Elswick v. Carson
| Decision Date | 28 August 2020 |
| Docket Number | No. 19-0054,19-0054 |
| Court | Supreme Court of West Virginia |
| Parties | Wendy Elswick, Plaintiff Below, Petitioner v. Adelle J. Carson, Defendant Below, Respondent |
Petitioner Wendy Elswick, self-represented litigant, appeals the November 19, 2018, order of the Circuit Court of Ohio County granting Respondent Adelle J. Carson's motion to dismiss petitioner's appeal from a judgment of the Magistrate Court of Ohio County. Respondent, by counsel Bradley K. Shafer, filed a response in support of the circuit court's order. Petitioner filed a reply.
The Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion. For the reasons expressed below, the decision of the circuit court is reversed, and this case is remanded to the circuit court with directions to hold an evidentiary hearing as to whether, in respondent's prior action against petitioner, (1) the magistrate court adjudicated petitioner's claim that respondent also owed her money; and (2) respondent improperly named petitioner in her personal capacity as the defendant rather than Wendy Elswick, Inc. d/b/a Fish Reporting Services.
Petitioner is a certified court reporter and the owner of Wendy Elswick, Inc. d/b/a Fish Reporting Services ("the corporation"). Respondent, a court reporter, worked for the corporation as an independent contractor. On September 7, 2016, respondent filed a complaint in the Magistrate Court of Ohio County in Case No. 16-M35C-00635 ("first action"). On April 12, 2017, petitioner filed a complaint in the magistrate court in Case No. 17-M35C-00196 ("second action").
In the first action, respondent filed her complaint against "Wendy Elswick d/b/a Fish Reporting Services," alleging that between 2014 and 2016, petitioner failed to pay respondent her share of commissions earned in the performance of court reporting services. Respondent asked for a judgment against petitioner in the amount of $5,856.21,1 plus $95 in court fees and costs and post-judgment interest.
On October 4, 2016, petitioner filed an answer to respondent's complaint and did not check the box indicating that she was asserting a counterclaim against respondent. However, petitioner submitted evidence to show that respondent owed petitioner for providing, in petitioner's personal capacity, audio proofreading services to respondent between 2014 and 2016. Subsequently, the magistrate court held a bench trial in respondent's action against petitioner on January 23, 2017. At the beginning of trial, petitioner states that she requested the dismissal of respondent's complaint because respondent should have sued the corporation, and the magistrate court denied that request.
Following trial, the magistrate court entered judgment on March 9, 2017, in respondent's favor in the full amount she claimed, $5,856.21, plus $95 in court fees and costs and post-judgment interest at 7% per year. The magistrate court's judgment order fails to reflect whether it adjudicated only respondent's claim against petitioner or whether it also adjudicated petitioner's claim against respondent, either as a setoff against respondent's claim or as an independent counterclaim. Petitioner did not file an appeal from the March 9, 2017, judgment order in the Circuit Court of Ohio County until April 12, 2017. Accordingly, by order entered May 17, 2017, the circuit court dismissed petitioner's appeal as untimely filed. Petitioner did not appeal that order.
However, on the same day petitioner filed her appeal from the magistrate court's judgment order in the first action, petitioner filed her complaint in the second action and submitted substantially the same evidence to the magistrate court as she submitted with her answer in the first action. Petitioner sought payment for providing respondent with audio proofreading services between 2014 and 2016. Subsequently, respondent filed a motion to dismiss the second action, arguing that the doctrine of res judicata barred petitioner's claim due to the magistrate court's adjudication of that claim in the first action. The magistrate court did not rule on respondent's motion until after holding a bench trial on petitioner's claim on March 8, 2018.
