Richardson v. Kennedy, No. 22779

CourtSupreme Court of West Virginia
Writing for the CourtRECHT
Citation197 W.Va. 326,475 S.E.2d 418
PartiesJoseph RICHARDSON, Personal Representative of the Estate of Richard Walter Richardson, Appellant, v. George KENNEDY, M.D., and Charles Town General Hospital, Inc., dba Jefferson Memorial Hospital, Appellees.
Docket NumberNo. 22779
Decision Date05 July 1996

Page 418

475 S.E.2d 418
197 W.Va. 326
Joseph RICHARDSON, Personal Representative of the Estate of
Richard Walter Richardson, Appellant,
v.
George KENNEDY, M.D., and Charles Town General Hospital,
Inc., dba Jefferson Memorial Hospital, Appellees.
No. 22779.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 17, 1996.
Decided July 5, 1996.

Page 419

[197 W.Va. 327] Syllabus by the Court

1. "A motion to amend or alter judgment, even though it is incorrectly denominated as a motion to 'reconsider', 'vacate', 'set aside', or 'reargue' is a Rule 59(e) motion if filed and served within ten days of entry of judgment." Syllabus Point 1, Lieving v. Hadley, 188 W.Va. 197, 423 S.E.2d 600 (1992).

2. "Calling a Rule 59(e) motion a motion to 'reconsider', 'vacate', 'set aside', or 'reargue' is confusing to a trial court, and where such motions are filed within ten days of judgment they should be correctly styled as Rule 59(e) motions to alter or amend judgment." Syllabus Point 2, Lieving v. Hadley, 188 W.Va. 197, 423 S.E.2d 600 (1992).

3. An oral motion requesting the reconsideration of an oral decision to dismiss a complaint, stating with particularity the grounds therefor, made during the course of a pretrial conference, is a timely "motion to alter or amend a judgment" sufficient to satisfy the requirements of Rules 7(b) and 59(e) of the West Virginia Rules of Civil Procedure.

4. A personal representative may be a nominal party in a wrongful death claim, nonetheless the personal representative is still the real party in interest as mandated by W. Va.Code 55-7-6 (1992).

5. When the ground for dismissal in a case is that the real party in interest did not institute the civil action, the trial court should stay the dismissal of the complaint and establish a reasonable period of time to allow someone to properly qualify as the real party in interest. Rule 17(a), West Virginia Rules of Civil Procedure.

William R. DeHaven, Martinsburg, for Appellant.

Charles F. Printz, Jr., Kimberly S. Croyle, Bowles Rice McDavid Graff & Love, Martinsburg, for Appellee Kennedy.

P. Gregory Haddad, Steptoe & Johnson, Morgantown, Curtis G. Power, III, Steptoe & Johnson, Martinsburg, for Appellee Jefferson Memorial.

RECHT, Justice:

We are asked to review the dismissal of a wrongful death action which was brought in the names of (1) the personal representative whose authority had arguably terminated at the time the action was filed; and (2) the widow of the decedent. The Circuit Court of Jefferson County dismissed the cause of action brought by Joseph Richardson, as personal representative of his deceased brother Richard Walter Richardson, upon the defendant's assertion that the personal representative's authority ended after the discharge of the administrator's bond. The circuit court also dismissed the action brought by Cheryl Richardson, presumably because she lacked the capacity to sue. Because this wrongful death action was dismissed contrary to the provisions of Rule 17(a) of the West Virginia Rules of Civil Procedure, we reverse and remand for further proceedings.

I.

FACTS AND PROCEDURAL HISTORY

This action was filed by Joseph Richardson, as administrator of the estate of Richard Walter Richardson, and by Cheryl Richardson, the decedent's widow (hereinafter "appellant") on June 30, 1992, against Dr. George Kennedy and Charles Town Memorial Hospital, Inc., dba Jefferson Memorial Hospital (hereinafter "appellees"), alleging the medical mismanagement of Richard Richardson. 1

The complaint alleges that on July 2, 1990, Richard Richardson arrived at the Jefferson Memorial Hospital complaining of chest

Page 420

[197 W.Va. 328] pains. He was examined by Dr. George Kennedy, who advised Mr. Richardson that his chest pains were the result of a poor diet and recommended a change in eating habits and a few days respite from work. Mr. Richardson's chest pains recurred as he was preparing to leave the hospital, and Dr. Kennedy prescribed an antacid remedy and sent Mr. Richardson home. Mr. Richardson died of a heart attack a few hours after being discharged from the hospital. The allegations of medical mismanagement are that the diagnosis and treatment of Mr. Richardson were wrong.

