1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Shirley Grimmett,

Plaintiff Below, Petitioner,

vs.) No. 19-0061 (Logan County No. 14-C-265)

Wiseman Excavating, Inc.,

Defendant Below, Respondent

Petitioner Shirley Grimmett, by her counsel D. Adrian Hoosier, II, appeals the December 

20, 2018, order of the Circuit Court of Logan County, granting summary judgment in favor of 

respondent. The circuit court found that petitioner’s April 2017 amended complaint naming the 

respondent, Wiseman Excavating, Inc. (“Wiseman”), asserted causes of action that arose in July 

2013 and were barred by the statute of limitation. Respondent Wiseman, by its counsel Brent K. 

Kesner, Ernest G. Hentschel, II, and Mark L. Garren, filed a response in support of the circuit 

court’s order. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, 

a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the 

Rules of Appellate Procedure.

On November 11, 2010, a forest fire ignited an area of coal and other debris left behind by 

a 1950s-era surface mine operation. Petitioner Shirley Grimmett lives in her home next to, and 

downslope from, the area of burning coal debris. The record suggests petitioner lives near a family 

member, Mr. Walter Grimmett.

In response to the coal debris fire, the West Virginia Department of Environmental 

Protection (“DEP”) sought to hire contractors to excavate the burning area to extinguish the fire, 

regrade the land, place a soil cap over the affected area to prevent future fires, and plant new 

vegetation in the disturbed areas. After soliciting bids, DEP selected respondent Wiseman to 

perform the grading and remediation work.

The record suggests that DEP attempted to negotiate a right to enter the Grimmett family 

properties to reach the coal debris fire. DEP’s efforts were unsuccessful. Thus, DEP sent a letter 

to the Grimmett family in January of 2011 advising them that DEP would exercise its statutory 

rights to enter their lands. Thereafter, between February 13, 2011, and March 8, 2011, and on 

behalf of DEP, Wiseman performed work on the coal debris fire. DEP’s public records of the 

project clearly indicate that Wiseman performed the remediation work around petitioner’s 

property.

FILED

July 30, 2020 

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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On July 22, 2013, over two years after Wiseman completed its work, a landslide began

upslope of petitioner’s home and flowed onto petitioner’s land. While the record is unclear, we 

presume the landslide occurred where respondent Wiseman had performed grading to address the 

coal debris fire on behalf of DEP.

That same day, DEP received a report of the landslide from Mr. Grimmett and conducted

an emergency investigation. The investigator’s report noted that Mr. Grimmett’s “and several of 

his family member’s homes” are at the base of a steep mountainside. The landslide occurred, and 

“mud generated by the slide ran around the perimeter of his sister-in-law’s home” that is adjacent 

to Mr. Grimmett’s home. We discern from the record that the DEP inspector was discussing 

damage to petitioner’s home. The record indicates that DEP accepted responsibility for the slide. 

Thereafter, DEP spent several months and approximately $500,000 remediating the landslide and 

removing debris near petitioner’s home.

Fourteen months after the landslide, on September 23, 2014, petitioner’s lawyer (the 

aforementioned D. Adrian Hoosier, II) filed suit against EQT Corporation d/b/a Equitable Gas 

Company (“EQT”). The original complaint seems to indicate that petitioner lived downslope from 

a pipeline owned by EQT or one of its subsidiaries. The complaint asserted no claims against either 

DEP or Wiseman. The complaint drafted by petitioner’s lawyer contained only generalized 

allegations that petitioner had suffered property damage, physical and emotional harm, and loss of 

use and enjoyment of her land and home as a result of non-specified “actions” of EQT. The 

complaint made no mention of the 2010 coal debris fire, the 2011 grading and remediation work,

or the 2013 landslide.1

Upon being served with the original complaint, EQT submitted a Freedom of Information 

Act request to DEP seeking records relating, among other things, to the remediation of the coal 

debris fire. These records clearly showed that Wiseman had been contracted to perform the 

remediation work. After receiving those records, EQT filed a third-party complaint against DEP 

(but not Wiseman) on January 9, 2015. EQT alleged that DEP had, through activities unrelated to 

EQT’s operation of a pipeline, “caused rock, dirt and other materials to slip or slide from a hillside 

onto [petitioner’s] property and homestead.” Petitioner’s lawyer did not seek to amend petitioner’s 

original complaint to assert claims against DEP or against respondent Wiseman.

