Tolliver v. Maxey

• Decision Date: 16 December 2005
• Docket Number: No. 32557.,32557.
• Citation: 624 S.E.2d 856
• Court: West Virginia Supreme Court
• Parties: Posey Dwight TOLLIVER and Beverly S. Tolliver, Plaintiffs Below, Appellants, v. Terry MAXEY and Carolyn Maxey, Defendants Below, Appellees.

624 S.E.2d 856

Posey Dwight TOLLIVER and Beverly S. Tolliver, Plaintiffs Below, Appellants, v. Terry MAXEY and Carolyn Maxey, Defendants Below, Appellees.

No. 32557.

Supreme Court of Appeals of West Virginia.

Submitted September 7, 2005.

Decided November 23, 2005.

Dissenting Opinion of Justice Starcher December 16, 2005.

Syllabus by the Court

1. "A motion to reinstate a dismissed action under the terms of W. Va.Code, 56-8-12 [W. Va. R.C.P. 41(b)], is addressed to the sound discretion of the trial court, and, in the absence of a showing of abuse of that discretion, the action of the trial court upon such motion will not be disturbed upon writ of error. Higgs v. Cunningham, 71 W.Va. 674, 77 S.E. 273 [1913]." Syl., Murray v. Roberts, 117 W.Va. 44, 183 S.E. 688 (1936).

2. "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." Syl. pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).

3. "`Under W. Va. R. Civ. P. 41(b), in order to reinstate a cause of action which has been dismissed for failure to prosecute, the plaintiff must move for reinstatement within three terms of entry of the dismissal order and make a showing of good cause which adequately excuses his neglect in prosecution of the case.' Syl. pt. 1, Brent v. Board of Trustees of Davis & Elkins College, 173 W.Va. 36, 311 S.E.2d 153 (1983)." Syl. pt. 1, Dimon v. Mansy, 198 W.Va. 40, 479 S.E.2d 339 (1996).

4. "When a party fails to make a reinstatement motion within the time period prescribed by R.C.P. 41(b) and W. Va.Code, 56-8-12, such party is not entitled to reinstatement of a case to the docket and the court is without power to grant such relief, except where the parties consent, or where good cause is shown such as fraud, accident, or mistake." Syl. pt. 1, Arlan's Dept. Store v. Conaty, 162 W.Va. 893, 253 S.E.2d 522 (1979).

Sherri D. Goodman, Esq., Goodman Advocacy, Charleston, for the Appellants.

Brent K. Kesner, Esq., Daniel W. Greear, Esq., Ellen R. Archibald, Esq., Kesner, Kesner & Bramble, PLLC, Charleston, for the Appellees.

PER CURIAM:

In this appeal, appellants Posey Dwight Tolliver and Beverly S. Tolliver challenge the June 11, 2004, order of the Circuit Court of Raleigh County, West Virginia, denying their motion to reinstate their personal injury action filed in that Court against appellees Terry Maxey and Carolyn Maxey. The action was dismissed on December 30, 1999, for failure to prosecute. In denying the motion to reinstate, the Circuit Court held that the appellants neither established good cause for reinstatement under Rule 41(b) of the West Virginia Rules of Civil Procedure nor filed the motion within a reasonable time as required under Rule 60(b)(6) of the West Virginia Rules of Civil Procedure.

This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. Upon thorough consideration, and for the reasons stated below, this Court is of the opinion that the conclusions of the Circuit Court with regard to both Rule 41(b) and Rule 60(b)(6) were within the Circuit Court's discretion. Accordingly, the June 11, 2004, order denying the appellants' motion to reinstate is affirmed.

I. Factual and Procedural Background

On March 16, 1993, Beverly S. Tolliver was riding in an automobile driven by her husband, Posey Dwight Tolliver, in Beckley, West Virginia, when their vehicle was struck by a Chevrolet truck operated by Terry Maxey. The truck was owned by Maxey's mother, Carolyn Maxey. Beverly S. Tolliver sustained injuries to her neck, back, shoulders and head, and Terry Maxey fled the scene. The Tollivers subsequently alleged that, at the time of the accident, Terry Maxey was driving upon a license which had been revoked for DUI.¹

In 1995, the appellants, Posey Dwight Tolliver and Beverly S. Tolliver, filed a personal injury action in the Circuit Court of Raleigh County against the appellees, Terry Maxey and Carolyn Maxey. The appellants sought compensatory and punitive damages and were represented by attorney Robert Browning, Jr., of Pineville, West Virginia. Beyond filing the complaint, however, Browning did nothing upon the appellants' behalf. He failed to reasonably communicate with the appellants and did not keep appointments to meet with them. Discovery requests from the appellees were virtually ignored.

