Arlan's Dept. Store of Huntington, Inc. v. Conaty, 14326

• Decision Date: 10 April 1979
• Docket Number: No. 14326,14326
• Citation: 162 W.Va. 893,253 S.E.2d 522
• Court: West Virginia Supreme Court
• Parties: ARLAN'S DEPT. STORE OF HUNTINGTON, INC., a W. Va. corp., and Sandra Lee Trent v. Robert C. CONATY, Judge, Circuit Court of Cabell County.

Page 522

253 S.E.2d 522

162 W.Va. 893

ARLAN'S DEPT. STORE OF HUNTINGTON, INC., a W. Va. corp., and Sandra Lee Trent v. Robert C. CONATY, Judge, Circuit Court of Cabell County.

No. 14326.

Supreme Court of Appeals of West Virginia.

April 10, 1979.

Syllabus by the Court

1. When a party fails to make a reinstatement motion within the time period prescribed by R.C.P. 41(b) and W.Va.Code § 56-8-12, such party is not entitled to reinstatement of a case to the docket and the court is without power to grant such relief, except where the parties consent, or where good cause is shown such as fraud, accident, or mistake.

2. A writ of prohibition will lie to prevent further proceedings in a case when a circuit court grants reinstatement relief to a party who has failed to comply with the time limitations governing reinstatement motions contained in R.C.P. 41(b) and W.Va.Code § 56-8-12, who has failed to allege and prove good cause, such as fraud, accident or mistake, and who has failed to give notice of the motion for reinstatement to all parties of record.

E. Dennis White, Jr., Bernard T. Nibert, II, Clovis D. Kuhn, Huntington, for relators.

Baer, Napier & Colburn, James Allan Colburn, Huntington, for respondent.

McGRAW, Justice:

In September, 1970, an action was instituted in the Circuit Court of Cabell County, West Virginia, on behalf of a 13-year-old girl to recover damages for an alleged false arrest. The defendant filed a timely answer and later in January, 1971, the National Detective Bureau, Inc. and Betty Sue Robinson were made third-party defendants. The defendant corporation, Arlan's Department Store of Huntington, Inc., is now defunct and dissolved, but its insurer is not. No further action was taken in the proceeding until January, 1975, when, pursuant to W.Va.Code § 56-8-9 (1923), the action was dismissed and discontinued from the active docket for failure to prosecute.

Over 2 1/2 years later in September, 1977, plaintiff, by counsel, moved the circuit court to reinstate the action; notice of motion was served on the original defendants but not on the third-party defendants. At the reinstatement hearing, counsel for plaintiff gave various reasons for the plaintiff's failure to prosecute. However, no evidence was given in support of the representations of plaintiff's counsel, and no record of the proceeding was made. In November, 1977, the respondent judge, over objections, granted the motion to reinstate the civil action to the active docket.

Thereafter, the original defendants below filed a petition in this Court seeking ultimately, among other things, the issuance of a writ of prohibition directing the respondent to refrain and desist from enforcing the order reinstating the action.

The relators contend the circuit court was without jurisdiction to enter the reinstatement order, and thus exceeded his legitimate authority in doing so for essentially two reasons. First, plaintiff failed to make a reinstatement motion within three terms of court as required by W.Va.Code § 56-8-12 (1923) and therefore is not entitled to invoke the jurisdiction of the circuit court to obtain reinstatement of a case involuntarily dismissed or discontinued. Secondly, the circuit court lacked jurisdiction to grant the reinstatement motion because the plaintiff failed to give notice to all parties of record as required by R.C.P. 5(a).

On the other hand, the respondent asserts that if W.Va.Code § 56-8-12 is interpreted to mean that a circuit court under no circumstances has the authority or jurisdiction to reinstate a case when a reinstatement motion is not filed within three terms of court following the order dismissing or discontinuing the case as required by W.Va.Code § 56-8-12, then the Legislature, by enacting such a provision, has impermissibly limited the jurisdiction of circuit courts in violation of this state's constitution. The respondent also contends that a circuit court has the inherent authority to reinstate a case upon a showing of good cause.

We find that the relator is entitled to a writ of prohibition for the respondent had no jurisdiction to act outside the Rules of Civil Procedure in the circumstances of this case.

I.

Prior to the adoption of the West Virginia Rules of Civil Procedure, the law regulating the pleading, practice and procedure of civil actions in courts of record was embodied in statutory form, primarily in Chapter 56 of the West Virginia Code. These statutory provisions in some instances modified common law rules of procedure. Dismissals or discontinuances of civil actions for failure to prosecute were controlled by W.Va.Code § 56-8-9, and their reinstatement was governed by W.Va.Code § 56-8-12. The former provision permits any court, in its discretion, to strike from the docket and discontinue any case in which there has been no order or proceeding other than to continue it for more than two years, or in which the plaintiff is delinquent in the payment of accrued court costs. The latter section permits any court, on motion, to reinstate any case dismissed within three terms after the entry of the order of dismissal.

By W.Va.Code § 51-1-4, the Legislature specifically authorized the Supreme Court of Appeals to promulgate rules and regulations governing pleading, practice, and procedure in courts of record. It also declared that "(a)ll statutes relating to pleading, practice and procedure shall have force and effect only as rules of court and shall remain in effect unless and until modified, suspended or annulled by rules promulgated pursuant to the provisions of this section."

By adoption of the West Virginia Rules of Civil Procedure, ¹ effective on July 1, 1960, a comprehensive reform of civil procedure in trial courts of record was attempted. This new system superseded the former statutory rules of court to the extent that the Rules modified or are inconsistent therewith. The rules also modified some of the common law of this State as it relates to civil cases in courts of record. ²

The two statutory rules of court previously cited were incorporated virtually verbatim without any apparent change of substantive significance in the second paragraph of R.C.P. 41(b). ³ Because these statutory rules were not "modified, suspended or annulled" by the West Virginia Rules of Civil Procedure, they remain in effect as rules of court. From this discussion, it is manifest that the respondent's argument concerning legislative impairment of jurisdiction is untenable and must fail. Moreover, an historical analysis of the rule reveals that it expands, broadens and liberalizes the common law rule that a court has no jurisdiction to act beyond the term of court in which the order was entered. See, Enders', supra, n. 1.

The rules of civil procedure were designed to secure just, speedy and inexpensive determinations in every action. Neither the West Virginia Rules of Civil Procedure nor the statutory rules of pleading, practice and procedure impermissibly restrict the jurisdiction of circuit courts in the constitutional sense. The rules of civil procedure do not restrict the original and general jurisdiction of courts of record in this State; they do not remove any class of cases or restrict the types of disputes which a circuit court has judicial jurisdiction to hear and adjudicate. The rules do, however, establish procedures for the orderly process of civil cases as anticipated by W.Va.Const. Art. III, § 10. They operate in aid of jurisdiction and facilitate the public's interest in just, speedy and inexpensive determinations. They vindicate constitutional rights by providing for the administration of justice without denial or delay as required by W.Va.Const. Art. III, § 17.

An integral part of this system is the establishment of time periods within which actions must be taken if they are to be taken at all. The rules are replete with time limitations designed to ensure the expeditious litigation of disputes within orderly legal procedures. If a party fails to comply with the time periods contained in the rules, he may suffer adverse consequences including the loss of his case. Here the plaintiff failed to file a motion for reinstatement within three terms of court as required by both R.C.P. 41(b) and W.Va.Code § 56-8-12. That the plaintiffs below are no longer entitled to relief from the order complained of means that the rules of civil procedure governing civil actions deprive the party of the relief sought; the remedy of reinstatement has been terminated except in special circumstances.

This effect of noncompliance with the rules is not equivalent to impermissibly depriving the court of its constitutional power or jurisdiction, and to characterize it as such will not make it so. This is not a case involving some form of "legislative dominance" as argued by the relator. Rather, the result here derives from the failure of the plaintiff below to comply with the statutory rule now encompassed within R.C.P. 41(b). Except in unusual cases, trial courts cannot relieve a party of the consequences of the failure to comply with this rule.

II.

We turn now to the contention that a circuit court has the power to reinstate cases to the docket after the expiration of the time period for filing reinstatement motions prescribed by R.C.P. 41(b) and W.Va.Code § 56-8-12.

The general rule is that a trial court is without power to reinstate a cause after a dismissal, where the reinstatement motion conferring jurisdiction on the court to set aside a judgment of dismissal, is not filed within the prescribed time period. See, e. g., Wilds v. Permenter, 228 So.2d 408 (Dt.Ct.App.Fla.1969); 24 Am.Jur.2d Dismissal, Discontinuance & Nonsuit § 80 (1966); 27 C.J.S. Dismissal & Nonsuit § 79 (1959). There may be circumstances surrounding the order of dismissal in a specific case, however, which take it out of the general rule against vacating an involuntary dismissal after the term at which it was granted, or...