DEP moved to dismiss EQT’s third-party complaint and argued that, as a state agency, it 

was constitutionally immune from suit. The circuit court denied DEP’s motion in October of 2015, 

and thereafter DEP answered EQT’s third-party complaint. 

For several months, DEP proceeded to defend against EQT’s third-party claims. Then, on 

February 1, 2016, DEP sent a letter to Wiseman. The letter referred to the remediation contract 

between DEP and Wiseman, and it noted that the contract required Wiseman to indemnify and 

hold harmless DEP in connection with EQT’s third-party complaint. Wiseman’s president later 

1 To further confuse matters, petitioner’s lawyer filed the original complaint in Logan 

County asserting venue was proper in Logan County because petitioner lived in Logan County.

Petitioner’s lawyer subsequently filed a motion for a change of venue, complaining that the 

petitioner actually lived in Mingo County. The circuit court denied the motion.
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testified that this February 2016 letter from DEP was the first notice of any potential claim that 

Wiseman had received arising out of the 2011 project.

Wiseman promptly notified its insurer, which then retained counsel to simultaneously 

defend both DEP and Wiseman. That counsel renewed DEP’s motion to dismiss EQT’s third-party 

complaint on the ground that DEP was a constitutionally immune state agency. On April 13, 2017, 

the circuit court granted DEP’s motion to dismiss.

On April 26, 2017, thirteen days after the circuit court had found DEP was constitutionally 

immune and dismissed DEP as a third-party defendant, petitioner’s lawyer filed a motion to amend 

petitioner’s original, September 2014 complaint. The proposed amended complaint, for the first 

time, asserted claims against both DEP and Wiseman for damages arising from the 2013 landslide.

Petitioner’s lawyer contended in the motion to amend that he had “determined that current thirdparty defendant DEP is . . . liable to the [petitioner].” Petitioner’s lawyer also stated that he had 

“recently discovered” that DEP had “contracted with Wiseman to complete a project that caused 

harm to the plaintiff’s home.”

At a hearing held six days after filing the motion to amend, petitioner’s lawyer announced 

to the circuit court he was abandoning any claims against DEP. Thereafter, the circuit court granted 

petitioner’s motion to amend the complaint to add claims against Wiseman. The amended 

complaint alleged negligence in Count 1; nuisance in Counts 2, 3, and 4; trespassing in Count 5; 

gross negligence in Count 6; infliction of emotional distress in Counts 7 and 8; and a punitive 

damage claim in Count 9.

On July 26, 2017, Wiseman moved to dismiss petitioner’s amended complaint. Wiseman 

argued that the relevant statutory limitation periods in West Virginia Code § 55-2-12 barred all 

nine of petitioner’s claims.2 At a hearing, the circuit court announced its intent to dismiss the three 

nuisance counts in petitioner’s amended complaint.3 The circuit court found West Virginia Code 

§ 55-2-12 required petitioner to file her nuisance claims within one year, yet she waited fourteen 

months after the 2013 landslide to file her original complaint. While the nuisance claims were 

barred, the circuit court permitted the parties to conduct discovery to determine if petitioner’s 

lawyer could establish some equitable exception to the statute of limitations for petitioner’s other

2 W. Va. Code § 55-2-12 provides the following limitation periods:

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 (c) 

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.