On November 9, 1999, the Circuit Court issued a notice stating that, inasmuch as there had been no order or proceeding in the action for more than one year, the action would be dismissed pursuant to Rule 41(b) of the West Virginia Rules of Civil Procedure unless the appellants filed a motion setting forth reasons why the action should not be dismissed. As Rule 41(b) provides: "Any 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."² Soon after, Browning filed a motion opposing dismissal alleging: (1) that Ms. Tolliver was still under medical treatment and that the action, therefore, was not ready to settle, (2) that responses to the appellees' discovery requests would be furnished within 15 days and (3) that the Tollivers were entitled to an adjudication of the action on the merits.

Nevertheless, on December 30, 1999, the Circuit Court entered an order dismissing the action pursuant to Rule 41(b) for failure to prosecute. In the order, the Circuit Court noted that, although ongoing medical treatment might warrant continuing a scheduled trial, neither such treatment nor the statement that the appellants are entitled to an adjudication on the merits would excuse the failure to prosecute the action. Moreover, as the Circuit Court noted, Browning never filed the responses to discovery as promised.

Browning never informed the appellants that the action had been dismissed. Nor did he file a motion seeking reinstatement of the action.³ The appellants did not learn of the dismissal until May 2002 when Ms. Tolliver was informed by an employee of her insurer, Erie Insurance Company, that the action was no longer on the Circuit Court's docket.⁴ Thereafter, the appellants consulted with attorney Timothy Lupardus who referred them to their current attorney, Sherri D. Goodman. Ms. Goodman was retained by the appellants in August 2002.

In April 2003, the appellants, represented by Ms. Goodman, filed a legal malpractice action in the Circuit Court of Raleigh County against Browning. At that time, Ms. Goodman was of the opinion that, inasmuch as the appellants' personal injury action had been dismissed three-and-a-half years earlier in 1999, it was too late to move to reinstate the action before the Circuit Court. As Rule 41(b) further provides: "The Court may, on motion, reinstate on its trial docket any action dismissed under this rule . . . within three terms after entry of the order of dismissal or nonsuit; but an order of reinstatement shall not be entered until the accrued costs are paid." (emphasis added)⁵ From the 1999 dismissal until the appellants' discovery thereof in May 2002, Browning had not filed a motion to reinstate the action, and more than three Circuit Court terms had expired.⁶

Thereafter, in September 2003, Ms. Goodman became aware of a limited exception to the three term limit for a motion to reinstate. That exception, set forth in syllabus point 1 of Arlan's Dept. Store v. Conaty, 162 W.Va. 893, 253 S.E.2d 522 (1979), stated that an action, dismissed under Rule 41(b) for failure to prosecute, could be reinstated beyond the three term limit "where the parties consent, or where good cause is shown such as fraud, accident or mistake." Consequently, on September 24, 2003, Ms. Goodman, citing Arlan's, filed a motion to reinstate the personal injury action pursuant to Rule 41(b). In addition, the motion incorporated a request for relief from the 1999 dismissal pursuant to Rule 60(b)(6).⁷ The motion was filed during the fourth term of the Circuit Court of Raleigh County following the beginning of Ms. Goodman's representation of the appellants,⁸ some twelve terms after the 1999 dismissal.

Following a hearing, the Circuit Court entered the order of June 11, 2004, denying the motion to reinstate. The Circuit Court held that the appellants neither established good cause for reinstatement under Rule 41(b) nor filed the motion within a reasonable time as required under Rule 60(b)(6). In so ruling, the Circuit Court acknowledged that the appellants should not be penalized for the period of time they were represented by Browning. Nevertheless, the Circuit Court stressed the fact that, following their retention of new counsel, an additional three terms passed before the motion to reinstate was filed. The Circuit Court stated:

[E]ven assuming that Plaintiffs are able to meet the burden of establishing good cause for failing to file a motion to reinstate prior to the date Plaintiffs retained present counsel because Plaintiffs' former counsel misrepresented the status of plaintiffs' case, Plaintiffs are unable to establish "good cause" for failing to file a motion to reinstate for more than three additional terms after Plaintiffs retained present counsel and discovered this Court's dismissal order.

* * * * * *

The Court must now determine whether the motion was filed within a "reasonable time" following the entry of the order of dismissal within the meaning of Rule 60(b). That order, as stated above, was entered on December 30, 1999, and the motion to reinstate was filed on September 24, 2003. It is not disputed that during the period between the order and the motion, present counsel replaced Mr. Browning no earlier than August 2002. Three terms expired while Mr. Browning was responsible, and three more...