Savage v. Booth
| Citation | 196 W.Va. 65,468 S.E.2d 318 |
| Decision Date | 14 February 1996 |
| Docket Number | No. 22876,22876 |
| Court | West Virginia Supreme Court |
| Parties | Loretta SAVAGE, Mary Kline, Patricia L. Johnson, and Thelma Baisden, Plaintiffs Below, Appellees, v. Jack BOOTH, Defendant Below, Appellant. |
Appeal from the Circuit Court of Wayne County, Honorable Robert G. Chafin, Judge, Civil Action No. 92-C-547.
James A. Colburn, Baer, Colburn & Morris, Huntington, for Appellees.
J. William St. Clair, St. Clair & Levine, Huntington, for Appellant.
The defendant below and appellant herein, Jack Booth, appeals the final order of the Circuit Court of Wayne County entered on January 23, 1995. In that order, the trial court denied the January 7, 1995, motion by the defendant for relief from judgment on a jury verdict returned on October 4, 1994.
[196 W.Va. 67] The trial court denied the defendant's motion after the plaintiffs below and appellees herein, Loretta Savage, Mary Kline, Patricia L. Johnson, and Thelma Baisden, moved the trial court to reconsider its initial ruling on January 13, 1995, which granted the defendant's motion. In the final order, the trial court denied the defendant's motion on the grounds it was untimely filed under Rule 59(e) of the West Virginia Rules of Civil Procedure. 1 The defendant argues on appeal that the trial court erred by determining that his motion was time barred under Rule 59(e) because it should have been considered pursuant to either Rule 60(a) or Rule 60(b)(5) of the West Virginia Rules of Civil Procedure. 2 On appeal, we agree that the defendant's motion should have been granted pursuant to Rule 60(a)
The underlying facts of this case involve a sexual harassment suit brought by the plaintiffs against Jack Booth, the Tri-State Airport Authority, and the Red Baron Restaurant. The plaintiffs were employed by the defendant who operated the Red Baron Restaurant located at the Tri-State Airport. The plaintiffs complained that the defendant subjected them to a variety of outrageous acts of sexual harassment and that the Tri-State Airport Authority failed to supervise him.
The case went to trial, and, at the close of the plaintiffs' evidence, the Tri-State Airport Authority made a motion for a directed verdict. The motion was granted with respect to the plaintiff, Thelma Baisden, but was denied as to the remaining three plaintiffs. Thereafter, a settlement agreement was reached between all named plaintiffs and the Tri-State Airport Authority in the amount of $50,000. At no time was the jury informed about this settlement agreement. The case then proceeded against the defendant who appeared pro se.
After hearing all the evidence, the jury returned a verdict in favor of the remaining three plaintiffs in the sum of $40,000. 3 On October 11, 1994, the trial court entered a judgment order on the verdict against the defendant in the amount of $40,000. The order gave no credit nor made any reference to the settlement agreement.
The defendant did not file any post-trial motion until January 7, 1995. 4 In that motion, the defendant asked the trial court pursuant to Rule 60 to vacate the October 11, 1994, judgment order, to give credit for the $50,000 settlement previously received by the plaintiffs, and to enter a new order stating that there is no balance due the plaintiffs from the defendant.
A hearing was held on the motion on January 13, 1995, and the trial court initially ruled that the defendant was entitled to have the settlement amount applied to the verdict against him. However, upon a motion for
[196 W.Va. 68] reconsideration filed by the plaintiffs, the trial court changed its decision ruling the defendant failed to file a timely motion pursuant to Rule 59(e). The trial court also ruled but for the timeliness problem the defendant would have been entitled to receive credit against the verdict.
We first must determine the scope of appellate review in the instant case. We repeatedly have emphasized that the West Virginia Rules of Civil Procedure do not recognize a "motion for reconsideration." This Court will consider a motion for reconsideration in one of two ways. If a motion is filed within ten days of judgment, the motion is treated as a motion to alter or amend judgment under Rule 59(e). Alternatively, if it is filed more than ten days after entry of judgment, we look to Rule 60(b) to provide the basis for analysis of the review. 5 The trial court ruled that Rule 59(e) was not applicable because the motion for reconsideration was not filed within ten days after the final judgment order had been entered. As to this point, we agree. The defendant's motion for reconsideration was labeled a Rule 60 motion and the trial court made no reference to Rule 60 in denying relief. The defendant now appeals this aspect of the trial court's decision and, for reasons discussed below, we reverse and remand.
Rule 60(a) is designed to correct clerical errors in "judgments, orders, or other parts of the record as well as the correction of errors arising from oversight or omission." 11 Charles A. Wright, Arthur R. Miller, and Mary K. Kane, Federal Practice and Procedure § 2854 at 239 (1995). 6 We recently discussed the requirements of Rule 60(a) in Johnson v. Nedeff, 192 W.Va. 260, 452 S.E.2d 63 (1994), where we stated in Syllabus Point 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."
See also Syl. pt. 4, Barber v. Barber, 195 W.Va. 38, 464 S.E.2d 358 (1995). We further explained in Johnson that " ' "a motion under Rule 60(a) can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what originally was pronounced" ' " while more substantial errors " ' "are to be corrected by a motion under Rules 59(e) or 60(b)." ' " 192 W.Va. at 265, 452 S.E.2d at 68, quoting Woods v. Guerra, 187 W.Va. 487, 489, 419 S.E.2d 900, 902 (1992), quoting Charles A. Wright and Arthur R. Miller In Johnson, 192 W.Va. at 265, 452 S.E.2d at 68, we also quoted Stephenson v. Ashburn, 137 W.Va. 141, 146, 70 S.E.2d 585, 588 (1952), which defined a clerical error under W.Va.Code, 58-2-5 (1923), 7 the predecessor to Rule 60(a), as:
[196 W.Va. 69] Federal Practice and Procedure § 2854 at 149 (1973).
" 'An error committed in the performance of clerical work, no matter by whom committed; more specifically, a mistake in copying or writing; a mistake which naturally excludes any idea that its insertion was made in the exercise of any judgment or discretion, or in pursuance of any determination; an error made by a clerk in transcribing, or otherwise, which must be apparent on the face of the record, and capable of being corrected by reference to the record only.' " (Citation omitted).
See also Barber v. Barber, 195 W.Va. 38, 42-43, 464 S.E.2d 358, 362-63 (1995).
In Abbot v. Bonsall, 164 W.Va. 17, 263 S.E.2d 78 (1979), we faced an analogous situation to the one at bar. In Abbot, the trial court acknowledged " 'that a mistake was indeed made' " in a final decree setting forth the amount a husband owed his wife in child support and alimony. 164 W.Va. at 17-18, 263 S.E.2d at 78. The husband moved the trial court to correct the error pursuant to Rule 60(a), but the trial court refused on the grounds the motion was made "more than eight months after the erroneous order--a time limit set in Rule 60(b)." 164 W.Va. at 17-18, 263 S.E.2d at 78. We held that the error was "purely clerical, involving miscalculation of the child support both by counsel in the separation agreement and by the court in the final decree." 164 W.Va. at 18, 263 S.E.2d at 78. We, therefore, concluded the trial court was not time barred from correcting the mistake. 164 W.Va. at 18, 263 S.E.2d at 79. 8
In a substantially similar case to the one at bar, the Supreme Judicial Court of Maine held in Mockus v. Melanson, 615 A.2d 245 (Me.1992), that the lower court properly utilized Rule 60(a) of the Maine Rules of Civil Procedure when it deducted a settlement amount from an original default judgment that previously was entered. In Mockus, the party who was awarded the default judgment argued that the opposing party's failure "to request the set-off at the hearing on her motion for a default judgment or to seek an amendment of the judgment as provided in M.R.Civ.P. 59(e), foreclose[d] the court from granting [the opposing party's] motion pursuant to M.R.Civ.P. 60(b)(6)." 615 A.2d at 247-48. The Supreme Judicial Court found the lower court was required to give credit for the settlement as a matter of law, and, thus, there was no error in...
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