Mark D. Moreland
South Charleston, West Virginia
Attorneys for the Appellants
John R. Hoblitzell
W. Michael Moore
Kay, Casto, Chaney, Love & Wise
Charleston, West Virginia
Attorneys for the Appellees
Justice Brotherton delivered the Opinion of the Court.
In defamation actions, the period of the statute of limitations begins to run when the fact of the defamation becomes known, or reasonably should have become known, to the plaintiff.
This is an appeal by Marilyn Padon and Scott Padon from
an order of the Circuit Court of Kanawha County dismissing Terry
Boswell as a defendant in a defamation action instituted by the
appellants. The court dismissed Terry Boswell on the ground that
the appellants' action was not filed within the period provided by
the West Virginia statute of limitations governing such actions.
On appeal, the appellants claim that the court improperly
calculated when the period of the statute of limitations began to
run, and that the court consequently erred in dismissing Terry
Boswell as a party defendant. After reviewing the questions
presented, this Court agrees with the appellants' assertions and
reverses the decision of the Circuit Court of Kanawha County.
In January, 1986, the appellant, Marilyn Padon, was
notified by Sears, Roebuck & Co. that a check which she had made to
Sears in payment of an account or accounts had been returned for
insufficient funds. Ms. Padon, after learning that the check had
been returned, went to Sears and replaced the bad check with a
replacement check which was covered by sufficient funds.
In spite of the fact that the appellant had covered the deficiency represented by the insufficient funds check, Sears, on or about January 31, 1986, through its agent, Terry Boswell, filed a criminal bad-check complaint in the Magistrate Court of Kanawha
County. As a result, the magistrate issued a felony warrant for
Marilyn Padon's arrest.
Marilyn Padon, did not learn of the arrest warrant until
February 26, 1988. On that day, when she stopped at the pick-up
window at Sears, she was accosted and arrested by a Sears employee,
who called the police. The police subsequently took Ms. Padon to
the Charleston City Police Department at the request of Sears. She
was detained at the police department for approximately an hour and
It was subsequently learned that the felony warrant had
been based on a complaint without factual basis, and on
February 23, 1989, the appellants, Marilyn Padon and Scott Padon,
her husband, filed a complaint in the Circuit Court of Kanawha
County which charged Sears and others with false arrest, false
imprisonment, intentional infliction of emotional distress,
slander, and defamation. The complaint was also later amended to
incorporate the additional count of malicious prosecution. In the
civil complaint, Terry Boswell, the individual who had executed the
criminal complaint leading to the issuance of the felony warrant,
was charged with defamation. She was later also charged with
Following the filing of the civil complaint, Terry Boswell moved to dismiss based on the ground that the civil action
had not been instituted within one year next after the alleged
tortious conduct on January 31, 1986.
The issue raised by Terry Boswell's motion was briefed by
the parties and argued before the Circuit Court of Kanawha County.
On July 19, 1990, the court granted the motion of Terry Boswell to
dismiss and ordered that Boswell be dismissed from the action.