3 The circuit court entered an order on January 24, 2018, which dismissed the nuisance 

claims contained in Counts 2, 3, and 4 of petitioner’s amended complaint with prejudice. Petitioner 

does not appeal this order.
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claims, see Dunn v. Rockwell, 225 W. Va. 43, 689 S.E.2d 255 (2009) (discussing various equitable 

doctrines that toll a statute of limitation), or could establish that the amended complaint avoided 

the statute of limitations because it “related back” to the original complaint under Rule 15(c) of 

the West Virginia Rules of Civil Procedure.

After the parties completed discovery, respondent Wiseman filed a motion for summary 

judgment. Wiseman argued that the six remaining counts in petitioner’s amended complaint were 

barred by the two-year statute of limitation in West Virginia Code § 55-2-12. In an order dated 

December 20, 2018, the circuit court granted Wiseman’s motion for summary judgment and 

dismissed petitioner’s remaining claims.

Petitioner now appeals the circuit court’s summary judgment order.

On appeal, “[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). Pursuant to Rule 56(c) of the West 

Virginia Rules of Civil Procedure, summary judgment should be awarded “if the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material fact and that the moving party is entitled to 

a judgment as a matter of law.” It is well established that “[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.” Syl. Pt. 3, Aetna Cas. & 

Sur. Co. v. Fed. Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). “The circuit court’s 

function at the summary judgment stage is not to weigh the evidence and determine the truth of 

the matter, but is to determine whether there is a genuine issue for trial.” Syl. Pt. 3, Painter v. 

Peavy, 192 W. Va. at 190, 451 S.E.2d at 756.

As this Court has previously noted, “the party opposing summary judgment must satisfy 

the burden of proof by offering more than a mere ‘scintilla of evidence’ and must produce evidence 

sufficient for a reasonable jury to find in a nonmoving party’s favor.” Williams v. Precision Coil, 

Inc., 194 W. Va. 52, 60, 459 S.E.2d 329, 337 (1995).

We begin by noting that the appellate brief by petitioner’s lawyer, Adrian Hoosier, fails to 

meet the requirements of the West Virginia Rules of Appellate Procedure. Specifically, Rule 

10(c)(3) requires a lawyer to open the petitioner’s brief with “a list of the assignments of error that 

are presented for review.” More importantly, Rule 10(c)(7) requires a lawyer to present an 

argument in the brief “under headings that correspond with the assignments of error.”

The petitioner’s brief filed by Mr. Hoosier fails to comply with Rule 10(c)(7). The brief’s 

table of contents and its opening list two assignments of error.

4 A review of the brief shows a

4 Petitioner’s assignments of error are neither models of appellate advocacy nor 

grammatical clarity. The two assignments are, verbatim:

1. The Hon. Judge Eric O’Briant, Circuit Court Judge, Logan County, West 

Virginia erred by granting summary judgment, in favor of the Defendant, Wiseman 

Excavating, Inc. (“Wiseman” or “Defendant” herein after) based on notice per the 
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proper heading for the first assignment at the beginning of an argument section on page four. 

However, the brief’s table of contents notes that the argument for the second assignment of error 

begins on page five. Having scoured the twenty-one-page brief filed by petitioner’s lawyer, we 

cannot find any heading for the second assignment. Moreover, we can find no argument 

corresponding with the assignment anywhere in the brief. Accordingly, due to Mr. Hoosier’s 

failure to comport with this Court’s rules, we refuse to address the second assignment of error 

asserted in the brief’s table of contents and opening.

Petitioner’s first (and now, only) assignment of error is difficult to decipher, but appears to 

assert that the circuit court erred in granting summary judgment on statute of limitation grounds. 

Petitioner’s overall argument is that the circuit court properly entered several orders that initially 

allowed petitioner to proceed on her claims against Wiseman, but then the circuit court erred when 

it reversed course and dismissed those same claims.

To begin, petitioner’s lawyer claims he had no idea that respondent Wiseman was a 

potential party in this case until late March of 2017. Petitioner’s lawyer contends that, at a 

deposition, he “discovered” for the first time that respondent Wiseman performed work for DEP.

