State v. McGraw

Citation243 W.Va. 12,842 S.E.2d 216
Decision Date06 March 2020
Docket NumberNo. 19-0772,19-0772
CourtSupreme Court of West Virginia
Parties STATE of West Virginia EX REL. JOHNSON & FREEDMAN, LLC, and David C. Whitridge, Petitioners v. The Honorable Warren R. MCGRAW, Judge of the Circuit Court of Wyoming County, and Nadine R. Rice, Respondents.

243 W.Va. 12
842 S.E.2d 216

STATE of West Virginia EX REL. JOHNSON & FREEDMAN, LLC, and David C. Whitridge, Petitioners
v.
The Honorable Warren R. MCGRAW, Judge of the Circuit Court of Wyoming County, and Nadine R. Rice, Respondents.

No. 19-0772

Supreme Court of Appeals of West Virginia.

Submitted: January 15, 2020
Filed: March 6, 2020


J. Mark Adkins, Esq., Joshua A. Lanham, Esq., BOWLES RICE LLP, Charleston, West Virginia, Counsel for Petitioners

Samuel A. Hrko, Esq., BAILEY & GLASSER, LLP, Charleston, West Virginia, Scott S. Segal, Esq., THE SEGAL LAW FIRM, Charleston, West Virginia, Counsel for Respondents

WALKER, Justice:

842 S.E.2d 218

Nadine R. Rice filed a complaint in the Circuit Court of Wyoming County in 2010 claiming that Homecomings Financial, LLC and Petitioners Johnson & Freedman, LLC, and David C. Whitridge negligently ejected her from her home. For various reasons, including the bankruptcy of Homecomings, Ms. Rice's case did not progress. In February 2019, Petitioners moved the circuit court to dismiss the case with prejudice under West Virginia Rule of Civil Procedure 41(b). The circuit court denied Petitioners’ motion, concluding that good cause justified Ms. Rice's delay and that Petitioners would not be substantially prejudiced if the case continued. Petitioners now ask this Court to issue a writ prohibiting the circuit court from enforcing its order denying their motion. Because Petitioners have not shown that the circuit court's order is either clearly erroneous as a matter of law or a flagrant abuse of its discretion, we deny the writ.

I. PROCEDURAL BACKGROUND

Ms. Rice sued Homecomings and Petitioners in the Circuit Court of Wyoming County in May 2010. She made two claims against Homecomings (Count I, quiet title; Count II, unlawful detainer/ejectment) and five claims against Homecomings and Petitioners (Count III, trespass; Count IV, abuse of process; Count V, negligence; Count VI, negligent infliction of emotional distress; and County VII, punitive damages). Ms. Rice served the summonses and complaints in July 2011.1

Petitioners answered Ms. Rice's complaint in August 2011. Homecomings answered that same month and filed a cross-claim against Petitioners for contribution and indemnification. Petitioners answered Homecomings’ cross-claim in December 2011 and asserted their own cross-claim for contribution. That

842 S.E.2d 219

same month, Ms. Rice served answers to Homecomings’ first set of discovery requests. In April 2012, Petitioners answered discovery served by Homecomings and produced 152 pages of documents.

Homecomings filed for Chapter 11 bankruptcy on May 14, 2012. It also filed a Notice of Bankruptcy and Effect of Automatic Stay with the circuit court. Approximately four years later, on April 26, 2016, Homecomings filed a Bankruptcy Status Report stating that the Bankruptcy Court had approved its Chapter 11 plan on December 11, 2013 and that the Chapter 11 plan and an accompanying order had "enjoin[ed] all parties from ‘commencing or continuing in any manner or action or other proceeding of any kind’ relating to claims that are released under the [Chapter 11 plan]." The Status Report also relayed that Petitioners did not file a proof of claim in the bankruptcy case so they could not prosecute their cross-claim for contribution from Homecomings in circuit court. But, Ms. Rice had filed the requisite proof of claim and had settled with Homecomings in the bankruptcy. By agreed orders, the circuit court dismissed all of the claims against Homecomings (including Petitioners’ cross-claims) in November 2016. After November 2016, only Ms. Rice's claims against Petitioners remained.

