which was the balance of the Vanderpool funds previously deposited into Cornerstone’s account. Mr. Boswell gave the cashier’s check to Mr. Vanderpool who deposited it into the Vanderpool Trust Account. According to the petitioners, BB&T stopped payment on the check on February 5, 2014, without prior notice and without providing any reason for doing so.⁹

It appears that sometime during the course of the above transactions, Corporal Hunt began his investigation and sought assistance from the Greenbrier County Prosecutor’s Office to obtain the banking records of Mr. Vanderpool, Mrs. Vanderpool, Mr. Boswell, Cornerstone Marketing, and Ridgeview Properties, LLC.¹⁰ Pursuant to Corporal Hunt’s request, an order was issued by Greenbrier County Circuit Judge J. C. Pomponio, Jr., directing the circuit clerk to issue a subpoena duces tecum to Corporal Hunt so he could obtain the BB&T bank records. Corporal Hunt then served the subpoena on BB&T and its agent, Danita Moore. No notice of the subpoena was given to any of the individuals or entities whose financial records were being sought.

The complaint alleged that by not providing notice to the petitioners that their bank records had been subpoenaed,¹¹ Corporal Hunt negligently violated the Act.¹² A motion to dismiss the complaint was filed by the respondents on October 11, 2016. The respondents asserted that there is no cause of action against a law enforcement officer of a political subdivision under the Act for negligently failing to provide notice to a "customer"¹³ whose financial records are being sought pursuant to a subpoena. In addition, respondents asserted immunity under the West Virginia Governmental Tort Claims and Insurance Reform Act.¹⁴

Following oral argument on the motions on December 15, 2016, the circuit court granted the respondents’ motion to dismiss.¹⁵ The order was entered on February 10, 2017. Subsequently, the petitioners filed a "Motion for a Rehearing or a New Hearing" that was denied by the order entered on April 10, 2017. This appeal followed.

II. Standard of Review

The petitioners appeal the circuit court’s order dismissing their complaint for failure to state a claim against the respondents upon which relief can be granted.¹⁶ We have held that " ‘[t]he 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.’

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Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)." Syl. Pt. 3, Chapman v. Kane Transfer Co., Inc. , 160 W.Va. 530, 236 S.E.2d 207 (1977). In other words, "[d]ismissal for failure to state a claim is proper ‘where it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’ " Murphy v. Smallridge , 196 W.Va. 35, 36, 468 S.E.2d 167, 168 (1996) (quoting Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59, 65 (1984) ). It is well established that "[a]ppellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo ." Syl. Pt. 2, State ex. rel McGraw v. Scott Runyan Pontiac-Buick, Inc. , 194 W.Va. 770, 461 S.E.2d 516 (1995).

The petitioners also appeal the circuit court’s "Order Denying Motion for Rehearing or New Hearing." The petitioners’ motion was filed pursuant to Rules 59(a) and (b) and 60(b) of the West Virginia Rules of Civil Procedure. However, Rule 59(a) does not apply in these circumstances. Addressing a similar motion filed in Malone v.Potomac Highlands Airport Auth. , 237 W.Va. 235, 238-39, 786 S.E.2d 594, 597-98 (2015), we explained:

[S]ubsection (a) of Rule 59 is plainly inapplicable as it provides for relief from judgments which have been entered as a result of trial: "A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action which there has been a trial by jury ... and (2) in an action tried without a jury ...." (emphasis added). Inasmuch as petitioner’s "Motion for Reconsideration and Rehearing" was filed within ten days of the circuit court’s order dismissing the action, in accord with our historical practice, the Court will treat this appeal as arising from the circuit court’s denial of a motion filed pursuant to Rule 59(e), which provides for the alteration or amendment of a judgment.

Accordingly, we review this matter as an appeal from a motion filed pursuant to Rule 59(e).

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.

Syl. Pt. 1, Wickland v. Am. Travellers Life Ins. Co. , 204 W.Va. 430, 513 S.E.2d 657 (1998). As set forth above, the underlying judgment was the granting of the respondents’ motion to dismiss to which a de novo standard of review is employed. With regard to determining the merits of Rule 60(b) motions, circuit courts are afforded broad discretion. As set forth in syllabus point five of Toler v. Shelton , 157 W.Va. 778, 204 S.E.2d 85 (1974),

A motion

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