Brent v. Board of Trustees of Davis and Elkins College

• Decision Date: 15 December 1983
• Docket Number: No. 15786,15786
• Citation: 311 S.E.2d 153,173 W.Va. 36
• Court: West Virginia Supreme Court
• Parties: Patricia Ann BRENT v. The BOARD OF TRUSTEES OF DAVIS AND ELKINS COLLEGE, et al.

Page 153

311 S.E.2d 153

173 W.Va. 36

Patricia Ann BRENT v. The BOARD OF TRUSTEES OF DAVIS AND ELKINS COLLEGE, et al.

No. 15786.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1983.

Syllabus by the Court

1. Under W.Va.R.Civ.P. 41(b), in order to reinstate a cause of action which has been dismissed for failure to prosecute, the plaintiff must move for reinstatement within three terms of entry of the dismissal order and make a showing of good cause which adequately excuses his neglect in prosecution of the case.

2. Upon entry of an order of dismissal for failure to prosecute pursuant to Rule 41(b), notice of the entry of the order must be provided pursuant to Rule 77(d).

3. Where it is established that notice of the entry of an order involuntarily dismissing an action for failure to prosecute has not been given as provided by Rule 77(d), the court may consider a motion for reinstatement after the expiration of three terms from the entry of the dismissal order. However, not every dismissal order entered without notice automatically entitles the aggrieved party to reinstatement. Good cause must still be established to explain the delay in prosecution of the case which led to dismissal in the first instance.

4. Circuit court clerks are constitutional officers who are presumed to have complied with mandatory duties, including the giving of notice as required by statute or rule.

Barry M. Hill, Edward A. Zagula, Zagula & Hill, Leonard Z. Alpert, Weirton, for appellant.

John S. Bailey, Jr. and Howard E. Seufer, Jr., Bailey, Pfalzgraf & Seufer, Parkersburg, George J. Anetakis, Frankovitch & Anetakis, Weirton, for appellee.

McGRAW, Chief Justice:

This is an appeal by Patricia Ann Brent from an order of the Circuit Court of Wood County denying her motion to reinstate a cause of action previously dismissed pursuant to W.Va.R.Civ.P. 41(b) for failure to prosecute. Her primary contention is that because she was given no notice of the entry of the order which involuntarily dismissed her case, the provisions of Rule 41(b) precluding reinstatement after three terms from entry of the dismissal order are inapplicable. We agree, in part, and remand the case for further proceedings to determine if notice was provided.

The appellant was injured on February 26, 1974, when a glass test tube exploded during a chemistry laboratory class at Davis and Elkins College in Randolph County, West Virginia. On May 28, 1975, she filed a complaint in the Circuit Court of Hancock County seeking $3,000,000 in damages for her injuries from the college, the laboratory supervisor, and Corning Glass Works, the alleged manufacturer of the test tube. After the defendants moved to dismiss for improper venue, the appellant filed a parallel complaint alleging the same cause of action in the Circuit Court of Wood County on February 3, 1976. Although venue was not contested in Wood County, counsel for the appellant did not pursue the cause of action there, but rather chose to litigate the issue of venue in Hancock County.

On August 5, 1976, the Circuit Court of Hancock County dismissed the appellant's action for lack of venue. The appellant sought an appeal from this order, which this Court granted on April 25, 1977. By opinion issued July 10, 1979, we reversed the order and remanded the case to the Circuit Court of Hancock County with guidelines for determining whether venue was proper in that court. See Brent v. Board of Trustees, W.Va., 256 S.E.2d 432 (1979). After discovery indicated that venue could not be established in Hancock County, the circuit court again dismissed the appellant's action for lack of venue on December 13, 1979.

