Howerton v. Tri-State Salvage, Inc., No. 29640.

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM.
• Citation: 557 S.E.2d 287,210 W.Va. 233
• Parties: Herbert HOWERTON, Plaintiff Below, Appellant, v. TRI-STATE SALVAGE, INC., a corporation, Defendant Below, Appellee.
• Decision Date: 28 November 2001
• Docket Number: No. 29640.

557 S.E.2d 287
210 W.Va. 233

Herbert HOWERTON, Plaintiff Below, Appellant,
v.
TRI-STATE SALVAGE, INC., a corporation, Defendant Below, Appellee

No. 29640.

Supreme Court of Appeals of West Virginia.

Submitted November 7, 2001.

Decided November 28, 2001.

557 S.E.2d 288

Richard E. Hardison, Jr., Esq., Harry G. Camper, Jr., Esq., Beckley, for Appellant

F. Alfred Sines, Jr, Esq., Victoria L. Casey, Esq., Casey & Associates, Charleston, for Appellee.

PER CURIAM.

This matter is before this Court on an appeal from an order entered on October 13, 2000, by the Circuit Court of Raleigh County, denying a motion to reconsider its earlier order denying appellant Herbert Howerton's motion to reinstate his personal injury action against Tri-State Salvage, Inc. ("Tri-State"). The circuit court by order dated February 17, 2000, dismissed the action for failure of the plaintiff, now appellant, to prosecute the case.

I.

Mr. Howerton, the appellant, alleges that on May 21, 1996, he was injured at Tri-State's salvage yard after being pushed into a pile of scrap iron. The appellant often visited Tri-State's salvage yard to exchange salvaged vehicles for money. On May 19, 1998, the appellant filed an action against Tri-State seeking damages for personal injuries that he sustained at Tri-State's place of business. On September 14, 1998, Tri-State was served with the complaint, and on October 14, 1998, Tri-State filed a motion to dismiss the appellant's claim under Rule 12(b)(6) and Rule 56 of the West Virginia Rules of Civil Procedure, but did not schedule a hearing on its motion with the trial court.

On December 17, 1999, the trial court filed a notice of intent to dismiss the appellant's claim pursuant to Rule 41(b) of the West Virginia Rules of Civil Procedure.¹ Neither

557 S.E.2d 289

party filed a response to the court's notice of intent to dismiss. Subsequently, on February 17, 2000, the circuit court dismissed appellant's action for failure to prosecute

On learning that the court had dismissed his case, the appellant filed a motion to reinstate the action on June 25, 2000. According to the appellant's motion, his counsel did not receive notice of either the circuit court's intent to dismiss the case, or the dismissal order. On July 17, 2000, the trial court held a hearing on the motion for reinstatement.

After considering all of the appellant's arguments, the trial court denied the motion for reinstatement, finding that the appellant had offered insufficient reasons for failure to timely prosecute his case.

On August 23, 2000, the appellant filed a motion for reconsideration of his motion to reinstate, repeating many of the same points that he had raised during the hearing on July 17. In his motion to reconsider, the appellant placed emphasis on the argument that the pendency of the defendant's Rule 12(b)(6) motion prevented him from proceeding with his personal injury claim.

On October 13, 2000, the trial court without a hearing issued an order denying the appellant's motion to reconsider, finding that the pendency of Tri-State's Rule 12(b)(6) motion had no impact on the appellant's ability to pursue the matter diligently, nor did the pendency of the Rule 12(b)(6) motion constitute good cause for the appellant's failure to take any action to advance the claim toward disposition for a period in excess of one year.

The appellant claims that the circuit court abused its discretion in not finding good cause for reinstatement of his personal injury claim.

II.

Rule 41(b) of the West Virginia Rules of Civil Procedure gives circuit courts the power to dismiss cases for failure to prosecute.

In Dimon v. Mansy, 198 W.Va. 40, 479 S.E.2d 339 (1996), this Court discussed motions to dismiss for failure to prosecute. We held that due process of law requires that specific procedures be followed by a trial court before it can dismiss a plaintiff's action for failure to prosecute. "Before a court may dismiss an action under Rule 41(b), notice and an opportunity to be heard must be given to all parties of record. To the extent that Brent v. Board of Trustees of Davis & Elkins College, 173 W.Va. 36, 311 S.E.2d 153 (1983), and any of our previous holdings differ with this ruling, they are expressly overruled." Syllabus Point 2, Dimon v. Mansy, 198 W.Va. 40, 479 S.E.2d 339 (1996).

In Syllabus Point 3 of Dimon, this Court listed...