Moore v. Minardi

1

Gregory S. Moore, O.D., Plaintiff Below, Petitioner v. Lawrence M. Minardi, M.D., individually, and Minardi Eye Center, Inc., a West Virginia Corporation, Defendants Below, Respondents

No. 22-0187

Supreme Court of Appeals of West Virginia

April 5, 2023

(Kanawha County 16-C-1817)

MEMORANDUM DECISION

Petitioner Gregory S. Moore, O.D. ("Dr. Moore") appeals the circuit court's order granting summary judgment to Respondents Lawrence M. Minardi, M.D. ("Dr Minardi") and Minardi Eye Center, Inc. on the basis that the complaint is barred under the applicable statute of limitations.^[1]Upon our review, we determine that oral argument is unnecessary and that a memorandum decision affirming the circuit court's order is appropriate. See W.Va. R. App. P. 21.

Dr Moore, a board-certified optometrist, was the managing member and sole owner of West Virginia Laser Eye Center, LLC ("WVLEC"). According to Dr. Moore's complaint, this business was formed to allow him to lawfully associate with and manage ophthalmologists to perform LASIK and cataract surgeries. Dr. Minardi is an ophthalmologist and is the owner of Minardi Eye Center, Inc. At all relevant times, respondents treated patients with eye diseases and routinely performed LASIK and cataract surgeries. Following a change in West Virginia law that expanded the scope of permissive optometric practice in 2010, which Dr. Minardi opposed, Dr. Minardi submitted complaints to the West Virginia Board of Medicine ("WVBOM") against Dr. Moore and two ophthalmologists associated with WVLEC-both prior to 2013. The WVBOM did not find any wrongdoing on the part of Dr. Moore or the associated ophthalmologists so no actions were taken against them by the WVBOM. In 2013 and 2015, Dr. Minardi authored screening certificates of merit against Dr. Moore, the WVLEC, and/or ophthalmologists associated with WVLEC. The certificate completed in 2013 was part of litigation that was ultimately dismissed by a circuit court. The certificate completed in 2015 related to a patient who did not file suit against Dr. Moore or those associated with him. Also in 2015, Dr. Minardi sent a letter to WVBOM regarding Dr. Moore in response to a complaint filed by Dr. Moore against Dr. Minardi.

Dr. Moore filed suit against respondents on December 6, 2016, alleging that respondents tortiously interfered with business relations and expectancies and the pursuit of occupation. Key to Dr. Moore's claim are his professional relationships and affiliations with several ophthalmologists, primarily Dr. Darrell Reisner. Dr. Reisner entered into an oral agreement with WVLEC in 2008 and a written agreement for practice management services in 2009. Under the terms of that agreement, it was to end in 2012. However, Dr. Reisner continued performing surgeries at WVLEC through at least part of 2013. Dr. Moore claimed Dr. Reisner ceased his affiliation with WVLEC due to Dr. Minardi's filing of complaints against Dr. Moore and those affiliated with WVLEC, including Dr. Reisner. Dr. Moore spoke to another ophthalmologist about performing surgeries at WVLEC, but that doctor chose not to do so.^[2] Dr. Moore generally alleged that WVLEC and a later-opened business suffered due to Dr. Minardi's actions in filing these complaints and authoring the screening certificates of merit. The circuit court found that the two-year statute of limitations set forth in West Virginia Code § 55-2-12 applied to Dr. Moore's claims and that the claims are time-barred.

On appeal, Dr. Moore asserts that the circuit court erroneously granted respondents' motion for summary judgment, arguing that the suit was timely filed because respondents were committing a continuous tort. As this Court has consistently stated, "'A circuit court's entry of summary judgment is reviewed de novo.' Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)." Syl. Pt. 1, Goodman v. Auton, -- W.Va. --, 880 S.E.2d 57 (2022).

A five-step analysis controls the question of whether Dr. Moore's tortious interference claim against Dr. Minardi 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 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, in part, Dunn v. Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009).

Regarding step one, it is undisputed that Dr. Moore's claims are subject to a two-year statute of limitation. W.Va. Code § 55-2-12. Step two requires this Court to assess when the elements of Mr. Moore's claim for tortious interference occurred. The elements of a claim of tortious interference are:

(1) existence of a contractual or business relationship or expectancy; (2) an intentional act of interference by a party outside that relationship or expectancy; (3) proof that the interference caused the harm sustained; and (4) damages. If a plaintiff makes a prima facie case, a defendant may prove justification or privilege, affirmative defenses. Defendants are not liable for interference that is negligent rather than intentional, or if they show

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