STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Carissa Hammonds and 

Daniel Hammonds,
 FILED 

Plaintiffs Below, Petitioners October 16, 2015
 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 14-1338 (Wood County 12-C-591 ) OF WEST VIRGINIA 

Riverview Cemetery Association, 

and Five Oaks Management, LLC, 

Defendants Below, Respondents 

MEMORANDUM DECISION 

Petitioners and plaintiffs below, Carissa Hammonds and Daniel Hammonds, by counsel 

David M. Adkins, appeal the “Order Granting Defendants’ Motion to Dismiss” entered 

September 15, 2014, in the Circuit Court of Wood County. Respondents and defendants below, 

Riverview Cemetery Association and Five Oaks Management LLC, by counsel Michael D. 

Crim, filed a response. 

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 July 14, 2010, Petitioner Carissa Hammonds sustained a broken left ankle when she 

fell into an “uncovered man-made hole” at Riverview Cemetery in Williamstown, West Virginia, 

while attending her grandfather’s graveside service. On July 11, 2012, petitioners filed a personal 

injury action against Peoples/Perdew, Inc. d/b/a Cawley & Peoples Funeral Home and d/b/a 

Riverview Cemetery, in the Circuit Court of Wood County. 

Thereafter, Peoples/Perdew timely removed the case to the United States District Court 

for the Southern District of West Virginia, based upon diversity of citizenship. On August 29, 

2012, Peoples/Perdew filed a motion to dismiss on the ground that it neither owns nor operates 

Riverview Cemetery on whose property Petitioner Carissa Hammonds alleged she was injured. 

By order entered November 29, 2012, Peoples/Perdew’s motion to dismiss was granted, without 

prejudice, pursuant to Federal Rule of Civil Procedure 12(b)(4). Petitioners did not appeal this 

order. 

On December 18, 2012, petitioners filed the present civil action against respondents 

herein for the alleged injuries arising out of the July 14, 2010, incident. Thereafter, respondents 

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filed a motion to dismiss pursuant to West Virginia Rule of Civil Procedure 12(b)(6), alleging 

that petitioners’ complaint was filed after the applicable two-year statute of limitations had 

expired.1 In their response to respondents’ motion, petitioners argued that the present action 

“relates back” to the initial lawsuit, which was filed prior to the expiration of the applicable 

statute of limitations, and that, although West Virginia Rule of Civil Procedure 152 concerns 

amended and supplemental pleadings, the circuit court should treat the present complaint as a 

“de facto Amended Complaint” to the previous complaint timely filed on July 11, 2012. 

The circuit court found that petitioners “have presented no evidence or legal authority 

that supports their argument that the ‘relation back’ doctrine applies and that this December 18, 

2012[,] Complaint relates back to their June 11, 2012[,] Complaint so as to avoid the running of 

the statute of limitations.” Citing to Angles v. Dollar Tree Stores, Inc., 494 Fed. Appx. 326 (4th 

Cir. 2012) and Rule 15(c), the circuit court concluded that “[t]he ‘relation back’ doctrine 

contained in Rule 15(c) . . . does not apply to the facts of this civil action because a complaint in 

one case may not relate back to a complaint in another case to avoid the statute of limitations.” 

Concluding that the applicable statute of limitations had expired on July 14, 2012, and that 

petitioners’ civil action was not timely filed and was, therefore, time barred, the circuit court 

granted respondents’ motion to dismiss by order entered September 16, 2014. This appeal 

followed. 

Our standard of reviewing the circuit court’s order dismissing petitioners’ civil action is 

de novo. See Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 

770, 461 S.E.2d 516 (1995) (holding that “[a]ppellate review of a circuit court’s order granting a 

motion to dismiss a complaint is de novo.”). 

1 The present complaint was filed two years, four months, and twenty-five days after the 

date the injury occurred. 

2 West Virginia Rule of Civil Procedure 15(c) provides as follows: 

(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 [been] brought against the 

party. 

