Davis v. Sheppe
| Decision Date | 22 April 1992 |
| Docket Number | No. 20166,20166 |
| Citation | 417 S.E.2d 113,187 W.Va. 194 |
| Court | West Virginia Supreme Court |
| Parties | David Paul DAVIS, Plaintiff Below, Appellant, v. Joseph SHEPPE, D.D.S., Defendant Below, Appellee. |
Syllabus by the Court
1. A motion under Rule 60(b) of the West Virginia Rules of Civil Procedure is the appropriate remedy to utilize when a plaintiff's case is dismissed because of the plaintiff's failure to appear for trial.
2. The circuit court's power to dismiss a plaintiff's case for failure to appear at trial arises under Rule 41(b) of the West Virginia Rules of Civil Procedure, which permits the dismissal of a case for failure to prosecute.
3. "Although courts should not set aside default judgments or dismissals without good cause, it is the policy of the law to favor the trial of all cases on their merits." Syllabus Point 2, McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972).
Benjamin N. Snyder, Clendenin, for appellant.
Richard L. Earles, Shuman, Annand & Poe, Charleston, for appellee.
The plaintiff below, David Paul Davis, appeals a June 21, 1990 order of the Circuit Court of Kanawha County which dismissed his medical malpractice suit. The basis for the dismissal was plaintiff's counsel's failure to appear at trial.
This case had originally been set for trial on May 14, 1990, and the parties appeared on this date. However, the trial court advised the parties that "this case is the fifth one down." As a consequence, they were placed on standby, with the court making this statement as to the subsequent arrangement for the trial:
According to plaintiff's counsel, he then proceeded to transact business for the rest of that day out of his office, which was located in Elkview. He attended a council meeting in Clendenin that evening and did not return home until 11:00 p.m.
Plaintiff's counsel asserts that he was unaware that his secretary had become ill and had left the office at around 2:00 p.m. on May 14. He did not go to his office on May 15, but proceeded to a previously scheduled meeting in Roane County, where he arrived at approximately 10:00 a.m. He received an urgent message to contact his secretary. When he did, he learned that the plaintiff's case had been scheduled for trial that day. He called the judge's office and was advised that the case had been dismissed.
According to the attorney, he and the plaintiff appeared at the judge's office the following day. They asked to see the judge, but were advised by the judge's secretary that the case had been dismissed and that the judge was busy with other matters. Plaintiff's counsel also stated that he asked the secretary to send him a copy of the dismissal order, which she agreed to do.
The plaintiff's attorney asserts that he did not receive a copy of the dismissal order. For reasons not explained, he made no further follow-up on the matter until sometime in late November or early December when, realizing the appeal time was drawing to a close, he contacted the circuit clerk's office. He then discovered that the dismissal order had been entered June 21, 1990.
The dismissal order recites the efforts made to contact the plaintiff's attorney beginning on the afternoon of May 14. It recited the appearance of defense counsel and the defendant at 9:00 a.m. on May 15, and the defendant's motion to dismiss the case, which was granted subject to this provision:
"The Court further ORDERS that this Dismissal ORDER shall become a final order of dismissal, with prejudice, unless within a period of ten (10) days from the entry of this Order plaintiff's counsel shows good cause to the undersigned why he failed to appear before the Court on Tuesday, May 15, 1990, at 9:00 a.m. or thereafter."
It is obvious from the foregoing that plaintiff's counsel failed to exercise reasonable diligence to remain in contact with the court's case management office in order to receive his trial schedule information. Moreover, as the defendant points out, even after plaintiff's attorney learned of the dismissal, he failed to avail himself of Rule 60(b) of the West Virginia Rules of Civil Procedure, which permits relief for "[m]istake, inadvertence, surprise, excusable neglect, or unavoidable cause."
We have granted relief under Rule 60(b) in several cases where there has been a judgment rendered because of the failure of counsel to appear for trial. See, e.g., Midkiff v. Kenney, 180 W.Va. 55, 375 S.E.2d 419 (1988); Cordell v. Jarrett, 171 W.Va. 596, 301 S.E.2d 227 (1982). However, in these cases, the aggrieved parties were defendants who claimed to have received no actual notice of the trial. Moreover, in each case, a monetary judgment was entered against the defendant. Despite this procedural difference, we see no reason why Rule 60(b) relief is not available to a plaintiff, a proposition which the defendant acknowledges in his brief. 1
We have in several cases appeared to accept the fact that a Rule 60(b) motion is appropriate to challenge the dismissal of a plaintiff's case. In Schupbach v. Newbrough, 173 W.Va. 156, 313 S.E.2d 432 (1984), the appellants asserted that the circuit court erred in granting a right-of-way on their property. The gist of their claim on appeal was that they had not received proper notice of the trial date. We found that the attorney had notice, but we refused to consider whether the attorney's negligence in not attending justified a new trial for his client because the merits of this issue were before the trial court on a Rule 60(b) motion. We stated in Syllabus Point 2:
"A Rule 60(b) motion for relief from judgment must be ruled upon by a trial court before the matters argued in the motion may be considered by the Supreme Court of Appeals."
Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974), did not involve dismissal of the plaintiff's case for failure to appear, but, rather, dismissal on the defendant's plea of res judicata. However, the plaintiff's main contention on the Rule 60(b) motion was that he had not been given notice of the hearing on defendant's motion to dismiss. We held in Syllabus Point 8 that it was 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 attorney claimed that he had not received notice of the trial date. We found that the plaintiff's motion to set aside the order dismissing the case was a Rule 60(b) motion, but we made no holding to this effect in the Syllabus.
We conclude that a Rule 60(b) motion is the appropriate remedy to utilize when a plaintiff's case is dismissed because of the plaintiff's failure to appear for trial. From a procedural standpoint, this is preferred to a direct appeal because in a Rule 60(b) hearing, a record can be developed as to the circumstances surrounding the dismissal. This provides a proper fact basis for appellate review.
We have only briefly discussed a court's power to dismiss a plaintiff's case for counsel's failure to appear. See Blankenship v. Bowen's Roof Bolts Sales & Serv., supra. Other jurisdictions have recognized that the power to dismiss a plaintiff's case for failure to appear at trial arises under rules similar to our Rule 41(b) of the Rules of Civil Procedure, which permits the dismissal of a case for failure to prosecute. 3 See, e.g., Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Reizakis v. Loy, 490 F.2d 1132 (4th Cir.1974); Gonzales v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir.1980); Huey v. Teledyne, Inc., 608 F.2d 1234 (9th Cir.1979); State Exchange Bank v. Hartline, 693 F.2d 1350 (11th Cir.1982); Burdeshaw v. White, 585 So.2d 842 (Ala.1991); Wallace v. Jones, 572 So.2d 371 (Miss.1990). We agree with this proposition.
The Fourth Circuit Court of Appeals in Reizakis v. Loy, supra, gave one of the more elaborate discussions of this rule in reversing the dismissal of a plaintiff's case. The plaintiff's attorney had appeared for trial and stated that his chief medical witness had advised him the day before that he could not attend the trial. Plaintiff's counsel stated that when he learned of this, it was too late to subpoena the doctor. He asked for a continuance, which was refused. He then offered to put on his liability witnesses and asked to have a continuance on the damage issue. This motion was also denied, and the dismissal order was entered.
The Fourth Circuit began by outlining the scope of Rule 41(b) of the Federal Rules of Civil Procedure and the various considerations that come into play in determining whether the case should be dismissed:
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