Petitioner’s lawyer learned, while talking to DEP’s counsel, that DEP’s counsel had been retained 

by Wiseman’s insurer. This “discovery” by petitioner’s lawyer prompted him, for the first time, to 

amend the original complaint and seek to add claims against DEP and Wiseman to the action. Mr. 

Hoosier appears to contend that his lack of knowledge about Wiseman, and his failure to conduct 

a reasonable investigation regarding the landslide, are sufficient to toll the statute of limitation.

The record, however, indisputably establishes that the petitioner’s lawyer is basing his 

claims against Wiseman upon the July 22, 2013, landslide. The record also indisputably shows 

that petitioner’s lawyer did not attempt to assert any claims against Wiseman until April of 2017, 

three years and nine months after the landslide. On this record, Wiseman properly asserted the 

two-year statute of limitation as an affirmative defense against petitioner’s claims.

In analyzing a statute of limitation defense, this Court has held that the following five steps 

should be taken by a trial court weighing whether a cause of action is time-barred:

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 

statute of limitations after previously entering multiple Orders allowing Petitioners 

to proceed on their claims against Wiseman.

2. The Hon. Judge Eric O’Briant, Circuit Court Judge, Logan County, West 

Virginia erred by granting summary judgment, in violation of the doctrine of res 

judicata.
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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. at 46, 689 S.E.2d at 258.

We now apply the five-step Dunn analysis. First, we find the circuit court correctly 

identified the statute of limitation applicable to petitioner’s claims as the two-year period set forth 

in West Virginia Code § 55-2-12, and petitioner does not dispute this.

Second, it is undisputed that the landslide occurred, and all of petitioner’s damages 

occurred, on July 22, 2013. Hence, petitioner’s cause of action accrued on July 22, 2013, and 

petitioner makes no contrary claim.

Third, petitioner herself knew of the landslide and her damages on that date, triggering her 

– or her lawyer’s – duty to investigate to ascertain what parties caused the landslide. DEP gave 

petitioner notice in early 2011 that it was entering her property and neighboring properties to grade 

the land above petitioner’s house to remediate the coal-debris fire. On behalf of DEP, Wiseman 

actually performed the grading work. After the July 2013 landslide, DEP promptly responded, 

investigated, admitted responsibility for the slide, and again entered petitioner’s land to remediate 

the landslide. Any reasonable person knew or should have known DEP was, in some part, 

potentially responsible for the landslide, and could have investigated what contractors DEP relied 

upon. EQT demonstrated the ease with which the information could be obtained. In other words, 

on this record, petitioner’s lawyer has failed to offer any reason why petitioner should be entitled 

to the benefit of the discovery rule.

Fourth, Dunn provides that if a plaintiff is not entitled to rely upon the discovery rule, then 

the plaintiff must show the defendant fraudulently concealed facts that prevented the plaintiff from 

discovering or pursuing a potential cause of action. Petitioner does not allege, and has not shown, 

any fraud by Wiseman that concealed facts which precluded petitioner’s lawyer from discovering 

or pursuing a cause of action against Wiseman. Instead, the record shows that EQT promptly filed 

a Freedom of Information Act request with DEP, and EQT was able to timely discover that DEP 

and Wiseman were potentially at fault for petitioner’s losses. Petitioner’s lawyer failed to follow 

EQT’s lead, to the detriment of petitioner.

The argument of petitioner’s lawyer hinges on the fifth factor in the Dunn analysis: that 

“the statute of limitation period was arrested by some other tolling doctrine.” Syl. Pt. 5, Dunn, 225 

W.Va. at 46, 689 S.E.2d at 258. Petitioner contends that Rule 15(c)(3) of the West Virginia Rules 

of Civil Procedure tolled the statute of limitation, and allowed the April of 2017 amended 
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complaint to “relate back” to the September of 2014 original complaint, and to be considered as 

having been filed on the earlier date.

