James W. St. Clair, Esq.
W. Joseph Bronosky, Esq.
St. Clair & Levine Campbell, Woods, Bagley, Emerson,
Huntington, West Virginia McNeer & Herndon
Attorney for Appellants Huntington, West Virginia
Attorney for the Appellees
CHIEF JUSTICE MAYNARD delivered the Opinion of the Court.
1. 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 Ins.
Co., 204 W.Va. 430, 513 S.E.2d 657 (1998)
2. 'A circuit court's entry of summary judgment is reviewed de novo. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).' Syllabus point 1, McGraw v. St. Joseph's Hospital, 200 W.Va. 114, 488 S.E.2d 389 (1997). Syllabus Point 2, Wickland v. American Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).
3. When a party to an action files a Rule 59(e) motion to alter or amend judgment, the only errors which benefit from the extended appeal period are those which are raised in the motion. The issues not assigned as grounds supporting an alteration or amendment of judgment retain the original filing period.
4. The tort of breach of confidentiality in violation of a statute is governed by a one-year statute of limitations.
5. In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury. Syllabus Point 4, Gaither v. City Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997).
Maynard, Chief Justice:
The appellants, Barbara and Michael Thompson, allege the appellees,
Branches-Domestic Violence Shelter and two employees, Virginia Daniels and Dawn Boothe
(Branches), released or leaked confidential information regarding the Thompsons' personal
life in violation of W.Va. Code § 48-2C-15. The alleged leak took place during the
investigation of an underlying personal injury action. The Circuit Court of Cabell County,
West Virginia, granted summary judgment to Branches. We affirm.
This case originates from a personal injury which Barbara Thompson received
on October 7, 1994. At that time, both Barbara Thompson and Julia Good were employees
of Branches. Ms. Thompson was helping Ms. Good jump-start her car when Ms. Good's
foot slipped off the clutch, causing the car to lurch forward and pin Ms. Thompson's leg
between two cars. Ms. Thompson and her husband, Michael Thompson, sued Ms. Good's
insurer, Nationwide Insurance Company. Following discovery, the underlying case settled.
Meanwhile, the activity which gave rise to the present action took place.
On October 16, 1994, Mr. and Ms. Thompson became embroiled in a domestic
dispute. Ms. Thompson left home and became a client at Branches. The following day, Ms.
Thompson gave a statement to Deputy Sheriff Robert Adkins and filed a domestic violence
petition against her husband. The original of the written statement was given to Dawn
Boothe, a case worker at Branches. A warrant for wanton endangerment was issued against
Mr. Thompson. These charges were subsequently dropped.
During the pendency of the personal injury litigation, Nationwide's defense
counsel, R. Brandon Johnson, took depositions of both Mr. and Ms. Thompson. At that time,
the Thompsons were questioned regarding their personal lives. They stated that they
believed the personal information could have come from Ms. Thompson's client file at
Branches. On October 3, 1995, counsel for the Thompsons sent a letter to the Board of
Directors at Branches requesting an investigation. The President of the Board responded by
stating that an investigation would be difficult to conduct since the request was not specific.
Thereafter, on November 8, 1995, Mr. Thompson telephoned Attorney Johnson to inquire
regarding the source of the personal information. Mr. Thompson alleged that Attorney
Johnson had obtained confidential records from Branches and advised that a possible lawsuit
for breach of confidentiality was being considered.
The accident case settled in April 1996. On June 7, 1996, Mr. Thompson filed
a West Virginia State Bar disciplinary complaint against Attorney Johnson, alleging that the
attorney unethically acquired information from Branches. In the complaint, Mr. Thompson
stated that [t]his matter came to me and my wife's attention at my wife's first of several
depositions regarding an auto accident which occurred on Oct. 2, 1994, the first deposition
was held on Sept. 13, 1995. The disciplinary complaint continued by stating, I further
informed R. Brandon Johnson that I knew how and where he obtained this information and
that a possible suit for Breach of Confidentiality was being considered against Branches
Domestic Violence Shelter and that he would be part of it. The Lawyer Disciplinary Board
found no merit in the allegation and dismissed the complaint.
The Thompsons then filed a lawsuit against Branches on January 27, 1997,
alleging release of confidential information in violation of W.Va. Code § 48-2C-15 and
slander. On February 7, 1997, the complaint was amended to reflect the correct name of the
shelter. Both Mr. and Ms. Thompson testified during depositions that they discovered the
disclosures on September 13, 1995. Following the deposition testimony, Branches filed a
motion for summary judgment claiming there exists no genuine issue as to any material fact
and the defendants are entitled to summary judgment as a matter of law. Branches argued
the action was barred by the statute of limitations. The Thompsons responded by conceding
that they suspected employees of Branches had released certain information concerning
Barbara Thompson's case when their deposition was taken on September 13, 1995.
