Johnson v. Nedeff, No. 22236

• Court: Supreme Court of West Virginia
• Writing for the Court: WORKMAN; BROTHERTON; MILLER; NEELY
• Citation: 452 S.E.2d 63,192 W.Va. 260
• Parties: Theresa L. JOHNSON, Plaintiff Below, Appellant, v. Vincent M. NEDEFF and Ferris Nedeff, Defendants Below, Appellees.
• Decision Date: 18 November 1994
• Docket Number: No. 22236

Page 63

452 S.E.2d 63 192 W.Va. 260 Theresa L. JOHNSON, Plaintiff Below, Appellant,
v.
Vincent M. NEDEFF and Ferris Nedeff, Defendants Below, Appellees. No. 22236. Supreme Court of Appeals of West Virginia. Submitted Sept. 20, 1994.
Decided Nov. 18, 1994. Syllabus by the Court

1. " 'Prior to the 1978 amendment of Rule 3 of the West Virginia Rules of Civil Procedure, a civil action was commenced by filing a complaint with the Court and the issuance of a summons or the entry of an order of publication; since such amendment, a civil action is commenced by filing a complaint with the Court.' 165 W.Va. 557, 270 S.E.2d 160 (1980). Syllabus Point 1, Huggins v. Hospital Bd. of Monongalia County, 165 W.Va. 557, 270 S.E.2d 160 (1980)." Syl.Pt. 1, Winston v. Wood, 190 W.Va. 194, 437 S.E.2d 767 (1993).

Page 64

[192 W.Va. 261] 2. A complaint filed in a civil action must be timely received by the proper custodian before that action is deemed filed.

3. Rule 60(a) of the West Virginia Rules of Civil Procedure applies to clerical errors made through oversight or omission which are part of the record and is not intended to adversely affect the rights of the parties or alter the substance of the order, judgment or record beyond what was intended.

4. Rule 60(b) of the West Virginia Rules of Civil Procedure does not afford relief from a final judgment of the circuit court dismissing a personal injury action with prejudice for failure to comply with the statutory limitations for instituting suit.

Michael J. Farrell, Jenkins, Fenstermaker, Krieger, Kayes & Farrell, Huntington, for appellant.

L. David Duffield, Offutt, Eifert, Fisher & Duffield, Huntington, for appellant.

F. Richard Hall, Dean A. Furner, Spilman, Thomas & Battle, Parkersburg, for appellees.

WORKMAN, Justice:

This case is before the Court upon the appeal of Theresa L. Johnson from the October 15, 1993, final order of the Circuit Court of Wood County granting the Appellees' motion to dismiss and holding that the statute of limitations governing the case had expired prior to the filing of the Appellant's complaint. We affirm the decision of the trial court in dismissing the action with prejudice.

I.

The Appellant and Appellees were involved in a multi-vehicle automobile accident on July 20, 1991. As a result of injuries sustained in the accident, Appellant instituted a suit predicated on negligence against the Appellees.

On February 9, 1993, Appellant's counsel contacted the Wood County Circuit Clerk's Office ("clerk's office") to obtain the proper mailing address for the circuit court and the clerk's office in connection with the filing of a complaint in an unrelated civil action. The clerk's office provided Appellant's counsel with a post office box address which was incorrect. ¹ Appellant's counsel mailed the unrelated civil action to the incorrect address eleven days prior to the expiration of the statute of limitations. Even though the complaint was mailed to the wrong address, it was timely received and filed by the clerk's office. Appellant's counsel was never informed by the clerk's office that the complaint in the unrelated action had been mailed to the incorrect address.

Five months later, on July 13, 1993, Appellant's counsel mailed the complaint in the present case to the incorrect address for the clerk's office previously supplied by that office in February. The complaint was mailed eight days prior to the expiration of the applicable statute of limitations. ²

On July 20, 1993, while on vacation, Appellant's counsel telephoned his legal assistant to ensure the complaint had been timely filed. The legal assistant advised counsel that the complaint had been mailed on July 13, 1993. Appellant's counsel directed the legal assistant to telephone the clerk's office to verify that the complaint had been received. The legal assistant telephoned the clerk's office on that same day, but was unable to verify filing because the clerk's telephone lines were busy.

On July 22, 1993, after the two-year statute of limitations had expired, Appellant's counsel's legal assistant contacted the clerk's office and discovered that the clerk's office had not received the complaint. A second complaint was prepared and Federal Expressed to the clerk's office on that day. The second complaint was received and filed by the clerk's office on July 23, 1993, two days after the statute of limitations had expired. The original complaint, with a July 13, 1993, postmark, was received and filed by the clerk's office on July 26, 1993.