In February 2019, Petitioners moved to dismiss Ms. Rice's remaining claims with prejudice under West Virginia Rule of Civil Procedure 41(b)2 because she had failed to prosecute her claims for approximately eight years—that is, from the time she served the summonses and complaints in 2011 until 2019. Ms. Rice responded that Homecomings’ bankruptcy stalled the case from 2012 until late in 2016 and that the parties’ counsel had communicated several times about "getting the matter back on track." Ms. Rice also stressed that dismissal under Rule 41(b) is a matter left to the circuit court's discretion, good cause supported her delay, and the delay had not prejudiced Petitioners. Petitioners replied that Ms. Rice had failed to show good cause for her inactivity after the bankruptcy court lifted the stay in 2013, that they were not responsible for helping her get her case "back on track," and that Ms. Rice's inactivity showed that dismissal would not prejudice her. The circuit court conducted a hearing on Petitioners’ motion on April 17, 2019.

In an order dated May 9, 2019, the circuit court denied Petitioners’ motion, reasoning that dismissal under Rule 41(b) was a harsh sanction appropriate only in flagrant cases to be imposed at a court's discretion. The circuit court also found that the stay attendant to Homecomings’ bankruptcy was good cause for Ms. Rice's delay and that the delay had not prejudiced Petitioners. They now seek a writ from this Court prohibiting the circuit court from enforcing its May 9, 2019 order.

II. STANDARD OF REVIEW

Petitioners seek an extraordinary writ to prevent the circuit court from acting beyond what they contend are the court's legitimate powers. In Woodall v. Laurita , we described the circumstances when this Court will exercise it original jurisdiction to grant prohibition:

Where prohibition is sought to restrain a trial court from the abuse of its legitimate powers, rather than to challenge its jurisdiction, the appellate court will review each case on its own particular facts to determine whether a remedy by appeal is both available and adequate, and only if the appellate court determines that the abuse of powers is so flagrant and violative of petitioner's rights as to make a remedy by appeal inadequate, will a writ of prohibition
842 S.E.2d 220
issue.[3 ]

Subject to this Court's discretion, a petitioner may satisfy that exacting standard in two ways. First, the petitioner may demonstrate that the court has committed a clear error of law that is "substantial, clear-cut, [and] plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts ...."4 Or, second, the petitioner may show that the court has abused its discretion in an extraordinary way, that is, in circumstances demonstrating more than a "simple abuse of discretion by the trial court."5

To determine whether to exercise our discretion to grant a writ of prohibition, we also consider the familiar factors of State ex rel. Hoover v. Berger . Those factors are:

(1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression.[6 ]

Importantly, the Hoover factors elaborate on, but do not relax, the standards articulated by this Court in earlier precedent. We now apply the authority cited above to the petition before us.

III. DISCUSSION

We summarize the parties’ positions regarding the length of the inactivity in Ms. Rice's case before turning to Rule 41(b) and the substance of Petitioners’ arguments. Petitioners maintain that Ms. Rice was not subject to the stay imposed by Homecomings’ bankruptcy in 2012. According to Petitioners, this means that she was free to proceed with her case, but did not, from July 2011 (when she served the summonses and complaints) until they filed their motion to dismiss for inactivity under Rule 41(b) in February 2019—a period of 91 months. On the other hand, Ms. Rice asserts that the bankruptcy stay and the ensuing injunction prevented her from prosecuting her claims against Petitioners until April 2016, when Homecomings filed the Bankruptcy Status Report. Ms. Rice also argues that, while the case docket may not reflect activity on her part between April 2016 and February 2019, she corresponded with Petitioners during that time in hopes of getting her case "back on track." To resolve these arguments, we first review Rule 41(b).

A. West Virginia Rule of Civil Procedure 41(b)

Petitioners seek a writ to prohibit the circuit court from enforcing its order denying their motion to dismiss Ms. Rice's claims under West Virginia Rule 41(b). Rule 41(b) states that "[a]ny court in which is pending an action wherein for more than one year there has been no order or proceeding ... may, in its discretion, order such action to be struck from its docket; and it shall thereby be discontinued." The rule empowers a circuit

842 S.E.2d 221
...

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