However, they went on to state that they did not know information had been released until
August 10, 1996, the date they received a letter from disciplinary counsel authored by
Attorney Johnson.See footnote 1
The circuit court denied Branches' motion for summary judgment,
finding that a one-year statute of limitations applies but that the Thompsons did not know
nor could they have known of the elements in their complaint until plaintiff Michael
Thompson received the letter dated August 8, 1996 from the office of disciplinary counsel.See footnote 2
Branches filed a motion for reconsideration and summary judgment alleging
the action was barred by the statute of limitations. In their memorandum to the court,
Branches summarized by stating, Thus, by plaintiff Michael Thompson's own handwriting
he 'knew' the particulars of his allegations at least by November 7 or 8, 1995 and was
already threatening to sue. The circuit court granted summary judgment to Branches by
The evidence is sufficient to show that the Plaintiffs knew, or should have known, not only of their injury but who caused it no later than November 8, 1995. The letter of complaint to the Disciplinary Board of the State Bar makes this clear, wherein the Plaintiff suggests that a possible suit for breach of confidentiality was being considered against Branches at that time.
The Thompsons then filed a motion to reconsider, claiming the action is governed by a two- year statute of limitations and asking that Michael Thompson be dismissed as a party but that Barbara Thompson remain in the action. The court denied the motion and dismissed the action with prejudice. It is from this order the Thompsons appeal.
On appeal, the Thompsons allege that the circuit court erred by deciding a
disputed issue of fact and by failing to find the fraudulent concealment doctrine tolled the
statute of limitations. The Thompsons also contend the circuit court erred by determining
that Barbara Thompson had the same knowledge as her husband regarding the accrual date
of the action. Finally, the Thompsons argue that this cause of action is governed by a two
year statute of limitations. Branches argues the circuit court properly granted summary
judgment, determining the action is barred by the statute of limitations. We agree.
This case is here on appeal from the circuit court's denial of the Thompsons'
motion to alter or amend judgment. West Virginia Rule of Civil Procedure 59(e) states that
[a]ny motion to alter or amend the judgment shall be filed not later than 10 days after entry
of the judgment. Regarding Rule 59(e) motions, this Court previously said:
The practical effect of such a motion is to enlarge the time within which an appeal must be filed as to those matters which are the subject of the motion. . . . In other words, only those errors raised in the motion to alter or amend judgment benefit from an extended appeal period; those issues not assigned as grounds supporting an alteration or amendment of the judgment retain the original filing period applicable to appeals in general.
While such motions are readily available to parties, appeals to this Court are more frequently premised upon the errors attending theunderlying judgment as opposed to the propriety of a denial of a Rule 59(e) motion. . . . Thus, when this Court has been asked to decide an appeal arising from the denial of a motion to alter or amend a judgment, we typically have looked beyond the motion to the nature of the underlying judgment from which the motion has been made, and from which the appeal ultimately is taken, to find the appropriate standard of review.
Wickland v. American Travellers Life Ins. Co., 204 W.Va. 430, 434-35, 513 S.E.2d 657, 661- 662 (1998). (Citations omitted). This discussion was summarized in Syllabus Point 1 of Wickland, which reads as follows: 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.
With this in mind, we reiterate that '[a] circuit court's entry of summary
judgment is reviewed de novo. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755
(1994).' Syllabus Point 1, McGraw v. St. Joseph's Hospital, 200 W.Va. 114, 488 S.E.2d 389
(1997). Syllabus Point 2, Wickland v. American Travellers Life Ins. Co., 204 W.Va. 430,
513 S.E.2d 657 (1998). Furthermore, '[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. Syllabus Point 3,
Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133
S.E.2d 770 (1963).' Syllabus Point 1, Andrick v. Town of Buckhannon,187 W.Va. 706, 421
S.E.2d 247 (1992). Syllabus Point 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755
Summary judgment in favor of Branches was granted on December 18, 1998.
The Thompsons filed their motion to reconsider on December 28, 1998. The circuit court
denied the motion to alter or amend judgment on February 5, 1999. The Thompsons then
filed their petition for appeal on June 3, 1999.See footnote 3
We reiterate that the only errors which
benefit from the extended appeal period are those which are raised in the Rule 59(e) motion
to alter or amend judgment. The issues not assigned as grounds supporting an alteration or
amendment of judgment retain the original filing period. Accordingly, we may only consider
the errors raised by the Thompsons in their Rule 59(e) motion as their petition for appeal was
filed more than four months after summary judgment was granted.
The Thompsons contend their claim for breach of confidentiality in violation
of a statute, W.Va. Code § 48-2C-15 (1994),See footnote 4
is controlled by a two-year statute of
limitations. However, at the time the Thompsons responded to the appellees' motion for
summary judgment below, they stated, There is no question that Alan vs. Smith [sic], 368
S.E.2d 924 (WV 1988) [,] requires an action for breach of confidentiality and must be filed
within one year from date that the plaintiff knew or should have known with the exercise of
reasonable diligence, of the identity of the person or persons believed to be responsible.
They believed at that time the question to be addressed was when they knew or with
reasonable diligence should have known that Branches released the information. After
Branches' motion for summary judgment was granted, the Thompsons filed a motion to
reconsider raising the argument for the first time that a two-year statute of limitations applies.