In the present proceeding, the appellants claim that the
circuit court erred in dismissing Terry Boswell as a party
West Virginia Code, 55-2-12, generally establishes
limitations periods from the bringing of civil actions in West
Virginia. In the section relevant to the present action, it
Every personal action for which no limitation is otherwise prescribed shall be brought:
(c) within one year next after the right to
bring the same shall have accrued if it be for
any matter of such nature that, in case a
party die, it could not have been brought at
common law by or against his personal
The appellants properly argue in the present case that this statutory language establishes a one-year limitations period
for the bringing of defamation actions such as the action which
they brought against Terry Boswell. See Rodgers v. Corporation of
Harpers Ferry, ___ W.Va. ___, 371 S.E.2d 358 (1988), and Snodgrass
v. Sisson's Mobile Home Sales, Inc., 161 W.Va. 588, 244 S.E.2d 321
The real question in this case involves the question of
when the one-year limitation period begins to run. Does it begin
to run when the defamation was committed by Terry Boswell, or does
it begin when the appellant, Marilyn Padon, learned that defamation
In a number of recent cases this Court has recognized that the limitation periods established by the statutes of limitation are fixed by the legislature, and that the Court has no power to change them. However, the time in which an action is said to have accrued is a matter subject to judicial interpretation, and the Court has recognized the so-called "discovery rule," which provides that in certain types of tort actions the period of the statute of limitations does not begin to run until the fact of the tort has been discovered, or reasonably should have been discovered. For example, in Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965), the Court adopted a "discovery rule" for cases of medical malpractice. In that case, the Court indicated that the application of a rule under which the statute of limitations would run although the plaintiff "did not know and had
no reasonable means of knowing of the wrong until after the
expiration of the period of limitation" was unrealistic, cruelly
harsh, and was a rule which placed "a burden upon the wronged
plaintiff which he or she would rarely, if ever, be able to carry."
149 W.Va. 787, 144 S.E.2d at 159.
The Court has also applied the "discovery rule" in legal
malpractice cases. See, e.g., Family Savings & Loan, Inc. v.
Ciccarello, 157 W.Va. 983, 207 S.E.2d 157 (1974). Even more
recently, in Hickman v. Grover, ___ W.Va. ___, 358 S.E.2d 810
(1987), the Court indicated that the rule applied in products
liability cases. In Hickman v. Grover, the Court pointed out that
"justice is not done when an injured person loses his right to sue
before he discovers if he was injured or who to sue." Id. at ___,
358 S.E.2d at 813.
A review of the law in other jurisdictions indicates that
many adhere to the discovery rule in defamation cases such as the
one presently before the Court. See Manguso v. Oceanside Unified
School District, 152 Cal.Rptr. 27, 88 Cal.App.3d 725 (1979); Tom
Olesker's Exciting World of Fashion, Inc. v. Dunn & Bradstreet,
Inc., 61 Ill.2d 129, 334 N.E.2d 160 (1975); Burks v. Rushmore, 534
N.E.2d 1101 (Ind. 1989); Hoke v. Paul, 65 Hawaii 478, 653 P.2d 1155
(1982); Armstrong v. Morgan, 545 S.W.2d 45 (Tex.Civ.App. 1976);
Allen v. Ortez, 802 P.2d 1307 (Utah 1990); McKown v. Dunn &
Bradstreet, Inc., 744 F.Supp. 1046 (D.Kan. 1990).
The evidence in the present case shows that the appellant, Marilyn Padon, had absolutely no notice that a false complaint had been filed with a magistrate relating to a felony charge until her arrest on or about February 26, 1988. Further, given the fact that she had covered the bad check, she did not have reason to believe that such a complaint would issue.
In this Court's view, the filing of the false written
criminal complaint with no notice to the appellant, Marilyn Padon,
did not constitute a publication which was readily apparent.
Additionally, there were no circumstances which suggest that she
reasonably should have known of it.
Given the circumstances of the case, and given the fact
that a large number of jurisdictions have adopted the discovery
rule, this Court concludes that it is appropriate that the rule be
adopted in cases such as the one presently before the Court.
Accordingly, the Court holds that, in defamation actions the period
of the statute of limitations begins to run when the fact of the
defamation becomes known, or reasonably should have become known,
to the plaintiff.
In applying this rule to the case presently before the Court, the Court finds that the limitations period involved in the
appellants' case against Terry Boswell began to run on February 26,
1988, when the appellant, Marilyn Padon, was arrested, the time at
which she first learned of the defamation. Given the fact that the
limitations began to run at that time, the appellants' action was
timely filed within the appropriate limitations period.
For the reasons stated, the judgment of the Circuit Court
of Kanawha County is reversed, and this case is remanded with
directions that the circuit court restore Terry Boswell as a party
defendant in Civil Action No. 89-C-714.