Rose v. THOMAS MEMORIAL HOSP. FOUNDATION

• Decision Date: 14 June 2000
• Docket Number: No. 26603.,26603.
• Citation: 541 S.E.2d 1,208 W. Va. 406
• Parties: Patsy L. ROSE, Plaintiff Below, Appellant, v. THOMAS MEMORIAL HOSPITAL FOUNDATION, INC., Defendant Below, Appellee.
• Court: West Virginia Supreme Court

541 S.E.2d 1

208 W. Va. 406

Patsy L. ROSE, Plaintiff Below, Appellant, v. THOMAS MEMORIAL HOSPITAL FOUNDATION, INC., Defendant Below, Appellee.

No. 26603.

Supreme Court of Appeals of West Virginia.

Submitted May 3, 2000.

Decided June 14, 2000.

Concurring Opinion of Justice Starcher June 28, 2000.

Dissenting Opinion of Justice McGraw January 16, 2001.

Robert G. Wolpert, Esquire, Charleston, for Plaintiff.

Thomas J. Hurney, Esquire, Karen M.R. Weber, Esquire, Jackson & Kelly, Charleston, for Defendant.

PER CURIAM.

This is an appeal by Patsy Rose (hereinafter "Appellant") from a January 6, 1999, order of the Circuit Court of Kanawha County denying the Appellant's motion to vacate a May 1, 1998, order dismissing with prejudice her amended complaint against the "Herbert J. Thomas Memorial Hospital Association" (hereinafter "hospital" or "Appellee"). The Appellant contends that the lower court erred in denying the motion to vacate the May 1, 1998, order. Upon evaluation of the record, briefs, and arguments of counsel, we affirm the decision of the lower court.

I. Facts

On July 17, 1997, the Appellant filed a medical malpractice action against "Thomas Memorial Hospital Foundation, Inc.," (hereinafter "Foundation") alleging that a cerebral aneurysm suffered by the Appellant was not properly diagnosed during an emergency room visit on July 21, 1995.¹ On November 14, 1997, the Secretary of State accepted service as statutory agent for the Foundation, and the complaint was served on the Foundation. On November 24, 1997, the Foundation moved to dismiss the complaint, explaining that it was a charitable corporation not involved in the management of the hospital.

Recognizing the misnomer regarding the proper name of the hospital defendant, the Appellant moved to amend the complaint on December 9, 1997, under Rule 15 of the West Virginia Rules of Civil Procedure and sought to name the "Herbert J. Thomas Memorial Hospital Association" as the proper defendant. Subsequent to a January 9, 1998, hearing, the lower court dismissed the Foundation with prejudice and also dismissed the civil action against the hospital, based upon the lower court's determination that the hospital was not served with the complaint during the two-year statute of limitations nor did it have notice of the Appellant's claims within that limitations period.

Specifically, the lower court acknowledged that Rule 15(c)² of the West Virginia Rules of Civil Procedure governs the relation back of amendments to complaints and provided, at the time of the January 1998 hearing, as follows:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

The lower court relied upon this Court's guidance in the syllabus of Maxwell v. Eastern Associated Coal Corp., 183 W.Va. 70, 394 S.E.2d 54 (1990), decided under the pre-1998 Rule 15(c):

Where a plaintiff seeks to change a party defendant by a motion to amend a complaint under Rule 15(c) of the West Virginia Rules of Civil Procedure, the amendment will relate back to the filing of the original complaint only if the proposed new party defendant, prior to the running of the statute of limitations, received such notice of the institution of the original action that he will not be prejudiced in maintaining his defense on the merits and that he knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

183 W.Va. at 70, 394 S.E.2d at 54, Syllabus.

The parties presented no evidence of notice to any defendant until the complaint was served upon the Foundation on November 14, 1997, approximately four months after the expiration of the statute of limitations. Based upon the version of Rule 15(c) applicable at that time, the lower court dismissed the action and explained as follows during the January 9, 1998, hearing:

Mr. Wolpert, for appeal purposes, I don't know that it helps you. I'm going to allow the amendment, substituting as a—as the real defendant Herbert J. Thomas Hospital Association, but I'm going to find that the amendment does not relate back to the date of the filing of this lawsuit and that by testimony submitted to the Court, the first notice that Herbert J. Thomas Memorial Hospital Association had was when this suit was filed with the Secretary of State's office on or about November 5, 1997, [this date was stated to be November 14, 1997, in other references] and that that date is outside the statute of limitations and therefore those actions are barred by the running of the statute of limitations, therefore the case will be dismissed.

