Toler v. Shelton

• Decision Date: 09 April 1974
• Docket Number: No. 13188,13188
• Citation: 204 S.E.2d 85,157 W.Va. 778
• Parties: Pierce TOLER v. J. A. SHELTON.
• Court: West Virginia Supreme Court

Page 85

204 S.E.2d 85

157 W.Va. 778

Pierce TOLER v. J. A. SHELTON.

No. 13188.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 30, 1973.

Decided April 9, 1974.

Syllabus by the Court

1. 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 provided by West Virginia Code, Chapter 58, Article 5, Section 4, as amended.

2. An order denying a motion under Rule 60(b), W.Va.R.C.P., is final and appealable.

3. 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.

4. 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.

5. 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.

6. A court, in the exercise of discretion given it by the remedial provisions of Rule 60(b), W.Va.R.C.P., should recognize that the rule is to be liberally construed for the purpose of accomplishing justice and that it was designed to facilitate the desirable legal objective that cases are to be decided on the merits.

7. Neither an appellate court nor a trial court should act to vacate a judgment by reason of procedural defects where the movant's claim or defense is devoid of merit.

8. Where a movant demonstrates a colorably meritorious claim and offers unrefuted proof that a judgment of dismissal with prejudice was entered against him without the notice required by Rule 6(d), W.Va.R.C.P., the refusal of the trial court to vacate the dismissal order pursuant to a timely motion under Rule 60(b), W.Va.R.C.P., constitutes an abuse of discretion warranting a reversal and remand of the case.

D. Grove Moler, Mullens, for appellant.

No appearance for appellee.

HADEN, Justice:

This is an appeal from a final order of the Circuit Court of McDowell County which denied Pierce Toler's Rule 60(b), West Virginia Rules of Civil Procedure motion to vacate a judgment of dismissal with prejudice entered against him upon a plea of Res judicata. At issue is whether the trial court abused its discretion in refusing to vacate the order dismissing the action.

As a result of an automobile accident of August 7, 1968, Pierce Toler and his wife Pansy, suffered personal injuries and property damage allegedly caused by the negligence of Shelton, an uninsured motorist. Subsequently, the Tolers employed attorney West to prosecute their claims. They instituted two civil actions against Shelton, the appellee herein.

Although the allegations of negligence were identical in both complaints, the damage claims were separated. In the case before this Court on appeal, 'Pierce Toler v. J. A. Shelton, Civil Action 4924,' the Ad damnum clause sought ten thousand dollars for personal injuries, pain and suffering, loss of wages, the plaintiff's medical expenses, and a total loss of his automobile. In the second case which is not before this Court, 'Pansy Toler and Pierce Toler v. J. A. Shelton, Civil Action 4925,' the Ad damnum clause sought a recovery of one thousand dollars for Pansy Toler's personal injuries, her pain and suffering, Pierce Toler's payment of Pansy Toler's medical expenses, and Pierce Toler's loss of his wife's consortium. Shelton filed timely answers asserting defenses to the civil actions.

At the request of the plaintiffs, both cases were called for trial on February 24, 1969. Neither case was tried on that date because, according to the appellant, a pretrial agreement was reached in which Shelton, the uninsured motorist, agreed to the entry of a consent judgment against him, in Civil Action No. 4925 for the amount of one thousand dollars in consideration of the Tolers' acquiescence to the restoration of his driving privileges. The purported plan to satisfy the judgment was that Shelton would pay one hundred dollars in cash to the Tolers, and, upon entry of the judgment order, the Department of Motor Vehicles, Safety Responsibility Division, would release Shelton's nine hundred dollar security deposit, required in absence of insurance coverage, to the Tolers. Further, according to the appellant, Shelton also agreed that the mechanics of settlement would leave open for additional litigation the civil action involved in this appeal, so that Pierce Toler could assert his remaining damage claims. Then, in the event of subsequent judgment against Shelton, Toler could pursue satisfaction against his own insurer according to an uninsured motorist endorsement contained in his automobile liability insurance policy.