On August 2, 1993, Appellees filed a motion to dismiss the complaint with prejudice on the grounds that the action was barred by

Page 65

[192 W.Va. 262] the statute of limitations. The circuit court granted this motion over Appellant's objection and entered an order on September 2, 1993, dismissing the complaint with prejudice. It is from this order that Appellant now seeks relief from this Court.

II.

Appellant contends the circuit court erred: (1) by choosing form over substance and dismissing the complaint as violative of the statute of limitations; (2) by failing to grant relief to Appellant under Rule 60(a) of the West Virginia Rules of Civil Procedure; (3) by failing to grant relief to Appellant pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure; (4) by failing to grant Appellant relief under the provisions of West Virginia Code § 39-3-5 (1982); and (5) by failing to grant relief to Appellant under the provisions of West Virginia Code § 55-2-18 (1994).

III.

Appellant contends the trial court erred in choosing "form and technicalities over equity and justice" in dismissing the complaint. In essence, she seeks to carve out some equitable exception based on the facts of this case, to the rules providing for commencement of an action. ³

West Virginia Code § 55-2-12 (1994) requires that a cause of action for personal injury must be brought within two years after the right to bring the action has accrued. ⁴ Neither of the two complaints filed by the Appellant in this case was received by the clerk's office until after the two-year period for instituting a personal injury action had expired.

" 'Prior to the 1978 Amendment of Rule 3 of the West Virginia Rules of Civil Procedure, a civil action was commenced by filing a complaint with the Court and the issuance of a summons or the entry of an order of publication; since such amendment, a civil action is commenced by filing a complaint with the Court.' Syllabus Point 1, Huggins v. Hospital Bd. of Monongalia County, 165 W.Va. 557, 270 S.E.2d 160 (1980)." Syl.Pt. 1, Winston v. Wood, 190 W.Va. 194, 437 S.E.2d 767 (1993).

Rule 5(e) of the West Virginia Rules of Civil Procedure defines "(f)iling with the court" as follows:

The filing of pleadings and other papers with the court as required by these rules shall by made by filing them with the clerk of the court, who shall note thereon the filing date, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk; the notation by the clerk or the judge of the filing date on any such paper constitutes the filing of such paper, and such paper then becomes a part of the record in the action without any order of the court.

In Humble Oil & Refining Company v. Lane, 152 W.Va. 578, 165 S.E.2d 379 (1969), ⁵ this Court stated:

Page 66

[192 W.Va. 263] Statutes of limitations are statutes of repose. Their object is to compel the exercise of a right of action within a reasonable time. (Street v. Consumers Mining Corporation, 185 Va. 561, 39 S.E.2d 271, 167 A.L.R. 886; Burnett v. New York Central R. Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941; Walter v. August, 186 Cal.App.2d 395, 8 Cal.Rptr. 778, 83 A.L.R.2d 941; Burns v. Burns, 233 Iowa 1092, 11 N.W.2d 461, 150 A.L.R. 306; Summers v. Connolly, 159 Ohio St. 396, 112 N.E.2d 391, 39 A.L.R.2d 661.) ...

At one time the attitude of courts was hostile toward the enforcement of statutes of limitations. However, legislative policy in enacting such statutes is now recognized as controlling and courts, fully acknowledging their effect, look with favor upon such statutes as a defense. This is well stated in 34 Am.Jur., Limitation of Actions, Section 14, as follows: 'Statutes of limitations are now considered as wise and beneficent in their purpose and tendency; they are looked upon as statutes of repose, and are held to be rules of property vital to the welfare of society. * * * While the courts will not strain either the facts or the law in aid of a statute of limitations, nevertheless it is established that such enactment will receive a liberal construction in furtherance of their manifest object, are entitled to the same respect as other statutes, and ought not to be explained away.' (See Schulte v. Westborough, Inc., 163 Kan. 111, 180 P.2d 278, 172 A.L.R. 259; Hunter v. Hunter, 361 Mo. 799, 237 S.W.2d 100, 24 A.L.R.2d 611, and, Woodruff v. Shores, 354 Mo. 742, 190 S.W.2d 994, 166 A.L.R. 957.) ...

It is evident from the foregoing authorities that statutes of limitations are favored in the law and cannot be avoided unless the party seeking to do so brings himself strictly within some exception. It has been widely held that such exceptions 'are strictly construed and are not enlarged by the courts upon considerations of apparent hardship.' (Woodruff v. Shores, 354 Mo. 742, 190 S.W.2d 994, 166 A.L.R. 957.)

152 W.Va. at 582, 165 S.E.2d at 383.

In making the "form over substance" argument, Appellant relies heavily on this Court's decision in Winston,...