Despite that oral ruling of the lower court, the May 1, 1998, written order denied the motion to amend and dismissed the action based upon failure of the complaint to relate back pursuant to Rule 15(c).³ A Rule 59(e)⁴ motion to alter or amend a judgment was not filed. On July 17, 1998, the Appellant filed a Rule 60(b)⁵ motion to vacate the May 1, 1998, order, reasserting the arguments relied upon in the motion to amend the complaint. Reference to the disparity between the oral statements of the lower court on January 9, 1998, and the precise language of the May 1, 1998, order was conspicuously absent from this Rule 60(b) motion.⁶ On August 26, 1998, the lower court conducted a hearing on the Rule 60(b) motion to vacate and denied that motion. An order denying the motion was entered on January 6, 1999, and that is that order from which the Appellant presently appeals.

II. Standard of Review

In syllabus point three of Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974), this Court addressed the scope of review of the denial of a Rule 60(b) motion and explained: "An appeal of 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." Further, in syllabus point four of Toler, we stated: "In reviewing an order denying a motion under Rule 60(b), W.Va.R.C.P., the function of the appellate court is limited to deciding whether the trial court abused its discretion in ruling that sufficient grounds for disturbing the finality of the judgment were not shown in a timely manner." Syllabus point five of Toler provided further guidance, as follows: "A motion to vacate a judgment made pursuant to Rule 60(b), W.Va. R.C.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."

III. Timeliness of Appeal

The Appellant neither appealed the May 1, 1998, order dismissing this claim nor filed a motion which would have tolled the running of the four-month appeal period which expired on September 1, 1998. While a Rule 59(e) motion to alter or amend a judgment would have tolled the appeal period, the Appellant filed only a Rule 60(b) motion which was insufficient to toll the appeal period.⁷ This critical distinction between the consequences of Rule 59(e) and Rule 60(b) motions is well-established. In syllabus point one of Toler, this Court explained that "[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 [now four months] provided by West Virginia Code, Chapter 58, Article 5, Section 4, as amended."⁸See Syl. Pt. 2, Gaines v. Drainer, 169 W.Va. 547, 289 S.E.2d 184 (1982). A Rule 59(e) motion, however, "suspend[s] the running of the time for appeal, and that time does not begin to run until the entry of an order deciding the issues raised by the motion." Riffe v. Armstrong, 197 W.Va. 626, 636, 477 S.E.2d 535, 545 (1996), holding modified on other grounds, Moats v. Preston County Comm'n, 206 W.Va. 8, 521 S.E.2d 180 (1999). In syllabus point three of Lieving v. Hadley, 188 W.Va. 197, 423 S.E.2d 600 (1992), we held: "A motion which would otherwise qualify as a Rule 59(e) motion that is not filed and served within ten days of the entry of judgment is a Rule 60(b) motion regardless of how styled and does not toll the four month appeal period for appeal to this court." See also State ex rel. McDowell County Sheriff's Dep't v. Stephens, 192 W.Va. 341, 452 S.E.2d 432 (1994).

Rule 72 of the West Virginia Rules of Civil Procedure, entitled "Running of time for appeal," provides as follows:

The full time for filing a petition for appeal commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under Rule 50(b); or granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion were granted; or granting or denying a motion under Rule 59 to alter or amend the judgment; or granting or denying a motion for a new trial under Rule 59.

In footnote five of Savage v. Booth, 196 W.Va. 65, 468 S.E.2d 318 (1996), we further elaborated upon this crucial distinction between Rule 59(e) and Rule 60(b) and explained how the use of these rules affects the jurisdiction of this Court:

Rule 59(e) and Rule 60 provide for different motions directed to similar ends. Rule 59(e) governs motions to "alter or amend" a

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