Richard Richardson died intestate. Joseph Richardson, the decedent's brother, qualified as administrator of the estate of Richard Richardson on July 13, 1990. See W. Va.Code 44-1-6 (1923). An appropriate bond and approved surety were executed contemporaneously with the appointment. The entire estate was distributed to the only heir-at-law, the decedent's widow, Cheryl Richardson. According to the appraisement filed on July 31, 1990, the only probate assets in the estate included a motor vehicle and miscellaneous personal property. The remainder of the estate was non-probate assets of both real and personal property held as joint tenants with a right of survivorship.

The Record of Fiduciaries of Jefferson County is meager in providing information relating to the administration of this estate other than revealing the date of qualification; the amount of the bond and identity of the surety; and the date of the filing of the appraisement and recording information relating to the inheritance tax release. The Record contained no date of final settlement or information as to when the administration of the estate was concluded. The State of West Virginia Department of Tax and Revenue filed a Certificate of Non-Liability and Release of Lien for Estate Tax on September 12, 1990.

On June 25, 1992, approximately one week prior to the expiration of the statute of limitations for filing a wrongful death claim, 2 Cheryl Richardson, the sole beneficiary of her husband's estate, appeared before the County Commission of Jefferson County and requested that her husband's estate be reopened, and that she be substituted as the Administratrix of the estate. The County Commission of Jefferson County denied the request and memorialized its decision in an order entered May 26, 1993, 3 stating that the estate appeared to be closed and, consequently, it did not have authority to reopen the estate. Cheryl Richardson did not appeal the May 26, 1993 order. See W. Va.Code 58-3-1 (1993). 4

This wrongful death action was filed on June 30, 1992. The complaint designated the plaintiffs as Joseph Richardson, personal representative of the estate of Richard Walter Richardson, deceased, and Cheryl Richardson, widow and sole beneficiary of the estate of Richard Walter Richardson, deceased.

During the course of a pretrial conference on May 13, 1994, the trial court, pursuant to a motion in limine filed by appellee Kennedy, "struck" Cheryl Richardson as a party plaintiff. 5

Page 421

[197 W.Va. 329] During the course of a continued pretrial conference conducted on May 23, 1994, the court dismissed the balance of the complaint on the grounds that the remaining plaintiff, Joseph Richardson, (1) was unaware of the filing of the complaint; and (2) was not duly appointed or qualified as the personal representative to bring this action and therefore lacked capacity to sue. The legal basis for that decision was W. Va.Code 55-7-6(a) (1992), requiring a wrongful death action to be filed by the personal representative of the decedent. 6

There is no record of the pretrial conference of May 23, 1994; accordingly, all of the trial court's findings of fact and conclusions of law preceding the dismissal of the complaint were orally announced from the bench. However, we learn what occurred during that conference by virtue of an "Order of Dismissal" entered on June 2, 1994, which is represented as an accurate memorial of what occurred during that conference. That order reveals that the appellant orally moved the court to reconsider its decision dismissing the complaint. The trial court acknowledged that motion and granted leave to serve "supporting memorandum of authorities and argument and proposed order, with copies to the Court and opposing counsel, on or before June 20, 1994."

Obedient to the direction of the trial court, the appellant filed a memorandum supporting the motion to reconsider, with the greatest portion of that memorandum devoted to attempting to persuade the trial court why Joseph Richardson could still be recognized as the personal representative of his brother's estate and therefore would be entitled to continue the maintenance of the wrongful death claim. In addition, the memorandum urged the trial court to "reconsider" allowing Cheryl Richardson to remain as the real party in interest. As an adjunct to this phase of the "Motion to Reconsider," the appellant filed a Motion to Reinstate Cheryl Richardson as a party plaintiff.

The trial court denied the motions for reconsideration and to reinstate Cheryl Richardson as a party plaintiff by order entered July 6, 1994. This appeal challenging that decision was filed on November 4, 1994.

II.

TIMELINESS OF APPEAL

The threshold issue we need to address is whether this appeal was timely filed within the required four-month period of the entry of the order which is the subject of this appeal, as required by W. Va. R.App. P. 3(a) and W. Va.Code 58-5-4 (1990).

