Blankenship v. Bowen's Roof Bolts Sales and Service, Inc.
| Decision Date | 21 February 1991 |
| Docket Number | No. 19715,19715 |
| Citation | 402 S.E.2d 256,184 W.Va. 587 |
| Court | West Virginia Supreme Court |
| Parties | Phyllis BLANKENSHIP, Kimberly Blankenship, by her Next Friend Billy Ray Blankenship, and Billy Ray Blankenship, Individually, v. BOWEN'S ROOF BOLTS SALES AND SERVICE, INC. and James I. Wolford. |
Syllabus by the Court
"The Rules of Civil Procedure pertaining to the setting aside of default judgments should be liberally construed in order to provide the relief from onerous consequences of default judgments." Syllabus point 2, Parsons v. McCoy, 157 W.Va. 183, 202 S.E.2d 632 (1973).
James Allan Colburn, Baer, Colburn & Morris, L.C., Huntington, for Phyllis Blankenship and Kimberly Blankenship.
W. Graham Smith, Smith & Rumora, Williamson, for Bowen's Roof Bolts Sales and Service, Inc. and James I. Wolford.
This is an appeal by Phyllis Blankenship and others from a judgment of the Circuit Court of Mingo County dismissing their personal injury action against Bowen's Roof Bolts Sales and Service, Inc. and James I. Wolford. The action was dismissed because the appellants and their counsel failed to appear for trial. On appeal, the appellants claim that they were not informed of the trial date and that, under the circumstances, the trial court erred in dismissing their action for nonappearance. They also claim that the trial court should have set aside the dismissal when the peculiar facts of their case became apparent. After reviewing the record and the arguments of the parties, this Court agrees with the appellants. The judgment of the Circuit Court of Mingo County is, therefore, reversed.
On November 22, 1988, the appellants, who had sustained damages as the result of an automobile accident, instituted a personal injury action by filing a complaint in the office of the Clerk of the Circuit Court of Mingo County. The defendants, Bowen's Roof Bolts Sales and Service, Inc., and James J. Wolford, filed answers, and subsequently discovery was conducted.
The case was mature for trial by the commencement of the January, 1990, term of the Circuit Court of Mingo County, and the judge of the court, as was his custom, sent a letter to the appellants' counsel, as well as to all attorneys of record in other cases pending in the court, notifying him and them that the docket for the January, 1990, term would be called on January 11, 1990.
The appellants' counsel received the letter notifying him that the docket would be called on January 11, 1990, but he was unable to be present because of other commitments. He, therefore, wrote the circuit judge and requested that the case be set for trial between March 19, 1990, and March 30, 1990. After receiving the letter, the trial judge set the trial in the case for March 26, 1990.
For reasons which are unclear from the record, neither the appellants nor their counsel received notice of the trial date and, consequently, failed to appear in court on March 26, 1990.
When the appellants failed to appear, the defendants moved to dismiss the action with prejudice for failure to prosecute, and on the following day the trial court granted the motion.
A copy of the dismissal order was forwarded to the appellants' attorney and received by him on April 4, 1990. On that same day he moved to set aside the order.
A hearing on the motion to set aside the judgment was conducted on April 23, 1990, and at the conclusion of that hearing the motion was overruled. In overruling the motion, the trial judge implicitly recognized that the appellants had not received notice of the trial date, but he concluded that the appellants had an obligation either to send someone to appear at the docket call or to conduct a follow-up and check with the clerk or the judge to determine whether the case had been set.
On appeal, the appellants argue that under Rule 60(b) of the Rules of Civil Procedure a party should be relieved from a default judgment where the judgment was the result of, among other things, mistake, inadvertence, surprise, excusable neglect, or unavoidable cause, or for any other reason justifying relief from the operation of the judgment. They argue that in their case the failure of their counsel to appear at trial was the result of mistake or unavoidable cause and that the circumstances constituted good reason for relieving them from the judgment.
Rule 60(b) of the West Virginia Rules of Civil Procedure, the rule upon which the appellants rely for relief, provides, in part, that:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, excusable neglect, or unavoidable cause; ... The motion shall be made within a reasonable time, and for reasons (1) ... not more than eight months after the judgment, order, or proceeding was entered or taken.
In a number of cases this Court has indicated that Rule 60(b) should...
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Davis v. Sheppe
...an abuse of discretion for the trial court not to have granted the Rule 60(b) motion. 2 Finally, in Blankenship v. Bowen's Roof Bolts Sales & Service, 184 W.Va. 587, 402 S.E.2d 256 (1991), the plaintiff's case was dismissed when he failed to appear on the trial date. The plaintiff's attorne......
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County Com'n of Wood County v. Hanson
...resolved in favor of granting relief from the default judgment to examine the case on its merits. Blankenship v. Bowen's Roof Bolts Sales and Serv., Inc., 184 W.Va. 587, 402 S.E.2d 256 (1991); Schupbach v. Newbrough, 173 W.Va. 156, 313 S.E.2d 432 (1984); Cordell v. Jarrett, 171 W.Va. 596, 3......
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In re Child of Cynthia B., 18-0410
...the applicable support period. As authority for his argument, petitioner relies upon Blankenship v. Bowen's Roof Bolts Sales & Service, Inc., 184 W. Va. 587, 588-89, 402 S.E.2d 256, 257-58 (1991), wherein the failure of the plaintiffs to attend trial for lack of notice of the trial date con......