Covington v. Smith

Decision Date17 March 2003
Docket NumberNo. 30734.,30734.
Citation213 W.Va. 309,582 S.E.2d 756
CourtWest Virginia Supreme Court
PartiesJames Milton COVINGTON and Jeraldine I. Covington, Plaintiffs Below, Appellants, v. Michael John SMITH, Walter Lee Forbis, Ryder Truck Rental, Inc., and D.T.F. Trucking, Inc., Defendants Below, Appellees.

Hamilton D. Skeens, Esq., Brown & Levicoff, P.L.L.C., Beckley, West Virginia, Attorney for the Appellants.

Edgar E. Bibb, III, Esq., Lynch, Mann & Bibb, Beckley, West Virginia, Attorney for the Appellee, Michael John Smith.

Stephen R. Crislip, Esq., Jill M. Obenchain, Esq., Jackson Kelly PLLC, Charleston, West Virginia, Attorneys for the Appellees, Walter Lee Forbis, Ryder Truck Rental, Inc., and D.T.F. Trucking, Inc.

Chief Justice STARCHER concurs and reserves the right to file a concurring opinion. DAVIS, Justice:

The appellants herein and plaintiffs below, James Milton Covington [hereinafter referred to as "Mr. Covington"] and Jeraldine I. Covington [hereinafter referred to as "Mrs. Covington"],1 appeal from orders entered September 20, 2001, and February 27, 2002, by the Circuit Court of Raleigh County. In its September 20, 2001, order, the circuit court refused the Covingtons' motion to reinstate their lawsuit that it previously had dismissed due to inactivity pursuant to Rule 41(b) of the West Virginia Rules of Civil Procedure.2 By subsequent order, entered February 27, 2002, the circuit court denied the Covingtons' motion to reconsider3 its September 20, 2001, ruling. On appeal to this Court, the Covingtons claim that the circuit court erred by refusing to reinstate their case when there existed good cause to do so. Upon a review of the parties' arguments, the pertinent authorities, and the record presented for appellate consideration, we reverse the rulings of the Circuit Court of Raleigh County. In sum, we find that the Covingtons demonstrated good cause to support the reinstatement of their lawsuit. Accordingly, we remand this case for further proceedings consistent with this Opinion.



On November 23, 1996, Mr. Covington, who was employed as a truck driver, was driving his tractor trailer on Interstate 64 in Raleigh County, West Virginia, when he was rear-ended by a vehicle driven by the appellee herein and defendant below, Michael John Smith [hereinafter referred to as "Mr. Smith"]. Immediately following this collision, Mr. Covington parked his vehicle on the shoulder of the interstate and proceeded to retrieve and erect emergency markers around his truck. While doing so, Mr. Covington's truck was hit by a second vehicle, which was driven by the second appellee herein and defendant below, Walter Lee Forbis [hereinafter referred to as "Mr. Forbis"], which caused Mr. Covington to sustain severe personal injuries.

As a result of this chain of accidents and his resultant injuries, Mr. Covington filed a claim for workers' compensation benefits since the injuries he sustained were in the course of and as a result of his employment duties. In conjunction with his workers' compensation claim, Mr. Covington retained counsel in his home state of Alabama. The Covingtons also retained counsel, in Roanoke, Virginia,4 to file a lawsuit against Mr. Smith, Mr. Forbis, and associated parties, which suit was filed in the Circuit Court of Raleigh County on September 21, 1998. Throughout 1999, Mr. Forbis' counsel deposed various witnesses and filed a motion to compel the production of certain documents. Mr. Covington's attorney deposed defendants Smith and Forbis in August, 1999. Apart from these discovery matters, it appears that the Covingtons' lawsuit remained dormant until the circuit court filed, on October 13, 2000, a notice of its intent to dismiss the action due to such inactivity. Although the Covingtons' counsel received this notice, he failed to inform the Covingtons of the pending dismissal proceedings. On October 31, 2000, the Covingtons' counsel filed a motion alleging the existence of good cause and requesting the court to refrain from dismissing the matter. Among the reasons cited for the delay, counsel indicated that a telephonic scheduling conference had been scheduled for August 15, 2000, but miscommunications between the parties led to its cancellation. Counsel also explained that he had been unable to devote much time to the Covingtons' lawsuit because he had been engaged in jury trials, in unrelated matters, in February, 2000, and May, 2000, and had had a death in his family in October, 2000.

Despite the protestations of the Covingtons' counsel, the circuit court, by order entered November 16, 2000, dismissed the Covingtons' lawsuit. Counsel communicated this dismissal to the Covingtons by letter dated November 30, 2000. Thereafter, Mr. Covington, through his Alabama attorney, sent numerous letters to his Virginia counsel requesting a status report regarding the reinstatement of his lawsuit. Having received no response to any of his correspondences, Mr. Covington, by letter dated March 13, 2001, discharged his Virginia counsel. Thereafter, on April 4, 2001, the Covingtons retained their present West Virginia counsel to pursue the reinstatement of their lawsuit in the Circuit Court of Raleigh County.