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On appeal, petitioners argue that, in granting respondents’ motion to dismiss, the circuit 

court committed plain error by ignoring the provisions of West Virginia’s savings statute, West 

Virginia Code 55-2-18, which provides for a one-year extension of the statute of limitations if, as 

in this case, “the initial pleading was timely filed” and “the action was involuntarily dismissed 

for any reason not based upon the merits of the action.”3 In the present case, petitioners argue 

that they timely filed the initial complaint on June 11, 2012. After removal to federal court, the 

case was thereafter dismissed by order entered November 29, 2012, under Rule 12(b)(4). The 

subsequent complaint was filed on December 18, 2012, well within one year from the date of the 

dismissal order; thus, petitioners contend, West Virginia Code 55-2-18 should have been applied 

to save their cause of action. See Employers Fire Ins. Co. v. Biser, 161 W.Va. 493, 498, 242 

S.E.2d 708, 711 (1978) (stating that West Virginia Code 55-2-18 “is designed to remedy the 

harsh effect of the statute of limitations and to save a cause of action which is otherwise barred . . 

. it is to be liberally construed”). 

Upon careful review of the record, we find that petitioners failed to raise the applicability 

of the savings statute before the circuit court and, indeed, raise the issue for the first time on 

appeal to this Court. As we have repeatedly stated, “[o]ur general rule in this regard is that, when 

nonjurisdictional questions have not been decided at the trial court level and are then first raised 

before this Court, they will not be considered on appeal.” Whitlow v. Bd. of Educ. of Kanawha 

Cnty., 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993). See Kronjaeger v. Buckeye Union Ins. Co., 

200 W.Va. 570, 585, 490 S.E.2d 657, 672 (1997); Barney v. Auvil, 195 W.Va. 733, 742, 466 

S.E.2d 801, 810 (1995). We, therefore, decline to address the issue in this appeal.4 

Petitioners also contend that the circuit court erred in granting respondents’ motion to 

dismiss based upon Angles, supra, which petitioners deem to be “non-applicable case law.” 

Petitioners state that the more recent case of Denmark v. Starcher, 2014 WL 7272789 

(N.D.W.Va. Dec. 18, 2014), somehow disavows Angles. Although petitioners state that the 

circuit court improperly relied on Angles, they fail to discuss that case or explain how, according 

to petitioners, it is “inapposite and contrary to West Virginia law.” Likewise, although petitioners 

3 West Virginia Code 55-2-18(a) provides as follows: 

(a) For a period of one year from the date of an order dismissing an action or 

reversing a judgment, a party may re-file the action if the initial pleading was 

timely filed and (i) the action was involuntarily dismissed for any reason not 

based upon the merits of the action or (ii) the judgment was reversed on a 

ground which does not preclude a filing of new action for the same cause. 

4 We note that petitioners briefly state that it was “plain error” for the circuit court to fail 

to apply the saving statute, presumably suggesting that use of this doctrine would be the only 

way to reverse this unpreserved error. See Syl. Pt. 7, Page v. Columbia Natural Res., Inc., 198 

W.Va. 378, 480 S.E.2d 817 (1996) (holding that “‘[t]o trigger application of the ‘plain error’ 

doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) 

seriously affects the fairness, integrity, or public reputation of the judicial proceedings.’ Syllabus 

point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).”). However, given that petitioners’ 

brief fails to substantively address the “plain error doctrine” or in any way argue how it might 

apply to the facts of this case, we decline to address the issue herein. 

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quote portions of Denmark as authority purportedly in support of their appeal, they fail to include 

any substantive argument for this Court’s consideration. Given the inadequacy of petitioners’ 

argument, we decline to review this alleged error. As we stated in State, Dep’t of Health v. 

Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995), “[a] skeletal ‘argument,’ 

really nothing more than an assertion, does not preserve a claim. . . . Judges are not like pigs, 

hunting for truffles buried in briefs.” (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th 

Cir.1991)). See State v. Lilly, 194 W.Va. 595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995) (noting 

that “appellate courts frequently refuse to address issues that appellants . . . fail to develop in 

their brief.”). See also Ohio Cellular RSA Ltd. P’ship v. Bd. of Pub. Works of W.Va., 198 W.Va. 

416, 424 n.11, 481 S.E.2d 722, 730 n.11 (1996) (refusing to address issue on appeal that had not 

been adequately briefed). 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: October 16, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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