Counsel claims that two days later, on December 15, 1979, a fire in his office destroyed his files on the appellant's case. Meanwhile, on December 28, 1979, the Circuit Court of Wood County entered an order dismissing the appellant's complaint in that court for failure to prosecute, since no action had been taken in the case for over two years. Counsel for the appellant asserts that he received no notice of this dismissal order, and that he did not learn of it until December of 1981, while he was going through defendant Corning's records in an attempt to restructure his case file. Counsel filed a motion on December 28, 1981, to set aside the dismissal order and to reinstate the cause of action in Wood County. The circuit court ruled that it did not have jurisdiction to reinstate the cause of action, and therefore, denied reinstatement on May 20, 1982.

The provisions of Rule 41(b) at issue in this proceeding place within the discretion of the trial court the power to strike from its docket any action "wherein for more than two years there has been no order or proceeding but to continue it...." The rule contains no explicit notice requirement, but does permit notice by publication. The rule further permits reinstatement of any action dismissed within three terms after entry of the order of dismissal. ¹

We last discussed Rule 41(b) at length in Arlan's Dept. Store of Huntington, Inc. v. Conaty, W.Va., 253 S.E.2d 522 (1979). Arlan's was an original proceeding in prohibition in which the petitioner sought to prohibit the enforcement of an order of the circuit court which granted a motion to reinstate a cause of action which had been dismissed for failure to prosecute two and a half years earlier. The petitioner argued that the circuit court was without jurisdiction to reinstate the action because the plaintiff had failed to move for reinstatement within three terms of the dismissal order and had failed to give notice of the reinstatement motion to all parties of record. We awarded the writ, holding that the circuit court "had no jurisdiction to act outside the Rules of Civil Procedure ...." 253 S.E.2d at 524.

The circuit court in Arlan's had proceeded under W.Va.Code §§ 56-8-9 and 56-8-12, ² the statutory predecessors to Rule 41(b). In Arlan's we traced the common-law history of these statutes to the general rule that after entry of a final judgment and the adjournment of the term in which it was entered, the court had no further jurisdiction of the subject matter or the parties in the absence of a statute conferring continuing jurisdiction. Thus, a court entering such a final order could not vacate it at any subsequent term, "except to modify it for clerical error or to vacate it on such grounds as would allow a bill of review or an original bill to impeach based on fraud, mistake, surprise or accident." 253 S.E.2d at 525, n. 2.

The respondent in Arlan's argued that if W.Va.Code § 56-8-12 was interpreted to mean that a circuit court under no circumstances has no authority or jurisdiction to reinstate a case when a proper motion had not been filed within three terms of court, then the Legislature, by enacting such a provision, had unconstitutionally limited the jurisdiction of circuit courts. We rejected this argument on the basis that the rules of civil procedure adopted by this Court operated in aid of jurisdiction to facilitate the public's interest in just, speedy and inexpensive determinations. We concluded that the

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.

256 S.E.2d at 526.

The time periods established by the rules of civil procedure are the primary vehicle through which the purpose of the rules "to secure just, speedy and inexpensive determinations in every action" may be accomplished. See W.Va.R.Civ.P. 1. As we stated in Arlan's:

The rules ... 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.

253 S.E.2d at 525-526.

The provision of Rule 41(b) permitting a court to dismiss an action after two years of inactivity is essential to the underlying purpose of the rules of civil procedure to expedite the speedy administration of justice in civil cases. The rule functions as a docket-clearing mechanism which enables trial courts to purge themselves of stale cases, while prodding dilatory plaintiffs to proceed to trial. The rule does, however, recognize that in some instances valid reasons may exist which can account for the lack of diligence in prosecution of an action. Accordingly, the rule permits reinstatement within three terms of the dismissal order.

Rule 41(b) does not, however, dispense with a showing of good cause in order for the plaintiff to be entitled to reinstatement. This Court has always required good cause to be shown for reinstatement. See Arlan's, supra; Nibert v. Carroll Trucking Co., 139 W.Va. 583, 82 S.E.2d 445 (1954); White Sulphur Springs, Inc. v. Jarrett, 124 W.Va. 486, 20 S.E.2d 794 (1942); Higgs v. Cunningham, 71 W.Va. 674, 77 S.E. 273 (1911). Thus, under Rule 41(b), in order to reinstate a cause of action which has been dismissed for failure to...