Rule 15 describes the process whereby a party may amend a pleading such as a complaint. 

In limited circumstances, Rule 15(c) allows the amended pleading to “relate back” and be 

considered as though it had been filed on the same date as the original pleading. Rule 15(c) 

provides:

(c) Relation Back of Amendments. An amendment of a pleading relates back to the 

date of the original pleading when:

(1) relation back is permitted by the law that provides the statute of 

limitations applicable to the action; or

(2) the claim or defense asserted in the amended pleading arose out of the 

conduct, transaction, or occurrence set forth or attempted to be set forth in 

the original pleading; or

(3) the amendment changes the party or the naming of the party against 

whom a claim is asserted if the foregoing paragraph (2) is satisfied and, 

within the period provided by Rule 4(k) for service of the summons and 

complaint, the party to be brought in by amendment (A) has received such 

notice of the institution of the action that the party will not be prejudiced in 

maintaining a defense on the merits, and (B) knew or should have known 

that, but for a mistake concerning the identity of the proper party, the action 

would have brought against the party.

Rule 15 of the Rules of Civil Procedure is to be construed liberally in order to promote the 

consideration of claims on their merits. Brooks v. Isinghood, 213 W. Va. 675, 684-91, 584 S.E.2d 

531, 540-47 (2003). “The goal behind Rule 15, as with all the Rules of Civil Procedure, is to insure 

that cases and controversies be determined upon their merits and not upon legal technicalities or 

procedural niceties.” Doyle v. Frost, 49 S.W.3d 853, 856 (Tenn. 2001).

Petitioner centers her tolling argument on Rule 15(c)(3), and petitioner’s attempt to 

“change[] the party . . . against whom a claim is asserted” after the statute of limitation has expired.

Under Rule 15(c)(3), “chang[ing] the party” includes adding, dropping or substituting a party. 

Brooks, 213 W. Va. at 684, 584 S.E.2d at 540. In Syllabus Point 4 of Brooks, we identified the 

elements a plaintiff must prove under Rule 15(c)(3) to successfully amend a complaint to add a 

new party to a lawsuit, after the expiration of the statute of limitation:

Under Rule 15(c)(3) of the West Virginia Rules of Civil Procedure [1998], 

an amendment to a complaint changing a defendant or the naming of a defendant 

will relate back to the date the plaintiff filed the original complaint if: (1) the claim 

asserted in the amended complaint arose out of the same conduct, transaction, or 

occurrence as that asserted in the original complaint; (2) the defendant named in 

the amended complaint received notice of the filing of the original complaint and 

is not prejudiced in maintaining a defense by the delay in being named; (3) the 

defendant either knew or should have known that he or she would have been named 
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in the original complaint had it not been for a mistake; and (4) notice of the action, 

and knowledge or potential knowledge of the mistake, was received by the 

defendant within the period prescribed for commencing an action and service of 

process of the original complaint.

213 W. Va. at 678-79, 584 S.E.2d at 534-35. We now consider whether petitioner’s lawyer 

established these four elements.

Petitioner’s lawyer contends that petitioner has met the first of the four elements in Brooks

and says that the claim asserted in the amended complaint arose out of the same conduct, 

transaction, or occurrence that was asserted in the original complaint. We have reviewed both the 

original and amended complaints and cannot entirely agree. In the original complaint, petitioner’s 

lawyer asserted petitioner suffered property damage, physical and emotional harm, and other 

damages as a result of non-specified “actions” of EQT. The original complaint did not mention the 

2010 coal-debris fire that gave rise to Wiseman’s 2011 construction activities and did not mention 

the 2013 landslide. While we presume the original complaint was filed because of the landslide 

damage to petitioner’s house, the original complaint was so vaguely drafted that we cannot say for 

certain that the tortious conduct alleged in the amended complaint was the same conduct, 

transaction or occurrence.

