Builders' Service and Supply Co. v. Dempsey, 34154.

• Decision Date: 22 June 2009
• Docket Number: No. 34154.,34154.
• Citation: 680 S.E.2d 95
• Parties: BUILDERS' SERVICE AND SUPPLY COMPANY, Plaintiff Below, Appellee, v. Christal M. DEMPSEY, a/k/a Christal M. Smith, and Clark Sinclair, Sheriff of Taylor County, West Virginia, Defendants and Third-Party Plaintiffs Below, v. Edward Charlton, d/b/a Charlton Construction, Third-Party Defendant Below, Appellee Christal M. Dempsey Smith, Appellant.
• Court: West Virginia Supreme Court

680 S.E.2d 95

BUILDERS' SERVICE AND SUPPLY COMPANY, Plaintiff Below, Appellee, v. Christal M. DEMPSEY, a/k/a Christal M. Smith, and Clark Sinclair, Sheriff of Taylor County, West Virginia, Defendants and Third-Party Plaintiffs Below, v. Edward Charlton, d/b/a Charlton Construction, Third-Party Defendant Below, Appellee

Christal M. Dempsey Smith, Appellant.

No. 34154.

Supreme Court of Appeals of West Virginia.

Submitted January 28, 2009.

Decided June 22, 2009.

Syllabus by the Court

1. "A motion to vacate a judgment made pursuant to Rule 60(b), W. Va. R.C. P., is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion." Syllabus Point 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).

2. "[A]n appeal of the denial of a Rule 60(b) motion brings to consideration for review only the order of denial itself and not the substance supporting the underlying judgment nor the final judgment order." Syllabus Point 3, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).

RaeLynn Regula, William C. Brewer, Brewer & Giggenbach, Morgantown, WV, for Appellant.

James M. Wilson, Amy Smith, Tiffany Swiger, Steptoe & Johnson, Clarksburg, WV, for Appellee, Builders Service & Supply.

PER CURIAM:

The instant action is before this Court upon the appeal of Christal M. Dempsey Smith [hereinafter "Appellant"], from a July 11, 2007, order entered by the Circuit Court of Taylor County denying the Appellant's Motion to Reconsider Order Denying Motion to Reinstate. Herein, the Appellant alleges that the circuit court erred when it denied the Appellant's motion because sufficient grounds, i.e. good cause, existed for the trial court to vacate its order. Conversely, Builders' Service and Supply Company [hereinafter "Appellee"]¹ alleges that the circuit court did not commit error when it denied the Appellant's motion because Appellant failed to articulate a clear reason under Rule 60(b) of the West Virginia Rules of Civil Procedure as to why Appellant was entitled to relief. This Court has before it the petition for appeal, all matters of record and the briefs and arguments of counsel. For the reasons expressed below, the July 11, 2007, order of the Circuit Court of Taylor County is affirmed.

I. FACTUAL AND PROCEDURAL HISTORY

On or about May 15, 2002, Appellant entered into an oral contract with Edward Charlton d/b/a Charlton Construction, wherein Charlton Construction agreed to perform certain labor for the Appellant and furnish materials for the remodeling and construction of her home located in Taylor County, West Virginia. At some point thereafter, Mr. Charlton purchased certain building materials and supplies from Builders' Service² totaling $3,409.81 to make improvements to Appellant's property. However, Builders' Service was not paid for the materials.³ On March 11, 2003, Builders' Service filed a mechanic's lien pursuant to W. Va.Code § 38-2-4⁴ against the Appellant's property with the Office of the Clerk of the County Commission of Taylor County, West Virginia. Thereafter, on August 5, 2003, Builders' Service initiated the instant action to enforce the perfected lien.

On September 16, 2003, Appellant filed an answer, counterclaim and third-party complaint against Edward Charlton d/b/a Charlton Construction.⁵ For approximately one year thereafter, the parties engaged in discovery and filed amended pleadings. On October 6, 2004, Appellant's counsel, Charles E. Anderson, filed a Motion to Withdraw as Counsel. Mr. Anderson alleged in his motion that because there was a strong possibility that one of the witnesses for Builders' Service would be one of his former clients, he doubted whether he would be able to represent Appellant without her being prejudiced by his prior representation.⁶ A hearing was held on the motion on November 4, 2004, and the motion was subsequently denied by order of November 15, 2004. No further activity was conducted in the case until January 17, 2006, when the circuit clerk issued a Notice of Intended Dismissal of Action Under Rule 41(b)⁷ that informed the parties that their respective claims would be dismissed unless they could demonstrate good cause for their delay in the prosecution. Neither party filed a motion to maintain the case on the docket showing good cause for the delay, and thus, the circuit court entered an order on February 17, 2006, dismissing the case for failure to engage in any proceeding for more than one year.⁸

