Plum v. Camden-Clark Foundation, Inc., et al.
Annotate this Case IN THE SUPREME COURT OF APPEALS OF
WEST VIRGINIA
September 1997 Term
_____________
No. 24126
_____________
CHARLES E. PLUM and LINDA PLUM,
Plaintiffs Below, Appellants
v.
CAMDEN-CLARK FOUNDATION, INC.,
d/b/a CAMDEN-CLARK MEMORIAL HOSPITAL,
MICHAEL SANTER, JR., and M. DAVID AVINGTON,
Defendants Below, Appellees.
____________________________________________________________________
Appeal from the Circuit Court of Wood County
Honorable George W. Hill, Judge
Civil Action No. 96-C-13
REVERSED
____________________________________________________________________
Submitted: September 10, 1997
Filed: October 6, 1997
Rodney T.
Berry John
D. Hoffman
Berry, Kessler, Crutchfield &
Taylor Flaherty,
Sensabaugh & Bonasso
Moundsville, West
Virginia Charleston,
West Virginia
Attorney for
Appellants Attorney
for Santer and Avington
Thomas J. Hurney, Jr.
Jennifer A. Cain
Jackson & Kelly
Parkersburg, West Virginia
Attorneys for Camden-Clark
The opinion of the Court was delivered PER CURIAM.
JUSTICE MAYNARD dissents and reserves the right to file a
dissenting opinion.
SYLLABUS BY THE COURT
1. "Appellate
review of a circuit court's order granting a motion to dismiss a
complaint is de novo." Syl. Pt. 2, State ex rel. McGraw
v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va.770, 461 S.E.2d 516 (1995).
2. "Dismissal
under Rule 4(l ) of the West Virginia Rules of Civil Procedure is
mandatory in a case in which good cause for the lack of service
is not shown, and a plaintiff whose case is subject to dismissal
for noncompliance with Rule 4(l ) has two options to avoid the
consequence of the dismissal: (1) To timely show good cause for
not having effected service of the summons and complaint, or (2)
to refile the action before any time defenses arise and timely
effect service under the new complaint." Syl. Pt. 3, State
ex rel. Charleston Area Medical Center, Inc. v. Kaufman, 197
W.Va. 282, 475 S.E.2d 374 (1996).
Per Curiam:See footnote 1 1
This
is an appeal by Charles E. Plum and Linda Plum,
appellants/plaintiffs, from an order of the Circuit Court of Wood
County dismissing their complaint for failing to timely effect
service of process. The sole issue presented is whether the
circuit court committed error in finding the plaintiffs' did not
establish good cause in failing to timely effect service of
process.
I.
On January 11,
1996 the plaintiffs filed a medical malpractice action against
Camden-Clark Foundation, Inc. (d/b/a Camden-Clark Memorial
Hospital), Michael Santer, Jr., and M. David Avington,
appellees/defendants. Service of process on the defendants was
not made until 181 days after the complaint was filed. The
defendants moved to dismiss the complaint on the grounds that
they were not served with process within the 180 day requirement
of Rule 4(1) of the West Virginia Rules of Civil Procedure. The
circuit court granted each of the defendants' motion to dismiss.
On appeal the plaintiffs contend they established good cause for
serving process one day late.
II.
The standard of
review applicable here is set out in Syl. Pt. 2, State ex rel.
McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770,
461 S.E.2d 516 (1995). This Court addressed dismissal of a
complaint for failure to timely effect service of process in State
ex rel. Charleston Area Medical Center, Inc. v. Kaufman, 197
W.Va. 282, 475 S.E.2d 374 (1996). In view of Kaufman's
"good cause" test and the facts developed below in this
case,See footnote 2 2
we find it was error for the circuit court to dismiss the
plaintiffs' complaint.
Reversed.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n.4, 423 S.E.2d 600, 604 n 4. (1992) ("Per curiam opinions ... are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta.... Other courts, such as many of the United States Circuit Courts of Appeals, have gone to non-published (not-to-be-cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.").
Footnote: 2 2 Service of process could have occurred within the 180 day period, except for the refusal of the circuit court clerk's office to accept a properly completed facsimile copy of a previously submitted incomplete Civil Information Sheet on the 180th day. At the time of this incident the West Virginia Rules of Civil Procedure did not address the issue of facsimiles. Silence by the Rules of Civil Procedure did not give the clerk's office authority to refuse the proffered and properly completed facsimile. The action of the clerk's office in refusing to accept the facsimile amounted to an amendment to the Rules of Civil Procedure. No circuit court clerk's office in the State of West Virginia has authority to amend the Rules of Civil Procedure. It is the exclusive constitutional domain of this Court to amend the Rules of Civil Procedure. We note that this Court adopted by order entered July 10, 1996, effective September 1, 1996, The Rules for Filing and Service by Facsimile Transmission.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.