On appeal, the Thompsons argue the breach of confidentiality should be viewed as a personal
injury and governed by a two-year statute of limitations.
W.Va. Code § 55-2-12 (1959) states:
Every personal action for which no limitation is otherwise prescribed shall be brought: (a) Within two years next after the right to bring the same shall have accrued, if it be for damage to property; (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries; and © within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have been brought at common law by or against his personal representative.
This Court recognized in Slack v. Kanawha County Housing, 188 W.Va. 144, 423 S.E.2d 547 (1992), that this provision must be read in pari materia with W.Va. Code § 55-7-8a(a) (1959), which states:
(a) In addition to the causes of action which survive at common law, causes of action for injuries to property, real or personal, or injuries to the person and not resulting in death, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled to recover or the death of the person liable.
Commenting on W.Va. Code § 55-7-8a, this Court remarked:
By isolating causes of action for fraud and deceit and combining
them with personal actions which will survive under W.Va. Code, 55-7-
8a(a), it is apparent that the Legislature intended to exclude from
statutory survivability under subsection (a) other personal tort actions
such as defamation, false arrest and imprisonment, and malicious
prosecution. These latter personal actions, lacking statutory
survivability and possessing no common law survivability, take a one-
year statute of limitations under W.Va. Code, 55-2-12(c).
Snodgrass v. Sisson's Mobile Home Sales, Inc., 161 W.Va. 588, 594, 244 S.E.2d 321, 325 (1978). These pertinent Code sections were later summarized in the following manner: [U]nless a tort expressly falls within the classification of property damage, personal injury, or fraud or deceit, a one-year statute of limitations governs rather than a two-year period. Wilt v. State Auto. Mut. Ins. Co., 203 W.Va. 165, 170, 506 S.E.2d 608, 613 (1998). We note that invasion of privacy is a similar tort and is governed by a one-year statute of limitation. Slack, 188 W.Va. at 148, 423 S.E.2d at 551.
We are not dealing with an entirely new issue; this Court previously recognized
the tort of breach of confidentiality in violation of a statute. In Allen v. Smith, 179 W.Va.
360, 368 S.E.2d 924 (1988), a patient brought an action against her psychiatrist for releasing
confidential information to her husband's attorney in a divorce proceeding, a violation of
W.Va. Code § 27-3-1 (1977). This Court found that sufficient facts were alleged to support
submission of the case to a jury; however, this Court also said that the circuit court properly
ruled the patient's cause of action was barred by a one-year statute of limitations. The case
sub judice alleges breach of confidentiality by a domestic violence shelter in violation of a
statute. This tort is similarly governed by a one-year statute of limitations. We, therefore,
hold that the tort of breach of confidentiality in violation of a statute is governed by a one-
year statute of limitations.
On October 3, 1995, the Thompsons' attorney wrote a letter to Branches' board
members stating that during Barbara Thompson's deposition regarding the accident,
Nationwide's attorney questioned her about her personal life and her domestic situation. The
Thompsons' attorney further maintained that:
The questions that were posed obviously came from confidential information which was given to your organization by Mrs. Thompson. The attorney for the insurance company knew about matters that are not in public records but are matters which are contained in your files. These matters were released either by or with the consent of your director, Virginia Daniels, and/or your employee Julia Good.
The allegations against Branches did not end with this letter.
On June 7, 1996, Mr. Thompson filed a disciplinary complaint in his own
handwriting with the Lawyer Disciplinary Board. In the disciplinary complaint, Mr.
Thompson acknowledged that he and his wife were aware that confidential information had
been leaked on September 13, 1995. The complaint specifically reads in part as follows:
I would like this board to consider an investigation into R. Brandon Johnson's questioning my wife Barbara regarding her highly personal and private life. Our private life had absolutely nothing to do with the fact that Julia Goode's neglect and ignorance injured my wife.
This matter came to me and my wife's attention at my wife's
first of several depositions regarding an auto accident which occurred
on Oct. 7, 1994, the first deposition was held on Sept. 13, 1995.
In West Virginia, the law with regard to when the statute of limitations begins
to run is clearly stated in Syllabus Point 4 of Gaither v. City Hosp., Inc., 199 W.Va. 706, 487
S.E.2d 901 (1997):
In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury.
Mr. Thompson specifically states that the matter came to both his and his wife's attention as early as September 13, 1995. By their own admission, the Thompsons acknowledge they were aware of the alleged leak by November 8, 1995. Not only does Mr. Thompson state they were aware of a leak, he also names the people involved. To later argue they did not know about the leak until August 10, 1996 did not convince the circuit court. After studying the record and the dates involved, neither are we convinced that Michael Thompson was aware of what had transpired but that Barbara Thompson had no knowledge of the alleged leak. She did not attempt to distance herself from her husband's statements until after summary judgment was granted.See footnote 5 5
The Thompsons filed their lawsuit more than one year after they believed a
leak of confidential information occurred. Consequently, the lawsuit was filed outside of the
statute of limitations. For this reason, we affirm the Circuit Court of Cabell County.