One year later, on February 16, 2007, William C. Brewer entered a notice of appearance as counsel for Appellant, and filed a Motion to Reinstate. The circuit court denied Appellant's motion on March 21, 2007, finding that Appellant failed to demonstrate good cause to excuse her neglect in the prosecution of the case. In its reasoning, the circuit court took particular note of the fact that while the instant action remained inactive, Appellant filed an unrelated action before the circuit court on February 23, 2005, which the court also dismissed on December 7, 2006, as a result of inactivity under Rule 41(b) of the West Virginia Rules of Civil Procedure. Appellant did not appeal the March 21, 2007 order. Thereafter, Appellant filed a Motion to Reconsider Order Denying Motion to Reinstate on June 13, 2007, under Rule 60(b) of the West Virginia Rules of Civil Procedure. By order dated July 11, 2007, the circuit court denied the Rule 60(b) motion, finding that all matters had been taken into consideration in its previous orders entered in the case. It is from that order that Appellant now appeals.

II. STANDARD OF REVIEW

The instant action is before this Court upon an appeal from the July 11, 2007, order entered by the circuit court denying the Appellant's Rule 60(b) motion, thereby refusing to provide relief from the prior dismissal of the Appellant's action under Rule 41(b). Before embarking upon analysis of this matter, this Court is compelled to emphasize once again that the West Virginia Rules of Civil Procedure do not explicitly recognize a "motion for reconsideration." As explained in Richardson v. Kennedy, 197 W.Va. 326, 475 S.E.2d 418 (1996), "[d]espite our repeated direction to the bench and bar of this State that a `motion to reconsider' is not a properly titled pleading in West Virginia, it continues to be used." 197 W.Va. at 329, 475 S.E.2d at 421. Likewise, in Savage v. Booth, 196 W.Va. 65, 468 S.E.2d 318 (1996), this Court observed that "the West Virginia Rules of Civil Procedure do not recognize a `motion for reconsideration.'" 196 W.Va. at 68, 468 S.E.2d at 321; see also Moten v. Stump, 220 W.Va. 652, 656, 648 S.E.2d 639, 643 (2007).

Consequently, when referring to the motion identified by the Appellant as a "motion to reconsider," we will refrain from using the improper nomenclature and identify the subject motion merely as the "Rule 60(b) motion." This Court has consistently held that a circuit court's decision to grant or deny a Rule 60(b) motion warrants deferential review by this Court. "A motion to vacate a judgment made pursuant to Rule 60(b), W. Va. R.C. P., is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion." Syl. Pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974); see also Tolliver v. Maxey, 218 W.Va. 419, 423, 624 S.E.2d 856, 860.

In Intercity Realty Co. v. Gibson, 154 W.Va. 369, 175 S.E.2d 452 (1970), this Court explained that "[w]here the law commits a determination to a trial judge and his discretion is exercised with judicial balance, the decision should not be overruled unless the reviewing court is actuated, not by a desire to reach a different result, but by a firm conviction that an abuse of discretion has been committed." 154 W.Va. at 377, 175 S.E.2d at 457. Applying these standards of review to the instant appeal, we proceed to consider the parties' arguments.

III. DISCUSSION

The Appellant contends that the circuit court erred by denying her Rule 60(b) motion filed June 13, 2007. The Appellant asserts she enumerated sufficient grounds in the Rule 60(b) motion for the trial court to vacate its prior March 21, 2007, denial of her motion to reinstate the cause of action. The Appellant further alleges that she experienced significant communication difficulties with her prior attorney, Mr. Anderson, and that she had believed that Mr. Anderson had been actively representing her throughout the period of inactivity. The Appellant asserts that she enumerated these difficulties in her motion to reinstate and that the circuit court had wrongfully denied her motion without holding a hearing on the matter, despite the fact that her new counsel had been in contact with the circuit court to inquire regarding a hearing date. The Appellant also alleges that the circuit court failed to provide adequate analysis of her Rule 41(b) motion and that no response had been filed by the Appellees demonstrating any prejudice resulting from a potential reinstatement. Those assertions, whether meritorious or otherwise, could have been properly included within an appeal to the March 21, 2007, circuit court order denying the Appellant's motion to reinstate. However, as noted above, the Appellant failed to appeal that denial and chose instead to file a Rule 60(b) motion seeking relief.

The Rule 60(b) motion further set forth that the Appellant's new counsel was representing her in several new personal injury cases, which were being actively pursued since counsel had been retained. Specifically, Appellant provided that she filed a personal injury suit, Civil Action No. 05-C-80 in Taylor County, to which Judge Moats was assigned, and which was dismissed pursuant to a settlement agreement. Additionally, Appellant informed the court that she had other matters pending in Monongalia and Marion Counties, which were...