Although the foregoing agreement was allegedly made on the aborted trial date, it was not acted upon by the parties until July of 1969 when appellant's counsel took action which would have placed both cases again on the trial calendar of the circuit court. On August 1, 1969, a final judgment order, prepared by Shelton's counsel, was entered in favor of the Tolers and against Shelton in the amount of one thousand dollars in Civil Action No. 4925. Although the appellant's counsel claimed no notice of the entry of the order, a copy of the judgment order as entered was transmitted to him several days later by Shelton's counsel. Significantly, that order omitted any reservation of right to proceed against the defendant Shelton in the instant case, and contained no reference to the alleged compromise of the previous February.

Then on August 16, 1969, unbeknownst to Toler or his counsel, the defendant through counsel, lodged a plea of Res judicata in the court file in the instant action. However, three days later, Shelton's counsel notified West by mail that the plea had been filed and also transmitted to him a payment of one hundred dollars from Shelton to be applied Pro tanto to the judgment. West subsequently sent the judgment order to the Financial Responsibility Division of the Department of Motor Vehicles, claiming and obtaining for his client the nine hundred dollars deposited previously by Shelton.

No further action was taken on the plea Of res judicata until February 16, 1970, when the Circuit Court of McDowell County dismissed the remaining civil action against Shelton, with prejudice, upon the plea. The action taken by the court was apparently unknown to Marshall G. West or, if known, was overlooked by him.

Sometime later, after discharging West and receiving a release from him, Pierce Toler secured the services of his present counsel, D. Grove Moler, to go forward with the prosecution of his 'remaining' claim against Shelton. Unaware of the previous occurrences resulting in the dismissal of the case, Toler's new counsel, on June 8, 1970, requested that the Circuit Clerk of McDowell County place the Toler case on the trial docket for the August term of 1970. The clerk immediately responded to Moler that the case had been dismissed.

In September 1970, Moler moved pursuant to Rule 60(b), W.Va.R.C.P. that the order of dismissal in Civil Action No. 4924 be vacated; that the action be reinstated for hearing and trial; and that the court permit plaintiff to serve State Farm Mutual Insurance Company, Toler's uninsured motorist carrier, with copies of the pleadings in the case.

His motion, supported by the affidavits of Toler and his former attorney, Marshall West, assigned grounds as follows: (1) that the purported reservation of right to proceed with the second action was inadvertently omitted in the dismissal order resolving the first action, and that, by reason of all the other facts and circumstances attendant to the case, the plea of Res judicata and the sustaining action of the court represented a judgment entered by mistake, surprise, inadvertence and excusable neglect of counsel; (2) that the substantive rule prohibiting the splitting of causes of action, normally justifying a subsequent plea of Res judicata, was inapplicable when the defendant has waived the benefit of the rule and the defendant should have been estopped to make the plea; and (3) that Toler had and has a meritorious claim for personal injuries and property damage, and that nothing had occurred since the entry of the judgment or dismissal which would prejudice the defendant in any manner.

On the record, the defendant did not resist the appellant's motion; he did not file a reply pleading or counter-affidavits. On March 29, 1971, after hearing arguments by appellant's counsel, and after considering the motion with its attached affidavits and exhibits, the trial court overruled and denied the appellant's 60(b) motion.

Two errors are assigned on this appeal. First, the appellant says that the trial court erroneously dismissed the civil action upon the defendant's plea of Res judicata. Second, he asserts that the court erroneously overruled and denied appellant's post-judgment motion to vacate the order of dismissal.

This Court lacks jurisdiction to consider a direct appeal of the final judgment entered in this case. The judgment was entered on the 16th day of February, 1970, more than eight months prior to the filing of a proper petition for appeal in this Court. Unlike the effect of timely motions made pursuant to Rules 50(b), 52(b) and 59 of the Rules of Civil Procedure, a motion made pursuant to Rule 60 does not toll the running of the appeal time of eight months provided by West Virginia Code, Chapter 58, Article 5, Section 4, as amended. Rule 60(b) explicitly states, 'A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.' Rule 72 recognizes the few exceptions which toll the...