Gaines v. Drainer, 15229

• Decision Date: 18 March 1982
• Docket Number: No. 15229,15229
• Citation: 289 S.E.2d 184,169 W.Va. 547
• Court: West Virginia Supreme Court
• Parties: Grover Lee GAINES, an infant, etc. v. Norman C. DRAINER, et al., etc.

Page 184

289 S.E.2d 184

169 W.Va. 547

Grover Lee GAINES, an infant, etc. v. Norman C. DRAINER, et al., etc.

No. 15229.

Supreme Court of Appeals of West Virginia.

March 18, 1982.

Syllabus by the Court

1. "A nunc pro tunc order must be based on some memorandum on the records relating back to the time it is to be effective and such order cannot be entered if the rights of the parties may be adversely affected thereby." Syl. pt. 3, State ex rel. Palumbo v. County Court of Kanawha County, 151 W.Va. 61, 150 S.E.2d 887 (1966).

2. "A motion made pursuant to Rule 60(b), W.Va.R.C.P., does not toll the running of the appeal time of eight months provided by West Virginia Code, Chapter 58, Article 5, Section 4, as amended." Syl. pt. 1, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).

3. "An appeal on 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." Syl. pt. 3, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).

Richard W. Cardot, Elkins, for appellants.

Steptoe & Johnson and James R. Watson, Clarksburg, for appellees.

PER CURIAM:

On 8 July 1976 fourteen-year-old Grover Lee Gaines, while riding his motorbike along a dirt road in Taylor County, collided with a pickup truck driven by sixteen-year-old Clinton Drainer and owned by Clinton's father, Norman Drainer. On 25 July 1978 Grover Lee Gaines, by his next friend and father, Lawson Gaines, filed a complaint in the Circuit Court of Taylor County for injuries suffered in the accident against Norman Drainer and his son Clinton. Following depositions of the four named parties, the defendants filed a motion for summary judgment contending that there was no evidence of negligence on the part of Clinton Drainer and that the plaintiff had been contributorily negligent.

Following a hearing on 12 April 1979, the circuit court granted the motion for summary judgment on 26 April 1979. However, the order granting the summary judgment was not filed until 6 December 1979, when it was entered nunc pro tunc so as to have been effective from 26 April 1979.

On 18 January 1980 the plaintiffs filed a "Motion for Reconsideration." The trial court, interpreting this motion to be a motion under W.Va.R.C.P. 60(b)(6), held a hearing on 31 January 1980. Following the hearing the trial court denied the motion for reconsideration because it had been filed more than eight months after the granting of the summary judgment in favor of the defendants on 26 April 1979. The trial court did not enter the order denying reconsideration until 26 January 1981. The plaintiffs then appealed to this Court in April 1981.

The initial question for us is whether the plaintiffs' motion for reconsideration was timely filed. We find that it was. "Where ... a nunc pro tunc order would cause the appeal time of the party adversely effected by it to expire, and he was not given reasonable notice that a final judgment had been reached, such an order will not be allowed." Taylor v. Miller, W.Va., 249 S.E.2d 191, 195 (1978). In this case counsel for the plaintiffs had notified counsel for the defendants, the trial court, and the clerk of court during the summer and fall of 1979 that he intended to move for a reconsideration. However, he delayed serving the motion because he thought that such a motion before the entry of the order granting summary judgment would have been premature. Under these circumstances we hold that the order granting summary judgment was not effective until 6 December 1979 and, therefore, the trial court erred in determining that the plaintiffs' motion for reconsideration had been filed too late.

We are now free to address the question of whether the trial court should have granted the plaintiffs' motion for reconsideration under Rule 60(b). However, before doing so, we note that we are limited to this narrow question as opposed to a consideration of the original order granting summary judgment for two reasons. First, the plaintiff was too late in filing with this Court to appeal the summary judgment even using 6 December 1979 as the date of that order. A motion made pursuant to Rule 60(b) does not toll the running of the eight month appeal time. Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d...