STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

John T. Lemon and Pamela Lemon, FILED 

Plaintiffs Below, Petitioners June 28, 2013 

RORY L. PERRY II, CLERK 

vs) No. 12-0990 (Kanawha County 12-C-482) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Dennis Stilwell Jr.,
 

Defendant Below, Respondent
 

MEMORANDUM DECISION 

Petitioners John T. Lemon and Pamela Lemon, by counsel David White, appeal the July 

20, 2012 order of the Circuit Court of Kanawha County, which granted respondent’s motion to 

dismiss. Respondent Dennis Stilwell Jr., by counsel Andrew Workman, has filed a response. 

As more fully explained herein, the Court is of the opinion that the circuit court erred in 

granting respondent’s motion to dismiss. Because we find that the circuit court erred by failing to 

conduct a proper analysis before granting the motion to dismiss and that this case must be 

remanded for that purpose, this case satisfies the “limited circumstances” requirement of Rule 

21(d) and it is appropriate for the Court to issue a memorandum decision rather than an opinion. 

On March 15, 2012, petitioners filed a complaint alleging that on August 25, 2008, 

respondent negligently and carelessly ran him off the road causing serious injury and that 

respondent failed to stop and render aid. Petitioners also alleged that, despite their best efforts 

and subsequent investigation, they were unable to identify respondent until June of 2011. On 

April 3, 2012, respondent filed a motion to dismiss the complaint pursuant to West Virginia 

Code § 55-2-12. Following a hearing on respondent’s motion to dismiss, the circuit court granted 

respondent’s motion. The circuit court, applying the discovery rule, found that petitioners’ twoyear statute of limitations began to run on August 25, 2008, the date of the accident and a 

reasonably prudent person should have known the identity of the respondent and the elements of 

his cause of action before June of 2011. 

“‘Appellate review of a circuit court’s order granting a motion to dismiss a complaint is 

de novo.’ Syllabus point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. 

Va. 770, 461 S.E.2d 516 (1995).” Syl. Pt. 1, Albright v. White, 202 W. Va. 292, 503 S.E.2d 860 

(1998). In Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009), this Court set forth the 

appropriate analysis circuit courts should use to determine if an action is time-barred, as follows: 

[T]he 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 

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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. 

Syl. Pt. 5, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009). For purposes of a motion to 

dismiss, the complaint is construed in the light most favorable to plaintiff, and its allegations are 

to be taken as true. John W. Lodge Distributing Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 605, 

245 S.E.2d 157, 158 (1978). 

In reviewing the language of the complaint and in consideration of the applicable 

standard of review, the Court finds that the circuit court failed to apply the five-step analysis set 

forth in Dunn. Therefore, we reverse the circuit court’s July 20, 2012 order granting respondent’s 

motion to dismiss and remand with instructions for the circuit court to consider the factors set 

forth in Dunn. 

Reversed and Remanded. 

ISSUED: June 28, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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