The appellees contend that the final appealable order was entered on June 2, 1994, which embodied what transpired at the pretrial conference on May 23, 1994. The appellees maintain that if the order entered on June 2, 1994 is the final appealable order, then an appeal filed on November 4, 1994 would be untimely.

We accept the appellees' contention that the order of June 2, 1994 did formally announce that the complaint was dismissed because Joseph Richardson, the remaining plaintiff, lacked the capacity to maintain this wrongful death claim within the provisions of W. Va.Code 55-7-6 (1992). However, that same order tells us that the plaintiff made a "motion to reconsider" that decision on May 23, 1994. Despite our repeated direction to the bench and bar of this State that a...

To continue reading

Request your trial
27 practice notes
  • DeVane v. Kennedy, No. 25206.
    • United States
    • Supreme Court of West Virginia
    • March 26, 1999
    ...DeVane, the decedent's widow and the sole beneficiary of his estate, to qualify as the real party in interest. Richardson v. Kennedy, 197 W.Va. 326, 475 S.E.2d 418 (1996). Thereafter, on October 21, 1996, the County Commission of Jefferson County named Mrs. DeVane administratrix of the dece......
  • Manor Care, Inc. v. Douglas, No. 13–0470.
    • United States
    • Supreme Court of West Virginia
    • June 18, 2014
    ...that a wrongful death action ... must be brought by the personal representative of a decedent's estate.’ ” Richardson v. Kennedy, 197 W.Va. 326, 332, 475 S.E.2d 418, 424 (1996) (quoting Trail v. Hawley, 163 W.Va. 626, 628, 259 S.E.2d 423, 425 (1979) ). Nevertheless, we also have recognized ......
  • Keesecker v. Bird, No. 23386
    • United States
    • Supreme Court of West Virginia
    • July 14, 1997
    ...representing another's interests. See 4 James W. Moore, Moore's Federal Practice, 3d Edition, § 17.10. In Richardson v. Kennedy, 197 W.Va. 326, 475 S.E.2d 418 (1996), we noted that the personal representative of a decedent's estate, while a nominal party in a wrongful death claim, is still ......
  • J.H. v. Div. Of Rehabilitation Services, No. 33918.
    • United States
    • Supreme Court of West Virginia
    • June 23, 2009
    ...Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995); see Richardson v. Kennedy, 197 W.Va. 326, 331, 475 S.E.2d 418, 423 (1996). Having established the applicable standard of review, the Court now considers the parties' III. Discussion T......
  • Request a trial to view additional results
27 cases
  • DeVane v. Kennedy, No. 25206.
    • United States
    • Supreme Court of West Virginia
    • March 26, 1999
    ...DeVane, the decedent's widow and the sole beneficiary of his estate, to qualify as the real party in interest. Richardson v. Kennedy, 197 W.Va. 326, 475 S.E.2d 418 (1996). Thereafter, on October 21, 1996, the County Commission of Jefferson County named Mrs. DeVane administratrix of the dece......
  • Manor Care, Inc. v. Douglas, No. 13–0470.
    • United States
    • Supreme Court of West Virginia
    • June 18, 2014
    ...that a wrongful death action ... must be brought by the personal representative of a decedent's estate.’ ” Richardson v. Kennedy, 197 W.Va. 326, 332, 475 S.E.2d 418, 424 (1996) (quoting Trail v. Hawley, 163 W.Va. 626, 628, 259 S.E.2d 423, 425 (1979) ). Nevertheless, we also have recognized ......
  • Keesecker v. Bird, No. 23386
    • United States
    • Supreme Court of West Virginia
    • July 14, 1997
    ...representing another's interests. See 4 James W. Moore, Moore's Federal Practice, 3d Edition, § 17.10. In Richardson v. Kennedy, 197 W.Va. 326, 475 S.E.2d 418 (1996), we noted that the personal representative of a decedent's estate, while a nominal party in a wrongful death claim, is still ......
  • J.H. v. Div. Of Rehabilitation Services, No. 33918.
    • United States
    • Supreme Court of West Virginia
    • June 23, 2009
    ...Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995); see Richardson v. Kennedy, 197 W.Va. 326, 331, 475 S.E.2d 418, 423 (1996). Having established the applicable standard of review, the Court now considers the parties' III. Discussion T......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT