Fortuna v. Queen, No. 17619

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM
• Citation: 178 W.Va. 586,363 S.E.2d 472
• Parties: Sammy FORTUNA v. Carmella Mary QUEEN and Sammy FORTUNA v. Jessie QUEEN, et al., and Sandra Bernadine Queen
• Decision Date: 17 November 1987
• Docket Number: No. 17619

Page 472

363 S.E.2d 472 178 W.Va. 586 Sammy FORTUNA
v.
Carmella Mary QUEEN
and
Sammy FORTUNA
v.
Jessie QUEEN, et al., and Sandra Bernadine Queen No. 17619. Supreme Court of Appeals of
West Virginia. Nov. 17, 1987.

Page 473

[178 W.Va. 587] Syllabus by the Court

1. "A motion to vacate a judgment made pursuant to Rule 60(b), W.Va.R.C[iv]. 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. "Where a duly licensed attorney at law, regularly employed to represent a party to an action at law pending before a court having jurisdiction of the subject matter, appears at the bar of the court and consents to the entry of an order, and the order becomes final, the authority of the attorney to represent the litigant by whom he was employed, as to the matters adjudicated by the order, will be presumed until the contrary is clearly established in a proper proceeding." Syllabus point 3, McKnight v. Pettigrew, 141 W.Va. 506, 91 S.E.2d 324 (1956).

3. "A valid agreement of compromise and settlement of a case properly pending in a court of competent jurisdiction, in the absence of any exception or reservation, constitutes a merger and a bar of all claims properly litigable in such case." Syllabus point 3, State ex rel. Queen v. Sawyers, 148 W.Va. 130, 133 S.E.2d 257 (1963).

Charles R. Garten, Logan, for appellant.

John R. Mitchell, Guy R. Bucci, Charleston, for appellees.

PER CURIAM:

This is an appeal by the appellant, Sammy Fortuna, from final orders of the Circuit Court of Logan County, entered July 17, 1986 and April 10, 1987, which dismissed as compromised and settled certain civil actions instituted by the appellant in that court. The appellant contends that the compromise agreement which resulted in the dismissal of these actions was approved by his attorney without his authorization and was, therefore, invalid. We find no error warranting reversal of the lower court's decision as to the validity of the compromise agreement, and we affirm the judgments of the circuit court in that regard. We do find, however, that the circuit court erroneously dismissed one of the civil actions insofar as it raised issues which were not resolved by the compromise agreement, and we reverse on that ground.

This case arose out of a dispute over ownership of a retail music business operated in a building owned jointly by the appellant and his sister, Carmella Mary Queen, in Mt. Gay, Logan County. In January 1985, the appellant, by his counsel, Thomas R. Parks, instituted a civil action in the Circuit Court of Logan County, alleging that he owned the music business in partnership with his sister and seeking damages, dissolution of the partnership and injunctive relief for her alleged refusal to allow him access to the business or its financial records and dissipation of the partnership assets. The appellant subsequently

Page 474

[178 W.Va. 588] filed a second lawsuit, Civil Action No. 85-C-174, naming Carmella Mary Queen's son, Jessie Queen, and his wife, Teresa Queen, as additional parties defendant ¹ and charging them with similar misconduct on his sister's behalf.

In their answers, the appellees denied the existence of any partnership with the appellant and asserted that Jessie Queen was the sole owner of the music business. Jessie filed a counterclaim seeking damages and injunctive relief for the appellant's alleged interference with the business. Civil Action No. 85-C-174 was set for trial on July 11, 1985, and depositions were taken of the parties.

On the first day of trial, the attorneys for the parties advised the court that their clients had agreed to a compromise of Civil Action No. 85-C-174 and orally stated for the record the terms of the agreement. Among other things, the agreement required Jessie and Teresa Queen to close the business and to leave the premises with the cash on hand and their personal belongings. The business paraphernalia and inventory were to remain on the premises and become the joint property of the appellant and Carmella Mary Queen. The agreement further provided that the compromise would result in the dismissal of Civil Action No. 85-C-174. By order dated July 17, 1985, the circuit court ratified the compromise agreement and dismissed the case from the docket.

On July 22, 1985, the appellant, by counsel, instituted two additional civil actions against the same parties. In the first, the appellant sought dissolution of his partnership with Carmella Mary Queen and partition of their jointly-held real property. In the second suit, Civil Action No. 85-C-647, the appellant alleged that Jessie and Teresa Queen had violated the terms of the compromise agreement by removing inventory from the business premises and sought to recover the value of the property wrongfully removed or, if such value could not be determined, an order declaring the agreement null and void.

In August 1985, the appellant dismissed Mr. Parks as his attorney and obtained new counsel. On August 20, 1985 he filed a motion to vacate the compromise agreement in Civil Action No. 85-C-174, primarily on the grounds that he had not been fully aware of nor fully understood the terms of the agreement at the time it was tendered to the court for approval and that the appellees had violated the terms of the agreement. In November 1985, the appellant filed a motion to set aside the order dismissing Civil Action No. 85-C-174 on the same grounds. In addition, the appellant sought relief from judgment on the ground that he had never authorized Mr. Parks to dismiss the case. ²

A hearing on the appellant's motions was conducted before the circuit court on June 9, 1986. It does not appear that any evidence was presented at this...