The second element of Brooks requires a plaintiff to show that the defendant named in the 

amended complaint had notice of the filing of the original complaint before expiration of the statute 

of limitation. Petitioner’s lawyer claims that Wiseman had notice, or should have had notice, of 

the petitioner’s original complaint by January of 2015, when EQT filed a third-party complaint 

against DEP. There is nothing in the record showing Wiseman was notified of the third-party 

complaint in 2015. However, petitioner’s lawyer claims Wiseman should have been notified

because of the DEP-Wiseman contract language that required Wiseman to indemnify and hold 

harmless DEP. Petitioner’s lawyer goes so far as to claim that, because Wiseman’s insurer hired 

lawyers to defend DEP beginning in February of 2016, and because those same lawyers 

simultaneously represented the interests of Wiseman, that DEP’s knowledge of the original 

complaint in January of 2015 is somehow imputed to Wiseman. Unfortunately for petitioner, the 

record is clear that DEP did not actually notify Wiseman of either the third-party or the original 

complaint until February of 2016, after expiration of the statute of limitation. Moreover, Rule 15(c) 

requires a defendant, in some fashion, have actual notice of the original complaint; constructive 

notice, such that defendant should have known, is insufficient under the second element of Brooks.

As we just noted, the second element of Brooks requires the defendant know about the 

original complaint. The third element of Brooks requires the plaintiff to demonstrate that the 

defendant either knew or should have known that it would have been named in the original 

complaint had it not been for a mistake. As we discussed above, the original complaint in the 

instant case made no mention of the 2010 coal-debris fire, or of DEP’s and Wiseman’s 2011

remediation work, or of the landslide that occurred in 2013 that was allegedly caused by the 

remediation work. Instead, Wiseman’s first notice came upon receiving DEP’s letter dated 

February 1, 2016. On this record, petitioner’s lawyer failed to offer any evidence that Wiseman 
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either knew or should have known that it should have been named in the original complaint but 

was not named because of a mistake.5

The fourth and final element of the Brooks analysis requires there be both proof that the 

defendant received notice of the original complaint, and proof that the defendant knew or should 

have known that the plaintiff mistakenly did not sue the defendant in the original complaint, within 

the period prescribed for commencing an action and service of process of the original complaint.

The record clearly shows that Wiseman first received notice and knowledge of petitioner’s lawsuit 

in February of 2016, long after the expiration of the statute of limitation and the time period 

prescribed for service of the original complaint. Petitioner’s lawyer has failed to show otherwise.

Taken together, petitioner has failed to meet the four elements required by Brooks. 

Accordingly, we find that petitioner’s lawyer failed to establish an entitlement to relate the 

amended complaint back to the original complaint under Rule 15(c). Under Dunn, the statute of 

limitation period was not “arrested by some other tolling doctrine” and continued to run against 

the petitioner. Moreover, the record shows that the amended complaint against Wiseman was filed 

some three years and nine months after the accrual of petitioner’s cause of action, long after the 

expiration of the two-year statute of limitation contained in W. Va. Code § 55-2-12. We therefore 

conclude that circuit court correctly granted summary judgment and dismissed petitioner’s claims 

against Wiseman.

For the foregoing reasons, we affirm the circuit court’s order.

Affirmed.

ISSUED: July 30, 2020 

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

5 Upon receiving DEP’s February 1, 2016, letter, it is conceivable that Wiseman should 

have known that it should have been named in EQT’s third-party complaint but was not named 

because of some mistake. The question under Brooks, however, is whether Wiseman should have 

known that it should have been named in the original complaint. As we have repeatedly noted, the 

original complaint is vaguely drafted and does not refer to the 2013 landslide, or the work by DEP 

or Wiseman that ostensibly caused or contributed to the landslide. On this record we cannot say

the circuit court erred when it determined that Wiseman did not perceive of itself as a proper party.