On March 13, 2018, the magistrate court entered a judgment order and filed separate findings of fact and conclusions of law ("opinion letter"). In the opinion letter, the magistrate court denied respondent's motion to dismiss based on the doctrine of res judicata, finding that an examination of the record in the first action revealed "no written record of a counterclaim . . .[,] and the [March 9, 2017, judgment order] reflects no dismissal of a counterclaim." On the merits of petitioner's claim, the magistrate court found that petitioner failed to prove that respondent owed her for providing audio proofreading services. Accordingly, in the March 13, 2018, judgment order, the magistrate court entered judgment in respondent's favor.
Petitioner filed a timely appeal from the March 13, 2018, judgment order in the circuit court, and respondent filed a motion to dismiss the appeal. Unlike the magistrate court, by order entered on November 19, 2018, the circuit court found that the doctrine of res judicata barredpetitioner's claim in the second action. The circuit court acknowledged that petitioner did not file a counterclaim in the first action, but determined that petitioner presented evidence to support such a claim in that action. The circuit court further found, in the alternative, that if petitioner failed to present the evidence in support of a counterclaim in the first action, the doctrine of laches prevented petitioner from raising the claim in the second action given her failure to present the claim in the first action when she had the evidence to do so.
We review de novo the circuit court's November 19, 2018, order granting respondent's motion to dismiss. See Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995). However, we initially address petitioner's argument that the circuit court's May 17, 2017, order dismissing her appeal in the first action is also erroneous. Respondent counters that the May 17, 2017, order is not before us due to petitioner's failure to file an appeal from that order. We agree with respondent. West Virginia Code § 58-5-4 and Rule 5(f) of the West Virginia Rules of Appellate Procedure provide that there is a four-month period to appeal a final judgment or order. In West Virginia Department of Energy v. Hobet Mining and Construction Company, 178 W. Va. 262, 358 S.E.2d 823 (1987), we found that "[the] failure to file a timely appeal presents a jurisdictional infirmity precluding the court from accepting the appeal." Id. at 264, 358 S.E.2d at 825. Here, petitioner filed no appeal from the May 17, 2017, order. Therefore, we conclude that petitioner is precluded from arguing that the circuit court's dismissal of her appeal in the first action was erroneous.
However, we find that the validity of the magistrate court's March 9, 2017, judgment order petitioner attempted to appeal in the first action is before us for two reasons. First, in Syllabus Point 2 of Beane v. Dailey, 226 W. Va. 445, 701 S.E.2d 848 (2010), we reiterated:
" ." Syllabus Point 5, State ex rel. Farber v. Mazzone, 213 W.Va. 661, 584 S.E.2d 517 (2003).
Second, for the doctrine of res judicata to bar a subsequent action, the court entering judgment in the prior action is required to have possessed jurisdiction to render that judgment. See Syl. Pt. 4, Blake v. Charleston Area Med. Ctr., Inc., 201 W. Va. 469, 498 S.E.2d 41 (1997) (). Here, petitioner argues that the magistrate court did not have personal jurisdiction over the proper defendant in the first action given respondent's filing of a complaint against petitioner rather than the corporation. See State ex rel. West Virginia Truck Stop, Inc. v. Belcher, 156 W. Va. 183, 187, 192 S.E.2d 229, 232 (1972) ().
Petitioner further argues that West Virginia Code § 50-4-9 and Rule 5(b) of the West Virginia Rules of Civil Procedure for Magistrate Courts permit her to raise her claim in the second action. West Virginia Code § 50-4-9 provides that, in a magistrate court action:
A defendant in a civil action may file a counterclaim and if such counterclaim arises from the same transaction or occurrence that is the subject matter of the initial claim they shall be tried together. The failure to institute a counterclaim permitted by this section shall not preclude the institution of an action on such claim at a later date. The adjudication of the original claim shall not constitute res judicata as to any such permitted counterclaim nor shall it act as an estoppel as to such permitted counterclaim.
Rule 5(b) similarly provides that "[t]he failure of a defendant to institute a counterclaim permitted by this rule shall not preclude the institution of a separate action on such claim at a later time."
Here, we find that the clear language of West...
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