On June 13, 2001, the Covingtons, by their West Virginia counsel, filed a motion to reinstate their lawsuit against Mr. Smith, et al. By order entered September 20, 2001, the circuit court found no good cause existed to reinstate the Covingtons' case and that its earlier ruling dismissing the action, in accordance with W. Va. R. Civ. P. 41(b),5 due to inactivity was proper. In short, the circuit court ruled that

[i]t is undisputed that the Plaintiff [Mr. Covington] was not given the notice of dismissal that had been received by his attorney. Plaintiff was thereby deprived by his attorney of the opportunity to assist his attorney in the formulation of a response....
It is readily apparent to the Court that the delay was caused by Plaintiff's former counsel and not by the Plaintiff. Plaintiff tried to get his counsel to attend to the matter, and his counsel neglected it, even to the point of not disclosing to his client that this Court had give[n] notice of an intent to dismiss.
This is not an instance where an otherwise attentive attorney let a case run past the Rule 41 year because of complications associated with the case. Rule 41 allows relief for that, upon a proper showing. This is rather a pattern of neglect, deceit, and misconduct by counsel upon his client that permeates the entire case.
The damage caused to the Plaintiff by this neglect is a matter between Plaintiff and his former counsel, to be resolved by the means appropriate to such disputes.


[T]his Court has the duty and responsibility to maintain proper attorney discipline and decorum within a case pending before it. That is accomplished by the requirement, enforced [by] the proper sanction, that an attorney attend properly to a case in which he [h]as accepted responsibility, or show good cause why he did not. Good cause for the delay, within the meaning of Rule 41 and the cases that interpret it, has not been shown in this case.

Following this adverse ruling, the Covingtons filed a motion for reconsideration on December 13, 2001,6 based upon this Court's decision in Howerton v. Tri-State Salvage, Inc., 210 W.Va. 233, 557 S.E.2d 287 (2001) (per curiam). In its February 27, 2002, order, the circuit court again denied the Covingtons' request for relief and determined that this Court's decision in Howerton was factually distinguishable from the circumstances surrounding the dismissal of the Covingtons' lawsuit. From these rulings of the circuit court, the Covingtons appeal to this Court.



The instant proceeding comes before this Court upon the Covingtons' appeal from orders entered by the circuit court denying their request to reinstate their civil action and refusing their motion for reconsideration of the court's adverse ruling. When a circuit court dismisses a case due to inactivity in accordance with W. Va. R. Civ. P. 41(b), a motion requesting the court to reinstate the matter, pursuant to W. Va. R. Civ. P. 41(b) and W. Va.Code § 56-8-12 (1923) (Repl.Vol. 1997),7 rests in the court's sound discretion. "Traditionally, our scope of review, even where reinstatement is timely sought, is limited. It is only where there is a clear showing of an abuse of discretion that reversal is proper." Dimon v. Mansy, 198 W.Va. 40, 46, 479 S.E.2d 339, 345 (1996). Thus,

[a] motion to reinstate a dismissed action under the terms of Code, 56-8-12, is addressed to the sound discretion of the trial court, and, in the absence of a showing of abuse of that discretion, the action of the trial court upon such motion will not be disturbed upon writ of error. Higgs v. Cunningham, 71 W.Va. 674, 77 S.E. 273 [(1913) ].

Syl. pt. 1, Murray v. Roberts, 117 W.Va. 44, 183 S.E. 688 (1936). See also Syl. pt. 4, in part, White Sulphur Springs, Inc. v. Jarrett, 124 W.Va. 486, 20 S.E.2d 794 (1942) ("A trial court, upon a motion to reinstate a suit or action, under Code, 56-8-12, is vested with a sound discretion with respect thereto[.]"); Syl. pt. 2, Higgs v. Cunningham, 71 W.Va. 674, 77 S.E. 273 ("Code 1906, ch. 127, sec. 11, does not peremptorily require every dismissal or non-suit to be set aside simply because the court is asked to do so. The court has a sound discretion in the premises.").

Despite the discretionary nature of such a determination, reinstatement is nevertheless proper where the moving party demonstrates the existence of good cause for such relief. "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 ... make a showing of good cause which adequately excuses his neglect in prosecution of the...

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2 cases
  • Lawyer Disciplinary Bd. v. Smoot
    • United States
    • West Virginia Supreme Court
    • November 17, 2010
    ...the record, we find it necessary to refer this matter to the Office of Disciplinary Counsel for further review.”); Covington v. Smith, 213 W.Va. 309, 582 S.E.2d 756 (2003) (referring a matter to the Office of Disciplinary Counsel for further proceedings); Gum v. Dudley, 202 W.Va. 477, 491, ......
  • In re Ashton M.
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    • West Virginia Supreme Court
    • February 28, 2012
    ...This Court has consistently found that assignments of error nor raised on appeal are deemed waived. See Covington v. Smith, 213 W.Va. 309, 317 n. 8, 582 S.E.2d 756, 764 n. 8 (2003) (stating that casual mention of an issue in a brief is insufficient to preserve the issue on appeal); Tiernan ......

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